text:
    FISHLEIGH v. DETROIT UNITED RAILWAY.
    1. Trial — Carriers — Street Railways — Personal Injuries — Misconduct oe Counsel — Appeal and Error.
    In an action against a street railway company for personal injuries, where, during a colloquy between counsel, plaintiff’s counsel charged that defendant’s counsel had stolen a chart from a hospital, but immediately withdrew the statement, saying “maybe you did not. Somebody took it out of a hospital,” and no suggestion at the time was made to the court that the jury he instructed to disregard the statement, which should not have been made, a reversal of the judgment for plaintiff is not justified- on this ground.
    2. Same — Appeal and Ebror — -Argument oe Counsel.
    While the Supreme Court will reverse cases for the intemperate argument of counsel where unjustified and unwarranted attacks have been made upon witnesses called to testify in the ease, it is not disposed to reverse them unless it clearly appears that such argument was unwarranted by the evidence and probably contributed to the result.
    3. Same — Argument oe Counsel — Veracity oe Witnesses — Appeal and Error.
    Am intimation by counsel for plaintiff, in his argument to the jury, that they would be justified in concluding that a witness for defendant had been guilty of perjury, was not so clearly unwarranted and without justification as to require a reversal of the case, where the testimony of such witness was flatly contradicted by witness for plaintiff, and was in regard to physical facts where there was no reason to say there might be an honest mistake, and it is patent that one of the witnesses was not testifying truthfully.
    4. Evidence — Witnesses—Physicians and Surgeons — Privilege —Waiver—Statutes.
    A question asked of a physician as to whether he had ever treated a brother or sister of plaintiff for diabetes was properly rejected, where there was no claim that the patient, who was not a party to the suit, had waived the privilege created by 3 Comp. Laws 1915, § 12550.
    5. Same — Appeal and Error.
    Said testimony being prohibited by said section, this court will not consider the reason assigned by the court below for rejecting it, viz., that it could not be received on the question of heredity, not being the father or mother.
    6. Trial — Evidence—Mortality Tables — Instructions.
    The charge of - the court as to the use of the mortality tables, when considered as a whole, held, not open to the construction that the expectancy found therein was controlling or expressed the opinion of the trial judge that it should be accepted.

      7. Same — Instructions—“Material” Testimony — Credibility oe Witnesses.
    Where the court charged the jury that if they believed “any witness for either side has deliberately falsified, or has lied about any part of his testimony, from that fact you may disregard all of his testimony or only a portion of it; I say you may disregard all of it, or you may believe 'Some of it, if it is corroborated by other testimony, or whether it is or not,” an objection that this instruction did not refer to “material” testimony, held, that, taking the charge as an entirety, defendant was not harmed by the instruction on this subject.
    8. New Trial — Evidence—Weight oe Evidence.
    Where there was abundant evidence to support the finding of the jury that plaintiff’s condition was the result of the street car accident, the motion for new trial on the ground that the verdict was against the weight of the evidence was properly denied.
    9. Damages — Excessive Verdict — Personal Injuries — Duty oe Appellate Court.
    While, in personal injury cases, the amount of damages is primarily a question for the jury, yet where it clearly and manifestly appears that the verdict is the result of prejudice, caprice, passion, partiality, sympathy, or kindred reasons, rather than a result of the consideration of the evidence and actual conditions, the appellate court, in the discharge of its functions, is bound to act, and either vacate the judgment or require an abatement from the amount recovered as a condition of affirmance.
    10. Same.
    A verdict for $23,000 was not excessive, where the evidence showed that before the accident plaintiff was a healthy, robust woman, weighing about 150 pounds, a wage earner, and that in 22 months since the accident and as a result of it she had become a helpless cripple, weighing 98% pounds, that she was confined to her bed for 14 'months, and suffered and will continue to suffer great pain, and that her expenses necessitated by the accident exceeded $2,200.
    ■ Error to Wayne; Webster, J.
    Submitted January 22, 1919.
    (Docket No. 88.)
    Decided April 3, 1919.

      Case by Maude Fishleigh against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Moody and A. B. Hall, for appellant}-

      Monaghan, Monaghan, O’Brien & Crowley, for appellee.
   Fellows, J.

Plaintiff brings this action to recover damages for personal injuries received by her in an accident occasioned by the collision of two street cars owned and operated by and on defendant’s system in the city of Detroit, on the evening of February 14, 1916. When the cars collided plaintiff was thrown forward, her knee or knees striking the seat in front; upon the recoil she struck the back of the seat, which broke, either as the result of her body striking against it or from others falling upon it, the car being crowded, and she was struck by the broken seat or a piece thereof, an iron rod along with the wood, across the lower part of the back. She was unable to extricate herself from the position in which she was wedged with her knees against the front seat and the broken piece of the seat pressed against the lower part of her back for several minutes, but was finally taken out by a policeman and placed in an ambulance and taken home. It is not seriously controverted but that she was confined to her bed for 14 months; nor that since she has been able to leave her bed that she is only able to go a few steps at a time with the aid of crutches, or a crutch and cane; nor that her present condition is a permanent one. Defendant contended in the court below and here contends that plaintiff’s condition was and is due, at least in part, to conditions antedating the accident, and to which we shall presently refer.

The plaintiff at the time of the accident was nearly 29 years old and was employed as a saleslady by the Crowley-Milrier Company, and was earning from eleven to twelve dollars per week. By her testimony she showed that in February, 1912, she was operated on for appendicitis, from which operation she says she speedily recovered. On September 30, 1913, she was accidentally shot, the bullet lodging in the twelfth dorsal where it still remains. She claims to have recovered from this accident and to have resumed her work the following spring. Her testimony, that of members of her family, her associates at the store, and her acquaintances tend to show that after she resumed her work she was in good health, suffered no inconvenience from the bullet, was of a cheerful disposition, a good saleswoman, very active in her work at the store, enjoyed society, was a musician, danced frequently at parties, weighed 150 pounds and in fact was until the accident in question in the enjoyment of perfect health. Photographs taken the summer before the street car accident show her to be apparently a robust, healthy woman.

The testimony adduced on behalf of plaintiff tended to show that during the 14 months after the accident that plaintiff was confined to her bed she was a great sufferer from pain, required the constant attendance of nurses, frequent visits of her doctor, sometimes as high as four or five a day, and generally at least two a day; her sufferings at times being so intense as to result in unconsciousness; that administration of morphine to relieve the pain was impossible, due to its nauseating effect upon her, and on a few occasions ehloroform was administered; that she would have spasms of pain, her limbs would cramp and be drawn up; that she had frequent chills and very hot applications had to be almost constantly applied; that it was difficult to move her, due to the extreme sensitiveness of the afflicted parts, and that her intense suffering was practically continuous. The testimony also tended to show that she continued to suffer great pain after she was able to leave her bed; that she is unable to move any considerable distance, even with the aid of crutches, and that her present condition is that of a helpless, hopeless cripple. It is undisputed that in the summer of 1916 plaintiff was operated upon, and a portion of the coccyx (the lower tip of the spine) was removed, and that in January, 1917, she submitted to another operation and her right ovary was removed. At the time of the trial she weighed 981/2 pounds. The plaintiff’s medical testimony was to the effect that her condition was the result of the streetcar accident.

The defendant does not controvert the question of its- negligence. It insists, however, that the plaintiff’s, present condition is not due to the street car accident; that the operation for appendicitis has Something to do with undermining plaintiff’s health, and that the gunshot wound together with the presence of the bullet in the spine is the cause of the trouble. Testimony was adduced tending to show that the summer following her return to the store she was not in good health, that the gunshot wound continued to affect her, and that she often consulted a physician and continued to receive medical treatment for some time after she resumed her work, and that her condition after the gunshot wound was not that of a healthy woman. The medical witnesses called by the defendant conclude that the present condition of plaintiff is traceable directly to the gunshot wound and the bullet in the spine. It should be here stated that the declaration does not count upon an aggravation of a preexisting condition. Nor does the plaintiff claim by her declaration that as the result of the street car accident diabetes developed. Defendant by its testimony insisted that plaintiff is- now suffering from. diabetes insipidus; and claimed that plaintiff could not under the declaration recover for an aggravation of a pre-existing condition, or if her present' ailment is diabetes insipidus she could not recover therefor because not alleged. Plaintiff did not controvert defendant’s legal claims as to what could be recovered for under the declaration, and the case went to the jury upon the conflicting claims of the parties as to thfe cause of plaintiff’s present condition. The jury returned a verdict of $23,000.

In this court it. is insisted that errors committed on the trial entitle defendant to a reversal. It is further insisted that errors were committed upon the trial, which, while not of themselves constituting reversible error, so prejudiced defendant’s case as to result in a grossly excessive verdict. And, finally, it is insisted that the trial court erred in not setting aside the verdict on defendant’s motion based on the grounds that it was excessive in amount and against the weight of the evidence.

