text:
    KULESZA v. WYHOWSKI.
    1. Eraud-^-Exprbssion of Opinion.
    Mere honest expression of opinion -will not, although the opinion may prove to be erroneous, be regarded as fraud, either as the basis of an action for deceit or as a ground for setting aside or refusing performance of a contract.
    2. Same — Prospective Profits — Expression of Opinion.
    In an action for misrepresentation and fraud, statements by defendants as to the prospective profits to be made by plaintiff and defendants in a joint enterprise in purchasing land and cutting the timber thereon, which were mere expressions of opinion, were not actionable, and a verdict should have been directed for defendants.
    3. Same — Pleading—Mistake.
    Where the declaration did not count upon any misrepresentation in showing plaintiff the timber upon adjoining lands, and the record is clear that defendants were as much mistaken in the location of the boundary line as was plaintiff, there could be no recovery therefor.
    Error to Muskegon; Vanderwerp (John), J.
    Submitted January 14, 1921.
    (Docket No. 78.)
    Decided March 30, 1921.
    Case by Mike Kulesza against Felix Wyhowski and another for alleged misrepresentation and fraud. Judgment for plaintiff. Defendants bring error.
    Reversed.

      John A. McLaughlin and Cross, Foote & Sessions, for appellants^

      Willard J. Turner J for appellee.
   Sharpe, J.

The plaintiff sues to recover damages for alleged misrepresentation and fraud. The declaration contains but one count. It alleges, in substance, that on November 25, 1317, the defendants did represent and pretend to plaintiff as true that the defendant Wyhowski was the owner of a valuable timber tract in the county of Muskegon and that if plaintiff would enter into an enterprise with them in taking timber from said land and put in a few hundred dollars he would realize therefrom in four or five months three to four thousand dollars profit; “that it was a sure thing and a good investment and could not fail in the time aforesaid to yield him, said plaintiff, large returns aforesaid”; that plaintiff relied on such representations and was induced thereby to put into said enterprise $635. The declaration then alleges the falsity of such representation to the knowledge of defendants, and states that they were made for the purpose of deceiving plaintiff and that he was deceived thereby; that said land was not covered with heavy timber, but mostly with oak grubs of no practical value; that by reason of the fraud and deceit so practiced on him he lost the money put in by him, and seeks damages by reason thereof.

The misrepresentations relied on may be thus stated:

First. That Wyhowski was the owner of a valuable timber tract.

Second. That plaintiff’s profit in the enterprise would be certain and amount to several thousand dollars.

The plaintiff testified in his direct-examination as follows:

“They told me at that time (November 25,1917) that I should invest my money and buy that land and that we could cut the timber on it and make money. That is all that was said, that we wouljd cut that up into boards and sell it and that I wouldn’t have to work any longer at the foundry. * * * They said it was big, heavy timber. * * * They didn’t exactly say how much there would be earned off that land, but that the four of us- would make around fifteen thousand dollars in about six months to a year.”

That he believed those statements and, relying on them, he put up the money. That before that date he had gone out with the others and looked at the timber and that the land they showed him “was covered with a heavy growth of large timber.” That he went and looked at the timber a second time at a later date, accompanied by a friend. It further appears from his testimony that when they first talked about it he knew that Wyhowski did not own the land. That on November 24, 1917, Wyhowski purchased three 40’s under contract from Kate McShannock for $1,200, on which $400 down payment was made. That $200 of this was paid by plaintiff, Wyhowski on the same day, at plaintiff’s request, executing a contract to sell one 40 to plaintiff’s brother Waclaw for $600, of which sum the $200 paid by plaintiff was acknowledged as part payment. Waclaw, apparently without making any payment, was treated as a party in the “enterprise,” as the witnesses called it. A sort of organization was attempted, the defendant Rola Kulesza was made president, Waclaw Kulesza secretary, the plaintiff treasurer, and Wyhowski manager. Plaintiff mortgaged his home for $500, and $450 of this, and some moneys put in by Wyhowski were placed in a bank to be drawn out only on checks to be signed by plaintiff and Wyhowski. A sawing machine was purchased, and plaintiff and his brother, with some men who were hired to assist, went to the woods and began operations. A considerable quantity of timber was cut, but the heavy snowfall in the winter of 1917-1918 much interfered with their work. Some of the timber cut was from the land of an adjoining owner, owing to a mistake in the location of the boundary line of their lands.

The plaintiff further testified:

“I worked there about three weeks * * * and then I had to go back to the foundry because I couldn’t make my living there.”

The enterprise was finally abandoned. The record is not clear as to what was done with the timber cut and the machine and tools except that it is claimed that Wyhowski sold some of them the following winter.

At the close of the proofs the defendants asked for a directed verdict for the reason, in substance, that no actionable misrepresentation charged in the declaration had been proven. This, was denied and the case submitted to the jury. A verdict was rendered in favor of the plaintiff for $439.06. From the judgment entered thereon, the defendants appeal.

The defendants insist that the court' erred in not directing a verdict in their favor. We feel constrained to so hold. These parties were well known to each other. The plaintiff was 38 years old, and had been in this country 16 years. His business in the old country was farming. None of the parties had any knowledge of lumbering or of the value of standing timber. The price of timber products at that time was abnormal, and it is apparent that all of them believed'that a large profit could be obtained in the venture they engaged in. The plaintiff’s judgment as to the quantity and character of the timber was as much to be relied on as that of either of the defendants. Wyhowski was a real estate dealer in a small way, and the other defendant kept a small store. ' Plaintiff had been twice upon the land, had advanced the $200 and procured the contract for the one 40 to be taken in his brother’s name before the representations relied on were claimed to have been made. The representations as to the profit (denied, however, by the defendants), if made as claimed, were but an expression of the visionary hopes, of men without knowledge or experience on which to found them, and form no sufficient basis for recovery. The plaintiff could not have understood that more than an opinion was expressed by the defendants, and the record is bare of any testimony tending to show any intent on the part of the defendants to defraud plaintiff. The claimed representation was but in accord with the judgment of the man who accompanied plaintiff to view the timber, who said it was “a pretty nice piece of timber. * * * If you go at it right you will make a good fortune out of it.”

The rule governing such expressions of opinion is thus stated:

“Mere expressions of matters of opinion, however strongly or positively made, though they are false, are no fraud, because, as is said in one case, these are matters in respect to which many men will be of many minds, and judgments are often governed by whim and caprice.” Cooley on Torts, p. 483.

“To furnish grounds for an action of deceit the representation must be of a matter susceptible of approximately accurate knowledge and must be in form or substance an assertion importing knowledge on the part of the speaker. A statement which by reason either of its form or subject-matter amounts merely to an expression of opinion is not actionable, for it is one upon which reliance cannot safely be placed.” 20 Cyc. p. 17.

In a note to Hedin v. Surgical Institute, 35 L. R. A. 417 (62 Minn. 146, 64 N. W. 158), wherein the cases are fully collected and discussed, it is said:

“The general rule is that the mere honest expression of opinion will not, although the opinion may prove to be erroneous, be regarded as fraud either as the basis of an action for deceit or as a ground for setting aside, or refusing performance of a contract.”

See, also, Myers v. Building Ass’n, 117 Mich. 389.

That of which plaintiff chiefly complains in his testimony is that defendants showed him timber on the adjoining land and represented it to be that which would be cut by them. The declaration does not count on any such misrepresentation, and the record is clear that the defendants were as much mistaken in the location of the line as was plaintiff.

The judgment is reversed, with costs to defendants, and a new trial granted.

Steere, C. J., and Moore, Fellows, Stone, and Bird, JJ., concurred. Clark, J., did not sit.

The late Justice Brooke took no part in this decision.


source: Caselaw Access Project

author: Sharpe, J.

license: Public Domain

text:
    STONE v. AMERICAN MUTUAL AUTO INSURANCE CO.
    1. Insurance — Automobiees — Theft Insurance — Evidence— Sufficiency — Directed Verdict.-
    In an action on an insurance policy against the theft of an automobile, the proof that the automobile was stolen from plaintiff, held, sufficient to justify tbe trial judge in directing a verdict for plaintiff.
    2. Same — Notice of Loss — Defenses—Waiver.
    Although there was some contradiction in the testimony as to when- defendant’s representative, whose authority is not questioned, was first notified of the theft, where he frequently informed' plaintiff that he was investigating same, furnished the blank on which proof of loss was made, and made no denial of liability for the reason that notice had not been given before action was brought, the defense Ibat the notice did not comply with the requirements of the policy was waived.

      On the question of automobile insurance against theft, robbery, and pilferage, see notes in 44 L. R. A. (N. S.) 75; 51 L. R. A. (N. S.) 584; L. R. A. 1915E, 579; L. R. A. 1917F, 543.

