text:
    PEOPLE v. DUFFEK.
    1. Criminal Law — Trial—Verdict
    In a prosecution for assault with intent to kill and murder, a verdict signed and sealed by the jury before they separated, reading as follows: “Assault with intent to do great bodily harm, less than the crime of murder,” was a sufficient statement of the conclusion.

      2. Same — Changing- Sealed Verdict.
    No substantial or prejudicial ohange was made by the jury’s opening the sealed verdict, with the permission of the trial court, after reassembling, and prefixing the phrase, “We, the undersigned jurors, find the respondent, Andrew Duffek, guilty of.”
    3. Same — Trial—Jury—Separation.
    While 3 Comp. Laws, § 11960, requires jurors in a case involving a prosecution for murder to remain together from the time they are elected until they render their verdict, no rule or statute prohibits them from separating in other classes of criminal cases. See Act No. 4, Pub. Acts 1909, amending § 11960.
    4. Same — Sealed Verdicts — Separation of Jury.
    Whether or not a jury has separated after signing and sealing but before returning their verdict in court, it is the right of any juror to refuse to assent publicly to the verdict which is announced.

      5. Same — Constitutional Law — Sealed Verdict.
    No constitutional right of the accused is infringed by the jury’s being permitted to separate after agreeing upon, sealing, and delivering to the officer having them in charge, a verdict to which they afterwards assent publicly in court.
    Exceptions before sentence from Grand Traverse; Mayne, J.
    Submitted June 27, 1910.
    (Docket No. 114.)
    Decided November 11, 1910.
    Andrew Duffek was convicted of assault with intent to do great bodily harm, less than the crime of murder.
    Affirmed.

      Parm C. Gilbert and John W. Patchin, for appellant.

      Fred H. Pratt, Prosecuting Attorney, for the people.
    The cause is here on exceptions before sentence. The material facts, briefly stated, are: Respondent was charged in the information with having made an assault with intent to kill and murder. The jury retired to consider of their verdict and were brought into court late in the evening and instructed that if they reached an agreement during the night they might write and sign the verdict, deliver it to the officer having them in charge, who should deliver it to the clerk of the court, and might then separate, appearing in court the following morning, at which time each must assent to the verdict, meantime keeping secret and refusing to talk about it. Respondent, who was at large upon bail, was present when this instruction was given, but his counsel were not present. The jury (each member thereof) signed and sealed a verdict in the following form:
    “Traverse City, Mich., “March 10, 1910, 3 a. m.
    “ Assault with intent to do great hodily harm less than the crime of murder.”
    Which was duly delivered to the officer in charge and by him to the clerk of the court, was not opened, nor were its form or contents made known to respondent or to the court until after the second verdict had been received and entered. At the opening of court 11 jurors appeared; one juror being ill. The jury again separated, being cautioned as they had been the previous evening. The morning of March 11th, at the opening of court, all the jurors being present, the foreman of the jury reported to the judge that he thought there was an error in the form of the verdict, and at his request it was returned to the jury unopened and unannounced, the jury retired and later returned into court with a sealed verdict, signed by each of them, containing the additional words,
    “We, the undersigned jurors, find the respondent, Andrew Dufliek, guilty of.”
    The clerk received the sealed verdict last returned from the foreman of the jury, called the names of the jurors, opened the verdict, and by direction of the court read it, polled the jury, and recorded the verdict. Motions to set aside the verdict and for a new trial and to discharge respondent were overruled.
   Ostrander, J.

(after stating the facts). The exceptions present the questions: (1) Whether, on the trial of one charged with having committed a felony, the jury may be permitted to separate after agreeing upon, signing, sealing, and delivering to the officer having them in charge, a verdict, and afterwards return into court and assent publicly to the result so agreed to; (2) whether, in such a case, the sealed verdict having been delivered to the clerk, it may be returned to the jury, upon the request of the foreman, by direction of the court, unopened and unannounced, for correction, and, having been corrected in form only, it may be received as the verdict of the jury.

There is a further contention stated in the brief, which is that the verdict first signed is not sufficient to support a judgment. The argument for appellant is confined largely to a statement of his contentions, and a single authority (Farley v. People, 138 Ill. 97 [27 N. E. 927]) is cited. In Illinois the subject is governed by statute which permits the taking "of sealed verdicts in criminal cases if the respondent expressly consents to such a course. The questions have never before been presented in this court.

The second question, upon the facts stated, should be answered in the affirmative, provided the first question is also answered affirmatively. The writing first made and signed by the jury was a sufficient statement of the result arrived at and was the identical result stated in the verdict announced. In this jurisdiction verdicts, in criminal cases, are usually announced orally — are not first written —and in answer to the usual question propounded by the clerk of the court it is not uncommon for the foreman of the jury to state no more than that the verdict is “guilty,” adding words necessary to indicate the offense or the degree or element thereof. Being reduced to the usual formula by the clerk, it is repeated by him back to the jury for reaffirmance. There can be no doubt that the two verdicts as written by the jury announce the same conclusion, and no doubt concerning the conclusion arrived at. I am satisfied, too, if the fact is found to be material, if the consent of respondent that a sealed verdict might be returned was essential, that such consent was not given, and that the cause stands precisely as it would if such consent had been refused.

The first question must be answered by reference to the Constitution, and beyond that to the incidents of trial by jury contemplated by the Constitution, to some statute, or to some rule of practice so reasonable and so long and uniformly followed that a failure to follow it may be said to invade a right of the accused. The provisions of 3 Comp. Laws, §§ 11960-11962, apply only to cases in which the accused is on trial for murder. Act No. 4, Pub. Acts 1909, purports to amend 3 Comp. Laws, § 11960. Whether the section as amended is within the title of the original act, we need not determine since we are of opinion that the provisions of said Act No. 4 are not controlling of the question here .presented. The provisions of the Constitution which may be supposed to in any manner support the contention which is made are found in sections 27 and 28 of article 6. The first of these provides that the right of trial by jury shall remain, and this provision, it has been held, secures to a respondent all of the essential incidents of trial by jury as it existed at the time of the adoption of the Constitution.

“The right is not described here; it is not said what shall be its incidents; it is mentioned as something well known and understood, under a particular name; and, by implication at least, even' a waiver of its advantages is forbidden. If the accused himself cannot waive them, plainly the legislature cannot take them away. The next section of the Constitution repeats the guaranty of this method of trial ‘in every criminal prosecution,’and nothing is better settled on the authorities than that the legislature cannot take away a single one of its substantial and beneficial incidents; * * * and even the accused cannot waive any one of the essentials.” Vide, Cooley, J., in Swart v. Kimball, 43 Mich. 443, 448 (5 N. W. 635, 637).

See, also, Hill v. People, 16 Mich. 351; Underwood v. People, 32 Mich. 1 (20 Am. Rep. 633); People v. Marion, 29 Mich. 31. It was said by Mr. Justice Christiancy, in Hill v. People, 16 Mich. 351, 357:

“ The true theory, we think, is that the people, in their political or sovereign capacity, assume to provide by law the proper tribunals and modes of trial for offenses, without consulting the wishes of the defendant as such; and upon them, therefore, devolves the responsibility, not only of enacting such laws, but of carrying them into effect, by furnishing the tribunals, the panels of jurors, and other safeguards for his trial, in accordance with the Constitution, which secures his rights.”

But what are the substantial and beneficial incidents thus guaranteed ? The power of the legislature to change the qualifications of jurors and the manner of their selection is not doubted. People v. Harding, 53 Mich. 48. (18 N. W. 555, 51 Am. Rep. 95). It is error to refuse a demand of a respondent to poll the jury. Stewart v. People, 23 Mich. 63 (9 Am. Rep. 78). But very often the exercise of this right is not claimed. It will be difficult to state any general rule according to which the rights of an accused person, guaranteed by the Constitution, may be determined, especially where they are immediately grounded on some alleged failure of procedure. It is the purpose of the law, alike in civil and in criminal causes, to secure in the verdict of a jury a result unaffected by extrajudicial influences, one based upon the evidence given in court and the instructions of the court. In this the State is interested quite as much as is the individual suitor. Various precautions have at different times been taken to secure such a result in criminal causes which have not been deemed necessary in civil causes. Not all of them were for the peculiar benefit of the accused, but some of them rested and rest in considerations of public policy and the fair administration of the law. The consequences of verdicts in criminal causes are supposed to have a significance and effect both with respect to the public and the accused which does not exist when merely private adversary conditions are involved. This idea is reflected, to some extent, in distinctions made in procedure in trials of those accused of felony and those accused of misdemeanor only. It is reflected, also, in the statute which has been referred to, which relates only to trials of those accused of murder. In criminal causes, if treason or felony was charged, it was the early practice in England to refuse the jury permission to separate during the recesses of court and to keep them together in charge of an officer of the court. They were, virtually, prisoners. Necessity compelled relaxation of the rule, and after a time jurors were permitted to retire for rest and refreshment, but not to go to their homes or to mingle with the general public. See Hardy’s Case, 24 Howell’s State Tr. 414; Rex v. Stone, 6 Term Rep. 527; Thompson & Merriam on Juries, tit. 2, entitled “Of the Custody and Conduct of Trial Juries.” Judges in the United States and in England have long since exercised the power of permitting jurors, in criminal causes, to separate and to go to their homes, from day to day, during the progress of the trial and before the cause was finally committed to the jury, and courts of error have held that, in the absence of some circumstance tending to prove improper conduct of jurors or improper influences affecting a verdict, the practice afforded no reason for disturbing a verdict. On the other hand, it has not been uncommon for trial courts, in view of known or suspected conditions, to require jurors to remain in the charge of an officer of court during the entire course of the trial. It is the common practice in this jurisdiction, in civil and in criminal causes, to keep jurors, after the charge of the court has been delivered, together until a verdict has been returned. Usually the court is in session when an agreement of the jury is reached, and in such cases not even convenience would be served by receiving a sealed verdict. Occasionally convenience, and something more; is sacrificed if a jury, after having reached a conclusion, is forced to remain in retirement until the opening of court.

