author: Steere, J.

text:
    MTYNARCZYK v. ZYSKOWSKI.
    1. Evidence — Conveyances—Cancellation.
    The burden of proof rests on the complainant, in a suit for cancellation on the ground of fraud, to show that a lessee of the ones charged with fraud was in privity with the other defendants, and whether they were innocent third parties or not would be a question of fact. The burden of proof to establish fraud rested also on complainant.
    2. Principal and Agent — Fiduciary Relation — Fraud—Burden.
    Where complainant was a Catholic priest and a man of experience and education and acted as the religious adviser of defendants and had tried to sell real estate to-various parties, among whom were defendants, who bought one parcel of him, he was not the agent of defendants, but, as their religious adviser, stood in a fiduciary relation to them so as to charge him with the obligation to show that his relation was fair toward defendants and he did not misuse his position of trust and confidence in selling certain real property and reserving the mineral rights which defendants claimed to have watited and to have understood they purchased.
    3. Same — Witnesses—Admissions.
    And, held, in the light of admissions made by complainant tending to impeach his testimony, that he failed to sustain the burden resting on him.
    Appeal from Iron; Flannigan, J.
    Submitted January 5, 1916.
    (Docket No. 19.)
    Decided March 31, 1916.
    Rill by W. Anzetin Mtynarczyk against Constanty Zyskowski and others for a decree setting aside certain deeds, and other relief. From a decree for defendants, complainant appeals.
    Affirmed.

      Fred H. Abbott and M. S. McDonough (M. J. Sherwood, of counsel), for complainant.

      William P. Belden and G. R. Empson (John C. Kleczka, of counsel), for defendants.
   Steere, J.

The primary purpose of this bill, contingent on which supplemental relief is asked, is to set aside a quitclaim deed given by complainant to defendant Constanty Zyskowski on January 27, 1908, of the N. E. % of the N. W. % of section 23 in township 43 north of range 35 west, located near Iron River, in Iron county, Mich., on the ground that the same was obtained by fraud and without sufficient consideration; the contention being over mineral rights which .had been excepted in a previous deed of the same property.

Private ownership of this. 40 began with one Honeywell, who held title to it and an adjoining 80 acres under a patent from the United States government dated May 4, 1891. He sold the entire 120 acres in 1895 to complainant, who stated that he believed he paid Honeywell $300 for it, by assigning to him an interest-bearing certificate of deposit for that amount in the Marquette County Savings Bank, or some bank in Calumet. A canceled certificate of deposit for $200 issued by the Marquette County Savings Bank to complainant and indorsed by him to Honeywell was subsequently identified and introduced in evidence. The conveyance of the 120 acres from Honeywell to complainant bears date July 17, 1895; the stated consideration therefor being “one dollar and other valuable considerations.”

On August 9, 1895, complainant sold the 40 acres in question to defendant Constanty Zyskowski for the sum of $275, conveying the same by warranty deed on that date, “with the mineral rights excepted and reserved.” On October 14, 1895, he sold the remaining 80 acres of his purchase from Honeywell to Joseph Konwinski, of Iron River, for $550, giving a warranty deed therefor without any reservations. On August 21, 1907, defendant Constanty Zyskowski gave an option for a mining lease of this 40 acres to defendant Gleason, who, with others, had formed a pool for the purpose of taking such options and exploring the lands covered by them for iron ore. On January 27, 1908, complainant, then of New Kensington borough, Pa., gave a quitclaim deed of this 40 acres, without reservations, to Constanty Zyskowski, for an expressed consideration of $25, which was recorded on February 10, 1908. On June 27, 1908, Constanty Zyskowski and Rosalie, his wife, conveyed by warranty deed- an undivided one-fourth of the mineral rights in said 40 to their son, defendant Zygmunt Zyskowski.

Defendant Gleason, with others of the pool which he had formed, organized the D. Gleason Exploration & Mining Company, to which corporation the option taken in the name of D. Gleason was assigned. On February 20, 1909, defendants. Constanty Zyskowski and Rosalie, his wife, together with defendants. Zygmunt Zyskowski and Laura, his wife, executed and delivered to the D. Gleason Exploration & Mining Company a mining lease according to the terms of the option previously given. On March 1, 1909, the Gleason Exploration & Mining Company agreed to pay to defendants Frank Jackson and Molly Erickson each 1^2 cent royalty upon each ton of ore mined and shipped from this 40 acres, and on June 1, 1910, said Exploration & Mining Company sublet the premises for mining purposes to defendant Davidson Ore Mining Company, under which sublease the last-named company developed and is operating an iron mine upon said property.

Complainant is a native of Russian Poland, and came to the United States when 23 years of age. He studied for the priesthood, receiving his education both in Europe and the United States. About a year after his arrival in America he was ordained a priest of the Catholic Church at Marquette, Mich.

Defendants Constanty Zyskowski and his wife, Rosalie, were also born in Russian Poland, are without education, having never received any schooling, and neither of them can read or write either in Polish or English. About 30 years before this litigation arose they emigrated from Poland with five young children, coming directly to Iron River, where they settled and resided continuously, except for a few months spent in Northern Wisconsin, until 1911, when they moved to Racine, Wis. Constanty’s life work was that of a common laborer in the woods, upon the railroad, and at other unskilled employment. He was 73 years of age at the time of the trial. ' Rosalie thought she “must be about 60 years old.”

After complainant’s ordination to the priesthood he was successively in charge of different Catholic churches in the north country, at Ironwood, Menominee, Eagle Harbor, and Red Jacket, covering a period of 3 or 4 years prior to his being sent to Iron River in' 1895 on a temporary mission, where he remained for a short time, and during the summer of that year he was transferred to Iron River in charge of the Polish Catholic parish of that place. The Zyskowskis were of the Catholic faith and parishioners under him while he was stationed there. It was while stationed at Iron River that complainant bought the 120 acres of land from Honeywell and sold the 40 in question to Constanty Zyskowski.

. The issue as offered by the pleadings and presented by the proofs of the contending parties is correctly and clearly stated in the opinion of the trial court as follows:

“The substance of the complainant’s claim is that his original bargain with Constanty Zyskowski contemplated the reservation by him of the ores and minerals and the conveyance to Zyskowski of the surface estate only; that in carrying out the bargain as it was understood by both parties the clause reserving the ores and minerals to the complainant was necessarily and properly inserted in the warranty deed and was known to both parties to be therein when the deed was delivered to ■ Zyskowski; that the quitclaim deed was executed and delivered by the complainant without consideration and in complete ignorance of the fact that the land had any mineral value; that the execution and delivery of the quitclaim deed was solicited by Constanty Zyskowski and by members of his family under his direction; that when he and members of his family solicited the execution of the quitclaim deed, he and they actually knew the land had mineral value, and that he and they not only failed to disclose that fact, but falsely and fraudulently represented the land had no mineral value; that, when he took the option for a mining lease of the property on behalf of himself and the other members of the Gleason pool, the defendant Michael Gleason had actual, as well as constructive, notice of complainant’s ownership of the minerals; that he knew also of the alleged fraudulent methods pursued by the Zyskowskis to obtain the quitclaim deed, and that all the members of the Gleason pool are, and the corporation organized by them 'is, through Michael Gleason, chargeable with like knowledge. * * *
“The substance of defendant’s claim is that the bargain between complainant and Constanty Zyskowski -contemplated the conveyance to" the latter of the fee of the land; that at, or before, the execution of the quitclaim deed, Constanty Zyskowski did not, nor did any person who, under his direction, or in his behalf applied to the complainant to execute the quitclaim deed, know the land was, in fact, valuable for mineral, or represent to the complainant, it had no mineral value; and that the inclusion of the mineral exception in the warranty deed was due to a mistake, to correct which the quitclaim deed was executed; but that if the complainant caused the mineral exception to be written in the deed, or, knowing it was in the deed, delivered the same without notice thereof to the Zyskowskis, it was in violation of the agreement between the parties and constituted a fraud. upon the rights of the Zyskowskis.”

This controversy in all its aspects turns on pure • questions of fact. By the two conveyances complainant gave defendant Constanty Zyskowski, the legal title in fee simple absolute passed to and rests in the latter, subject only to the mining lease he subsequently gave. Prima facie the deeds establish his ownership. As they read, there can be no question touching their meaning, force, and effect. In any event, defendant Gleason and the Gleason Exploration & Mining Company held their lease by an unimpeachable, as to them, record title, unless it be shown they were in privity with Zyskowski in fraudulently obtaining from complainant the quitclaim deed which he now seeks to have set aside; and whether they were innocent lessees would also be a pure question of fact, when reached, with burden of proof resting on complainant.

Complainant’s theory and claim is that from the time he purchased the land of Honeywell in 1895 he held title to and was the owner of all mineral rights in it until 1908 (which presumptively and on the face of the records is true), and, although he by the latter ■deed perfected prima facie a complete legal title in Zyskowski, he was induced to do so by false representations, and therefore, as between the two, retained all' equitable title to the mineral rights; that the quitclaim •deed was voidable as to him, and should be set aside because obtained by fraud, which presumptively and on the face of the records is not true, and therefore the burden of proving - the fraud rests upon him.

Complainant only remained at Iron River during the summer of 1895, and it is quite evident that during his short pastorate in that parish he was active in temporal as well as spiritual affairs. He talked with his parishioners and others about land matters, stated he was going to buy land and bring in Polish people to settle upon it, endeavored unsuccessfully to purchase several pieces of land from different parties, took a Polander named. Drozdowski, who had brought his daughter from Interior to Iron River for her first communion, around the country in a rig to look at different places, trying to sell him a farm, and offered to sell land to others. From what he was shown to have said and done in that direction defendants’ counsel contended that he acted as an agent in securing this 40 for Constanty, and was by reason of acting in such capacity precluded from reserving to himself in the transfer of which he had charge title to mineral rights in the property. Whatever random talk might have been indulged in, we fail to find any sufficient proof of an agency. Regardless of what he said, all that complainant actually did in real estate while located at Iron River was. to buy Honeywell’s 120-acre homestead for $800 and sell it to a couple of his parishiohers for $825. Constanty says of the matter:

“I stated to him I would like to buy a 40 somewhere, if I could. * * * He said, ‘Don’t buy anywhere; I will buy for you’; * * * that he has lands. * * * He showed it me first — he called me first and showed me it and sold it to me. * * * He did not sell it to me honestly.”