      3. Same — Evidence—Collateral Issue.
    Where it appeared that plaintiff was indebted to the person in whose custody the automobile was at the time it was stolen, the question as to what the indebtedness was for, asked on cross-examination, was properly rejected, being collateral to the issue presented.
    Error to superior court of Grand Rapids; Dunham (Major L.), J.
    Submitted January 4, 1921.
    (Docket No. 29.)
    Decided March 30, 1921.
    Assumpsit by Carl E. Stone against the American Mutual Auto Insurance Company on a) policy of insurance against theft. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      Harry Johnson (Lombard & Hext, of counsel), for appellant.

      Frank J. Powers, for appellee.
   Sharpe, J.

On November 30, 1918, defendant issued to plaintiff a policy of insurance protecting him against the loss of an automobile by theft. It is his claim that such automobile was stolen on June 28, 1919, while such policy was in force. He now sues to recover his loss occasioned thereby. The trial court directed a verdict in his favor for $531.90, and defendant appeals.

It is claimed that under the proofs the question as to whether the car was in fact stolen from plaintiff should have been submitted to the jury. It appeared that plaintiff was out of the city where he lived and had left the car in charge of Roman Glocheski; that Glocheski had used it on the day in question and parked it near his office and, on his return a few hours after, it was gone. We agree with the trial court that there were no such discrepancies or contradictions in the testimony of these witnesses, or any statements claimed to have been made by them to others as to the loss, as justified the submission of the question to the jury.

The policy provided that immediate notice of the loss should be given to the defendant. The car was taken on Saturday, June 28, 1919. The plaintiff returned home the following day, but was not informed of the loss until Monday morning. He testified that he then called up defendant’s representative, Mr. Caldwell, and told him about it and suggested that he should see Glocheski for particulars; that he saw him again later in the week and talked with him about it. Glocheski testified that he informed plaintiff on Monday morning that the car had been stolen and that he advised Mr. Caldwell of the fact on the same day, and that he afterwards saw and talked with him about it. A written statement relative to it was furnished on July 5th. Proof of claim for loss on a blank furnished by defendant was made on July 21st.

Mr, Caldwell testified that the first notice he received was a telephone call from Glocheski on July 5th; that, accompanied by Deputy Sheriff Wyman, he went to Glocheski’s office and the written memorandum was then made; that he made investigation thereafter concerning the loss of the car, and that he furnished the blank on which proof of loss was made to Mr. Stone, with a request that he fill it out; that in frequent conversations thereafter he told plaintiff that the company was investigating the loss; that there was no denial of liability for the reason that notice had not been given before suit was brought. We think the trial court was justified in his conclusion that, even if the notice given did not comply with the requirements of the policy, such defense was waived by the subsequent acts of the defendant’s representative, whose authority was not questioned. Hohn v. Casualty Co., 115 Mich. 79; Towle v. Insurance Co., 91 Mich. 219, and cases cited.

It appeared that after plaintiff’s loss he had assigned his right to recover therefor to Glocheski, but a reassignment had been made to plaintiff before suit was brought. Glocheski was cross-examined as to these transfers and, after stating that plaintiff owed him $800 at the time the transfer was made, he was asked, “Q. What was that for?” To this an objection was interposed and sustained. The reason assigned by counsel for its materiality was, “This witness was very closely associated with the disappearance of this car.” The matter was collateral to the issue presented. We think there was no prejudicial error in the ruling of the court.

The judgment is affirmed.

Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Bird, J«J., concurred.


text:
    FERGUSON v. PERRY COAL CO.
    1. Contracts — Unconscionable Contracts — Nature.
    Contracts so inequitable and unconscionable that courts will not enforce them must be such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.
    2.. Same — Fraud—Presumptions.
    A presumption of fraud arises from the unconscionable nature of the contract itself.

      3. Same — Public Policy — Right of Action.
    A contract in writing between two mature, experienced business men, whereby defendant agreed to pay plaintiff 50 cents a ton on 1,544 tons of coal to be bought by de- • fendant and sold again in consideration of plaintiff’s indorsement of defendant's note, thus enabling him to secure the money to finance the deal, was not so unconscionable as to bar plaintiff’s recovery in an action thereon.
    Error to Chippewa; Fead (Louis H.), J.
    Submitted January 21, 1921.
    (Docket No. 56.)
    Decided March 30, 1921.
    Assumpsit by Robert G. Ferguson against the Perry Coal Company for money due under a written contract. Judgment for plaintiff non obstante veredicto. Defendant brings error.
    Affirmed.

      M. M. La/rmonth, for appellant.

      McDonald & Kaltz, for appellee.
   Sharpe, J.

The defendant company, a retail coal dealer at Sault Ste. Marie, desiring to purchase a boat cargo of salvaged! coal, amounting to 1,544 tons, approached plaintiff to finance the transaction. After certain negotiations, an agreement was reached which was reduced to writing. In it plaintiff agreed to and did indorse the note of defendant by which the necessary money was secured from a bank. By its terms plaintiff was secured on the salvaged and other coal of defendant by a bill of sale. The defendant agreed to retail the coal and deposit the proceeds of such sales in the bank until the note with interest was fully paid. After such payment, it was agreed that defendant should pay plaintiff 50 cents per ton on the coal thus purchased in consideration of his indorsement and services in the transaction. This coal was purchased at $8.50 per ton. The defendant estimated the cost of handling it at $1 per ton. Part of it was sold for $10.50 per ton and the balance for $11.75. The defendant refused to pay plaintiff the 50 cents per ton provided for in the contract, and plaintiff brought suit therefor. The trial court directed a verdict for plaintiff, and defendant appeals.

The sole question presented is thus stated by defendant’s counsel: “Was the contract upon which this suit is brought such a contract as can be enforced in a court of justice?” He insists that the risk assumed by plaintiff by his indorsement was not a sufficient consideration for defendant’s promise to pay the 50 cents per ton on the quantity of coal purchased; that the contract was unconscionable and therefore unenforceable.

There may be contracts so inequitable and unconscionable that courts will not enforce them. But, as was said by Lord Hardwicke in Earl of Chesterfield v. Janssen, 2 Yes. Sen. 155, quoted in Hume v. United States, 132 U. S. 406 (10 Sup. Ct. 134), these contracts must be such “as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.” A presumption of fraud arises from the unconscionable nature of the contract itself. We feel constrained to hold that this is not such a contract. The president of the defendant company, with whom the negotiations were had and the contract made, had been engaged in the coal business for a number of years. He admits that he knew if he did not get the coal it would be purchased by a rival dealer. Payment in cash was required. His negotiations with plaintiff lasted several days. He finally offered him the 50 cents per ton out of the net profits if he would help to secure the loan. Mr. Ferguson’s attorney was present at the last conference, at which the nature of his security was discussed and finally agreed upon.

The relation of these parties was not that of borrower and lender. The rule laid down in Dorrill v. Eaton, 35 Mich. 302, and kindred cases does not apply. The plaintiff in no way took advantage of the financial necessities of the defendant. The defendant saw an opportunity to purchase a quantity of coal at a price at which it believed it could make a considerable profit. It could not finance the deal. It arranged with plaintiff to do so, not by a loan from him, but by securing his indorsement on a note by means of which the money was obtained. The amount involved was large.. Plaintiff’s compensation depended upon whether defendant so handled the coal as to make a profit. We are impressed that the trial court reached a proper conclusion when he said:

“In my judgment, the whole matter may be summed up in one sentence: That the contract was entered into by two grown up business men, both of whom knew what they were doing and intended to do what they did, and the defendant, having obtained all the benefit of the contract, should perform its obligations thereunder. The contract is not unconscionable in any respect.”

The judgment is affirmed.

Fellows, Stone, Clark, and Bird, JJ., concurred.

Steers, C. J., and Moore and Brooke, JJ., did not sit.


text:
    NICHOLS v. MUMFORD.
    1. Partnership — Injunction—Accounting—Equity.
    In a suit by one partner, who was liable on a note for the purchase price of partnership cattle, to restrain the other partner, who was financially irresponsible, from disposing of partnership assets and for an accounting, where it appears that defendant informed plaintiff that he was going to ship the cattle to Buffalo, but declined to state to whom shipment would be made, and afterwards shipped them to Chicago, held, that, under the circumstances, plaintiff was justified in bringing suit.
    2. Same — Partnership at Will — Finding oe Court — Evidence —Sufficiency.
    The finding of the trial judge that no definite period for the partnership to run was ever agreed upon, and that it was a partnership at will, held, supported by the record.
    3. Same — Dissolution.
    A partnership at will may be 'dissolved at any time by action of either party.
    4. Same — Accounting—Decree—Modification.
    The decree of the court below determining the partnership assets is modified in this court to include 8 calves on the farm at the time suit was brought, disallowing defendant’s expenses in moving to the farm, allowing him a reward and expenses paid incident to the recovery of a bull which had strayed away, and also allowing him the amount paid for sundry articles used in the firm business.
    5. Same — Cross-Bill—Scope of Partnership.
    In a suit for partnership accounting, defendant could not recover on his cross-bill for any personal work or labor done for the plaintiff not within the scope of the partnership.
    Appeal from Kent; Brown (William B.), J.
    Submitted January 12, 1921.
    (Docket No. 114.)
    Decided March 30, 1921.

