author:
Brooke, J.
      Moore, C. J.

text:
    PUFFER v. MUSKEGON TRACTION & LIGHTING CO.
    1. Street Railroads — Automobiles — Contributory Negligence.
    Plaintiff was guilty of contributory negligence precluding a recovery for damages done to his automobile in crossing defendant’s street car tracks, where his own testimony showed that he looked for a car and saw none approaching, after which he proceeded nearly 60 feet and turned across the tracks in front of an on-coming car, without again looking down the track which was straight and unobstructed, for a distance of 600 feet.
    3. Evidence — Cross-Examination—Rate or Speed.
    To prove the rate of speed of defendant’s car it was not competent, after cross-examining one of defendant’s motormen who testified generally that all its cars ran at the same rate in the vicinity of the place of the accident, to show by another witness that the witness had timed one of defendant’s cars at that point on a certain occasion and it ran at the rate of 35 miles an hour.
    Moore, G. J., and Bird, J., dissenting.
    Error to Muskegon; Sullivan, J.
    Submitted June 10, 1912.
    (Docket No. 69.)
    Decided December 17, 1912.
    Case by Floyd Puffer .against the Muskegon Traction & Lighting Company for damages to plaintiff’s motorcar. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Gross, Vanderwerp, Foote & Boss, for appellant

      Turner c& Turner, for appellee.
   Brooke, J.

I am of opinion that the conclusions reached by my Brother, the Chief Justice, are not warranted by the facts disclosed in this record. Mr. Justice Moore quotes plaintiff’s testimony on direct examination. On cross-examination he testified, in part, as follows:

“ When I got down in front of Kraft’s saloon, I then looked to see if there was any car coming. Kraft’s saloon is on the corner of Hall and Ottawa streets. I should say I was about the middle of the saloon when I attempted to look back. I think Kraft’s saloon is about 33 feet wide. When I was in front of the saloon — about the middle of it — I attempted to look back. I had a top on my machine. The top was down the back. This top on the back would interfere with looking back. When I looked back, I was facing towards the east on Ottawa street. I did not stop the machine. I looked right around the side like that (illustrating), and I could see, I should think, to where Vincent’s store is. There were braces on each side of the top. I just put my face up to the braces and looked back. It is a one-seated, and I was sitting on the right-hand side of the car. I should think the seat was 3 feet wide. I bent over and looked to the left. I didn’t move out of my seat. I kept my hand on the steering gear all the time. I didn’t see any car coming. I was running at the rate of 8 or 10 miles an hour then. After I looked back just before I got to Hall street, I noticed the hole in the pavement. I went around it, and turned to the right further than I had any time before coming down Ottawa street, in order to miss the hole, I got within about a foot of the gutter. I then went across Hall street pretty well on the right-hand side until I got past the center of Hall street towards the curbing on the other side; that was two-thirds of the way across Hall street. Then I turned to the left to cross the track.
“Q. Now, the time that you had looked down the track was down there just before you had reached that hole, wasn’t it ?
“A. Just before I got to the hole.
"Q. You didn’t look any other time ?
“A. No, sir.
“Q. That was that time in front of Kraft’s saloon ?
“A. Right in front of the saloon. After I turned across the track, it was about 6 or 8 feet from the time I turned until the front wheels were on the track. I have lived here in Muskegon some time to know about the running of street cars, where they run, and how often they run. I knew that the cars run down there about every 15 minutes. From Hall street to Vincent is 195 feet, probably.”

Assuming that plaintiff’s observation when he looked back was a proper and adequate one, which may well be doubted from a perusal of the foregoing, it is still apparent that he cannot recover. When he looked back, he says he was at the 'middle of Kraft’s saloon, which is 33 feet wide. He therefore traveled one-half this distance, 16£ feet, plus two-thirds of the width of Hall street (which is 55 feet wide), 36 feet, plus 6 or 8 feet after he turned to cross, making a total of 58 or 60 feet. He traveled this entire distance and drove his car upon defendant’s track without again assuring himself that he could do so with safety, when a glance would have shown him that the car was in dangerous proximity. It was broad daylight, he was entirely familiar with the situation, and there was an unobstructed view of straight track for 600 feet. When plaintiff made his observation, he could have seen the car, had he taken a position far enough to the left-hand side of his machine to permit him to get an unobstructed view of the entire block. Rut, in any view we may take of his care or lack of care in making this observation, we must hold that in driving the distance he did drive thereafter, and going upon the track of defendant without again assuring himself that it was safe to do so, he was guilty of contributory negligence, as a matter of law. Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007); Stevenson v. Railway, 167 Mich. 45 (132 N. W. 451), and cases there cited.

The witness Baker was permitted to testify that he had timed, one of defendant’s cars -upon a day different from that upon which the accident occurred, and that it ran 25 miles per hour. The testimony was taken subject to objection and exception. The court permitted the answer only after the following evidence was introduced by plaintiff:

“Charles Vandenberg, recalled for further cross-examination by Mr. W. J. Turner, under the statute, was examined, and testified as follows:
‘Q- All these cars operated on the Ottawa street line run at the same rate of speed, do they not ?
‘A. Yes, sir.
“ ‘Q. And how long had you been on that Ottawa street line F
“‘A. How long?
‘Q. Yes; how long nad you been?
‘A. We worked there off and on at different times.
“ Q. I mean how long had you been before October, up to this time ? In October how long had you been working there steadily ?
A. We don’t work there steadily, only just as the regular crews lay off.
‘Q. But you do know that they all run at the same rate of speed ?
‘A. Yes, sir.
‘Q. Between the Steiner House and all this distance that you cover ?
“‘A. Yes, sir.’”

It is obvious that the witness Vandenberg, who was the motorman in charge of the car at the time of collision, could not know the rate of speed at which other cars of the defendant were run at all times. This evidence was valueless as a foundation for the incompetent testimony of the witness Baker.

The judgment should be reversed and a new trial granted.

Steere, MoAlvay, Stone, and Ostrander, JJ., concurred with Brooke, J.

Moore, C. J.

(dissenting). This case was commenced in justice’s court and appealed to the circuit court, where a verdict for $100 was rendered by a jury in favor of the plaintiff. From a judgment entered upon this verdict, the case is brought here by writ of error.

It was the claim of the plaintiff that, as he was about to cross the car track of defendant company, his automobile was injured by a street car under such circumstances as to entitle him to the judgment he obtained.

The claim of the defendant is stated by its counsel as follows:

“ The defendant has appealed from that judgment, and asks for a reversal of the case on account of certain errors, which, for the purpose of this brief, can be grouped as follows:
“(1) By the court overruling defendant’s motion to direct a verdict in its favor.
“(2) In the refusal by the court to give defendant’s requests to charge.
“(3) In certain parts of the charge of the court as given and his neglect to properly instruct the jury as to what would constitute contributory negligence on the part of plaintiff and negligence on the part of the defendant.
“(4) In the admission of certain testimony of the witness Baker.”

Should the trial court have directed a verdict in favor of defendant ? The plaintiff testified the collision happened as follows:

"I was going in an easterly direction on the right-hand side of Ottawa street. It was from 20 minutes to half past 4. I did not hear any street car, nor the sound of any gong or bell. The street cars are equipped with a gong. I know where the Steiner House is on Ottawa street. It is about one block from there down to Hall street, but it is a long block. It is nearly as long as two blocks. When I got to Hall street, I attempted to cross. There was a hole in the pavement — Ottawa street is rough there — there was a big hole in the pavement, and the machine was short, and I turned out to the right-hand side of the street right close to the curb to miss that hole, and then I attempted to go across the street. I looked to see whether a car was coming before I crossed. I looked both ways and did not see any car coming, and I did not hear the sound of any gong or bell. There is nothing the matter with my hearing. There was no bell or gong sounded. I turned out to the right, seeing the hole in the pavement, to the extreme right-hand side of the street, right close to the curb, and I was right in front of Kraft’s saloon. Before I made the turn, I looked around, and I could see plainly ahead. There was none coming ahead, and I looked just about the time I was making this turn to the hole in the brick. That was probably not over 15 feet before I turned, and I looked like that (illustrating), and I didn’t see no car, nor hear any, and I turned out to the right, and then I turned square across the track, or attempted to, and I got right in the center of the track, and just as I got midway there was a car right upon me. I didn’t even have time to shut my motor off, or stop it in any way. The car struck me and slid me probably 15 or 20 feet from the time it struck me. The car struck my automobile right amidships. It struck the front wheel on the hub, or one side of it; and on the other side it swung the front end around like that (illustrating), and struck the high wheel and just shoved it right ahead in that manner (illustrating). It wrecked my machine.”

There was testimony to the effect that the motorman never slackened the speed or sounded the gong until the automobile was struck, and that the car was running upwards of 18 miles an hour. On the other hand, testimony was given tending to show the car was running not more than 8 or 10 miles an hour, and that the gong was Bounded. We think this presented a question of fact for the jury. Hebblethwaite v. Railway, 145 Mich. 13 (108 N. W. 433); Putnam v. Railway, 164 Mich. 342 (129 N. W. 860); Clark v. Traction Co., 167 Mich. 694 (133 N, W. 927).

Two and three may be considered together.

