text:
    PEOPLE v. RANNEY.
    1. Criminal Law — Corpus Delicti — Proof—Confessions — Sufficiency.
    It is the general rule that the corpus delicti may not be proved by the naked extrajudicial confession of accused.
    2. Same — Corpus Delicti — What Constitutes.
    Logically the corpus delicti includes only the fact of the specific loss or injury sustained, though some of the cases hold that it also includes the fact of someone’s criminality as the source of the loss.

    3. Same — Confessions—Corroboration—Sufficiency.
    The corroboration of accused’s extrajudicial confessions necessary to establish the corpus delicti refers to facts which concern the corpus delicti, facts tending merely to produce confidence in the truth of the confession not being sufficient.
    4. Same — False Pretenses — Confessions—Corroboration—Sufficiency.
    In a prosecution for false pretenses in procuring funds on a worthless check, evidence examined, and held, that though there was no evidence that the check was worthless other than the fact that it had been forwarded in the usual course of business to a distant State and returned unpaid, there was sufficient corroboration of respondent’s confessions to support a conviction, assuming that the corpus delicti includes not only the fact of the specific injury, but the element of someone’s criminality as the source thereof.
    5. Same — Trial—Indorsing Witnesses.
    Counsel for respondent, before learning the nature of the testimony to be elicited from a new witness, stated that he would need time to send to New York to find out a fact, but, upon learning the fact to be proved by the witness, said that his position was that the fact was immaterial, and no motion for time was made. Held, that it was not error to indorse the name of the witness on the information and permit him to testify.
    6. Same — Argument of Counsel — Prejudice.
    A statement made by the prosecuting attorney, in argument, to the effect that respondent was committing adultery every day, the purpose being to discredit him because of his immorality, was not prejudicial, though there was no proof that either respondent or the woman with whom he was traveling was married, where it appeared that they were registered at hotels as man and wife and were not married.
    Error, to the superior court of Grand Rapids; Stuart, J.
    Submitted May 7, 1908.
    (Docket No. 127.)
    Decided June 27, 1908.
    Melvin C. Ranney was convicted of obtaining money by false pretenses, and sentenced to imprisonment for not less than 1 year, nor more than 10 years, in the Michigan reformatory at Ionia.
    Affirmed.

      William B. Brown, for appellant.

      John W. Powers, Assistant Prosecuting Attorney, for the people.

       As to proof of corpus delicti, see note to Bines v. State (Ga.), 68 L. R. A. 33.

   Ostrander, J.

Respondent is charged, in the information, with obtaining' money by false pretenses. The pretenses alleged are that he was owner of a certain check and order for the payment of money, that the check was of the value of $50, and that there was on deposit at the place of payment designated in the check $50 with which to pay it when presented, and that said sum would be paid to the complainant, or bearer, upon presentation of the check, and that there was at the place of payment a book, No. 583, and would be when the check was presented, and that said book showed a balance on deposit of $478. A copy of the check is set out, as follows:

“ New York, April 4, 1907. $50.00
“ Pay on Book No. 583.
“Union Dime Savings Institution.
“Broadway, 32nd St. & 6th Ave.
“Fifty dollars, to myself or bearer, and this shall be your receipt.
Signature, “L. J. Cameron.
“ Individually, or as trustee, as the book reads,
“ Present Address, Grand Rapids, Mich.
“Previous Balance $478.00.
“ Endorsed on Back, M. C. Ranney, J. E. Rice.”

The record discloses that respondent procured the check to be cashed at a hotel where he was stopping, paid his bill out of the proceeds and retained the balance. The hotel keeper indorsed the check and negotiated it with a merchant, who deposited it in a local bank for collection. It was sent by the local bank to New York city and returned unpaid. There is no other testimony tending to prove that the check was ever presented at the designated place of payment. Beyond the fact that the check was so forwarded and so returned unpaid, there is nothing tending to prove the check was worthless except an alleged confession of respondent, testified to by officers who had him in charge.

It is contended, and it is the principal question presented, that there was no sufficient proof of the commission of the offense. The proposition advanced is that the commission of a felony cannot be proved by the extrajudicial confession of the accused. Applied to this case, this means that guilt of the respondent may not be determined by his confession that the check was, and was by him known to be, worthless; that the people were bound to show presentation of the check to the Union Dime Savings Institution, in New York, if such an institution existed; that it was not drawn against funds, that payment was refused.

It is the general rule that the corpus delicti may not be proved by the naked extrajudicial confession of the accused. 12 Cyc. p. 483; 6 Am. & Eng. Enc. Law (2d Ed.), p. 582; Wharton on Criminal Evidence (9th Ed.), §§ 632, 633; People v. Lane, 49 Mich. 340. The question presented leads to the inquiry, What is the corpus, delicti in a case like this one ? In 3 Wigmore on Evidence, § 2072, it is said that an analysis of every crime, with reference to this element of it, reveals three component parts, first, the occurrence of the specific kind of injury or loss (as, in homicide, a person deceased; in arson,, a house burnt; in larceny, property missing); secondly, somebody’s criminality as the source of the loss, — these two together involving the commission of a crime by somebody; and, thirdly, the accused’s identity as the doer of this crime; that the term corpus delicti seems in its orthodox and its logical sense to signify merely the first of these elements, namely, the fact of the specific loss or injury sustained, although some judges (Chief Justice Shaw in Com. v. Webster, 5 Cush. [Mass.] 295, and Chief Justice Church in People v. Bennett, 49 N. Y. 137, among others) have held that it also includes the second element. I do not find any general rule laid down by the' decisions of this court. Language is employed in People v. Hall, 48 Mich. 482, 485, which indicates that in cases, of homicide the corpus delicti involves the death and, also, its character — whether probably caused by someone other than the deceased. See, also, People v. Aikin, 66 Mich. 460, 472-474; People v. Parmelee, 112 Mich. 291, 294, 295. The rule that the corpus delicti must be proved by some evidence other than the confession of the accused,— that the confession must be corroborated, — is recognized, in People v. Lambert, 5 Mich. 349, 366; People v. Isham, 109 Mich. 72; People v. Hawksley, 82 Mich. 71, 73, 74;. People v. Kemp, 76 Mich. 410, 416; People v. Hess, 85 Mich. 128, 132, but without determining, in either case, except perhaps inferentially, what constituted the corpus delicti. In some cases, the idea has been expressed that the nature of the offense charged was such that no proof' of the corpus delicti could be made as of a separate element of the offense. Such are the cases of People v. Swetland, 77 Mich. 53, 63; People v. McGarry, 136 Mich. 316, 324. In People v. Swetland, it was said:

“ There are some cases where the corpus delicti — generally in homicide — is clearly separated and distinct from the question as to who committed the offense, if any is found to have been committed. In such cases the evidence to establish the corpus deliciti must first be given, before acts or admissions of the accused can be put in evidence. But the present case is one where the body of the offense — the uttering of a forged instrument, knowing it to be false — is so intimately connected with the question whether or not the respondent is guilty of the crime, that there can be no such separation. The corpus delicti in this case depends entirely for its existence upon the acts and intent of the respondent, so that her acts and admissions, if admissible at all, were admissible at any stage of the proceedings upon the trial.”

For the purposes of the present case, it may be conceded that it was necessary that the confession of respondent should be corroborated as to the corpus delicti. Whether we consider only the first or the first and.second elements, as stated, as constituting the corpus delicti, there is, in this case, evidence corroborating the facts stated by respondent in his confession. I use the term corroborate as meaning not merely tending to produce confidence in the truth of the confession, but as referring to facts which concern the corpus delicti. This is the legally correct meaning. 3 Wigmore on Evidence, § 2071. There is evidence undisputed — indeed corroborated by respondent — that he applied to Mr. Rice, the keeper of the hotel, to cash the check, that the check was cashed and respondent received the money. The check was forwarded in the usual course of business to New York and was returned unpaid. It has not been paid and Mr. Rice has never received his money. Before the check was cashed, and as an inducement, respondent, who was at the hotel with a woman not his wife, and owed the proprietor for entertainment, stated that they were going to Muskegon for three or four days and would then return to the hotel, and that meantime Mr. Rice could find out whether or not the check was good; that he would leave a big trunk and a typewriter in it. He left the trunk but no typewriter. He did not return to the hotel but was arrested in May, at Wheaton, Illinois, where he was known as H. H. Straub. He told Mr. Rice that he had been with a certain firm or institution in New York for ten years, had worked from a window washer up, and that the h.ouse always sent such checks to their traveling men. He said that Cameron, the drawer of the check, was a member of the firm. A portion of his confession, according to the testimony, was that a man named Cameron drew the check, respondent was to get it cashed, and they were to “ split ” the money, and did divide it; that Cameron was more to blame than he (respondent) was; that Cameron “told me that he knew a way to get a little easy money;” that he used an assumed name at Wheaton because afraid he might be arrested, and intended to straighten up this matter when he got to work. There was more to the confession than is here stated, some of it favorable to respondent. But it cannot be said that such portions of it as relate to the corpus delicti are not corroborated by other evidence.