      Bill by Fred I. Nichols against Ward B. Mumford to enjoin the disposal of partnership assets, and for an accounting. From a decree for plaintiff, defendant appeals.
    Modified, and affirmed.

      Travis, Merrick, Warner & Johnson, for plaintiff.

      James C. Wood, for defendant.
   Sharpe, J.

The plaintiff, a resident of Grand Rapids, owned or controlled a considerable tract of land near Hunt Spur in Mackinac county, some of which was under cultivation. In the fall of 1918 an arrangement,’ partaking of the nature of a copartnership, was entered into between him and defendant, under which defendant moved to the farm. The bill of complaint alleges that plaintiff and defendant were the joint owners of 29 head of cattle on said farm, worth about $3,000, which had been purchased for the purpose of pasturing, feeding and disposal at a contemplated profit, and also two ponies with saddles and equipment used in looking after said stock; that defendant furnished about $600 of the purchase price of the cattle and plaintiff’s credit had been pledged for the balance thereof. It further alleges that plaintiff was apprehensive that defendant would dispose of said cattle without plaintiff’s knowledge and refuse to account to him therefor. An injunction was prayed for and an accounting asked for. Defendant, answering, admitted the purchase of the cattle and his sale of them, but denied that he was making such sale without the knowledge of plaintiff; alleged that the lack of sufficient pasturage, owing to the drought and forest fires, necessitated such sale, and that it was his intention to deposit the proceeds thereof in the bank from which plaintiff’s loan to pay for the cattle had been negotiated. By way of cross-bill he asked that plaintiff be required to execute the articles of copartnership agreed upon and specifically perform the same and on failure to so decree that a full accounting should be had and the damages sustained by defendant determined and allowed.

The proofs were taken in open court. The decree dissolved the copartnership. It determined the assets, and ordered an equal division of same. It further provided that, if the parties could not agree upon a division, a sale be had under a receiver to be appointed by the court and the proceeds, after deducting the expenses, be equally divided. It denied defendant’s claim for damages and dismissed his cross-bill. Costs were allowed to plaintiff. The defendant appealed.

It was evidently the purpose and desire of both parties that a copartnership should be entered into for dealing in livestock and grazing and feeding them for market. It is apparent they felt assured they were engaging in a venture which would be very profitable to both, but found risks and expenses incident thereto of which they had no contemplation. We think the proofs show that, owing to the dry weather and forest fires having destroyed the pasturage, it became necessary to dispose of the cattle. It does, not appear that there was any agreement as to which of the parties should make sales or receive the proceeds. The plaintiff was liable for $2,200 on the note for the purchase price, signed by him for the firm. It seems to be conceded that the defendant was not financially responsible. In the conversation over the telephone, had between them concerning the shipment, defendant informed plaintiff that he was going to ship them to Buffalo but declined to state to whom shipment would be made. He afterwards shipped them to a commission firm in Chicago. Under the circumstances, we think plaintiff was justified in bringing this suit.

There had been much negotiation between the parties as to the terms of the copartnership. A written memorandum was prepared by plaintiff and submittéd to defendant, who claims he suggested some changes therein. While the writing contains 13 distinct paragraphs and in the last of them provides for the termination of the partnership at any time by mutual consent or by either party giving six months’ notice to the other, it is significant that the period of its duration is nowhere stated therein. It is plaintiff’s claim that it was to run indefinitely, while defendant and his wife testified that a 10-year period was agreed upon. The trial court saw and heard the witnesses, and we are loath to disturb the conclusion reached by him that no definite period was ever agreed upon. The partnership therefore existed at will and might be dissolved at any time by action of either party. Walker v. Whipple, 58 Mich. 476.

But little attention is given to the matter of accounting in the briefs of counsel. We are reluctant to remand the case for further proofs and findings as to the items in dispute, as was done in Bignell v. Franks, 212 Mich. 236. We have given careful consideration to the claims of the defendant and the testimony in support of them and have arrived at the following conclusions:

a. The copartnership property, besides that mentioned in the decree, should include 8 calves on the farm at the time suit was brought.

b. The defendant is not entitled to charge the expense incident to his moving to the farm to the copartnership nor any damages occasioned by its dissolution. Neither can he in this proceeding recover for any personal work or labor done for the plaintiff, not within the scope of the partnership.

c. Defendant paid out $36.75 for a reward and expenses incident to the recovery of a bull which had strayed away. This should be treated as a firm obligation, as should also the sum of $16.90 paid out by him personally for sundry articles used in the firm business.

d. The expenses of defendant’s trip to Tawas was offset by those of plaintiff, it appearing that each party paid his own expenses.

Other items are claimed by defendant, but we do not think the proofs sufficiently clear to justify their allowance.

The decree will be modified to conform to the conclusions stated, and, as thus modified, affirmed. The defendant will recover his costs of this court.

Steers, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Bird, JJ%, concurred.


text:
    PEOPLE v. MURNANE.
    1. Criminal Law — Unlawfully Driving Away Automobile— Evidence — Sufficiency.
    In a prosecution under Act No. 313, Pub. Acts 1919, charging defendant with assisting in unlawfully driving away an automobile, proof held, sufficient to justify the submission of the question of defendant’s guilt to the jury.
    2. Same — Trial—Instructions—Statutes—Construction.
    An instruction, in effect, that defendant need not have physically participated in the unlawful taking possession of the car, but that if the jury were satisfied that he was assisting in driving it away, knowing it to have been unlawfully taken, they would be justified in his conviction, held, a fair construction of the statute.

      3. Same — Trial—Instructions—-Admitted Facts.
    Where, on the trial, defendant's counsel admitted the identification of the car and its ownership, an instruction that “there are many facts not in dispute in this case, gentlemen of the jury, and what facts are not In dispute you may consider as established,” held, not open to the objection that the reference was to facts which were disputed as not sufficiently shown, since it is apparent that the court was referring to facts not in dispute by reason of the admissions of defendant’s counsel.
    4. Same — Witnesses — Instructions — Defendant’s Failure to Take Stand.
    An instruction that “the respondent has not taken the stand in his own behalf, a fight which he has under the law, gentlemen of the jury, and you are not to draw any unfavorable conclusions because of that fact,” given in place of a lengthy request relative thereto, held, to fully protect the rights of defendant in this respect.
    Error to recorder’s court of Detroit; Heston (William M.), J.
    Submitted January 13, 1921.
    (Docket No. 122.)
    Decided March 30, 1921.
    James Murnane was convicted of assisting in unlawfully driving away an automobile, and sentenced to imprisonment for not less than 3 nor more than 10 years in the State prison at Jackson.
    Affirmed.

      Chawke & Sloan, for appellant.

      Merlin Wiley, Attorney General, Paul W. Voorhies, Prosecuting Attorney, and John V. Brennan, Assistant Prosecuting Attorney, for the people.
   Sharpe, J.

The defendant was convicted of a violation of section 15430, 3 Cotaip. Laws 1915, as amended by Act No. 220, Public Acts of 1917, and Act No. 313, Public Acts of 1919. The statute as amended reads as follows:

“Any person who shall wilfully or wilfully and wantonly and without authority, take possession of and drive or take away and any person who shall assist in and be a party to such taking possession of, driving or taking away of any automobile or other motor vehicle belonging to another and lawfully standing in any street, alley, garage, stable or other place, shall be deemed guilty of a felony and on conviction thereof shall be punished by imprisonment in the State prison for a term not less than one year nor more than ten years: Provided, That the provisions of act one hundred five of the Public Acts of nineteen hundred and thirteen shall not* apply to any person convicted of a second or subsequent offense under the provisions of this act.”