In Pierce v. Pierce, 38 Mich. 412, it was said:

“ There is no legal propriety in keeping a jury confined unreasonably after they have come to an agreement. * * * Any unusual and prolonged delay is not to be favored without giving an opportunity to find a sealed verdict.”

In Liverpool, etc., Ins. Co. v. Friedman, 133 Fed. 713, 66 C. C. A. 543, a case in which the trial judge, after charging the jury, permitted them to go to their homes for Thanksgiving day and reassemble and find and return a verdict, it was held that common-law rules of practice controlled, and, whatever the practice was in Michigan (in which State the cause was tried), there was no legal objection to the course pursued, no improper conduct of any juror being shown or charged, and no claim made that any had been approached or influenced with respect to a verdict. It is not unreasonable to assume that the practice pursued in the case of Stewart v. People, supra, the respondent being also given the right to poll the jury, has been regarded by the profession as proper practice in criminal causes. It is a practice approved, by statute or otherwise, in a considerable number of the States. The bill of exceptions in that case discloses that respondent was charged with having committed a felony; that counsel for respondent, in the presence of respondent, consented that a sealed verdict might be returned; and that the jury separated after signing and sealing th¿ verdict. It discloses that the reason for the ruling of the trial court was that, the jury having separated after signing and sealing the verdict which had been returned, the only inquiry open was whether the jurors had all joined in the written verdict before they separated, and “no question having been raised in respect to the jurors having all joined in the sealed verdict returned to the court, and such sealed verdict purporting to be signed by all the jurors,” the right to poll the jury was denied. But if the practice there pursued, as corrected by this court, is proper practice — is not open to criticism by the accused person — it does not follow, of necessity, that other practice, namely, the return and acceptance of a sealed verdict without the consent of the accused, is not also proper practice. Arguments to support the assertion that the trial court may not, in the absence of a statute, in the exercise of sound discretion, direct the signing and sealing of a verdict in criminal causes, must rest, I think, upon one or both of two grounds. One is that jurors may be improperly influenced after they have separated and before they assent, in open court, to the verdict they have sealed; the other is that, if the sealed verdict is defective in substance, or is not assented to in open court by all of the jurors, the cause may not be recommitted to the jury and there must be a new trial.

Whether or not a jury has separated before returning a verdict in court, it is the right of any juror to refuse to assent publicly to the verdict which is announced. If a jury signs and seals a verdict and separates, and later the verdict is returned and read in court and assented to by the jury, and by each of them, if required to do so, it would seem that no presumptions should be indulged that after separation improper influences had affected the verdict. Indeed, in Massachusetts, in such a case, the oral verdict is the verdict of the jury, and the sealed verdict is regarded, principally, to ascertain whether it agrees with the verdict returned orally in court. An argument based upon the idea that improper influence might be exercised after separation of the jurors, for which reason they ought to be kept together until a verdict is rendered, would also support the proposition that in all criminal causes jurors should not separate after the case is opened to them until they have been finally discharged by the court; a practice which, out of caution, and because of peculiar conditions, is often pursued, but the failure to pursue it is not, of itself, in most jurisdictions, at least, held to be error. It is clear that the consent of the accused that one or other practice be followed will not estop him to question a verdict on the ground that it has been improperly procured.

The other ground, namely, the hazard attending the sealing of the verdict, better supports a reason for receiving one only by consent of the accused. There is most respectable judicial authority and good reason for saying that in a criminal case the functions of a jury have been discharged when they have concluded deliberations and have agreed to, signed, and sealed a verdict, and that after having separated they have no further duty to perform in the case except to deliver to the court and announce the sealed verdict to be the verdict of the jury. Koch v. State, 126 Wis. 470 (106 N. W. 531, 3 L. R. A. [N. S.] 1086); Farley v. People, 138 Ill. 97 (27 N. E. 927). This rule has been applied in cases where the sealed verdict which was returned required substantial correction and the question was whether the jury could be permitted to again retire for the purpose of amending the verdict otherwise than in mere form. See, also, Hechter v. State, 94 Md. 429 (50 Atl. 1041, 56 L. R. A. 457), and Williams v. People, 44 Ill. 478; and, as apparently announcing a different rule, see Pehlman v. State, 115 Ind. 131 (17 N. E. 270), and Jackson v. State, 45 Ga. 198. In all of these cases the sealed verdict was rendered by consent of the accused. In this view of the functions of a jury, which I think is the proper view, the dissent of one juror from the sealed verdict, as well as the sealing of a verdict defective in substance, would alike result in a mistrial. This result, at least in most cases, would not occur if the jury rendered the verdict orally, through their foreman, before separating. And in this view the consent of the accused that a sealed verdict may be returned has some significance. But, whether argument proceeds upon one or the other of the grounds stated, it does not reasonably support the idea that the practice pursued involves an essential incident of trial by jury guaranteed by the Constitution. On the contrary, all such argument and the circumstance that the practice differs in different common-law States (so-called), and that in many States a practice has been established by statutes, furnishes persuasive support of the proposition that the whole matter is one of practice, and that there is no constitutional or so-called common-law right of an accused person to have jurors kept together until a verdict is returned into court. There is authority which would require this statement to be qualified to this extent only, that in capital cases the jury should be kept together, a precaution which the accused may not dispense with. An examination of decisions discloses that it is the uniform practice — sometimes statutory — to permit sealed verdicts to be returned where a misdemeanor is charged, in the discretion of the court. This is the rule of the Federal courts.

In United States v. Bennett, 16 Blatchf. 338, 373, Fed. Cas. No. 14, 571, it appears:

“ That the direction in writing to the jury that they might deliver a sealed verdict to the officer, and might then separate, was exhibited to the counsel for the prisoner before it was sent to the jury by the court; that the jury strictly followed such direction; that the court received the sealed verdict from the officer the next morning, in the presence of the jury and of the defendant, in open court, after the jury had then and there announced that they had agreed upon a verdict and that such sealed verdict contained it; that the verdict of guilty announced and recorded was the verdict contained in such sealed verdict; and that, on the polling of the jury, at the request of the counsel for the defendant, each juror stated that the verdict announced was his verdict.”

The opinion proceeds:

“ It is laid down in Wharton’s Criminal Law (6th Ed.), § 3,125, that, ‘in misdemeanors, there is no difficulty, in practice, in permitting the jury to separate during the trial.’ In the present case, the statute expressly declares the offense to be a misdemeanor. Wharton cites the leading case of Rex v. Woolf, 1 Chitty, 401, where it is held that, in a case of misdemeanor, the dispersion of the jury does not vitiate the verdict. A fortiori, a dispersion after agreement, and after the verdict is written and signed and sealed up, and where the jury afterwards attend in court with it, and the court receives and opens it, and the jury give an oral verdict in accordance with it, on being polled, does not vitiate the trial. In People v. Douglass, 4 Cow. (N. Y.) 26 (15 Am. Dec. 332), it is laid down that the mere separation of a jury is not a sufficient cause for setting aside a verdict either in a civil or a criminal case, if there be no farther abuse. In People v. Bansom, 7 Wend. (N. Y.) 417, 424, it is said that any irregularity or misconduct of the jurors will not be a sufficient ground for setting aside a verdict, either in a criminal or a civil case, where the court are satisfied that the party complaining has not, and could not have, sustained any injury from it. In Commonwealth v. Carrington, 116 Mass. 37, the question arose whether, in a criminal case, not capital, the jury may be authorized by the court, without the consent of the defendant, to separate after agreeing upon, signing, and sealing up a paper in the form of a verdict, and afterwards return a verdict in open court, in accordance with the result so stated and sealed up. It was held that such a course is proper. The court say:
“ ‘The tendency of modern decisions has been to relax the striotness of the ancient practice which required jurors to be kept together from the time they were impaneled until they returned their verdict, or were finally discharged by the court. In civil cases the jury are never kept together at the intermissions of the sittings of the court pending the trial, and it is well settled that, after the case is finally committed to them, they may be allowed by the court to separate, if they first agree upon and seal up their verdict, and afterwards affirm it in open court; and that, if their verdict, when opened, does not cover all the issues on which they are to pass, the case may be recommitted to them, and a verdict subsequently rendered will be good. Winslow v. Draper, 8 Pick. (Mass.) 170; Pritchard v. Hennessey, 1 Gray (Mass.), 294; Chapman v. Coffin, 14 Gray (Mass.), 454. But if, upon returning into court, one of the jurors dissents from the verdict to which all had agreed out of court, it cannot be recorded. Lawrence v. Stearns, 11 Pick. (Mass.) 501. In capital cases, indeed, the uniform practice in this commonwealth has been to keep the jury together from the time the case is opened to them until their final discharge. But the practice is equally well settled, and in accordance with the decisions elsewhere, that, pending a trial for a misdemeanor, the jury may be permitted by the court, without the consent or knowledge of the defendant, to separate and go to their homes at night, without vitiating the verdict. Rex v. Woolf, 1 Chitty, 401; King v. Kinnear, 2 B. & Ald. 462; McCreary v. Commonwealth, 29 Pa. St. 823. If the jury, in the case of misdemeanor, are allowed, without the consent of the defendant, to separate after the case is finally committed to them by the court, and before the verdict is returned, the verdict cannot be recorded, unless it clearly appears that the verdict was not influenced by anything that took place during the separation. It was accordingly held that, where the jury were allowed by the judge to disperse upon stating to the officer they had agreed on and sealed up a verdict, and, upon coming into court, rendered an oral verdict, without any sealed verdict being produced or opened, or its contents made known to the defendant or his counsel, the verdict was invalid. Commonwealth v. Durfee, 100 Mass. 146; Commonwealth v. Dorus, 108 Mass. 488. But, when all possibility of improper influences is excluded by conclusive evidence that the jury arrived at and reduced to writing, before their separation, the same result which they afterwards announced in open court, the verdict may be received and recorded. State v. Engle, 18 Ohio, 490; State v. Weber, 22 Mo. 321; Reins v. People, 30 Ill. 256.’”

