author: Brooke, C. J.

text:
    HUFF v. MICHIGAN UNITED TRACTION CO.
    Street Railroads — Negligence—Automobiles—Discovered Negligence — Contributory Negligence.
    Evidence, in an action for injuries to plaintiffs automobile caused in a collision with defendant’s street car, tending to show that plaintiffs automobile in nearing the track was in plain view of the motorman, that the street car continued after hitting the automobile upwards of 150 feet, that plaintiff was driving about 7 or 8 miles an hour, that in order to avoid a collision he was compelled ’ to turn sharply to the right and that the car which was approaching at a speed from 30 to 35 miles an hour struck the rear corner of the automobile and that a slight reduction in the speed of the car would have prevented an accident, presented a question ,of fact for the jury whether plaintiff’s contributory negligence should have been discovered by the motorman in time to have avoided the accident.
    Error to Calhoun; North, J.
    Submitted January 26, 1915.
    (Docket No. 81.)
    Decided June 7, 1915.
    Case in justice’s court by George Huff against the Michigan United Traction Company for damages to plaintiff’s automobile. Defendant appealed to the circuit court from a judgment against it. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Sanford W. Ladd, (Warren, Cady, Ladd & Hill, of counsel), for appellant.

      James H. Mustard and John A. Mustard, for appellee.
   Brooke, C. J.

On Marshall street in the city of Battle Creek the defendant railway operates a single track. Charleton street runs north and south and intersects, but does not cross Marshall street. The plaintiff, on the day of the accident, was driving north on Charleton street. It was his intention to cross the track to the north side of Marshall street and proceed west to the center of the city. He was propelling his machine at the rate of 10 or 12 miles an hour. At the moment he entered Marshall street he testifies he slowed his machine to 7 or 8 miles an hour, when he looked to the west and saw approaching from that direction an interurban car of the defendant company. He had two passengers in the car with him and all observed the car about 240 or 250 feet distant. Plaintiff testified that at the speed at which he was going he considered it unsafe to attempt to cross the track in front of the approaching car. He therefore sharply turned his car to the right so as to place it between the south curb on Marshall street and the railroad track, and thus avoid all possibility of collision. This result he very nearly accomplished, but the car, which is said to have been approaching at a speed of 30 to 35 miles an hour, struck the left rear corner of his machine and turned it completely around, causing some damage to the machine, but none to the occupants. The distance between the south rail of the defendant’s track and the curb line is approximately 12 feet. The plaintiff, at the time he discovered the approaching car, was seated at a point approximately from 3 to 6 feet farther south. The defendant’s car was stopped at a point 150 feet east of the point of the collision. A motion to direct a verdict on the ground of contributory negligence was denied, and the case was submitted to the jury on the grounds of defendant’s primary negligence, plaintiff’s contributory negligence, and defendant’s discovered negligence.

The court charged the jury in part:

“I further charge you that the plaintiff must have been free from negligence which contributed to the damage sustained by him, otherwise he cannot _ recover. That is, he must have been free from contributory negligence unless after the time that the motorman saw the plaintiff was in a place of danger, or by the exercise of reasonable care the motorman _ might have become aware of the fact that the plaintiff was in such a place of danger, the motorman failed to use reasonable care and caution to check the speed of his car so as to avoid injury to the plaintiff or his property, and with this situation the plaintiff did use reasonable care to avoid injury, then plaintiff would be entitled to recover, but in this case I say to you that the motorman who was operating the car even at the time that he saw, if he did. see, the plaintiff approaching defendant’s tracks had a right to assume the plaintiff would make every reasonable effort to avoid an accident there.
“Along that line I say to you that it was the duty of the plaintiff on approaching Marshall street in his automobile and in approaching defendant’s track at that point to have his automobile under such control that it could be stopped before driving upon the tracks in front of an approaching car, providing the car was not being operated at such an excessive rate of speed as to be negligence on the part of the company, and as to be such a condition as the plaintiff might not reasonably be called upon to expect or such a condition as he did not have actual knowledge of at the time.
“The tracks of the defendant company are in themselves notice of danger, and cars must necessarily be run on the rails and cannot turn out to avoid an accident, and the plaintiff is bound to take notice of such condition, and to have his automobile under such control that he could stop before driving on to the tracks in front of a car approaching at an ordinary and reasonable rate of speed.
“It was the duty of the plaintiff to approach the tracks of the defendant with that degree of care which would enable him to see the advancing car and to see and observe the rate at which it was coming, and under these circumstances and under the testimony that at the curb he first saw the car and swerved his machine he would be guilty of contributory negligence unless the car was approaching at such a rate of speed that an ordinary and careful and prudent man might not have been expecting that condition at that time and place.
“If you find that plaintiff could have stopped his automobile after seeing the street car in question, before driving the automobile upon the track in front of the approaching car or in dangerous proximity thereto, and that he did not attempt to stop his auto, he is then guilty of contributory negligence as a matter of law, and he cannot recover, and under these circumstances you should find a verdict of ‘no cause of action,’ and if you find plaintiff could have seen defendant’s car in time to have stopped his automobile before going upon the track in front of the car or any dangerous proximity to it, he is guilty of contributory negligence, and your verdict should be in favor of the defendant.
“I charge you that if plaintiff approached the defendant’s tracks with such care and caution as would have enabled him to avoid the accident when the defendant was operating its cars in a reasonably safe and cautious manner, and at the time the plaintiff was not aware that the defendant was not operating its cars in any other way than an ordinary careful manner, and by the exercise of reasonable care and caution he could not have ascertained that fact if such is shown to be a fact by the evidence in the case, then he is entitled to recover if his damages sustained were the direct result of the defendant’s negligence in approaching its car with a negligent degree of speed.”

After the jury had been absent for a time, the following occurred:

“The Foreman: There is a question that we would like to ask: If the defendant sees that the plaintiff is negligent in approaching the tracks, and does not use precaution to avoid the accident, can plaintiff recover ?
“The Court: I tried to cover that in particular in my charge, in which I answered that question in the affirmative, that is to say that if the defendant’s agent, the motorman in this case, saw that even though it was done carelessly, the plaintiff in this case had gotten himself in a position of danger where he was liable to suffer injury, and after becoming aware of that fact the motorman did not use reasonable care to slacken the speed of his car to avoid injury to the plaintiff or his property, plaintiff could then recover, providing that after he got in that position plaintiff used every reasonable effort to get himself out of it. He has got to do all he can to avert his danger, even though he gets himself into it. He must do all he can to avert the danger.
“The Foreman: If we find that plaintiff was negligent in getting in there, does that amount to anything?
“The Court: If he was negligent in the first instance that would prevent his right to recover unless the motorman had an opportunity to avoid the injury and did not make a reasonable effort to do so, and also after he had once gotten into danger he discovered that he was in danger, plaintiff would be obliged to use every effort he could to save himself, of course, notwithstanding in the first instance he was guilty of not using the care he ought to.
“The Foreman: Then if the plaintiff went on there and was negligent in getting on there, and then after he got in there he used all the necessary precautions and the motorman did not use any precaution and used negligence in stopping his car, then he could claim damages?
“The Court: I think your question can be answered' by yes, providing always that you find by a preponderance of the evidence that the motorman might have avoided the accident and did not do so, and his failure to do so is because of his failing to try to do so.”

Having again retired, they returned to court with a verdict in favor of plaintiff in the sum of $839.75. On motion of defendant this amount was reduced to the sum of $100, that being the limit of the jurisdiction in trespass actions in the justice’s court in Battle Creek, from which the case was appealed to the circuit court for the county of Calhoun, and judgment was entered for that sum.

Many errors are assigned by defendant upon the refusal of the court to charge as requested, and upon the charge as given respecting the contributory negligence of the plaintiff. These assignments of error become unimportant and require no consideration, for the reason that it is apparent from the colloquy between the foreman of the jury and the court that the theory upon which the recovery was permitted by the jury was that of discovered negligence, and that they found as the court perhaps should have directed them, that the plaintiff was guilty of contributory negligence in failing to approach defendant’s track in such manner or at such a rate of speed as would have enabled him to avoid the collision.

