author: Hooker, J. Blair, J.

text:
    PEOPLE v. COLBATH.
    1. Criminal Law — Evidence—Age—Competency.
    Though as a general rule a person is competent to testify to his own age, where it appears that he has no recollection of his mother, and no information on the subject from relatives, or other members of his family, his opinion, based on the statements of other persons, is not evidence, and the statements of such persons are hearsay.
    2. Same — Cross-Examination—Materiality.
    Where a witness has testified to the age of prosecutrix in statutory rape, and stated that there is a record thereof, and it has been given to defendant’s counsel, the witness cannot be cross-examined as to the ages of the other children shown by the record, unless it is shown how such cross-examination is material.
    3. Same — Instructions.
    For the court, in his charge in a prosecution for statutory rape, to refer to prosecutrix as “the little girl,” if error, is harmless.
    Moore, C. J , and Blair and Ostrander, JJ., dissenting.

      Error to Bay; Shepard, J.
    Submitted February 16, 1905.
    (Docket No. 269.)
    Decided September 19, 1905.
    Iram E. Colbath was convicted of statutory rape and sentenced to imprisonment for not less than six and not more than twelve years in the branch of the State prison at Marquette.
    Affirmed.

      Pierce & Kinnane, for appellant.

      John E. Bird, Attorney General, Brákie J. Orr, Prosecuting Attorney, and B. T. Waddle, Assistant Prosecuting Attorney, for the people.
   Hooker, J.

It is the general rule that a person is competent to testify to his own age. When, however, it appears that he has no recollection of his mother, and has no information upon the subject from his relatives or other members of the family, his opinion, based on the statements of other persons, is not evidence, while the statements of such persons are hearsay. In this cause the defendant’s counsel sought to introduce evidence of such statements through cross-examination of the witness, who had not been asked upon direct examination to state her age. It was inadmissible, and the court did not err in excluding it. The fact that she was defendant’s victim, or even complaining witness, does not affect the question, which is measured by the rule applicable to any witness.

The sister of defendant’s alleged victim testified to her age, and stated that she was present at her birth, when she, the witness, was fifteen years old. On cross-examination she was asked if there was a record of Eva’s birth, and replied, “Yes; we have it.” It was developed that pending these proceedings her brother had written a letter, from which witness’ husband had made a record. It is inferable that this letter gave the ages of the children. The letter was not in court, and it does not appear what the record made by the witness’ husband showed. This record was produced and given to defendant’s counsel, who did not try to introduce it, but who sought to ask questions concerning it with reference to other children. The court said that he did not see how this was material, and counsel does not seem to have cared to enlighten him. Nor has he enlightened us as to its bearing or importance. This he should have done, if he made any claim for it. If there was occasion to go into the ages of the other children, it could easily have been made to appear.

The fact that in his charge the court referred to Eva as “the little girl” was not necessarily error. If she was a little girl, and we may presume that she was, or he would not so have described her, it was manifest to all who saw her, and, if she was really a large girl, the jury could not be misled by this description in their presence at the time; and erroneously calling her a little girl would not be likely to injure the respondent with the jury.

The judgment should be affirmed.

Carpenter, McAlvay, Grant, and Montgomery, JJ., concurred with Hooker, J.

Blair, J.

(dissenting). The respondent, a piano tuner' was convicted in the Bay circuit court upon an information charging statutory rape upon Eva Gable, a female child under the age of 16 years, to wit, of the age of 14 years, on the 9th day of April, 1904. Eva first met the respondent in the parlor of a hotel at Cheboygan, on the 9th of April, 1904. Respondent began a conversation with her, and after some casual remarks invited her to go to Bay City with him, which she finally consented to do.

“He said I could stay at his home a while, and, if I wanted to, he would get me a place to work. - * * * Coming down on the train, he asked me how old I was, and I told him that I had been told I was 17, and he said I didn’t look to be that old. He didn’t think I was.”

Respondent took Eva to his rooms in a block in Bay City, went, out and got her some fruit, and then went away, telling her he was going'to the hotel for the night. He came back in about two hours.

“ When he came back, I was in bed, and I had taken all my clothes off, and had only my nightdress oh. He came into the bedroom. I said to him, ‘ I thought you were going to stay at the hotel tonight,’ and he said, ‘No, I thought I would come back and stay with you.’ I says, ‘ Where will you sleep ?’ He says, ‘ I will sleep here.’ I asked him where I would sleep, and he says, ‘You will sleep here, too.’ I says, ‘I ain’t going to stay here, if you are.’ He says, ‘You will have to.’ I tried to get out of' hed, and he held me in bed. He had one hand on my wrist and the other on my shoulder. I tried to get up, and he would not let me. Then he took one arm off me, and then undressed himself and got into bed. WheiF he got in bed, I did not do or say anything. I did not try to get away or keep him away from me. He lay in bed about 10 minutes, and then misused me. I tried to get out of bed, and he would not let me. He had intercourse with me twice before the police came, in about 10 minutes. About half an hour afterwards the officers came to the door. We were both still undressed. The officers knocked on the door, and Colbath got up and went out into the room. Then he came back and told me to get up, and I asked him if it was anybody at our door, and he said, ‘Yes.’ He said he thought it was a policeman. He dressed first, and I got up and got dressed, and he told me to stick to it that I was 17, and to tell them that we' were not in bed, and that he was going to take me down to the depot. He said, if I told them that we had both been in bed, they would send üs both over the road.”

Respondent admitted that his purpose in inviting Eva to accompany him to Bay City was to have sexual intercourse with her, but testified that the coming of the police prevented his carrying out his design. Respondent’s counsel concede the correctness of the court’s rulings and instructions as to the question whether respondent had sexual intercourse with Eva, but contend that seriously prejudicial error was committed in his rulings upon the admissibility of testimony as to Eva’s age and the form of his references to her in his charge. In order to properly discuss the legal questions involved in this branch of the case, it is necessary to set out quite fully portions of the testimony. The only evidence as to the age of the complaining witness, Eva Gable, was given by herself and her married sister, Mrs. Ella Bonner.

Eva testified on her direct examination that she was born in Troy, Canada; that her mother was dead, and she did not know where her father was; that, after her home was broken up and her father went away, she went to Mrs. Eastlake’s to live.

“ I stayed with her about a year. She put me in the hands of Mr. Brown, who took charge of young children. He kept me in his house for a while, about three months; then he put me with a schoolteacher, Miss "Walker, and I remained with Miss Walker about eight years. I after-wards went to live with MacElroys. They moved to Wolverine, up north here in Michigan, and I accompanied them. This was last June. Afterwards the MacElroys went from Wolverine to Cheboygan, and I did not go with them, because I was working at a place. Where I was working, the woman didn’t want me to leave until a few days after they went, and they told me they would write me and tell me when to come. I expected to go from Wolverine to Cheboygan. They left on Monday, and I left on Friday. * * *
■ ‘‘ Q. Do you know how old yoü are ?
“A. Yes, sir.
“ Q. How old are you ? From whom had you been told you were 16 or 17 ?
A. Mrs. Brown. She was the reeve’s wife in Canada. I have ascertained my true age from my sister, who is here.”

On cross-examination she testified as follows:

“ I have no recollection of my mother. My father left us. I have no recollection of his leaving. I then lived with a neighbor woman, Mrs. Eastlake. I remember that distinctly. I was old enough to remember that. I lived with Mrs. Eastlake about a year. She lived a litle ways out of Troy. After living a year with Mrs. Eastlake I went with the reeve, Mr. Brown, who looks after children whose parents are dead or have deserted them. I remember it distinctly that I lived with him about a year. After living with Mrs. Eastlake for a year, and Mr. Brown for another year, I lived with Miss Walker for eight years, and then went to live with a family named MacElroy, and came with this family to Michigan last June, and lived with them until they went to Cheboygan. I told Mr. Colbath that, so far as I knew, I was 17 years of age. I knew this from what people told me that I lived with.
Q. As I understood you, before you came here to Michigan, some party over there told you you were 16 years old past. Who was the party that told you you was 16 years old past ?
“A. Mrs. Brown told me two years ago that I was 15. (Objected to as immaterial, what different people have told her. She could not give any consent, and could not tell her age.)
“ The Court: This examination was made on the other side. It is hearsay and the statement of somebody else, and I think it would be incompetent what somebody else told her. If it is not competent on one side, it is not competent on the other.
“Mr. Pierce: Up to this stage of the examination, the people having finished the direct examination of this complaining witness, there has been no record produced or anything produced showing conclusively her age. That question in this case, of course, is largely speculative. Isn’t it the rule that you can gather from the neighbors, that you gather from the persons with whom you are associated declarations made by them as to the age in cases of this kind and character, and that has a tendency to show the fact in the absence of a record ?
“The Court: No; for the reason that if it was from her own mother’s statement, or her own father’s statement, or her sister’s statement, or somebody that had a direct knowledge or might be assumed had a direct knowledge, there might be more claim for it; but you cannot' try the issue here in this case on hearsay as to neighbors’ knowledge, or on what they base their knowledge, or whether they had any information upon it. It is the baldest hearsay what neighbors say in regard to age. It is outside of anything that would be in evidence as to age. The young lady’s mother died when she was 2 years of age. She had no knowledge of her mother. Afterwards her father deserted the family, and she has practically little knowledge of him, if any, during the younger portion of her life. She lived, according to.her testimony, with a woman named Brown, and, as it appears from the cross-examination, Mr. Brown had charge of persons under the unfortunate circumstances she was in. She was advised after living with him, after a period of eight years, by him, that before she came to Michigan she was 15 years of age, which would make her 1? now.
“Mr. Pierce: Isn’t it a strong circumstance to establish the fact of her age, and isn’t it admissible for that reason ?
The Court: I don’t think so. (Exception taken.)
“ It will be a year ago next month, June, since I went to live with the MacElroys in Wolverine, Michigan.”

Mrs. Ella Bonner, Eva’s sister, testified that their mother died May 5, 1894; that she was with her mother when Eva was born, which occurred on the 26th day of July, 1889; that witness was at that time 15 years old; that there were seven girls and three boys in the family.

‘ ‘ I last saw Eva about four years before she went to Michigan. After my mother died and my father left home, three months after she died, I kept Eva until fall. We got places for them that we could get places for, and them we didn’t get places for a lady went to the council and took them. The council took care of Eva; that is, the reeve found a place for her and put her with Mrs. Eastlake. She stayed there a year, and then went to Mr. Brown’s, the reeve. I don’t know how long she stayed at Mr. Brown’s. After she left Brown’s she went to Miss Walker’s. I don’t know how long she stayed there. I don’t know where she went next.”

Cross-examination by Mr. De Poe:

“Q. There isn’t any record of your sister Eva’s birth?
“A. Yes, sir, we have it.
“Q. Where?
“A. My brother had part of it, and I have part of it.
“Q. Produce it.
‘A. I haven’t got it with me. The Captain has got it.
“Q. Has he got a record of Eva’s birth?
“A. Yes, sir; it is all on a paper.
“Mr. Anneke: It is a statement that you made out?
“The Court: That is improper.
“Q. The paper Capt. Wyman has got is one he made out himself ?
“A. No, sir; it is my husband’s writing. My husband made it out not long ago — about four or five weeks.
“Q. When you heard about this trouble, you and your husband made out this paper ?
“A. Yes, sir. My husband had my brother send it. He sent the ages in his letter. I wrote to him.
“Q. That is all you know about it ?
“A. No, sir; I know she was born on the 26th.
“Q. Did you get that information from your brother through the letter ?
“A. No. I know it was the 26th.
“Q. As to the record, did you get that information through your brother writing you a letter ? Did you get that information as to the record as tó the date of Eva’s birth and the rest of your family through a letter received from your brother ? Do you understand the question ? You received a letter from your brother?
“A. Yes, sir.
“Q. In that letter he went on and made a statement as to the ages of the different children ?
“A. Yes, sir; I haven’t got that letter with me. I left it at home.
“Q. When your husband made up the record that Capt. Wyman has, he made it from this record received from your brother ?
“A. Part of it.
“Q. What part of it did he make up from the letter ?
“A. Part of my younger sister’s. I had the rest. I haven’t got the record with me. It is at home.
“Q. If you had the record, Capt. Wyman was over there looking up this girl’s age, was he not ? Was Capt. Wyman over there to your home making inquiries in regard to your sister’s age ? Why do you hesitate to answer that question ? Did Capt. Wyman bring that record?
“A, No, sir; he didn’t bring it. I brought it myself. The captain has it now.
“Mr. De Foe: Produce the record.
‘ ‘Mr. Anneke: Can you produce it ?
“A I can, if the captain' — ■
“The Court. Can you produce it, Mr. Anneke ?
“Q. In whose handwriting is that record ?
“A. My husband’s.
“Mr. Anneke: I am asked to produce what he calls a record. It is merely a statement in the handwriting of some person. It is not competent to put in testimony. (Paper handed to counsel.)
“Q. That record is made in your husband’s handwriting?
“A. Yes, sir; it was made four or five weeks ago. My husband got the record from my brother in a letter.
“Mr. AnneJcé: Before there is any more cross-examination in regard to that document, I submit it should be settled whether or not the subject of the cross-examination is competent to be put in testimony.
The Court: It is not in evidence.
“Mr. De Foe: The only thing I am eliciting is to test this woman’s knowledge as to the girl’s birth.
“The Court: As to the rest of the children, it is not material. She has testified that she personally knows as to this girl. (Exception taken.)
Q. You did not have the record at your home as to this girl ?
A. No, sir. I was asked by Capt. Wyman if I had a record of Eva’s birth, and I didn’t have any. I made no memorandum of my sister’s birth at the time she was born, and I don’t know whether there was ever any record made of Eva’s birth or not.
Q. This record that Capt. Wyman had—
Mr. Anneke: I object to any more questions being asked in relation to that record, for the reason that it is nothing that could be put in testimony in this case, and could not be the subject of cross-examination.
The Court: It is not competent evidence. It is all hearsay. This record is not in evidence. It won’t be in evidence. It is entirely immaterial as to the rest of the family, and she testified from personal knowledge as to the age of the girl in this case. (Exception taken.)
“ Up to the time this transaction took place over here in Michigan, I had nothing to call my attention to this girl. There were seven girls and three boys in our family. There was a record of two of the first members of the family.
Q. Where is that record ?
“The Court: I don’t see how that is material. It don’t affect this case. (Exception taken.)”
In the course of his charge to the jury the court referred to the complaining witness as follows:
“You have heard the testimony of the little girl, * * * and he tells you that his purpose in doing so was to have intercourse with this child. * * * It is claimed on the part of the prosecution that the testimony of the little girl shows * * *. As to whether or not this little girl told the truth * * *. You have seen the little girl on the stand yourself. * * * You have heard the testimony of the officer, Mr. Radcliffe, who saw this man get off the car with the little girl; his attention being attracted by the apparent age of the girl.”

It is apparent, we think, from this record, that the chief, if not the only, reasonable defense which the respondent had upon the merits was that the complaining witness was above the age of 16 years. The age of Miss Gable, therefore, presented the supreme question in the case, and it was essential that the respondent’s rights should be carefully protected by the court in his rulings upon the introduction, admissibility, and relevancy of testimony, and his instructions as to the determination of that question by the jury. Miss Gable was a competent witness as to her own age, and we think the jury should have been explicitly so informed. Cheever v. Congdon, 34 Mich. 296; Morrison v. Emsley, 53 Mich. 564; People v. Elco, 131 Mich. 519. While the trial judge did not instruct the jury that they could not consider the testimony of Miss Gable upon the question of her age, we think the jury were likely to understand from the proceedings above set forth that her entire testimony upon this subject was hearsay; and this probability should have been counteracted by explicit instructions from the court.

The only reason explicitly assigned by Miss Gable for her belief that she was 17 was that Mrs. Brown had told her so. The prosecutor, after himself putting this evidence in the record, objected to the questions of respondent’s counsel upon the same subject, assigning as one reason that she (Miss Gable) “could not tell her age.” The court ruled that the statements of Mrs. Brown were hearsay, and, as these statements were the only basis assigned by Miss Gable for her belief as to her age, the jury would naturally infer that there was no competent evidence in the case that she was over 16. The testimony of Miss Gable, aside from the statement of Mrs. Brown, would have warranted the jury, if they believed it to be accurate, in finding that she was above the age of 16. Mrs. Bonner testified that Eva was born July 36, 1889, and that her mother died May 5, 1894; that she, Mrs. Bonner, kept Eva until fall, when the reeve found a place for her with Mrs. Eastlake.

“ She stayed there a year, and then went to Mr. Brown’s, the reeve. I don’t know how long she stayed at Mr. Brown’s. After she left Mr. Brown’s, she went to Miss Walker’s. I don’t know how long she stayed there. I don’t know where she went next.”

