text:
    BARTO v. DETROIT IRON & STEEL CO.
    Master and Servant — Negligence—Duty to Warn — System.
    A verdict should have been directed for defendant, on the trial of an action for negligently killing plaintiff’s intestate, an emplóyé in the casting room of defendant’s iron works, killed by the falling of pig iron down a chute, upon decedent who had been set to work there without the knowledge of the operator of the crane which carried the iron; the testimony disclosing that a proper system was in operation in the factory, and if decedent’s fellow-servants had followed their instructions and such system, decedent would not have been injured.
    Error to Wayne; Searl, J., presiding.
    Submitted October 4, 1910.
    (Docket No. 2.)
    Decided December 30, 1910.
    Case by Carlo Barto, as administrator of tbe estate of Francis Kopovics, deceased, against tbe Detroit Iron & Steel Company. Judgment for plaintiff; defendant brings error.
    Reversed.

      Brennan, Donnelly & Van De Mark, for appellant.

      James JR. Neil, for appellee.
   Ostrander, J.

In February, 1905, a part of the business of defendant was casting iron. For this purpose a building some 200 feet in length and from 60 to 80 feet wide was used. In one end of the building was a furnace. In the other, but at some distance from the wall of the room, was an elevated platform, upon which the pig breaker was placed, and from which a traveling crane was operated. Underneath the platform were the rails of a track running in through a door from outside of the building; the floor of the casting room being higher than the level of the ground outside the building and higher than the tracks. In the usual course of business, the crane, operated by a man on the platform, lifted from the floor a bed of pigs, carried it to the platform and into position, where each pig, weighing from 85 to 100 pounds, was broken from the sow, and also broken in halves by the blow of a hammer, or plunger, operated by hydraulic power. When broken, the pigs fell through a chute in the platform into a car, and, when the car was filled, it was removed by a locomotive engine and was emptied; another car, or the same car, being returned to a position under the chute. A stairway led from the platform to the floor of the room. The operator who controlled the crane and other apparatus faced the casting room. A helper, sometimes called a “spotter,” faced him; the breaker and bed of pigs being between them.

During the night of February 15, 1905, the locomotive of defendant removed a car which had been in place under the chute, and some men, among them the plaintiff’s intestate, were employed in removing ice and sand from the tracks, an operation which the cold, the sand from the pigs, and water from the hydraulic apparatus made necessary several times in the course of the day and night. It appears to be admitted that the operator'of the crane was bringing a bed of pigs into position to be broken, when, as was not unusual, one of the pigs was broken off by striking a shield intended to guide the bed into position at the breaker. The pig came through the chute, and killed plaintiff’s intestate. He was a common laborer, a Hungarian, who had been in America but a few days, and was- hired by defendant the evening of the previous day. He spoke no English. An administrator of his estate was appointed, who began this suit.

The duties of defendant in the premises, breaches of which are alleged in the declaration, are to provide plaintiff’s intestate a safe place in which to work, to instruct him as to the proper manner of performing his work to avoid being injured, to warn him not to go upon the railroad tracks under the chute while the bed of pigs was being placed in position to be broken, to refrain from directing him to labor on the tracks under the chute while the bed of pigs was being placed in position to break, to warn the operator of the crane that laborers were under the ■chute, to cause the operator to desist from bringing the bed of pigs into position to be broken while the work was ■performed under the chute, to warn plaintiff’s intestate of the danger that a pig might come down the chute, and that defendant “ did not establish and maintain a system of signals whereby said bridge operator could know that plaintiff’s intestate was underneath said chute.” The cause was tried in April, 1909.

Two questions of fact were submitted by the court to the jury, namely: Did Mr. Sawyer, the operator, know that the car had been removed from underneath the chute? and, if he did not, whether defendant promulgated reasonable rules and regulations to give him notice. There was a verdict for the plaintiff, which the court declined to set aside, and judgment was entered on the verdict. The jury found that the operator did not know that the car had been removed. It is the contention of appellant that, if he did not have the knowledge, the fault is that of a fellow-servant of plaintiff’s intestate, who violated the rules and regulations of defendant in failing to give the operator notice. To this point .argument is principally directed. It is contended, also, that the testimony wholly fails to prove that plaintiff’s intestate left surviving him a widow and children, that a wid. •ow or children were living at the time of the trial, or that !he had ever contributed to the support of a wife or children. Further contentions are that the verdict was against the weight of evidence; that the argument of plaintiff’s counsel was intemperate; that hearsay testimony was received. We shall notice but one, and that the first, of these contentions, because we are satisfied that it was error to submit to the jury the question of defendant’s negligence.

The record does not leave it doubtful that defendant had ,a system, which, if followed on the night in question as it had been theretofore, would have rendered it impossible for the men on the track to be injured or to be in danger of injury by iron falling through the chute. Unfortunately some one was careless. If he knew there was no car in position, the operator was inexcusably negligent in bringing the bed of pigs to a position over the platform. His instructions, his custom, and his experience alike forbade him to do so. If he did not know that the car had been removed, it was his own fault or that of his spotter.

Cars w.ere not taken out unless by his direction, given either personally or through the agency of his spotter to the switchman, whose duty it was to superintend their removal, unloading, and replacing. Sometimes notice to move the car was given by blowing a whistle; often, if the' locomotive was alongside the building, by oral direction. The stairway was used by the operator and his spotter to ascertain whether the car was filled and to communicate with the switchman. Upon the occasion in question the spotter had gone down the stairs, was down there when the switchman took out the car, knew the men were cleaning the track. The operator knew that the spotter was not in his usual position to assist him in breaking pigs. The spotter, noticing that the crane was being operated, ascended the stairs to inform the operator that men were under the chute and arrived at the platform too late. Meantime the car had been returned to a position outside of the building, and the switchman was waiting the movements of the men who were clearing the track. There was no occasion to warn the men who were cleaning the tracks, because, if the rules were observed, they were in no danger. Apparently the spotter understood that the operator understood that the car had been removed, until he saw the crane in operation. There is undisputed evidence that the usual method of doing the work corresponded with instructions originally given by defendant’s superintendent. The instructions were not in the form of rules, and were not printed. But there was a system, well understood, calculated to insure the safety of plaintiff’s intestate and all other employés upon the occasion in question. In this respect the case differs essentially from Pecard v. Sugar Co., 153 Mich. 84 (116 N. W. 532). We notice the claim of appellee that the liability of defendant is determined in Barto v. Steel Co., 155 Mich. 94 (118 N. W. 738). That was error to review a judgment based upon a verdict directed upon the opening statement of plaintiff’s counsel. A comparison of what was then offered to be proved with the testimony elicited at the trial will be sufficient to answer the claim which is now made.

The judgment is reversed, and a new trial granted.

Bird, C. J., and Hooker, Moore, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    WEBB v. GRANITE STATE FIRE INSURANCE CO.
    Insurance — Fire Insurance — Michigan Standard Policy — ' Cancellation.
    Under the provisions of fa Michigan standard fire insurance policy, permitting the insurer to cancel the contract on five days’ notice, the pro rata part of the premium paid to be returned on surrender of the policy, a notice of cancellation by the insurer to insured terminates the obligation after the specified time, without any tender of the unearned premium.
    Error to Otsego; Sharpe, J.
    Submitted October 10, 1910.
    (Docket No. 29.)
    Decided December 30, 1910.
    Assumpsit by Josiah Webb, against the Granite State Fire Insurance Company, upon a policy of insurance. Judgment for plaintiff; defendant brings error.
    Reversed and no new trial ordered.

      Lehman, Riggs & Lehman, for appellant.

      Nelson G. Weter, for appellee.
   Brooke, J.

Plaintiff held a Michigan standard fire ■insurance policy in defendant company, covering his stock •of goods. The policy was issued September 5, 1908, and ■contained the following provision:

“This policy shall be canceled at any time, at the request of the insured; or by the company, by giving five days’ notice of such cancellation. If this policy shall be canceled as hereinbefore provided, or become void, or cease, the premium having been actually paid, the unearned portion shall be returned, on surrender of the policy, or last renewal, this company retaining the customary short rate; except that when this policy is canceled by this company, by giving notice, it shall retain only the pro rata premium.”

On September 21, 1908, defendant caused to be sent to plaintiff (the receipt of which is admitted) the following ■.notice of cancellation:

“Sep. 21, 1908.
Dear Sir: You are hereby notified that policy No. 682358 of the Granite State Fire Insurance Company is canceled by said company. As said policy is void by reason of irregularity of issue and this notice of cancellation, in order to protect your property other insurance must be secured. Please return policy in enclosed envelope.
“Yours very truly,
“The James A. Jones Agency, Inc., G. A.
“A. M. Arenz, Secy. & Treas.”

Plaintiff’s loss occurred January 19, 1909. Payment having been refused, plaintiff brought suit upon the policy.

Upon the question of cancellation, the court charged the jury as follows:

“ I construe this policy to mean that, if the company desired at any time to cancel it, they had a right to and without assigning any reason for its cancellation. But as a condition precedent to terminating the policy, to ending their liability under the policy, they must tender to the person insured the amount of the unearned premium.”

The first question which presents itself for consideration is whether or .not the learned circuit judge was correct in. his construction of the clause in the policy relating to cancellation. The language of the clause is, it seems to us, plain and without ambiguity.

“This policy shall be canceled at any time, at the request of the insured; or by the company, by giving five days’ notice of such cancellation.”

These words, and these alone, provide for the method of cancellation. What follows in the same paragraph is a new sentence, and deals with the rights of the parties after cancellation.