See, also, Pounds v. United States, 171 U. S. 35 (18 Sup. Ct. 729). In Com. v. Slattery, 147 Mass. 423 (18 N. E. 399), the respondent being accused of rape, and in Com. v. Heden, 162 Mass. 521 (39 N. E. 181), where manslaughter was the charge, the rule of Com. v. Carrington appears to have been followed.

In State v. Webber, 90 Me. 108 (37 Atl. 877), respondent being charged with a misdemeanor, the jury was directed by the court to seal the verdict when they had agreed; suitable blanks being furnished to the officer in attendance for that purpose. The jury agreed and separated. In the morning they came into court and stated that they had no sealed verdict other than that which appeared on the indictment, which was in a sealed wrapper with the following written at the bottom of the indictment: “Guilty as charged in the indictment. Samuel

Strout, Foreman.” Thereupon the jury rendered their verdict of guilty orally. In considering the exceptions by defendant, the court said:

“In the view of this question, which has uniformly prevailed in the courts of Massachusetts, the only purpose or effect of the written verdict, signed and sealed up by the jury, is to afford conclusive evidence that the oral verdict delivered in open court is substantially the same as the result recorded in the written form, and that the jury were not influenced in arriving at their oral verdict by anything that occurred after their separation. It is accordingly settled in that State that the delivery of the verdict by the foreman of the jury by word of mouth in the presence of the court is an indispensable safeguard in all criminal cases. Commonwealth v. Tobin, 135 Mass. 303 (38 Am. Rep. 330). But a different view has been adopted by our court. In the ‘Anonymous ’ case reported in 63 Me. 590, the conclusion is reached after careful advisement that in any criminal case, where the offense is not punishable by imprisonment for life, the presiding judge may authorize the jury to seal up their verdict and separate during an adjournment of the court, and have it opened, read, and affirmed at the coming in of the court with the same effect as'if pronounced orally; and for this purpose a verdict signed by the foreman in the form there prescribed or in any other substantially equivalent fofm is declared to be sufficient. In State v. McCormick, 84 Me. 566 (34 Atl. 988), this conclusion is reaffirmed, and the practice of requiring an oral verdict in addition to the sealed one declared to be a matter of form rather than of substance. Either course is there said to be legal.”

I assume that the Supreme Court of Maine classed offenses punishable by life imprisonment with capital offenses. The Supreme Court of California, in People v. Kelly, 46 Cal. 355, without giving reasons and without citation of authority, held that the order of the court, authorizing the sheriff to receive from the jury a sealed verdict if they should agree during the night, and upon its receipt to allow the jury to separate until the session of the court on the following morning, would have been error if it had not been consented to by the defendant’s counsel at the time it was made. Having,” it is said, “ deliberately consented to this irregular form of procedure, the defendant is in no position to complain.” In 1 Bishop’s New Criminal Procedure (4th Ed.), § 1003, it is said:

“ In a part of our States, perhaps in all, by agreement, by order of the court without, or by statutes, if in a misdemeanor case or even in some of the States one of felony not capital, the court has adjourned when the jury have determined on their verdict, they may reduce it to writing, seal it up, separate, and bring it into court on its opening.”

A considerable list of authorities cited in the note sustains the various propositions stated in the text.

In my opinion both reason and authority require the conclusion that the whole matter is one of practice, which may be amended by courts or by the legislature without invading any of the guaranteed or essential rights of a person accused of crime; that the essential thing is a verdict of the jury based upon no extrajudicial considerations; that courts may pursue the. practice thought to be best calculated to secure such a verdict, adopting, or declining to adopt, in the exercise of a sound discretion, one practice or another, with or without the consent of the accused. The same reasoning, if not the same authority, sustains a refusal to classify crimes, by the punishment which may be inflicted or otherwise, for the purpose of determining whether the practice pursued in a particular case was or was not erroneous. The legislature has provided what the practice shall be in cases where murder is charged. It might have provided the same practice for all cases where the offense may be punished by imprisonment for life. It did not do so, and the fact that it did not is persuasive in reaching the conclusion stated.

In the case at bar no intimation is given that the jury did not render an impartial verdict, supported by the evidence and the law. No suspicion of undue influence is averred. The verdict agreed to before separation was the verdict assented to by each juror in open court. The fact that, without the consent of the respondent the jury was permitted to separate, after sealing the verdict, does not, of itself, constitute reversible error.

The conviction is affirmed, and the court is advised to proceed to judgment.

Hooker, Moore, McAlvay, Brooke, Blair, and Stone, JJ., concurred. Bird, C. J., took no part in the decision.

       Const. of 1850. See §§ 13, 19, Art.2, Const. 1909.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
      In re McMASTER’S ESTATE. COOPER v. HARLOW.
    1. Appeal and Error — Assignments op Error— Sufficiency— Court Rules.
    An assignment of error that the court erred in refusing proponent’s requests to charge, numbered first, second, fifth, etc., is sufficiently specific, where the requests are numbered in the bill of exceptions.

      2. Same — Charge of Court.
    Paragraphs of the court’s charge, which are numbered in the bill of exceptions and included in one assignment of error, may be taken distributively.
    3. Wills — Undue Influence — Competency of Testatrix.
    On the trial, on appeal, of the question of the valid execution of a will, by which the testatrix gave to her confidential agent a large bequest and the residuary portion of her estate, assigning a reason therefor which was not correct, it was not error to submit to the jury the questions of undue influence and of mental incompetenoy, under evidence tending to show that he recommended to her a person to draft the instrument, procured the preparation of the will, was present when it was executed and acted as its custodian until her decease, and that the testatrix was about 80 years of age at the date of its execution.
    4. Same — Fiduciary Relations — Principal and Agent — Undue Influence — Presumptions.
    It was error to charge the jury that the rule prevailing in or- " dinary cases, casting the burden of proof of undue influence on contestants, was here reversed and that the presumption of fact arising from the confidential relation borne by the proponent and from the legacy bequeathed to him, required him to show to the satisfaction of the jury that any connection he may have had with the execution of the will was fair and honest.
    5. Same — Undue Influence — Evidence.
    Such presumption is one of fact, the force and effect of which is for the jury and which depends in every case upon all the circumstances.
    6. Same — Instructions to Jury.
    It was improper for the trial judge to intimate an opinion in his instructions to the jury that the circumstances presented strong evidence of undue influence.
    7. Same — Evidence —Impeachment—Statements of Legatee after Execution of Will.
    Statements of proponent who was charged with employing undue influence as to matters relating to the execution of the will, made subsequently to the decease of testatrix and conflicting with his testimony on the stand, were competent to impeach him and to support the presumption of undue influence that arose from his relations with the testatrix.

      8. Same — Charge to Jury — Evidence op Undue Influence.
    A request was properly denied which, asked the court to charge the jury that the provisions of the will had no tendency to prove undue influence or fraud, standing alone, where it was impossible to dissociate the instrument from surrounding circumstances tending to show undue influence.
    9. Same — Evidence op Inoompetbnoy — Opinions op Nonexpert Witnesses.
    The opinions of witnesses as to the mental incompetency of the testatrix, based on ordinary knowledge and observation, should not have been received in evidence unsupported by sufficient testimony of observed facts and conditions on which the opinion was based.
    10. Same — Relationship—Evidence.
    Error was committed in receiving evidence of the financial condition and state of health of deceased’s cousins who had no claim upon her bounty.
    11. Same.
    In view of an attempt to show that the testatrix had demonstrated affection towards a nephew, the exclusion of evidence of reasons known to her for making no other provision for her nephews was improper. ^

      12. Same — Hearsay.
    A statement of the nephew that he purposed studying hypnotism to hypnotize her and get her to make a will in his favor, was not competent in the absence of evidence that she knew of his purpose, or that he attempted to execute it.
    13. Same — Cross-Examination.
    Contestants were entitled to subject the proponent to a searching cross-examination, and to ask if he knew of any reason why she made him a legatee.
    14. Same.
    A conversation which, standing alone, might not tend to show undue influence, was a proper subject of consideration by the jury with other evidence having such tendency
    Error to Jackson; Parkinson, J.
    Submitted June 29, 1910.
    (Docket No. 72.)
    Decided November 11, 1910.
    Edmund L. Cooper presented for probate an instrument purporting to be the last will of Sarah W, McMaster, deceased. An order was entered in probate court admitting the will to probate, and Arthur O. Harlow and Byron N. Harlow, heirs at law of deceased and legatees under the will, appealed the cause to the circuit court where a judgment was rendered disallowing the will. Proponent brings error.
    Reversed.

