text:
    ROUSE v. MICHIGAN UNITED RAILWAYS CO.
    1. Abatement and Revival — Death—Negligence—Personal Injuries — Parties—Executors and Administrators.
    A right of aotion for personal injuries not resulting in the death of the injured person, survives after his death, and a suit for his damages, begun by him, may be continued by his personal representative after his death, with the same effect, according to the same rules, and to recover the same damages, as if he were living and prosecuting his action in person. (3 Gomp. Laws, § 10117.)

      2. Same — Survival oe Actions — Death Act — Statutes.
    Neither the death act (3 Comp. Laws, § 10427) nor Act No. 89, Pub. Acts 1905, affects such right of action or has any application to the manner in which it shall be pursued.
    3. Negligence — Street Railways — Contributory Negligence —Instructions to Jury.
    In an action for personal injuries caused by a collision of defendant’s street car with the wagon of decedent, who claimed to have looked and peroeived a car approaching at a sufficient distance to give him time to cross, if it had not been running at an excessive rate of speed, the trial court erred in stating to the jury that deceased saw the car approaching, where the plaintiff’s testimony on that point was disputed.
    4. Damages — Negligence—Evidence.
    Where plaintiff offered evidence that deceased could do no more during the second year after his injury than the first, and his testimony on a prior trial tended to show the extent of his damages, and where the court charged that no recovery could be allowed for the period after the death of decedent, or for disability caused by his last sickness, which did not result from his injuries, or for shortening his life, or for pain and suffering caused by his last sickness, it was not error to permit the jury to determine the loss subsequent to the first trial of the cause.
    Error to Ingham; Wiest, J.
    Submitted January 4, 1911.
    (Docket No. 22.)
    Decided February 1, 1911.
    Case by Jennie Rouse, administratrix of the estate of Albert Rouse, deceased, against the Michigan United Railways Company for personal injuries. Judgment for plaintiff; defendant brings error.
    Reversed.

      Sanford W. Ladd (Merriam, Terkes, Simons & Ladd, of counsel), for appellant.

      Frank L. Dodge (Bollin H. Person, of counsel), for appellee.
   Ostrander, C. J.

Albert Rouse sued the defendant to recover damages for personal injuries. A judgment in his favor was reversed. Rouse v. Railways Co., 158 Mich. 109 (122 N. W. 532). While the cause was pending in this court, on May 19, 1909, Albert Rouse died intestate. His death was not a result of the injuries inflicted by defendant. His widow, Jennie Rouse, was appointed administratrix of his estate, a suggestion of the death of the plaintiff was made, and an order entered reviving the suit. The cause was again tried, and resulted in a verdict and judgment for the plaintiff.

Accompanying the bill of exceptions are 142 assignments of error, the most of which present the proposition, asserted by the defendant, that the right of action accruing to Albert Rouse in his lifetime did not survive his death. The proposition is asserted in various ways. It is not important that the reasoning which is claimed to support it shall be recited. A right of action for personal injuries not resulting in the death of the injured person survives his deáth (3 Comp. Laws, § 10117), and a suit for his damages begun by him may be continued by his personal representative after his death, with the same effect, according to the same rules, and to recover the same damages, as if he were living and prosecuting his action in person. Neither the death act, so called (3 Comp. Laws, § 10427), nor Act No. 89, Public Acts 1905, affect such a right of action or have any application to the manner in which it shall be pursued. In the decisions of this court no different conclusion has been stated or intimated.

With this statement, we dispose of all of the alleged errors which are relied upon, except those predicated upon a statement made by the court in the charge to the jury, to the effect that Albert Rouse, the injured person, saw the car coming, and those relating to instructions for measuring the damages of the plaintiff.

To understand the significance of the first of these contentions, it is necessary to refer to the declaration and to some of the testimony given at the trial. Albert Rouse was driving south oh the east side of Washington avenue, in the city of Lansing, with two horses and a wagon, the box or rack of which was 16 feet long. He had thus proceeded for a considerable distance. He attempted to drive from the east to the west side of the street, and while crossing, driving in a southwesterly direction, his wagon was struck by defendant’s car, also going south, between the front and rear wheels of the wagon. Rouse was jolted or fell from the wagon, and was injured. In each count of the declaration it is alleged that, before attempting to cross the street, Rouse looked for and .discovered the car approaching from the north, but at such a distance that, if it had proceeded at a lawful rate of speed, he had abundant time to cross the street as he undertook to do. It is alleged that the car was run at a speed of 30 miles an hour without giving warning by gong or bell of its approach. It is the claim of the defendant, and was stated to the jury by the court, that Rouse did not look for the car, but, when it was within a few feet of him, he drove upon the track, and was struck. At the last trial of the cause, the testimony of Albert Rouse given at the first trial was read to the jury. He said:

“Well, as I came up north of Madison street, about the center of the block, I looked around, and I thought I would cross up there at that street or along there, and I turned and looked north on the track, and I didn’t see any train, any car, and I thought I would go across, and there was some one coming on the west side of the street and was going north, and I don’t know who it was. They were trotting their horses so I drove on a little further until I came to the intersection of Madison street and the avenue, and I there looked back, and I saw the car at a little north or at about that street.
“Q. What street was that, the next street north of Madison ?
“A. The next one north — I think it is Jefferson. I then turned and went diagonally across the track, or started, and got across the track with my horses and at that time — or my horses and the front part of my wagon, and at that time I felt a shock, and was taken very rapidly up the street.
“Q. Now, you say you crossed diagonally, which way was that, going southwest ? ,
“A. I went at right angles. It would be northeast and southwest. In crossing it would be just like kitty-cornering across the street.
”Q. How long was it before you started to make the turn that you looked back to see t'he car ?
“A. After I .looked, I turned across the track immediately.
“Q. How far were you from the track, how far was your off horse from the track ?
“A. I should think about four feet. I was driving right along by the side of the track, close to the track. I should think somewhere about four feet, possibly. My horses were walking.
“Q. About how fast — are you able to judge how fast they were walking ? .
“A. Well, yes; I should think they were going about four miles an hour, as near as I can judge.
Q. Where did you say the car was when you looked ?
“A. At Madison street or a street north.
“Q. In Madison street ?
“A. Jefferson or the street north of where I went across. I think they call that Jefferson.
“Q. And did you notice anything about the rate of speed they were going at, anything particular ?
“A. I could not say as to that. I didn’t consider — no; I'could not tell what rate of speed they were going.
“Q. You didn’t notice anything unusual ?
“A. I didn’t notice any thing unusual as to the rate of speed.
“Q. Now, make it clear just where it was, tell us first where it was you attempted to cross ?
“A. At the intersection of Madison street and the avenue, at the north sidewalk.
"Q. At the north crosswalk of Madison ?
“A. Yes; where the people would walk. What I mean by the sidewalk is where the people would walk, crossing, if the sidewalk went straight across there.
“Q. And whereabouts were you when you struck with reference to the crosswalk ?
“A. It must have been right on the walk. My team had gotten across the walk. The wagon had a 16-foot box. The car struck the wagon just ahead of the hind wheel.”

The charge of the court complained about, with its immediate context, was:

“ Prudence dictates that one about to cross a street railway track should observe whether a car is near enough to interfere with reasonably safe crossing. So in this case, when Mr. Rouse started to cross the railway track, it was his duty to look and see whether a car was nearby, and act as a reasonably prudent man should act under the circumstances. Mr. Rouse saw the car coming, and it was his duty to observe the apparent speed it was traveling, so far as it was possible in the position he was to make such observation, and not to make the attempt to cross with the car coming, unless it was reasonable to believe it could be done in safety. And what he should have believed and should have done is to be determined by the standard of what a reasonably prudent man under the same circumstances would have believed and have done. That is the test, gentlemen, we have for determining reasonable care and prudence. What would an ordinarily prudent person under the same circumstances have done ? Where did Mr. Rouse start to turn his team to cross the track? You have heard the evidence. It now rests for you to say. Where was the car when Mr. Rouse started to turn his team across the track ? As I said before, it was the duty of Mr. Rouse when he wanted to cross the track to look and see where a car was, whether one was coming, and, if he saw one coming, then he was required to bring to bear upon the matter of whether he could safely cross with reasonable prudence. He was a user of the highway. He had a right to be upon the highway. He had a right to cross the track wherever he saw fit, provided he undertook to do so at a time when it was reasonably safe to cross.”

