author: Steere, J.

text:
    PEOPLE, ex rel. ATTORNEY GENERAL, v. SPERRY & HUTCHINSON CO.
    1. Trading Stamps — Gift Enterprises — Status.
    The business of selling trading stamps to merchants to be distributed by them to customers purchasing goods and redeemable in articles by the seller of such stamps is, in the absence of prohibiting legislation, lawful.
    2. Constitutional Law — Statutes—Class Legislation — Trading Stamp Companies.
    Act No. 206, Pub. Acts 1911 (3 Comp. Laws 1915, § 15055 et seq.), forbidding merchants, or dealers in merchandise, from issuing trading stamps with an agreed redemption value to their customers as evidence of trade, unless redeemable by themselves, and making it a crime punishable by heavy fine and imprisonment for third parties to participate in the transaction by any arrangement to redeem them according to the terms under which they are issued, but allowing manufacturers to freely issue them, •either redeemable by themselves or any other person, is invalid as making discriminating classification.

    3. Same — Object Not Expressed in Title — Foreign Corporations.
    The act cannot be sustained as a valid limitation upon the corporate powers of a foreign trading stamp corporation under the reserved authority of the legislature to alter, amend or repeal corporate laws, because in section 9 it states that it is intended as a limitation upon the power “of any person, firm or corporation” doing business in the State, such object not being included in its title.
    4. Same — Statutes—Partial Invalidity — Effect.
    Where the unconstitutional portions of a statute are so interwoven with the whole purpose and operation of the statute as not to be fairly separable, the act should not be enforced in a form in which it was not passed, even though it contains a provision that it is to be held valid to the fullest extent possible, if found to be invalid in part.
    Quo warranto proceedings by the people of the State of Michigan, on the relation of Roger I. Wykes, attorney general, against the Sperry & Hutchinson Company to oust defendant from doing business in this State in violation of Act No. 244, Pub. Acts 1911 (3 Comp. Laws 1915, § 15055 et seq.).

    Submitted January 20, 1916.
    (Docket No. 139.)
    Judgment of ouster denied September 27, 1917.

      Grant Fellows, Attorney General (Wykes, Dilley & Averill, of counsel), for plaintiff.

      Alexander J. Groesbeck (Frank T. Wolcott, of counsel), for defendant.

      Stevenson, 'Carpenter, Butzel & Backus (William L. Carpenter, of counsel), for intervening customers of defendant.

      On constitutionality of prohibition against use of trading stamps, see note in 2 L. R. A. (N. S.) 588; 7 L. R. A. (N. S.) 1131; 30 L. R. A. (N. S.) 957; 49 L. R. A. (N. S.) 1123; L. R. A. 1917A, 433.

   Steere, J.

This quo warranto proceeding was instituted to oust defendant from doing business in this State as a trading stamp company in violation of the provisions of Act No. 244, Pub. Acts 1911 (3 Comp. Laws 1915, § 15055 et seq.), entitled:

“An act to restrain and to prohibit gift enterprises, to prevent the issuing, selling or giving away of trading stamps, or of certificates, coupons, or any token or writing redeemable with or exchangeable, in whole or in part, for articles of merchandise or value as prizes, premiums or otherwise/ by any firm, corporation or individual except as herein otherwise provided; to define what shall be treated as gift enterprises and trading stamps, and to fix the penalties for the violation of this act.”

Defendant is a corporation organized under the laws of the State of New Jersey. Prior to the passage of this act it had paid the franchise fee and fully complied with all the requirements of Act No. 206, Pub. Acts 1901 (2 Comp. Laws 1915, § 9063 et seq.), prescribing conditions under which foreign corporations are admitted to do business in Michigan, and received a license, or certificate therefor, from the secretary of State. It was then and had been for some time prior thereto engaged in the business of furnishing to dealers and redeeming, when issued by them, trading stamps, or coupons, in-the State of Michigan, and admittedly continued in that business up to the time of hearing in this case. Its defense is against the validity of the statute, which is claimed to be void because unconstitutional on various grounds, amongst which are, briefly stated, that it violates the due process of law and equal protection provisions of the fourteenth amendment of the Federal Constitution, impairs the obligation of contracts, prohibits legitimate advertising, describes defendant’s business as a “gift enterprise” and contrary to the public policy of the State, although there is no element of chance or gambling in it, prohibits defendant and others from engaging in an honest business not detrimental to public health, safety, morals, or the public welfare, imposes an excessive and confiscatory punishment for its violation, is discriminatory and unfair class legislation, and violates the provisions of our State Constitution that no law shall embrace more than one object, which shall be expressed in its title.

The not unfamiliar method of defendant’s business as a trading stamp company is to act as an intermediary between the buyer and seller, or the merchant and his customers, by what it terms a “co-operative discount system,” under which it contracts to furnish dealers in merchandise, for an agreed compensation, trading stamps redeemable at defendant’s place or places of business in articles kept by it for that purpose, the claimed beneficent features of which, to the merchant and his customer, being that the former is enabled to thus advertise his business by offering trading stamps, in the nature of discounts, to the latter, who can then go to defendant’s establishment and obtain in exchange without further cost some article of the value, or priced at, the amount represented by the stamp or stamps he produces.

The contract between defendant, called the “company,” and the merchant, called the “subscriber,” provides that the company will furnish the subscriber the use of its “S. & H. green trading stamps” at an agreed price and redeem them in specified articles of merchandise when presented by customers of the subscriber, who on his part agrees

“to offer to customers upon making purchases, and when accepted by them give as an evidence of cash trade, and only for redemption by said company, one of said stamps with each ten cents represented in the retail price of goods for which cash is paid, and not otherwise to procure, use or dispose of said stamps.”

By this plan of operation it is contended there is a value given to and consideration for the stamps issued to customers, payable in merchandise, not contingent on any hazard or chance, or involving any characteristics of a lottery or gift enterprise. In support of this contention the following cases are cited: State v. Shugart, 138 Ala. 86 (35 South. 28, 100 Am. St. Rep. 17); Humes v. City of Little Rock, 138 Fed. 929; Ex parte McKenna, 126 Cal. 429 (58 Pac. 916); City and County of Denver v. Frueauff, 39 Colo. 20 (88 Pac. 389, 7 L. R. A. [N. S.] 1131, 12 Am. & Eng. Ann. Cas. 521); In re Gregory, 219 U. S. 210 (31 Sup. Ct. 143); Territory of Hawaii v. Gunst & Co., 18 Haw. Rep. 196; Long v. State, 74 Md. 565 (22 Atl. 4, 12 L. R. A. 425, 28 Am. St. Rep. 268); State v. Gaspare, 115 Md. 7 (80 Atl. 606); Commonwealth v. Emerson, 165 Mass. 146 (42 N. E. 559); Commonwealth v. Sisson, 178 Mass. 578 (60 N. E. 385); O’Keeffe v. City of Somerville, 190 Mass. 110 (76 N. E. 457, 112 Am. St. Rep. 316, 5 Am. & Eng. Ann. Cas. 684); Sperry & Hutchinson Co. v. Temple, 137 Fed. 992; State v. Sperry & Hutchinson Co., 110 Minn. 378 (126 N. W. 120, 30 L. R. A. [N. S.] 966); People, ex rel. Madden, v. Dycker, 72 App. Div. 308 (76 N. Y. Supp. 111); People v. Gillson, 109 N. Y. 389 (17 N. E. 343, 4 Am. St. Rep. 465); People, ex rel. Appel, v. Zimmerman, 102 App. Div. 103 (92 N. Y. Supp. 497); City of Winston v. Beeson, 135 N. C. 271 (47 S. E. 457); State v. Dalton, 22 R. I. 77 (46 Atl. 234, 48 L. R. A. 775, 84 Am. St. Rep. 818); Young v. Commonwealth, 101 Va. 853 (45 S. E. 327).

That the business in which defendant is engaged is lawful in the absence of prohibiting legislation is unquestioned. Whether its characteristics are such in the field of trade and merchandising that it serves no legitimate purpose and is so intrinsically inimical to good morals and public welfare that it may be suppressed by legislation for the common good under the police power of the State, either by direct prohibition or by licensing it to death, has been a fruitful source of protracted litigation in numerous jurisdictions for many years. In times past the courts of last resort in some 15 or 16 States, and several Federal courts, have held that ordinances and statutes enacted to prohibit the trading stamp business were void as an invasion of the constitutional rights of those engaged in it, while other authorities less numerous are found to the contrary. Of the latter plaintiff cites and especially relies upon as conclusive the comparatively recent case of Rust v. Van Deman & Lewis Co., 240 U. S. 342 (36 Sup. Ct. 370, L. R. A. 1917A, 421, Am. & Eng. Ann. Cas. 1917B, 455), followed in the same volume by Tanner v. Little, 240 U. S. 369 (36 Sup. Ct. 379), and Pitney v. Washington, 240 U. S. 387 (36 Sup. Ct. 385).

