author: McAlvay, C. J.

text:
    KAHN v. MINTHORN.
    1. Garnishment — Assignment—Trial—Instructions.
    Where the court received evidence in garnishment proceedings that an intervening claimant of a fund took an assignment as security only, and later charged the jury that it must be considered as an absolute assignment, any possible prejudicial error was cured.
    2. Appeal and Error — Evidence—Review.
    An objection to testimony that was not raised on trial or presented to the trial court cannot be considered on error.
    3. Garnishment — Fraudulent Conveyances — Assignments.
    And it is held, that there was evidence to go to the jury on the Question whether claimant took' an assignment of the garnished indebtedness after commencement of the suit.
    4. Same — Estoppel—Burden op Proof.
    Where the issue in garnishment was between the plaintiff and a claimant of the fund, and it was tried in the circuit court on the theory that the claimant had the burden of proof, and the court charged that fraud must not be presumed and must be proved by evidence that satisfied the jury of fraudulent intent, etc., no requests to charge as to the burden of proof being presented by claimant, he is estopped to take a contrary position in this court.
    5. Appeal and Error — New Trial — Motions—Exceptions.
    Neither a motion for new trial nor a motion to amend the judgment is reviewable without taking exception to the action of the trial court.
    Error to Alcona; Connine, J.
    Submitted April 10, 1913.
    (Docket No. 25.)
    Decided January 5, 1914.
    Garnishment in justice’s court by Joseph J. Kahn against Joshua Minthorn, principal defendant, and Rogers Bros., garnishee defendant. John Sloan intervened as party claimant. From a judgment for the claimant, plaintiff appealed to the circuit court. Judgment for plaintiff and said intervener brings error.
    Affirmed.

      Newton & Stearns (O. H. Smith, of counsel), for appellant.

      John Kilmaster, for appellee.
   McAlvay, C. J.

Plaintiff, on October 13, 1910, in justice’s court, commenced suit by attachment against the principal defendant, Joshua Minthorn, upon a certain judgment, and summoned Rogers Bros., a corporation, as garnishee defendant, which, on October 20, 1910, disclosed an indebtedness of $157.41 due the principal defendant under a contract made with him for a crop of peas grown, harvested, and delivered by him to such garnishee defendant. On October 31st following, intervener, John Sloan, served a notice on the garnishee defendant, as follows:

“I hereby notify you that by written assignment made on or about the 30th day of September, A. D. 1910, that I have acquired the interest of Joshua Minthorn in a certain contract made between you and said Joshua Minthorn for the growing of. peas in the township of Mikado in Alcona county.’

Which on the following day the garnishee defendant sent by mail to the justice, who thereupon under the statute notified John Sloan to appear and defend his said claim before his court on December 1, 1910. This notice was duly served November 17, 1910. On December 1st the parties appeared before the justice, and issue was joined between the plaintiff and claimant John Sloan, who, with his plea of the general issue, gave notice of an assignment of the funds in the hands of garnishee defendant from the principal defendant, Joshua Minthorn, to him, and plaintiff also gave notice that such assignment was void because made subsequently to the service of summons on the garnishee defendant. The garnishee defendant, under the statute, paid the . fund in its hands into justice’s court and the case proceeded to a trial between the plaintiff and Sloan, the claimant. From a judgment rendered in the justice’s court an appeal was taken to the circuit court for Alcona county and tried upon the same issue joined in justice’s court between Kahn and Sloan and resulted in a judgment in favor of plaintiff Kahn that he recover the amount of the fund in the hands of the justice paid into court by the garnishee defendant, together with costs of suit to be taxed. Before the case was submitted to the jury, a motion was made by the claimant Sloan for a directed verdict, which was denied. Later, on motion of plaintiff, objected to by claimant, this judgment was amended permitting him to recover such costs from John Sloan, intervening defendant, to be taxed, and that he have execution therefor against him. Claimant Sloan made a motion for a new trial. This motion was denied, and error is assigned upon such denial. The intervening defendant and claimant Sloan has removed the case to this court for review.

The errors which he has assigned and relies upon in his brief which will be considered relate:

(1) To the admission of certain testimony; (2)’to the refusal of the court to direct a verdict in his behalf; and (3) to portions of the charge of the court.

No question is raised in the record or in appellant’s brief attacking the validity of plaintiff’s judgment against principal defendant Joshua Minthorn, nor as to the regularity of any of the proceedings had in justice’s court in garnishment, or as to the sufficiency of the pleadings of the parties thereto. The case was tried in the circuit court before a jury upon the same pleadings and issue as in justice’s court. The record shows that the claimant and intervener, Sloan, was represented upon the trial by the counsel who represent him in this court, who assumed of their own accord the affirmative of the issue there presented, and as for a plaintiff introduced all of the evidence for and on behalf of said claimant and rested his case. The record further shows that after claimant’s witnesses had testified plaintiff Kahn, who was also represented by the same attorney who represents him in this court, introduced .the testimony on his part, as if he were a defendant.

The appellant has, in his printed record, made it appear that this was intended to be the relation of these parties to the issue by placing in the index before the names of the witnesses for claimant, “Plaintiff’s (intervening' defendant) witnesses,” and before the name of the witnesses of the opposite party, “Defendant’s (plaintiff in original suit) witnesses.” That this was the understanding of the parties and so accepted by the trial court appears distinctly from the charge given to the jury wherein it is repeatedly stated that the plaintiff is John Sloan and the defendant is Joseph Kahn.

We have thought it proper to give the foregoing statement of the attitude of the parties as to the issue during the trial, as bearing upon a contention of appellant relative to the question of the burden of proof in the case.

We will first consider the errors assigned upon the reception of certain testimony. Two of these assignments relate to questions asked claimant Sloan on his cross-examination bearing upon the proposition whether the assignment from Minthorn of the amount due him from Rogers Bros, was taken as payment in full for the amount due him or as security. When these questions were asked and allowed in evidence, the attorney for Mr. Kahn was undertaking to show that the assignment made to Sloan was given as security and, not having been filed, was void as against creditors. Later, at the close of the case, before it was given to the jury, the question was again discussed, and the court stated that he would not submit the question of security to the jury, but would submit the case solely upon the question of assignment. The court so charged the jury. This, in effect, struck out all of the testimony introduced upon that question, and no request was tendered by appellant for a specific instruction that it be disregarded by the jury. If any error was committed, it was cured by taking such testimony from the consideration of the jury. Barnett v. Insurance Co., 115 Mich. 247-254 (73 N. W. 372).

The two other errors assigned upon the admission of testimony relate to statements made by defendant Minthorn long after the date of the claimed assignment to an attorney, in the presence of a witness, relative to a disposition of the peas by some scheme to save them for him, and is claimed as affirmative proof. This occurred upon the examination of this witness, and it is claimed to be material as bearing upon the question as to when the assignment was made, showing how Minthorn treated this property. The objection to these questions made at the time were that they were leading, and the testimony overheard while Minthorn was in conversation with his attorney was privileged. The objections now made are that the conversation was not in the presence of Sloan, and, further, that no collusion had yet been shown to have existed between them. The record shows that no exception was taken to the ruling of the court on one of these questions; but whether an exception was taken or not is immaterial, for the reason that an objection to evidence not stated on the trial cannot be made for the first time in this court. Weeks v. Hutchinson, 135 Mich. 160, 162 (97 N. W. 695), and cases cited.