We must believe that the statement that Mr. Rouse saw the car coming was inadvertently made, because there is abundant testimony tending to prove that he did not see the car at all and never looked for it.' It was based entirely upon the testimony of Rouse. It is said in the brief for appellee that the court was “very careful not to offer any intimation as to whether Rouse turned to cross the tracks immediately after looking or not. That was the question in dispute.” It is the intimate connection between the fact of looking and the fact of turning, as testified to by Rouse, which, more than anything else, convinces us that the error was prejudicial and requires a reversal of the judgment. His reason for looking for a car was his desire to cross the street. A finding that he saw the car coming, based solely upon his testimony, strongly supports, if it does not necessarily involve, the conclusion that he immediately turned to cross the street. And thus it supports, if it does not involve, also, the conclusion that in the act of crossing he was in view of the motorman while he ran the car a block or more. The statement that he saw, the car coming cannot well be separated from his purpose in looking and his testimony that he immediately attempted to cross the street. There was positive testimony concerning the speed at which the car was run wholly inconsistent with the fact that Rouse looked and turned to cross the street as and when he said he did. The motorman testified that he was watching Rouse, saw him turn across the street, and that he did not look just before .he turned to cross. A considerable number of witnesses testified that the wagon was south of Madison street when it was struck by the car. A witness, a policeman, testified that shortly after he was injured, and before he was operated upon at the hospital, Rouse said to him, “What did I do, Hank — drive right in front of the car ? ” This and other portions of the testimony, considered together, tend to support the conclusion that Rouse did not look for a car, and did not see the car which struck his wagon.

The last contention to be noticed appears to us to be without merit. Mr. Rouse was injured March 8, 1907, and died May 19, 1909. The testimony tends to prove that during the winter, or some part of it, immediately preceding his death, he was ill, and that the cause of his death was an affection of the heart. Defendant requested the court to charge the jury that consideration of pecuniary loss should be confined to the period from his injury to April 23, 1908, when he gave his testimony at the first trial. This proposition is, as we understand it, based upon the idea that there is no competent testimony of any pecuniary loss after that time, and also upon the assumption that much of the time thereafter he was incapacitated by the trouble which caused his death. His wife, however, gave testimony tending to prove that during the second year after his injury he could do no more than he did during the first year. The court instructed the jury that compensation for loss of power to earn money could not be given for any period after his death, and must not go beyond the time of his last sickness; that the accident did not cause his last sickness, and, if he was disabled by his last sickness from working, and earning money, such disability was not a result of his injuries; that no damages could be allowed for any loss of earning power resulting from his last sickness, none for expenses attending his last sickness, none upon the theory that his life was shortened by his injuries, none for pain and suffering caused by his last sickness. We believe the jury could not have misunderstood the instructions. We do not perceive how the defendant could have been prejudiced by them.

For the error pointed out, we feel obliged to reverse the judgment, and grant a new trial.

Bird, Blair, Hooker, and Stone JJ., concurred.


source: Caselaw Access Project

author: Ostrander, C. J.

license: Public Domain

text:
    RAYMOND v. SPITZER.
    Specific Performance — Fraud—Remedies—Defenses.
    Defendant agreed in writing to convey to the vendee or his assigns certain premises, in consideration of the transfer to defendant of §1,000 in stock of a building and loan association. The vendee agreed to pay the installments required to mature the stock. The vendor claimed that the vendee falsely represented that the stock would mature in eighty months upon the specified payments. In fact it took several years longer than that time to mature. Defendant took no sufficient steps to forfeit the contract, and attempted at the maturity of the stock to collect the principal from the building and loan association. The original vendee assigned his interest in the property to complainants who did not participate in the alleged fraudulent representations. In a suit for specific performance, held, that a decree enforcing the provisions of the contract should be affirmed, and that no equitable considerations require that complainants be remitted to their action at law.
    Appeal from Ingham; Wiest, J.
    Submitted January 6, 1911.
    (Docket No. 36.)
    Decided February 1, 1911.
    Bill by Rufus Raymond and Guy A. Raymond against Mary A. Spitzer and the Capitol Investment, Building & Loan Association for the specific performance of a land contract. From a decree for complainants, defendant Mary A. Spitzer appeals.
    Affirmed.

      Lawton T. Remans {Louis B. McArthur, of counsel), for complainants.

      Frank L. Dodge, for defendant Spitzer.
   Ostrander, C. J.

Under date October 18, 1895, the defendant Mary A. Spitzer, owning some property in the city of Mason, Mich., agreed to sell the same to one Charles S. Clark, and the parties executed and acknowledged in writing an executory contract for the purchase and sale of said premises, dated on that day, to the terms of which, because of the peculiar nature of the controversy, particular attention must be given. The purchase price stated in the contract is $1,000, and this the second party agreed to pay as follows: He was to transfer and assign to the vendor 10 shares of Class B stock in the Capitol Investment, Building & Loan Association of Lansing, Mich., evidenced by á certain certificate dated October 1, 1894, issued to one Irish, and by him in July, 1895, assigned to Clark. During tbe life of the stock, and that means until it was fully paid up and matured according to the rules of the association, he was to pay the monthly installments. Besides this, the vendee agreed to pay all taxes and to keep the buildings erected and to be erected insured against loss and damage by fire and assign the policy to the vendor, the proceeds of any such policy in case of fire to be applied in satisfaction of the purchase money, and the surplus to be turned over to the vendee or his assignee. .The vendor agreed that, upon the maturity of the stock or the prior payment of the sum of $1,000, she would deliver to the vendee or his assigns a good conveyance of the premises in fee. It was mutually agreed that the vendee should have possession of the premises upon the execution and delivery of the contract, he keeping the same in as good condition as they were at the date when he took them.

Clark, the vendee, went into possession of the premises. He sold and transferred his interest in the contract and in the premises to one Albert J. Hall, who also went into possession, and afterwards, and on the 12th of March, 1898, sold and assigned his interest in the contract and in the land to complainants, who claim in their bill to have made considerable improvements.

The bill in this cause is filed for specific performance of the contract by the vendor, and, until such performance, to restrain the Capitol Investment, Building & Loan Association from paying the defendant Spitzer the matured value of said certificate of stock, it being charged in the bill that the stock matured in September, 1907, and that the vendor, upon repeated applications made to her to execute a deed, refused to do so.

The defendant Spitzer answered, and in the answer claims certain affirmative relief. It is denied by her that complainants requested her to make, execute, and forward a deed of the premises in accordance with the terms of the contract, or that she ever received any communication, request, or demand from complainants to make, execute, and forward a deed of the premises in accordance with the terms of the contract. She denies that she ever refused at any time to execute a deed as in the contract covenanted and agreed. She admits she made a draft upon the Capitol Investment, Building & Loan Association through one of the banks of the city of Lansing, but she denies that she was seeking to obtain possession of the money due on said stock without executing and delivering the deed of conveyance. She admits that she is without the jurisdiction of the court as the bill, charges. She denies that complainants are entitled to the relief prayed for in the bill for the following reasons: That, when she entered into this contract with Clark, she did so upon the representation of Clark and others concerned with him that the stock mentioned in the contract would mature in 80 months from the date of its issue, being about 67 months from the time when she took an assignment of it, and except for these representations she says she would not have made the contract; that the stock did not mature until October 1, 1907. She further says that, notwithstanding the manner in which she was induced to sign the contract, she would have abided by it, for the reason that she was advised that she would be obliged to do so, if the assignee of the contract had complied with the terms thereof :

“ That she stood ready to make said deed and offered to deliver the same when the assignment of said contract was known to her, so that she could know positively to whom the deed should be mad© and delivered. This they omitted, refused, neglected, and failed to advise this defendant of, and have not, up to the beginning of this suit, advised this defendant who said contract had been assigned to.”

She further says she has been deprived of the avails of the property because of the contract, and of the rents which aggregate a large amount; that she became so involved that it was necessary for her to raise a sum of money and was compelled to and did mortgage the premises for $1,500 to another citizen of Ohio, who transferred his mortgage to a bank in Ohio. She says she should not be compelled to execute a deed because she was fraudulently induced to enter into the contract; that, although unknown to her, the property at the time she sold it was of much greater value than the stock at the time of entering into said contract, and that the vendee was aware that the stock would not mature within the time represented; that at the time of commencing this suit, complainants were not possessed of any right, title, and interest in and to said contract by virtue of the assignment of it, or of any right, title, and interest in the premises; that defendant had never been notified by said Clark, or any other person having authority to do so, of the'assignment of the contract before this suit was commenced; that no tender of any sum of money or other valuable consideration has been made to defendant as payment; that she has never received any payment of any kind. She insists that an account of the rentals received by the complainants shall • be taken, and a decree entered giving a lien upon whatever interest complainants may have in and to the said certificate of stock. Specifically affirmative relief is claimed as follows :

“(1) That the said complainants may be required to make, without oath, their full, direct answer to the affirmative portion of the answer of this defendant.
“ (2) That there may be an accounting of the rentals received for said house and premises and expenditures for repairs and of taxes, and such other matters in that connection as may be deemed just and proper by this honorable court.
“ (3) That this defendant may, by order of this court, be decreed to be entitled to such moneys as may be found in excess of the moneys used in the repairing of said premises, and such moneys as have been paid upon the taxes thereof, and a balance thereof certified in her favor.
‘ ‘ (4) And that she may have such other and further relief in the premises as may be warranted under the pleadings and proofs in said cause and as equity may require and as to this honorable court shall seem meet and proper.”