Conceding, as contended by relator, that in the recent cases above cited the United States Supreme Court has held the trading stamp business is of such a character as to be within legislative control and may be suppressed under the police power of the State, the yet serious question remains of whether the statute upon which plaintiff relies is so framed as to be an honest, impartial, and valid exercise of that power in elimination of the condemned practice, to protect public morals, health, and safety for the general good. Its title, above quoted, indicates that purpose to the casual reader, conveying the impression that the use of trading stamps and gift enterprises in merchandising is under condemnation as a demoralizing practice with insidious potentialities inimical to the public welfare, which the act is designed to suppress. Looking to the body of the act to ascertain the method of its enforcement, it is found to be a criminal law of severity providing that:

“The violation of any provision of . this act shall be deemed to be a misdemeanor and is hereby made punishable by imprisonment in the county jail for not to exceed six months or by fine of not to exceed one thousand dollars or both in the discretion of the court.” Section 6 (3 Comp. Laws 1915, § 15060).

Further examination of this drastic law discloses that it is not designed to suppress the use' of trading stamps in merchandising by> the principals, but to eliminate agents, or middlemen, exempting from its eradicating provisions all manufacturers and dealers in merchandise who alone actually use with customers and deal out to the public in the course of their business the trading stamps, or coupons, in stimulation of their trade. This iriajor exemption is carried through the act, with one exception, in substantially the form found in section 1 (§ 15055), which is as follows:

“Gift enterprises and the issuing, furnishing or giving away of trading stamps or any certificate, coupon or writing of similar character other than for redemption or exchange directly by the person, firm or corporation furnishing, issuing or giving away the same for himself or itself and not for or on account of another, are hereby declared to be contrary to the public policy of the State of Michigan, and are hereby prohibited.”

The exception referred to is the concluding paragraph of the act (section 10 [§ 15064]), which reserved to those engaged in manufacturing, whether foreign or domestic corporations, companies, or individuals, the right to contract with others for the use and redemption in merchandise of their trading stamps, is as follows:

“This act shall not restrict or limit the right of any manufacturer of any goods or articles of merchandise to place in or uppn the packages or wrappers of or for his goods or merchandise, coupons, certificates or tokens, nor the redemption thereof, directly or indirectly.”

The substance of this act as elaborately worked out with abundant legal phraseology is a law which forbids the merchants, or dealers in merchandise, from issuing trading stamps or coupons with an agreed redemption value to their customers as evidence of trade, unless redeemable by themselves, making it a crime punishable by heavy fine and imprisonment for third parties to participate in the transaction by any arrangement to redeem them according to the terms under which they are issued, while manufacturers may freely issue them, either redeemable by themselves or any other person. As related to the suppression of this claimed trading stamp evil under the police power of the State, no logical reason exists for this discriminating classification. It is stated as a reason that a difference exists in their relations with the public, for the retailer deals directly with the customer, while the manufacturer deals only with the retailer or jobber, but the object of both is the same, and both participate in the transaction which by their joint efforts scatters trading stamps throughout communities amongst customers of the dealers and consumers of the manufacturer’s goods to stimulate the business of both. In itself this discrimination between manufacturer and merchant may be conceded a matter of which defendant could not complain, but.the underlying restriction on the dealer out of which it arises does directly concern defendant. Authority is cited to the effect that, under contracts like this between defendant and its subscribers, instead of it being their agent, they become agents of the trading stamp company to handle and distribute its coupons, or stamps, for it to redeem at a profit. In a sense, as between themselves, the transaction may take that color, but such is not their relation to the public, for whose protection this law purports to have been enacted. In the transaction by which the stamps are put afloat the stamp company only comes in contact with, the consumer, or buying public, as the representative of the merchant, to redeem the trade tokens which he has issued in connection with sales to his customers under an agreement by him with them that they will be redeemed in merchandise for a stated value. It is patent that the merchant is the major, and vitally essential, factor in the trading stamp business, without whose participation it could not exist as now constituted. If he was prohibited from practicing that method of stimulating trade, or declined to adopt it, all trading stamp companies and agencies would speedily die a natural death; but with them prohibited and totally eliminated the dealers, if unrestrained, could and presumably would continue the use of trading stamps, and issue them to the buying public to tempt customers in the same manner as before, with the same alleged baneful influence against good morals and public welfare. In the selective draft which this law makes from those engaged in trading stamp activities, such as are vitally essential to the existence of the business are exempted. If its suppression for the public welfare was the moving consideration for the law, a reversal of the plan of selection would seem to furnish a simple solution of the problem.

So long as the use of trading stamps by dealers to draw custom is countenanced and sustained as a lawful practice, it is difficult to discern any difference, in principle, whether in consummation of the transaction the merchant who negotiates it, and issues to his customers such “lure to improvidence” under a guaranty of redeemable value, redeems the stamp himself or has some one redeem it for him. As is said in People, ex rel. Madden, v. Dycker, supra:

“Just what there is in the thing prohibited, differing from the thing expressly authorized, that makes it inimical to the public welfare and general safety, does not appear.”

In People, ex rel. Appel, v. Zimmerman, supra, the court had under consideration a statute similar in the above particulars to Act No. 244. The following views upon that feature of the act are not inapplicable here:

“There is another infirmity in the statute which we apprehend renders it invalid. By subdivision 5, as already noted, the business of dealing in trading stamps is reserved for the merchant or manufacturer. This creates a preferential class. The vice, it seems, is not in alluring one to buy by promises of a gift, but in permitting a promise to be fulfilled by. another than the seller. It is a narrow ledge for the distinction to rest upon, when in one instance the transaction is subject to legislative control to the extent of confiscation, while in the other it goes without let or hindrance. If the seller, by arrangement with a reasonable company, secures the performance of the agreement, and the arrangement is satisfactory to the buyer, it would seem that such a plan ought not to be made a crime, while redemption by the merchant is deemed an honest transaction. The statute is not founded on the moral plane pretended, but belongs to that class of legislation designed to drive out of business a successful competitor.”

In the Rast Case, disagreeing with preceding authorities which upheld the trading stamp business as an honest and legitimate commercial method of advertising by giving discounts to customers, with which legislation might not interfere, the court said that:

Such schemes “rely on something else than the article sold. They tempt by a promise of a value greater than that article, and apparently not represented in its price, and it hence may be thought that thus by an appeal to cupidity to lure to improvidence. This may not be called in an exact sense a ‘lottery,’ may not be called ‘gaming’; it may, however, be considered as having the seduction and evil of such, and whether it has may be a matter of inquiry and of judgment that it is finally within the power of the legislature to make.”

So considered, the court held that, where such conditions were presented, and the legislature so determined, it might suppress the found evil by appropriate legislation under the comprehensive police power of the State because against good morals and inimical to the public welfare. This act in outline has that general tone. It is skilfully drawn and well worded to that end, but for its interspersed exceptions which approximate what is sometimes called a “joker” in legislation, serving to defeat the otherwise prominently indicated object of the act. It is in that particular of the class of legislation which the court said in Chaddock v. Day, 75 Mich. 527 (42 N. W. 977, 4 L. R. A. 809, 13 Am. St. Rep. 468), “should receive no encouragement at the hands of the courts.”

It is further contended for plaintiff that, if invalid as to firms, individuals, etc., the act should be sustained against defendant as a valid limitation upon its corporate powers under the reserved authority of the legislature to alter, amend, or repeal all corporate laws; it being particularly stated .in section 9 (§ 15063) of the act that it is intended as a limitation upon the power “of any person, firm or corporation” doing business in the State, and to be held “valid to the fullest extent possible” if found invalid as to any class, feature, etc.

We do not deem it necessary to follow or to disagree with the able argument in plaintiff’s brief upon the legislative authority and control over corporations both foreign and domestic, and its reserve power to amend or repeal such legislation, provided it is effected by an appropriate enactment for that purpose distinctly evidencing such intent under a proper title.

If the act were given force in that view, it would seem to amount t.o an amendment of the corporate laws which, it is argued with citation of authority, may be done by implication in a separate act so operating. While that proposition might be questioned under the restrictions of section 21, art. 5, of our present Constitution, conceding it'as claimed, that object must at least be fairly indicated in the title of the act, and the intent made plain by its provisions. This is a prohibitory act naming together without distinction, both in its title and paragraphs throughout, firms, corporations, and individuals, or persons, with no separate section or provision devoted to corporations. The statement of intent in section 9 is but declaratory of a recognized judicial rule of construction. Of such a provision it is said in Alabama,, etc., Transportation Co. v. Doyle, 210 Fed. 173:

“It cannot be that, if the unconstitutional portions are so interwoven with the whole purpose and operation of the statute that they are not fairly separable, the act may nevertheless be enforced in a form in which it was not passed and in which it might not be recognized by its framers.”

• And the same could be said with even greater probability of the members of the legislature who voted for its passage. The court there further pointed out, in the act under consideration, as reason for rejecting the contention that it could be sustained as a limitation on the power of corporations, infirmities closely analogous in many particulars to those appearing here, in part as follows:

“This act does not purport to regulate corporations. There are no separate sections relating to corporations which can be preserved and enforced. Particularly as relates to dealers, every restriction is carefully applied to corporations, and partnerships and individuals. If only corporate dealers were affected, the statute would be evaded so easily as to make it worthless.”