Dr. J. B. Kennedy performed the operation on plaintiff for the removal of a portion of the coccyx at Grace Hospital, and was called as a witness by her. In giving his testimony he referred to the fact that charts were kept at the hospital. Upon his cross-examination he was inquired of with reference to the chart and one was produced by plaintiff’s counsel, and the witness was quite fully cross-examined about it. Then the following occurred:

“Q. Now, doctor, these are what they call the physician’s order or instruction sheet?
“A. Yes.
“Q. Now, accompanying that is kept in the hospital a daily record by the nurse, is there not?
“A. Yes.
“Q. Is that here?
“A. I have not seen it.
“Q. Have you that, Mr. Monaghan?
“Mr. Monaghan: No. Maybe it is the one you have no right to over there, that I would like to see, that you probably took from one of the hospitals some
“Mr. Hall: Which one?
“Mr. Monaghan: Right there, Mr. Hall, these (indicating) .
“Mr. Hall: You would like to look at these?
“Mr. Monaghan: Yes, I would like to look at that. You closed it up the other day when I tried to.
“Mr. Hall: You ought not to peek. Your honor, he has no right to pick my papers up off the table. Now, you are just trying to see what it is, aren’t you?
“Mr. Monaghan: Yes, I would like to know, because evidently it is a chart that you stole from some place. I will take that back.
“Mr. Hall: I want an exception to that remark that I stole a chart from some place.
“Mr. Monaghan: Well, maybe you did not. Somebody took it out of a hospital.
“Mr. Hall: I want an exception to that statement, if the court please.
“Mr. Monaghan: I want to see these, I say, if it concerns the plaintiff in this case, I would like to see it now.
“Mr. Hall: You can see it when I get good and ready.
“Mr. Monaghan: I would like to know on the record where counsel got it.
“Mr. Hall: I got it on a subpoena, if you want to know. 11
“Mr. Monaghan: Subpoena?
“Mr. Hall: Yes, sir.
“Mr. Monaghan: How can you get a chart on a subpoena?
“Mr. Hall: Well, I have, haven’t I?
“Mr. Monaghan: I would like to see it now.
“Mr. Hall: I have asked, your honor, as long as this controversy has been gone into, I have subpoenaed the Providence Hospital with the chart and the record. Now, if they will show me the Providence Hospital chart, they may have this one.
“Mr. Monaghan: May it please the court, I have never seen a Providence Hospital chart yet. I would like to see it if counsel has that, too, I would like to see that.
“Mr. Hall: No, your honor, the . answer of the Mother Superior this morning was that it was in the hands of Dr. Parker, and then I telephoned her back and she said she would try and get it, and we have been telephoning all day trying to get that chart.
“Mr. Monaghan: You might bring in Dr. Parker. The only papers I got from Dr. Parker are what you have in your hands.
“Mr. Hall: I do not claim you have them.
“Mr. Monaghan: That is very kind of you.
“Mr. Hall: I would like, if the court please, undoubtedly these papers were all kept together and I would like Mr. Monaghan if he has the record — you know what I mean — the distinction between—
“A. I know what you mean.”

Later charts were produced and such parts as were regarded important were made a part of the record.

The objection urged by defendant’s counsel is to the statement that he had stolen this chart, and the further statement by plaintiff’s counsel, “maybe you did not. Somebody took it out of a hospital.” It will be noted that defendant’s counsel made no suggestion to the court during the colloquy that the jury be instructed to disregard the statement of plaintiff’s counsel (see Eberts v. Mt. Clemens Sugar Co., 182 Mich. 449). Even before the court or defendant’s counsel had an opportunity to say anything plaintiff’s counsel had retracted his first statement. Counsel should not have made this statement. He appreciated this and promptly withdrew it. Upon such circumstances the improper remark does not justify a reversal on this ground. Pruner v. Railway, 173 Mich. 146. But we think it should be stated further that a careful reading of this record demonstrates that all of the attorneys engaged in this trial, which lasted seven days, were courteous in their conduct towards each other with this single exception. There were passages between them, some serious, some good-natured, not necessary or proper to here detail, but nothing that questioned the good faith or integrity of any one of the attorneys engaged in the trial. From what occurred upon the trial as detailed upon this record it would be a far-fetched conclusion that the jury, or any member of it, would conclude from this transaction that defendant’s counsel had been guilty of any unprofessional conduct, or that plaintiff’s counsel deliberately and seriously charged him with it. As to the statement that some one had taken the chart out of the hospital the record shows it was taken from the hospital and that it was done in a proper manner. The trial judge in his charge expressly stated to the jury,

“You are to disregard any remarks made by counsel one to the other in the course of hearing the testimony in this case.”

This transaction did not constitute reversible error, nor are we impressed that it prejudiced defendant’s case.

During the course of his argument of the case to the jury counsel for the plaintiff used the following language:

_ “And that from Dr. Povey had to be wrung out of his teeth as he sat there, in my judgment, gentlemen of the jury, perspiring with the perspiration of perjury. * * * I say to you, gentlemen of the jury, that if Dr. Povey lied to you in this case, and lied deliberately, he is guilty of perjury before the living God, and I say to you his manner upon the witness stand, the manner of his giving testimony in this case, justifies you in your conclusion upon that subject.”

We have had occasion to reverse cases for the intemperate arguments of counsel and where unjustified and unwarranted attacks have been made upon witnesses called to testify in the case. Such cases have been numerous; among them see Mott v. Railway Co., 120 Mich. 127; Dolph v. Railway Co., 149 Mich. 278; Holmes v. Loud, 149 Mich. 410; Geist v. Railway, 91 Mich. 446. But this court is not disposed to reverse cases upon the argument of counsel unless it clearly appears that such argument was unwarranted by the evidence and probably contributed to the result. Houser v. Carmody, 173 Mich. 121; Lathrop v. Sinclair, 110 Mich. 329; People v. Tubbs, 147 Mich. 1; People v. Peck, 147 Mich. 84; Battishill v. Humphreys, 64 Mich. 514. In the last cited case it was said by Mr. Justice Champlin :

“Upon the whole matter of the exceptions to the remarks of counsel, while we do not approve, yet we cannot say that they were likely to or did mislead or prejudice the jury against defendants. Extravagant expressions are apt to be used in the heat of argument. Invective is sometimes resorted to, persuasions made, and forensic skill employed, — all with the design to influence the jury in behalf of a client. But all these arts and appliances are permissible so long as confined within legitimate bounds of the discussion of the facts before the jury; and if courts are to take it upon themselves to set aside verdicts because some irrelevant remarks are made use of by counsel in their arguments, they will find constant employment, and few indeed will be the verdicts which will be sustained.”

It becomes necessary for us in considering this question under the rule heretofore announced to consider the testimony in the case for the purpose of ascertaining whether the argument was clearly unwarranted. If warranted by the record counsel had the right to make it. If a witness for the plaintiff testifies to a state of facts, and a witness for the defendant testifies to an exactly opposite state of facts, and it is upon a subject that there is no reason to say there may be an honest mistake, it is patent that one of the witnesses is not testifying truthfully; and under these circumstances each counsel has the right to argue to the jury that his witness' is the truthful one and the other the untruthful > one. If in the instant case the record discloses such conflict between the testimony of this witness and that of. other witnesses as that the jury in reaching their conclusion would be reasonably required to accept the version of one side, and reject that of the other, it was certainly proper for counsel to insist that his witnesses were truthful and the other untruthful. And we cannot determine for him the form of expression he may use. It is attacks upon witnesses that were unwarranted by the record that this court has condemned. We are not to determine when considering this question which of the witnesses speaks the truth; we do not see them, know nothing of their appearance or their manner of giving testimony; our province is only to determine whether the attack is unwarranted, whether there is anything in the record from which it may be said that counsel had no basis for the argument, and that it was without justification.

We have already made clear that the medical testimony was in direct conflict. Doctors may and do honestly differ in their diagnosis of a case, and we shall not devote any space at this time to the conflict in the opinion testimony. But there were conflicts in the testimony of physical facts, to some of which but not all we shall now refer. Shortly before the trial plaintiff submitted to an examination in the presence of her physicians and those of defendant. One of the objective symptoms of plaintiff’s trouble as claimed by her physicians was the exaggerated reflexes or jerks of the knee caused by striking it. This seems to have been regarded as important by the physicians. Drs. Ives and Kennedy testified to these exaggerated reflexes on this examination. Dr. Povey, defendant’s physician, not only denied this but testified that in order to get the reflex the patient was asked to reinforce by putting her hands together and pulling as hard as she could with her eyes closed. This was flatly denied by both Dr. Ives and Dr. Kennedy, Dr. Kennedy specifically stating that the reinforcement method was not used to get the reflexes, but was used later and then only in testing for ankylosis, while Dr. Ives testified that it was agreed by the physicians for plaintiff and defendant present at the examination that the reflexes were greatly increased. Dr. Povey testified that he made an examination of plaintiff in April. He testified that he made an appointment with plaintiff’s physician, Dr. Parker, for this examination. In this he is disputed by Dr. Parker, who was not present when he made the examination. He testified that upon this examination he conducted a vaginal examination, and that the uterus was in normal position. Dr. Parker testified that it was out of position — tipped backwards. Dr. Povey, as a result of the examination, depreciates plaintiff’s ovarian trouble. Dr. Parker regarded it as' serious, and it is- undisputed that one ovary was removed. Plaintiff claims that when Dr. Povey asked her questions about her condition her principle complaint was about her legs, the lower part of her back, the end of her spine, and down the right leg. Dr. Povey says that her complaint about her back was not emphasized to any extent, and the general tendency of his testimony was - that her back, where the seat struck her in the accident, was given no prominence in her complaints. We think there was such a conflict between the testimony of this witness and that of others called in the case that we cannot say that the language of counsel was clearly unwarranted and without justification.

We do not overlook in the- consideration of the assignments of error relative to the conduct of counsel the point made by the plaintiff, that an exception alone without any ruling or instruction given or asked for by the court is not available here. We have considered fully these assignments of error in view of the second claim made by defendant.

Dr. W. J. Cassidy, a witness called by defendant, was asked this question :

“Now, without mentioning any names, doctor, did you ever perform — or did you ever treat any immediate member of Miss Fishleigh’s family for diabetes?”

During the discussion it was stated by defendant’s counsel that the question referred to a brother or sister. The court sustained the objection upon the ground that it could not be received on the question of heredity, not being the father or mother. We need not consider the reason assigned by the court for his ruling as we are satisfied that the doctor was prohibited by section 12550, 3 Comp. Laws 1915, from testifying to what he learned in his professional capacity, while treating, and for the purpose of treating, the brother or sister. Briggs v. Briggs, 20 Mich. 34; Briesenmeister v. Knights of Pythias, 81 Mich. 525. The privilege was the privilege of the patient who was not a party to this suit. There is no claim that the privilege had been waived by the patient.