It appears from the record that the car in question, a Buick roadster, was left by its owner on Cass avenue near Michigan in the city of Detroit about 5 o’clock in the afternoon! of May 12, 1920; that about 10:30 that night Officers McNally and Detloff of the police department stopped a car, which proved to be the one taken, going north on Cass avenue between Sproat and Bagg streets, about a half mile from where it was taken. The curtains were down and no light burning. In it were the defendant and Barone and Alexander, who were jointly informed against with him. Barone was driving, the defendant sitting between him and Alexander. McNally asked whose car it was. Defendant spoke and said it belonged to Barone. Barone said, “No, that they hired him to take this car.” On cross-examination he (McNally) was asked:

“Q. Did he (Alexander) ever state in your presence that he took the car?
“A. He stated he was with Murnane and Barone when they took it, the three of them. * * * We asked him (Alexander) how he happened to be there. He said that Barone picked him up and took him for a ride, that is what he said. And we asked Barone in front of him. He said, ‘No, that they hired him to take this car.’ It is not a fact that that night Murnane said that Alexander was the one that picked him up, and that it was Alexander’s car. Alexander never said he picked Murnane up.”

Alexander, who had pleaded guilty to the charge, was called as a witness. He testified:

“I met Murnane that night, I imagine about 5:30 or 6 o’clock. I met him before this car was taken. * * * We took this car about, I am not positive of the time of that. * * * We just started to drive it up Cass avenue to my place when we were apprehended. * * * I knew Barone didn’t own it. Barone was. hired to steal the car. I didn’t hire him. I told him of a man that would pay $200 if he wanted it; he stole it. I did not hire Barone and Murnane to steal that car. I told Judge Keidan that I hired Charles Barone to steal it. * * * I didn’t steal that auto. I was hiring it to be stolen, I didn’t take it. * * * Barone and I went down there for the purpose of taking this car. * * * I first got acquainted with James Murnane about eighteen months ago. Just about two years now. * * * During the past two years. I have seen him several times.”

He further testified that as they passed the Statler hotel he saw the defendant, whom he had met earlier that evening; that he got out and asked him to go with them to his (Alexander’s) house, a distance of seven or eight miles from defendant’s home; that defendant had no knowledge that the car had been unlawfully taken. He also testified that defendant told Officer McNally that the car belonged to Barone, and further, “Murnane at the time he was riding in the car did not ask Barone if Barone owned the car. There was no conversation like that”; that he had never met Barone before that night, having been “introduced to him as being a professional 'car thief by two or three taxi drivers”; that he had ridden with defendant on other occasions; that though he had known defendant for two years he didn’t know what his occupation was. We are of the opinion that there was sufficient proof to justify the submission of defendant’s guilt to the jury.

Error is assigned on the following excerpt from the charge of the court:

“I further charge you, gentlemen of- the jury, that you need not — it is not necessary for you to find that this respondent participated in the original taking of the machine, if you find from the evidence^ beyond a reasonable doubt, that this respondent rode in this car with the knowledge that it was a stolen machine — or, I won’t say stolen machine — I mean that, it has been unlawfully driven away by the party with whom the defendant was then and there riding, then, gentlemen of the jury, you would be justified in bringing in a verdict of guilty as against this respondent.”

The court had theretofore fully and fairly defined the charge and the proofs necessary to support it. While some of the language here used was unfortunate and somewhat involved, we are impressed from reading the charge as a whole that the jury could not have been influenced thereby to the prejudice of the defendant. Taken in connection with what precedes and follows it, the jury were instructed in effect that the defendant need not have physically participated in the unlawful taking possession of the car, but if satisfied that he was assisting in driving it away, knowing it to have been unlawfully taken, they would be justified in his conviction. We think this a fair construction of the statute.

Error is also alleged on the following instruction:

“Questions of fact are solely yours. You are to take the evidence'submitted here before you and establish the facts in this case. There are many facts not in dispute in this case, gentlemen of the jury, and what facts are not in dispute you may consider as established.”

When the prosecution were putting in proof to identify the car and prove the ownership, counsel for the defendant said: “There isn’t any question as to the identification of the car, the ownership.” The arguments of counsel are not in the record. It is apparent to us, and we believe the jury could not but have understood, that the court was referring to facts not in dispute by reason of the admissions of defendant’s counsel rather than facts which he did dispute as not having been sufficiently established by the proofs.

This case is easily distinguishable in this respect from People v. DeFore, 64 Mich. 693, and Durant v. People, 13 Mich. 351, relied on by counsel. In both of these cases the court had called attention to the fact that certain testimony directly connecting the defendant with the crime charged was uncontradicted and that they might take the facts so testified to as established in examining the case.

Defendant did not testify as a witness and his counsel preferred a somewhat lengthy request relative thereto. The court charged:

“The respondent has not taken the stand in his own behalf, a right which he has under the law, gentlemen of the jury, and you are not to draw any unfavorable conclusions because of that fact.”

We think this fully protected the rights of the defendant in this respect. We have examined the other requests preferred by counsel. They are as a rule quotations from decisions of this court, and the court would not have erred had they been given. But, after reading the testimony submitted and the charge of the court, we feel constrained to hold that the charge as given, when applied to the proofs, fully protected the rights of the defendant.

The conviction is affirmed.

Steeré, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Bird, JJ., concurred.


text:
    SILVER v. SHULMAN.
    1. Appeal and Error — Equity—Supreme Court Hears. Chancery Cases De Novo.
    The Supreme Court hears chancery cases de novo, aided but not controlled by the findings of fact of the trial judge.
    2. Specific Performance — Vendor and Purchaser — Sunday Con* tract.
    On appeal from a decree granting the specific enforcement of a preliminary contract for the sale of an apartment building, where the record is convincing that said contract was signed on Sunday, and therefore void, the decree of the court below will be reversed.
    Appeal from Wayne; Mandell (Henry A.), J.
    Submitted February 1, 1921.
    (Docket No. 103.)
    Decided March 30, 1921.
    Bill by Louis Silver and another against Benjamin Shulman and another for the specific performance of a land contract. From a decree for plaintiffs, defendants appeal.
    Reversed, and bill dismissed.

      William F. Connolly and Louis H. Wolfe, for plaintiffs.

      William H. Wetherbee (William Henry Gallagher, of counsel), for defendants.
   Sharpe, J.

The plaintiffs seek specific performance of a preliminary contract executed by them and the defendants for the purchase and sale of a certain apartment building in the city of Detroit. The writing is dated April 5, 1919. The claim of the defendants is that, while so dated, it was in fact signed on Sunday, April 6th. The trial court found against the defendants. As was said by Mr. Justice Fellows in the recent case of Leser v. Smith, 212 Mich. 558, 561:

“This court hears chancery cases d& novo, aided but not controlled by the findings of fact of the trial judge.”

We have read and re-read this record with much care. While loath to overrule a finding of fact made by the trial court, who saw and heard the witnesses, we are convinced, after considering all the testimony submitted, that the preponderance is with the defendants.

The story of the transaction as testified to by plaintiffs and their witnesses is as follows: Louis Cransburg and Charles Weingartner, real estate agents, having heard that defendants wished to sell their apartment house, went there with a prospective purchaser in the latter part of March, 1919, but no sale was made. On Friday, April 4th, Weingartner and the plaintiff Louis Silver drove about the city, looking at different properties. They stopped in front of defendants’ apartment, but did not get out of the car. They made no appointments to meet again. About noon on the following day, Silver went to their office and said “he was willing to take that’ property.” After 7 o’clock that evening, Silver drove around with his call, having with him his wife, his father-in-law and his sister-in-law, and, taking the two real estate agents, they went to the defendants’ apartment and about half an hour later the preliminary contract was signed. Up to this time, Silver had never seen the inside of the property and had no knowledge of the rentals being paid therefor. He then saw the apartment in which the defendants lived and was told the rentals received for the other apartments. The price agreed upon was $25,500. Two hundred dollars was then paid, $4,800 to be paid when the deal should be closed, five days after the abstract was completed, and the balance in quarterly payments of $550 each, with interest. The improbability of a man’s deciding to make a purchase of a property worth $25,500 without examining it or ascertaining anything about the rentals received is apparent. It also appears that plaintiff is in the fish business and, conformable to his Jewish faith, had his store closed on Saturday, but was in the habit of opening it for business at 7 o’clock in the evening.

The defendants testified that Silver and the two real estate agents came to their home on Sunday morning, April 6th; that they went through at least some of the other apartments, were informed of the rentals paid and left; that they returned, accompanied by the others, between 1 and 2 o’clock that afternoon, and after some negotiations the preliminary writing was signed. In this they are corroborated by their two sons, boys of 13 and 15 years of age, and by three other witnesses who were occupants of near-by apartments, and to a greater or less extent by four other witnesses.

