text:
    AHO v. CLEVELAND CLIFFS IRON CO.
    Master and Servant — Negligence—Fellow Servant — Delegable Duty — Instructions.
    In an action for personal injuries caused by a fall of rock on plaintiff in defendant’s mine, while plaintiff and another miner were engaged in timbering a passageway, the duty to warn plaintiff of the danger being a delegable one, which duty defendant fully performed when it selected a competent fellow-workman, it was not liable for the fellow servant’s negligence, and the court was in error in refusing to charge, as requested by defendant, that plaintiff’s co-worker was a fellow servant, and that defendant would not be responsible for his negligence, and instead charged that if the defendant knew of the dangerous condition there, either because of the experience of said co-worker and another in working there before plaintiff came, or had learned it in any other way, or could have learned it by the exercise of reasonable care, and if plaintiff was unaware of the dangerous condition, if it existed, then as the undisputed evidence showed that the shift boss did not warn, it was the duty of the co-worker to do so, and if he failed his failure was the failure of defendant and the verdict should be for plaintiff; the court practically directed a verdict for plaintiff.
    Error to Marquette; O’Brien, J., presiding.
    Submitted June 24, 1915.
    (Docket No. 28.)
    Decided September 28, 1915.
    Case by John Aho against the Cleveland Cliffs Iron Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      William P. Belden, for appellant.

      Le Gendre & Driscoll, for appellee.
   Stone, J.

Action on the case to recover damages for injuries sustained by the plaintiff in the Princeton mine, by falling rock, on June 23, 1910, while in the employ of the defendant. This mine had two shafts, known respectively as Nos. 1 and 2. At the time of the accident the defendant was extending a permanent passageway on the bottom level from No. 1 shaft southerly in the direction of No. 2 shaft, and which would ultimately be connected with that shaft. This passageway was mostly through solid rock. It was what is called a rock drift. It was about 7 feet high, and 7 feet wide. One track was constructed therein for tram cars. This drift was known as No. 5 contract, and at the time of the accident had been extended a distance of about 1,300 feet from No. 1 shaft. It had been deemed unnecessary to timber this drift through its main portion. However, a few days prior to the injury complained of a change of ground was encountered, showing that the drift was entering softer ground, which made it necessary to timber the drift for safety. It should be said that there was a conflict in the evidence at the trial as to the character and condition of the rock in the drift at and near the place where the injury occurred. The miners began the installation of these timber sets 25 or 30 feet from the end of the drift, so as to anchor them in solid ground. The timbers used for this purpose were brought down in the skip at the shaft, and were taken to the working place at the end of the drift. The posts were 8 feet high, with an 8-foot cap on top of them, and lagging was placed over the caps, as is usual in timbering iron mines. Miners usually work in pairs. If one man is sick or does not report for work, it is usual to call a man from some other part of the mine to take his place.

Prior to the day of the injury Walter Helston and Andrew Soderman were working in this shaft. At times three men had worked there; the third man being one John Koski. On the morning of June 23, 1910, there were two sets of timber in place, so that the drift had been timbered,for a distance of 16 feet. On that morning Helston was the only member of this gang who reported for work. Upon informing his shift boss, that his partner had not come, the shift boss requested the shift boss at No. 2 shaft to furnish a man to fill the vacancy, and the plaintiff was sent ovér. The plaintiff was at that time 36 years old. He was an experienced miner, having worked in iron mines over ten years before this injury, and had worked in the Princeton mine and that vicinity nearly nine years. He had worked about five years in No. 2 shaft, and altogether about a month in No. 1 shaft, but had not worked in this contract. Helston was a miner of eight years’ experience who had worked in No. 5 contract about two months before plaintiff was hurt.

The plaintiff found Helston at the bottom of shaft No. 1, and, without waiting to see their shift boss, they immediately went to work taking timbers from the skip out to their working place at the end of No. 5 contract. They walked through the timber sets which had been completed, and began work near the breast of the drift. Plaintiff testified that he understood that the fact that they were putting in timber sets indicated that the rock was not as sound or good at that point, and that the men were afraid it might cave; that he understood the purpose of putting up the timber sets was to prevent the roof of the drift from caving in on the men, and he also understood that he and Helston were to continue putting up those timbers.

There was a conflict in the testimony as to whether or not there were slips or seams in the rock at this point. There was evidence that the usual and customary method by which miners protect themselves against falling rock, from any cause whatever, is to sound the back or roof of the drift with iron bars or picks, before beginning work' in any place. The plaintiff testified that he knew about seams in rock and how to guard against them. On entering the working place that morning they began at once to bar down the loose rock. Helston did the actual barring, and the plaintiff held one end of the plank on which he stood, the plaintiff being under the lagging. They continued this work for at least half an hour, in the course of which Helston barred down two or three large chunks and quite a number of small ones. Plaintiff watched Helston’s work. On cross-examination he testified:

“Q. Did you see in the back of'the drift this chunk which afterwards fell on you; * * * did you see it before?
“A. I couldn’t see no fault in that back after Helston cleaned it, or trimmed it off.
“Q. Did you look at it?
“A. Yes, I watched it right along when Helston did trimming of the back.
“Q. Helston said that he struck with his bar and his pick the chunk which afterwards fell on you. Did you see him do that?
“A. Yes; he did pick some loose right from there, and sounded the place, and it seems to be all right.”

Helston testified that he barred and picked the back in the customary way, including the place from which the rock later fell, and that it looked sound to him when he got through with this work, and that he knew there were seams in the back, but he did not tell plaintiff about them. He was not sure whether he told plaintiff on the completion of this work that the place was all right, but it seemed “to be good, after I was through with the back.” Soon after the completion of this work, plaintiff took a sledge and began breaking chunks of rock in the dirt pile. In doing so he stepped out from under the lagging,. and stood directly under the exposed roof or back of the drift. About an hour after they entered the drift, and in the neighborhood of 15 minutes after Helston ceased trying the rock, a large chunk of rock fell from directly above the plaintiff and severely injured him, breaking both his legs, and inflicting other serious injuries. There was a conflict in the evidence as to how far the place of injury was from the breast of the drift. The plaintiff, in part, testified as follows:

“Q. State whether or not you were given any warning of any kind by anybody before you were hurt that day.
“A. Nothing at all.
“Q. Did you know that there were any slips in the hanging there at the place you were hurt — slips or seams ?
“A. I didn’t know anything about it. I was holding the stage at the time,- and Walter was sounding and picking the back there, and I saw he got some loose off there, and the way it seemed to me it was good.
“Q. As far as you could see and tell from the sounding he did, it was all right?
“A. Yes; it was solid. First he used a bar and took down those big ones, and after that he went over it with his pick and took down the small ones, and sound it, and then we took the staging off. * * *
“Q: And did you go in past the place where you were hurt at any time, or did you stay outside of that at all times?
“A. I didn’t have any time to pass anywhere. Right after we took the staging away, I began to break those rocks. It was about an hour from the time I got into that place until I got hurt. I didn’t see in the drift any further than the light of my candle would throw from the place where I was standing when hurt; that was all I saw.
“Q. If you knew that there were slips up in the back of that place, or that it was dangerous to work in there, what would you do?
“A. I would not go there. I would try to fix it some way that it would not hurt me.”

On his cross-examination the following occurred:

“Q. John, what is the principal risk which a miner takes in doing work of this character?
“A. Back is the worst place, if you don’t take good care of your back.
“Q. What happens to you if you don’t take good care of the back?
“A. You get hurt.
“Q. You mean by chunks of ore or rock falling down ?
“A. Yes, sir.
“Q. What effect, if any, does it have if the back is damp or wet?
“A. It is a good deal more dangerous, and it’s bound to loosen, even the solid place of the back.
“Q. What effect does it have, if any, in rock if you can see cracks or seams ?
“A. It’s a good deal softer, or easier to fall in some kind of rock.
“Q. When you find these cracks and seams, when driving a rock drift, what’s the proper thing to do ?
“A. You have to examine it, see if they are dangerous or liable to fall, and if you see any such, then you must use those piling posts — forepoles.
“Q. Now John, how did you learn that?
“A. I saw the older miners had that practice, and through my own experience I saw that it was necessary to do so.
“Q. On this morning in question did you and Walter talk about using piling?
“A. We didn’t have any time to talk anything about that that morning. * * *
“Q. John, was there room to stick the piling over the top of this cap at this place?
“A. Yes; there was plenty of room.
“Q. Did you think it was necessary to have piling at that place?
“A. It would be necessary all right to have pilings in back of that place where we was.
“Q. John, you used piling in other parts of the Princeton mine, haven’t you?
“A. Yes, sir; I guess there is some yet what I been putting up. * * *
“Q. Now, when you went to this place that morning, did you think it needed piling over this cap as a protection, before setting up that new timber set?
“A. I didn’t know that that place was such, because I didn’t have any time to examine the place, and I didn’t know the place, and I wasn’t even on the dirt pile over there.”

Helston testified that there were no poles or piling suitable for forepoles in the drift, but it was undisputed that the defendant kept on hand on the surface a supply of all kinds of timber used in the mine, including piling. It was undisputed that the work in which these men were engaged was purely construction work, and that this drift was being tunneled through the rock to furnish a passageway from one shaft to the other. It also appeared without dispute that the very purpose of putting in these timber sets was to protect the men from injury from falling pieces of rock, and that plaintiff and Helston, two experienced miners, were employed to do this work. The defendant had a superintendent in charge of the Princeton mine and other mines operated by defendant in that district. It also employed a mining captain, who had charge, under the superintendent, of this mine. In addition, the defendant employed a shift boss at each of these shifts. About 25 men were employed at No. 1 shaft at the time.