It is strenuously urged on behalf of defendant that there was no evidence in the case upon which the court could properly have submitted the question .of discovered negligence to the jury. On behalf of the plaintiff it is pointed out that the evidence shows that at the moment the plaintiff in nearing the track could see the approaching car his automobile was, or should have been, in full view of the motorman in charge of defendant’s car. It is further pointed out that after the collision the car traversed a distance of but 150 feet, and further that inasmuch as the car struck the automobile upon its left rear corner, it is apparent that a very slight reduction of the speed of the car would have enabled the plaintiff to pass from a point of dangerous proximity to one of safety. Furthermore, plaintiff’s two witnesses, Kline and Lake, stated that from the time they first saw the interurban car until the time of the collision, it was but an instant; that it happened in “a twinkling.” At the rate of 30 miles an hour defendant’s car would cover 250 feet in five or six seconds. While the testimony of plaintiff’s witnesses that it happened in a twinkling is an obvious exaggeration, yet the impression created upon the minds of these witnesses may warrant a legitimate inference that no attempt was made on the part of defendant’s agent to check the speed of the car. The defendant offered no testimony bearing upon the speed of the car, or its management by its agents at the time of the accident.

We have carefully examined the authorities cited and relied upon by the defendant and are of the opinion that the question whether the defendant’s agent, the motorman, should have discovered from the actions and situation of plaintiff his peril, and should have, but did not, take ordinary precaution to avert that peril, was one for the determination of the jury, under all the circumstances disclosed by the record in this case. Richter v. Harper, 95 Mich. 221 (54 N. W. 768); La Pontney v. Cartage Co., 116 Mich. 514 (74 N. W. 712); and La Barge v. Railroad Co., 134 Mich. 139 (95 N. W. 1073).

The judgment is affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    BEACH v. RICE.
    1. Quieting Titee — Action at Law — Adequate Remedy — Equity.
    While the court of equity has jurisdiction to enjoin repeated trespasses upon lands, yet it is not authorized to try defendant’s right to the possession of real property' of which he claims actual possession and title, evidenced by acts of control and occupancy.
    2. Waters and Watercourses — Lakes—Quieting Titee — Injunction.
    Where complainant filed a bill of complaint claiming title to an inland lake and asking the court to enjoin defendant from trespassing upon the lake and to prevent trespasses upon a parcel of land abutting upon the body of water, and the evidence showed that defendants claimed title to the land and their right to fish in the lake adjoining their property, also that they had asserted ownership by acts of a possessory nature similar in character to the acts of complainant and relied upon the same as showing title by adverse possession, the court correctly held that the title to the land should be determined at law.
    Appeal from Livingston; Miner, J.
    Submitted January 5, 1915.
    (Docket No. 2.)
    Decided June 7, 1915.
    Bill by Hiram G. Beach against Hugh H. Rice and another for an injunction and further relief. From a decree denying complainant a part of the relief prayed for, he appeals.
    Affirmed.

      Robert M. Brownson, for complainant.

      Shields & Shields, for defendants.
   Brooke, C. J.

Silver lake, located near the village of Hamburg in Livingston county, is a small oval-shaped body of fresh water without visible inlet or outlet, and has an area of approximately 100 acres. The complainant has undisputed title to perhaps a quarter of the shore line, and is likewise the undisputed owner of about 55 acres of land covered by water. In the southeast corner of said lake there lies a piece of ground almost entirely covered by water, having an area of 25 acres and being described as the “north 25 acres of the northwest quarter of the southeast quarter of section 36, town 1 north, range 5 east.” The entire 40 acres, consisting of the northwest quarter of the southeast quarter, was patented on October 10, 1840, to one Thomas J. Rice, who was the father of defendant Hugh H. Rice, and grandfather of defendant Thomas J. Rice. The north 25 acres of said description was sold for the taxes of 1841 and 1843 to one Albert Crane, and the deeds to Crane were duly recorded. On November 14, 1853, Albert Crane and wife deeded, by quitclaim deed, the premises to Francis Crawford. On November 2, 1892, Francis Crawford deeded this same 25 acres by quitclaim deed to Hiram J. Beach, complainant in this case.

For more than 20 years, last past complainant has operated upon the shores of said lake an - enterprise something iii the nature of a summer resort. He claims to have stocked the lake with fish from time to time; he kept boats for the use of his guests at the lake, and permitted such guests to fish in the waters thereof where such waters lay above the lands to which he had and claimed title. He did not acquire title to all his holdings around and under the lake at the same time, but at the time the bill was filed he had acquired title as hereinbefore set forth. For many years past disputes have arisen between the complainant and other residents upon the margin of the lake, including defendants, as to his and their rights to fish in the waters thereof. These disputes resulted in much litigation. Suits for trespass brought by the complainant were met with criminal prosecutions for assault and battery brought against him. The most fruitful source of litigation seems to have been supplied by the disputed title to the 25 acres lying in the southeast corner of the lake. It should be noted, perhaps, that Thomas J. Rice, to whom the 40 acres had been patented by the United States government, left a will by the terms of which the defendant Hugh H. Rice was given a life estate in the home farm, which included the 25 acres in question, with remainder over to the children of said Hugh H. Rice, among whom is included the defendant Thomas J. Rice. About the year 1902 Hugh H. Rice brought a suit in ejectment against the com-, plainant Hiram J. Beach to recover possession of said 25 acres. This suit was tried in the circuit court for the county of Livingston, and resulted in a judgment in favor of defendant in that suit, complainant in this. That judgment was not reviewed by writ of error, but since the entry of that judgment in 1902, defendant Hugh H. Rice and his sons continued as before to use the waters overlying the 25 acres in dispute, claiming to do so of right. They fished thereon as occasion required; they either cut or authorized the cutting of marsh hay on one or more occasions on a portion thereof; and they permitted strangers to go upon the surface of the lake in the winter time to cut and carry away' ice therefrom. In addition to these acts they loaned or hired boats to guests or friends, and authorized and instructed such guests to go upon and over the waters covering the 25 acres in question, claiming that the Rice estate was the true owner thereof, and that the complainant had no right to prevent, or attempt to prevent, the defendants Rice or their agents or guests from the full and free use thereof. They likewise, shortly prior to the filing of the bill in this cause, caused to be placed signs upon and in the edge of said 25-acre strip labeled “Rice Estate.” It was the claim of the complainant that the defendants and their agents and guests not alone trespassed continuously upon the 25 acres in question, but likewise trespassed' intermittently upon other portions of the lake, the title to which is not in dispute. Such being the situation, complainant filed his bill of complaint, setting out in detail his claims of title to the land owned by him around and under the waters of the lake, including the 25 acres in question. Defendants answered, denying complainant’s title to the 25 acres, and asserted ownership therein. The case was heard in open court, and both parties introduced testimony at large.

On behalf of the complainant it was shown that after he had acquired the Crawford tax deeds covering the 25 acres, in 1902, he had erected at the south end of the lake, and upon the 25 acres, a small structure something like a summerhouse, about six or eight feet square, from which his guests might fish, and, further, that upon many occasions he had warned guests or friends of the defendants off those premises, and that much of the trouble and litigation during the past 25 years had resulted because defendants continued to insist that they were the owners of the 25 acres in question, and that they and their friends and patrons had a perfect right to this use. Complainant further showed that since he had acquired title to the disputed area, the same had been assessed to him, and he had paid taxes thereon, and that no taxes had been paid by the defendants or either of them, or by any other person on behalf of the Rice estate.

On behalf of defendants it was claimed that for upwards of 60 years after the making of said tax deeds by the auditor general the grantees therein had taken no steps to acquire possession of the property described in said deeds and that they and their antecedent in title, Thomas J. Rice, had claimed to exercise, and had exercised, such dominion over the 25 acres as was ordinary and possible, considering the character of the land. They further showed that while since 1892 the complainant had claimed to be the owner of said land in question and had asserted such ownership through the erection of the summerhouse before mentioned, and by instructing his guests that they had a right to fish in' the waters, covering said 25 acres, that they, defendants, had never at any time acquiesced in complainant’-s claims, and that they had at all times asserted, and now assert, that they are in truth and in fact the owners of said land.

Under this state of facts, the learned trial judge who heard the case made the temporary injunction, which had theretofore been issued against defendants, as to all of the property claimed by the complainant, permanent as to all of said lands except the 25 acres in the southeasterly portion of the lake, and as to that area he dismissed complainant’s bill upon the ground that the question of the title to said premises was in issue in the proceeding, that a court of equity was without jurisdiction to determine that question, and that the rights of the parties should be adjudicated in a court of law in an action of ejectment. From the decree so made the complainant appeals.

Defendants do not appeal. We, therefore, find it unnecessary to consider the claim of the defendants that each riparian owner upon a small inland lake has a right to take fish from any portion of the lake upon which his lands border.

By making the injunction permanent against defendants as to those lands the title to which is unquestionably in complainant, the learned circuit judge disposed of this question contrary to the contention of defendants made in this court, and from that determination defendants have not appealed.

