text:
    LANG v. H. W. WILLIAMS TRANSPORTATION LINE.
    1. Master and Servant — Negligence—Fire on Boat — Absence of Watchman.
    The owner of a steamer tied up for the winter is not guilty of negligence in failing to keep a night watchman, rendering him liable for the death of one of the crew, who perished in a fire that broke out at night while he, with several others, who had remained on board to prepare the boat for the winter, was asleep, where the only fire on the boat was in a pony engine used for heating the cabins, and in kerosene lamps used for lighting.
    2. Same — Assumption of Risk.
    One of the crew of a steamer, who sleeps on the boat after it is tied up and being prepared for the winter, assumes any risk of fire incident to the failure to keep a night watchman, where he is familiar with the boat, knows of the method of lighting and heating it, and that no night watch is maintained.
    Error to Yan Burén; Buck, J.
    Submitted October 7, 1898.
    Decided December 28, 1898.
    Case by Ella M. Lang, administratrix of the estate of Joseph M. Lang, deceased, against the H. W. Williams Transportation Line, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Reversed.

      T. J. O’Brien and James H. Campbell ( William H. Condon, of counsel), for appellant.

      Gore & Harvey, for appellee.
   Moore, J.

This suit was commenced to recover damages on account of the death of Joseph M. Lang, who was in the employ of the defendant upon the steamer City of Kalamazoo, as one of her crew. This steamer was partly burned in November, 1896. Mr. Lang lost his life in the fire. The plaintiff recovered a judgment in the court below, from which judgment defendant has appealed. Nearly all "the assignments of error relate to the charge of the court as given, or to the refusal of the judge to grant defendant’s requests. If there was any case at all to be submitted to the jury, it was fairly submitted by the trial court. In our view of the case, the only question open for discussion is, Did the plaintiff make a case which entitled her to recover ?

There is not much conflict of testimony in relation to the important questions of fact. The record discloses that during the season of 1896 the City of Kalamazoo, a passenger and freight steamer, was navigating Lake Michigan. Her home port was South Haven. Mr. Lang was a member of the engineer’s crew all the season, — first as a fireman, and then as oiler. In the winter he lived on a small farm, and for several summers he was a sailor. On the 22d day of November, 1896, the steamer was brought to South Haven, to be laid up for the winter. The crew consisted of 16 persons. Six of them, including two watchmen, were known as the “captain’s crew.” There were five persons in the cabin crew. Five persons, including Mr. Lang, constituted the engineer’s crew. After entering the port, the steamer was tied up. to the dock of the defendant, where she was to remain during the winter. The work of preparing her was at once commenced. It was the duty of the captain’s crew to gather up the floats, life-preservers, lines, chains, and other things of that character, and prepare the life-boats and rafts for the winter; it was the duty of the engineer’s crew to prepare the engine and boiler for the winter; while the cabin crew removed the bunks, beds, and furniture, and cleaned the cabin. The work of the captain’s crew was finished first. On Friday, the 27th day of November, the members of this crew were paid off, and left the boat. The day before this the fires under the boiler had been put out, and the water removed from the boiler. The other crews had not completed their work. There was a small upright pony boiler on the main deck. After the fires were drawn from the large boiler, this small boiler was used to warm the cabins by means of two radiators. It was in charge of the engineers and oiler. The lights used in the evening were four to six ordinary kerosene-oil lamps. There was a fire in the pony boiler during Sunday, and for at least a portion of Sunday evening it was in charge of Mr. Lang. Nearly all the members of the crews remaining on the boat, including Mr. Lang, continued to sleep and eat upon the boat. Previous to leaving the boat, the captain testified, he went to the engineers, and told them he had got through with his crew, and he and they were about to leave the boat, and that whatever duties there were in the boat the engineers must look after. No watchman was kept after the captain and his crew left. About 3 o’clock Monday morning the boat was discovered to be on fire! When the fire was put out, Mr. Lang was found about 18 feet from his berth, dead. It is claimed on the part of the plaintiff that, as long as part of the crew were sleeping upon the boat, it was negligence not to keep a watchman, and that, if a watchman had been kept, Mr. Lang would not have lost his life.

It is a somewhat significant fact that notwithstanding our vast inland seas have been navigated for many years by hundreds of vessels, employing thousands of men, the industry of counsel has not enabled them to call the attention of the court to a case involving the question as to whether, under such circumstances as disclosed by this record, the owner of the vessel is liable. There is no claim the steamer was in a hazardous place. She was not at this time carrying passengers. There was no steam in her boiler, and no fire in her furnaces. What oil she carried was in an iron-lined oil-room, which was undisturbed by the fire. The pony boiler was not larger than the boiler used for heating purposes in an ordinary modern dwelling. The steamer was not in motion so that oil lamps were likely to be thrown from their places. No more lamps were used than are usually used in an ordinary dwelling by a family of usual size. It was not shown that it was customary to keep watchmen after the captain’s crew left the boat. Such evidence of custom as was introduced tended to show that watchmen were not kept under the circumstances disclosed by the record. It is true, nine persons slept upon the steamer, but that is not more than is frequently to be found in dwellings. Section 4477, Rev. Stat. U. S., provides that every steamer carrying passengers, during the night, shall keep a suitable number of watchmen to guard against disasters and give alarms; but no such duty is imposed by statute, in cases like the one at issue. Was there any such negligence at the common law as to create liability upon the part of the owner? In Michigan Central R. Co. v. Coleman, 28 Mich. 440, it is said negligence is nothing more nor less than a failure of duty. In another case it is said negligence consists in a want of that reasonable care which should be exercised by a person of ordinary prudence under all the existing circumstances, in view of the probable danger of injury. Detroit,, etc., R. Co. v. Van Steinburg, 17 Mich. 118. Would a man of ordinary prudence, under the existing circumstances, anticipate any danger of injury to any of the-crew because of the absence of a watchman? The cook, the engineers, and other members of the crew, knew that after Thursday night the watchmen were not there, but they did not regard their absence as such a source of danger as to prevent them from sleeping upon the steamer. We do not think it can be said there was a want of reasonable care upon the part of the owner in not keeping a watchman after Thursday night; but, if this could be said, we think there is a difficulty in the way of plaintiff’s obtaining judgment. '

As already stated, before the crew of the captain was withdrawn, the engineers were informed that the crew, including the watchmen, wei’e to leave the boat, and that it must be looked after by the engineer and his crew. It is urged upon the part of the plaintiff that this notice was not brought home to Mr. Lang, and that the master cannot avoid responsibility by delegating his duty to another; citing Pullman Palace-Car Co. v. Laack, 143 Ill. 242 (18 L. R. A. 215). An inspection of this case shows that no notice of the changed condition was given, either to the plaintiff or to the gang of men with whom he worked, and there was no opportunity for him to know of the changed condition until the accident occurred. In disposing of the case the court uses the following language:

“ If, by re.ason of the omission to supply the usual and ordinary means to prevent accident, the hazard to its servants was increased, and the change in appliances was not known to the servants, or so open and visible that they, by the exercise of ordinary care, would see and know of it, the legal duty rested upon the master to notify them of the increased danger to which they were thereby exposed; and, it being a duty owed by the master to the servant, it could not delegate that duty to another, even though a fellow-servant of appellee, and absolve itself from liability for the injury resulting in consequence of-the failure to communicate knowledge to appellee of the increased hazard.”

