text:
    WALKER v. CITY OF DETROIT.
    1. Municipal Corporations — Special Assessments — Records of Council.
    . A special assessment roll for paving a street is not required to state the width of the street intersections, the length of the pavement, or how the amount chargeable to the city was arrived at, where the records of the council and the plat filed by the city engineer show the dimensions and distances.
    2. .Same — Certificate to Roll.
    A defect in the certificate of the assessors to a special assessment roll does not render the assessment void.
    3. Same — Pleading—Amendments—Discretion of Court.
    Where a bill to set aside a paving tax alleged, as ground for relief, that the assessment roll failed to show that it was prepared according to charter provisions, the trial court’s discretion in refusing permission to amend the bill at the close of the testimony, by setting up illegal provisions in the paving contract, was not disturbed.
    Appeal from Wayne; Hosmer, J.
    Submitted November 20, 1903.
    (Docket No. 249.)
    Decided March 8, 1904.

      Bill by Bryant Walker, trustee, against the city of Detroit and William B. Thompson, treasurer of said city, to set aside a tax sale. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Walker & Spalding, for complainant.

      Timothy E. Tarsney, Corporation Counsel (John W. McGrath, of counsel), for defendants.
   Grant, J.

The bill in this case was filed in 1902 to set aside a tax sale made by virtue of a paving assessment imposed in 1892. The ground of illegality as charged in the bill is:

That no certificate is attached to said assessment roll showing, nor is there anything on said assessment roll to show, that said assessment roll was prepared, and that the assessment of the property thereby assessed was made, in accordance with the provisions of the charter of the city of Detroit regulating the making of such assessments and sudh assessment rolls.”

The case was heard on pleadings and proofs, and the bill dismissed.

The designation of the assessing district appears to have been made in the same manner as it was in Auditor General v. Calkins, in which an opinion is handed down simultaneously with this. Ante, 1 (98 N. W. 742). The charter provides that the cost of paving, except cross-walks and wurk at the intersections of cross-streets, shall be assessed on the abutting lots according to frontage. The precise objection made in the brief of counsel is that the assessment roll did not state the width of the intersections, or the length of the pavement, or how the amount chargeable against the city was arrived at. Two of the assessors signed the roll, but appended thereto no certificate showing how the assessments were made. It contained no reference to the contract under which the work was done, nor to the plat of the assessment district prepared by the city engineer.

We think the objection is met by the opinion in Auditor General v. Calkins, supra. The entire frontage appears upon the roll itself, and is easy of computation. The proper authorities determined the cost of paving the crosswalks and cross-street intersections, and also the cost of paving the street in front of adjoining lots. The record shows the estimate, made by the city engineer, of the cost of each portion of the work, and the proposal submitted by the contractor for each portion. The plat filed by the city engineer gave the entire length of the pavement, the width of the avenue, the width of each intersecting street or alley, and the frontage of each lot. It showed the total lot frontage to be 3,515.54 feet, and the frontage on each side of the street, and that the total intersections were 1,006 feet, of which 546 feet was on the east side of the avenue and 460 upon the west. It was only a matter, therefore, of computation.

At the close of the evidence counsel for complainant asked permission to amend the bill of complaint so as. to allege illegal provisions in the contract for paving. This the court declined. We see no occasion to interfere "with its discretion.

The decree is affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    HANNA v. CHALKER.
    1. Boards op Supervisors — Allowance op Claims — Necessary Vote.
    The allowance of a claim against a county is not the “final passage of a measure or resolution,” within the meaning of 1 How. Stat. § 475, providing that a majority of the supervisors present may determine all questions before the board, “ except upon the final passage or adoption of any measure or resolution, in which, case a majority of all the members-eleot shall be necessary.” i
    2. Mandamus — Laches—County Orders.

      Mandamus to compel the issue of a county order for a claim legally allowed will not be refused on the ground of laches, where the statute of limitations has not run against the claim.
    3. Boards of Supervisors — Contracts With Members.
    A board of supervisors may employ one of its members to perform a service for it not inconsistent with his duties as a supervisor.
    4. Same — Presumption of Validity.
    The action of a board of supervisors in employing one of its members will be presumed to be valid, where the employment is not shown to have been brought about by his own vote.

      Certiorari to Crawford; Sharpe, J.
    Submitted January 5, 1904.
    (Calendar No. 20,195.)
    Decided March 8, 1904.

      Mandamus by John Hanna and John J. Niederer to compel William S. Chalker, chairman, and James J. Collen, clerk, of the board of supervisors of Crawford county, to issue a county order. From an order denying the writ, relators bring certiorari.

    Reversed.

      Main J. Connine, for relators.

      Henry H. Woodruff, for respondents.
   Moore, C. J.

This is certiorari to review the action of the circuit judge in refusing to issue a writ of mandamus compelling the respondents to issue county orders upon a claim which relators insist was allowed them by the board of supervisors.

Crawford county was set of from Kalkaska county in 1879. It is claimed a question arose about the records in the office of the register of deeds in Crawford county, and in October, 1896, the board of supervisors authorized the relators to transcribe these records. It is claimed they entered upon this work, and in January, 1897, were allowed by the board of supervisors, for what they had done, $407.44. A protest was filed with the clerk against this allowance, and no county order was issued upon it.

December 24, 1902, a petition for mandamus was filed with the circuit judge to compel the respondents to issue the order. After a full hearing in relation thereto, he refused to issue the writ. He was of the opinion the claim was not allowed by the requisite number of votes, and was also of the opinion relators were guilty of laches; but he bases his action upon the ground first stated. After the claim was presented to the board of supervisors, a motion that it be allowed as charged received four affirmative votes and one negative vote. Supervisor Niederer was excused from voting, and three of the members were absent.

Prior to 1897 the statute read:

“A majority of the supervisors of any county shall constitute a quorum for the transaction of the ordinary business of the county, and all questions which shall arise at their meetings shall be determined by the votes of a majority of the supervisors present, except upon the final passage or adoption of any measure or resolution, in which case a majority of all the members-elect shall be necessary.” 1 How. Stat. § 475.

In 1897, and after the board had taken action in relation to the claim in controversy, the statute was amended by inserting after the word “resolution” the words “or the allowance of. any claim against the county.” 1 Comp. Laws, § 2476. The question, then, is, Was the allowance of this claim the final passage of a measure or resolution, within the meaning of the statute ? It is not contended by counsel for respondents that the action taken was the final passage of a resolution, but it is contended allowances of accounts are final measures. No authority is cited in favor of this contention, but it is said, if this construction is not given, all the county money can be expended by less than a majority of the members-elect.

It has, we think, generally been understood, until the statute was amended, that the presentation of claims against the county to the board of supervisors, and the allowance thereof, was a transaction. in relation to the ordinary business of the county. Evidently, this was the construction put upon the statute by the legislature; and, to prevent the possibility of the contingency suggested, the amendment of 1897 was adopted, making a majority vote of all the members-elect necessary in allowing claims. Action of public bodies by the adoption of a motion has been a well-recognized method of procedure for a long time, and has generally been used where the action is not deemed as important or formal as the adoption of a measure or resolution. The allowance of a claim has usually been done by the adoption of a motion to that effect. When a motion has been adopted, we do not think it generally understood a measure has been passed, and the statute ought not to be so construed.

Are relators so guilty of laches that they are not entitled to the writ ? If they had a legal claim against the county, which was legally allowed, it may be enforced until the statute of limitations runs against it. In such a case, where mandamus is the appropriate remedy, it should not be refused.

It is said that, as Mr. Niederer was a supervisor when the employment was given to relators, the action of the board in making a contract with one of its members is void on the ground of public policy. There is nothing in the record to indicate the resolution providing the employment was brought about by the vote of Mr. Niederer, and the presumption is that it was regularly and validly passed. See Giddings v. Wells, 99 Mich. 224 (58 N. W. 64). The work which was done by Mr. Niederer was not work pertaining to the duties of his office as supervisor, and was not inconsistent with any duty he owed growing out of his relations as a supervisor, and it was not incompetent for the board to employ him in the capacity in which he acted. See Ten Eyck v. Railroad Co., 74 Mich. 227 (41 N. W. 905, 3 L. R. A. 378, 16 Am. St. Rep. 633); Village of St. Johns v. Board of Supers of Clinton Co., 111 Mich. 609 (70 N. W. 131); Mechera, Public Officers, § 375.

"We think the writ of -mandamus should be granted.