. Error is assigned upon the refusal of the court to direct a verdict in appellant’s behalf at the close of the testimony in the case upon the ground that there was no evidence in the case disputing claimant’s proof to be submitted to the jury. This requires a consideration of all the evidence in the case, a brief résumé of which shows that the dispute in this case is entirely between Kahn, a judgment creditor of Joshua Minthorn, and claimant John Sloan, assignee of the same party; Kahn having by garnishment served on Rogers Bros, on October 14, 1910, tied up certain moneys in its hands belonging to Minthorn, and Sloan claiming such fund by assignment from Minthorn claimed to have been made to him prior to the commencement of the garnishment proceedings. The claimed assignment reads as follows:

“This agreement made this 15th day of September, A. D. 1910, by and between Joshua Minthorn, of Mikado, Michigan, of the first part, and John Sloan, of the same place, of the second part, witnesseth: Said party of the first part covenants and agrees to and with the said party of the second part to grant, bargain, sell, assign, transfer and set over and by these presents does grant, bargain, sell, assign, transfer and set over unto the said party of the second part all his interest to monies which may be due him from Rogers Bros, in 1910, by virtue of a certain contract made between the party of the first part and Rogers Bros, wherein said party of the first part agreed to grow a crop of peas for said Rogers Bros, of Alpena. Said crop of peas now harvested and in barn on the farm now occupied by said party of the first part. This assignment made by party of the first part to party of the second part to pay wages due him and money borrowed, etc.
[Signed] “Joshua Minthorn.
“John Sloan.
“Dated September 15, 1910.”

The first notice of any claim by Mr. Sloan of an assignment from Minthorn to any person connected with this case was given to the garnishee defendant on October 13, 1910, as follows:

“I hereby notify you that by written assignment made on or about the 30th day of September, A. D. 1910, that I have acquired the interest of Joshua
Minthorn in a certain contract made between you and said Joshua Minthorn for the growing of peas in the township of Mikado, Alcona county.
[Signed] “John Sloan” — by his attorney.

This was followed up by a letter the next day containing a copy of the foregoing assignment.

The record also shows that claimant Sloan never took possession of the peas and knew when Minthorn shipped them to the garnishee defendant at Alpena, and, also, that on the date of the claimed assignment they were in the Minthorn barn unthreshed. He claimed no right to this fund except such as arose from this assignment. He claims that the record shows that this fund belonged to Mrs. Minthorn, the owner of the title to the Minthorn farm, and that the court misconceived the facts and the law.

The contention of the other side is that the record contains evidence tending to show that this assignment was an afterthought, to defeat the garnishment proceedings, and therefore fraudulent, and that a fair inference from the acts of the two parties and the testimony tends to show that it was in fact made some time after the garnishment process was served; that the record is undisputed that Sloan claimed the fund only as assignee of Joshua Minthorn, and such could be the only claim under the issue joined. From our examination of the evidence in the case, we cannot say as a matter of law that there was no evidence in the case tending to support the contention of Kahn that this assignment in fact was made to Sloan after the garnishment proceedings, and we agree that, under the only issue tendered by Sloan and joined in the case and upon which it was tried, he could not claim title through any other source than Joshua Minthorn. The court therefore was not in error in refusing to direct a verdict in favor of claimant Sloan.

There are several paragraphs of the charge of the court excepted to by claimant Sloan upon which errors are assigned, all but two of which do not require extended consideration. As indicated already, in this opinion, the trial court submitted the case to the jury upon the single question of priority between these two creditors of Joshua Minthorn, and upon that view of the case, which in our opinion was the only issue of fact to be submitted to the jury, the court committed no error in the paragraphs of the charge upon that question as given to the jury. Two of the assignments of error refer to the question upon which party to the issue the burden of proof rested. The court charged that such burden, as to- everything except the claim of fraud, was upon the claimant Sloan, saying, among other things:

“The burden of proof, however, gentlemen, in the case, as to everything except the claim of fraud, is on Mr. Sloan, the plaintiff, and he must prove by a fair preponderance of the evidence that his claim is prior in time to that bf Mr. Kahn. He must prove that the fund was assigned to him before Mr. Kahn’s garnishment tied it up on the 14th of October, and he must prove these claims by a fair preponderance of the evidence.”

And he further charged upon this question relative to when the assignment was made, delivered, and took effect that if the evidence was evenly balanced the verdict would be in favor of Mr. Kahn These excerpts are taken from a single paragraph in the charge which should be read in connection with what immediately preceded relative to fraud, the last sentence of which reads:

“Now, fraud is not presumed; it must be proved by evidence that satisfies you that a fraudulent intent existed and a fraudulent act followed the intent.”

As already appears, both parties to this litigation presented the case, and the court accepted it, and the case was tried upon the theory that claimant Sloan had the affirmative of the issue and throughout the

entire record, by court and counsel, was considered as a plaintiff. This record shows this case was tried, argued, and submitted to the jury upon that theory. Claimant Sloan made no objection or protest to the form of the charge which repeatedly designates him as plaintiff and Kahn as defendant to the issue in the case, and preferred no request to the court upon that question or any other question in the case, and, having so put himself upon the record and taken that attitude upon the trial, he is estopped from claiming that the court erred in charging the familiar rule as to the burden of proof being upon the plaintiff in a disputed issue of fact.

The record contains another assignment of error, with numerous subdivisions, charging error on the part of the trial court in denying a new trial. The record shows that the motion for a new trial was made, heard, and denied, and the reasons for such denial were given in writing. We do not find any exceptions to such findings in the record. The same is true relative to the error assigned upon the permission given by the court on motion of plaintiff to amend judgment so as to make the intervening defendant, Sloan, liable for costs. This court therefore will not consider such assignments of error. Taylor v. Ziem, 148 Mich. 329 (111 N. W. 1076); Moffet v. Sebastian, 149 Mich. 451-453 (112 N. W. 1120).

We find no reversible error in-the case.

The judgment is affirmed.

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


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    BLACKWOOD v. LANSING CHAMBER OF COMMERCE.
    1. Pleading — Corporations—Ultra Vires — Notice op Depense.
    It is necessary to give special notice of the defense that a contract of a corporation is ultra vires.

    2. Corporations — Contracts—Estoppel—Ultra Vires.
    Defendant, a chamber of commerce, organized under 3 Comp. Laws, § 6892 (3 How. Stat. [2d Ed.] § 7302), is estopped to defend an action for breach of a contract to advertise and hold a course of Chautauqua entertainments on the ground of ultra vires; the contract being legal, and the purpose not contrary to public policy, plaintiff could recover for its breach.
    Error to Ingham; Collingwood, J.
    Submitted April 9, 1913.
    (Docket No. 19.)
    Decided January 5, 1914.
    Assumpsit by Samuel E. Blackwood against the Lansing Chamber of Commerce for breach of a special contract. Judgment for defendant upon a directed verdict. Plaintiff brings error.
    Reversed.

      Carl H. McLean (Farm C. Gilbert, of counsel), for appellant.

      L. B. Gardner, for appellee.
   Bird, J.

The plaintiff, who was a vendor of talent for local Chautauquas, entered into a written agreement with defendant in November, 1909, to hold a Chautauqua in Lansing in the summer of 1910, and to furnish the speakers and entertainers therefor. The contract was as follows:

“This contract entered into the 18th day of November, 1909, by and between S. E. Blackwood, representing the Redpath-Slayton Company of Chicago, party of the first part, and the Lansing Business Men’s Association, of the second part, witnesseth: That said party of the first part, for and in consideration of the sale of five hundred (500) season tickets, at two dollars each, by said party of the second part, agrees to stand liable for the payment of all necessary expenses, and pay any deficit for the successful carrying on of a Chautauqua, to be held in Lansing, in the summer of 1910, the dates and program for said Chautauqua to be mutually agreed upon. Said party of the second part to proceed with due diligence to sell the five hundred (500) tickets on or before April 1, 1910. After which date said party of the first part is to undertake to sell additional season tickets.
“It is further understood and agreed by the parties hereunto that the net profits accruing in this enterprise are to be divided between them.
“It is further understood that the total expense of this enterprise is not to exceed the sum of twenty-two hundred dollars ($2,200.00).”