At the conclusion of the testimony the defendant moved the court to direct a verdict in its favor, on the grounds that the plaintiff had failed to prove any negligence of defendant; that the risk, if there was any risk, was the usual risk incident to mining operations, which the plaintiff assumed by the employment; that his own carelessness and negligence contributed to the injury; and also that the carelessness and negligence of Helston, plaintiff’s fellow servant, contributed to the injury. The motion was overruled, and the defendant duly excepted. The case was then submitted to the jury, and they returned a verdict for the plaintiff. There was a motion for a new trial, involving the questions above referred to, and also the proposition that the verdict was contrary to the overwhelming weight of the evidence. The motion was overruled, and exception duly taken.

The defendant has brought the case here for review, and the following claims are made by appropriate assignments of error:

(1) That upon the undisputed facts plaintiff failed to prove or establish any negligence of defendant.

(2) That if any warning was necessary this duty was delegable.

(3) That the court erred in its charge as indicated.

(4) That defendant’s motion for a new trial should have been granted.

There is no claim here on the part of the plaintiff that the doctrine of “safe place,” as that term is usually expressed, applies here. In fact, the court charged the jury upon that subject as follows:

“Under the circumstances of this case, the defendant did not owe the duty to the plaintiff to furnish him a reasonably safe place in which to work. The so-called ‘safe place’ doctrine has no application to this place. The plaintiff and Walter Helston were engaged at the time of the accident in timbering this drift for the purpose of making it safe for use as a passageway.”

The defendant’s sixth request to charge was as follows :

“Plaintiff’s partner, Walter Helston, must be regarded as the fellow workman of the plaintiff, and if he was negligent in any respect, either in failing to tell the plaintiff about the risks to be incurred at this working place, or in the manner in which he was performing his duties on the morning in question, then I charge .you that the plaintiff cannot assert such negligence as a ground of recovery against the defendant, because it would not be responsible for such negligent acts of Walter Helston.”

This request was refused. Upon that subject the court charged the jury as follows:

“It appears from some of the evidence in the case, and I think from all of the evidence, * * * previous to the time when this piece of ground fell upon the plaintiff, Helston had inspected the ground by barring it, and pinching down whatever loose ground he could find in the back, and that it was determined that it was safe. Now, gentlemen of the jury, if the situation there was such, if the nature and character of that ground was such that after an inspection of the kind made by Helston the ground would appear to_ have been safe, but was not, in fact, really safe, and if you find from the evidence in the case that the treacherous character of the ground, if you find that it was treacherous, was known to the defendant, either because of the experience that Helston and his partner had in working in there before the plaintiff came to that place, or had learned it in any other way, or could have learned it by the exercise of .reasonable and ordinary care and skill in carrying on the business of mining in that drift, and you further find from the evidence that the plaintiff was unaware of that condition of the ground, if it so existed, then, gentlemen of the jury, I charge you that, as the undisputed evidence shows that the shift boss did not warn in regard to the nature and character of that ground, it was the duty of Helston to have done it, and if he failed to do it, if he failed to warn the plaintiff,' his failure is the failure of the company, and your verdict in that event should be for the plaintiff, providing you have found that a man of reasonable care and observation working in that drift, the same length of time the. plaintiff was working there, and under the same conditions would not have known and appreciated the danger of that ground falling, under the circumstances and conditions under which it did fall.” >

We think this was reversible error. By the refusal to give defendant’s sixth request, and by the portion of the charge just quoted, the trial court practically directed a verdict for the plaintiff. Not only was the question of Helston’s negligence submitted to the jury, but they were instructed that, as matter of law, the failure of Helston to give this warning constituted the failure of the defendant, for which it would be liable. Under our repeated decisions we think that it must be held that Helston was the fellow servant of the plaintiff. The duty to warn in work of this character is á delegable duty, which is fully performed when the employer selects a suitable and competent fellow workman, and makes it his duty to give the warning. Helston did not stand in the relation of foreman or shift boss to plaintiff. As was held in Avikainen v. Mining Co., 160 Mich. 375 (125 N. W. 545, 136 Am. St. Rep. 443), Helston was simply a fellow miner of the plaintiff, and did not by reason of his seniority in the work at that place represent the defendant, so as to make it liable for his negligence, if any. Amoe v. Engineering Works, 151 Mich. 212 (114 N. W. 1010) ; Kaaro v. Mining Co., 178 Mich. 661 (146 N. W. 149) ; Mikolojczak v. Chemical Co., 129 Mich. 80 (88 N. W. 75) ; Mesich v. Mining Co., 184 Mich. 363 (151 N. W. 564); Lahti v. Mining Co., 186 Mich. 18 (152 N. W. 907) ; Juntunen v. Mining Co., 184 Mich. 341 (151- N. W. 571) ; Koskell v. Mining Co., 182 Mich. 586 (148 N. W. 699) ; Andrews v. Mining Co., 180 Mich. 72 (146 N. W. 394).

Counsel for plaintiff has called our attention to Panela v. Mining Co., 177 Mich. 669 (144 N. W. 528). It should be remembered that in that case the plaintiff was engaged in work of a character which we held entitled him to the protection of the safe place doctrine.

Without holding that there was no evidence of any negligence of defendant which might have warranted the submission of that question to the jury, under proper instructions, we are of opinion that there was prejudicial error in the charge as given, and for the reasons pointed out, the judgment of the circuit court is reversed, and a new trial granted.

Brooke, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The late Justice I&cAlvay took no part in this decision.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    FIRST STATE BANK of DECATUR v. DAY. O’DELL v. FIRST STATE BANK OF DECATUR.
    1. Tendee — Foreclosure of Mortgages — Amount.
    An injunction against foreclosing a mortgage held by the mortgagee, a savings bank, was properly refused in a suit brought to restrain it from foreclosure by advertisement, and a decree was correctly granted in favor of the mortgagee in proceedings brought to foreclose the instrument by the holder, to whom the defendants had tendered a sum insufficient to pay the principal and interest, all of which the bank had declared to be due and payable for defendant’s default under the terms of the security; the two causes being consolidated and heard as one.
    2. Same — Bills and Notes.
    Where the tender was made as indicated by the parties to pay all that was due under such mortgages and defendant’s indebtedness included a note for interest that he had allowed to accrue, and which remained unpaid, the tender should have included the sum due for such interest, although the bank had indorsed upon the mortgage notes, as paid, the sum represented by the note.
    3. Same — Interest—Mortgages.
    The objection that the bill of complaint did not rely upon any claim that the principal had become due, was untenable where the complainant had elected to declare the entire debt due and payable; the mortgagee was entitled to declare the principal due, if it had been in arrears for a sufficient length of time, the mortgage so providing by express language, and if the tender was not large enough to satisfy the sum due.
    4. Same — Estoppel.
    No estoppel could be said to have arisen from a letter of the holder of the mortgage to the second mortgagee, one of the joint defendants, containing the advice or suggestion that the second mortgagee pay the prior lien, neither party having changed his situation because of the position taken in the letter by the senior incumbrancer.
    5. Mortgages — Notice of Foreclosure.
    In a notice of foreclosure, the date rather than the day stated controls, and in the case of error in naming Friday for Saturday, the ninth, of the month, the notice was not void therefor.
    6. Appeal and Error — Contempt—Foreclosure.
    The court on appeal will not review contempt proceedings for violation of an injunction of the lower court, upon a record which does not disclose what, if any, adjudication was made.
    7. Mortgages — Foreclosure—Decree—Solicitor’s Fee.
    Without some basis in the facts or evidence, the trial court exceeded its authority in providing for a solicitor’s fee of ¡P100, by way of punishment for contempt in violating a restraining order of the court; nor was there ground for stopping interest on the amount bid at mortgage sale on foreclosure by advertisement.
    Appeal from Van Buren; Des Voignes, J.
    Submitted June 25, 1915.
    (Docket No. 52.)
    Decided September 28, 1915.
    Bill by the First State Bank of Decatur against James Ingersoll Day and Benjamin F. J. O’Dell "for the foreclosure of certain mortgages; also injunction bill by said O’Dell and Day against the First State Bank of Decatur to restrain foreclosure by advertisement of a third mortgage. The causes were consolidated. From a decree for complainant bank, said O’Dell and Day appeal.
    Modified and affirmed.

      Glenn E. Warner, for appellants O’Dell and Day.

      David Anderson, for appellee bank.
   Stone, J.

These cases were consolidated and heard as one case in the circuit, and by stipulation of counsel they are here presented in the same manner. The questions at issue may be summarized as follows:

James Ingersoll Day, upon different dates, gave to the First State Bank of Decatur, Mich., his three several promissory' notes, secured by three separate mortgages upon certain real estate. The first note bears date July 29, 1909, was for the sum of $1,300, due five years after date, with interest at the rate of 7 per cent., payable semi-annually, and was secured by mortgage on that part of the E. ½ of the N. E. ¼ of section 25, township 4 S., range 15 W., lying north of the Michigan Central Railroad, and containing 35 acres, more or less. The second note bears date January 4, 1910, was for the sum of $2,600, payable as follows: $500 on January 4, 1912; $500 on January 4, 1913; and $1,600 on January 4, 1915 — with interest at 7 per cent, per annum, payable semi-annually, and was secured by mortgage on the north 50 acres of the W. ½ of the N. E. ¼ of said section 25. The above-described two notes and mortgages are the ones embraced in the chancery foreclosure suit by the bank. The third note bears date April 1, 1911, was for $2,500, payable as follows: $500, April 1, 1913; and $2,000, April 1, 1914 — with interest at the rate of 7 per cent, per annum, payable semi-annually, secured by mortgage upon both of the above-described parcels of land.