The other Justices concurred.


author: Moore, C. J. Hooker, J.

text:
    LONG v. WAYNE CIRCUIT JUDGE.
    Mandamus — Verdict—Uncertainty—Judgment.

      Mandamus will not issue to compel a circuit judge to enter a judgment against the estate of a deceased person for a specific amount upon a sealed verdict “for the full value of the estatethe evidence as to the value of the estate being conflicting, and it being uncertain whether the value before or after the deduction of other debts and expenses of admin- ' istration was meant.

      Mandamus by Douglas C. Long to compel Henry A. Mandell, circuit judge of Wayne county, to render a judgment upon a verdict.
    Submitted January 5, 1904.
    (Calendar No. 20,289.)
    Writ denied March 8, 1904.

      Thomas A. E. Weadock, for relator.

      Chamberlain, Quise & Turner, for respondent.
   Moore, C. J.

The relator asks for a mandamus to compel the respondent to render a judgment for $6,290.61 upon a verdict rendered in his favor in the matter of a claim presented by him against the estate of Laura A. Deacon, deceased. According to his petition made in this court, he presented in the probate court a claim against said estate for a sum equal to the entire estate left by Laura A.- Deacon, estimated to be worth $20,000. The claim was allowed at $500. An appeal was taken to the circuit court, and a trial had by jury. Upon the trial, according to the petition and the return of the respondent, the only evidence of the value of said estate was the appraisal made in the probate court, which was received in evidence, showing the value of the real estate was $4,100 and the personal estate $790.61, and the testimony of R. E. Wardell, who testified the real estate was worth $5,500.

By direction of the court, after consent of counsel, the jury, in the absence of the judge, returned to the clerk a sealed verdict. This verdict was as follows: “We find for the Claimant for the full value of the estate.” The verdict was entered by the clerk ‘ ‘ at the sum of the full amount of the estate.” The verdict was rendered June 16, 1903. The circuit judge and counsel were none of them present when it was rendered. June 18, 1903, one of the counsel for the claimant appeared in court before the circuit judge and requested orally that the verdict be made certain and j udgment rendered thereon. The verdict was not then corrected, and soon thereafter the jury was discharged for the term. In September a motion was made and argued asking the circuit judge to render a judgment upon the verdict for $6,290.61. In November, 1903, the circuit judge denied the motion. In his return he states he did so because to render a judgment upon the verdict would be to usurp the functions of the jury.

The relator claims the statute of amendments (3 Comp. Laws, §§ 10268, 10272) applies, and as the jury found for the claimant for the full amount of the estate, and as the proofs show the value of the estate, and only requires a computation to fix the amount thereof, judgment should have been entered upon the verdict. We have no ddubt, if the propositipn were as simple as stated above, it would have been the duty of the trial judge to render a judgment upon the verdict. According to the appraisal, which was received in evidence, the real estate was worth but $4,100, which, added to the personal estate,— $790.61,— made the value of the estate $4,890.61; while the testimony of Mr. Wardell would make it $1,400 more, or the sum of $6,290.61, the amount for which relator claims judgment should be entered in his favor. Had the jury rendered a verdict for the lesser amount, that verdict would have been justified by the evidence, and who can say which of these amounts the jury had in mind when it returned the verdict it did ?

It is now said by counsel that, rather than be put to the expense of a new trial, they will consent to a judgment for the smaller amount. To do this would present a different question from the one presented to the trial judge.

There is another difficulty in deciding what the jury had in mind when they returned this verdict. Did they mean the relator should have a judgment for an amount equal to the full value of the estate, regardless of the debts and expenses of administration, or did they intend the verdict to be for an amount equal to its value after the debts, other than the claim of relator, and the expenses of administration had been paid ? "We think the verdict was uncertain and indefinite. See. Hemingway v. Peter, 25 Mich. 202; Miller v. Hogan, 81 Minn. 312 (84 N. W. 40); Lake v. Hardee, 57 Ga. 459; Gaither v. Wilmer, 71 Md. 361 (18 Atl. 590, 5 L. R. A. 756, 17 Am. St. Rep. 542).

The application for the writ is denied.

Grant and Montgomery, JJ., concurred with Moore, C. J.

Hooker, J.

I concur in the denial of this writ upon the ground that the record does not show ,what issue was presented to the jury, and we cannot tell what kind of an order the claimant is-entitled to under the verdict. Upon the inference drawn from the briefs, that this verdict was upon a claim that'the deceased was under contract to will her, property to the claimant, subject to the debts and expenses of administration, he would be entitled to the residuum only, and, upon an.issue clearly showing that such was the claim, we see no difficulty in the entry and certification by the circuit court of such an order as would carry out the verdict. Apparently, however, the claimant’s counsel is now asking, not for a residuum, but for an order that shall make his client a creditor of the deceased, and his judgment an unqualified one, entitled to share the estate (or a dividend thereof, if not sufficient to pay the debts) with other creditors. The record before us does not satisfy us that the case was submitted upon such a theory only, and we cannot therefore determine that the jury so found.

Carpenter, J., did not sit.


author: Hooker, J.

text:
    BALDWIN v. HERATY.
    1. Street Railways — Riding on Tracks — Contributory Negligence.
    Testimony of a witness that, so far as his observation went, it was customary for defendant’s street cars to go north upon the easterly one of its tracks, does not prove such an invariable custom as would excuse a person riding on the easterly track from looking back before turning upon the other track when he heard a car approaching.
    2. Same — Subsequent Negligence.
    Plaintiff's intestate was riding a bicycle on a street-car track, and, hearing a car approaching, which he thought was on the same track, turned upon another track to allow the car to go by. As the car approached nearer, the bell was continually rung, but decedent, failing to get off the track, was struck and killed. Held, that the evidence did not show that those in control of the car could have prevented the accident after discovering the negligence of decedent.
    Error to Bay; Shepard, J.
    Submitted January 6, 1904.
    (Docket No. 6.)
    Decided March 8, 1904.
    Case by Sarah A. Baldwin, administratrix of the estate of Floyd Baldwin, deceased, against Michael P. Heraty and John C. Weadock, receivers of the Bay Cities Consolidated Street-Railway Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      Pierce & Kinnane, for appellant.

      T. A. E. & J. O. Weadock, for appellees.
   Hooker, J.

The plaintiff is a widow, and the mother and administratrix of one Floyd Baldwin, deceased. She brought this action to recover damages suffered by her, as to her support, by reason of the death of said Floyd, who was run over and killed by the defendants’ street car.

Floyd Baldwin and one George Willis were riding north upon their bicycles. Willis was upon the easterly of defendants’ two tracks, and'deceased was riding between the' tracks. The street car approached from behind them. Supposing that the north-bound car was upon the easterly track, Willis suggested that they get over on the west track. Deceased then turned upon the west track, and Willis between the tracks, and, according to his testimony, he also soon after rode onto the west track to allow the car to go by. As the car approached nearer, Willis’ attention was attracted by the continued clanging of the bell. He turned his head and saw the car, shouted to Floyd to look out, and turned east and rode off the track, or dismounted and got off, receiving a slight injury to his shin, which he thought was struck by the car. Almost immediately the car struck deceased’s wheel, and pushed it ahead four or five feet. He pedaled vigorously, but was overtaken within 15 or 20 feet, and killed. The judge left the case to the jury, and a verdict was rendered for defendants, from which the plaintiff appealed.

The evidence conclusively shows that thé deceased, knowing that the car was coming, and hearing its warning, rode in front of it without looking behind, upon the assumption that it was upon the easterly track. This was contributory negligence, unless he had*a right to rely upon the practice as an invariable one. It was customary, and probably necessary, for the car to go north on the west track for a certain distance, and some cars did so regularly, and it was not negligence on defendants’ part to so. run this car. Plaintiff’s proof shows that, so far as Willis’ observation went, it was customary for northbound cars to go upon the easterly track; but this was not proof of such uniformity of practice as to justify the decedent in taking it for granted that this car was upon the east track, and disregarding the duty of turning his head to see whether he was safe when he heard the bell. The court might properly have said to the jury , that the deceased was guilty of contributory negligence.

Plaintiff’s counsel say that decedent’s negligence was discovered, and that a recovery should be had upon the ground of subsequent negligence. We think the case is devoid of any evidence warranting such an inference.

The judgment is affirmed.

