author: Ostrander, J.

text:
    GILCHRIST v. MYSTIC WORKERS OF THE WORLD.
    1. Insurance — Fraternal Benefit Associations — Proofs of Death — Evidence—Actions—Conditions Precedent.
    In an action upon a fraternal benefit certificate in which a provision appeared for the filing of proofs of death to be passed upon by the board of directors before the beneficiary should be entitled to institute suit, defendant admitted that proofs of death were filed and plaintiff, relying upon the admission, did not offer any evidence as to the proofs which she had presented. Defendant had given no. notice of special defense under Circuit Court Rule 7 (d) requiring notice of the claim that plaintiff failed to furnish proofs of loss as provided by the policy. Held, that the trial court did not err in overruling defendant’s motion to instruct a verdict on the ground that sufficient proof of compliance with the conditions of the policy had not been offered.
    2. Same — Evidence—Hearsay—Death Certificates.
    Upon the offer of the physician’s certificate of death in evidence, an objection that the last sentence in the paper reading “Contributory; abortion said by deceased to have been performed by Dr. ........” was hearsay, and therefore inadmissible, was not well taken except as to the part following “abortion.” The words “contributory” and “abortion” were competent evidence; appearing from the context to have been within the knowledge of the physician; and the certificate was admissible.
    3. Evidence — Coroner’s Verdict.
    Where plaintiff furnished to the insurer, a benefit association, verified proofs of death and defendant requested him to forward a copy of the coroner’s verdict, which he procured and forwarded', but not as part of the proofs, the contents were not an admission on his part, and were rightly excluded.
    4. Same — Privilege—Physician and Patient — Insurance.
    Notwithstanding a written waiver of the statutory privilege contained in a decedent’s application for insurance, the ■ opinions and testimony of her attending physicians based on facts learned' while they were in- attendance as professional advisers was not admissible: the clause contained in the application was void as a waiver under Act No. 234, Pub. Acts 1909, which creates the only exception permitted by law to the general privilege prevailing as to physician and patient, and limits the right of waiver to the heirs-at-law of decedent in a will contest.
    5. Same — Priviiege—Waiver—Res Gesms.
    Statements made by decedent, as to the cause of .her death, tending to show a breach of certain conditions of the policy, made in the presence of the attending physicians and nurse were not admissible as part of the res gestes, though the admission to the nurse was competent, and should not have been treated as privileged.
    6. Same — Expert Testimony.
    Testimony tending to establish a breach of the benefit certificate, in that insured had submitted to an abortion, was sufficient to require the case to go to the jury, and, if believed, to warrant a verdict for defendant.
    Error to Mecosta; Barton, J.
    Submitted October 4, 1914.
    (Docket No. 94.)
    Decided October 29, 1915.
    Rehearing denied April 21, 1916.
    Assumpsit by William H. Gilchrist against the Mystic Workers of the World upon a benefit certificate. Judgment for plaintiff, on a directed verdict. Defendant brings error.
    Reversed.

      Butler & Everett and Charles E. Sturtz, for appellant.

      Albert B. Cogger and Broomfield & Worcester, for appellee.
   Ostrander, J.

The facts in the case, stated briefly, are as follows: Defendant, a fraternal beneficiary insurance corporation, of the State of Illinois, doing business within this State, issued the benefit certificate in question November 8, 1912, to Grace P. Gilchrist, a member of the order. Plaintiff, her husband, was named as beneficiary in said certificate. This certificate was issued upon a written application signed by Grace P. Gilchrist, dated October 18, 1911. She died May 29, 1913. Later, proof of hér death was duly filed with the proper officers of defendant corporation, and, payment having .been refused, this suit was brought. Defendant, under the plea of the general issue, gave notice of certain matters of -defense, to which such reference as may be necessary will be given. On the trial, at the close of plaintiffs case, a motion made by the defendant for a directed verdict in its favor was denied. . Defendant then proceeded with its defense, and when it rested counsel for plaintiff made a like motion for an instructed verdict. This motion was granted.

It was admitted by defendant upon the trial that the certificate in question was issued; that plaintiff was the beneficiary named in it; that the deceased wife at the time of her death was a member of the order in good standing; that proofs of death and claim of benefit were filed in due time and were passed upon by the proper officers; that the claim was not paid, and suit was afterwards brought. Counsel for both parties reserved the right to object to any exhibits offered on the ground of materiality, competency, or relevancy. Plaintiff offered the beneficiary certificate sued upon in evidence and desired to read it into the record. Counsel for defendant objected to admitting the certificate in evidence unless there was put in evidence with it, as a part of it, the application, medical examination, and warranties contained therein, and also certain sections of the constitution and by-laws of the order, insisting that the plaintiff must introduce the entire contract, and not a part of it; that by the certificate all of these documents were made a part of the contract. Plaintiff insisted that the suit was based on the certificate, and the other papers were not a part of his case. After some colloquy between court and counsel these papers, which were in the possession of the defendant, were produced and given to plaintiff’s counsel and handed to the court by him, with the remark that they were to be received in evidence and considered only in the light of the defendant’s notice under the plea in the case, and could only be used to support the notice under the plea. Counsel for plaintiff also offered the proof of death, which was objected to and withdrawn on account of the admission already made by defendant’s counsel that the proofs of death were filed within the time provided by the by-laws. Plaintiff then called the mother of Mrs. Gilchrist, deceased, and made proof that she died in the hospital May 29, 1918, and then rested his case. Defendant then made the motion for a directed verdict already mentioned, on the ground that plaintiff had put in no evidence as to the kind or character of death proofs which were submitted to the grand lodge, required by the insurance certificate, as follows:

“(5)' No action can or shall be maintained on this certificate until after the proofs of death and the claimant’s right as provided for in the laws of this order have been filed with the supreme secretary and passed upon by the board of directors, nor unless brought within one year from the date of the death of the member,”

■ — and also that the certificate offered in evidence was but a part of the contract. This motion was denied, defendant excepted, and the trial proceeded.

The special defenses under the notice given under the plea are of great length. The material allegations necessary to. be considered may be stated as follows:

First. That the beneficiary certificate by its terms included the written application for membership and benefits, the medical examination, and the constitution and by-laws of the order; that statements in the application for membership and medical examination were .made warranties and the basis and consideration for issuing the beneficiary certificate; that the application for membership contained a waiver for the member and her beneficiary of all privilege or benefit disqualifying any physician from testifying concerning information obtained about her in a professional or other capacity, and also the provisions of all laws which would conflict with such agreement.

Second. The application and the beneficiary certificate contained agreements that, if the member entered into certain prohibited business, or committed a felony, or within three years took his own life, whether sane, or insane, or death was caused by the violation or at-' tempted violation of any laws of the State, territory, or country in which he might be, the certificate would be forfeited.

Third. That plaintiffs decedent came to her death by procuring and consenting to an abortion and miscarriage which was performed upon her; she being then pregnant.

In making such defenses counsel for defendant offered in evidence the certificate of death of Grace P. Gilchrist to prove the cause of death. This was a certified copy of the certificate of death which had been filed with the secretary of State, made by the attending physician, required by statute before a burial permit can be issued. This was objected to as incompetent and hearsay, that proof of cause of death cannot be made by a witness who is not sworn and subjected to cross-examination, and it states a fact not within the personal knowledge of the doctor. This certificate contains in all 20 subdivisions. It is necessary to give but the seventeenth:

“(17) I hereby certify that I attended deceased from May 25, 1913, to May 29, 1913; that I last saw her alive on May 29, 1913; and that death occurred on the date stated above, at 10 p. m. The cause of death was as follows: Peritonitis. . Duration, five days.
“Contributory. Abortion, said by deceased to have .been performed by Dr.-.”

This was signed by the attending physician. We have copied the cause of death from the original return, which differs slightly from the printed record. The objectionable portion was the last sentence. The court sustained the objection excluding the last sentence following the word “peritonitis.” To this ruling counsel for defendant took an exception. After some colloquy between the court.and counsel for defendant, the certificate of death was withdrawn, counsel stating:

“We would like the record to show that by withdrawing the death certificate offered in evidence we do not waive the right to the exception to the ruling of the court refusing the defendant the admission of the death certificate in evidence to show the cause of death.
“The Court: It is understood that you are to have the benefit of an exception to my ruling.”

In the trial of a case the withdrawal of evidence offered leaves nothing for the court to pass upon. However, from what we have just quoted, we think it may be fairly understood counsel for defendant did not so understand this withdrawal, and the court was evidently of the same opinion. Therefore we are constrained to consider the error assigned upon this exception in its order.

Defendant next offered in evidence a certified copy of the coroner’s verdict for the purpose of showing the cause of death of deceased, and claiming the same was a part of the proof of death voluntarily submitted by plaintiff, and, therefore, an admission on his part of the cause of death. Counsel for plaintiff contended that the record shows this was not furnished voluntarily by plaintiff as part of proof of death, but was afterwards requested by defendant, and objected to its receipt in evidence for the reason that it was incompetent and immaterial. The objection was sustained, and the' paper excluded, to which defendant excepted.