The court charged the jury at length. Part of the charge reads as follows:

“ In order for the plaintiff to recover, it is necessary for the plaintiff to show by a fair preponderance of the evidence that the acts of negligence that he claims, some or all of them, did actually exist, and that it was through the acts of negligence that the injury occurred. Now, I have read what acts he claims, and he claims that because of the failure of the defendant to perform its duty under all the circumstances surrounding the case, and in accordance with what I have heretofore instructed you, that the defendant is liable for the injury. He must prove that. * * * by a fair preponderance of the evidence. * * * A fair preponderance of the evidence means such part of the evidence or the testimony which convinces you of the truth of the facts sought to be proved, just a preponderance. If the evidence, after you have weighed it, preponderates — it must preponderate in favor of the plaintiff on all the different propositions that I am going to give you, before he can recover. It must preponderate that the defendant was negligent in operating that car, and that the injury resulted from the causes that have been alleged in the declaration.
“Now, I desire to define to you what is meant by negligence. Negligence is neither more nor less than the failure of duty. Negligence consists in the want of that reasonable care which would be exercised by a person of ordinary prudence under all the existing circumstances, in view of the probable injury. Negligence consists in the failure to observe that degree of care which the law requires for the protection of the interests likely to be injured or affected by the want of it. You have got a right, according to the definition of negligence that I have given you, to take into consideration what both parties were doing. Each of them had a right upon the street. Each of them should owe a duty to the other. The defendant could not turn out; and when I say the defendant could not turn out I mean the cars on the track could not turn either to the right or left. It was the duty of the defendant to operate its cars in a reasonably careful and prudent manner so as to prevent a collision. It was the duty of the defendant company to watch out and see what danger there was in running the cars along the streets, particularly along Ottawa street. It was its duty to use reasonable care and prudence to avoid a collision with the plaintiff’s automobile. You are to take into consideration the duty of the defendant, what they were doing, all the facts and circumstances, particularly as they bear upon the manner in which the automobile and street car were run on Ottawa street. * * * Now, if there was no negligence on the part of the defendant that caused this collision, and you should so find, or you should not find that it was proven by a fair preponderance of the evidence that the defendant was negligent in that matter, why, in that case your verdict — stop right there and say that your verdict would be not guilty. But if you do find that the defendant was negligent, then it is your duty to consider and take into consideration, at the same time as you are considering the duty resting upon the defendant, the duty that the plaintiff owed. It is the plaintiff’s duty to exercise ordinary care and prudence in operating his automobile upon the same, the same as the definition that I have given you in relation to negligence. If he fails to exercise that care and caution that he ought to, under all the circumstances, and his failure to exercise that care and caution that he ought to, under all the circumstances, contributed in any degree to the injury, that is what the law calls contributory negligence; and if you find that the plaintiff was guilty of contributory negligence, such negligence as contributed to the injury, then, no matter what the negligence of the defendant may be, if you find him guilty of contributory negligence, still your verdict should be for the defendant.
“It is your duty to take into consideration all the matters that have come out in evidence here — the street car line, where the street car was when he entered near the Steiner House on Ottawa street, where the plaintiff was, how he operated his automobile down Ottawa street, whether he was negligent about making a short turn across the street. He should be careful in crossing a street car track, because the street car track is notice to every person that there is a car upon it or may be a car upon it, and it is his duty to take the ordinary care and precaution to avoid a collision that any person of ordinary care and precaution would take under all the circumstances. That is what he is required to do. If he has done that, he is not guilty of contributory negligence. If he has not done that, he is guilty of contributory negligence. You have heard the testimony in relation to what he did. You have heard that testimony. I am going to leave that all to you. It is for you. This question of negligence and contributory negligence in this case is a mixed matter of law and fact. I have given you the rules that should govern you in your decision of this matter, both as to the negligence of the defendant and as to the contributory negligence of the plaintiff.”

A reference to the requests to charge show them to be argumentative. So far as they contained a proper statement of the law, we think they were covered by the general charge.

Did the court err in receiving the testimony of the witness Baker? This witness was a policeman, who got about the city on a motorcycle that had upon it a speedometer. He was allowed to testify to the speed at which defendant’s car was run at the place of the accident upon another day than when the accident happened. Before he was allowed to do this, the motormhn was placed on the stand, and testified the car was run at the same speed at the time of the accident as upon other days. In view of this testimony, we cannot say the reception of this testimony was error.

Judgment should be affirmed.

Bird, J., concurred with Moore, C. J.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    COTE v VILLAGE OF HIGHLAND PARK.
    1. Taxation — Special Assessments — Improvements.
    On the theory that its value is enhanced by improvements, adjacent property may be specially assesssed to defray, in whole or in part, the cost of local public improvements by which such property is specially benefited.
    2, Same — Constitutional Law.
    Provisions of law which render it legally impossible for assessing officers to apportion the burden of such improvements according to benefits, and with proximate equality, are said to be arbitrary exactions and not a legitimate exercise of legislative authority.

      3. Same — Frontage—Apportionment.
    The apportionment of a paving tax may be constitutionally made according to frontage on the street, that principle having been found to be more just than any other. Under the general law the cost is to be divided in proportion to the respective fronts of the lots, but if an injustice would result the assessors may assess a given lot for such number of feet frontage as, in their opinion, would be just. 1 Comp. Laws, § 3837, 3 How. Stat. (3d Ed.) § 6058.
    4 Same — Apportionment—Foot Front Rule.
    To assess improved property at a higher rate than unimproved property having a like frontage, in order to keep the tax within 35 per cent, of the assessed valuation, as limited by the act regulating such assessments, does violence to the rule of equality and is not in accord with the discretion vested in the assessors to vary the foot-frontage rule so as to bring about equitable results in the case of peculiarly shaped lots.

    5. Constitutional Law — Estoppel by Pleading — Taxation.
    A municipal corporation is not estopped from asserting the validity of a statute providing for .special assessments, because it set up the claim in a previous suit brought against it by a third party that the statute was unconstitutional, the decision being based on other grounds, not determining the constitutional question.
    6. Same — Title—Objects—Villages—* ‘ Regulate. ”
    Act No. 707, Local Acts 1907, is invalid because it attempts to amend the charters of four distinct villages, thereby embracing four distinct objects within its purview; and because provisions for borrowing money and issuing bonds are not included within its title, "An act to regulate the making of special assessments within the villages of Highland Park, St. Clair Heights, Hamtramck and River Rouge, in the county of Wayne.” Bird, J., dissenting.
    Appeal from Wayne; Hosmer, J.
    Submitted June 20, 1912.
    (Docket No. 92.)
    Decided December 17, 1912.
    Bill by Albert J. Cote and others against the village of Highland Park and others for an injunction. From a decree for complainants, defendants appeal.
    Affirmed.

      Robert E. Barber (Paul B. Moody, of counsel) for complainants.

      Edwin 8. Bartlett, for defendants.

       The question of assessments for improvements by the front-foot rule is discussed in an elaborate note in 38 L. R. A. (N. S.) 1134

   Steere, J.

This suit was instituted to restrain proceedings which were in progress to pave and curb Glendale avenue, in the village of Highland Park, and incidentally to test' the validity of the law under which such improvements were being conducted, and the method of assessing adjacent property to defray the expenses of such improvements.

The complainant Cote is a resident owner of lands in such village, and all complainants are residents of Wayne county, owning lots abutting upon.said avenue. The village of Highland Park is a municipal corporation in Wayne county immediately adjoining the city of Detroit on the north. Though a distinct municipality, it is in fact a suburb of Detroit, and through it runs Woodward avenue, which is a main thoroughfare to and from said city. Actuated by the growth and needs resulting from increased population, the council of said village, early in the year 1907, established a fire department, and during the following spring and summer entered upon an active program of street improvements, including paving and curbing Glendale avenue. Said village is incorporated under and derives its powers from the general law for the incorporation of villages, and defining their powers and duties, being chapter 87 of the Compiled Laws of 1897 (3 How. Stat. [2d Ed.] § 5903 et seq.), together with public and local acts amendatory thereof and supplemental thereto. Proper resolutions were passed and subsequent steps taken, admittedly following the provisions of appropriate statutes, to the point of levying a special assessment to meet the cost of the proposed improvement; but no contract was let or work actually done on the street, owing to the commencement of this suit. The estimated cost of the improvement was $23,278.10, and a tentative assessment roll was made, which shows that out of the total estimated cost there was first deducted $3,903.14 computed as the cost of street and alley intersections, to be paid by the village at large. The balance was first apportioned to the lots abutting the line of improvement according to the foot-front rule of assessment, making the tax about $4 per foot. But, whenever the sum so apportioned to any lot was found to exceed 25 per cent, of the value of such lot, according to the last preceding assessment roll, the excess was charged against the village at large, to be paid, together with the cost of street and alley intersections, out of the general fund of the village. As a result of this, about one-half of the taxable frontage was assessed at the maximum amount of approximately $4 per front foot and the other one-half at varying rates ranging from 83 cents to $3.96 per foot front. A certain lot used for church purposes, No. 27, is conceded to be erroneously assessed, because the amount charged to it exceeds 25 per cent, of its value, according to the last assessment roll on which it appeared, and defendant’s counsel stated such lot should and would be reassessed. Following the prescribed steps leading up to a final assessment, a hearing on the assessment roll so prepared was set for September 1, 1911. On that date complainants secured a temporary injunction from the Wayne county circuit court, which was served before any hearing was had, and all further proceedings were thereupon suspended pending this litigation.

The objections launched by complainants against the proposed assessment are, briefly stated: That it is invalid—

(1) Because not made according to foot frontage pro rata, as required by statute; (2) because it is not according to benefits, is inequitable, and imposes unequal burdens; (3) because certain lots are assessed for street purposes in excess of 25 per cent, of their value as fixed by the last preceding tax roll; (4) because Act No. 707, Local Acts of 1907, under which the assessment in question purports to be made, is invalid, in that it embraces objects not expressed in its title, embraces more than one object, and was irregularly passed.