We are not impressed that the charge of the court as to the use of the mortality tables when considered as a whole, as we must consider it, is open to the construction that the expectancy found therein was controlling or expressed the opinion of the trial judge that it should be accepted. In his charge to the jury on this subject, among other things, he said:

“This table is designed to show the expectancy of life which may be entertained by average persons of given ages. The information you can derive from it is the time that the average person of equal age with the one under consideration in the present case may be expected to live. In the nature of things there can be no certainty whether any particular individual will live for a longer or shorter period than the probable expectancy of the. average person of the same age as laid down in this table. In estimating the probable length of plaintiff’s life, as compared with the average duration of life of one of the same.age, her health and all other matters pertinent as disclosed by the evidence, ought to be considered and the proper weight given to all these things in fixing the expectancy of life, diminishing or increasing the figures laid down in the table according to the facts of the particular case before you.” •

Error is also assigned upon the following excerpt from the charge:

“And if you believe further, m applying those tests and others, that a witness, any witness, for either side, has deliberately falsified, or has lied about any part of his testimony, from that fact you may disregard all of his testimony or only a portion of it; I say you may disregard all of it, or you may believe some of it, if it is corroborated by other testimony, or whether it is or not.”

The specific objection urged being that this instruction did not refer to “material” testimony. The charge did not refer to any specific witness and defendant’s counsel did not call the attention of the court to the omission. We might dispose of this objection on the authority of Granger v. Darling, 156 Mich. 31, on the ground that the objection is not here available. But we have frequently held that isolated excerpts from the charge may not be considered alone; that we must consider the charge in its entirety. This excerpt was but a part of the instruction on the credit of witnesses. The court has stated the things to be considered in weighing the testimony of witnesses, their appearance on the stand, interest or lack of it, their manner, everything, so that the jury could decide which was truthful, etc., and concluded after the above excerpt with the statement:

“In other words, you, again, are the sole judge about that. The effect of a witness lying.before you is for you to decide, that is, upon the balance of his testimony.”

We are not persuaded that defendant was harmed by the instructions on this subject taken as a whole.

We have considered, but not discussed, all the errors assigned growing out of the trial. We are unable to find in any of .them reversible error.

Defendant moved for a new trial, urging that the verdict was against the weight of the evidence and that it was excessive. From what has been heretofore stated it will be noted that the questions for the jury were within a very limited compass. The negligence of the defendant was admitted; there was no question of contributory negligence involved; and the seriousness of plaintiff’s present condition was established by the overwhelming weight of the evidence and apparently not doubted by defendant. This left then for the jury to determine whether her condition and injuries were as alleged in the declaration and whether they were caused by defendant or by some other cause. If defendant alone was responsible for her injuries and condition what amount would reasonably compensate her? These were the issues to be determined by the jury.

We think there is an abundance of testimony to support the finding of the jury that the street car accident produced plaintiff’s injuries and present condition. Many witnesses testified to her condition of perfect health after the gunshot wound. The X-ray of the spine shows the bullet to be encased, and medical testimony, the reliability of which was for the jury, is to the effect that when so encased the probabilities of any trouble from it are at a minimum. There was also an abundance of testimony that plaintiff was not afflicted with diabetes insipidus. The evidence supports the finding of liability.

Should this court set aside this verdict because excessive? In considering this question the power of the appellate court to act and to vacate judgments or to require an abatement from the amount recovered as a condition of affirmance must not be doubted. That such power rests in this court is beyond question. This power is absolutely essential to the proper administration of justice. Nor in the consideration of the question should the functions- of the jury and of the reviewing court be confused. In personal injury cases the amount of damages is not subject to exact mathematical calculation. Primarily the question is for the jury and we cannot arbitrarily substitute our judgment for that of the triers of the facts. That would be to usurp the functions of the jury. But where it clearly and manifestly appears that the verdict is the result of prejudice, caprice, passion, partiality, sympathy, or kindred reasons rather than a result of the consideration of the evidence and actual existing conditions-, the appellate court in the discharge of its functions is bound to act. In reviewing a case with this question involved it becomes our duty to carefully examine the record, to learn whether there have been appeals to prejudice, passion, partiality and those things not having a legitimate place in a trial where rights are being adjudicated, to determine whether the amount awarded is manifestly and clearly without foundation in the testimony, and to examine analogous cases in this and other appellate courts. While no two accidents are liable to be exactly alike and therefore no two cases exactly alike, they may be similar and other cases helpful in reaching a conclusion.

We have read this record of 630 pages in its entirety and we find within it no suggestion by plaintiff’s counsel during the trial or argument of the poverty of plaintiff or wealth of defendant, no parading of the fact that.defendant is a corporation; in fact, there is an absence of those things which would tend to unduly influence a jury or prejudice defendant. The record, however,. does establish great suffering, intense pain,/ a present and permanent disability of plaintiff, and if the testimony offered by plaintiff is true, and the jury has found it to be true, she will continue a helpless cripple for life. By the verdict the jury has found defendant alone responsible for this. The verdict was a large one, the injuries serious, the case one for substantial damages. The trial occurred about 22 months after the accident. During that time plaintiff’s expenses necessitated by the accident exceeded $2,200. It may be assumed that the expenses of operation, nurses and medical attendance will be less and her necessary expenses reduced in the future. The trial court, who saw the plaintiff and heard the testimony, in overruling defendant’s motion said:

“This is an exceptional case. Rarely is a plaintiff in a personal injury case in as bad a condition as the plaintiff was at the time of this trial. It was very evident that her condition was very serious and that she had suffered a great deal. If her sufferings and her condition was due to the street car accident, and the jury so found, the verdict was far from being excessive. It was very evident that this was a case that would result in a large verdict, and the evidence would clearly sustain a larger verdict than the one rendered.”

Let us now turn to some of the cases. While many, have been examined by us but comparatively few will be discussed or cited. Exhaustive notes with numerous citations of authorities will be found in L. R. A. 1915F, 30, and 16 Ann. Cas. 8. In Retan v. Railway Co., 94 Mich. 146, this court affirmed a judgment of $30,000 against the objection that it was excessive. Both feet had to be amputated, one near the knee and the other forward of the heel. In Guy v. Railroad Co., 198 Mich. 140, we affirmed a judgment of $35,000 for loss of the left arm just below the shoulder and the right hand at the wrist and other injuries. In Huggard v. Refining Co., 132 Iowa, 724 (109 N. W. 475), a judgment for $32,916 was affirmed. Without detailing plaintiff’s injuries it will suffice to state that he was rendered a helpless invalid requiring constant attendance for the balance of his life. He was 27 years old when injured and was then earning $1,100 per year. In Perkins v. Telegraph Co., 155 Cal. 712 (103 Pac. 190), the supreme court of California affirmed a judgment for $25,000. Plaintiff there, as a result of the accident, was paralyzed on the right side, blind in one eye and the other impaired, had a curved spine, had hemorrhage of lungs and stomach. She was 57 years old. The supreme court of Missouri in Corby v. Telephone Co., 231 Mo. 417 (132 S. W. 712), affirmed a judgment for $22,500. Plaintiff there was. 27 years old, earning $3 per day. He was paralyzed from his hips down and had suffered great pain. In John v. Railway Co., 42 Mont. 18 (111 Pac. 632, 32 L. R. A. [N. S.] 85), a judgment of $25,000 was affirmed. Plaintiff there intermittently suffered pain in his head, slept poorly, his right side was partly paralyzed and he had lost the use of his voice. He was pronounced by one witness, “a physical wreck.” His injuries were permanent and would probably result in death. In St. Louis, etc., R. Co. v. Webster, 99 Ark. 265 (137 S. W. 1103, 1199), a verdict for $35,000, which the court remarked “seems to reach the limit,” was affirmed. Plaintiff, 35 years old, was earning $79 per month. The injury was to the spine. He had suffered greatly; his sexual powers were lost. He would not be able to perform any manual labor in the future and would continue to grow worse. In Lanyon v. Lanquist & Illsley Co., 157 Ill. App. 316, plaintiff had suffered concussion of the brain necessitating operations, had a slow pulse and paralysis in the left side, impairment of brain, a tricky memory and other injuries. A judgment for $35,000 was affirmed. In Texas, etc., R. Co. v. Barwick, 50 Tex. Civ. App. 544 (110 S. W. 953), a judgment for $25,000 was affirmed. The plaintiff’s back was broken, and his injuries were most serious. His earning capacity was destroyed. What his earnings were or his age was do not appear. A judgment for $22,000 was affirmed in Louisville, etc., R. Co. v. Melton, 127 Ky. 276 (105 S. W. 366, 110 S. W. 233, 112 S. W. 618). Plaintiff, a young carpenter, was earning $3 per day. When injured he weighed 145 pounds, at the time of the trial but 116 pounds; one leg was fractured at the knee, the other at the hip, his ribs on one side and his back were broken, and he was paralyzed from his waist down. In Miller v. Rhode Island Co. (R. I.), 82 Atl. 787, the jury rendered a verdict for $20,800 which was reduced by the trial court to $16,000. Upon review in the supreme court the action of the trial court was reversed and the judgment restored to the amount found by the jury. Plaintiff suffered a permanently strained back, with nervous disorders, and would require treatment in a sanitarium for one or two years. In Tuthill v. Railroad Co., 30 N. Y. Supp. 959, the court declined to disturb a judgment for $18,-500 where the medical testimony was to the effect that plaintiff’s condition was incurable and will grow worse until he becomes helpless. In Houston, etc., R. Co. v. Gray (Tex. Civ. App.), 137 S. W. 729, plaintiff was helpless and a great sufferer from pain; his physicians pronounced his condition due to paralysis of the spine; defendant’s medical testimony concluded that the paralysis was caused by traumatic hysteria. A judgment for $30,000 was affirmed.

For cases in which large judgments have been affirmed as against the objection that they were excessive, see Smith v. Whittier, 95 Cal. 279 (30 Pac. 529); St. Louis, etc., R. Co. v. Coy, 113 Ark. 265 (168 S. W. 1106); Missouri, etc., R. Co. v. Farris (Tex. Civ. App.), 120 S. W. 535; Johnson v. Railroad, 35 Utah, 285 (100 Pac. 390); Farrell v. Illinois Tunnel Co., 177 Ill. App. 425.