As to the actual bargain of purchase and sale upon which the minds of the parties met and from which the warranty deed with a mineral reservation resulted, the testimony of the contracting parties, who alone have first knowledge, is in direct conflict. Complainant upon his direct examination went into the subject of his mineral reservation and testified positively that Constanty solicited complainant to sell him the 40, which he said he wanted to buy for agricultural use, to raise crops upon, and for a home in his old age; that complainant was reluctant to sell it, but finally told him, “I will, sell you but the surface, and I'will reserve the mineral rights,” and Constanty said “he hardly thought there were any mineral rights,” to which complainant replied, “Well, if you want to take the surface, all right, and, if not, I don’t care to sell it.” On the other hand, Constanty testified positively that he just bought the land, and understood he was buying the whole title; that complainant never said anything about keeping an interest in the land or reserving any mineral rights, and had told him, “Don’t buy from the English people, because they will cheat you,” and witness did not consult any one else, but relied upon complainant to do everything necessary, because he was a Polish priest, and “made a bargain with me, and he said, ‘You will have a remembrance after me’ ”; that he paid the money about two weeks before he got his deed, which complainant attended to and had prepared for him, and looked after the title and taxes, “and did it all for me,” bringing the deed to Constanty at his home, and “told me not to show it to any one, only lay it aside or put it away; * * * don’t show it to anybody, because I have done this thing for you well, or right”; that he gave it to his wife, who put it away, and he knew nothing of any defect or mineral reservation in it until some 13 years later when a Mr. Jabkson came to him and he gave an option to Mr. Gleason. About that time the fact that there was a mineral reservation in the deed by which he held title was asserted, which he at first denied, and the deed which his wife, Rosalie, had put away in a trunk at the time complainant delivered it to them, in 1895, was hunted up, when it dawned upon Constanty that the Father was right when he said, “You keep this, and you will have a remembrance after me.” He then went with the daughter to consult Mr. Lott, an attorney, who assured them there was a reservation in the deed, hnd verified it as of record by consulting the register 'of deeds, advising them “to hunt up Father Mtynarczyk,” which was subsequently done, and the quitclaim deed in question obtained from him.

Although iron ore had been discovered in the vicinity of Iron River before 1905, and there were a few mines in that locality, no discoveries of ore are shown to have been made near the Honeywell homstead, and little, if. any, value appears to have been attached to the mineral rights in it by any of these parties. Honeywell, who had occupied it as a homestead for a number .of years, sold his entire interest in it to complainant for $300. Zyskowski stated he was buying the 40 for a farm, and would not have attached any additional value to it on account of mineral possibilities. Complainant stated that there was no outcropping on the surface of the 120 acres, and nothing to indicate a difference in the 40’s, and he thought in a general way they were alike. In reply to the question why he reserved the mineral rights in the deed of this 40 he simply said, “I wanted to.” Ashed why he put a mineral reservation in Zyskowski’s deed and left it out of Konwinski’s deed, he answered “Because I thought while I was at Iron River — and at the time of Konwinski’s deed I was at Grand Marais.” ,It was shown that he had unsuccessfully tried to sell this 40 in its entirety for $275 to a merchant of Iron River named Kelly shortly before he sold it to Constanty, and that not long after Constanty bought it he sold the other 80 acres .without any reservation' to Konwinski at the same price per 40 as he had sold to Constanty.

Some light is thrown on just why and how he came to insert the mineral reservation in the Constanty deed by the testimony of Kelly, who had refused to buy the 40 at the same price it was sold to Constanty. Kelly had lived at Iron River since 1882, and was then running a general store there in partnership with his brother Patrick. Honeywell was a customer at their store, and at a previous time when he had some trouble under a charge of setting out poison for cattle the Kellys became bondsmen for him, indemnified by a mortgage for $600 on his 120-acre homestead, which had not been discharged when Honeywell sold it. Kelly states that he first met complainant in church, and afterwards became acquainted with him; that, knowing complainant had tried to buy several other pieces of land about which they had talked, Kelly told him of the Honeywell homestead, and complainant bought it; that the first agreement was supposed to be $450, but later the price was cut to $300, and complainant came into their store one evening with a release of their mortgage which he asked them to sign, and in answer to some questions about the deal said, “I.will pay whatever you want; you sign it and your brother”; that his brother then refused, and later complainant came into the store again with Honeywell, who owed them a bill of $68.02, which complainant promised to bring the money to pay that evening, and Kelly executed a release of the mortgage, but complainant did not come and pay the money as promised, and Kelly went to see him about it, when he offered to sell Kelly the 40 in question for. $275, which was refused, and Kelly then made a proposition that he would take the mineral rights in the three 40’s for the bill against Honeywell, but complainant told him he had sold the two other 40’s, and Kelly finally agreed to take the mineral rights of this 40 for the bill, because it was all he could get; that he then knew nothing about Zyskowski’s purchasing the land, and tried once or twice to get complainant to carry out his agreement to give him the mineral rights in it; that in a conversation between them when a justice of the peace named McRae was. present complainant asked how mineral rights could be reserved, which Kelly explained to him as best he could, and McRae (who drew the deed to Constanty) also explained it, but complainant left Iron River without ever giving Kelly the mineral rights or otherwise paying the Honeywell bill as he had promised. McRae died over a decade before this case was heard.

If this reservation was inserted in the deed surreptitiously, in violation of Constanty’s contract of purchase, and without his knowledge, it would be a fraud upon his rights whatever the object or circumstances were. It may be conceded that in making this purchase Constanty did not, so far as shown, take particular cognizance of the subject of mineral rights and values, and it is plain that then all counted them of little value when thought of. But, if he tells the truth, that no exceptions or reservations were mentioned, and he bought the land as men usually buy property, either real or personal, when nothing is excepted, and no especial qualifications or reservations are embodied in the agreement, such purchase was presumptively and by common understanding a purchase of the property in its entirety. Apparently acting on the thought which his conversations with Kelly and McRae suggested, complainant had the exception inserted, possibly with a then intent to make good his promise to Kelly, but, if it was surreptitious, unknown to Constanty, as he claims, and contrary to their agreement, it was palpably fraudulent.

This brings us to the question of his obligations in that transaction under the facts as shown and the relations which existed between him and Zyskowski. It is a general rule, as contended by counsel for defendants, that “only clear and convincing evidence can overcome the presumption that the written contract contains the ultimate agreement of the parties in consummation of their previous negotiations,” and that the ..burden of proof rests upon the party seeking to avoid the provisions of a written agreement on the ground of fraud, but an important qualification is recognized where confidential relations of the nature shown here exist and the parties are not on an equality. When such relations appear, it devolves upon the party accused of fraud to sustain his equitable rights by demonstrating that the relation was not abused. Manifestly these parties were not standing on a basis of equality nor dealing at arm’s length. Complainant was the pastor and father confessor of the Zyskowskis, and particularly had their confidence as such by ties of race, language, and religious faith in him as their spiritual adviser. They were uneducated and inexperienced foreigners, of the type which progresses slowly when transplanted to a new country, and from necessity or inclination clings to native language, customs, and habits of thought. At the time of this hearing Constanty Zyskowski and his wife, although they had lived in this country 30 years, were, apparently in intelligence and thought, much as when they came. They claimed to be, and were recognized by the court, as yet unable to understand or speak the English language, and testified through a.n interpreter. Complainant was an educated clergyman who had pursued his preparatory studies in two countries, and at the time of the hearing spoke nine different languages, including Chinese and Japanese, which he had acquired since leaving Iron River. While there he was in close and friendly relations with the Zyskowskis by reason of nationality and religion. He visited at their home, drank beer with Constanty, was supplied with eggs and milk by the wife, assured them that he would guard their interests, both temporal and spiritual, and cautioned them against people of other nationality. That they implicitly trusted and relied upon him seems established beyond question.

While perhaps slightly overdrawn as to the noble qualities of the Zyskowski family and the distance complainant had at that time traveled over the globe, we think the record sustains in its essentials the following statements and conclusions of the learned circuit judge who heard the ease:

“Constanty and Rosalie, his wife, were unlettered and inexperienced, but good, honest, hard-working, God-loving people, and the complainant was of their nationality and a Catholic priest. To show their implicit confidence in and absolute reliance upon the complainant nothing more need be said. It is inconceivable that these uneducated and inexperienced people dealt on a basis of equality with the complainant, who spent many years in school and college in Europe and America; who traveled over half the globe; who spoke nine languages; whose business experience and capacity was by no means ordinary, and, above all, was the pastor of their church and their confessor. It is impossible to believe they dealt with him with any feeling but that of respect, trust, and confidence, and it is equally impossible to believe the complainant could have entered upon and conducted the transaction without fully appreciating the relations of the parties, and that the Zyskowskis relied on him and him alone to see that what they bought and paid for was secured to them; and when he said to them, ‘I will buy for you; I am your priest; I will not cheat you,’ the burden should be on him, and not on them, to show what the transaction was; and, knowing they could not read, much less appreciate the effect of the language of the deed, and having said to them, ‘Lay this deed away; don’t show it to any one, because I have done this thing well, or right,’ the burden should be on him, when the deed is finally brought to light, to show it conveyed all that the Zyskowskis bought and paid for. In re Hartlerode’s Estate, 183 Mich. 51 (148 N. W. 774) ; Finegan v. Theisen, 92 Mich. 173 (52 N. W. 619); Tompkins v. Hollister, 60 Mich. 470 (27 N. W. 651); Lockwood v. Lockwood, 124 Mich. 627 (83 N. W. 613).”