“ If this policy shall be canceled as hereinbefore provided, or become void, or cease, the premium having been actually paid, the unearned portion shall be returned, on surrender of the policy, or last renewal, this company retaining the customary short rate; except that when this policy is canceled by this company, by giving notice, it-shall retain only the pro rata premium.”

This language, so far from indicating that the unearned premium must be tendered or returned as a condition precedent to cancellation, states exactly when it shall be returned, to wit, “on surrender of the policy.” We have’ no hesitation in holding that the cancellation is complete when the notice provided for by the contract is. given, and that thereafter the relation of the parties is changed from that of insurer and insured to that of debtor and creditor. If this construction imposes any hardship upon the insured in that he may not be at once able to re-insure because the company may not promptly return to-him the unearned premium, it must be said that this hardship is one of his own creation. It flows directly and. necessarily from the contract. If this contract requires amendment for the proper protection of the insured, relief must be sought from the legislature. The court is without authority to make contracts.

This identical clause has been construed by several courts in harmony with the above conclusion. Davidson- v. Insurance Co., 74 N. J. Law, 487 (65 Atl. 996, 13 L. R. A. [N. S.] 884); El Paso Reduction Co. v. Insurance Co. (C. C.), 131 Fed. 937; Schwarzschild, etc., Co. v. Insurance Co., 124 Fed. 52, 59 C. C. A. 572; Insurance Co. v. Brecheisen, 50 Ohio St. 542 (35 N. E. 53); Parsons & Arbaugh v. Insurance Co., 133 Iowa, 532 (110 N. W. 907); Newark Fire Insurance Co. v. Sammons, 11 Ill. App. 230. In Tisdell v. Insurance Co., 155 N. Y. 168 (49 N. E. 664, 40 L. R. A. 765), the contrary view was held by a bare majority of the court. The dissenting opinion, to which attention is directed, was written by Chief Justice Parker, and his reasoning upon the question has been frequently quoted with approval by other courts. In our own court, the cases of McGraw v. Insurance Co., 54 Mich. 145 (19 N. W. 927), and Hillock v. Insurance Co., 54 Mich. 531 (20 N. W. 571), cited by appellee, have no application, for the reason that the policy contract considered in those cases provided that—

“ The companies reserve to themselves the right, at any time and for any cause, to return the assured the unexpired premium pro rata, which shall have the effect to cancel and annul this policy.”

This provision is quite unlike the one here under consideration, and clearly made the return of the premium a ■condition precedent to cancellation.

The motion to direct a verdict in favor of the defendant ■should have been granted. The judgment is reversed, and, inasmuch as the sending and receipt of the notice of cancellation is admitted, no new trial will be ordered.

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


author: Hooker, J.

text:
    ATTORNEY GENERAL, ex rel. GRAVES, v. MAYOR AND COMMON COUNCIL OF THE CITY OF ADRIAN.
    :1. Elections — Municipal Corporations — Cities—Charter Revision.
    Although the highest number of votes cast at a municipal election was 2,749, and the question of charter revision, under Act No. 279, Pub. Acts 1909, received only 1,246 votes in its favor and 1,049 votes against, a majority of the votes cast on the question of revision was sufficient to carry the. proposition.
    ■2. Municipal Corporations — Appropriation—Budget—Statutes —Revision oe Charter.
    In cities which have elected to revise their charters under the statute, it is the duty of the common council to provide, by an appropriation, for the expenses of the charter commission; the provisions of section 19 of said act being mandatory.
    .3. Same — Special Acts — Adrian Charter.
    Since it is provided by general law that the council of such city shall appropriate sufficient funds for the expenses of the ■charter commission, inconsistent provisions of the chartér of the city of Adrian, prohibiting further appropriations after the passage of the annual appropriation bill, must yield to the statutory requirement.
    4. Same — Mandamus—Common Council.
    And mandamus will issue to compel the city council to make such necessary appropriation, after the time fixed by charter for making the appropriation has passed.

      5, Same — Discretionary Action.
    The common council will not be required to adopt a particular resolution, which may not meet with its approval.
    Certiorari to Lenawee; O’Mealey, J.
    Submitted October 1.0, 1910.
    (Calendar No. 24,165.)
    Decided December 30, 1910.
    Mandamus by John E. Bird, attorney general, on the relation of Benjamin F. Graves, against the mayor and common council of the city of Adrian, to require the appropriation of necessary expenses for a charter commission. A denial of the writ is reviewed by relator on certiorari.
    Reversed.

      Smith, Baldwin & Alexander, for appellant.

      James H. Baker, City Attorney, for respondents.
   Hooker, J.

Act No. 279 of the Public Acts of 1909,. entitled, “An act to provide for the incorporation of cities,” etc., contains provisions intended to authorize and prescribe a method whereby charters of cities may be adopted, revised, and amended without further action by the legislature. Revision of its existing charter was attempted by the city of Adrian, and this proceeding by way of mandamus was commenced in the circuit court to compel the mayor and common council to take some of the statutory steps which they had declined to do. The writ having been denied, the cause has been brought to this court by certiorari.

Section 18 of the act provides that—

“When the legislative body shall * .* * declare' for a general revision of the charter, * * * (and) an initiatory petition shall be presented therefor * * * the question * * * shall be submitted to the electors for adoption or rejection * * * (and) in case the electors-shall, by a majority vote, declare in favor of such revision a charter commission shall be selected. * * * ”

Section 19 is as follows:

“Sec. 19. The legislative body of the municipality, unless it is otherwise provided, shall fix in advance of the election of a charter commission the place of its meeting, the compensation of its members, the money for the expense thereof, and, if need be, provide .the ballots for election.”

The question of a general revision was submitted at the annual election held April 4, 1910, and received 1,246 votes in favor of revision and 1,049 against it, a majority of 197 of the vote east upon the proposition, and was so declared upon canvass by the council on April 7, 1910. The highest number of votes cast at such election for any office was 2,749.

The relator’s petition shows that at a regular session of the council he (being an alderman) offered the following resolution:

By Alderman Graves:
Whereas, at the annual election, held in the city on the 4th day of April last past, a resolution of this council submitting to the electors of this city the question of, ‘ Shall there be a general revision of the charter of this city,’ and a vote of the electors having been had thereon at said election, and the same having been carried by a majority of 197, there being 1,246 votes in favor of it, and 1,049 votes against it. Therefore, desiring to carry out the express will of the people of the city, be it resolved, That a special election for this city and the several wards thereof be and the same is hereby called to be held on the first Tuesday succeeding the first Monday in November next, at which time a charter commission shall be elected consisting of three members from the city at large and one member from each of the respective wards, making a total of nine members when elected, shall constitute a charter commission for revising the charter of this city. The qualifications of the members of said charter commission shall be that he is an elector, having a residence of at least three years in this city, and no city officer whether elective or appointive shall be eligible to a place on said commission. The names of all candidates who have been duly nominated as hereinafter provided shall be placed upon a separate ballot at the election designated to be held for the election of a charter commission and without their party affiliations being designated; the candidate having the greatest number of votes in each ward shall be declared elected and the three candidates at large having the greatest number of votes cast in this city at said election shall be declared elected. The nomination and election of the members of such commission, except as herein specified, shall be conducted as near as may be as now provided by law for the nomination and election of city and ward officers in this city. And that the city clerk be and he is hereby instructed to give the proper notice of such election and prepare the necessary number of ballots. The said charter commission when elected shall meet and organize on the second Tuesday after this election at the council room in the city hall of this city, and the members thereof shall each receive the sum of one dollar as their full compensation for their services while revising said charter. To defray the expenses of said charter commission, the sum of $200, deposited with the city treasurer, shall be used to cover all expenses of said charter commission up to the time of its final adjournment. Said charter commission when convened shall immediately proceed to revise the city charter of this city and fix the time when said revised charter shall be submitted to the electors of this city. The common council of this city shall convene on Thursday next succeeding such special election at its usual place of meeting and canvass the vote and determine who have been elected as members of the charter revision commission.”

And that the same was voted upon and was lost by a vote of seven to six, the deciding vote being the mayor’s.

The petition prays a mandamus requiring the mayor and common council to meet, vote upon, and adopt said resolution, at the next regular meeting of the council.

The respondents by answer (1) deny that the measure was carried at the election; (2) admit that prior to offering the resolution relator paid to the city treasurer the sum of $200 to defray the expenses of said charter commission, while it should be in session, etc., which was known to the aldermen at the time of their vote upon said resolution; (3) allege that $200 would be inadequate to cover said expenses, etc., and allege that no estimate of expenses, etc., had been made, as required by sections 270 and 274 of the existing charter, and no fund was available, as provided by sections 272 ¿nd 274*of said charter.

We are of the opinion that a majority of the votes cast for and against revision was sufficient to carry the proposition submitted. The case of Shearer v. Bay County Supervisors, 128 Mich. 552 (87 N. W. 789), is controlling in this cause.

We are also of the opinion that the council had authority to appropriate money for the purposes of section 19, Act No. 279, Pub. Acts 1909. There was ample time to arrange for its inclusion in the September appropriation, and no good reason is shown why it was not done, except that, acting upon the advice of the city attorney, they omitted it from the budget which it was their duty to provide in September.

Counsel for respondents contend that the existing charter forbids an appropriation at this time — citing section 274:

Sec. 274. After the passage of the annual appropriation bill, no further sums shall be used, raised or appropriated; nor shall any further liability be incurred for any purpose, to be paid from any general fund or street district fund, during the fiscal year for which the appropriation was made, unless the proposition to make the appropriation shall be sanctioned by a majority of the electors voting upon the proposition at the next annual city election, or at a special election called for that purpose. But this section shall not prohibit the council from making any necessary repairs, or expenditure at a cost not exceeding ten thousand dollars, the necessity for which is caused by casualty or accident, happening after making the annual appropriation of the year, and from loaning money therefor.”

