text:
    FURBUSH v. MARYLAND CASUALTY CO.
    1. Accident Insurance — Intentional Homicide.
    An intentional homicide is an accident, within the meaning of an accident policy, if insured himself was in no way responsible for his death.
    2. Same — Suicide or Murder — Question for Jury.
    Evidence examined, and held not necessarily inconsistent with the theory that insured came to his death through homicide rather than suicide; making it a proper case for the jury.
    3. Same — Evidence—Opinions.
    Upon an issue whether insured committed suicide or was murdered, a witness could not give his opinion, from the condition of the snow in which the body was lying, the condition of the body, and other surroundings, as to whether the body fell in such position or was placed there, or whether a man, shot while in a cutter, could have fallen in such a position; the drawing of such conclusions being for the jury.
    4. Same — Circumstances or Deceased.
    But testimony that insured had been intemperate in his habits for some time prior to his death, and was in straitened financial circumstances, and had worried about his affairs, was admissible.
    Error to Alpena; Emerick, J.
    Submitted April 25, 1902.
    (Docket No. 76.)
    Decided June 24, 1902.

      Assumpsit by Louesa C. Furbush against the Maryland Casualty Company upon a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Gharles B. Henry, for appellant.

      B. J. Kelley, for appellee.
   Hooker, C. J.

Defendant has appealed from a judgment in favor of the plaintiff upon an accident insurance policy upon the life of her husband, who was found dead in the highway.

The deceased was a lumberman, and on the day in question started to go from Nash to Washburn, a distance of a few miles. He was afterwards seen in Washburn between 9 and 10 o’clock the same day. A witness, one Lahey, one of three who found the body, started from Washburn to go to Nash. When they were about 3 or 4 miles from Washburn, Furbush passed them, driving alone in a sleigh. After walking 15 or 20 minutes more, the witness saw something in the road, which he took to be a buffalo robe. They went on a little farther, and found that it was the body of deceased. They left one of their number to watch the body, and then the other two walked on about half a mile, and came to some section men working on the railroad, and told them that there was a man dead down on the road, and asked what they should do, and were told that the best thing they could do was to go to Nash and telephone to the sheriff. Thereupon all three of them went to Nash, and the station agent did telephone to Washburn, advising them to remain as witnesses. A party was made up at Washburn by the sheriff of Bayfield county, Wis., and started for the body, and arrived at about 1:30 or 2 in the afternoon, and held an inquest.

It appears to have been the theory of the plaintiff that the deceased was intentionally killed by another person. The defendant claims that he intentionally took his own life, and that, whether, it was a case of suicide or homicide, plaintiff should not have been permitted to recover. The testimony offered on the trial tended to show that, shortly before the section men heard of the death, the horse of deceased was seen by them running away with the cutter, nobody being in it. The body was found close to the traveled part of the highway, the feet lying nearer the track than the head. The witness Lahey, who appears to have been a tramp, testified that he stayed the night before in an old barn at Washburn with Wallace, and met Parker the next morning in Washburn; that it was the first time that he had seen Parker; he had known Wallace two days. Lahey said that the body, when found, had a buffalo coat on, which was open;'the head of the body was lying towards Washburn; that he made an examina- ■ tion of the snow on each side of the road to discover footprints ; the traveled track was beaten down hai’d; that he did not see any revolver lying in the traveled part of the road near this body. “There were no tracks, trails, or roads that were beaten and traveled leading from the place where I first saw the body, except the county road. ”

The next witnesses to see the body appear to have been William Goodrich and Mike Miller. Witness Goodrich caught the horse about 10:30, and in about 20 minutes was informed by three men, who came up, that the owner of the horse was lying dead in the road. He went to Mr. Bates’ office, and had him telephone to Washburn, and then he went to see the body, taking Miller, the superintendent of the railroad, with him. These men did not see any revolver lying in the beaten track of the road. They found a pocketbook with nothing in it lying between the dashboard and the footrest in the cutter. Miller testified that he noticed no tracks, trails, nor paths in the snow outside of the traveled tracks.

Jared Welton testified that he was under-sheriff of Bay-field county, and received the telephone message. He went to where the body was, and, when he got there, there were several of the Elks of Ashland there, who got there about the same time that he did. He testified that he was the first man up to the body; that it lay fiat on its back; that his coat, vest, and shirt and underclothing were unbuttoned with the exception of the collar; his right hand was stretched out on the snow. He found a gold watch and chain arid a $5 bill and two silver dollars and some other articles upon it. He also found a revolver lying near his head on the left side in the snow. There had been one shot fired out of it, which appeared to be fresh. When they first examined the body there was a good deal of. blood on the left side around the ear, and at the inquest it was supposed that he had put the gun in his left ear, and that the bullet came out on the right side. The testimony of the physicians was that the bullet entered the right side of the head. The witness testified that he examined the snow and the tracks around there to find indications of a scuffle, but there was only one track, which was close to the right-hand side of the head and a little ways from the head. Other witnesses testified that there were two footprints near the head, a,nd no other tracks. There was testimony that the deceased had a glove upon his right hand and a glove partially on his left hand.

Upon this testimony the court refused to direct a verdict for the defendant.

Defendant contends that, under the policy in question, it did not insure against any intentional killing, either by the assured or by another. The policy contained the following, viz.:

“In case of injuries, fatal or otherwise, intentionally inflicted upon himself by the assured, or inflicted upon himself or received by him while insane, the measure of this company’s liability shall be a sum equal to the premium paid.”.

It is contended that an intentional homicide was not an accident. The text-books have been slow to admit that such a killing is accidental, but the majority of the adjudicated cases hold that it is where the deceased is in no wise responsible for it. Insurance Co. v. Bennett, 90 Tenn. 256 (16 S. W. 723); Hutchcraft's Ex'r v. Insurance Co., 87 Ky. 300 (8 S. W. 570, 12 Am. St. Rep. 484): Phelan v. Insurance Co., 38 Mo. App. 640; Richards v. Insurance Co., 89 Cal. 170 (26 Pac. 762, 23 Am. St. Rep. 455); Jones v. Accident Ass’n, 82 Iowa, 652 (61 N. W. 485); Robinson v. Accident Ass’n, 68 Fed. 825; Ripley v. Assurance Co., 2 Bigelow, Ins. Rep. 738.

It was not within the province of the court to determine that this was a case of suicide. It is not a case in which it can be said that the testimony is inconsistent with any other theory than suicide, or that it was inconsistent with the theory that the death was accidental. There were many circumstances surrounding the case which should be taken into consideration in determining the question whether the death was from suicide or homicide. Under such circumstances, it was for the jury to determine the question.

There are some other questions which relate to the introduction of the testimony that should be considered. It is claimed by the defendant that several witnesses were permitted to testify to conclusions of fact. Louis Cartier, after testifying that there were just two footprints at the head of the body, and no indication of a body falling in the snow, was asked the following question:

“ From your examination of the snow and the body and everything about the body/.what do you say to whether it had fallen or had been placed there by some other person ?
“A. I should judge the body was placed there by persons unknown.”

Counsel for the defendant contends that the witness might as well have been permitted to give his opinion as to whether the man had committed suicide or had been murdered.

John A. Alio testified that at his head were two footprints ; looked as though some one had stepped there and laid him there; his right foot lay on top of the left toe, etc. He was then asked the same question that was asked Cartier, and answered, “ I should judge it had been placed there.”

Charles Edwards testified:

“I examined the snow about where the body was lying; there were no footprints in the snow at all where his feet were; if looked as if his body must have been laid there; no impression in the snow, as if a body would fall; no foot tracks of any description nearer than the cutter track.”

He was then asked:

“Now, Mr. Edwards, assuming that a man was riding, in a cutter, drawn by a horse, either moving or standing on the bridge where you found the body, if he had been killed, while in the cutter, with a pistol shot back and above his right ear and going through the brain, could he have fallen from the cutter, and been in the position, and without making any other imprints in the snow at that point than those that you found ? ”

He answered: “ I don’t think it could.”

Again:

“ If a man had been standing upon his feet upon that bridge, and by his own action sent a revolver shot through his brain as I have described, what do you say as to whether the position of the body and imprints in the snow could have been the same as those you found ?
“A. I don’t think the body could; there must have been some foot marks somewheres.
Q. Mr. Edwards, taking into consideration the condition of the snow, the location of the body, and everything as you found it, what is your opinion as to whether the body had been placed there by some one ?
“A. My judgment is that it must have been placed there.”

We think this testimony was incompetent. Counsel seem to have considered the question of whether the body fell from the cutter or was placed there by some other person as the vital point in the case. It could only be determined from the position of the body and surrounding conditions. It was peculiarly the province of the jury to .take into consideration these things, and themselves determine the conclusions to be drawn therefrom. These witnesses were permitted to do it for them.

Again, the defendant sought to show that the deceased had for some months been intemperate in his habits, and that he was in straitened circumstances pecuniarily, and that he was worried about his affairs. This testimony was excluded. We think that these were circumstances which had a legitimate bearing upon the question, and the testimony should have been admitted.