On June 5, 1912, the interest on these three notes was past due, in the sum of $316.45, and Mr. Day gave his promissory note for this interest, payable January 1, 1913, with interest at 7 per cent, per annum. The amount of this note was distributed and indorsed on the three notes, said indorsements showing the interest on each of them to be paid up to the last due date preceding said. June 5, 1912. It will be noted that on the first note none of the principal would be due, according to its terms, until July 29, 1914. On the second note an installment of principal of $500 came due January 4, 1912, but this installment was extended to January 4, 1914, by a letter written by the cashier of the bank to Mr. Day on June 6, 1912. Another installment of principal of $500, however, became due January 4, 1913. On the third note an installment of principal of $500 became due April 1, 1913. This is the note which is involved in the injunction suit brought against the bank. The.record shows that on June 7, 1912, Mr. Day had given a fourth mortgage to Benjamin F. J. O’Dell, of Chicago, to secure the payment of $8,000, which mortgage covered the entire property above described.

In April, 1913, E. B. Copley, president of said bank, wrote two letters to Mr. O’Dell relating to the mortgages held by the bank. They were as follows:

“The First State Bank.

“Decatur, Mich., April 12, 1913.

“Benj. F. J. O’Dell,

“Chicago, Ill.

“Dear Sir:—

“As I understand, you hold a second mortgage against Jas. I. Day. It is possible you might be interested in keeping up the interest on the first mortgages which we hold in this bank. The directors held a meeting yesterday and had a resolution to foreclose these Day mortgages, along with some other mortgages, which we hold, unless the interest was paid that is due, about some $783, or thereabouts. This will be done very soon unless all this interest is paid in full. The bank examiner also noticed this past-due paper when he was here, and we cannot carry this kind of paper as a bank asset any longer, so, if you are interested, kindly let me hear from you immediately. Yours respectfully,

“First State Bank, Decatur, Mich.,

“Per E. B. Copley.”

“First State Bank.

“Decatur, Mich., April 21, 1913.

“Benj. F. J. O’Dell,

“Chicago, Ill.

“Dear Sir:—

“I had a talk with our attorney for the bank a few days ago, and he said in regard to foreclosing the Day mortgages that he would want to notice them for trial by the 28th or 30th day of April, at the latest, so I thought I would let you know, so if you wished to pay the interest up, as we talked, in full, you could do so. Now, I do not want you to think I am urging this interest payment, for it is up to you to do as you choose, for we have no claim upon you; but it is only a matter of courtesy for us to give you the chance, if you do, so you had better come to Decatur, for I can give you several hints in regard to the property that will be of use to you in the future, and of more value than any cost of ticket or time.

“Yours respectfully,

“E. B. Copley.”

Between the dates of these letters Mr. O’Dell came to Decatur and saw Mr. Copley. The latter claimed that, as interest due and secured by the bank mortgages, there should be included the note of $316.45. To this claim Mr. O’Dell objected. Finally, on April 23, 1913, Mr. O’Dell and Mr. Day came to Decatur, having in their possession $1,000 in gold which belonged to Mr. Day, and which they claim they tendered to Mr. Hill, the cashier of the bank, in full for all interest due, and $500 of the principal. This was refused; the bank’claiming that there was then due $783 of interest and two installments of principal of $500 each. In all the conversations between these parties the three mortgages were considered together, and there was no claim that there was any separating of one mortgage from another, or one note from another, or any attempt to tender the amount of one particular note or mortgage. There is no claim that there was any specification that the tender should apply to one mortgage more than to another, except as more might be due on one note than on another.

The bill to foreclose the first two mortgages was filed on May 2, 1913. In both of the said .mortgages was the following provision:

“It is agreed that, if the interest above stipulated to be paid shall remain unpaid for the space of 60 days after the same shall fall due, the whole amount of principal remaining unpaid, as well as said interest, shall thereupon become due and payable forthwith, notwithstanding the time first above limited for the payment of said principal shall not then have expired.”

The foreclosure bill contained an allegation that, by the terms of said mortgages above set forth, complainant had elected, and did elect, to take advantage of said stipulations, and did declare all sums secured by said mortgages due, both principal and interest. The defendants answered, denying that the amount claimed was due, and claiming that by said tender complainant was estopped and precluded from foreclosure, and that nothing was due upon said mortgages. Early in May, 1913, the bank commenced proceedings to foreclose by advertisement its mortgage of April 1, 1911, being its third mortgage on said property.

On August 4, 1913, the said Day and O’Dell filed their bill of complaint against the bank to restrain the foreclosure by advertisement. The bill set forth the mortgage to O’Dell, the tender made, and claimed that there was nothing due upon said bank mortgage of April 1, 1911. A temporary injunction restraining the sale was granted by the circuit judge. Later a motion was made to dissolve the injunction. The motion was argued and granted—

“provided that the complainants in the injunction suit did not file a bond to be approved by the register, conditioned to save the defendants harmless, etc., on or before August 29, 1913, and a bond was filed before August 29, 1913. September 11, 1913, the complainants made a motion to withdraw the bond they filed August 29th, and file another bond. It was noticed for argument September 17, 1913. In the meantime the sale that was advertised to take place August 9th, on account of the temporary injunction, was adjourned until Saturday, August 30th, and on said day-adjourned until September 12th, at which time a sale was made.”

So reads the record. Later contempt proceedings were instituted against the president of the bank and its attorney for having made the sale under the mortgage-sale notice. Interrogatories were filed and answered. The record contains none of the evidence in the contempt proceeding, but it appears that a hearing was had, and an order was entered declaring said foreclosure sale of September 12, 1913, null and void. It appears that later said order was amended and modified. The cases, being at issue, were heard upon testimony taken in open court, and a decree of foreclosure was entered in the suit by the bank to foreclose the first two mortgages. The court also entered a decree in the injunction case, in which it found as matter of fact that said complainants did not tender the amount due on the mortgages and notes mentioned in the bill of complaint, at the time claimed by them, and that the proof did not sustain the allegations of the bill, and that complainants were not entitled to the relief therein prayed, and were not entitled to have the foreclosure proceedings enjoined, and the deed issued set aside and held for naught. By this decree the court dismissed the injunction bill, but decreed that complainants therein might redeem the premises on or before September 14, 1914, by paying the amount due on the date of said sale and for which said premises were bid in, less $100; it being the intention of the decree to allow no costs or interest to the defendant in addition to the amount at which said premises were bid in, and that there should be deducted from such amount, in case of redemption, $100 allowed as solicitor’s fees to said complainants. From this part of said decree the bank has appealed, and Day and O’Dell have appealed from both decrees.

As we understand the claims of Day and O’Dell, they are that the decrees should be reversed for the following reasons:

(1) Because of the alleged tender of $1,000.

(2) Because the bill of complaint in the foreclosure case and the notice of sale under the last bank mortgage are both based solely on default in payment of interest.

(3) On a claimed estoppel, based on the letters above set forth.

1. Does the alleged tender afford sufficient grounds for the reversal of the decrees? We think not. We agree with the trial court that the amount tendered was insufficient in amount. It will be noticed that the tender was made as a tender of everything due upon the notes and mortgage, both interest and principal. Manifestly the amount was too small.

2. An examination of the bill of complaint in the foreclosure case, and of the notice of sale, shows that there is no merit in the second point. If the tender was not large enough to cover the amount due, and the interest being in arrears a sufficient length of time, the bank had the right to declare the entire amount due and foreclose therefor. Johnson v. Van Velsor, 43 Mich. 208 (5 N. W. 265); Hawes v. Insurance Co., 109 Mich. 324 (67 N. W. 329, 63 Am. St. Rep. 581).

3. We do not think there is any merit in the claim of estoppel. They did not meet the terms of the letter of Mr. Copley. In his claim of $783 there was included the interest note of $316.45, which was repudiated by O’Dell. He could not repudiate a part of the offer and accept the remainder. The letter in no event could be the basis of an estoppel. O’Dell was already a subsequent mortgagee. The letter did not change his situation or alter his legal rights.

It is further claimed by Day and O’Dell that the notice of sale was defective, in that the notice fixed the day of sale as Friday, August 9th, when it should have been Saturday, August 9th, and the notice was published the full time required by law before the correction was made from Friday to Saturday. It might be a sufficient answer to this claim to say that the injunction bill was not based at all on this claimed defect, but was based entirely on the claim that there was nothing due upon the mortgage. The statute does not require the day of the week to be stated. We think that in the case of such a discrepancy the day of the month is controlling, especially where there is no claim that the party complaining is misled. Lee v. Clary, 38 Mich. 223, Reading v. Waterman, 46 Mich. 107 (8 N. W. 691). This court has held that, where the day of the week stated in a writ as the return day does not correspond with the day of the month, the latter will control. State Savings Bank v. Circuit Judge, 95 Mich. 100 (54 N. W. 632), citing Ingersoll v. Kirby, Walk. Ch. 27. A trifling mistake in the notice of sale, not of such a nature as to mislead or injure any one, may be corrected in the subsequent publications of the notice, without affecting the validity of the proceedings. 27 Cyc. p. 1474.

We have examined the other points urged by counsel against the validity of the notice, but think that they are without merit. We are of opinion that the decree of foreclosure should be affirmed.

Upon this record we are of the opinion that the contempt proceedings are not before us. It does not distinctly appear that there has been an adjudication of that matter in the court below. For some reason, not stated in the decree in the injunction case, the court stopped the running of interest upon the amount bid at the sale in the advertisement foreclosure, and awarded to complainants $100 solicitor’s fee. Whether or not this was intended to be by way of punishment for contempt of court we are unable to say. There seems to be no basis stated for such order. We find no evidence to warrant the stopping of interest, or the granting of -$100 solicitor’s fee, and both of these matters should be eliminated from the decree dismissing the injunction bill.