During the trial the prosecuting attorney, over objection, obtained leave of the court to indorse upon the information the name of a witness who was thereupon called, sworn, and examined. The testimony of this witness, or that of some other person connected with the bank which forwarded the check for collection, was necessary if the fact was to be proved. On a motion made previous to the trial to discharge the respondent, the subject was adverted to in such a manner that it is apparent the prosecuting attorney must have known he would probably need the witness at the trial. Counsel for respondent, before learning the nature of the testimony to be elicited from the new witness, stated that he would need time to send to New York to find out in regard to the check. Upon learning that it was proposed to prove only that the check went through the bank, was sent on for collection and returned unpaid, he said his position was that the testimony would be incompetent, irrelevant, and immaterial. It is stated in the brief for respondent that a continuance of the case was asked for and was denied. The record which is referred to does not support this statement. The right to further time was asserted, as has been stated, but no motion for time was made, and the necessary inference from the record is that the trial judge did not suppose that a continuance was desired.

Error is assigned upon a statement, made, in argument, by the prosecuting attorney, to the effect that respondent was committing adultery every day. The remark was excepted to. The point made seems to be that there was no proof that either the respondent or the woman he was traveling with was married. But they were registered as man and wife and respondent testified they were not married. The gist of the argument was, not that the relations were such as the word used defines, but that they were immoral, affecting the credibility of respondent. "We should not reverse the conviction upon this ground.

A number of errors are assigned upon the charge as given and upon refusal to charge as requested. They have been examined and the charge as given has been carefully read without our being able to say that any reversible error was committed.

Judgment is affirmed.

Hooker, Moore, Carpenter, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    RUTTLE v. WHAT CHEER COAL MINING CO.
    1. Corporations — Contracts — Promoters — Validity —Statutory Provisions.
    Whether, under section 6995, 2 Comp. Laws, a contract made by the organizer and principal stockholder of a corporation, prior to the filing of the articles of association and payment of the franchise fee, will bind the corporation, is immaterial in a case in which the corporate organization as actually executed was a mere cover for the organizer, under protection of which it was designed he should individually conduct the business, and he recognized the contract after incorporation and agreed to carry it out.
    2. Same — Contracts—Representation by Officers — Liability of Corporation.
    Where the directors of a corporation, who comprised the entire body of its stockholders, permitted the principal stockholder, who held the offices of president, treasurer, and general manager, to exercise all of their functions and to assume the entire control and management of the corporate affairs, the corporation, having received the benefit of services performed under contract with him, is as much bound as though it had itself formally contracted for the services.
    3. Work and Labor — Action — Implied Contract — Extent of Services.
    In an action against a corporation for the value of services performed during a certain period, the fact that plaintiff was employed by another corporation during the same period and received an annual salary therefor, will not prevent his recovery, where his employer is not objecting and he testifies that he performed all the services required of him by his employer, and that the general manager authorized his employment by defendant, though the principal stockholder of both companies claims that the original contract of employment was that plaintiff “was to do anything either for me or the company or the W. company that I might ask him, without other compensation.”
    A Corporations — Officers—Compensation—Implied Contract.
    In an action against a corporation for the value of services performed, a claim that because plaintiff was a stockholder, secretary and a director of defendant the law presumes, in the absence of an express contract, that his services were gratuitous, and there could be no recovery on an implied contract, is not tenable, where plaintiff was merely a nominal stockholder and received no compensation as an officer.
    5. Same — Services—'Value—Evidence—Sufficiency.
    Where, in an action against a corporation for the value of services performed in superintending defendant’s operations, plaintiff testified that the services were worth $5,000, stated their character, and in a general way what he did, and was cross-examined at length, and the services were of such a character that it would be difficult to place a value upon the several items, there was sufficient evidence of their value to go to the jury.
    6. Work and Labor — Action—Evidence—Value.
    Where, in an action against a corporation for the reasonable value of services performed as superintendent, it appears that plaintiff was also employed and received an annual salary from another corporation, and has brought suit against theo principal stockholder of both corporations for still other services, the character and extent of the services rendered to the other two employers is a material inquiry, and a very wide latitude on cross-examination is permissible.

      7. Same — Evidence—Admissibility.
    In an action against a corporation for the reasonable value of services performed, evidence as to the price at which plaintiff resold to defendant’s principal stockholder certain stock in another corporation, that he received no benefit from its increase in value while he held it, and the price at which a third person transferred the stock to the principal stockholder, is immaterial, and its admission prejudicial.
    Error to Bay; Sharpe, J., presiding.
    Submitted May 11, 1908.
    (Docket No. 35.)
    Decided June 27, 1908.
    Assumpsit by Charles S. Ruttle against the What Cheer Coal Mining Company for services rendered. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Morris L. Courtright (DeVere Hall, of counsel), for appellant.

      Weadock & Duffy (T. F. Shepard, of counsel), for appellee.
   Blair, J.

Plaintiff sued defendant on the common counts in assumpsit to recover for services alleged to have been performed in its behalf, and filed the following bill of particulars:

“1904, July 23, to 1905, July 17.
“ To personal services in and in connection with making and looking after contracts and supervising the construction of railroad grade and railroad bridges.
“To services in and in connection with and looking after contracts for the construction of building, including tipple, engine house, boiler house and other buildings.
“To services generally in connection with and in the construction and development of the What Cheer Coal Mining Company’s plant and property and the handling of all business matters connected therewith and with the completion of its plant and facilities for operating as a coal mining proposition, including railroad facilities and marketing the product of the company’s mine----$5,000.
“Interest on the above at 5 per cent, to date of judgment.”

In April, 1901, the plaintiff was employed by the Wenona Coal Mining Company, a corporation composed of Mr. E. B. Eoss, Mr. Jackson, Mr. Norris, and Mr. Conway, as stockholders. The capital stock was $100,000, of which Mr. Eoss owned one-third, Mr. Norris one-third, and Messrs. Jackson and Conway, together, one-third. Mr. Norris was president, Mr. Jackson, vice-president, Mr. Conway secretary, and Mr. Foss treasurer and general manager.

Mr. Foss testified:

“ The management of the Wenona Coal & Mining Company was entirely with me, but I always consulted more or less with Mr. Norris. Mr. Jackson did not give it much attention. ”

That he employed plaintiff at a salary of $1,400 a year:

“ The substance of the conversation was that he would enter my employ — my employ and that of the Wenona Coal Mining Company at a salary of $1,400 per year; that he was to do anything in the coal line, either for me or the company or the Wenona Coal Mining Company, that I might ask him to do, without other compensation.”

Plaintiff testified that his employment was in behalf of the corporation only, and was to look after the business in a general way under the direction of Mr. Foss.

In May, 1902, Mr. Foss bought the Jackson stock and transferred $5,000 of it to plaintiff, taking his note, holding the stock as collateral, to be paid for out of dividends, plaintiff paying the renewal discounts. Plaintiff was elected secretary, and in February, 1903, his salary was raised to $2,000. Mr. Foss was the owner of leasehold interests in certain coal lands in Bay and Saginaw counties, and plaintiff testified:

“Prior to the organization of the What Cheer Coal Mining Company I was associated with the property that afterwards came into possession of the company. My connection with the property commenced in June, 1902. Mr. Foss was also connected with this property, and brought it to my attention, and from that time on I was in a way connected with it. * * * Mr. Foss and I had an arrangement relative to the work; the What Cheer Coal Mining Company articles of incorporation are dated July 28, 1904, and in the arrangement I had with Mr. Foss I was to be a stockholder in that company. * * *
“Mr. Foss had the articles prepared and I signed them and a few minutes after they were signed on the same day, in Mr. Foss’ office, which was also the office of the Wenona Coal Mining- Company, I had a conversation with Mr. Foss. * * *
“ I called Mr. Foss’ attention to the fact that there was but one share of stock set opposite my name, and told him that was not according to our agreement or understanding, and he says, ‘ Never mind, Mr. Buttle, I have done that for a special reason,’ giving the reason. * * * And he says, ‘that matter will be fixed up later, and you will be taken care of all right. Don’t worry about that, it is all right.’
“Q. At that time what was said about the future work of the What Cheer Coal Mining Company as to what should be— * * *
“A. I was to look after their work.
“Q. What work were you to look after?
“A. Everything in general.
“Q. What was said with reference to your looking after the work, and with reference to the work that had been done before between you and Mr. Foss ? * * *
“A. Mr. Foss being general manager, he says, ‘Go ahead, Mr. Ruttle, and we will push the thing along under the new organization, the What Cheer Coal Company,’ and that I was to take the general supervision of everything. Mr. Foss was general manager, president and treasurer of the What Cheer Company. Walter I. Foss was vice-president, and I was secretary. At the time the corporation was formed, the company had, as near as I can recollect, 960 acres of coal lands tested up. Some of these lands were owned previously by Mr. Foss. The others were covered by coal leases.”