The act of 1909 is mandatory, and had the vote for revision occurred after the annual appropriation required to be made in September, it would have been the duty of the council, nevertheless, to comply with the provisions of section 19. That section is a general law made applicable to cities, and so far as prior charter provisions are inconsistent with it, they must yield. Monroe Water Co. v. Heath, 115 Mich. 277 (73 N. W. 234); Menominee Water Co. v. City of Menominee, 124 Mich. 386 (83 N. W. 127).

In this case they did not conflict, and the council should have taken steps to make the necessary appropriation, and this they cannot avoid .by omitting it, until after the time fixed by the charter for making the appropriations for the year is past. We have frequently required boards and public officers to act after the time limited for their action had expired, where through contumacy or a mistaken sense of duty, they had refused or omitted to perform statutory duties.

It is contended that section 19 gives the council a discretion as to fixing the date for the election of commissioners, the amount of . their compensation, and the total expenses of the commission. That is doubtless true, within reasonable limits, but in this case there was a refusal to take the action required by law, as appears by the pleading.

So far as the prayer that the council be commanded to adopt relator’s resolution is concerned, it must be denied, for it may not meet the approval of the council, but a writ should issue requiring the council to proceed, at its next regular meeting, in compliance with said section 19. Presumably the course taken by the aldermen was in good faith, and the writ will issue without costs. No constitutional question is raised in this case.

Ostrander, Brooke, Blair, and Stone, JJ., concurred.


text:
    PEOPLE v. DICKERSON.
    1. Constitutional Law — Due Process of Law.
    The constitutional guaranty that no.' person shall be deprived of life, liberty or property, without due process of law, preserves to the people rights which were enjoyed under the common law, and guarantees such exercise of governmental power as is sanctioned by settled maxims of law, under such safeguards for the protection of individual rights as those maxims prescribe.

      2. Same — Departments op Government — Prosecuting Attorney.
    The preparation for and conduct of criminal proceedings by the prosecuting attorney are acts executive and administrative in character.
    3. Same.
    The prosecuting attorney is a constitutional officer whose executive duties may not be conferred by the legislature on the judiciary.
    4. Same — Statutes—Expert and Opinion Evidence — Criminal Law.
    Section 3 of Act No. 175, Pub. Acts 1905, providing for the appointment of expert witnesses by the court in cases of homicide, is unconstitutional, since the act of appointment is in no sense a judicial act, is carried out without notice to respondent or the prosecuting attorney, since the names of the witnesses are not indorsed on the information, and the accused is prevented from knowing the names of witnesses who will testify against him, and since the experts receive a certificate of candor, ability, and truthfulness not given to any other witnesses in the case.
    Error to the recorder’s court of Detroit; Connolly, J.
    Submitted October 21, 1910.
    (Docket No. 149.)
    Decided December 30, 1910.
    Frank M. Dickerson was convicted of the charge of murder.
    Reversed.

      Frederick F¡. McCain, for appellant.

      Ormond F. Hunt, amicus curiae, appointed by trial court.

      Franz C. Kuhn, Attorney General, Philip T. Van Zile, Prosecuting Attorney, and Arthur W. Kilpatrick, Assistant Prosecuting Attorney, for the people.
   Brooke, J.

Respondent was convicted of murder in the recorder’s court for the city of Detroit, and brings his case to this court for review. During the trial, it became apparent that the respondent claimed immunity from punishment because of alleged lack of mental capacity. The court thereupon, acting under the mandate contained in section 3 of Act No. 175 of the Public Acts of 1905, proceeded to appoint two medical experts. The appointment was made known to the jury, and the experts gave testimony. The experts were appointed, and their testimony received, over the objection of respondent, and exceptions were duly taken. The only question raised upon this record is the constitutionality of the act in question, which is as follows:

“ An act to regulate the employment of expert witnesses.
The people of the State of Michigan énact:
“ Section 1. No expert witness shall be paid or receive as compensation in any given case, for his services as such, a sum in excess of the ordinary witness fees provided by law, unless the court before whom such witness is to appear or has appeared awards a larger sum; and any such witness who shall directly or indirectly receive a larger amount than such award, and any person who shall pay such witness a larger sum than such award, shall be guilty of a misdemeanor, and on conviction thereof shall be punished by á fine not exceeding one thousand dollars, or by imprisonment in the county jail not to exceed one year, or both, in the discretion of the court, and may further be punished for contempt.
“Sec. 2. No more than three experts shall be allowed to testify on either side as to the same issue in any given case except in criminal prosecutions for homicide: Provided, the court trying such case may in its discretion permit an additional number of witnesses to testify as experts.
“Sec. 3. In criminal cases for homicide where the issues involve expert knowledge or opinion the court shall appoint one or more suitable disinterested persons, not exceeding three, to investigate such issues and testify at the trial; and the compensation of such person or persons shall be fixed by the court and paid by the county where indictment was found, and the fact that such witness or witnesses have been so appointed shall be made known to the jury. This provision shall not preclude either prosecution or defense from using other expert witnesses at the trial.
‘ ‘ Sec. 4. This act shall not be applicable to witnesses testifying to the established facts or deductions of science, nor to any other specific facts, but only to witnesses testifying to matters of opinion.
“Approved June 7, 1905.”

Sections 1, 2, and 4 of the act are not attacked, and we wish it to be understood that no opinion is hereinafter expressed as to the validity of those sections. Our attention is directed solely to the provisions of section 3, and that section alone will be discussed. The objections urged are set out in the people’s brief as follows:

(1) Is Act No. 175, Pub. Acts 1905, unconstitutional (a) in that it embraces more than one object ? or (b) Is the title to the act sufficiently broad to embrace its object?
(2) Does the act infringe upon the respondent’s right to due process of law, as guaranteed him by the State and Federal Constitutions ?
(3) Does the act violate the provisions of section 16, Art. 2, of the State Constitution ?

"We will consider these objections in their order.

1. The title of the act is: “An act to regulate the employment of expert witnesses.” It will be noted that this title is extremely simple, general, and comprehensive. The word “regulate” has frequently received judicial interpretation, and under that term very broad powers have been exercised. Westgate v. Township of Adrian, 161 Mich. 333 (126 N. W. 422), and cases cited. But it is urged that the term, broad as it is, must have reference only to something which has theretofore existed — that it imparts no power of creation. It is further argued that section 3 delegates to the judicial department of government a new and incongruous power, and in effect creates a new class of witnesses — that this is in no sense regulation. In view of what we shall have to say later concerning the provisions of this section, we find it unnecessary to determine whether or not this contention of the respondent is correct.

2. Section 16 of article 2 of the Constitution of 1909 [section 32, Art. 6, Const, of 1850], among other things, provides:

“No person shall * * * be deprived of life, liberty or property without due process of law.”
“Due process of law ” has been variously defined. Mr. Cooley in his work on Constitutional Limitations (7th Ed. p. 502) adopts the definition given by Daniel Webster in the Dartmouth College Case, 4 Wheat. (U. S.) 519, as follows:
“By the law of the land is most clearly intended the general law, a law which hears before it condemns; which proceeds upon inquiry and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not, therefore, to be considered the law of the land.”

This provision of the Constitution has been frequently discussed in the decisions of this court. Among those may be cited the following: Parsons v. Russell, 11 Mich. 113 (83 Am. Dec. 728); Hamilton v. People, 29 Mich. 173; Weimer v. Bunbury, 30 Mich. 201; Swart v. Kimball, 43 Mich. 443 (5 N. W. 635); Risser v. Hoyt, 53 Mich. 185 (18 N. W. 611); People v. Harding, 53 Mich. 481 (19 N. W. 155); In re Cox, 129 Mich. 635 (89 N. W. 440). See, also, Den v. Improvement Co., 18 How. (U. S.) 272; 8 Cyc. p. 1080 et seq., and cases there cited. From an examination of the authorities, it is apparent that this constitutional guaranty simply preserves to the people rights which had existed for centuries, and which had been enjoyed according to the course of the common law. It means such an exercise of governmental power as is sanctioned by settled maxims of law, under such safeguards for the protection of individual rights as those maxims prescribed. It becomes pertinent, therefore, to ascertain what settled maxims and safeguards — what “general rules which govern society” — are applicable to a criminal prosecution such as is here under consideration. Wherever the common law is in force, the parties to a criminal action have been, upon the one side, the crown or the people, and upon the other, the accused. In England and her colonies, the crown is represented by an official duly appointed by it, whose duty it is to prosecute. In this country, the duties of this official have been assumed and discharged by the prosecuting attorney, who is, himself, a constitutional officer. Const, of 1909, Art. 8, § 3 [Const, of 1850, Art. 10, § 3]. From the foundation of our government, it has been the duty of the prosecuting attorney to prepare the case for the people. He, and he alone, must determine what witnesses shall be sworn to establish the case he presents. In case of disability or the necessity for assistance, the statute provides for substitution or assistance as the case may be, upon proper application, but the principle of responsibility remains the same, though the service may, by reason of necessity, be temporarily performed by one clothed with statutory authority. See Wigmore on Evidence, §§ 1286 and 2483. We think it clear that the preparation for and conduct of the trial on behalf of the people are acts executive and administrative in character. Under our Constitution, which jealously separates the powers of government into legislative, executive, .and judicial departments, the powers and duties properly belonging to one department cannot by statutory enactment be granted to or imposed upon another department. Houseman v. Kent Circuit Judge, 58 Mich. 364 (25 N. W. 369); Locke v. Speed, 62 Mich. 408 (28 N. W. 917); City of Manistee v. Harley, 79 Mich. 238 (44 N. W. 603); Allen v. Board of State Auditors, 122 Mich. 324 (81 N. W. 113, 47 L. R. A. 117, 80 Am. St. Rep. 573).