In all other respects that decree will be affirmed. The bank will recover the costs of this court against Day and O’Dell.

Brooke, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


text:
    MISHAWAKA WOOLEN MANUFACTURING CO. v. STANTON.
    1. Sales — Fraudulent Conveyances — Reservation of Title.
    A contract of sale containing a clause that “title to, property in, and right of possession to said goods, and to all other goods ordered by said second party of said first party -within one year from the date hereof, shall be and remain in said first party until sold, and that upon sale thereof, the proceeds received therefor, whether notes, accounts or moneys, shall be and remain the property” of the seller ■until the goods were paid for in cash, was not void as to creditors of the vendee, or as to his trustee in insolvency, upon grounds of public policy.
    2. Same — Validity oe Contract — Fraud.
    An order for goods containing a reservation of title to the merchandise sold by a clause in fine print at the bottom of the agreement, which the purchaser signed, was not invalid because his attention had not been called to the clause by the agent who took the order, where no artifices or deception was used to secure his signature, and such provision was printed in the same type as the rest of the contract in the body of the order above the buyer’s signature.
    Case-made from Kent; Brown, J.
    Submitted June 29, 1915.
    (Docket No. 114.)
    Decided September 28, 1915.
    Replevin by the Mishawaka Woolen Manufacturing Company, an Indiana corporation, against Henry T. Stanton, trustee for creditors of Joseph D. Van Sickle, for certain merchandise. Judgment for plaintiff. Defendant brings case-made.
    Affirmed.

      Corwin & Souter and Abner D. Dilley, for appellant.

      Boltwood & Boltwood (Buell & Lucas, of counsel), for appellee.
   Stone, J.

This case is brought here by defendant, after judgment for plaintiff, upon a case-made, in an action of replevin. The case was tried by the court without a jury. The facts, being stipulated, were adopted by the court, and made a part of the finding. The material facts in the case are as follows:

For some time prior to April 10, 1912, Joseph D. Van Sickle had been engaged in the general merchandise business at Carson City, Mich., and on said date plaintiff’s agent called upon said Van Sickle and took an order for goods in the usual way, on blanks furnished by plaintiff, a copy of which order appears in the record. The attention of Van Sickle, who signed the order, was not called to any of the agreements printed on said order blank, and he did not know that the fine print at the bottom of the order blank contained an agreement whereby “the title to, property in, and right of possession of said goods should be and remain in said first party until sold, and that upon sale thereof the proceeds received therefor, whether notes, accounts, or moneys, should be and remain the property of said first party until said goods are fully paid for in cash.” Nor was said Van Sickle ever instructed or requested to keep a separate account of sales made from said goods, or of the cash, notes, or accounts received therefor. The goods mentioned in said order were shipped by plaintiff and received by Van Sickle some time in the month of September, 1912, and were billed to him by plaintiff at $640.64. Said Van Sickle had previously purchased merchandise of the same or similar kind and quality from the plaintiff, parts of which remained in his stock at the time the goods in the above-mentioned order were received and placed in stock.

Upon receipt of the goods in question Van Sickle placed the same in his store, together with his stock previously purchased from plaintiff, as well as with other goods comprising his general stock of merchandise. Sales were made by Van Sickle from his general stock of merchandise, including goods received from plaintiff, in the usual course of trade, some goods being sold for cash, others were sold on credit and were charged in personal accounts, on which the customers paid on account from time to time, without reference to any particular item, and some merchandise was paid for by accepting in exchange butter and eggs, which in turn were sold for cash or on credit. No attempt was ever made by Van Sickle to separate the accounts or money received from the sale of goods ordered from plaintiff from money or accounts received from the sale of goods bought of other merchants or manufacturers, and the same was mingled together at all times and used by Van Sickle as a single fund.

On April 12, 1913, said Van Sickle, being financially embarrassed, gave defendant a trustee chattel mortgage upon all his merchandise and fixtures, including the goods ordered from plaintiff, to secure all his creditors alike, including plaintiff. Said Van Sickle, previous to April 12, 1913, had sold $486.06 worth of the goods ordered from the plaintiff on April 10, 1912, having on hand $154.58 worth of said goods. He also had on hand $73.33 worth of similar goods- bought from plaintiff previous to April 10, 1912. Van Sickle had paid plaintiff in full for all goods purchased previous to April 10, 1912, but had paid only $100 on the purchase price of the goods ordered April 10,1912, leaving a balance of $540.64 due plaintiff on the goods so ordered. After accepting the trust under the mortgage and taking possession of the stock, defendant notified the various creditors of Van Sickle of the giving of the mortgage, and requested statements of their accounts in order that he might verify the same and make distribution of the proceeds of the property to be sold under the mortgage. He received a statement from plaintiff showing $555.63, including freight and interest, amounting to $14.99, due it from Van Sickle, and made one payment of 30 per cent, to all creditors, including plaintiff. The plaintiff then caused an investigation to be made, and upon learning that there were certain of said goods on hand, paid back a proportionate amount of the 30 per cent, received, and demanded the goods on hand from the trustee, claiming title under and by virtue of the clause in fine print at the bottom of the order, and, being refused possession by the defendant, acting as trustee under said mortgage, plaintiff brought replevin for said goods. It was agreed that the value of the goods replevied was $154.56, and in case of judgment for defendant, return of the goods was waived, and a judgment in said sum was to be entered; and in case of judgment for plaintiff, then the damages were to be assessed at 6 cents, with costs to be taxed.

Under the heading of “Guarantee,” the pertinent clause in said order, which was just above the signature of said Van Sickle, was as follows:

“It is agreed by and between the Mishawaka Woolen Manufacturing Company, party of the first part, and the undersigned orderer of the foregoing goods, party of the second part, that the title to, property in, and right of possession to said goods, and to all other goods ordered by said second party of said first party within one year from the date hereof, shall remain in said first party until sold by said second party, and that upon sale thereof the proceeds received therefor, whether notes,- accounts, or moneys, shall be and remain the property of said first party until said goods are fully paid for in cash; that if payment for the same shall not be made when due, or if at any time before the same shall be fully paid for, said second party shall become insolvent, or shall, in the opinion of said first party, be in danger of insolvency, or if said first party shall, for any reason whatever, deem itself in danger of losing the price of said goods, then the said first party may reclaim, and take possession of so much of the said goods as shall remain unsold in the ordinary course of retail business, and may also take possession of any proceeds of sale of any such goods; that said second party shall not sell, ship, or reship, or in any manner directly or indirectly supply any retail or wholesale dealer with any such goods, nor dispose of them in any manner except in the ordinary course of business at retail sale, except with the express consent and approval of said first party previously obtained; that ‘punched’ goods are ordered subject to said first party’s having them in stock; and that it does not guarantee quality or delivery. The party of the first part will not be responsible for delays by reason of strikes, fires, accidents, or other causes beyond its control.”

Counsel for defendant filed certain requests for special findings of law. The conclusions of law by the trial court were as follows:

“(1) That Joseph D. Van Sickle, having signed the order, Exhibit A, he and his mortgagee are both bound thereby, even though he did not read the agreement in fine print above his signature; and the defendant’s fourth and fifth requests are therefore refused.
“ (2) That the delivery of all the goods by the plaintiff to Joseph D. Van Sickle under the contract order set out in the agreed statement of facts constituted a valid conditional sale.
“(3) That under the agreed statement of facts said Joseph D. Van Sickle was bound by the terms of the agreement that he entered into with the plaintiff, whether or not he knew the contents of the agreement he signed.
“ (4) That the agreement signed by the said Joseph D. Van Sickle and the plaintiff clearly shows that the meaning of the agreement was that the title to the goods sold by the plaintiff to said Joseph D. Van Sickle under the contract was to remain in the plaintiff until the goods were sold by said Joseph D. Van Sickle in the ordinary course of retail trade.
“(5) That the position of the clause retaining title in the plaintiff of the goods unsold and the type in which such clause is printed are sufficient to bind said Joseph D. Van Sickle to the terms of the agreement.
“(6) That the rights of the defendant under the trust mortgage are exactly the same as were the rights of Joseph D. Van Sickle in regard to the goods covered by the conditional sale contract and that were not sold in the ordinary course of retail trade.
“(7) The vital question of law in this case seems to be whether or not an absolute sale is made and title passes to the purchaser, where the property is sold and delivered to the buyer for the purpose of resale. * * * Without comment upon the cases which hold that it is against public policy to validate a contract which seeks to withhold title, and at the same time gives to a vendee the right to make immediate resale in his own name, it is sufficient to say that the Supreme Court of our State has decided adversely to the defendant’s first, second, and third requests, and those requests are therefore refused.
“(8) I find, under the stipulated facts and the decisions of the Supreme Court of the State of Michigan, that the plaintiff is entitled to judgment in its favor of six cents damages, and costs to be taxed.”

Proposed amendments were refused, and exceptions duly taken.

By appropriate assignments of error the following questions are presented by appellant:

(1) Can the vendor of merchandise sold expressly for resale retain title thereto, as against the creditors or subsequent purchasers, or incumbrances from the conditional vendee?

(2) Is the signer, or his legal representative, bound by the terms of a contract contained in fine print, which he did not read, under the circumstances here appearing?

1. In presenting the first question, counsel for appellant concede that personal property may be sold or contracted to a purchaser, to be by him retained and used for his pleasure or business, and that such contracts are valid and binding upon the creditors of, or purchasers from, the conditional vendee, and they call attention to nearly a score of such cases.