Following the making of this contract, the plaintiff met with a committee appointed by defendant, and arranged for the dates of holding the Chautauqua, and also agreed upon the speakers and entertainers to be secured by plaintiff. It is the claim of plaintiff that he carried out his part of the contract, but that the defendant failed to carry out its part, in that it failed to sell the 500 tickets at $2 each, which the contract stipulated it should sell, and by reason of such failure the Chautauqua was a failure financially, and in consequence thereof he was greatly damaged. To recover this loss, he brought this suit against the defendant, and filed a declaration counting upon the breach of the contract, with the common counts added. The defendant pleaded the general issue, and gave notice that, if the defendant ever became obligated as claimed by plaintiff, it compromised and settled for its delinquency by moving plaintiff’s tent, in which the Chautauqua was being held, from the East Side Park in the city of Lansing to the Third Ward Park, after the Chautauqua was under way. The case was tried along the lines raised by the pleadings, and, when the proofs were closed, the defendant raised the question, and asked for a directed verdict, on the ground that the contract was one which the defendant corporation had no authority to make, and was therefore ultra vires. The trial court took this view of the contract, and accordingly directed a verdict as requested. Whether the action of the trial court was right in so doing is the principal question before us for solution.

The plaintiff raises the question that the trial court was in error in allowing the defense of ultra vires to be made over his objection that it was not raised by the pleadings. It has been several times held by this court that the defense of ultra vires is a special defense, and is not available under the general issue, but must be specially pleaded. Circuit Court Rule 7; Citizens’ Sav. Bank v. Brass Works, 155 Mich. 3 (118 N. W. 507); City of Niles v. Light Co., 154 Mich. 378 (117 N. W. 937); Wachsmuth v. National Bank, 96 Mich. 426 (56 N. W. 9, 21 L. R. A. 278).

Under the practice as established by the rule and these authorities, we think the objection was well taken, and that that defense was not open to the de- ' fendant under the pleadings as they were framed.

Defendant was incorporated under section 68'92 et seq., 2 Comp. Laws (3 How. Stat. [2d Ed.] § 7302). It adopted a constitution, in which was set out the object of the corporation. It is defendant’s claim that, under the statute and its constitution, it had no authority to make a contract for such a purpose. The contract appears to have been made in good faith by both parties, and it further appears to have been carried out by plaintiff. There was nothing criminal, immoral, nor against public policy in promoting a Chautauqua which would contribute to the intellectual and moral welfare of the people. For defendant to refuse to discharge its obligations growing out of the contract, when plaintiff had in good faith discharged his, would work an injustice. Under such a state of facts, if it be true, as defendant contends, that the contract is such a one as it had no power to make, it ought to be and is estopped from raising the defense of ultra vires. The doctrine applicable to like situations has been stated as follows:

1 “Except in cases where the rights of the public are involved, the plea of ultra vires, whether interposed for or against a corporation, will not be allowed to prevail when it will not advance justice, but will accomplish a legal wrong. * * * The great mass of judicial authority seems to be to the effect that where a private corporation has entered into a contract in excess of its granted powers, and has received the fruits or benefits of the contract, and an action is brought against it to enforce the obligation on its part, it is estopped from setting up the defense that it had no power to make it.” 10 Cyc. p. 1156.

See, also, Day v. Buggy Co., 57 Mich. 146 (23 N. W. 628, 58 Am. Rep. 352); Carson City Sav. Bank v. Elevator Co., 90 Mich. 550 (51 N. W. 641, 30 Am. St. Rep. 454); Dewey v. Railway Co., 91 Mich. 351 (51 N. W. 1063); Butterworth & Lowe v. Milling Co., 115 Mich. 1 (72 N. W. 990); Rehberg v. Surety Co., 131 Mich. 135 (91 N. W. 132); Timm v. Brewing Co., 160 Mich. 371 (125 N. W. 357, 27 L. R. A. [N. S.] 186).

We think the trial court was in error in directing a verdict for the defendant on the ground stated. The questions of fact which the testimony raised should have been submitted to the jury. The judgment will be reversed, and a new trial ordered.

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


author: Moore, J.

text:
    JASKOLSKI v. MORAWSKI.
    1. Contracts — Breach of Promise — Illegal Consideration.
    On the trial of an action for breach of promise of marriage, which defendant claimed was void, if the facts were as the plaintiff claimed, because her evidence showed an immoral consideration, the court did not err to the prejudice of defendant in charging the jury that if the promise rested solely on her submitting to illicit relations, the promise was void, leaving the disputed issue whether the promise was made prior to the acts shown, to the determination of the jury.
    2. Same — Breach of Promise of Marriage — Seduction.
    Although the trial court correctly held that plaintiff could not recover on a count for seduction, being the second count of her declaration, because she had not been virtuous theretofore, the jury were rightly permitted to consider the fact of illicit relations in a verdict based on plaintiff's first count, for breach of a promise of marriage.
    3. Compromise and Settlement — Effect—Damages.
    And where the court committed error in his charge by allowing the jury to include in the damages matters that preceded an admitted settlement between the parties, a reduction of the damages from $3,500 to- $1,500 did not cure the erroneous instruction, in a breach of promise case.
    Error to Wayne; Van Zile, J.
    Submitted April 18, 1913.
    (Docket No. 94.)
    Decided January 5, 1914.
    Case by Franciska Jaskolski against Theophile Morawski for breach of a promise of marriage accompanied by seduction. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Percy W. Grose, for appellant.

      W. C. Gottman and Jonas B. Houck, for appellee.
   Moore, J.

Plaintiff commenced this action against the defendant for damages for breach of promise to marry and seduction. There are two counts in the declaration. In the first count she alleges that the promise to marry was made on the 5th day of January, 1910, and on divers other occasions previous thereto, and that, relying on said promise, plaintiff had illicit connection with defendant. The second count is that on the 5th of January, 1910—

“And on divers other days and times between said date and the time of the commencement of this suit (January 5, 1911), at the home of the defendant, the said defendant seduced, debauched, and carnally knew the said Franciska Jaskolski.”

To this declaration defendant pleaded the general issue, and gave notice of the statute of limitations. Defendant denied the promise of marriage, and claimed that the promise sued upon was void, because based on a consideration that was immoral and against public policy. He also denied that, he had seduced plaintiff. The court directed a verdict for defendant as to the second count in the declaration, but permitted the case to go to the jury upon the first count, upon which count plaintiff recovered a verdict of $3,500. On a motion for a new trial this amount was reduced to $1,500, and it is from a judgment for that amount that the case is brought here by writ of error.

The case is a very peculiar one. The plaintiff at the time of the trial was 28 years old. She does not speak English readily. She has never been married. She is the mother of three children, one of them born in 1903, one in 1906, and one in 1910. She claims that the defendant is the father of the first and third of these children, and that his brother, who was associated with him in business, is the father of the other child.

The defendant denies that he ever promised to marry plaintiff or that he ever had connection with her, though he testified that to avoid a scandal that might injure his business he paid her $150, and received the following paper:

“This agreement entered into between Francis Jaskulska, of the city of Detroit, county of Wayne and State o'f Michigan, party of the first part, a!hd Theofil Morawski of the same place, party of the second part. Witnesseth: Whereas the said Francis Jaskulska was on the 16th day of November, 1903, delivered of a male child, of which shé claims Theofil Morawski to be the father thereof, and whereas said Francis Jaskulska together with her parents desire to keep and raise said child. Therefore it is hereby signed by the parties hereto that upon the payment of the sum of one hundred and fifty dollars by the said Theofil Morawski to said Francis Jaskulska the receipt of which is hereby acknowledged, the said Theofil Morawski is released from all further liability or claims against him by said Francis Jaskulska for the keeping and maintenance of said child or any other damages arising out of said matter.
‘«Franciska Jaskulska.
“Subscribed to and acknowledged before me this 13th day of January, 1904.
“Felix A. Lemkie, Notary Public.
“My commission expires, Feb. 16th, 1907.
“Ratified by the county superintendent of the Poor Jan. 20/04.
“P. H. Dioger, Secy.”