Miss Gable herself testified that she lived with Mrs. Eastlake about a year, and that she remembered distinctly that she lived with Mr. Brown about a year:

“After living with Mrs. Eastlake for a year and Mr. Brown for another year, I lived with Miss Walker for eight years, and then went to live with a family named MacElroy, and came with this family to Michigan last June (June, 1908), and lived with them until they went to Cheboygan. I told Mr. Colbath that, so far as I knew, I was 17 years of age.”

It appears from the above testimony that Miss Gable was nearly 5 years old when her mother died, and was past 5 when she went to live with Mrs. Eastlake, and was therefore past 15 years when she went to live with the MacElroy family. How long she lived with the MacElroy family in Canada the record does not disclose; but it appears that she came with them to Michigan in June, 1903, some ten months prior to the offense complained of. If she lived with the MacElroys in Canada 3 or 4 months, the jury might have found "from the testimony that she was over the age of 16 on the 9th day of April, 1904. In any event, the jury must have found, if they believed the testimony above set forth to be accurate, that Mrs. Bonner was mistaken as to the date of Eva’s birth, the most important fact in issue, and about which Mrs. Bonner alone claimed to testify from personal knowledge.

In view of the great importance of Mrs. Bonner’s testimony as to the principal issue of fact, we think respondent’s counsel should have been accorded great latitude in cross-examining her, and that the court erred in refusing to allow counsel to question her as to the records referred to heretofore for the purpose of testing her credibility, knowledge, and memory. We also think the court erred in referring to Miss Gable throughout his charge as a “little girl’’and a “child,” from which expressions the jury might infer that, in the opinion of the court, she was visibly and palpably under the age of 16. We do not consider the remaining assignments of error, for the reason that the occasion for them will probably not arise upon another trial.

The judgment should be reversed, and a new trial granted.

Moore, O. J., and Ostrander, J., concurred with Blair, J.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    ESSEX v. ESSEX.
    Corporations — Unissued Stock — Sale—Fraud—Setting Aside.
    A sale of unissued stock in a corporation, at a grossly inadequate price, for the purpose of perfecting the control of the corporation, by the majority and the purchaser, of which facts the purchaser has knowledge, is a fraud on the minority stockholders, and will be set aside.
    Appeal from Wayne; Donovan, J.
    Submitted April 6, 1905.
    (Docket No. 37.)
    Decided September 19, 1905.
    Bill by George B. Essex and others against John H. Essex, Randall H. Mitchell, Henry C. La Flamboy, and the G. B. Essex Brass Company to set aside the sale of certain stock. The defendant company filed a cross-bill asking for an accounting. From a decree for complainants, and dismissing the cross-bill, defendants appeal.
    Affirmed as to the original bill, and reversed as to the cross-bill.

      Gray & Gray, for complainants.

      Lodge, Trevor & Brown (Corliss, Leete & Joslyn, of counsel), for defendants.
   Montgomery, J.

The G. B. Essex Brass Company was organized in 1900. It was originally intended to organize with capital of $45,000, of which one-half was to be subscribed and paid in. The subscription of the complainant George B. Essex was to be paid by turning in to the company certain patents at a price of $7,500. It was found on investigation that as the law then stood the entire capital stock must be subscribed. Each of the subscribers doubled his subscription, but when the stock was issued there was in fact issued to each subscriber one-half of the stock subscribed by him as full paid stock. The remaining one-half of the shares were not issued. The business of the company was from the first prosperous, so that in May, 1904, while no dividends had been paid, the earnings had amounted to more than $27,000, and the book value of the stock was something more than $22 per share. Allowing for depreciations, the stock was apparently worth nearly if not twice double its par value. At this time there was friction in the board of directors. Complainant G. B. Essex was treasurer and general manager, the defendant J. H. Essex was president, and the defendant Mitchell secretary. The three constituted the board. It was suggested that a lot adjoining the company’s plant be purchased for the purpose of building a foundry thereon. Complainant G. B. Essex was at first opposed to paying for the purchase of this lot, and asserted arbitrarily that he would not honor a check for the same. Later on, however, after defendants Essex and Mitchell had opened negotiations for a sale of stock to La Flam-boy, complainant G. B. Essex offered to pay for the lot if purchased. On May 31st the defendants Essex and Mitchell negotiated a sale of 525 shares of the unissued stock to defendant La Flamboy at par. This bill is filed by the other stockholders to set aside this sale as made in fraud of their rights. It is complainants’ theory that this unissued stock is to be treated as a new issue of stock, authorized by an increase of the capital stock, and that, within the principle of Hammond v. Illuminating Co., 131 Mich. 79, the then present holders of stock were entitled to have assigned to them for purchase at par their just proportion of the new shares. It is further charged that the issue of these shares at the inadequate price received was not for the purpose of raising needed funds, but was in reality for the purpose of placing this stock in the friendly hands of one who would continue the authority of the defendants Essex and Mitchell in the management of the corporation, and that this purpose was understood and assented to by the defendant La Flam-boy.

The defendants contend that the purchase by La Flam-boy was in good faith, that the stock is not to be treated like a new issue, but as treasury stock, and that as such it might lawfully be sold to any one who might choose to buy it. We find it unnecessary to decide whether in any circumstances this stock might in good faith and in the interests of all the stockholders have been issued at a fair price by the directors without first offering the stock to the then shareholders. We aré satisfied that the controlling purpose of this sale to La Flamboy was, not to replenish the treasury nor raise money to buy the lot in question, but was to enable the defendants to increase their voting power sufficiently to give control of the corporation to themselves and La Flamboy, with the expressed object of continuing themselves as directors. La Flamboy understood and assented to this. We are also convinced that the anxiety to effectuate this purpose led to a sale of this stock at a grossly inadequate price. A sale induced by such motives and working an injury to the other stockholders ought not to be permitted to stand. Way v. Grease Co., 60 N. J. Eq. 263.

It is contended that defendant La Flamboy purchased in good faith, and that the remedy, if any exists, is by an action against the directors. We are satisfied that there were abundant facts known to La Flamboy to put him on inquiry. The book value of the stock was more than double the price paid by him, and it must have been known to him that the controlling motive of the defendants Mitchell and Essex was to place the stock with one who would co-operate with them.

The defendant company filed a cross-bill against George B. Essex, and appeals from the decree which granted the relief prayed in the original bill and dismissed the cross-bill. It appears that George B. Essex, in October, 1901, caused a credit of $750 to be entered in his account upon the books of the company for a transfer of two certain patents to the company. The preponderance of the testimony sustains the claim of defendant that these patents were considered and allowed for at the time of the incorporation. It also appears that in a certain deal with one Deare, by which G. B. Essex acquired his stock, Essex took credit for $120.06 due Deare for wages. It is stated in the brief of counsel that Deare has sued the company for this sum.

The cross-bill will be dismissed as to this item without prejudice, but as to the credit of $750 improperly made to George B. Essex the cross-bill is sustained, and the latter will be required to account. Complainants will recover costs against defendants, and the defendant company will recover its costs against complainant George B. Essex, including one-half the cost of printing record and briefs.

Carpenter, McALVAy, Grant, and Hooker, JJ., concurred.


author: Hooker, J.

text:
    LINDSAY v. WABASH RAILWAY CO.

    1. Assault and Battery — Pleading—Variance.
    An ordinary declaration in trespass vi et armis, without averment of the special facts, will justify proof of an assault and battery by a railroad conductor on a person persisting in an attempt to re-enter a train after being ejected for nonpayment of fare; the surrounding circumstances, however, are competent proof, and may constitute a justification of the assault.
    2. Same — Damages—Mental Disorder.
    A simple declaration in trespass vi et armis, alleging mere physical injuries in the ordinary form, will not support a claim of damages for aggravation of a mental disorder, nor for negligence of defendant in failing to discern plaintiff’s defective mental condition before assaulting him.
    3. Carriers — Passengers—Ejection from Train — Assault.
    Where, after being ejected from a train for refusal to pay fare, a person has boarded the train a second time and been put off, and has seized the hand rail of the rear coach and is trying, as the train moves away, to get aboard the third time, and the conductor fails in an attempt to loosen his grip and push him away, the conductor is justified in striking him a blow sufficient to dislodge him.
    4. Same — Question for Jury.
    The conductor having lost his balance and fallen from the train with the trespasser, whether he was justified in striking him again while on the ground was a question for the jury dependent on the circumstances.
    5. Assault and Battery — Issues—Elements of Recovery.
    Where a declaration in trespass for assault and battery does not claim damages for an aggravation of an existing mental disorder, and the evidence shows that the assault was committed by a railway conductor while ejecting plaintiff from a train for his refusal to pay fare, and was justified, with the exception of an alleged blow given after plaintiff was off the train, and there is no evidence showing the violence of this blow, or that it affected plaintiff’s mental condition, evidence of plaintiff’s subsequent mental condition is inadmissible.