The power of selecting and appointing witnesses who shall, after appointment, acquaint themselves with the matter in controversy, and testify concerning the same, is in no sense a judicial act, and, if exercised by the court in accordance with the mandate of section 3, would entirely change the character of criminal procedure, and would seriously endanger, if not absolutely destroy, those safeguards which our Constitution has so carefully enacted for the protection of the accused. The most cursory examination of section 3 will disclose its vice. The court is directed to appoint one or more suitable, disinterested persons to investigate and testify. This appointment is to be made without notice to either the prosecuting attorney or the accused. The reasons which impel the court to make the selection are not of record and can never be known. The names of the selected experts cannot be indorsed upon the indictment by the prosecuting attorney as required by law, for he himself is as ignorant of their identity as is the accused. The right of one accused of crime to know in advance the names of the witnesses who will testify against him and to examine into their character, means of knowledge, etc., in order that he may properly prepare his defense, is a right as ancient as our criminal jurisprudence. The court is commanded to make known to the jury the fact of the appointment, and that his appointees have been found by him to be suitable and disinterested. The section then provides that other experts may be sworn by either prosecution or defense. This is an idle provision, for in the face of the certificate of character, fitness, and ability given to the court experts by the court, experts summoned by either side would receive but scant consideration at the hands of the jury; their testimony would be swept aside in a breath. Juries are most anxious to ascertain the opinion of the court as to the guilt or innocence of the accused, and, ordinarily, more than willing to adopt that opinion as their own. Trial courts, therefore, in doubtful cases, have, jealously guarded their own opinions in order that juries might determine controlling facts uninfluenced by the mental attitude of the judge.

The expert witnesses provided for by this section testify under a sanction which gives to their testimony practically the same weight as if it were delivered by the court itself, and if that testimony, being against the accused, were either wilfully false or ignorantly mistaken, its baneful results would be appalling. To give to the testimony of a witness or witnesses this extraordinary certificate of candor, ability, and truthfulness, while the other testimony in the case must be judged by the jury by ordinary standards, is to subvert the very foundations of justice. In People v. Vanderhoof, 71 Mich. 158 (39 N. W. 28), this court said:

“The charge of the court virtually put the evidence of these doctors and professors upon a higher plane than the other testimony, which was manifestly wrong.”

In People v. Seaman, 107 Mich. 348 (65 N. W. 203, 61 Am. St. Rep. 326), the following language is used:

“An expert witness is to be judged from the same standpoint as any other witness.”

In People v. Holmes, 111 Mich. 364 (69 N. W. 501), we said:

“When the question of insanity is to be submitted to the jury, the testimony which is offered to support the claim should be treated with the same respect as that offered to establish any other fact.”

We do not overlook the fact that the statute here considered was designed to correct an evil long recognized as tending to bring the administration of the criminal law into disrepute, in cases where insanity is urged as a defense, but we are of opinion that the true remedy for this evil rests in the development of a livelier sense of responsibility to the public for the proper and decent administration of justice on the part of both the legal and medical professions, rather than in revolutionary legislation. That both professions recognize and deplore the existence of the evil, there can be no doubt, and recent activities in both lend reason for hoping that the scandal which has often attended the introduction of expert testimony will, in the future, cease to be a reproach in the administration of criminal law.

In view of our conclusions upon the second point discussed above, it is unnecessary to give attention to the third ground urged. We must hold section 8 unconstitutional.

The judgment is reversed, and the respondent remanded to the custody of the sheriff of the county of Wayne, to be tried again.

Hooker, Moore, McAlvay, and Blair, JJ., concurred.


author: Moore,. J.

text:
    PEOPLE v. SLATER.
    1. Intoxicating Liquors — Local Option — Prohibition — Statutes.
    The local-option law does not prohibit the individual use of in. toxicating liquors or prevent the decent exercise of hospitality of the host towards guests in his home; but it is intended to prohibit all traffic in liquors.
    3. Same — Guests—Furnishing Liquors in Home.
    Whether or not the act of respondent, who permitted a friend to drink from a bottle of whisky in his room, without express invitation, was an honest act of hospitality to a guest, was a question of fact for the jury, under evidence from which different inferences might properly be drawn.
    3. Criminal Law — Trial — Intoxicating Liquors — Directing Verdict.
    In a prosecution for unlawfully furnishing intoxicating liquor to a person in a local-option county, the attorney for respondent did not waive his right to insist tha't questions of fact be submitted to the jury, by contending that the court should direct a verdict in his favor.
    Exceptions before sentence from Clinton; Searl, J.
    Submitted October 31, 1910.
    (Docket No. 152.)
    Decided December 30, 1910.

      Frank Slater was convicted of violating the local-option law.
    Reversed.

      Edward J. Moinet, Prosecuting Attorney, for the people.

      Walbridge & Kelley, for respondent.
   Moore,. J.

The respondent is charged with a violation of the local-option law. At the close of the testimony offered by the people, his counsel asked the court to direct a verdict of acquittal. The judge said he would overrule the motion for the present, but would hear counsel at the close of all' the testimony. Testimony was then introduced on the part of the respondent. At the close of all the testimony, in response to an inquiry by the judge, counsel on both sides said they regarded it as the duty of the judge to direct a verdict. The judge instructed the jury, in substance, that it was their duty, under the evidence, to convict the respondent. The jury retired to the jury room and after a time returned a verdict of guilty. The case is here upon exceptions before sentence.

Counsel for respondent make two claims, first, that a verdict of acquittal should have been directed in favor of respondent; citing the cases of People v. Peterson, 156 Mich. 235 (120 N. W. 570, 21 L. R. A. [N. S.] 134), and People v. Bedell, 162 Mich. 230 (127 N. W. 33).

The second contention is (we quote from the brief):

“ The second point in this case is that if the Supreme Court should hold that the trial court was justified in refusing to direct a verdict in respondent’s favor, he still had the right to have his case passed upon by the jury, because the matter of his intent was involved. The charge of the court was faulty in not presenting to the jury the question whether respondent was acting in good faith or attempting and intending to evade the law. People v. Bedell, 162 Mich. 230 (127 N. W. 33); People v. Peterson, 156 Mich. 235 (120 N. W. 570, 21 L. R. A. [N. S.] 134); People v. Neumann, 85 Mich. 98-104 (48 N. W. 290). There was no material dispute upon what took place in respondent’s room, and the only question left was whether respondent’s acts constituted a violation.”

It is apparent that a comparatively full statement of the testimony is necessary to a determination of the questions presented. Mr. Keyes testified:

“That he was 54 years of age; that hoth witness and respondent had resided at said city of St. Johns for a number of years; and that they were both painters and paper hangers by trade, and had been acquainted and on friendly terms for about 30 years.”

On the day in question, the witness testified:

“I don’t know when I had seen Slater before then. I seen him about Fair time, and I probably might have seen him before that.
“Q. Just tell the jury how you came to meet him down there on Clinton avenue.
“A. Well, sir, I came down Clinton avenue on Sunday between 8 and 9 o’clock in the morning and met him down there in front of the Kenyon Block. No one else was present that I know of.
“Q. Well, what conversation did you have there with him at that time ?
"A. We was talking about going away.- I told him I was going away to look for a job, and he said if I would wait a week or two he could go with me. * * *
“Q. What .talk did you have about going up to his room, if anything ?
“A. Nothing in particular, only he said something about going up, and I went up with him. He said, ‘ We will go up to the room and have a talk,’ something to that effect. When I got up to his room I took a chair and sat down.
“Q. What did he do ?
“J.. Well, sir, he unlocked his trunk, and got out a little booze — whisky. It was in a quart bottle I should judge, and was about two-thirds full. He said he got it to Owosso the Saturday before.
Q. What did he do with the bottle when he took it out of the trunk ?
“A. He set it upon the stand. The stand set right in front of me. I sat down by the stand.
“Q. What did you do f
“A. I took a drink. I think maybe he took one. There was whisky in the bottle.”

Slater and witness remained there probably an hour and one-half.

“Q. I ask you whether or not you had anymore drinks out of that bottle ?

“A. I took a few, probably five or six; Slater might have taken one or two more. There might have been two or three inches of whisky left in the bottle when I left the room — that is my judgment. I felt the whisky that I drank there, and it caused me to become intoxicated at that time * * * We did not have a meal or anything to eat there at that time. There was a stand and bed, chairs, and trunk in the room. There were no cooking utensils of any kind that I noticed. * * * None of the liquor I had there was mine. I had not had any liquor that morning prior to meeting Slater and going up to his room. I was sober when I went up there. I had seen him in that room before. I probably had five or six drinks of liquor out of that bottle that morning when I went out of the room. I went down stairs; nobody went with me. I don’t know where Slater went; he was in the room when I left. I went out of the room and downstairs on the street — in front of the Kenyon Block. I was intoxicated at the time I got down on the street, on Clinton avenue.”