On the. part of the defense there was next introduced the testimony of two physicians who attended the deceased during her last sickness, by which witnesses it was -sought to show that death had been produced by an abortion, and also to show by .them statements made-by the deceased to each of them relating how the abortion, was caused. The witnesses testified as to the condition of the patient when they attended her and the extent of the examination of her person made by them whereby they obtained knowledge of her physical condition. This testimony is of great length, and for the purposes of this case need not be quoted. The substance of the testimony of both of them was that each found that the patient was suffering from peritonitis, and there was found evidence of a miscarriage .or abortion. The examinations were separate, but made on the same day; the second physician Being called because the regular physician could not be found. Neither of them knew the cause of the abortion, and from the examination made by each neither could testify what was its cause. Both testified that abortions occurred from diseases and other causes, such as injuries to the person. Each was allowed to testify, over the objection of counsel for plaintiff, that in his opinion this was a “produced abortion.” During the taking of the testimony of each of these physicians many exceptions were taken by defendant’s counsel to the rulings of the court excluding certain questions. However, the testimony of each culminated in the opinion of each that this was a “produced abortion,” which was allowed by the court. Exceptions were also taken on the part of defendant to the rulings of the court in not permitting these witnesses to testify as to statements made by deceased as to how the abortion was produced.

The testimony of the hospital nurse who attended deceased after she was admitted to the hospital was then offered by defendant. Counsel for defendant offered to show by this witness that she was present when the statement was made by deceased to one of her attending physicians,- in answer to his question as to how and where the abortion was produced. This was objected to as incompetent and hearsay. This same testimony offered and objected, to on the part of the physicians was put upon the ground that it was part of the res gestas. The objection was sustained, and an exception taken. Thereupon, on the part of defendant, counsel offered in evidence sections 11502 and 11503, 3 Comp. Laws, and rested. Counsel for plaintiff then moved the court to direct a verdict in his behalf, for the reason that defendant had introduced no evidence or made any defense to overcome the prima facie case presented by plaintiff.

The errors assigned and relied upon by defendant are based upon the exceptions which have already been noted, and -are presented in defendant’s brief under seven groups:

First. Conditions precedent. Defendant first insists that the court was in error in overruling defendant’s motion for a directed verdict because plaintiff had not complied with the provision in the certificate sued upon, and contends:

“That it is a condition precedent to the right of recovery in this case that satisfactory proofs of death must be filed with the company before the right of action on the part of the beneficiary accrues.”

As appears in our statement of facts, it was admitted on the part of defendant that these proofs of death and of plaintiff’s claim (not admitting that they were satisfactory) were filed in season, received by the proper officers, acted upon, and payment refused. A reading of subdivision “d” of Circuit Court Rule 7 clearly shows that:

If'the defendant “in a suit upon a policy of insurance, * * * shall rely '* * * upon the failure to furnish any proof of loss, as required by the policy, there shall be added to the plea a notice plainly indicating the facts relied on.”

This was a matter of defense to this policy under our practice. Therefore this defense was not open to defendant, because it gave no notice thereof. O’Neill v. Assurance Co., 155 Mich. 564 (119 N. W. 911) ; Lessnau v. Catholic Order of Foresters, 163 Mich. 111, 119, 121 (128 N. W. 201), and cases cited. The court was therefore not in error.

Second. Death certificate. Error is. also relied upon because of the ruling of the court in excluding the last sentence in the death certificate. This sentence reads:

“Contributory. Abortion, said by deceased to have been performed by Dr.-.”

.The objection was that this was hearsay, and therefore incompetent, and not'a proper part of the certificate required by the statute. We are of opinion that the certificate properly included the words' “Contributory. Abortion.” A fair interpretation of the certificate is that the contributing cause of death was within the knowledge of the physician, and was not hearsay. The remainder of the certificate was hearsay. The proper certificate was admissible under the statute. Krapp v. Insurance Co., 143 Mich. 369 (106 N. W. 1107, 114 Am. St. Rep. 651).

Third. Coroner’s verdict. Defendant contends that the court erred in excluding the coroner’s verdict, which was offered in evidence by defendant, and claims that it was admissible as an admission, because it was furnished to defendant by plaintiff as a part of the proofs of death. We do not think the testimony in the case warrants such a conclusion. All of the proofs of death furnished by plaintiff were verified June 6th and forwarded and filed with the defendant June 9th. Plaintiff under the statute was called by defendant. for cross-examination and testified he furnished all proofs of death the local lodge required. The record shows that this was on June 6, 1913. On July 14th following, he procured and sent a. copy of the coroner’s verdict at the request of defendant. This was not furnished by plaintiff as part of his proofs of death. It was not furnished by him voluntarily and was no admission by him of its contents. Wasey v. Insurance Co., 126 Mich. 119 (85 N. W. 459). The court was not in error in excluding it.

Fourth. Opinions of attending physicians. As already stated, the facts concerning which the attending physicians testified were obtained by them in their professional capacity while attending deceased as their patient, and, unless this case is an exception to the general rule, such knowledge was privileged. Some of these assignments of error which relate to the exclusion of testimony above described which, under ordinary circumstances would be considered privileged, as having been obtained in a professional capacity, are claimed to have been admissible because of the waiver by deceased of the statutory privilege prohibiting the disclosure by attending physicians of information obtained while acting as such, which waiver was contained in the application of deceased for the beneficiary certificate. Our statute which prohibits a disclosure of such information on the part of a physician was amended by Act No. 234, Pub. Acts 1909, by adding a proviso as follows:

“Provided, that after the decease of such patient, in a contest upon the question of admitting thé will of such patient to probate, the heirs at law of such patient, whether proponents or contestants of his will, shall be deemed to be personal representatives of such deceased patient for the purpose of waiving the privilege hereinbefore created.”

This amendment to our statute provides but one exception to the prohibition created by the section, and

that is in a contest upon the question of admitting the will of such person to probate where the parties to the contest shall be deemed to be personal representatives of such deceased for the purpose of waiving the privilege thereinbefore created. In New York the code was amended very much as our statute has been, except it provided in terms that such waiver could be made by the personal representatives of the deceased patient only upon a trial or examination. In the case of Holden v. Insurance Co., 165 N. Y. 13, 17 (58 N. E. 771), that court, passing upon the question of an express waiver of this kind contained in an application for a life insurance policy, held:

“Under the statute as amended, no one except the personal representatives of the deceased * * * can waive the provisions of section 834, and it can be waived by them only upon the trial or examination where the evidence is offered or received. The apparent purpose of that amendment was to protect parties, their representatives and successors from waivers which should be inadvertently or improperly obtained previously to the trial of an action or examination of the witness,” et seq.

Our statute creates an absolute privilege, with but one exception, where a waiver may be made by the representatives of the deceased patient, and that only in a contest upon the question of admitting the patient’s will to probate. Our statute, therefore,, contains the more stringent prohibition, and the patient’s waiver of the privilege was of no force or effect. Holden v. Insurance Co., supra. It has been the policy of the legislature and the courts of this State to protect this privilege. The waiver contained in the application was therefore against public policy and void, and the testimony of the attending physicians as to all knowledge obtained by them in such capacity was properly excluded. This includes all of the testimony of the physicians- as to matters which were obtained from deceased in their professional capacity, together with their opinions based upon such information.

Fifth. Alleged statements of deceased. It is contended on the part of defendant that certain alleged statements of deceased made to these physicians and to one of them in the presence of a nurse should have been admitted, claiming they were admissible because of the waiver clause and because they were part of the res gestee. We have already disposed of the contention relative to the waiver clause, and nothing more need be said in that regard, nor do we think they could be regarded as part of the res gestee. The testimony of the nurse was admissible in so far as it stated an admission by the insured of the cause of her ailment. The statute does not exclude the testimony of the nurse. It was the life of the deceased which was insured. Plaintiff, as beneficiary, can recover only according to the contract which she made with defendant. If she admitted a breach of it which would avoid it, he ought not to recover.

Sixth. Expert testimony. Errors assigned under this subdivision of defendant’s brief are already disposed of by what has been said in this opinion relative to the waiver of deceased of her statutory privilege and the exclusion of alleged statements of deceased.

Seventh. Direction of verdict for plaintiff. As has been indicated, we are of opinion that there was some testimony within the notice of the defenses relied upon tending to prove that the policy was avoided. It follows that the court was in error in granting the motion of plaintiff and directing a verdict in his behalf.

The judgment of the circuit court is therefore reversed, and a new trial granted.