It is true, the record does not show the captain informed Mr. Lang that he and the watchmen were going to leave; but was not their absence so open and visible that Mr. Lang, by the exercise of ordinary care, would know this crew of 6 men were no longer upon the boat ? The other members of the crew, who were witnesses, knew the cap-, tain and his crew had left the boat. The cook testified those remaining on the boat knew the captain and his crew were gone. Does any one believe that 6 out of 16 persons employed upon a small boat like this could leave the employment for the season, without the remainder of the crew knowing it ? The men all- got their meals in a common dining room. Their work was all upon a comparatively small steamer, where all, or nearly all,* of them stayed nights. It is too improbable to believe that Mr. Lang did not know that the captain and his crew left the boat Friday afternoon, and that after that date the steamer was without a watchman. He was not unfamiliar with the life of a sailor; he had sailed for a number of years. He was not unfamiliar with this steamer; he had been with it through the season. He was not unfamiliar with the pony boiler’; he was in charge of it for at least a part of the day before his death. Nor was he unfamiliar with the method of lighting the steamer. If the situation was a dangerous one, Mr. Lang was as familiar with the danger as any one. He was under no obligations to remain upon the boat, if by doing so he incurred a danger. It is evident that neither he nor the other members of the crew believed they were incurring any danger by remaining on board the vessel. If, by sleeping upon the steamer, Mr. Lang incurred a risk, he, being fully advised of tbe circumstances, must be regarded as assuming the risk. Soderstrom v. Lumber Co., 114 Mich. 83; Hayball v. Railway Co., Id. 135, and cases cited therein; Jacobs v. Railway Co., 84 Mich. 299; Ragon v. Railway Co., 97 Mich. 265 (37 Am. St. Rep. 336).

We think the court should have directed a verdict in favor of defendant.

Judgment is reversed, and no new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    FORSTER v. BROWN.
    1. Taxes — Property of Nonresidents — Replevin.
    Act No. 206, Pub. Acts 1893, § 14, subd. 8, provides that “personal property of nonresidents, and all forest products, * * * shall be assessed * * * to the person having control of the premises, * * * dock, yard, * * * or warehouse where such property is situated * * * on the second Monday of April.” Certain lumber belonging to a nonresident was assessed to the owners of a dock by virtue of this section, and, their property having been seized under a warrant for the collection of the tax, they brought replevin, claiming that the dock was not under their control in such sense as to „ authorize the assessment. Held, that in view of 2 How. Stat. § 8318, providing that “ no replevin shall lie for any property taken by virtue of any warrant for the collection of any tax * * * in pursuance of any statute of this State,” the action could not be maintained.
    2. Same — Value of Property — Judgment—Evidence—Assignments of Error.
    In replevin for property seized under a tax warrant, error in entering judgment in favor of the officer for the amount of the tax cannot be predicated upon the fact that it did not affirmatively appear from the evidence that the value of the property equaled the amount .of the tax, where the case proceeded in the trial court upon the theory that such was the fact, and no point was made there on the omission.

      Error to Menominee; Stone, J.
    Submitted October 21, 1898.
    Decided December 28, 1898.
    Replevin by Charles Gf. Forster and Matthew A. Burns against Franklin H. Brown, city treasurer of Menominee, to recover property seized under a tax warrant. From a .judgment for defendant, plaintiffs bring error.
    Affirmed.

      Sawyer & Waite, for appellants.

      L. D. Eastman, for appellee.
   Montgomery, J.

This is an action of replevin. The defendant, as treasurer of the city of Menominee, seized the property in controversy by virtue of a tax warrant directed to him. An assessment appeared on the roll against the plaintiffs on 12,000,000 feet of lumber, said to belong to the S. K. Martin Lumber Company, of Chicago, stated in the assessment, as it appears on the roll, to be situated on the mill yard and docks occupied and under the control of Forster & Burns (plaintiffs).

The evidence shows that on or about, and under date of, the 28th day of November, 1896, the mill where said lumber was sawed, and the yard and docks appertaining thereto, comprising extensive yards and dock room, were sold and conveyed by the Blodgett & Davis Lumber Company to the plaintiffs herein, Messrs. Forster and Burns; that the deed by which said premises were conveyed contained the following reservation clause, to wit:

“It is understood and agreed by and between the parties to these presents that the lumber now piled on said premises may remain thereon, without any charge to the said parties of the first part, until the same can be shipped and removed therefrom promptly and without any unnecessary delay, after the opening of navigation in the year 1897.”

It appears that the lumber remaining thereon was the lumber referred to in said assessment, and was then the property of said S. K. Martin Lumber Company, and that the opening of navigation in the year 1897 at said city of Menominee did not occur until after the second Monday of April. *

It is claimed that the dock was not under the control of plaintiffs in such sense as to authorize an assessment of the property against them, under the terms of paragraph 8, § 14, Act No. 206, Pub. Acts 1893, which provides:

“Personal property of nonresidents of the State, and all forest products owned by residents or nonresidents or estates of deceased persons, shall be assessed in the township or ward where the same may be, to the person having control of the premises, store, mill, dock, yard, piling ground, place of storage, or warehouse where such property is situated in such township on the second Monday of April of the year when the assessment is made, except that, where such property is in transit to some place within the State, it shall be assessed in such place.”

The circuit judge found as a fact that the plaintiffs had general control of the dock in question, and, as matter of law, found that the assessment to plaintiffs was proper. He also determined that replevin is not a proper remedy, even if the assessment was erroneous; and as this finding is of itself decisive of the case, if sustained, we consider that question first.

Section 8318, 2 How. Stat., provides that:

“No replevin shall lie for any property taken by virtue of any warrant for the collection of any tax, assessment, or fine in pursuance of any statute of this State.”

Here was an assessment, made against a resident firm, subject to the general jurisdiction of the assessing officer. The claim is that the assessment is invalid for the reason that the officer was mistaken in supposing that the property in question was assessable against the plaintiffs. Can the plaintiffs, in an action of replevin, try this question? In Hill v. Wright, 49 Mich. 229, replevin was brought to recover property seized to satisfy a tax claimed to be invalid. It was contended that the tax referred to in section 8318 could only mean legal and valid taxes. Mr. Justice Campbell, speaking for the court, said:

Such a construction would entirely nullify the statute, for the plaintiff could, in any case, set up a claim of invalidity, and sue out his writ, and postpone the determination of the legality of his action until its trial on the merits.”

See, also, Hood v. Judkins, 61 Mich. 575; Scott v. Whelan, 96 Mich. 624; Boyce v. Peterson, 84 Mich. 490.