Let us now turn to those cases where the appellate court has reversed or reduced judgments because excessive. As in the last class of cases we shall discuss but' a meager portion of those found in the books. In St. Louis, etc., R. Co. v. Brown, 100 Ark. 107 (140 S. W. 279), the verdict was for, $50,000, said to be the largest one for personal injuries ever rendered in that State. There was considerable prejudicial conduct in the trial of the case. The injuries were serious and resulted in the death of plaintiff before the final disposition of the case. The judgment was reduced to $25,000. In Gordon v. Railway Co., 222 Mo. 516 (121 S. W. 80), plaintiff was 29 years old, able-bodied and earning $90 per month. His back and five ribs were broken, pelvis and hip bones mashed. He was paralyzed from the middle of his back down, could not sit up, except when propped by pillows. He died after the trial in the court below. A judgment for $50,000 was reduced by the trial court to $35,000 and further reduced to $25,000 on rehearing in the supreme court. In Missouri, etc., R. Co. v. Smith (Tex. Civ. App.), 172 S. W. 750, plaintiff claimed injuries of a serious nature to his spine, back, legs and side and a total loss of sexual power. A judgment for $50,000 was reduced to $20,000. In Waterman v. Railroad Co., 82 Wis. 613 (52 N. W. 247, 1136), a judgment for $25,000 was reduced to $20,000. There was prejudicial argument of counsel on the question of damages, and the delays of the defendant had been great. The accident had rendered plaintiff practically helpless. On a former trial the verdict had been for $22,500. In considering all angles of the case it was thought proper to reduce the verdict instead of reversing the case. In Fawdrey v. Railroad Co., 64 App. Div. 418 (72 N. Y. Supp. 283), a verdict for $28,500 had been set aside by the trial judge. The plaintiff, a pregnant woman, brought an action for injuries resulting in premature confinement, paralysis on the right side and inability to control the sphincter muscle. Affirming the order it was held that the amount recovered was excessive. In Mosso v. E. H. Stanton Co., 85 Wash. 499 (148 Pac. 594), a laborer, 35 years of age, earning $2.50 per day, was not wholly incapacitated, but could do light work. A judgment for $12,500 was reduced to $7,500. In Melse v. Alaska Commercial Co., 42 Wash. 356 (84 Pac. 1127), plaintiff, a longshoreman, earning on an average $60 per month, received injuries resulting in the amputation of one leg'at the knee. A verdict for $20,000 was held to be excessive and reduced to $14,000. In Sioux City, etc., R. Co. v. Finlayson, 16 Neb. 578 (20 N. W. 860), the injury was described by the physicians as concussion of the spinal cord. While the injury undoubtedly unfitted plaintiff for continuance as a railroad engineer he was able to and did engage in other business. At times he was free from pain and at others had a soreness and pain in his back. A judgment for $9,250 was reduced to $6,250. In Knock v. Railroad Co., 38 Nev. 143 (145 Pac. 939, L. R. A. 1915F, 3), plaintiff was a railroad man 29 years old, earning $170 per month. The injury resulted in the amputation of the arm below the elbow, incapacitating him from continuing in his former employment. A verdict for $25,500 was reduced to $15,000.

For cases where the appellate court has reduced or reversed judgments as excessive, see City of Elgin v. Nofs, 113 Ill. App. 618; Moore v. Transit Co., 226 Mo. 689 (126 S. W. 1013); McKenzie v. Colliery Co., 55 Wash. 495 (104 Pac. 801, 28 L. R. A. [N. S.] 1244); Williams v. Railway Co., 42 Wash. 597 (84 Pac. 1129); Louisville, etc., R. Co. v. Reaume, 128 Ky. 90 (107 S. W. 290); Denver, etc., R. Co. v. Scott, 34 Colo. 99 (81 Pac. 763); Missouri, etc., R. Co. v. Dalton, 56 Tex. Civ. App. 82 (120 S. W. 240); Padrick v. Railway Co., 128 Minn. 228 (150 N. W. 807, L. R. A. 1915F, 1); Brennan v. Railway Co., 130 Minn. 314 (153 N. W. 611, L. R. A. 1915F, 11); Union Pacific R. Co. v. House, 1 Wyo. 27; Searles v. Railway Co., 70 N. J. Law, 388 (57 Atl. 134).

In the instant case the record discloses a most serious condition, more serious than it is often our province to consider in personal injury cases. From a robust, cheerful, vigorous woman, a wage-earner, weighing about 150 pounds, plaintiff has in 22 months’ time wasted to a helpless cripple weighing 98 V2 pounds. This changed condition has come upon her since this unfortunate accident; during 14 months of this time plaintiff has been confined to her bed. During this time pain has been ever present. Her earnings were not large but her sufferings have been great and will so continue. By the use of the mortality tables we could compute with reasonable accuracy her loss of past and prospective earnings. But there is no market place where pain is bought and sold. Compensation for suffering must primarily be fixed by the jury with an honest judgment based on the evidence as their guide. If grossly excessive, if the result of prejudice, or passion, or influence other than the evidence in the case, their determination cannot stand in the reviewing court. But that court must find something more tangible than a difference of opinion as to amount before it should vacate a verdict which has the approval of the trial court.

Considering this record, the findings of the trial judge, the decisions of this and courts of last resort of our sister States, we are not persuaded that we should disturb this judgment.

It is affirmed.

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


source: Caselaw Access Project

author: Fellows, J.

license: Public Domain

text:
    ARMSTRONG v. RACHOW.
    1. Fraud — Fiduciary Relations — Cestui Que Trust — Trusts.
    In an action for fraud for the sale of alleged worthless shares of stock, evidence that plaintiff was the family physician of defendant and kept his account in the bank of ■ which defendant was cashier and manager, while tending to establish that plaintiff had confidence in defendant, was insufficient to establish such fiduciary relations as requires the application of the rules applicable to cases of trustee and cestui que trust to measure the duties and liabilities of defendant.
    2. Appeal and Error — Directed Verdict — Evidence.
    Upon a motion to direct a verdict, the testimony most favorable to the other party, together with its legitimate inferences, must be accepted.
    3. Fraud — Misrepresentation of Value — Actionable Deceit — Expression of Opinion.
    In an action for. fraud for the sale of alleged worthless shares of stock, representation by defendant that he owned considerable of this stock, that it was good stock, worth three dollars per share, that it was a good investment, and would be worth five dollars per share by the time plaintiff got it paid for, TieXct, tantamount to a representation that' he had knowledge of facts which proved that the stock was worth three dollars per share.

    4. Same — Rescission—Damages—Evidence—Burden of Proof-Conjecture.
    Where, in such action, plaintiff did not rescind the sale of said alleged worthless stock, the burden of proof was upon him to establish that he had suffered loss and the amount thereof, and it could not be left as a matter of pure conjecture; he must show that the stock at the time of the sale was not worth what he paid for it.
    5. Evidence — Remoteness—Value—Damages.
    Testimony of one sale of stock, together with the bonds of the company, after this suit was instituted, and about four and one-half years after the sale to plaintiff, held, too remote.
    6. Same — Damages—Value of Stock.
    Where stock is unlisted, sales are infrequent, and its market value cannot be established, other methods of fixing its value may be resorted to.
    7. Fraud — Evidence—Trial—Question for Jury.
    Where a “balance sheet,” made by a reputable firm of accountants within three weeks of the time of the sale to plaintiff was offered in evidence, showing the assets and liabilities of the company and a summary of its operations, together with the report of the auditors, plaintiff| was entitled to urge upon the jury the proposition that one familiar with such accounts and balance sheet as defendant was, would glean from it that the company was not as prosperous as defendant represented it to be.
    8. Same — Evidence—Trial—Question for Jury.
    Where, after deducting certain items of credit in said balance sheet open to criticism, it still shows the book value of the stock to be $4.04 per share, which was the only testimony offered as to its value at the time of the sale, the trial court was not justified in submitting to the jury the question of whether the stock at that time was worth less than $3 per share.
    '9. Same — Damages—Evidence—TriaiA-Directed Verdict.
    Plaintiff, having retained the stock purchased, must show that it was worth .less than he paid for it, and, having failed to do so, the .court below should have directed a verdict against him.

      10. Same — Laches—Limitation of Actions.
    While suit was not brought until four years and a half after the alleged fraud, recovery was not sought upon the theory of rescission and therefore promptness in bringing the action was not necessary, and, the statute of limitations not being involved, the delay was not a bar.
    11. PLEADING AND PRACTICE — EVIDENCE—HEARSAY—PROOF.
    The proper practice to prove any action of the Michigan securities commission is by producing the original or a certified copy of such proceedings; a telegram from a member of the commission is hearsay.
    Error to Charlevoix; Mayne, J.
    Submitted January 14, 1919.
    (Docket No. 34.)
    Decided April 3, 1919.
    Casé by Robert B. Armstrong against Warren J. Rachow for fraud in the sale of corporate stock. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Wilkinson, Routier & Hinkley, for appellant.

      Lisle Shanahan and J. M. Harris, for appellee.
    Plaintiff brings this suit to recover damages for an alleged fraud perpetrated upon him by defendant in the sale of 1,000 shares of the stock of the Canadian Puget Sound Lumber Company, Ltd., at three dollars per share. The sale occurred on April 2, 1913. The claim of the plaintiff may be briefly summarized as follows: Plaintiff is a physician living at Charlevoix. Defendant at the time this transaction arose was cashier and manager of the Charlevoix State Bank, with which bank plaintiff did his banking business ; that their relations were confidential; that after importunities by defendant extending over some time he purchased the stock in question, relying upon representations made by the defendant that it was “good stock,” “worth three dollars at that time,” would be worth five dollars a share by the time plaintiff had it paid for; that he, defendant, had about $14,000 worth of it, and that other directors of the bank owned some of the stock. It is the claim of the plaintiff that he was not familiar with stocks, and had been unfortunate in former investments, which fact was well known by defendant. That defendant was a man who dealt in stocks, was familiar with statements made by companies, able to analyze them as plaintiff was not, and that he knew from the statements of this company, and his familiarity with it that it was not as prosperous as he represented it to be; that defendant showed him pictures of the mill, the logs in the harbor and a boat; told him the company was going to put on a line of boats to sell its lumber in the markets of the world; that it had great big holdings of timber and that its stock was a good investment. Plaintiff claims that he supposed he was buying company stock and did not know that the stock he received was defendant’s stock until shortly before he brought this suit. Plaintiff claims that the relations between him and defendant were fiduciary in character, and that the principles of accounting between trustee and cestui que trust should be applied to the ease; but that in any event defendant’s conduct and representations constituted actionable fraud. , ,
    Without going into detail it should be stated that defendant denies the material facts testified to by plaintiff. It is his claim that he gave plaintiff only such information as he possessed, and that nothing said by him amounted to fraud, or was anything but the statement of an honest opinion. The trial in the court below resulted in a verdict and judgment for $3,729.92, being the amount paid for the stock together with interest. Plaintiff did not rescind, and the verdict is admittedly upon the theory that the stock was worthless.