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

The late Justice McAlvay took no part in this decision.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    WILK v. BLACK.
    1. Physicians and Surgeons- — ■ Malpractice — Negligent Treatment.
    Where plaintiff, after sustaining á fracture of his left arm, employed defendant to reduce it, and after wearing the splints two weeks found, as he claimed, a hunch on the inner side of the arm, caused by defendant’s failure to properly treat it and where there was evidence of a medical expert that the splints used by defendant were too short, the court did not err in submitting to the jury the question of fact as to malpractice, though defendant disputed the claim of plaintiff.
    2. Same.
    And where defendant’s counsel, at the trial, made no complaint that the court had omitted ‘any instructions to the jury, and there was testimony tending to show want of sufficient skill, the charge submitting to the jury the question of negligence in possessing or exercising reasonable skill was not open to objection, on error.
    3. Damages — Weight oe Evidence — Expectancy.
    There was no abuse of the discretion vested in the trial court in denying defendant a new trial on tbe ground of excessive damages upon testimony tending to show that his expectancy was upwards of forty years, and that the arm was crooked, the verdict amounting to $2,250, in a malpractice suit.
    Error to Muskegon; Sullivan, J.
    Submitted April 15, 1915.
    (Docket No. 98.)
    Decided October 29, 1915.
    Case by Edward Wilk against Benjamin F. Black for malpractice. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Cross, Vanderwerp, Foote & Ross, for appellant.

      Nichols & Shaw and Charles G. Turner, for appellee.
   Moore, J.

This action was brought to recover damages for malpractice. On October 13, 1911, plaintiff, a farmer boy of 22 years of age, was thrown from a horse, thereby sustaining a fracture of the ulna and radius of the left forearm. The accident happened about 4:30 p. m. at a farm eight miles from the village of Holton, where the defendant was practicing his profession. Within two or three hours after the accident the defendant treated the fracture. Plaintiff returned the following Monday, when defendant examined the arm without taking off the splints and told the boy the arm seemed to be all right, and to be careful with the arm and come again in about two weeks. Plaintiff made his next and last visit to defendant on November 2d, at which time the splints were removed, the arm examined, and the defendant claims he found it to be perfect, the bones straight and in normal condition. Defendant assured the boy that the arm was coming on all right and directed plaintiff to come back again in two weeks and he would take off the splints. The plaintiff claims that at this time there was a lump on the arm.

The plaintiff testified:

“Why, he told me to come back in a week or two and he would take the splints off, and I told him it was quite a ways to come; if that was all that was necessary, if I could take them off myself; and he said I could, and I did at the end of two weeks’ time.”

Defendant testified:

“I told him to comé back in two weeks again, and he said to me, ‘Now, Doctor,’ he said, ‘it is a long ways from my place up here’ — he lives down here near Muskegon, nearer Muskegon than Holton, between Muskegon and Holton — and he said, ‘What will be the matter with me taking those splints off in two weeks’ time, and if the arm is all right, will it be necessary for me to come back? Well, with the arm in the condition it was in when I saw it, I said to him, ‘In two weeks’ time you can take those splints off if you want to and if you are satisfied the arm is all right, you needn’t come back; if you aren’t, I want you to come right back’; and he told me he would.”

.Plaintiff never returned to.defendant until several months thereafter, when he came to demand a settlement, being accompanied by his attorney, who exhibited an X-ray plate showing a shadow picture of the plaintiff’s arm taken on May 13, 1912, which plate was produced in the Supreme Court upon the argument.

Plaintiff claims to have worn the splints continuously from the time of his last visit to defendant until the morning of November 28th, when he took them off and discovered a bunch on the inner side of his arm, and immediately went to consult Dr. Thomas, at Muskegon, who examined the arm and found a prominence of from one-half to three-quarters of an inch high, which he supposed to be an enlarged callous. Dr. Thomas recommended an X-ray examination, put a leather band on the arm to be worn in the meantime, and told plaintiff to go at once to Dr. Black and show him the arm. This, however, plaintiff failed to do, claiming that he had lost confidence in defendant, and on cross-examination he stated he had heard of other instances where the defendant had done poor work.

The defendant claimed he had properly treated the arm, and that its condition when suit was brought was' caused by one of three things: (1) That plaintiff injured his arm by working after the injury; (2) that plaintiff injured his arm while it was in splints oh the way home from a dance; (3) that plaintiff removed the splints himself, and thus caused the injury. The defendant offered testimony tending to show the truth of these claims. The plaintiff denied that any one of them was true.

The trial judge charged, after stating the claims of the respective parties, in part as follows:

“Now, I will say to you, gentlemen, that when a patient goes to a doctor and accepts the professional skill of a doctor, it is the duty of the patient to follow the advice of the doctor, and if he fails to follow the advice of the doctor and something untoward happens to the patient which would not have happened or which was not the result of the doctor’s negligence at all, if something untoward happens to the boy, in such a case as that the doctor wouldn’t be liable. It is the duty of the plaintiff to show you by a fair preponderance of the evidence that the injury, if any, to his arm, was hot caused by any fault' on his part after the arm was set. The burden rests upon the plaintiff all along through. * * *
“I instruct you that, if a person holds himself out to the public as a physician and surgeon, he must be held to possess and exercise ordinary skill, knowledge, and care in his profession. * * * And where an injury results from a want of ordinary skill or attention in the treatment of a case the physician or surgeon is held responsible for such injury. You should notice that I said the physician should exercise the ordinary skill, knowledge, and care required of men in his profession in his treatment. The physician is not required to possess or exercise the highest degree of care and skill known to the profession in order to relieve him from liability; only reasonable care and skill is required, that is, such care and skill as is possessed by men of his profession in general, and I will add to that at least the average degree of knowledge and skill possessed and executed by the members of their profession generally in the locality in which they practice.
“If Dr. Black did not treat the plaintiff with such ordinary care and skill as I have defined to you, he would be guilty of negligence, and if damage resulted therefrom without fault or negligence on the part of the plaintiff, the plaintiff would be entitle4 to a verdict at your hands. Should the evidence fail to show that the defendant did not exercise ordinary care and skill in the work he did for the plaintiff, then he would not be guilty of any negligence, and your verdict should be for the defendant.”

The jury returned a verdict in favor of the plaintiff in the sum of $2,250. A motion for a new trial was made and denied. From a judgment on the verdict the case is brought here by writ of error.

The important question is: Was there evidence of negligence sufficient to carry the case to the jury? The law which should govern cases of this character is not new to this court. It is stated in various ways in Hyatt v. Adams, 16 Mich. 180; Hitchcock v. Burgett, 38 Mich. 501; Brown v. Marshall, 47 Mich. 576 (11 N. W. 392, 41 Am. Rep. 728) ; Farrell v. Haze, 157 Mich. 374 (122 N. W. 197) ; Rogers v. Kee, 171 Mich. 551 (137 N. W. 260), and the very recent cases of Duffy v. Charters, 180 Mich. 572 (147 N. W. 541), and Miller v. Toles, 183 Mich. 252 (150 N. W. 118, L. R. A. 1915C, 595). The questions involved are not so much law questions as they are of fact.

The defendant, when testifying in his own behalf, described the fracture:

“Why the arm was bent, as I said yesterday, a green stick fracture. * * * The bones were not broken off; it was not a complete fracture. They were bent. ❖ . Hi
“Q. And what opportunity was there for the bandage to slip or loosen?
“A. I dpn’t think there was any.
“Q. Whether or not there was sufficient swelling of the arm at that time that when the swelling again reduced it would loosen the bandage?
“A. There was not.
“Q: Was the swelling a perceptible one at the time you reduced the fracture?
“A. No, sir.”

On the recross-examination he said:

“There was scarcely any swelling in the arm when I first saw it; I Would say none. In a green stick fracture there is very seldom much swelling. There isn’t the same irritation that there is in a dry stick fracture. In Mr. Wilk’s case there was practically no swelling.”

The X-ray picture showed a complete fracture of the bones, and defendant introduced testimony to which reference has already been made which, if true, might account for this contention, even though the fracture was a green stick fracture; but plaintiff introduced testimony disputing in the most positive terms this testimony. There was testimony of an expert that the splints used were not long enough. We have already referred to the testimony of the plaintiff as to the condition he observed at the last visit, when he was assured his arm was all right. We have not overlooked the claim that he gave a different version of what occurred. Without stopping to go into detail, we think the court very properly concluded there was a case for the jury.

Some criticism is made of the charge of the court. We quote from the brief:

“We especially complain that the court erred in charging and instructing the jury as follows: 'The plaintiff claims that he engaged Dr. Black to set the bones in his arm, that the doctor, owing to the lack of skill such as an ordinary physician and surgeon practicing his art should have, did not properly set.the bones in the arm, and so in undertaking to set it he was negligent, because he did not possess the requisite skill such as a doctor should have.’ By this and subsequent language complained of in our assignments of error on this branch of the case the jury were left to determine, as a disputed question of fact, a matter with respect to which there was no evidence whatever.”

We have quoted other portions of the charge.