The other Justices concurred.


author: Carpenter, J.

text:
    HOLTHAM v. CITY OF DETROIT.
    1. Municipal Corporations — Negligent Injuries — Notice on Claim — Waiver
    The charter of the city of Detroit provides that no action for a negligent injury shall be brought against the city unless notice shall be given in writing, within three months from the time of such injury, to the head of the law department, or to his chief assistant, of the time, place, cause, and nature of the injury. Plaintiff testified that, within the three months, he saw one of the assistants, not the chief assistant, of the head of the law department, who told him to present his claim to the aldermen, and, when it came before the committee, he would do what he could for him; that he might have told him he must serve notice on the corporation counsel. Held, to have no tendency to show a waiver of the notice.
    2. Same — Assistant Corporation Counsel — Authority.
    An assistant not the chief assistant to the corporation counsel of Detroit has no authority to waive the written notice required by the charter to be given to the head of the law department or his chief assistant in cases of negligent injuries.
    3. Same — Action by Council.
    A direction to plaintiff by the common council to appear and produce his witnesses was not a waiver of the required notice to the law department, in the absence of a showing that the council knew that plaintiff had failed to give such notice.
    4. Same — Claim Barred by Statute — Revival.
    An action against a city for a negligent injury, barred because of plaintiff’s failure to give notice to the law department within the three months required by the 'charter, cannot be revived by the action of the council in consenting to consider the claim.
    Error to Wayne; Frazer, J.
    Submitted January 13, 1904.
    (Docket No. 31.)
    Decided March 8, 1904.
    Case by George Holtham against the city of Detroit for personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant brings error.
    Reversed.

      P. J. M. Hally and A. B. Hall (T. E. Tarsney, of counsel), for appellant.
    . Washington I. Robinson and Bertrand Aldrich, for appellee.
   Carpenter, J.

Plaintiff recovered a judgment in the court below for personal injuries resulting from a defective sidewalk in the city of Detroit. He did not, as required by section 2 of Act No. 463 of the Local Acts of 1895, serve a notice in writing upon the head of the law department of the city of Detroit. That section provides:

“No action shall be brought against said city, nor any of its boards, commissions, or officers, for any negligent injury, unless it be commenced within one year from the time when the injury was received, nor unless notice shall be given in writing, within three months from the time of such injury, to the head of the law department, or to his chief assistant, of the time, place, and cause of such injury, and of the nature thereof.”

No written notice whatever was given to the law department of the city of Detroit; but within said three months plaintiff saw Mr. Hally, one of the assistants, but not the chief assistant, of the corporation counsel, who, he says, told him to draw up his claim and present it to the aider-men, and, when it came before the. committee, he would “do what he could for me.” On cross-examination he testified:

“ I am not positive that Hally didn’t tell me that I had to serve the corporation counsel. * ' * * You might have said it, and I not have heard it. I am hard of hearing.”

The claim was duly presented to the committee on claims and accounts. The secretary of that committee notified plaintiff to appear before it and produce his witnesses. He did appear, and was there examined by Mr. Hally. The committee was advised by Mr. Hally that the failure of the plaintiff to give the notice under consideration relieved the city from liability, and it denied him relief. The trial court left it to the jury to determine whether the office of the corporation counsel did not waive the notice. The jury rendered a verdict for the plaintiff.

In submitting this issue to the jury, we think the learned trial judge erred. Even if Mr. Hally had authority to waive the notice (.a point which will receive our attention in this opinion), the testimony of the plaintiff did not warrant the inference that he did waive it.- It is consistent with the plaintiff’s testimony, as shown by the quotations in this opinion from his cross-examination, that Mr. Hally instructed him to serve a written notice upon the corporation counsel; and, if such instruction was given, there certainly was no waiver.

But we do not think that Mr. Hally had authority to waive this notice. It is true that he was an assistant to the corporation counsel, and it is also true that he appeared for the city in this case both at the hearing before the committee and at the trial in court. Surely it will not be claimed that these subsequent appearances of Mr. Hally had any bearing upon his authority to deal with the plaintiff. Mr. Hally’s authority to deal with the plaintiff would not have been lessened had his connection with the office been determined before such subsequent hearings, or if the city had been represented at those hearings by some other attorney. His authority to waive the notice must therefore be determined by the statute. This statute requires a written notice of the time, place, cause, and nature of plaintiff’s injury to be served on the corporation counsel or his chief assistant. We cannot presume that this statute was passed in the interest of the corporation counsel. We must presume that it was passed in the interest of the city, and it is to the obvious advantage of the city that its attorney be furnished with this writing signed by plaintiff. Such a writing serves a purpose that can be performed by no oral statement. Assuming, without deciding, that the officers named in the statute have the power to waive this notice, we are unable to see force in, the reasoning by which it is contended that any inferior officer can waive it. Certainly the statute gives him no authority to waive it, and it is equally clear that the city of Detroit has not given him that authority. We do not think it will be contended that the corporation counsel can delegate authority to waive the statute, and, if he could, there is no evidence that he delegated it in this instance.

Nor can it be claimed that the fact that the common council directed the plaintiff to appear and produce his witnesses was a waiver of this notice. It does not appear that, when this direction was given, the common council knew that plaintiff had failed to give such notice. Without this knowledge, the principle of waiver has no application. See Moore v. Life Ass’n, 133 Mich. 526 (95 N. W. 573), and cases cited.

There is another reason why the action of the common council did not waive this notice. It is fairly to be inferred from the record that, at the time the council directed the plaintiff to appear and produce his witnesses, more than three months had elapsed since his injury, and his claim was therefore barred under the statute quoted at the beginning of this opinion. An action of tort, once barred by the statute of limitations, cannot, like an action arising out of contract, be revived by either an express or implied agreement. See Renackowsky v. Board of Water Com’rs of Detroit, 122 Mich. 613 (81 N. W. 581); Van Auken v. City of Adrian, 135 Mich. 534 (98 N. W. 15). It is true that in such cases defendant may estop himself from setting up the statute of limitations by conduct before the claim is barred. See Renackowsky v. Board of Water Com’rs of Detroit, supra. Lindley v. City of Detroit, 131 Mich. 8 (90 N. W. 665); Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78); Griswold v. City of Ludington, 116 Mich. 401 (74 N. W. 663); Wright v. Village of Portland, 118 Mich. 23 (76 N. W. 141); and Kriseler v. Le Valley, 122 Mich. 576 (81 N. W. 580),— are not inconsistent with these views. In each of these cases the action of the municipality which constituted a waiver occurred before plaintiff’s cause of action was barred, and induced him to refrain from taking a step required by the statute.

It follows that, in-our judgment, it was the duty of the trial court to direct a verdict for the defendant.

Judgment reversed, and new trial granted.

The other Justices concurred.


text:
    MILBOURN v. BODELL.
    Deeds — Setting Aside — Evidence.
    A decree dismissing a bill to set aside a deed on the ground of fraud and undue influence was affirmed, under the evidence.
    Appeal from Eaton; Smith, J.
    Submitted January 15, 1904.
    (Docket No. 51.)
    Decided March 8, 1904.
    Bill by Abigail Milbourn against Alice Bodell and others to set aside a deed. Erom a decree dismissing the bill, complainant appeals.
    Affirmed.

      George Hutggett, for complainant.

      J. M. C. Smith, for defendants.
   Hooker, J.

Complainant, an aged woman, filed the bill in this cause to set aside a conveyance made by her to her son-in-law in March, 1887, upon the ground of undue influence and fraud. She has appealed from a decree dismissing her bill.

The case requires the discussion of no questions of law, and so closely resembles the ordinary case of its class as to make a review of the evidence unprofitable. A review has satisfied us of the justice of the conclusions reached by the circuit judge. •

The decree is affirmed, with costs.

The other Justices concurred.


author: Montgomery, J.

text:
    FLYNN v. KALAMAZOO CIRCUIT JUDGE.
    1. Sales on Execution — Sheriff’s Return — Conclusiveness—
    Amendment.
    A party dissatisfied with the sheriff’s return to an execution should ask for an amendment, and, not having done so, cannot dispute the return on a motion to vacate a sale under the writ.
    2. Same — Homestead—Qualifications of Appraisers.
    An appraisal of property’claimed as a homestead by an execution debtor under 3 Comp. Laws, § 10369, is not invalid because one of the appraisers was over 60 years of age, notwithstanding the provision that such appraisers shall have the qualifications of jurors.
    3. Same — Payment of Exemption.
    Failure of a sheriff to pay into court the defendant’s homestead exemption of $1,500 on an execution sale will not render the sale invalid, as defendant has a remedy against the sheriff by citation or action.
    4. Same — Mandamus—Practice.
    Where, on mandamus to compel a circuit judge to set aside an execution sale, the papers indicated that the execution was not delivered to the sheriff until after the levy, but the return of the circuit judge showed that such point was not argued before him and not passed upon, held, that action on the matter should be deferred until it should have been brought to the attention of the circuit judge, so that the proceeding could be amended if the error was one of fact.