The articles of association of defendant were signed July 23d, 1904, but were not filed with the county clerk until August 16th following. The capital stock of $100,-000 was divided into 4,000 shares, of which Mr. E. B. Foss subscribed for 3,998 shares, Mr. W. I. Foss, his son, for one share, and plaintiff, for one share. Plaintiff testified as to the agreement that he should have stock in defendant company:

“Q. Was the amount fixed?
“A. The amount was set previous to that, it was fixed previous to that time.
“Q. At how much ?
“A At from ten to fifteen thousand dollars.
“Q. That is the proposition you refer to ?
“A Yes, sir.
"Q. As a gift outright ?
“A That was the proposition.
"Q. That is, you were not to pay anything for it ?
“A I was to have that for my services at the time the What Cheer Company was organized and for my services afterwards I was to be compensated.
“Q. But that was the proposition that you have referred to at times ?
“A. Yes, sir.
“Q. And that was the only one ?
“A. That was the only one. Mr. Foss represented the defendant in all talks about any proposition with me, and the talk was before the company was formed. No recorded action was ever taken relating to my claim. * * *
“Q. Was the talk as to the stock, that is, the understanding as to the stock, a part of the understanding as to the compensation that you speak of also ?
“A. The stock I expected I would get at the time the ' company was organized, the compensation would be after.
“Q. I understand, but was it your claim that the stock was also a statement of the compensation ?
“A. It was up to that time.
“Q. Up to what date ?
“A. Up to the organization of the company.
“Q. After that do you claim that your stock that you should have received is a part of the compensation for your work which you did ?
“A. No, sir.”

Plaintiff testified that he was employed each day by the defendant company and put in “from half to two-thirds of my time.”

In July, 1905, plaintiff resigned his office in both companies, sold his stock to Mr. E. B. Foss, and soon after-wards commenced this suit. No salary was fixed for any of the officers or directors and none of them drew any down to the time of plaintiff’s resignation. Plaintiff recovered a judgment upon verdict of the jury for $2,000, which defendant has removed to this court for review upon writ of error. Counsel for defendant present their argument in support of the assignments of error under seven heads, as follows, viz.:

(1) The claimed contract did not bind defendant.

(2) Employment by Wenona Company precludes recovery. .

(3) There could be no recovery on an implied contract.

(4) No competent evidence of the value of plaintiff’s services.

(5) Limitation of defendant’s proof.

(6) Contract claimed not a divisible one.

(7) General rulings.

Under this head it is argued:

*' Contracts between the corporation and third persons must be entered into by the directors and not by the stockholders. * * * A single stockholder cannot make a contract for and in the name of the corporation which has any binding force or validity, except by subsequent ratification or adoption by the corporation in the regular manner. * * * Although one person owns a majority of the stock, or all of it, or all but two shares, he does not in consequence thereof acquire the right to act for the corporation, or as the corporation, independently of the directors. 2 Cook on Corporations (5th Ed.), § 709; Randall v. Dudley, 111 Mich. 437, 439; Rough v. Breitung, 117 Mich. 48, 55; In re Moser, 138 Mich. 302, 313; Louisville Banking Co. v. Eisenman, 19 L. R. A. 684 (94 Ky. 83); Rice v. Peninsular Club, 52 Mich. 87.”

It is further contended that under section 6995, 2 Comp. Laws, any agreement between plaintiff and Eoss prior to the filing of the articles of association and payment of the franchise fee could not bind the corporation. Wright v. Sugar Co., 146 Mich. 555; Hastings Industrial Co. v. Moran, 143 Mich. 679.

The evidence warrants the conclusion, at least, that the corporate organization as actually executed was a mere cover for Mr. E. B. Eoss, under the protection of which it was designed that he should individually conduct the business. The property turned over to the corporation all belonged to him, and the affairs of the corporation were controlled and managed by him without even the formal action of a board of directors. Plaintiff and W. I. Eoss were mere nominal stockholders for purposes of organization, and, in fact, Mr. E. B. Foss was the corporation.

In the paragraph of Cook on Corporations cited by defendant, the author says, after using the language quoted in the brief:

“There are, however, two exceptions to the rules given above. The first is that corporate action may arise in other ways than by the formal action of its board of directors or meeting of stockholders or of its agents. * * * The second exception is that where a corporation is merely a ‘ dummy,’ the court has power to ignore its corporate existence and to hold that the acts of the stockholders are the acts of the corporation itself.”

It is unnecessary to determine that, under the circumstances of this case, the contracts of Foss in advance of incorporation would bind the corporation, since, according to plaintiff’s testimony, Mr. Foss recognized the alleged agreement after incorporation and promised to carry it out. We are, also, of the opinion that if the jury believed the testimony of plaintiff they would be amply warranted in finding that the corporation after its legal institution ratified and adopted the alleged agreement and, in the absence of an express agreement, knowingly accepted the benefit of plaintiff’s services. The directors, who comprised the entire body of stockholders of the corporation, having permitted the president, treasurer and general manager to exercise all of their functions and to assume the entire control and management of the corporate affairs, and having received the benefit of his acts and of plaintiff’s services, the legal entity is as much bound as though it had itself formally contracted for the services. 2 Cook on Corporations (5th Ed.), § 707. We do not think that" the court erred in refusing to direct a verdict for defendant on this ground.

Did the fact that plaintiff’s services for the period in question were contracted for by the Wenona Company and a salary paid therefor preclude a recovery from defendant? The Wenona Company is not raising this question and it does not come with good grace from Mr. Foss, who claimed, in substance, that the services of plaintiff were rendered for the defendant under the original agreement with the Wenona Company “that he was to do anything in the coal line either for me or the company or the Wenona Coal Mining Company that I might ask him to do without other compensation.” Plaintiff testified that he fully performed all of the services required of him by the Wenona Company and the general manager of the company authorized his employment by defendant. We think the court properly refused to direct a verdict for defendant on this ground. Smith v. Railroad Co., 102 N. Y. 190; Wallace v. DeYoung, 98 Ill. 638.

It is claimed that because plaintiff was a stockholder, secretary, and director of defendant company, the law presumes, in the absence of an express contract, that his services were gratuitous and there could be no recovery on an implied contract in this case. We do not think that the court would have been justified in instructing the jury, as a matter of law, that, under the circumstances of this case, no agreement to pay for plaintiff’s services could be implied. Dodger. Traction Co., 152 Mich. 100.

The only evidence offered of the value of plaintiff’s services was his own testimony that they were worth $5,000. The plaintiff testified as to the character of his services and, in a general way, what he did, and was cross-examined at length upon the whole subject. As stated by the trial judge in overruling the motion for a new trial, “the services rendered by plaintiff, as testified by him, were of such a character that it would be difficult, if not impossible, to place a value upon the several items of service as they were performed.” We agree with the circuit judge that it cannot be said, as a matter of law, that there was no competent evidence upon the subject.

Plaintiff testified, somewhat vaguely, that he devoted from one-half to two-thirds of his time to the performance of the services for defendant. At the same time he claimed that he was fully discharging his duties towards the Wenona Company and was also rendering services to Mr. E. B. Foss, individually, for which he had brought suit. The court permitted the defendant to show the fact that plaintiff had sued Foss for alleged services covering the same period, but refused to permit it to show the amount of the claim or the character of the services. In this ruling we think the court was in error. It was admitted that there was no agreement fixing the amount of plaintiff’s compensation and that he was only entitled to recover what his services were reasonably worth. The time which could be devoted to defendant’s service must depend largely upon the extent and character of the services rendered to his other two employers. While the value of plaintiff’s services to Foss was not material, we think their character and extent were. And we are of the opinion that where a man claims to be employed by three masters at the same time, as in this case, very wide latitude is permissible on cross-examination, and that defendant’s counsel should have been permitted to inquire fully into the details of the claim.

This contention is not supported by the testimony.

Plaintiff was permitted to answer the following question:

“Q. What was the book value of the stock in the Wenona Company at the time you made the sale to Mr. Foss ?
“A. Approximately 85 per cent, above par, $1.85. I sold the stock to the Wenona Coal Company.” •

He was then permitted to show that he sold the stock to that company for the amount that had been paid by him with the discount added. He was also permitted to show that on his sale to the Wenona Company he got no benefit of the increase in value of such stock and that during such time he was paying interest at the rate of 6 per cent, per annum.

On cross-examination of Foss by plaintiff’s counsel, the following occurred:

“Q. When Mr. Jackson retired from the company he simply took out and was paid by you the money which he put in ? Objected to as immaterial. Objection overruled and exception taken.
“A. That is the case.
“Q. Totally without interest ?
“A. He didn’t get any interest.
“Q. He never got a cent of dividends before he sold, out of his stock ?
“A. I don’t think he did.”

The objections to these questions should have been sustained. The testimony elicited was immaterial and obviously prejudicial to defendant.

For the errors above pointed out, the judgment is reversed, and a new trial granted.

Grant, O. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Hooker, J.

text:
    BROAS v. BROAS.
    1. Wills — Construction — Estates Devised — Vested Remainder.
    A will leaving all testator’s property to his widow for life, with power to make such arrangements with the children as to having their shares before her death as she might deem best, and to his four named children, subject to the life interest, to be divided among them after her death share and share alike, creates vested estates in remainder in common upon testator’s death in favor of the four children.
    2. Executors and Administrators —Distribution oe Estate — Indebtedness oe Heir.
    The interest of an heir in the real estate of his ancestor is not chargeable with his indebtedness to the estate.
    3. Statute oe Frauds — Parol Agreement —Real Property-Vested Interest.
    An oral agreement by an heir indebted to his ancestor not to claim a share of the realty of the estate cannot affect a vested interest in the land.
    Error to Ionia; Davis, J.
    Submitted May 12, 1908.
    (Docket No. 63.)
    Decided June 27, 1908.
    J. Just Broas, Isabel Mann, and Catherine Hill appealed from an order of final distribution of the estate of Levi Broas, deceased. There was judgment sustaining the order of the probate court, and appellants bring error.
    Affirmed.