      Error to Lenawee; Chester, J.
    Submitted April 14, 1905.
    (Docket No. 80.)
    Decided September 19, 1905.
    Trespass vi ét armis by Thomas Lindsay, an incompetent, by his next friend, against the Wabash Railway Company. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Watts, Smith & Baldwin, for appellant.

      John E. Bird and John L. O’Mealey, for appellee.

       Rehearing denied January 23, 1906..

   Hooker, J.

The plaintiff’s declaration is in trespass vi et armis, and alleges that he attempted to enter defendant’s train at Milan, Mich., as a passenger, when one of defendant’s servants, acting within the scope of his employment as conductor of said train, attempted to and did prevent his entering the train, and pulled and dragged him about, and struck him many blows with his fists, and choked him, by means whereof the plaintiff then and there became and was greatly hurt, cut, bruised, and wounded in and about his head, neck, hands, arms, and legs, and became and was sick, sore, lame, and disordered, and so remained and continued for a long space of time, to wit, one month then next following, and during all of which time plaintiff was deprived of social enjoyment with his friends, and suffered great bodily pain and distress, and was obliged to undergo medical and surgical treatment.

Defendant’s brief states that there is no allegation in the declaration that the plaintiff was mentally unsound, and no claim for damage by reason of the aggravation of his mental disease occasioned by the treatment complained of. The defendant pleaded the general issue, and added a notice that, if plaintiff was assaulted, it was by reason of his persistent attempt to ride upon defendant’s car without paying his fare.

The testimony given upon the trial shows that prior to May 15, 1902, plaintiff lived at St. Louis, Mo., and had been a conductor upon the Missouri Pacific Railroad, but, showing symptoms of softening of the brain, he was discharged. On May 15,1902, he moved with his family to Port Huron, Mich., and on May 29th he took a train at Port Huron and went to Detroit, and the same afternoon he left Detroit on the defendant’s train. While occupying a seat in the sleeper the conductor asked him for his ticket, and he replied that he had none. He said he was going to St. Louis. The conductor told him that he would have to pay his fare to Montpelier, and change at that place for the St. Louis train. He then said that he had no money, and was told that he would have to get off at Milan. The train stopped at Milan, and he was asked to get off; but he did not, and the conductor lifted him to his feet, when he walked out. The porter took out his grips. The train started, but was again stopped because plaintiff attempted to get on board. When the train started again, the conductor got upon the rear platform of the diner, the last car on the train. The plaintiff took hold of the railing, and the conductor was unable to loosen his grip. The train was gaining speed, and the conductor struck him on the jaw or side of the face, and in so doing lost his balance, and both fell to the platform. The conductor got up and caught the train, which proceeded on its way. The plaintiff’s counsel claim that the plaintiff was upon the first step of the car, and that the conductor struck plaintiff after they fell from the car. The foregoing is defendant’s version of the affair. Plaintiff’s counsel say that, when the porter saw that the plaintiff was going to try to get upon the train after being ejected, he closed the doors to the vestibule of that car, which made it impossible to get on there, but that he then got on the first step of the rear entrance of the diner, holding his baggage in one hand, and holding onto the hand rail with the other. The train was moving five or six miles‘an hour, when the conductor felled him by a severe blow behind the ear, and he fell upon the station platform upon his face, the conductor falling upon him. A lady witness testified that she thought he struck him after he fell upon him. The conductor then got up and got upon the train. Plaintiff got up and sat down by a restaurant near by, pale, and with chin and knuckles bleeding. One day later, May 30th, he took the train at Milan. He did not pay his fare, and was put off at Cone. He stayed there until evening, when he took a train to Britton. He was taken from Britton to the Hotel Gregg at Adrian, where he stayed until the following Monday, when his wife took him to Port Huron, where he remained until July 11th, when he was taken to the Pontiac asylum.

The declaration contained no hint that plaintiff was an ejected passenger seeking to re-enter the cars. Neither did it indicate that he was mentally disordered, or claim damages for the causing or aggravation of any mental disorder. We are of the opinion that the simplest kind of a declaration in trespass vi et armis would have justified the proof of the encounter, and of any physical injuries inflicted upon the plaintiff, and that it was not necessary to allege in the declaration the facts of his effort to ride, his refusal to pay fare, his ejection, and persistent effort to board the train. Those matters were competent proof, and might constitute a justification of the assault; but there was no variance between pleading and proof in that regard.

It was not competent under this declaration to claim or prove damages for aggravation of a mental disorder, and, if plaintiff claimed damages for negligence of the conductor in failing to discern his infirmity, the declaration was not such as to support such claim. Plaintiff’s counsel say that they disavowed a claim for such damages, and that the court did not permit their recovery.

Under the undisputed proofs in this case the conductor was justified in doing all that he did to the plaintiff, except to strike him after he fell upon the platform, if he did so. Whether or not a blow was then justifiable may have been a question for the jury, dependent upon the circumstances and emergencies of the situation.

Error is alleged upon the admission of proof from which the jury may have found that a pre-existing mental disorder was aggravated by the conductor’s assault; the declaration containing no hint of such a claim. According to the proof received, the plaintiff was previously mentally disordered, in fact deranged, and became worse after-wards, and the claim was made that his disorder was aggravated by the assault. We have already seen that under the proofs the only fault that can be justly ascribed to the conductor was the blow said to have been given after the men fell from the train. Not only is it far from clear that such blow was given, and, if given, that it was not necessary or justifiable under the circumstances, but there is no proof whatever as to the character or violence of the blow, or that tends to show that it had any such effect upon plaintiff’s mental condition. If there was any aggravation of such disorder, it is much more likely to have been caused by the justifiable blow dislodging plaintiff from the train than from this questionable act of the conductor upon the platform. It has been held in several cases that such proof is not admissible, and that such damages are not recoverable unless alleged in the declaration. See Thurstin v. Luce, 61 Mich. 298; Wilkinson v. Spring Works, 73 Mich. 409; Hunter v. Village of Durand, 137 Mich. 53; Phippen v. Railway Co., 110 Mich. 351.

The court stated that “nothing was claimed, except a straight assault and battery, and that nothing could be claimed for plaintiff’s mental condition; that he stood there in the case as if he were mentally sound.” Yet his mental condition both before and after the occurrence was shown, and a physician was permitted to testify, in substance, that a blow on the head would be likely to aggravate the disorder.

It is urged that it was competent to show his previous condition and appearance as affecting the question of the reasonableness of the conductor’s conduct; but, if this be so, it was not competent to show plaintiff’s subsequent condition by the hotel keeper who saw him two days later, or to make such proof as that given by the physician referred to.

There are other assignments of error, but we think it unnecessary to discuss them, as the question may not arise upon another trial.

The judgment is reversed, and a new trial ordered.

Moore, C. J., and Carpenter, McAlvay, and Ostrander, JJ., concurred.


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    DOUGLAS v. MARSH.
    1. Trial — Opening Statement — Case Made.
    Counsel cannot, in his opening statement, cover a case not made in the declaration.
    2. Pleadings — Duplicity—Objection—How Raised.
    Duplicity in a count cannot be made the subject of objection at the trial, but should be made the subject of special demurrer.
    3. Same — Two Theories in One Count.
    Though it is better pleading to set out two possible theories in separate counts, unless one averment negatives the other, the objection of duplicity is not tenable.
    4. Master and Servant — Personal Injuries — Servant of Independent Contractor — Liability of Owner of Premises.
    Under certain circumstances the owner of premises may be liable for injuries resulting to an employé of an independent contractor by reason of defects in the premises. The liability does not exist in all cases where the premises or machinery are out of repair, neither does it grow out of the contract with the occupant, there being no privity; nor does it arise, ordinarily, where the defeot is open, or known equally to the tenant or occupant, if it does not amount to a public nuisance.