We are constrained to reverse the judgment and order a new trial.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    BAUMGARDNER v. HENRY.
    1. Payments — Checks—Evidence.
    Where, in an action on an account, defendants alleged payment by a check drawn by them to plaintiffs, it was not error to admit in evidence the check, stamped “Paid” by the bank, though there was no indorsement on it; it appearing that the bank had paid other checks drawn by defendants without requiring the indorsement of the payee.
    2. Same — Hearsay.
    The check was paid by the banker’s son during the banker’s absence. Held, that the latter’s testimony as to what his son told him as to who presented the check was properly excluded as hearsay.
    3. Same.
    A letter from the banker to defendants, saying that the check was evidently presented by the plaintiffs’ traveling agent, was inadmissible for the same reason.
    4. Same.
    And the testimony of a third person as to what occurred between the father and son on the former’s return to the bank, none of the parties to the suit being present, was likewise inadmissible.
    5. Same — Effect of Mailing Check.
    An agreement between a seller of goods and the buyer that payment may be made by check does not make the mere mailing of a check a payment, irrespective of the questions of receipt by the payee and payment by the bank.

      Error to Calhoun; Smith, J.
    Submitted April 25, 1902.
    (Docket No. 78.)
    Decided June 24, 1902.

      Assumpsit by Leander S. Baumgardner and another, copartners as L. S. Baumgardner & Co., against Horace E. Henry and another, copartners as Henry Bros., for goods sold and delivered. From a judgment for defendants, plaintiffs bring error.
    Reversed.

      L. H. Sabin and H. P. Steivart, for appellants.

      L. B. Tompkins and F. W. Clapp, for appellees.
   Moore, J.

The plaintiffs are wholesale dealers in dry goods and notions doing business at Toledo, Ohio. They sold a line of goods to defendants, who were then doing business at Milford, Ind. This suit is brought to recover a balance due of $140.51. It is the claim of defendants that they were entitled to certain discounts, after deducting which there remained unpaid the sum of $134.10, and that this balance was paid by sending to plaintiffs, through the mail, a check reading as follows:

“$134.10. Mileord, Ind., Sept. 2, 1899.
“Miles & Higbee, Bankers: Pay to L. S. Baumgardner & Co., or order, one hundred thirty-four 10-100 dollars. Henry Bros.”

This check was stamped and marked “Paid” by Miles & Higbee, bankers, the paid stamp not showing date, however. No indorsements appear on said check, and no marks showing that it had passed through any bank except the drawee; it having been paid over the counter of Miles & Higbee, whose place of business is at Milford, without indorsement. It was the claim of defendants that they had sent checks several times before this, which had been received as payments, and this check was sent with the understanding it was to be received as payment. It was their further claim that the check was paid to the plaintiffs or their agent. 'These claims of defendants are denied by the plaintiffs, who claim the check was paid to one of the defendants. The payment seems to have been made by a son of Mr. Higbee, who at the time of the trial was in Indiana, but was not called as a witness. The jury rendered a verdict in favor of defendants. The case is brought here by writ of error.

It is claimed that, as the check was not indorsed, it was error to admit it in evidence. The record discloses that Miles & Higbee had paid a number of checks drawn by the defendants to the payees without requiring the checks to be indorsed. In view of the claims of the respective parties, we think it was not error to admit this check in evidence. To say the least, it was a link in the chain of evidence which defendants were entitled to make in their effort to establish their defense.

The defendants called as their witness Mr. Higbee. His testimony disclosed that the cash book kept by the bank showed the check was paid September 7th, and the amount thereof was charged to defendants. He testified it was paid by his son during Mr. Higbee’s temporary absence from the bank; that he saw the check on the spindle. An attempt was made on the cross-examination to show what the son told the father as to who presented the check. On the objection of the defendants, this testimony was very properly excluded. After this was done, the defendants were allowed to introduce in evidence a letter from Mr. Higbee, in which it was stated the check was evidently presented by the traveling representative of the plaintiffs. This was clearly hearsay, and incompetent. It was not a trial between the defendants and the bankers, so that the letter could be treated as an admission. Mr. Higbee was not present when the check was paid. He knew nothing about it, except what he had been told. The statements in the letter were based on hearsay.

Error is assigned on the exclusion of the testimony of Dr. Patterson. He had testified to the presence of one of the defendants in the bank, and to his getting money, on the presentation of a paper, from young Higbee, in the temporary absence of his father. It was sought to show by him what conversation occurred between the father and the ■son when Mr. Higbee returned to the bank. This conversation did not occur in the presence of either of the defendants, and was properly excluded. If Dr. Patterson saw the paper which was presented, and could identify it as the check in question, it would have been proper for him to so testify.

The other questions necessary to be discussed relate to the charge of the court. Among other things he told the jury:

“The defendants claim they sent the check through the mail under an arrangement that they should pay plaintiffs for goods purchased of plaintiffs by sending their personal check on the Milford Bank by mail in payment; and if you find it was understood that the defendants should send their check by mail to the plaintiffs, and were directed to do so by the plaintiffs, the defendants then would be discharged from liability by properly depositing the same in the post-office, inclosed in an envelope duly addressed to the plaintiffs at their usual place of business in Toledo, Ohio, with the postage prepaid, because in that case the plaintiffs would make the post-office employés their agents, and would assume all risk of the check’s getting into other hands, and being paid to some other person.”

We think this charge was misleading. In National Life-Ins. Co. v. Goble, 51 Neb. 5 (70 N. W. 503), it is said:

“ The payment of the premium is not claimed except by the draft forwarded to the agents of the company. In regard to this claim, it is the established rule that a draft or check is not a payment of a debt, in the absence of an express agreement that it is taken or received in payment. It is but a means by which payment maybe obtained. It is conditional upon its being honored when presented, and, if dishonored when presented, it effects no payment of the debt for which it was drawn, unless there was an express -agreement that it was to be accepted or received in payment. 2 Greenl. Ev. § 520; 2 Dan. Neg. Inst. § 1262; 2 Morse, Banks, § 543; 18 Am. & Eng. Enc. Law, 167; Born v. Bank, 123 Ind. 78 (24 N. E. 173, 7 L. R. A. 442, 18 Am. St. Rep. 312); Mullins v. Brown, 32 Kan. 312 (4 Pac. 305); National Bank of Commerce v. Railroad Co., 44 Minn. 224 (46 N. W. 342, 560, 9 L. R. A. 263, 20 Am. St. Rep. 566); Holmes v. Briggs, 131 Pa. St. 233 (18 Atl. 928, 17 Am. St. Rep. 804); League v. Waring, 85 Pa. St. 244. The fact that the agent of the company acknowledged the receipt of the draft, and forwarded to the defendant in error his renewal receipt, was not conclusive. The draft, when presented, was dishonored; hence there was no payment, and the receipt was of no force. 18 Am. & Eng. Enc. Law, 170, note in second column; Weaver v. Nixon, 69 Ga. 700; Fleig v. Sleet, 43 Ohio St. 53 (1 N. E. 24, 54 Am. Rep. 800); Weddigen v. Fabric Co., 100 Mass. 422.
“We will next give our attention to the notice sent by the agents to defendant in error, by which they informed him of the approaching maturity of the insurance premium, and requested that a remittance be made, such request being in terms as follows: ‘ Please remit by bank draft, registered letter, express or post-office money order.* It has been argued that this amounted to a direction relative to the manner of the remittance, a compliance with which on the part of defendant in error, as to the manner or medium of remittance therein indicated, constituted the remittance a payment of the premium, regardless of the ultimate outcome, or whether the agents or company, as a result of such action of defendant in error, subsequently received the money or not. The statement quoted from the notice amounted to a request at most, and was not binding upon the defendant in error. It might have been wholly disregarded; but compliance with it in any one of the ways or means suggested for the transmission of the amount necessary to meet the payment soon to be due was sufficient to entitle the defendant in error to claim such rights as thereby arose in his favor under the rules of business and law applicable thereto, but none other or further. He chose to remit by draft purchased at any bank of his own selection, to be drawn payable by any bank and at any place he chose to designate, and thereby placed the transaction and his rights thereunder within the rule that it was not a payment of the premium until the draft was received, presented, and honored.”

Giving the fullest effect to the testimony of the defendants, it did not amount to an express agreement that the mailing of the check should be equivalent to a payment. Nothing was said about the amount of the check, or the bank upon which it was drawn. There was nothing in the conversation to indicate that the sending of checks was to take the check out of the rule of law applicable to the giving of checks by the debtor and the receiving of them by the creditor.

The court also charged the jury as follows:

“If you find that, in the usual course of dealings between the parties to this suit, they allowed defendants to send their check by mail to the plaintiffs, this would be an assent on the part of the plaintiffs, and an authority on the part of the plaintiffs could thus be inferred; and in such case, if the defendants mailed their check to the plaintiffs at their usual place of business, with postage prepaid, and properly addressed, and such check was after-wards paid by the bank on which such check was drawn, and charged to the defendants’ account, this would operate as a discharge of the debt to the amount of such check, provided it was not paid to the defendants or one of them.”