Many authorities are cited by the appellant to the effect that the court has jurisdiction in the premises to enjoin repeated trespasses upon the property owned by complainant. There is no doubt of such jurisdiction, provided the complainant is in possession of the property upon which such trespass is made, and here exactly lies the difficulty with complainant’s position. It is elementary that the title to real estate can be determined, against one in actual possession claiming to be the owner, only by an action at law in ejectment. Hoffman v. Beard, 22 Mich. 59; King v. Carpenter, 37 Mich. 363; Wilkinson v. Williams, 51 Mich. 155 (16 N. W. 319); and Dolph v. Norton, 158 Mich. 417 (123 N. W. 13).

We think this record fairly shows that the complainant has not been able, during the past 20 years, to maintain an adverse, open, notorious, and exclusive possession of the 25 acres in question. He himself alleges in his bill of complaint that the defendants have asserted ownership in the 25-acre piece, and that they have, through themselves or agents, been in partial possession thereof from time to time,, such possession consisting in acts and conduct on the part of the defendants similar in character to those relied upon on the part of the complainant to establish the fact that he has been in possession.

We are of opinion that the court below correctly held that the title to said 25 acres should be determined in an action of ejectment.

The decree of the court below is affirmed.

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


text:
    ROUSSEAU v. BROTHERHOOD OF AMERICAN YEOMEN.
    1. Insurance — Fraternal Benefit Associations — Presumptions —Evidence.
    Upon the introduction of evidence of an insurance policy in a fraternal benefit association and proof of death of the insured, a presumption of payment of the dues required by the certificate arose, which was not conclusively rebutted by disputed and contradictory evidence in behalf of the defendant tending to show default in the payment of premiums and the sending of a notice of such default to the insured.
    2. Evidence — Correspondence — Proof of Mailing — Question of Fact — -Presumptions—Burden of Proof.
    Where the plaintiff claimed, and introduced evidence tending to show, that the insured never received a letter alleged to have been mailed by defendant notifying him of his default in payment of premiums due under a fraternal benefit certificate, and the evidence in defendant’s favor was not conclusive in its nature, it became an issue of fact whether insured received the alleged notice of default: the question was not one for the court, although a presumption arose that a letter mailed in the ordinary course of business was duly received by the party to whom it was addressed.
    Case-made from Delta; Flannigan, J.
    Submitted November 13, 1914.
    (Docket No. 75.)
    Decided June 7, 1915.
    Rehearing denied December 22, 1915.
    Assumpsit by Eva Rousseau against the Brotherhood of American Yeomen upon a fraternal benefit certificate. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Rushton & Riley, for appellant.

      A. H. Ryall and J. L. Loell, for appellee.
   Brooke, C. J.

On April 9, 1910, one Frank L. Rousseau, son of the plaintiff, obtained a policy of insurance in defendant company. On March 20, 1911, the insured came to his death. The defendant company having denied liability, plaintiff commenced suit in assumpsit on said policy. Defendant pleaded the general issue, and gave notice that under said plea it would show that the policy had been canceled for nonpayment of dues and that the insured had been suspended prior to his death; further, that said policy was not in full force and effect at the time of the death of the insured, on the 20th of March, 1911, and that the insured was not a member in good standing at the time of his death. The case has been before this court on a former occasion, and is reported in 177 Mich. 568 (143 N. W. 626). It was there determined that the clerk in the office of the local correspondent was not to be held an agent of the defendant company under section 10212, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12856), as amended by Act No. 239, Pub. Acts 1901, and Act No. 30, Pub. Acts 1903, and that the evidence of said clerk should have been received.

Section 7525, 2 Comp. Laws (3 How. Stat. [2d Ed.] § 7618), provides:

“No policy or certificate issued by any corporation or association doing business under the provisions of this act shall be canceled for the nonpayment of any assessment, periodical call or dues, without first having mailed to the holder of such policy or certificate, at his or her last known post-office address, a notice stating the amount of such assessment, periodical call or dues, and the limit of time in which the same must be paid. An affidavit made by the person having charge of the mailing of such notices, that any such notice was mailed, stating the date of mailing, shall be prima facie evidence thereof.”

Upon the trial plaintiff introduced the policy in question, proved the death of the insured, and rested. Whereupon defendant offered the evidence of one Carrie Weisert, a clerk in the employ of the local correspondent of the defendant company, to prove that the insured, Frank L. Rousseau, was in arrears at the time of his death, and that notice of such fact had been given to him under the statute above set forth. She testified that such notice had been mailed to the deceased on January 5, 1911. The books, such as they were, were received in evidence, and they showed no payments credited upon the account- of Rousseau after November, 1910. If they correctly set forth the facts, it is apparent that the premiums becoming payable in December, January, and February had not been paid. Rousseau died on March 20, 1911. Miss Weisert testified, however, positively that the December premium had been paid. If her testimony in this regard is to be believed, it is clear that a notice of suspension dated January 5, 1911, was not properly sent to the deceased, for he was not then in arrears. Under the cross-examination of skillful counsel on behalf of plaintiff, this witness became somewhat confused, and gave contradictory and unsatisfactory answers, the result of which, undoubtedly, was to greatly weaken the probative force of her testimony.

As tending to contradict her statement as to the mailing of the notice, or notices, the plaintiff, to whose residence said notice was addressed, gave evidence that no such notice had been received by her, her son haying been absent during the months-of January, February, and March, from the home. No other evidence was offered on behalf of plaintiff tending to show payment by the deceased of the premiums for January and February. This being the condition of the record after the evidence was all in, defendant made a motion for a directed verdict, upon the ground that plaintiff had not sustained the burden of proof resting upon her to show that deceased was a member of the defendant order in good standing at the time of his death. This motion was denied, and the case was submitted to the jury under the following instructions:

“As I have said, the burden is upon the plaintiff, not only to show the issuing of the policy, but the performance of the specifications of its conditions, and among these conditions the performance of the specifications respecting the payment of dues. The law, however, in actions upon insurance policies, presumes in favor of the payment of the premium. That presumption of law, gentlemen, takes the place of positive testimony on the part of the plaintiff to the payment of the premium, and it results that, upon the introduction by the plaintiff of this policy and proof of the death of Frank Rousseau, she is entitled to a verdict for the amount of the policy unless the presumption of law that the premium was paid has been overcome by the testimony introduced here by the defendant; and there, gentlemen, you come to the only question in the case. If the testimony in the case has been sufficient to overcome the presumption of law that the premium was paid, then the verdict here must be for the defendant. The defendant is not bound to prove by a preponderance of evidence that the payment was not made, but the defendant is bound to put into the case evidence fairly tending to show that the payment of this, premium was not made, in order that the jury may be able to say that the presumption of .the payment has been overcome.
“In determining the question whether or not the presumption of payment has been overcome, you have a right, of course, to take into consideration all the evidence which has been submitted in your presence. Certain books of account have been introduced in evidence. It will be the duty of the jury to look over these books of account in connection with all the testimony relating to the books of account. Do you find from the evidence that the books of account were correctly kept? Do you find that they correctly set forth the transactions between the Brotherhood of American Yeomen and Frank L. Rousseau? These are all questions of fact for the jury. You have a right to take into consideration these books of account in connection with all the other evidence in the case, and say whether or not, under all the evidence in the case, the presumption of law that the premium was paid has been overcome. As I have said, if you are able to say that it has been overcome, then the verdict must be for the defendant, the insurance company; but, unless you are able to say that that presumption has been overcome, .then it will be your duty to render a verdict in favor of the plaintiff.”

On behalf of appellant it is urged that this instruction is erroneous. The question for determination, as stated for appellant, is as follows:

“Does a presumption of law on one side and positive testimony on the other make an issue of fact for the jury?”

It seems to be the contention of the appellant that, although plaintiff might have recovered by simply introducing the policy in evidence and proving the death of the insured, under a legal presumption of payment, as soon as defendant introduced any testimony tending to show nonpayment of the premiums for the months in question, the presumption vanished, and a verdict should have been directed by the court in favor of defendant. This view seems to find support in some authorities cited by appellant. In Lincoln v. French, 105 U. S. 614, it is said:

“Presumptions are indulged to supply the place of facts; they are never allowed against ascertained and established facts. When these appear, presumptions disappear.”

In Eliott on Evidence, vol. 1, § 93, the following conclusion is reached by the author:

“A presumption operates to relieve the party in whose favor it operates from going forward in argument or evidence, and serves the purposes of a prima facie case until the other party has gone forward with his evidence; but, in itself, it is not evidence, and involves no rule as to the weight of evidence necessary to meet it. How much evidence shall be required from the other party to meet, overcome, or destroy the presumption is determined by no fixed rule.”