His cross-examination did not differ materially from his direct examination, except as follows:

“He did not ask me to have a drink of whisky. He said he had a little something to drink, and he*got it and sat it up on the stand, and I helped myself.
“Q. When did he say that ?
“A. When we was upstairs, after we had gotten into the room.
Q. When is it you claim when he said something about having a little whisky or something to that effect ?
“A. It was after we were up in the room, I guess it was after he went to the trunk; it was after he got it out of the trunk and set it on the stand.
“Q. After that, every time you wanted a drink, you took it ?
“A. Yes, sir.
“Q. Without any invitation from Mr. Slater or anything being said about it ?
“A. Yes, sir.
“Q. Now, I ask you, Mr. Keyes, if, during the time you were there after you had gotten upstairs, Mr. Slater asked you or invited you by word of mouth to take any whisky ?
“A. No; he didn’t ask me personally to take a drink ?”

On redirect examination the witness testified that respondent did not make any objection to witness drinking out of the bottle.

“Q. And at times I asked you whether or not, when you took a drink, Slater would drink following you ?

“A. Yes, sir; when I left the room finally the bottle was on the stand.”

George Tinkham, city marshal, testified that on the day in question he saw Keyes in front of the Kenyon Block. He came out of the stairway out of the Kenyon building.

“I have been upstairs on the second floor and know where Slater had a room up there. This stairway led down on the street from where this room was located. When I first noticed Keyes he stepped out of the stairway and commenced to stagger, and he started south staggering along on the walk until he came to the railing around the entrance to the cellar in front of the Little building and he got hold of that.”

The respondent was a witness in his own behalf. He testified in part as follows:

“That he was 40 years of age, and was a painter and paper hanger by trade; that he had been engaged in that business at St. Johns for 16 years, where he had lived all his life; that he had been and was on friendly terms with Aretus Keyes, and had worked with him at various intervals; that on the day in question he had a stopping place at St. Johns, which was the room in the Kenyon Block over Willoughby’s restaurant, where he stopped while in St. Johns since the 12th day of August up to October 24, 1909; that he kept his clothing and personal effects in that room; that prior to October 24th he had been working at Fowler at his trade continuously for about 9 weeks; that he came to St. Johns every Saturday night and occupied this room; that he had no other stopping place in St. Johns on October 24, 1909; that he had no other home, and that St. Johns was his residence; that while standing on the sidewalk in front of the Kenyon Block on the day in question Keyes came up, and they engaged in conversation; that Keyes wanted to know how he was getting along at Fowler, and that respondent told’ him he would be through in a couple of weeks. * * *
“Q. To refresh your recollection did you say anything to him about coming up stairs ?
"A. No, sir; I spoke that I was going upstairs, and I says, I will have to go upstairs, I have got some letters to write.’ He didn’t say anything only he followed along up. When they got into the room respondent unlocked his trunk, got out some stationery and put it on the commode. Keyes sat down in a chair. That there was a bottle of whisky in the room on that day between the trunk and the commode, and that it was there before the trunk was opened and sat on the floor.
, “Q. After you got the stationery and put it on the commode, what happened, if anything ?
“A. Not anything; I shut the trunk down and sat on the trunk, and we sat there talking. That respondent had not put his hands upon the bottle or said anything about it up to this time; that Keyes moved his position from where he sat on the chair, and sat down on the window stool, where he could see the bottle sitting at the end of the trunk. After doing this he got up and went over and said, 'What is this ? ’ Then he took a drink from the bottle, and set it down upon the commode; that up to that time respondent had not said anything about the bottle; that Keyes did this after respondent took the stationery out of the trunk.
“Q. And did Keyes help himself to that bottle further during that time ?
“A. He did.
“Q. Did you drink some of it ?
I did.
“Q. How many times did you, do you recall ?
“A. I drank twice.
“Q. Do you recall how many times Keyes drank from it?
“A. No, sir; I don’t.
“Q. Did you ask or invite Keyes by word of mouth to take any liquor from the bottle ?
“A. No, sir.
“Q. Nothing was said about having a drink or having liquor when you went up stairs ?
“A. No, sir.”

On cross-examination respondent testified :

“Q. How many times have you been arrested, Mr. Slater ?
“A. I don’t remember; I think it is five times. That the first time was about 13 years ago for getting drunk— that he pleaded guilty; that about a year after that time he was arrested on a drunk and disorderly charge, pleaded guilty and paid his fine; that perhaps four or five years later he was arrested for being drunk and disorderly, pleaded guilty, paid his fine; that after that in the year of 1908 he was arrested for being drunk and disorderly, charged as a second offense, and that he paid his fine; that in the summer of 1909 he was arrested for violating the local-option law, pleaded guilty, and served time in the county jail.”

The respondent further testified, on cross-examination:

“Q. Did you change your residence from St. Johns shortly after the 34th day of October, 1909 ?
“A. Yes, sir.
“Q. Where did you go ?
“A. Detroit; I went from Fowler to Portland, and from Portland to Detroit. * * *
"Q. How did you go from Fowler to Portland ?
“A. I walked the most of the way.
"Q. You left Fowler when you heard a warrant had been issued for you ?
“A. Yes, sir; and walked from there to Portland.
* * *
“Q. Where were you the day before the 34th of October last ?
“A. Owosso; I went down there to get something to drink; I got a quart of whisky there.
“Q. Anything else ?
“A. No, sir..
“Q. Did you get some beer ?
“A. Yes.
“Q. I think you said a moment ago you didn’t get anything else ?
“A. I didn’t think of the beer at that time.' I got three pint bottles of beer and a quart of whisky, and brought it back to St. Johns, and took it to my room in the Willoughby boarding house. I drank the beer that night and quite a lot of the whisky, better than one-third of it. There was about two-thirds of the whisky left in the bottle the next morning. * * *
“Q. What did you leave Fowler for and go over to Westphalia and from there to Portland and from Portland to Detroit ?
“A. Because I knew this warrant was out for me on this local option.
“Q. For furnishing liquor to Aretus Keyes?
“A. For this violation, yes. I simply ducked.”

On cross-examination the witness further testified:

“ It was somewhere around 9 o’clock that morning I met Keyes down on the street. We stood at the foot of the stairs talking. I says, ‘ I have got to go up and do some writing.’ I started up, and he followed me up the stairs, and I didn’t ask him to come along up, and he had never been up to my room before. We had been talking in the neighborhood of 10 minutes before we started upstairs. I unlocked the door, and when I got in there I went to the trunk and opened it and took out some stationery. I had not had a drink out of the bottle that morning. I took the last drink out of it the night before and about two-thirds remained in the bottle at that time. * * * That when Keyes saw the bottle he took a drink out of it and put it down on the commode, and that about 15 minutes after respondent took a drink from the bottle; that when respondent took a drink he set the bottle on the floor; that Keyes then took it and drank and set it on the commode; that respondent took another drink and set it down on the floor.
“Q. Bight down in front of Rete ?
“A. No; at the end of the trunk where he was sitting.
“Q. What did you set it back there for ?
“A. I don’t know why, but I did.
“Q. Were you afraid somebody would come in ?
“A. Yes, sir.
"Q. Was your door locked ?
“A. Yes, sir.
“Q. What did you lock that door for if Rete was only going up there to see you write a few letters ?
“A. I don’t know why; I always do when I go in there.
* * *
“Q. You were willing that he might have that whisky, weren’t you ?
“A. Why, yes, I think so.
Q- And he picked it up and took a drink, and what ■ did he do with the bottle?
“A. He set it on the commode; then I took it up. That there was no cork in the bottle it having been destroyed the night before. I picked the bottle up and took a drink myself, and set it down to the end of the trunk.
Q. Why didn’t you hand it to Rete ?
“A. I didn’t.
“ Q. He was an old friend of yours, wasn’t he ?
“A. Yes, sir.
Q. You and he were drinking .there together?
“A. Yes, sir.
“ Q. It was your whisky ?
“A. Yes, sir.
“ Q. You were in your room ?
“A. Yes, sir.
Q. Why didn’t you hand him the bottle ?
“A. I don’t know.
Q. Did you think you were not furnishing him that liquor if you would set that bottle by the trunk again ?
“A. No; I was not furnishing it. * * *
“ Q. How long was it before he went down ?
“A. I don’t know; I went into the closet maybe seven or eight minutes, when I came back Rete was gone. He was just coming out of the room when I came back. I think he was not under the influence of liquor to any extent at that time — that is, he didn’t show it.
Q. He didn’t show it at all ?
A. Only by his talk; he didn’t stagger at all. I think he went right down stairs from my room out on the street. After Rete went out I wrote a letter. After that I went over to the hotel for dinner. * * *
“Q. Now, Mr. Slater, if Rete Keyes had forced himself up there into your room and walked over there in the corner of the room and drank your whisky and you had absolutely nothing to do with furnishing that liquor, what did you dig out for ?
“A. Simply because I had served one spell up here, and I didn’t want any more.
"Q. Do you know you were not guilty of doing anything if that was all you done ?
“A. I was guilty of having the liquor in my room.
“Q. Do you claim you did not furnish it to him at all ? What made you dig out for if that was it ?
"A. I don’t know that I did furnish it to him; it was there.”

It is very apparent, from the testimony of Mr. Keyes and the respondent, that both desired the court and jury to understand that Mr. Keyes did not go to the . respondent’s room by his invitation, and that he did not, because of respondent’s invitation, partake of any of the large quantity of whisky which he imbibed between the time he entered respondent’s room sober and the hour and a half later, when he staggered out of the stairway upon the public street, drunk. In a case where liquor was furnished by the hotel clerk to the dining room girls in the room of one of them for social purposes, Justice Blair, in the opinion of the court, used the following language:

“ The local-option law was intended, in my opinion, not only to wipe the business out of existence in the county, but to prevent the inhabitants of the county from obtaining liquor within the county. For the latter purpose, the act prohibits any person from giving away intoxicating liquor, and thereby heads off the numerous subterfuges which would interfere with the enforcement of the law. We have held that the statute was not intended to prohibit the individual use of intoxicating liquors, nor to invade the privacy of the home and interfere with the owner’s decent exercise of hospitality towards his guests, but we do not think the terms of the act warrant a further limitation of its operation.” People v. Myers, 161 Mich. 40 (125 N. W. 701).