      5. Same — Injuries to Servant — Declaration — Alternative Allegations — Special Demurrer.
    Where a declaration, in an action for personal injuries, alleges that defendant employed plaintiff in a sawmill; that it was defendant’s duty to provide a safe steam boiler to operate the mill; that if a third person was using a steam boiler in the business of defendant, under contract with him or otherwise, it was defendant’s duty to furnish a safe boiler; and that defendant negligently furnished a defective boiler which exploded, injuring- plaintiff, the objection that it alleges the existence of the relation of master and servant between defendant and plaintiff, and also alleges that defendant occupied the relation of owner of premises toward plaintiff, can only be reached by special demurrer, and not by motion for direction of a verdict.
    Error to Osceola; McAlvay, J.
    Submitted April 27, 1905.
    (Docket No. 100.)
    Decided September 19, 1905.
    Case by Adelbert E. Douglas, by his next friend, against Henry W. Marsh for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Charles A. Withey (C. H. Rose and J. E. Richardson, of counsel), for appellant.

      Frank L. Fowler (A. J. Dovel and Hal. L. Cutler, of counsel), for appellee.
   Montgomery, J.

The plaintiff brought suit to recover for personal injuries. The material averments of his declaration are quoted:

“For that, whereas, the said defendant heretofore, to wit, on the 11th day of January, 1904, and for a long time prior thereto, controlled and operated a certain sawmill, in connection with which he then and there had, for the purpose of supplying steam to operate said sawmill, a certain steam boiler, in the township of Hartwick, county and State aforesaid, for the purpose of manufacturing saw logs into lumber, etc. In the prosecution of said enterprise, at the place and time aforesaid, the defendant employed various persons, among whom was said plaintiff, Adelbert E. Douglas, who was then and there engaged in working for the defendant for hire in defendant’s said sawmill, in the capacity of slab sawyer.
“ Whereupon it became and was the duty of said defendant to so equip, conduct, and operate his said sawmill, and so conduct his business in connection therewith, that no unusual risk or hazard should attend the work of said plaintiff, and to that end it then and there became the duty of said defendant to use in connection with said mill a good, strong, safe, and sufficient steam boiler, and to employ a well-qualified, good, and efficient man to act as fireman and engineer, to make and keep up steam, and attend to the same, and everything in connection therewith pertaining to said boiler, while operating the same in connection with said sawmill, and to have upon, about, and for use in connection with the said steam boiler all the usual, necessary, and expedient appliances, attachments, and contrivances, such as water glasses, steam gauges, low water or danger signal whistles, steam pipes, etc., and to have the same and every part thereof at all times in good order and working condition.
“And if any other person or persons was or were then and there operating said mill and using said steam boiler and the other appliances aforesaid in the business of said defendant, under contract with him or otherwise, it then and there became the duty of said defendant to furnish for the use of such person or persons a good, strong, safe, and efficient steam boiler, and all of the aforesaid connections, appliances, and attachments in good working order and safe and efficient condition, all of which said several duties the defendant, at the time and place aforesaid, neglected and carelessly failed to observe, and failed to furnish the boiler and other appliances named above in the condition there stated, and failed to have the same in his said sawmill, but, on the contrary thereof, then and there furnished and supplied for use in and about his said sawmill, and then and there had in use in and about his said sawmill, an old, poor, weak, insufficient, and dangerous steam boiler, which had been at various times before that patched in, to wit, three different places, and had to the knowledge of said defendant before that been condemned as unfit and unsafe for use by persons skilled in the art of inspecting and using steam boilers, and then and there also furnished and supplied and had in use in said sawmill, in connection with said steam boiler, poor, improper, insufficient, and dangerous appliances, connections, and attachments, such as water glass or glasses, steam gauges, and low water signal whistle, so that said steam boiler could not be safely and well operated, and then and there also negligently had in the employ of said defendant, as fireman and engineer, or both, one L. L. Noyes, who was, at the time and place aforesaid, in charge of said steam boiler, and whose duty it was to look after, attend to, and operate the same; he, the said L. L. Noyes, being then and there, to the knowledge of the said defendant, incompetent, careless, and unfit for that position and service.
“Because and on account of which several acts of negligence on* the part of said defendant, some or all of them, the said steam boiler, at the time and place aforesaid, exploded with great and extreme force and violence, thereby disrupting and tearing to pieces the shell and other portions of said boiler, and scattering them about in fragments, by means of which the building in which defendant’s said boiler and sawmill were then and there located was torn down and to pieces, and blown about, and said infant plaintiff, Adelbert E. Douglas, was then and there struck by some portion or portions of said steam boiler, or of said mill building, or other things or substances then and there put in motion by said explosion, and badly cut and bruised about the head and face, and in or near the left eye of said plaintiff, and was also then and there terribly burned by the steam or hot water, or both, which then and there escaped from said boiler and upon and against the said plaintiff.”

The plea was the general issue. On the trial, plaintiff’s counsel, in his opening statement, followed the lines of his declaration, and stated, in effect, that he was unable to state whether the plaintiff was working for defendant or one Scotford. At least, we so interpret the statement; but whether we are placing too narrow a construction on this claim or not is, in our opinion, quite immaterial, for we agree with the circuit judge that the opening statement could not cover a case not made in the declaration. On defendant’s motion, the court, after the opening statement had been made, directed a verdict for the defendant. The grounds of this direction were stated by the circuit judge as follows:

“The objection is made by the defendant, upon the ground stated, claiming that the declaration in this case is not sufficient, does not allege specifically a sufficient cause of action, and does .not apprise the defendant in this suit upon what his liability is based; it being alleged that the relation of master and servant existed, and also an allegation in connection with that, alleging either alternatively or disjunctively a different relation, which would be the relation of owner to a lessee or contractee. And the claim is made that on account of these allegations being different, as far as any liability, if any existed on the part of the defendant, is concerned, and it not appearing to the defendant at this time, upon the pleadings, what liability is claimed as against him will be relied upon, whether he is the master in relation to the plaintiff, or was at the time of the injury, or whether he sustained the relation towards him of owner of the premises and not as a master. * * *
“ It appears to me that the pleading is not such a pleading upon which a court should allow the plaintiff to go to trial; in other words that it is specific and sufficient, and within the rules of pleading, and the court cannot see his way clear to allow the case to proceed upon such a pleading, and that the court ought not to wait, and it would not be the proper thing for the court to wait, until all the proofs were in on the part of the plaintiff, and then for the court to say what relation existed between these parties, or what would be the nature of the liability, if any, of the defendant in this suit.”

It will be noted that the objection made was not that there was any technical failure to aver sufficient facts to establish a liability on the part of the defendant as owner, but the distinct point ruled was that the declaration, being in the alternative, was too uncertain in its statement to sustain a verdict. It is the settled rule that duplicity in a count cannot be made the subject of objection at the trial, but should be made the subject of special demurrer. 7 Enc. PI. & Prac. pp. 243, 244. See, also, Fuller v. City of Jackson, 82 Mich. 480. It would have been better pleading to set out the two possible theories in separate counts; but unless the one averment negatives the other, the’ objection of duplicity was not good.

It is conceded by defendant’s counsel that under certain circumstances the owner of premises may be subject to an action for injuries resulting to an employe of an independent contractor by reason of defects in the premises. The authorities sustain this view. It is true that liability does not exist in all cases where the premises or machinery are out of repair. Such liability does not grow out of the contract with the occupant, for as to this there is no privity. Nor does it arise, ordinarily, where the defect is open, or known equally to the tenant or occupant, if such defect does not amount to a public nuisance. See, on this subject, Johnson v. Spear, 76 Mich. 143; Lake Superior Iron Co. v. Erickson, 39 Mich. 492; Kern v. Myll, 80 Mich. 525, 94 Mich. 477 (8 L. R. A. 682); Samuelson v. Mining Co., 49 Mich. 164; 4 Thompson on Negligence, § 3736; Fowles v. Briggs, 116 Mich. 425; Griffin v. Power Co., 128 Mich. 653 (55 L. R. A. 318); Brady v. Klein, 133 Mich. 422 (62 L. R. A. 909). For conflicting views as to what nonfeasance of the landlord is actionable, see Willcox v. Hines, 100 Tenn. 538 (41 L. R. A. 278); O'Malley v. 25 Associates, 178 Mass. 555.