The cross-bill was answered, replications were filed, and the cause came on to be heard in open court. A decree was entered in accordance with the prayer of the bill of complaint, providing that upon the execution and delivery of a deed or the recording of a certified copy of the decree, the Capitol Investment, Building & Loan Association pay over to said Spitzer the matured value of the ten shares of stock.

O. M. Spitzer, the husband of defendant Spitzer, both of whom then lived and now live in Ohio, made the bargain for the sale of the premises, and his wife, acting upon his advice, executed the, contract. He gave testimony to the effect that "William Clark, Charles S. Clark, and A. J. Hall made representations to him that the stock would mature in 80 months from date of issue. The certificate was assigned to his wife and has been in her possession. The payments required to mature it were 50 cents a month a share, or $5 a month for 10 shares. It is incredible that one should have believed that with such payments the stock could be honestly matured in 80 months. It is perhaps equally incredible that the owner of property should sell it upon ,the terms stated in the contract and forego interest, rent, and all emolument for a period which should have been estimated at from 10 to 12 years. Payments were made to the local agent of the building and loan association at Mason, and the stock was matured in accordance with the rules and regulations of the company. The vendor, until after it had matured, never protested that the stock should have been earlier matured, never demanded why it was not matured. On the contrary, after the period of 80 months from October 1, 1894, had expired, and on February 8, 1902, Mrs. Spitzer wrote to one of the complainants stating she was informed that the insurance upon the property, the contract for the sale of which, she recites, had been assigned by Clark to Hall and from Hall to Raymond, had not been assigned to her as agreed. Her letter ends as follows:

“As this is not in conformity with the terms of our contract, I now declare the contract void. However, if the balance due on it is paid me by March 1, 1902, I will give you a deed of the place upon receipt of same. Hoping that everything may still be fixed up satisfactory to yourself, as well as myself, I remain.”

Explanations were made which appear to have been satisfactory. It is not now claimed that the contract was forfeited. The money to cancel and retire the stock was sent to the local agent at Mason. Mrs. Spitzer on September 17,1907, drew on the building and loan association for $1,000. On September 30, 1907, she drew on the Mason agent for $1,003.40. On October 10, 1907, she drew on the association for $1,003.40. Apparently with her last draft, or at the time of making it, she wrote to the association the following letter:

“ I drew a sight draft on you for my certificate of stock class B2285 on September 19, 1907, with certificate attached, that you turned down, and you refer it to Mr. Hall of Mason. Then I drew on him, at your suggestion, and he also turned it down. Now, I have drawn the second one, with certificate attached, upon you people, on which I demand payment when presented to you, with the legal rate of interest which the State of Michigan allowed from the 19th of September, 1907. I shall not look to any one else for the payment of this stock, and if not paid, when presented, I shall expect damages. I have been to a good deal of trouble already. I have given you no authority to pay this money to any one. I want spot cash for this certificate, and nothing else. I drew threw the Elyria Savings Bank of Elyria the 10th of October, 1907.”

She made a deed of the property, reciting that it was upon condition, and sent it to a bank in Mason with instruction that it be delivered upon payment of $1,100. It is not necessary to recite here the efforts by personal interviews with Mrs. Spitzer and by correspondence to secure a proper deed from her and to pay over to her the value of the matured stock. It is sufficient to say that the contract was fully performed by the assignee of the vendee, who has not yet secured a conveyance, and that the money for the matured stock is awaiting, and has since September 17, 1908, awaited, the execution and delivery of the deed. Under the circumstances, which have, perhaps, been set out with unnecessary particularity, we find no reason for refusing to affirm the decree of the court below. It is not claimed that complainants were parties to any false representations concerning the stock. Defendant Spitzer is a nonresident of the State. Equitable considerations do not demand that the bill be dismissed and complainants be remitted to an action at law for their damages for breach of the contract. Indeed, we are not asked to grant such relief. We know of no reasonable theory which will support a decree which, while requiring that a deed shall be executed and delivered, imposes terms upon complainants.

We therefore affirm the decree, with costs to complainants.

Bird, Hooker, Blair, and Stone, JJ., concurred.


author: Ostrander, O. J.

text:
    LEWIS v. DETROIT VITRIFIED BRICK CO.
    1. Master and Servant — Independent Contractor — Mines and Minino — Compensation.
    A laborer working in a mine, subject to discharge at any time by the proprietor, receiving payment for removing shale and rock, by the ton, fixing his own hours of labor, and providing certain of the tools and materials for carrying on the work, is a servant, not an independent contractor.

      2. Mines and Mining — Evidence—Judicial Notice.
    The court cannot take judicial notice that general inspection of a mine is necessary.
    3. Same — Safe Place — Supporting and Timbering Drifts.
    It was a question for the jury whether defendant used reasonable care in providing its miners with a safe place to work, where it appeared that the operations were carried on in an old coal mine, from which the timbering was removed as operations advanced; that blasting was being done in the part of the mine in which plaintiff worked; that the mining boss knew certain rock and material in the roof were loose and liable to be jarred down, but had taken no precautions to prevent it, and that the materials fell and injured plaintiff while he was working in a part of the mine that was used as a permanent passageway.
    4. Same.
    Whether ordinary care required that the rock be removed or supported in its place, whether the alleged negligence was attributable to defendant, and whether plaintiff was negligent, were questions of fact.
    5. Same — Evidence—Assurance as to Safety.
    While evidence that the agent of defendant advised plaintiff, when he went to work, that the mine was a safe one, and that plaintiff had had no previous experience in a mine, was incompetent to prove the defendant’s negligence, its admission did not prejudice defendant, since the only question of want of safety, under pleadings and evidence, related to the overhanging loose rock, and since plaintiff’s inexperience was only in question as affecting his contributory negligence.
    6. Same — Instructions—Contributory Negligence.
    In the absence of testimony tending to show that the mine boss was accustomed to examine the roof of the drift after each blast, except in the immediate vicinity of the explosion, defendant could not complain of the court’s instructions to the jury that if plaintiff followed the mine boss into the drift before the latter had time to make such examination, he was guilty of contributory negligence, the plaintiff receiving his injuries at some distance from the usual point of inspection.
    7. Damages — Charge of Court — General Instructions — Saving Questions for Review.
    That instructions to the jury on the question of damages were of a general character, does not require the reversal of the case, if they were correct and no requests for more specific instructions were presented.

      Error to Shiawassee; Miner, J.
    Submitted January 5, 1911.
    (Docket No. 25.)
    Decided February 1, 1911.
    Case by William Lewis against the Detroit Vitrified Brick Company for personal injuries. Judgment for plaintiff; defendant brings error.
    Affirmed.

      Odell Chapman, for appellant.

      George E. Pardee and A. L. Chandler, for appellee.

       As to who is deemed to be an independent contractor, see note in 65 L. R. A. 447.

   Ostrander, O. J.

No testimony was introduced on the part of defendant. It is certified that the record contains the substance of all the testimony given upon the trial. In neither brief is there a statement of what the testimony for the plaintiff tends to prove. From such statements as the briefs contain, and from the record, we learn that the testimony for the plaintiff tends to prove that a part of the business of defendant is the mining of shale, or clay. The property in which the deposit of shale is found was formerly operated as a coal mine. The deposit of shale is upon a lower level than the deposit of coal. The shaft of the mine is some 50 feet in depth, ending in an entry or gallery some hundred feet or more in length, which runs north and south. On the west side of this gallery, drifts have been run into the shale, which is removed by first drilling into the face of the deposit, exploding dynamite, and, as the shale is torn down by the force of the explosion, and by picks and shovels, it is loaded in cars running upon tracks, pushed out to the main gallery, and hoisted to the surface. The drift in which plaintiff received his injury is about 12 feet wide, the deposit of shale about 17 feet in depth, and directly over the drift is a tunnel made in earlier days in pursuing a seam of coal, so that the roof of the drift is 21 or 22 feet above the bottom of the drift, and is in fact the roof of the tunnel made when the coal was taken out. In the operations in this drift, the shale was removed at the rate of about a foot a day. In the mining of coal, the roof of the mine or tunnel had been to some extent braced or propped. In drifting into the shale, when these props were reached, they were taken out and either thrown to one side or used to make ties upon which to lay the rails for the tram cars. The shale mine itself was an untimbered mine.