There are cases where replevin lies in favor of one whose property has been seized under a tax warrant. The leading case on this subject is Le Roy v. East Saginaw City Railway, 18 Mich. 233 (100 Am. Dec. 162), in which case it was said:

“ To construe this provision as intended to apply only to cases in which the taxes for which the property has been taken have been imposed by authority of, and in full compliance with, the statute authorizing any particular taxes, so as to render it a valid tax in pursuance of such statute, would be to make the question of the maintenance of the replevin depend, in all cases, upon the validity of the tax, to he determined upon the trial; and this would make the statute forbid only those actions of replevin which must equally have failed without the statute. On the other hand, to construe the statute as applying to a case in which there is no statute authority for the assessment and collection of any tax by the officers who may have undertaken to assess or collect one, and where no possible proceeding of such officers could have given them authority to impose or collect any tax under any statute of the State, or to a case where the property of some other person than the party taxed has been seized, would be to extend the statute to cases which do not come within its spirit or intent. This provision must, therefore, be construed as applying only to cases in which a valid tax might, by legal possibility, have been imposed and collected by regular and proper proceeding under some statute authority.”

It will be seen that this case does not help out the plaintiffs’ contention, for it cannot be said that this is a case in which there is no statute authority for the assessment or collection of any tax by the officer who has undertaken to assess find collect one. It is not enough to say that the particular tax assessed was unauthorized, if the assessing officer was the one whose primary duty it was to determine that question. In McCoy v. Anderson, 47 Mich. 502, replevin was sustained, but the reason is manifest from the language of the opinion, viz.: “In the present case there

was a total want of jurisdiction in the officer to levy any. tax against these parties.” Such was the fact, also, in Lantis v. Reithmiller, 95 Mich. 45. But such is not the case here, as we have shown. It follows that the remedy by .replevin was not open to the plaintiffs.

One other question remains to be considered. On the trial the tax was shown to amount to $2,174.40. The inventory and sworn appraisal of the property was shown to be $2,948. This was not formally offered in evidence, but the circuit judge finds that no point was made on the omission. The case is like Boyce v. Peterson, 84 Mich. 494, in which case the court said: “We think the fair

inference from the record to be that the case was tried upon the understanding that the property was worth more than the amount of the tax.” It is evident that no injustice has been done plaintiffs, and the judgment for defendant will be affirmed.

The other Justices concurred.


author: Long, J.

text:
    STEWART v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads — Crossing Accident — Signals—Witnesses.
    In an action for the death of plaintiff’s intestate in a collision at a railroad crossing, three of the train crew testified positively to the giving of the proper crossing signals, and were supported in this respect by two of plaintiff’s witnesses. The only testimony relied upon by plaintiff as raising an issue for the jury was that of certain witnesses who testified that they did not hear the signals, but who admitted that they were occupied with other matters, and were not in positions favorable to hearing them, and the confused and uncertain testimony of a child 11 years old. Held, that the jury should have been instructed that the signals were given.
    2. Same — Contributory Negligence.
    One who drove upon a railroad track without stopping to look or listen, and was killed by a train which duly signaled its approach, was guilty of such contributory negligence as will bar a recovery by his administratrix, where he was familiár with the crossing, and might have seen the train had he stood up, or heard it if he had listened.
    3. Same — Gross Negligence — Evidence—Instructions.
    An instruction that defendant might be found guilty of gross negligence, permitting a recovery notwithstanding the contributory negligence of plaintiff’s decedent, if .the jury should find that defendant’s train, at the time of the accident, was running at the rate of 25 miles an hour, was unwarranted, where the testimony was conclusive that the train could not have been stopped within the distance in which it was stopped had its speed much exceeded 12 miles an hour.
    Error to Saginaw; Snow, J,
    Submitted October 18, 1898.
    Decided December 28, 1898.
    Case by Mary Stewart, administratrix of the estate of Thomas M. Stewart, deceased, against the Michigan Central Railroad Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Watts S. Humphrey, for appellant.

      John F. O’Keefe (George W. Weadoch, of counsel), for appellee.
   Long, J.

Plaintiff’s intestate was killed on February 5, 1898, by being run over at the Sheridan-avenue crossing, in the city of Saginaw, by a passenger train of defendant. Deceased was 35 years of age, possessing all his faculties, and a resident of the city. Sheridan avenue crosses the railroad track at right angles in the heart of the city, and is traveled by a great many teams daily. The track extends for some distance nearly parallel with Atwater street, and crosses Sheridan avenue 64 feet south of where Atwater street crosses Sheridan avenue. The deceased kept a grocery store at the corner of Holland and Sheridan avenues, 3 blocks from the corner of Sheridan and Atwater streets, and a little more than blocks south of this crossing. He resided over his store with his family, and had been in business at that place about two years, and was perfectly familiar with this crossing. On the south side of Atwater street, and at the southeast corner of Atwater and Sheridan streets, was a store kept by Mr. Lazelle. It was a one-story wood building, extending back towards the railroad crossing. On the day of the accident, the deceased had driven up to the Lazelle store with his horse and delivery sleigh, and left his horse standing on the crosswalk, facing the railroad crossing, on Sheridan avenue. Decedent went into the store to get a bill changed. While in the store, three ladies Came across Sheridan avenue, and got into his sleigh, — one of them upon the seat, and the other two in the box behind the seat. When the deceased came out of the store, he got into the sleigh, and fixed the blankets around himself and the women, at the same time starting his horse on a walk towards the railroad crossing, 64 feet away. The horse gradually increased his gait to a slow jog, until just before going onto the railroad track he made a sudden start ahead, and was almost across the track when the engine struck between the horse and the sleigh, killing plaintiff’s intestate and all the other occupants of the sleigh. The evidence is undisputed that the decedent did not stop the horse from the time it started until the accident happened.

The negligence alleged in the declaration is—

(1) That the defendant failed to ring the bell or blow the whistle.
(2) That it was running its train at a high and dangerous rate of speed.
(3) That it failed to erect safety gates at that crossing, and failed to keep a watchman there.
—And that each of these several acts was gross negligence.

The court charged the jury upon these questions as follows:

“The plaintiff alleges in her declaration filed in this cause that it was the duty of the Michigan Central Railroad Company to maintain and operate a safety gate at the Sheridan-avenue crossing, or to maintain a flagman to signal the public passing over said crossing the approach of trains. The plaintiff claims that one or the other of these precautions was required upon the 5th day of February last, at the intersection of the defendant’s tracks with Sheridan avenue. The proof is undisputed that neither a gate nor a flagman was maintained at this crossing upon the 5th of February last. It is not the law of this State that at every road or street crossing in a city a railroad company is bound to place a flagman or to maintain a gate. The absence of a flagman or a gate at the Sheridan-avenue crossing, where this collision occurred, is of itself no evidence of negligence upon the part of the railroad company. In order for the absence of a flagman or the maintenance of a gate at this crossing tó constitute negligence upon the part of the defendant, you must find that the circumstances surrounding this cross-. ing were such that common prudence would dictate that the railroad company should place a flagman there, or a safety gate, or its equivalent. I charge you that if you find that by reason of the obstructions at this crossing, in view of the testimony taken at this trial, the danger at the Sheridan-avenue crossing was altogether exceptionally great,- — -that there was at all times a large amount of public travel over this crossing, — then I charge you that it was the duty of the railroad company to maintain a safety gate or a flagman at this crossing, and its failure to do so was negligence.
“Even though you should find the defendant was negligent, the plaintiff cannot recover in this case, unless you find either that Thomas M. Stewart, the deceased, was not guilty of contributory negligence, or, if you should find that he was guilty of contributory negligence, then, in order for the plaintiff to recover, you must find that the railroad company was guilty of gross negligence. Unless the defendant was guilty of gross negligence, under the law of this State, in order to entitle the plaintiff to recover, the deceased, Thomas M. Stewart, must hav.e been in the exercise of due and ordinary care and caution while approaching and driving upon said tracks at the time he was killed. In order for the 'plaintiff to recover, unless you find that the defendant was guilty of gross negligence, you must find that Thomas M. Stewart, deceased, was cautious in approaching and driving upon the railroad tracks; that he looked and listened, and took such precautions as an ordinarily prudent person would have taken under the circumstances; and it is for' you to determine, as a question of fact, whether he took all of the precautions, in view of the surroundings, that an ordinarily prudent person would have taken under the same circumstances. Some testimony has been introduced tending to show that one or more boys in the vicinity of the crossing warned the deceased of the incoming train while the deceased was approaching the railroad tracks. I charge you that, unless the deceased heard and understood this warning, the failure to obey this warning was not negligence.
“The plaintiff further claims that the defendant was guilty of gross negligence, which resulted in the death of her intestate. The term ‘ gross negligence,’ when referred to as authorizing a recovery for a negligent injury notwithstanding the contributory negligence of the plaintiff, means an intentional failure to perform a manifest duty, in reckless disregard of the consequences, as affecting the life or property of another. It also implies a thoughtless disregard of consequences, without the exertion of any effort to avoid them. It is undisputed in this case that, at the time of the collision between the defendant’s passenger train and the sleigh in which Stewart was riding on the afternoon of February 5th last, there was a large amount of public travel on Sheridan avenue, where Mr. Stewart was killed; that there was no safety gate or watchman at this crossing; that there was a curve in defendant’s railroad tracks, and that its tracks were down grade, going westerly; that on the left-hand side of Sheridan avenue, going south, between Atwater street and the Michigan Central tracks, there is more or less obstruction by the store,- sheds, outbuildings, and fences, which interfere with a ready view of trains coming on defendant’s tracks from the east, and that in the vicinity of this crossing the city is well built up; that the defendant’s passenger train was 24 minutes late when it left the F, & P. M. crossing, a short distance to the easterly of where the collision took place; that an'ordinance of the city of Saginaw prohibits a higher rate of speed within the limits of the city than six miles an hour; and that the instructions of the defendant company to its employés in charge of train No. 203 were to make the distance between the F. & P. M. Belt Line crossing and Washington-avenue stop, a distance of some two miles, which includes the point at which the collision took place, at a rate of 21 miles an hour. I therefore charge you, as a matter of law, that if, from the evidence, you find that the defendant, in running its passenger train No. 203, where it crosses Sheridan avenue, ran it at a rate of 25 miles an hour, or upwards, without having twice sharply sounded its steam whistle at least 40 rods before the crossing on Sheridan avenue was reached, and after sounding its whistle did not ring the bell on its engine continuously until the crossing was passed, then the defendant would be guilty of a reckless disregard of the safety of persons traveling on Sheridan avenue, which amounted to gross negligence, and the plaintiff is entitled to recover, even though you should also find from the evidence that the deceased himself was not free from negligence.”

Plaintiff had verdict and judgment for $5,000.

1. It is contended that the court was in error in leaving to the jury the question whether the whistle was blown and bell sounded. The conductor, engineer, and fireman, witnesses for the defendant, testified positively to the blowing of the whistle for the several crossings, and the engineer and fireman testified that the bell was ringing continuously from Yassar until the train was stopped after the happening of the accident. A witness for the plaintiff (one Fred Harnish) testified that he stood where he saw the train cross Warren avenue. He was on the corner of the street there. He says the whistle was blown after the train crossed Warren avenue, and that the bell at that time was ringing as the train passed along, going westward. Warren avenue, it is conceded, is about 636 feet east of the Sheridan crossing. Charles Lazelle,' a witness for the plaintiff, testified .that he stood in front of his father’s house, a distance about 100 feet south of the railroad crossing,.and heard the whistle sounded “above Warren avenue.” Gertrude Lazelle, a witness for plaintiff (a sister of the last witness, and a girl of 11 years of age), stood near her brother. On cross-examination she was asked: “You heard the train whistle somewhere away up by Ward or Warren avenue, did you not? A. Yes. Q. And you looked up, and saw Mr. Stewart just getting into the sleigh, was he not? A. Yes.” She had testified on direct examination that she heard the two danger signals just before the train reached Sheridan avenue. On redirect examination she explained that the whistle she meant in answer to the question from defendant’s counsel was the danger whistle just before the train reached Sheridan avenue. Mrs. Rose Meader, a witness for plaintiff, testified she was sitting in her room, with the doors and windows closed, reading a book, and that she did not hear the whistle. Her house is on Sheridan avenue, next south of the Lazelle house. She says she heard the two short whistles just before the accident, but did not hear, any other. Mr. Thomas J. Patterson, also a witness for plaintiff, testified that he was inside the Lazelle store. He was employed there. On redirect examination he was asked: “State whether or not you usually heard the whistle of the train.” This was the first his attention had been called to that subject. He answered:

“Well, sometimes I had. That depends. If I was busy, why probably I wouldn’t notice it; but the door was a little-— I didn’t hear any whistle, nor I didn’t hear any bell; but, of course, I couldn’t judge for that, being used to it.” ^

This constitutes the substance of all the 'testimony relating to the ringing of the bell or the blowing of the whistle, from which it is seen that the conductor, engineer, and fireman testified positively that the whistle was blown at Warren avenue, and the bell sounded continuously; that these witnesses are supported by two of plaintiff’s witnesses, Mr. Harnish and Charles Lazelle; that the testimony of the girl, Gertrude Lazelle, was confused and uncertain, and, at most, only that she heard the danger signals, but not the one at the Warren crossing; that the testimony of Mrs. Meader and Mr. Patterson was entirely negative, both being within buildings, and with faculties otherwise directed, — she reading, and he busy with his duties in a store, with doors and windows closed against sound. Should such testimony have any. weight in determining the question whether the whistle was sounded and the bell rung as the statute provides ? Who would give it any weight in the ordinary affairs of life, in contradiction to the positive testimony of other credible witnesses? All that can be said of it is that these persons did not hear the whistle or bell because they were not in.a position to hear, and were giving the matter no attention whatever. This is not the first case that has come before us involving the question here raised, but in no case has the negative testimony been so weak as here. The witnesses who gave it do not claim to have been listening, or that if the whistle had been sounded, or the bell rung, they would have heard it. If this testimony raised a question of fact for the jury, we can imagine no case that should not be submitted when witnesses are called, and claim they did not hear the bell or whistle, though they were in no position to hear, or were giving no attention "whatever to the matter. This is a much weaker case upon the facts for the plaintiff than was Culhane v. Railroad Co., 60 N. Y. 137. In that case it was said:

“It is proved by the positive oath of the two individuals on the engine, one of whom rang it, and by two others, who witnessed the occurrence and heard the ringing of the bell. The two witnesses for the plaintiff merely say they did not hear the bell, but they do not say that they listened, or gave heed to the presence or absence of that signal. * * * As against positive, affirmative evidence by credible witnesses to the ringing of a bell or the sounding of a whistle, there must be something more than the testimony of one or more that they did not hear it, to authorize the submission of the question to the jury.”