      John C.. Weadock (Scully & Davis, of counsel), for appellants.

      Elmer S. Avery (JRollin H. Person, of counsel), for appellee.
   Hooker, J.

The defendant, Charles Broas, and his brother, J. Just Broas, and sisters, Isabel Mann and Catherine Hill, were made devisees in common by the will of. their father, of estates in remainder in fee of the land in dispute and the same were assigned and the land partitioned by the probate court. On appeal to the circuit court, the decree was affirmed, and the cause is now before us on appeal.

The crucial question in the case is whether a vested interest in remainder passed to the remaindermen upon the death of the testator. This depends upon the construction to be given to the second and third paragraphs of the will, viz.:

“ Second. I give, devise and bequeath to my good wife, Uuth Ann Broas, all my real and personal property of every kind and nature to have and to hold during her natural life and ho longer. It being my wish and will that she have exclusive control and use of the property while she lives, that she shall be at full liberty and have my consent to make any arrangements she may deem best with our children or either of them regarding their or either of their shares or share of the property so as to let any or all of the children have their part of the property before her death, but any division of the property before her death is to be entirely at her option.
“Third. I give and devise to my children Catherine Hill, Charles Broas, Isabel Mann and J. Just Broas, all my real and personal property subject to the life interest therein herein given to their mother to be divided among them after her death share and share alike.”

1 he provisions quoted should be construed as creating vested estates in remainder in common upon testator’s death, in the four children of Levi Broas. Hoxie v. Hoxie, 7 Paige (N. Y.), 187; Converse v. Kellogg, 7 Barb. (N. Y.) 590; Tayloe v. Mosher, 29 Md. 443; Tatem v. Tatem, 1 Miles (Pa.), 309; Lower. Barnett, 38 Miss. 329; Taveau v. Ball, 1 McCord, Eq. (S. C.) 7.

There being a vested interest in Charles Broas, the case falls within the rule of Marvin v. Bowlby, 142 Mich. 245 (4 L. R. A. [N. S.] 189), and it was not chargeable with his indebtedness to the estate and the appellants’ claim cannot be sustained.

Of the alleged parol agreement of Charles Broas not to claim a share of the realty, it is enough to say that it could not affect a vested interest in land.

It is unnecessary to discuss the questions growing out of Wilson’s claims as creditor, as the appellants have no interest in them.

The decree is affirmed, with costs.

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


author: Per Curiam.

text:
    PATTERSON v. BORON.
    Municipal Corporations — Officers —Appointment—Qualifications — Soldiers .
    Under section 2990, 1 Comp. Laws, the mayor of a city of the fourth class is charged with the duty of determining whether an applicant for the office of city attorney possesses the necessary qualifications, and no law authorizes a court to review his determination that an applicant is not qualified, notwithstanding the applicant claims a preferment under section 1, Act No. 329, Pub. Acts 1907, by virtue of being an honorably discharged Union soldier, having served in the late Rebellion.
    Certiorari to Clinton; Searl, J.
    Submitted June 16, 1908.
    (Calendar No. 22,895.)
    Decided June 27, 1908.
    Mandamus by Henry J. Patterson to compel Eddie Boron, mayor of the city of St. Johns, to appoint relator to the office of city attorney under Act No. 329, Pub. Acts 1907. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      Henry J. Patterson, in pro. per.

      E. J. Moinet (J. Earl Brown, of counsel), for respondent.
   Per Curiam.

This is a mandamus proceeding determined adversely to relator in the circuit court. It is before us for review. Relator is an honorably discharged Union soldier, having served in the late Rebellion. He is also a regular practicing attorney and a resident of the city of St. Johns. He seeks by this proceeding to compel respondent to appoint him attorney of said city. He bases his right to said appointment on section 1 of Act No. 329 of the Public Acts of 1907, which reads as follows:

“In every public department, and all public departments in all municipal corporations, and upon the public works of the State of Michigan, honorably discharged Union soldiers, sailors and marines of the late Rebellion, and the soldiers, sailors and marines of the late Spanish-American war shall be preferred for appointment and employment ; age, loss of limb or other physical impairment which does not, in fact, incapacitate, shall not be deemed to disqualify them: Provided, however, That the applicant shall be of good moral character and shall have been a resident of the State for at least two years and of the county in which the office or position is located for at least one year, and possesses other requisite qualifications.”

Respondent refuses to make the appointment upon the ground that, according to his “best judgment, relator * * * is not * * * competent to perform the duties of the office of city attorney for said city of St. Johns, and that in the judgment of respondent * * * relator does not possess the requisite qualifications for said office.”

It will be observed that according to the section of Act No. 329 above quoted, discharged Union soldiers are not entitled to an appointment unless they possess the other requisite qualifications. The respondent has determined that relator lacked those requisite qualifications. Had he a right to make that determination ? St. Johns is a city of the fourth class. The law regulating the appointment of city attorney is found in section 2990, 1 Comp. Laws. It reads:

“ The following officers shall be appointed by the mayor, by and with the consent of the council, viz., a city attorney. ***"

This right to appoint imposed on respondent the duty of determining that his appointee possessed the requisite qualifications for the office. He would have been faithless to that duty had he appointed an applicant whom he deemed disqualified. The law therefore made it his duty to determine whether relator — an applicant for the office —possessed the requisite qualifications, and no law authorizes a court to review his determination that relator lacked such qualifications. It must therefore be held that relator is not entitled to the appointment in question because it has been authoritatively determined that he does not possess the requisite qualifications therefor.

It should not be inferred from this opinion that we decide that section 1 of Act No. 329 of the Public Acts of 1907, above quoted, has any application to the office of city attorney or to similar offices. The ground upon which our judgment rests makes it unnecessary for us to consider that question and we do not consider it.

The learned trial judge correctly decided the motion, and his order is affirmed.


author: Montgomery, J.

text:
    BUXTON v. AINSWORTH.
    1. Evidence — Opinions—Condition of Highway— Irresponsive Answer.
    In an action for damages resulting from an injury suffered in a collision between vehioles on a highway, a witness who had been called to the place of the collision by plaintiff and had the place pointed out to him was asked in effect whether there was room for defendant to pass. Held, that if the question was objectionable as calling for witness’ opinion on a question of fact, the answer was not so, where he stated that there was no object that would keep the vehicle from passing, that it was not a good road (a conclusion in defendant’s favor), and that if the location of plaintiff’s buggy was as pointed out to him, there would have been ample room, namely, nine feet of good road.
    2. Damages — Personal Injuries — Evidence — Admissibility-Medical Attention.
    In an action for damages resulting from personal injuries, it may be shown by the attending physician that he advised complete rest, that medication was not required, and that frequent visits would not be necessary, as explaining why, the injury being serious, the calls of the physician were infrequent.
    3. Same — Plaintiff’s Industry.
    In an action for personal injuries, plaintiff’s habits of industry may be shown.

      i. Witnesses — Cross-Examination—Showing Bias.
    In an action for damages for a personal injury, defendant’s father, who was a witness for defendant, was properly asked, on- cross-examination, as showing his interest in the litigation, whether he did not claim to own everything defendant had, whether he knew anything about defendant having deeded all his land to him, and whether, although he had replevined all the personal property in the possession of defendant and levied upon under the execution for costs in the original case, he had given such property in for taxation.
    5. Evidence — Parol Evidence — Conveyance of Land — Harmless Error.
    A question to defendant’s father whether he knew anything about defendant deeding his land to witness just before judgment was rendered at a previous trial of the case, if objectionable as an attempt to show by parol a conveyance of land, is harmless, where the witness had just stated that he claimed to own everything defendant had.
    6. Highways — Collision of Vehicles —Action —Instructions.
    In an action for damages resulting from an injury suffered in a collision between vehicles on a highway, an instruction that might be open to the criticism that it failed to put upon plaintiff the duty of maintaining any outlook to discover approaching vehicles is not inappropriate where it appears that plaintiff saw defendant coming when some distance away and the jury could not have misapprehended plaintiff’s theory in that regard.

      7. Trial — Instructions—Refusal—Propriety.
    No error appears from the refusal of instructions which, so far as competent, are covered by the general charge.
    8. Highways — Law of the Road — Meeting Vehicles — Negligence.
    Where defendant was traveling at night in a track on the right hand side of the wrought portion of the highway, and met plaintiff who was traveling in the same track, whether defendant exercised ordinary care in voluntarily turning his horse to the left to avoid a collision was at most a question for the jury, and an instruction stating that in such case there was not a want of ordinary care was properly refused.
    9. Trial — Instructions — Construction — Charge as a Whole.
    An instruction in a personal injury case stating that plaintiff might recover for pain, suffering, and mortification experienced, and, in case the injury was permanent, that to he experienced, ‘ ‘ also such further damages as will compensate plaintiff for his loss of capacity and prospects of life,” held, not objectionable as permitting recovery for loss of earning capacity not proved, where the jury were elsewhere instructed that there could be no recovery for time lost or for diminished earning capacity, more especially as the amount of the verdict did not indicate misapprehension as to the elements of recovery.
    Error to Ionia; Miner, J., presiding.
    Submitted June 3, 1908.
    (Docket No. 5.)
    Decided June 27, 1908.
    Case by James Buxton against Thomas Ainsworth for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      B. A. Hawley, for appellant.