The serious and important questions presented by the record and argued by counsel are: Were the statutory provisions governing special assessments in Highland Park complied with ? If so, is an assessment by such method legal when, purporting to be levied according to frontage, it puts a greater proportionate burden on improved property than on adjoining unimproved property, the former having a greater assessed value on account of buildings thereon and the estimated foot-front tax on the latter being reduced because it exceeds 25 per cent, of the assessed valuation ? Is Act No. 707 of the Local Acts of 1907 valid ?

Authority for making special assessments to meet the costs of paving and other improvements on highways in villages incorporated under the general law is found in chapter 7 of said act, which deals with powers of the council. So far as material here, the provisions are as follows: Section 2786, 1 Comp. Laws (3 How. Stat. [2d’ Ed.] § 5903):

“ The expense of grading, paving, graveling and planking any street may be defrayed by a special assessment upon the lots and premises abutting upon such improvement in proportion to their number of feet front upon the street; or a part of such expense may be so paid and the remainder may be paid from the general highway fund, or from the street district fund, as the council may decide. The lots and premises to be assessed according to their frontage upon a street improvement as aforesaid, shall constitute a special assessment district. * * *”

Section 2787, 1 Comp. Laws (3 How. Stat. [2d Ed.] § 5904), authorizes payment from the general highway fund of any portion of such cost which, in the judgment of the council or board of assessors is justly apportionable to street intersections,' public grounds, and buildings—

“And the balance of such expense shall be assessed upon the taxable lots and premises included in the special assessment district, in proportion to their number of feet frontage upon such improvement. When such assessment is to be made upon lots in proportion to their frontage upon the improvement, if from the shape or size of any lot an assessment thereon in proportion to its frontage would be unjust and disproportionate to the assessment upon other lots, the council or board of assessors making the assessment may assess such lot for such number of feet frontage as in their opinion will be just.”

Chapter 8 of said act prescribes the method of initiating such improvements and making special assessments therefor. Section 2837,1 Comp. Laws (3 How. Stat. [2d Ed.] § 6058), provides:

“ If the assessment is required to be according to the frontage, they (the council or board of assessors) shall assess to each lot or parcel of land such relative portion of the whole amount to be levied as the length and front of such premises abutting upon the improvement bears to the whole frontage of all the lots to be assessed, unless on account of the shape or size of any lot an assessment for a different number of feet would be more equitable.”

By Act No. 39, Pub. Acts 1899 (3 How. Stat. [2d Ed.] § 6073), a section was added to said chapter 8, being No. 22, authorizing a division of special assessments into installments and issuing bonds to defray the cost of the improvement until the deferred taxes were paid, making it, however, optional with the owner of the property to pay the first installment, and have the remainder extended over a series of years, and providing that, if the first installment is not properly paid, the whole amount shall thereupon become due and no extension granted. In Corliss v. Village of Highland Park, 132 Mich. 157 (93 N. W. 254, 610, 95 N. W. 416), it was held that prior to the enactment of said section 22 the law authorized but a single assessment, limited to 5 per cent, of the value of the property. In Corliss v. Village of Highland Park, 146 Mich. 597 (110 N. W. 45), it was held that an assessment made under added section 22, Act No. 39, Pub. Acts 1899, though payable in installments at the option of the owner, was, nevertheless, a single assessment, limited to 5 per cent, of the total value by the general village act. Following these decisions, Act No. 707, Local Acts of 1907, was passed, and the assessment in question was sought to be levied in conformity with said act and the general village law, construed together. This act is entitled :

“An act to regulate the making of special assessments within the limits of the villages of Highland Park, St. Clair Heights, Hamtramck and River Rouge, in the county of Wayne.”

Under said title, it was not only provided that assessments might be made payable in installments, being framed to authorize such a course under Boehme v. City of Monroe, 106 Mich. 401 (64 N. W. 204), and the views expressed in Corliss v. Villose of Highland Park, 146 Mich. 597 (110 N. W. 45), but the act also increased the limit of the tax which might be assessed against property under such proceedings by the following language:

“Sec. 4. Any special assessment, when made in one part and when divided into installments, the aggregate of such installments, exclusive of interest, levied against any one lot or premises, may equal but shall not exceed 25 per cent, of the value of such lot or premises as valued and assessed in the last preceding general village tax roll.
“Sec. 5. Special assessment, when made in one part, and when divided into installments, no installment thereof, exclusive of interest, shall exceed five per cent, of the value of the district as valued and assessed in the last preceding general village tax roll.”

It is apparent that in levying this assessment said Local Act No. 707 was followed and the requirements of the general act were observed, in so far as the amount to be levied and the condition of the property to be assessed permitted. Attention was also paid to, and an attempt made to comply with, the various requirements of all statutory provisions, the combined result of which is an assessment purporting to be according to the foot-front rule and proportionate to the benefits, but in truth violating the letter and spirit of such rule, and imposing an excessive assessment on improved lots in proportion to benefits received.

It is now well settled in most jurisdictions that adjacent property may be specially assessed to defray, in whole or in part, the cost of local improvements by which such property is especially benefited. That doctrine is based for its final reason on enhancement of values.

We have no special constitutional provisions restraining the exercise of legislative power in enacting laws which make provision for ascertaining what property is distinctively and specially benefited by local improvements and directing how the benefits shall be apportioned, so long as they are within the limit of the principle on which the doctrine is founded. By that limit such assessments must be laid and apportioned by the rules of enhanced values and reasonable equality. Provisions of law which make it legally impossible for the assessing officers to apportion the burden of such improvements according to benefits and with proximate equality are said to be “ arbitrary exactions and not a legitimate exercise of legislative authority.” Dillon on Municipal Corporations (5th Ed.), § 1443; Thomas v. Gain, 35 Mich. 155 (24. Am. Rep. 535); White v. City of Saginaw, 67 Mich. 33 (34 N. W. 255).

It was long since held that a special assessment according to street frontage was constitutional and valid.

“It has been decided in this State that an assessment of paving and similar taxes may constitutionally be made in proportion to frontage of lots along the improvement. Williams v. Mayor of Detroit, 2 Mich. 560; Motz v. City of Detroit, 18 Mich. 495; Hoyt v. City of East Saginaw, 19 Mich. 39 [2 Am. Rep. 76]. The idea that underlies statutes for this purpose is, that the benefit to the abutting lots is generally in proportion to the length of their respective fronts, and that, as a rule, this principle of apportionment is more just than any other. There is a basis of truth to this idea, and it is so generally accepted that assessments for street improvements are perhaps now more generally apportioned by the frontage than by any other standard.” Thomas v. Cain, supra.

See, also, Sheley v. City of Detroit, 45 Mich. 431 (8 N. W. 52). It is clear from the various provisions of our general law relative to special assessments in villages that the legislative intent was an application of the foot-front rule, requiring each owner to pay a share of the cost proportionate to the number of feet his property fronted on the line of the improvement, and in any case where the rule worked an injustice it was to be modified, as to that particular case, not by reducing the amount per foot, but by reducing the number of feet. The act provides that the expense of such work may be defrayed by special assessment upon lots abutting upon the improvement “in proportion to the number of feet front upon the street.” If, owing to the size or shape of any lot, this works an injustice, the authorities “may assess such lot for such number of feet frontage as in their opinion would be just.” By section 2837, 1 Comp. Laws (3 How. Stat. [2d Ed.] § 6058), this method of assessing exceptional lots at the same rate per foot for a different number of feet frontage is again prescribed in these cases where equitable considerations demand a reduction. The whole tenor of the law upon that subject is to maintain an equal foot-front assessment on all property, equitable and proportionate to benefits, with a discretion given the assessing authorities to assess for a less number of feet, but at the regular price per foot in cases where justice and equity demand it. In this case such discretionary power was not exercised. The inequality of assessment does not arise because of the peculiar shape or size of any lot. All lots were assessed according to their actual frontage upon the street, but at a varying amount per foot. This was not done in the exercise of discretionary power given the assessing officers to vary the rule in special cases to avoid inequalities and inequities, but was in compliance with mandatory provisions of said Local Act No. 707, which prohibits a special assessment against any lots exceeding 25 per cent, of their assessed valuation, irrespective of relative equities or proportionate benefits from the proposed improvements. This is subversive of the basic principles of special assessments according to benefits, unless construed to mean that in no case can such an amount be assessed against a district for improvements as would result in the proportion against any particular lot exceeding 25 per cent, of its assessed valuation. It cannot be disputed that in levying the amount proposed in this case a compliance with the requirements of said Local Act No. 707 results in an unequal assessment, which imposes a heavier proportionate burden on improved than on unimproved property, though equally benefited. The testimony shows that the village of Highland Park is making a rapid growth, that several houses had been built after the last general assessment roll was made and before it was proposed to levy this special assessment, and that others were in contemplation. The method of assessment followed in this case puts a premium on those who contemplate, and are preparing to make, improvements on their property, waiting until after the general assessment roll is completed. Should they immediately thereafter make such private improvements, even greater than those on adjoining property, they thereupon receive and enjoy equal or greater benefits from the public improvement, but pay comparatively small and disproportionate amounts therefor.