Fiduciary relations are not limited to technical, legal relations of agency, trusteeship, etc., from which they necessarily arise as a legal presumption, but outside of legal relations they may be shown to exist as a matter of fact, where special confidence and personal dependence for guidance is shown on one side with resulting superiority, influence, and control on the other. Where such confidence has been reposed and betrayed and such influence acquired and abused, equity will intervene to relieve. Thomas v. Whitney, 186 Ill. 225 (57 N. E. 808).

If the disposition of this case rested alone on the events at Iron River and turned more exclusively on the bare conflicting testimony of complainant and Constanty as to what transpired between them, although the confidential relations shown would demand close scrutiny, it would present a different aspect and give rise to greater misgivings, for the record indicates that the stake involved is a strain on the veracity of the interested parties; but subsequent events tend strongly to confirm Constanty’s version of the original agreement.

After leaving Iron River complainant changed his skies often, lived in many places, traveled in many countries, and saw the customs of many men, during which time he engaged in various activities foreign to and some at variance with his profession. After leaving Grand Marais he traveled for about a year in South America and Europe, returning to Detour, Mich., where he was in charge of a Polish parish for a time, when he again left Michigan. Since then he traveled about a year in China and Japan, and resided at different times in Chicago, Ill., Latrobe, New Kensington, and Pittsburg, Pa., New Brighton, Conn., Utica, N. Y., and Cleveland, Ohio, part of the time occupied in his clerical calling, and at other times engaged in other things. During these years he is not shown to have given any attention to this property, either to ascertain whether developments made since he left indicated any ore in its vicinity, or to learn if taxes were being kept up, or what the prospects were. It had apparently passed from his field of consciousness until an appeal was made to him by Zyskowski about 13 years later for a quitclaim deed to perfect his title to it. Complainant’s first reply, so far as shown, was an assurance that he claimed nothing and would give a quitclaim deed if desired, which he later did. He now makes the charge that this deed was obtained by fraud, and his case rests solely upon the recollection and veracity of himself and a Miss Kaszubowski, his secretary, as to the contents of certain letters written to him at least seven years before the trial of the case, none of which had been preserved or were produced. His testimony as to the false representations, contained in those letters is flatly denied by Constanty and those who wrote for him. They produce supporting letters from him; he none from them.

Just when correspondence on the subject began between these parties is somewhat in dispute. It was apparently some time in 1906 or 1907, and the witnesses agree in testifying to quite a number of letters being exchanged. Complainant testified that he replied to some of Zyskowski’s letters, and some he did not pay any attention to. Those from complainant preserved and produced by defendants (seven in number) are in Polish for the most part, though some English is used, and are without date, although supplemental written evidence of the dates of two of them appears. English translations were introduced in connection with the originals, conceded to be correct in the main, though the translators differed as to the exact significance of a few words or expressions of minor importance. - Four of these letters were written before the quitclaim deed was given. They are evidently a broken part of the correspondence, and the •order in which they were sent is a matter of inference. 'They are as follows:

'“Mister ZyskowsM:
Do not be afraid. . I will not trouble you nor will my heirs. If necessary I will give you a quitclaim deed to that. What else is new with you and how are the Poles getting along?
“Well wishing, Rev. Anzelm.”
’*Mister Zyskowski:
“In answer-to your letter for papers, I hereby state that they are not necessary, because neither I nor my heirs will demand anything from you. This letter you may keep and use as evidence.
“Sincerely yours, Father Mtynarczyk.”

Miss Kaszubowski, on cross-examination by defendants’ counsel, identified this letter as written by her from Buffalo, under general instructions from complainant, and commented, when questioned by complainant’s counsel, on the absence of any heading of place or date. A slip was later produced which Zygmunt Zyskowski testified he had cut from the top of the letter, to get the address in order to reply to it, which she identified and translated as follows:

“530 Wilson Street, Buffalo, N. Y.
“July 20, 1907.
“Father Zyskowski:
“You send to that lawyer T. Kennedy in Pittsburg your original deed and about two blanks quitclaim deed and he will fix that right.
■ “Those shysters 'in Iron River that made out the deed, of course don’t understand anything, and you. will again have trouble. Before a deed is placed on record it must first be examined by a good lawyer.
“If you wish I will sign that old stuff that you sent, me.
“Well wishing, Rev. Anzelm.
“I am laying sick in a hospital.”
“Father Zyskowski:
“Why don’t you want to send the original deed with description to the lawyer, so that he could look it over whether everything is in good order?
“I took him for the purpose that everything should be done well, so that you will not place any blame on me any more.
“Well wishing, Rev. A. Mtynarczyk,
“Phoenixville, Pa., R. F. D. No. 3.”

On the back of the letter is the following:

“In this deed, it ought to be inserted that I do quitclaim all mineral rights. Do you understand?”

In this letter, otherwise in Polish, the words “inserted that I do quitclaim all mineral rights” were written in English.

Complainant states that he first learned of a mine being opened on this land while he was a pastor at Utica, through a notice in a Polish paper published in Milwaukee which was called to his attention by an. associate. This was said to be in 1909. The three, remaining letters in evidence were evidently written subsequently, and contain no charge of misrepresentation or fraudulent inducement. It is urged that this should not be imputed against him, as they were only for the purpose of trying by friendly advice and persuasion to obtain some recognition of what he had done for the Zyskowskis and compensation for the same. One of these letters states that an attorney at Crystal Falls had written him two times about the Honeywell property, stating that abundant rich deposits of iron ore had been discovered upon it, advising as follows:

“And therefore hang well together, men [or stick well together, fellows], so’that some one will not cheat you. Surely if anything should come up, then please let me know, and I will yet defend you.
“You and Konwinski be prudent. Don’t let anybody take advantage of you. The lawyer bases his claim on the fact that Honeywell’s wife did not sign the deed tó me. But where could one search for her? I am giving him absolutely no information. I am your well wisher. I wish -you good health and all success.
“Rev. Anselm.
“I inclose envelope with address.”

An envelope produced in evidence and identified as the one in which this letter was received bore the postmark, “Utica, N. Y. Nov. 25, 1909.”

“Mr. ZyshowsTd:
“I heard there was some awful fortunes in this land. The lawyers in Crystal Falls are after me to take it away from you some way. Let me know about all this. If you have taken much money, then offer me something out of it too, because if the attorneys will give you trouble, then I will not defend you. Well wishing,
“Rev. Anselm.
“I inclose envelope for reply.”

On July 6, 1910, Joseph Zyskowski, Constanty’s son, received an undated letter from complainant in part as follows:

“Your kind letter received and contents carefully noted. I wish your papa would.have such good heart and give me something out of his fortune. All that he got through me. I’d pray for him in my holy sacrifice of mass. * * * How is your father and mother? They must be an old people. I know them- well to be a good sort of people, and I remember your sister. _ I pray for her soul. How is getting along Mr. Konwinski? He must be well off. * * *
“Sincerely yours, Rev. A. Mtynarczyk.'”

Aside from the one written by his secretary, complainant admitted all these letters were in his handwriting.

The undisputed evidence shows complainant did not act upon hasty impulse in executing this quitclaim deed. He testified that a desultory correspondence about it had been going on for over a year. He was fully advised from the start that the claimed defect in his original conveyance which he was asked to remedy was the mineral reservation. He had abundant time to investigate to his satisfaction and took the matter to his lawyer before he acted.

In extenuation of his failure to appreciate fully what he was doing, and lack of business precaution in thus allowing himself to be inveigled into signing the deed, complainant explained on his direct examination that Nhe was then under great mental stress by reason of a criminal prosecution pending against him in which he was convicted, but had appealed to the supreme court of Pennsylvania. It was during the time this case was pending in the supreme court that he traveled in the Orient, and he states that he was in Canada when the appeal was decided in his favor. The subject thus opened by complainant was pursued in cross-examination by defendant’s counsel with some tenacity, eliciting derogatory admissions, in the light of which his statement that he was never suspended from the priesthood taxes credulity. While the facts thus disclosed, which it is unnecessary to detail, have, as complainant’s counsel contend, no direct bearing upon the issue, and would be inadmissible were complainant not a witness, yet, having voluntarily offered himself as a witness to establish his case, the cross-examination was legitimate as bearing upon his credibility, and we cannot agree with the contention of his counsel that the facts shown should be wholly disregarded because unduly emphasized and unfairly dwelt upon by opposing counsel. They have no place here except for the one purpose of impeachment, and, of course, can only be considered in that connection in the usual manner impeaching facts are regarded in weighing a witness’ testimony.

To review the evidence further would unduly extend this opinion. A careful'reading of this record leads inevitably, we think, to the conclusion that the most satisfactory proof and safest ground disclosed is the written evidence, by which we find title to the property in controversy stands without exception or reservation in defendants, sustained by the written assurance of complainant that neither he nor his heirs will demand anything, and that he will, as he did, give a quitclaim deed to put the title where we find it.

Complainant has not overcome by clear and convincing evidence the presumption that the quitclaim deed which he deliberately executed to perfect Constanty’s record title contains the agreement of the parties, understandingly made in consummation of previous negotiations.

The decree is affirmed, with costs to defendants.