The plaintiff, a man about 38 years of age, who had no experience in mining, applied at Flint to a Mr. Cook to obtain employment in the mine. Later, plaintiff was taken by Cook, or went with Cook, to the mine, and was there introduced to Mr. Peake, the mine boss, with the statement that he (Cook) had charge of things above ground and Peake had charge of things below ground. In the conversation it was stated there was employment for plaintiff at $2.50 a day or 30 cents a ton, and Peake, with the plaintiff and another, went down into the mine. The mine was wet, and wholly unlighted except by the oil lamps which the miners carried on their caps. Just what plaintiff was able to see upon this visit, or what investigation, if any, he made, is not very clear. Later, he went to work, at first at shoveling under the direction of the mine boss, and was afterwards given a place in the drift which has been described, and where he understood that he was working by the ton and not by the day. There were two other men at work in this drift, one of whom drilled, and the others, including plaintiff, loaded the shale and pushed the ear out and in. The explosive was handled by Peake and each shot was fired by him. Plaintiff knew the character of dynamite and the effect produced by exploding it. When a shot was ready to be fired, the men left the mine, descending again after the explosion, when it was the practice for Peake to go ahead into the drift and make some examination of the condition of the walls and roof to see whether they were safe. Plaintiff had worked one day in this drift and had begun work the second day, which was July 14, 1908. He had gone to the surface with the others, a shot had been exploded, and he, with Peake and his companions, had again gone down into the mine. Peake was up on the breast of the drift making some examination. Plaintiff and one other were some 20 or 30 feet back from the end of the drift, loading a car, when a rock weighing a ton or more fell from the roof of the old mine, smashing the car, pinned plaintiff to the bottom of the drift, and badly injured him. His companion waS also struck, but managed to avoid being crushed. Plaintiff also introduced testimony tending to show that he was assured by Peake before beginning work that the mine was a safe mine; that the rock which fell upon him was loose and was known to be loose by Peake and by others; that the attention of Peake had been directed to it by some of the men who had worked in the drift before plaintiff worked there; that in the coal mine this rock had been supported by props which had been removed; that when plaintiff began work in this drift it had been carried to a point considerably beyond that in which the rock overhung the drift; that he had no notice or knowledge of the condition of the roof, and that with the lights that were carried and with his experience it is improbable that he would have discovered or could have understood there was danger to be apprehended from the falling of this rock. The testimony with respect to the assurance that the mine was a safe mine was later stricken out.

The declaration of the plaintiff contains two counts. In the first count is alleged by way of inducement the ownership and operation of the mine; that explosives were used; that plaintiff was at work under the direction and charge of defendant through its boss or foreman; that the walls of the mine were not timbered, braced up, or supported in any way. The duty of defendant and the breaches thereof which are alleged are:

“Whereby it became and was the duty of said defendant to put in braces, timbers and supports in said roof, drifts, stopes, crosscuts and chambers of said mine, and to provide proper and suitable timbers and material to prop and support the overhanging walls of said mine, good and proper means to prevent the walls and the clay and rock therein from crumbling, caving and falling down on the plaintiff and the servants of defendant, and to duly and properly inspect said mine whereby it might be kept safe; and to furnish plaintiff with a suitable and reasonably safe place in which to perform his work as aforesaid, and not to put him in a place unsafe or surrounded with dangers and perils not fully known and understood and not assumed by the plaintiff. Yet the defendant disregarding its duty as aforesaid, to wit, July 14, 1908, and while plaintiff was so engaged in his regular employment as aforesaid, and not knowing of any unreasonable or extra-hazardous danger surrounding him, the said defendant wrongfully and negligently neglected and refused to duly and properly inspect said mine, whereby it might be kept reasonably safe for plaintiff to work, and neglected and refused to provide a reasonably safe place in which plaintiff was required to perform his work as aforesaid, by then and' there neglecting and refusing to place timbers and supports in said roof, drifts, stopes, crosscuts and chambers of said mine, and to provide proper and suitable timbers and material to prop and support the overhanging walls of said mine, good and proper means to prevent the walls and the rock and clay therein from crumbling, caving and falling down on the plaintiff and injuring him, said plaintiff, and did consign plaintiff to a place not reasonably safe, and which was surrounded with dangers and perils not fully known and understood by plaintiff, and therefore not assumed by plaintiff; and that, therefore, the requiring plaintiff to perform as aforesaid was actionable and tortious wrong and negligence of said defendant toward said plaintiff.”

In the second count the employment of the plaintiff is alleged; his inexperience in mining; the fact that he did not understand the situation; that he had no adequate knowledge or conception of the dangers of mining; that defendant informed him that the place was safe; and that there was no danger to the plaintiff. The duty alleged and the breaches are:

“ Whereby it became and was the duty of said defendant to provide proper and suitable timbers and material to prop and support the overhanging walls of said mine, and also inasmuch as plaintiff was inexperienced in such work and did not know of or comprehend the dangers and perils surrounding him in said work and the said dangers, not being obvious to him and not assumed by him, and furthermore inasmuch as the defendant informed plaintiff that there was no danger and' that the place was a safe place to work — to fully and sufficiently warn and inform plaintiff of the surrounding dangers, viz., that said walls, drifts, etc., not being braced, supported or propped, that the overhanging walls and other walls were liable to cave, crumble and fall upon and against the plaintiff, injuring him, and that defendant knew or should have known of such dangers and surroundings. Yet said defendant disregarding its duty, as aforesaid, on, to wit, July 14,1908, neglected to provide proper and suitable timbers and material to prop and support the overhanging walls of said mine, and while plaintiff was engaged in his regular employment as aforesaid, and not knowing of any unreasonable or extrahazardous danger surrounding him, the said defendant wrongfully and negligently refused and neglected to warn and inform plaintiff that the place he was consigned to work was not a reasonably safe place for want of braces, props and supports in the drifts, stopes, chambers, walls, etc., of said mine, but that said defendant on, to wit, a week before wrongfully and tortiously informed plaintiff that the said place was safe and all right in which to perform his said work, and that, therefore, the requiring of plaintiff to perform under the circumstances aforesaid was actionable wrong .and negligence of said defendant toward said plaintiff.”

As the case for the plaintiff was developed, three principal propositions, based upon the testimony for the plaintiff, were, and are now, asserted by defendant as established and as preventing a recovery by the plaintiff. They are, first, that the plaintiff was an independent contractor; second, that the point in the mine at which plaintiff received his injury was within the area disturbed by the mining operations as they were carried on there, and constantly changing or liable to change; third, that Peake was a fellow-servant of plaintiff.

The testimony relied upon to support the first proposition may be said to be undisputed, the effect of it, as defendant contends, being that plaintiff and the men with whom he was working were not under the control of defendant or its agents with respect either to the manner of doing the work or the results to be obtained. The question was left to the jury, but we are of opinion that the court might properly have instructed the jury that plaintiff was not an independent contractor. It is true the men were to be paid 30 cents.a ton for the shale mined by them, to be divided between them, excluding Peake. Their hours for labor were fixed by themselves, unless— and upon this subject we find no testimony — power controlled by defendant was used to hoist loaded cars, in which case it would seem they would be required to adapt their hours of labor to the hours of hoisting. They furnished lights and explosives, or the cost of them, and were generally masters of their time and of the efforts they should make. But as against these facts are those now to be stated: The mine belonged to defendant, which furnished cars, track, and the place to work. An agent of defendant handled and exploded the dynamite. Control of the interior of the mine was with defendant, which' could at any time discharge plaintiff and those working with him. Plaintiff was no more an independent contractor than a mason would be who, subject to discharge at any time, lays bricks in a building at an agreed price for a thousand bricks, the bricks, mortar and an assistant being furnished to him, although he may work or not work, or work fast or slow,- as he pleases.

As to the second proposition, involving as it does the question of the duty of defendant to furnish a safe place to work, and as to the third proposition, if in view of the plaintiff’s position they are material, they (as we shall later on attempt to show) presented questions of fact for the jury. Independently of these propositions and certain objections to testimony which we think present no ground for a reversal of the judgment, it does not appear to be claimed that the case for plaintiff should not have been submitted to the jury. It is not now contended that the case submitted to the jury was not the case made by the plaintiff. There was no motion for a new trial. There were requests, couched in the general form, that the evidence did not justify a verdict for the plaintiff, but the points made in argument are those which are considered above.