      Mandamus by Lawrence Flynn to compel John W. Adams, circuit judge of Kalamazoo county, to set aside an execution sale.
    Submitted February 2,1904.
    (Calendar No. 20,349.)
    Writ denied March 8, 1904.

      William A. Luby, for relator.

      Osborn & Mills, for respondent.
   Montgomery, J.

This is an application for mandamus to review an order of respondent denying a motion made at the circuit to set aside and vacate a sale of real estate. The return of the respondent shows that an execution levy was made upon the property in question, which was treated as the relator’s homestead, and, acting under the provisions of section 10369, 3 Comp. Laws, the officer caused an appraisement of the property to be made, which appraisement showed it to be worth $2,350; that, as appears by the return .of the officer, the property was advertised for sale, and sold to the highest bidder at the price of $2,300. The relator then appeared and moved to vacate the sale on various grounds.

An effort was made, on the motion before the circuit judge, to contradict the sheriff’s return by showing by affidavit that the recitation of the proceedings and doings of the deputy sheriff was untrue. We think in this the relator has mistaken the practice. The sheriff’s return was filed before the decision of the circuit judge, and no effort was made to require an amended return, and no amendment to the return was made or asked. We think the proper practice would have been to move to amend the return. While the return stands, it must be deemed conclusive upon the parties.

The relator also contends that the appraisement was invalid for the reason that one of the appraisers was past 60 years of age; the statute requiring that the appraisal shall be made by six persons qualified to act as jurors. The age of this appraiser was not a disqualification. People v. Pawn, 90 Mich. 377 (51 N. W. 522).

It is further claimed that the proceeding was irregular because the money realized upon the sale was not paid into court, so that the $1,500, which sum relator was entitled to as exemption, could be withdrawn by him. The failure of the sheriff to comply with the law in this regard did not avoid the sale, but relator’s remedy was a proceeding by citation to the sheriff, or an action against him.

It is contended here that the proceedings show that the execution was not delivered to the sheriff until a day subsequent to the levy. The circuit judge returns that this point was not argued in the court below, and was not passed upon by him. Had the question been presented, it is possible that an amended return might have corrected the apparent discrepancy. As the order below was without prejudice, we think, before we are called upon to act in this matter, the relator should bring the matter to the attention of the circuit judge by a new motion, so that, if the error is one of fact, it may be corrected by an amended return.

The writ of mandamus will be refused.

The other Justices concurred.


text:
    SPAFFORD v. BENZIE CIRCUIT JUDGE.
    1. Pardons — Validity—Irregularities.
    The facts that a pardon lacks an address, does not state the date of conviction, erroneously recites that the prisoner has been sentenced, and is delivered directly to the person pardoned, do not render the pardon void.
    2. Same — Pardon Before Sentence. •
    The governor has power to pardon before sentence.
    3. Same — Signing by Initials.
    The fact that only the initials of the governor’s Christian names were used in signing a pardon does not affect its validity.
    4. Same — Discharge of Prisoner — Practice.
    Where a pardon was delivered to the court having custody of the person pardoned several days before the hearing of a motion for his discharge, the motion should have been granted, though a certified copy of the pardon had not been filed with the county clerk.

      Mandamus by Herbert E. Spafford to compel Clyde C. Chittenden, circuit judge of Benzie county, to discharge relator from custody.
    Submitted February 2, 1904.
    (Calendar No. 20,353.)
    Writ granted March 8, 1904.

      E. Eugene Haskins, with Charles A. Blair, Attorney General, and Henry E. Chase, Deputy Attorney General {Charles W. McGill and George 8. Law, of counsel), for relator.

      M. E. Louisell, Prosecuting Attorney, for respondent.
   Hooker, J.

The relator was convicted of the offense of manslaughter in the circuit court for the county of Benzie. Before sentence fye received a pardon from the governor. A motion was thereupon made for his discharge, and the original pardon was delivered to the respondent, who had it in his possession up to the time of the hearing of the motion. This motion was denied, and ■a time fixed for relator’s further appearance. An order to show cause why the relator should not be discharged was issued by this court, accompanied by a stay of sentence, which relator apprehended, and the case is before us upon the return of the respondent.

Counsel claims, first, that the pardon is invalid, and, second, that, even if valid, relator is not entitled to a mandamus. The grounds upon 'which the pardon is said to be invalid are:

1. It is not addressed to the person having custody of the defendant; i. e., the circuit court.
2. It does not clearly designate the offense pardoned. This is aimed at the failure to state the date of conviction.
3. The pardon is not signed by the full name of the governor, but by his initials; thus, “A. T. Bliss.”
4. The pardon recites that the relator had been convicted and sentenced, whereas he had not been sentenced.
5. The pardon was improvidently issued, and a fraud was perpetrated upon the governor by interested parties.

It is contended further that, if the pardon shall be held valid, relator is not entitled to the writ of mandamus, for the following reasons:

1. At the time the motion was made, no certified copy of the alleged pardon was on file in the county clerk’s office, nor had any certified copy been served on respond.ent, and, the same n'ot having been brought to respondent’s attention at the earliest moment, the benefit of the pardon was waived.
3. Although an alleged certified copy was filed with the clerk on November 4th, no motion to discharge since has been made, and the motion of October 16th was premature.

This pardon lacks an address, and it fails to state the date of conviction, and erroneously recites that relator was sentenced, and it was delivered directly to the relator. None of these things should be held to have the effect of rendering the pardon invalid. Its substance left no doubt of the intention of the governor to extend executive clemency.

Neither is there a hard and fast rule as to how the pardon shall be brought to the attention of the court. A formal motion was made to discharge relator upon the ground that he had been pardoned. Evidence conclusively establishing that fact was produced and left with the circuit judge several days before the hearing, and this was a sufficient filing. The address was unimportant. The learned circuit judge evidently had doubts as to the validity of this pardon, and took a course which led to a determination of the matter without jeopardizing the rights of the State, as a discharge might have done.

The case of People v. Marsh, 135 Mich. 410 (84 N. W. 472, 51 L. R. A. 461, 84 Am. St. Rep. 584), is conclusive of the power of the governor to pardon before sentence; and we have no doubt of the validity of the instrument when signed by the governor, though by initials, and attested by the signature of the secretary of state and the great seal of the State, if otherwise regular in form and substance.

Our attention is called to statutes which seem to contemplate that pardons shall be addressed to and returned by custodians, who enlarge the persons pardoned; but we think them directory.

We are of the opinion that the relator was clearly entitled to a discharge upon his motion of October 16th, and that the writ should issue as prayed. It will therefore be so ordered.

The other Justices concurred.


text:
    DODGE v. NICHOLS.
    Appeal and Error — Justices’ Courts — Special Appeal.
    An order made on the hearing of a special appeal, overruling objections to the jurisdiction of the justice and requiring the cause to stand for trial on the merits, will not be reviewed on writ of error, as such order is not final.
    Error to Van Burén; Carr, J.
    Submitted February 23, 1904.
    (Docket No. 208.)
    Decided March 8, 1904.
    Attachment proceedings in justice’s court by Thomas F. Dodge against Elisha R. Nichols. From an order overruling a special appeal^ and directing the cause to stand for trial, defendant brings error.
    Dismissed.

      L. A. Tabor, for appellant.

      Barnard & Lewis, for appellee.
   Hooker, J.

From an attachment case commenced before a justice of the peace the defendant took a special appeal, raising jurisdictional questions. The special matters were heard first, and the court made an order as follows:

“ State oe Michigan.
“ The Circuit Court for the County of Van Burén.
“ Thomas F. Dodge vs. Elisha R. Nichols.
“ This is a special appeal. Several errors are assigned. The justice has made his return thereto. Afterwards, on the petition of defendant, it was ordered by this court September 18, 1903, that said justice make an amended return to the special appeal, setting forth all facts in said cause fully, and return the same to this court not later than September 21st. The amended return was accordingly made. The case has been fully argued, and briefs submitted, and both returns — particularly the amended return — carefully examined. I find as matter of law that the special appeal is not sustained by the returns of the justice. The amended return neutralizes- Mr. Tabor’s points, so that I will hold that the errors are not well taken, and each one is hereby overruled. It is further ordered that said cause stand for trial on its merits according to the rules and practice of the court. No costs will be allowed.
“October 9th. John R. Carr,
“Circuit Judge.”