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


source: Caselaw Access Project

author: Stone, C. J.

license: Public Domain

text:
    JENSEN v. GAMBLE.
    1. Action — Estates of Decedents — Bills and Notes — Dividing Up Cause of Action — Judgment—Indivisibility of Cause of Action.
    The principle which prevents the splitting up of causes of action and forbids double vexation for the same thing is a rule of justice, and not to be classed among technicalities; an entire claim or demand arising out of a single transaction, whether in the nature of a tort or contract, cannot be divided into distinct claims and the same form of action be brought for each, or two suits be maintained without the consent of the party liable.
    2. Same — Bills and Notes — Estates of Decedents.
    Where plaintiff was one of three beneficiaries entitled tó the proceeds of a note which formed part of a decedent’s estate, and, as determined in the final order of distribution made by the probate court, he was entitled to one-third interest in the instrument, an. action could not be maintained under 3 Comp. Laws 1915, § 13916, for his distributive share, since the obligor should not be compelled to respond in several proceedings upon a note creating a single debt or obligation.
    3. Same — Executors and Administrators.
    And, if the executor of the estate had been discharged, an administrator de bonis non might be appointed to bring the action, or, in the event the other claimants would not join in bringing suit, they might be made defendants in equity, where the whole controversy can be determined.
    4. Same — Pleading—Nonjoinder.
    It was not necessary for defendant to plead nonjoinder in abatement: the objection being fatal at any stage of the proceedings in contract actions.
    Error to Oceana; Sullivan, J.
    Submitted February 2, 1916.
    (Docket No. 39.)
    Decided March 31, 1916.
    Assumpsit by Lewis Jensen against Joseph E. Gamble on a promissory note. Judgment for plaintiff on a verdict directed by the court. Defendant brings error.
    Reversed; new trial denied.

      F. E. Wetmore, for appellant.

      Sutherland, Johnson & Sessions, for appellee.
   Stone, C. J.

This is an action of assumpsit commenced by declaration. In the introductory part of the declaration is the following averment:

“For that whereas, the said plaintiff avers that on, to wit, the 9th day of March, 1915, he was the owner of an undivided one-third of a promissory note, a copy of which is hereafter set forth.”

The remainder of the declaration consists of the common counts alleging that the indebtedness accrued to the plaintiff, without alleging any assignment or transfer to the plaintiff, from any person.

At the foot of the declaration there was the following notice:

“To the Above-Named Defendant: Take notice that on the trial of the above cause, the plaintiff under the money counts, will give in evidence a certain promissory note, a copy of which is given below.”
Signed by attorneys for plaintiff.
“Copy.
“February 1, 1901.
“One year after date I promise to pay to the order of Charles Jensen sixty-three hundred ($6,300.00) dollars, with interest at°the rate of 5 per cent, per annum. Value received.
“$6,300.00. J. E. Gamble.”

On the back of the note there were three indorsements of interest.

The plea was the general issue with a special notice of the statute of limitations, and claiming, among other things, the following:

“This defendant will further insist in his defense that this is bringing a suit for a part only of a claim, and cannot for that reason be maintained. Defendant will further show that the plaintiff has no right to bring said action in its present form.”

To maintain the issue, the plaintiff offered in evidence the promissory note, a copy of which appears above, and also introduced the files in the probate proceedings in the matter of the estate of Charles Jensen,deceased (he died July 1, 1905), including the will of Charles Jensen, which devised all his property, both real and personal, to Anna Jensen. The probate proceedings showed the appointment of Burt Wickham, as administrator of the estate of Charles Jensen, and contained the inventory showing that the total property belonging to .the estate was the note in suit. Plaintiff also introduced the final account of Burt Wickham, as administrator, showing that the note of $6,300 was on hand.

The final order of distribution in the estate of Charles Jensen was introduced, and, in part, it was as follows:

“It further satisfactorily appears to the court that after the death of Chas. Jensen, his wife, Anna Jensen, the sole legatee under the will of the said Chas. Jensen took over said note, and retained it during her lifetime, and that at her death (she died March 5, 1912), it passed to the custody and control of Francis W. Fincher, the executor of the estate of the said Anna Jensen, and that at the time of her death she was the owner of said note, and all rights under said note, and that said note now belongs to, and is a part of, the estate of the said Anna Jensen.”

The petition of Francis W. Fincher, the executor of the last will and testament of said Anna Jensen, showing that said estate had been fully administered, and that he desired to file his final account and be discharged, and that the residue of the estate be distributed, was offered and received in evidence.

The final order of distribution in the Anna Jensen estate was received in evidence, and was in part as follows:

“It satisfactorily appears to the court that there is now in the hands of said executor the sum of $298.06, and a certain note dated the 1st day of February, 1901, for the sum of $6,300 given by J. E. Gamble to Charles Jensen, which note at her death belonged to the said Anna. Jensen. It further satisfactorily appears to the court that the final account of said executor should be allowed at the sum of $65 for his services, besides his •expenditures, and that the residue of said estate, including said note, belongs equally to Lewis Jensen, Maggie Gulumbo, and Annie Gamble, each to have and own one-third; it is therefore ordered, adjudged, and decreed that * * * the residue of said estate be distributed equally between Lewis Jensen, Maggie Gulumbo, and Annie Gamble, and that the said note for $6,300 and the interest thereon shall belong to the said Lewis Jensen, Maggie Gulumbo, and Annie Gamble, each to have a one-third interest therein.”

It also appeared that the will of Anna Jensen, deceased, which had been duly admitted to probate, bequeathed to Lewis Jensen, Maggie Gulumbo, and Annie Gamble, each one-third of any property which she might own at the time of her death.

At the close of the plaintiff’s case, counsel for defendant moved the court for a directed verdict in his favor, for' the reason that the case as made was a splitting up of an indivisible cause of action, and an attempt to sue upon and recover only a portion of the note. The motion was overruled and an exception duly taken. The court directed a verdict and judgment for the plaintiff for $2,450 and costs. The defendant brings error.

The first two assignments of error are to the following effect:

(1) That the court erred in overruling defendant’s motion to direct a verdict for defendant for the reason above stated.

(2) That the court erred in holding and determining that the statute gave a right of action for an undivided interest in the note in suit.

The last assignment of error raises objection to the specific language of the charge as to the liability of the defendant in this action.

It is the claim of the appellant that this was the splitting up of an indivisible cause of action, and as such cannot be maintained by the plaintiff, and the following cases a,re cited in support of ‘that position: Dutton v. Shaw, 35 Mich. 431; Allison v. Connor, 36 Mich. 283; Hartford Fire Ins. Co. v. Davenport, 37 Mich. 609; Mercantile Ins. Co. v. Holthaus, 43 Mich. 423 (5 N. W. 642) ; Milroy v. Mining Co., 43 Mich. 231 (5 N. W. 287); Vincent v. Moore, 51 Mich. 618: (17 N. W. 81); Continental Ins. Co. v. Lumber Co., 93 Mich. 139 (53 N. W. 394, 32 Am. St. Rep. 494); Blackburn v. Blackburn, 132 Mich. 525 (94 N. W. 24); Union Ice Co. v. Railway Co., 178 Mich. 346 (144 N. W. 1033).

In Dutton v. Shaw, supra, this court said:

“The principle which prevents the splitting up of causes of action, and forbids double vexation for the;same thing, is a rule of justice, and not to be classed: among technicalities. It was intended to suppress serious grievances.”

In Continental Ins. Co. v. Lumber Co., supra, it was said:

“It is a well-settled rule that an entire claim or demand arising out of a single transaction, whether in, thé nature of a contract or tort, cannot be divided into separate and distinct claims, and the same form of action brought for each, or two suits maintained, without defendant’s consent,” and many cases are cited.

.On the other hand, it is the claim of the plaintiff that he had the right to bring and maintain this suit for his share of the note, as adjudged by the decree of the probate court, under section 9444, '3 Comp. Laws, as amended by Act No. 177, Pub. Acts 1903 (3 Comp. Laws 1915, § 13916), which reads as follows:

“In such decree the [probate] court shall name the persons and the proportions or parts to which each shall be entitled; and such persons shall have the right to demand and recover their respective shares from the executor or administrator, or any other person having the same, or any part thereof. * * *”

Counsel cite authorities from other States, also Perrin v. Lepper, 34 Mich. 292, and Michaud v. Lumber Co., 122 Mich. 305 (81 N. W. 93), and they urge that defendant, not having pleaded nonjoinder of plaintiffs, is in no position to raise the question here urged.

There can be no doubt that the rule of law against the splitting of a single cause of action into several actions is founded upon the plainest and most substantial justice; that is, that litigation should have an end, and that no person should be unnecessarily harassed with a multiplicity of suits.

The rule that a single cause of action cannot be split and made the subject of several actions applies, as a rule, where the cause is in favor of several persons jointly or against several persons jointly, and since a plaintiff having an entire indivisible demand cannot divide it into distinct parts, and maintain separate actions on it, so he cannot accomplish the same result by an assignment of a part of his demand, thereby enabling others to do what he could not do. 1 R. C. L. p. 341, and cases cited; 23 Cyc. p. 439 et seq.

It would be unjust to hold that where A. has given his promissory note for a stated amount, all of which is due at one time, he should be subjected to three or perhaps ten suits upon such individual obligation or contract. There can be but one action on a single demand.

We are of the opinion that there is nothing in the statute above referred to which modifies or abrogates the rule just stated. It cannot be successfully urged that there is no way in which the rights of the plaintiff and defendant can be determined, except by maintaining this action. The record does not show that the executor of the estate and will of Anna Jensen has been discharged. If he has been discharged, an administrator de bonis non could be appointed to bring the suit, or, in case the other claimants will not join as plaintiffs, they may be made defendants in a suit in equity, and the whole controversy be brought before the court and determined in one suit. Mercantile Ins. Co. v. Holthaus, supra; 4 Cyc. pp. 28, 29, and cases cited.

We cannot agree with plaintiff’s counsel that it was necessary for defendant to have pleaded the nonjoinder of plaintiffs in abatement. Where persons who ought to be made plaintiffs, in an action on a joint contract, are not joined as such, the objection need not be urged by plea in abatement, or even by special notice, but is fatal on objection, at any stage of the action. Blackburn v. Blackburn, supra, and cases there cited; 1 Green’s Mich. Practice (3d Ed.), § 261.