We do not think this is a proper statement of the law, as will appear by what is said above. See 18 Am. & Eng. Enc. Law (1st Ed.), 167-173; National Bank of Commerce v. Railroad Co., 44 Minn. 224 (46 N. W. 342, 560, 9 L. R. A. 263, 20 Am. St. Rep. 566); Comptoir D’Escompte de Paris v. Dresbach, 78 Cal. 15 (20 Pac. 28); In re Bennett’s Estate, 52 Mich. 415 (18 N. W. 195); Williams v. Carpenter, 36 Ala. 9 (76 Am. Dec. 316).

Judgment is reversed, and new trial ordered.

Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.


author: Montgomery, J.

text:
    BEARD v. HILL.
    1. Bills and Notes — Fraud—Evidence.
    Where, in an action on a promissory note, the defense was that its execution was procured by a trick, evidence that the person who procured its execution had obtained other notes in the same locality by trickery was admissible.
    2. Same — Agency to Sign — Husband and Wife — Instructions.
    Where the defense to an action on a note was that it was obtained by trickery, and it appeared that it was executed by defendant’s wife for defendant, who could neither read nor write, it was error to give instructions excluding the defense that the wife was deceived into signing the note, supposing it to be some other document, and leaving with the jury the impression that, whether or not the authority given by defendant to his wife included the signing of the note, it was sufficient if she had general authority to sign his name to papers on that occasion.
    3. Same — Bona Fide Holders.
    A promissory note the signature to which was procured by trickery or substitution, or was affixed by another without authority, is void, even in the hands of a bona fide holder.
    Error to Shiawassee; Smith, J.
    Submitted April 25, 1902.
    (Docket No. 88.)
    Decided June 24, 1902.

      Assumpsit by Abraham L. Beard against Henry Hill upon a promissory note. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Martin V. B. Wixom (Selden S. Miner, of counsel), for appellant.

      Albert L. Chandler, for appellee.
   Montgomery, J.

This action is brought upon a- promissory note purporting to be executed by Henry Hill and Mary A. Hill, and payable to the order of Charles A. Fletcher, president of the Kalamazoo Medical & Surgical Sanitarium, of Kalamazoo, Mich. The defendant filed a plea of the general issue, and an affidavit denying that the note was signed by him, or by any person authorized by him to sign it; and accompanying the plea of the general issue was a notice that he would give in evidence that, if the signature was obtained from any person authorized by him to sign his name, it was secured by a trick.

Tbe evidence tends to show that Fletcher is a traveling physician, and that he had in his employ an advance agent named Cook; that, at the time this note purports to bear date, Dr. Fletcher and Cook were at the home of the Hills. The defendant offered testimony tending to show that papers were prepared by Dr. Fletcher, called ‘ ‘ Guaranty Bond and Memorandum of Agreement,” which were executed in duplicate. There were two of these agreements; one relating to the treatment of Mr. Hill, and one relating to the treatment of his wife. Mary A. Hill testified that she never knowingly signed the note in questipn; that she did sign these other papers, and was authorized to do so by her husband. The defendant, Henry Hill, testified that he never saw the note in question, to know it; that he himself was unable to read or write; that he authorized,his wife to sign his name to the guaranty bonds, so called, but did not authorize her to sign his name to the note in question, or any other promissory note.

On the trial the defendant offered to show other instances in which this same Dr. Fletcher had secured promissory notes by trickery from people in the neighborhood. This testimony was at first excluded, but was afterwards received, upon the suggestion of plaintiff’s counsel that, while it was incompetent, it was better to put it in and be safe, and with comments from the court which would indicate to the jury that the testimony was let in as a matter of grace. The testimony offered was competent, within the rulings of this court in Beebe v. Knapp, 28 Mich., at page 65; Stubly v. Beachboard, 68 Mich., at page 422 (36 N. W. 192); and French v. Ryan, 104 Mich. 625 (62 N. W. 1016). It is very doubtful whether the subsequent admission of this testimony, accompanied, as it was, by the comment made, would cure the error.

But a more fatal error appears in the trial.' The defendant preferred the following requests:

“If the jury in this case find that the defendant never designed to put or cause to be put in circulation the note in question, and that he never bargained to do so, and that he has never consciously been privy to any attempt to set such paper afloat, and that the note was made and executed without any knowledge of the same upon his part, then the plaintiff cannot recover, and your verdict must be for the defendant.”
“In this case, if the jury find that the promissory note in question was obtained by trickery, without negligence upon the part of the defendant, and that the defendant did not intend to give such promissory note, the note would not bo good, even in the hands of a bona fide holder, and your verdict must be for the defendant.”
“If, in this case, you find that the defendant never signed the note in question, and never authorized any one to sign it for him, and did not intend to sign the note, but supposed that he or his agent was signing some other paper, and there was no carelessness upon his part, then the plaintiff cannot recover, and your verdict must be for the defendant.”

The circuit judge declined to give these requests, and charged the jury:

“Therefore I instruct you that if you find, from a preponderance of the evidence, that, as a matter of fact, Mary Hill, in pursuance of the instructions of, or with or by the consent of, Henry Hill, wrote the name ‘Henry Hill,’ now appearing upon this paper, Exhibit A, which has been put in evidence, then and in such case your verdict will be for the plaintiff, and you will assess the damages as I have instructed you.”

And in response to a direct question by a juryman as to whether, if they should find that there was some trick,— that is, that the doctor performed some trick to get this note signed, — they were bound to find for the plaintiff, the court repeated the instructions above quoted, and added:

“There is no evidence here of any trick. Jurors can’t go into suspicions, and run off into the field of speculation. You must decide this case by the evidence. Unless there is something in the evidence— I will withdraw the statement that there is no evidence of any trick; but they are to be governed by the evidence; they are to determine whether there is any evidence as to said matter.”

And again, after the jury had retired from the courtroom, they were recalled, and the court repeated the instruction, as follows:

“I recalled you, as I feared, perhaps, I might not have made myself sufficiently plain in the answer I made to the question propounded by the juror as to the question of trick, and I read the instructions that I gave you, — that if you find, as a matter of fact, and by a preponderance of the evidence, that Mary Hill, in pursuance of the instructions of, or with or by the consent of, Henry Hill, wrote the name Henry Hill,’ now appearing upon this paper, Exhibit A, which has been put in evidence, then, in such case, your verdict will be for the plaintiff. You will bear in mind this part of it, — that if, as a matter of fact, Mary Hill, in pursuance of the instructions of, or with or by the consent of, Henry Hill, wrote thát name. Now, that is as plain as I can make that; but you must determine that from the evidence, — whether it was done by Mary Hill in pursuance of the instructions of, or by the consent of, Henry Hill. You must determine that from the evidence. You shouldn’t go into the field of guesswork and speculation and rumor and suspicion to determine that question, whether it was by his consent or direction, from the evidence in the case. I think that is as plain as I can make it.”

It is evident that the purpose was, by this instruction, to exclude any such defense as that the witness Mary Hill was deceived into signing this note, supposing it to be some other document, and to leave the impression with the jury that,'Whether the authority from Hill to his wife to sign some papers included the note in question or not, it was sufficient if she had general authority to sign his name to papers on that occasion. We think this view of the case was clearly erroneous. The defendant himself was unable to read. According to his theory of the case, he gave a special authority to his wife to sign his name to certain documents. Her testimony tends to show that she did not suppose she was exceeding the authority. By what means the signature was obtained to this note is not quite clear, but, if it was obtained by trickery or by substitution, it comes clearly within our former decisions. Gibbs v. Linabury, 22 Mich. 479 (7 Am. Rep. 675); First Nat. Bank of Sturgis v. Deal, 55 Mich. 592 (22 N. W. 53). Furthermore, as the note was not signed by the defendant in person, it is essential that one affixing the signature should have authority. The testimony on the part of the defendant tended to show that no such authority existed. It is true that this question was left to the jury by the circuit judge, but under instructions which implied that, even if the apparent consent to affixing the signature to a paper was secured by fraud or trickery, it would be equally binding upon the defendant.

The judgment will be reversed, and a new trial ordered.

Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit.


author: Hooker, C. J.

text:
    PEOPLE v. ROTTER.
    1. Constitutional Law —Coloring Oleomargarine — Title to Statute.
    Act No. 22, Pub. Acts 1901, entitled “An act to prevent deception in the manufacture and sale of imitation butter,” which prohibits the coloring of oleomargarine to resemble butter, is not open to the objection that the object is not expressed in the title, as required by Const, art. 4, § 20.

    2. Same — Unlawful Discrimination.
    Nor is the act in contravention of the fourteenth amendment to the Federal Constitution, nor of article 6, § 32, of the Constitution of the State.
    3. Same — Police Power.
    The act is a valid exercise of the police power.
    Exceptions before judgment from Emmet; Shepherd, J.
    Submitted May 8, 1902.
    (Docket No. 152.)
    Decided June 24, 1902.
    George W. Rotter was convicted of selling colored oleomargarine.
    Affirmed.