The cause was brought to us by writ ,of error. We are constrained to say that the order is not one that can be reviewed on error, not being final in its character. Brady v. Railroad Co., 73 Mich. 457 (41 N. W; 503); Tompkins v. Bowen, 123 Mich. 377 (82 N. W. 51).

The cause is dismissed.

The other Justices concurred.


text:
    COURTEMANCHE v. SUPREME COURT, INDEPENDENT ORDER OF FORESTERS.
    1. Life Insurance — Suicide—Intention of Act.
    Death caused by assured’s taking poison, not with the intent to commit suicide, but to frighten his wife into giving him money, is not within a clause in the policy excepting “assurance against self-destruction or suicide.”
    2. Trial — Requests to Charge.
    It is not error to refuse a request to charge, a- portion of which is improper.
    Error to Saginaw; Beach, J.
    Submitted February 3, 1904.
    (Docket No. 70.)
    Decided March 8, 1904.

      Assumpsit by Emma Courtemanche against the Supreme Court of the Independent Order of Foresters upon a benefit certificate. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Dickinson, Stevenson, Cullen, Warren & Butzel, for appellant.

      W. F. Denfeld, for appellee.
   Hooker, J.

The plaintiff is the widow of one Oliver Courtemanche, and beneficiary in a certificate of membership in the defendant society, a mutual benefit association. This policy contained the following limitations upon, or exceptions to, liability, viz.:

“ (1) Except as provided in subsections 2 and 3 of this section, the contracts for benefits heretofore or hereafter undertaken by the supreme court do not include assurance against self-destruction or suicide, whether the member be sane or insane.
(2) Any brother who commits suicide shall ipso facto avoid all his benefit certificates, and ipso facto forfeit all benefits whatsoever which his beneficiary or beneficiaries, heir or heirs, or legal personal representative or representatives would otherwise have been entitled, under the constitution and by-laws, to receive from the supreme court, or from any branch of the supreme court;— * * * ”

Subsection 1 being printed on the policy.

In an action brought upon this certificate, the plaintiff recovered death benefits to the amount of $1,000, that being the face of the policy. The defendant has asked us to review the cause upon error.

The most important question arises over a claim that if the death was due to the voluntary taking of carbolic acid by deceased, not with the intent of causing death, but to frighten his wife into giving him money, she could not recover. The evidence was practically conclusive that the deceased died from taking carbolic acid, and there was proof from which the jury might have reached either of three conclusions:

1. That it was a case of suicide in the ordinary sense.
2. That the drug was taken under the belief that it was another and harmless drug.
3. That it was knowingly and intentionally taken for the purpose of frightening the wife, and not with an intention to cause death.

The court instructed the jury that in the latter case the beneficiary would not be precluded from recovering upon the policy, and error is assigned upon this instruction.

Counsel for defendant cite, in support of their contention, the case of Lawrence v. Mutual Life-Ins. Co., 5 Ill. App. 282. In that'cause the deceased came to his death from repeated doses of laudanum, the first prescribed by a druggist, and others taken upon deceased’s own judgment, after severe vomiting, under the belief that he had vomited up a portion of that taken. The policies contained the following provisions:

“If the said person upon whose death the policy matures shall die in consequence of a duel, or of the violation of law, or by disease, violence, or accident brought about by intoxication, or shall impair his health by narcotics or alcoholic stimulants, * * * the company shall be released from all liability on account of this contract.
“ It is hereby declared and agreed that the self-destruction of the person, whether voluntary or involuntary, and whether he be sane or insane at the time, is not a risk assumed by the company in this contract, but in every such case the company will, upon demand made and the surrender of this policy, accompanied with satisfactory proofs of such death, within sixty days after its occurrence, pay the net reserve held upon it by this company at the beginning of the year in which death occurs, calculated by the present legal standard of the State of New York, first deducting therefrom any indebtedness which shall have accrued to the company on account of this contract.”

The court said:

“ The present appeal, then, must be decided precisely as though the defendant had expressly admitted that the deceased, at the time of his death, was sane; that his death was involuntary, and that it occurred without negligence on his part, and as the wholly unexpected, and therefore accidental, result of means which he was using in good faith for the purpose of alleviating his physical suffering. The question, then, is whether the accidental death of a sane person is within the meaning of the foregoing condition of the policies in suit, simply because some act of the deceased, performed with no design or intention of producing death, but for an entirely innocent purpose, and without negligence, happens to be the proximate cause of his death.
“We are clearly of the opinion that a purely accidental death can in no proper sense be termed an act of self-destruction. In all the cases where construction has been given by the courts to conditions in life policies relating to the death of the insured by his own hand, the terms ‘suicide,’ ‘ self-destruction,’and ‘death by his own hand’ have been held to be practically synonymous. To say of a purely accidental death that it was a ‘suicide,’ ora ‘death by his own hand,’ would be simply an abuse of language. That which is purely accidental or fortuitous can no more be charged to the account of the person whose act happens to be the occasion of the accident than to that of any one else. It is only where 'death results from an express design on the part of the deceased, or from some act which, though performed with no intention of producing death, is of itself culpably negligent, that the deceased can be charged with the responsibility of self-destruction. If a person in the pursuit of a proper object, and in the exercise of due care, should accidentally fall into a body of water and be drowned, or should unwittingly expose himself to the smallpox or the yellow fever, not knowing at the time of the existence of the contagion, and die of the disease, it would in no proper' sense be a case of self-destruction. If in either case, however, he should be culpably negligent in exposing himself to danger, although not intending to destroy his life, he would be, in the common judgment of men, the efficient instrument of his own death. * * *
“Upon principles quite analogous to the foregoing, it may be held that in case of a sane person, where there is an absence both of intention and culpable negligence, the death of the insured must be regarded as accidental, and not within a proviso against self-destruction. With this construction, full effect may be given to all of the words of the condition in the policies under consideration. Voluntary self-destruction obviously can mean nothing more than the taking of one’s life purposely and intentionally. Involuntary self-destruction would then include all those cases where a person, without intending to accomplish his own death, carelessly and negligently does acts which may naturally and probably result, and do in fact result, in death. The condition would thus be held to include all cases where there exists on the part of the insured any direct and immediate legal or moral responsibility for his own death. To go beyond this, and relieve the insurers from liability in all cases where the acts of the insured, without design or negligence on his part, do in fact contribute to shorten or terminate his life, would in most cases render life policies of very little value to the insured.”

The foregoing indicates that the court was of the opinion that death through culpable negligence would not be covered by the terms of the policy. That this was at most a dictum appears from the following conclusion of the opinion:

“ It follows that the defense in this case rests solely upon a charge against the insured of culpable negligence. This fact seems to be recognized by the learned counsel for the defendant, and accordingly they have endeavored in their argument to demonstrate the negligence of the insured from the evidence in the case. If they desired to avail themselves of this defense, they should have allowed the question of negligence to be presented to the jury; but, having withdrawn it from the only tribunal legally competent to decide it, they are not now in a position to insist that any negligence has been proved.”

The case was again tried, resulting in a verdict for the plaintiff. The court charged, in substance, that the plaintiff should recover, unless the death was the result of ‘ ‘ either gross carelessness, or circumstances constituting him a suicide;” and continued as follows:

“ The jury are further instructed, on the subject of negligence and gross carelessness, that, so far as the defense in this case depends thereon, the burden of proof rests upon the defendant; and that gross carelessness consists of something more than the omission to do that which under the circumstances of a case an ordinarily careful man would have done to avoid injury.”

The appellate court criticised the charge in this language:

“It is plain that these instructions place upon the language of the'policy an interpretation quite different from the one adopted by us on the former appeal. In our view, the exemption of the insurance company from liability depends, not upon the degree of the negligence of the insured, but upon its culpability. Indeed, we are unable to see how the ordinary division of negligence into degrees, such as slight, ordinary, and gross, can have any application here, though it may serve a very useful purpose in cases where the doctrine of contributory or comparative negligence is invoked. The true inquiry here is whether the death of the insured was the proximate result of his own negligent act, and whether such act was, under all the circumstances of the case, a culpable act. * * *
“The words ‘voluntary’ and ‘involuntary’ must be regarded as being used in the policy in a sense somewhat analogous to that in which they are employed in the criminal law. They do not include cases of death by accident or ‘misadventare,’ but they must be held to include all cases where death results immediately and proximately from the culpable negligence of the insured. Doubtless, also, if death should ensue from the performance by the insured of an unlawful or criminal act, it would be a case of involuntary self-destruction within the meaning of the policy.
“It follows from what we have said that the instructions limiting the effect of the condition of the policy under consideration to cases of gross negligence, and attempting to apply to this case the rules ordinarily applicable to that degree of negligence, were erroneous. ” Mutual Life-Ins. Co. v. Laurence, 8 Ill. App. 488.