The plaintiff’s counsel contend that, it being true in law that the owner, as such, is in some circumstances liable, even though the work upon the premises be performed by an independent contractor, the averments in this declaration amount to no more than an assertion that the plaintiff does not rely upon the relation of master and servant. To this it is replied that the declaration does not set up sufficient facts to show that the defendant, as owner, was guilty of negligence of which the plaintiff as an employé of Scotf ord can complain. If this question had been raised by demurrer — possibly if it had been distinctly raised and made the ground of the court’s ruling on the trial — it would be of considerable force. But if it had been raised on the trial the declaration could have been amended, and it cannot be presumed either that plaintiff would have failed to supply the defect, or that the court would have refused to permit the amendment. Ross v. Township of Ionia, 104 Mich. 320. This infirmity was not, however, pointed out. We are constrained to hold that such of the defects as were made the subject of a distinct ruling by the court were of a character only subject to attack by special demurrer. We think the court erred in directing a verdict.

The judgment is reversed, and a new trial ordered.

Moore, C. J., and Grant, Blair, and Ostrander, JJ., concurred.


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    PERE MARQUETTE RAILROAD CO. v. WABASH RAILROAD CO.
    1. Chancery Appeal — Jurisdiction—Equitable Controversy-Question Raised Below.
    A bill as filed contained a prayer for a temporary injunction to restrain defendant’s interference with complainant’s rights under contracts of which construction was sought by the bill, but by agreement between .the parties the injunction was rendered unnecessary and the cause was litigated on the merits by all parties. Held, that an objection by defendant, on appeal, that the bill was filed solely to obtain construction of a contract, and was not within any recognized branch of equity jurisdiction, and for that reason should be dismissed, would not be considered.
    2. Railroads — Terminals — Joint Occupancy — Leases — Construction.
    The rights of a railroad company under its lease of terminal facilities from a union station company cannot be measured or affected by a subsequent lease by the station company to another railroad company.

      3. Same — Lease—Construction.
    The rule that where a lease is susceptible of two constructions, that most favorable to the lessee must prevail, cannot be invoked where the intention of the parties can be determined from the language of the instrument when examined in the light of the surrounding conditions and circumstances.
    4. Same — Terminals—Lease—Construction.
    Certain leases and terminal agreements between a union station company and several railroads examined, and held, ■that certain reservations in the lease of the railroad company first to avail itself of the facilities offered by the station company, were made for the benefit of the station company through leasing rights to other railroads; that the railroad companies were tenants in common of a certain ferry slip contemplated but not built until after execution of the lease; that such first company had not title under its lease to land and tracks constituting a connecting railroad; and that rights recognized by the terminal agreement were not merely created for the life of that agreement, but existed in perpetuity.
    Appeal from Wayne; Brooke, J.
    Submitted May 4, 1905.
    (Docket No. 137.)
    Decided September 19, 1905.
    Bill by the Pere Marquette Railroad Company against the Wabash Railroad Company and the Detroit Union Railroad Depot & Station Company to determine the rights of complainant in certain contracts and leases. From a decree for complainant, defendant Wabash Railroad Company appeals.
    Modified and affirmed.

      Frederick W. Stevens {Benton Hanchett, of counsel), for complainant.

      Alexander L. Smith and C. N, Travous (Wells H. Blodgett and Alfred Bussell, of counsel), for defendant Wabash Railroad Co.

      Angelí, Boynton, McMillan & Bodman, for defendant Detroit Union Railroad Depot & Station Co.
   Hooker, J.

The controversy in this cause is over the rights of the complainant in and to the use of certain railroad property in the city of Detroit as against the claims of the Wabash Railroad Company. Both companies’ rights, whatever they are, rest upon leases from the Detroit Union Railroad Depot & Station Company, except as such rights have been modified by agreements between themselves. These companies use the station of the Detroit Union Railroad Depot & Station Company, which they approach over tracks upon its property, and there are terminal facilities which both claim a right to use. The Wabash Company denies the claims of the complainant, if it does not impede the complainant in its use of such facilities. It is stated that, when the bill was filed, the Wabash Company had threatened to obstruct complainant’s free use of the property, and that the bill as originally filed contained a prayer for a temporary injunction, but that an arrangement was made between the parties for the joint use of the property during the litigation, which made its issue unnecessary.

Counsel for the Wabash Railroad now urge that the bill is filed for the sole purpose of obtaining a construction of the contracts of the parties, and is not within any recognized branch of equity jurisdiction, and ask that the bill be dismissed upon that ground. The point is not raised by demurrer, but after full hearing upon the merits, and we do not discover that the point was made in the trial court.

The contracts involved are four: A lease to the Wabash, St. Louis & Pacific Railroad Company, to whose rights the defendant Wabash Railroad Company succeeded; a lease to the Mint & Pere Marquette Railroad Company and the Detroit, Lansing & Northern Railroad Company, joint lessees; a supplemental lease to the Wabash, St. Louis & Pacific Company; and a contract between the three railroad companies mentioned, called the “Terminal Agreement.” The leases were made, in the order above stated, by the Detroit Union Railroad Depot & Station Company, a corporation organized under a statute permitting the incorporation of union depot and station companies, designed to facilitate the entry of railroads into cities. See 2 Comp. Laws, § 6356 et seq. The object is stated in said section as follows:

“ For the purpose of acquiring the necessary station grounds and constructing and maintaining railway freight and passenger depots in cities and villages, with the necessary railroad tracks and other accommodations to make suitable and proper connections with all railroads terminating in or passing through such cities or villages that may desire access to such depot; and also all necessary buildings for the convenience and accommodation of all business usually pertaining to such depots.”

Section 28 of the act provides:

“All companies formed under this act shall, for a reasonable compensation, provide suitable depot accommodations for the passengers and freight of the railroads terminating or connecting with it, or desiring access thereto, and shall provide suitable tracks therefor, without discrimination in favor of or against any of such roads.”

The object is stated in the articles of association thus:

“For the purpose of acquiring the necessary station grounds, and constructing and maintaining railway, freight, and passenger depots in the city of Detroit, county of Wayne, and State of Michigan, with the necessary railroad tracks and other accommodations to make suitable and proper connections with all railroads terminating or doing business in or passing through said city that may desire access to such depots, and for the purpose of constructing all necessary buildings for the convenience and accommodation of all business usually pertaining to such depots, and for the purpose of operating business upon such railroad tracks.”

They also show a purpose to build a connecting railway—

“To ornear the point where the Detroit, Butler & St. Louis Railroad right of way touches the right of way owned or operated by the Lake Shore & Michigan Southern Railroad Company, and to a connection with the track of the said Detroit, Butler & St. Louis Railroad at or near that point.”

The Detroit, Butler & St. Louis Railroad is the railroad over which the Wabash has always reached the city of Detroit. Also an intention to construct tracks “ to a point of junction with the Detroit, Lansing & Northern Railroad,” and “for the purpose of securing a convenient access for the Detroit, Lansing & Northern Railroad Company * * * to and into said depot grounds in the city of Detroit.” The company last named is one of the predecessors of the Pere Marquette.

The first lease was made in October, 1881, and at this time no terminal had been constructed. There was no ferry slip, wharf, elevator, or station. There were no tracks in the yard, and the four miles of railway, mentioned in the record as “the connecting railway,” were yet to be built. The station company owned a piece of land bounded north by Woodbridge street, south by the Detroit river, and extending approximately from Twelfth to Eighteenth streets. Broadly stated, the object of the lease of October, 1881, was to provide terminal facilities for the Wabash road, including access to the Detroit river for wharfage and ferriage, and connection between the terminal and Wabash road four miles distant; also access to an elevator which the station company proposed to construct and operate. The next agreement affecting the premises was the lease to the Flint & Pere Marquette and Detroit, Lansing & Northern Railroads, to whose rights the complainant has succeeded. It is claimed, and must be admitted, that the complainant’s lease was ineffective to convey greater rights than the station company had left after making its lease to the Wabash Company. A reference to the annexed map will facilitate an understanding of this lease.