They claim, however, that it is equally well settled, by the great weight of authority throughout the United States, that personal property sold or delivered with the express understanding that the same is to be resold is an exception to the general rule applicable to conditional sales, and that such a sale or delivery of property is inconsistent with the continued ownership of the vendor, and is void as to creditors of or subsequent purchasers from said vendee. In support of this proposition counsel cite the dissenting opinion of Justice Grant in Excelsior Iron Works v. Lee, 123 Mich. 499 (82 N. W. 207) ; Ludden v. Hazen, 31 Barb. (N. Y.) 650; Mishawaka Woolen Manfg. Co. v. Westveer, 191 Fed. 465 (112 C. C. A. 109), and a large number of cases from other States; also John Deere Plow Co. v. Mowry, 222 Fed. 1.

In reply counsel for plaintiff claim that upon this proposition the courts of this country may be divided into four classes:

(1) Those holding contracts of conditional sale void as against public policy, whether filed or recorded or not. Examples of such courts, are those of Kentucky and Tennessee.

(2) Those holding such contracts valid between the parties and those having notice thereof, when they relate to specific articles, such as a horse, piano, etc., but void, as against public policy, when they relate to sales of merchandise intended for resale at retail, and that examples of such courts are those of New York, Indiana, Mississippi, and Texas.

(3) Those holding such contracts valid between the parties and those having notice thereof, no matter whether or "not they relate to specific articles or to merchandise intended for resale, but invalid as against innocent purchasers, mortgagees, etc., unless filed or recorded in the proper clerk’s office, and that examples of such courts are those of Ohio, Minnesota, North Dakota, and Wisconsin.

(4) Those holding such contracts valid, whether they relate to specific articles or to stocks of merchandise intended for resale, not only between the parties and those having notice thereof, but also as between the conditional vendor and an innocent purchaser or mortgagee of the vendee, or between the vendor and the attachment or judgment creditors of the vendee, or as between the vendor and the assignee in insolvency proceedings or trustee in bankruptcy of the vendee, irrespective of whether or not such contracts are filed or recorded; that examples of such courts are those of Michigan, Massachusetts, Vermont, Connecticut, and Arkansas; and that no court has gone further to sustain contracts of conditional sale than has this court, and that in no case has this court held such contracts void or against public policy, whether they related to the sale of merchandise intended for resale or only to a specific article intended for use by the vendee.

In support of this claim plaintiff’s counsel cite the following cases: F. J. Dewes Brewery Co. v. Merritt, 82 Mich. 198 (46 N. W. 379, 9 L. R. A. 270); Pratt v. Burhans, 84 Mich. 487 (47 N. W. 1064, 22 Am. St. Rep. 703) ; American Harrow Co. v. Deyo, 134 Mich. 639 (96 N. W. 1055) ; Edwards v. Symons, 65 Mich. 348 (32 N. W. 796) ; Hood v. Olin, 68 Mich. 165 (36 N. W. 177) ; Bunday v. Machine Co., 143 Mich. 10 (106 N. W. 397, 5 L. R. A. [N. S.] 475) ; Worden Grocer Co. v. Blanding, 161 Mich. 254 (126 N. W. 212, 20 Am. & Eng. Ann. Cas. 1332); Wasey v. Whitcomb, 167 Mich. 58 (132 N. W. 572) ; and many of our earlier cases. Many cases are also cited from other States.

We cannot here undertake to analyze all of the cases cited by counsel. We shall not refer to the many cases cited relating to the sale of personal property which has been attached as fixtures to the realty, as we are not dealing with that question. We shall refer to a few only of our own cases.

In F. J. Dewes Brewery Co. v. Merrit, supra, the plaintiff shipped beer to Lentz Bros, under the following contract:

“Big Rapids, Mich., Dec. 18, 1888.
“It is hereby agreed by and between the F. J. Dewes Brewing Company, of Chicago, Illinois, and Lentz Bros., of the city of Big Rapids, Michigan,
“1. That the F. J. Dewes Brewing Company agree to ship to Lentz Bros., all beer ordered by them at the following price, $5.75 per barrel f. o. b., at Big Rapids, and that the right, title, and interest of said beer is to remain and rest in the F. J. Dewes* Brewing Company until sold; and we, the said Lentz Bros., agree to take the said beer, and pay for the same, on above conditions.”

Signed by the parties.

The brewing company under the above contract sent to Lentz Bros, two car loads of beer, which were received by them at Big Rapids. After they had sold about one and one-half car loads, the remainder was levied upon by the defendant, as sheriff of Mecosta county, and was taken away by him upon an execution in his hands, issued upon a valid judgment in favor of a creditor of one of the members of the firm of Lentz Bros. The circuit judge instructed the jury that, under the terms of the agreement, the absolute title to the beer passed at once to Lentz Bros, and was subject to levy and sale under the execution, and a judgment in replevin was entered for the defendant. In reviewing that judgment this court said:

“Now, the contract was one which it was competent for the parties to make, unless it was yoid as being against public policy. The brewery company had a right to say,—
“ ‘We will fill your order for beer, wbicb you may sell as you choose, but tbe title shall remain in us until you do sell, and then the title will.pass to the purchaser, in which case we will trust to your personal responsibility to pay us, at the rate of $5.75 a barrel.’
“The effect of such contract was that the property not sold remained the property of. the company, and the firm owed them for all they had sold. * * * This court has gone very far in sustaining conditional sales, and has never declared them void, or different from what the parties have intended by their agreement [citing cases].
“The authorities cited above show the principles upon which this court has proceeded in upholding such contracts, and it is unnecessary to restate them here or to review the decisions of other courts holding a different view.”

In Pratt v. Burhans, supra, plaintiffs entered into a contract with the Owosso Cigar Company by which they agreed to. send and deliver to it a quantity of cigars, the title thereto to be retained in plaintiffs until paid for or sold, and, when sold, the accounts to belong to them. The defendant, Burhans, had indorsed for the Owosso Cigar Company. Plaintiffs shipped goods to the cigar company, and shortly after it turned over all its stock, including the cigars shipped by plaintiffs, to the defendant, and gave him a bill of sale thereof, which the latter claimed was a bona fide purchase, in consideration of his indorsement. Defendant took possession of the goods. After demand and refusal plaintiffs brought replevin. In this court it was held that the sole issue for the jury was whether plaintiffs and the Owosso Cigar Company made a contract by which the title of the goods was to remain in the plaintiffs until they were paid for or sold in due course of trade. Justice Grant said:

"The defendant did not buy them in the due course of trade; and therefore, if such a contract was made, the plaintiffs were entitled to recover. Such a contract is valid under the repeated decisions of this court, and we are not concerned with the decisions of other courts upon the subject. Those who purchased in the usual course of trade would take a good title. Those who did not purchase in the usual -course of trade could not rely upon the bare possession of their vendor as conclusive evidence of title.”

Counsel- for defendant claim that these two cases were really overruled by this court in People v. Newman, 99 Mich. 148 (57 N. W. 1073). We do not so understand it. The Newman Case did not involve the question of conditional sale. There the respondent was charged with selling beer at wholesale without having filed the bond and paid the tax required by law. His contention was that he was acting as agent of a brewing company, and he relied upon a contract, which appears in the opinion. The trial court instructed the jury that, under the terms of the contract there was practically a sale of the beer to the respondent, and that he was not an agent, but a purchaser. This court affirmed the conviction. In our opinion, the only cases in this court which might be claimed to be authorities against the application of the principle of conditional sale, as heretofore stated, are Choate v. Stevens, 116 Mich. 28 (74 N. W. 289, 43 L. R. A. 277) ; Van Den Bosch v. Bouwman, 138 Mich. 624 (101 N. W. 832, 110 Am. St. Rep. 336) ; and Coeling v. Green, 163 Mich. 27 (127 N. W. 792). A careful examination of these cases discloses the fact that they fully recognize the principle enunciated by this court in the cases above quoted from. This becomes more evident by the fact that we have in the subsequent cases of American Harrow Co. v. Deyo, supra, Bunday v. Machine Co., supra, and Worden Grocer Co. v. Blanding, supra, care-fully distinguished the Choate and Van Den Bosch Cases from the former cases, and reaffirmed the principle established in the earlier cases. As we said in the recent case of Atkinson v. Japink, 186 Mich. 335 (152 N. W. 1079), whether a sale of personal property is absolute or conditional depends upon the contract of the parties. The distinction attempted to be made by counsel for appellant was alsq attempted in Mishawaka Woolen Manfg. Co. v. Westveer, supra, in the circuit court of appeals, a case arising under the law of Michigan. In that case Judge Warrington said:

“It is argued that decisions passing upon contracts in terms reserving title in articles delivered for personal use of the original taker, like machinery, pianos, and sewing machines, are distinguishable from decisions under similar contracts relating to articles delivered for purposes of resale. We do not discover that the Supreme Court of Michigan has made such a distinction, and it is difficult to see any sufficient reason for its existence. Both classes of articles are delivered into the possession and control of the first taker, without notice to any other person of any title or interest retained in them. They are alike chattels, which, in such instances, connote ownership and the right of sale in their possessor. Any one having dealings in respect to them with a person in possession and control, without notice and for a present valuable consideration, ought to secure the same rights with regard to the one class as the other.”

It is true that in that case the court held that it was within the principles of Choate v. Stevens and Van Den Bosch v. Bouwman, supra. The contract in that case differed from the contract in the instant case, in that there was nothing in the agreement in that case which purported to give title' to the vendor in any of the proceeds of sale, whether received in the form of notes, accounts, or cash. That fact is pointed out by the court. In that respect the form of contract was changed before it was signed by Van Sickle. It is true that in John Deere Plow Co. v. Mowry, supra, Judge Denison said:

“It is true that in the Mishawaka Case there was special reliance on the fact that the contract did not attempt to preserve to the vendor a substituted title to the proceeds when the goods were sold, and that in the present case this reservation is, in terms, made; but we are not satisfied, taking all the conditions together, to treat this as a controlling distinction.”