      Smedley & Corwin and Sears, Meagher & Whitney (James F. Meagher, Kay Wood, and B. M. Comóin, of counsel), for appellant:
    Upon the federal question, counsel cited the following cases, among others: Barbier v. Connolly, 113 U. S. 27 (5 Sup. Ct. 357); Yick Wo v. Hopkins, 118 U. S. 356 (6 Sup. Ct. 1064); Mugler v. Kansas, 123 U. S. 623 (8 Sup. Ct. 273); Hallinger v. Davis, 146 U. S. 314 (13 Sup. Ct. 105); Lawton v. Steele, 152 U. S. 133 (14 Sup. Ct. 499); Allgeyer v. Louisiana, 165 U. S. 578 (17 Sup. Ct. 427); and, particularly, Schollenberger v. Pennsylvania, 171 U. S. 1 (18 Sup. Ct. 757), Collins v. New Hampshire, 171 U. S. 30 (18 Sup. Ct. 768), and Connolly v. Sewer-Pipe Co., 184 U. S. 540 (22 Sup. Ct. 431).

      Matthew F. Quinon, Prosecuting Attorney, for the people.

      For a somewhat similar question, see Grosvenor v. Duffy, 121 Mich. 220 (80 N. W. 19).

   Hooker, C. J.

At its last session the legislature passed an act under the title “An act to prevent deception in the manufacture and sale of imitation butter.” Pub. Acts 1901, Act No. 22. Section 1 of said act provides that:

“No person, by himself or his agents or servants, shall render or manufacture, sell, offer for sale, expose for sale, or have in his possession with intent to sell, any article, product, or compound made wholly or in part out of any fat, oil, or oleaginous substance or compound thereof, not produced from unadulterated milk, or cream from the same, which shall be in imitation of yellow butter produced from pure unadulterated milk, or cream of the same: Provided, that nothing in this act shall be construed to prohibit the manufacture or sale of oleomargarine in a separate and distinct form, and in such manner as will advise the consumer of its real character, free from coloration or ingredient that causes it to look like butter.”

Section 2 prescribes a penalty for the violation of the act.

The defendant was a grocer in Emmet county, and is shown to have sold a package of oleomargarine, which by an analysis was proven to have contained artificial coloring matter, and that said oleomargarine was not made wholly from unadulterated milk, or cream from the same, and that it was made in imitation of yellow butter produced from unadulterated milk, or cream from the same. The court was asked to direct a verdict of not guilty upon the grounds:

1. That the object of the act was not expressed in the title, as required by section 20 of article 4 of the Constitution of this State.

2. That the act violates the fourteenth amendment to the Constitution of the United States, and article 6, § 32, of the Constitution of this State.

3. That it was not within the police power of the State.

The evidence conclusively shows that no deception was used in selling the oleomargarine, and there is nothing to indicate that there was any harmful ingredient therein, but that, on the contrary, there was not such ingredient. The defendant was convicted, and the case is here on exceptions before sentence.

It is contended that the title to the act indicates that the act was designed to prevent deception in the manufacture and sale of imitation butter, while the act attempts to go further, and prevent all.sales of such colored oleomargarine. If oleomargarine colored yellow closely resembles yellow butter made from milk or cream, it cannot reasonably be said not to resemble or imitate yellow butter. Butter is a well-known commodity. From time immemorial it has had but one origin, viz., from the churning of milk or cream. Whatever may be said of the possibility of making a product from other compounds than milk or cream that shall closely resemble or be chemically identical with butter, the world has but one understanding of what is meant by the word “butter,” and we must assume that such is the sense in which our legislature used the term. 1 Comp. Laws, § 50, subd. 1. A fair inference from this statute is that thei legislature undertook to prevent deception by preventing the sale of any yellow oleomargarine, and it undertook to accomplish this by the most effective means, viz., by prohibiting the coloring of oleomargarine yellow, thereby avoiding the embarrassment which would otherwise arise from the necessity of proving in each case that deceit was used in selling it as and for butter. We think this is fairly within the title, whatever must be said of the other points raised. We are referred to the case of Northwestern Manfg. Co. v. Wayne Circuit Judge, 58 Mich. 381 (25 N. W. 372, 55 Am. Rep. 693), as conclusive upon this question, in which case it is said that “ all that could be done under such a title would be to prohibit and prevent the sale of such articles under false pretenses.”' We are of the opinion that this language is too restrictive, and that it is at variance with the settled doctrine in this State that gny provision naturally calculated to accomplish the object expressed in the title may be included in the act. See Soukup v. Van Dyke, 109 Mich. 681 (67 N. W. 911); People v. Worden Grocer Co., 118 Mich. 607 (77 N. W. 315). The case cited wás rightly disposed of upon another ground, and it is possible that the language above quoted should be considered a dictum. Moreover, the cases are distinguishable, for, whereas that act attempted to prevent all sales of imitation butter, and was therefore, perhaps, inconsistent with the title, which apparently contemplated lawful sales, the statute under consideration in the present case does not prohibit sales of oleomargarine which is not tainted with the prohibited ingredients.

It is unnecessary to discuss the other points at length, for the reason that the uniform trend of judicial opinion is that such laws are valid. State v. Myers, 42 W. Va. 825 (26 S. E. 539, 35 L. R. A. 844, 57 Am. St. Rep. 887); State v. Marshall, 64 N. H. 549 (15 Atl. 210, 1 L. R. A. 51); Powell v. Pennsylvania, 127 U. S. 678 (8 Sup. Ct. 992); People v. Arensberg, 105 N. Y. 123 (11 N. E. 277, 59 Am. Rep. 483); Butler v. Chambers, 36 Minn. 69 (30 N. W. 308, 1 Am. St. Rep. 638); People v. Worden Grocer Co., 118 Mich. 604 (77 N. W. 315); State v. Crescent Creamery Co., 83 Minn. 284 (86 N. W. 107, 54 L. R. A. 466); State v. Ball, 70 N. H. 40 (46 Atl. 50); Wright v. State, 88 Md. 436 (41 Atl. 795); Com. v. Vandyke, 13 Pa. Sup. Ct. Rep. 484; Com. v. McCann, 14 Pa. Sup. Ct. Rep. 221; Armour Packing Co. v. Snyder, 84 Fed. 136; Capital City Dairy Co. v. Ohio, 183 U. S. 238 (22 Sup. Ct. 120). We are of the opinion that the legislature had the power to pass this law, and its wisdom or policy is not for our consideration.

The conviction is affirmed, and the court directed to sentence the defendant.

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


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    TEMPLAR v. STATE BOARD OF EXAMINERS OF BARBERS.
    Constitutional Law — Barbers’ Lioense — Equal Protection op Laws.
    The provision of section 5 of the barbers’ license law (Act No. 212, Pub. Acts 1899), that no alien shall be entitled to a certificate, is repugnant to the fourteenth amendment to the Federal Constitution, as denying the equal protection of the laws.

      Mandamus by Arthur G. Templar to compel the State board of examiners of (barbers to permit him to take the examination provided for by law.
    Submitted June 3, 1902.
    (Calendar No. 19,311.)
    Writ granted June 24, 1902.

      Frank E. Dor emus, for relator.

      Horace M. Oren, Attorney General ( Charles W. McGill, of counsel), for respondent.
   Montgomery, J.

Act No. 212 of the Public Acts of 1899 provides for the examination and licensing of barbers. Section 5 provides for the examination of an applicant concerning his ability to prepare and fit for use tools and utensils used by barbers, including the proper antiseptic treatment of razors, etc., and the nature and effect of eruptive and other diseases of the skin and scalp, and whether the same are infectious or communicable, and provides that no person so examined shall receive a certificate of the said board unless he shall appear to be skilled in the use of barbers’ tools, and possessed of knowledge sufficient to prevent the spread, by means of barbers’ tools and appliances, of eruptive and other diseases of the skin and scalp, and further provides that no person so examined shall receive such certificate who at the time of such examination is an alien. The relator applied to the respondent board to take the examination required by law, setting up that he is a resident of the city of Detroit; that he was born in Canada, and follows the trade of a barber as a means of livelihood ; and that he has declared his intention of becoming a citizen of the United States. The board refused to receive the application upon the ground that he was an alien. The question presented is whether the provision of the act which requires an applicant to be a citizen of the United States is valid. The relator contends that this provision is invalid, for the reason that it violates the provisions of the fourteenth amendment of the Constitution of the United States, which declares that no State shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

In Barbier v. Connolly, 113 U. S. 27, 31 (5 Sup. Ct. 357), Mr. Justice Field,said:

“ The fourteenth amendment, in declaring that no State ‘ shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws,’ undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property.”

In Be Grice, 79 Fed. 645, it was said:

“By ‘equal protection of the laws’ is meant equal security under them to every one, under similar terms, in his life, his liberty, his property, and in the pursuit of happiness. It not only implies the right of each to resort, on the same terms with others, to the courts of the country for the security of his person and property, the prevention and redress of wrongs, and the enforcement of contracts, but also his exemption from any greater burdens and charges than such as are equally imposed upon all others under like circumstances.”