It would seem to us, from the discussion in that case, that the defendant had nothing to complain of in the charge, for, to our minds, culpability implies something more than any degree of negligence. However, that does not seem to have been the view taken, and we must consider the case as holding that, while no degree of negligence without culpability will relieve a defendant, any degree of culpability will; and we do not see how there was any culpability, other than mere negligence of some degree, shown in that case. The provisions of this policy are not as broad as that involved in the Illinois case, which states that “self-destruction, though involuntary, is not a risk assumed by the company,” while the policy before us excepts “assurance against self-destruction or suicide.”

We approve the doctrine that losses by insurance companies through fire, accident, or death cannot be avoided, under ordinary provisions, although they are due to want of care. Any other doctrine would make insurance nearly valueless, especially accident insurance; and if there is any doctrine applicable to cases arising upon contracts of insurance, akin to that of contributory negligence in actions of tort, we .are not aware of it. Upon the other hand, there is some apparent force in the claim that insurance companies, and those who contract with them, do not anticipate that the insured will intentionally, deliberately, and unnecessarily incur the hazard of death by poison to coerce another into the payment of money to him, or for any other reason.

This is a peculiar case. Perhaps none could arise where the act of the deceased (if defendant’s claim is true) could present a more pusillanimous act. We can imagine cases in which acts of great hazard and danger would be heroic, and of which we should be reluctant to say that policies were avoided because the insured intentionally and understandingly faced almost certain death, as in the case of succoring the drowning or the burning. Between these two extremes all kinds of cases can be imagined, where risks are taken for pleasure, for profit, or from humanitarian motives, and we see no way of distinguishing between them, unless it be upon moral grounds. Perhaps the word “culpability ” is a proper one to use, if not enlarged to include negligence in which no moral question is involved; but we think such a question would be more appropriately raised under a provision excepting cases of death caused while engaged in an unlawful act,— a provision found in most policies, and regarding which the authorities are numerous.

We are cited to the case of Ritter v. Insurance Co., 169 U. S. 157 (18 Sup. Ct. 300), in support of the proposition that the act of the insured should preclude recovery. The • question in that case was whether a recovery could be had in a case of suicide while sane, in the absence of a provision in the policy excepting such cases. It was held that recovery could not be had in such a case, upon the ground that the parties did not contemplate insurance against deliberate, intentional self-destruction. The case is compared to and classed with the willful burning of insured property, and several similar cases are cited and discussed, viz.: New York Mut. Life-Ins. Co. v. Armstrong, 117 U. S. 591 (6 Sup. Ct. 877), where the beneficiary murdered the insured; Hatch v. Insurance Co., 120 Mass. 550. (21 Am. Rep. 541), where a married woman died from an unlawful operation voluntarily submitted to; Supreme Commandery Knights of the Golden Rule v. Ainsworth, 71 Ala. 436 (46 Am. Rep. 332), where it was held that suicide was an exception to the contract of insuranee, though not specifically made so by the policy; also the case of Amicable Society v. Bolland, 4 Bligh, N. R. 194, cited in support of the doctrine that, as a general proposition, “the law will not enforce contracts and agreements that are against the public, good, and therefore are forbidden by public policy.” In that case the assured was executed for forgery. In disposing of the case the court said:

“ It appears to me that this resolves itself into a very plain and simple consideration. Suppose that in the policy itself this risk had been insured against, — that is, that the party insuring had agreed to pay a sum of money year by year, upon condition that in the event of his committing a capital felony, and being tried, convicted, and executed for that felony, his assignees shall receive a certain sum of money; is it possible that such a contract could be sustained ? Is it not void upon the plainest principles of public policy ? Would not such a contract (if available) take away one of those restraints operating on the minds of men against the commission of crimes, namely, the interest we have in the welfare and prosperity of our connections? Now, if a policy of that description, with such a form of condition inserted in it in express terms, cannot, on grounds of public policy, be sustained, how is it to be contended that in a policy expressed in such terms as the present, and after the events which have happened, we. can sustain such a claim ? Can we, in considering this policy, give to it the effect of that insertion, which if expressed in terms would have rendered the policy, as far as that condition went at least, altogether void ?”

Counsel persuasively apply the same test to this case, and urge that a policy which in express terms should contemplate and provide insurance against the danger resulting from ' the voluntary taking a chance of death, as in this case, would be void, as opposed to public policy. If the proofs showed that this was an experiment to determine whether death would follow the taking of the drug, showing that the contingency of death was not overlooked, it is possible that we might be justified in saying that such act, if followed by death, was not within the intent of the parties to. the contract; but there is nothing in this case to indicate a design to take life, or that deceased thought that he was courting danger of death. We cannot suppose that any one would approve such an act as taking poison to coerce a wife through sympathy or fear, but we are not sure that the test applied in the Bolland Case can be safely treated as an infallible one. We are unable to find any case where this has been so held, or any where the rule has been applied, except where the act has been criminal, or accompanied by an intention to produce death. In the Alabama case cited it is said:

“The doctrine asserted in Fauntleroy’s Case [Amicable Society v. Bolland], that death by the hands of public justice, the punishment for the commission of crime, avoids a contract of life insurance, though it is not so expressed in the contract, has not, so far as we have examined, been questioned, though the case itself may have led to the very general introduction of the exception into policies. The same considerations and reasoning which support the doctrine seem to lead, of necessity, to the conclusion that voluntary, criminal self-destruction — suicide, as defined at common law- — should be implied as an exception to the liability of the insurer, or, rather, as not within the risks contemplated by the parties, reluctant as the courts may be to introduce, by construction or implication, exceptions into such contracts, which usually contain special exceptions.”

Again:

“The fair and just interpretation of a contract of life insurance made with the assured is that the risk is of death proceeding from other causes than the voluntary act of the assured producing, or intended to produce, it. The extinction of life by disease or by accident, not suicide, voluntary and intentional, by the assured while in his senses, is the risk intended; and it is not intended that, without the hazard of loss, the assured may safely commit crime.”

If one point a loaded pistol at himself, with no intention to fire, his death, being caused by its unintentional discharge, would be accidental, and not suicidal, and the beneficiary under such a policy as this should be allowed to recover; for the death, though self-destruction in one sense, in another was not, the immediate cause being the unexpected and accidental discharge, and not the pointing, of the pistol, which was in itself a harmless, though perhaps a risky, act. The death in such case is a fortuitous result, not even a probable one, and such deaths are covered by policies. The case in question cannot be distinguished in principle from the foregoing, except in the greater degree of danger of a fatal result, or in the nature of the motive actuating the deceased. In the former the victim would believe he would be safe as long as he did not pull the trigger; in the latter, that he would not die if he limited the dose taken to an amount that would be insufficient, ordinarily, to cause death. A fatal result in either case, being unintended and unexpected, would be accidental, regardless of the motive which should prompt the act. It should be stated that such a death might not .be covered by a policy which by its terms excepts cases where death or accident is due to voluntary exposure to danger, as in the Illinois policies discussed.

From the foregoing it would seem to follow that negligence is not a reason for relieving the insurer, and the motive certainly would not be in some of the instances we have mentioned. We do not see that the fact that the motive alleged here was to work upon the sympathy or fears of his wife would make the death of the insured any the less accidental, or that the' act was a criminal one, and we are of the opinion that the court did not err in declining to direct the jury that they should treat this claim as a sufficient defense if proved.

Upon the trial the defendant’s counsel introduced in evidence a letter written by plaintiff to defendant’s lawyer, at his suggestion. Plaintiff testified:

“After the death of my husband, I talked with Mr. Elliott G. Stevenson, of Detroit, once at Mr. Allen’s office in this city, and once in Bay City. The talk I had with him at Saginaw led up to the writing of the letter that is introduced in evidence. I didn’t see him at a meeting of the Foresters.. I don’t know what he came to Saginaw for. It was something about the Foresters, and I knew he was in town, and I made it my business to see him, because I wanted to see wbat he had to say about paying that insurance; and he told me that the executive council was to meet in a short time, a week or two afterwards, and he would see what he could do for me, and he told me to write him a letter a short time before, so he would have that to put before the council, whatever it was, to show if I could give any excuse for it, — if I knew of any reason at all why he should have committed suicide, or anything of the kind.”