For the foregoing reasons we are impelled to the conclusion that the discriminating scope of this act, as limited and emasculated by the exceptions running through it, the nature and object of which are not disclosed in its title, is not a constitutional exercise of the police power of the State upon which it purports to be predicated.

The judgment of ouster prayed for by the attorney general is therefore denied.

Stone, Ostrander, Bird, Moore, and Brooke, JJ., concurred. Kuhn, C. J., and Fellows,-J., did not sit.


source: Caselaw Access Project

author: Fellows, J.

license: Public Domain

text:
    BANKS v. STRONG.
    1. Trial— Contracts — Oral Contracts — Bailment — Admitted Facts — Question for Jury.
    In an action against a former owner of a garage to recover for injury to plaintiff’s automobile by a street car, while being taken from plaintiff’s home for storage -as usual by one of the employees of the garage, where there was no dispute as to what the contract of storage was, the mere fact that it rested in parol did not make it a disputed question for determination by the jury.
    2. Same — Questions of Law — Appeal and Error.
    Where the court holds, as a matter of law, .that a party’s theory is untenable, there is no error in refusing to submit such party’s theory of the case to the jury.
    3. Bailment — Automobiles — Partnership — Liability After Transfer — Instructions.
    In an action by an automobile owner against the former proprietor of a garage, with whom such owner had a contract for storage and conveyance to and from the garage, for damages for injury to the automobile while under the control of a garage employee taking it from plaintiff’s home to the garage, an instruction that the transfer of the business was not involved because plaintiff had no notice thereof; that the contract of bailment continued after the transfer, and that defendant had no right to change the contract by transferring his liability to some one else, was correct.
    4. Same.
    Where a contract between an automobile owner and a garage proprietor contemplated storage and extras which are incidental to garage service, including conveyance to and from the garage, and the automobile was being taken to the garage from the owner’s home by a garage employee at the time it was struck by a street car and the owner of the automobile had no notice of a change of ownership of the garage, the contract was still in effect so as to render the former garage proprietor liable for the negligence of such employee.

    Error to Kent; Perkins, J.
    Submitted June 14, 1916.
    (Docket No. 99.)
    Decided September 27, 1917.
    Assumpsit by William B. Banks against Edward J. Strong for breach of a contract of bailment. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Ellis & Ellis, for appellant.

      Swarthout <6 Master, for appellee.

      For authorities passing on the question of duty and liability of garage keeper to owner of automobile, see note in 45 L. R. A. (N. S.) 314; 48 L. R. A. (N. S.) 561.

   Fellows, J.

This case was submitted on briefs at the June, 1916, term, and was reassigned at the April, 1917, term. Defendant brings up for review a judgment rendered against him in the circuit court for Kent county for damages done to plaintiff’s automobile while under the control of an employee of the Wealthy Heights Garage, located at 650-652 Wealthy avenue, in the city of Grand Rapids.

On November 3, 1911, there was filed in the office of the county clerk of Kent county, pursuant to the provisions of Act No. 101, Pub. Acts 1907 (2 Comp. Laws 1915, § 6349 et seq.), a certificate signed and sworn to, by defendant, that he and one James E. Keegan, Jr., were the owners of the Wealthy Heights Garage. On November 15, 1911, there was filed in the office of the county clerk a like certificate signed and sworn to by the defendant that he (defendant) was the owner of the Wealthy Heights Garage. No other certificate as to the ownership of said Wealthy Heights Garage was ever filed in the office of the county clerk.

In the spring of 1912 plaintiff commenced to store his car at the Wealthy Heights Garage; the arrangements being that he was to pay $5 per month for storage and was to be charged for extras. Plaintiff’s .testimony, and that of the bookkeeper with whom he made the arrangements, and who was called by defendant as a witness, agree as to this arrangement. Bills, including extras, were rendered to and paid by plaintiff in succeeding months. The bills were rendered in the name of the Wealthy Heights Garage. Plaintiff did not know the name of the owner of this business, or the names of the persons employed there, but during his entire dealings the same persons were doing the business. On the night of December 20th plaintiff drove up to. the garage and took in the night man to have him go to his home with him and return the machine to the garage. He had frequently done this in the preceding three weeks, and on rare occasions before that, and was charged in the bills rendered him a nominal charge for such service. While being returned from plaintiff’s home, in charge of the night man, the machine was damaged by a collision with a street car. The testimony as to the .accident made the question of negligence of the driver a question for the jury. The declaration counts on the breach of the contract of bailment. To this count is added the common counts.

Defendant gave testimony, and it was undisputed, that he was a railroad man and took no active part in the business; that he became the sole owner of the business in September, 1911; that Mr. Keegan was in partnership with him for about a month when he bought him out. Later, in the fall of 1911, a Mr. Pierce became a partner with him, but a Mr. Owen had the active charge of the business, and was given a third interest in the fore part of 1912, and on November 11, 1912, both defendant and Pierce sold their interest to Owen, who owned and managed the business thereafter.

It is not claimed that any notice of any of these various transfers was given to or reached the plaintiff. The nonjoinder of parties was not pleaded, nor was it raised in the court below, nor is it urged in this court; the defense being that, the injury having occurred after the defendant terminated his connection with the Wealthy Heights Garage, no liability attaches to him. Upon this theory he. asked the court to direct a verdict in his favor. This the court refused to do, holding that defendant could not escape the contract of bailment by transferring his liability to some one else. We shall discuss such questions raised as are important to the disposition of the case.

It is insisted by the defendant that, inasmuch as the contract rested in parol, the court should have submitted to the jury the question of what the contract was and how intended to be understood. We have already stated- that there was no dispute as to what the contract was. It was made by the plaintiff and the bookkeeper, who was defendant’s wife. Both were witnesses, and they agreed as to its terms. Plaintiff was to pay $5 per month for storage, and was to pay for any extras he had. There being no dispute between them as to what the arrangement was, there was no question of fact presented for the jury, even though the contract was an oral one. The fact that it rested in parol did not make it a disputed question.

Objection is made that the court did not submit the defendant’s theory to the jury. The court held as matter of law that defendant’s theory was untenable. If the court was correct in this, there was no error in not submitting such theory to the jury. The court instructed the jury as follows:,

“On the question that has been raised during the progress of the trial, as to the transfer of the business, you have nothing to do. That matter is taken from your consideration for the reason that under the undisputed evidence and from the testimony of the defendant’s own witnesses also, as well as from the statement made by the plaintiff upon the witness stand, the plaintiff never received any .notice from any one that such a transfer had taken place. Therefore it follows that the contract of bailment made in the first instance continued with the defendant Strong. He would have no more right to change the contract by transferring his liability to some one else than he would have a right to sell the automobile itself, or do anything else with it contrary to the terms of the contract/’

Defendant urges that each time the machine was delivered to plaintiff’s home from the garage, or from the garage to the home, constituted a new contract, and that, inasmuch as he was out of the business at the time of the accident, and the business was owned by Owen, he is not liable. We think the trial court was correct in declining to accept this theory. There was no dispute as to what the contract was. It contemplated storage and extras which are incidental to garage service. Conveyance to and from the residence was an incident and a part of such service; it was an extra, charged to and paid for by the plaintiff. The contract relied upon, and to which defendant was a party, involved in its performance the doing of services, such as were being performed when the car was injured.. Whether, when the contract was made defendant had a partner, or afterwards had a partner, would not affect his own liability as bailee. Nor is he in a position to question, nor does he question, the nonjoinder of other defendants. The case was tried upon the theory that defendant made a contract of bailment and breached it; that, having made such contract with the plaintiff, it continued until plaintiff consented to change it, or until he had notice that defendant would no longer undertake to perform it, and that the act of selling out the business alone did not relieve defendant from the performance of his contract with the plaintiff. In submitting the case to the jury upon this theory and in refusing to direct a verdict for the defendant, the court committed no error.

As this disposes of the case, it becomes unnecessary to consider the other interesting questions discussed.

The judgment is affirmed.

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


author: Bird, J.

text:
    HALPIN v. WHITE.
    1. Trade-Names — Statutes—Construction—Assumed Names.
    Act No. 101, Pub. Acts 1907 (2 Comp. Laws 1915, § 6349 et seq.), relating to tbe filing of a certificate with tbe county clerk by persons doing business under an assumed-name setting forth tbe name under wbicb tbe business is conducted and tbe real names and addresses of tbe persons connected therewith, is inapplicable where a private bank, doing business under an assumed name, has complied with the provisions of 2 Comp. Laws, § 5271 (2 Comp. Laws 1915, § 6715), relating to brokers and exchange dealers, and requiring the filing of a certificate in the county clerk’s office in the county in which the business is located, setting forth the names of the members connected with the company or firm, name and style thereof, and place of business.