See People v. McCall, 161 Mich. 674 (126 N. W. 1052). In People v. Peterson, 156 Mich. 235 (120 N. W. 570, 21 L. R. A. [N. S.] 134), Justice Ostrander, speaking for the court, said:

The object of the act is to prohibit the manufacture of, and all traffic in, liquors. It cannot be reasonably construed so as to apply to the individual use, or the keeping for use, of liquors by citizens. Whether an individual might, even in his own house, dispense liquors purchased and kept for his own use, in such manner as to make his conduct obnoxious to the law, is a question not presented.”

See People v. Giddings, 159 Mich. 523 (124 N. W. 546). In a concurring opinion by Justice Ostrander, in People v. Bedell, 162 Mich. 230 (127 N. W. 33), he used the following language:

"But I think it proper to say that in my opinion the rooms occupied by an unmarried man may be considered to be his home, in which, in a proper manner, he may be host to a friend or to friends. If the testimony were less conclusive in establishing the fact that this respondent, on this occasion, was permitting others to use his rooms for the purpose of drinking, not only his beer, but the whisky of another, I should regard the charge as faulty in not presenting to the jury the question whether the respondent was acting in good faith and exercising a decent hospitality. Former decisions of this court, which are referred to in the opinion of Mr. Justice Moore, recognize the distinction here pointed out.”

It is apparent, under these decisions, that the important question in the case is whether what was done by respondent was an honest act of hospitality to a guest, without an intention to evade the law, or the contrary. There was testimony from which either inference might be drawn, making it a proper question for the jury.

It is contended the right to have the question submitted to the jury was waived, when counsel for respondent insisted the judge should direct a verdict in his favor. We do not think, because of this position, counsel waived the other point in case the judge found against him upon his contention.

The verdict is set aside, and a new trial ordered.

Hooker, Brooke, and McAlvay, JJ., concurred with Moore, J. Blair, J., concurred in the result.


author: McAlvay, J.

text:
      In re REIDY’S ESTATE. SHATTUCK v. WATSON.
    1. Estates of Decedents — Executors and Administrators — Title to Personal Property.
    Title to personal property of a decedent, testate or intestate, vests in the executor or administrator, until the estate is fully settled and distributed, or until he parts with title.
    2. Same — Claims—Expenses of Administration.
    In the absence of a special contract by the wife and sole legatee of decedent, to pay for services of a clerk or manager in running the drug store of deceased, such services constitute a claim against the estate of the husband, and are not a claim against the wife’s estate; even though she conducted the business on behalf of her estate and with the consent of his administrator, who charged purchases and other disbursements in connection with the business to the estate.
    3. Druggists — Pharmacists—Statutes.
    Within the meaning of the pharmacy law (2 Comp. Laws, § 5303 et seq., as amended by Act No. 332, Pub. Acts. 1905), a person in charge of a country store, where drugs and other merchandise are retailed, is required to be a registered pharmacist, although the stock of drugs is small and the sales few.
    4. Same — Contracts—Illegality.
    And a person, not a registered pharmacist, may not recover for services rendered a decedent in conducting such drug business, since a contract founded on an act prohibited by statute, under penalty, is void, although not expressly declared by the law to be invalid.
    Error to Shiawassee; Miner, J.
    Submitted October 21, 1910.
    (Docket No. 51.)
    Decided December 30, 1910.
    George O. Shattuck presented a claim against the estate of Emma Reidy, deceased, which was disallowed by the commissioners on claims. Claimant appealed to the circuit court where judgment was rendered for claimant.

      John A. Watson, administrator of said estate, brings error.
    Reversed, and no new trial ordered.

      Franz O. Kuhn, Attorney General, and J. Bhurly Kennary, Assistant Attorney General, for appellant.

      Austin F. Richards and W, J. Parker, for appellee.
   McAlvay, J.

Emma Reidy died intestate December 26, 1908, leaving an estate the amount of which does not appear from the record. She left no heirs, and the estate escheats to the State of Michigan. This estate, or a considerable part of it, came to her through the will of her husband, Michael Reidy, who died March 20, 1907, leaving his wife sole devisee and legatee under his will. On July, 18, 1907, the Old Corunna State Savings Bank, a creditor, caused a petition to be filed asking for a special administrator for the estate of Michael Reidy, for the reason:

“ That said estate consists largely of a stock of drugs, drug business fixtures, etc., and needs the immediate care and attention of some proper person authorized by law to look after, care, and preserve the same, and without such attention and care, petitioner fears there will be waste and loss which may result to the injury of the creditors of said estate.”

Upon this petition William J. Parker was appointed special administrator July 18, 1907. On the next day a will was produced and filed for probate. It was duly probated, and on August 19th, following, William Curry was appointed administrator with the will annexed of the estate of Michael Reidy, deceased. All of the records of the probate court are not printed in this record; but it appears that the personal estate which came into his hands, consisting largely of a stock of drugs, sundries, and store furniture and fixtures, was duly inventoried. The estate was administered by him, and his final account was allowed by the probate court June 5, 1908. In this final account it appears that he charged himself as follows:

To the value of the personal estate as per inventory. $1,600 87 To income and receipts from sales of merchandise- 806 94
Total receipts........................$1,907 81

Among other items he claimed credit for and was allowed is the following:

By paid claims against said estate for merchandise current hills..........-........................--$128 18

Along with said final account, among other receipts considered with it, was filed the following:

“Corunna, Michigan, May 28, 1908.
“ Received of William Curry, administrator of the estate of Michael Reidy, all goods, chattels, stock in Corunna Furniture Co., and all other property belonging to or remaining in said estate. I hereby consent that he may be discharged as such administrator.
“Emma Reidy.”

After the death of Emma Reidy, and while her estate was in course of administration, there was filed with the commissioners on claims, by the claimant in this case, the following claim:

Emma Reidy Estate,
To George O. Shattuck, Dr.
To services from March 22, 1907, to June 28,1908, 66 weeks, at $9.00__________________________________$594 00
Prom June 28, 1908, to December 26, 1908, 26 weeks, at $5.00 ..........-.............................. 180 00
Corunna, June 29, 1909. $724 00

This claim was disallowed by the commissioners. Claimant appealed to the circuit court, where he recovered a judgment for the full amount claimed. A motion for a new trial was made and denied. A reversal is asked in this court by the administrator on account of errors assigned. In the consideration of these errors, such further facts contained in this record as may be necessary will be stated.

The first item of this claim covers practically the time ■between Michael Reidy’s death and the closing of his estate, and during this time claimant testifies that he devoted his entire time to the business conducted in this store.

Appellant contends that claimant cannot recover against intestate’s estate for the first item of his claim for services, for the reason that such services were rendered the estate of Michael Reidy, and might be a proper charge against that estate, and could not be made against the estate of Emma Reidy, except under an express contract.

The first proposition is answered by claimant, by insisting that this personal property was, after the death of her husband, the property of Emma Reidy, and remained continuously in her possession and under her control. The record shows that Mrs. Reidy, after Mr. Reidy’s death, by permission of the administrator, conducted tbla business; but it does not show that it was conducted as the business of Mrs. Reidy. It appears without dispute that the income and receipts from sales in this business were accounted for by the administrator; that he claimed and was allowed the current bills for merchandise and other expenses and charges paid by him, including taxes. The testimony of the administrator is that these current bills for merchandise represented purchases of stock made by Mr. Reidy and put in the store.

The general rule is that title to personal property of a decedent, testate or intestate, vests in the personal representative until administration is completed and the estate is fully settled and distributed, or until he chooses or is forced to part with it earlier. 18 Cyc. p. 353, and cases cited. This rule had been recognized in this State and in intestate cases has always been followed. Cullen v. O'Hara, 4 Mich. 138; Miller v. Clark, 56 Mich. 341 (23 N. W. 35); Parks v. Norris, 101 Mich. 76, 77 (59 N. W. 428). The record shows that the administrator did not part with this property until he received the receipt of Mrs. Reidy accepting the same upon closing the estate. Wheeler v. Hathaway, 54 Mich., at page 549 (20 N. W. 579). Claimant’s demand for the first charge of his bill in this case should have been presented against the estate of Michael Reidy, unless the record shows a contract on the part of Mrs. Reidy intending to bind her separate estate for such services. The evidence does not establish such a contract. It is not sufficient in this case to prove that claimant rendered services which might support an implied contract. It must show a special contract with Mrs. Reidy. It is not a question of a dispute in the testimony upon the contract, but the absence of testimony showing such contract. This question was presented upon the motion for a new trial and in an exception to the charge which submitted the question. There was no evidence of such a contract. The court was in error in submitting the question to the jury.

Appellant claims that claimant cannot recover against the estate of Mrs. Reidy upon the second item of his claim because the services for which he makes claim were performed by him while he was in charge of a drug store, and engaged in the business of selling drugs contrary to the provisions of the pharmacy law of this State. It is admitted that at the time in question claimant was not registered and licensed under this law, but the contention on his part is that he was not within the prohibition of the law for the reasons:

(а) That he was not in charge of a drug store.
(б) That he was not in charge of the sale of drugs, medicines, or poisons.
(c) That he was not employed in dispensing, compounding, or retailing of drugs, medicines, or poisons.