The plaintiff lived with her people next door to a bakery owned by the defendant and his brother. When she was 18 years old she entered into their employ. It is her claim that defendant, who was a widower much her senior, began to pay attention to her and proposed marriage, and that she accepted him; that relying upon this engagement she submitted her person to him many times; that as a result a child was born; that these relations were discontinued for a time when she entered into like relations with his brother with like result; that still later the defendant again proposed marriage, followed by illicit relations, and the third child was born, and that, defendant refusing to carry out his promise, this suit was brought.

The plaintiff in giving her testimony was very stupid, or else very reckless or possibly both. She testified in the most positive terms to a proposal of marriage and its acceptance, and a reliance thereon, followed by illicit relations. The following is a specimen of her testimony:

“Q. When you were working at the Oriental Hotel, did you see Morawski often?
“A. Yes, sir.
“Q. Where did you see him?
“A. Over to his place.
“Q. Where did you meet Morawski?
“A. I didn’t meet Morawski no place. I would see him in his place and at my place. I went under the name of Schultz because they couldn’t write my name. I have never been married. I have never worked since I left the Oriental. I had intercourse with Morawski the second year. I don’t know what year that was. I was working for him at that time. That is, during the first time I worked for him. I had intercourse with him two or three times a week. I had intercourse with him because he promised to marry me.
“Q. Well, now, when he made this promise to marry you, what did he say the first time?
“A. Well, always wanted me; I am going to have a good home and support my folks, and give my folks a good home, too.
“Q. Is that before or after the intercourse? Was that before or after you had anything to do with him?
“A. That was before and afterwards, too.
“Q. What he told you was, if you would have intercourse with him, he would marry you, wasn’t it?
“A. Yes, sir.
“Q. That is all he said, wasn’t it?
“A. Yes, sir.
“Q. What?
“A. Yes, sir.
“Q. Then he told you afterwards he would marry you in case you had a child?
“A. Yes, sir.
“Q. That is all the promise he has ever made you, isn’t it?
“A. Yes, sir.
“Q. What?
“A. Yes, sir.
“Q. If you would have intercourse with him, in case you had a child he would marry you?
“A. Yes, sir.
“Q. That is your claim now, and it has always been your claim, hasn’t it?
“A. Yes, sir.
“Q. That is the only promise he ever made you?
“A. Yes, sir.
“Q. That is what you are standing on now, is that promise ?
“A. Yes, sir.
“Q. And no other promise?
“A. No, sir.”

She attempts to excuse these inconsistencies by saying she did not understand.

A large part of the brief of the appellant is devoted to the proposition that the promise of marriage was void because the consideration is immoral. Counsel cite authorities which he claims sustain his contention. We have examined them, but we do not deem it necessary to decide whether he is right in his contention, for the trial judge held with him, and instructed the- jury:

“Now it is claimed by the defendant that the promise of marriage, if there was any such promise, was not one resting upon mutual promises for its consideration. That is, the consideration of the contract was not one resting on mutual promises. But it is the theory of counsel for the defendant that if there was any such promise, and it is claimed there was not, of course, that it was as is shown by the proof according to his theory, in consideration of defendant having and of plaintiff’s submitting to sexual intercourse. That is to say, it is the theory of the defendant that the contract or the understanding or engagement here was one resting upon an immoral consideration, namely, the consideration that this woman would permit herself to have sexual intercourse with this man; that it was an immoral and void consideration. On the other hand, the plaintiff claims that there was a promise or an understanding of marriage prior to the sexual relations. Now should you find the fact to be that the defendant promised plaintiff solely upon the consideration that she should permit him to have sexual intercourse with her, or solely on the consideration that she should have sexual intercourse with him, and if she became pregnant and had a child he would marry her, and that there was no other consideration or promise, then and in such case I instruct you that the promise to marry rests upon an immoral consideration and is void, and your verdict should be for the defendant. That is, if you find in this case that the only consideration for the promise, if there is any promise in the case, of marriage, was a promise that if she would submit herself to have sexual intercourse with him he would marry her in case she became pregnant, if you find that that was the only consideration, the only arrangement or contract, then I instruct you that that is a contract resting upon an immoral consideration and is void, and the plaintiff could not recover. Should you find, however, that these parties did indulge in sexual intercourse, but should find the facts to be that the proposal of marriage was made by the defendant and accepted by the plaintiff, and that after this, because of such engagement, the defendant induced the plaintiff to have sexual intercourse with him, then I instruct you that this would not justify the defendant" in refusing to consummate such marriage, and it would be no justification for him to break the contract. In other words, if you find that the promise was resting solely upon her submitting herself to sexual intercourse, then it is void.”

Under all of the authorities the defendant has no reason to complain of this portion of the charge.

In passing upon a similar case to this one the following language was used:

“The plaintiff’s expressions are somewhat confused and indefinite. At one point in her testimony she says: ‘He said if I would yield to him he would marry me. It was on the 10th or 11th of February he first said this, but I did not then yield. He worried me until about the last of February, and I yielded to him.’ And again she says: T would not have yielded to him if he had not vowed firmly he would marry me, and gave me his hand on it, and he said if anything happened he would marry me at once.’ Again she says: T would not have yielded to him if I had not loved him and he had not promised to marry me.’
“The defendant denies that he ever made her any promise of marriage at any time, but does not deny the sexual intercourse. We think, taking all of the statements together, and especially in view of the other evidence in the record, that the proper construction of her statements is that she would not have yielded to him but for the previous promise to marry her at some time, and for his assurance that if anything happened to her prejudice he would marry her at once. This does not mean that the illicit intercourse was the consideration for the promise, but that the contract was made the basis for obtaining this intercourse, and as a result of the promise she agreed to the intercourse.” Spellings v. Parks, 104 Tenn. 354 (58 S. W. 127).

Counsel claim the court erred. We quote from the brief:

“In admitting testimony tending to show the conduct of the parties during the entire time of their acquaintance; such testimony being offered and admitted as tending to prove various promises of marriage and in aggravation of damages. * * * The court under the declaration admitted testimony of many acts of sexual intercourse. Under the judgment of the trial court that there was no seduction, which judgment is now final, the testimony was immaterial and incompetent: First, because the testimony of mere acts of intercourse has no tendency to prove a promise of marriage; second, the law does not permit testimony of acts of intercourse to be offered on the question of damages, unless such acts amount to seduction.”

Counsel also complain of the following portions of the charge:

“You are to take all that you have been shown with reference to the relations of these parties which tends to prove this understanding, and you are to determine was there at any time between these two parties an understanding by both of them that they were to be married. * * * Now, in that regard, of course, you are to take into consideration all the proofs and all the circumstances, and in arriving at your verdict and in determining whether or not a contract of marriage was made between the parties, as I have said, you are to take into consideration the conduct of each of them. Now, further considering the matter of breach of promise, if you find from the evidence in this case that a mutual promise and engagement was entered into between the plaintiff and the defendant on or about the 5th day of January or before that time, and the promise or engagement was kept alive and continued to be in existence and as a subsisting valid mutual promise by being repeated from time to time, or otherwise, up to the said 5th day of January, 1910, and that because of said pre-existing promise of marriage the defendant induced and procured the plaintiff to submit to sexual intercourse with him, whereby she became pregnant and bore a child some time on or about October 5, 1910, then in determining the amount of damages if you should find for the plaintiff, you may take these facts into consideration, together with the pain and anguish of body and mind which she may be shown by the proofs in the case to have suffered, together with all the other facts and circumstances that have been proved in relation to that engagement.”