That a presumption of payment arose in the ease at bar in favor of plaintiff is settled by the -decision of this court in the case of Petherick v. Order of the Amaranth, 114 Mich. 420 (72 N. W. 262).

In certain cases where presumptions arise in favor of a party, the question whether the opposite party has introduced testimony sufficient to overcome said presumption has also been held by this court to raise a question of fact for the determination of the jury. In Rauch v. Insurance Co., 131 Mich. 281 (91 N. W. 160), it is said:

“The question of whether the letter of January 15th was written, mailed, and received was a question of fact to be determined by the jury, in the light of all the surrounding circumstances. If mailed, the presumption is that the post office officials performed their duty, and that the letter was delivered. The defendant could rebut this by evidence that it did not receive the letter. The testimony of neither party makes a conclusive case, but one of doubt for the jury to solve. It was not a question for the court” — citing Rosenthal v. Walker, 111 U. S. 185, 4 Sup. Ct. 382.

In the case of Long-Bell Lumber Co. v. Nyman, 145 Mich. 477 (108 N. W. 1019, 116 Am. St. Rep. 310), the court said:

“As to the many letters written by plaintiff and mailed in due course of business, the presumption is that they were received by defendant. This presumption may be rebutted by evidence, but whether it was rebutted or not is a question of fact for the jury”— citing Greenleaf on Evidence (15th Ed.), § 40, Hedden v. Roberts, 134 Mass. 38 (45 Am. Rep. 276), and Huntley v. Whittier, 105 Mass. 391 (7 Am. Rep. 536).

These two decisions were cited and followed in the recent case of Baker v. Temple, 160 Mich. 318 (125 N. W. 63). Under the circumstances of this case, and in view of the contradictory and general unsatisfactory character of defendant’s proof of nonpayment, we are of opinion that the court properly submitted to the jury the question as to whether or not the evidence introduced on behalf of defendant was sufficient to overcome the presumption of payment.

The judgment is affirmed.

Me Alva y, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Steere, J.

text:
    CHURCHILL v. HOWE.

      1. Pleading — Declaration — Joinder — Assumpsit — Tort — Actions.
    Three counts of plaintiffs declaration charging that defendant, Intending to defraud plaintiff out of certain moneys which were due to him from a purchaser of certain lands theretofore sold by said defendant, caused a deed to be placed in plaintiff’s hands in escrow authorizing plaintiff to collect the same and reimburse himself for moneys advanced to defendant, and that defendant fraudulently procured the said purchase price to be paid to him, in substance sounded in tort and might not im- • properly be joined with a count in trover for the conversion of said funds.
    2. Same — Contract—Fraud.
    The wrong charged in the declaration was more than a mere failure to perform the contract, and amounted to an affirmative malfeasance; the collection by fraud and deceit of funds which belonged lawfully to the plaintiff. The fact that the contract was pleaded did not change the gist of the action so as to render the counts assumpsit instead of tort.
    3. Same — Torts—Assumpsit—Fraud—Misjoinder.
    Although an express .contract exists between plaintiff and defendant, if a common law duty results from the contract and surrounding circumstances, the violation of such obligation authorizes plaintiff to bring an action in tort for the neglect or misfeasance; and either an action ex contractu or one sounding in tort may he maintained upon the same state of facts.
    Certiorari to Emmet; Shepherd, J.
    Submitted January 11, 1915.
    (Docket No. 65.)
    Decided June 7, 1915.
    Case by Charles L. Churchill against George Howe for conversion of funds belonging to plaintiff. An order was entered overruling a demurrer to plaintiff’s declaration. Defendant brings error.
    Affirmed.

      Halstead & Halstead, for .appellant.

      A. S. Hinds, for appellee.
   Steere, J.

The subject-matter of the present contention was before this court on an appeal of a chancery suit entitled Churchill v. Howe, reported in 180 Mich. 150 (146 N. W. 623), wherein plaintiff sought to impress with a trust certain real estate, owned by defendant and his wife as tenants by entireties, on the ground that money borrowed by defendant from the Churchill & Webber Bank and invested in other land, which was exchanged for that upon which a lien was asserted, had been fraudulently invested and sequestered from reach of execution. In that suit a demurrer to complainant’s bill was sustained, for the reason that under the facts stated in said bill defendants were not shown to have committed any fraud nor violated any trust at the time the money was borrowed and the land in question purchased; although the view was expressed that defendant’s subsequent conduct in relation to the matter was dishonest and fraudulent. Plaintiff thereafter commenced this action at law, filing a declaration in a plea of trespass upon the case, containing three counts, to which defendant also demurred. His demurrer having been overruled, he now brings the proceedings to this court for review on a writ of certiorari under Act No. 310, Pub. Acts 1905.

The story of defendant's alleged dishonesty is substantially the same in both the bill of complaint in the chancery suit and the declaration in this action at law. In brief, it is charged that he left with the Churchill & Webber Bank, of which plaintiff is the surviving partner, a deed, in escrow for delivery to the grantee named therein on payment to the bank of a stated amount, and induced it to advance to him thereon $750, to be refunded out of the money it was authorized to collect on delivery of the escrow deed, after which he proceeded to himself surreptitiously and fraudulently collect from the grantee and appropriate the money due upon the escrow deed, wrongfully, and with intent to defraud, converting the same to his own use.

Defendant’s grounds of demurrer are, in brief, that the first count of plaintiff’s declaration states a cause of action, if any, arising ex delicto, and the second and third counts state a cause of action, if any, arising ex contractu, while causes .of action sounding in tort and on contract cannot be joined in one declaration. Of the three counts, the first is the ordinary, short form of a count in trover; the other two state in substance, with some variations in phraseology and more at length than need be given here, that defendant sold certain real estate to one Jackson, who, after making part payment thereon, refused to pay the whole of the purchase price until certain defects in the title were remedied, and defendant thereupon solicited plaintiff’s bank to assist him by a loan of $750 to be repaid from a balance of $1,123.25 coming from Jackson, which he authorized the bank to collect, delivering to it in escrow a deed of the land sold to Jackson, to be delivered to him on payment to the bank of that sum; that the $750 was advanced to defendant in pursuance of and reliance upon an understanding and agreement that the bank should collect said unpaid balance due upon the deed delivered to it in escrow and retain therefrom the amount it had advanced to defendant; but that:

“Thereupon the said defendant cunningly, wickedly, and maliciously, and with the intent and purpose to defraud said Churchill & Webber of said $750, and intending to cheat said Churchill & Webber out of said sum so advanced to him, began urging the said John W. Jackson to pay the balance of the moneys remaining unpaid directly to him, the said defendant, and that in response to such urgings so made by said defendant, the said John W. Jackson did, on, to wit, February 2, 1909, send his check to the said defendant for the sum of $900, and that said defendant did, on, to wit, the 5th day of February, 1909, obtain the cash upon said check, well knowing that $750 thereof belonged to and was the absolute property of the said Churchill & Webber; * * * and that by reason of the. premises the said defendant has cunningly, craftily, wickedly, and maliciously, and with the intent to injure said Churchill & Webber, cheated and defrauded the said Churchill & Webber and this plaintiff, of said sum of $750, less the sum of $133.45, which •said Churchill & Webber afterwards succeeded in obtaining from said John W. Jackson upon said escrow deed; * * * and that the said defendant fraudulently, and with the intent and purpose to cheat and- defraud said Churchill & Webber, induced said Jackson to pay such sum of $900 directly to said defendant ; and that said conduct on the part of said defendant did cheat and defraud said Churchill & Webber out of said net sum of $616.65, and the interest thereon,” etc.

The chief difference between the second and third counts is that the latter omits details of the manner in which defendant obtained the money from Jackson, and charges that:

“On, to'wit, the 5th day of February, 1909, the said defendant came into possession of the sum of $900, which sum of $900 the said John W. Jackson paid directly to said defendant, and that the said defendant accepted and received said money from the said John W. Jackson, well knowing that $750 thereof was the absolute property of said Churchill & Webber, and that it was his duty to at once deliver said sum of. $750 so advanced to him back to said Churchill & Webber out of said receipts of $900, but that the' said defendant, notwithstanding his duty in that regard, fraudulently, and with the intent and purpose to defraud said Churchill & Webber out of the same, wrongfully embezzled the same, and converted the same to his own use, * * * by reason of his conduct in the premises has wilfully, knowingly, wrongfully, deceitfully, unlawfully, cunningly, and .craftily cheated and defrauded said Churchill & Webber and this plaintiff out of said sum, together with the interest thereon.”