      See note in 1 L. R. A. (N. S.) 258.

   Fellows, J.

(after stating the facts). We are not impressed that the testimony of the plaintiff makes out a case of such fiduciary relations as requires the application of the rules applicable to cases of trustee and cestui que trust to measure the duties and liabilities of the defendant. The trial court did not submit the case upon that theory. The plaintiff was the family physician of the defendant; defendant the cashier and manager of the bank where plaintiff carried his account. The testimony does not disclose that plaintiff had committed to defendant the business of .making investments for him either generally or in this specific instance. The plaintiff’s testimony, however, does tend to establish that he had confidence in defendant’s business ability and in what he said. If the defendant took advantage of that confidence and by actionable fraud obtained plaintiff’s money, he is liable even though the fiduciary relations did not exist.

At the close of plaintiff’s proofs defendant moved for a directed verdict upon nine grounds, which may be reduced and summarized as follows: (a-) That whatever defendant said was but the expression of an opinion and did not constitute actionable fraud; (6) That the plaintiff did not show either that the stock was worthless or what its value was at the time of its sale; (c) laches.

Upon a motion to direct a verdict for the defendant the testimony most favorable to plaintiff together with its legitimate inferences must be accepted. This is so well established as not to require citation of authorities. We are constrained to remark in this connection that counsel in discussing the question of whether a verdict should be directed would be of infinitely more aid to the court if they kept this rule in mind and did not devote time and space to the consideration and discussion of testimony which disputes the case claimed to be inefficiently made.

(a) Upon this question this case is analogous to and controlled b¶ McDonald v. Smith, 139 Mich. 211. In that case the defendant had offered to buy stock held by plaintiff and had said that “he had investigated it enough to know that he wanted some of it.” This court there said:

“The statement of defendant under consideration is something more than a mere expression of opinion. His statement, coupled with his offer to buy, falsely implied that defendant knew facts which proved the stock to be valuable. The foregoing authorities and sound principle justify our holding such a representation actionable. What defendant said was equivalent to the false statement that he had knowledge of facts which proved said stock to be worth more than par. Had he made that false statement, his liability would be clear. If we hold that he is not liable because he conveyed this thought in guarded language, we point out a way by which unscrupulous men may accomplish fraud without responsibility.”

In the instant case upon the plaintiff’s proofs the defendant represented that he owned considerable of this stock, that it was good stock, worth three dollars per share, that it was a good investment, that plaintiff had never made any money, and the way for him to do was to go in debt, that this stock would be worth five dollars a share by the time plaintiff got it paid for. While there was testimony in plaintiff’s case that defendant was the owner of stock in the company we are impressed that the jury would be justified in concluding that he had bought it for re-sale instead of investment, and that he was selling it to plaintiff as an investment stock and representing it to be such. It further appeared that in December, 1912, a few months before he sold this, stock to plaintiff, defendant wrote to one of the directors of the company, among other things saying:

“As to the stock, I do not see it quoted in financial circles or markets, as at present it is an unlisted stock. About the only thing that would create a market for the stock would be an excellent report made by the company at the close of this year, showing their balance sheet in fine condition. Further stating in the way of comment on their balance sheet, that great improvements had been made at the plant and much money spent, and that these were about completed and that hereafter the earnings would be appropriated to paying dividends to the stockholders, and that unless something unforeseen changed conditions, that dividends would be forthcoming early in the new year. Personally, I think that the less this stock is offered and pressed for sale, that the better the price will be when there is a market for it. If it were pounded as an unlisted nondividend stock, it would not take long to pound the life out of the market value, while the intrinsic, or holding value, would be worth just as much as it ever has been.
“As soon as I see any possible show of putting any of this stock on the market, believe me, I will endeavor to market yours at the earliest possible moment.”

An “excellent report” of the company reached Charlevoix a short time before the sale to plaintiff and was shown to him. As we shall have occasion to consider this report more in detail we shall pass it for the present with the statement that it is the claim of the plaintiff that there was contained in it some figures which might challenge a careful business man familiar with company balance sheets and statements, and that we cannot say as matter of law that plaintiff is incorrect in this claim. We are impressed that defendant’s statements were tantamount to a representation that he had knowledge of facts which proved that the stock was worth $3 per share, and that the case is ruled by the case of McDonald v. Smith, supra.

(b) The plaintiff in the instant case did not rescind. It therefore became necessary for him to establish that he had suffered loss and the amount thereof; he must show that the stock received by him was not at the time of the sale worth what he paid for it, and to furnish a basis for computation of his loss by the jury he would be required to introduce some evidence tending to show its value if it had a value, or that it was worthless if such was the fact. The amount of his loss, if any, could not be left as a matter of pure conjecture. Plaintiff gave testimony of one sale of stock together with the bonds of the company on September 14, 1917. This was after this suit was instituted and about four and one-half years after the sale of the stock to plaintiff. It was too remote from the date of the sale to be of any probative value; and particularly is this true when we consider that as early as 1914 the company had defaulted in the payment of the interest on its bonds and was in the hands of a liquidator. This stock was unlisted and it sufficiently appears that at the time of this transaction sales were infrequent, and it is doubtful if it had a fixed market value. Where the property is of such a character and the circumstances are such that its market value cannot be established other methods of fixing value may be resorted to. Pennsylvania, Stave Company’s Appeal, 236 Pa. 97 (84 Atl. 761); Beale v. City of Boston, 166 Mass. 53 (43 N. E. 1029). This plaintiff claims to have done and points to the statement and balance sheet of the company heretofore referred to and bearing date March 12, 1913.

This exhibit is called “Balance Sheet, December 31, 1912, and statements relative thereto together with report dated March 12, 1913.” While there is another exhibit in the case, an audit of the affairs of the company as of December 31, 1913, we shall not discuss it in detail as it shows a higher book value than the exhibit we shall discuss does, and it was not made until many months after the sale of stock to the plaintiff. The exhibit we shall consider beais date within about three weeks of the transaction in question. The ex-Mbit under discussion is the result of an audit of the affairs of the company by a reputable firm of accountants, and contains a balance sheet showing the assets and liabilities of the company, and a summary of the operations • of the company to December 31, 1912, together with the report of the auditors. We have spent many hours on this exhibit with its multitude of figures. Upon its face it shows a book value of the stock of $5.65 per share if we deduct the contingent liabilities of $108,702.23. But counsel for the plaintiff insist for this exhibit two things: first, That one familiar with such accounts and balance sheets as defendant was, would glean from it that the company was not as prosperous as defendant represented it to be; and second, That it is sufficient when the proper deductions from its final balances are made to carry to the jury the question of the worthlessness of this stock and to justify the jury in finding that the stock was valueless when it was sold to plaintiff. We are not to determine the facts, but we think plaintiff was entitled to urge upon the jury the first of these propositions. The second proposition requires a consideration of the exhibit and the claimed infirmities in it.

It should be stated before taking up the important items that both counsel discuss at length certain items of loss appearing in the operating accounts — counsel for plaintiff claiming that they show some actual losses, while defendant’s counsel insist they are interdepartmental and apparent only. The effect of these losses and whether apparent or real may bear upon the first use to which plaintiff puts this exhibit, but they are not sufficient in amount to materially affect the book value of the stock. The important items, to which counsel have challenged attention, are four in number and are as follows:

(1) The arbitrary addition to the value of stand-' ing timber of six per cent, per year; (2) An item of amount contributed by stockholders at inception of company; (3) Carrying the bonds of the company as assets, and (4) Failure to deduct the value of timber sold.

Counsel for the defendant insist that he had fully explained any apparent discrepancies in the balance sheet and the accounts. We shall, however, as already stated upon a motion to direct a verdict, consider this exhibit together with the testimony in its most favorable light to plaintiff.

1. In the surplus account of the exhibit under consideration is found an item of $525,747.28 for appreciation in value of standing timber consisting principally of interest at 6% per annum on the amount invested therein. There is no testimony in this record that this amount is correct. It is an arbitrary figure reached by adding interest at 6% to the cost. While it may be a matter of common knowledge that trees grow, the amount of such growth and its value is1 not a matter of common knowledge, and plaintiff upon this record had the right to urge the elimination of this item. It is stated by the auditors in one of their exhibits that the item of appreciation was put in by direction of the board of directors.

2. In the surplus account' is also found an item of $406,333.84, amount contributed by stockholders-at inception of the company. We think it fairly appears that this company was made up by the consolidation of other companies, the stockholders of which turned over their property at an agreed price, taking stock in the present company at par in payment for their holding and the property of the old companies. Unexplained this item was subject to criticism.

3. Among the assets of the company is listed an item of $253,200 for bonds of the company held in its treasury. But in the liabilities of the company is also found an item for the authorized issue of bonds including both those issued and unissued. Obviously if the unissued bonds are carried as a liability the item should be offset by carrying them as an asset. This item is not open to criticism.

4. From the summary of timber accounts it appears that timber to the amount of $677,238.20 (if we add the appreciation) had been sold. If this amount of standing timber was sold, it should be deducted from the value of the timber holdings of the company. We are not prepared to say that the exhibit under consideration shows unexplained that this amount was deducted from the assets.