      Morse & Locke, for appellee.
   Montgomery, J.

This is an action to recover damages resulting from an injury suffered in a collision between vehicles driven by plaintiff and defendant respectively. The case has once had the attention of this court, and is reported at length in 138 Mich .532, where the facts are fully stated. The facts appearing upon the second trial do not differ very materially from those given in the reported case, and except as noted in the discussion of the several exceptions taken, it will not be necessary to advert to the testimony. There are a large number of assignments of error, some of which are not discussed. We shall deal with such as we deem worthy of notice in the order adopted by counsel.

The first assignment of error is to permitting the following question to be put to a witness for the plaintiff who had been called to the place of collision and the place where the collision occurred pointed out to him:

“At the place pointed out to you, where the collision took place, a vehicle coming from the south to that point, could they have passed around on the east side providing that a vehicle was on the traveled track on the east side •of the highway that was there at that time in front of "that place ? ”

The answer to this question was:

“Yes, there was no object that would have detained or kept the vehicle from passing. Of course, it wasn’t a good road. If the location of Buxton’s buggy was as pointed out to me, there would have been ample room, nine feet of good road.”

It is objected that this question called for the opinion and conclusion of the witness upon the point as to whether there was room for the defendant to pass in the highway, and it is said that it was a bare proposition of fact upon which expert or opinion testimony was inadmissible. Whatever the question may have been deemed to have called for, the answer is not objectionable as being in the nature of opinion evidence. The witness states three things: First, that there was no object that would detain or keep the vehicle from passing; second, a conclusion in defendant’s favor — it was not a good road; third, that if the location of Buxton’s buggy was as pointed out to him, there would have been ample room, namely, nine feet of good road.

- The next objection is to the testimony of the doctor who had attended the plaintiff. The question was:

“When you were taking care of him what did you consider was the best treatment for him, what did you advise ?”

The witness answered that he advised complete rest and to keep the plaintiff in bed; that he did not think plaintiff required drugs or that drugs in and of themselves would effect a cure; that it would be unnecessary to have frequent visits from him, but that he could be called whenever necessary. It is said that the real purpose of this question was to furnish the jury an attempted excuse for the slight medical treatment furnished the plaintiff for such a serious injury as is claimed in this case — the doctor having been called but 17 times and having prescribed about 20 times. A sufficient justification for receiving testimony for that purpose is that in our opinion it is precisely what the testimony is competent for. It might have been made a subject of argument that this plaintiff was slightly injured if he required only 17 calls from a physician. It was entirely competent to meet any such argument, which is implied in the present brief, by showing the reason why, in the opinion of the medical attendant, such calls were not essential, a reason not inconsistent with the fact of serious injuries.

The third assignment of error reiates to testimony offered as to plaintiff’s habits of industry. We think this testimony was' competent. The case of MacQuisten v. Railway Co., 150 Mich. 332, is cited to sustain defendant’s contention that it was incompetent. That was a case under the death act, and it was clearly indicated that the opinion was not intended to extend to other cases. But in the later case of Shall v. Railway, 152 Mich. 463, we have held testimony of this character competent in such a case as the present.

The fourth, fifth, sixth, and seventh assignments of error relate to questions put to the defendant’s witness, Robert Ainsworth, who was defendant’s father, on the cross-examination, which were put with the purpose of showing the interest Robert Ainsworth had in the result of the litigation. The questions were as to whether he didn’t claim to own everything that Thomas had, and whether he knew anything about Thomas having deeded all his land to him, and whether, although he had replevined all the personal property in the possession of Thomas and levied upon under, the execution for costs in the original case, he had given such property in for taxation. We think that all the questions were in the discretion of the trial court. The objection to the following question:

“Now, did you know anything about your son Thomas on the 39th of June, 1903, just before judgment was entered in this case, deeding to you all of the land held in his name at that time ?”

that it was an attempt to show by parol a conveyance of land might, if it be considered that the question was directed to showing the fact of the conveyance rather than the knowledge of the witness of the fact, be open to some question were it not for the fact that the witness had just testified that he claimed, at the moment when he was on the stand, that he owned everything that defendant, Thomas, had, which in our judgment renders the other question immaterial, and if there was error, it was not prejudicial.

Error is assigned upon certain portions of the charge of the court. First, the following:

“ If the jury should find that the plaintiff was driving in the traveled track and on the approach of the defendant and as soon as he saw him, the plaintiff attempted to turn to the right and was in fact in the act of turning to the right and the defendant did not turn to the right, and defendant was guilty of negligence, thereby causing the collision and the plaintiff would be entitled to recover, as it is the duty of the defendant to seasonably turn to the right as well as for the plaintiff.”

It is argued that this instruction contained the vice of failing to put upon the plaintiff the duty of maintaining any outlook to discover approaching vehicles. There would be some force in this criticism if the effort had been made to state abstractly the rule of law defining plaintiff’s duty on the highway, or if the claim of plaintiff had been that the defendant appeared suddenly before him so that he hadn’t ample time to make the turn. But that is not this case. It appeared on the former trial, and also appeared on this trial, that the plaintiff freely admitted that he saw the defendant coming quite a ways away. It was not the theory of the plaintiff, therefore, nor could the jury so have understood it, that the defendant suddenly ran him down. The jury could make no mistake in interpreting this instruction.

The eighth and ninth requests, which were refused, were, so far as they were competent, sufficiently covered by the general instructions of the court.

The defendant’s sixteenth request asked an instruction that—

‘ ‘ If the defendant was driving northward on the road in question, in the east traveled track of the road as described in the evidence, and that in the darkness he suddenly came upon plaintiff’s vehicle coming southward in or near the same track, and that he voluntarily or involuntarily turned his horse suddenly to the left in order to avoid the danger which thus confronted him, he would not be guilty of negligence or want of ordinary care in so doing.”

We think this request was properly refused. It was at most a question for the jury as to whether, suddenly becoming aware of the situation, it was ordinary care to voluntarily turn his horse suddenly to the left.

The defendant submitted two requests to charge upon the subject of loss of time and earning capacity of plaintiff, one of which was:

“ There being no evidence in this cause of the value of plaintiff’s time lost by reason of the injuries sued for, nor any evidence of how much h.e could earn before the injury, there is no basis for any money estimate of the value of such time and there can be no recovery for the time lost or for diminished earning capacity on account of such injuries.”

This request was given. Another request was preferred stating that there was no basis for any money estimate of plaintiff’s future damages on account of the impairment of his earning power, and there could not be any recovery for diminished earning capacity on his part in the future. This was not given. The circuit judge in the course of his instructions stated that plaintiff, if entitled to recover, would be entitled to recover reasonable compensation for his fright and shock at the time of the collision, for his pain and suffering—

“For his anxiety and suspense, nervous prostration and sickness occasioned thereby, and for such mental strain and mortification by reason of being obliged to use or depend upon crutches, canes, or other inconveniences for the purpose of locomotion or otherwise, as the jury shall find from the evidence the plaintiff to have experienced in consequence of the collision; and if permanently injured thereby, then such further compensation for bodily and mental pain, suffering, mortification and inconvenience as plaintiff may be obliged to endure hereafter; also such further damages as will compensate plaintiff for his loss of capacity and prospects of life.”

It is claimed by the defendant that the jury would understand these instructions as permitting recovery for loss of capacity to earn money. In view of the fact that the court had distinctly charged the jury that the plaintiff could not recover for loss of time or for diminished earning capacity on account of such injuries, we do not think the jury could have been misled by this instruction. If the verdict had given evidence by the amount of it that there was reasonable ground to believe that the jury had misapprehended the instruction, and that defendant had suffered by reason thereof, we should consider this question more serious. But the verdict in this case was $500, an amount which in itself indicates that the jury could not have understood the instruction as warranting an award of damages for decreased capacity of earning money in the future.

We think no error to the prejudice of the defendant is shown on this record.

The judgment is affirmed.

Grant, G. J., and Blair, Ostrander, and Hooker, JJ., concurred.


text:
    PIERCE v. C. H. BIDWELL THRESHER CO.
    1. Negligence — Personal Injuries — Defective Machinery — Liability of Manufacturer.
    In an action against the manufacturer of a threshing machine for injuries to a laboror using the machine in the usual course of business, caused by a concealed defect in the structure of the machine, instructions examined, and held, sufficiently favorable to defendant.
    2. Same — Character of Defect — Danger to Life or Limb.
    Where it was expected that the decking of a threshing machine’ over the cylinder would be used as a platform upon which operatives would have occasion to go frequently while the machine was in operation, and it was known that the consequence of breaking through would be most serious, the question whether it was imminently dangerous to human life or limb to place such machine on the market with a portion of the boards of the decking supported at one end only by fourpenny nails driven upward through boards seven-eighths of an inch thick into maple cleats, not clinched or otherwise fastened, was at least one for the jury, though there was no expert testimony offered as to the dangerous character of the construction.
    3. Same — Knowledge of Defect.
    The manufacturer having knowledge of the manner of construction and of the uses to which the machine was to be put, the question whether he had a full appreciation of the danger was at least a question for the jury.
    4. Same — Damages—Loss of Earning Power — Evidence.
    Where, in a personal injury case, there is no testimony offered to show the earning capacity of the plaintiff, nor how much it has been diminished by the injury, it is error to instruct the jury that in awarding damages they may consider to what extent the injury has actually damaged plaintiff in his daily avocation and pursuit of life, and to refuse instructions of a contrary tenor.
    Error to Eaton; Smith, J.
    Submitted June 4, 1908.
    (Docket No. 33.)
    Decided June 27, 1908.