      Richard Price (Thomas E. Barkworth, of counsel), for appellant.

      Wilson & Cobb, for appellees.
   Ostrander, J.

Sarah W. McMaster, whose maiden name was Harlow, died at Grass Lake, in Jackson county, Mich., August 28, 1907, aged 81 years. She was a widow; her husband having died in 1895. She left an estate, consisting principally of personal property, valued at more than $32,000, owing, practically, nothing. An instrument, executed by her, dated April 21, 1906, was offered for probate as her last will. It was admitted in probate court after a contest made by two nephews and heirs at law, named Arthur and Byron Harlow, but in the circuit court was found by a jury not to be her last will. The nephews asserted the mental incompetency of the testatrix to execute a will and that she was unduly influenced with respect to its terms by Edmund L. Cooper, the proponent, who was nominated executor in the will, was given a specific legacy of $1,000, and was also made the residuary legatee. Mrs. McMaster had no children. Her brother, John Harlow, lived in Grass Lake. Another brother, Oscar Harlow, died in 1890, and his sons are the contestants. Mrs. McMaster also executed, on April 21, 1906, a power of attorney by the terms of which Edmund L. Cooper was empowered to care for her property, transact all of her business, including the collecting, lending, and investment of her money, the assignment and discharge of mortgages, the management and control of real estate. The instrument proposed as her last will bequeathed to each of the nephews above named $5,000 to be paid in annual installments of $1,000. There was a bequest of $2,000 to Ella Hatch, a niece of her husband, one of $1,500 to her cousin, Clarence McEarran, one of $5,000 to the First Congregational Church of Grass Lake, besides the one of $1,000 to Edmund L. Cooper, and none of these were made payable until one year after her death. The bequest to the church is in trust, with directions to invest the money in first mortgages on real estate and to use the income only to pay the salary of the minister. Cooper was made trustee of the fund. The clause disposing of the residue of the estate contains the following sentence :

“This provision is made because of the many acts of kindness of said Cooper, for favors shown to me by him, and for work and labor performed for me by him, which services have been rendered freely and without proper compensation.” ,

It is the testimony of Mr. Cooper that he received a note from Mrs. McMaster asking him to come to her house; that he went to her house on the same day and learned from her that she desired him to prepare her last will. She had made a memorandum, upon paper, indicating her wishes in that behalf, and on account of the nature of the bequest to the church he advised her that he did not consider himself competent to prepare the will. She asked him if he could get some one to prepare it. He mentioned the name of a person, and did in fact take a memorandum made by himself to a suitable person who prepared the will and mailed it to Cooper. He took it to Mrs. McMaster, left it with her, and later, on the same day, went again to her house, when the will was read to her by him and was executed. The witnesses were suggested by Mrs. McMaster and were invited to her house by Mr. Cooper. The will was not read by them or in their presence. The person who prepared the will prepared the power of attorney, and one of the witnesses to the will also witnessed the execution of the power of attorney. The will, after its execution, remained with the testatrix until June 17, 1907, when, with some other papers and some money, it was delivered to Cooper in an envelope prepared by him for it. It remained unopened until after the death of Mrs. McMaster. There was introduced some testimony, including opinion evidence, respecting the physical and mental condition of the testatrix at about the time the will was executed and thereafter; but it is about Mr. Cooper and his relations with Mrs. McMaster that the case is made to revolve. He was not a relative of the testatrix or of her husband. At the time of the trial he was 67 years old and had lived all of his life excepting five years in Grass Lake. He was in the dry goods trade there for 13 years and thereafter had been cashier of the Farmers’ Bank for 13 years. In October, 1904, Mrs. McMaster made her first deposit in that bank, in the savings department. Before that time Mr. Cooper had known her. They attended the same church. The trial court submitted to the jury both the question of the mental competency of the testatrix and the question whether she had been unduly influenced in making disposition of her property. It is the contention of proponent, appellant, that the testimony did not warrant the submission of either of these questions to a jury, and, further, that if these questions were for the jury the jury was improperly instructed, and testimony was both admitted and rejected by the court without warrant.

This court is met by the objection that most of the points argued in the brief for proponent are based upon no special assignment of error. Supreme Court Rule 11. For example, the thirty-fifth and the fortieth assignments of error, the alleged basis for the most considerable arguments presented, read as follows:

“(35) The circuit judge erred in refusing to give the following requests of proponent, to wit: First, second, fifth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, nineteenth, twentieth, twenty-first, twenty-second, and twenty-fifth.”
“(40) The circuit judge erred in charging the jury as stated in the seventh, ninth, forty-seventh, forty-eighth, fifty-sixth, fifty-seventh and fifty-eighth, and fifty-ninth paragraphs of his charge, on the subject of undue influence and the burden of proof.”

. The charge of the court appears in the record in paragraphs numbered consecutively from 1 to 73. These assignments may be taken distributively, since the requests appear, numbered, in the bill of exceptions, and the references to portions of the charge are as conveniently made by numbered paragraphs as by repetition of the language used. The brief affords the aid the failure to do which was criticised in Duff v. Judson, 160 Mich. 386, 391 (125 N. W. 371), and as to the fortieth assignment each paragraph of the charge referred to relates to a rule of evidence precisely opposed to the one which proponent was insisting should be given to the jury. See, also, Niles v. Rhodes, 7 Mich. 374.

It has been stated that the case was made to revolve about Mr. Cooper and his relations with the testatrix. I am impressed that if Mr. Cooper had not been made residuary legatee, if relatives or if charities had received the portion of the estate which comprises the residuum thereof, there would have been no contest about her will, because there is very little testimony, other than the will itself, considered with the relations of Cooper and the testatrix, which can be said to have any tendency to prove the testatrix incompetent to make a last will, and none other tending to prove the exercise of undue influence. The will itself and the circumstances attending its execution lead one, naturally, to inquire: First, whether, Mrs. McMaster understood the effect of the instrument j ánd, if she did, second, what prompted her to give to Mr. Cooper nearly one-half of a considerable estate, solemnly assigning as a reason therefor a fact which did not exist and could have been considered by her as existing only through misapprehension ? The inquiries suggested were pursued at the trial with such result that the court, in my opinion, was required to submit to the jury the question whether undue influence had been exercised in procuring •the will to be made, and, also, though I reach this conclusion with some hesitation, the question of the mental competency of the testatrix. Mental competency, in this case, includes ability to understand the meaning and effect of the residuary clause of the will and may involve, depending upon how the jury view the testimony, including the will itself, the ability to detect fraud, if fraud was attempted. Undue influence may be exerted to prevent the detection of fraud, may amount to fraud, may be strong enough to secure the provisions desired, although fraud is detected or suspected, and confidence may accept and may be relied upon to accept untruthful and fraudulent explanation. 1 Woerner’s American Law of Administration, p. 44 et seq. It is apparent here that it is in fact impossible to wholly separate these issues. Whether they were properly developed and properly presented to the jury are questions to be, to some extent, considered.

The court instructed the jury that proponent was bound to prove that the testatrix was competent to make the will, and, in ordinary cases, the contestants were bound to prove undue influence, if undue influence was asserted. They were further instructed with respect to the burden of proving undue influence:

“ Whether this rule is reversed or not in such a case as this, the connection of Mr. Cooper with the making of this will, and its execution, and the facts of his being a large beneficiary, and is named as executor, as well, also, as the relations he entered upon toward Mrs. McMaster at the time the will was executed and such as he sustained toward her at that time to the extent that these things are undisputed in this case, make up such a situation as calls upon Mr. Cooper for satisfactory explanation, and he should show to your satisfaction that it was in all respects fair and honest. The burden of doing this is upon him, and, if he has failed to satisfy you by his explanation that it was fair and honest, you should find against the will without reference to any other question in this case, or any other instruction given you, and in fact need proceed no further with your deliberations. If you do not so find, you should then consider other elements in the case.”