The declaration alleges, in a very general way, that what defendant omitted to do was to inspect and to timber the mine, or to prop and support the roof and walls thereof. These are the essential averments of negligence. "We do not find in the record any testimony tending to prove that the mine required timbering or the walls or roof thereof support, or that either precaution was practicable. Besides, plaintiff knew that the mine was not timbered; at least, such knowledge might have been inferred by the jury. What the testimony does tend to prove is that the particular rock or stone which fell was loose, was liable to be jarred or thrown down, and that the mine boss knew it wasloose, had been propped or supported in the coal mine, and the prop or props removed in making the shale mine. It does not appear that in any other place the roof or walls required support or that in any other respect the mine was unsafe except as all underground workings may be said to be unsafe. The drift had been opened beyond the point where the rock overhung it before plaintiff began work. It is to be inferred from the testimony that this rock could have been, and should have been, broken down and removed. There is no testimony tending to prove, and the court cannot take judicial notice of the fact, that general inspection of the mine was necessary.

It is therefore evident that the material questions for the jury were (1) whether the particular condition created by the loose rock and the successive explosions rendered the place unsafe, and whether ordinary care demanded that the rock be removed or be supported in place; (2) whether, if it was negligent to leave the rock in place unsupported, it was the negligence of defendant; (3) whether plaintiff was negligent. The testimony which was produced made a case very different from the one considered in Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 33 L. R. A. 435, 58 Am. St. Rep. 505), or the one considered in Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (61 N. W. 658, 27 L. R. A. 366). The drift, at the point where plaintiff was injured, was a permanent passageway, in which plaintiff found rails laid to a point many feet beyond the point where he was injured. So far as appears, it was a safe one except for the loose overhanging rock. Indeed, the work of plaintiff and his fellows did not create the roof of the drift.

' We are of opinion that the testimony tending to prove, as a part of the contract of hiring, the assurance that the mine was a safe place, testimony which was afterwards stricken out, and that tending to prove that plaintiff had no experience in mining, was inadmissible, under the declaration, to show the negligence of defendant, but we hold that its admission did not prejudice defendant. It did not prejudice defendant because, as has been stated, there was no question of the safety of the mine except as connected with the hanging rock, and none of the experience of plaintiff except as affecting his duty to discover the only danger which existed.

Plaintiff introduced some testimony tending to prove that it was a custom, not always observed, for Peake, after an explosion, to go into the drift ahead of the others and look the walls and roof over, and then call the others, and that upon the particular occasion he went into the drift and was followed by plaintiff and the others before they were called. Upon this testimony, and it was not all one way, nor was it very certain, defendant based, in part, the theory of plaintiff’s contributory negligence and submitted a request. Upon this subject the court gave the following instruction, which, while not very specific, we regard as favorable to defendant.

“This is the defendant’s seventh request:

“‘And if the jury find from the evidence in this case that the plaintiff knew it was his duty to remain away after a shot was fired until Mr. Peake should examine the walls and roof, and ascertain whether there was loose rock liable to fall, and if the jury further find from the evidence that at the time of the firing of the last shot before the injury to plaintiff, the plaintiff and all those working with him including Mr. Peake went out of the mine, and that after the explosion Peake said, ‘ ‘ Come on; let’s go down and see what we have got,” or in any other way told the men to go with him down the shaft, and you find that the plaintiff knew that Peake went with him down the shaft, and that the plaintiff knew that Peake had not yet examined the walls or roof of the drift in the vicinity of where the shot was fired, and the plaintiff, in spite of such knowledge, with desire to get to work that he might earn more money, began working before Mr. Peake pronounced it safe or said anything to him, the plaintiff, about beginning work in the end of the drift or about the subject of whether there was loose rock or about whether it was safe, then the plaintiff was guilty of contributory negligence, and if you so find your verdict must be for the defendant.’
“Now, that depends very much upon what you find that the plaintiff knew was the duty of Mr. Peake and what he knew was his duty at the time. If he knew at that time that it was Mr. Peake’s duty before he resumed the work, or before he came near his work, that it was Mr. Peake’s duty to go and investigate and if at that time when the accident happened, Mr. Peake had not made such investigation and had not signified to the plaintiff in any way that it was his duty to go to work, then the plaintiff should have waited longer, and if you find this to be the fact, then plaintiff could not recover. Vou have a right to take into consideration where Mr. Peake was at the time and where the plaintiff was at the time. As I understand the'evidence, and it is your duty to determine that fact, at the time of the accident, Mr. Peake was up toward the top where the explosion occurred, and the plaintiff was back here, some of the witnesses said, 20 or 30 feet back. Now, you should take into consideration all of those facts, what occurred between Mr. Peake and this man at the top of the mine, what Mr. Peake said to the plaintiff, or those who were with the plaintiff, and determine whether or not the plaintiff at that time violated any duty which he owed the company. If he violated any duty which in any way contributed to the injury in this case, then he could not recover. Or, in other words, if he violated any duty that he owed to the defendant, he was guilty of contributory negligence, and if that negligence contributed in any way to the injury, then the plaintiff could not recover.”

This Was favorable to defendant because there is no testimony tending to prove that it was the custom for Peake to examine the roof in the whole drift after each explosion or any considerable portion of it except at or near the point where the shot was fired. In other portions of the charge the jury was told that if plaintiff knew of the loose rock, or by reasonable care could have-discovered its condition, he could not recover; that plaintiff assumed the usual hazards of the employment, but had a right to rely upon the performance by the master of his duty to furnish a reasonably safe place in which to work. He instructed them also:

“ If the jury find from the evidence that the rock which fell upon plaintiff was caused to fall by the blasts which the plaintiff and those working with him, placed in the west entry and fired during the time plaintiff was working there, then the plaintiff cannot recover, and your verdict, if you so find, should be not guilty. I will amend that by saying, unless you find that the rock had been loose such a length of time and the defendant knew it, and that by the exercise of ordinary and reasonable diligence, it should have removed it.”

There was abundant testimony to support findings that as to his knowledge of the condition of the roof — the dangerous condition created by the loose rock — Peake was not a fellow-servant of plaintiff and that if the proper officers of defendant had no actual knowledge of the particular condition of the roof of this drift, they were legally chargeable with such notice.

The rulings made by the court during the cross-examination of plaintiff evidence no abuse of discretion. The instructions upon the subject of the damages recoverable by plaintiff are criticised by counsel. Defendant presented no request and asked for no correction of the charge. It is not claimed that the verdict, the amount of which does not appear in the record, was excessive. The instructions might have been amplified, but their general nature, so long as the rule stated is a correct one, does not justify a reversal of the judgment. A proper rule was stated, and there was some testimony concerning the wages plaintiff was capable of earning and had earned. In view of all of the testimony and of the considerations which have been stated, we are of the opinion that the failure on the part of the court to more sharply and simply present to the jury the precise questions of fact which were involved is not a good ground for reversing the judgment. The specific objections made by the appellant cannot be sustained. Affirmance of the judgment does not imply approval of all that was done at the trial or of all that was said to the jury. The testimony for plaintiff tended to prove the negligence of defendant in not removing the rock or supporting it in the roof of the mine and absence of negligence on the part of plaintiff. That plaintiff was severely injured, there can be no doubt.

The judgment is affirmed.

Bird, Blair, Hooker, and Stone, JJ., concurred.


author: Blair, J.

text:
    HELLER ALLER CO. v. RIES.
    1. Contracts — Implied Contracts — Support and Services.
    A contract will not be implied to pay for care and services rendered without expectation of recompense by one member to another member of the family, who was incompetent to make a valid contract.

      2. Fraudulent Conveyances — Husband and Wipe — Guardian and Ward.
    In a suit by a creditor in aid of an execution upon real estate, the defendants sustained the burden of proving their good faith in transferring real property from the defendant husband to his wife, by evidence that he had collected funds as guardian of the wife’s mother, an incompetent, applied the money to the payment of a mortgage on his property, and, after the death of the incompetent, settled and paid the indebtedness to his wife, who was the sole heir of his ward, by transferring to her the real property in question, which, after deducting the homestead interest, was of value fairly to satisfy, the obligation.
    Appeal from Lenawee; O’Mealey, J.
    Submitted January 3, 1911.
    (Docket No. 10.)
    Decided February 1, 1911.
    Bill in. aid of execution by the Heller Aller Company against Adam Ries and Ann Martha Ries. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Files & Paxson and Smith, Baldwin & Alexander, for complainant.

      Q-eorge W. Ayers and J. N. Sampson, for defendants.

       As to implication of agreement to pay for services rendered by relative or member of household, see note in 11 L. R. A. (N. S.) 873.