      Case by Loren D. Pierce against tbe C. H. Bidwell Threshing Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Thomas, Cummins & Nichols, for appellant.

      Frank A. Dean, Ernest C. Davids, and Huggett & McPeek, for appellee.
   Montgomery, J.

The defendant is engaged in the business of manufacturing and placing upon the market threshing machines. On the 20th of September, 1906, the plaintiff was injured by breaking through the decking and into the cylinder of a machine which had been manufactured by defendant and sold to one Joseph Harned in the summer of 1905. The machine was what is known as a Bidwell bean thresher. The mechanism of this machine consisted in part of a cylinder, with metal frame and teeth, situated near the top and toward the rear of the machine, and which, when the machine was in operation, revolved rapidly and would of course injure any one who came into contact with it. Above this cylinder was a removable decking made of narrow, soft-wood boards running crosswise of the machine, and the ends of which, except as hereinafter stated, rested on the outer frame work of the machine. This piece of decking was three feet, ten and one-half inches long and about three feet wide. The boards were seven-eighths of an inch thick and were matched together with tongue and groove matching. The three forward boards were altogether nine and one-half inches wide. At the forward right-hand corner, an opening was made for an elevator spout by cutting two of the boards entirely and a third one partly off, leaving one inch of the third board running through and resting on the sill. Above these boards about three inches from the point where they were cut off, and extending across them onto the adjoining boards on either side was a cleat, thirteen inches long, three, inches wide, and seven-eighths of an inch thick. The three boards were nailed to this cleat with four-penny nails driven from the under side. The cleat was of hard maple. The nails were not long enough to go through the maple cleat, nor were they in any manner clinched. There were six of these nails in the three boards, only five of which penetrated the maple cleat. The whole decking was painted inside and out with a priming coat, and the outside was painted with what is called “ decking paint.” At each end of the platform and between the corners of the piece of decking was a hole, from which an oil pipe led to the cylinder boxes, and it was shown that it was the custom to go upon this deck for the purpose of oiling these cylinder boxes frequently. It also appeared that the elevator spout ran into this opening; that it occasionally clogged, and on such occasions it was necessary to go upon the decking for the purpose of opening it up.

Mr. Harned purchased this machine in 1905, and used it for some five weeks, and had started in to use it in the season of 1906, and on the fifth day it was in use in that year, the plaintiff, while going upon this platform for the purpose of reaching the tool box, stepped upon this portion of the decking supported only by these nails driven from underneath, his foot went through and he received a very serious injury which made it necessary to amputate his foot a few inches above the ankle. This thresher has been manufactured a good many years, and a number of them sold in Eaton county, where this injury occurred.

The plaintiff offered no expert evidence to show that this decking as constructed was dangerous to life and limb, but relied upon the structure itself for such evidence. The defendant offered testimony of the treasurer and sales manager and of its superintendent at the factory who all disclaimed any knowledge that the structure was or was claimed to be dangerous before the injury in question occurred.

Prior to the injury of the plaintiff, he had been a farm laborer, working out by the day and month. Since his injury, during the season of 1907, he worked a farm for himself. No evidence was introduced as to his earnings either before or after the injury, nor as to his life expectancy.

The circuit judge charged the jury as follows:

“The action in the case is based upon the theory that the manufacturer — I am now giving you the theory of the plaintiff — that the manufacturer or vendor of an article or machine, which he knows when he sells it to be imminently dangerous by reason of defects therein, concealed or not readily discoverable, to the life or limbs of anyone who shall use it for the purpose for which it was made and intended, will be liable to any stranger to the contract of sale, for an injury which he may sustain as a consequence of such defect, and while he is legally and without fault on his part applying such articles or machine to its proper and intended use. This claim has been made to rest upon the underlying principle of the law of negligence, that it is the duty of everyone to so act himself and to use his property as to do no unnecessary damage to his neighbor. Actions for negligence are actions for a breach of duty; they are clearly distinguishable from actions on contracts, which are for breaches of agreements. The limits of liability for negligence are consequently not the limits of liability for breach of contract. And so you are instructed that in your investigation and determination of this case you should be guided by the well-established rule that one who sells or delivers an article which he knows to be imminently dangerous to life or limb, to another, without notice of its qualities in this particular, is liable to any person who, without fault on his part, suffers an injury therefrom, which might have been reasonably anticipated, whether there were any contractual relations between the parties or not.
“You are instructed that, if one engaged in the business of manufacturing goods not ordinarily of a dangerous nature to be put upon the market for sale and ultimate use, so negligently constructs an article that by reason of such negligence it will obviously endanger the life or limb of any one who may use it, and if the manufacturer, knowing of such defect, and knowing that the same is so concealed that it is not likely to be discovered, puts the article in his stock for sale, and sells and disposes of the same to anyone without notice of such dangerous condition, he is liable for injuries caused by such negligence, to anyone into whose hands the dangerous article or implement may come for use in the usual course of business, or who may be employed in the proper and lawful use or operation of any such dangerous article or implement, without fault on his part, even though there may be no contractual relations between such injured party and the manufacturer.
“ The gist of this case, gentlemen, is really in the instruction that I am now about to give you.
“You are instructed that should you find from the evidence in this case that the decking of the machine in question contained the defect alleged in the declaration, and which defect rendered said machine dangerous to the life or limb of those who might be operating it; that this defective and dangerous condition was so concealed by defendant that it could not be readily discovered by those operating or working on the machine; and if you further find from the evidence in the case that the machine in question was, as constructed by defendant, imminently dangerous to the life and limb of anyone who should operate the same; that the defendant knew of this defective and dangerous condition when it sold and supplied the machine to the employer of the plaintiff and knowingly failed to disclose this condition and that plaintiff sustained the injury shown through and in consequence of this defect without fault on his part, your verdict should be for the plaintiff, and you should award him such damages as you shall deem him justly entitled to under the instructions I will give you regarding the measure of damages.”

There can be no doubt that these instructions are sufficiently favorable to the defendant if there was testimony which justified the finding of the jury of the facts requisite for a recovery under the instructions given. See note to Griffin v. Jackson Light Co., 92 Am. St. Rep. 552 (128 Mich. 653, 55 L. R. A. 318); Bright v. Barnett & Record Co., 88 Wis. 299 (26 L. R. A. 524); Schubert v. J. R. Clark Co., 15 L. R. A. 818 (49 Minn. 331); Huset v. Machine Co., 61 L. R. A. 303 (120 Fed. 865); O’Neill v. James, 138 Mich. 567 (68 L. R. A. 342). In fact it is not contended by the defendant that the rule stated by the circuit judge was improper. But it is contended that the verdict should not be sustained for the reason that there was no evidence justifying a finding of the jury either that the structure complained of was imminently dangerous to human life or limb, or that the defendant knew and understood when it made and sold the machine that because of such construction it was imminently dangerous to human life and limb.

We think it was entirely proper- to submit to the jury the question of whether this construction was such as to make the machine imminently dangerous to life or limb. It is not questioned that it was expected that this decking would be used as a platform .upon which the employés engaged in operating this machine would have occasion to go frequently while the machine was in operation. Nor is it questioned that the consequences of breaking through this decking would most obviously be serious. The question then presented is whether it was necessary to call expert testimony of mechanics to enlighten the jury upon the question of whether driving four-penny nails upward into a cleat would be imminently likely to result in letting a man down into the cylinder who ■ stepped his weight upon these boards supported in no other manner. We think it altogether clear that this question was at least a question for the jury. All that stood between the plaintiff and the most serious injury was the friction which held this nail in the hole which it had created by being driven into the wood from underneath. It does not need expert testimony to demonstrate such a simple rule in physics. There could be but one result of placing any great weight upon this place, and the jury were amply justified in finding that the structure was imminently dangerous. There was nothing to indicate to the workman just how this was fastened, even had the duty rested upon him of making an inspection. It was being used for the purpose indicated, and he had the right to rely upon the apparent invitation to use it in that manner.

But it is urged that even if this structure was imminently dangerous, it does not follow that the defendant had knowledge of or appreciation of the dangerous character of the structure.