Counsel for defendant asked the court to charge the . jury that, under the undisputed evidence, they must find that the whistle was sounded and the bell rung. This request should have been given.

2. It is contended that the plaintiff’s intestate was guilty of contributory negligence in driving upon the track in the manner in which the testimony shows he did. It has been stated that, when he got into the sleigh, his horse . started on a walk, and increased his gait to a slow jog until he got to the track, when he made a sudden start ahead. The testimony shows that the Lazelle store extends back along Sheridan avenue about 33 feet, with a shed extending about 8 feet farther back. Extending from the rear of this shed to within 11 feet of the «north rail of the rail-' road track is a board fence, with boards standing up and down, and about 5 or 6 feet high. There is also a fence of about the same height extending along the side of the track to the eastward, being the back fence to the lot. At the back end of the lot, and about 26 feet east from Sheridan avenue, is an outhouse, 8 feet one way by 44 feet,- leaving a space of a little over 10 feet between the line of the shed back of the store and the outhouse. It is shown by the testimony that, after passing the Lazelle store and shed, a person walking on Sheridan avenue, if he were tall enough to look over the fence, could see through this space of 10 feet a train, if one were coming, about three-fourths of a block to the eastward. Charles Lazelle and his sister, Gertrude, together with John Murphy and Enos Brennan, stood near the Lazelle house, 100 feet south of the crossing. These boys were playing there. They heard the danger whistle, saw the train coming, and understood the decedent’s danger in approaching the crossing. They called loudly for him to stop. One of the boys waved his hands and tried to attract his attention, but he kept on, without apparently hearing or seeing them. There is no evidence that he stopped or listened for the approach of the train. The witness Patterson testified that, when the decedent went out of the store, he checked himself on the porch, but why he did this is not known. That was about the time, the witnesses say, that the train whistled at Warren avenue. The testimony differs as to the conduct of the decedent while in the sleigh, and driving towards the crossing. Some of the witnesses say that he turned his head towards the east, while some say he was looking backward into the sleigh. It is shown’that, sitting on the seat in the sleigh, the decedent could have looked over this fence, and seen a train coming a short distance away. Just how far is not shown. It is apparent, however, that had he stood up in the sleigh and looked before entering upon the track, and while some 20 feet away from it, he could have seen down the track nearly three-quarters of a block. He knew the situation there. He was familiar with the crossing. Trains crossed there frequently. Had he exercised such care as is required in such situations, he would have known of the approach of the train. The case is very similiar to that of Phillips v. Railway Co., 111 Mich. 276 (66 Am. St. Rep. 392). It was there said:

“The plaintiff, if he could hot see an approaching train by reason of these obstructions, was bound to use greater precautions in nearing the track. * * * If he had stood up in his carriage, and looked westward, he could have seen over the hen-house and the pile of ties, and have seen the train when it was some 1,200 feet away.”

In the present case the decedent could have seen over the fence by standing up in the sleigh. He did nothing, stopped at nothing, but got into the sleigh, started his horse forward into a jog, and drove to his death, and the death of the others who were with him. If the view was so obstructed that it was impossible to see the approach of the train until entering upon the track, then it was certainly the duty of the decedent to have stopped and listened for the train. Lake Shore, etc., R. Co. v. Miller, 25 Mich. 290; Haas v. Railroad Co., 47 Mich. 407; Brady v. Railroad Co., 81 Mich. 621; Van Auken v. Railway Co., 96 Mich. 307 (22 L. R. A. 33); Shufelt v. Railroad Co., 96 Mich. 329; Houghton v. Railway Co., 99 Mich. 310; Jensen v. Railroad Co., 102 Mich. 180. In the last-named case it was said:

“ If it was a fact that the plaintiff, as he testified, could not see an approaching train for 128)- feet, it was clearly his duty to stop and listen.”

3. It is claimed that the train was not running at a great rate of speed. The witnesses differ as to the rate it was running. The defendant’s witnesses place the speed not to exceed 12 to 15 miles an hour. Some of plaintiff’s witnesses estimate it at a much greater speed. It is shown conclusively, however, that the train was on down grade, and yet was stopped, after the accident happened, so that the center of the last coach stood in the center of Sheridan avenue; and the testimony is conclusive that, if going at a much greater rate than 12 miles an hour, it could not have been stopped within that distance. The court was therefore in error in submitting to the jury the question of gross negligence. There was no evidence to warrant such charge.

Under the evidence as shown by this record, the jury should have been directed that no recovery could be had.

We need discuss no other questions. The judgment below must be reversed, and a new trial awarded.

The other Justices concurred.


author: Moore, J. Moore, J.

text:
    BERKEY v. BURCHARD.
    Taxes — Setting Aside Sale — Bill op Review.
    Under section 70 of the tax law of 1893, providing that “no sale shall he set aside after confirmation, except in cases • where the taxes were paid or the property was exempt from taxation,” leave to file a bill of review should not be granted in a tax proceeding after confirmation of the sale, unless a total want of jurisdiction to make the decree is shown, or one of the two causes mentioned in the statute exists; and the fact that leave to file such bill is granted for one of the causes mentioned does not authorize a consideration of other questions, which were conclusively determined by the original decree.
    ON APPLICATION POR REHEARING.
    Same — Purchase op State Lands — Consideration.
    The provision of section 84 of the tax law, requiring the purchaser of State tax lands to pay all taxes remaining a lien thereon at the time of his purchase, has reference solely to private purchases made at the office of the auditor general, and does not apply to a purchase of such lands at public sale made by the county treasurer under section. 79 of the law.
    Appeal from Ottawa; Padgham, J.
    Submitted October 6, 1898.
    Decided December 28, 1898.
    Application for rehearing denied July 11, 1899.
    Bill by Laura Berkey against George W. Burchard, Jr., John Macfie, Francis Lord, and others, to review a tax sale. Defendant Lord filed an answer in the nature of a cross-bill, praying for like relief. Defendant Burchard also filed an answer in the nature of a cross-bill, praying for a decree quieting his title and for a writ of assistance. From a decree dismissing the original bill and the cross-bill of defendant Lord, and granting the relief prayed for by defendant Burchard, complainant appeals.
    Affirmed.

      Wylie & Clapperton, for complainant.

      Charles E. Soule, for defendant Burchard.
   Moore, J.

In 1893 Francis Lord was the owner of the 40 acres of land involved in this controversy, and of an adjoining 20 acres of land. In February, 1892, Mr. Lord and his wife gave to Laura Berkey a mortgage upon the entire 60 acres of land for $1,800. In the spring of 1893 the land was assessed to Mr. Lord. The assessment upon the 40 acres was $1,300, and upon the 20-acre parcel $400. No mortgage interest was assessed against Mrs. Berkey. Mr. Lord paid the taxes upon the 20 acres. The 40 acres was returned for nonpayment of taxes. After petition filed by the auditor general and an order made by the circuit judge, notice of which was duly published and proof thereof filed, a decree was made for the sale of the 40 acres of land. December 2, 1895, it was sold, and bid off by the State. . It was not redeemed, and on December 4, 1896, at the regular tax sales, it was purchased by John Macfie, who on March 25, 189?, obtained a deed of the land from the auditor general. In July, 18*9?, Macfie conveyed his interest to George W. Burchard, Jr.