That the first count sounds in tort and is a good count under a plea of trespass upon the case, standing alone, cannot be questioned; but it is urged that the other counts are confessedly a bill of particulars of the first, in effect, and clearly state nothing beyond contractual obligations for which only an action in assumpsit will lie.

It is urged for defendant that the facts stated show, undisputed, that all rights granted and obligations assumed between these parties grew out of their contract relations, and if the allegations as to their contract were stricken out no ground of action would remain; the distinguishing feature of a tort being that it consists in the violation of a right given or neglect of a duty imposed by law, and not by contract. This, broadly stated, is the general rule for determining the line of demarcation in clearly defined cases. There are, however, numerous instances where both the elements of tort and contract are involved. In Burdick on the Law of Torts (page 18) it is said:

“Between the classes, of which the two preceding cases are representatives, is a numerous and extensive class, where the plaintiff is entitled to sue either in contract or in tort, because the defendant’s act is an unlawful interference with the right of plaintiff which is created by agreement between them, and also with a'right which is created by law.”

And to the same effect Cooley on Torts (3d Ed.), vol. 1, p. 156. See, also, Church v. Anti-Kalsomine Co., 118 Mich. 219 (76 N. W. 383), and the general discussion of this question found in the dissenting opinion by Justice Stone in Baker v. Railroad Co., 169 Mich. 626 (135 N. W. 937); also, Andrews v. Blakeslee, 12 Iowa, 577.

It is conceded that the bare omission to observe a contract obligation is not a tort, unless such omission involves the violation of some right created by law; but defendant’s counsel urge that nothing more is disclosed in this declaration than a broken promise — the violation of his agreement to permit the bank to collect the balance of the purchase price of the land — ■ and obviously no duty at all would exist from defendant to plaintiff in the absence of the alleged promise.

The wrong charged in this declaration is something more than a broken promise. The declaration states that defendant had put his deed of this property into the hands of the bank with full and exclusive authority to deliver to the grantee and power to collect the unpaid balance; that at his solicitation $750 was advanced to him in reliance upon, and in effect out of, the fund this escrow deed called for, and which he orally assigned to the bank, investing it with the authority, and with written evidence of the right, to collect the same, conferring upon the bank, as between it and himself, absolute control and ownership pro tanto to the amount it had advanced. So far as that transaction was concerned, there remained then no further promise to fulfill nor active duty for him to perforin. He had performed. He is not charged with any nonfeasance, but with affirmative malfesance— with surreptitiously, deceitfully, and fraudulently collecting money which did not belong to him, with wrongfully and unlawfully doing an act while well aware of the fact that the right on his part to so act did not exist, conduct characterized in the former decision (180 Mich. 150 [146 N. W. 623]) as “dishonest, disreputable and fraudulent.” The tort so alleged is of that class said to be connected with the contract only as the contract enabled the tort-feasor to bring the party wronged into it. To fraudulently obtain and appropriate the money of another is no less tortious conduct when the other’s right to that money was derived through a contract with the wrongdoer than as though the right to it had been conferred by a contract with some third party. In either case, such dishonest acquisition is clearly a malfeasance and the violation of a fundamental moral and legal duty enjoined upon every person to so conduct himself in the exercise of his own rights as not to trespass upon those of another and to refrain from invading them by force or fraud.

The gist of the wrong claimed and complained of here is active malfeasance. Of wrongs arising from •misfeasance or nonfeasance only, it was early said in Chitty on Pleadings (6 Eng. Ed.), p. 135 (16th American Ed.), p. 152:

“And it seems that, although there be an express contract, still, if a common-law duty result from the facts, the party may be sued in tort for any neglect or misfeasance in the execution of the contract. * * * Where there is an express promise, and a legal obligation results from it, then the plaintiff’s cause of action is most accurately described in assumpsit, in which the promise is stated as the gist of the action. But where from a given state of facts the law raises a legal obligation to do a particular act, and there is a breach of that obligation, and a consequential^ damage, there, although assumpsit may be maintainable upon a promise implied by law to do the act, still an action on the case founded in tort is the more proper form of action, in which the plaintiff in his declaration states the facts out of which the legal obligation arises, the obligation itself, the breach of it, and damage resulting from that breach.”

Of the general definition of a tort as “a wrong independent of a contract,” it is well said in Rich v. Railroad Co., 87 N. Y. 382:

“And yet it is conceded that a tort may grow out of, or make part of, or be coincident with, a contract (2 Bouvier, supra), and that precisely the same state of facts, between the same parties, may admit of an action either ex contractu or ex delicto. (Cooley on Torts, 90.) In such cases the tort is dependent upon, while at the same time independent of, the contract; for, if the latter imposes a legal duty upon a person, the neglect of that duty may constitute a tort founded upon a contract. (1 Addison on Torts, 13.)”

The sole question to be determined under this demurrer is whether there is a misjoinder.

For the reasons given, we conclude that the three counts in plaintiff’s declaration state tortious acts resulting in damage and injury to plaintiff and the violation of a legal duty, thus sounding in tort.

The order overruling defendant’s demurrer is sustained.

Brooke, C. J., and McAlvaY, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred.


text:
    RATHMAN v. NEW AMSTERDAM CASUALTY CO.
    1. Insurance — Fraud—Accident Policy — Death.
    In an action for the death by accident of an insured who jumped overboard from a ship on which he was crossing the ocean, proof that a statement in the application of the insured that he had made no claim or received indemnity for any accident or disease and that in fact he had received thirty dollars from another insurance corporation for injury to one of his knees, was not such a fraudulent and material representation as to warrant a forfeiture of the policy covering the accidental death of the insured.
    2. Same — Warranties—Accident Insurance.
    A representation in an application for accident insurance that plaintiff had not been disabled or received medical ■ attention during the past five years, attached to and made a part of the policy, was an affirmative warranty which was material and its falsity amounted to such fraud as to vitiate the contract.
    3. Same — Accidental Death — Suicide — Disease — Proximate Cause.
    Proof that deceased had been subject to an illness and had been'treated by various physicians and was returning from Europe where he had been treated for the restoration of his health, that his health, strength and judgment were impaired and during the voyage he had been confined to his stateroom troubled by his heart and bad breathing, and that his mind was unbalanced, that he was suffering from a disease diagnosed by physicians as chronic nephritis, complicated by other physical ailments, justified the conclusion that deceased in jumping overboard was affected by the disease and that the proximate cause of his death was not an accident within the meaning of the policy.

    Error to Kent; Brown, J.
    Submitted January 21, 1915.
    (Docket No. 36.)
    Decided June 7, 1915.

      Assumpsit by Lydia Rathman against the New Amsterdam Casualty Company on a policy of accident insurance. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Kleinhans, Knappen & Uhl, for appellant.

      Holmes & Holmes and Don E. Minor (Myron H. Walker, of counsel), for appellee.

      As to liability under accident policy for death during delirium, see 46 L. R. A. (N. S.) 543.

   Steere, J.

This action was brought by plaintiff as the beneficiary named in an accident insurance policy issued by defendant to her husband, Paul Rathman, who, on the evening of July 10, 1912, lost his life by falling or jumping overboard from the steamer Kaiser Wilhelm II, while en route between Bremen and New York. No question is raised as to the pleadings. Her declaration is in assumpsit, upon the policy of insurance according to prescribed form. Defendant’s plea is the general issue, with special notices which raise the question of whether death of the assured, if proven, was accidental, or caused, or contributed to, by disease, illness, or suicide, with the affirmative defense that breaches of warranties in deceased’s application for insurance indorsed upon the policy and made part of the contract of insurance rendered the same void. A trial of said cause in the circuit court of Kent county before a jury resulted in her recovering a verdict and judgment for the full amount which could be claimed under the policy, and, after motion for a new trial which was refused, defendant removed the case to this court for review upon a writ of error containing many assignments.

Defendant’s main contention is directed against refusal of the court to direct a verdict against plaintiff in the first instance, followed by denial of its motion for a new trial; it being urged and argued that there was in the case no evidence to support the verdict, which was contrary to and against the great weight of evidence, because it was not shown death of the insured was accidental, while the evidence disclosed that the accident, if any, was caused or contributed to by disease, and there were material breaches of the warranties contained in the schedules indorsed on the policy.