We quote from the brief:

“This part of the charge is not only objectionable because it permits the jury to consider the matters which were inadmissible in evidence, and should not be considered as bearing upon the questions involved, but is open to a more serious objection in this: The trial court held there was no evidence of seduction in the case, and there could be no recovery of damages because of any claimed seduction, but in this part of the charge, notwithstanding such ruling, he instructed the jury to consider matters which amount to seduction.
“In other words, after having directed a verdict for the defendant on the count in the declaration alleging seduction, and judgment having been rendered on the same, the court instructed the jury to allow damages for such seduction. No other construction can be placed upon this language:.
" 'And that, because of said pre-existing promise of marriage, the defendant induced and procured the plaintiff to submit to sexual intercourse with him, whereby she became pregnant, and bore a child some time on or about October 5, 1910, then in determining the amount of damages, if you should find for the plaintiff, you may take these facts into consideration, together with the pain and anguish of body and mind which she may be shown by the proofs in the case to have suffered, together with all the other facts and circumstances that have been proven in relation to that engagement.’
“If this charge does not allow a recovery for seduction, it will at least be admitted that it allows recovery for acts of intercourse and damages because of the birth of the child. This is then subject to the further objection that, so far as the intercourse previous to the birth of the first child and the birth of the first child is concerned, plaintiff had already received compensation, and had released the defendant from any claim for damages, and further it allows her to recover for damages sustained by reason of acts of sexual intercourse and the birth of the child.”

At the outset we think it may be said that counsel is mistaken as to the effect of the court having directed a verdict in favor of defendant on the second •count, which count was the usual averment of seduction, stated to be on January 5, 1910, “and on divers other days and times between said date and the time of the commencement of this suit.” It is evident from the record that the trial judge was satisfied that on January 5, 1910, and from then on until the commencement of this suit plaintiff was not a chaste woman, and therefore there could not be a recovery under the second count, but this did not preclude the jury from taking into consideration the fact of illicit relations charged in the first count, if they found there was a promise of marriage, as averred therein.

Counsel cite authorities in support of the proposition that the jury should not have been allowed to take the fact of seduction into consideration in fixing the amount of damages. These authorities are distinguishable from the instant case. In Boyer v. Sherer, 28 Ill. App. 545, the court was of the opinion that the evidence given did not amount to a promise of marriage, and because of that reversed the case. For the same reason the case of Roe v. Doe, 11 N. Y. Supp. 236, was reversed. For the same reason the judgment was affirmed in Bleiler v. Koons, 132 Pa. 401 (19 Atl. 140). The case of Commonwealth v. Walton, 2 Brewst. (Pa.) 487, was a criminal case for seduction. In the case of Felger v. Etzell, 75 Ind. 417, the headnote as to this feature of the case is as follows:

“On trial of an action for breach of a promise to marry, where the complaint contained no allegations of illicit intercourse between the parties, and no answer was filed, evidence of such illicit intercourse was inadmissible to prove a promise to marry, or enhance the damages, or for any other purpose.”

Certainly a very different case from the one before us. In Judson v. Judson, 147 Mich. 518 (111 N. W. 78), Justice Carpenter, speaking for the court, stated what testimony established a promise of marriage, a breach thereof and seduction. In Duff v. Judson, 160 Mich. 386 (125 N. W. 371), reference is made to that case with approval.

It is argued that the charge was erroneous because the defendant had settled for the intercourse resulting in the birth of the first child, and been released from any liability therefor. Special complaint is made of that portion of the charge reading:

“You are to take all that you have been shown with reference to the relations of these parties which tend to prove this understanding, and you are to determine was there at any time between these two parties an understanding by both of them that they were to be married.”

It is evident the judge thought he had erred in the charge, and attempted to cure the effect of the error by reducing the verdict from $3,500 to $1,500. It is possible the jury might have returned this amount if they had been properly instructed as to the law, but we are unable to say this is so. The jury should have been instructed there could be no recovery for what occurred before the settlement, between the parties. Nor for anything except for what followed the promise of marriage of January 5, 1910, or a time approximate to that date.

The judgment is reversed, and a new trial granted.

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


text:
    TEAL LAKE IRON MINING CO. v. OLDS.
    1. Taxation — Redemption—Notice—Reconveyance.
    Under Act No. 204, Pub. Acts 1899, amending 3 Comp. Laws, § 3959 (1 How. Stat. [2d Ed.] §1911), the provisions for notice to the owner or grantee of last recorded conveyance require that the amount specified as paid be correctly stated: an excess of 89 cents in $148.26 was sufficient to invalidate the notice.

      2. Same — Service of Notice to Redeem — Appeal.
    The statute does not impose on the holder of a tax title any obligation to look beyond the records of the county in which the lands are located, but if he makes further investigation and obtains information relative to the ownership of the property and serves a notice on the basis of that information, he is in no position to maintain on appeal, not having raised the point below, that no notice was required.
    Appeal from Baraga; O’Brien, J.
    Submitted June 5, 1913.
    (Docket No. 32.)
    Decided January 5, 1914.
    Bill by the Teal Lake Iron Mining Company against Millard D. Olds. From a decree for complainant, defendant appeals.
    Affirmed.

      A. E. Miller (John E. Tracy, of counsel), for complainant.

      C. S. Reilly, for defendant.
   Bird, J.

Complainant by its bill seeks to redeem from certain tax sales made by the auditor general on October 4, 1902, to William H. Louks, the defendant’s grantor. The land conveyed lies in Baraga county and is described as the S. E. % of section 6, town 50, range 31 W. The sales were made for delinquent taxes on this parcel or some subdivision of it for the years 1895-1899. The total amount paid to the auditor general for these purchases was the sum of $148.26. Complainant before filing its bill tendered into court the sum of $330 to reimburse the purchaser, at the same time offering to pay such further sum as the court might find due on an accounting.

The defendant denied the right of complainant to redeem on the ground that his grantor, Louks, had in the year 1903 served the statutory six months’ notice to terminate the period of redemption upon William J. Gordon, by publication, assuming that he was the holder of the last recorded, title to said premises. Notices were in the same year personally served on holders of certain tax deeds which were recorded. Complainant replies to this contention that the statutory notice served was not in compliance with the statute for the reason, among others, that the amount demanded in the notice as a condition for reconveyance was excessive to the extent of 89 cents. Upon the hearing the chancellor reached the conclusion that the notice was invalid for the reason stated and decreed a reconveyance of the premises upon payment of the amount which he found due defendant.

The defendant’s grantor paid $148.26 to the auditor general for the conveyances. The amount demanded in the notice was $149.15, an excess of 89 cents. The question is therefore presented whether the notice should be declared invalid for this slight difference. The notice given by defendant was in pursuance of Act No. 229 of the Public Acts of 1897, as amended by Act No. 204 of the Public Acts of 1899 (1 How. Stat. [2d Ed.] §1911 et seq.). Section 141 of this act provides for a reconveyance upon a tender of “the amount paid upon such purchase,” etc. Section 140 specifies the form of the notice to be given, which informs the parties interested that a reconveyance will be made upon payment of the “amount paid,” and provides for the insertion in the notice of the “amount paid.” These sections make it clear to the tax purchaser that, before he can cut off the equities of those interested in the title, he must not only advise them how much it will cost to redeem, but also the time within which they can redeem.