In Pennsylvania a statute imposing upon the employers of alien labor a tax of three cents per day for each of such laborers so employed was held unconstitutional, in that it deprived the laborers of the equal protection of the laws, in violation of the fourteenth amendment. See Fraser v. McConway & Torley Co., 82 Fed. 257.

So in New York a statute made it a crime for alien laborers to be employed on public works by a contractor who was constructing them under a contract with a municipal corporation. This statute was held to violate the fourteenth amendment of the Constitution, in People v. Warren, 34 N. Y. Supp. 942.

Speaking generally, Mr. Tiedeman, in his work on State and Federal Control of Persons and Property, at page 331, says:

“States have, by legislation, undertaken to protect native labor against alien labor; but in each case the legislation has been declared to be an invasion of the jurisdiction of the United States government, and an unconstitutional interference with the rights of resident aliens.”

The attorney general contends that, under the police power, the legislature may regulate callings, trades, and professions, and that it is not for the courts to pass upon the wisdom of their regulations, and that, if such regulations result in excluding aliens from the privileges which citizens enjoy, it still should he held within the power of the legislature. Attention is directed to the cases of People v. Moorman, 86 Mich. 433 (49 N. W. 263), People v. Phippin, 70 Mich. 6 (37 N. W. 888), and Metcalfe v. State Board of Registration in Medicine, 123 Mich. 661 (82 N. W. 512). The language in People v. Moor-man is cited as sustaining the position of the attorney general. Mr. Justice Morse, referring to the case of People v. Phippin, declares in People v. Moorman that “in that case it was substantially held that no person, no matter how long he had been in the practice of his profession, had a vested right to practice medicine in Michigan.” We do not hesitate to reiterate that doctrine. We think it must be considered as settled that, in the protection of the public health, the legislature has the right to provide for an examination of all persons who seek to engage in the practice of medicine, and to have their qualifications passed upon by a properly constituted board. But the practice of medicine is no more an incident of citizenship than the practice of the trade of a barber. All persons are entitled to enjoy the equal protection of the law, and while it may be competent for the legislature, in the exercise of its police powers, to provide for an examination and licensing of barbers, as was held in State v. Zeno, 79 Minn. 80 (81 N. W. 748, 48 L. R. A. 88, 79 Am. St. Rep. 422), and Ex parte Lucas, 160 Mo. 218 (61 S. W. 218), would it be contended that the legislature might provide that only white persons should be licensed ? The learned attorney general, in his brief, makes this statement of the true rule:.

“When legislation applies to particular bodies or associations, imposing upon them additional liabilities and restrictions, under the police power of the State, which are not purely arbitrary, the law does not violate the equal protection clause of section 1 of the fourteenth amendment to the Federal Constitution, if all persons brought under its influence are treated alike under the same conditions and circumstances.”

"We discover nothing faulty in this statement of the rule. But the difficulty with this onactment is that all persons brought under the influence of this legislation are not treated alike under the same conditions and circumstances. Before the enactment of this statute the relator had the undoubted right to ply his trade in Michigan. In the exercise of the police power, the legislature had the undoubted right to require, as a prerequisite to his plying his trade, that he submit to an examination. But had it the right to require citizenship ? If it had the right to couple that with other requirements, it would have the same right to make that the only requirement. In other words, it would have the right to exclude alien labor wholly. We think the cases cited demonstrate that it had not this power.

A very different question is presented than in a case of the requirements for admission to the bar, for example, as in such case the statute confers upon the applicant who is admitted to the profession an., office. He becomes an officer of the court. So, too, a different question is presented than was before the court in Trageser v. Gray, 73 Md. 250 (20 Atl. 905, 9 L. R. A. 780, 25 Am. St. Rep. 587), — a case much relied upon by the attorney general. In that case the question presented was whether aliens could be excluded from engaging in the" business of retailing liquors. This is a business peculiar to itself, which might be wholly prohibited by the legislature, and licenses might be confined to.a limited number. We need not, therefore, inquire whether such legislation is an infraction of the rights of the individual not a citizen. But in the present case the relator’s business is in no way injurious to the morals, the health, or even the convenience of the cbmmunity, provided only he has the requisite knowledge ■upon the subjects prescribed by the legislature to practice his calling without endangering the health of his patrons. 'To hold that he is not entitled to practice this calling because not a full citizen of the United States is to deny to him rights which we think are preserved by the fourteenth amendment.

It is not contended that the elimination of this provision will defeat the purposes of the' law wholly, but it is very properly assumed by both sides that the statute may still be operative with this provision eliminated, if otherwise valid.

The writ of mandamus will issue as prayed.

Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit.


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    MONROE v. REYNELLS.
    1 Justices oe the Peace — Certiorari—Allowance by Circuit Court Commissioner.
    A writ of certiorari to a justice of the peace may be allowed by a cirbuit court commissioner of another county than that of the justice. 1 Comp. Laws, § 937.
    ■3. Same — Issuance in Duplicate.
    Where a writ of certiorari was prepared in duplicate, both instruments being signed and sealed, the fact that the writ first prepared was filed with the clerk, and the copy served on the justice, did not invalidate the proceeding.
    3. Same — Amended Return.
    The failure of a justice of the peace, in making return to a writ of certiorari, to send to the county clerk the writ and bond, was cured where he afterwards sent these papers, and was allowed to make a further return setting up the facts.
    Error to Kalamazoo; Adams, J.
    Submitted June 4, 1902.
    (Docket No. 27.)
    Decided June 24, 1902.

      Trespass bjr Ebenezer W. Monroe against Daniel W. Reynells. Plaintiff recovered a judgment in justice’s court, and defendant took out a writ of certiorari to the circuit. From an order dismissing the writ, defendant brings error.
    Reversed.

      David Anderson, for appellant.

      Claude S. Carney, for appellee.
   Hooker, C. J.

The defendant in an action before a justice of the peace attempted to review an adverse judgment on certiorari in the circuit court, but on motion of the plaintiff the circuit judge dismissed the writ, and the defendant has appealed. The ground upon which the cii’cuit judge acted is not disclosed. There are, however, reasons mentioned in the appellee’s brief, which are said to justify his action:

1. The affidavit and bond were presented to a circuit court commissioner of another county than that of the justice, and the writ was allowed and the bond was approved by him.

2. The writ of certiorari was made in duplicate by the circuit court clerk, one copy being served on the justice, and one being filed in the clerk’s office.

3. In making return, the justice failed to send to the county clerk the writ and bond served upon him. He subsequently sent them upon receipt of a letter from counsel.

Upon the hearing of the motion to dismiss, the court permitted a further return to be made, which was done. This return states that he returned the bond, and no question seems to be made over the genuineness of any of the papers.

We think that the allowance was valid. It was within the express terms of the statute (1 Comp. Laws, § 937), and within the ruling in the case of Loder v. Littlefield, 39 Mich. 374, though in that case the writ issued from this court.

The mere fact that the writ first prepared was filed with the clerk, and the copy issued, should not invalidate these proceedings. They were prepared simultaneously, both signed and sealed. The writ issued became the original writ when it was issued.

Before the motion to dismiss was decided, there seems to have been a full return, and the court had jurisdiction to hear the case.

The order is reversed, with costs.

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


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    PEOPLE v. DUDLEY.
    1. Careless Use of Firearms — Absence of Malice — Evidence.
    On a prosecution under 3 Comp. Laws, § 11511, for injuring another by the discharge of a firearm pointed at him intentionally, but without malice, the evidence showed that respondent and two boys were looking at a gun. One of the boys claimed he must go to work, when respondent put a shell in the gun, and said, “Look out, or I will shoot you,” . and simultaneously did shoot him. Held, not necessarily to preclude a finding of absence of malice.
    2. Same — Res Gestas'.
    Evidence that on the occasion of the shooting, and just before, respondent pointed the gun at another boy, who was present, was admissible as part of the res gestae, tending to show absence of malice.
    3. Same — Remarks of Court — Harmless Error.
    A remark by the court that, “All that is necessary to constitute this offense is the fact that this young man pointed the gun at the other young man, and that he was shot and maimed,” made in relation to an objection in the course of the trial, was harmless error, where the charge fully covered the law applicable to the case.
    Exceptions before judgment from Oceana; Russell, J.

      Submitted June 5, 1902.
    (Docket No. 95.)
    Decided June 24, 1902.
    Harry Dudley was convicted of the careless use of firearms.
    Affirmed.

      M. M. Larmonth, for appellant.

      Wallace Foote, Prosecuting Attorney, for the people.
   Hooker, C. J.

The defendant in this case was convicted under the statute punishing the careless use of firearms. The testimony tended to show that the defendant and two boys by the name of Ward met in a cornfield where the Ward boys were at work. The defendant had a gun, and the boys were looking at it. After the respondent had been there about 30 minutes, the Ward boy claimed he must go to work, when the respondent put a shell in the gun, and said, “Look out, or I will shoot you,”' and simultaneously did shoot him, seriously injuring him. The respondent claimed that the two boys were scuffling-over the gun, when it was discharged accidentally.