The rule is otherwise in actions of tort, as stated in Michaud v. Lumber Co., supra, and in Achey v. Hull, 7 Mich. 423. We think that the trial court erred in not directing a verdict and judgment for the defendant, for the reason above stated.

The judgment of the court below will be reversed, and no new trial granted.

Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


author: Bird, J.

text:
    LONGCOR v. TURNER.
    Equity — Adequate Remedy at Law.
    Possession being necessary to a suit to quiet title, a complainant, wbo bas been ousted, should bave been required to pursue bis remedy at law.
    Appeal from Van Burén; Des Voignes, J.
    Submitted April 16, 1915.
    (Docket No. 13.)
    Decided April 21, 1916.
    Rehearing denied June 23, 1916.
    Bill by Wesley N. Longcor and another against John Turner and others to quiet title to certain land and for other relief. From a decree for complainants,'defendants appeal.
    Reversed.

      Thomas J. Cavanaugh and Glenn E. Warner, for complainants.

      W. J. Barnard, for defendants.
   Bird, J.

This litigation grows out of a dispute between the parties ¡as to where a certain line fence should be located. . Complainants own the east half of the northeast quarter of section 11 in the township .of Porter, Van Burén county. Defendant Harris owns the east 20 acres of the northwest quarter of the northeast quarter, and the defendants Turner own the remainder of the west half of the northeast quarter. The division fence between these two 80’s prior to the year 1887 was a rail fence of many years’ standing. Some time in the year 1887 one Farrow, a tenant of complainant, and Munger, who was then the owner of the Harris land, agreed to and did erect, beginning at the highway fence on the north, 40 rods of straight rail fence between the Harris land and complainants’. In doing so, they deflected it to the east on complainants’ land so that when it joined the road fence on the north it was'8 feet and 10 inches east of the point where the old rail fence joined it. This resulted in adding a triangular piece of land to the Harris farm. As to the reason for deflecting the line the parties are in conflict. Complainants insist that the object of it was to avoid an old hedgerow and stone piles, and that it was agreed that it should be set back' on the old line the following spring; while defendants claim it was deflected for the purpose of straightening it, and that nothing was said about placing it back on the line of the old fence. This fence remained there until 1894, when Bly, who was Munger’s grantee, removed it, or a portion of it, because of its decayed condition. It is claimed, but disputed, that since 1894 no fence was erected in its stead until 1912. Complainants assert that they have worked the land up to the line of the old rail fence; whereas defendants maintain that they have worked the land up to the line of the old straight rail fence. In 1912 Miss Harris erected a wire fence on the line of the old straight rail fence, and in her absence complainants moved it onto the line of the old rail fence. Defendant Harris then tore it down to await the settlement of the true line. Complainants filed this bill to restrain what they assert were repeated trespasses, and the bill contains a prayer for a decree defining the line between them, and further to have the title to the disputed piece of land quieted in them. At the hearing the claim of the defense was that the fence was set over by agreement of Munger and Farrow in 1887, for the purpose of straightening it, and that thereafter it was acquiesced in by both parties, and that the fence remained there until 1894, and since that time defendant Harris and her grantors have had possession thereof, have tilled the same, and all the while asserted title thereto.

The defendants in the trial court denied the right of complainants to relief, on the ground that- they did not have possession of the disputed strip at the time of commencing suit. They have'raised the same question in this court. The testimony- tends to show that defendant Harris had possession of said disputed strip at the time she built her wire fence in 1912. The complainants appear to have had possession for a short interval after they moved the wire fence which defendant Harris had erected. But it appears that at the time of the commencement of the suit defendant Harris had removed the fence and regained possession of the land in dispute. Inasmuch as defendant Harris claims title to the land in dispute, and appears to have had possession thereof when the suit was started, and for some time prior thereto, we are of the opinion that defendants’ position is well taken, and that the question of title is one which should be settled by a suit iq ejectment. Seymour v. Rood, 121 Mich. 173 (79 N. W. 1100); Tinker v. Piper, 149 Mich. 335 (112 N. W. 913).

The decree will be reversed, and the bill of complaint dismissed, without prejudice to complainants to settle the controversy by a suit in ejectment. Defendants will recover their costs in both courts.

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

The late Justice McAlvay took no part in this decision.


text:
    TAYLOR v. DAVARN.
    1. Action — Parties—Intoxicating Liquors — Principal and Surety — Surety on Liquor Bond — Civil-Damage Action — Venue.
    Act No. 266, Pub. Acts 1895, as amended (Act No. 321, Pub. Acts 1907, 3 Comp. Laws 1915, § 12340 et seq.), provides that suits may be commenced in the circuit court in any county in which plaintiff resides, in actions to enforce the civil-damage statute, service to be made on the surety company by serving the insurance commissioner with a copy of the process and such corporation shall appoint the commissioner in writing as its agent to accept service. Plaintiff brought a civil-damage action in Ionia county where she resided, and joined three saloon keepers, residents of other counties, as parties defendant. Held, that the action was properly commenced in the county of plaintiff’s residence.
    2. Constitutional Law — Service op Process — Title op Statute.
    The title of Act No. 321, Pub. Acts 1907, was sufficient to comply with the constitutional requirement that the object be expressed in the title.
    3. Appeal and Error — Commissioner' of Insurance — Service — Saving Questions for Review.
    An objection that the method of service on the commissioner of insurance was invalid, not raised in the trial court, could not be considered on appeal.
    4. Intoxicating Liquors — Evidence—Death.
    In a civil-damage action for the death of plaintiff’s husband from intoxicants furnished by defendant saloon keepers, evidence that decedent had five drinks of whisky in the several saloons, that he probably drank more, and conflicting evidence from which it might fairly be inferred ' that he was intoxicated when arrested, and that he caused a fire in the jail, and died as a result thereof, was properly left to the jury as an issue of fact.
    5. Same — Instructions—Trial.
    Where defendant requested the court to submit to the jury a special question whether or not plaintiff’s husband was intoxicated, and the court advised the jury that in order to find for plaintiff they must find that decedent was -intoxicated when he came to his death, and so if they found for plaintiff the answer to the special question would be “yes,” but if they found for defendants tbeir answer should be “no,” and later, when the jury had gone out, they were called back and advised that if they found for defendants their answer to the special question would not be material and if they found for plaintiff they must necessarily answer the question proposed by defendants, “yes,” the instructions were objectionable, because the jury were informed how to make the answer to the special question consistent with the general verdict.
    Error to Ionia; Perkins, J., presiding.
    Submitted June 24, 1915.
    (Docket No. 45.)
    Decided April 21, 1916.
    Case by Elizabeth Taylor against James Davarn and the Michigan Bonding & Surety Company and others for unlawful sales of intoxicating liquor, resulting in the death of Benjamin Taylor, plaintiff’s husband. Judgment for plaintiff. Defendants bring error.
    Reversed.

      Ellis & Ellis, for appellants Davarn and Hosley.

      S. Wesselius, for appellant Gould.

      A. F. Bunting, for Michigan Bonding & Surety Company.

      Alfred R. Loche and R. A. Hawley, for appellee.
   Bird, J.

Plaintiff recovered a judgment under the civil-damage act in the Ionia circuit court, against the defendant saloon keepers and their surety, the Michigan Bonding Company, for the unlawful acts of the saloon keepers in having contributed to the death of her husband on April 1, 1913, in the village of Lowell. Defendants have assigned error.

Plaintiff’s husband, Ben Taylor, on April 1, 1913, drove a pair of horses from Saranac to Lowell, and arrived there at about 3 o’clock in the afternoon. Upon his arrival, he and his companion visited the saloons conducted by the defendants, and drank intoxicating liquor. About two hours later they entered their carriage to return to Saranac, but before doing so, Taylor drove up and down the main street so immoderately that he was arrested for fast driving, and locked up by the deputy sheriff in the village jail. At 7 o’clock a fire was discovered in the cell in which Taylor had been placed, and he Was so overcome by the smoke and fire that he died soon thereafter. The theory upon which plaintiff recovered was that her husband was a person in the habit of becoming intoxicated; that he became intoxicated' by liquor drunk at the saloons of the defendants, and when taken to jail he was intoxicated, and that such intoxication caused or contributed to his death. The testimony showed that the jail was heated with steam, lighted with electricity, and that there was no fire in or about the building, and plaintiff argued from this that Taylor was responsible for the fire which subsequently caused his death.

1. The appellants raise the question that the circuit court had no jurisdiction to render the judgment, because it never acquired jurisdiction of the parties defendant. Plaintiff resides in Ionia county, defendants Davarn, Hosley, and Gould reside in Kent county, and the principal office of the defendant bonding company is in Wayne county. Suit was commenced by summons in Ionia county, and was served on the bonding company by making service thereof on the commissioner of insurance in Ingham county. Return of this summons was duly made and filed after the return day, showing that the other defendants could not be found in Ionia county. An alias summons was then taken out with an indorsement thereon to the effect that the bonding company had been duly served, and the same was served on the other defendants in Kent county. Defendants thereupon appeared specially and moved to dismiss the suit, alleging a want of jurisdiction in the court. Subsequently, a plea in abatement was filed for the same purpose, but both motion and plea were overruled. Davarn and Hosley filed a plea to the merits, and defendants Gould and the bonding company were defaulted for'want of appearance. The point made is, that the service on the bonding company was invalid, and therefore was insufficient upon which to base service of the. other defendants in Kent county. Act No. 266, Pub. Acts 1895, as amended by Act No. 321, Pub. Acts 1907 (3 Comp. Laws 1915, § 12340, note), is the law authorizing surety companies to do business in this State. The proviso added by Act No. 321 provides:

“That suits may be commenced in the circuit court in any county where the plaintiff resides, by declaration or writ, and service shall be made in such cases only upon the commissioner of insurance in like manner and with like effect as is provided for the service of process upon societies, orders or associations organized under the laws of any other State, province or territory and doing business in this State, and not having its principal office within this State, and for the purpose of service of process as herein provided such surety company shall appoint in writing the commissioner of insurance, or his successors in office, to be its true and lawful attorney.”