    2. Same — Statutes—Presumptions.
    It will be presumed on appeal, in an action on a note by the administrator of the estate of a person who did a private banking business under an assumed name, where the record is silent on the question, that deceased complied with the provisions of 2 Comp. Laws, § 5271 (2 Comp. Laws 1915, § 6715), relating to brokers and exchange dealers and the filing of a certificate with the county clerk.
    Error to Lapeer; Lamb, J., presiding.
    Submitted January 18,1917.
    (Docket No. 37.)
    Decided September 27, 1917.
    Assumpsit by Theodore D. Halpin, administrator of the estate of Oliver H. Wattles, deceased, against Kirk White and another on a promissory note. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      B. F. Reed, for appellants.

      Theodore D. Halpin, in pro. per.

      On the question as to what names or designations are within statutes requiring the filing of a certificate giving certain information regarding a business conducted under an assumed or fictitious name or a designation not showing the names of the persons interested, see notes in L. R. A. 1916D, 355; L. R. A. 1917B, 697.

   Bird, J.

Oliver H. Wattles in his lifetime did a banking business in the city of Lapeer. When he succeeded to the business of his father, J. M. Wattles, he continued to run it as sole owner under the name of J. M. Wattles & Co., the same as his father had done. In July, 1909, while conducting the business under this name, he loaned to defendants $1,500, and took their .promissory note therefor. When Oliver H. Wattles died, in March, 1911, the note was still unpaid, and his administrator, Theodore D. Halpin, commenced this suit to recover thereon. The sole defense was that the name of J. M. Wattles & Co. was an assumed name, and as Oliver H. Wattles did not comply with the provisions of Act No. 101 of the Public Acts of 1907 (2 Comp. Laws 1915, § 6349 et seq.) no recovery could be had thereon. This defense was overruled, aiid judgment passed for plaintiff by direction of the court.

It was decided by this court in Missaukee Farm, & Investment Co. v. Ferris, 193 Mich. 286 (159 N. W. 490), that the provisions of Act No. 101 did not apply to a private banking business, because that business was already regulated by Act No. 160 of the Laws of 1859 (2 Comp. Laws, § 5271, 2 Comp. Laws 1915, § 6715). The provisions and requirements of that act are very similar to those of Act No. 101. In the case cited it was said in part:

“It is also claimed by defendant Elbert C. Ferris that it was necessary for the Missaukee County Bank to file a certificate in accordance with Act No. 101 of the Public Acts of 1907, and, not having done so, it was therefore incapacitated from entering into the contract in question. The complainant claims that the bank, having been organized under and by virtue of the terms of a general law, and having substantially complied with its provisions, comes within the exception provided for in section 4 of Act No. 101 of the Public Acts of 1907, which reads as follows:
“ ‘This act shall in no way affect or apply to any corporation, partnership association, limited or special partnership, duly organized under the laws of this State, or to any corporation organized under the laws of any other State and lawfully doing business in this State.’
“The language of this section of the statute is general in its scope, and, in my judgment, includes a co-partnership organized under Act No. 160 of the Laws of 1859. I conclude, therefore, that it was unnecessary for the Missaukee County Bank to comply with Act No. 101 of the Public Acts of 1907.”

The record in the present case is silent as to whether Oliver H. Wattles or his father ever filed the certificate required by Act No. 160 of the Laws of 1859. The re'quirements of that act were mandatory that the certificate should be filed before commencing business, and we cannot assume that Oliver H. Wattles did business in violation of this act. No question, however, is raised as to a failure to comply with Act No. 160.

As it was unnecessary for him to comply with Act No. 101, the judgment of the trial court must.be affirmed, with costs to the plaintiff.

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


text:
    KASPRZAK v. CHAPMAN.
    L. Automobiles — Personal Injuries — Negligence—Contributory Negligence — Question foe Jury — Evidence.
    In an action to recover damages for injuries sustained as tile result of the running away of horse drawing the wagon in which plaintiff was riding because of becoming frightened at an automobile which passed to the right, evidence held, to present a jury question as to whether plaintiff was guilty of contributory negligence in failing to turn to the right to allow the automobile to pass.

      2. Trial — Argument of Counsel — Instructions — Appeal and Error.
    The instruction of the court to disregard objectionable argument of plaintiff’s counsel in a personal injury action cures any error in argument referring to plaintiff as a man who had hewn his way out of a forest and stating that he would give him more consideration than a man born with a silver spoon in his mouth, who had perhaps a college education.
    3. Appeal and Error — Argument of Counsel — Objections Not Raised on Teial.
    Objections to improper argument will not be considered on appeal where no objection was made to the argument at the time of trial and no rulings were asked for or made.
    4. Same — Instructions—Requests to Charge.
    It is not error to refuse specific instructions which aro covered by the main charge.
    Error to Cheboygan; Shepherd, J.
    Submitted January 12, 1917.
    (Docket No. 111.)
    Decided September 27, 1917.
    Rehearing denied December 28, 1917.
    Case by Ursula Kasprzak against..W. Earle Chapman for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      James F. Shepherd, for appellant.

      L. G. Dafoe, for appellee.
   Bird, J.

On a November afternoon in 1914 plaintiff, her husband, and son were riding in a one-horse wagon on the highway leading in an easterly direction out of the city of Cheboygan. The son was driving. Just as they were leaving the city and turning in on this highway, they observed an automobile some distance away coming towards them. They had not proceeded far when they were overtaken by the automobile. They were then traveling in the center of the traveled part of the highway. As the automobile came closer, the Tiorse pricked up his ears and showed some signs of nervousness, whereupon the husband, who sat facing the west threw up his hand and called to the driver of the automobile to stop. Without heeding the warning, the driver of the automobile pulled out to the right and passed them at a high rate of speed, and cut in so soon after passing them that the automobile passed within two feet of the horse’s head, at the same time emitting a large volume of smoke. This frightened the horse, and he jumped sideways, breaking the thills, and began to run. The wagon soon collided with a fence post on the north side of the highway, throw-. ing plaintiff out and breaking her arm and otherwise injuring her. These claims of plaintiff, which were disputed by defendant in many particulars, were submitted to the jury upon the questions of the negligence of defendant and the contributory negligence of the plaintiff, and a verdict was found for the plaintiff of $1,000.

It is not seriously contended by defendant’s counsel that plaintiff’s testimony did not make a case for the jury as to the negligence of defendant; but he insists that defendant was entitled to a directed verdict on the ground that the driver of the wagon was guilty of contributory negligence as a matter of law. He bases- this upon the testimony that plaintiff’s son knew that the horse was nervous when automobiles approached; that he observed the automobile when he passed onto this highway, and knew it was coming, and knew that it desired to pass, and notwithstanding this knowledge he failed to turn to the right, as the statute commands him to do when overtaken by an automobile which desires to pass. Much of this testimony is disputed. While the driver admitted he saw the automobile coming from the west when he turned onto the highway, he also testified that the defendant gave no indication in any way that he wanted to pass, and that he did not know that he intended to pass until he saw him attempting to do so on the right side, and then he immediately reined his horse to the left. We are of the opinion that this and other conflicting testimony bearing on the question of plaintiff’s, contributory negligence made it one for the jury.

At the close of the argument of plaintiff’s counsel to the jury defendant’s counsel made the following motion:

“Mr. Shepherd: Mr. Dafoe in his argument referred to Mr. Kasprzak as a man who had hewn his home out of a forest; and he stated, in regard to that, that he would give that man as much, or more, consideration than to a man born with a silver spoon in his mouth, who had perhaps a college education. I submit that is highly improper and prejudicial, and I take an exception to his statement.”

The court, in referring to this argument, stated to the jury that:

“In this country all are equal within the law. It is our pride to keep it so; it is not so in other countries. In some other countries, at least, people are born to a station that entitles them to a different consideration in the law than ours. Here all are equal, no matter to what station he is born, or what education he may have or may lack. It is improper upon the part of counsel to call the attention of the jury to any such consideration, and it will be still more improper for the jury to give it consideration in rendering a verdict.”

We think this statement by the court counteracted any bias which may have been produced by the improper argument.

Several other objections were made to the closing argument, but counsel disagree as to what was said therein, and the record is not such that we are able to determine which is right. No objection was made at the time to the argument; and no rulings were asked for or made. Under these circumstances, we cannot consider the objections.

Error is assigned because of the refusal of the trial court to give certain requests bearing on the question of plaintiffs contributory negligence. During the course of the general charge the court instructed the jury as follows:

“The rule is that, in order to recover in this case, she must prove two things: First, that the defendant (the doctor) was negligent; that she herself (that is the driver — the one who was driving the horse) — was not negligent. Just keep that in mind, will you, plainly? The plaintiff must prove that the doctor was negligent, and must prove that the driver of the horse attached to the wagon she was riding in, was not negligent. * * *
“The doctor also claimed that the action of the plaintiff — the action of the driver of the horse, not driving or turning out to the left, in not giving him enough room contributed to the injury here — that if he had driven out as far to the left as he might have done and should have done under the circumstances the horse would not have been frightened. If that is the case, why, that does away with the question of whether it was negligence or not; because if the driver was negligent, and his negligence contributed to the result, then the plaintiff cannot recover. * * *
“On the other hand, if you find that the doctor, the defendant, was not guilty, or if you find that the plaintiff has failed by a clear preponderance of the proof to show that he was negligent, or if you find that the driver of the wagon was negligent, or if she has failed to show that he was not negligent, I should say, your verdict will simply be ‘no cause of action.’ ”

In addition to these instructions the court explained to the jury at some length the statutory duty of one driving upon the highway when approached from the ■ rear by a person desiring to pass. The instructions as given were not as specific as the ones requested, but we think they contained the pith of them.