It is important to those having a right to redeem to have this information stated accurately in the notice, because it is upon this information they are expected to determine whether they will exercise their right to redeem. In this case, “the amount paid” was overstated in the notice 89 cents. This sum when doubled under the statute would amount tb $1.78. It is argued that this was a substantial compliance with the statute. We are of the opinion that something more than a substantial compliance with the statute is necessary in this regard. If we say that an excessive demand of 89 cents is a substantial compliance with the statute, what will we say of an excessive demand for $1.89, or even $2.89, and how large an excessive amount may be demanded before it becomes a failure to comply with the statute? These questions suggest some of the difficulties in the way of permitting any notice, which does not state the true amount, to be a compliance with the statute. The proceeding is a statutory one, and this requirement is one step in the proceeding to divest the delinquent taxpayer of his property rights, and we think the interests of all concerned will be better conserved by holding that this requirement of the statute is mandatory, and must be strictly observed. The following authorities are of interest on this question: Reed v. Lyon, 96 Cal. 501 (31 Pac. 619; Casner v. Gahlman, 6 Kan. App. 295 (51 Pac. 56); Shinkle v. Meek, 69 Kan. 368 (76 Pac. 837); Salter v. Corbett, 80 Kan. 327 (102 Pac. 452); State v. Scott, 92 Minn. 210 (99 N. W. 799).

On the argument in this case, a new question was argued which was not raised in the trial court. It is that no notice was necessary to be served on the holders of recorded tax deeds under the law of 1897, and that as there was no last recorded deed in the regular chain of title, disclosed by the records of Baraga county, no notice was required to be given to any one. It appears that William J. Gordon purchased the land from the United States government in 1862, and received a patent therefor. A memorandum of this fact appears in the records of Marquette county, and also in Baraga county, which county was subsequently organized out of a portion of the territory of Marquette county, but the patent was recorded in neither county, and the deed from Gordon to complainant was never recorded. From this information Louks, the defendant’s grantor, assumed that Gordon was the holder of the last recorded deed in the regular chain of title, and proceeded to make service upon him by publication. In the trial court, Gordon was treated by both complainant and defendant as the holder of the last recorded deed. The contention of defendant that no notice was required to be served on the holders of recorded tax deeds under ,Act No. 229 of the Public Acts of 1897, as amended by the Public Acts of 1899, is probably correct, because the law at that time did not require it. The statute would not seem to make it necessary for the purchaser of a tax deed to look beyond the records of the county wherein the lands are situate to discover title holders; but when, as in this case, he does look beyond the records of the county, and obtains information with reference to the ownership of the title, and acts upon that information in serving the notice, and the fact of such prior ownership is not denied, but admitted, we think he is in no position to insist in the appellate court that no service upon him was necessary.'

The conclusion reached by the trial court as to the validity of the notice was the proper one, and the decree will be affirmed, with costs to complainant.

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


author: Moore, J. McAlvay, C. J.

text:
    CLEM v. CHALMERS MOTOR CO.
    1. Master and Servant — Industrial Accident Commission — Personal Injuries — Course of Employment.
    Under the terms of Act No. 10, Special Session 1912, providing for an Industrial accident board and authorizing compensation for injuries to any servant “arising out of and in the course of his employment,” the provisions included a decedent who was called from the roof of a building where he was working to partake of a lunch served by the employer, and who, in descending by means of a rope that extended over the edge of the roof and within 12 or 13 feet of the ground, instead of using a ladder which was provided and was safely attached to the roof, fell and was killed; his widow’s right of recovery was properly sustained by the industrial accident board.
    2, Same.
    Nor was his act intentional and wilful misconduct so as to defeat the claim.
    McAlvay, C. J., dissenting.
    Certiorari by the Chalmers Motor Company to review a ruling of the industrial accident board allowing a claim in favor of Jessie B. Clem.
    Submitted June 19, 1913.
    (Docket No. 18.)
    Affirmed January 5, 1914.

      Bowen, Douglas, Eaman & Barbour, for appellant.

      Shields & Shields, for appellee.
   Moore, J.

This is certiorari directed to the industrial accident board of the State to review an order allowing the claim of Jessie B. Clem, widow of Charles S. Clem, deceased, for the sum of $3,00'0 against the contestant. The claim is made under the employers’ liability act, so called, being Act No. 10 of the Public Acts of the Special Session of 1912.

Charles S. Clem sustained injuries by falling while descending from the roof of a building in the course of construction by means of a rope. It is conceded if there is any liability that the compensation of $3,000 is a correct sum to be paid. Following the death of Mr. Clem, an arbitration was had before an arbitration committee, which allowed the claim. An appeal was taken to the industrial accident board, which board affirmed the award of the arbitration committee.

The record shows Mr. Clem had worked for some weeks as a carpenter for the Chalmers Motor Company. On the day of the accident he was assisting in placing roof boards upon a building which was 150 feet wide, 160 feet long, and 19 or 20 feet high from the ground to the eaves. It was a flat roof. Between 9 and 10 o’clock the men were instructed by a sub-foreman to come down from the top of the building for a coffee lunch, so called. The men went to and from the roof in the course of the work by means of a ladder which was attached firmly to the side of the building, extending from the ground to the roof. There were on the roof of the building some loose ropes. These were used for the purpose of raising and lowering material. They were not provided for men to go up and down. On the call being made to come for the coffee, all of the men descended by the ladder but Mr. Clem and two fellow workmen named Sekos and Glaser. Instead of going down the ladder, Mr. Clem picked up one of the loose ropes about 20 feet long and gave one end of it to Sekos, directing him to hold it in his hand. The rope extended over the edge of the roof about seven feet. Taking the rope in his hands, Mr. Clem passed over the edge of the roof and disappeared from the sight of the two men on the roof. If any one saw what happened after that, it does not appear in the record further than that Mr. Clem fell and was hurt, receiving injuries which resulted in his death.

The following appears in the record:

“Mr. Kinnane: Now, is it contended that the act of coming down off the building to coffee lunch when they were called by the foreman for that cause was not in the due course of their employment? I am not speaking of the manner of doing it but the fact of their coming down and going back.
“Mr. Rogers: I concede that was a part of his employment.
“Mr. Kinnane: Then it would simmer down to the manner of coming down, would it not?
“A. Yes.
“Mr. Kinnane: That would be the only matter at issue?
“Mr. Rogers: Yes. My point on that matter as to that act: When the man was doing that act he was not in the course of his employment.”

It is the claim of appellant (we quote from the brief):

“(1) Charles S. Clem, the deceased, did not receive a personal injury arising out of and in the course of his employment.
“(2) He was injured by reason of his intentional and wilful misconduct.”

The statute involved here is of such recent date that its construction has never been before this court. Statutes of a similar character are so recent that there is a paucity of decisions relating to them, especially in the American courts. Counsel cite a number of English and Scotch cases, but none of them is on all fours, nor is the principle of law stated in them controlling in the case before us.

The case now in this court is one of first impression. The title of Act No. 10, Public Acts of Special Session of 1912, reads as follows:

■ “An act to promote the welfare of the people of this State, relating to the liability of employers for injuries or death sustained by their employees, providing compensation for the accidental injury to or death of employees and methods for the payment of the same, establishing an industrial accident board, defining its powers, providing for a review of its awards, making an appropriation to carry out the provisions of this act, and restricting the right to compensation or damages in such cases to such as are provided by this act.”