If this proviso is valid, it authorized the plaintiff to commence suit in Ionia county where she resided. In considering the purpose of this proviso in People v. Fidelity & Deposit Co., 163 Mich. 94 (127 N. W. 765), Mr. Justice Stone observed that:

“It is reasonable to suppose that this refers to cases upon that class of bonds referred to in the preceding provisos. It seems to refer to service of process upon a domestic corporation, for it provides that such service shall be with 'like effect as is provided for the service of process upon societies, orders, or associations organized under the laws of any other State, province or territory, and doing business in this State,’ etc. The entire purpose of the amendatory act seems to have been to provide for the execution of liquor bonds by domestic corporations, and proceedings in case of suit thereon.”

Counsel argue that the legislation did not contemplate that the bonding company should be served with process in any county other than the one in which it resides, or in the county where the principal of the bond resides and does business. If such were the intention of the legislature, it was most unfortunate in the language which it chose to convey that intention. The words, “that suits may be commenced in the circuit court in any county where the plaintiff resides, etc., are not ambiguous, nor are they involved in doubt. We must hold that these words mean what they say, and that they authorized plaintiff to commence suit where she did.

But counsel further argue that if the language will admit of no other construction, then that part of the act is unconstitutional, because there is nothing in the title of the act to indicate that there was to be any change in the jurisdiction of the courts of this State. In other words, that the object .of the act is not fairly expressed in its title. Counsel’s point and argument thereon are answered by this court in the case of People v. Fidelity & Deposit Co., supra, where the same question was raised and passed upon adversely to defendants’ contention.

2. Another question is raised in the briefs in this connection, namely, that the service of the summons on the commissioner of insurance by the sheriff of Ionia county was an invalid service. Act No. 225, § 1, Pub. Acts 1901 (3 Comp. Laws 1915, § 12430, note), points out with reasonable certainty as to how this process shall be served. If that statute is to be followed, and no other, in the making of service upon the insurance commissioner, it raises a very serious question as to the validity of the service made. Our attention, however, is called to the fact that this point was not raised in the lower court; that it was not included in the motion to dismiss, nor in the plea, and therefore, under the. rule, we cannot consider it. We shall refrain from passing upon it, as we think plaintiff’s objection is well taken.

3. Error is assigned because the trial court refused to direct a verdict for defendants on the ground that Taylor’s arrest and the failure to bring him forthwith before the justice was the intervention of a wrongful human agency, to which must be ascribed the proximate cause of death. Counsel argue this question at considerable length and cite many authorities defining and applying that general rule. In order to successfully apply that principle in this case, counsel are obliged to assume that Taylor was not intoxicated when he was arrested, and that his intoxication did not contribute to his death. Counsel attempt to show that as a matter of fact Taylor was not intoxicated. We cannot accept this conclusion. The testimony shows 'that Taylor drank at least five drinks of whisky in defendants’ places, and the inferences are very strong that he drank more. Whether he was intoxicated, and, if so, to what extent, the testimony was somewhat conflicting. It was, however, a question for the jury, and the testimony was sufficient to sustain their finding. To have directed a verdict on this ground would have been to ignore the claims of plaintiff. Plaintiff claimed and offered testimony in support thereof, that defendants sold liquor to Taylor, that he was in the habit of becoming intoxicated, and he was intoxicated when arrested, and that his intoxication was responsible for the fire which afterwards caused his death. The testimony was sufficient to send all of these questions to the jury. In order to justify such a direction as was asked, the court would have been obliged to find that Taylor was not intoxicated. This he could not do under the testimony, and if he could not find that fact, the motion to direct a verdict was properly refused. The rights of defendants under this phase of the case were amply protected by the charge of the court, that if Taylor was not intoxicated, or if intoxicated, and such intoxication did not cause nor contribute to his death, the plaintiff could not recover.

4. The defendants requested the submission of the following special question to the jury:

“Was the plaintiff’s husband, Benjamin Taylor, intoxicated at the time he came to his death on the 1st day of April, 1913?”

This request was complied with and the question was submitted with the usual instruction. After the jury had considered their verdict for several hours, they returned into court and requested further instructions with reference to the special question. The trial court then said to them:

“As you -will recall from the instructions I gave you, in order to find for the plaintiff you must find that her husband, Benjamin Taylor, was intoxicated at the time he came to his death. So if you find for the plaintiff your answer to the question would be ‘Yes.’ If you should find for the defendant you would find that he was not intoxicated at the time he came to his death, and your answer therefore would be ‘No.’ * * *
“A Juror: Nothing difficult, but if it has to be signed all ‘Yes’ or all ‘No.’
“The Court: Yes; all ‘Yes’ or all ‘No.’ If he was not intoxicated at the time he met his death the plaintiff cannot recover, as I told you. If he was intoxicated at the time he met his death the plaintiff may recover, the other conditions existing to which your attention was called in the general charge. If you should find for the plaintiff it would not be a difficult thing to find the necessary elements to entitle her to recover, namely, he was intoxicated, because, if you do not find he was intoxicated, your verdict cannot be for the plaintiff. If you should find he was not intoxicated at the time of his death, your verdict necessarily must be for the defendant. You may take the paper and retire to your jury room.”

The jury were later called back and further instructed that:

“The Court: Gentlemen, in the instructions I gave you a few moments ago relative to this special question I think perhaps I did not fully explain to you that there was another element in the case which should be considered in answering that question.
“As I said to you in substance, that if you find for the plaintiff you must necessarily answer the question as to her husband’s intoxication ‘Yes.’ Now, on the other hand, if you should find for the defendants there are two elements that enter into the question. I instructed you, you will remember, that there were four elements necessary for the plaintiff to prove by a preponderance of evidence to entitle her to a verdict:
“First: The sales of liquor to her husband by the defendants, or one of them.
“Second: The habit of her husband of becoming intoxicated. ' .
“Third: His intoxication at the time of his death.
“Fourth: That that intoxication contributed to his death.
“So in answering the questions, if you should find for the defendants, whether you should answer it ‘Yes’ or ‘No’ would be immaterial. If you should find that he was not intoxicated at the time of his death, your verdict then must necessarily be for the defendants. Still, if you should find that he was intoxicated, but that the intoxication did not contribute to his death, your verdict for the defendants would be justified under the instructions I have previously given you, and it is to correct the possibility of a misunderstanding of what I said a few moments ago I recalled you upon that point.
“If the plaintiff recovers, the answer must be ‘Yes’ in any event.' If the defendants recover, the answer may be ‘Yes’ if you should find that the intoxication did not contribute to his death, or ‘No’ if you should find he was not intoxicated at all. Both elements are involved.”

The objections raised to these instructions are that the tendency of them was to coerce a verdict, and because it instructed them what answer to make to the special question to make it consistent with their general verdict. We are of the opinion that the error is well assigned under the holdings of this court in the' cases of Cole v. Boyd, 47 Mich. 98 (10 N. W. 124); Maclean v. Scripps, 52 Mich. 214 (17 N. W. 815, 18 N. W. 209); Beecher v. Galvin, 71 Mich. 391 (39 N. W. 469) ; Mechanics’ Bank v. Barnes, 86 Mich. 632 (49 N. W. 475); Brassel v. Railway Co., 101 Mich. 5 (59 N. W. 426).

It was said in Maclean v. Scripps, supra, that:

“The object of the statute (Comp. Laws 1871, § 6026; How. Ann. St. 1882, § 7606) requiring the jury to answer specifically questions giving their conclusions on the facts necessary to be found to entitle a party to recover, was to ascertain whether or not they had found sufficient facts from the evidence to support their general verdict under the law as given them by the court. It is the province of the jury to find these facts from the evidence, without aid or suggestion from the court, and this can never be done if the jury are told in advance what facts are necessary to be found to support the verdict, or what answers to the questions propounded will be consistent therewith, or what they must find in order to answer a question propounded in the negative or affirmative. This practice will make the general verdict control the findings, instead of the findings control the general verdict; and thereby the object of the framers of the statute will be defeated. This was the result of the practice indulged in this case. The effect is to make the court, and not the jury, decide the main issues in the case. Cole v. Boyd, 47 Mich. 98 [10 N. W. 124], The special findings of the jury were sufficient to support the general verdict, had the proceedings upon which th,ey were based not been erroneous.” '

The question submitted in this case was an important one. The question as to whether Taylor was intoxicated at the time of his death was the pith of plaintiff’s case. Unless plaintiff was able to establish that fact, the jury were instructed that no recovery could be had. In view of the importance of the question, the instruction that their answer to the special question, must be in harmony with their general verdict, and advising them what their answer should be under certain circumstances, was clearly error because it violated the rule laid down in the foregoing cases. We have not overlooked the case of People v. Murray, 52 Mich. 288, 291 (17 N. W. 848). In that case, however, the language of the trial court was construed to have reference to their general verdict. Evidently it was not intended by what was there said to overrule what had previously been said in Cole v. Boyd, supra. We are of the opinion that the purpose of the statute will be better conserved by following the cases cited.

For this error the judgment must be reversed, and a new trial granted.