The errors assigned upon the admission and rejection of testimony have been examined, but we find nothing therein which merits a reversal of the case.

The case appears to have been well tried by both court and counsel, and the judgment must be affirmed.

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


author: Bird, J. Bird, J.

text:
    P. L. SHERMAN CO. v. PEARLL.
    1. Taxation — Redemption—Notice.
    A return to a valid notice to redeem from a tax sale stating that service was made upon a designated person, president of a corporation, by delivering the same to such person, president of such corporation, although irregular, is not defective, although such person is the secretary of the corporation .and it is doubtful from such language whether the notice is intended for such officer individually or for the corporation, where it reaches the right party and no one is misled, the secretary being, by Act No. 232, Pub.. Acts 1903, § 30 (3 Comp. Laws 1915, § 12432), a proper person upon whom service could be made.

    2. Same.
    Evidence, consisting of the unqualified denial of the president of the corporation that the notice to redeem was not served upon him, and the testimony of an undersheriff that he did not remember the particular service, but that it must bnve been made in accordance with the facts stated in the return, was insufficient to impeach such return.
    3. Same — Evidence—Notice.
    Evidence held, sufficient to show vacancy of the premises at the time of service of the notice to redeem.

      Appeal from Bay; Collins, J.
    Submitted January 19, 1917.
    (Docket No. 139.)
    Decided September 27, 1917.
    Rehearing denied April 12, 1918.
    Bill by the P. L. Sherman Company against Albertha M. Pearll and another to redeem from a sale of land delinquent for taxes. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Frank S. Pratt, for plaintiff.

      James Donnelly, for defendants.

      For a discussion of the question as to who is entitled to notice to redeem from tax sale, see comprehensive note in 44 L. R. A. (N. S.) 666.

   Bird, J.

Plaintiff filed its bill to redeem lots 1 and 2 of block 16, plat of Lengsville, Bay county, and tendered therein the amount of the tax. The lots were sold by the State to defendants’ grantors for the taxes of 1901. No serious question is raised as to the validity of the deeds, but the questions involved are those touching the right of defendants to the possession of the lots. The hearing resulted in the denial of relief and a dismissal of the bill.

The purchaser of the tax deeds caused a notice to redeem to be placed in the hands of the sheriff for service upon plaintiff, and the return of the officer indorsed thereon is in the following form:

“State of Michigan,
“County of Bay,
SS"
“I do hereby certify and return, that on the 23d day of August, 1905, at the City of Bay City in said county I served upon Frederick Hebinger, president of the P. L. Sherman Co., a notice of which the above is an exact duplicate by delivering said notice to said Frederick Hebinger, president of the P. L. Sherman Co., personally.
“James P. Warfield,
“Under-Sheriff.
“Fees, $1.20-$1.00.
“Dated this 23d day of August, 1905.”

No exception is taken to the form of the notice to redeem, but it is insisted that the notice was never served on plaintiff, and furthermore that the return does not show a valid service. The return does not state that the notice was served on the P. L. Sherman Company by delivering the same • to Frederick Hebinger, president of said company. The failure to so state leaves it somewhat in doubt whether the notice was intended for- Hebinger individually, or for the company. If, however, we read this return in connection with the notice to redeem, it becomes reasonably certain that the notice was intended to be served upon the company. The notice is addressed: “To Sherman Manfct. Co.” While this was not the correct name of the corporation intended to be served, it would serve the purpose of showing that the notice was intended for the company, and not for Hebinger. If the notice reached the right party, and no one was misled, the service, although irregular, should be held valid. Bradley v. Williams, 139 Mich. 230 (102 N. W. 625); John Duncan Land & Mining Co. v. Rusch, 145 Mich. 1 (108 N. W. 494). But it is said that Hebinger, at the time of the service, was not the president of the P. L. Sherman Company, but was its secretary. This is not important, as the secretary, as well as the president, is made by statute a proper party upon whom service may be lawfully made. Act No. 232, Pub. Acts 1903, § 30 (3 Comp. Laws 1915, § 12432). The notice is conceded to have been proper in form, and inasmuch as it reached the party intended to be served by service upon its secretary, who had the business of the company in charge, we think the return should be held valid. See Gogebic Lumber Co. v. Moore, 157 Mich. 499 (122 N. W. 128).

It is further sought to impeach the service of the notice by the testimony of Mr. Hebinger, who testified that it was never served upon him. It is urged that this testimony, taken in connection with the somewhat doubtful tone of the undersheriff’s testimony on the subject, is convincing that the service was never made. The testimony of the undersheriff was what the testimony of any officer might be, who had served many such notices, after a lapse of 10 years. He testified, in substance, that while he did not remember the particular service, he thought it must have been made in accordance with the facts stated in the return. Upon the whole record, we agree with the chancellor that the return should not be declared invalid for this reason.

Another objection urged by plaintiff is that one Edwards was in possession of the premises at the time it is claimed the notice of redemption was served, but that no service was made upon him. This was denied by defendants. Considerable conflicting testimony was taken at the hearing upon the question. The chancellor considered it, and reached the conclusion that the premises were vacant at the time. A review of the testimony does not convince us that we should disturb his finding.

In view of our conclusion that the notice to redeem was valid, and that the premises were unoccupied at the time, it is unnecessary to discuss the other questions raised.

The decree of the trial court is affirmed, with costs to the defendant.

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

ON MOTION FOR REHEARING.

Bird, J.

In an application for a rehearing filed in this cause our attention is called to that portion of the opinion in which it is stated that the notice to redeem was addressed “To Sherman Manfct. Co.” This statement was an error. The notice which the return of the sheriff shows was served on plaintiff was not addressed in this manner, but the notice which the secretary of the company testified he found among his papers was so addressed.

This statement was made in giving an additional reason for holding that the notice to redeem was served as shown by the return of the sheriff. The use made of this misstatement was cumulative merely and not very important. After eliminating it we are still of the opinion that the plaintiff’s evidence was insufficient to overcome the return of the sheriff.

The motion for rehearing is denied.

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


text:
    ADAMSKI v. MICHIGAN RAILWAY ENGINEERING CO.
    1. Master and Servant — Personal Injuries — Negligence — Proximate Cause — Safe Place to Work — Question for Jury.
    In an action by a railway construction company employee to' recover for personal injuries due to being brushed oft a flat car, on wbicb he was riding, by a push car which was on a siding and too near the main tract, held, that Questions were presented for the jury, whether defendant had furnished plaintiff with a reasonably safe place to wort and whether the proximate cause of the injury was the failure to either remove the car from the siding or securely bloct or chain the wheels.
    2. Same — Evidence—Admissibility—Railroads.
    The admission of evidence that leaving the car on the siding was not good railroading was not improper, as, with several construction trains and trains carrying employees in operation, it was as important for defendant to exercise reasonable care to protect its employees from injury as though it had been a common carrier.
    3. Same — Personal Injuries — Question eor Jury.
    The submission to the jury of the question whether the engineer should have discovered the push car and stopped his train in time to avoid the collision was not improper, where, for several miles north of the point of the collision, from which direction the train was coming, the track was straight and level, and the collision occurred a few minutes before 5 o'clock in the afternoon, and the push car could have been seen for several hundred feet north of the switch.
    4. Evidence — Admissibility—Mortality Tables — Permanent Injuries.
    In an action for personal injuries, mortality tables are admissible, where, in addition to other testimony as to permanency of the injuries, a physician testified that, judging from X-Ray pictures and an examination, the • plaintiff was permanently injured.

    Error to Kalamazoo; Weimer, J.
    Submitted January 4, 1917.
    (Docket No. 28.)
    Decided September 27, 1917.
    Case by Anton Adamski against the Michigan Railway Engineering Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Alfred J. Mills, for appellant.

      Charles L. Dibble (Harry C. Howard, of counsel), for appellee.

      On the general rule as to admissibility in evidence of tables of expectancy of life, see note in 40 L. R. A. 553.
      As to use of X-ray photographs in evidence, see note in 51 L. R. A. (N. S.) 402.

   Bird, J.

Plaintiff was employed as a common laborer by defendant in the construction of its electric railway from Kalamazoo to Grand Rapids. On Sunday morning, May 24, 1914, the defendant was informed that a washout had occurred on its line several miles north of Kalamazoo. It hastily summoned from 40 to 60 of its workmen, including plaintiff, and with the aid of a locomotive and two flat cars, went to the washout. The repairs were- finished about 4 o’clock in the afternoon, and soon thereafter the men boarded a flat car and started on the return trip. Several of the men, including plaintiff, sat upon the edge of the car with their feet hanging over the side. When about three miles north of Kalamazoo the train passed a siding.upon which stood a push car with a small house about 4% feet high constructed thereon, for the purpose of carrying and storing tools. This car had been left on the siding since the preceding Friday. At the time in question it stood at the north end of the siding, and so close to the main track that .the flat car upon which plaintiff was riding “side-swiped” it and brushed plaintiff and several other workmen off the car to the ground. Plaintiff was severely injured. He was taken to a hospital in Kalamazoo, and remained there until March, 1915.