All the items which are open to criticism total $1,-609,314.32. If we reduce the assets of this company by this amount the book value of the stock is still $4.04 per share. The plaintiff’s case was barren of any testimony showing or tending to show the market value of the stock at the date of sale. The only testimony as to value at the time of the sale was this exhibit which after making all allowances which are subject to criticism showed a book value of $4.04 per share. Was the trial court justified in submitting to the jury the question of whether this stock was worth less than $3 per share when the only testimony showed it to be worth at least $4.04, and may a verdict based on a finding that it was worthless stand? We think not. As already stated, and as we shall have occasion to consider later, the plaintiff did not rescind. Had plaintiff tendered back his stock as soon as he learned of the fraud and rescinded the transaction he might then recover the amount paid together with interest if he established fraud sufficient to- vitiate the transaction. But where he retains the property purchased he must show that he has been damaged, must show that the property was worth less than he paid for it. This he. failed to do, and upon the case as made by him in this record the court should have directed a verdict.

(c) This action was brought something like four years and a half after the transaction. It is claimed by the plaintiff that he brought it soon after he learned that it was defendant’s stock he had bought. The action was brought within the period prescribed in the statute of limitations. The authorities cited by defendant; cases where recovery was sought upon the theory of rescission, and where promptness in bringing the action is necessary, are not applicable. While defendant had the right to comment to the jury upon the delay in bringing the action, the action not being based on a rescission of the transaction and the statute of limitations not being involved, the delay was not a bar. In view of some of the assignments of error we should state that it was proper to permit the plaintiff to explain the delay.

As the case must go back for a new trial it should be stated that if occasion arises to prove any action of the Michigan securities commission it should be done by producing the original or a certified copy of such proceedings. A telegram from a member of that commission is hearsay.

We discover no other reversible error in the record. From the error pointed out the judgment is reversed and a new trial ordered. Defendant will recover costs of this court.

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


text:
    TRUITT v. CITY OF BATTLE CREEK.
    Perpetuities — Estates—Life Estates — Two Lives in Being.
    The creation of a life estate in a husband and wife is but one estate, hence the creation of a subsequent life estate in the same premises does not violate the provisions of the statute (3 Comp. Laws 1915, § 11532 et seq.) prohibiting the suspension of the power of alienation for a longer period than two lives in being.
    See note in 29'L. R. A. (N. S.) 153.
    Appeal from Calhoun; North, J.-
    Submitted February 4, 1919.
    (Docket No. 74.)
    Decided April 3, 1919.
    Rehearing June 13, 1919.
    Bill by Melbourne E. Truitt and another against the city of Battle Creek and Samuel A. Howes, guardian ad litem, to remove a cloud upon title to land. From a decree for plaintiff, defendant- Howes appeals.
    Reversed, and decree entered.

      Bernard J. Onen, for plaintiffs.

      Charles F. McKenzie, for appellant.
   Fellows, J.

Plaintiffs, husband and wife, file this bill to remove clouds upon the title to certain premises located in the city of Battle Creek. The bill makes numerous parties, including the unknown heirs of Melbourne E. Truitt, defendants. Upon petition, a guardian ad litem for these unknown heirs was appointed. From a decree quieting title, the guardian ad litem appeals. There is no claim that the decree curing certain formal defects of title was not properly entered. The controverted question revolving around the title of plaintiff Melbourne E. Truitt, the case necessitates only a statement of the facts pertinent to that question.

April 13, 1903, George A. Robertson, then owner of the premises, his wife joining with him, executed a life lease thereof to Oliver Beauregard and wife, Thersil, grandparents of plaintiff Melbourne E. Truitt. On the same day he conveyed the fee subject to such life lease to plaintiff Melbourne E. Truitt. Also, on the same day plaintiff Melbourne E. (then a single man) and Oliver Beauregard and wife executed a mortgage on said premises for $1,600 to John H. Welch. July 24, 1903, plaintiff Melbourne E. conveyed the said premises, subject to such life estate, to his mother, Louise Truitt, who on the following day executed a conveyance of the premises to Melbourne E. for life and then to his heirs.- On this later date Melbourne E. executed a mortgage to- Charles Harbeck as trustee for $600. September 23, 1909, on foreclosure sale under the Welch mortgage the premises were bid in by Bernard J. Onen. Mr. Onen paid up the Harbeck mortgage and also the present worth of the life estate of Oliver and Thersil Beauregard, who were then living. He was acting entirely for himself but had stated to Mr. Truitt, who was his neighbor and friend, that if he got title he would convey to him for what he had invested in it as he knew that plaintiff had already invested $2,000 in the premises. On November 12, 1910, Mr. Onen and wife conveyed the premises to Melbourne E. Truitt for the amount Mr. Onen had invested. It should also be stated that prior to the filing of this bill Louise Truitt executed a quitclaim deed of the premises to plaintiff Melbourne E. Truitt.

Plaintiff’s counsel does not and cannot seriously controvert the well recognized rule in this jurisdiction that a life tenant may not cut off the remainder man and acquire title in fee by purchase of outstanding incumbrances he is under legal obligations to pay, nor the further rule that where the life tenant is not under legal obligations to pay an incumbrance but pays it to prevent a forfeiture of his estate, he cannot hold it to the exclusion of the remainder man who is willing to contribute his share of the purchase price, but he holds it for the benefit of both himself and the remainder man. Defreese v. Lake, 109 Mich. 415 (32 L. R. A. 744; 63 Am. St. Rep. 584); Stroh v. O’Hearn, 176 Mich. 164; McCall v. McCall, 159 Mich. 144; Damm v. Damm, 109 Mich. 619 (63 Am. St. Rep. 601). What-counsel does claim is that the conveyance to plaintiff of July 25, 1903, offends the statute against perpetuities, 3 Comp. Laws 1915, § 11532 et seq. He insists that the fee passed by this conveyance to plaintiff, the restraint upon alienation being invalid, or if this is not so, such conveyance is void for this reason and plaintiff acquired title by virtue of the quitclaim deed from his mother. The basis of this claim is that the life lease to Oliver Beauregard and his wife, Thersil, created two life estates, estates for two lives in being, and that this is the limit of life estates which may be created, and that the succeeding life estate in the conveyance to plaintiff is void, and a restraint upon the alienation of the property contrary to the provisions of the sections above cited. The statutory provisions involved are as follows:

“(11532) Sec. 14. Every future estate shall be void in its. creation, which shall suspend the absolute power of alienation for a longer period than is prescribed in this chapter; such power of alienation is suspended when there are no persons in being, by whom an absolute fee in possession can be conveyed.
“(11533) Sec. 15. The absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of two lives in being at the creation of the estate, except in the single case mentioned in the next section.”
“(11535) Sec. 17. Successive estates for life shall not be limited, unless to persons in being at the creation thereof; and when a remainder shall be limited on more than two successive estates for life, all the life estates subsequent to those of the two persons first entitled thereto, shall be void, and upon the death of those persons, the remainder shall take effect, in the same manner as if no other life estate had been created.”
“(11537) Sec. 19. When a remainder shall be created upon any such life estate, and more than two persons shall be named as the persons during whose lives the estate shall continue, the remainder shall take effect upon the death of the two persons first named, in the same manner as if no other lives had been introduced.”

It was said by this court in the case of McInerny v. Haase, 163 Mich. 364, speaking through Mr. Justice McAlvay:

“The period of suspension is not determined by the fact that more than two lives were in being when the estate was created who by a contingency might share in its distribution, but by the number of life estates between the creation of the estate and its enjoyment in possession.”

The crucial question therefore in the instant case is, Did the life lease to Oliver Beauregard and Thersil, his wife, create an estate for two lives in being, two life estates, or but one? Was its duration measured by two lives or by only one, that of the survivor? That the estate created was an estate by entirety has been frequently held by this court. See Appeal of Lewis, 85 Mich. 340 (24 Am. St. Rep. 94), where several of the authorities are considered; and neither party has such right, title or interest in the lands, that by his or her sole act, may be incumbered or conveyed away* Ernst v. Ernst, 178 Mich. 100 (51 L. R. A. [N. S.] 317). Each is a tenant by entirety, and the survivor takes the whole estate. The duration of the estate is measured by the life of the survivor. It is neither shortened nor lengthened by the death of one of the parties. It is terminated only by the death of the survivor. Obviously, therefore, the estate created is an estate for one life, viz., that of the survivor. See Woolfit v. Preston, 203 Mich. 502.

It is true as contended by counsel that the equities are strong in plaintiff’s favor. But we cannot without violating settled rules of property extricate him from the position in which he has placed himself. The decree correcting formal defects will stand. The balance of the decree must be vacated. A decree will be here entered in conformity with this opinion. The appealing defendant will recover costs of this court.

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


author: Fellows, J. Ostrander, J.

text:
    KOTZKE v. KOTZKE’S ESTATE.
    1. Illegitimates — Common Haw — Civil Haw — Descent and Distribution — Subsequent Marriage of Parents.
    At common law a cMld born out of wedlock did not inherit; but under the civil law the illegitimate inherited from the mother, and succeeded to the inheritance of the father in event the parents married, with the exception of the offsprings of adulterous relations, they being incapable of being legitimated.

    2. Same — Offspring of Adulterous Relations.
    While Michigan by statute adopted at least in part the doctrine of the civil law, the exception that the offsprings of adulterous relations were incapable of being legitimated was not adopted either by statute or as a matter of public policy.