In outline, it was disclosed by the evidence that on March 16, 1910, the date of the policy in question, deceased, at the solicitation of one La Bare, who was defendant’s general agent for the State of Michigan, made application for accident insurance; that upon such application La Bare countersigned, as special agent, and delivered to him the policy in question, at the city of Grand Rapids in the State of Michigan, where both resided; that the application signed by deceased was forwarded to the home office of the company and there approved. Statements made by defendant in said application were copied upon said policy, and upon renewals thereof made in 1911-12, and were by express terms made a part of the same. By the terms of his application assured warranted all statements contained in it to be true, in the following language:

“(14) This agreement is made in consideration of the premiums and of the statements contained in the said schedule indorsed hereon and made a part hereof, which statement the assured makes on acceptance •of this policy and warrants to be true, and this policy and schedule contain the entire contract except as the same may be affected by any table of rates and classification of risks filed by the company with the insurance department of the State wherein the policy is issued or delivered.”

The policy was for $3,000, and provided for payment of the full sum in case of loss of life, indemnities to be doubled if the loss was sustained by assured riding as a passenger in a public conveyance, with a further provision for increased indemnity if the policy was renewed continuously.

The provisions as to loss of life, and notice of any loss, are as follows:

“Loss of life shall be deemed to mean death of the assured from bodily injuries, not intentionally self-inflicted, which independently of all other causes are effected solely and exclusively by accidental means, resulting in 90 days of the event causing such bodily injuries, or resulting during a period of total disability as herein defined and within 200 weeks of the event causing such bodily injuries as aforesaid.”
“Written notice of any loss for which claim is to be made, with full particulars thereof, must be given to the company at its home office in New York City by the assured, the beneficiary or legal representative, within 20 days from the event causing the injury, unless such notice shall be shown not to have been reasonably possible. Affirmative proof of death or of loss of hand or foot or of sight or of duration of any disability, must also be furnished to the company at its home office in New York City within 60 days of the time of death, or of loss of hand or foot or of sight or of the termination of disability. The company agrees to pay the indemnity due hereunder within 60 days after receipt at the home office of the company of due proof of such claim.”

The policy expressly provided that the insurer should not be liable for any loss caused or contributed to by suicide, illness, or disease, or by disappearance, whether assured be sane or insane.

By their terms the renewal certificates issued to deceased expressly stated that the insurance was continued in force subject to all such conditions and warranties, both written and printed, whether indorsed upon the policy or attached thereto, provided the statements and warranties contained in such policy indorsed thereon or attached thereto remained and were true at the date of issuing the renewal certificates and nothing had occurred, known to assured, rendering the hazard greater or different than originally represented.

Upon her return to Grand Rapids, plaintiff notified La Bare, defendant’s special agent, of the time and manner of her husband’s death and through him presented to the company proofs of loss. Payment was refused on the grounds before referred to, and also because notice was not given nor proofs of loss furnished according to the terms of the policy.

The statements in insured’s application which defendant claims were false are as follows:

“Statement 14. I have never made claim nor received indemnity for any accident, disease or illness, except as follows: No exceptions.”
“Statement 16. My habits of life are correct and temperate; my hearing and vision' are unimpaired; I have never been afflicted with hernia, articular rheumatism, cataract, any disease of the eye, nor insanity, and I am in sound condition mentally and physically, except as follows: No exceptions.
“Statement 17. I have not been disabled nor have I received medical or surgical attention during the past 5 years, except as follows: No exceptions.”

In support of its claim that said statement 14 was untrue, defendant points out the following in plaintiff’s affidavit, as beneficiary, making proofs of loss:

“Had deceased ever received indemnity from a life, health, benefit or accident insurance company, association or order? (A) $30 from Travelers of Hartford, Conn. Injury to knee.”

When and under what circumstances this was paid is not shown. La Bare, defendant’s general agent, who assisted plaintiff with her proofs of loss, testified that deceased carried with him a policy in the Travelers for several years. Plaintiff testified her husband did not tell her about his business affairs and she had no knowledge of the collection of $30 as stated. Manifestly the fact alleged to have been misrepresented has no relation to the cause of death. Under the circumstances of this case, it cannot be said as a matter of law that this amounted to a material and prejudicial misrepresentation which necéssarily worked a forfeiture of the policy. At most, it became a matter for the jury. Hann v. National Union, 97 Mich. 513 (56 N. W. 834, 37 Am. St. Rep. 365). The answers to statements 16 and 17 are more directly related to the cause of loss and involve more serious consideration.

It is shown both by plaintiff’s testimony and proofs of loss that deceased had experienced ill health and received medical attention at times for several years before his death, although the testimony wavers somewhat as to the nature and extent of his troubles. He was an old resident of .Grand Rapids, 65 years, of age, an officer of the Grand Rapids Brewery Company, in charge of its bottling department, and had been one of its directors for over 20 years. His health had been such that in 1910 he visited Europe and took baths at Bad-Neuheim, Germany, from which he was benefited. When abroad he was treated by, and consulted with, two physicians, Dr. Pappe, of Baden Neuheim, and Dr. (Professor) Mattias, of Cologne and Marburg. In December, 1911, at his home in Grand Rapids, he suffered a severe illness, accompanied by profuse bleeding at the nose, and, when Dr. Hutchinson, his physician, was called, was excessively weak, breathing with difficulty and his radial pulse gone. He revived, under the doctor’s treatment, from this attack, and his general condition improved for a time. In his. certificate, which was part of plaintiff’s proofs of loss, the doctor certifies as follows:

“October 12, 1912. This is to certify that I have treated Mr. Paul Rathman, deceased, more or less for the past four or five years and quite constantly during the last year of his life.
“His illness was of such a nature that at times he had great difficulty in breathing; during this time more or less stupor prevailed; during these attacks there were periods of mental aberration, during which time he was certainly irresponsible.
“R. J. Hutchinson, M. D.”

Upon the trial Dr. Hutchinson testified that prior to the serious illness of 1911 he had not visited deceased professionally at his home, but had treated him at different times for four or five years as he would “any other person with some minor ailment;” that insured recovered from the serious attack referred to and later made visits to the doctor’s office, became better again, and his general condition improved; that he was, however, weak — not well — and during the spring the doctor gave him a tonic to build him up, but did not think he ever fully recovered. The doctor appears to refrain from naming his patient’s ailments, whether minor or major, and seemed reluctant to admit on cross-examination that he had not fully recovered.

On April 27, 1912, deceased, accompanied by his wife, started for Europe, going to Bad-Neuheim, where he again took baths. While abroad he became better at times and traveled some, but finally, while at Berlin, his condition became serious, and a physician was called to attend him. On July 8th he started, accompanied by plaintiff, for Bremen to take ship for home. During his stay in Europe he was again treated by Dr. Mattias, at Marburg, where he remained for two weeks, returning to Neuheim again for baths. The physician who attended him in Berlin accompanied and eared for him until on board the boat at Bremen. His condition had then become such that it was necessary to carry him and he was moved in an ambulance. On board the boat he was out of his head part of the time — for about three hours the first night — had difficulty in breathing, his heart bothered him, and he was at times propped up in bed in his stateroom where he remained, not being out of his berth except for temporary necessities. He was rational at times and at times out of his head, said little, but manifested an anxiety to get home. They occupied an outside stateroom which opened upon a short passageway leading out to the open deck, around which was a railing. On the evening of July 10th, at about 10:05 o’clock, assured disappeared overboard, under the following circumstances as stated by plaintiff in her proofs of loss and confirmed by her testimony at the trial: ’

“While lying in my berth, I heard the door of our cabin close, and I immediately followed him to the deck (he was clad in his nightshirt) just in time to grab his hand, his body being on outside of railing, and the next thing I heard was a splash in the water. We were returning home .from Europe, left Bremen July 9, 1912.”

She testified that at the time she caught him he was over the railing, holding by his hand which she seized, but was torn from her before the steward, who came running when she screamed, could reach her; that the night was foggy and the sea then rough.

Plaintiff testified, “No physician that we ever consulted ever made any statement as to what Mr. Rathman’s trouble was,” although the following appears in her affidavit in proofs of loss:

“What diseases or ailments did the deceased have on or about July 10, 1912?
“A. Specialists claimed he had kidney trouble.”