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

The late Justice McAlvay took no part in this decision.


author: Kuhn, J.

text:
    BARTHOLOMEW v. WALSH.
    1. Principal and Agent — Eraud—Sale—Stock—Respondeat Superior.
    Evidence that one of the defendants was principal in a sale of corporate stock, and the other in fact his agent, although he appeared to he acting in a representative capacity for a corporation which had issued the stock, with testimony that the hooks of the corporation showed that the agent was acting for the other defendant, and not as its representative, held, to present an issue of fact in an action'for fraudulent representations made by tbe alleged agent.
    2. Evidence — Books of Record — Corporations.
    The original minute book of a corporation showing entries of stock issued by it is the best and primary evidence of the facts so disclosed, and, in the absence of anything tending to show the falsity or incorrectness of the exhibit, is conclusive, but where there was testimony tending to impeach the genuineness of the minute book, as by the opinion of an expert that one page had been inserted by a different operator and machine than those whereby the remainder of the record had been entered, it was proper to leave the question to the jury.
    S. Appeal and Error — Briefs—Statement of Pacts — Supreme Court Practice — Pointing Out • Inaccuracies.
    Where the appellant in his statement of facts asserted, without correction by appellee that certain exhibits were mere expressions of opinions or intention and contained no representations of fact, the fact will be accepted by the court as stated in the brief, and hence, no claim was open to the other party that the exhibits were the basis of the false representations alleged. Supreme Court Rule 40.
    4. Principal and Agent — Joint Tort-Peasor — Praud.
    On the trial of an action for fraud claimed by plaintiff to have induced the sale of corporate stock by one of defendants, whose agent made the sale, the guilt of the principal necessarily implied the agent’s guilt; and a charge authorizing the jury to hold one of the defendants guilty as principal, followed by a verdict releasing the agent from liability, was erroneous and prejudicial.
    5. Same — Knowledge.
    Palse representations, made without any knowledge of the facts, are fraudulent and render the party who made the statement liable for the wrong.
    Error to Wayne; Mandell, J.
    Submitted January 13, 1916.
    (Docket No. 5.)
    Decided April 21, 1916.
    Rehearing denied September 27, 1916.
    Case by Zachariah Bartholomew against S. Francis Walsh and W. B. J. Williams for fraud and deceit in the sale of certain corporate stock. Judgment for plaintiff against defendant Walsh, who brings error.
    Reversed.

      Geer, Williams, Martin & Butler, for appellant.

      Maxwell W. Benjamin, for appellee.
   Kuhn, J.

The defendant and appellant- Walsh was sued, jointly with the defendant Williams, by the plaintiff for damages resulting from the sale of worthless stock, the purchase of which, it is claimed, was induced by false representations. It is charged in the declaration that the defendant Williams made the representations as the agent of Walsh, who knew of their falsity and received the proceeds of the sales. The jury found the defendant Walsh guilty, and the defendant Williams not guilty.

It is the.claim of the plaintiff, and he presents evidence tending to prove, that Williams made numerous representations as to facts concerning the organization, backing, and condition of two corporations which Walsh had promoted; and it does not seem to be disputed that if these representations were made, as claimed, they were untrue. The defendant Williams, on the other hand, denies that he made any of them, and asserts that he did' not know the facts concerning the inner workings of the companies, did not know about the matters concerning which he is charged to have made fraudulent representations, and, further, that he did not tell the plaintiff anything except what he was told by the officers of the corporations and what was contained in the prospectuses or literature which he handed and explained to the plaintiff.

The defendant and appellant Walsh seeks a review of the judgment entered on several grounds, which may be summarized as follows:

(1) There was no competent evidence to show that the defendant Williams was acting as the agent of Walsh, in making these sales.
(2) The court erred in admitting certain evidence in the support of the plaintiff’s claim.
(3) The verdict was clearly contradictory, and should not be allowed to stand, because, if Walsh was guilty as charged, the defendant Williams also was guilty.

With reference to the question of agency, it was the defendants’ theory that Williams was the agent of the United Bankers’ Corporation and its successor, the Continental Bankers’ Corporation, the two corporations which were organized by Walsh. As evidence of this, there was introduced a written contract of agency signed by Williams and Anger, who was the stock sales manager of the United Bankers’ Corporation, which contract constituted Williams the agent of the corporation to sell stock. There were business cards of Williams introduced, introducing him as agent or special representative of the corporation. Also, it was shown that subscriptions were taken in the name of the corporation.

On the other hand, the plaintiff showed in support of his theory that Williams was the agent of Walsh, that according to the testimony of Williams he was employed by Walsh, that Walsh had charge of the stock selling and induced Williams to sign the contract, and that he received his instructions from Walsh and reported to him. The principal evidence in support of the plaintiff’s claim that Williams was acting as the agent of Walsh was a ledger showing accounts or items of stock sales in the United Bankers’ Corporation, including the sale of stock to the plaintiff, which were mixed up with the personal items of Walsh. There was also introduced a copy of a copy of the official minutes of the corporation, showing that at a meeting of the United Bankers’ Corporation on January 3, 1911, all the stock of the corporation, save 400 shares issued to Frederick W. Park, who was a director and legal counsel for the corporation, and Director Car-hart, was set off to Walsh in exchange for 6,500 shares in the Metropolitan State Bank of Detroit. The admissibility of this evidence we will discuss later, but, if true, the sale to the plaintiff must have been out of the stock set off to Walsh. It was therefore a legitimate inference, which the jury might draw from this testimony, that Williams was selling stock in the United Bankers’ Corporation which belonged to Walsh, and was therefore working for Walsh, and not for the corporation. There was also testimony to show that, after the plaintiff’s subscription had been taken, the United Bankers’ Corporation drew its draft on the plaintiff in favor of S. Francis Walsh & Co., and it was indorsed by Walsh for Walsh & Co., and finally cashed by the Metropolitan State Bank. , *

We are of the .opinion that in view of the financial manipulations which Walsh carried on with these two corporations and the Metropolitan State Bank, and the inevitable conclusion that Walsh was the real actor in all these financial and stock selling transactions, there was sufficient evidence, circumstantial though it was, to warrant the jury in finding that Williams was substantially acting as the agent for Walsh, though ostensibly the agent of the corporations.

The propriety of admitting the exhibit above referred to, which tended to show that at the meeting of January 3, 1911, all the stock in the United Bankers’ Corporation save 400 shares was set off to Walsh, was questioned by a proper assignment of error, on the groupd that it was not the best evidence of what occurred at that meeting because the official minute book of the corporation was in court.' This official minute book contained between pages 2 and 3 a typewritten manuscript showing the proceedings at the first meetings of the stockholders and directors of the United Bankers’ Corporation. It appears therefrom that the stockholders authorized the issuance of $2,996,000 of stock by the corporation, to buy $650,000 of the stock of the Metropolitan State Bank, and the board of directors authorized a committee, of which the defendant Walsh was a member, to investigate and accept the offer from the owner of the bank stock, and issue in exchange stock of the corporation in the above amount. The owner of the bank stock appears to be L. R. Walsh, the wife of the defendant Walsh; but there is no contention but that she held the stock simply for convenience in her name, and that it was really the property of Walsh.

On pages 5 and 6 of the minute book is the record of the minutes of a meeting of the board of directors at which “the committee reports the inadvisability of purchasing this stock from L. R. Walsh and paying therefor $2,996,000 in stock of this company.” Pages 7 to 14 of'the minute book contain by-laws of the corporation, and pages 15 to the end contain minutes of other meetings from April 4th on.

Exhibit 1 to the deposition of Mr. Park was a copy of a copy which Park had had made of all the minutes Of the stockholders’ and directors’ meetings that appear in the corporation books. The office of the corporation was in the suite occupied by Mr. Park in New York City. Park’s testimony showed that the first copy was compared twice with the original minutes, and was produced at the taking of the deposition. According to this exhibit, it was made to appear that at the meeting of January 8, 1911, the committee reported not the inadvisability, but the advisability, of the purchase of the bank stock and paying therefor $2,996,000; and that the secretary was ordered to take such action; and, further, that “the stock being delivered to the secretary, it was moved and supported that $2,996,000 of the capital stock of this corporation be issued to the order of L. R. Walsh.”

It is unquestionably true that, if no other facts were made to appear questioning the correctness and genuineness of the original minute book, Exhibit 1 would be inadmissible to contradict it; for, when the original is still in existence and can be compared with a copy taken from a copy of the original, the latter is not admissible. 2 Elliott on Evidence, § 1483; 2 Wigmore on Evidence, § 1274. In order to show that the original minutes were not genuine, the plaintiff produced as a witness one Betzoldt, who claimed to be an experienced typewriter operator, and also had business relations with the counsel for the plaintiff. It was his claim that an examination of the official minute book showed that page 5 of the book had been written by a different operator on a different typewriter than page 6, as indicated by the alleged differences in type, in margining, in punctuation, in capitalizing, and in the watermarks on the paper. Upon this testimony the plaintiff makes his claim that the page had been fraudulently inserted, and that therefore the original record of the proceedings of this meeting had at least been partly destroyed or lost, and that the original record of this particular action of the board, the true nature of which is of importance in this dispute, was not in existence, at least so far as this case was concerned. Under these conditions, it is claimed that a copy of a copy of the original is admissible. Expert testimony was introduced on the part of the defendant against the testimony of Betzoldt.

We think that the testimony of the witness Betzoldt was properly received, and that its credibility was for the jury to determine. 17 Cyc. p. 189; 2 Elliott on Evidence, §§ 1101, 1102. The court instructed the jury with reference thereto as follows:

“You are instructed that the minute book, Exhibit 17, containing the minutes of the meetings of the stockholders and directors of the United Bankers’ Corporation, is the best evidence of what occurred at those meetings, and, unless you find that the minutes as recorded in said book have been fraudulently altered or changed, you are instructed that you should disregard any evidence relative to any alleged meetings or any proceedings or actions at any meetings which are not thus recorded in said minute book.”

If more specific instructions were desired as to the credibility of the witness a request should have been preferred. We find no error in the admission of this evidence.

We are of the opinion that no claim can be made with reference to the prospectuses as being the basis of false representations, upon this record. They were, not printed in the record, and the defendant in his statement of facts declares that they contain no representations of existing facts, but only expressions of intentions or opinions, and this statement is not amended or excepted to in the plaintiff’s brief. Under Supreme Court Rule 40, we will accept the statement with reference thereto in appellant’s brief.