Such facts standing alone do not establish the invalidity of the assessment, but they graphically illustrate that benefits, or enhanced values, from public improvements, are not to be determined by the buildings upon, or use made of, the property at the time the assessments are being levied. The benefits, rather than the value of the property, govern in apportioning cost of local improvements, and the use made of the property by the owner, or contemplated by him, or whether he may ever put it to any use, is not the test. Grand Rapids School Furniture Co. v. City of Grand Rapids, 92 Mich. 584 (52 N. W. 1028); Powers v. City of Grand Rapids, 98 Mich. 393 (57 N. W. 250); Lawrence v. City of Grand Rapids, 166 Mich. 134 (131 N. W. 581). The discretion vested by the general law in the assessing body to vary the foot frontage assessment can only be exercised to bring about equitable results in cases of peculiar shape and size of lots. The provisions of section 4 of Act No. 707, not only restrict their discretion in that particular, but compel an assessment which tends to inequitable results. The principles applicable to foot-front assessments have been stated in numerous authorities in varying language:

“Like general taxes, special assessments are enforced proportional contributions.” “ Laws may justly be made providing that under suitable and equitable regulations those common interests shall be so managed that those who enjoy the benefits shall equally bear the burden.” “ The levying of a special assessment is an exercise of the taxing power and requires that the basis of apportionment upon the property subject to assessment shall be uniform.” “ The apportionment should be such that the amount paid by one person or piece of property shall bear some reasonable relation to the amount paid by another in the assessment district or community where the burden is to be borne.” Dillon on Municipal Corporations, §§ 1430-1433; Wright v. City of Boston, 9 Cush. (Mass.) 233; Chaffee's Appeal, 56 Mich. 244 (22 N. W. 871).

We are of opinion that the assessing officers painstakingly formulated the questioned assessment in conformity with the statutes, so far as their somewhat conflicting provisions permitted, and that the manifest inequalities are imputable to the requirements of said Local Act No. 707. This renders it incumbent on the court to consider the objections launched against the constitutionality of said act.

As already intimated, results which follow compliance with certain requirements of the act so tincture the law with the essence of unconstitutionality as to render it invalid. The specific and sweeping objections urged against its validity are stated in the bill of complaint as follows:

“(1) Act No. 707 of the Public Acts of 1907, entitled ‘An act to regulate the making of special assessments within the limits of the villages of Highland Park, St. Clair Heights, Hamtramck and River Rouge, in the county of Wayne,’ is in contravention of the Constitution of the State of Michigan (article 4, § 20, of 1850; article 5, § 21, of 1909) in the following particulars:
“ (2) Said act by its title does not purport to amend or repeal any provisions of the general village laws otherwise applicable to the villages enumerated, while section 7 of said act does amend or repeal section 5 of chapter 9 of the general village act (section 2856, 1 Comp. Laws).
“ (3) Said act by its title purports to be an act for the regulation of the making of assessments provided by the laws of the State, while section 7 of the act undertakes to raise the limit of taxation of the villages named, and to authorize and empower the villages named to double the amount of taxes that may be raised in any one year, and, in the event of a special assessment, to pay for the property taken for public use. Section 7 removes all limit to an amount that may be raised by special assessment in any one year.
“(4) Because there is nothing in the title to indicate that any new or increased power of taxation was to be granted.
“ (5) Because there is nothing in the title to indicate that increased power to borrow money and issue bonds was to be granted by the act.
“ (6) Because said act embraces seven separate objects, viz., to amend chapter 8 of the general village law relative to assessment. To repeal section 5 of chapter 9 of the general village law relative to ‘finance and taxation,’ and to substitute section 7 therefor. To provide new power in the matter of borrowing money and issuing bonds. To regulate the making of special assessments in the village of Highland Park. To regulate the making of special assessments in the village of St. Clair Heights. To regulate the making of special assessments in the village of Hamtramck. To regulate the making of special assessments in the village of River Rouge.”

These reasons are copied almost verbatim from the answer and cross-bill filed by defendant in Central Bitulithic Paving Co. v. Village of Highland Park, reported in 164 Mich. 223 (129 N. W. 46, Ann. Cas. 1912B 719). In that case the village was defending against a contract for paving, and among other defenses strenuously contended against the constitutionality of said Act No. 707. The case was decided in favor of defendant on other grounds which fully disposed of the controversy, and, under the rule which obtains in such cases, the constitutional question was not considered or passed upon. We do not conceive that the village is estopped, either in law or in equity, from attempting to sustain the statute in question in this suit by reason of its invalidity having been urged in behalf of the same defendant in some previous litigation, but the circumstance is historically interesting, and the brief filed by counsel for the village in that case on the constitutional question is useful, instructive, and convincing. It was the opinion of the learned circuit judge that said act was invalid for the reason that it embraced more than one object, and objects were embodied in the act not expressed in the title.

It is to be observed that this act relates to, and proposes to amend, the charters of four separate villages, having their existence under four distinct charters. The village of Highland Park was incorporated under Act No. 371, Local Acts of 1889, the village of River Rouge was incorporated by the board of supervisors of Wayne county in 1899, the village of Hamtramck by the same authority in 1901, and the village of St. Clair Heights by the same authority in 1903. It is contended that all these villages, being adjacent to the city of Detroit, had been connected with its water and sewer systems by some arrangement previously made with the city, and are in a different position from other villages, constituting a class by themselves. While these villages adjoin the city of Detroit, they do not all adjoin each other, and we are unable to see how their relations to the city of Detroit have any bearing upon their relations with each other. Each necessarily made its distinct and individual arrangements with the city in order to get the sewer and water connections, and, as far as streets and street improvements are concerned, we do not discover anything which suggests a distinction between them and other villages throughout the State. No distinctive community of interest between them is shown to exist, and their separate charters make them distinct and independent municipal corporations, each working out its own development according to its own methods and policy. Provisions requiring the object of an act to be expressed in its title, and limiting the act to one subject, are embodied in the constitutions of many of our States. The importance of such provisions has been discussed and emphasized in variant language in various jurisdictions. In the early case of People v. Collins, 3 Mich. 384, Justice Pratt dwelt upon the importance of a strict observance of those provisions in quaint but emphatic language, which has been approved and followed since by other courts, to the effect that each general subject of legislation must have its separate bill, so that it will stand or fall on its own merits. People v. Mahaney, 13 Mich. 481, goes more fully into the subject, and points out that a title may be general in its terms covering necessarily connected and cognate matters incident to one general subject, and need not go into, the details of such proposed legislation. As in point here Justice Cooley, who wrote the Mahaney Case, said in People v. Denahy, 20 Mich. 349, in which an act providing for the construction or improvement of three separate highways was held unconstitutional :

“The three objects are as separate and distinct as the three great lines of railroads crossing the State, and the same arguments which might be advanced in support' of this act would support also an act which would single out those three railroads for special and peculiar legislation, in respect to which the roads have no necessary connection. A combination of that description would at once be pronounced unconstitutional by general consent; but it would not differ at all, in principle, from the present act, in which the combination of objects is equally apparent and equally unnecessary for any proper purpose of legislation. The only difference there could be in two cases would be that in the case of a combination of interest among powerful corporations to secure favorable legislation on their behalf, a purpose to evade the constitutional requirement would generally be very apparent, while in this case we do not imagine it to have existed at all; but the question of violation of the Constitution is not a question of intent.”

Incorporating distinct municipalities under one act was held by the supreme court of Georgia unconstitutional in King v. Banks, 61 Ga. 21. The constitution of that State provided: “Nor shall law or ordinance pass which refers to more than one subject-matter or contains matter different from what is expressed in the title,” being, in that particular, substantially as our own. The legislature of Georgia passed an act incorporating the two towns of High Shoals and Belton. In holding the act invalid, the court cited and quoted from Ex parte Conner, 51 Ga. 571, in which it was held separate military companies could not be incorporated under one act, as follows:

“ Jqdge McCay said in delivering the opinion of the court:
“ ' This case has for its avowed purpose the creation of three separate corporate bodies, and, as we think, comes exactly within the intent and scope of this prohibition.’
“And he adds that the intent was to prevent log-rolling, or combining the strength of different measures to carry all through when one alone might fail. * * * We think that the principle ruled in that case covers this. If to incorporate more than one military company with the grant of certain privileges be unconstitutional, because there is more than one subject-matter in the act, we cannot see how to incorporate two towns with greater powers and privileges * * * can be upheld.”

If to incorporate separate villages by one act is unconstitutional, it is equally so to amend the separate charters of existing,villages. We conclude that under the authorities cited, Act No. 707 embraces in its title four distinct objects by proposing to regulate the making of special assessment in four separate villages, thereby amending their four several charters.

The act increases the power of taxation by raising the limit of special assessments from 5 per cent, to 25 per cent, of the assessed valuation, and grants the right to issue bonds therefor, until the special assessments are paid. While the word “regulate” has been given a comprehensive meaning, and construed to signify both government and restriction, thereby including in an act all subjects germane to the object named, it does not so much imply creating a new thing as arranging in proper order and controlling that which already exists. United States v. Harris, Fed. Cas. No. 15, 315. In this case the power to make special assessment to a certain amount already existed and the method of doing it would be a regulation. To increase that amount would be a new thing. But, even if “ to regulate ” could be construed to include the power to increase, the right to borrow money and issue bonds is distinct from, and in no sense pertinent or germane to, making special assessments.

We are constrained to hold that the conclusions reached by the learned circuit judge are sound and unavoidable.

The decree is affirmed, with costs.