Counsel did not proffer any written requests. Nearly at the conclusion of his charge the judge inquired of counsel, “Is there anything I have overlooked?” and there was no suggestion made by counsel for appellant that the court had not properly charged the jury in relation to the skill of the doctor. We cannot agree .with counsel in his claim that the skill of the doctor was not in issue. It was put in issue by the pleadings. It has already appeared that there was testimony that when he first set the arm he used splints that were too short. There was also testimony that on the last visit the plaintiff made the doctor assured the plaintiff his arm was all right, when, in fact, a bunch or prominence had appeared upon the arm showing it needed further attention. The doctor testified the fracture was a green stick fracture. The plaintiff testified he had done nothing to change'the character of the fracture, while the X-ray plate showed a complete fracture.

There was no reversible error in the charge.

Should a new trial have been granted because the verdict was excessive? There was testimony that the arm would always be crooked. The expectancy of the life of plaintiff was 40 years or more. We cannot say the trial judge abused his discretion. Turnbull v. Richardson, 69 Mich. 400 (37 N. W. 499); Kinney v. Folkerts, 84 Mich. 616 (48 N. W. 283) ; Shaw v. Railway Co., 123 Mich. 629 (82 N. W. 618, 49 L. R. A. 308, 81 Am. St. Rep. 230) ; Retan v. Railway Co., 94 Mich. 146 (53 N. W. 1094).

Judgment is affirmed.

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

The late Justice McAlvay took no part in this decision.


author: Ostrander, J. Bird, J.

text:
    PARSILLE v. BROWN.
    1. Trial — Directing Verdict — Practice—Reasons.
    Reasons for the direction of a verdict should be stated by the trial court.
    2. Same — Statutes.
    The direction of a verdict constitutes a charge within the purview of the statute. 3 Comp. Laws, § 10247 (Act No, 101, Pub. Acts 1885).
    3. Same — Charge—Directed Verdict.
    An assignment of error that the court erred in taking the case from the jury may properly be construed to mean that the testimony presented a question of fact and that the court erred in directing a verdict for the appellee.
    4. Equity — Judicial Bonds — Validity—Judgments—Collateral Attack.
    Plaintiff brought an action upon a judicial bond given in chancery proceedings that he had instituted to have a receiver appointed for crops grown upon lands held by the obligor, his tenant. Defendant had taken his appeal from the order of restitution of the circuit court commissioner and had given an appeal bond in the sum of $1,200. The crops were worth over $1,900, and the landowner, deeming the bond insufficient, asked for a receiver. By the decree, upon complainant’s bill therefor, a receiver was appointed by the court to take possession of any crops that might be grown on the premises unless the tenants should furnish a sufficient bond, as security, which defendant filed. Defendant contended that it was invalid because the court had no jurisdiction, the remedy at law being adequate and complete, and that the order appointing a receiver was void, for want of equitable authority. Held, that the court did not exceed its jurisdiction and that the bond was valid, that the order for a receiver was also within the equitable power of the court, and, no appeal having been taken, was not subject to collateral attack.
    Bird, J., dissenting.
    Error to Chippewa; Fead, J.
    Submitted April 27, 1915.
    (Docket No. 151.)
    Decided October 29, 1915.
    Debt by Herbert L. Parsille, for the benefit of David Brown, against Hugh Brown and others on a judicial bond. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Albert E. Sharpe, for appellants.

      John W. Shine, for appellee.
   Ostrander, J.

The suit is upon a bond. The trial by the court and a jury resulted in a verdict for the plaintiff directed by the court. The court properly (Demill v. Moffat, 45 Mich. 410 [8 N. W. 79]; Bergstrom v. Staples, 82 Mich. 654, 657 [46 N. W. 1035]; Rayl v. Hammond’s Estate, 95 Mich. 22 [54 N. W. 693] ; Howey v. Fisher, 111 Mich. 422, 424 [69 N. W. 741] ; see, also, Tillotson v. Webber, 96 Mich. 144, 153 [55 N. W. 837] ; Hanley v. Balch, 106 Mich. 46 [63 N. W. 981]), stated the reasons for directing the verdict. One reason, the principal one, was that the admissions of defendant Brown in his testimony, and other uncontradicted testimony, required it. Defendants had moved for a directed verdict in their favor. A bill of exceptions was settled, but there are no exceptions — at least none are noticed in the index to the record, and none are referred to in the brief for appellants. It is assigned as error that a verdict was so directed, and that one was not directed for defendants, and it is assigned as error that the court refused certain instructions asked for by defendants, and refused defendants the right to introduce certain testimony. Counsel for appellee contends there is nothing for this court to review.

The statute (3 Comp. Laws, § 10247), as amended by Act No. 52, Pub. Acts 1901, permits errors to be. assigned upon the charge of the court. It was suggested at the hearing, arguendo, that the direction of a verdict was a charge, within the meaning of the statute. The statute was passed in 1885. (Act No. 101). Both before and after its enactment, in Demill v. Moffat, in Rayl v. Hammond’s Estate, and in Hanley v. Balch, supra, this court spoke of the direction as a charge, which in effect it is. The rule that reasons should be given by the trial court for directing a verdict supports the conclusion that a directed verdict ought to be treated as a charge, and we hold that it is a charge within the meaning of the statute referred to.

The single assignment of error based upon the charge is the one that the court erred “in taking the case from the jury and directing a verdict for the plaintiff.” What question of law is presented by this assignment when read with the charge? It is naturally construed to mean that a question of fact was presented by the testimony, for which reason a directed verdict was improper. When the record is examined it is found that, while requesting a directed verdict, defendants also claimed, if a directed verdict in their favor was refused, the right to go to the jury upon the question of what, if anything, was due defendant Hugh Brown from one David Brown, as affecting the amount of plaintiff’s recovery. Turning to the brief for appellants, we find the following:

“The theory of the defense in this case in the circuit court was that this bond was void and uncollectible for lack of consideration, and because the circuit judge had no authority to order it given. The further defense was made that there was no breach of the terms of the bond proven in the case; that if the bond were valid, there could be no liability upon it until David Brown had exhausted his remedy on the regular appeal bond given to the circuit court commissioner, on which the penalty was $1,200, which was estimated at double rental value of the land. It was further claimed that the bond was void upon its face for lack of express consideration. These questions were all clearly brought before the court by defendant’s requests to charge, and our assignments of error are based principally on the refusal of the court to give these requests, and on his direction of a verdict in favor of plaintiff.”

It appears that from a judgment of restitution of certain premises, in favor of David Brown, Hugh Brown appealed to the circuit court. Pending a trial in that court, David Brown filed a bill in equity, praying, among other things, for a receiver for the crops for the then current year (1913), the proceeds to abide the further order of the court. An answer was filed. An order was made that a receiver be appointed, unless Hugh would give a bond, to the clerk of the court to account for the crops. The bond was given. It runs to Herbert L. Parsille, clerk of the circuit court for the county of Chippewa, his successors and assigns. It is conditioned as follows:

“The condition of this obligation is such that in case David Brown shall recover possession from the said Hugh Brown of the east half (E. ½) of the southwest quarter (S. W. ¼) and the west half (W. ½) of the southeast quarter (S. E. ¼), except that part west of the Mackinaw Road and that part of the W. ½ of the S. W. ¼ lying east of the Mackinaw Road, of section twenty-five (25) in town forty-seven (47) north of range one (1) west, or shall be adjudged entitled to the possession thereof, or in case William Godfrey shall recover possession of said lands, the said Hugh Brown will account for and pay over to the said clerk the proceeds of all the crops grown on said lands for the year 1913, less such sums as may be allowed by the court for harvesting and marketing the same, to be disposed of as the court shall direct and if the said Hugh Brown shall suffer no waste in respect to said farm and shall care for and harvest the said crops in proper shape and in good and workmanlike manner and shall afford such person as may be agreed on by counsel or appointed by the said clerk of this court, at the expense of said David Brown, opportunity to be present at the baling of the hay and the threshing of the grain grown on said farm, then this obligation to be void, otherwise to be and remain in full force and effect.”

Hugh held the land until October 1st, harvested the crops, but did not account for them. They were worth $1,900. It appears, further, that before the action to recover possession was heard by the circuit court commissioner, Hugh Brown, the defendant therein, applied to the circuit court, in chancery, for an injunction to restrain the proceedings to obtain restitution, claiming that he had no legal defense to the action. The application was denied. The farm consisted of 160 acres of improved land; the crops were hay and 20 acres of oats. The term of court to be held next after the appeal from the commissioner’s judgment was the September term. Hugh Brown gave a bond on appeal in the sum of $1,200, fixed by the commissioner as twice the rental value of the land.