      3. Same — Marriage op Parents — Presumption op Legitimacy.
    The marriage of the .mother and putative father after the birth of an illegitimate does not .create the same presumption of legitimacy as though the child had been born in lawful wedlock; the presumption in the latter case being one • of the strongest known to the law, and founded upon public policy.
    4. Same — Marriage op Parents — Acknowledgment by Father— Statutes — Presumption.
    Where plaintiff, an illegitimate, was born previous to the passage of Act No. 55, Pub. Acts 1881 (section 11798, 3 Comp. Laws 1915), and while section 4312, Comp. Laws 1871, was controlling, which provided, “When, after the birth of an illegitimate child, his parents shall intermarry, and his father shall, after the marriage, acknowledge him as his child, such child shall'be considered as legitimate to all intents and purposes,” there being no presumption of legitimacy from the marriage alone, to entitle him to inherit, the burden was upon him to establish the three essential elements of the statute, viz., (1-) marriage of (2) the parents, and (3) acknowledgment of the husband after marriage.
    5. Appeal and Error — Questions por Review.
    In a case tried by the judge without a jury, the findings of fact must be accepted by the appellate court unless they are against the overwhelming weight of the evidence; if against the overwhelming weight of the evidence, if they do not support the judgment, or if the trial judge erroneously considered or refused to consider controlling testimony, this court as a reviewing court must reverse.
    6. Same — Evidence—Rulings op Trial Judge — Review.
    Where controlling facts were established by undisputed testimony which the trial judge regarded as incompetent and failed to take into consideration, and therefore; made no finding thereon, it is the duty of the appellate court to consider the correctness of such rulings and the admissibility of such testimony.
    7. Illegitimates — Evidence—Pedigree— PIearsay — Descent and Distribution.
    In proceedings by an illegitimate for a share of decedent’s estate as a son, the question of pedigree being involved and plaintiff’s mother being deceased, her statements made at about the time that plaintiff was born were not objectionable within the hearsay rule, but were admissible.
    8. Same.
    Testimony by a brother of plaintiff’s mother, at whose home he was born, that at that time decedent was not acquainted with his sister, and that she told him who was the father of plaintiff, and that it was not decedent, held, admissible.
    9. Same — Judgment—Review—Appeal and Eeboe.
    Where there was no finding by the trial judge that decedent generally acknowledged plaintiff as his son, and no proof to justify such finding, the judgment of the court below in favor of plaintiff is without support and must be reversed.
    Error to Sanilac; Beach, J.
    Submitted February 6, 1919.
    (Docket No. 60.)
    Decided April 3, 1919.
    Herman Kotzke appealed to the circuit court from a final order of distribution of the estate of William Kotzke disallowing his claim as heir at law of said decedent. Judgment for claimant. Defendant brings error.
    Reversed, and order of probate court affirmed.

      W. H. Burgess, for appellant.

      George Flott, for appellee.

      See note in 23 L. R. A. 753.

   Fellows, J.

Plaintiff was born January 30, 1880. His mother was Ulreka Wendorf, then unmarried. He was born at the home of William Wendorf, a brother of Ulreka’s. July 13th following Ulreka married decedent, William Kotzke. ' She died in childbirth, December 11, 1881. On March 16th following Kotzke married Wilhelmina Paape, by whom he had five children, all of whom together with Wilhelmina survived his death. This controversy arises upon the order of distribution of his estate. The probate court declined to recognize plaintiff’s claim to the share of a son; the circuit court, where the case was tried without a jury, recognized such claim.

At common law a child born out of wedlock did not inherit; he was regarded as the son of nobody; the blood of no ancestor coursed in his veins. But the civil law was more indulgent. It took heed of the innocence of the issue of such illicit relations, and the illegitimate inherited from the mother, and succeeded to the inheritance of the father in event the parents married. Michigan in common with most, if not all, of the States of the Union, early adopted at least in part the doctrine of the civil law in this regard. As early as 1820 the governor and judges of the then territory by section 8 of “An act regulating marriages” (1 Territorial Laws, pp. 646, 649) enacted:

“And be it further enacted, That when a man, having by a woman one or more children, shall after-wards intermarry with such woman, such child or children, if recognized by him, shall be thereby legitimated. The issue also of marriages, declared null iii law, shall nevertheless be legitimate.”

At the time of the marriage of William Kotzke to Ulreka Wendorf and until September 10, 1881, when Act No. 55, Pub. Acts 1881 (3 Comp. Laws 1915, § 11798), took effect, the statute (2 Comp. Laws 1871, § 4312) provided:

“When, after the birth of an illegitimate child, his parents shall intermarry, and his father shall, after the marriage, acknowledge him as his child, such child shall be considered as legitimate to all intents and purposes.”

The law now in force (3 Comp. Laws 1915, § 11798) is as follows:

“When, after the birth of an illegitimate child, his parents shall intermarry, or without such marriage, if the father shall, by writing under his hand acknowledge such child as his child, such child shall be considered legitimate for all intents and purposes: Provided, That such acknowledgment shall be executed and acknowledged in the same manner as may be by law provided for the execution and acknowledgment of deeds of real estate, and be recorded in the office ’of the judge of probate of the county in which such, father is at the time a resident.”

We agree with counsel for plaintiff that if the status of plaintiff was fixed as that of a legitimate child prior to the taking effect of the act of 1881, such status would not be changed because the new act provided additional requirements. In other words, if plaintiff had been legitimated prior to the act of 1881 that act would not illegitimate him.

While by statute we have adopted some of the provisions of the civil law upon this subject, we have not by statute adopted them all. Under the civil law the subsequent marriage of the parents and recognition legitimated the offspring born out of lawful wedlock; still the civil law excepted from this rule the offsprings of adulterous relations, such offsprings being known as adulterine bastards, and under the civil law as well as the Code Napoleon and the law of Scotland incapable of being legitimated. We are called upon to consider whether this exception should be adopted in this State in view of the fact which we shall presently consider that decedent was not divorced from his first wife until shortly before his marriage to Ulreka.

We have not by statute adopted this exception, nor do we think it should be adopted as an incident to the part adopted or as a matter of public policy. In Sams v. Sams’ Adm’r, 85 Ky. 396 (3 S. W. 593), the court of > appeals' of Kentucky adopted the exception as a matter of public policy, and in Kealoha v. Castle, 210 U. S. 149 (28 Sup. Ct. 684), a decision of the supreme court of the Territory of Hawaii so holding was affirmed, but upon the ground that the decision reviewed was the construction of a statute of that country adopted prior to annexation. But the weight of authority is the other way. See Hawbecker v. Haw becker, 43 Md. 516; Carroll v. Carroll, 20 Tex. 731; Drake v. Hospital Ass’n, 266 Mo. 1 (178 S. W. 462); Miller v. Pennington, 218 Ill. 220 (75 N. E. 919, 1 L. R. A. [N. S.] 773); Adams v. Adams, 36 Ga. 236; Ives v. McNicoll, 59 Ohio St. 402 (53 N. E. 60, 43 L. R. A. 772).

We are unable to follow the contention of plaintiff’s counsel that the marriage of these parties after the birth of plaintiff created the same presumption of legitimacy as though plaintiff had been born in lawful wedlock. The presumption of legitimacy of children born in lawful wedlock is one of the strongest known to the law. In People v. Case, 171 Mich. 282, this court, speaking through Mr. Justice Bird, said:

“The rule that a child born in lawful wedlock will be presumed to be legitimate is as old as the common law. It is one of the strongest presumptions in the law. The ancient rule made the presumption conclusive, if the husband was within the four seas. The modern one permits the presumption to be overcome, but only upon proof which is very convincing.”

See, also, Egbert v. Greenwalt, 44 Mich. 245 (38 Am. Rep. 260); Rabeke v. Baer, 115 Mich. 328. This doctrine is founded upon public policy. And while there is authority tending to support counsel’s contention (see Binns v. Dazey, 147 Ind. 536 [44 N. E. 644]; Drake v. Hospital Ass’n, supra) the statutes being considered in these cases while of similar purport did not use the language of our act, and we are not inclined to follow these holdings. Under the act here considered three things must concur: (1) marriage of (2) the parents, and (3) acknowledgment by the husband after marriage. There was no presumption of legitimacy from the marriage alone, and to entitle plaintiff to inherit the burden was upon him to establish the three essential elements of the statute. Plaintiff’s counsel insists that he has successfully discharged this burden.

We now come to the facts of the instant case. The findings of fact by the trial judge must be accepted unless they are against the • overwhelming weight of the evidence. If against the overwhelming weight of the evidence, or if they do not support the judgment, or if the trial judge erroneously considered or refused to consider controlling testimony, this court as a reviewing court must reverse. Some of the facts here are not in dispute. As to such findings of the court as are based on disputed testimony we accept the findings of the trial judge. Where controlling facts are established by undisputed testimony, which testimony the trial judge regarded as incompetent and failed to take into consideration, and therefore made no finding thereon, our duty requires us to consider the correctness of such rulings and the admissibility of such testimony. It is admitted that William Kotzke was a married man occupying a farm some six or seven miles from the home of Ulreka Wendorf. He secured a divorce from his wife June 23, 1880, on the grounds of adultery, desertion also being alleged. He married Ulreka Wendorf July 13, 1880. It is admitted that plaintiff was born January 30, 1880. It is admitted that plaintiff was reared in the Kotzke home and remained there until he was nearly 17 years old. Plaintiff went by the name of Kotzke but he admits that his right to such name was many times questioned in the family.

The brother of Ulreka, at whose home plaintiff was born, testified that decedent was not acquainted with his sister at the time plaintiff was born. He testified that decedent became acquainted with her after that event; that her mistake was told to him and he expressed his willingness to marry her notwithstanding it, and agreed to have the child baptized. He testified that it was generally known in the family, and Ulreka told him, who the father of plaintiff was, and that it was not Kotzke. The trial court regarded this testimony as of questionable admissibility, and it is patent that he did not consider it, as not only was it undisputed, but it was corroborated on the cross-examination of a sister of Ulreka, who was called as a witness by .plaintiff. The question of pedigree being involved and plaintiff’s mother being deceased, we are impressed that her statements made about the time the child was born and when there was no probability of untruthfulness on her part and nothing to prompt her to conceal the facts from the members of her own family, were not objectionable within the hearsay rule but were admissible. Mr. Greenleaf in his work on Evidence lays down the rule:

“But it is now settled, that the law resorts to hearsay evidence in cases of pedigree, upon the ground of the interest of the declarants in the person from whom the descent is made out, and their consequent interest in knowing the connections of the family. The rule of admission is, therefore, restricted to the declarations of deceased persons who were related by blood or marriage to the person, and, therefore, interested in the succession in question; and general repute in the family, proved by the testimony of a surviving member of it, has been considered as falling within the rule.” 1 Greenleaf on Evidence (16th Ed.), p. 198.