The letter is as follows:

“Mr. E. G. Stevenson.
“Near Sir: My husband, Oliver Courtemanche, was a member of Court Yalley 232, of East Saginaw, and died Sep. 28/98. The Corinors jury brought in a verdict of Sueside while Under the Influence of Liquor, which was Intirely False and unjust, as he had not been Drinking at all that Day. Dr. F. W. Freeman, who conducted the Post Mortom, also sais that there was not a Drop of Liquor or Beer of eny kind in his stomac, and if he took Carbolic Acid, as they say he did, I honistly and Firmly do not think it was with the Intentions of • Killing himself, but rather to scare me into giving him Money. He had given three different People his checque, and had' no Money in the Bank, and he knew he would get into trouble over it, and I had told him that I would not help him eny more and Borrow Money for him, and he had borrowed all He could, and so I Persume he thought he would have to do something more Desperet than usual In Order to Scare me Into getting the Money for him, And so tryed that way of getting it and took more than he Intended, for there is no reason that I know of why he should want to Kill Himself. We had not quarreled, And always got along well together, and there was nothing that trubbled him that I can find out outside of those checques, and surly Twelve Dollars, the Amount of three checques, wasent worth Killing onesself for, and I know he did not Intend to do It, for he always spoke and acted as if he had a horror of sueside. It is Nearly a year and two Months since he Died, but the Foristers havent Paid me the Thousand Dollars, the amount his Policy calls for, and I should very much like to have it, as he carried no other Insurance, and it is all I have in the world, and I have Myself to suport, and It would be very nice to know I had something for a Rainey Day. Will you kindly Present this to the supream counsil at there next Meeting, and ask them to Please Pay Me, and I will be sincerely grateful to You and Them.
[Signed] “Mrs. Emma Courtemanche.”

Counsel requested the court to charge:

“The letter written by plaintiff in this case, in which certain admissions are made by her in respect to quarrels and the issuing of checks fraudulently, and the possible desire on the part of her husband to do something more desperate than usual, was proper evidence in this case against the plaintiff, and you shall consider such admissions for what they are worth in arriving at the question as to whether the plaintiff’s intestate did not, for these reasons, and with the motive therein stated, take the carbolic acid or drug in question, and for no legitimate purpose.”

This was not all of the request, the remainder being as follows:

‘ ‘ If you .find that he did so take the drug, and that, contrary to his expectation, the dose was fatal, even though such thought was farthest from his mind,' nevertheless death resulting from such act would be suicide, and the plaintiff cannot recover in this case, save such amount as defendant has offered to pay in open court. ”

Having determined that the rule is not as stated in the last-quoted portion of the request, it is manifest that the court did not err in refusing a request of which it was a part.

We think it unnecessary to discuss the other questions raised.

The judgment is affirmed.

The other Justices concurred.


text:
    BARRY & FINAN LUMBER CO. v. CITIZENS’ INSURANCE CO.
    1. Fire Insurance — Limitation of Actions — Standard Policy.
    Under the Michigan standard fire-insurance policy, a plaintiff cannot recover unless his action is commenced within 12 months from the date of the fire.
    2. Same — Local Agents — Authority to Adjust Losses —
    Waiver of Terms of Policy. í
    The statements and acts of a local agent of a fire-insurance company, authorized to receive proposals for insurance and countersign and deliver policies, cannot be received to show that he was authorized to adjust losses for the company, or had power to waive a provision of the policy requiring action to be commenced within 12 months from the time of the loss.
    3. Same — Foreign Companies — Statutes.
    The provision of 2 Comp. Laws, § 7246, defining who shall be deemed to be agents of foreign insurance companies, does not operate to increase an agent’s authority, or make the company liable for his representations with reference thereto.
    Error to Cheboygan; Shepherd, J.
    Submitted February 5, 1904.
    (Docket No. 89.)
    Decided March 8, 1904.

      Assumpsit by the Barry & Finan Lumber Company against the Citizens’ Insurance Company of Missouri on a fire policy. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Frank L. Fowler, for appellant.

      George E. & M. A. Nichols, for appellee.
   Hooker, J.

The plaintiff suffered the loss, by fire, of certain property covered by insurance in the defendant company. The court directed a verdict for the defendant, upon the ground that the action was not brought within one year from the time the loss occurred. Plaintiff appealed.

The plaintiff owned property in Cheboygan county, which was insured by the defendant, through its agents at Frankfort, Chandler & Norris. There were also policies upon the same, property issued by other companies through Chandler & Norris. The property being destroyed by fire, plaintiff’s president, Mr. Barry, notified the Chandler & Norris agency, and, Chandler having moved to Detroit (though still holding his interest in the business at Frankfort), Norris received this communication, and notified the company, and afterwards asked Mr. Barry to come to Frankfort, which he did. At this time Norris told him that he would have an adjuster on the ground within 60 days, that Chandler was adjuster for one of the companies, and that he thought he would adjust for all of them. It does not appear that Barry made proofs of loss on the occasion referred to. The fire was in July, and the matter was the subject of some correspondence until October 3d, when Mr. Barry wrote the Chandler agency that he “had not seen or heard of any one to adjust the loss,” and asked to hear from them. Chandler had severed his relations with Norris in September, and Norris replied as follows:

“Frankfort, Mich., Oct. 6, 1900.
“T. W. Barry,
“Tower, Mich.
Dear Sir: Replying to your favor of the 3d inst., I will send you policy on dwelling at Crystal City, Monday.
“With regard to the adjustment of insurance, I have written the companies about it twice, but received no answer. For your own protection, I inclose forms of the policies, and would suggest that you go immediately to some good lawyer, and have him draw up the necessary proofs and serve them on the companies by registering them immediately. The 60 days have expired, and this should be done to protect your interests. I do not know what the matter is, but they should have been around before this, and the filing of proofs will probably bring them to account. I send you the forms for proofs; also forms of the policies, with the expiration noted on same at the bottom. I also send you addressed envelopes of the different companies.
“Whatever suggestions I have advanced in this letter must not be construed as coming from me in pny capacity as agent of any of these companies, but merely in an individual capacity, and I trust you will observe same in a confidential manner.
“ Yours very truly,
“ J. T. Norris.”

On or about November 12th, Barry went to Frankfort to make proofs of loss in response to a letter from Norris, and there met Chandler, who- said that he had adjusted the loss for one company, and would act for all the other companies. He wrote up the proofs. Norris stated on this occasion that Chandler would adjust for all the companies, and plaintiff testified that Chandler stated that “there was no question about the amount, that that was settled upon, and we would receive our checks in a short time. He said that he was the adjuster for these companies, though he was not asked anything in relation to his authority.” The proofs were duly mailed in a i’eturn envelope, and that day the plaintiff’s claim was put into the hands of Mr. Warner, a lawyer.

The matter ran along until about July 2,1901, when Mr. Barry told Mr. Norris that “the year would be up in a short time,” and they were “ bound to begin suit before the year was up;” and Mr. Norris said: “What are you talking about ? You have six years to begin your suit in.” They went into Warner’s office, and the same thing was stated to him, and he looked up the law on it, and he said:

“ While it was stated in the contract or in the policy that it was not absolutely necessary to begin suit within the year, that, if the checks would not come within a few days, Mr. Warner said they would begin the suit. * * * Mr. Norris also stated at that time that, if we began suit against the companies, they would take all the time they were entitled to, and delay the matter along, and, if we would just be patient about it, we would get our money a good deal quicker than we could to plunge into court.”