The negligence relied upon was the leaving of the push car on the siding from Friday to the following Sunday, it being the claim of plaintiff that it should have been removed from the side track; that if left on the side track, it should have been securely blocked or chained, so that it could not have been moved back and forth. It was further claimed that the defendant was negligent in the operation of its train, in not discovering the car and stopping before colliding with it. These issues were left to the jury, and a verdict was returned for plaintiff.

The meritorious question and the one principally relied upon by defendant is that the case should not have gone to the jury upon the question of defendant’s negligence' in leaving the car on the siding, inasmuch as it appeared that four or five boys, living in the vicinity, played with the car on the Sunday afternoon in question, running it back and forth on the track, finally leaving it in the clear at the north end of the siding about two hours before it was struck. Counsel insist that the boys were trespassers, and that the court should have instructed the jury in accordance with the following request:

“You are instructed that there was no negligence upon the part of the defendant, of which plaintiff can complain in this case, in leaving the small car on the switch in the manner in which the undisputed testimony discloses it was left thereon. * * *
“The defendant was not bound to cause the car on its switch to be chained to the track or take any other precaution to prevent third persons from interfering with or moving it than the testimony in this case shows was taken. * * *
“The defendant was not required or bound to keep its track clear for the safety of plaintiff at the time in question in this case against the unlawful acts of a third party in moving the small car from its switch in dangerous proximity to its main track.”

In answer to this contention plaintiff’s counsel assert that the testimony shows that several boys lived in the vicinity of the siding who went back and forth over the farm crossing near by and had previously played on the siding to the knowledge of the employees. Furthermore, that the testimony is not conclusive that the act of the boys was responsible for the collision, because it also appeared that a strong south wind which was blowing might have moved the car down the slight grade to the point of collision. The further answer is made that, even though the collision occurred by reason of trespassers the antecedent negligence of the defendant in leaving the car upon the siding when not in use was not in keeping with good railroading. Upon this question Mr. Wagner, defendant’s superintendent of construction, testified that in the operation of railroads it is the practice to set push cars, unattended by men, off the track. Mr. Rheims, one of defendant’s foremen, after testifying that he had worked for the Michigan Central Railroad about eight years, was asked:

“Q. What was the practice of leaving these cars, when unattended by men, on the side track; did you set them off the track?
“A. Yes, sir; they were never left on the side track unattended by men on the Michigan Central because of passing trains, etc., and to insure their standing on the spot where we left them, so they would not be moved by strangers. I have also seen the wheels chained if they were not set off.”

Under this showing we think it was proper to submit to the jury the question whether defendant had furnished plaintiff with a reasonably safe place in which to work and whether the proximate cause of the injury was the failure to either remove the car from the siding or securely block or chain the wheels. The facts are not unlike those in Noe v. Railway Co., 133 Mich. 152 (94 N. W. 743), and must be ruled by it. See, also, Town v. Railroad Co., 84 Mich. 214 (47 N. W. 665). In the Noe Case, while the plaintiff was returning from his work under similar circumstances, the car ran into an open switch, and he was injured. The defense was made that it had been opened by some malicious person within an hour preceding the accident, but the court held it was a question for the jury to determine whether the defendant was negligent in not locking the switch and providing a light therefor.

But it is strenuously argued that testimony to the effect that leaving the car on the siding was not good railroading was not competent because the road was not being operated as a railroad. The testimony shows that the south end of the railroad where the accident happened had been finished for nearly a year, and was being used daily by several construction trains and also by trains to carry the employees to and from their work. The operation of trains was frequent enough to call for a set of rules, and the rule book of the Michigan Central was adopted so far as it was applicable. With several trains in operation it was as important for defendant to exercise reasonable care to protect its employees from injury as though it had been a common carrier. 3 Labatt on Master and Servant (2d Ed.), § 966; Stackman v. Railway Co., 80 Wis. 428 (50 N. W. 404). We think the testimony was competent.

There was no error in submitting to the jury the other ground of negligence, namely, whether the engineer s¿ould have discovered the push car and stopped his train in time to avoid the collision. The testimony showed that for several miles north of the point of collision the track was straight and level, that it occurred a few minutes before five o’clock in the afternoon, and that the push car could have been seen several hundred feet north of the switch.

Exception is taken to the admission of the mortality tables on the ground that plaintiff’s injuries were not shown to be permanent.’ Beside much testimony from which such an inference might be drawn, Dr. Cook testified that:

“From what I observed when I saw him last summer and from what I observed from the X-Ray pictures and from the examination I made this morning I should say that he is permanently injured.”

The admission of the mortality tables over this objection was not error.

The remaining assignments of error will not be discussed, as we are impressed they are not well taken. •

The judgment of the trial court must be affirmed.

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


text:
    MIDLAND OPERATING CO. v. MILLER.
    1. Contracts — Work and Labor — Breach—Remedy.
    As a general rule, a party to a contract, where labor is to be performed, upon breach of that contract, may sue upon the contract and recover damages for its breach, or he may ignore the contract and sue for services and labor and expenses incurred from which he has derived no benefit.
    2. Same — Advancement to Agents — Set-off and Recoupment— Instructions.
    In an action by an insurance company against an agent to recover a balance due on account for advancements over commissions, where a claim of set-off was interposed by defendant for damages for prevention of performance of the contract, held, that an instruction, whether based on the theory that defendant was seeking to recover on quantum, meruit or on the theory of damages for the breach of the contract, was erroneous in not permitting the jury to find what the services performed were reasonably worth and in allowing recovery by defendant only of the amount of plaintiff’s claim.
    3. Same — Breach—Evidence—Sufficiency. •
    Evidence held, insufficient to show breach of such contract by plaintiff, and not to warrant submission of the case under either the theory of quantum meruit or of damages for breach of contract.
    4. Same — Advancements—Compensation for Extra Work — Evidence.
    Where an insurance agent does not, until sued for advancements, make any claim that certain work done is not included in his contract or that he is entitled to extra compensation therefor, he cannot recover additional compensation, unless he is able to show some agreement, express or implied, that he is entitled thereto.
    5. Same — Agents—-Insurance—Extra Compensation.
    Where a contract for an insurance agency provides that the agent shall devote his best energies to the interests of the company in developing and maintaining business in his territory, and, on request, investigate, report upon, and render such other services as are required by the company to effect the discharge of any claims presented by policy holders, services in investigating claims are covered by such contract so as not to warrant additional compensation therefor, where the contract is not modified.
    6. Same — Breach—Commissions—Compensation.
    Where a contract of employment of an agent on commission is breached by the company the agent should not be permitted to recover commissions in addition to the value of his services.
    Error to Wayne; McDonald, J., presiding.
    Submitted October 4, 1916.
    (Docket No. 30.)
    Decided September 27, 1917.
    Assumpsit by the Midland Operating Company against Stephen V. Miller and others for moneys advanced on an agency contract. Judgment for defendants. Plaintiff brings error.
    Reversed.

      Moore & Moore, for appellant.

      Lodge & Brown, for appellees.
   Bird, J.

Plaintiff entered into a written contract with defendant Miller on September 29,1911, by which he became the general agent of the Midland Casualty Company in certain counties in this State; that company being engaged in the business of writing health and accident insurance. The contract was to continue for a period of two years, with a reserved right to either party to cancel the same upon 60 days’ notice. Defendant Miller’s compensation was to be made up wholly of commissions on the business which he should secure. The inference from the record is that Miller was without means to initiate and carry on the agency at the beginning, so plaintiff agreed to advance him $300 per month, with a provision that the advancement should be gradually repaid by commissions beginning on December 11th, in monthly payments of not less than $150. Under this agreement plaintiff advanced defendant $300 a month for 13 months, amounting in all to $3,900. During this period defendant’s commissions amounted to but $682.88, leaving a balance due plaintiff of $3,217.12. Plaintiff canceled the agreement at the end of the 13 months, and sued Miller and his sureties, the other defendants, on their bond to recover the balance.