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

Bird, J. I concur in the result reached, but am of the opinion that the title of the act is valid.


author: Ostrander, J.

text:
    GARFIELD v. LAPHAM.
    1. Master and Servant — Contributory Negligence.
    Where plaintiff, who was injured by having his hand caught in a corn husking machine, placed his hand dangerously near to the machinery, for the purpose of cleaning out the space before the rollers thereof, knowing that it was dangerous to put his hand there, and having been instructed to use a stick for such purpose, his testimony that a person, who, defendant had informed him, would act as his instructor in working about the machine, repeatedly used his hands in a similar manner for the same purpose, tended to negative the claim of contributory negligence and warranted the court in submitting the point to the jury.
    2. Same — Guards—Evidence.
    Where the evidence did not clearly disclose that the accident would not have been prevented if the machine had been properly guarded so as to protect the operator, and a proper device might have rendered it unnecessary to perform the work that plaintiff was doing when he was injured, the question whether the lack of a guard caused the injury was properly submitted to the jury.
    3. Same — Charge—Trial.
    The court was not in error in charging the jury that it was for them to determine whether plaintiff kept the space before the rollers clear in the ordinary way, or whether he was unduly negligent.
    4. Same — Trial—Saving Questions eor Review.
    Upon an objection to a question as leading, counsel are not permitted to review its competency.
    Error to Oakland; Smith, J.
    Submitted October 9, 1912.
    (Docket No. 12.)
    Decided December 17, 1912.
    Case by Avery O. Garfield, by next friend, against Floyd Lapham for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      William T. Hosner (Erskine & Lungerhausen, of counsel), for appellant.

      Felton & McGee, for appellee.
   Ostrander, J.

Plaintiff, a young man in his twentieth year, was injured December 16,1910, in operating a corn-husking machine; one of his hands being drawn into revolving rollers. He alleges, in the first count of his declaration, that the machine at which he worked was not safeguarded as required by Act No. 124, Pub. Acts 1907 (2 How. Stat. [2d Ed.] §§ 4117, 4118), and that he was not instructed and warned concerning the proper method of operating the machine and the dangers attending its operation. In the second count he alleges only the violation of the statute duty to safeguard the machine. He recovered in the court below a verdict and judgment against his employer for his damages. A number of errors are assigned, and the questions presented in the brief are:

(1) Whether the court should have directed a verdict for defendant on the ground that plaintiff was guilty of negligence contributing to his injury.

(2) Whether the fact that the machine was not guarded as required by the statute (Act No. 124, Pub. Acts 1907) was in any sense the cause of the injury.

(3) Whether the court erred in his charge in saying: “ It is for you to say whether he kept that space clear in the ordinary way, or whether he was unduly negligent, such as to constitute contributory negligence.”

(4) Whether it was error to permit plaintiff to state, in answer to a question, that he was exercising care when clearing away, with his hands, material which had accumulated in front of the rollers.

It does not appear to have been claimed that the machine had the safeguards required by the statute, whatever they are. In the charge to the jury the court said:

“Of course, it is a question for you as to how this machine was equipped, but if I recall the argument, statements, or admission of one of the counsel for the defendants this morning, it was to the effect that it was conceded that this machine contained snapping rollers, that they were dangerous rollers, and that this particular machine, spoken of as the Lapham machine, was not equipped with any safety devices. So that if I am correct in quoting counsel, you need not spend but little time on that branch of the case.”

It does not appear that any protest was made to this or any correction of the statement asked for. Error is assigned upon that portion of the charge just set out in connection with a statement of the legal effect of the fact stated. Therefore, although it is said in the brief, “we believe the equipment of the machine complied with the statute in question,” we find neither exception nor assignment of error which raises the question whether the statute was in fact violated. It was assumed that it had been violated, and its violation constituted the negligence of defendant relied upon by the plaintiff. For this reason we do not discuss certain rulings which permitted testimony to be given to show how other machines are equipped.

The machine had two sets of rollers, called, respectively, “snapping rollers” and “husking rollers.” The snapping rollers were nearest the operator and performed the function of seizing the cornstalks as they were carried to the machine by the automatic feeder. The machine was operated by steam power. Stalks and débris of various sorts collected in front of the snapping rollers, and plaintiff removed or straightened them with his hands. It is admitted that it is hazardous to do this; the danger that the hands will be caught in the rollers being very great. In doing it, plaintiff was caught. Reading'the testimony has left much doubt whether, notwithstanding there was a breach of statutory duty imposed for the protection of a class to which the plaintiff belonged, what happened to him should not be charged to his own want of ordinary care. He began to feed the machine in the afternoon of December 14th, worked that afternoon and the next day, and was injured in the forenoon of December 16th. He fed the machine about two-thirds of the time. The remainder of the time he was cutting bands. While he was cutting bands, another man fed the machine, who was the person designated by defendant to instruct plaintiff. Plaintiff’s testimony tends to prove that in the ordinary operation of the machine frozen stalks, ears of corn, and refuse would accumulate on the table, interfering with the operation of the machine. Asked the method employed to clear it away, he answered :

“ By means of a stick, if I could get them out that way; but the biggest share of the time by hand; pulling the stalks out of the top to get them away.”

There was a space between the end of the carrier and the snapping rollers of about a foot. There was no way to stop the rollers without stopping the machine. In feeding the machine, plaintiff stood from 3 to 3£ feet from the rollers, which were visible and were rapidly revolving. There was a hood over them and some covering below them, leaving an opening to the rollers about four inches wide. Through this space he could see the rollers, and he knew it was dangerous to put his hand in there or anywhere near the rollers. In clearing away the débris he leaned forward to reach, with his hand, the space before the rollers. Obviously, it was dangerous for plaintiff, with the machine in operation, to approach his hand to the rollers, and he knew it was dangerous. Upon the whole, the testimony is quite convincing that plaintiff was warned of the danger of getting his hand in the rollers, that sticks were furnished with which to clear the space he was trying to clear with his hand, that he was told to use them, and that he himself had once said that he would not put his hands “ in there ” if nothing ever went through. However, there was no motion for a new trial, and no question of the weight of the evidence is before us. The testimony which we think warranted submitting the case to the jury is that of plaintiff and of the person whom he says defendant presented as his instructor, to the effect that the instructor himself used his hands when it was most convenient to clear the space before the rollers. That is to say, plaintiff did what he saw his instructor do, in the first instance, and repeatedly thereafter, as he took plaintiff’s place at the machine. Although the court instructed the jury that as the cause was tried it was based upon the second count of the declaration, which alleges no failure of the duty of defendant to instruct the plaintiff, the fact that defendant turned plaintiff over to another for instruction, and that plaintiff did what he saw his instructor do, and in doing it was injured, is evidence tending to negative his own want of ordinary care.

We cannot tell whether, if the machine had been properly guarded to prevent injury to operators thereof, the particular injury would have occurred. Clearly, the case is in no respect similar to Woods v. Paper Box Co., 167 Mich. 514 (133 N. W. 482), cited by appellant. It is probable that no device which defendant could be reasonably required to provide could prevent plaintiff, or any other person, from putting his hand into the rollers and in that way being injured. In the case referred to, there were guards designed to protect an operator using the machine in the customary way. Plaintiff in that case was not using the machine in the customary way, and, her finger being exposed, herself set the machine in motion. In the case at bar, the witnesses agree that in some manner what plaintiff was doing must be done. He did it— the necessary thing to be done — as he had seen his instructor do it. A proper device might have made unnecessary the doing of that which both of them did.

What has been said answers the criticism which is made of the charge to the jury.

The objection made to the question which was asked was that it was leading. Counsel say that in overruling the objection the court said, “He can give his opinion about it,” thereby .indicating that the objection was understood to be to the competency of the testimony. We think the conclusion is not warranted. The court was not advised that counsel regarded the testimony as incompetent, or that the exception which was taken raised the question of its competency.

We are satisfied that no reversible error is made to appear, and that the judgment should be, and it is, affirmed.

Moore, C. J., and Steerb, McAlvay, Brooke, Kuhn, Stone, and Bird, JJ., concurred.


author: Kuhn, J.

text:
    STEKETEE v. NEWKIRK.
    1. Cancellation of Instruments — Fraud—Undue Influence.
    Evidence held to show no fraud or undue influence of complainant’s husband in procuring from complainant a deed of real property to himself and her jointly.
    2. Evidence — Physicians—Privilege.
    It is necessary to the privilege created by 3 Comp. Laws, g 10181, 5 How. Stat. (2d Ed.) g 12826, that the information offered as evidence was obtained by the witness in his professional character as a physician and was necessary to enable him to prescribe for the patient as a physician or to do any act for him as a surgeon: his testimony as to the patient’s general health and mental condition is admissible.
    3. Same — Attorney and Client.
    Testimony of an attorney, as to any matters not communicated to him in confidence by his client, is admissible in evidence.
    4. Same — Trusts.
    Letters written to a trustee of the estate of complainant’s father, in which she had a beneficial interest, were not privileged, in the absence of evidence to show that such trustee was complainant’s attorney.
    5. Deeds — Husband and Wife — Estates by Entireties.
    The deed creating an estate by the entireties was not invalid because of the fiduciary relation existing between husband and wife.

      Appeal from Kent; Perkins, J.
    Submitted October 10, 1912.
    (Docket No. 20.)
    Decided December 17, 1912.
    Bill by Anna L. Newkirk, Jacob Steketee, special administrator, being substituted after her death as complainant, and Margaret H. Billinghurst being admitted as a joint complainant, against Hawley A. Newkirk and others for the cancellation of certain deeds. From a decree for defendants, complainants appeal.
    Affirmed.

      Thomas P. Bradfield (.Kleinhans & Knappen and Chas. A. Watt, of counsel), for complainants.