After a careful review of our own decisions, we are of the opinion that the position of the plaintiff is the correct one, and that the trial court reached the correct conclusion upon the subject. The views of the defendant cannot prevail without overruling the repeated decisions of this court which have become fundamental in business transactions in this State. The legislature can readily change the rule by requiring the recording of such contracts, as in the case of chattel mortgages. (See Act No. 64, Pub. Acts 1915.)

2. It is claimed that the reservation of title was fraudulent because the clause was in fine print, and the attention of the purchaser was not called to it. A fac simile of the contract is attached to the record. An inspection shows that the clause complained of was in the same sized type as the remainder of the contract. It was in the body of the instrument just above Van Sickle’s signature. There is very little other printed matter in the contract. He should have read it, and if he did not do so, he alone is to blame. In the stipulation of facts it is stated that:

“Plaintiff’s agent called upon said Joseph D. Van Sickle and took an order for goods in the usual way, on blanks furnished by plaintiff.”

There was no attempt on the part of plaintiff’s agent to conceal this clause from Van Sickle. The latter had purchased goods in previous years of the plaintiff. It is fair to presume that the previous orders had been upon similar blanks. Weight must always be given to the fact of the execution of a contract; and the presumption which exists in favor of written instruments cannot be overcome, except upon evidence from which an inference of duress, deception, misrepresentation, substitution, or artifice is clearly deducible. Such evidence is wanting here. Sullivan v. Ross Estate, 98 Mich. 570 (57 N. W. 821), citing Campau v. Lafferty, 50 Mich. 114 (15 N. W. 40) ; Houghton v. Ross, 54 Mich. 335, 336 (20 N. W. 66). See, also, Pettyplace v. Manufacturing Co., 103 Mich. 155 (61 N. W. 266) ; Bonnott Co. v. Newman Bros., 108 Iowa, 158 (78 N. W. 817).

We find no error in the record, and the judgment of the circuit court is affirmed.

Brooke, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


author: Kuhn, J.

text:
    FIRST NATIONAL BANK OF SAULT STE. MARIE v. ÆTNA INSURANCE CO.
    Insurance — Trespass—Logs and Logging — Moral Hazard.
    Under the provisions of a lire insurance policy on lumber which, without the actual knowledge of the insured, had been mixed with property taken from State lands, by acts of trespass (for which it had settled with the State after date of loss), the moral hazard was not so increased as to avoid the policy on the ground that the insured was not sole and unconditional owner, the value of the lumber owned by plaintiff and covered by the policy being in excess of the insurance.
    Error to Chippewa; Fead, J.
    Submitted June 15, 1915.
    (Docket No. 43.)
    Decided September 28, 1915.
    Assumpsit by the First National Bank of Sault Ste. Marie against the ¿Etna Insurance Company of Hartford, Connecticut, on a policy of fire insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Lucking, Helfman, Lucking & Hanlon (M. H. Baxter, of counsel), for appellant.

      Warner & Sullivan, for appellee.
   Kuhn, J.

This action is brought on a Michigan standard fire insurance policy issued by the defendant to the Northern Timber Company to cover lumber destroyed by fire at Perry’s Landing, on the shores of Lake Superior, June 17, 1913, which policy was assigned after loss to the plaintiff. The treasurer of the assured, Mr. Stegeman, made verbal application to the defendant’s agent for the insurance. The agent looked over the situation, and policies, including the one here in suit, were issued from time to time; the amount of insurance being increased as the lumber was cut. At the time of the fire there was piled at Perry’s Landing a little over 2,500,000 feet of lumber, of which the assured owned approximately 900,000 feet. The policies all described the property assured as “covering lumber, lath, and shingles, if any, owned by assured, or held in trust or on commission, or sold, but not delivered.” The amount of insurance on the lumber of the Northern Timber Company was $5,000. The estimate of the value of the lumber covered by this insurance, made by Mr. Wright, an adjuster sent by the insurance company to adjust the loss, was $9,003. After the fire the State made a claim for the value of lumber which it was alleged had been taken from State lands, and a settlement was arrived at for the alleged trespassed lumber by the payment to the State of $1,450. There does not seem to be any dispute that the insured had no actual notice or knowledge of any claim as to trespassed lumber until after the fire. At the close of the testimony, it being stipulated by counsel that there were no facts to be submitted to the jury, the court directed a verdict for the plaintiff for the amount of the policy.

It is the contention of counsel for appellant that by reason of the trespassed lumber being mixed with the lumber of the insured there resulted a confusion of goods, and that the circuit judge erred in not charging the jury that the burden of distinguishing and pointing out its own lumber was upon the assured, who carelessly and wrongfully produced the confusion in mixing its own lumber with that of the State. The circuit judge, in directing a verdict, said:

“There is no evidence to substantiate the claim that any part of the trespassed timber was intermingled with the timber of the assured, or that the assured did not have unconditional ownership of the property covered by this policy.”

It will be noticed that the policy did not cover all the lumber at the place where the fire occurred, but in express terms provided that it should cover only “lumber owned by the assured,” the value of which, the record discloses, was considerably in excess of the total amount of the insurance. We are of the opinion that the question of the confusion of goods is not material, or of any consequence, in the case before us, as we are satisfied that the circuit judge was correct in charging that there was no evidence before the jury that the assured did not have unconditional ownership of the property covered by the policy.

As it appears that at the time of the insuring of the property the insured had no knowledge of the fact that trespassed lumber had become mixed with the lumber owned by it, and no knowledge of such claim was had until after the fire, it cannot be said that the mixing of the lumber increased the moral hazard. It is true that the parties to the insurance contract must be held to its terms, and, as was said by this court in Wierengo v. Insurance Co., 98 Mich. 621 (57 N. W. 833), reaffirmed in Wyandotte Brewing Co. v. Insurance Co., 144 Mich. 440 (108 N. W. 393, 6 L. R. A. [N. S.] 852, 115 Am. St. Rep. 458):

“An insurer is not required by the law to inquire into the condition of the title to the property insured, or to inform the insured of all the conditions and terms of the policy to be issued, or to read it to him, or inform him of its contents. When received and accepted without objection, he must be bound by its terms, unless these terms are waived by the insured. This is the law of contracts, and there is no reason or authority for holding that an insurance contract is an exception thereto.”

In the instant case, however, if the insured had read the contract — which it may be assumed that it did— nothing would have been seen therein that is inconsistent with the true facts. There is no question here of misrepresentation, or of fraud or concealment. The defendant’s agent examined the property owned by the insured, which it is conceded was largely in excess of the amount of the insurance, and now, because a comparatively small amount of other lumber than that owned by the insured was mixed with that of the insured, unknown to it, it should not be said that the policy is void because the insured was not the sole and unconditional owner of the property insured.

Being of the opinion that the trial judge properly directed a verdict for the plaintiff for the reason stated, we affirm the judgment.

Brooke, C. J., and Stone, Ostrander, and Bird, JJ., concurred. Moore and Steere, JJ., did not sit.

The late Justice McAlvay took no part in this decision.


text:
    FIRST NATIONAL BANK OF SAULT STE. MARIE v. CALEDONIAN INSURANCE CO.
    Error to Chippewa; Fead, J.
    Submitted June 15, 1915.
    (Docket No. 44.)
    Decided September 28, 1916.
    Assumpsit by the First National Bank of Sault Ste. Marie, against the Caledonian Insurance Company, a foreign corporation, upon a policy of fire insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Lucking, Helfman, Lucking & Hanlon, for appellant.

      Warner & Sullivan, for appellee.
   Kuhn, J.

This is a companion case of, and was submitted with, First National Bank v. Insurance Co., ante, 251 (153 N. W. 1063), decided herewith. The same form of policy, the same state of facts, and the same legal questions are involved in this case as in that case, and therefore the decision herein is controlled thereby.

We therefore affirm the judgment of the court below.

Brooke, C. J., and Stone, Ostrander, and Bird, JJ., concurred. Moore and Steere, JJ., did not sit.

The late Justice McAlvay took no part in this decision.


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    KANGAS v. CLEVELAND CLIFFS IRON CO.
    1. Master and Servant — Mines—Timbering—Feelow Servants.
    Evidence tending to establish that plaintiff, an experienced miner in defendant’s employ, was injured by a fall of rock from an old stope below which his work was carried on, that the day shift which preceded him was charged with the duty of timbering the roof from which the fall took place, and that they omitted to block up the opening into the old stope, as they should have done, justified the trial court in directing the jury to return a verdict for defendant under the fellow-servant doctrine, since the failure of the men charged with the duty of putting in the sets so as to block up the alleged opening was the work of fellow servants of plaintiff whose duties in the night shift included the work of removing timbers from the drift and replacing them with new timbers.

      2. Same — Con-Association Rule.
    The so-called con-association rule, applied in Illinois and other States, that the employees must co-operate in the business in hand in the same line of employment, or that their duties should bring them into habitual association so that they might exercise a mutual influence on each other promotive of caution, etc., in order to make them fellow servants, has not been adopted in Michigan, and, hence, it is not the rule in this State that the employees must be engaged in common employment at the same time.
    3. Same — Fellow-Servant Rule.
    Those who serve the same master, work under the same control, derive authority and compensation from the same common source and are engaged in the same general business, though in different grades or departments of it, are fellow servants. ,
    4. Same — Non-Delegable Duties — Warning.
    Defendant mining company was not liable to plaintiff for breach of the nondelegable duty to warn him of the danger from falling rocks, etc., where plaintiff was familiar with the work of retimbering, which it was usual for miners to do, and the men selected to perform the -labor were competent and plaintiff was engaged with them in the work of making the place safe.
    Error to Marquette; Flannigan, J.
    Submitted June 23, 1915.
    (Docket No. 27.)
    Decided September 28, 1915.
    Case by Jacob Kangas against the Cleveland Cliffs Iron Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      N. A. Ruonavaara and Le Gendre & Driscoll, for appellant.