This statute (Act No. 134, Pub. Acts 1885, 2 Comp. Laws, § 5304 et seq.) as amended by Act No. 332, Pub. Acts 1905, defines a "pharmacy ” or drug store ” as follows:

“ Sec. 8. Prom and after the taking effect of this act, every place in which drugs, medicines or poisons are retailed or dispensed or physicians’ prescriptions compounded, shall be deemed a pharmacy or drug store, and the same shall be in charge of and under the supervision of a registered pharmacist, and subject to the provisions of this act.”

All of the testimony upon ■ this subject describes this store as a drug store within the above definition. There is no dispute but that drugs, medicines, and poisons were retailed there; that claimant was practically in sole charge. Sales of drugs were proved to have been made by him, and, in cases where the local physician helped himself to such medicines or poisons as he needed at the prescription case, claimant always received the pay therefor. There is no dispute but that he was in charge of this place of business. The claim is that he was not in charge of that part under the prohibition of this law. The record without dispute shows that he weighed and measured drugs which were being sold at retail in this place. Section 14 of this act provides:

“It shall be unlawful for any one but a registered pharmacist, under this act, * * * to have charge of, engage in or carry on for himself or for another, the dispensing, compounding, or sale of drugs, medicines or poisons, any where within the State.”

Section 15 has the further provision:

“ Except as prescribed by the provisions of this act, it shall not be lawful for any person * * * to engage in, conduct, carry on or be employed in the dispensing, compounding or retailing of drugs, medicines or poisons within this State.”

Section 32 makes a violation of any of the provisions of this act a misdemeanor, and, upon conviction, subject to a penalty not to exceed $100 or imprisonment in jail not to exceed 90 days, or both, in the discretion of the court. Such legislation has been enacted to protect the lives and health of the inhabitants of the State, and is not only proper but actually necessary. No question is raised as to the validity or the constitutionality of this law. In the performance of these services claimant was engaged in doing things prohibited by this statute. In applying this law to a specific case, the fact that the stock of drugs and sundries amounted to but $600, and that the sales were not many or large, cannot be considered. The law includes all drug stores and all unlawful sales of the prohibited articles. In the performance of those services for which claimant recovered against the estate of Emma Reidy, he was engaged in performing acts prohibited by this statute, and he cannot recover.

It is a well-settled principle of law that all contracts which are founded on an act prohibited by a statute under a penalty are void, although not expressly declared to be so. O'Donnell v. Sweeney, 5 Ala. 467 (39 Am. Dec. 336). The same principle has been recognized by this court. Niagara Falls Brewing Co. v. Wall, 98 Mich. 158 (57 N. W. 99), and cases cited.

The court was in error in denying appellant’s motion to take the case from the jury for the reasons above stated. An instruction should have been given that no recovery could be had.

The judgment of the circuit court is reversed, and, because in this case a new trial cannot affect the result here determined, a judgment for appellant will be entered in this court against claimant, without costs.

Hooker, Moore, Brooke, and Blair, JJ., concurred.


text:
    WENDT v. VILLAGE OF RICHMOND.
    1. Trial — Directing Verdict — Villages.
    In an action against a village for constructing open ditches and permitting sewage to collect in them in the vicinity of plaintiff’s home, producing sickness, etc., it was proper to submit to the jury, on conflicting testimony, the question whether or not plaintiff’s sickness was caused by the neglect of defendant.

      2. Same — Weight of Evidence — New Trial.
    The court properly refused to charge the jury, as requested by defendant, that the weight of evidence was so overwhelming in defendant’s favor that the court would be compelled to set aside a verdict for plaintiff and grant a new trial.
    3. Same — Request to Charge.
    Nor did the court err in refusing a request to charge the jury that the defendant was not chargeable with notice of the alleged nuisance until after the damage had been suffered.
    4. Trial — Motion for New Trial — Weight of Evidence.

      Held, that the verdict was not against the weight of the evidence.
    5. Same.
    A new trial should not be granted for failure to be sufficiently specific in instructing the jury, when no requests were offered by appellant on the point raised.
    6. Same — Requests to Charge — Defendant’s Claim.
    It was not error to refuse a very lengthy statement of defendant's claim, contained in a request to charge, which included disputed statements of fact and argumentative claims.
    7. Contributory Negligence — Nuisance—Drains and Sewers.
    A request to charge that plaintiff could not recover if her injury was caused by her own fault or want of reasonable care, was sufficiently covered by a charge that if the unsanitary condition of plaintiff’s premises materially contributed to her injury, she could not recover.
    8. Nuisance — Notice—Charge to Jury.
    Instructions to the jury were proper, that if the village knew of any improper condition as to its drains, claimed by plaintiff to have existed, or received information of it through its officers, so that the fact was brought home to the municipality, the notice was sufficient.
    Error to Macomb; Erskine, J.
    Submitted October 26, 1910.
    (Docket No. 122.)
    Decided December 30, 1910.
    Case by Emma Wendt against the village of Richmond for negligent maintenance of a defective drainage system. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Warren S. Stone (James G. Tucker, of counsel), for appellant.

      William T. Kelly (John A. Weeks, of counsel), for appellee.
   Hooker, J.

The defendant, a small village, has appealed from a verdict and judgment of $1,500, recovered by the plaintiff in an action for injury to her health. She charges that ditches or drains within the village, and made by the village, were allowed to collect filth from sinks, water-closets, etc., and discharge the same into other open drains, thereby causing the refuse to be conveyed to a ditch in front of her home, to which there was no adequate outlet, where it remained, giving off foul smells and malaria, causing her illness and discomfort. The defendant denied that it had done more than to construct highway or street ditches to carry off surface water, and alleged that it had never authorized or knowingly permitted any one to discharge slops or any kind of filth into said ditches. It also denied any knowledge or notice of the condition stated by plaintiff, and claimed that if plaintiff suffered any injury, it was due to the condition of her own premises, and the act of a neighbor in draining slops, etc., into said ditch, for which the village is not in any way to blame. In his charge to the jury, the learned circuit judge said that if the defendant caused, or knowingly permitted, these things to be collected by its ditches and conveyed to plaintiff’s premises, without providing an outlet, it would be liable, after the lapse of a reasonable time within which to remedy the condition, for such injury as should be caused to her health thereby, unless the unsanitary condition of her own premises contributed materially.

With this brief outline, we will examine such of the assignments of error as raise questions of importance in this controversy. As they are numerous, we will take them up by subjects as counsel have discussed them, though perhaps not in the same order.

Direction of Verdict. Counsel assert that the court should have directed a verdict for the defendant, and that the refusal of his first three requests was error. This implies that in his opinion the plaintiff did not make a grima facie case, for if she did, the case should not have been taken from the jury.

We find very little said in the brief upon this subject, but counsel’s position is reflected by his requests:

“(1) Under the plaintiff’s declaration and the claims of counsel presented at the opening of the case, plaintiff could only recover for personal sickness and ill health caused by noisome, noxious, offensive, and unwholesome smells, vapors and stenches arising from filth and sewage deposited in the highway ditch in front of her premises, creating there a nuisance through the wilful or negligent acts of the village of Richmond. She could not recover for any discomfort or inconvenience caused her in the use of her house by such noxious smells, etc. She could not recover for any contamination of her well. She could not recover in any event, if her own negligence and lack of ordinary care caused or contributed materially to her trouble. Nor could she recover, even if a nuisance were created in the highway in front of her house, if ordinary care on her part would have avoided any evil results from that nuisance, for the reason that the testimony in the case is overwhelming that the village of Richmond neither wilfully nor knowingly caused or permitted the alleged nuisance to be created. A fair consideration of the entire testimony in the case leads to the conclusion that there is no sufficient evidence to warrant any finding that plaintiff’s sickness was caused by noisome, noxious, offensive, or unwholesome smells and stenches arising from a ditch in front of her premises into which the contents of priyy vaults and sewage has been deposited by any fault of the village of Richmond. For the foregoing reasons, defendant is entitled to a verdict.
(2) A fair consideration of the entire case shows conclusively that the testimony in favor of the defendant’s claim is so overwhelming that if a verdict were rendered in favor of the plaintiff, it would be the duty of the court to set the verdict aside.
“ (3) The nuisance complained of existed at plaintiff’s premises in the township of Lenox. It is not seriously claimed that the defendant village is liable because the condition of the ditches in front of plaintiff’s premises was the result of any wilful or knowing act of the defendant, but it is sought to hold the defendant responsible, because it is claimed that the village authorities had notice of the existence of a nuisance on Howard street in said village, just back of Springborn’s hotel, and also notice that said nuisance on Howard street had caused and created the one claimed to exist in the township of Lenox, in front of plaintiff’s premises. It is a rule of law that one who does not knowingly or wilfully create a nuisance, but passively permits one to exist after knowledge thereof, can only become liable for any damage resulting therefrom after notice of its existence and notice that it is causing the damage complained of, which notice must be given a sufficient length of time prior to the injury to permit a reasonable opportunity to remove or abate the nuisance. Plaintiff’s own proofs show that whatever condition that amounted to a nuisance existed in the highway in front of her house had existed since 1896, and that if her sickness was caused by the condition of the ditch at all, it was caused prior to the spring of 1905, her contention being that a weak and debilitated condition, arising from long-continued presence of the noisome, noxious, etc., stenches in front of her house, brought about the subsequent sickness and ill health, or, in other words, that all of her trouble in 1904-5-6-7 and 8, including her operations, resulted from a weak and debilitated condition brought about by her being subjected, for years prior thereto, to the offensive vapors from this ditch. The proof is conclusive that no notice of the existence of any trouble whatever in front of plaintiff’s premises was given to the village until December, 1904, at which time, if the condition of the ditch was responsible for plaintiff’s ill health, the damage had been done. No such notice of the condition of the ditch in front of plaintiff’s premises is shown to have been given to the defendant that would warrant defendant being held liable for damages resulting to plaintiff from the condition of the ditch. Particularly is this true, inasmuch as plaintiff claims no damage for aggravation of any pre-existing trouble. The notice required to make the village liable for a bad condition of the ditch in question, even if such bad condition existed as the result of a nuisance in the village, of which the village had notice, must be such a notice as would fairly apprise the village of just the conditions that existed, where they existed, and that plaintiff claimed injury, or possible injury, therefrom.”