It will serve no useful purpose to set out the testimony at greater length. There is no way in which the conflict therein can be reconciled or accounted for on the ground of mistake. We can but apply the usual tests of interest of the witnesses, probability of the truth of their stories as told and the inferences to be drawn from usual or unusual conduct. After giving all the testimony due consideration, we feel constrained to hold that the evidence tending to show that the writing was signed on Sunday predominates. It was therefore void, could not be ratified, and cannot be enforced. Aspell v. Hosbein, 98 Mich. 117; Acme Electrical, etc., Co. v. Van Derbeck, 127 Mich. 341 (89 Am. St. Rep. 476) ; Berston v. Gilbert, 180 Mich. 638.

A decree will be here entered dismissing the bill of complaint, with costs to the defendants.

Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Bird. JJ., concurred.


text:
    NIGHT COMMANDER LIGHTING CO. v. BROWN.
    1. Sales — Acceptance by Principal — Countermand.
    An. order for the purchase of goods given to an agent, which is subject to acceptance by the principal, may be countermanded at any time before acceptance, although it contain the words “not subject to countermand.”
    2. Same — Countermand—Notice to Agent Sufficient.
    Notice to countermand an order for a lighting plant, given before its acceptance by the principal to the same agent who took the order, is notice to the principal, although the agent failed to communicate the same to the principal.
    3. Same.
    A notice to hold goods “until further notice” is a sufficient countermand.
    4. Same — Countermand—Trial—Evidence—Question of Law.
    Where defendant’s son testified that he notified the agent to countermand the order, and plaintiff’s agent admitted that the son told him “not to ship the lighting plant,” the trial court properly 'disposed of the question, as a' matter of law.
    Error to Lapeer; Williams (William B.), J.
    Submitted January 14, 1921.
    (Docket No. 12.)
    Decided March 30, 1921.
    Assumpsit in justice's court by the Night Commander Lighting Company against Ira Brown on a contract for the sale of a farm lighting plant. There was judgment for defendant, and plaintiff appealed to the circuit court.- Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Herbert W. Smith, for appellant.

      Theo. D. Hatpin, for appellee.
    For authorities discussing the question as to whether notice to traveling salesman is notice to his employer, see note in 25 L. R. A. (N. S.) 231.
   Sharpe, J.

Fred Morford and Peter Lubahn, two of plaintiff’s salesmen, secured a written order from defendant for a generator and appliances suitable for lighting his farmhouse. It provided “this order is not subject to countermand” and is “subject to the approval of said company at its executive office.” Within a few hours thereafter, Orin Brown, a son of defendant, who lived with him on the farm and whom Lubahn had- theretofore solicited for such an order, after an interview with his father, called to the salesmen who were driving past and Lubahn came to the fence where he was working. Orin testified:

“I asked him if he took an order from pa, and he said he had, and I says, ‘You can countermand that order. Pa has instructed me to countermand that order.’ I says, ‘We can’t afford it any way.’ ‘Why,’ he says, ‘it would be a good thing for the place and improve the place.’ I says, ‘That may be, but we can’t afford it. We have got to shingle the bam and other things, and we can’t meet it.’ I told him pa wasn’t capable of doing business. He was out of his head part of the time.”

Before this conversation, the salesmen had gone to Lapeer and mailed the' written order to the plaintiff and did not afterwards send notice of its countermand. On June 10th the plaintiff wrote defendant acknowledging receipt of the order. An acceptance is indorsed thereon as of June 17th. The lighting plant was shipped to defendant on September 30th and refused by him. It was afterwards sold by the railroad company for storage.

The plaintiff sued in justice’s court to recover the price as fixed in the order, $275. A judglment was there rendered for the defendant, from which plaintiff appealed to the circuit court. Both parties moved for a directed verdict. The motion of defendant was granted and a verdict directed in his favor. From the judgment entered thereon, plaintiff appeals.

Was the order countermanded? It is elemental that an order such as this, though it contain the words “not subject to countermand,” may be countermanded at any time before acceptance. Until so accepted, it is simply an offer to purchase and in no way creates a binding agreement. 13 C. J. p. 293; Peck v. Freese, 101 Mich. 321; Challenge Wind & Feed Mill Co. v. Kerr, 93 Mich. 328. Plaintiff’s counsel contend that —

“By requesting the salesman to countermand this order the defendant made the salesman his agent to perform such service for him”—

and, as the notice of countermand was not communicated to the plaintiff at its office, none was in fact and in law given. With this contention we are unable to agree. The notice of countermand given to the same agent who took the order was, in our opinion, notice to the plaintiff. It was the agent’s duty to communicate it to his principal, and his failure to do so in no way relieved the plaintiff from the effect thereof. 2 Mechem on Agency (2d Ed.), § 1831; 1 Elliott on Contracts, § 33; Goodspeed v. Wiard Plow Co., 45 Mich. 322; Westinghouse Electric Co. v. Hubert, 175 Mich. 568 (Ann. Cas. 1915A, 1099). In the latter case Mr. Justice Stone, speaking for the court, at page 579, said:

“We think the weight of authority is to the effect that, where notice is given to an agent in the discharge of his duty, and within the scope of his agency, it must operate as notice to the principal. In such a case knowledge of the salesman is knowledge of the firm. Mechem on Agency, § 721; Straus, Gunst & Co. v. T. O. Sparrow & Co., 148 N. C. 309 (62 S. E. 308).
“The principal is charged with all notice or knowledge, relating to the subject-matter of the agency, which the agent acquires or obtains while acting as such agent and within the scope of his authority. Jenkins Bros. Shoe Co. v. G. V. Renfrow & Co., 151 N. C. 323 (66 S. E. 212, 25 L. R. A. [N. S.] 231).”

Direction of the verdict. Plaintiffs counsel insists that under the proofs the question as to whether notice of countermand was given was a question for the jury. The testimony of defendant’s son, Orin, has been already quoted. Lubahn was not sworn as a witness. The other salesman, Morford, testified, over plaintiff’s objection, that Lubahn, on his return to him after his conversation, said that Orin told him “not to ship the lighting plant. That the old gentleman was always doing something he ought not to do. He was crazy.”

In Peck v. Freese, supra, it was held that a notice to “Please hold same (machine ordered) until further notice” was a sufficient countermand. We think there was no disputed question of fact to be submitted to the jury and that the verdict was properly directed.

The judgment is affirmed.

Steere, C. J., and Moore, Fellows, Stone, and Bird, JJ., concurred. Clark, J., did not sit.

The late Justice Brooke took no part in this decision.


text:
    KRUEGER v. HAYES MANUFACTURING CO.
    1. Master and Servant — Workmen’s Compensation Act — Award of Industrial Accident Board — Conclusiveness—Certiorari —Review.
    On certiorari to review an award of the industrial accident hoard under the workmen’s compensation act, the Supreme Court may not weigh the evidence, or pass upon the preponderance, and may only set aside the award when the record contains no testimony to facts or theory amounting to legal evidence that death was attributable to the accident.
    2. Same — Cause of Death — Evidence.
    Although two physicians testified that by a post mortem, they found that death was caused by a thrombus, or blood clot, at the mouth of the left coronary artery of the heart, and that in their opinion an injury to decedent’s leg in no way contributed thereto, where another physician testified that in his opinion the “accident contributed or resulted in the man’s death,” that bacteria from the infection in the wound might have produced the condition revealed, it cannot be said that there was no testimony sustaining the finding of the board that the accidental injury to decedent’s leg was the cause of his death.
    Certiorari to Industrial Accident Board.
    Submitted January 21, 1921.
    (Docket No. 90.)
    Decided March 30, 1921.
    Eleanor Krueger and another presented their claim for compensation against the Hayes .Manufacturing Company for the accidental death of plaintiffs’ decedent in defendant’s employ. From an order awarding compensation, defendant and the Michigan Mutual Liability Company, insurer, bring certiorari.
    Affirmed.

      Beaumont, Smith & Harris (Hal. H. Smith and Albert E. Meder, of counsel), for appellants.

      E. Dean Alexander, for appellees.
    On recovery for infection under workmen’s compensation act, see note in L. R. A. 1918F, 876.
   Sharpe, J.

Ludwig Krueger, while in the employ of the Hayes Manufacturing Company as a sweeper, on October 25, 1919, sustained an injury by an automobile seat slipping off a truck and striking him on the right leg between the knee and the ankle. A severe bruise resulted. He was taken to a hospital, where his wound was dressed, and afterwards to his home. On November 7th the wound became infected and he was removed to a hospital, where he remained until November 18th. He was then able to walk with the aid of others. His wife and daughters testified that on the second or third day after his return he again began to complain of pain and soreness, and this continued. The wound “looked worse, * * * more inflamed, * * * awful dark red,” and began to discharge matter of a “whitish” color, streaked with blood. His condition grew worse until the morning of November 24th, when he died. A short time before his death, he complained much of the pain in his leg and said that it was “crawling up to his chest.”