      Wilson, Wilson & Bice (Albert Gf. Welch, of counsel), for defendants.
    The bill of complaint in this cause was filed October 12, 1908, by Anna L. Newkirk against Hawley Newkirk and Jule F. Brower, for the purpose of setting aside two deeds of real estate in the city of Grand Rapids in this State, made in February, 1892, on the grounds of alleged undue influence and false representations. Hawley A. Newkirk and Anna L. Newkirk were husband and wife. She was one of the daughters of George B. Morton, who died in 1876, leaving a widow and two daughters, Ada B. Morton (Hughart) and Anna L. Morton (Newkirk). His property, which consisted of real estate, went, under his will, as follows: One-third to the widow in fee, and one-third in trust to each of the daughters; it being provided that the daughters should receive the income during their lives and at their death the property was to go to their issue in fee. The widow died in 1881, and the one-third of the property left her by will went, in equal shares in fee to the two daughters, giving each of the daughters one-sixth of the property in fee simple, in addition to the income from one-third of the property given each of them by the will of their father. Mrs. Anna L. Newkirk had been previously married to William Hofstra, and they had two children, Laura Hofstra and Margaret Hofstra. Laura Hofstra is now deceased, and Margaret Hofstra since married, and is the complainant Margaret H. Billinghurst. There was one child as the result of the marriage of Mr. and Mrs. Newkirk, born on November 6, 1892, and being the defendant Abigail N. Hillerman. Mrs. Newkirk died in 1909, leaving a will appointing Peter Doran and Blanche M. Butler executors and trustees. Objections having been filed to the allowance of the will, Peter Doran was appointed special administrator, and was substituted as complainant. Peter Doran died on the eve of the trial, whereupon Jacob Steketee was appointed as special administrator, and he, in turn, substituted as complainant.
    Upon the death of Mrs. Newkirk in 1909, the one-third interest in the property, the income of which she had for life, became the fee-simple property of her two daughters, the complainant Mrs. Billinghurst and the defendant Mrs. Hillerman; each owning one-sixth. The title to the property stood as follows: One-third in Ada B. Hughart for life; at her death fee to her heirs. One-sixth in Ada B. Hughart in fee. One-sixth in Margaret Billinghurst in fee. One-sixth in Abigail W. Hillerman in fee. One-sixth in defendant Hawley A. Newkirk, surviving joint tenant under the deed which it is sought to set aside in this suit. It appears that Mrs. Newkirk, after separation from her first husband, from whom she was divorced, and after her remarriage, became fearful that some of her property might go to her former husband. This is evidenced by a letter which she wrote to Mr. Blair, in the city of Grand Rapids, on April 2, 1891, shortly after her marriage to Mr. Newkirk:
    “I don t intend to let the little I have got ever pass into Hofstra’s hands, and shall either deed it now to Hawley [defendant Newkirk] or fix it in my will so that, in case the children die before they are of age and I die before them, Mr. Hofstra cannot get what I have.”
    On January 6, 1892, Mrs. Newkirk called upon Mr. Wolseley, an attorney at law in the city of Chicago, for the purpose of having deeds drawn to carry out this intention. The result of this call was that Mr. Wolseley drew deeds from Mr. and Mrs. Newkirk to the defendant Brower, who was a clerk in his office, and deed from him back to them, an undivided one-half to each, which Mr. Wolseley stated was the method used in Illinois for a wife to convey an interest in property to her husband. On January 18th of the same year, Mr. and Mrs. New-kirk called at the office of Mr. Wolseley and signed these deeds. This was the first time that Mr. Wolseley had seen Mr. Newkirk with reference to the transaction. The deeds were not delivered, but the matter of creating an estate in joint tenancy was discussed. Mr. Wolseley, desiring to examine the law of Michigan on this subject, did not prepare deeds until January 22d, placing the title of the Michigan property in Mr. and Mrs. Newkirk as joint tenants.
    It appears that Mrs. Newkirk owned an interest in two pieces of property in Grand Rapids; one known as the “Morton House property,” and the other as the “barn property.” On February 13th Mr. and Mrs. Newkirk again came to the office of Mr. Wolseley and the deeds were executed, placing the title to the “barn” property in them as joint tenants. On February 24th they again came to Mr. Wolseley’s office, and at this time the deeds were executed placing the title to the undivided one-sixth of the Morton House property in Mr. and Mrs. Newkirk as joint tenants. This was done by Mrs. Newkirk deeding the property to Brower, who immediately deeded this interest to Mr. and Mrs. Newkirk as husband and wife. The deeds were left with Mr. Wolseley, who forwarded them to Grand Rapids to be recorded. Mr. Wolseley took the acknowledgment of the deeds, and he and Henry B. Freeman acted as witnesses. At the time the deeds were executed, the parties resided in the city of Chicago, where Mr. Newkirk has lived ever since. During the first few years of their married life, they lived, at least a part of the time, in the city of Chicago, and then boarded at boarding houses and hotels in Chicago in the spring and fall, and at a summer hotel at Lake Harbor, Mich., in the summer. The winters, from this time on, were spent by Mrs. Newkirk with her daughters in California.
    The bill in this case was filed on October 12, 1908, more than 16 years after the deeds in question were executed. The bill alleges the following:
    “ That prior to the making of the deed heretofore mentioned by your oratrix to said Jule F. Brower, your oratrix was sick and in a very feeble condition, and had so been for a long period of time, to wit, six months; that at the same time your oratrix was with child, and the time of childbirth was very near, and that from the sickness and expected birth of a child her life was despaired of, and she, your oratrix, was in such a feeble, sick and nervous condition as to be mentally incompetent to transact business or care for her property rights in a proper manner ; that while in this condition, and so sick, feeble, and mentally incompetent, the said defendant Hawley A. Newkirk began working upon the fears of your oratrix, and falsely represented to your oratrix that if she should die in childbirth no provision Would be made for their then unborn child, and urged upon her in her then condition to make some temporary arrangement whereby he might properly care for the child, and urged and continually argued with your oratrix to deed her property in the manner above mentioned, so that the property would be jointly owned by your oratrix and the said Hawley A. Newkirk as husband and wife, claiming and representing that by so doing the interest of their then unborn child would be better secured; that he, in consideration thereof, promised and agreed that this arrangement would be but temporary, and that if your oratrix survived the birth of their child he would immediately reconvey all of the aforesaid property to your oratrix, and that she would then own the property the same as before; that the said Hawley A. Newkirk agreed to so prepare the papers and conveyance that she, your oratrix, in the event of her surviving the birth of their child, could, if necessary, compel the re-conveyance to her of said property as he, the said Hawley A. Newkirk, had promised and agreed; that by reason of the continued arguments, importunities, promises, and representations thus made by the said Hawley A. Newkirk, your oratrix was overpersuaded and unduly influenced in her then weak, mental and physical condition, to consent to the transfer of said property and land, as requested by the said Hawley A. Newkirk; that said Hawley A. Newkirk is and was the husband of your oratrix, and that your oratrix relied upon his representation so made, and statements and promises as aforesaid, and believed that the said Hawley A. Newkirk would take such steps and prepare such papers as were necessary to protect the rights and interests of your oratrix; that your oratrix took no part in the preparation of said legal papers, but left the same entirely to her husband, the said Hawley A. Newkirk; and that on the 3d day of February, A. D. 1892, aforesaid, your oratrix was in so weak a condition, both mentally and physically, as to be wholly unable to transact business or understand the business that was transacted, and had no knowledge of the contents of the papers which she signed, except in a vague and wholly insufficient way; that while in such condition, and under the circumstances aforesaid, and relying upon the representation and statements aforesaid, she executed and delivered the deed aforesaid to said Jule F. Brower, and which said deed was obtained by undue influence and at a time when the will and judgment of your oratrix was so impaired by ill health as to, in fact, render the same not the act of your oratrix; *#* that on or about the 6th day of November, A. D. 1892, a daughter was born to your oratrix and the said defendant Hawley A. Newkirk, and that your oratrix continued sick for a long period of time thereafter, to wit, 11 years; that your oratrix subsequently partially recovered her health, but that for a number of years thereafter her daughter, Abbie Newkirk, was in poor health, and your oratrix was obliged to make long trips with their said daughter to California for her health; that during all of this time and up to the time of the filing of this bill of complaint, your oratrix has had the possession of the said land and has received the rents and profits therefrom, and the said Hawley A. Newkirk has never attempted at any time to secure possession of the same nor has he had possession thereof, either legally or constructively; that after partially regaining her health, your oratrix from time to time requested the said defendant Hawley A. Newkirk to reconvey said property to her, as he had before promised, but that the said Hawley A. Newkirk put her off from time to time with excuses and neglected to deed the same to her as promised.”
    No effort was made to serve either the defendant New-kirk or Brower with process, but an attempt was made to bring them in by publication. Proof of publication was filed, and an order entered taking the bill of complaint as confessed by both defendants. On March 2, 1909, the deposition of Mrs. Newkirk was taken in California ex parte and without any notice to Mr. Newkirk. A decree was made eight days later in accordance with the prayer of the bill. The description of the property in this decree was erroneous, and an amended decree was made April 20, 1909. Mrs. Newkirk died on May 31, 1909, and Mr. Newkirk learned of the decree a few days before her death. He thereupon filed a petition asking permission to appear and defend, and the decree was vacated, in accordance with section 496 of the Compiled Laws of 1897 (4 How. Stat. [2d Ed.] § 12014), and an order made permitting defendants to appear and defend. Both appeared and filed answers.
    The answer of the defendant Newkirk denies all the material allegations of the bill of complaint. It denies that he made to her any of the representations charged in the bill and that he asked her to give him any interest in the property. It states that their child was not born until November 6, 1892, and that the deeds were made in February, 1892, and that at the time the deeds were made Mrs. Newkirk was—
    “ In her normal condition and made the deeds because she thought it was advisable that the property covered by the said deeds should be vested in herself and husband jointly.”
    The defendant Brower filed a separate answer, which showed that he acted simply as an intermediary in placing the title in Mr. and Mrs. Newkirk jointly, and denies, so far as he is concerned, all the charges of fraud and misrepresentation made in the bill of complaint. The defendant Abigail N. Hillerman, being a minor, refused to join as a party complainant, and Harry F. Johnson was appointed her guardian ad litem and filed the usual infant’s answer, submitting Mrs. Hillerman’s rights to the protection of the court.
    Upon the trial, the complainants offered the ex parte deposition of Mrs. Newkirk, taken before the defendants appeared in the case. The defendants objected to the admission of the deposition, and moved that it be suppressed, and the court made an order to that effect, and a motion has been made in this court to strike this deposition from the record. The complainants attempted to make out their case by the testimony of Mrs. Billinghurst and Mary E. Davies, formerly a servant of Mrs. Newkirk. The principal evidence of the defendants consisted of the depositions of Mr. Brower, Mr. Wolseley, Judge Freeman, Dr. Bailey, the family physician, and documentary evidence. After hearing all the testimony the circuit judge dismissed the bill, and the complainants have appealed to this court.
   Kuhn, J.