.Lord Chancellor Erskine in Vowles v. Young, 13 Ves. 140, said:

“Courts of law are obliged in cases of this kind to depart from the ordinary rules of evidence; as it would be impossible to establish descents according to the strict rules by which contracts are established, and subjects of property regulated; requiring the facts from the mouth of the witness, who has the knowledge of them. In cases of pedigree therefore recourse is had to a secondary sort of evidence: the best the nature of the subject will admit; establishing the descent from the .only sources that can be had.”

In Fulkerson v. Holmes, 117 U. S. 389 (6 Sup. Ct. 780), it was said:

“The fact to be established is one of pedigree. The prpof to show pedigree forms a well-settled exception to the rule which excludes hearsay evidence. This exception has been recognized on the ground of necessity; for, as in inquiries respecting relationship or descent, facts must often be proved which occurred many years before the trial," and were known to but few persons, it is obvious that the strict enforcement in such cases of the rules against hearsay evidence would frequently occasion a failure of justice.”

See, also, Goodright v. Stevens, 2 Cowp. 591; Eisenlord v. Clum, 126 N. Y. 552 (27 N. E. 1024, 12 L. R. A. 836); Stein v. Bowman, 13 Pet. (U. S.) 209; 2 Wigmore on Evidence, § 1480 et seq. If this testimony is admissible, and we think it is, if it is accepted and it is undisputed and bears all the earmarks of truthfulness, it establishes that someone other than Kotzke was plaintiff’s father.

We now come to the question of acknowledgment, of recognition by decedent of plaintiff as his offspring. There is no finding that such recognition was general, nor would such finding be justified on the facts. The rearing of plaintiff in decedent’s home unexplained might be evidence of such general recognition dependent on other facts connected with it. In the instant case plaintiff admits his presence in the home and the use of the name Kotzke caused friction between decedent and his wife. In his lifetime decedent stated that he had promised Ulreka to keep the boy until he was big enough to take care of himself. Outside the rearing of plaintiff in the Kotzke home and his bearing that name, the only proof of acknowledgment, of recognition appearing in the record is as follows: Plaintiff’s baptism when a child; the census enumeration of 1890; the testimony of one neighbor that in a casual conversation about the number of children each had decedent said he had six, four boys and two girls, enumerating plaintiff as one of the boys; the testimony of plaintiff that once when the preacher was at their house deceased stated of plaintiff, “this boy is from my other wife.” While considerable' force seems to have been given to the fact that decedent married Ulreka shortly after the divorce, it is apparent that decedent did not possess the finer sensibilities generally recognized as he married his third wife about three months after the death of his second.

The object of this statute is to enable parents by marrying and subsequent recognition to clothe their offspring with legitimacy. It does not supersede or take the place of the adoption statute, and applies only where the parties marrying are the “parents.” It requires acknowledgment, recognition by the father after marriage. We think this means something more than one or two casual statements in a lifetime under circumstances not requiring a full statement of the situation. It requires a general recognition. Some of the States, notably Iowa, use the word “general” in their statute, but we think all these statutes contemplate a general recognition. We do not mean that the father must proclaim his paternity of the child from the housetop, but when and as circumstances arise requiring a recognition it should be forthcoming; it should be general in its character. In Succession of Vance, 110 La. 759 (34 South. 767), it was said;

“But a mere reference to her in casual conversation one time as his child is not that proof of acknowledgment which makes of her what the law describes as a natural child.
“If calling a child his offspring be relied on to establish legal acknowledgment, the proof should be that the father was in the habit of so calling the child when speaking of it, or did so in habitual conversation with others.”

In Tout v. Woodin, 157 Iowa, 518 (137 N. W. 1001), Mr. Justice Weaver, speaking for the court, said:

“It cannot be supposed that in any case a putative father, however sincere his purpose to recognize an illegitimate child, nor however frankly he may admit the relationship when there is occasion for him to speak of it at all, will make it the subject of voluntary rehearsal to every person whom he meets, or force the unpleasant subject into conversation with others. If in his intercourse with neighbors, associates, and friends he makes no attempt to conceal the relationship he bears to the child, but acknowledges it openly whenever any reference' to the subject is made, and this recognition is so often repeated to different people as to evince his willingness that all who care to know the truth may understand that he admits himself the father of the child, we regard it as sufficiently general for the purposes of the statutory rule, although many of his acquaintances may never have heard him mention the matter.”

As stated there is no finding of acknowledgment by deceased, general or even frequent; no finding of general recognition that the plaintiff was the offspring of decedent. Nor would such finding have been justified on the proofs. Without such finding and facts to support it the judgment is without support.

It follows from what has been stated that the judgment of the circuit court must be reversed and that of the probate court affirmed.

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

Ostrander, J.

The weight of evidence is opposed to the conclusion that William Kotzke was father of Herman. For this reason I concur in reversing the judgment.

Moore, J., concurred with Ostrander, J.


text:
    DEWEY v. CITY OF FLINT.
    1. Equity — Pleading—Practice—Injunction—Relief.
    Upon a motion to dismiss a bill for injunctive relief from an assessment for a sewer, tbe bill should be sustained if any ground for equitable relief is stated, even though imperfectly.
    2. Taxation — Assessments—Fraud—Discretion.
    It is uniformly recognized that the judgment and discretion of assessing officers, if honestly exercised upon a correct theory, is not reviewable by the courts, but the court of equity has jurisdiction to relieve from fraud in proper cases.
    3. Same — Pleading—Equity—Jurisdiction—Injunction.
    Where the bill alleged arbitrary and fraudulent action by the council of defendant city, amounting to confiscation of plaintiffs’ land, they may maintain their bill to restrain the collection of a fraudulent and arbitrary assessment for a sewer.
    Appeal from Genesee; Black, J.
    Submitted January 16, 1919.
    (Docket No. 50.)
    Decided April 3, 1919.
    Bill by Sarah W. Dewey and others against the city of Flint to set aside an assessment for a sewer tax. From an order overruling a motion to dismiss, defendant appeals.
    Affirmed.

      Carton, Roberts & -Stewart, for plaintiffs.

      John H. Farley (Guy W. Selby, of counsel), for defendant.
   Fellows, J.

Plaintiffs’ bill alleges that they are the owners of certain premises in the city of Flint, mostly unplatted and covered by woods, located a mile to a mile and a half distant from the nearest point to the proposed west side trunk sewer. It is alleged there is no necessity for a sewer so far as their lands are concerned; that any benefit to their premises is speculative, indefinite,'remote and contingent; and it is alleged that in including said premises in the assessment district of said sewer the council of defendant city acted arbitrarily, fraudulently and discriminated against the rights of the plaintiffs, and- that such action amounts to confiscation of their property for the purpose of improving other lands. Other allegations not necessary to here detail are found in the bill. The vacation of an assessment of approximately $7,000 and injunctive relief is sought. Defendant filed a motion to dismiss the bill, and appeals from an order overruling the same.

Upon this motion the bill should be sustained if any ground for equitable relief is stated, even though imperfectly. Watson v. Wagner, 202 Mich. 397. It is uniformly recognized that the judgment and discretion of assessing officers, if honestly exercised upon a correct theory, is not reviewable by the courts. But if such judgment and discretion are exercised in bad faith, fraudulently and arbitrarily, the court of equity is not powerless to afford relief.' To the judicial branch of the government is not committed the exercise of judgment.and discretion in fixing the value of property, or the area of a special assessment district, for the purposes of taxation and assessments of benefits; but to the court of equity is committed the jurisdiction to relieve from fraud in proper cases. It was said by Mr. Justice Cooley, speaking for the court in the case of Merrill v. Humphrey, 24 Mich. 170:

“The question, then, is this: A public officer being empowered by law to apportion certain burdens among the citizens as in his judgment shall be just, being actuated by a fraudulent purpose, instead of obeying the law disregards its mandate, declines to bring his judgment to bear upon the question submitted to him, and arbitrarily and with express reference to defeating the ends at which the law aims, determines to impose an excessive burden upon a particular citizen; Has this citizen any remedy against the threatened wrong?
“We think this question can admit of but one answer. A discretionary power cannot excuse an officer for refusal to exercise his discretion. His judgment is appealed to — not his resentments, his cupidity or his malice. He is the instrument of the law to accomplish a particular end through specified means, and when he purposely steps aside from his duty to inflict a' wanton injury, the confidence reposed in him has not disarmed the law of the means of prevention. His judgment may indeed be final if he shall exercise it, but an arbitrary and capricious exertion of official authority, being withokt law, and done to defeat the purpose of the law, must, like all other wrongs, be subject to the law’s correction. * * *
“The ruling that fraudulent taxation should be restrained, wherever the case is such that the motive can be legally inquired into — as it always may be in case of the subordinate agencies — is in our opinion very clearly sound and wholesome.”

See, also, Walsh v. King, 74 Mich. 350; Lawrence v. City of Grand Rapids, 166 Mich. 134; Newport Mining Co. v. City of Ironwood, 185 Mich. 668.

If plaintiffs’ lands were included in this assessment district as a result of fraud and arbitrary action on the part of the instrumentalities of defendant and thereby their property is confiscated for.the benefit of other lands, they may maintain their bill to restrain the collection of such fraudulent and arbitrary assessment. We are not passing on the facts of the case; for the purposes of this motion the bill must be taken as true.

Other interesting questions are discussed in the briefs of counsel. Following Osborn v. City of Ann Arbor, 189 Mich. 96; Comstock v. Deane, 197 Mich. 388; Grand Rapids Trust Co. v. Nichols, 199 Mich. 126, we will not dispose of them on this motion to dismiss. They may be determined on the final disposition of the case.

The order appealed from is affirmed. Plaintiffs will recover costs of this court.

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