A post mortem was held by Dr. Morse. He testified that he found a thrombus, or blood clot, at the mouth of the left coronary artery of the heart, which in his opinion was the cause of death, and that the injury in no way contributed to it. Dr. Martin, who was present, was of the same opinion. Dr. Charles S. Kennedy was called as an expert by the applicants. In answer to a hypothetical question fairly embodying the facts as testified to by the witnesses for plaintiffs, he stated that in his opinion the “accident contributed or resulted in the man’s death.” He testified that bacteria from the infection might have gotten into the artery and produced the condition revealed by the post mortem. The industrial accident board, to whom the matter was presented, filed a lengthy opinion reviewing the testimony and concluded that the accidental injury was the proximate cause of death. The allowanee made by it pursuant to such finding is now before us for review.

Defendants’ counsel contend that—

“There is no competent testimony in the record, nor can a reasonable and fair inference be drawn that the injury was the proximate cause of death.”

It will serve no useful purpose to set out at greater length the evidence on which the board based its finding. In Randolph v. Railway, ante, 100, this court declined to accept the testimony of physicians and surgeons as conclusive as to the cause of death when there was competent evidence to sustain a different finding. Let us here apply the test suggested in the Randolph Case: Can it be said that the testimony, including that of Dr. Kennedy, tending to support plaintiffs’ claim that death was due to the injury, was not sufficient to justify the finding made? We think not. The testimony of the surgeons may seem convincing to us, but we are not at liberty to weigh it or pass upon the preponderance. As was said in Ortner v. Zenith Carburetor Co., 207 Mich. 610, we may only set aside the award when the record contains “no testimony to facts or theory amounting to legal evidence” that death is attributable to the accident.

The award is affirmed, with costs to plaintiffs.

Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Bird, JJ., concurred.


author: Moore, J.

text:
    BROWN v. LONG MANUFACTURING CO.
    1. Marriage — Common-Law Marriage.
    Common-law marriages are recognized in Michigan.
    2. Master and Servant — Workmen's Compensation Act — Findings of Industrial Accident Board — Conclusiveness.
    The findings of fact made by the industrial accident board, acting within its powers, in the absence of fraud, are conclusive.
    ,3. Same — Common-Law Marriage.
    The finding of the industrial accident board that plaintiff was not the common-law wife of decedent, held, justified by the record.
    4. Same — Dependents—Illegitimates.
    An illegitimate son of the woman with whom decedent was living illegally at the time of his death, begotten by another man, but born after plaintiff and decedent began living together, is not entitled to the presumption of legitimacy, he not having been born in lawful wedlock, and, therefore, he is not a lineal descendant of decedent and is not entitled to compensation as a dependent under the workmen’s compensation act.
    5. Same — Dependents—Member of Family.
    Although said child had lived with his mother and decedent from the time of his birth until about 19 months before decedent’s death, when he was adjudged a neglected child by the probate court and committed to the. care of a charitable society, in whose care he continued up to the time of the hearing, it cannot be said that he was a member of decedent’s family entitling him to compensation under said act.
    Certiorari to Industrial Accident Board.
    Submitted January 5, 1921.
    (Docket No. 31.)
    Decided March 30, 1921.
    Grace Brown and Eckert (Walter) Hobson, an infant, by M. Hubert O’Brien, his guardian, presented their claim for compensation against the Long Manufacturing Company, Michigan Mutual Liability Insurance Company, insurer, for the accidental death of Mathew John Brown in defendant’s employ. From an order disallowing the claim, plaintiff Hobson brings certiorari.
    Affirmed.

      Denby, Kennedy & O’Brien, for appellant.

      Beaumont, Smith & Harris (Hal. H. Smith and Albert E. Meder, of counsel), for appellees.
   Moore, J.

The writ of certiorari in this case is directed to the industrial accident board to review its findings against a claim based upon the death of one Mathew John Brown. The petitioner in this case is Eckert (Walter) Hobson, a minor child, who appeared by his guardian during the progress of the original hearing before the arbitration committee. He is not the child of the decedent, but is the illegitimate child of the other applicant, Grace Brown, who claimed as decedent’s common-law wife. Grace Brown does not join in this proceeding.

The return of the industrial accident board reads in part as follows:

“Findings of the Board on Hearing on Review.
“One Mathew J. Brown died as the result of an accidental, personal injury sustained by him while in the employ of the respondent Long Manufacturing Company. Respondents admit liability for the death of decedent and that death was the result of an accidental, personal injury arising out of and in the course of his employment and that the respondent insurance company carried the risk. They deny that either of said applicants were dependents within the meaning of the workmen’s compensation act.
“The applicant, Grace Brown, claims to be entitled to recover as the common-law wife of the decedent, living with him as such at the time of his death. It is claimed that the applicant, Eckert Hobson, is entitled to recover as a member of decedent’s family.
“We shall first consider the question of the dependence of the applicant, Grace Brown. The applicant, Grace Brown, is a white woman, 36 years of age, whose maiden name was Grace Hancock. The decedent was a colored man. The boy named in the application as Eckert (Walter) Hobson and apparently from the records and the files in this case, at various times known as Hopp, Hobbs and Brown, it appears is an illegitimate son of Grace Brown, bom September 12, 1907, as a result of the illicit relations of applicant, Grace Brown, with one Earl Hobson, who boarded in the same house with said Grace Brown at Turtle Creek, Pennsylvania. It appears from the testimony that the applicant, Grace Brown, became acquainted with the decedent in' Tyrone, Pennsylvania, several months before the birth of said boy; that the two stayed at Tyrone for about four months, when the claimant, Grace Brown, at the decedent’s request, went to Cleveland, Ohio. Deceased followed her to Cleveland on July 4,1907. Claimant had been in Cleveland two or three weeks when decedent arrived. After decedent’s arrival in Cleveland, they occupied the same room at the American hotel and continued to live here until after the child was born; in fact, they appear to have lived together in Cleveland for about two years when Brown came to Detroit. Claimant followed shortly after, and they continued to live together in and about Detroit most of the time until decedent met his death. It appears that the claimant, Grace Brown, was known by the name of Brown, since the decedent joined her in Cleveland, in 1907, and that they represented themselves as husband and wife, but no marriage ceremony was ever performed.
“One question at issue with reference to the dependency of this claimant is whether a valid common-law marriage existed between them. Counsel for the applicant, Grace Brown, insists that this record establishes the existence of a common-law marriage between said applicant and the decedent and quotes from Hutchins v. Kimmell, 31 Mich. at page 130, as follows:
“ ‘Whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties, and which would subject them and others to legal penalties for a disregard of its obligations.’

“They also quote from Peet v. Peet, 52 Mich. 467:

“‘It is sufficient that a man and woman of due competency, and in respect to whom no impediment exists, consent to take each other as husband and wife and actually cohabit as such.’

“The question before us is: Did this man and this woman consent to take each other as husband and wife? We recognize that there are some couples who live together under a valid common-law marriage. We must also recognize that there are other couples lasciviously living together as a mere matter of convenience or for other reasons and who, as a matter of protection against criminal prosecution or unfavorable comment, represent themselves to be husband and wife and are known by the same name, although they never have consented to take each other as husband and wife. We are impressed from this record that when these parties began their cohabitation in Cleveland (and the applicant claims it first began in Cleveland), they did not consider that they had taken each other as husband and wife. In this connection the applicant testified as follows:

‘A. Well, I said that he suggested that we get married after we landed in Cleveland and I postponed it.
“ ‘0. You postponed it?
‘A. Yes, sir.
“ ‘Q. He postponed it after that time again, you say?
‘A. No. I kept on postponing it.
“ ‘0. You always expected that some day you would be married, didn’t you?
‘A. I had that in my head, but—
“ ‘0. But you never got to the point where you went to the preacher or the justice of the peace and got married, is that it?
‘“A. No, sir.
“ ‘0- He told you that some day you would go to the preacher or the justice of the peace?
‘A. He certainly did. He certainly did love me and was good to me.
‘Q. He told you some day you would be married, didn’t he?
‘A. Yes.
‘Q. But you never got that far, is that it?
‘A. No, sir.’