It is claimed by counsel that the testimony showed that the shooting was intentional, and therefore that he was not guilty under the statute, for the reason that the shooting punished thereby must be by the discharge of a _ firearm pointed and aimed intentionally, but without malice. There was testimony in the case from which the jury could legitimately infer the absence of malice.

The court permitted testimony that on the occasion of the shooting, and just before, the defendant pointed the gun at the other Ward boy. Error is assigned upon this ruling, but we think it a part of the res gestee. It tended to show that there -was no malice.

Error was assigned upon the refusal of the court to give-defendant’s first, second, and fourth requests to charge. We think that they were covered by the charge.

Error is also assigned on the statement of the court that, “All that is necessary to constitute this offense is the fact that this young man pointed the gun at the other young man, and that he was shot and maimed.” , The brief does not point out where this language is to be found. We do not discover it in the charge, but we do find that the language was used in relation to an objection in the course of the, trial. We are satisfied that the jury could not have been misled by it, as the charge very fully covers the law applicable to the case.

The verdict is affirmed, and the circuit judge directed to proceed to sentence the defendant.

Moore, - Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


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    WARREN v. AUDITOR GENERAL.
    Taxation — Judgments—Collateral Attack.
    Where, on petition of a landowner in a tax proceeding by the auditor general, a decree was made releasing the lands from the lien of the State on the payment of certain taxes and a fee of $1 for each description, and setting aside all other expenses and charges, such decree was binding upon the State on collateral attack, even though section 59 pf the tax law (Act No. 262, Pub. Acts 1899) may provide for a charge of $1 for each description for each year that the lands are delinquent.

      Mandamus by Willard T. Warren, treasurer of Montmorency county, to compel Perry F. Powers, auditor general, to expunge a certain charge against the county.
    Submitted June 17, 1902.
    (Calendar No. 19,366.)
    Writ granted June 24, 1902.

      H. K. Gustin, for relator.

      Horace M. Oren, Attorney General (Charles TV. McGill, of counsel), for respondent.
   Montgomery, J.

In various cases in the circuit court for the county of Montmorency, wherein the Richardson Lumber Company, the Huron Land Company, Limited, and Thomas S. Sprague filed petitions in the original proceedings in the matter of the petition of the auditor general for the sale of certain lands for the taxes assessed thereon, the circuit judge of Montmorency county made decrees by which the lands were to be released from the lien of the State upon the payment of certain taxes thereon, together with the sum of $1 for each description of land appearing in said petitions, which sum, it was declared, should become a part of the general fund of the State. All other expenses and charges against said lands were set aside. It appears that the Richardson Lumber Company, the Huron Land Company, Limited, and Thomas S. Sprague paid the amounts decreed against the lands, including the sum of $1 for each description, to the county treasurer, who issued receipts therefor. The auditor general, on receiving the report of the county treasurer, claimed that, in addition to the amounts collected, there should have been collected the sum of $1 for each description for each year during which the lands were delinquent, making a total difference of $322, which he charges to the county of Montmorency, and proposes to deduct from the amount owing by the State to the county. This application is for mandamus to require an adjustment between the State and the county upon the basis of the decree.

The respondent contends that the circuit judge had no jurisdiction to make such an order, for the reason that secton 59 of the tax law (Act No. 262, Pub. Acts 1899), it is contended, provides for an expense charge of $1 for each description for each year that the lands are delinquent; and therefore, it is said, as the statute fixes this charge, the circuit judge was without jurisdiction to set it aside, and to permit a redemption from the tax list without the payment of this sum. If it were urged to us that the circuit court erred in his decree, and if this were a proceeding brought to review that action directly, there might be force in this contention. But there is a wide distinction between a judgment of a court which is simply erroneous, and a judgment passed without jurisdiction of the subject-matter. It will not do to say that, because a decree or a judgment is wrong, in so far as it is an error the court proceeded without jurisdiction. Such a rule would leave nothing settled by adjudication, and such is not the law. See Wells, Res Adj. §§ 479, 480. The court having determined this question in a proceeding in which jurisdiction is distinctly conferred upon the court, his decree must be held to conclude all parties to the proceeding; and it follows that the county is not chargeable with the sum uncollected, and which, under the decree, its treasurer had no authority to collect.

The mandamus will issue as prayed.

Hooker, O. J., Moore and Grant, JJ., concurred. Long, J., did not sit.


author: Grant, J.

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    SCRIPPS v. WAYNE PROBATE JUDGE.

    1. Wills — Probate—Domicile—Jurisdiction—Res Judicata.
    The probate court of a decedent’s domicile has exclusive jurisdiction to determine the validity of his will, and an order of any other court admitting it to probate is not binding on the former court.
    2. Same — Administration.
    If those interested in a will fail to present it for probate to the proper court, any person interested in the estate may apply for administration, in which case it is no defense to say that decedent made a will which is beyond the jurisdiction of the court.
    3. Same.
    A man died while sojourning in California, leaving what purported to be a will. The executors named therein had the instrument probated in Ohio, claiming that as the testator's residence. Relator, an heir at law of deceased, filed a petition in probate court in this State, alleging that decedent was. domiciled here at the time of his death, that the alleged will was invalid, that the executors had refused to present it for probate in Michigan, and praying for administration on the estate. Held, that it was error for the court to refuse to pass upon the questions of domicile and intestacy until the will, or a certified copy thereof, should be filed in court by someone claiming thereunder.

      Certiorari to Wayne; Hosmer, J.
    Submitted June 17, 1902.
    (Calendar No. 19,330.)
    Decided June 24, 1902.

      Mandamus by James E. Scripps to compel Edgar O. Durfee, judge of probate of Wayne county, to proceed with the hearing on certain petitions. From an order-denying the writ, relator brings certiorari.

    Reversed.
    George H. Scripps died April 13, 1900, in California, then his temporary place of residence. His legal domicile-was formerly in Detroit, Mich. He left a will, with two codicils attached; the will being executed in 1894 at Detroit, then his legal domicile. It is claimed by his executors that he had lived in Cleveland for some time prior to-his death. The will was presented for probate in Cuyahoga county, Ohio, and was there admitted to probate-July 2, 1900.
    On June 30, 1900, the petitioner, James E. Scripps, a. brother of the deceased, presented to the probate court of Wayne county, Mich., a petition for administration upon the estate of said deceased, and asked for a special administrator for reasons set forth in the petition. The petition alleges the will; the proceedings taken in Ohio for its probate; that he has asked the executors therein named to-present the will for probate in the probate court for the county of Wayne, the domicile of said deceased at the time of his death, so that petitioner and other heirs of said deceased may contest the validity of the will; and their refusal to .do so. The petition further alleges that the deceased was domiciled in the city of Detroit at the time of his death; that he left a large estate there, both real and personal, worth several hundred thousand dollars; that, if such a will was executed, the deceased was at the time mentally incompetent, and unduly influenced by some one of the beneficiaries named in the will; and that the residuary legatees under the will of the deceased fraudulently conspired together, for certain reasons, to have this will probated in Ohio, rather than in Michigan, although it was well known to them that his legal domicile was in Michigan. -
    Upon presenting this petition, Robert T. Gray was appointed special administrator. William A. Scripps and Edward W. Scripps, the executors named in said will, appeared and answered this petition, setting forth the proceedings taken in the Ohio probate court for the probate of the will, and insisting that the probate of the will there is res adjudicata, and is entitled, under section 1, art. 4, of the Constitution of the United States, to full faith and credit in this State.
    Upon this petition and answer some proofs were taken, and, before the proofs were closed, the judge of probate doubted his right to pass upon the question of the testacy or intestacy of the deceased without having such instrument before him. The hearing was then continued. Petitioner then filed another petition, setting forth copies of the will and codicils, alleging that they were beyond the jurisdiction of the court and could not be produced, and asked the court to proceed to determine whether the same were the last will and testament of the deceased, or whether he died intestate. Hearing was had on March 26, 1902. Upon that hearing the probate court refused to proceed further with the hearing upon either petition, holding that it had no jurisdiction to determine the question of the domicile of the deceased, or whether he died testate or intestate, until the original papers, or duly certified copies thereof, shall be filed in said probate court for Wayne county by some one claiming an interest in his estate by virtue of the will, and that said James E. Scripps does not claim under, but in opposition to, the will. Relator then petitioned the circuit court for the county of Wayne for an order compelling the probate court to vacate..such order and proceed with the hearing. This petition was denied, and the case is before us for review on certiorari.

      Elliott G. Stevenson and Leo M. Butzel, for relator.

      Otto Kirchner, Jacob C. Harper, and Thomas L. Johnson, for respondent.

       Rehearing denied December 16, 1902.

   Grant, J.