   Blair, J.

On February 1, 1893, Adam Ries and Augustus Ries gave to complainant their promissory note for $300 with interest at 6 per cent., payable on or before June 1st following. Suit was brought upon this note in the court of common pleas in Fulton county, Ohio, and judgment obtained there on said note April 29, 1907. Suit was brought upon this judgment in the circuit court for the county of Lenawee, and judgment obtained for $868 damages and $75.95 costs, March 31, 1908. Execution was issued upon this judgment, and, for the want of personal property, levied upon the E. £ of the N. W. i of section 27, township 8 S., range 4 E., of Ogden, Lenawee county, Mich. This land had, after the note was given, been conveyed by the defendant Adam Ries and Ann Martha Ries, his wife, to James L. Drake, and James L. Drake and wife deeded it back to Adam Ries and Ann Martha Ries, as husband and wife, for an expressed consideration of $1, on June 22, 1901. On April 3, 1909, defendant Adam Ries deeded the same premises to the other defendant, his wife, Ann Martha Ries, for a claimed consideration of $1. On April 9, 1909, complainant filed its bill of complaint in aid of execution. The proof was taken in open court, and the court made a finding that the parents of the defendant Ann Martha Ries lived with defendants in their home for some years, and the father died there, and that defendant Adam Ries presented a claim against the father’s estate for his care and support and the expense of his sickness and burial, which was allowed and paid out of the father’s estate; that said father was a soldier, and after his decease the defendant Adam Ries was appointed guardian of the soldier’s widow, who was incompetent, and as such guardian received from the government of the United States hack pension, $1,555.40, and later another amount of pension money, $1,105, making a tatal of $2,660.40; that the widow lived with defendants, and was cared for by them several years, which support was not furnished under any agreement that the defendants were to be compensated therefor, nor did it appear that defendant Adam Ries, guardian, ever intended to charge his ward or expected compensation, or that after her death he made any claim against her estate, or that he ever regarded the money received from the government as compensation for the care and support of his ward, nor that he ever accounted to his ward, while living, or to her estate, for these moneys, or that he ever rendered any account to the probate court of his guardianship, or that he was ever discharged as guardian; and that he did not account to the defendant Ann Martha Ries, as the only heir of his ward, for such moneys, which money he used in his business affairs and in paying a mortgage on the land in question, “ until he accounted to the defendant Ann Martha Ries by paying her the amount of said indebtedness in the transaction of conveying his said farm to the defendants Drake and taking a conveyance of the title of said land back to himself and his said wife as tenants of the entirety.”- And the court found that defendant Adam Ries, as guardian of his wife’s mother, was indebted to his ward in the sum of $3,660 at the date of the Drake deed and the conveyances back to him and wife.

From the decree dismissing its bill of complaint, complainant appeals to this court. Defendant Ann Ries’ father died in 1879, and his widow continued living with defendants until her death in 1896. The mother of defendant Ann Reis received nothing from her husband’s estate, and we are satisfied that all services rendered to her were gratuitous until her pension was allowed, at least. In the words of defendant Ann, “we had to take care of her for nothing until after she got her pension.” The services having been rendered to the mother as a member of the family, without expectation of recompense therefor, and she being incapable of making a contract, no contract could be implied to pay for the services. Mason v. Dunbar, 43 Mich. 407 (5 N. W. 432, 38 Am. Rep. 301); Decker v. Kanous’ Estate, 129 Mich. 146 (88 N. W. 398); In re Colburn’s Estate, 153 Mich. 206 (116 N. W. 986, 126 Am. St. Rep. 479).

Defendant Adam Ries having been appointed guardian of his mother-in-law’s person and estate, as such guardian collected the pension money, receiving a check for $1,555.40, July 38, 1893, which he used to discharge a mortgage of $1,800 on the west 40 of the lands in question, in accordance, as he testified, with the advice of the judge of probate and an attorney. His wife also advised such use of the money. There was no agreement that the money should be repaid to defendant Ann, but Adam testified that he considered that the money belonged to her:

“I asked Mr. Robbins, the probate judge — I asked him about her estate. He said the best thing to do was to put that money into a piece of land, or if you have got any mortgage on your place pay it, and save that money for the old lady’s support, and I did so; and on the third day of August I paid up this mortgage. Four years after that my wife’s mother died, and my wife, being the only child and heir, the money came to her. In 1901 I was sick a long time, and my wife asked me, You had better do something to secure me on the property,’ and we made a joint deed. This $1,555.10 check was for the back pay that she got. This pension money had been running for twelve years back; she was getting twelve dollars a month. * * * I did not pay the balance of the mortgage the same day that I applied the pension check. I had made payments beforehand, and this check settled it all up and the mortgage was discharged. * * *
“Q. I think you said, Mr. Ries, on your direct examination, that this money that came from your wife’s parents’ estate you considered belonged to her ?
“A. Yes, sir.
“Q. Notwithstanding the work that was done there taking care of the old people ?
“A. It belongs to her.
“Q. Who did the principal part of the work?
“A. Well, I and my woman.
“Q. And whatever came in that way you and your wife considered it belonged to her ?
“A. Yes, sir.
“Q. And that was the reason this joint deed was made, to take care of that ?
“A. Yes, sir. * * * I made a deed because I was sick, and she told me .to do something; and we made the deed. When I was in debt, my wife said, ‘ You had better go and pay off the mortgage with this pension check,’ so the mortgage was paid off with that money; I had never paid the money back to her; at the time the deed was made I still owed it to her.”

Defendant Ann testified:

“Q. How did you understand, when that money was put in there, what you received from your father and mother — how did you understand that that would be, that the land would be owned between you and your husband ?
“A. Yes; what is his is mine, and what is mine is his.
“Q. And did you understand it was necessary to take any note or mortgage to secure you for that money ?
“A. No, sir.
“Q. You thought if he was taken away, the property would come to you ?
“A. Yes, sir.
“Q. And when you learned that you ought to have some security for that money, then the deed was made— this joint deed ?
“A. Yes; the joint deed was made.
“Q. Did you make the suggestion to him ?
"A. Yes; I spoke first.”

At the time the pension money was applied on the mortgage it belonged to the mother, and she became subrogated to the rights of the mortgagee to the extent of such payment and the interest to accrue thereon. The daughter had no legal interest in the fund whatever, could make no disposition of it by gift or otherwise, and her consent to its payment on the mortgage added nothing to her husband’s rights, and detracted nothing from hers. At her mother’s death four years later, she for the first time acquired an interest in this fund as money in the guardian’s hands belonging to her, subject only to the guardian’s legal charges. It was not money turned over to her husband by her to use in his affairs, but it was money turned over to the guardian by the Federal government to be used for a specific purpose. The fact thát the guardian chanced to be her husband in nowise changed the legal relations of the two. As sole heir at law, she might have insisted upon an accounting by the guardian, and if the balance of the pension money with the interest on the fund was sufficient to care for the ward for four years, she would have been entitled to a lien for the $1,555.40 upon the premises. The fact that she took no' steps until 1901 with reference to the matter is consistent with her testimony and his that she supposed that she owned an equal interest in the property with him, and that in case of his death the property would be hers. At all events,, her mother’s estate belonged to her as a matter of law; she never gave this money to her husband. Neither did she do anything to cut off her right to recover it, and it is not perceived how the equities of complainant are superior to hers. She did as much to earn this farm as her husband did. She worked in the fields with him and took care of the home and her insane mother. She bore and reared 11 children, and her money, for which her husband was accountable to her as a matter of law, discharged the large incumbrance upon their home. Whether defendant Adam intended to charge for the care and maintenance of the ward or not after he obtained the pension money, we think that, adding to the $2,660.40 of pension money the interest and the homestead exemption of $1,500, and deducting a reasonable amount for the guardian’s charges, there would remain an adequate consideration for the joint deed. We think the defendants sustained the burden of proof under the statute, and the decree is affirmed.

Ostrander, C. J., and Hooker, McAlvay, and Stone, JJ., concurred.


text:
    NELSON v. HILLEN.
    1. Justices of the Peace — Certiorari — Amended Return — Practice.
    On certiorari from the circuit court to a justice of the peace, an amended return, filed by the justice after making his original return and after the cause had been submitted in the circuit, without any order of said court, which did not, so far as the record showed, consider the amendment, is a nullity.
    2. Same — Service of Certiorari — Motions.
    The objection that the reoord does not show service of the writ of certiorari on the justice within the required time, without taking into consideration the amended return, will not be considered, in the absence of a motion to dismiss the writ, raising the point in the court below and giving an opportunity to order a further return.