In August, 1897, Laura Berkey filed a petition for leave to file a bill of review in the original tax proceeding. This petition was accompanied by a draft of the proposed bill of review, in which it was stated, among other things, that prior to the tax decree the taxes upon the land in controversy had been paid. The circuit judge granted leave to file the bill of review, and a hearing was had before him. Upon the hearing the complainant sought to show that her mortgage interest had not been assessed, and that she had no notice of the tax proceedings until Mr. Macfie obtained his deed. Testimony was also given tending to show that the taxes had been paid; also, that Mr. Lord had personal property out of which the tax might' have, been collected, and that the return of the town treasurer was not true. Other irregularities were sought to be shown. The circuit judge decided that Mrs. Berkey had failed to show such a state of facts as entitled her to relief, and dismissed her bill of complaint and the cross-bill of Mr. Lord, and granted Mr. Burchard the relief prayed for by him in his cross-bill. From this decree the complainant has appealed. It is her claim that, as she was allowed to file her bill of review, she had the right to contest every defect and irregularity in the tax proceeding, the same as though she had made her contest before the tax decree was made.

The circuit judge found that the petition was filed by the auditor general, with the list of lands attached thereto; that an order of the circuit judge was duly made and signed fixing the time and place of hearing; that notice of the time and place of hearing was duly given as required by law; that the proceedings prior to the tax decree were regular; and that all the intervening steps to the giving of the deed were regular. The record also discloses that the sale was duly confirmed, and all the proceedings enrolled, before the petition for leave to file the bill of review was filed. There is nothing in the record to show that the circuit judge was not right in so finding.

Section 70 of the. tax law provides, “No sale shall be set aside-after confirmation, except in cases where the taxes were paid or the property was exempt from .taxation.” Act No. 206, Pub. Acts 1893. In this case the petition and bill of review alleged that the taxes had been paid, and because of this allegation it was the duty of the circuit judge to entertain the bill. He allowed testimony upon other issues than the payment of the taxes to be given, and made findings in relation to those issues. But we do not deem it necessary, to discuss them here. The circuit judge found that the allegation in the bill that the taxes had been paid was not sustained by the evidence. The testimony upon that point was contradictory, but we think it was of such a character as to fully justify the circuit judge in his finding, and especially as the witnesses were examined in open court. We are not inclined to disturb his finding in that respect.

It is urged by counsel that a bill of review in a tax proceeding will perform the same office it would in any chancery case. We think a chancery judge would not be authorized to grant leave to file a bill of review for the purpose of setting aside a tax sale, after confirmation of the sale, unless a total want of jurisdiction to make the decree is shown, or one of the two causes mentioned in the statute exists, and the hearing must be confined to these causes. To say that allowing a bill of review to be filed for one of the causes mentioned in the statute opens the inquiry, the same as though it were an original hearing in the tax proceeding, is to render the provisions of the statute nugatory. The legislature evidently proceeded upon the theory that all property liable to taxation should pay its proportion of taxes; that it was the duty of the owner,, and of all persons having an interest therein, as mortgagees or otherwise, to see that the taxes were paid. If there were irregularities, simply, which did not go to the questions of whether the property was exempt from taxation, or whether the tax had been paid, or to the jurisdiction of the court, the irregularities must be shown at the hearing of the petition of the auditor general,before the tax decree. If this was not attended to, and the sale was afterwards made and confirmed, the sale could be set aside only when it was shown either that the tax had been paid, or the land was exempt from taxation, or in the case of lands belonging to infants or other incompetent persons. Muirhead v. Sands, 111 Mich. 487; Ball v. Ridge Copper Co., 118 Mich. 7; Spaulding v. O’Connor, ante, 45. If parties interested in land which is liable to taxation are diligent in attending to the duty imposed upon them by the law, no hardship will be done them. If they are negligent, it sometimes happens that persons who are on the lookout for such opportunities will procure title to property for much less than it is worth. While this is to be regretted, it is a condition of things the courts cannot help, if the law is to be so construed as to prove a certain source of revenue to the State.

In this case a writ of assistance was issued to the defendant Macfie. It is suggested in the brief of counsel that the affidavit filed as the basis for the issuance of the writ does not show that, at the time of the purchase of this land by Macfie, he had paid all subsequent taxes which were a lien on the land, and therefore the writ should be stayed. There is nothing in the record to show that any taxes were a lien upon the land at the time he got his deed, nor is there any allegation in the bill of review raising this question, and it does not appear to have been presented to the circuit judge.

The decree is affirmed.

The other Justices concurred.

ON APPLICATION EOR REHEARING.

Moore, J.

This is an application for a rehearing of the case reported at page 101, ante. After this case was commenced, but before it was decided, the opinion in Hughes v. Jordan, 118 Mich. 27, was handed down. The purpose of this application is to have the case remanded, so it may be shown that Macfie, through whom Mr. Burchard obtained his title, did not pay the taxes then a lien upon the land when he obtained his deed, so as to bring the case within Hughes v. Jordan.

The petition which is the basis of the motion shows that Macfie did not buy the land at the office of the auditor general, at private sale, as section 84, Act No. 206, Pub. Acts 1893, provides may be done, but he bid it off at a public sale made by the county treasurer under the provisions of section 79 of said law. Sections 80, 81, and 82 provide what shall be done by the purchaser, the county treasurer, and the auditor general, under such circumstances. In none of these sections is it required that, before the purchaser at a public sale made by the county treasurer shall be entitled to his deed, he shall be required to pay all taxes then a lien on the land. Section 84 requires the payment of all taxes then a lien upon the land, where the purchase is made at private sale at the office of the auditor general. Its provisions and the case of Hughes v. Jordan, supra, do not apply to this case.

The application for a rehearing is denied.

The other Justices concurred.


text:
    HALL v. DOBBIN.
    Deeds — Quieting- Title — Evidence.
    A husband and his wife bought realty in her name, and took a deed therefor when §1,900 had been paid on the price. Four hundred dollars was furnished by her, and the balance was paid out of profits of the husband’s business, in which he was assisted by his wife and daughter. On the wife’s death, their two children deeded the property to the husband. Shortly before his remarriage, he conveyed to the daughter, , and explained to his second wife that it was done to secure to the daughter a §500 interest in the property, and that she would 'reconvey when requested. Although talked of, a reconveyance was not made until six years afterwards. The deed was delivered at that time, but was handed back to the daughter for safe-keeping; she claiming it was made to facilitate a sale by her father. Held, that the realty belonged to the father, subject to a §500 interest in the daughter.
    Appeal from. Wayne; Hosmer, J.
    Submitted November 18, 1898.
    Decided December 28, 1898.
    Bill by Robert Hall and Catherine Hall against Annie L. Dobbin to quiet title. From a decree dismissing the bill, complainants appeal.
    Reversed.

      John H. Powell, for complainants.

      Grove Campbell, for defendant.
   Montgomery, J.