“In the case of Meehan v. Manufacturing Co., 65 Ind. App. 342 (117 N. E. 265), the court says:

“ ‘To raise the presumption of marriage by such means, the evidence must be clear and convincing.’
“To our minds this evidence is not clear and convincing, that the parties agreed, presently, to take each other as husband and wife and did take each other as such. This testimony establishes the offer of marriage on the part of the decedent, but taken in connection with the subsequent conduct of the parties does not, in our opinion, establish a marriage. It rather indicates that the parties did not agree, presently, to take each other for husband and wife. Judson v. Judson, 147 Mich. 518.
“As we have said before, the applicant has the burden of .establishing a common-law marriage. The applicant gives no satisfactory explanation of why she did not consent to the decedent’s commendable desire to have a marriage ceremony performed. Taking into consideration the applicant’s repeated refusal to have a marriage solemnized in the usual manner and her feeble attempt to furnish an explanation as to 'why she declined a marriage ceremony we are driven to the conviction that the applicant was unwilling to enter into legitimate marriage relations with the decedent. Their cohabitation being illicit in its inception, Was it subsequently by consent and agreement of the parties transformed into a valid marriage? We find in the record no convincing proof, of a new or different agreement.
“In the case of the Illinois Steel Co. v. Industrial Commission, 290 Ill. 594 (125 N. E. 252), the court says:
“ ‘Cohabitation, illicit in its inception, will be presumed to continue so, and the party asserting a marriage has the burden of proof to show affirmatively not only that the illegal relation has terminated, but that it terminated by the parties entering into an affirmative agreement to become husband and wife.’
“To the same effect is the Michigan case of Rose v. Rose, 67 Mich. 619.
“To refute the rule laid down in these, which is well sustained by authority, counsel for applicant quotes from the case of Barker v. Valentine, 125 Mich. 336 (51 L. R. A. 787), as follows:
“ ‘There is nothing in either of these cases to indicate that if, after the impediment to a lawful marriage between them had ceased, they had intended to take each other as husband and wife, and had indicated that intention by treating each other in ail respectsi as though they were married, and had introduced each other as husband and wife, and had so held themselves out to the world, and had lived together as husband and wife, the court would not have held- that the presumption that the illicit relations, which existed when they commenced to live with each other, continued after the impediment to their marriage ceased, was overcome.’
“In the instant case there was no impediment, according to the testimony of complainant, to their marriage previous to their illicit cohabitation, and there is no evidence which -we are able to find that the character of their relations was changed. While it appears from the record, and we are compelled to rely very largely upon the testimony of the applicant, that the decedent was willing and desirous of marrying the applicant, it appears that she postponed the marriage and never assumed the obligation of marriage, is corroborated by her subsequent conduct. She admits relations with one Campbell, which are certainly consistent with the theory that she did not recognize a marriage relation between herself and the decedent. Without considering any testimony which is inadmissible, we are impressed from a consideration of the whole record that this woman’s conduct was not that of a woman who regarded herself as subject to sacred marriage obligations. We are compelled to take these parties as we find them and view their intentions and good faith in the light of their conduct and deportment. On the other hand, if we are to find a common-law marriage, we must find that they, in good faith, undertook to carry out the obligations which the law imposes upon all persons who assume the marriage vows. It is not sufficient that they conform to such portions of the marriage duties and obligations as seem to persons of their character and surroundings to be necessary for their own protection.
“The decedent being dead and unable to advise us as to his understanding and agreement as to their relations, we must judge as to whether they lived together under a valid marriage agreement, largely by their conduct. .We are impressed, after careful consideration of the record, taking into consideration the statements of the applicant and the testimony as to their relations and conduct, that they were living together as a mere matter of convenience and to satisfy their own desires and that the fact of their holding themselves out as husband and wife was a mere matter of protection and that these things did not constitute a marriage.
“Having reached the .conviction that Grace Brown was not the wife of decedent, we come to the question of whether she was a member of decedent’s family.
“In the case of Armstrong v. Industrial Commission, 161 Wis. 530 (154 N. W. 844), the marriage of claimant to the decedent was held to be void because of a previous marriage, unknown to the claimant, whom decedent was supporting at the time of his death. In holding that claimant could not recover compensation under the provisions of a similar act because she was not a member of the family of deceased, the court says:
“ ‘However innocent the plaintiff may have been, in law her relation with the deceased was an illicit one, and we think it would be neither good law nor good public policy to hold that such a relation established a family relation. * * * It is not material that plaintiff may have been dependent on the deceased for her support, because she is not entitled to recover unless she was a member of his family, and cases holding that a woman living in adulterous intercourse with a man may be dependent on him for support are not in point.’
“In the Michigan case of Medland v. Houle Bros., 202 Mich. 532, the claimant was held to be the common-law wife of decedent, thereby establishing a legal relationship between the parties. > In this case, the relation must be held to have been ah illicit one and therefore the applicant is not entitled to compensation.
“Coming to the question of the dependency of Eckert Hobson, his status, whatever it is, has been imposed upon him by his mother and the decedent. The decedent was not the parent of this applicant, there being no marriage relation between decedent and the boy’s mother, he was not even a step-parent. The remaining question is, Was he a member of decedent’s family? From the time of his birth until about nineteen months prior to the death of decedent this boy lived with his mother and the decedent and all were supported from the decedent’s earnings. In October, 1917, he was adjudged a neglected child by the probate court of Wayne county and made a ward of the court. He continued to be such ward of the court until after the death of decedent, and in fact was such at the time of the arbitration. He was committed to the care of the Society of St. Vincent de Paul of Detroit and has continued in its care ever since. The order recites The stepfather, John Brown, to pay the said Society of St. Vincent de Paul for the care of said child.’ John Brown therein referred to evidently being Mathew J. Brown, the decedent. The boy is referred to in the order as Eckert Hopp. We do not go into the question of the validity of this provision of the order or its enforceability. The probate judge evidently reached the conclusion, upon the proofs before him, that the decedent was the stepfather of' this boy. The finding of the probate court in the proceeding before it is in no sense res adjudicate!, of the issues before us, even the proofs as to the names of parties must have been materially different. This order of the court whether valid or enforceable or not does not establish or continue the dependency of the boy upon the decedent. No attempt was ever made to enforce it. It was never complied with by the decedent and there is no evidence that the applicant, Grace Brown, made any effort to have it carried out. Whether this order placed a legal and enforceable obligation upon the decedent to reimburse the Society of St. Vincent de Paul for the care of the boy or not, it cannot be said to have made the boy dependent upon the decedent’s earnings for support. In face of the facts which show that the order was never complied with and no attempt made to enforce it, at most, the order did no more than to place a legal obligation upon the decedent to support the boy.
“In the case of Roberts v. Whaley, 192 Mich. 133 (L. R. A. 1918A, 189), the decedent was under legal obligations to support his minor child. He was under legal obligations to reimburse the State for the care of his wife who was an inmate of an insane asylum if he was able to do so, but it was held that they were not entitled to compensation. The wife had been committed to an insane asylum, and in disposing of her case, the court used this language:
“ ‘It appears -without dispute that the wife was not living with, her husband at the time of his death, and had not lived with him for nine years prior thereto. Therefore, it is obvious that if she is entitled to the award, it must be by reason of her dependency on him. That question is one of fact.’
“In disposing of the case of the minor child, the court says:
“ ‘What has been said with reference to her mother, in the main applies to Gladys. No presumption of dependency in her behalf can be indulged. In order to indulge the presumption of dependency in her behalf, it must appear that she was living with the deceased at the time of his death, and that there was no surviving parent. Neither one of these conditions was present, and therefore, she is not within the class presumptively entitled to the fund. If she is entitled to- participate in the fund, it must be by reason of her having been dependent upon her father at the time of his death. The record conclusively shows that she was not dependent upon him at that time; therefore, she is not entitled to participate in the award.’
“This boy bore no relation to the decedent unless he was a member of his family within the meaning of the statute. The probate court having jurisdiction of the boy, had for cause shown taken the boy from the decedent’s family, if family it could be called, and committed him to the care of the Society of St. Vincent de Paul, until the further order of the court. The boy was not, after that time, part of the decedent’s family and the decedent did not contribute to his support. One of the authorities from the home testified:
“ T know, absolutely, that the St. Vincent de Paul society cared for this boy and paid all his expenses and that no money lias been received from any other source, either from the railroad or the father, I understand.’
“Even if decedent had made some small contributions, as claimed, to the boy, in the way of clothing, that does not establish the boy’s dependency, either totally or partially, because he was not a member of decedent’s family, or a lineal descendant.
“After a careful consideration of all the testimony, récords and files in this case, we find:
. “(a) That the applicant, Grace Brown, was not the common-law wife of the decedent, Mathew J. Brown.
“(b) That the applicant, Grace Brown, is not a member of the family of the decedent, Mathew J. Brown.
“(c) That the applicant, Grace Brown, is not' entitled to compensation under the statute.
“(d) That the applicant, Eckert (Walter) Hobson, was not a lineal descendant of the decedent and not a member of decedent’s family.
“(e) That the applicant, Eckert (Walter) Hobson, was not dependent upon decedent for support at the time of decedent’s death and is not entitled to compensation.”