(after stating the facts). It is contended by appellants:

(1) That the deposition of the original complainant should not have been suppressed by the circuit judge at the rehearing of the case.

(2) That the testimony of Dr. Bailey as to matters which he learned in his professional relations was incompetent.

(3) That the testimony of Mr. Wolseley, the attorney who drew the deeds, was incompetent, as involving negotiations between client and attorney.

(4) That the letters offered in evidence by the original complainant to Mr. Blair were inadmissible as privileged communications between client and attorney.

(5) That the conveyance should have been set aside because of the fiduciary relations sustained by the parties as husband and wife, and on the grounds of undue influence, fraud, misrepresentation, and over-persuasion, and that, in addition, there was an assent by silence on the part of the defendant Newkirk in all conversations with his wife regarding this transaction, and that equity will not permit him to claim any different or other agreement or state of facts than was understood and claimed by the complainant during her lifetime in his presence.

Counsel for the complainants urge strongly that a promise to reconvey was made by defendant Newkirk and that it was never carried out. It seems to us that upon this phase of the case a careful examination of the conduct of Mrs. Newkirk during the period elapsing from the time she executed the deeds up to the time she filed her bill is very material. The testimony discloses that, notwithstanding the claimed promise to reconvey and Mr. New-kirk’s failure to carry it out, on April 15, 1893, she executed a very broad power of attorney to her husband, intrusting him with the uncontrolled direction of her affairs, and it is not claimed that the power was executed by Mrs. Newkirk under duress, but was apparently her free and voluntary act. From March 9, 1897, to March 19, 1904, letters were offered in evidence, written by her to her husband, in which she expresses confidence in him. On May 27, 1899, seven years after the execution of the conveyance in question, Mrs. Newkirk’s confidence in her husband was further shown by appointing him executor of her estate. On March 19, 1904, 12 years after the execution of the deeds, her confidence is further displayed by a letter in which, she consults him in relation to a proposed transaction in regard to this property, and in which she says:

“ What do you think ? If it’s all right, and you think best, you better sign also, and send it to them. Otherwise destroy the option.”

There is also a postal card in the record, dated May 28, 1907, containing a photograph of Mrs. Newkirk. Considerable discussion has been had with reference to the date when this card was sent, it being claimed it was sent in 1901, and the card has been submitted to us for examination. The year is stamped on the postage stamp, and while the “ 7 ” is not very plain, a close inspection satisfies us that it is a “ 7.” Moreover, the stamp is a special stamp printed by the government in commemoration of the Jamestown Exposition, and has on it, “ Commemoration Series, 1907.” There is nothing in the message on the card which would indicate any estrangement between herself and her husband. She concludes:

“ God bless and keep you many years. Yours, Anna.”

It seems to us that the conduct of Mrs. Newkirk during the time that elapsed from the time she gave the deeds in question up to the time that she filed her bill of complaint is entirely inconsistent with the theory of complainants that the defendant Newkirk had made a promise to re-convey and had failed to carry it out. As counsel in their brief contend:

“ Evidence derives its probative value from its inherent probability of truth. The spontaneous word or action, which is part of the res gestee of a transaction, has greater probative force than a subsequent interested, perhaps studied, self-serving declaration. Eor that reason Mrs. Newkirk’s correspondence and the circumstances which are the res gestee of the execution of these deeds are more persuasive than her declarations.”

The evidence introduced to substantiate the allegations of the bill was the testimony of Mary E. Davies and the complainant Mrs. Billinghurst. It appears that when her mother married Mr. Newkirk Mrs. Billinghurst was 8 years old, and 9 years old when her sister, Mrs. Hillerman, was born. She attempts to testify as to. conversations which she claims to have overheard at the time when she was between the ages of 9 and 15 years. The witness Mary E. Davies did not enter the employ of Mrs. Newkirk until 1896, which was four years, at least, after the birth of Mrs. Hillerman. The trial judge saw and heard both these witnesses, and had an opportunity of judging of the reliability of the testimony.

The testimony of Dr. Bailey was confined to the state of Mrs. Newkirk’s general health and mental condition. He was not examined as to any information gained from Mrs. Newkirk, or as to any communication with her. It does not appear that what he stated on the stand was information which “was necessary to enable him to prescribe for her.” This is necessary, in order to bring it within the prohibition of section 10181, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12826), which provides:

“ No person duly authorized to practice physic or surgery, shall be allowed to disclose any information which he may have acquired in attending any patient, in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.”

We think the testimony was properly admitted. 4 Wigmore on Evidence, § 2383; Campau v. North, 39 Mich. 606 (33 Am. Rep. 433); Dittrich v. City of Detroit, 98 Mich. 245 (57 N. W. 125); Lincoln v. City of Detroit, 101 Mich. 245 (59 N. W. 617).

The testimony of Mr. Wolseley was also admissible. While the rule is that confidential communications between attorney and client cannot be disclosed by the attorney without the consent of the client, or, after his death, of the personal representative of the client, Mr. Wolseley’s testimony did not come within this rule, because he was not asked and did not state any communication between himself and Mrs. Newkirk.

The letters written to Mr. Blair were objected to, because it was claimed that they were privileged communications between client and attorney. Mr. Blair was acting as trustee under the will of her father, George B. Morton, and she was beneficiary under the will. An examination of the letters does not disclose that the relation of attorney and client existed, nor is there any evidence in the record to show that relationship.

Without passing upon the questions of whether or not the circuit judge should have considered the deposition of Anna L. Newkirk, whether the motion to suppress should be granted in this court, or whether the testimony of Hawley Newkirk was improperly admitted, for the purpose of this ease, giving the deposition all the probative force it is entitled to, it would not, in our opinion, change the determination of the issues here involved.

After carefully going over the record in this case, considering the exhaustive briefs of the solicitors for complainants, but being of the opinion that the arrangement made between Mrs. Newkirk and her husband does not do violence to justice and equity, we decline to disturb the determination of the lower court.

The decree is affirmed, with costs.

Moore, C. J., and Steers, McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.


author: Per Curiam.

text:
    SOLOMON v. LOUD.
    New Trial — Juey—Misconduct of Counsel.
    On motion for a new trial, the circuit court should have set aside a verdict and judgment for defendant, when it was shown that defendant and his oounsel hired and paid one of the panel, who was not serving on the jury, to watch plaintiff and his oounsel and the jury, and gave him money to spend with the jurors; since the tendency of such misconduct was to bring the court and its proceedings into disrepute, whether or not it affected the final result.
    Error to Iosco; Connine, J.
    Submitted October 14, 1912.
    (Docket No. 58.)
    Decided December 17, 1912.
    Rehearing denied March 20, 1913.

      Case by Selig Solomon against H. Kimball Loud for fraud and deceit. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Jahram & Rawden (Joseph H. Cobb, of counsel), for appellant.

      Henry, Henry & Henry, for appellee.
   Per Curiam.

We consider only whether the trial court ought to have set aside the verdict of the jury and granted a new trial upon the motion of the plaintiff and appellant. In denying a new trial the court, among other things, said:

“ The remaining grounds for a new trial are based upon the alleged misconduct of the defendant and his attorney in hiring one Joseph Eaton, a juror, ‘ to watch the jury ’ and plaintiff and his counsel. From the affidavits submitted with the motion, and from what came to the knowledge of the court immediately after the trial, I find the facts connected with this incident as follows: Joseph Eaton was a juror, and was called on the jury in this case, examined and excused. While this trial was in progress, the attorney for the defendant employed Eaton ‘ to watch ’ the jury and the plaintiff and his counsel, to see that they did not tamper with the jury, under a promise to pay Eaton well for his services. Eaton told the attorney that if he, Eaton, was to be ‘ around with the jury,’ he would need to spend some money, that he could not be ‘ around ’ with them, and not spend any money. Whereupon the attorney called the defendant to them and told him to let Eaton have some money; the defendant asked what it was for, and the attorney replied, ‘ Eaton knows, you pay him some.’ Whereupon the defendant gave Eaton #2. It does not appear that the defendant knew what this money was for. This seems to be all the money that was paid to Eaton; what he did with this money does not appear. It does not appear that Eaton spent any money with the jury, or that he approached them in any way about the case, or endeavored to influence them, or tampered with them. The action of defendant’s attorney in regard to juror Eaton was improper, and detrimental to the profession. Had it come to the knowledge of the court during the trial, a prompt and vigorous investigation would have been made, and the matter dealt with as it deserved. But I am unable to find that this misconduct affected the jury on their verdict.”

The facts so found are not in a material way disputed.