We quote from the act:

“The people of the State of Michigan enact:
“Part 1.
“Modification of Remedies.
“Section 1. In.'an action to recover damages for personal injury sustained by an employee in the course of his employment, or for death resulting from personal injuries so sustained, it shall not be a defense: (a) That the employee was negligent, unless and except it shall appear that such negligence was wilful; (b) that the injury was caused by the negligence of a fellow employee; (c) that the employee had assumed the risks inherent in or incidental to, or arising out of his employment, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances.
“Sec. 2. The provisions of section one shall not apply to actions to recover damages for personal injuries sustained by household domestic servants and farm laborers.
“Sec. 3. The provisions of section one shall not apply to actions to recover damages for the death of, or for personal injuries sustained by employees of any employer who has elected, with the approval of the industrial accident board hereinafter created, to pay compensation in the manner and to the extent hereinafter provided.
“Sec. 4. Any employer who has elected, with the approval of the industrial accident board hereinafter created, to pay compensation as hereinafter provided, shall not be subject to the provisions of section one; nor shall such employer be subject to any other liability whatsoever, save as herein provided for the death of or personal injury to any employee, for which death or injury compensation is recoverable under this act, except as to employees who have elected in the manner hereinafter provided not to become subject to the provisions of this act.”

The appellant elected to come within the provisions of the act.

Sections 1 and 2, pt. 2, of the act, read in part as follows:

“Section 1. If an employee who has not given notice of his election not to be subject to the provisions of this act, as provided in part 1, section 8, or who has given such notice and has waived the same as hereinbefore provided, receives a personal injury arising out of and in the course of his employment by an employer who is at the time of such injury subject to the provisions of this act, he shall be paid compensation in the manner and to the extent hereinafter provided, or in case of his death resulting from such injuries such compensation shall be paid to his dependents as hereinafter defined.
“Sec. 2. If the employee is injured by reason of his intentional and wilful misconduct, he shall not receive compensation under the provisions of this act.”

We have quoted sufficiently from the act to show that it is a very marked departure from the old rule of liability on the part of the employer to the employee. It is clear that as to the employer, who has accepted the provisions of the act, the risks of the employee, arising out of and in the course of his employment, are not assumed as heretofore by the employee but must be compensated for according to the provisions of the act, unless the employee is injured by reason of his intentional and wilful misconduct.

The first question, then, is: Did Mr. Clem receive a personal injury arising out of and in the course of his employment? And the second question is: Was he injured by reason of his intentional and wilful misconduct? The questions are so interwoven that they may well be discussed together. Mr. Clem, with others, was employed on a December day constructing a fiat roof on a large building only 19 or 20 feet high. It would add not only to the comfort of these men but to their efficiency as workers to have them about 9 or 10 o’clock partake of a luncheon, which, from the fact that hot coffee was served, was called a coffee lunch. The luncheon was ordered by the foreman of the company. It was prepared on the premises, and when it was ready the men were directed by the sub-foreman to go and partake of it. All of them started to do so. They did not in doing so leave the premises of the appellant. All of them but three went down the ladder. Mr. Clem went down the rope which projected over the eaves seven feet. If he had kept hold of the rope until he reached the end of it, if he was a man of ordinary height and his arms were of the ordinary reach, his feet would be within five to seven feet of the ground. If, when the call to come to lunch was made, Mr. Clem, in responding to the call, had inadvertently stepped into an opening in the uncompleted roof or in company with the others had, in the attempt to reach the ladder, got too near the edge of the roof and fallen and been hurt, would it be claimed that the injury did not arise out of and in the course of his employment? The getting his luncheon under the conditions shown was just as much a part of his duty as the laying of a board or the spreading of the roofing material. The injury, then, having arisen out of and in the course of his employment, can it be said that compensation should be defeated because of his intentional and wilful misconduct? His primary object was like that of all the other men, to get to and partake of his luncheon. There is nothing to indicate that he intended or expected to be hurt. Nearly all the other men went down by the ladder. He went down by a rope where, if his plans had carried, he would have had to make a drop of only five to seven feet. Is that such intentional and wilful misconduct as to defeat compensation under the act? There is scarcely a healthy, wide-awake ten-year-old boy who does not frequently take a greater chance and without harm. For a man accustomed to physical toil, judged by what is occurring daily, it cannot be said that such an act should be characterized as intentional and wilful misconduct within the meaning of the statute.

The allowance of the claim is affirmed.

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

McAlvay, C. J.

(dissenting). I think that the cause of the injury to the deceased was his intentional wilful misconduct and therefore cannot concur in this opinion.


author: Brooke, J.

text:
    UNION ICE CO. v. DETROIT & MACKINAC RAILWAY CO.
    1. Evidence — Use of Memoranda — Refreshing Recollection.
    There was no reversible error in permitting a witness for plaintiff, which claimed that its icehouse was set on fire by defendant’s locomotive, to use, in testifying, a lengthy memorandum of materials that had been employed to construct the buildings, thereby refreshing his recollection.
    2. Same — Expert Testimony — Railroads.
    The opinion of a witness who had had 22 years’ experience as a railroad engineer that a locomotive in proper condition would not emit sparks capable of setting a fire about 50 feet from the tracks, was admissible, although he had not had charge of locomotives with the same kind of spark arrester that the one carried which it was claimed had started the fire.

      3. Insurance — Parties—Fire—Actions.
    The fact that the plaintiff in an action for destruction of a certain icehouse by fire, had, after receiving the insurance, entered into a contract to begin an action and pay over half of the proceeds to the several insurance companies, was immaterial and the trial court rightly excluded evidence thereof.
    4. Railroads — Fires—Locomotives.
    Under testimony that a locomotive in proper order would not emit sparks capable of kindling a fire from 40 to 50 feet from the track, that the fire started by defendant’s engine at about that distance from the tracks, the question whether the spark arrester used was in proper order was for the jury, although defendant’s evidence showed that an inspection made but a few hours after the fire disclosed that the arrester was in perfect condition.
    5. Same — Contributory Negligence.
    And the plaintiff was not chargeable with contributory negligence because it permitted inflammable substances to remain near its icehouse. Requests to charge on that subject were correctly refused.

    Error to Bay; Collins, J.
    Submitted June 17, 1913.
    (Docket No. 3.)
    Decided January 5, 1914.
    Case by the Union Ice Company against the Detroit & Mackinac Railway Company for negligently setting fire to plaintiff’s icehouse. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Henry, Henry & Henry (James McNamara, of counsel), for appellant.

      Hall, De Foe & Hall, for appellee.
    On March 24, 1910, plaintiff’s icehouse, located a short distance north of Bay City, was destroyed by fire. The house, which was full of ice, stood between the right of way of defendant company and the lake shore. Its westerly end was distant from defendant’s main line track about 85 or 90 feet. Upon the day in question, a passenger train, running south, passed the icehouse at about 11 o’clock a. m. Within a very few minutes thereafter (probably not more than 10), employees of plaintiff discovered a fire outside defendant’s right of way and near the southwest corner of the icehouse. A very strong wind was blowing from the southwest, and though they, and others who immediately gathered, endeavored to extinguish the blaze, which by the time they had reached the spot had already attacked the house, they were not successful, and the building and appurtenances were destroyed. The ice, though not utterly destroyed, was very seriously damaged. At the time of the fire, plaintiff was insured in eight different companies. In settlement of this insurance it received the sum of $10,000. Bach insurance company, upon payment of its proportionate share, received from plaintiff an assignment subrogating the assignee to the plaintiff’s right of action against defendant to the extent of the amount of the sum paid by the insurance company. On August 3, 1910, and before suit was commenced herein, the eight insurance companies, by Berger & Hicks, their attorneys, entered into a contract with plaintiff which provided that suit should be brought against defendant in the name of the plaintiff, and that if a judgment was recovered it should be divided, one-half to go to plaintiff and the other half to be divided among the insurance companies in proportion to the sums which had been paid by each in settlement of the loss.
    Upon the trial defendant, evidently having knowledge of this situation, questioned plaintiff’s right to sue in its own name for the use and benefit (in part) of the insurance companies. Whereupon plaintiff (in the absence of the jury) produced the subrogation contracts and the contract with reference to the commencement of suit and the division of the judgment. It also produced Mr. Hicks as a witness to prove the execution of the latter agreement on the part of the insurance companies. Defendant insisted that no legal authority to execute the latter contract had been shown and further insisted that all the evidence should be laid before the jury. The court held that the plaintiff was properly authorized to bring the suit, excluded the various agreements, and in the charge directed the jury that whether there was insurance or not was a question of no moment and one which they should not consider.
    The following special questions were propounded to the jury and were answered as indicated:

      “Q. Did the fire which burned the icehouse and property involved in this suit originate from fire out of engine No. 31 of the defendant railroad company on March 24, 1910?