(after stating the facts). It is, of course,

the duty of those having a last will and testament in charge to promptly present it for probate upon the death of the testator. If they for any reason refuse or fail to do this, it is then the duty of those who are interested in having the will probated to take the proper steps for that purpose. The authorities, so far as we have been able to examine them, ^ without exception, hold that the probate court of the domicile of the testator has exclusive jurisdiction to determine .the validity of the will. If such will had been admitted to probate by a court having no jurisdiction, the decree or order of that court is not binding upon the court of the deceased’s actual domicile. It may be binding as to property located within the jurisdiction of that court, but is not conclusive upon the courts of other jurisdictions, under the rule of State comity, or under the United States Constitution. If those interested, for any reason, fail to present a will for probate at the proper court of the domicile of the testator, any party interested in the estate as heir or creditor may present a petition for the appointment of an administrator, and it is no'defense to this action to say that the deceased made a will which is beyond the jurisdiction of the court of the domicile.

Under the statutes of Ohio, there can be no contest in the probate court over the probate of a will. Only the witnesses to the will, and such other witnesses as any person interested in having the same probated, can be called. Its validity in that State cannot be contested until it has been admitted to probate, and then by a proper suit for that purpose instituted in the court of common pleas. In re Hathaway's Will, 4 Ohio St. 383. Under the statutes of Michigan, the only place where the due execution of a will can be contested is in the probate court at the testator’s domicile (3 Comp. Laws, § 9282), where all parties interested are entitled to notice, while in Ohio no notice is required to be given to any one. It was therefore held in that State that where the probate of a will was refused, and the parties had no notice of its refusal until too late to effect an appeal to the court of common pleas, they were entitled to repropound the will, notwithstanding the former order of refusal had not been vacated. Feuchter v. Keyl, 48 Ohio St. 357 (27 N. E. 860). It is also held in that State, after a careful review of the authorities, that the jurisdiction of a court in which a judgment was rendered may be inquired into, and, if it be shown that the facts essential to jurisdiction did not exist, the record is a nullity, notwithstanding the recitals therein. Pennywit v. Foote, 27 Ohio St. 600, 618 (22 Am. Rep. 340). A Mrge number of authorities are there cited in support of the proposition. The supreme court of that State has-also passed upon the question, in Manuel v. Manuel, 13 Ohio St. 458, in which the court holds that “the practice of first proving our wills in other States has never yet obtained.” In that case the testator, whose domicile was in Ohio, made an olographic will in New Orleans, while on a visit there. The will was admitted to probate in New Orleans, and an authenticated copy brought to Ohio and admitted to record. A bill was filed to set aside the will as invalid under the laws of that State. It was held that a copy of the will was improperly admitted to record in that State, and, “by the settled rule of international law, the jurisdiction to determine the validity or invalidity of the will belongs to the courts of this State [Ohio].” So it is held in Mississippi that the capacity to make a will must be determined alone by the laws of that State, the place of the domicile of the testator. Bate v. Incisa, 59 Miss. 513; Sturdivant v. Neill, 27 Miss. 157. So in New Hampshire it is held that an authenticated copy of a will and the .probate thereof in a foreign country cannot be filed in a court of that State, where the domicile of the testator was in that State at the time of his death. Stark v. Parker, 56 N. H. 481. See, also, Succession of Gaines, 45 La. Ann. 1237 (14 South. 233).

This rule is also established by the Supreme Court of the United States. Where a transcript of the proceedings of the court of ordinary in a county in Georgia was offered for the purpose of showing that the decedent had died a resident of- Georgia, intestate, and that the petitioner in a court for the District of Columbia was estopped to deny the fact, it was held that the grant of letters had no binding or probative force in contests respecting property lying outside the territorial dominion of the State of Georgia. Overby v. Gordon, 177 U. S. 214 (20 Sup. Ct. 603). The question is there thoroughly discussed, and many authorities cited. See, also, Drexel v. Berney, 122 U. S. 250 (7 Sup. Ct. 1200).

Where a divorce was obtained in the State of Indiana, where the husband and wife lived in Michigan, it was held that, while ‘ ‘the parties had their residence within this State, the courts of Indiana had no authority to consider the question of divorcing them.” The respondent was charged with bigamy, and his decree of divorce in Indiana was held no defense. People v. Dawell, 25 Mich. 247 (12 Am. Rep. 260).

The learned counsel for the respondent cite and rely, among other cases, upon Shannon v. Shannon, 111 Mass. 331. The deceased, Mr. Shannon, formerly lived in Massachusetts, removed to Indiana in 1855, made a will in 1868, and died in 1869. After removing to Indiana he obtained a divorce from his wife, who resided in Massachusetts. She filed a petition for administration, claiming that his domicile was in Massachusetts, and that he died intestate. The court did not dismiss the proceeding upon the ground that it would have had no jurisdiction if the domicile of the deceased had been at the time of his death in Massachusetts. It found as a fact that Mr. Shannon had acquired a domicile in Indiana before he made his will, and had not abandoned it when he died. For these reasons the court held that the court of Indiana had jurisdiction for the original and conclusive probate of the will. See, also, the language in Bradley v. Broughton, 34 Ala. 706, 707 (73 Am. Dec. 474).

It appears from the allegations in relator’s petition that -one of the executors filed a petition in the probate court for the county of Wayne for the probate of the will, but subsequently withdrew it, and now insists upon the proceeding in Ohio. The relator might, perhaps, have in his petition for administration said nothing about a will, though it is difficult to see how he could do so without placing the facts before the court, and alleging that the pretended will was void. He knew of the existence of the pretended will. It certainly is not in the power of executors, by suppressing a will, or by refusing to probate it at the place of the testator’s domicile, to prevent those interested to defeat the will from having a hearing in the only court which has jurisdiction in the matter. It was' the duty of the probate court to proceed with the case, and determine whether the domicile of the deceased was in.Detroit. If the court shall find that his domicile was in Detroit, then it shall be its duty to proceed and determine whether the deceased died intestate. If the court finds that he died intestate, letters of administration must issue.

Judgment reversed, and case remanded for further proceedings, with costs to relator.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.


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    DECKERVILLE HIGH SCHOOL DISTRICT v. SCHOOL DISTRICT NO. 3 OF MARION AND BRIDGEHAMPTON TOWNSHIPS.
    1. Schools and School Districts — Creation or New District —Apportionment or Interest Moneys.
    Where a legislative act dividing a school district provided that each district should receive one-half of all moneys, rents, and profits due to the district divided up to the time the act took effect, which was April 18th, the new district was not entitled to a share of the primary school interest fund apportioned to the old district in the following November, though the apportionment was based on the number of school children for the previous year.
    2. Same — Maintenance op School — Constitutional Requirement.
    Under Const, art. 13, § 5, providing that no school district neglecting to maintain a school for at least three months in each year shall be entitled to its proportion of the income of the primary school fund for the ensuing year, a school district which, during the eight months which have elapsed since its organization, has had no school, is not entitled to share in an apportionment of interest moneys made within that period.

      Certiorari to Sanilac; Beacb, J.
    Submitted June 17, 1902.
    (Calendar No. 19,224.)
    Decided June 24, 1902.

      Mandamus by the Deckerville High School District to compel School District No.' 3 of the townships of Marion and Bridgehampton to pay to relator one-half of certain primary school interest moneys. From an order granting the writ, respondent brings certiorari.

    Reversed.
    In 1901 the legislature organized the relator as a school district from a part of the territory of the defendant school district. The act provided for a sale of the property of the old district, and a distribution of the proceeds therefrom equally between the new and the old districts, and further provided that each district “shall receive one-half of all moneys, rents, and other profits due to said district No. 3 previous and up to the time this act shall take effect.” Each district was also required to pay one-half the debts. The act took effect April 18, 1901. (Act No. 398, Local Acts 1901.) The property was sold as the act directed, and on Juty 8, 1901, a complete settlement was made between the two districts, upon which the sum of $381.30 was found due from the respondent to the relator, which amount was paid. In November, 1901, the superintendent of public instruction apportioned to the respondent, as its share of the primary school money, the sum of $552, which was paid to the assessor of the respondent. Relator, claiming that, under the act above mentioned, one-half of said money belonged to it, made a demand for the same, which was refused, and the relator then filed a petition in the circuit court for the writ of mandamus to compel such payment. The writ was granted, and the case is now before this court for review.

      William H. Aitkin, for relator.

      William H. Burgess, for respondent.
   Grant, J.

(after stating the facts). It appears both from the petition for writ of mandamus and in the answer that at the time the petition was filed no school had been taught in the new district. The petition says that the school officers have contracted with a teacher to conduct the Deckerville high school for the winter and spring terms. The petition was filed January 13, 1902. The apportionment of the school moneys in November, 1901, was based upon the reports of 1900. The interest upon this primary school fund is computed to the 1st day of April in each year by the auditor general. It is after that apportioned by the superintendent of public instruction to the various school districts, based upon the number of children in each school district for the previous year, and is apportioned semi-annually between the 1st and 10th days of May and the 1st and 10th days of November each year.