In substance the instruction above referred to was repeated, and in addition the jury was instructed as follows:

“After the proponent had sworn the two witnesses to the will, the contestants took the case. At that time I struck out testimony already given as to what Cooper did and said after the funeral, and at the bank, about the will or his knowledge or lack of knowledge of it, and refused to admit other like testimony at that time, thinking the rules of law excluded it, but holding it could be used only to contradict Mr. Cooper, provided he made denials of such claims as to his actions or statements. If my first view was correct, I should caution you not to use such evidence except to enable you to judge of the credibility of Mr. Cooper’s testimony as a witness. But I now believe I took too narrow a view of the legitimate use of such testimony and ought to have received it in the first instance. That testimony is now in the case, and you have the right to consider it not only as bearing upon Cooper’s credibility as a witness, but also as substantive evidence of what he did and said, as affording such light as you deem it may reflect on the character of the will and the way it came to be made. Mr. Cooper, at the time of the reading of the will, was in the presence of the heirs at law, who would take the property had there been no lawful will, and some of the legatees who were interested on that account. Apparently he produced the will and was voluntarily reading it for the information and benefit of those interested. He was himself the largest beneficiary; he was named as executor in the will. He was not a relative. He was the trusted agent of Mrs. McMaster and in charge of her property, much of which was then in his custody. He was asked certain questions by those entitled to know. If Mr. Cooper was willing to speak at all or assume to give any information or make any statement, it was his duty to speak the truth. If you believe that he made the statement testified to, it is conceded that he concealed his actual knowledge and made positive false statements as to his lack of knowledge of what was in the will, or that he was a beneficiary, as to his knowledge of the draftsman or how it came to be drafted, and also at that time, or some other time or place not remote, did not disclose fairly his knowledge as to the value or extent of her estate and the amount he would be likely to derive from the residuary clause. I think, in view of the circumstances, if he spoke at all, he should have spoken the truth, and not have resorted to any subterfuge, concealment, or misstatement. He should have been fair and frank. The question then arises: Why did he do this ? You have the right, and it is your duty, to ask and consider this question. And I think those people had the right to ask questions as to the will and the estate and to have such questions answered by Mr. Cooper so far as he could fairly answer them, and answer truthfully. He chose, for some reason, not to do so. Why ? What was the reason ? Mr. Cooper has explained on the stand or testified in reference to what he did and why he did it. You are the judges as to how satisfactory or sufficient such explanation is. And in considering that answer or those explanations or reasons, you have the right, in the same' connection, to take into account Mr. Cooper’s experience as a business man and in respect to estates and wills, his character and standing in the community, his relations to the will and to the testatrix, and his interests and the extent of such interests, and whether they might— that is, his interests — be involved in or affected, and, if so, to what extent, by a truthful disclosure, to the end that you rightfully discern so far as possible what the real motive was that induced a man of Mr. Cooper’s standing in the community to depart from the truth or attempt to suppress or conceal the truth, and in such a way, upon such an occasion. Was it because he feared the truth would imperil his interests, or some other or lesser motive? If from fear, what was there to fear from the truth, and the entire truth ? Or was it for some trivial or unimportant or merely imaginary or fanciful reason that he was ready to make untruthful statements tending to mislead those who were entitled to correct information, if entitled to any from him ? I state this circumstance or episode in the course of his dealings in respect to this will, not for the purpose of intimating anything of its significance or lack of it, but because it is your function and duty to consider it and give to it its real weight or influence, but no more. Do not forget or overlook what Mr. Cooper says about it. Consider his own statements and explanations in reference to it and in connection with the circumstances and situation that confronted him, as well as what he did and said at the time, to the end that you assign to it only such meaning or significance as actually and justly should attach to it. And you may also consider it in connection with the other evidence as to his relations to the making of the will, the part he took in it, and his interests in it, to which I have already made reference, and unless upon the whole you are able to say that the evidence on both of these phases of Cooper’s conduct, so taken in connection, satisfies you upon the whole that the will is not the product of undue influence exerted by Cooper upon the testatrix, but is free from such infirmity, your verdict should be against its allowance. I say this because I believe it to be the law that Mr. Cooper has the burden of satisfying you that the will in its making was in all respects fair and honest, and also of explaining his conduct at the time of the reading and also statements about the time of the funeral so far as you deem them proven, so as to warrant a favorable inference or conclusion, or at least prevent your drawing of inferences or conclusions fatal to his contentions. If his connection with the making of the will is not shown to you satisfactorily to have been fair when considered in connection with these latter untrue statements or declarations, so that upon the whole, all taken together, you are not able to say the will is not due to his undue influence, your verdict should be against it, and for the contestants, even if you could not so find from either of these circumstances or considerations considered separately, as under those circumstances it is his duty to show that the will when made was free from the alleged infirmity of undue influence on his part. If he has so explained these things to your satisfaction, then you should not find against the will on the ground of his exercise of undue influence for either of those reasons, or those reasons combined.”

I am impressed that, in that portion of the charge which is first above recited, the learned trial judge intended to state a rule in harmony with the decisions of this court and with the weight of authority. In re Bromley’s Estate, 113 Mich. 53 (71 N. W. 523); Dudley v. Gates, 124 Mich. 440, 446 (83 N. W. 97, 86 N. W. 959). The trouble with the instruction is that it does not also advise the jury, as it should have done, that if, in view of all circumstances disclosed, giving effect to the presumption referred to, they are not convinced that the provisions of the will favorable to Mr. Cooper were the result of fraudulent contrivance or of undue influence, then, if the testatrix was competent to make the will, it ought to be allowed. The jury must have understood that in this case the contestants were relieved of a burden which in the ordinary case they would be obliged to carry. The attention of the court was directly drawn to the rule, so that lack of a fuller statement of the law was not the fault of counsel. As for this error the cause must go down for a new trial, it is proper to say, further, that the presumption recognized in the decisions and in this opinion arising from the preparation of a will by a beneficiary whose relations with the testator are confidential or fiduciary in character is a presumption of fact, the force and effect of it is for the jury and depends in every case upon the circumstances of the case. Certain circumstances will give rise to slight, and others to very grave, suspicion of wrongdoing. Slight evidence may remove or rebut the presumption in one case, while in another the presumption may become, in the face of all explanation, conclusive. It is therefore a delicate, and often a dangerous, thing for a trial court to intimate or to express any opinion concerning the force and effect of the presumption or to define or in argumentative form to state how much or what evidence is necessary to rebut it. The charge of the court, considered in its entirety, tends rather strongly to impress the jury that the circumstance that a considerable legacy was given to Cooper and the one that he was instrumental in procuring the will to be drawn are considered very strong evidence of wrongdoing, when the' force and weight of the presumption was for the jury and in their judgment, all the circumstances being considered, and the mental strength of the testatrix, if they believed her to be competent to make the will, may have been entirely rebutted by the testimony and the character of proponent.

To the portion of the charge last above set out, other objections are made. It is said the court gave to the testimony referred to in the charge an effect forbidden by the rale stated in O’Connor v. Madison, 98 Mich. 183 (57 N. W. 105). See, also, In re Estate of Lefevre, 102 Mich. 568 (61 N. W. 3): Roberts v. Bidwell, 136 Mich. 191 (98 N. W. 1000). In O’ Connor v. Madison an attempt was made to prove undue influence by testimony of statements of devisees. As in this case, there were several interested in sustaining the will, and it was held that the ■ testimony was properly excluded. The court was requested to charge:

“ Some testimony has been introduced as to statements made by Mr. Cooper subsequent to the making of the will, and particularly at, or about, the time that the will was read; but I charge you that these statements, if you find that they were made, have no tendency whatever in this case to establish any undue influence or fraud practiced upon Mrs. McMaster at the time of making her will, and should not be considered by you, and no weight should be given them, in the consideration of the question of undue influence, and neither should any weight be given by you to any acts or conduct of Mr. Cooper at or about the time of the reading of the will so far as the question of undue influence is concerned, as they have no bearing upon that subject.”

The testimony was competent if for no other reason than that it tended to prove statements of the witness contradicting material testimony already given by him at the trial. Being competent for this purpose, the rale of O’Connor v. Madison would not require it to be excluded. Whether the jury should have been instructed to consider it only as it was believed to affect the credibility of Mr. Cooper is a more serious question. I am of opinion that an instruction to that' effect would have been error. Whether the disposition of property made by the testatrix was the natural operation of the mind of the testatrix, or the result of fraudulent contrivance or undue influence of Mr. Cooper, depended, iij view of the presumption indulged, and which has been referred to, upon facts which he testified he had knowledge of and which he had related. If he had made statements denying or concealing such knowledge, upon occasions where an honest man in his position would be likely to speak the truth, the effect would be, perhaps, not only to discredit his testimony as a whole, but to create the suspicion that there was a reason not creditable to him for concealment and prevarication. The point presented is not simply the one of receiving or rejecting the extrajudicial statements of one of several legatees concerning the exercise of undue influence upon a testatrix whose will is proposed for probate. In all cases of the nature of the one at bar, the primary fact to be discovered is whether the instrument proposed as a will is the intelligent act of the deceased, and the interests of those asserting and contesting the existence of this fact are of secondary importance. When the fact depends in any considerable degree upon the conduct and good faith of a legatee, so much so that he becomes a necessary witness to sustain the will and to rebut a presumption that undue influence was exercised by himself, no arbitrary rule should be interposed to inquiry which will discover precisely what his conduct and influence has been. Without intending to limit or modify the rule of O' Connor v. Madison, I think it should not be extended in such a way as to require that the instruction requested be given. The charge which was given upon this subject is faulty, not because it violates the rule referred to, but because in effect it reiterates the advice that the burden of proof has shifted upon the question of undue influence, and, it may be added, is somewhat argumentative.

The jury was .instructed that they might consider the provisions of the will with respect to both issues submitted to them, and the court directed attention to the reason given in the residuary clause thereof for the provision there made. The court was requested to say that the provisions of the will standing alone had no tendency to show undue influence or fraud, and that they should not regard the disposition of property which was made therein as any evidence of undue influence. The cases of In re Hoff- manias Estate, 151 Mich. 595 (115 N. W. 690), and Russell v. Carpenter, 153 Mich. 170 (116 N. W. 989), among others, are cited. That these cases are not in point here will be obvious to one who will examine them. Unless the provisions of the will were considered in connection with the relations of Mr. Cooper and the testatrix and his procuring the will to be drawn, the presumption which has been referred to, and which the court rightly-told the jury might be indulged, would have no foundation. The instruction was properly refused because it was impossible to consider the terms of the will dissociated from the other circumstances disclosed.