In saying that there is sufficient in the structure itself to justify a finding by the jury that the same was inherently imminently dangerous to life and limb, it is implied that it was such'to the knowledge of the defendant. The defendant was the manufacturer. It had knowledge of the uses to which this machine was to be subjected. It had knowledge of the manner of construction, and even if a full appreciation of the danger by the defendant was essential to make out the plaintiff’s case, it would at least be a question for the jury as to whether defendant had such appreciation at the time this machine was constructed and placed upon the market. The language of the court, in Schubert v. J. B. Clark Co., supra, in dealing with a similar question as it related to a ladder, defects in which were concealed by paint, is peculiarly appropriate. The court say:

“The defendant is to be deemed to have known the fact alleged, — that the dangerous defects were concealed by the application of oil, paint, and varnish, — although we do not understand that this was applied for the purpose of concealing such defects. It would seem that after that was done the defendant could not have distinguished this ladder from any other of its manufactured goods of a like kind. If, then, the defendant did not know, and could not have discovered, at the time of delivering this ladder to the plaintiff, that it was defective, there could be no wrong in not then disclosing the existence of defects in this particular article, which were neither known nor discoverable; and the question of the defendant’s liability reaches back to the time of manufacturing and putting into its stock of goods for sale an article then known to be dangerously defective, the defects being concealed, and not likely to be discovered, either by any intermediate purchaser standing between the defendant and the person who might procure the ladder for use, or by the latter person. We shall assume, then, that there was no wrongful conduct when the ladder was delivered, but only, if at all, when it was manufactured, and put in the defendant’s general stock for sale. In this view of the case, the wrongful conduct of the defendant and the injury resulting therefrom would be somewhat more widely separated in time and in the order of events than in the case as we have heretofore assumed it to have been; but it would not change their real relation as cause and effect, nor so qualify that relation that the law would regard the injury as being so remote from the wrong that for that reason responsibility should cease. When the defendant manufactured and put the dangerously faulty article in its stock for sale, it is to be deemed to have anticipated that, in the ordinary course of events, it would come to the hands of a purchaser, either directly from the defendant or from some intermediate dealer, for actual use, and with the consequences which actually were suffered.”

We think there was no error in submitting the question to the jury in the form in which it was put.

The defendant requested the court to charge the jury as follows:

“There is no evidence in this case as to any loss of earning capacity on the part of plaintiff. You are not permitted to guess at such loss, and therefore can award nothing in the way of damages for loss of earning capacity.
“There is no evidence in this case as to the probable duration of plaintiff’s life, hence you cannot award any damages for the future loss of plaintiff by reason of his injury.”

These requests were refused, and the court charged the jury that in awarding damages they were at liberty to consider to what extent this injury has actually damaged him in his daily avocation and pursuit in life.

We are constrained to hold that in refusing the instructions preferred and in giving the instruction excepted to,

- there was error. There was no testimony given tending to show what the earning capacity of the plaintiff was nor how much it had been diminished by this injury. The defendant therefore had no opportunity to meet that claim. The jury, acting upon their own judgment, uninstructed by testimony, must have agreéd upon some basis to estimate this element of damages. This we think they were not authorized in law to do. A case substantially on all fours is that of Staal v. Railroad Co., 107 N. Y. 625. See, also, Britton v. Railway Co., 90 Mich. 164; Winters. Railway Co., 74 Iowa, 448. The verdict in this case was $6,500. We are not able to say that this error was érror without prejudice.

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

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


text:
    FLEMING v. WHEELER.
    Reformation of Instruments — Deeds — Reconveyance by Purchaser — Correction of Mistake.
    Complainant, a vendor of lands, having accepted a reconveyance by quitclaim deed on defendant purchaser’s failure to pay the price, filed his bill to reform the deed for a mistake in the description, and defendant answered, claiming to have acquired certain outstanding tax titles which he ought to be allowed to retain, and alleging his ignorance of the legal effect of the quitclaim as to those titles. Though the written contract of sale imposed no such obligation, the sale and the price were based upon an oral understanding that defendant was to acquire the tax titles. Held, that though defendant was not legally bound to purchase the titles for the security of his vendor, it was equitable for him to carry out his oral promise, and having attempted to do so, and accepted a release from his contract on executing the deed, equity did not demand that he be allowed to disregard the settlement.
    Appeal from Oceana; Sessions, J.
    Submitted June 14, 1908.
    (Docket No. 79.)
    Decided June 27, 1908.

      Bill by R. Andrew Fleming, trustee, against Morton B. Wheeler and Anne S. Wheeler to correct a description in a deed. From a decree for complainant, defendants appeal.
    Affirmed.

      Nims, Hoyt, Erwin & Vanderwerp, for complainant.

      Holmes & Holmes, for defendants.
   Hooker, J.

The complainant in this cause is a trustee under certain conveyances to William B. Hale made by the heirs and executor of William M. Ferry, deceased. He has filed the bill to reform a quitclaim deed of several parcels of land, given to him as such trustee, by the defendant, one or more of which descriptions were incorrect in the range, being mistakenly described as follows: viz., S. W. £ of N. W. £, sec. 2; N. E. £ of S. E. £ of sec. 3; E. £ of N. W. £, and N. £ of N. E. £ of sec. 9; S. W. £ sec. 9; S. E. £ of S. E. £ of sec. 17; S. £ of S. E. £ of sec. 23; S. W. £ of N. E. £ of sec. 30, all in township 13 N. of range 16 W. Also the S. W. £ of N. W. £ sec. 25, in township 13 N. of range 16 West. The bill claims that the land in sections 2, 3, 9,17, 23 and 30, mutually understood as being the subject of said deed, was in township 13 North of range 15 West, and it prays that defendant be required to execute a proper conveyance to correct said mistake. The testimony is conclusive in support of the allegations of the bill and an affirmance of the decree would be a matter of course, except for the defense set up, which challenges the equity of the relief asked and prays affirmative relief.

These lands ' were all held by complainant in trust, through the conveyances from the Ferry heirs and executor, and were sold by complainant as such trustee to the defendant by written contract and proper descriptions on May 1, 1905. The contract price was $1,200, and this not being paid when due, the complainant, after futile efforts to obtain payment, wrote the defendant on November 8, 1906, as follows:

“Muskegon, Mich., Nov. 8, 1906.
“M. B. Wheeler,
“ Grand Rapids, Mich.
‘ ‘ Dear Sir: There is past due upon your land contract of May 1, 1905, $600 and interest at five per cent, from May 1, 1905, less $25 paid by A. D. Nichols (that should be O. D. Nichols). I wish you would adjust this matter without further delay. If you do not propose to pay this amount, I wish you would surrender your land contract.
“ Yours truly,
“R. A. Fleming.”
He received this answer:
“Grand Rapids, Mich., Nov. 9, 1906.
“Mr. R. A. Fleming,
“Muskegon, Michigan.
Dear Sir: Answering yours of the 8th I am not desirous of continuing the land contract that I have with you in my name for myself and associates. If you will be kind enough to make up a reconveyance and send it to me for my signature I will give it my attention promptly. ”
The correspondence continued as follows:
“Muskegon, Mich., Nov. 10, 1906.
“ M. B. Wheeler, Esq.,
“ 1001 Michigan Trust,
‘ ‘ Grand Rapids.
‘ ‘ Dear Sir: I have received yours of the 9th inst. Complying therewith I enclose herewith quitclaim deed from yourself and wife' to me as trustee covering the descriptions in your land contract dated May 1, 1905, except the southeast quarter of the northeast quarter of section 9, town 13 north of range 15 west, which has been deeded to Obed D. Nichols. Kindly execute the deed and return it to me. I wish you would send me the abstracts of title and tax histories covering these descriptions.
“ Yours truly,
“ R. A. Fleming.”
“Muskegon, Mich., Dec. 1, 1906.
“M. B. Wheeler, Esq.,
“ Grand Rapids.
Dear Sir: Complying with yours of November 9th, I wrote you November 10th enclosing a quitclaim deed to be executed by yourself and wife in settlement of your land contract made with me May 1, 1905. Since then I have heard nothing from you. What is the cause of your delay ?
“Yours truly,
“R. A. Fleming.”
“Grand Rapids, Mich., Dec. 3, 1906.
“Mr. R. A. Fleming,
Muskegon, Mich.
“ My dear Mr. Fleming: In response to yours of the 1st, I have not forwarded you the instrument you desire on account of Mrs. Wheeler’s illness. I will have her sign this paper this week some time and send it to you, which I trust will be entirely satisfactory.
“Yours truly,
“M. B. Wheeler.”
“ Grand Rapids, Mich., January 12, 1907.
“ Mr. R. A. Fleming,
“ Muskegon, Mich.
Dear Sir: As requested by you, we are enclosing herewith quitclaim deed dated November 10th, 1906, for descriptions in our land contract of date May 1,1905, except the southeast quarter of the northeast quarter of section 9, town 13 north, of range 15 west.
“Yours truly,
“M. B. Wheeler.”

The deed enclosed was the defective instrument.

Complainant discovered the error in July, 1907, after selling one of the parcels, and asked that the defendant correct it by giving a new deed, which he sent him for that purpose, but it was never executed, hence this suit was begun.