It is said in argument that the bond is void as given without consideration, and because the order for a receiver was void. Without admitting that the single assignment of error available to the appellants presents the rulings upon these points for review, we may say that it does not appear that the order for the receiver was intended, or was necessarily calculated, to oust the tenant from possession of the land or its management, or to transfer the possession of personal property. The court making the order seems to have been convinced, not upon an ex parte application, but upon a hearing, that the proceeds of the crops ought to be preserved, so that the person finally found to be entitled to them could have them. To what extent the court was affected, or should have been, by the fact that an appeal bond had been given, we cannot tell. We hold only that the order for a receiver was not void. It was not appealed from. The bond was given, and there has been a breach of its conditions, so that by its terms, and the testimony, the plaintiff, the clerk of the court, was entitled to recover upon it the entire penalty. The money, when paid, will stand in the place of the proceeds of the crops, in the custody of the clerk.

No reversible error appears, and the judgment is affirmed.

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

Bird, J.

(dissenting). Hugh Brown was in the possession of David Brown’s farm, under a contract of purchase. David claimed Hugh’s rights had expired thereunder, and demanded that he vacate. Hugh refused to go. David commenced proceedings before a circuit court commissioner to oust him, and obtained a judgment for restitution. Hugh appealed, and gave the statutory bond in double the amount of the rental value of the farm. David then filed a bill on the chancery side of the court for the appointment of a receiver to preserve the crops and the proceéds thereof. Hugh filed an answer, and the chancellor on a preliminary hearing ordered the appointment of a receiver in case a bond was not given, in the sum of $1,400, to cover the value of the growing crops. This is the bond upon which judgment was rendered in this suit.

I am unable to agree with Mr. Justice Ostrander that the judgment in this case should be affirmed. In my opinion the chancery court which ordered the bond in suit was without jurisdiction, because David Brown had an adequate remedy at law. He conceived that he had a grievance, and he selected a court of law himself in which to have that grievance redressed. He obtained the relief which he sought. Then why should he be permitted to have further redress in a court of equity? The only answer appears to be that the bond ordered by the commissioner was inadequate. If it were, he should have so protested at the time and introduced proof before the commissioner to show that the rental value was larger than the amount proposed to be fixed in the bond. He did not do- this. He made no motion afterwards to have the penalty enlarged; therefore we must conclusively presume that the rental value was properly fixed by the commissioner. The bond of $1,200 ordered by the commissioner covered the rental value. After this there was no occasion for a court of chancery to order another bond to cover the value of the crops. If Hugh paid the rental value, he was entitled to the crops, because the value of the crops was the principal factor in determining the rental value. It cannot be possible that he was liable for both, the rental value plus the value, of the crops. If under the circumstances of this case the- complainant was entitled to further relief in a court of equity, it establishes a new rule which may be followed in every case where the penalty in the appeal bond is fixed at a sum smaller than the complainant thinks it ought to be.' The chancery proceedings must necessarily have shown upon their face that the plaintiff had an adequate remedy at law, and that he had pursued it. When this appeared, the chancellor should have dismissed the proceedings becausé this objection goes to the jurisdiction of the subject-matter.

The judgment should be reversed, and no new trial ordered.

The late Justice McAlvay took no part in this decision.


author: Brooke, C. J.

text:
    BRETZ v. HITCHCOCK.
    1. Taxation — Notice to Redeem — Reconveyance.
    "Where the tax title owner made out a prima facie case by introducing proof of the service of a notice to redeem, and the defendants met the same by evidence that the owner bad died several days before the notice was shown to have been served, the defendant had fully rebutted the case of complainant who was not entitled to equitable relief.
    2. Same — Evidence—Prior Years.
    Some proof must be presented as to the amounts of taxes for other years paid as a condition of the tax purchase, and included in the notices served, which are not prima facie proof of the said amounts or years. The burden of proof is on the complainant to show a valid title and service of a proper notice.
    3. Same — Estates oe Decedents — Descent—Service oe Notice on Heirs, etc.
    Service of notice to redeem on the heirs of a deceased made, as to one, the day after complainant filed his bill, and as to the other only a few days before commencement of suit, so that the return of service was not filed until after suit was begun, was not sufficient to confer jurisdiction to quiet title.
    4. Same.
    The owner of the record title, who permits his lands to be sold for taxes, is not entitled to an accounting for timber removed by the purchaser of the tax title interest until he redeems, since the holder of the record title has only a bare right to reconveyance.
    Appeal from Chippewa; Fead, J.
    Submitted April 28, 1915.
    (Docket No. 96.)
    Decided October 29, 1915.
    Bill by Charles W. Bretz against Roxanna G. Hitchcock and others to quiet title to real property. Defendants filed a cross-bill for an accounting. From a decree dismissing both bill and cross-bill both parties appeal.
    Affirmed.

      Merlin Wiley (Sherman T. Handy, of counsel), for complainant.

      D. W. Closser (Davidson & Hudson, of counsel), for defendants.
   Brooke, C. J.

The somewhat complicated facts involved in this proceeding are clearly set forth by the learned circuit judge who heard the case, together with his legal conclusions, in the following opinion:

“Complainant brings this action to quiet title to the S. W. ¼ of the N. W. ¼ of section 31, township 45 N., range 2 W., in Chippewa county, Mich. He claims title as grantee of one John B. Anderson, tax title owner by virtue of a tax deed executed by the auditor general to said Anderson and dated February 27, 1904, upon a sale of the premises made February 23, 1904, for the taxes of 1895, 1896, 1897, 1898, and 1899, together with certain tax notices based thereon and claimed to have been served by Anderson and by complainant on the several parties in interest. The conveyance from Anderson to complainant was by quitclaim deed, dated January 27, 1906, and recorded March 13, 1906. At the time of the service of the notices by Anderson, the parties interested in. the premises, as shown by the records, were Charles Fitzhugh, Jr., Archibald McDonell, Mendel J. Bialy, and Joseph R. Hitchcock, owners of the government chain of title, John A. Combs, mortgagee, and Elliott C. Davison, tax title purchaser for the taxes of the year 1899, upon sale made by the county treasurer May 23, 1893 [1903]. Tax notices were returned personally served on such persons at the instance of Anderson, and were filed in the office of the county clerk of Chippewa county as follows: Notices served on Fitzhugh, McDonell, Bialy, Combs, and Davison, were filed June 29, 1904. Notice served on Hitchcock was filed August 17, 1904. Certified copies of these notices, with the returns of service, were duly recorded in the office of the register of deeds of said county on December 18, 1913. Joseph R. Hitchcock died some time prior to the alleged service of the tax notice on him. Archibald McDonell died after the service of the tax notice, but prior to the filing of the bill of complaint herein. On April 5, 1911, complainant placed in the hands of the sheriffs of Wayne and Bay counties, respectively, for service, tax notices directed to Herbert C. Hitchcock and Roxanna G. Hitchcock, sole heir and widow, respectively, of Joseph R. Hitchcock. Personal service was made on Mrs. Hitchcock April 7, 1911, and on Herbert C. Hitchcock April 11, 1911. Certified copies of these notices, with the returns, as filed with the county clerk April 21, 1911, were recorded in the office of the register of deeds on December 18, 1913. In 1908 defendants Closser, Davison, and Shupert' obtained quitclaim deeds of the premises from Fitzhugh and Bialy, and on May 7, 1909, from Herbert C. Hitchcock. In 1910 and 1911 defendant Closser obtained quitclaim deeds from five of the McDonell heirs, and on May 4, 1911, from Roxanna G. Hitchcock. The latter deed, was recorded September 4, 1912. The others were all recorded April 10, 1911, the day the bill of complaint was filed herein. On April 5, 1911, when the notices from Bretz to Roxanna G. and Herbert C. Hitchcock were received by the respective sheriffs for service, the defendants Closser, Davison, and Shupert had no interest of record in the premises. The record title was unchanged from the time of the service of the notices by Anderson until April 10, 1911.
“The bill of complaint alleges, in addition to setting up the regular chain of title, that Dayton W. Closser claims an interest in the land by reason of the purchase of the interests of certain of the parties of record, the amount of such interest, and the parties in interest from whom purchased being unknown to complainant. Bialy, Fitzhugh, Roxanna G. and Herbert C. Hitchcock, seven heirs and widow of Archibald Mc-Donell, and Dayton W. Closser were originally made defendants in the bill. By amendments, Robert A. Davison, Harry L. Shupert, John A. Combs, and William E. Davison, administrator of the estate of Elliott C. Davison, deceased, are also made parties defendant. Because of the recording of the deeds before mentioned, the action was discontinued as to Bialy, Fitzhugh, Herbert C. Hitchcock, and five of the McDonell heirs. The parties defendant remaining are William E. Davison, as administrator of the estate of Elliott C. Davison, John A. Combs, Annie F. McDonell, widow, and Frank McDonell and Henry McDonell, heirs of Archibald McDonell, deceased, all of whom have defaulted, and against whom the bill has been taken as confessed, and Roxanna G. Hitchcock, Robert A. Davison, Dayton W. Closser, and Harry L. Shupert. Roxanna G. Hitchcock filed an answer and cross-bill on May 20, 1911, which was subsequent to her deed to defendant Closser. The three defendants, Closser, Davison, and Shupert,- filed a joint answer and cross-bill. In their cross-bill they set up the service of the notices on Roxanna G. Hitchcock and Herbert C. Hitchcock, ask an accounting for the timber it is claimed complainant removed from the premises, and also ask the privilege of redeeming the premises from the tax title. Complainant answered the cross-bills, denying the right of defendants to redeem.
“The cause was submitted on briefs. At the hearing, innumerable objections, specific, general, and inclusive, were made by counsel to the introduction of practically all the testimony offered. This court cannot be expected to dive into the sea of adverse contention as to the admission of testimony, bring up all the shells of objections which may be strewn on the bottom, and discover for itself which contain pearls of merit. All the objections will not, therefore, be considered; but it will be assumed that such as were not deemed of sufficient importance by counsel to be noticed in the briefs are not insisted upon.
“In the tax notices were included the taxes of other years than those covered by Anderson’s deed. Complainant introduced in evidence the decrees and tax records covering only those years mentioned in the deed, and offered no proof as to the other years mentioned in the notice. No case or statute is cited indicating that the amount stated in the notice is prima facie correct, and it is evident the court cannot take judicial notice of the years or the amounts of the taxes required to be paid as a condition of purchase. The burden of proof is upon the complainant to show a valid title and the service of a proper notice. The proof offered was insufficient as to the taxes not included in the deed. Backus v. Cowley, 162 Mich. 585 [127 N. W. 775]. It appearing that no redemption had been made, the complainant, however, did make out a prima facie case by the introduction of the record of the certified copies of the tax notices served by Anderson on the parties in interest. Act No. 142, Pub. Acts 1905; Vincent v. Evans, 165 Mich. 696 [127 N. W. 760].
“The prima facie case was effectually rebutted by proof of the death of Joseph R. Hitchcock prior to the time of the alleged service of the notice on him. The period of redemption had not expired on the notices served on Herbert C. Hitchcock and Roxanna G. Hitchcock at the time of the filing of the bill of complaint. Consequently the. complainant was not, at that time, entitled to the relief prayed for. No supplemental bill was filed setting up the service of the last-named notices. Nowhere in his pleadings does the complainant rely upon these notices as entitling him to affirmative relief. Under the pleadings they are pertinent only as affecting the right of defendants to relief. They cannot, therefore, be made the basis of a decree for complainant. Moran v. Palmer, 18 Mich. 367. The notices to Roxanna G. Hitchcock and Herbert C. Hitchcock were again introduced by complainant under his answer to defendants’ cross-bill. They are set up in the cross-bill, and are counted upon as giving the right to redeem.
“It is evident that, because of the failure of service as to the interest held by Joseph R. Hitchcock, the defendants had the right to redeem the premises from the tax purchase at the time his action was begun. But by reason of the service of the notice on the widow and heir of said Hitchcock, the error in service on him was cured, and the period of redemption began to run from the time of filing the returns of service; i. e., April 21, 1911. This right of redemption could have been protected and conserved to defendants by the proper deposit of the amount necessary to redeem. Neglecting to do this, they have lost such right, and this_ court, now that the period provided by statute has expired, cannot afford them any relief. The commencement of suit does not stop the running of the statute of redemption, nor operate to extend the time. Clothier v. Miller, 173 Mich. 530, 537 [139 N. W. 253]. The right to an accounting for the timber removed must necessarily depend upon the right to redeem.
“The bill of complaint and the cross-bills will therefore be dismissed. No costs will be awarded to either party.”