The other errors. assigned and argued have been considered. In view of a new trial, it is not important that they be, all of them, noticed in this opinion. Some rulings complained about are likely to be required upon a new trial, and to these I refer. Certain witnesses, after stating their observations of the testatrix, were permitted to express an opinion as to her mental competency. It is often a nice, always an important, matter to decide whether opinion evidence ought to be received from nonprofessional witnesses. It was proper to. show the age, and the physical and mental condition, of testatrix as it was observed by the witnesses, and I am of opinion that in neither case was the opinion expressed warranted by the observations and conditions stated. Nor is it likely that the jury considered them of much value.

Testimony of the financial condition and the health of some cousins of testatrix was received over objection; the purpose of the testimony being, evidently, to show that they were in needy circumstances for whom testatrix might have made some provision in place of the one to Mr. Cooper. Their exact relationship to testatrix is not shown, nor that they, or any of them, had particular or any claim upon her bounty. I think this testimony should have been excluded. In re Merriman’s Appeal, 108 Mich. 454 (66 N. W. 372). It was error, also, in view of the issue presented, to exclude testimony tending to prove that reasons existed, known to testatrix, for making no other provision than she did for her nephews. An attempt had been made to prove that the demonstrations of testatrix towards one of the nephews indicated considerable affection for him. But it was right to exclude testimony of a statement made by this nephew, not within the knowledge of testatrix, that he proposed to study hypnotism for the purpose of hypnotizing her and getting her to make a will in his favor. It is not claimed that he did study this subject or ever attempted to practice it or that he could have practiced it if he had pursued the study indefinitely.

Contestants were properly entitled to subject the proponent to a searching cross-examination, and while it might properly have been limited, upon some objections, where it was not, it cannot be said that reversible error was committed. In view of the residuary clause, it was not error to permit the witness to answer the questions:

“Q. Then there was no reason in the world, as far as you know of, why she ever made you a legatee under her will ?
“A. I don’t know why she did.
Q. I say there is no reason in the world why she should have done so, as far as you know ?
“A. No, sir; that I know of.”

The twenty-first request to charge was properly refused. Standing alone, the conversation referred to therein would have had no tendency to establish either mental incompetency or undue influence. It did not stand alone, when the request was preferred, and, if the jury believed that such a conversation took place, it was proper to consider it with other testimony in determining the issues involved.

The judgment is reversed, jvith costs to proponent, and a new trial granted.

Bird, C. J., and Moore, Brooke, and Blair, JJ., concurred.


author: Bird, C. J. Ostrander, J.

text:
    BEACH v. BUSINESS MAN’S PUBLISHING CO.
    1. Partnership — Limited Partnership Associations — Authority op General Manager — Contracts.
    An oral contract made by the manager of a limited partnership association to hire plaintiff for a year at an annual salary of $2,000, is void under 2 Comp. Laws, § 6083, providing that no liability exceeding $500 shall be binding on the association unless reduced to writing and signed by at least two managers.
    2. Same — Ratification—Estoppel.
    And the contract is not valid by estoppel where the association was engaged in business other than the buying and selling of merchandise, and the contract did not relate to the purchase or sale of the same.
    3. Same — Officers.
    The general manager of an association engaged in buying and selling merchandise may not be authorized to create a liability of over $500 against the association for other purposes than buying and selling merchandise. Rhoades v. Pure Food Co., 149 Mich. 235 (112 N. W. 940).
    Error to Wayne; Donovan, J.
    Submitted June 29, 1910.
    (Docket No. 151.)
    Decided November 11, 1910.
    Assumpsit by Clare M. Beach against -the Business Man’s Publishing Company for breach of a contract of hiring. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Rowland M. Connor, for appellant.

      Benjamin 8. Pagel, for appellee.
   Bird, C. J.

Plaintiff recovered a judgment for $809.72 against the defendant in the Wayne circuit court for salary which he claimed was due him on a yearly contract of employment.

The defendant is a partnership limited, organized and authorized to do business under chapter 160, 2 Comp. Laws. The object of the partnership, as set out in its articles of association, is:

“A general publishing, bookselling and office supply business, including the publication of a monthly journal or magazine.”

On the 27th of November, 1903, plaintiff entered into an oral agreement with the general manager of the association to work for the partnership for a salary of $2,000 a year, tie went to work under this agreement, and continued to work under it until May 8, 1908, at which time he was ordered by the board to resign. He proffered his services for the balance of the year, but they were refused. After the year had expired, he brought this suit to recover the balance of his salary for the year ending November 27, 1908, and for certain moneys which he had disbursed for expenses in its behalf.

The most important question raised by the assignment of errors is whether the general manager of defendant had the authority to employ plaintiff on a yearly contract involving $2,000.

It is contended by defendant’s counsel that the general manager did not have this power by reason of the inhibition of the statute under which the association is organized. This statute provides, in part, that:

“No debt shall be contracted nor liability incurred for said association except by one or more of said managers, and no liability for an amount exceeding $500, except against the person incurring it, shall bind the said association unless reduced to writing and signed by at least two managers, except in case of associations for the purpose of buying and selling merchandise, a majority of the interest in such association may select one of the managers each year to purchase merchandise required in the business of the association, make contracts, and sign notes for the same: Provided, such power given in writing fully setting forth the extent to which such manager may make purchases and contract debt for the association, which shall be signed by the majority of the members in number and value of their interest, and such power of purchasing and contracting debts shall be strictly limited to the ordinary business of the association.” Section 6083, 2 Comp. Laws.

The contract was oral and involved more-than $500. It does not appear that Elmer Beach, the general manager, had been given written authority to make the contract. Defendant claims that these facts bring the case within the ruling of Citizens’ Sav. Bank v. Vaughan, 115 Mich. 156 (73 N. W. 143). In answer to this contention, plaintiff says that the contract was one which the association had the power under the statute to authorize the general manager to make, and that the association is now estopped from saying that it did not authorize the contract by reason of permitting its general manager to deal with plaintiff for his services in the way he did for so many years. PlaintiflE’s contention is that the case is ruled by Armstrong v. Stearns, 156 Mich. 597 (121 N. W. 312).

To determine which one of these contentions is correct, it will be necessary to construe that part of the statute which reads as follows:

“Except in case of associations for the purpose of buying and selling merchandise, a majority of the interest in such association may select one of the managers each year to purchase merchandise required in the business of the association, make contracts, and sign notes for the same.”

Under this language, can the association authorize the general manager to make a contract which involves rnpre than $500, except for the purchase of merchandise ? This question seems to have been settled in Rhoades v. Pure Food Co., 149 Mich. 235 (112 N. W. 940). That was a case in which the same question was involved. Suit was brought by the plaintiff to recover for services against a partnership limited, whose object was to buy and sell merchandise. Mr. Justice Blair held in that case that no recovery could be had, and gave two reasons therefor, one of which was that the contract was void under the statute, citing Citizens' Sav. Bank v. Vaughan, supra. From this construction it necessarily follows that the power conferred upon the general manager by the association to make contracts involving more than $500 must be limited to merchandise contracts. The contract in the case before us is one of hiring and must be declared void under the statute.

The judgment of the trial court is reversed, and a new trial ordered.

Brooke and Blair, JJ., concurred with Bird, C. J.

Ostrander, J.

I concur in the result upon the ground the association defendant is not one for the buying and selling of merchandise within the meaning of the statute. I think, too, that no new trial should be granted.

Moore, J., concurred with Ostrander, J.


text:
    CITY OF DETROIT v. GRAND TRUNK RAILWAY OF CANADA.
    1. Highways and Streets — Improvements—Damages—Eminent Domain.
    In separating the grades of a street and railroad under 1 Comp. Laws, §§ 4229-4261, as amended by Act No. 268, Pub. Acts 1909, the municipality does not exercise the power of eminent domain, and damages are not determinable in accordance with rules governing awards in cases where private property is taken for public purposes.
    2. Eminent Domain — Consequential Damages.
    Consequential injuries resulting from a separation of grades in accordance with statutory authority do not constitute a taking of private property within the meaning of the Constitution.

      3. Same — Streets—Improvements.
    Improvements authorized by law, made by a city, in or upon public streets, impose no liability for damages resulting to adjacent property owners, unless the legislature so provides.
    4. Same — Constitutional Law — Streets.
    The legislature has complete control over the highways of the State and what is done lawfully upon them cannot be considered a nuisance, and consequential injuries resulting from what is done are damnum absque injuria.

    5. Same — Municipal Corporations.
    Under the statute the city of Detroit has power to make such separation of grades where railroads cross public streets, and a remedy is provided for consequential injuries to abutting property.
    6. Same — Constitutional Law.
    Nor is the statute in violation of the constitutional provisions relating to the exercise of eminent domain.
    7. Same — Railroads—Separation of Grades.
    Act No. 368, Pub. Acts 1909, providing that in separating the grades of streets and railroads at crossings, the petition may be hied within one year after the separation is completed, has a retroactive effect and is not unconstitutional.
    Certiorari to the recorder’s court of Detroit; Connolly, J.
    Submitted June 28, 1910.
    (Docket No. 160.)
    Decided November 11, 1910.
    Petition by the city of Detroit for the separation of grades of Sixteenth street and certain railroads crossing it. . A judgment for defendants dismissing the petition is reviewed by petitioner on writ of certiorari.
    Reversed.