Dr. (or Professor) Max Mattias, who made an affidavit for her'proofs of loss'as “attending physician,” stated in said affidavit that he was director of the Medical University clinic at Marburg; that he examined deceased in private clinic at Cologne in 1910 and at Marburg in 1912; treated him in May, June, and July, 1912; that he found him afflicted with chronic nephritis, uremia, arterio-sclerosis, and hypertrophy of the heart; that the duration of his last illness was “several years,” the predisposing cause being arterio-sclerosis. Dr. Vandenburg, of Grand Rapids, testified as an expert that chronic nephritis is of long duration, always a few years and, as a rule, many years; that “it takes a long time to get a hypertrophied heart;” that in some forms and stages of nephritis albumen is not found in the urine, while Dr. Hutchinson testified that nephritis could not exist without showing albumen in the urine; that he made careful examination of assured in December, 1911, and found no trouble with the urine; that there is no way of telling, from an examination, how long standing nephritis may have been, and “it would be guesswork how long that attack'had lasted.” These matters upon which the testimony is in conflict would, of course, present questions for a jury if controlling; but, aside from this somewhat conflicting evidence of experts at the trial, the undisputed evidence produced by plaintiff shows that before, and at the time, assured was taken on board the ship, he was very ill, in a serious condition requiring that he be moved in an ambulance, his heart troubling him and breathing with difficulty, his mind affected — “out of his head” at times — confined to his stateroom and bed on board the boat, stricken with nephritis and its complications, the same disease with which the expert whom he consulted on both his trips to Europe found him afflicted, in a chronic condition, two years previous.

This is purely an accident policy, covering loss of life “from bodily injuries, not intentionally self-inflicted, which independently of all other causes are effected solely and exclusively by accidental means,” and it is further plainly provided in the contract of insurance that the insurer shall not “be liable for any loss caused or contributed to by illness or disease or disappearance or by suicide, whether the assured be sane or insane.” These provisions applied to the facts leading up to and surrounding the assured’s death present the most meritorious and serious questions, arising in the case.

Incidental to and bearing directly upon this feature is the statement, made a part of the policy of the insured, warranted'to be true, and reaffirmed by accepting a renewal certificate in March, 1912, that he had not been disabled nor received medical or surgical at-' tention during the past five years. The materiality of the statement is obvious in this case. That such statements in assured’s application, when attached ta and made part of the policy, are affirmative warranties in the contract, in accident as well as life insurance, is well settled. 1 May on Insurance (4th Ed.), §§158, 159; Bonewell v. Insurance Co., 167 Mich. 274 (132 N. W. 1067; Am. & Eng. Ann. Cas. 1913A, 847).

It must be conceded as largely conjectural whether assured’s death was accidental or intentional and suicidal. There are evidential facts in the case persuasive of the latter view, while the legal presumptions against self-destruction are in favor of the former. Conceding, however, that it was accidental, plaintiff cannot recover if the accident was caused or contributed to by illness or disease. The trial court so held, but adopted the view that this was an issue of fact for the jury.

The burden of proof was upon the plaintiff to prove accidental death within the terms of the policy. The question of remote and proximate cause as applied in negligence cases is not controlling under the provisions of this contract of insurance. It may be said that the proximate cause of death was falling from the ship into the ocean and drowning; but if there was a causal relation between the concededly serious illness with which the insured was then suffering and the fatal event, even if accidental, there can be no recovery.

The attending facts and circumstances of assured’s death, and events leading up to it, are established by plaintiff’s proofs and undisputed. There was no question as to the proximate cause of death and positive proof of debilitating disease, apparently to a point of helplessness, which seriously impaired both his natural strength and judgment, and the free, full, and normal exercise of his faculties in protecting himself from harm or accident, particularly when in a strange place, on shipboard, traveling by sea. While so traveling, he had been by his illness confined to his stateroom and berth — feeble, distressed in breathing, his heart troubling him, and his mind unbalanced at times. He had then been confined to his bed most of the time for “about twenty days” with disease of the kidneys designated by his physicians “chronic nephritis,” complicated by enlargement of the heart and uremia, a condition resulting from retention in the blood of waste products of the system which would normally be eliminated by the kidneys. About 10 o’clock of the second night out, which was rough, dark, foggy, and very damp, just after plaintiff had lain down and closed her eyes, he arose from his berth and slipped out upon deck, followed immediately by plaintiff, who heard him close the door, and when she overtook him he was outside the deck railing, and as she seized his hand it was torn from her, and “there was a splash in the water” as he disappeared. The facts are undisputed, and the conclusion is unavoidable that this catastrophe, whether intentional or not, had causal connection with, and was attributable in whole or in part to, his illness and the disease which so impaired both his normal mental and physical ability to guard himself against accidents.

In the case of Carr v. Insurance Co., 100 Mo. App. 602 (75 S. W. 180), plaintiff, while ill of la grippe in a hospital, suffering with a high fever and delirious, escaped from his nurse, who had left him for a few moments, and, jumping out of a window, fell a distance of 20 feet, receiving serious injuries. He brought action against defendant on an accident policy issued by it to him which by its terms did not cover or insure against “injuries, fatal or otherwise, received while or in consequence of being or having been under the influence of or affected by, or resulting directly or indirectly, in whole or in part, from intoxicants, anaesthetics, etc., * * * or any disease or bodily infirmity, * * * ” etc. In deciding that under this policy, as applied to the undisputed facts, there should have been a directed verdict for defendant, the court said in part:

“We can appreciate the theory that if the individual is sick, and that he merely suffers from an accident which happens to him while sick, but is not brought' about as a result of such sickness, the sickness is neither the proximate nor remote cause of his injury. * * * But the question presented under the terms of the policy is not whether the plaintiff’s sickness was the pioximate and immediate cause of his injury, but whether the injury was directly or indirectly caused by his disease. * * * For the reasons given, we are of the opinion that plaintiff’s injury was, the direct result of his sickness; and whether it was or was not is immaterial, for it cannot be denied that it was not at least the indirect result of his condition. In either event the defendant would not be liable under the terms of the policy.”

We are impelled to conclude it affirmatively appears from the undisputed evidence in this case that the assured’s death was not occasioned by an accident independent of all other causes, but was contributed to by, and the result of, the illness or disease with which he was afflicted.

The judgment is therefore reversed, without a new trial.

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


text:
    PEOPLE v. GIBBS.
    1. Municipal Corporations — Auctioneers—Power to Regulate.
    The city of Detroit had authority, under its charter, to enact an ordinance to license and regulate auctioneers and auctions held within its limits, and may prescribe such regulations as are necessary and appropriate in that connection to eliminate fraud and protect the public from annoyance ,and imposition.
    2. Same — Reasonableness—Validity.
    Whether- an ordinance intended for such purpose is reasonable and within the range of discretionary power conferred is a question for judicial construction.
    3. Same — Police Power.
    Ordinances enacted in pursuance of this police power are primarily presumed to be valid, unless the contrary appears from their provisions.
    4. Same — Constitutional Law — Ordinances—Reasonableness— Auctioneers.
    To justify the State in interposing its authority in behalf of the public, it must be made to appear that the interests of the public generally, as distinguished from those of a particular class, require such interference and that the means are reasonably necessary for the accomplishment of the purpose and are not unduly oppressive upon individuals. Arbitrary interference with private business is not permissible; nor may unusual or unnecessary restrictions be imposed upon lawful occupations.
    5. Same — Motives.
    But the motive of the legislature in enacting police regulations is not a proper subject of inquiry.
    6. Same — Hours—Time—Closing Hours.
    An ordinance of the city of Detroit, regulating the business of auctioneering, prohibiting fraud or improper methods of selling and prohibiting the holding of such sales after the hour of six p. m., or before eight a. m., is invalid as an unreasonable restraint upon a legitimate trade or occupation.
    7. Same — Evidence—Competency.
    Evidence is admissible to show the reasonable nature of an ordinance regulating a business or trade, and to show local conditions that render its enactment- necessary or proper.
    Certiorari to the recorder’s court of the city of Detroit; Connolly, J.
    Submitted January 21, 1915.
    (Docket No. 46.)
    Decided June 7, 1915.
    Lipman A. Gibbs was convicted of violating a city ordinance.
    Reversed.

      William E. Tarsney (Richard I. Lawson, of counsel) , for the people.

      Doyle & Cameron, for respondent.
   Steere, J.

'Defendant seeks here by certiorari to review and reverse on constitutional grounds a judgment rendered in the recorder’s court of the city of Detroit convicting him of violating an ordinance of said city entitled “An ordinance to license and regulate auctioneers and auctions held ’within the city of Detroit.” The particular provision of said ordinance, under which he was convicted (section 12a), so far as directly material here, reads thus:

“No such, person doing business as a duly licensed auctioneer shall operate a public auction room, or sell goods at public auction, within the meaning of this ordinance, except on week days between the hours of 8 a. m. and 6 p. m. Any person convicted of a violation of the provisions of this section shall be fined,” etc.—

with resulting imprisonment in case of failure to pay said fine.