We think the court was wrong in holding that, under the terms of the act, the relator had a right to a division of the primary school moneys apportioned to the respondent. The moneys to be afterwards ascertained and apportioned were not included within the terms of the act. The answer, which must be taken as true, alleges that no teachers have been employed by the relator since its organization; that the respondent has maintained a school, and that it has been open and free to the whole of the original district; and that a large number of pupils residing within the territory of that district have attended the respondent’s school, and are now in attendance, without charge for tuition. Further, by section 5, art. 13, of the Constitution, no school district which neglects to maintain a school for at least three months in each year shall be entitled for the ensuing year to its proportion of the primary school fund. Although the relator had been organized for eight months prior to the time of filing its petition, and more than six months prior to the apportionment to the respondent, yet it had no school. It could not, under this provision, receive the money directly from the 'State.

Judgment reversed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    PEARL v. TOWNSHIP OF BENTON.
    1. Municipal Corporations — Imperfect Construction of Bridge —Notice—Liability.
    If a bridge, when constructed, is reasonably safe and fit for travel, a municipality is not liable for a defect in construction which only becomes a source of danger years afterwards through exceptional circumstances, unless it has notice of the dangerous condition.
    2. Same — Evidence.
    ■ Evidence that the mudsills to a bridge, which was undermined by a flood, were left by the contractor some inches above the level of the bottom of the ditch which it spanned, is insufficient to show that the bridge, as constructed, was not reasonably safe and fit for travel, where it also appears that the mudsills were more than four feet from the edge of the drain, and that the bridge had stood for three years, during which time it had been subjected to severe and repeated tests.
    3. Same — Dangerous Condition — Notice —Question for Jury.
    Where, in an action against a township for injuries received ■ from a falling bridge, there is some testimony tending to show that the imperfect condition of the bridge was visible and generally known for a long time, the question of notice should be submitted to the jury.
    Error to Berrien; Coolidge, J.
    Submitted November 13, 1901.
    (Docket No. 103.)
    Decided June 27, 1902.
    Case by Arthur L. Pearl against the township of Benton for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Gore & Harvey (James O'Hara, of counsel), for appellant.

      F. H: Ellsworth and G. M. Valentine (M. L. Howell, of counsel), for appellee.
   Hooker, C. J.

The plaintiff was injured through the fall of a bent under the end of a bridge. This bridge was built by the township over a drain many years ago, and in the fall of 1892 it was rebuilt. The north posts rested upon the old mudsill, which was sound, and was not disturbed. The men who rebuilt it stated that the bed of the mudsill was below the bottom of the drain. The negligence complained of is that, in rebuilding the bridge, the contractor left the mudsill some inches above the bottom of the drain, and that it was afterwards undermined by ■water; and plaintiff claims that the bridge was never properly constructed in that respect, and that the township was chargeable with notice of the condition, because it was a defect in repairing or reconstruction.

The plaintiff relied upon the testimony of one Stone to prove that the bottom of the drain was below the mudsill. This witness said that he was employed to clean out this drain, and in doing so deepened it; that the bridge was rebuilt in the fall of 1892, just after he had cleaned and deepened the drain; that he worked to a profile; that the ditch was two feet on bottom and eight feet across top, slope one to one. On direct examination he said, “I should think I dug from 12 to 16 inches below the bottom of the mudsill.” On cross-examination he admitted that he might have said on a former trial that it might have been four of five inches below the sill. He stated further on cross-examination:

Q. I understand you to say now, when you had completed it, the bottom of the ditch was 12 to 16 inches below the bottom of the mudsill. Is that right ?
“A. I said I dug the ditch 15 or 16 inches.
Q. You dug it down 15 or 16 inches ?
“A. Fifteen or 16 inches under the bridge.
Q. Do you say that carried it below the bottom of the mudsill ?
“A. It carried it below the bottom of the mudsills several inches; more than 4 or 5 inches.
Q. About how many inches?
“A. I should think at the least calculation 10 inches, or somewhere along, there.- I don’t know as I did testify before it was 4 or 5 inches.
Q. Explain how it was you said before it was not more than 4 or 5 inches. How much below the bottom of the mudsill was the bottom of the ditch when you were there a year ago ?
“A. I could not say exactly. It was considerably lower. I went regardless of the old ditch at all. I went by the, grade stakes, and dug down to the grade. Some places I would have to dig out more than ever was taken out before ; you understand, out of the old ditch; got down below the bottom of the old ditch. Other places I wouldn’t have so much to dig out; take out what was caved in and filled in; I say, in places. I think some sand washed in at the bridge; most always does. I have an -idea, when I last saw it the ditch was some lower than the mudsill. I could not, say exactly how much. I could not tell anywhere near. I don’t suppose how deep it was. It was below the bottom of the mudsill more than 4 inches. I could not say how much more.
Q. Six or 8 inches?
“A. I could not say whether it was or not.
“ Q. Twelve or 15 inches ?
“A. Might have been.
Q. Might have been 12 or 15 inches?
“A. Might have been; might not have been so much.
Q. I will ask you this: How much below the mudsills —the bottom of the mudsills — did you actually dig ?
“A. Below the bottom of the old mudsill 15 or 16 inches; somewhere in that neighborhood.”

It was shown that, upon a former trial, he testified that he dug 12 or 15 inches, and, when through, it was 4 or 5 inches below the bottom of the mudsills. There was other testimony similar to that of Stone.

The undisputed testimony in the case shows that this bridge stood three years after rebuilding, that during that time it was subjected to severe and repeated tests, and that heavy threshing outfits crossed it without trouble. The description of the drain as given by Stone, and of the bridge as given by all, permit a conclusion as to the condition of the bridge, when rebuilt, with 'something like mathematical certainty.

It is shown by the diagram annexed, which is predicated on the testimony, that it was 16 inches below the bottom of the sill, and is therefore a favorable view of plaintiff’s proof.

The law requires that highways be made reasonably safe and fit for travel. If once put in such condition, there can be no liability for a defect until the municipality can be said to be chargeable with notice of such defect. Not only does the diagram show that the center of the mudsill was five feet and more distant from the edge of the ditch at the bottom, and four feet and three inches from the ditch at the level of the bed of the sill, but it also shows that the whole bent was taken out and floated down the stream, at a time of exceptionally high water, when the stream overflowed' its banks. We are of the opinion that the court did not err in holding that the evidence failed to show that this bridge was not, as constructed, reasonably safe and fit for travel. A township is bound to anticipate only the things that are reasonably probable, and it is not proper to hold the public to a strictor account than private persons. In the history of the country it has been no uncommon thing for floods to undermine and wreck bridges, the construction and cost of which must bear some reasonable and practicable relation to the ability of a community, which is restricted in some respects as to the money at command for such purposes. The public is not an insurer. It is apparent that this township endeavored to maintain a reasonable bridge, and did so until, from extraordinary conditions, it was weakened, and settled when plaintiff crossed it.

The rule for which counsel contend is a severe one. It is not that the liability is for a defect which is at once a source of danger, but one which may at some time in the future become so. It is not a construction that will necessarily become dangerous, but one which may or may not, depending on the nature of prospective events. All roads are subject to wear, and to washouts through the action of floods. It goes without saying that townships know this. Yet, until apprised of the defect caused by wear or washout, there is no liability. The legislature has said that the traveler must take the risk of danger of these things until the municipality not only has notice, but an opportunity for repair. When this bridge was rebuilt, it had every semblance of a good and stable structure. Moreover, by three years’ úse it was proved to have been so when erected. ' Not only the township, but every one else, plaintiff included, believed it to be so. It was only when, in the course of time, it became out of repair by the fortuitous undermining of its foundation, that it became defective and dangerous. It is too strict a rule to say that the township should have anticipated this possibility, as it would be to say that it should anticipate that nails will rust and break, beams become affected by dry and invisible decay, or iron girders and supports become crystallized and weakened. Everything is subject to these changes, and every one knows it. Either of two policies may be adopted: One to compel the township to know and protect against these dangers, — i. e., insure the traveler against them; the other to require diligence, as our law does, but to liinit liability to cases where knowledge or notice exists. The rule contended for nullifies the statute.

In the case of Rochefort v. Inhabitants of Attleborough, 154 Mass. 140 (27 N. E. 1013, 26 Am. St. Rep. 221), it was held that a town was not liable for an accident caused by a defect in a culvert so constructed that the defect was likely to occur in the remote future, where the defect had not existed for such a length of time as to make the town chargeable with notice thereof, and there had been no such defect at that place for more than a year previously. See, also, Stoddard v. Inhabitants of Winchester, 154 Mass. 149 (27 N. E. 1014, 26 Am. St. Rep. 223).

The case of Wakeham v. Township of St. Clair, 91 Mich. 27 (51 N. W. 696), is in point. There the township maintained a causeway, built of logs and covered with dirt, along a river. It was a common occurrence for the dirt to drop through, leaving holes, owing to the action of the water; and the township knew every time that it repaired the way, if it did not when it was constructed, that this would inevitably happen if that method of construction was adopted or retained. Held, that notice was necessary to create liability.

We think, however, that the judgment should be reversed upon the ground that the question of notice was for the jury, there being some testimony tending to show that the imperfect condition of the bridge was visible and generally known for a long period.

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