      3. Same — Special Appearance by Mail — Process.
    Piling a special appearance by sending the same by registered mail, with a motion to dismiss and an affidavit of defendant’s residence in another county, is proper practice to raise the objection that defendant was entitled to a short summons, and that service of a long summons was defective.
    4. Same — Dismissal oe Action — Jurisdiction.
    And the cause should have been dismissed on certiorari when the justice’s return showed that plaintiff knew that defendant was a nonresident of the county.
    Error to Mecosta; Palmer, J.
    Submitted January 4, 1911.
    (Docket No. 17.)
    Decided February 1, 1911.
    Assumpsit in justice’s court by Murie Nelson against John Hillen. Defendant removed the case, after judgment for plaintiff, by certiorari to the circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed and proceedings quashed without prejudice.

      Dan Youngs, for appellant.

      W. D. Fast, for appellee.
   Blair, J.

On the 16th of April, A. D. 1909, Murie Nelson, as plaintiff, began a suit against John Hillen, as defendant, before Merton Hunt, a justice of the peace of the township of Fork, in the county of Mecosta, which was returnable April 24, 1909, at 10 o’clock a. m. This summons was personally served on the defendant Hillen at the township of Fork, in Mecosta county, on the 16th day of April, 1909, by William J. Dewey, a deputy sheriff. After the defendant was served with the summons, he consulted his counsel, whereupon and oh the 23d day of April, 1909, he filed with the justice a written motion to quash the proceedings upon the ground that the summons was a long summons and was served on him in Mecosta county, while he, the defendant Hillen, was not a resident of the county of Mecosta. This motion, together with the affidavits in support thereof showing de. fendant’s nonresidence, was received by the justice by registered mail, April 23d, one day before the return day. On the return day, the justice rendered judgment in favor of plaintiff, and, the case having been removed to the circuit court by writ of certiorari, that court affirmed the judgment of the justice. Defendant asks a reversal of the judgment upon the ground that the summons, being a long summons, was void, gave the justice no jurisdiction, and his motion to quash should have been granted.

The original return of the justice contains, among other. things, the following:

“ And I do also certify that at the time and place above specified for the return of said summons, the said party, Murie Nelson, appeared, the defendant did not appear, said plaintiff declared against the defendant as follows: Plaintiff declares orally on all common counts, and especially on two promissory notes herewith filed with the court, and claims damages in the sum of two hundred dollars. And thereupon I proceeded to try the said cause. On the trial of said cause, Murie Nelson, a witness, sworn on the part of the plaintiff, and thereupon plaintiff rested his cause. After hearing the proofs and allegations of the plaintiff, I, the said justice, did forthwith render judgment in favor of the plaintiff, and against the defendant, for one hundred eighty-seven dollars damages, and two dollars and twenty-five cents costs, and, in further answer to the facts set forth in the copy of the affidavit on which the said writ of certiorari was allowed, I do further certify and return to the first allegation of error. I return that I issued a long summons in this cause at the request of the plaintiff. The second allegation of error I return I proceeded in the cause at the request of the plaintiff; he knowing that the summons was a long summons and that the defendant was a nonresident. To the third, fourth, and ninth allegations of error I return that I received the special appearance and motion of the defendant by registered mail to dismiss the cause and showed the same to the plaintiff, but I was unable to determine whether the defendant could appear otherwise than in person or by attorney. I therefore filed the special appearance in the cause, and did not enter same on docket or rule on it, and leave it to the honorable circuit court to say whether it was an error or not. I knew and the plaintiff knew that the defendant was a nonresident of the county.”

On September 22, 1909, and after the cause had been submitted, the justice made a further return as follows:

“ The attorney for defendant has asked me for amended returns in the above cause. I, Merton Hunt, the justice referred to in the above cause, do further certify and return to the writ of certiorari in this cause, that the notice for the writ of said certiorari .was served on me within the five days, the suit was tried on the 24th day of April, 1909, and the writ was served on me the 27th day of April, 1909. In my return, I said the plaintiff knew and I knew that the defendant was a nonresident of Mecosta county, which was a mistake. I don’t know what the plaintiff knew in the matter, and there was no evidence to show that the defendant was a nonresident of Mecosta county.
“ Given under my hand the 22d day of Sept., 1909.
“Merton Hunt,
“Justice of the Peace.”

No order was made by the circuit judge for a further return, nor was any application made to him for that purpose.

We agree with the plaintiff’s counsel that we cannot consider the amended return. The cause was submitted to the court and taken under advisement September 7th, and the amended return was not filed until September 24th, and, so far as this record discloses, was not considered by the court. If defendant desired a further return, he should have applied to the court for an order. Marquette, etc., Rolling Mill Co. v. Morgan, 41 Mich. 296 (1 N. W. 1045); Monroe v. Reynells, 131 Mich. 259 (90 N. W. 1065); Bernstein v. Thayer, 157 Mich. 625 (122 N. W. 365).

It is further objected by plaintiff that without the amended return it does not appear that the notice of intention to remove the cause by writ of certiorari was served on the justice within the required five days. It does not appear that the plaintiff raised this question by motion to dismiss or otherwise, in which event the court doubtless would have ordered a further return. Monroe v. Reynells, supra.

We are of the opinion that the court erred in affirming the judgment. The filing of the written motion and affidavit of nonresidence was a special appearance. Wagner v. Kellogg, 93 Mich. 616 (52 N. W. 1017). The practice pursued was the proper practice to raise the question. Appleman v. Hahn, 149 Mich. 245 (112 N. W. 917); Waring v. McKinley, 62 Barb. (N. Y.) 612. The justice’s return is inconsistent with the claim that plaintiff’s testimony may have contradicted the defendant’s showing by affidavit. The facts shown by the return entitled defendant to an order granting his motion.

The judgment is reversed and the proceedings quashed, but without prejudice to the right of the plaintiff to bring another suit.

Ostrander, C. J., and Bird, Hooker, and Stone, JJ., concurred.


text:
    DES CHAMPLAIN v. DES CHAMPLAIN.
    Divorce — Alimony—Pro Confesso Decree — Appeal—Rehearing.
    On appeal from the amount of alimony awarded by a pro confesso decree of divorce, which gave the wife substantially all of defendant’s property, and which might have been affected by statements of counsel on the hearing to the effect that defendant was willing that complainant should have the property, the cause is remanded for rehearing as to the amount.
    Appeal from Delta; Stone, J.
    Submitted January 6, 1911.
    (Docket No. 32.)
    Decided February 1, 1911.

      Bill by Philomene Des Champlain against Odelin Des Champlain for divorce. From a decree pro confesso awarding complainant alimony, defendant appeals.
    Remanded for rehearing as to amount of alimony.

      John Power, for complainant.

      A. H. Ryall, for defendant.
   Blair, J.

This is an appeal from a pro .confesso decree of divorce; a petition for rehearing having been, denied by the circuit judge. The only point made in this court is that the award of alimony was excessive.

It appears from the record that the home and household furniture awarded to complainant comprise substantially all of the property of defendant, and that the circuit judge may have been influenced in making the award by statements of counsel, doubtless made in perfect good faith, that the officer who served the subpoena reported to him that ‘ ‘ if she wanted to get his house she was welcome to it.” We deem this to be a proper case to apply the practice adopted in Ferguson v. Ferguson, 145 Mich. 290 (108 N. W. 682).

The decree is affirmed, except as to the award of alimony, and the case is remanded for a rehearing upon that subject, with costs to complainant.

Ostrander, O. J., and Bird, Hooker, and Brooke, JJ., concurred.


author: Stone,. J.

text:
    FLYNN v. BOGLARSKY.
    1. Libel and Slander — Judicial Proceedings — Justices of the Peace — Pleading—Privilege.
    Pertinent statements contained in a petition addressed to an examining magistrate, charged with the duty of investigating the acts complained of, are privileged.
    2. Same.
    And a petition charging plaintiff and his wife with disorderly conduct and with disturbing the peace of defendants’ neighborhood, presents matter cognizable by a justice of the peace.
    3. Same — Privilege—Publication.
    But the privileged character of the writing may be lost by excessive publication, or by general circulation among the people of a community.
    4. Same.
    Privilege does not extend to false publications made to persons who have no interest in the subject-matter.
    5. Same.
    A petition to be presented to the justice, charging plaintiff and his wife with disorderly conduct, and with being disturbers of the peace and a nuisance to the neighborhood, was of a libelous nature, since it tended to hold plaintiff up to contempt and ridicule of the community.
    6. Same — Courts—Petition.
    It should have been left to the jury to determine whether or not defendants gave to the paper unnecessary notoriety by its circulation about the neighborhood and publication in the daily press, and also whether or not the defendants were acting maliciously.
    Error to Wayne; Donovan, J.
    Submitted January 6, 1911.
    (Docket No. 34.)
    Decided February 1, 1911.
    Case by William Flynn against George Boglarsky, Bruno Marschall, Adam Moeller, Joseph Keck, John P. Vollrath, and John C. Hacker, for libel. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Philip A. McHugh and William Henry Gallagher, for appellant.