The learned circuit judge was undoubtedly correct in holding that the complainant was not entitled to relief upon his bill as filed. The bill was filed April 10, 1911. The right to relief was predicated upon the assumption that a proper notice of reconveyance was served upon Joseph R. Hitchcock on the 15th day of August, 1904. As a matter of fact Joseph R. Hitchcock died prior to the time of the alleged service upon him. The service upon Herbert C. Hitchcock and Roxanna G. Hitchcock, his sole heir and widow, was not made until April 7, 1911, and April 11, 1911, respectively, and return thereof was not filed until April 21, 1911. It is obvious that this service was not sufficient to clothe the court with jurisdiction to grant complainant relief under a bill filed April 10, 1911. The answer and cross-bill of the defendants was filed May 8,1911. Defendants therein aver:

“(1) These defendants allege: That Roxanna G. Hitchcock, the widow of Joseph R. Hitchcock, is the owner of a redeemable interest in said land, and that complainant has served a tax notice upon her, wherein he offers to let her redeem upon payment of the sum of $189.44, and the fees of the sheriff. That return showing service of such notice upon Roxanna G. Hitchcock, and also return showing service of the like notice upon Herbert C. Hitchcock, was filed with the register of this court on or about the 21st of April, 1911.
“(2) These defendants allege that the right to redeem the land described in said bill of complaint has not been extinguished by full and complete compliance with the provisions of Act 229, Public Acts of 1897, and amendments thereto.
“ (3) These defendants further allege that complainant’s grantor, John D. Anderson, and also the said complainant, unlawfully cut and removed valuable timber from said land, and that in so doing they were trespassers and that the value of the timber so cut and removed exceeds many times the amount which defendants would be required to pay complainant if he were the holder of valid tax titles as in said bill of complaint alleged.
“ (4) These defendants further allege that they are the owners of the timber and forest products which have been unlawfully removed from the said land, together with all rights of action for the recovery of the same, or the value thereof, or damages therefor, which formerly belonged to their grantors; they having acquired same by appropriate conveyances, which they beg leave to produce on the hearing hereof and make a part of 'this paragraph.
“(5) These defendants further allege that, by reason of the unlawful cutting and removing of the timber aforesaid, the said complainant and his grantors are estopped from claiming any right, title, or interest in and to said land by virtue of said tax deeds, and from claiming the right to any redemption money, and complainant ought to be required to account for the timber so cut and removed from said land by him, and the tax titles, if any there be, which he may have against said land, ought to be set aside and held for naught, for the reason that the said complainant has already secured more value from the said land than would be required to redeem from the said tax titles, and by so doing has depreciated the said value of the land, to the great damage of these defendants.”

The decree must be affirmed, for the reason that the cross-complainants, at the time their cross-bill was filed, had no right to an accounting with the tax-title trespasser. They did not. have this right because, though the time limited by the statute for redemption had not expired, they had in fact not redeemed, and were therefore not entitled to secure a reconveyance. .As was said by Mr. Justice Grant in Griffin v. Ken nedy, 148 Mich. 583, at page 591 (112 N. W. 756, at page 759):

“The law confers upon thé negligent owner, not any title or right, but á privilege to obtain a reconveyance upon specified terms.”

See, also, Huron Land Co. v. Manufacturing Co., 183 Mich. 45 (148 N. W. 753), and cases there cited.

The decree is affirmed, without costs to either party.

Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


text:
      In re HAMILTON.
    1. Criminal Law — Commitment—Life Term — Statutes — Judgment — Indeterminate Sentence.
    Under a sentence that the accused be confined in prison for a period of not less than ten years, the court recommending imprisonment for life, the order should be construed as fixing a maximum term of ten years, and the minimum be held to be fixed by statute at five years, the court clearly intending that his sentence should not be conclusive on the governor or pardon board: hence-the accused was not entitled to his discharge because of the irregularity of the sentence or commitment. Act No. 184, Pub. Acts 1905, § 3.
    2. Same — Indeterminate Sentence.
    As it is impossible to fix a minimum sentence, in the case of life imprisonment, that would equal one-half of the maximum term, there can be no minimum sentence as to life prisoners, to comply with the proviso in section 3 of the statute.

      Habeas corpus by George E. Hamilton to determine the validity-of a sentence and imprisonment imposed on the petitioner.
    Submitted June 26, 1915.
    (Calendar No. 26,765.)
    Decided October 29, 1915.

      Edwin H. Lyon, for petitioner.

      Grant Fellows, Attorney General, and Samuel D. Pepper, Assistant Attorney General, for respondent.
   Ostrander, J.

Petitioner is imprisoned. He can be held by the warden only by virtue of a .lawful commitment. There was a commitment, and it appears to be agreed that it follows the judgment pronounced by the court. The judgment is:

“That the said George E. Hamilton be confined in the State House of Correction and Branch of the State Prison in the Upper Peninsula, Marquette, Mich., at hard labor, for a period of not less than ten years from and including this day, and the judge thereupon did recommend and state that, in his judgment, the proper maximum penalty would be the term of his natural life as fixed by the statute.”

This was November 25, 1908.