The'entire parcel represents the ground owned by the station company, when it made the lease to the Wabash Company. It does not include the four miles of connecting railway, nor does it include the land upon which it built the Third Street passenger station and the immediate approaches thereto. The Wabash instrument contains a lease of the southerly portion of the land shown on the map, comprising the parcels, “o,” “x,” and “y,” and the ferry slip, “a,” not then constructed. The reservations that follow and limit the lease are:

1. A tract of land 400 feet long and 100 feet wide. This is the elevator parcel marked “ o.”
3. A space for a double track to and from the elevator, about as indicated on.the map.
3. Land for a single track around the elevator for the return of cars.
4. “From the west end of the easterly 1,000 feet of the wharf, which shall be for the exclusive use of the party of the second part [i. e., the Wabash Company], westward to the proposed slip [Grand Trunk] for ferryboats, or to a point about 500 feet from the westerly boundary line of the tract.”
5. “The wharf, to the width of 60 feet from the river front back, shall also be reserved, so far that all companies using the depot and station grounds shall have the right to use the same in common * * * in the course of their business ” with each other and the Wabash Company.
6. Space necessary for certain tracks specified, to approach the wharf and other purposes, for common use.
7. “ The common right to use the tracks to the ferry slip * * * is also reserved.”
8. If neither of roads, Detroit, Lansing & Northern and Flint & Pere Marquette, obtain rights of the station company, it (the station company) to have the right to use as its own two-thirds of the (west) thousand feet of wharf reserved for joint use of all companies which may use the station grounds, and if only one of said companies does so to the extent of one-third, and shall have the right to grant such use, by way of lease or otherwise, to third parties or other railroads; access thereto being provided for.

Before referring to other provisions of the Wabash lease, we will examine complainant’s lease as regards these premises. It leases to the complainant all of tract “ xx,” the same being separated for nearly its whole length from the Wabash parcel by the strip “z,” 65 feet wide. It quotes the reservation in the Wabash lease and gives the right to a common use of all the tracks, wharves, etc.,

provided for in the reservation in the first lease, and expressly grants “all such rights as have not been granted to the Wabash, St. Louis & Pacific Railroad, and for all purposes therein stated; it being understood that all tracks and rights of way hereby granted and leased are for the joint use of the parties hereto and the said Wabash, St. Louis & Pacific Railroad Company.”

We will next examine these two leases with reference to the four-mile right of way upon which the connecting railway is built. That is a tract of land 60 feet wide, and furnishes access for both roads to the terminal yard and station. The Wabash lease contains an agreement on the part of the station company to obtain a right of way wide enough for four tracks in fee simple, and to lease the same to the Wabash, subject to the reservation herein made, and to build upon said right of way a track or tracks, single or double, as the Wabash Company should desire, from its railroad to the station grounds.

“This right of way is leased with this understanding and reservation: That in case other parties shall desire to use the station grounds, and the station company shall build a track, single or double, for them, on said right of way, or to connect with said tracks for joint and common use of them on said right of way, it shall have the right to do so.”

The lease to the complainant’s predecessors grants to them jointly one-half of the right of way 60 feet wide, together with the right to use jointly with the Wabash that part crossing certain railroads mentioned. It then contains this provision:

“The said right of way and rights in this clause described shall be used in common; the one-half part by the parties of the second and third parts hereto, and the one-half part thereof by the said Wabash, St. Louis & Pacific Railroad Company or its successors.”

We have referred to the provisions of the two leases, that the claims of the respective parties may be the better understood. The tracks, buildings, etc., have been built as contemplated by the parties, and two ferry slips are in use; one where shown on the map, and the other is near to it, though it is but partially, if at all, upon the land included in the first lease. Both were constructed by the station company. It also appears that many spur tracks, leading from the tracks upon the 60-foot right of way, called the “ connecting road,” to manufacturing and other plants along its line on both sides, have been built. There are two main tracks upon the connecting road, extending from Del-ray to Seventeenth street. The Pere Marquette claims that the two main tracks and the spurs and sidings built prior to 1894, except one, are owned in common by the two railroad companies, subject to the station company’s rights, and that said two companies have a common interest in the right of way of the connecting railway. It also claims the right to the joint use of the slips. The Wabash denies these claims.

We pass by the technical point made over the question of jurisdiction. Had it been made by demurrer, as it might have been, we should hesitate before overruling it; but there is a genuine controversy here, which equity can best settle, and both parties have seen fit to litigate its merits. Moreover, while an injunction has not issued, its necessity is apparent, if complainant’s claims are just, and, considering the opinion of the circuit judge, we feel warranted in saying that it would doubtless have been allowed, but for the temporary arrangement to avoid it, which has substantially the same effect. We think that we should not insist on the empty form of an amendment of the bill and the issue of a temporary injunction, or an allegation of threatened obstruction and a prayer for a permanent restraining order. It is apparent that the threatened obstruction is imminent and the latter a necessary relief, if complainant is right in its claim.

We have already said that the rights conveyed to the Wabash Company are not to be directly measured or affected by the subsequent lease to the complainant. Of itself it cannot lessen them. We will therefore discuss the first lease with a view to ascertaining what rights the Wabash Company has under it, as against both defendants ; for the rights of the station company are involved, and it is before the court, being in sympathy with the complainant’s claims, and asking that the decree from which its codefendant has appealed be affirmed.

Counsel for the Wabash Company say that there is no ambiguity in the terms ‘Of this lease, and that, if it is susceptible of two constructions, the one most favorable to the lessee must prevail. We recognize that as a rule of construction within proper limits, but we think it should not be invoked, where the intention of the parties is determinable from the language used, when examined in the light of surrounding conditions and circumstances.

The Wabash Company was the first to avail itself of the opportunity afforded by the Union Station Company’s project. By its lease it secured certain exclusive ;rights in depots, warehouses, the wharf, etc., and probably in some of the tracks laid upon the land which was unqualifiedly leased to it. On the other hand, it obtained merely a right to use other parts, such as the ground upon which the elevator and elevator tracks, and return tracks were laid; for such land was reserved in clear and unmistakable language. We are of the opinion that there was a clear reservation of the land or space for the ferry tracks, and that from the west end of the easterly 1,000 feet of the wharf, westward to the proposed ferry slip, also the wharf, and for such other tracks as should become necessary for its use, and for the connections of all companies which should acquire from the station company the right to use the depot and station grounds. This was more than a covenant on the part of the Wabash Company to permit other companies to use these things, and more than an attempted reservation by the station company to certain third parties. It was a reservation to the station company itself for its own benefit, through leasing rights to other railroad companies, which its organization contemplated, and the lease plainly indicated its intention to do.

The lease in question required the station company to build' certain structures, wharves, etc' Among these was the Grand Trunk ferry slip. That was not specifically mentioned in the reservation, but it was included in the plans agreed upon, and the station company constructed it. In our opinion it was one of the terminal facilities, which, like the wharf and depot, was understood to be for common use. The object of the station company’s organization and its patronage by the Wabash and other roads may reasonably be said to have included facilities for Eastern connections and through traffic, east and west; and, as the right reserved to use the tracks to the slip would manifestly be confined to a use consistent with the use of the slip, preventing use for other purposes, it would be valueless, except in connection with the use of the slip. The contention of the Wabash Company that it must alone provide ferries and transport complainant’s cars for compensation cannot prevail. There is nothing in the lease making such a limitation, and it might as well be claiméd that it should control the approaches in a similar way. . That would not be a “common use.” With the question of inconvenience in the use of the slip we have nothing to do. The parties must, by agreement or otherwise, adjust their use of these facilities in some lawful way. Until they .do, they have the rights of tenants in common.

At the time the first lease was made the station company contemplated building a passenger station upon a portion of its property, and it is clear that it expected that-its codefendant and complainant’s predecessors, as well as other roads, might have access to it over the whole or a portion of the four-mile connecting road which it expected to provide. It afterwards changed the location and built its depot at Third street, but has used the connecting road for access to it, and all trains have entered over it. As in the case of the station ground, the writing contains a provision for leasing to the Wabash Company the entire right of way, and it would necessarily be so construed, but for the later provision that “the said right of way is leased with the understanding and reservation.” Then follows the statement that the station company may provide tracks for other railroads desiring it, and the lease provides for an abatement of rent in favor of the Wabash Company upon the happening of such event. No one disputes that the lease to the complainant gives it the right to use the track built for it upon the north half of the right of way; but the Wabash Company contends that it conveys no title, but only a right to run its trains over the track, and this not exclusive, and that the title of the land and the track, including spur tracks, is in the Wabash Company by virtue of its lease. We are convinced, from the nature of the transaction and the relation of the parties, that it was not the meaning of the lease to convey the entire right of way to the exclusion of the station company, which undertook to reserve the right to use it for other railroads in accordance with the plan of its organization. The lease might have been more carefully drawn. Yet, when we consider all of its parts, it seems apparent that it was not the design that the Wabash Company should have possession and use it all. It was to have one or two tracks, and, while its rental was based on the cost of the entire right of way, that was to continue only until the time when the station company should make arrangement for the use of the remainder over and above the portion to be used by the Wabash Company. When this was done, the rent was lessened in proportion, in which the Wabash Company acquiesced, as well as in the user by the complainant road.