We do not impute to defendant’s counsel the purpose to influence the jury or to obtain a verdict or an advantage by unfair means. We attribute the conduct described to thoughtlessness rather than to improper motives. But it is apparent that, if the practice of hiring jurors to watch jurors is entered upon in trial courts, an intolerable condition must result- To say that in the particular case the hired juror did nothing to influence the jurors he undertook to watch and whose improper conduct he promised to report does not answer the indictment presented by the facts. The indictment is that an officer of the court charged equally with the court with the duty of administering the law is guilty of establishing commercial relations with a juror with respect to proceedings in court, knowledge of which relations must inevitably bring the court into disrepute and cause the integrity of its proceedings to be suspected. These consequences are not affected by the purpose of the attorney or of the juror employed by him. The evil thing was done when the contract relations affecting proceedings in the court were established between the attorney and the juror. The effect of the misconduct upon the determination of the particular case is not apparent. But when misconduct, calculated, if not intended, to have a generally pernicious effect upon legal proceedings, is traceable to the prevailing party in such proceedings, we are of opinion that reason appears for treating the triál as a mistrial and for setting aside the judgment.

The judgment is therefore reversed, and a new trial ordered.


text:
    PEOPLE’S SAVINGS BANK OF SAGINAW v. McKAY.
    1. Mortgages — Parties—Equity—Demurrer—Foreclosure of Mortgages.
    In a suit to foreclose a mortgage, the husband, who claimed a homestead interest in the premises, occupied by the mortgagor and himself, was a proper party to the bill of complaint, although he did not join in executing either the mortgage or the collateral note; he was not entitled to try the questions involved before a jury on the law side of the court.
    2. Equity — Demurrer.
    Special reasons in matter of substanoe are required by rule to be alleged in a general demurrer. Chancery Rule 9.
    Appeal from Saginaw; Gage, J.
    Submitted October 16, 1912.
    (Docket No. 112.)
    Decided December 17, 1912.
    Rehearing denied February 18, 1913.
    Bill by the People’s Savings Bank of Saginaw against Emma McKay and John A. McKay to foreclose a mortgage. From an order overruling a demurrer to complainant’s bill, defendant John A. McKay appeals.
    Affirmed.

      Walter J. Lamson, for complainant.

      John A. McKay, in pro. per.

   Kuhn, J.

In this cause, the bill of complaint was filed to foreclose a mortgage securing a note made by Emma McKay. John A. McKay, her husband, is made a party defendant, although he did not execute either the note or mortgage, upon the theory that the mortgaged premises constitute the homestead of the defendants, in which he may have some interest or which he may have the right to redeem from the operation of the mortgage. He has demurred to the bill in substance and form as follows:

“ (1) That the bill of complaint herein does not state a case of equitable jurisdiction.
“ (2) That the complainant has not in and by its said bill of complaint made or stated such a case as entitles it in a court of equity to any relief for or against this defendant or either defendant herein touching the matters or any of them contained in said bill.
“ (3) That under the facts alleged and set forth in said bill of complaint the complainant is not entitled to the relief prayed for or to any relief whatever.
“ (4) That the complainant’s remedy under the state of facts set forth in its said bill of complaint is at law.
“ (5) That this demurring defendant is entitled to a trial of the facts alleged in the bill of complaint herein by a jury on an issue framed according to the regular practice of the court in a case at law.
“(6) That the issues raised by the bill of complaint herein are as to this demurring defendant, and as to both defendants, properly triable at law.
“(7) That the proceedings herein are an attempt on the part of the complainant to deprive this demurring defendant, and each of said defendants, of his and their property without due process of law, and are contrary and obnoxious to both the Constitution of the State of Michigan and the Constitution of the United States, particularly the fourteenth amendment of the Constitution of the United States.”

Chancery Rule 9 requires special reasons in matters of substance in a general demurrer, as well as matters of form in a special demurrer, to be set out. The only special reasons given in the demurrer are that the action is triable at law and is an attempt to deprive defendant of constitutional rights, both of which were properly overruled by the trial court.

The order overruling the demurrer is therefore affirmed, with costs to the appellee.

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


text:
    HOLCOMB v. SAYERS.
    1. Bills and Notes — Checks—Holder in Due Oourbe — Good Faith.
    Where plaintiff took for collection defendants’ check given to the vendor of a horse purchased by defendants, and being a creditor of the vendor and holding his mortgage on the animal and on other property to secure it, gave him ’550 in cash, and credit for the remainder of the check, but retained the mortgage lien on the horse, etc., plaintiff was not entitled to recover on the check as a holder in due course; and defendants were entitled to defend against an action on the check upon the theory that they had been defrauded and had rescinded the sale by returning the animal.
    2. Appeal and Error — Trial by Court Without Jury.
    Findings of fact made by the court without a jury can only be overturned if there is a total want of evidence to support them or if they are contrary to the undisputed evidence.
    Error to Superior Court of Grand Rapids; Stuart, J.
    Submitted October 15, 1912.
    (Docket No. 67.)
    Decided December 17, 1912.
    Assumpsit by Martin H. Holcomb against Frank P. Sayers and another for the amount of a check. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      Colin P. Campbell, for appellant.

      William B. Brown, for appellees.
   Kuhn, J.

This case was tried before the judge of the superior court of the city of Grand Rapids, who made the following findings of fact and of law:

“ (1) That on May 11, 1910, the defendant Edwin F. Sayers, of Grand .Rapids, went to the residence of one John B. Bagley, who lived about two miles from the village of Pierson, in Montcalm county, for the purpose of buying a horse.
“ (2) That on being shown the horse said Sayers was pleased with its appearance, and, after driving it about a little to try its wind, he stated to Mr. Bagley, in substance, that, if the horse was all right in every way, he would take it at the price demanded, namely, $125, and, on being assured by said Bagley that the horse was ‘ in every way right,’ he purchased the horse then and there, and gave him the check of defendants for $125 in payment to said Bagley.
“(3) That said defendant Edwin P. Sayers then and there relied upon the statement of said John B. Bagley that said horse was ‘ in every way right ’ in making the purchase of said horse.
“ (4) That said horse was brought to Grand Rapids on May 12th, and on the morning of May 13th defendant noticed that the horse could not eat hay, and thereupon they had an examination made of said horse, and found that the horse had decayed molar teeth, which were decayed down to the gums so that the horse could not masticate hay or such foods, and that the horse was not ' in every way right.’
(5) I find that, by reason of said defect in his teeth, the said horse was not fit for the use for which he was purchased, and would require special feed and care in order to be of any service, and that he was practically valueless to defendants.
“ (6) I find that said horse was on May 16 th returned to plaintiff’s barn on his premises near Pierson, and a written statement was left with Mr. Bagley’s wife that the horse was of no value to defendants, as he could not eat hay, and said horse was put into the barn by permission of plaintiff’s wife, and left there, and has been retained by plaintiff ever since, or at least, has never been returned to defendants.
“(7) I find: That said Bagley after receiving said check on May 12th indorsed his name on the back of it and took it to the plaintiff, his near neighbor at Pierson, and handed it to him for collection. Plaintiff often acted as banker for his neighbors in the village and attended to such matters, as there was no regular bank in that village, and the plaintiff had loaned money to said Bagley, and had dealings with him prior to this time, and at this particular time held a loan against Bagley for about $140 secured by a chattel mortgage upon this horse in question and some other property.
“(8) That on the following day said Bagley, learning that plaintiff was about to leave the village fot an absence of some time, went to plaintiff, claiming that he wished tobuy another horse perhaps before he returned, and obtained $50 from him for such purpose, although he had no other horse at that time in view for purchase, and told plaintiff that he could apply the balance of the check, amounting to $75, on the note and chattel mortgage above mentioned, but no papers passed between them as to this transaction.
“(9) Bagley did not inform defendants that there was a chattel mortgage on the horse, and said horse was not released from said chattel mortgage and plaintiff has renewed the chattel mortgage, including said horse, since the date of said transaction between Bagley and defendants.
“(10) Said Bagley knew before he sold the horse to defendants that he was unable to masticate hay, but did not mention this fact at the time of the sale of the horse, and his representations that the horse was ‘in every way right’ were false and fraudulent.
_ “(11) The plaintiff did not purchase the check at the time it came into his possession or give any consideration for it, but simply took it to act as banker for said Bagley in collecting it.
“(12) That said Bagley is irresponsible pecuniarily and has lost nothing by the transaction, having had the horse restored to him promptly in as good condition as it was taken from him, and the plaintiff will not suffer loss by the transaction, as he is secured for his loan to said Bagley.
“ Under all these circumstances I find, as a matter of law, that the plaintiff is not entitled to recover, and that a judgment be entered for the defendants of no cause of action, with costs.”

In paragraph 6 of the findings, instead of the word “plaintiff,” in each instance, there should appear “ Bagley.”

The questions involved in this appeal are stated by counsel as follows:

First. The court should have excluded the testimony of Edwin E. Sayers regarding his transaction with Bagleuntil notice or its equivalent had been shown to have been brought to plaintiff, and until it had been shown that plaintiff did not part with value.
Second. That the findings do not support the judgment.
Third, Was there any infirmity or defect in Bagley’s title ?
Fourth. Plaintiff was a bona fide purchaser for value without notice.”

The court found that the plaintiff was not a bona fide purchaser for value without notice, and that he simply acted as a banker for Bagley in collecting the check. In this case, we cannot weigh evidence, determine facts, or review the findings of the court below upon questions of fact.

This finding can only be overturned in case there should be a total want of evidence to support it, or in case it is contrary to the undisputed evidence. Cragin v. Gardner, 64 Mich. 399 (31 N. W. 206); Lamoreaux v. Creveling, 103 Mich. 501 (61 N. W. 783); Hindman v. Friedrich, 163 Mich. 655 (128 N. W. 1086). In the instant case we are unable to say that the findings of the judge are not supported by evidence, and we are of the opinion that the facts found support the judgment rendered by him.

Judgment is affirmed.

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