In 1879 complainant Robert Hall and his former wife bought a house and lot in Detroit for |2,400, on contract taken in the name of the wife. The property was subsequently deeded' to her, after $1,900 of the purchase price had been paid. Of the $1,900, $400 was paid down. This sum was received on the sale of a small tract of land in Canada, which stood in the name of Mrs. Hall. The balance was paid by the results of the business of manufacturing soft drinks, in which Mr. Hall was engaged, and in which he was assisted by his wife and daughter. In November, 1886, Mrs. Hall died, leaving two children known to be living, — defendant and a son named William. On the 15th of November, 1886, the two children deeded the property to complainant, and he continued to occupy it. On the 3d of February, 1890, the complainant Robert Hall took out a license to marry his co-complainant. The ceremony was delayed, and did not take place until March 1st. In the meantime, on the 26th of February, Mr. Hall executed, and caused to be placed of record, a conveyance to the defendant. This was unknown to the co-complainant until after the marriage. She had been told by Mr. Hall that he was the owner of the property, and when, after the marriage, she learned of the conveyance, she was told by Mr. Hall that the daughter would reconvey to him any time he requested it; that he deeded it to her to secure her a $500 interest in the property, which he felt that she was entitled to. From time to time there was talk of a reconveyance from defendant to Mr. Hall. A deed was prepared, and sent her for execution, but it was not executed. Finally, in July, 1896, defendant went to the office of Mr. Hosie, a real-estate dealer, and signed a deed of the property. It is a matter of dispute as to whether this deed was delivered. The circuit judge was of the opinion that delivery was not shown.

We thinks upon full consideration, that the evidence preponderates in complainants,’ favor. The defendant herself testifies that this deed was made to facilitate a sale by her father, and gives no good reason for its execution, unless we assume it was to placate her father, and to induce in him the belief that he was safe; and this view is not creditable to defendant, or evidence of her sincerity. The complainant and Hosie testify that the deed was delivered to Mr. Hall, and by him handed back to defendant for safe-keeping. The view that defendant intended to vest title in complainant is strengthened by the evidence of her declarations of purpose. We think the real intention of the parties was that defendant should have an interest of $500 in the property, and be paid that sum on a sale. A decree may be entered in favor of complainants, but subject to a vendor’s lien in favor of defendant of $500. No costs will be awarded either party for proceedings in the circuit, but complainants wilí recover costs of this court.

The other Justices concurred.


author: Grant, C. J.

text:
    JENKINSON v. BROOKS.
    1. Deeds — Delivery to Third Person.
    Delivery of a deed to a third party, to be by him delivered to the grantee after the death of the grantor, is valid.
    2. Same — Intent.
    The question of delivery in such a case is one of intent.
    3. Same — Evidence. '
    The facts that one who, when in failing health, executed deeds of all his property, and placed them in the hands of a trustee, to be recorded and delivered to the grantees at his death, thereafter instructed the trustee to place one of the deeds upon record, and that he remained in possession of the homestead, and, on one occasion, requested that the deeds be brought to him for examination, are not inconsistent with an intent irrevocably to deliver them.
    4. Witnesses — Naked Trustee — Matters within Knowledge of Deceased.
    A mere naked trustee under a deed executed by a grantor since deceased is not a party in interest, within the statute prohibiting such a party from testifying to facts equally within the knowledge of the deceased.
    Appeal from St. Clair; Nance, J.
    Submitted November 16, 1898.
    Decided December 28, 1898.
    Bill by John Edward Jenkinson, an infant, by John Jenkinson, his next friend, against Sarah E. Brooks and others, to set aside certain deeds. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    The following statement of facts is taken from the finding of the circuit judge:
    “George Brooks, at the time of his death, left children by a former marriage, Edward, Lillian, and Mary. Mary married George W. Jenkinson, and they had one child, John Edward Jenkinson, who is the complainant in this case. He afterwards married the present Sarah E. Brooks, one of the defendants, and by that marriage had one child, George Warren Brooks, also one of the defendants. Mrs. Sarah E. Brooks had, by a former marriage, one child, who assumed the name of Brooks, is made a defendant, and is known as Malcolm Brooks.
    “In the fall of 1891 and the winter of 1892, George Brooks was in failing health. Prior to that he had been occupying an office with one Marcus Young, who was to some extent a dealer in real estate. About February 10, 1892, Mr. Brooks sent for Marcus Young to come to his house. Mr. Young did so, and Mr. Brooks then exhibited to Mr. Young a list of his property, real and personal, with the parcels and portions of each which he desired to give to his wife, Malcolm Brooks, John Edward Jenkinson, Lillian King, Edward Brooks, and George Warren Brooks. He stated that it was his intention to make a disposition of his property before he died, and not leave it to a will, and he instructed Marcus Young to make out deeds to convey to these parties the real estate and personal property specified in this list. Mr. Young took a copy or memorandum from the list, and caused some 21 deeds to be prepared, covering some 60 or 70 descriptions of real estate, besides securities and other personal property, and on the 11th day of February, 1892, he went to the house of Mr. Brooks, and these deeds were executed by Mr. Brooks and his wife, excepting the deeds running to Mrs. Brooks, and they were acknowledged. When they were completed, Mr. Brooks gave them to Marcus Young, with the instruction to keep them until his death, and then put them on record, notify the parties interested, and deliver to the parties interested the securities or other personal property that was referred to in the deeds. Mr. Young took the deeds, and went to the Commercial Bank, and deposited them in the vault there. Afterwards, and some time in the month of April, Mr. Brooks instructed Marcus Young to put on record the deeds running to Sarah E. Brooks, and Mr. Young did so.
    “Among other things which are referred to in these deeds was a claim against one Carpenter, growing out of the former partnership of Brooks & Carpenter, referred to in the deeds, of about $4,000. Subsequently, and in about the ljiiddle or latter part of May, 1892, Mr. Brooks took some part in adjusting or collecting a portion of this account from Carpenter. At one other time after the delivery of these deeds to Young, and before his death, he sent for Mr. Young to bring the papers to his house, and Mr. Young did so, and they looked over the papers. No other instructions were given to Mr. Young.
    “There was evidence tending to show that, subsequent to the delivery of these deeds to Young, rents were collected and money received on contracts, sometimes by Mr. Brooks, sometimes by the children, and sometimes by Mrs. Brooks.
    “George Brooks died about June 25, 1892, without giving any other instructions, or exercising other acts of control over these conveyances.”

      John B. McIlwain (Lincoln Avery, of counsel), for complainant.

      Atkinson & Wolcott, for defendants.
   Grant, C. J.

(after stating the facts). 1. Delivery of a deed to a third party, to be by him delivered to the grantee after the death of the grantor, is valid. Hosley v. Holmes, 27 Mich. 416; Wallace v. Harris, 32 Mich. 380. These authorities are approved in subsequent decisions of this court. The same rule prevails elsewhere. Wheelwright v. Wheelwright, 2 Mass. 447 (3 Am. Dec. 66); Mather v. Corliss, 103 Mass. 568; Stone v. Duvall, 77 Ill. 475; Brown v. Westerfield, 47 Neb. 399 (53 Am: St. Rep. 532). The question of delivery in such cases is one of intent. Burk v. Sproat, 96 Mich. 404.