      P. J. M. Hally and Richard I. Lawson, for petitioners.

      Henderson, Martindale & Grose, for respondents.
    Sixteenth street, in Detroit, is crossed, formerly at grade, by three railroads. Pursuant to the statute (2 Comp. Laws, §§ 4229-4261), the city of Detroit entered into an agreement with the railroad companies for a separation of grades, at various points, including one on Sixteenth. street. The common council, by ordinance, established a new grade for this street. Work incident to the separation of grades was begun June 3,1907, and was completed August 29, 1908. The statute petition was not filed by the city until August 19, 1907, and when filed it included the proposed separation of grades, not only at Sixteenth, but also at Fourteenth and Fifteenth streets. In June, 1908, a jury was impaneled and sworn to consider the matters alleged in the said petition and was discharged, and the petition was dismissed under a construction of the statute which required a separate proceeding and jury with respect to each street. The action of the recorder was approved by this court. City of Detroit v. Dailey, 156 Mich. 9 (120 N. W. 25). A separate petition relating to the separation of grades on Sixteenth street was filed April 21, 1909, a jury was impaneled January 31, 1910, and some testimony having been introduced, and it appearing that the improvement had been completed before the petition was filed and before the necessity therefor had been determined by a jury, the jurisdiction of the recorder was challenged by one or more of the respondents. It did not appear, and it is not claimed, that in changing the grade of the street any abutting property was taken, unless the consequential injuries attending the change of grade are to be considered as amounting to a taking.
    By Act No. 268, Pub. Acts 1909, the statute above referred to was amended, and as amended it provides that, if the petition is filed within one year after the separation of grades is accomplished, it shall be deemed a compliance with the law. A written opinion was filed by the recorder, which appears in the record, the conclusion and effect of which is that, because the petition was filed after the work of separating the grades was finished, the petitioner was a trespasser ab initio and as such liable to respond in damages to respondents in a proper forum. With respect to the amending statute, the recorder held it could not operate retrospectively, and, if it could, the legislature had not the power to pass a law permitting private property to be taken before the public necessity therefor is determined by a jury. The opinion proceeds upon the theory that the effect of the improvement is a taking of private property for public uses within the meaning of the Constitution. The contention of respondents in this court is expressed in their brief in the following language:
    “ If these works proceed under the power of eminent domain, they are restricted and governed by the constitutional provisions of both the Constitution of 1850 and 1909. If they do not so proceed, then the doctrine of City of Pontiac v. Carter (32 Mich. 164) applies, and the legislature would be free to adopt such remedial legislation, and to amend it, as it chose, because vested rights would not be divested, and the rules of procedure and damages would be wholly within the legislative discretion. But if the power is exercised under the power of eminent domain, if it is subject to those constitutional provisions touching this power, then neither the legislature nor the courts may abridge or infringe upon the procedure commanded by the Constitution, nor upon the damages fixed by the Constitution, which demands full compensation. Restriction by legislation of full and adequate compensation would violate the constitutional provisions relating to eminent domain, and the constitutional provision against depriving a person of his property without due process of law.”
   Ostrander, J.

(after stating the facts). The act “to provide separate grades for railroads and public highways and streets where railroads intersect such highways and streets,” which became effective August 28,1893. (Act No. 92, Pub. Acts 1893), has a general purpose, which is very plain; but the legislative methods for effecting the purpose are not simple, and some of the provisions of the law are not harmonious. For example, it seems to be wholly incongruous to require that the necessity for the separation of grades according to a plan which embraces such an improvement at several parallel streets should be submitted to successive juries; the necessity for a separation of grades at one of the streets involving its necessity at the other streets. This incongruity is more apparent now when a failure to determine the necessity for the improvement ahead of the work of improvement at a particular street is relied upon by owners of abutting property to support the claim that the city has proceeded unlawfully, is a trespasser, and liable to respond in damages as such. And yet very good reasons may be suggested for requiring different juries to assess the damages which the act contemplates shall be paid. Considering all of the provisions of the act together, we felt obliged to hold, in City of Detroit v. Dailey, already referred to, that successive juries were contemplated by the law.

Since proceedings were first instituted in the city of Detroit to bring about the separation of grades in conformity with the act, this court has been repeatedly called upon to determine disputes arising, in most cases, upon the proper construction of the law. Attention has necessarily been given to the particular questions raised upon the several records and argued by counsel, and just as necessarily decision has been influenced by the accord of opposing counsel with regard to the meaning of certain provisions of the law and the apparent soundness of the arguments when they have disagreed. City of Detroit v. C. H. Little Co., 141 Mich. 637 (104 N. W. 1108); Id., 146 Mich. 373 (109 N. W. 671); City of Detroit v. Railway, 156 Mich. 106 (130 N. W. 600); City of Detroit v. Railroad Co., 156 Mich. 131 (130 N. W. 593); City of Detroit v. Snyder, 156 Mich. 511 (131 N. W. 258); Id., 159 Mich. 227 (123 N. W. 1106). It is said by counsel for the city that in none of these cases was the necessity for the improvement and the damages to be awarded determined before the improvement was actually undertaken. In all of them an award was made by a jury in proceedings under the act, and the points presented for decision related to the class of persons, determined by interest in property, entitled to damages and the measure of the damages recoverable under the statute. Whatever may be thought of some expressions to be found in the opinions which have been filed and to which reference will be made, there can be found in the decisions themselves no reasonable support for the idea that in making the improvements the city exercised the power of eminent domain, or that it was acting without proper authority. The contention that damages under the act should be measured in accordance with rules governing awards in cases where private property is taken for public uses has been expressly overruled. City of Detroit v. Railway, supra.

Counsel for respondents find in some of the earlier opinions of the court, in cases involving improvements in highways, and in some of those delivered in cases arising under the particular act, support for the idea that the consequential injuries resulting from such improvements as are here involved constitute a taking of private property within the meaning of the Constitution and require affirmance of the order appealed from. A brief reference will be made to them. In Schneider v. City of Detroit, 72 Mich. 240, 245 (40 N. W. 329, 331 (2 L. R. A. 54), it was said by Mr. Justice Champlin:

“If the common council of the city of Detroit had authority to construct the bridge over the railroad tracks, all their proceedings having been regular, and the bridge and approaches having been erected according to the plans adopted, the city is not liable in this action.”

City of Pontiac v. Carter, 32 Mich. 164, is cited and, in the case supposed by the learne'd justice, would, it is stated, control. In that case the city had carried Thirteenth street over the tracks of the railroad company by a bridge erected in the street. What is denied is the authority of the city, express or implied, to erect the structure under the conferred powers to grade, improve, or extend streets. This reasoning of two of the justices left the city liable in damages as for a taking of private property and in this result the other justices concurred. See Phelps v. City of Detroit, 120 Mich. 447, 450 (79 N. W. 640). In Harper v. City of Detroit, 110 Mich. 427 (68 N. W. 265), very like in its facts to Schneider v. City of Detroit, it was held that the damages recoverable were those fixed by the act now under consideration. In Ranson v. City of Sault Ste. Marie, 143 Mich. 661 (107 N. W. 439, 15 L. R. A. [N. S.] 49), it was expressly found that the city “was not, and did not, in fact, suppose that it was proceeding in the exercise of any charter power of the city over its streets or to erect bridges.” The language relied upon in the opinion in City of Detroit v. Snyder, 156 Mich. 512 (121 N. W. 258), the case being an appeal from an award in proceedings to separate grades, is:

“ This statute did not contemplate a grade to be made for the purpose of ordinary travel, unobstructed by railroad crossings or canals. It contemplated a change made necessary by the use of the streets for railroad crossings. Such improvements do not come within that rule of the common law which gives no compensation or damages.”

Schneider v. City of Detroit is cited. The city urged that, because no grade had been established on the street upon which Snyder’s property abutted, he was not entitled to any compensation under the statute, and the contention was determined in the language following that above set out, which was:

“We are therefore of the opinion that the term 6 grade ’ in this statute refers not alone to those duly established by engineers and municipalities, but also to the grades of highways and streets as in common use.”

This decision was made some time after City of Detroit v. Railway had been decided, and Justice Grant, who wrote the opinion, took part in and approved the decision in the earlier case. In the C. H. Little Co. Case, which was twice before this court, the article and sections of the Constitution relating to the exercise of the right of eminent domain were cited in one opinion, and various authorities, all relating to condemnation proceedings, were cited in the other opinion. What was involved in the first appearance here of the case was the right of a lessee to recover damages, and at its last appearance there was involved the measure of the statute damages.