The first request seems, in its last analysis, to rest upon the claim that the evidence upon the only question which defendant’s counsel conceive to be left in the case was overwhelmingly in favor of defendant’s position. There was certainly a dispute in the evidence on the subject, and it follows that it was proper to leave it to the jury. We have said this so often, that it is unnecessary to cite authorities.

The second request should not have been given. The duty of the court as to granting a new trial has never been an infallible test of the propriety of submitting a case to the jury. It might be a good rule for many cases, though that is open to doubt. At all events, the law has never been so settled.

The third request was properly refused, for the reason that the facts upon which it was based were in dispute.

Motion for New Trial. In this motion, counsel have alleged several grounds, which may be resolved into two: First, the verdict was contrary to the law, and against the weight of the evidence; second, that the court erred in omitting from his instruction specific direction as to notice.

As to the former, we agree with the learned circuit judge that no new trial was called for on either ground. In relation to the latter, it is enough to say that no proper request is called to our attention, and error appears to have been assigned on what the judge did say, and consequently can be reviewed on error. The motion was properly denied.

Refusal to State Defendant’s Claim. With some reluctance we incorporate the fourth request in our opinion:

“(4) It is the claim of the defendant village that it is in no manner or form at fault for any trouble, injury, or sickness from which the plaintiff claims to have suffered It is defendant’s claim that the village of Richmond is situated in an extremely level tract of land, where drainage is very difficult, that no running creek, stream, or water exists in the vicinity of said village, that said village of necessity has no sewer system, or any system of drainage into which water-closets should be drained, nor has it ever had or adopted any plan of drainage whatever, and that practically its only drains consist of open ditches, or gutters, on the sides of the streets, constructed for the sole purpose of surface drainage. The defendant further claims that it has never, at any time, permitted any person to connect any privy, vault, sink, or other source of filth with any of said open drains or gutters. Defendant claims that the only covered drains within its corporate limits are a county drain running through the northern and western portion thereof, constructed of 10 or 12-inch crock and portions of the roadside ditches, or gutters, on several of its streets that have been tiled by it for short distances. Defendant further claims that, as a matter of fact, no privy, vault, or water-closet has ever been connected with any drain within its corporate limits, except in the instance in which several citizens were found to have connected privies with said county drain, and in that instance the citizens were proceeded against in court and compelled to cut out said connection, although one of the alleged offenders was, at that time, president • of said village. Defendant further claims that the southeastern portion of the village, lying south and east of the Grand Trunk Railway tracks, is naturally very low, and that the site of the school in said village, situated on Howard street, is a particularly low spot. Defendant further claims that the natural drainage of that portion of the village is through a natural water-course in a northeasterly direction to the town line road between Richmond and Lenox, and thence easterly along said town line road, and that for over 40 years a ditch of sufficient size to carry away all of the water that came to it has been in existence along the north side of said road, carrying said water to the east to an adequate outlet beyond the limits of Macomb county, and that a ditch has existed for more than 20 years on the south side of said highway which ran to a point about 60 rods east of plaintiff’s premises, where it crossed the road through a culvert into the north ditch. Defendant claims that the plaintiff’s premises are situated in the line of said natural water-course, at the lowest portion-thereof, on the south side of said town line road in the township of Lenox, outside the eastern limits of the said village of Richmond. That previous to 1903 the principal portion of the water from that part of the village just mentioned drained into a ditch on Howard street, and thence into the ditches on the town line road. That prior to 1903, a swale extended across plaintiff’s land and onto adjoining property. That in 1903 Ferdinand Springborn, who owned 20 acres adjoining plaintiff on the west, constructed a ditch upon his premises, draining a portion of this swale and carrying the water to the town line ditch on the south side of the road, and that at or about the time of the construction of this ditch Springborn, who was then overseer of highways in the district in which both plaintiff’s land and his own were situated, with the consent of plaintiff and at the suggestion of her husband, moved a then existing culvert crossing the town line road in front of plaintiff’s premises to a point about 225 feet to the west. That as a result of the digging of this ditch, a large portion of the water from the swale was taken from the rear part of plaintiff’s premises and carried to the town line ditch in front of her place. At about the time of the completion of this ditch by Springborn, the defendant village caused to be cleaned out and deepened the ditches from the schoolhouse property on Howard street to Lenox, and thence along Lenox, Seymour, and Davis streets to a ditch then existing across lands of one John Schock, to the east corporation line of the village, and there connected the same with the Springborn ditch, thereby more thoroughly draining the section of the village in the vicinity of said school premises. That in 1896 said Ferdinand Springborn erected a hotel known as the “ Lenox Hotel,” and constructed in the rear thereof a cesspool, into which he emptied the contents of the water-closet in said hotel. This cesspool was constructed of plank, was 9 feet square and 11 feet deep, with no bottom but the earth, which at that place was gravel. That an overflow pipe four inches in diameter, the entrance to which was covered by a wire screen with one-quarter inch meshes, entered the cesspool opposite the intake pipe and li feet from the top. This overflow pipe was about 125 feet long and ran to the rear of Springborn’s premises. Defendant further claims that it appears that said cesspool was disinfected by the use of chloride of lime and copperas. Defendant insists and claims that it never authorized or gave permission to, in any form • or manner, connect said cesspool with the drain on Howard street, or in any other drain or ditch in said village, and that said village never had knowledge that said cesspool or said overflow pipe therefrom was connected with its drains, and that no official of said defendant village was ever notified that any connection existed or was claimed to exist between said cesspool and any of its drains until the spring of 1905, when plaintiff’s husband, George Wendt, informed O. B. Evans, then president of the village, that he claimed this cesspool injured him. It does appear that plaintiff complained to Dr. Black, then president, in 1904, that the water from the village was contaminating her well, and in June, 1905, she complained to President Evans that her well was contaminated, that she had no water to drink, and that she wanted her premises connected with the village system of waterworks. Defendant insists that there has never been any claim or notice to the village prior to the commencement of this suit that the plaintiff was made sick and injured by odors or smells from any nuisance in front of her premises caused by any fault of said village. ' It is defendant’s claim and theory that the sickness, pain, and trouble from which she suffered has been in no-manner or form the result of any fault on the part of the defendant, and it is further the claim of the defendant that no sewage or filth was ever deposited in front of, upon, or adjacent to, the plaintiff’s premises from the Springborn cesspool, or any other source within the limits of said village. It is the defendant’s claim that if any filth or sewage was ever deposited in front of plaintiff’s premises from which odors or stench arose, that the filth came from plaintiff’s own premises, and that if plaintiff’s sickness came from or was caused by unsanitary conditions surrounding her house, it came from the naturally unsanitary condition of the premises she lived upon, aggravated by plaintiff’s own negligence in permitting water to stand under her house, her own privy to drain through an open ditch to the front of her premises, the slops from her house to accumulate in a hole close to her well, and the barn, pigpen, etc., to drain to the front of the house.”

This statement is about as long as the charge given and is practically a statement of counsel’s argument. Moreover, it contains many statements of fact which were in dispute and which it would have been error to give. A judge should, and generally will, give instructions applying the law to any theory of prosecution or defense that is in the case, which is all that should be asked in a case of disputed facts.

We have often criticised unfavorably such requests as this. There was no error in refusing to give this request. Fisher v. People, 20 Mich. 135; People v. Marion, 29 Mich. 31; People v. Hubbard, 92 Mich. 327 (52 N. W. 729); Westra v. Westra, 101 Mich. 528 (60 N. W. 55); People v. Parsons, 105 Mich. 188 (63 N. W. 69).

Contributory Negligence. Defendant’s eleventh request was not given. It follows:

“(11) That plaintiff cannot recover if her trouble was due to her own fault, or if by reasonable care she could have protected herself and avoided evil results from the alleged nuisance.”

The court charged the jury that defendant claimed that plaintiff’s illness and injury were caused by the foulness of her well, cellar, and premises generally, and also that she could not recover if they should find that—

“ Plaintiff’s premises were kept in an unsanitary condition and materially contributed to the creation of the alleged nuisance and to plaintiff’s injury, then your verdict will be for defendant.”

Our attention has not been called to any evidence indi-' eating that by reasonable care she could have protected herself or avoided the effect of the alleged nuisance, nor is the brief any more illuminating upon the subject. If it refers to a duty to keep her own premises in better condition, it was sufficiently covered by a denial of recovery, if such condition contributed materially to the injury. That was fully as favorable a charge as the defendant was entitled to on that subject.

Notice. We are of the opinion that the court’s instruction upon the subject of notice was sufficient.

Damages. Several assignments relate to the subject of damages. We find nothing in these or some other assignments not specifically mentioned by us which should cause us to reverse this cause. As it is, we have referred to some assignments, to which there is little, if anything, more than an allusion in the brief of counsel. A careful pointing out of the precise point and a clear reason for the claim of error are of much assistance to the appellate court. While we do not discuss at length some of these, we have examined all and endeavored to give them careful consicb eration.

We find no error, and the judgment is affirmed.

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