We think it entirely clear that Mr. Brooks, recognizing that death was near, intended this disposition of his property to be final, and that he intended to place the deeds and other papers in the hands of Mr. Young without any idea of recalling them, or making any other disposition of his property. The facts that he remained in possession of the homestead, and that he requested or instructed Mr. Young to place the deeds to his wife upon record, or that Mr. Young, at his request, brought the papers to him for his examination, are not inconsistent with the act of delivery.

2. It is urged that the testimony of Mr. Young was incompetent, because he is a party in interest, within the meaning of the statute prohibiting such persons from testifying to facts equally within the knowledge of the deceased. Mr. Young is made a mere naked trustee in one of the conveyances. The deed conveyed to him no interest whatever in the property. He was not, therefore, disqualified as a witness. Watson v. Russell, 18 Iowa, 19; Comstock v. Hadlyme Ecclesiastical Society, 8 Conn. 254 (20 Am. Dec. 100); Sears v. Dillingham, 12 Mass. 360; Bap. Wit. § 18.

Decree affirmed, with costs.

The other Justices concurred.


author: Hooker, J.

text:
    PEOPLE v. MALSCH.
    1. Husband and Wife — Nonsupport—Prosecution under Disorderly Act.
    Under 3 How. Stat. § 1997a, declaring “all persons who, being of sufficient ability, refuse or neglect to support their families, or who leave their wives or children a burden on the public,” to be disorderly persons, one who refuses or neglects to support his family is within the statute, although the family does not become a public charge.
    2. Same — Competency as Witnesses — Statutes—Repeal.
    3 How. Stat. § 7546, enacted in 1885, provided that a wife should be a competent witness against her husband in oases growing out of the husband’s refusal or neglect to support his family, within the meaning of Act No. 136, Pub. Acts 1883. 3 How. Stat. § 1997a, enacted in 1889, while in terms repealing the statute of 1883, re-enacted its identical provisions, so far as the same were involved in the statute of 1885, relating to the competency of witnesses. Held, that the wife is a competent witness in a prosecution under the statute of 1889.
    3. Same — Nonsupport—Defenses.
    A husband cannot justify his abandonment of his wife and child without support on the ground that he did so that he might give his services to his father, in the expectation of succeeding to the latter’s property.
    Exceptions before judgment from Berrien; Coolidge, J.
    Submitted November 18, 1898.
    Decided December 28, 1898.
    Albert Malsch was convicted of refusing and neglecting to support his family.
    Conviction affirmed.

      O'Hara & O'Hara, for appellant.
    G. M. Valentine, Prosecuting Attorney, for the people.
   Hooker, J.

The defendant was convicted upon a complaint and warrant charging that—

“Albert Malsch, of said township of Lake, has been, and is, a disorderly person, within the meaning of section 1 of Act No. 264 of the Public Acts of Michigan of 1889, being section 1997a of 3 Howell’s Annotated Statutes of the State of Michigan, and amendments thereto, for that the said Albert Malsch, at the township of Lake, in said county, during and at the times aforesaid, he, the said Albert Malsch, being then and there a married man, with a wife and child then and there lawfully dependent upon him, the said Albert Malsch, for their support, and he, the said Albert Malsch, being then and there, during and at the times aforesaid, a person of sufficient ability so to do, has during said time, and does, refuse and neglect to support or contribute towards the support of his said wife and child, contrary to the provisions of the statute,” etc.

The statute reads:

“All persons who run away, or threaten to run away, and leave their wives or children a burden on the public; all persons who, being of sufficient ability, refuse or neglect to support their families, or who leave their wives or children a burden on the public; * * * shall be deemed disorderly persons.”

The point is made that the complaint and warrant contain no allegation that the wife and child were left a burden upon the public, and that the testimony fails to show such fact; and it is urged that for this reason the court should have directed a verdict of acquittal. Counsel cite several cases which hold that similar acts are designed to redress public grievances, rather than to provide a remedy for the wife, in addition to those afforded by civil proceedings. People v. Naehr, 1 N. Y. Cr. R. 513; People v. Walsh, 11 Hun, 292; Bayne v. People, 14 Hun, 181; State v. Watson, 58 N. J. Law, 499. An examination will show that all of these cases arose under statutes clearly making the injury to the public an essential element. In New Jersey, complaint could only be made by an officer when the public interests were affected. The New York cases arose under statutes including similar provisions, and not containing the clause in our statute upon which, the counsel for the people rely, viz.: “All persons who, being of sufficient ability, refuse or neglect to support their families.” These cases are distinguished from the case of People v. Pettit, 3 Hun, 416, upon the express ground that neglect to support was an ingredient of the offense -under former laws, and was stricken out by amendment. See People v. Walsh, 11 Hun, 293; Laws N. Y., 1844, chap. 174, § 6. The language of our law (section 1997a), by its terms, covers the case of one who refuses or neglects to support his family; and we think it was not the intention to limit the liability of the husband to instances where the public has actually been called upon to afford relief, thus denying liability where a wife, through her own exertions or the aid of friends, avoids pauperism. The statute is broad enough in its terms to cover all cases of unjust neglect, and we think it should not be limited by the construction contended for. This view receives corroboration from the- fact that the' former provisions of the law (1 How. Stat. § 1985) very clearly supported the contention of the defendant’s counsel. It read, “ All persons who * * * refuse or neglect to support their families, and leave their wives or children a burden on the public; ” whereas the present law contains “ or ” instead of “and,” as does the law of 1883.

The law of 1885 (3 How. Stat. § 7546) provides that “a wife shall not be examined as a witness for or against her husband without his consent, except in cases where the cause of action grows out of a personal wrong or injury done by one to the other, or grows out of the refusal or neglect to furnish the wife or children with suitable support, within the meaning of Act No. 136 of the Session Laws of 1883.” In 1889 an act was passed entitled “An act relative to disorderly persons, and to repeal chapter 53 of the Compiled Laws of 1871, as amended by the several acts amendatory thereof,” of which amendatory acts said Act No. 136, Pub. Acts 1883, was one. Although the act of 1889 substantially re-enacted section 1 of chapter 53 (i. e., Act No. 136, Pub. Acts 1883), it is contended that such act is repealed, and that the provisions of section 7546 cannot apply to the new disorderly act passed in 1889. The law of 1885 refers to the then-existing disorderly act, instead of repeating the substance of its pertinent provisions. By such reference, such act became a part of the act of 1885; and it is an established rule that in such a case it is not affected by a subsequent repeal of the act referred to. See End. Interp. Stat. § 492. We have followed this rule in the cases of Darmstaetter v. Moloney, 45 Mich. 621, and Regents of University of Michigan v. Auditor General, 109 Mich. 134. The provisions of the present disorderly act are identical with those of the act of 1883, so far as the former were incorporated in section 7546. We are of the opinion that such section authorized the reception of the testimony of the wife.

Of the other questions, little can be said of interest to the profession. We think the cross-examination of the defendant was proper, as it tended to controvert the claim that his wife had abandoned him, and improperly refused to accept the support which he offered to give her at the home of his father. To our minds, the proposition that the husband was at liberty to leave his wife and child without support, that he might give his services to his father, in the expectation of succeeding to his rights in the paternal home after his father should die, is not tenable. He cannot thus escape his domestic and public obligations.

We find no error, and the circuit court is directed to proceed to judgment.

The other Justices concurred.