The jury, having found defendant Walsh guilty, must have come to the conclusion that the representations, were made by Williams. But it appears from the testimony of the defendant Williams himself that he did. not know the facts which it is claimed and alleged that he represented as true. So that it cannot be claimed that he made the representations innocently* believing them to be true, and was therefore not guilty of participation in the fraud. For it is the law that* if one makes false representations of facts which he does not know to be true and does not know anything about, he is guilty of bad faith, and cannot escape the consequences Of making false representations of existing facts. 14 Am. & Eng. Enc. Law (2d Ed.), p. 97; Beebe v. Knapp, 28 Mich. 53, 76; Holcomb v. Noble, 69 Mich. 396 (37 N. W. 497).

The court instructed the jury with reference thereto as follows:

“There are two defendants in the case. It is possible in this case to find one of the defendants guilty and the other not guilty. The form of ypur verdict, if you find for the plaintiff, will be guilty, fixing the damages. You may find, as I said, one defendant not guilty and the other guilty.”

This is clearly an erroneous instruction, under the law and the facts in this case; for, if Walsh was guilty because of the fraudulent representations made in his behalf by Williams, it necessarily follows that Williams, also, was guilty.

Considerable discussion is had in the briefs of counsel concerning the effect of the acquittal of one joint tort-feasor upon the liability of the other. The rather contradictory state of the law with reference thereto is reviewed by the annotator in 9 L. R. A. (N. S.) at page 880. In Gulf, etc., R. Co. v. James, 73 Tex. 12 (10 S. W. 744, 15 Am. St. Rep. 743), the plaintiff sued the company and its general manager and his clerk for damages growing out of an arrest and malicious prosecution for perjury in a personal injury suit against the railroad company. The verdict was against the company and in favor of,the other defendants. The court upheld the verdict, admitting that it was inconsistent and contradictory, but saying:

“In actions growing out of that class of torts characterized by the existence of a wrongful intent as distinguished from torts arising from negligence, the rule is recognized as just which compels each of the wrongdoers, when sued, to bear and assume the responsibility of all. The injured party may sue one, any number, or all chargeable with the tort, and it is no defense if one is sued that the others are not required to share his responsibility; nor where all are sued would it be any defense that one only is- made to assume the liability for the acts of all. The reason is that there can be no contribution as between them. Cooley on Torts, § 138.”

The supreme court of Iowa, in White v. Text-Book Co., 150 Iowa, 27 (129 N. W. 338), does not follow the Texas rule. The plaintiff, a former employee of the defendant company, was prosecuted by its superintendent, Crane, with the company’s authorization, for embezzlement, and arrested, but was released upon making a payment, and the criminal prosecution was dismissed. He sued the company and Crane for malicious prosecution. The verdict was in Crane’s favor but against the company, which had acted solely through him, having advised him to consult an attorney and be guided by the attorney’s advice. The court said that since Crane was the sole agent in the matter, and the corporation could act only through its agents— “the jury must have concluded that neither had probable cause. * * * Nor could the company have been found to have been actuated by malice, unless Crane also was actuated by the same bad motive. * * * Manifestly, the verdict in finding for one defendant and against the other was fundamentally contradictory and was necessarily erroneous as to one or the other. No one can tell which. If the verdict in favor of Crane was conclusive as to the company, as is contended, then that against the company was conclusive as against Crane. The verdict, in view of the facts, is so anomalous and uncertain that a new trial should have been ordered.”

In a number of cases, several of which were cited by counsel for the defendant, verdicts against the master, acquitting the servant, in joint actions founded solely on the servant’s negligence, the master being absent, have been held to be self-contradictory and bad. Indiana Nitroglycerine, etc., Co. v. Glass Co., 165 Ind. 361 (75 N. E. 649); Hayes v. Telephone Co., 218 Ill. 414 (75 N. E. 1003, 2 L. R. A. [N. S.] 764); McGinnis v. Railway Co., 200 Mo. 347 (98 S. W. 590, 9 L. R. A. [N. S.] 880, 118 Am. St. Rep. 661, 9 Am. & Eng. Ann. Cas. 656); Morris v. Improvement Co., 53 Wash. 451 (102 Pac. 402); Southern R. Co. v. Harbin, 135 Ga. 122 (68 S. E. 1103, 30 L. R. A. [N. S.] 404, and note, 21 Am. & Eng. Ann. Cas. 1011); Childress v. Railroad Co., 182 Ind. 251 (105 N. E. 467); Young v. Rohrbough, 86 Neb. 279 (125 N. W. 513). See, contra, Bedenbaugh v. Railway, 69 S. C. 1 (48 S. E. 53) ; Illinois Central R. Co. v. Murphy; 123 Ky. 789 (97 S. W. 729, 11 L. R. A. [N. S.] 352); Moore v. Railroad Corporation, 4 Gray (Mass.), 465 (64 Am. Dec. 83); Texas, etc., R. Co. v. Huber (Tex. Civ. App.), 95 S. W. 569.

In the instant case, however, it must be clear that the erroneous charge of the court led the jury to acquit the defendant Williams and at the same time find against the defendant Walsh. We are not of the opinion that it can be said that this error in the charge was not prejudiciál, for the conclusion is irresistible that the very facts necessary to be found to hold Walsh are negatived by the finding that Williams was not guilty. It is impossible to state on what theory the jury reached their determination.

For this reason, the judgment must be reversed, and a new trial granted.

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


text:
    FAULKNER v. PAYNE.
    1. Witnesses — Qualifications—Evidence—Speed, Rate of.
    A witness who had been in the habit of meeting automobiles and observing their rate of progress, had driven horses all her life, and estimated their speed and that of other moving objects, who had seen the automobile of the defendant approaching ten or more rods away, was rightly allowed to give her opinion as to the rate of speed of the car: its weight was for the jury and the opinion should not be rejected unless clearly of no value.
    2. Evidence — Pain and Suffering.
    Plaintiff’s testimony in a personal injury action that she suffered “lots of pain in every way” was not improperly received in evidence.
    Error to Calhoun; North, J.
    Submitted January-10, 1916.
    (Docket No. 85.)
    Decided April 21, 1916.
    Case by Clinda Faulkner against Milo B. Payne for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Wins or & Robinson, for appellant.

      Elmer N. Peters, for appellee.
   Kuhn, J.

The plaintiff, accompanied by her daughter, Lulu Lake, on November 12, 1912, was riding in a buggy, driving a single horse, in the township of Lee, Calhoun county, Mich., going northerly toward her home in Brookfield, Eaton county, Mich. The highway was an ordinary country road, and they met the defendant and his wife ip an automobile. The view along the road was unobstructed for a distance of at least 15 or 20 rods, and the horse which the plaintiff was driving was 23 years old, and was not afraid of automobiles, having been accustomed to meeting them on the highway. As the horse and automobile met, according to the plaintiff, the horse jumped to the right, away from the automobile, then swung back again to the left, tipping the buggy over, throwing the occupants out on the right side of the road, causing injuries to the plaintiff for which she brought this suit. The negligence relied upon was in driving the automobile at an excessive rate of speed, causing the horse to take fright. A verdict of $800 was had in the court below, and judgment was rendered thereon.

But two points are raised and discussed by counsel in their briefs, viz.: (1) The admissibility of the testimony of- the witnesses Faulkner and Lake as to the rate of speed at which defendant’s car was traveling when it approached the horse and- buggy of the plaintiff; and (2) the admissibility of the evidence of the plaintiff that she “suffered lots of pain in every way.”

.It is the contention of the defendant’s counsel that the witnesses who testified as to speed had not shown sufficient knowledge or experience to qualify them to testify as they did. Mrs. Faulkner, who was about 62 years of age at the time of the accident, testified that she had been in the habit of meeting automobiles on the road for years, that she had been driving horses all her life, had ridden on railroad trains, and had observed the rate at which the ordinary vehicles traveled, and stated that she first saw the defendant when he was about 10 or 12' rods away. Witness Lulu Lake, who was about 45 years of age, testified that in her opinion the defendant's automobile was being driven from 25 to 30 miles an hour at the time of the accident. She stated that she had driven horses all her life, had ridden in automobiles, had ridden on trains, and knew something about the speed which trains of cars made. She stated that she had an opportunity to observe the machine as it was approaching her in such a way as to enable her to form a reasonable judgment as to how fast it was going.

The accident occurred in broad daylight, at a point where the respective parties could observe one another as they approached for a distance of from 15 to 25 rods. As was said by Mr. Justice Person for the court in Harnau v. Haight, 189 Mich. 600 (155 N. W. 563, 566):

"Such testimony should not be rejected unless it is clearly apparent that it can be of no value to the jury. Its weight is, of course, to be determined entirely by them,” citing cases.

See, also, 2 R. C. L. p. 1202, and note to Tecklenburg v. Light & Water Co., 34 L. R. A. (N. S.) 784. See, also, Matla v. Motor Vehicle Co., 160 Mich. 639 (125 N. W. 708). In that case the case of Wright v. Crane, 142 Mich. 508, 510 (106 N. W. 71), cited by counsel for.appellant in his brief, is distinguished, and it is likewise easily distinguishable from the case now before us. For in that case the accident happened when it was dark, so that an approaching vehicle could not be seen for any considerable distance; and it was nob claimed that the automobile was seen by the plaintiff until it was within 20 feet of where the plaintiff stood coming directly toward him. It was held that there was not a reasonable opportunity given under these circumstances to judge the speed, and that therefore it was obvious that the witness was not in a position to estimate the speed. In the present case, however, the witnesses had ample opportunity to judge of the speed, and therefore there was no error in submitting their testimony for the consideration of the jury.

There is also no merit in the contention as to the admission of testimony of the plaintiff concerning her suffering and pain, as the declaration alleges:

“Plaintiff has, by the negligent, careless, and improper conduct of the defendant, during all of the time from the happening of said injury to the present time, suffered great pain,” etc.

We discover no error.

Judgment is affirmed.

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