Indeed, this is a construction too favorable, perhaps, to the Wabash Company, as it implies an exclusive right to the southerly half of the right of way, while there may be some doubt if this was intended, and whether it was not the original design to make the connecting main tracks, at least, subject to common use. When we consider the necessary expectation that spur tracks would be required to the lands of adjacent properties, both to the north and south of the connecting track, it is hardly reasonable to suppose that either the Wabash Company or subsequent lessees would be content to be excluded from the spurs on either side, or that the station company would intentionally make leases contemplating such a thing. We are by no means sure that it was not the design of the parties in the first lease to reserve to the station company for future lessees a common right over all tracks on the connecting right of way, and that it was accomplished by the following language:

‘ ‘ The said right of way is leased with this understanding and reservation: That in case other parties shall desire to use the station grounds of the said first party, and the first party shall build a track, single or double, for them on said right of way, or to connect with said tracks fór joint and common use of them for their accommodation on any part of said right of way, it shall have the right to do so.”

However that may be, we conclude that the Wabash Company cannot claim a superior title to the north half of said connecting line, or restrict the complainant’s use of it under the original lease, except by its common right, if contemplated by the original lease.

We have now determined that the complainant cannot be denied the common use of the north half of the connecting road and of the Grand Trunk slip and tracks connecting with it, upon the theory that the original lease deprived the station company of the right to grant them. In 1889 the complainant’s lease was made. It is inferable that some differences arose between the parties to this suit from a contract which was made between the station company and Wabash Company in 1890. This contract recites certain alleged facts, among which are:

1. That certain portions of the station grounds and railroad have been leased to complainant’s predecessors.
2-. A change in the place and situation for a passenger depot.
3. That some of the reserved rights in the contract for a lease were not stated with perhaps sufficient distinctness and clearness.
4. “For the joint use of said grounds by all of said companies it is expedient that there should be some revision of the said contract in some respects, and of the boundaries of the’property held and to be held and occupied by the Wabash Railroad Company.”

And it was then agreed that the station company should lease to the Wabash Company the 65-foot strip of the station grounds hereinbefore alluded to and marked “ z ” on the map, subject to the reservations in the previous contract, but modifying them somewhat. It was agreed that they might be changed, but with the distinct understanding that—

“Tracks to and from the elevator and slips shall be such as to accommodate the business of the elevator and railroads with it, and business, also, of all railroad companies to and from the slips, which may use the station grounds under the leases made to them, not intending hereby to change in any way the rights of the said second party under its lease of 1881, but to give it a little larger liberty in arranging tracks to carry out the purposes and objects of the same and the reservations therein made.”

While this, perhaps, did not affect the complainant’s rights, it is mentioned as showing the situation at that time, and indicating differences and perhaps disagreement in relation to the earlier leases.

Another instrument, which in our opinion has an important bearing upon this controversy, is the one called the “Terminal Agreement” between the three railroad companies. The object of this agreement was to provide for the joint use of the main tracks and spurs upon the connecting road, etc. It recited that the several tracts of land and railway leased to the several railroad companies were so situated and located as to make it necessary for some uniform and connected system of tracks, and that the use of the tracks, in connection with the business of the several roads, was so intermingled, and the interest of each so closely related to the others, as to make it imperative that an agreement should be arrived at for the improvement of the property and the transaction of business thereon. Therefore it was agreed that for the purpose of carrying out such agreement the three railroad companies should form themselves into an association to be known as the “ Union Terminal Association,” which should continue for the term of 10 years, and this was to have the management of the business. It designated certain property as the “terminal yards,” and the four-mile track and spurs as the “ connecting railway.” Each party was to transact its own business in its own portion of the terminal yard, but the tracks of either party might be used by the other in the necessary interchange of business between the two parts of the yard. It was agreed, further, that inasmuch as the Wabash Company had a main track on the southerly portion of the connecting railway, the other parties should lay one or more tracks on the northerly portion at their own expense, and that thereafter, during the continuance of this lease, said connecting railway and all spurs and sidings of the connecting railway should be owned and used jointly by the parties as a double track railroad: The operation, renewals, and maintenance of the main track, spur tracks, and sidings of the connecting railway and the structures and tracks of the terminal yard were to be in charge of the officers of the Union Terminal Association. Each party was to be at the expense of maintaining its own part of the terminal yard, except that part which was to be used in common. This was to be shared, as was also that of the connecting railroad. Regarding the connecting railway, the agreement provided that the value of the two main tracks and spurs and sidings on both sides of the main track should be appraised, and that the' differences between the values of those owned by the respective parties should be ascertained and paid. Provision was made for additional spurs and tracks, and then followed the words: ■

Said main track, spurs, and sidings shall thereafter be owned and used in common, and shall be maintained by the Union Terminal Association, as heretofore provided.”

The complainant contends that, aside from any common right which it claims under its original lease, this provision gives it such right in perpetuity. The Wabash Company insists that it has no such effect, for the reason that all of the provisions of that instrument have reference and are limited to the period of 10 years. By the terms of that instrument the cost of the connecting railway and spurs to the parties was equalized. No provision for repayment, and each assuming its own after 10 years, was made. The agreement does not say that they shall own this property for the period of 10 years, but “ thereafter.” Again the agreement provides that the terminal association shall exist for 10 years — not that all provisions shall be for 10 years; and, while the latter would be a natural inference unless words inconsistent appeared, we think they do appear. The term “ thereafter ” is a broad term. It might, however, be said to refer to the period for which the parties were contracting. There is, however, another provision that is perhaps more definite. It is as follows:

‘ ‘ The said first party having one main track on the southerly part of the right of way of the connecting railway, said second and third parties shall lay one or more tracks on the northerly part of the said right of way at their own expense; and thereafter, during the continuance of this lease, said connecting railway and all spurs and sidings of said connecting railway shall be owned and used jointly by the parties hereto as a double-track railroad.”

What lease is referred to ? It may be said that it refers to the agreement of which it is a part, but that has no semblance of a lease. This writing refers to the leases under which these rights were acquired, and it is not an unreasonable interpretation to say that this provision has reference to the lease made to the Wabash Company, or perhaps it might be said to have meant the leases to both companies, and that this agreement, which is executed with the due formality of a deed, having seals, was designed to recognize as existing, or, if not, to create, a common interest in the connecting railway, its sidings and spurs, and to make an arrangement for its management for a temporary period, leaving a more permanent one to depend on the experiences during such period. It is much more reasonable and probable to conclude that this agreement that proposes to provide for a permanent improvement of property of this character and magnitude was intended to refer to such leases, and to make the common interest perpetual, than to ascribe to its makers an intent to take such an important step for the short period of 10 years.

We are of the opinion that the use of the Canadian slip is not within the complainant’s lease, although it was authorized and permitted to use it under the terminal agreement for 10 years. But 20 feet of it is built upon the land covered by the original leases, if, indeed, any of it is. The remainder was constructed by the station company for and at the expense of the Wabash Company, and the complainant strenuously maintained that the joint use of the Canadian slip was not provided for by the terminal agreement, though the Wabash Company claimed that it was. Complainant is required by the decree to account for rental value during the period of the ‘ ‘ terminal agreement,” from which we infer that it has not paid such rent.

Allusion has not been made in this already long opinion to correspondence and circumstances indicating the understanding of the parties as to their mutual rights under the original leases. There is much of a convincing character, some of which, we think, is competent evidence upon the question of interpretation, especially that contained in the successive drafts of the terminal agreement. While they would be inadmissible to vary the clear language of the instrument, they negative certain inferences which are urged, indicating, not only what was under consideration, but the rejection of provisions better calculated to express certain meaning than that employed. Such testimony is admissible under many authorities, for which we refer to the briefs of counsel. Neither have we discussed the question of “practical construction by the parties,” which, in connection with the doctrine of estoppel, has an important place in the law of contracts. We omit them for the reason that in our opinion the agreements themselves, when viewed in the light of the surrounding circumstances, furnish sufficient evidence of the intention of the parties.

It is therefore ordered that the decree of the circuit court in chancery be in all things affirmed, except in so far as it relates to the Canadian Pacific slip, as to which it will be reversed, and the relief asked denied. A decree will be entered here in conformity to this opinion. Having prevailed in part, the appellant is entitled to costs of this court.

Moore, C. J., and Carpenter, McAlvay, and Blair, JJ., concurred.