Defendant pleaded the general issue, and gave notice of set-off, and a further notice that he had been damaged because plaintiff had prevented him from performing his contract. In order to support this contention, he showed that soon after his engagement began plaintiff took over the Preferred Casualty Company, of Detroit, and he was directed to call upon the policy holders of that company and secure their consent to have their insurance rewritten in plaintiff’s company, and that this work and the further work of investigating claims of policy holders took his time and energies to such an extent that he was unable to carry out his contract, and therefore was not liable for his default therein. On this phase of the case the trial court charged the jury that:

“It is undisputed that, a couple of weeks after the defendant began to work under the contract, the plaintiff took over another business, the Preferred Casualty Company, and that the defendant was directed to do the work in connection with transferring the policies and adjusting. But there is a dispute as to the amount of w;ork which defendant did and the time which it took'him to do it. Defendant says it took him four months to transfer 478 policy holders, and that he spent much time thereafter in investigating and adjusting the claims under the policies, and that the entire commissions for such work, measured by the terms of the contract, did not exceed $25. If such was the character and extent of the work, you will be justified m finding that it wasn’t work which the parties had in mind when they made the contract, and was not included in the terms of contract. The plaintiff says that the character of this work was not such as the defendant claims, that it wasn’t' different from the other work of securing new policies, new applications, and that it was helpful to the defendant, rather than harmful to him, in procuring business. You will have to determine from the evidence what the facts are in regard to these claims, and if you find that the work of taking over and caring for the business of the Casualty Company involved work and placed upon the defendant duties not contemplated by the parties when the contract was made, and not included within .its terms, and that the defendant would have produced the amount of business agreed upon if it had not been for this extra work, that he, the defendant, would be excused from performing the requirements of the contract, and the plaintiff could not recover the commissions advanced. If, on the other hand, the defendant’s inability to produce the amount of business agreed upon was due to any other cause, whether lack of ability or whatever cause, the plaintiff can recover the amount of his commissions advanced, less the amount of commissions actually earned by the defendant.”

The general rule is well settled that a party to a contract, where labor is to be performed, upon the breach of that contract by the other party, has two-remedies open to him. He may sue upon the contract, and recover damages for its breach, or he may ignore the contract, and sue for services and labor and expenses incurred from which he has derived no benefit. Hemminger v. Assurance Co., 95 Mich. 355 (54 N. W. 949); Kearney v. Doyle, 22 Mich. 294; Mitchell v. Scott, 41 Mich. 108 (1 N. W. 968); Boyce v. Martin, 46 Mich. 239 (9 N. W. 265); Shutters v. Searls, 48 Mich. 550 (12 N. W. 695); Bush v. Brooks, 70 Mich. 461 (38 N. W. 562); Bromley v. Goff, 75 Mich. 218 (42 N. W. 810); Moore v. Nail Co., 76 Mich. 606 (43 N. W. 644).

It is difficult to determine from the charge of the court under which theory the case was submitted to the jury. If we assume that defendant was endeavoring to recover on the quantum meruit, the court was in error in not permitting the jury to find what the services actually performed were reasonably worth. He gave them an opportunity to find only one sum, namely, $3,217.12. If we assume the casé was intended to be submitted on the theory of damages for the breach thereof, the charge was erroneous for the same reason. The jury were not permitted to find damages in any other amount than the sum of $3,217.12.

But, aside from these considerations,”we are of the opinion that the case should not have been submitted under either theory, for the reason that there was no proof to support defendant’s claim that the contract was breached by plaintiff by wrongfully preventing him from performing his contract. The record shows that the taking over of the business of the Preferred Casualty Company was advised by defendant, that the business was of the same character as that in which he was engaged, that he induced 478 policy holders to surrender their policies in the Preferred Casualty Company and accept policies in the Midland Casualty Company, that he received a commission thereon, and was entitled to a percentage on renewal premiums, and, further, that he was given credit by the plaintiff for these commissions. While performing this work, defendant treated it as a part of his contract, and at no time, until sued, did he make any claim that the work was not included in his contract, nor that he was entitled to additional compensation therefor. Where a contracting party performs services under such circumstances, he cannot recover additional compensation therefor, unless he is able to show some agreement, express or implied, that he is entitled thereto.

The other, item of service which defendant claims prevented his performance of thé contract was for time spent in investigating the large number of claims made against the company. This service was included in his contract, as will be shown by the following provision:

“The agent shall (a) devote his best energies to the interests of the company in developing and maintaining business in said territory; (b) write applications in said territory as the company may direct; (c) furnish all necessary licenses for such subagents as he shall employ; (d) promptly, on request, investigate, report upon, and render such other services as the company may require to effect the discharge of any claims that may be presented by policy holders in said territory; (&) attend to all other duties that pertain to the business of said agency.” * * *

Without some showing that this provision of the contract was modified, such services would be included therein.

It may be well to suggest that, in the event of a retrial, defendant should not be permitted to recover commissions, in addition to the value of his services.

The judgment of the trial court must be reversed, and a new trial ordered, with costs to plaintiff.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Brooke, «JJ., concurred. Person, J., took no part in the decision.


author: Moore, J.

text:
    MOORE v. FREDERICK.
    1. Justices of the Peace — Defective Docket Entries — Effect.
    A justice’s docket is fatally defective which, does not show whether or not plaintiff appeared within one hour after the return hour, or that the justice waited one hour for the defendant to appear before beginning the trial of the case, or that the attorney for plaintiff proved his authority to act.
    2. Same — Statutes—Trial on Merits — Certiorari.
    Section 948, 1 Comp. Laws (3 Comp. Laws 1915, § 14434), requiring that the court in certiorari cases give judgment “as the right of the matter may appear, without regarding technical omissions, imperfections, or defects in the' proceedings before the justice which did not affect the merits,” has no application where there has been no trial on the merits.
    Error to Wexford; Lamb, J.
    Submitted January 5, 1917.
    (Docket No. 44.)
    Decided September 27, 1917.
    Assumpsit in justice’s court by Marion Moore and Charles Hunt, copartners as Moore & Hunt, against Charles Frederick on a promissory note. From a judgment for plaintiffs, defendant appealed to the circuit court by writ of certiorari, with George C. Teed, surety on the bond. Judgment for plaintiffs. Defendant brings error.
    Reversed.

      Jesse R. Cropsey, for appellant.

      Fred C. Wetmore, for appellees.
   Moore, J.

The defendant gave plaintiff a note reading:

“$29.40. Mesick, April 5,1910.
“December 1st, after date, I promise to pay to Moore & Hunt or bearer twenty-nine and 40/100 dollars at Mesick Bank, value received, with interest at the rate of seven per cent, per annum.
“P. O. Mesick. Charles Frederick.”
Later he wrote the following letter:
“Mesick, Mich., 12 — 7—1912.
“Mr. Erban Lake.
“Dear Sir: Received your letter in regard to my note of Moore & Hunt that I will settle with them in the spring as I do not want to sell my crops now and only realize a few dollars to satisfy them as they would not for me. If my bean crop would have been what I looked for I would have settled with them this fall but instead of forty bushels I got fifteen from five acres. .The debt is where a smooth tongued agent goes through the country and sells - you fence, gets your note and then pay or take the consequences. I will never let another one in'my door and you can write to them what they want to do about the matter and I will be down and see you some day this week as I am in no position to meet any of it now. I will come down and talk it over with Reuben and he can probably help me out.
“Respectfully,
“Charles Frederick.”

Suit was brought to recover upon said note in justice’s court. A summons in the usual form was issued, which was personally served. The defendant, it is said, because of a misunderstanding as to the time, did not appear upon the return day. The note and letter were received in evidence, and a judgment rendered for the amount due on the note. The defendant claimed the docket entries were defective, and removed the case to the circuit court by certiorari. We quote from the brief of counsel:

“We now come to the more important assignments of error, the fourth being for the reason that the docket does not show as to whether or not the plaintiff appeared within one hour after the return hour, and the fifth being for the reason that the docket of said justice does not show that he waited one hour for the defendant to appear before proceeding to the trial of the cause. These two assignments can be argued together, as a great many of the authorities which I desire to cite touch both these propositions.”

Counsel cite Mudge v. Yaples, 58 Mich. 307 (25 N. W. 297); Chaddock v. Barry, 93 Mich. 546 (53 N. W. 785); Mitts v. Harvey, 125 Mich. 356 (84 N. W. 288); and other cases. See, also, Bakrow & Co. v. Totten, 146 Mich. 57 (109 N. W. 31); Scott v. Brown, 175 Mich. 447 (141 N. W. 857).

We again quote from the brief:

“The tenth assignment of error is another one of some importance which relates to the fact that the attorney who appeared for the plaintiff did not, so far as the record shows, prove his authority. The docket shows that neither the plaintiff nor defendant appeared; consequently it was incumbent upon the attorney who appeared for the plaintiff, under that situation with neither of the parties appearing, to prove his authority to appear, and this court has passed upon that question in the following cases: Benalleck v. People, 31 Mich. 200; Scofield v. Cahoon, 31 Mich. 206; Morton v. Crane; 39 Mich. 526; Woodbridge v. Robinson, 49 Mich. 228 (13 N. W. 527).”

The justice made a detailed return to the writ of certiorari. The circuit judge was of the opinion that the return must be regarded as conclusive, and that it shows the requirements of the statute were met, citing Rawson v. McElvaine, 49 Mich. 194 (13 N. W. 513), Mann v. Tyler, 56 Mich. 564 (23 N. W. 314), and other cases, and affirmed the judgment. The case is brought here by writ of error.

One trouble with the conclusion reached by the trial judge is that the return, while it purports to show what occurred before the justice, does not show that the docket contains the entries the statute requires. If the return could control, and the condition of the docket could be ignored, possibly the conclusion of the trial judge could be sustained, but none of the cases referred to by the judge would justify that course.