      William P. Belden and Thomas Clancey, for appellee.

      On the responsibility of master for safe place to work when conditions are changing, see notes in 19 L. R. A. (N. S.) 340, 28 L. R. A. (N. S.) 1267.
      As to servants in mine as fellow servants, see note in 50 L. R. A. 437, 461.

   Kuhn, J.

The plaintiff was injured while in the defendant’s employ as a miner in the Lake mine, in Marquette county, on May 18, 1910. At the time of the accident the mine was being operated by two shifts; the day shift commencing work at 7 o’clock and ending at 6 o’clock, and the night shift commencing at 7 o’clock and ending at 6 o’clock. These shifts were engaged in the work of removing certain old timbers from a sublevel and replacing them with new ones, because the pressure ©f the mine had gradually crowded the timbers down until the space in the drift had become too small to permit the tram cars to pass through. With this operation the plaintiff was familiar, as he had helped repair and fix up old timber sets before.

It is the claim of the plaintiff — and there is testimony in support thereof — that the men of the day shift were negligent in carrying on this work, in that they did not block up the space which was left between the top of the second set of timbers and the back of the drift or sublevel, and it is claimed that there was a hole which led from the opening at the top of the lagging up into an old stope, and that the rock which injured the plaintiff came down from the old stope, out through this hole, which was left by reason of the absence of blocking, and struck the plaintiff.

As it was conceded that, if the men who were charged with the duty of putting up these sets, putting in the lagging, and blocking it, had performed their duty, the accident would not have happened, the learned trial judge directed a verdict for the defendant, for the reason that, if the accident happened as claimed by the plaintiff, it was the result of the negligence of the fellow servants of the plaintiff, and not of any negligence on the part of the defendant, and that therefore the plaintiff could not recover.

Is is the contention of counsel for the appellant that the fellow-servant rule is not applicable in the instant case, because the employee who was injured and the employees because of whose negligence the accident happened were not working for the same master at the' same time. In support of their contention they invoke what is known as the “con-association doctrine” by the authorities. This doctrine is chiefly in vogue in the State of Illinois, and holds that, in order to constitute servants of a common master fellow servants, it is essential that they should at the time in question actually co-operate with each other in the particular business in hand in the same line of employment, or that their duties, should be such as to bring them into habitual association,, so that they may exercise a mutual influence on each other promotive of proper caution. See 4 Thompson on Negligence, § 4970; 26 Cyc. p. 1279; Chicago, etc., R. Co. v. Moranda, 93 Ill. 302 (34 Am. Rep. 168).

We cannot find, however, that this doctrine has ever found support in the decisions of this court. The definition of a fellow servant which has been approved repeatedly is found in McCauley v. Railroad Co., 167 Mich. 230, 236 (132 N. W. 510, 512), where this court said:

“The general rule in this State, as repeatedly held by us, is that—
“ ‘all who serve the same master, work under the same control, derive authority and compensation from the same common source, and are engaged in the same general business, though it may he in different grades or departments of it, are fellow servants.’ Adams v. Iron Cliffs Co., 78 Mich. 271-288 (44 N. W. 270, 18 Am. St. Rep. 441).”

In the application of this rule, it has never been held that the employees need be engaged in the same common work at the same time. It seems to be sufficient if they are in the employment of the same master, engaged in the same common work, and performing duties and services for the same general purpose. See Hoar v. Merritt, 62 Mich. 386 (29 N. W. 15) ; Caniff v. Navigation Co., 66 Mich. 638 (33 N. W. 744, 11 Am. St. Rep. 541); Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (61 N. W. 658, 27 L. R. A. 266) ; Koskell v. Mining Co., 182 Mich. 586 (148 N. W. 699). It will be noted that in the instant case the day and night shifts were engaged in exactly the same work; the incoming shift simply taking the place of the outgoing shift. In the case of Mirabile v. Murphy Co., 169 Mich. 522 (135 N. W. 299), a case relied upon by appellant, it appears that the plaintiff, who was a j anitress in the Penobscot Building in Detroit, was riding up an elevator at the time of the injury, but she had not as yet reached the place where her work began. This court held that up until the time she actually began to work she was not subject to the fellow-servant rule, because the relationship of master and servant did not exist. Likewise in the case of Moronen v. McDonnell, 177 Mich. 691 (143 N. W. 8), although the plaintiff was. an employee of the defendant, at the time of the accident he was not at work. The accident occurred during the noon hour, while the plaintiff was sitting on the grounds in the vicinity of the quarry, eating his dinner, and this court held that the relationship of master and servant did not exist

—‘‘between him (the plaintiff) and defendant, in the strict sense requisite to make applicable the fellow-servant rule or the doctrine of safe place and duty to instruct due from master to servant.”

Under the facts in this case, and under the law of this State as established by the decisions of this court, there can be no escape from the conclusion that the relationship of fellow servant between the employees of the day and night shifts did exist.

It is also urged by counsel for appellant that the defendant owed the plaintiff the nondelegable duty to warn him of the existence of the dangers in this case. There is no question made but that the plaintiff himself was an experienced miner, and, as he himself stated, was familiar with the work in which they were engaged at the time of the accident, and that it was usual and customary for the miners to do the work of retimbering. There is no question but that the men whom the defendant selected for this purpose were skilled and experienced in this particular line of work, and that they were engaged in the work of making a safe place. We think what was said by this court in Andrews v. Mining Co., 180 Mich. 72 (146 N. W. 394), is applicable here.

“Under the undisputed evidence in this case, as far as performing his work was concerned, plaintiffs decedent was engaged in making a safe place, and it is self-evident that it would be an impossibility for the defendant to cause the timbering in this stope to be done in advance for the protection of the men who themselves were specially employed to' put in the timbering. The dangers were only those necessarily incident to the employment, changing from hour to hour, as the work progressed, and it is apparent that, by reason of the character of the work and the dangers attending it, miners of extraordinary skill and experience were selected, invested with power and authority to determine for themselves the safety of the place before going to work. This court has held that under, circumstances of this character the doctrine of safe place does not apply. Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505).”

The absolute and nondelegable duty to warn arises in this jurisdiction as an incident of the defendant’s duty to furnish and maintain a reasonably safe place for the plaintiff to perform his work. In the case before us the plaintiff himself was engaged in the very work of making the place safe, and, as we have stated, in such a case the doctrine of safe place does not apply. Mikolojczak v. Chemical Co., 129 Mich. 80 (88 N. W. 75) ; Koskell v. Mining Co., supra; Zap v. Mining Co., 184 Mich. 437 (151 N. W. 554) ; Juntunen v. Mining Co., 184 Mich. 341 (151 N. W. 571) ; Mesich v. Mining Co., 184 Mich. 363 (151 N. W. 564) ; Vrelenich v. Mining Co., post, 407 (154 N. W. 39).

Judgment is affirmed.

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

The late Justice McAlvay took no part in this decision.


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      In re THAYER’S ESTATE. THAYER v. THAYER.
    1. Appeal and Error — Undue Influence — Curing Error.
    Any possible prejudice that may have resulted from submitting to a jury the question of undue influence in a ■will contest, or from admitting evidence upon the subject, was cured by a special finding that decedent was incompetent to execute a valid testamentary disposition of his estate.
    2. Wills — Evidence—Incompetency.
    Evidence that the testator, whose will was offered for probate, suffered financial reverses, became moody, ceased to attend church and lost his affection for his family, accused his wife of extravagance and left his family without bidding them good-bye, later charging the wife with adultery without grounds therefor, and remaining away from them until his death, that he became possessed with the belief that some of his children were illegitimate and cursed them when they were referred to, held, to warrant the determination of the jury that he was mentally incompetent.

    3. Same — Insanity—Reputation.
    The trial court committed no error in admitting testimony that the wife’s reputation for chastity was good, in a will contest wherein the contention was made that testator had an insane delusion or belief that she was guilty of infidelity.
    4. Same — Reputation—Insanity.
    In corroboration of the wife’s denial that she had been unfaithful, the question what her reputation was in the community was not erroneous on the ground that her general reputation was in question.
    5. Witnesses — Husband and Wipe — Pbiviuege.
    Notwithstanding the privilege created, by section 10213, 3 Comp. Laws (5 How Stat. [2d Ed.] § 12857), providing that neither husband nor wife shall, after marriage, be examined as to any communication made by one to the other during the continuance of the marital relation, the widow, in a contest concerning her husband’s will, might properly be asked if the testator, who was claimed to have been laboring under an insane delusion that his wife was unfaithful, had ever accused her of infidelity.
    Error to Ingham; Collingwood, J.
    Submitted June 29, 1915.
    (Docket No. 49.)
    Decided September 28, 1915.
    Edson Thayer presented for probate the will of John Thayer, deceased. It was admitted in probate court and John Arthur Thayer appealed to circuit court. Judgment for contestant. Proponent brings error.
    Affirmed.

      Person, Shields & Silsbee, for appellant.

      McArthur & Dunnebacke (Alva M. Cummins, of counsel), for appellee.

      As to insane delusions as affecting capacity to make will, see note in 12 L. R. A. 161, 27 L. R. A. (N. S.) 62.

   Kuhn, J.