Warner testified :

“ The honest fact is, I was not acquainted with the provision in regard to the commencement of suit contained in the Michigan standard form insurance policy. I should have undoubtedly commenced suit against the Citizens’ Insurance Company but for the representations or statements made by Mr. Chandler. That was the principal reason for the delay in commencing suit. ”

We have made a fruitless search in the record for any testimony tending to show any authority in either Norris or Chandler to adjust this loss, or in any way compromise the company in relation to it. It is settled that, under a provision like the one in this policy, a plaintiff cannot ordinarily recover, unless his action is begun within 12 months. McIntyre v. Insurance Co., 52 Mich. 189 (17 N. W. 781); Voorheis v. Benefit Society, 91 Mich. 469 (51 N. W. 1109); Gould v. Insurance Co., 90 Mich. 302 (51 N. W. 455); Steele v. Insurance Co., 93 Mich. 81 (53 N. W. 514, 18 L. R. A. 85); Law v. Accident Ass’n, 94 Mich. 266 (53 N. W. 1104); Lentz v. Insurance Co., 96 Mich. 445 (55 N. W. 993); Peck v. Insurance Co., 102 Mich. 52 (60 N. W. 453); Allen v. Insurance Co., 106 Mich. 204 (64 N. W. 15); Shackett v. Benefit Society, 107 Mich. 65 (64 N. W. 875). It is equally well settled that the company may waive the benefit of this provision; but in this case the company has not waived it, unless it was bound by what was said by Chandler and Norris. There is no evidence, except the statements and acts of Chandler and Norris, which tends to show that either was more than a local agent for taking policies. Both said that Chandler was adjuster and that the claim would be paid, and Chandler made out proofs of loss and professed to adjust the claim; but none of this is brought home to the defendant. There is nothing that can be said to be a holding out that these men had authority to speak for the company in this settlement, as it has been repeatedly held that an agent’s declarations are not proof of his authority, and that his acts have no significance, unless recognized by the alleged principal in a way to be equivalent to a holding out that the relation of principal and agent exists, and a holding out of the requisite authority. Norris expressly disavowed it in his letter, and there is no evidence justifying an inference of authority on the part of either. See Ostrander, Fire Ins. § 57. The author says:

“ Power to waive implies authority to act. One without the other is impossible. ‘ Waiver ’ has generally been defined by the courts as the ‘ voluntary relinquishment of a known right.’ Without the existence of a right, there can be no abandonment, for there would be nothing to abandon. The question, then, as to the power of an agent to waive notice and proofs of loss, must be considered in reference to his authority in respect to the settlement of claims. If the insurance company has carefully defined the duties of its local agent to he entirely separate and distinct from that of its adjuster, and has not been accustomed to appoint him to the performance of any important duties in respect to the care of damaged property or the computation of losses, nor in any manner held him out to the public as having authority in such matters, the agent, it is needless to say, will be wholly without authority, either real or apparent. If it were customary for local agents to adjust losses, then adjustment would be within the scope of every agent’s apparent authority; but the fact being that adjustments, except in very rare instances, are directed in every detail by persons specially "designated because of their exceptional skill and experience, there can be no reasonable inference that the local agent has any authority in respect to notice and proofs of loss.”

In Knudson v. Insurance Co., 75 Wis. 198 (43 N. W. 954), one Gilbert was the local agent of the company, and the plaintiff claimed that the proofs of loss required by the terms of the policy had been waived by him. Lyon, J., said:

‘ ‘ There is no proof that Gilbert had any authority in the premises beyond that of an ordinary local agent. Whatever power he may have had, when he made the contract of insurance, to waive conditions in the policy, he had no power, by its terms, as a mere local agent, to waive such conditions afterwards. It was so held in Hawkins v. Insurance Co., 70 Wis. 1 (35 N. W. 34).”

In Barre v. Insurance Co., 76 Iowa, 609 (41 N. W. 373), the court said:

“ The acts claimed to be a waiver were done either by the agent who took the application for the insurance, and made the contract sued on, or by an adjuster. But it is not shown, nor attempted to be, that either of these persons was authorized to make the waiver. The duties with which it is shown, or will be inferred, they were clothed, do not pertain to waivers of this character.”

Therefore, that their statements were rightfully excluded.

The rule is tersely stated in Weidert v. Insurance Co., 19 Or. 261 (24 Pac. 242, 20 Am. St. Rep. 809):

“ ‘ But in all cases the distinction between the powers of general and special agents should be kept in view, and, in the case of a special agent, the assured must at his peril know whether the act relied on is within the scope of his real or of his apparent authority. He is bound to know when he has passed the precise limits of his power, and cannot rely upon the assumption of authority by the agent to do an act beyond the scope of his actual authority, real or apparent. The declarations of an agent are not evidence of his authority, but the scope and extent of his powers must be determined by his actual authority, or by his acts, and the recognition thereof by his principal.’ 2 Wood, Fire Ins. § 421.”

And it was held that the statements of the special or local agent could not be received to bind the company.

In Bush v. Insurance Co., 63 N. Y. 531, Rapallo, J., said:

‘ ‘ It cannot be held that the authority of an agent to receive proposals for insurance, and countersign and deliver policies, extends to adjusting losses, or waiving the stipulated proofs of loss, and binding the company to pay without them.”

The point is within our own cases. See Cleaver v. Insurance Co., 65 Mich. 532 (32 N. W. 660, 8 Am. St. Rep. 908); Gould v. Insurance Co., 90 Mich. 306 (51 N. W. 455); Steele v. Insurance Co., 93 Mich. 81 (53 N. W. 514, 18 L. R. A. 85); Wadhams, Ryan & Reule v. Assurance Co., 117 Mich. 514 (76 N. W. 6).

Other cases cited by defendant’s counsel are the following: Kyte v. Assurance Co., 144 Mass. 43 (10 N. E. 518); Smith v. Insurance Co., 60 Vt. 682 (15 Atl. 353, 1 L. R. A. 216, 6 Am. St. Rep. 144); Kirkman v. Insurance Co., 90 Iowa, 457 (57 N. W. 952, 48 Am. St. Rep. 454); Harrison v. Insurance Co., 67 Fed. 577.

These cases are not at variance with cases where a waiver has been held to arise from knowledge by the agent issuing the policy of existing conditions when the policy was taken, nor from acts within the scope of the local agent’s or adjuster’s authority, many of which are cited by plaintiff’s counsel; nor does the statute (2 Comp. Laws, § 7246) operate to increase an agent’s authority, and make the principal liable for his representations as to authority.

Upon the face of this record, this is a defense which is technical, and does not appeal strongly to our sense of justice; but it is not necessarily true that defendant has no meritorious defense. It has relied on its legal defense, which it had a right to do.

The judgment is affirmed.

Moore, C. J., Carpenter and Montgomery, JJ., concurred. Grant, J., did not sit.


author: Grant, J.

text:
    BLACKBURN v. ALPENA CIRCUIT JUDGE.
    Mand amus — Deol aration — J oint Contract — Amendment.
    Where plaintiff, after the death of her husband, brought an action in her own name to recover on a j oint contract made by her husband and herself with defendant, the action of the circuit judge in permitting an amendment to the declaration, allowing her to continue the action in the name of herself as survivor of herself and her deceased husband, is not reviewable on mandamus. St. Clair Tunnel Co. v. St. Clair Circuit Judge, 114 Mich. 417, followed.

      Mandamus by William A. Blackburn to compel Frank Emerick, circuit judge- of Alpena county, to strike an amended declaration from the files.
    Submitted February 16, 1904.
    (Calendar No. 20,186.)
    Writ denied March 15, 1904.

      Joseph H. Cobb, for relator.

      Charles JR. Henry (B. J. Kelley, of counsel), for respondent.
   Grant, J.

The relator is defendant in a suit decided by this court Match 30, 1903, and reported in 132 Mich. 525 (94 N. W. 24). After that decision, holding that the action was single, and could not be split, the circuit judge, on motion of the plaintiff’s attorney, permitted an amendment to the declaration, allowing the plaintiff to continue the action in the name of herself as survivor of herself and George N. Blackburn, her deceased husband. The relator now asks the writ of mandamus to compel the respondent to strike this amended declaration from the files.

It was a former practice of this court to dispose of questions of this character in mandamus proceedings. The counsel for relator cites several such cases. The practice, however, was settled in St. Clair Tunnel Co. v. St. Clair Circuit Judge, 114 Mich. 417 (72 N. W. 249), wherein it was held that, although the amendment set up a new and different cause of action, it would not be reviewed by mandamus. We followed that case in City of Detroit v. Wayne Circuit Judge, 125 Mich. 634 (85 N. W. 1), where the claim was that the amendment introduced a new and different cause of action, barred by the statute of limitations. Counsel for relator concedes that these cases are decisive against his contention that mandamus is the proper remedy, and asks that we return to the former practice. The reason why mandamus should not be resorted to in these proceedings is sufficiently stated in St. Clair Tunnel Co. v. St. Clair Circuit Judge. We have followed that decision for more than six years, and see no occasion now to depart from it. If the amendment is not within the statute of amendments, the defendant may, as in case of demurrer, stand upon his objection, allow judgment to pass against him, and raise the question by writ of error. If he has not sufficient confidence in his objection to stand upon it, it is no injustice to require him to plead and stand trial upon the merits.

The writ is denied.

The other Justices concurred.