We have held in the cases cited by appellant that a docket as barren of entries as is the one in this case is fatally defective.

Counsel for appellees urge that the judgment be sustained, invoking the provisions of that part of section 12894, 5 How. Stat. (2d Ed.), (3 Comp. Laws 1915. § 14434), directing the court to give judgment in certiorari cases “as the right of the matter may appear, without regarding technical omissions, imperfections, or defects in the proceedings before the justice which did not affect the merits.”

As there was no trial upon the merits, it is difficult to see how this statute can save the judgment.

The judgment of the circuit court is reversed, with costs.

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


author: Brooke, J. Bird, J.

text:
    ORMSBEE v. GRAND TRUNK WESTERN RAILWAY CO.
    Damaoes — Death Act — “Pecuniary Loss”' — Who not Entitled.
    The interruption of donations consisting of fruit, vegetables, eggs and chickens to adult children, three of whom are girls married to husbands in comfortable circumstances, and the other a son earning a good salary, does not constitute “pecuniary loss” within the death act, 2 Comp. Laws, §§ 6308, 6309 (2 Comp. Laws 1915, §§ 8318, 8319), entitling the children to maintain an action for damages for the death of the father. Bird, J., dissenting.

      Error to Genesee; Stevens, J.
    Submitted January 2, 1917.
    (Docket No. 5.)
    Decided September 27, 1917.
    Case by William B. Ormsbee, administrator of the estate of William S. Herrick, deceased, against the Grand Trunk Western Railway Company for the alleged negligent killing of plaintiff’s intestate. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Lee & Parker (F. W. Be Foe, of counsel), for appellant.

      Harrison Geer (W. K. Williams, of counsel), for appellee.
    Plaintiff, as administrator of the estate of William S. Herrick, sues the defendant railroad company to recover damages for the alleged wrongful and negligent killing of his intestate. The action is planted under the so-called “death act,” being sections 6663 and 6664, 3 How. Stat. (2d Ed.), (2 Comp. Laws 1915, §§ 8318, 8319). At the time of the death of plaintiff’s decedent he was upwards of 69 years of age; by occupation a ditch digger. He had lived with his wife (who met instant death with him) for many years upon a plot of land less than two acres in extent. The net value of his entire estate at the time of his death was approximately $500. At that time he had four children; the eldest 48 years of age, the second 45, the third 41, and the youngest 36. The three elder children were girls, all of whom had been married for many years to men who were capable of earning good salaries. They were all in comfortable circumstances and were being supported by their several husbands. The son, likewise a married man, was in receipt of a good salary and had maintained himself for many years. The record shows that it was the habit of plaintiff’s decedent, when he visited the town in which his children lived, to take with him fruit or vegetables which he raised in his garden, and occasionally eggs or chickens, which he gave to two of his married daughters and to his son. The third daughter had no need of such gifts, because of the fact that she herself resided upon a farm. These gifts are said to have amounted in value to approximately the sum of $50 to each of the two daughters and the son each year. Aside from this, it appears to have been customary for plaintiff’s decedent to make to his children small presents upon their several birthdays and at Christmas time, which courtesy upon his part was reciprocated on the part of the children in like manner. The record affirmatively shows that plaintiff’s decedent at no time gave to his children, or any one of them, money. No question arises upon this record as to whether plaintiff’s decedent was killed through the negligence of the defendant company, or by reason of his own contributory negligence. At the conclusion of the introduction of the evidence on behalf of the plaintiff a motion was made by defendant for a directed verdict, which was granted by the court for the following reasons:
    *T do not believe these people have a right of action against this railroad company for the reason that I have stated: They were not dependent upon their father for support; their father was under no legal obligations to support them or contribute to their support. What the proof shows he did was purely voluntary in the matter of presents, and in the matter of stuff out of the garden.”
   Brooke, J.

(after stating the facts). The foregoing ruling made by the court raises the only question involved in this case. On behalf of the plaintiff it is contended that the statute does not limit recovery to those only who have a legal claim to support or to contribution toward support from the decedent. It is urged that the children of decedent, for whose benefit this action is brought, are within the class designated by the statute, and that, such being the case, it is only necessary for the plaintiff to show that the alleged negligent killing of plaintiff’s decedent resulted in some pecuniary loss to them, and this notwithstanding the fact that all were long past 21 years of age, themselves prosperous, and in no way dependent upon their father, plaintiff’s decedent. As authority within our own State for this position, plaintiff relies particularly upon the case of Chicago, etc., R. Co. v. Bayfield, 87 Mich. 205, and Richardson v. Railway Co., 176 Mich. 413 (142 N. W. 832). In the Bayfield Case it was held improper for the jury, in awarding damages, to take into consideration the poverty of the family of the decedent. It is there said:

“What the family would lose by the death would be what it was accustomed to receive, or had reasonable expectation of receiving, in his lifetime; and to show that the family was poor had no tendency towards showing whether this was, or was likely to be, large or small. * * * A dollar lost, whether by poor man or rich man, is neither more nor less than a dollar, and a reasonable expectation of benefit to a certain amount, must, when lost, be compensated to the same extent, whether the loser be rich or poor.”

The Bayfield Case was prosecuted on behalf of the mother and sister of the decedent, a young man 17 or 18 years of age, who was living at home with them. In the Richardson Case plaintiff’s decedent was an unmarried woman 37 years of age, who had made contributions of from $15 to $40 per month towards the support of her mother, father, and sister (then 36 years of age) for 20 years before her death. A judgment in favor of the plaintiff in that case was reversed, upon the ground that the award probably included damages to the sister of the decedent. It is there said:

“For such voluntary contributions as plaintiff’s intestate sáw fit to make to her sister there can be no cause of action or right of recovery.”

Touching the contributions to the father and mother it was said:

“The fact, if it be a fact, that plaintiff’s decedent voluntarily assumed the performance of a duty which might be regarded as a legal obligation, and made expenditures to a proper extent, might form a basis for a recovery in this action in so far as the fatner and mother are concerned.”

In the case of Rouse v. Railway, 128 Mich. 149 (87 N. W. 68), the action was prosecuted on behalf of a widow and several minor children, one of whom, a daughter, was married. This court there said:

. “The law requires in this class of cases that the administrator must show that some person has suffered some pecuniary injury, by the death. The statute does not.imply that damages and pecuniary loss necessarily flow from the negligent killing. This is a matter that must be made to appear by the proper allegation in the declaration, and proof of the fact. Hurst v. Railway, 84 Mich. 545 (48 N. W. 46). See, also, Nelson v. Railway Co., 104 Mich. 588 (62 N. W. 993); Walker v. Railway Co., 104 Mich. 616 (62 N. W. 1032). These damages must be limited to the pecuniary damage sustained by those legally entitled to support. Van Brunt v. Railroad Co., 78 Mich. 530 (44 N. W. 321).
“We think counsel for defendant correct in saying that these limitations should have been stated to the jury. Damages should have been limited to the expectation of the life of the widow. As to the children, no damages could be recovered for their support after they each became of age, and none for the maintenance of the married daughter. * * * We do not pass on the question whether damages might be allowed for a dependent child after he becomes of age.”

We know of no case in Michigan, with the possible exception of the Richardson Case, supra, which casts any doubt upon the rule here announced. It is true, as claimed by counsel for appellant, that in the Rouse Case, supra, there was no evidence tending to show contributions made by the decedent to his married daughter, and a distinction is made between that case and the case at bar upon the ground that here there is evidence of donations made by the plaintiff’s decedent to his adult children. It is quite clear that the four children of plaintiff’s decedent were not legally entitled to support from said decedent, a necessary prerequisite under the holding in the Rome Case. It is equally clear that the occasional, or even habitual, donations by said decedent to one or more of his children of fruit, vegetables, eggs, or chickens, does not constitute such an assumption of a legal obligation as was •held in the Richardson Case to form a basis for recovery. Those donations should be regarded as simple, commendable expressions of parental good will, and their interruption cannot be regarded as a "pecuniary loss” within the meaning of the statute. Much learning from text-book writers and decisions from other States has been collected in the brief for appellant. Authorities cited require no discussion, as we are of opinion that the case is fully covered by our own decisions.

The judgment is affirmed.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Fellows, JJ., concurred with Brooke, J.

Bird, J.

(dissenting). A right of action under the statute arises when the deceased has. left some one dependent on him for support, or some one who had a reasonable expectation of receiving some benefit from him during his lifetime. Grand Trunk R. Co. v. Ives, 144 U. S. 408 (12 Sup. Ct. 679); Cooper v. Railway Co., 66 Mich. 261 (33 N. W. 306, 11 Am. St. Rep. 482); Richmond v. Railway Co., 87 Mich. 374 (49 N. W. 621); Richardson v. Railway, 176 Mich. 413 (142 N. W. 832). In my opinion the adult children of the deceased should be included in the latter class. The fact that the voluntary contributions were of little value furnishes no reason for directing a verdict, if they were of some value. I think the trial court was in error in directing a verdict on this phase of the case.

The judgment should be reversed, with costs to plaintiff.