The defense made is that the quitclaim deed was given by Wheeler to carry out the arrangement consented to by him, to surrender his contract for these lands. Mr. Wheeler asserts in his answer that he was the owner of some tax titles and interests to and in, and perhaps some other claims upon, the premises, some acquired before the land contract was made and some afterward; that he was under no obligation to convey these under such arrangement to surrender his contract; that b e was informed by complainant that a quitclaim deed was a proper instrument to make in order to accomplish the surrender of the contract, and that he was not aware that it would have the effect to divest him of other titles or interests than that held and contracted to him by complainant, and that at the time he made the quitclaim deed he had no knowledge in relation to the titles to the lands described therein, and believed and relied on the statements of complainant, viz., that “a quitclaim deed was the only way by which said contract could be surrendered;” that it would simply convey to complainant the interest acquired by the land contract; that all of the tax interests acquired by defendant before and after the execution of the contract had merged in the complainant’s contract, and that they legally belonged to him, and that the defendant had no right to retain them.

The substance of the prayer of the answer is that the quitclaim deed already made be interpreted as covering only the titles and interest obtained from the complainant and be declared void for every other purpose. Apparently there is no other objection to a correction of the description. In the trial court, complainant obtained a decree in accordance with the prayer of the bill and defendant has appealed.

A copy (stenographic doubtless) of an oral opinion given by the learned circuit judge states that two options preceded this land contract, which were fully understood by the defendant, as were also the circumstances surrounding the transaction, that both parties understood that the arrangement was one through which the defendant was to acquire outstanding tax titles, and that the price paid complainant was based upon that understanding ; oral, it is true, but nevertheless one which had a substantial bearing upon complainant’s consent to sell and the price charged.

We find evidence which tends to corroborate this, and although the final written contract imposes no such obligation in terms, the defendant did, after the time that the first option was made, obtain other tax interests and titles, by purchase and redemption, and when the conclusion was reached to surrender the contract, he apparently recognized the claim that under the dealings had he was in duty bound to surrender the perfected title. His excuse now is ignorance of the law, an ignorance which is most surprising for a dealer in lands and titles to the extent that Wheeler and Opdyke, his associates, appear to have been. Although not legally bound in writing to purchase these titles for the benefit of the security of the vendor, it was equitable for him to carry out his oral promise, and having recognized his obligation by attempting to do so, accepting a release from his promise on executing a deed through the surrender, equity does not demand that he be allowed to disregard such settlement. We therefore agree with the trial judge that there was no fraud on the part of complainant, and that equity does not demand a limitation on the interest mentioned in the quitclaim deed, and that the proofs warrant the decree made by him.

The decree is affirmed, with costs.

Grant, O. J., and Blair, Montgomery, and Ostrander, JJ., concurred.


author: Grant, C. J.

text:
    HARTZ v. DETROIT, PLYMOUTH & NORTHVILLE RAILWAY.
    1. Ejectment — Pleading — Declaration — Amendment — Propriety.
    Where a declaration in ejectment described the entire piece of land owned by the plaintiff, only a small portion of which - was involved in the suit, an amendment describing particularly the disputed piece was properly allowed.
    2. Waters and Watercourses — Riparian Rights — Bed oe Stream — Ownership.
    The owner of lands abutting on a watercourse owns to the middle of the stream.
    3. Same — Mill Pond — Owner oe Shore — Ownership oe Bed.
    Where the title of the owner of lands abutting on an artificial mill pond, formed by damming the stream, is derived from deeds describing his land as funning “along the bank of said mill pond ” and as running “ along the edge of said mill pond, ” he owns to the middle of the thread of the stream, including the right to the water front, and the use of the water in the stream in its natural state, in case the pond should be discontinued.
    Error to Wayne; Hosmer, J.
    Submitted June 8, 1908.
    (Docket No. 47.)
    Decided June 27, 1908.
    Ejectment by John C. Hartz against the Detroit, Plymouth & Northville Railway. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.

      O. C. Yerkes, for appellant.

      Keena, Lightner & Oxtoby, for appellee.
   Grant, C. J.

This is an action of ejectment. After suit was commenced, the defendant filed a bill of complaint to enjoin the further prosecution of the suit, which was decided both in the circuit court in chancery and in this court against the contention of the defendant. De troit, etc., R. Co. v. Hartz, 147 Mich. 354. The suit at law was afterwards tried, in which the plaintiff recovered a judgment.

Two questions are raised :

Did the court err in permitting an amendment to the declaration ? The original declaration contained the description of the entire piece of land owned by the plaintiff, only a small part of which was involved in the suit. The court permitted an amendment describing particularly the disputed piece of land. The defendant insists that the declaration, not containing the specific description in dispute, was fatally defective and not subject to amendment. This contention is answered by Ludeman v. Hirth, 96 Mich. 17; Hoban v. Cable, 102 Mich. 213. The amendment was proper.

The second question, as stated by the defendant’s counsel, is, “Does the fee of plaintiff extend to the thread of the stream in the mill pond or stop at its banks ?” Plaintiff owns the land on both sides of the stream and pond. In one of plaintiff’s deeds the land is described as running “ along the bank of said mill pond, * * * to the southeast corner of the bridge of said highway.” The description of the deed conveying the land upon the other side of the pond, runs “southerly along the edge of said mill pond to the center of the highway.” The defendant’s bridge extends over the lower end of this mill pond about 20 feet above, and parallel to, the highway bridge, standing practically at the point where the stream leaves the pond.

It is the settled law in Michigan that the owner of lands abutting on a watercourse owns to the middle of the stream. Butler v. Railroad Co., 85 Mich. 246, affirmed by the Supreme Court of the United States, Grand Rapids, etc., R. Co. v. Butler, 159 U. S. 87. The Supreme Court of the United States, speaking through Chief Justice Fuller, said:

“In Michigan the common law prevails, and the rule is sustained by an unbroken line of authorities that a grant of land bounded by a stream, whether navigable in fact or not, carries with it the bed of the stream to the center of the thread thereof.”

This is conceded by the learned counsel for the defendant, but he insists that there is a distinction to be drawn between natural and artificial streams and ponds. The stream in this case is not an artificial one. The boundaries of the stream have been changed by artificial means. Counsel cite no case in Michigan where this precise question has been raised.

Where the boundary of the land conveyed was described as “east by the pond” (an artificial one), it was held that the grantee took to the middle of the original stream the same as if no pond existed. Mill River Woolen Manfg. Co. v. Smith, 34 Conn. 462.

So, where an artificial pond was created by damming a stream, it was held that “the same rule applies to the pond as to the stream before the dam was built.” Mansur v. Blake, 62 Me. 38. A like holding is found in Lowell v. Robinson, 16 Me. 357. See, also, Paine v. Woods, 108 Mass. 160, at pages 169, 170; Wheeler v. Spinola, 54 N. Y. 377; Waterman v. Johnson, 13 Pick. (Mass.) 261; 5 Cyc. p. 900; 4 Am. & Eng. Enc. Law (2d Ed.), p. 832.

There is nothing in the language of these deeds to indicate an intention on the part of the grantors to retain title to the land lying between the edge of the water of this pond and the middle thread of the stream. It seems to us reasonable to hold that these deeds conveyed to the plaintiff the right to the water front and for the use of the water in the stream in its natural state, should the artificial pond be discontinued. It follows that the circuit judge was right in directing a verdict for the plaintiff for the land covered by the bridge.

The judgment is affirmed.

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


author: Carpenter, J.

text:
    WESTCOTT v. WADE.
    1. Action — Accrual—Contract for Services.
    Where, in an action for the price of sawing certain lumber, plaintiff’s testimony is open to the construction that the contract obligated defendant to pay the agreed price per thousand as fast as the lumber was sawed, the court cannot say, as a matter of law, that the action was prematurely brought, on the ground that, under the contract, plaintiff was obliged to wait for his pay until the lumber was inspected.
    2. Saving Questions for Review — Excessive Verdict — Motion for New Trial — Necessity.
    Where there is evidence to support the verdict rendered, the question of excessiveness cannot be considered, in the absence of a motion for a new trial raising the question.
    Error to Iosco; Connine, J.
    Submitted June 8, 1908.
    (Docket No. 43.)
    Decided June 27, 1908.
    Assumpsit by George Westcott against Reuben Wade for work and labor. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Jahraus & Bawden, for appellant.

      Albert W. Black, for appellee.
    Plaintiff and defendant entered into a verbal contract whereby the former was to saw certain lumber for the latter at $3 per thousand. Plaintiff completed his contract and brought this suit and recovered a verdict and judgment for the balance remaining unpaid of $81.50. Defendant asks us to reverse that judgment upon two grounds:
    (1) That the suit was prematurely brought.
    (2) That the verdict was excessive.
   Carpenter, J.

(after stating the facts). Was the suit prematurely brought ?

Defendant contends that under the verbal contract testified to by plaintiff he had no right to pay until the lumber was inspected, and this suit was brought before that inspection. We answer this contention by saying that the testimony of plaintiff is certainly open to the construction that the contract obligated defendant to pay $3 per thousand as fast as the lumber was sawed. Plaintiff testified that defendant said, “ as fast as you cut the lumber you will be paid the money.” It cannot, therefore, be said, as a matter of law, that plaintiff was obliged to wait for his money until the lumber was inspected. We therefore overrule defendant’s contention that this suit was prematurely brought.

Was the judgment excessive ?

Defendant contends that it was, to the amount of $10.51. We content ourselves with saying that there was evidence from which the jury might find that the amount of the damages was $81.50. Perhaps they should have found a verdict for a smaller amount. If so, that question should have been raised by a motion for a new trial. It was not so raised and we cannot consider it.

Judgment affirmed.

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