Whatever authority there may be for the doctrine that, if a city acts without legislative authority with respect to its streets, it must respond in damages to those whose use and enjoyment of abutting property is in consequence restricted or injuriously interfered with, none of the cases relied upon and none that have been brought to our attention support the proposition that improvements and changes made in the streets, by legislative authority, impose any liability unless the legislature so declares. In Austin v. Railway, 134 Mich. 149 (96 N. W. 35), there was a disagreement of the judges as to the proper result to be declared; but it is apparent there would have been no disagreement if it had been conceded that the grade of the highway had been changed by proper authority. The consequences of the acts complained about in that case were not unlike those which are relied upon here to show injury. The case is, in any event, an authority opposed to the contentions of respondents here. It seems to be unnecessary to say that the legislature has complete control over the highways of the State, that what is done in and upon them by lawful authority cannot be considered a nuisance, and that consequential injuries resulting from what is so done are damnum absque injuria. The fact that some of the consequential injuries resulting where property is actually taken in condemnation proceedings are similar in character to those resulting where grades are separated furnishes no argument to support the proposition that property is “ taken,” within the meaning of the constitutional provisions here relied upon, when such consequential injuries follow a separation of grades. The decision of City of Pontiac v. Carter, is only an application of the rule that if the municipality has power, derived from the legislature, to accommodate streets to a new use consistent with and in aid of the general use to which streets are devoted, abutting owners, whose property is not taken, have no remedy for consequential injuries unless the legislature gives them one. It is obvious that the city of Detroit had power to make a separation of grades. It is equally obvious that the legislature provided a remedy for injuries to abutting property. In previous decisions we have considered the nature and extent of the remedy, and we see no reason for modifying views which have heretofore been expressed. If respondents were suing to recover damages, the statute measure would furnish the measure of their recovery. It may be added that the amendment of 1909 was plainly intended to have a retroactive effect and may be given such effect without doing violence to settled rules. Matter of Andersen, 178 N. Y. 416 (70 N. E. 921).

The order and decree of the recorder’s court is reversed, and the record will be remanded, with directions to proceed in accordance with the statute. The printed record does not advise us whether all of the respondents appeared, answered, and took part in the hearing below. The city will recover costs, and the order of this court will recite which of the respondents are liable therefor.

Bird, C. J., and Moore, Brooke, and Blair, JJ., concurred.


author: Blair, J.

text:
    RYERSON v. PHELPS.
    1. Intoxicating Liquors — Evidence—Civil-Damage Law.
    Evidence that plaintiff’s husband procured intoxicating liquor of defendant through the agency of her minor son, who testified that he thought the husband took a drink at the time, with testimony that he was intoxicated on the same day and soon afterwards, that he was an habitual drunkard, and had been drinking for several days, warrants the submission to the jury of the question whether he drank any of the liquor provided by defendant.

      2. Same — Damages—Shame and Mortification.
    A. request tó instruct the jury, that if the defendant had stated in a sworn bill of complaint, filed by her, that her husband had been a drunkard since they were first married, and had committed acts of violence similar to the assault complained of in the declaration, she could not recover damages for mental anguish, loss of companionship, shame, etc., was properly refused, since it excluded her recovery for mental anguish, shame and mortification, growing out of the assault alleged in the pleading, and for the resulting disfigurement to plaintiff.
    3. Same — Exemplary Damages — Charge to Jury.
    That the trial court in his charge unduly emphasized the question of exemplary damages was not shown to be prejudicial where the verdict was small, and there was ample evidence warranting exemplary damages.
    Error to Kalamazoo; Knappen, J.
    Submitted July 15, 1910.
    (Docket No. 164.)
    Decided November 11, 1910.
    Case by Mary Ryerson against Emmet E. Phelps and the Michigan Bonding & Surety Company for the unlawful sale of intoxicating liquors to her husband. Judgment for plaintiff; defendants bring error.
    Affirmed.

      Frost & Farrell and A. F. Bunting, for appellants.

      Jackson & Fitzgerald, for appellee.
   Blair, J.

Defendant Phelps is the proprietor of a saloon in the city of Kalamazoo. The Michigan Bonding & Surety Company was the surety on his liquor bond from May 1, 1908, to April 30, 1909. Plaintiff has lived in the city of Kalamazoo for several years past. She .was divorced from a former husband. Before she obtained this decree, plaintiff knew of Ryerson’s drinking habits, as he boarded with her. In August, 1905, she married her present husband, Ryerson. From the time of his marriage to her, Ryerson has been in the habit of getting intoxicated and abusing plaintiff and her son. In 1907, plaintiff began divorce proceedings against Ryerson, alleging the excessive use of intoxicating liquors, of profane and indecent language, and physical punishment of the worst kind. At that time, Ryerson was confined in the Detroit house of correction for an assault and battery.

When he returned, he contributed nothing to plaintiff’s support, and did not live with her for nearly a year. He returned to plaintiff’s home in the latter part of July, 1908. From that time until Thanksgiving, he did not get drunk as often as before, but soon returned to his old ways. During this time, plaintiff occasionally drank beer with her husband. On March 8, 1909, an 18-year old son of plaintiff went to defendant Phelps, at the request of Ryerson, and purchased a half pint of whisky, which was delivered to Ryerson. This was in the forenoon. In the evening, Ryerson came home drunk, and an affray occurred in which he struck plaintiff several times with his fist, tearing “the lower edge of her ear loose and otherwise injuring her.” The jury found a verdict for plaintiff for $629.50, and defendants bring the record to this court for review. The errors relied upon for a reversal will be considered in the order of their presentation in defendants’ brief.

“As the case stood when the motion to direct a verdict for defendant was denied, there was an entire absence of testimony showing that Ryerson drank any of the liquor alleged to have been furnished by defendant Phelps.”

•The only direct testimony as to Ryerson’s drinking any of the liquor sold by Phelps came from plaintiff’s son (who delivered the bottle to him at about 11 o’clock in the forenoon), to the effect that he thought Ryerson took a drink at that time, but could not say for sure. Plaintiff testified tha¡t, when he came home to dinner a little after noon, he was under the influence of liquor, and the testimony tended to show that he was an habitual drunkard, and had been drinking for several days. Under such circumstances, we do not think the court would have been justified in directing a verdict on this ground.

Defendants’ argument in support of this point is as follows:

“ The proofs plainly showed that in July, 1907, plaintiff began suit against her husband for divorce, in which suit she charged him with acts of drunkenness and personal violence almost identical with those charged in the present case. These were all admitted to be true by plaintiff. Defendants requested the court to charge the jury as follows:
(9) “ ‘I further instruct you that if you find from the evidence in this case that plaintiff did, on or about the 3d day of July, A. D. 1907, file her sworn bill of complaint in proceedings for a divorce from her husband, Wyley W. Ryerson, charging him with acts of drunkenness and personal violence, such as are complained of in the present case, and therein alleging that said acts had continued ever since their said marriage, then you are not at liberty to allow plaintiff any damages for mental anguish, loss of companionship, or for the shame and mortification attendant upon the transaction.’
“This request, which was denied, ought to have been given the jury. Johnson v. Schultz, 74 Mich. 75 (41 N. W. 865).”

The court, among other things, instructed the jury as follows:

“I further instruct you that, if you find from the evidence in this case that plaintiff’s husband had been in the habit of getting intoxicated ever since the time of his marriage to plaintiff, then you are not at liberty to assess defendant anything for injury to plaintiff’s feelings caused by the alleged shame and mortification plaintiff suffered growing out of his intoxication in this case in question. * * * As to the actual damages, you will determine whether or not she was assaulted or injured, and you will give to her, if you find all the other facts as I have stated them to you to have been proven by the evidence, that amount which will compensate her. That is the theory of the law; that is what juries are for, if you come to the question of damages, to compensate one party for something that is due from the other. How much do you think she has suffered by being injured about the face and ear, the pain and suffering, the shock, the damage to property, and suffering that may have been sustained by reason of the publication of it, the remarks of people, exclusion from society, and anything of that kind that she has shown, would come under the head of actual damages. * * * I further instruct you that if you find from the evidence that plaintiff did, on or about the 3d day of July, 190?, file her sworn bill of complaint in proceedings for a divorce from her husband, Wyley Ryerson, charging him with acts of drunkenness and personal violence, such as are complained of in the present case, and therein alleging that said acts had continued ever since their said marriage, then you have a right to consider that admission or statement on her part for what it is worth, for the purpose of determining how much mental anguish, shame, and mortification this subsequent act produced upon her mind, if it did any.”

The defendants’ request excluded from the consideration of the jury as a basis for damages any mental anguish, shame, or mortification growing out of the assault and battery, with its attendant injuries to, and disfigurement of, plaintiff’s person, causing remarks by strangers in street cars and other public places and wide notoriety through publication in the public press. The court did not err in refusing to give the request.

“In his charge to the jury, the court practically directed. a verdict for plaintiff, and in addition made it almost impossible for the jury to render any verdict without including in the same some amount as exemplary damages.”

We do not think the charge is subject to the criticism that it practically directed a verdict, and very little stress is laid upon this contention in defendants’ brief. The principal complaint under this head is that the court erred in the manner of submitting the question of exemplary damages. As to this, counsel say in their brief:

“ Our principal contention is, not that the court has incorrectly stated the law governing the case, but that by recurring to the question of exemplary damages so often, by calling them by that term no less than a dozen times, and by emphasizing that particular part of the case, when as a matter of fact, there was no evidence of any wilful intent and no evidence from which any could be legally inferred, except that defendant Phelps knew of the fact that plaintiff was the wife of the person to whom he sold the liquor, the court has unduly impressed and biased the jury by the charge and rendered them unfit to reach a proper conclusion.”

In view of the moderate verdict rendered by the jury, and the abundant support in the testimony for a verdict including exemplary damages, it is not apparent how defendants were prejudiced by the charge in this regard. At all events, we do not think that any such undue emphasis was placed upon this subject by the court as to warrant a reversal of the judgment.

The judgment is affirmed.

Bird, C. J., and Ostrander, Hooker, and Stone, JJ., concurred.