      James H. Pound, for appellees.
   Stone,. J.

The plaintiff brought suit in the Wayne circuit court against George Boglarsky, Joseph Reck, John P. Vollrath, and others for publishing an alleged libel, consisting of a petition addressed to the judge of the police court of the city of Detroit, the petition being in the following words and figures:

“Detroit, Nov. 2, 1907.
“ To the Honorable Judge of the Police Court:
“We, the undersigned, do hereby request that Mr. and Mrs. Wm. Flynn, now residing at 241 Russell street, upstairs, be requested to move from said premises, and vacate entirely the immediate neighborhood of 241 Russell street, insomuch as making their residence there. The grounds for our petition is due to the obnoxious manner the said parties conduct themselves in the forced relations with their immediate neighbors, as disturbers of the peace, quarrelsome, and a general nuisance to the peaceful citizens about them. We sincerely pray, your honor, that you grant our petition, which we assure you is from no personal prejudices, and herewith affix our signatures.
“Mr. and Mrs. George Boglarsky, 241 Russell St.
“Mr. and Mrs. J. C. Hacker, 243 Russell St.
“Fred Foss, 252 Russell St.
“B. Marschall, 257 Russell St.
“A. Moeller, 245 Russell St.
“Jos. Reck, 237 Russell St.
“Mrs. Becker, 232 Russell St.
“Mr. and Mrs. J. P. Vollrath, 121 Sherman St.
“Dr. and Mrs. H. C. Beck, 119 Sherman St.
“Mrs. Ponkey, 248 Russell St.
“Mrs. Weber, 125 Sherman St.”

The case was tried before a jury. The testimony of the defendant George Boglarsky (called as a witness on behalf of the plaintiff) showed that the petition was signed by defendants Boglarsky and Joseph Reck, and was delivered to the defendant Vollrath without his signature, and returned by him bearing his signature, and that the signatures of some of the other defendants were affixed by members of their families. He further testified that he had been annoyed and disturbed in the peace of his home by the plaintiff and the plaintiff’s wife; that he visited Police Justice Stein and told his story; that the police justice told him to present a petition signed by the residents in that locality; that accordingly he caused the petition set forth above to be prepared by a law student, then signed it himself, and caused it to be signed with the names of the other persons appearing upon it; and that after securing said signatures it was presented by him to Police Justice Stein. The testimony of Police Justice Stein was to the effect that he had been visited by the defendant George Boglarsky with reference to his troubles with the Flynns, but that he had not directed the preparation and presentation of the petition above set forth, or of any other petition of like character, and that such paper was of no force and effect, and served no purpose in the court over which he presided. The plaintiff testified to the publication of the said petition in the daily press, to the falsity of the matters therein contained, and to the notoriety, annoyance, inconvenience, and damage resulting to him, and thereupon rested his case.

The defendants thereupon moved the court to direct a verdict of no cause of action, upon the ground that the petition was an absolutely privileged communication, and the presenting of it to the police justice afforded no basis for the plaintiff’s case, which motion was allowed by the court, and a verdict of no cause of action was directed. The case, is here upon writ of error. Error is assigned by plaintiff upon direction of the verdict as to defendants George Boglarsky, John P. Vollrath, and Joseph Reck.

For the purposes of this case, the plaintiff is entitled to the most favorable aspect of the evidence, and to have the fact testified to by the witness Justice Stein that he did not direct the preparation of the petition in question accepted as true; and, further, that the petition was communicated and circulated among the different defendants and signers, and by the defendants exhibited to persons not parties to this suit. Did the circuit judge err in holding that the said petition was an absolutely privileged communication ? And this involves the question whether it was made in the due course of a legal proceeding. It is the contention of the appellant that this case does not involve the question of liability for, or of the materiality of, libelous matter in pleadings, for the reason that the paper, or document, in which the alleged libel occurs, was not contained in, and did not appear in, any complaint, pleading, affidavit, or legal document required or properly filed in any civil or criminal proceeding, or suit in any court of this State. It is urged that it is not such a paper or pleading as has any place in the files of the court to whose presiding officer it was addressed; that it is not such a paper or pleading as that officer could consider or act upon; that it was never filed in the court, and therefore cannot assume to itself the character of a document the contents of which cannot be charged to be libelous, because of its being absolutely privileged.

We think that this is too narrow a view to take of this matter in so far as presenting the paper to the police justice was concerned. We are aware that there are authorities which hold that extrajudicial process, though before a magistrate, may be libelous, and counsel have cited us to authorities supporting this view. The main case, however, cited by counsel, that of Miller v. Nuckolls, 77 Ark. 64 (91 S. W. 759, 4 L. R. A. [N. S.] 149, 113 Am. St. Rep. 122), is a case where the defendant addressed a letter to a police magistrate communicating certain rumors that he had heard concerning the plaintiff, and the letter was held to be a communication that was qualifiedly privileged only. But this paper is not of that character. It charges positive misconduct on the part of the plaintiff and his wife, and states that they are disturbers of the peace, are quarrelsome and disorderly, and a general nuisance to the peaceable citizens about them. The matter stated in this petition was clearly pertinent. and material to the subject of the investigation desired. If true, the plaintiff and his wife were very undesirable residents of the neighborhood. The magistrate had jurisdiction over such matters. We are not disposed to narrow or abridge the right of a citizen to make even an oral complaint before a magistrate charged with the duty of investigating the matters complained of. An efficient administration of justice requires that considerable latitude must be given to parties in laying their complaints and grievances before such magistrate. Such a course tends to the peaceable adjustment of difficulties and the quiet of the neighborhood. The matters charged seemed to be pertinent, material, and positive, and we think that the statements, verbal or written, under such circumstances, must be held to be absolutely privileged in so far as the proceeding before a magistrate is concerned. Hart v. Baxter, 47 Mich. 198 (10 N. W. 198); Graham v. Cass Circuit Judge, 108 Mich. 425 (66 N. W. 348); Shinglemeyer v. Wright, 124 Mich. 230 (82 N. W. 887, 50 L. R. A. 129); 25 Cyc. pp. 375 et seq., 384. Such communications are made in the strictest confidence, and are as sacred in the eyes of the law as the communications between client and lawyer, or patient and physician.

Another and different question, however, is presented when we come to consider the conduct of the defendants Boglarsky, Vollrath, and Joseph Reck in so far as notoriety and publicity were given to this paper by its circulation around the neighborhood and its publication in the daily press, and the intercommunication and exhibition thereof, complained of. This petition may have been absolutely privileged in so far as presenting it to the magistrate was concerned, and yet it may not have that character at all when considered in connection with its general circulation and publication among other people, and in the community generally. The privileged character of the instrument may be lost where the extent of the publication is excessive. This doctrine has been recognized by our own courts, as appears from the following cases: Smith v. Smith, 73 Mich. 445 (41 N. W. 499, 3 L. R. A. 52, 16 Am. St. Rep. 594); Pollasky v. Minchener, 81 Mich. 280 (46 N. W. 5, 9 L. R. A. 102, 21 Am. St. Rep. 516). The occasion often determines the question of privilege. Privilege does not extend to false publications, made to persons who have no interest in the subject-matter. Garn v. Lockard, 108 Mich. 196-199 (65 N. W. 764); Brewer v. Chase, 121 Mich. 526 (80 N. W. 575, 46 L. R. A. 397, 80 Am. St. Rep. 527); Clemmons v. Danforth, 67 Vt. 617 (32 Atl. 626, 48 Am. St. Rep. 836). That the article, stripped of its privileged character, contained libelous matter, there can be no doubt. It tended to degrade the plaintiff, and to hold him up to the contempt, if not the ridicule, of the community. We are of opinion, therefore, that this branch of the case should not have been overlooked by the circuit judge, and that it presented a question for the consideration of the jury. Even if considered as to the public generally, or in connection with the persons to whom the document was exhibited, the instrument was only conditionally privileged, or qualifiedly privileged. The question of malice would have been a proper question to submit to the jury. Smith v. Smith, supra; Howard v. Dickie, 120 Mich. 238-240 (79 N. W. 191); Garn v. Lockard, supra.

For the error pointed out, the judgment of the circuit court is reversed, and a new trial granted.

Ostrander, C. J., and Bird, Hooker, and Blair, JJ., concurred.