An important question at the outset is whether there was a common-law marriage between the woman calling herself Grace Brown and the decedent. Common-law marriages are recognized in this State. The question of what constitutes a common-law marriage has frequently been before this court. Some of the cases are: Hutchins v. Kimmell, 31 Mich. 126; Peet v. Peet, 52 Mich. 464; Rose v. Rose, 67 Mich. 619; Van Dusan v. Van Dusan, 97 Mich. 70; Lorimer v. Lorimer, 124 Mich. 631; Barker v. Valentine, 125 Mich. 336 (51 L. R. A. 787); Judson v. Judson, 147 Mich. 518; Duff v. Judson, 160 Mich. 386; Medland v. Houle Bros., 202 Mich. 532; Goodspeed v. Goodspeed, 204 Mich. 44.

Whether a common-law marriage exists nearly always presents a question of fact. We think this is true in the instant case. It has already appeared the industrial accident board found against the existence of the relation. We have repeatedly held that the findings of fact made by the industrial accident board acting within its powers shall, in the absence of fraud, be conclusive. Some of the cases are Jendrus v. Detroit Steel Products Co., 178 Mich. 273 (L. R. A. 1916A, 381, Ann. Cas. 1915D, 476); Rayner v. Sligh Furniture Co., 180 Mich. 170 (L. R. A. 1916A, 22) ; Bayne v. Riverside Storage Co., 181 Mich. 380; Reck v. Whittlesberger, 181 Mich. 468 (Ann. Cas. 1916C, 771); Hills v. Blair, 182 Mich. 26; Estate of Beckwith v. Spooner, 183 Mich. 332 (Ann. Cas. 1916E, 886).

In view of the testimony of the claimant that Brown urged a marriage and that she kept putting him off, the fact that she was a white woman and Brown was a negro, and of the testimony of her illicit relations with one Campbell as late as 1917, and of the testimony of Mrs. Hebb as to what Brown told her about his relations with the woman calling herself Grace Brown, and what he had caught her doing, we do not think it can be said that the common-law' marriage is established, as a matter of law, and that we should not disturb the finding of the industrial accident board.

Counsel urge that the child is entitled to a presumption of legitimacy because born in lawful wedlock, and it is said the testimony of husband and wife as to non-access is incompetent, citing People v. Case, 171 Mich. 282, but in that case the mother of the child had a lawful husband. Here the finding is that the child was not born during a period of lawful wedlock, thus distinguishing the cases. We quote from the brief:

“In a leading Michigan case it is held that the plaintiff in an action for seduction, who was married to a third party in April following the acts complained of, and gave birth to a child in September (note the similarity to the case at bar) cannot testify that she first met her husband in February of the year they were married, as the tendency of such testimony would be to rebut the presumption of legitimacy which obtains as to children born in lawful wedlock, and which public policy requires to be preserved. Rabeke v. Baer, 115 Mich. 328.”

It will be noted in the case cited that the child was born during a period of lawful wedlock, distinguishing it from the instant case.

We again quote from the brief:

“If, however, you find against a common-law marriage between Brown and petitioner’s mother, the question of petitioner’s membership in decedent’s family under the statute is by no means foreclosed. It will be noted that the conditions precedent in the statute are in the alternative. A lineal descendant need not be a member of decedent’s family, and a family member need not be a lineal descendant. In either case there must be actual dependency.”

We think it must be said that upon this record it is not shown that the boy was a lineal descendant of Mr. Brown, or that when Mr. Brown received his accident the child was a member of his family. See Roberts v. Whaley, 192 Mich. 133 (L. R. A. 1918A, 189).

The case is an unfortunate one in every aspect, but it is not covered by the employer’s liability act.

The order of the industrial accident board is affirmed, but without costs to either party.

Steere, C. J., and Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.

The late Justice Brooke took no part in this decision.


author: Bird, J.

text:
    WOODCOCK v. DODGE BROTHERS.
    1. Master and Servant — Workmen's Compensation Act — Inability to Follow Former Employment.
    The fact that an injured employee has received more wages since his injury than he was receiving at that time would not preclude him from recovering compensation under the workmen’s' compensation act if it were established that he had since been unable, by reason of his injury, to follow the particular employment he was engaged in when injured.
    2. Same — Burden of Proof.
    The burden is upon plaintiff to show that he is unable, by reason) of his injury, to work in the employment in which he was engaged at the time of his injury.
    3. Same — Inability to Follow Former Employment — Failure of Proof.
    Where it appears that an injured employee has been earning more wages since his injury than he was receiving at that time, and he has failed to establish the fact that he is unable to work in his former employment by reason of said injury, that part of the order of the board awarding him compensation therefor is set aside.
    4. Same — Future Compensation — Subject to Proof.
    That part of the order of the board ordering that in case plaintiff’s injured finger should be amputated he shall become entitled to compensation as provided in the workmen’s compensation act, is allowed to stand subject to proof of such amputation and that it was traceable to the injury in question.
    Certiorari to Industrial Accident Board.
    Submitted January 13, 1921.
    (Docket No. 42.)
    Decided March 30, 1921.
    William F. Woodcock presented his claim for compensation against Dodge Brothers for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

      As to consideration of possible earnings of injured employee in other employments, in fixing compensation under compensation acts, see note in L. R. A. 1916A, 377.

      Reversed, and order vacated in part.

      Kerr & Lacey, for appellant.
   Bird, J.

Plaintiff was an employee of defendant in its automobile factory. His work was stitching cushions. Along about the 6th day of April, 1919, a gathering appeared on the third finger of his right hand. He called the attention of the medical department to it. It was treated, but continued to grow worse and he was sent to Harper hospital where he remained for 9 days. After being absent from his work 16 days he returned to defendant’s factory and was put to work in the same department which he had left. He was paid for one day’s work and receipted for the same. He continued to work for defendant until June, but did no more stitching. After this he attended an automobile school at the Y. M. C. A. for two months and afterwards worked for various manufacturers.

On January 26, 1920, plaintiff filed a petition with the industrial accident board setting up the fact of his former employment by defendant and the further fact of the injury to his finger, stated it had become permanently stiff and useless, and prayed that the commission would reopen the case and allow him such sum as he was entitled to under the compensation law.

This petition was acted upon favorably by the industrial accident hoard, and later testimony was taken thereunder. After the showing was concluded the board made the following order:

“It is ordered and adjudged that said petition should be, and the same is hereby granted, and said applicant is entitled to receive and recover compensation from respondent at the rate of one-half the difference between the average weekly wages he was earning at the time of the accident and the average weekly wages he is able to earn thereafter in the employment in which he was engaged when injured, in accordance with the terms of the compensation act.
“It is further ordered that should applicant’s finger be amputated he shall become entitled to compensation as provided in the workmen’s compensation act.”

This order is assailed by appellant because the wages which plaintiff has received since the injury have been as large, and most of the time larger, than he was receiving at the date of injury, and because there is no showing that he is unable to follow the employment in which he was engaged when injured.

Upon the first proposition the testimony discloses that plaintiff’s income when he returned to his work was the same as it was when he left, namely, 47% cents an hour. His wages at the Ford factory were 75 cents an hour, and at the Disco Starter Company, where he was employed when his testimony was taken, was at the rate of 55 cents, or 7% cents an hour in excess of what he received at defendant’s. Of course, the fact that he received more wages since the injury would not preclude him from getting additional compensation if it were also shown that he had since been unable, by reason of his injury, to follow the particular employment he was engaged in when injured. Foley v. Railway, 190 Mich. 507; Jameson v. Newhall Co., 200 Mich. 514; Miller v. Fair & Sons, 206 Mich. 360.

This, fact the plaintiff failed to show. We have examined the testimony with care to find something bearing upon this phase of the case. No brief for plaintiff has been filed. The burden of establishing the fact that he was unable to work in the employment in which he was engaged since his injury was upon plaintiff, but he has failed to meet it. The defendant introduced some testimony on the subject. Dr. Dresshler, who had examined plaintiff recently, gave it as his opinion that the condition of plaintiff’s hand would not prevent him from resuming his former employment. By reason of this failure upon the part of plaintiff, that part of the board’s order giving to plaintiff “one-half the difference between the average weekly wages he was earning at the time of the accident and the average weekly wages he is able to earn thereafter in the employment in which he was engaged when injured” is without force and must be set aside. The remaining part of the order may stand, but, of course, if the finger should be amputated it would require proof of the fact, and also that it was traceable to the injury in question. Neither party will recover costs.

Steere, C. J., and Moore, Fellows, Stone, Clark, and Sharpe, JJ., concurred.

The late Justice Brooke took no part in this decision.