This litigation arises out of a contest with reference to what purported to be the last will and testament of John Thayer, deceased. He was born in the State of New York in 1843, and in 1871 was married at Mason, Mich. As a result of this marriage five children were born. One died, and at the time of the trial there were surviving, his widow, Mary Thayer, and four children, Arthur, Frank, Bertha, and Fred. John Thayer had a brother, Edson Thayer, who survived him and was the sole devisee and beneficiary named in his will. John Thayer and his family lived at first on a 90-acre farm, and afterwards on a 40-acre farm, in Ingham county, until 1891, when he went to Dakota to work in harvest time, and with the exception of a short visit home that winter and in 1900 he remained there until 1910, when he returned to Michigan and lived with his brother Edson the remainder of his life. In 1900, while in Dakota, he filed a bill for divorce, and charged on information and belief that his wife committed adultery with one Henry Wrang on the farm in Ingham county. The wife appeared in the suit, filed an answer, and a decree of divorce was awarded her, which provided also that the 40 acres, the homestead in Ingham county, be assigned, transferred, and set over to her. Subsequently she filed a bill against John Thayer and Lafayette Near, who held the paper title to the farm, in the Ingham circuit court in this State, seeking to have the order of the South Dakota court as to the real estate enforced and the 40 acres turned over to her. John . Thayer appeared, and the bill was dismissed. In 1907 she filed a bill for divorce in the Ingham circuit court, to which John Thayer filed an answer, but the case does not seem to have been finally disposed of.

The will in question was made on December 28, 1910, at the office of John I. Carpenter, an attorney in the city of Lansing, and at. the same time his brother, Edson Thayer, also made a will, naming John Thayer as his sole beneficiary and devisee. John Thayer’s will was duly admitted to ¡probate, and on an appeal to the circuit court by Arthur Thayer, one of his sons, a verdict was rendered in favor of the contestant. Two propositions on the trial were insisted upon by the contestant, viz., that the will was made and executed as the result of undue influence and duress exercised over John Thayer by his brother, Edson A. Thayer, and that at the time of making and signing the will John Thayer was mentally incompetent to make and execute the same. There was submitted to the jury, at the request of counsel for contestant and appellee, the following special question:

“Was the testator, John F. Thayer, at the time of making the will in question, mentally incompetent to make the same, by reason of an insane delusion or delusions, as claimed by the contestant in this case?”

This was answered “Yes” by the jury. There are 134 assignments of error, which in a large measure refer to rulings of the court upon the admission and rejection of testimony.

Counsel for appellant urge strongly that the court was in error in submitting to the jury the question of undue influence, as it is claimed that the record is entirely barren of any competent testimony in support of this claim of the contestant. But in answer thereto it is said that, even if this were conceded, it would be wholly immaterial, as, the jury having found by its answer to the special question which was submitted to it that the testator was mentally incompetent to execute the will in question, the will cannot stand, irrespective of the question of undue influence. While we are not satisfied that it can be said that there was no evidence of undue influence which warranted the submission of that question to the jury, in our opinion, even if there were none, the error committed in submitting the question must be said to have been harmless, in view of the special finding of the jury on the question of mental competency.

It is also proponent’s claim that there is no competent proof in this record of mental incompetency on the part of the deceased. With this we cannot agree. It is the claim of the contestant, upon this branch of the case, that, when John Thayer and his family left the 90-acre farm and moved on the 40-acre farm because of financial reverses, it marked a complete change in his life. Before that time, it is claimed that he was in all respects a normal man, kind to his children, an habitual attendant at church, and public-spirited. After a short stay on the smaller farm he began to brood, stopped work, stayed away from church, and instead of loving his family began to curse them. He at first began to accuse his wife of extravagance, and in August, 1891, left for Dakota without saying goodbye to any member of the family or telling them how long he was going to stay away. He remained away until Christmas time, and returned on Christmas eve, unannounced, and the family on returning from Christmas exercises found him in the house, at which time he did not kiss or shake hands with any of his children. He left again in March, 1892, without saying good-bye to any of his children, not even bidding farewell to his eldest son, Arthur, who .took him to the train.

It appears that while in Dakota he cherished a violent dislike and resentment toward his wife and his children, and in 1900 filed the bill charging his wife with adultery on information and belief. In 1907, in the answer which he filed to the bill filed by his wife in this State, he alleged that “in the spring of 1892, he personally detected her in an act of illicit carnal intercourse and adultery, at their residence, with one Henry Wrang.” It is the claim of the contestant that there was absolutely no ground for this charge, and that it was the product of an insane delusion. This it is claimed is evidenced by the fact that, when the charge is first made in 1900, he claimed knowledge of it on information and belief, and seven years later claims to have personally detected it, and also by the fact that the proofs show that Henry Wrang was not in Aurelius township, where the farm is located, in 1892, and had not been seen by any member of the family for years, and that he also became obsessed with the insane delusion that his youngest boy was illegitimate, and on referring to his children called them vile names. It will be impossible to review the testimony of witnesses who described his conduct during his stay in Dakota, and told about his cursing and swearing and the excitable condition of mind he got into when the names of his wife and family were mentioned. It will be sufficient to say that in our opinion there was abundant testimony to warrant the court in submitting to the jury the claim of contestant that his father was suiferirig from an insane delusion, and that the will as made was a result thereof.

Many of the assignments of error relate to testimony concerning the question of undue influence, and we are satisfied after reviewing this testimony that any errors committed in the admission or rejection of testimony with relation thereto were harmless, for the reason mentioned above — that the will must necessarily fall because of the determination of the jury of the special question as to mental incompetency.

Assignments of error are based on the method of proving the chastity of the testator’s wife, and the competency and' materiality of such testimony. To illustrate the character of this proof: The witness Sarah Phillips was asked the following question, after showing that she had known Mary Thayer for 40 years and lived on an adjoining farm:

"Q. I want to ask you, Mrs. Phillips, if you know what her reputation has been for chastity in that community?
“Mr. Shields: That is objected to as incompetent and immaterial.
“The Court: You may have an exception.
“A. It has been the very best. I never heard it questioned in any way.”

That such evidence is permissible in a suit of this kind, we think is settled by the decision of this court in O’Dell v. Goff, 153 Mich. 643 (117 N. W. 59).

It is also contended that the form of the question was improper, as it should have been directed to her “general reputation.” We do not think it was necessay to include the word “general” in a question of this kind, as it would not be necessary in case the inquiry related to the general reputation of the witness in other respects. When it is sought to impeach a witness by showing that his general reputation for truth and veracity is bad, the rule contended for applies; but a distinction is made when it is sought to “impeach” a witness and when it is sought to “sustain” one. The distinction is pointed out in Lenox v. Fuller, 39 Mich. 268, where the court said:

“Where, however, the witness is not called to impair but to support credit, the ground is different. Not to have been talked about at all in regard to integrity is not to have been talked against, and it is not objectionable to show that the veracity of the witness has not been questioned.”

So in the instant case we think it was unobjectionable to show that the chastity of Mrs. Thayer had not been questioned in the neighborhood in which she lived.

Objection is made that the testimony of Mary Thayer should not have been received because of the prohibition contained in section 10213, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12857). The material part of the section to be considered is contained in the following language :

“Nor shall either, during the marriage. or after-wards, without the consent of both, be examined as to any communication made by one to the other during the marriage.”

The language “as to any communication made by one to the other during marriage” relates only to such communications as were recognized as “confidential communications” at the common law. See Hagerman v. Wigent, 108 Mich. 192 (65 N. W. 756); Ward v. Oliver, 129 Mich. 301 (88 N. W. 631). The wife was asked whether the husband had ever accused her of unchastity in any way, and she was allowed to answer “No.” This, in our opinion, does not come within the prohibition of the statute, as the testimony was not offered and did not show any communications between the parties, but rather the absence of them. We do not find in the other questions and answers objected to anything that can be said to have been a confidential communication.

By other assignments of error, criticism is made of the charge of the court, of certain answers to hypothetical questions, and conduct of counsel. We have examined them all, but do not find any prejudicial error committed by the trial judge. As we have said, we are of the opinion that there was sufficient evidence to warrant the jury in finding the testator to have been possessed of insane delusions, which affected the testamentary disposition here in question, under the following authorities: Haines v. Hayden, 95 Mich. 332 (54 N. W. 911, 35 Am. St. Rep. 566) ; Rivard v. Rivard, 109 Mich. 98 (66 N. W. 681, 63 Am. St. Rep. 566) ; In re Mansbach’s Estate, 150 Mich. 348 (114 N. W. 65) ; O’Dell v. Goff, 149 Mich. 152 (112 N. W. 736, 10 L. R. A. [N. S.] 989, 119 Am. St. Rep. 662); Id., 153 Mich. 643 (117 N. W. 59). The rule is well stated in Rivard v. Rivard, supra:

“Counsel ignore the other well-settled rule — that, while a man may be possessed of such capacity, he still may be unable to execute the will in question, on account of some delusion which has beclouded or taken away his judgment in regard to those who are the natural objects of his bounty. If a testator disinherits a daughter upon the belief that she is a bad woman, or that she is not his own offspring, or a son upon the belief that he is a drunkard, or his grandchildren upon the belief that his son-in-law has threatened to kill him, and it appears that there is no foundation in fact for any such beliefs, and they are shown to be mere delusions, a will disinheriting such children and grandchildren is void, notwithstanding he was entirely sane upon every other subject, and fully competent to manage his business affairs.”

This issue with reference to the mental competency, in our opinion, was submitted to the jury with proper instructions, and, finding no prejudicial error in the record, we affirm the judgment of the court below.

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

This is a case which was assigned to the late Justice McAlvay, remaining undetermined at the time of his death.