      “A. Yes.

      “Q, Were the machinery, spark arrester, smokestack, and fire box of defendant’s engine No. 31 on March 24, 1910, as it passed southerly by plaintiff’s icehouse at Tobico, in good order?

      “A. No.

      “Q. Was engine No. 31 on March 24, 1910, as it passed southerly by plaintiff’s icehouse at Tobico, properly managed?

      “A. Yes.

      “Q. Could not engine No. 31, if in good order and properly managed, on the 24th of March, 1910, between 11 and 12 o’clock, emit fire sparks which might have set the fire which ignited the icehouse?

      “A. No.

      “Q. On March 24,1910, was engine No. 31 equipped with proper type or kind of spark arrester, smokestack, machinery, and fire boxes when it passed the icehouse involved in this suit?

      “A. Yes.”

      A general verdict in favor of plaintiff in the sum of $15,000 followed.

      As to the distance within which sparks from a properly equipped engine will set fire as subject of expert testimony, see note in 22 L. R. A. (N. S.) 1039.

       And on the question of the duty of an abutting owner to prevent accumulation of combustible materials near right of way, see note in 12 L. R. A. (N. S.) 624. And upon the duty of the owner of property adjoining a railroad right of way to protect it from fires set out by passing locomotives, see note in 12 L. R. A. (N. S.) 526.

   Brooke, J.

(after stating the facts). The first assignment of error discussed in defendant’s brief relates to the testimony of Alvin E. Schmidt and to the admission of Exhibits B, C, and E with reference to which he gave evidence. It appears that the icehouse as originally constructed was 100 feet broad by 200 feet long. After plaintiff acquired the property, it caused to be erected, upon each side of the original structure, an addition 100x200, so that when it was destroyed the icehouse was a building 300x200. Witness Schmidt was in charge of the work when the additions were built. The exhibits in question were prepared by him and contained a statement of the kind and amount of material used in the structure together with his estimate of the value thereof. His testimony as to value was based upon the figures he had previously placed in the exhibits. These, in turn, were in part predicated upon his own knowledge and in part resulted from his inquiries from others as to certain materials, with the value of which he was not familiar. We are of opinion that the evidence was properly admitted. Close v. Railroad Co., 169 Mich. 392 (135 N. W. 346). It is obvious that the exhibits themselves are not substantive evidence of the facts and figures they purport to contain, and we do not understand they were admitted as such. They are but papers of convenient reference, which enable the witness to testify to voluminous and complicated computations previously made by himself, the details of which it would be utterly impossible for any witness to carry in his head. Aside from this, no evidence was offered on behalf of defendant questioning the correctness of the estimates of materials and values made by Schmidt, and it is not now claimed that the verdict is excessive.

Joseph Wendell, an engineer of 22 years’ experience upon the Grand Trunk Railroad, was permitted to give evidence that in his opinion a locomotive in proper condition would not emit sparks capable of setting a fire at a distance of 40 or 50 feet from the track. The objection to this testimony was that Wendell had driven only locomotives equipped with a woven wire spark arrester, whereas defendant’s engine was equipped with a perforated plate spark arrester. The question to which objection is made refers to neither type of spark arrester, but refers to an engine “in proper condition for arresting sparks.” We think the witness was, through his experience, qualified to give expert evidence, and that his answer was properly admitted.

The next question arises with reference to the subrogation agreements and the contract, Exhibit H, between plaintiff and the insurance companies. After a very extended colloquy between court and counsel and the taking of the testimony of Mr. Hicks, in the absence of the jury, the exhibits were excluded by the court, and the evidence of Mr. Hicks was not placed before the jury. Counsel for defendant took exception to this action and now insists that the whole matter should have been submitted to the jury; the authority of Mr. Hicks to execute the Exhibit H having been questioned. We can readily appreciate the fact that it might be of advantage to defendant to be able to show that certain insurance companies would participate in any judgment which might be rendered against it, but we are of opinion that it had no legal right to do so. Its tort (if one was committed) was against this plaintiff, and the right of action which grew out of the tort was one and indivisible. Continental Ins. Co. v. Lumber Co., 93 Mich. 139 (53 N. W. 394, 32 Am. St. Rep. 494). The plaintiff undoubtedly was possessed of the substantive right and was the proper party to bring the suit. Had it done so, without executing the various subrogation contracts, it would still necessarily have acted in the capacity of a trustee, as regards the judgment, for the benefit of the insurance companies, in accordance with the terms of the policy contract. The relation would be implied by law. Federal Ins. Co. v. Insurance Co., 202 Fed. 648, 121 C. C. A. 58; Southern Bell, etc., Co. v. Watts, 66 Fed. 460, 13 C. C. A. 579; Phoenix Insurance Co. v. Transportation Co., 117 U. S. 312 (6 Sup. Ct. 1176). The defendant is interested only in knowing that a judgment, in the suit brought, will relieve it from all liability for the consequences of its tort. As we have seen, the cause of action is indivisible. No one of the insurance companies could bring an action in its own behalf even in the name of the insured. We conclude that the court properly ruled that the entire question of insurance was immaterial to the issue, and that the defendant is not legally interested in knowing how the judgment against it shall be divided, or whether the contract providing for its division is or is not legally executed.

It is strenuously contended on behalf of defendant that a verdict should have been directed in its favor because (it is claimed) there is no evidence that the engine in question was not in “good order.” Defendant caused an inspection of the engine to be made a few hours after the fire occurred and offered evidence to show that the spark arrester, as well as all other parts of the engine, was in perfect condition. Plaintiff was unable to meet this evidence with any direct proof that the spark arrester was not in good order, but there was abundant testimony (introduced for the most part by defendant) to the effect that an engine in “good order” would not emit sparks capable of kindling a fire at a distance of 40 to 50 feet from the track. The eyewitnesses first upon the ground agree that the fire started at a point quite that distance from the track over which the engine in question ran. Under these circumstances, we think the question was for the jury, and that a directed verdict was properly refused. Peter v. Railway Co., 121 Mich. 324 (80 N. W. 295, 46 L. R. A. 224, 80 Am. St. Rep. 500); Clark v. Railway Co., 149 Mich. 400 (112 N. W. 1121, 12 Am. & Eng. Ann. Cas. 559); Potter v. Railway Co., 157 Mich. 216 (121 N. W. 808, 22 L. R. A. [N. S.] 1039).

Defendant submitted a request to charge upon the question of plaintiff’s contributory negligence based upon the fact that plaintiff had permitted sawdust, hay, and chaff to remain upon the ground in close proximity to the icehouse, thus materially increasing the risk from fire. The request was properly refused under the authority of Peter v. Railway Co., supra. The decisions upon the point are not without conflict, but the weight of authority is with the rule announced. Error is assigned upon the charge of the court. The charge taken in its entirety is a correct exposition of the applicable law.

The judgment is affirmed.

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