The statute punishment of the crime for committing which petitioner was convicted is life or any number of years. In a consideration of all of the provisions of the statutes, including the indeterminate sentence law, we held in People v. Vitali, 156 Mich. 370 (120 N. W. 1003), that a judgment that the respondent be imprisoned for life was good; the statute punishment in that case, as in this, being life or any term of years, in the discretion of the court. The question presented in Vitali’s Case was whether the judgment was bad in view of the provisions of the indeterminate sentence law; it being contended that a life sentence could not be imposed, but only a sentence for a term of years.

We said that the proviso to section 3 of the indeterminate sentence law should be construed as if it read:

“Provided, that in all cases where the maximum sentence in the discretion of the court may be life or any number of years, the court having in its discretion imposed a sentence for a term of years shall fix both the maximum and minimum sentences.”

We said, also, and were obliged to say, to support the judgment, that “there could be no minimum sentence in case the life sentence were given,” because the proviso which was in question there and here is that:

“In all cases where the maximum sentence, in the discretion of the court, may be for life or any number of years, the court imposing sentence shall fix both the minimum and maximum sentences. The minimum term of imprisonment thus fixed by the court shall not exceed one-half of the maximum term so fixed.”

It is obvious that no minimum term’ of imprisonment can be fixed which shall be one-half of a life term, and that therefore “there could be no minimum sentence in case the life sentence were given.”

In People v. Dumas, 161 Mich. 45 (125 N. W. 766), the sentence was for life, and, following People v. Vitali, it was held a good judgment. It is therefore manifest that, if in the case at bar the sentence had been for the life of petitioner, it would have been a good sentence in law, and we are confronted with the question: Was it the judgment of the court, as shown by its record, that petitioner be imprisoned for life? To this question I think but one reasonable answer can be given. We cannot hold the recommendation of the court as the sentence, and ignore the positive language of the judgment fixing a period of imprisonment of not less than ten years. I think it is plain that the court intended to give, and attempted to give, a judgment which would permit the operation upon the judgment of the indeterminate sentence law — a judgment which would permit the paroling or discharge of petitioner at any period after ten years.' This court cannot impose a proper sentence nor amend or modify the sentence which was imposed. It can only determine whether petitioner is now lawfully imprisoned, in view of the judgment and commitment.

In Re Richards, 150 Mich. 421 (114 N. W. 348), respondent had been convicted of an offense for which the punishment fixed was like the one fixed in the case at bar. The judgment was that he be committed for a term of not less than six years, “and the court recommended that the maximum term be not more than seven years.” Later a new judgment was entered which, following the statute, imposed a term of imprisonment of not less than six years, with a maximum of twelve years. Plainly, the trial judge intended to impose not a life sentence in any event, but a term of years. We held the second judgment unwarranted, but refused to discharge because the commitment followed the second judgment, holding that the first sentence could be sustained, and a new commitment in conformity therewith could be issued. We said:

“The prisoner was entitled to have the decision of the judge upon the maximum, and a minimum fixed which should not exceed half of it, not a minimum fixed, and a maximum which should not be less than double the minimum. Such is the language of the statute. Act No. 184, Pub. Acts 1905, § 3. Section 2 provides that the minimum shall not exceed one-half of the maximum penalty prescribed by law, while section 3 prohibits an excess over one-half of the maximum fixed — i. e., prescribed by the court. By this construction we preserve the harmony between the two provisions, between which there is an evident analogy. The court did determine the maximum penalty, and while we may well believe (especially in view of his subsequent change of sentence) that he did it believing that it was not conclusive upon the governor or pardon board, it must be governed by the same rule that would apply had the maximum fixed been double the minimum.”

In sustaining the first judgment we held the recommendation of a maximum of seven years equivalent to the fixing of a term of seven years; we supplied, or the statute supplied, the minimum of three and one-half years. But we were dealing not with a case in which a life sentence was intended, or in any manner indicated, by the judgment.

In the case at bar the only sentence is one for ten years. It is the maximum and the minimum term fixed by the judgment. It was plainly not intended by the trial judge that the sentence should be conclusive upon the governor or pardon board. I am of opinion, therefore, that the judgment and commitment may be sustained as imposing a maximum sentence of ten years; the statute supplying the minimum of five years. In this view of the matter the prisoner must be remanded. Consult the earlier forms of the statute and the reasoning in Re Cummins, 138 Mich. 39 (100. N. W. 1008), and In re Campbell, 138 Mich. 597 (101 N. W. 826).

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

The late Justice McAlvay took no part in this decision.


text:
    BERNARD v. MICHIGAN UNITED TRACTION CO.
    Master and Servant — Workmen’s Compensation — Notice.
    Until notice of the intention of any employer to take advantage of the workmen’s compensation act has been filed with, and accepted by, the Accident Board (Act No. 10, Extra Session 1912), an employer is not brought within its protection; notwithstanding that the servant injured may have made declarations or accepted compensation as fixed by the statute.
    Certiorari to Jackson; Parkinson, J.
    Submitted June 9, 1915.
    (Docket No. 32.)
    Decided October 29, 1915.
    Case by Charles N. Bernard against the Michigan United Traction Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Price & Whiting, for plaintiff.

      Sanford W. Ladd (Warren, Cady, Ladd & Hill, of counsel), for defendant.
   Moore, J.

The questions involved in this proceeding are so clearly stated by the circuit judge in his direction to the jury that we quote freely from it as follows:

“The plaintiff in this suit, Mr. Bernard, has brought it claiming he is entitled to recover from the defendant company because of negligence causing personal injuries to him. The defendant has interposed a plea to the jurisdiction of this court. This denial of jurisdiction in this court to entertain this case is based on two claims practically, as I understand it: First, that regardless of anything the plaintiff' did under the facts of this case, the plaintiff cannot maintain his suit in this court, but that his rights and his remedies are under Act No. 10 of the Public Acts of the Special Session of 1912. Second, that the plaintiff, by signing Exhibit F, Exhibit M, and Exhibit N, and giving one to Mr. Kleinstiver, which was afterwards sent to the Industrial Accident Board at Lansing, has voluntarily placed himself under the provisions of that act, and is bound by his action as an irrevocable choice and must abide by it, and hence cannot now prosecute this suit.
“Act No. 10 of the Special Session of 1912 took effect from and after September 1, 1912. I believe the defendant company made its election to come under the provisions of that act September 7, 1912, but notice of such election was not received and filed by the Industrial Accident Board until September 9,1912. That Industrial Accident Board did not approve of this election on the part of the company until November 20, 1912, and after that date the notices required by the act were posted by the railroad company.
“The accident to the plaintiff occurred on the 12th day of November, 1912, 8 days before the action of the board approving the election made by the railroad company. September 13, 1912, the board wrote the company for information as to its financial responsibility, and again on the same subject on November 7th, saying in the latter letter that the former one had not been replied to, and this board was withholding action because of defendant’s delay.
“By section 1 of part 4 of this Act No. 10, employers had the right to choose one of four ways of paying in case of accident. The railroad company chose the first, that of paying direct to its injured employees. Such right so to specify was subject to the approval of the Industrial Accident Board. And to secure such approval the board requires satisfactory proof of the solvency and financial ability of the company. This it finally had, and on November 20th approved of the application and election of the company.
“The defendant in support of its plea to the jurisdiction says: First, irrespective of any act of plaintiff in recognition of Act No. 10 of 1912, he is subject to it and cannot maintain this suit; second, if not, then his positive action in signing Exhibit F, December 3, 1912, and delivering a duplicate to Mr. Kleinstiver, and which was sent to Lansing, was an adoption of the act of the legislature in question, and an election to avail himself of it, from which he could not recede, or which he could not thereafter repudiate. These claims on the part of the defendant the plaintiff denies. These antagonistic claims require from this court a construction of this act of the legislature so far as is necessary to, determine the questions at issue.
“Section 1 of that act, in reference to suits for personal injuries, takes away three defenses that before existed, unless, as to railroad companies, they had before been taken away or modified by Act 104 of 1909.
“Section 3 of part 1 reads as follows: ‘The provisions of section 1’ — which you will remember I stated before, takes away certain defenses that before existed —‘shall not apply to actions to recover damages for the death of, or for personal injuries sustained by, employees of any employer who has elected, with the approval of the Industrial Accident Board hereinafter created, to pay compensation in- the manner and to the extent hereinafter provided.’ In that section it says that section 1 shall not apply to those who elect to come under this act and whose election is approved; couples the two things, the employer who has elected and approval on the part of the Industrial Accident Board.
“Section 4 uses substantially the same language: ‘Any employer who has elected, with the approval of the Industrial Accident Board hereinafter created, to pay compensation as hereinafter provided, shall not be subject to the provisions of section one.’
“I think, to exempt the employer from the liabilities or responsibilities imposed by section 1, it is necessary that the employer have elected and that there should have been the approval of the Industrial Accident Board. So I am inclined to think that the action of the employer — in this case, the railroad company— its rights, as well as obligations, are not completed until it has not only made its election, but that it has had the approval of the Industrial Accident Board. By those two sections, those things go together. The status of the company does not seem to be completed or fixed without the two concurring actions, the election on the part of the company and the approval of the Industrial Accident Board.
“Section 5 says: ‘The following shall constitute employers subject to the provisions of this act.’’ I omit subdivision 1 which has no application. Subdivision 2 says: ‘Every person, firm and private corporation, including any public service corporation,’ and the defendant company is á public service corporation, ‘who has any person in service under any contract of hire, express or implied, oral or written, and who, at or prior to the time of the accident to 'the employee for which compensation under this act may be claimed, shall, in the manner provided in the next section, have elected to become subject to the provisions of this act, and who shall not, prior to such accident, have effected a withdrawal of such election, in the manner provided in the next section.’ Now, that section or division of section applies to employers and to persons who have met with an accident, and seems to convey the meaning that the election should have been had prior to the accident. The election in this case, if that is all there is of it, was prior to this accident as far as that is concerned, but that election had not been approved; it had not become effective at the time of the accident. And I am inclined to think that the meaning of that subdivision 2 refers to the election made prior to the accident and the election that has become complete and in force by the approval of the Industrial Accident Board.
“Section 6 of part 1 provides, first, as to the way in which the election shall be made out, and says that in making it out the employer shall accept the provisions of this act, and that he adopts subject to the approval of said board one of the four methods provided. So that act is subject to the approval of the Industrial Accident Board. And it reads: ‘The filing of such statement and the approval of said board shall operate, within the meaning of the preceding section, to subject such employer to the provisions of this act and all acts amendátbry thereof.’
“For theimomént I stop there. But it is the filing of the statément and the approval of the Industrial Accident'Board that subjects the employer to the provisions of the act, and it seems to require the concurrence of those two things to complete the subjection of the employer to the provisions of the act. There is a proviso in this connection: ‘Provided, however, that such employer so electing to become subject to the provisions of this act shall, within ten days after the approval by said board of his. election, filed as aforesaid, post in a conspicuous place in his plant, shop, mine or place of work, or if such employer be a transportation company, at its several stations and docks, notice in the form as prescribed and furnished by the Industrial Accident Board to the effect that he accepts and will be bound by the provisions of this act.’ It seems to be plainly a part of the scheme and plan of this act that there shall be notice within 10 days after the election is approved, so that employees of the company, who are the other parties interested, shall have knowledge that their employer has elected to come under this law, and therefore that thereafter their remedies if they are hurt will be afforded under this law if they subject themselves to it. And I think it is a part of the scheme of the law they may exercise choice whether they will avail themselves of the rights this law affords or remain subject to the other laws governing the situation.
“While by the provisions of the section it is the filing of the statement and the approval of the board that operates to place the employer under the act, the proviso says such employer so electing to become subject to the provisions of this act within 10 days after approval shall give notice. Now that seems very plain that they are not to give notice to their employees until after their election has been approved, and I do not find anywhere in the scheme of this act anything to indicate that the employees ought to find out what the employer is doing until the thing he is doing has become fixed and completed, when the duty then rests upon the employer to give them notice in the manner specified.
“The sections, preceding section 7 relate, for the most part, to the employer. Sections 7 and 8, being the remainder of part 1, relate mainly to the employee. Section 8 reads as follows:,
“ ‘Any employee as defined in subdivision one of the preceding section shall be subject to the provisions of this act and of any act amendatory thereof. Any employee as defined in subdivision two of the preceding section shall be deemed to have accepted and shall be subject to the provisions of this act and of any act amendatory thereof if, at the time of the accident upon which liability is claimed:
“ T. The employer charged with such liability is subject to the provisions of this act, whether the employee has actual notice thereof or not; and
‘2. Such employee shall not, at the time of entering into his contract of hire, express or implied, with such employer, have given to his employer notice in writing that he elects not to be subject to the provisions of this act; or, in the event that such contract of hire was made before such employer became subject to the provisions of this act, such employee shall have given to his employer notice in writing that he elects not to be subject to such provisions, or without giving either of such notices shall have remained in the service of such employer for thirty days after the employer has filed with said board an election to be subject to the terms of this act.’
“That is sufficient for this purpose. Section 8, in its first paragraph, uses the language, ‘if at the time of the accident upon which liability is claimed,’ the employer is subject to the act and the employee is subject to the act, to make it short. The employee becomes subject to the act if he is employed after the time that the master or employer has elected to come under the act and has not given notice in writing that he elects not to be subject to it, but if the employee is already in the employer’s service when the employer comes under the act, then if he remains for 30 days and does nothing, he shall be presumed to choose to be under the act. This language is, ‘thirty days after the employer has filed the election.’ They filed this election on the 9th of September, and this accident was on the 12th of November, and more than 30 days elapsed between the filing by the employer and the accident, but the board did not approve of this act of the company until 8 days after the accident.
“It is insisted here that the 30 days began to run from the filing with the Industrial Board, which was on September 9th. Yet, until after the Industrial Board acts there is no provision for any notice to the employee whatsoever, so they have got to act within 30 days, if that rule is correct, as to something of which they have no notice or knowledge whatever, unless they get it by accident, or unless the employee is bound to watch the offices, up at Lansing to find out what his employer is doing with reference to this act. That renders, so far as this situation is concerned, practically useless all provisions about giving notice. As to the act of filing the application or election with the Industrial Accident Board, there is no provision for any notice. I do not see the way the employees could get notice until the employer is actually under the law, but it is claimed, if I may say so at this point, that as applied .to this case when the application is filed with the board on September 9th, and is approved November 20th, then it relates back — the completion of so being under the act relates back to September 9th, and puts everything under the act from September 9th. And if that is so, the employees come under the act without knowing it or having any chance to give written notice that they do not want to come in under the act. * * * But it seems to me an essential part of the scheme of the act that the employee have the right of choice. This implies, first, actual or constructive notice of the employer’s election and actual submission to the law, and then the right on the part of the employee to choose by giving written notice or abstaining from it. Robbed of this opportunity, he is practically deprived of the right; and, if this is the real meaning of the statute, it is oppressive, an invasion and.deprivation of individual right, and hardly to be tolerated or enforced. If I must so construe it, I am certainly reluctant to pronounce it valid as to those provisions, My inclination is to harmonize as far as possible every part with the general purpose of the act and without violating what seems to be the plain rights of the employees.
“Now the only question that confronts me, and as to which I feel some difficulty, is whether I ought to leave it to the jury to say and express by its verdict its judgment as to what took place between the company and this man while he was at the hospital. He signed the papers here (Exhibit F, Exhibit M, and Exhibit N) that have been shown in evidence, making application for his pay under this act. It is claimed that he did not know what his legal rights were at that time, and that he afterwards refused to go ahead and consummate that arrangement after he had been informed in respect to his rights. It is claimed the company went on and made ’ some payments in reliance upon his election to come under this act, and payments that under the law the company would not have been required to make. * * * This was not any act on the part of the plaintiff in trying to repudiate or annul anything he did before the accident. His relation to the employer was what it was; and, so far as this suit is concerned, he had rights or did not have rights at the very time of the accident. I mean so far as the law itself and its operation are concerned. If .he was not, under all the circumstances, subject to this act, has he put himself in a position by what he did at the hospital on December 3d, and his delay in notifying to the contrary so that he cannot recede from it? Has he become bound to abide by the remedies of this statute, and are they as to him his exclusive remedies? With some misgivings I have concluded to hold that he has not placed himself in such a position, and that, if he was not under this law by virtue of its own operation, in view of what the employer has done, he was at the time of the commencement of this suit free to resort to the remedy which he did invoke by launching this proceeding.”

The appellant argues here, as it did below, that the jurisdiction of the Jackson circuit court is barred in this action by the employers’ liability and workmen’s compensation act (Act No. 10, Pub. Acts 1912), and quotes freely from the act, and cites cases in support of its contention. We have examined these cases with care, and are not satisfied they are controlling. The question of notice has had the attention of this court in the recent case of Mackin v. Axle Co., 187 Mich. 8 (153 N. W. 49), where we reached a different view upon the question of notice from that entertained by the circuit judge. It is not necessary to repeat what was there stated. The case in some of its aspects is one of first impression in this State. The statute works a radical change in the legal relations between employer and employed. It ought to be so construed that each of them may know when the new status is created. In the construction given the statute by the circuit judge as to the necessity of approval by the Accident Board this is done, and we are satisfied with that construction.

The remaining question is, Did the court err in not submitting to the jury the question of whether by his acts subsequent to the accident plaintiff brought himself within the act? We are satisfied that if a new status was created between these parties, it must be by virtue of the terms of the statute. If defendant has paid out sums of money relying upon the acts of the plaintiff, this can be taken care of in a new trial upon the merits.

Judgment of the court below is affirmed.

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

The late Justice McAlvay took no part in this decision.