Section 12 of said ordinance, with which appellant contends section 12a should be construed, is as follows:

“Sec. 12. Noises Prohibited. No bellman or crier, nor any drum or fife, or other instrument of music, nor any show signal or means of attracting the attention of the public, other than a sign or flag, shall be employed, or suffered or permitted to be used in connection with any auction sale at or near any place of such sale, or at or near any auction room.”

The objections urged and argued against said conviction, as set out in appellant’s brief, are as follows:

“(1) The court erred in refusing to rule that the power of the common council of the city of Detroit granted by the charter to license, and regulate auctioneers is not sufficient authority to authorize the common council to prohibit auction sales entirely be-7 tween the hours of 6 o’clock p. m. and 8 o’clock a. m.
“ (2) The court erred in refusing to rule that section 12a of the ordinance in question when construed with section 12 thereof and other sections of said ordinance discloses great want of reasonableness and hence is invalid.
_ “(3) The court erred in refusing to rule that section 12a of the ordinance apart from its connection with section 12 is clearly unreasonable, unfair and partial in its operation, and hence invalid. ' It cannot be by its terms sustained as a legitimate exercise of the police power.
“(4) The court erred in refusing to rule that this ordinance is in violation of the Constitution of the United States and of this State.”

We do not understand any serious question is or can be raised as to the general power of the city under its charter to enact an ordinance to license and regulate auctioneers and auctions held 'within its limits, and therein prescribe such regulations as are necessary and appropriate in that connection to eliminate fraud, and protect the public from annoyance and imposition.

Divested of auxiliary elaborations, the substance of defendant’s grievance is that the provision of the ordinance prohibiting auction sales in the evening after 6 o’clock, during customary evening business hours, is unreasonable and invalid, and is beyond the city’s power of regulation, which is limited to protection of public safety, health, and welfare, to which objects this prohibition has no real and substantial relation.

The facts .in this record are few and concise, briefly establishing without dispute that defendant was a duly licensed auctioneer, and, on February 14, 1914, the same being a week day, did business as an auctioneer and sold goods at public auction after 6 p. m. at 51 Monroe avenue in said city.

This does not purport to be an ordinance for revenue or to prohibit, but one within the police power, enacted to license, regulate, and control for the public welfare a calling or occupation of that class recognized as peculiarly requiring surveillance for the reason that when unrestrained their inherent tendency is often towards dishonest and annoying methods, inimical to the quiet, good order and general welfare of a community. When rightly conducted, the business of an auctioneer is regarded not only as a legitimate calling, but often as a useful and important line of vending in the sum total of business activities. The question therefore arises: Does this provision of the ordinance pass the limit of the power of reasonable regulation?

In reviewing section 12a, which gives rise to the question, it is proper not only to take into consideration section 12, as urged by counsel for appellant, but also the entire ordinance and any fact or matter disclosed by the record which may throw light upon the contention. This ordinance, considered as a whole as originally enacted, is an unusually comprehensive, well worded, logically arranged, and readily understood piece of municipal legislation, keeping well within the scope of its title and the legislative power of the enacting body. It is confined and devoted strictly to the one general object and purpose of authorizing and regulating the business of auctioneering, and to that end licensing certain qualified persons to conduct auction sales, with the well known and generally understood evils attending such business when unrestrained, enumerated, and prohibited. It provides for licensing, as auctioneers, persons of good character, who- must pay a stated license fee and give a bond in the sum of $1,000 to faithfully observe all provisions of applicable ordinances, with two freehold sureties, or a surety company, to be approved by the mayor, and imposes proper punishment for engaging in the business without a license. Among its salient restrictions are the following: The purchaser of jewelry of specified kinds at any auction held by a licensed auctioneer may within five days from the date of the sale return the same if not of the quality represented, when, upon demand, the auctioneer must return the purchase price of the article so purchased, he and his bondsmen being liable therefor; in case of refusal the auctioneer becomes liable to forfeit his license and pay a fine of from $25 to $100; as a further safeguard he is prohibited from closing the place of sale, for the purpose of avoiding an offer to return such articles, during the five days following such sale; substitution of any article in lieu of one sold; making any false representation’ or statement as to the ownership or character of property offered for sale or as to the poverty of the owner; offering for sale goods, wares, and merchandise falsely representing or pretending them to be in whole or in part bankrupt stock, damaged goods or goods saved from fire; the making of any false representation as to the previous history or character of goods offered for sale; receiving for sale goods from any minor; “down-hill” selling, or offering an article at a high price and then offering the same at successive lower prices; conducting any auction sale of personal property in any street, avenue, alley, or public place in the city; and the use of bellmen, criers, musical instruments, etc., as specified in section 12 already quoted, are all strictly prohibited, with punishment by fine and cancellation of the license of any auctioneer violating any of these provisions.

With these safeguards thrown around the business, in what particular are the provisions of section 12a, prohibiting evening sales, related to, or necessary for, the preservation- of public health, peace and safety? There is no evidence showing, and nothing is pointed out in this record which indicates what special wrong to the public would or could result from auctions during business hours after 6 p. m., when conducted according to the requirements of said ordinance, justifying their prohibition as a necessary police regulation. The most to be claimed is that such is to be inferred from the provisions of the enactment itself, because power to legislate upon the subject has been conferred upon the city council whose members are better able to judge the necessities to which local conditions give rise, and the discretion, or judgment, of that body .rather than of the court should control.

Courts do not substitute their discretion for that of municipal authorities acting within the scope of discretionary powers conferred upon them; yet it is settled text-book law that the question of whether an ordinance is reasonable and within the range of conferred discretionary power is always for the courts to determine. 2 Dill, on Mun. Corp. (5th Ed.) §589; Town of Lake View v. Cemetery, 70 Ill. 191 (22 Am. Rep. 71); People v. Railway, 134 Mich. 682.

“Where the power to legislate upon a given subject is conferred, but the mode of its exercise is not prescribed, the ordinance passed in pursuance thereof must be a reasonable exercise of the power, or it will be pronounced invalid.” People v. Armstrong, 73 Mich. 288 (41 N. W. 275, 2 L. R. A. 721, 16 Am. St. Rep. 578).

“It is quite possible that some things have a greater tendency to produce danger and disorder in the cities than in smaller towns or rural places. This, may justify reasonable precautionary measures, but nothing further; and no inference can extend beyond the fair scope of powers granted for such a purpose, and no grant of absolute discretion to suppress lawful action altogether can be granted at all. * * * It is lawful to provide for dealing with the mischief, but it is not lawful to go beyond reasonable measures and precautions in anticipating it.” Matter of Frazee, 63 Mich. 396 (30 N. W. 72, 6 Am. St. Rep. 310).

This ordinance in its general scheme is within the grant of police power conferred upon the city to license and regulate the business of auctioneering, and such ordinances are primarily presumed to be reasonable unless the contrary appear on their face; but if the inherent character of any of its provisions appear upon the face of an ordinance to be unreasonable, or if upon a state of facts shown it so appears, the courts must declare such unreasonable provisions void. The only state of facts shown here is that respondent, a duly qualified and licensed auctioneer, therefore of good character and under bonds, sold goods at auction in a certain place of business after 6 o’clock in the evening. No other misconduct or violation of the ordinance is charged or shown, and presumably the business was otherwise conducted honestly, without fraud or misrepresentation as to the goods offered and sold, off the street, without bellman, crier, or other prohibited noises and in general compliance with restrictions specified in the ordinance. In what manner the business so conducted did, or could, at that particular time of the day, annoy or disturb the public, or menace the peace, good order, health, or welfare of the community more than before 6 o’clock, or more than other lines of business carried on at the same time, is not shown or suggested.

The provision in question (section 12a.) is an amendment to a municipal by-law enacted under a delegated police power of the State granted to license and regulate. Its validity is to be tested by the following limitations as stated by Justice Brown, defining the police power of the State in Lawton v. Steele, 152 U. S. 133, 137 (14 Sup. Ct. 499):

“To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose' unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts.”

The contention that this amendment was enacted for the purpose of protecting or benefiting special interests and was inspired by other motives than guarding the general welfare is immaterial and cannot be considered here. Courts are not concerned with the motives which actuate members of a legislative body in enacting a law, but in the results of their action. Bad motives might inspire a law which appeared on its face and proved valid and beneficial, while a bad and invalid law might be, and sometimes is, passed with good intent and the best of motives.

“Nothing is better settled' than the rule that the motives of a legislature or of the members cannot be inquired into, for the purpose of determining the validity of laws.” People v. Gardner, 143 Mich. 104 (106 N. W. 541).

Entirely apart from all question of motive we are impressed that, With the meager facts shown here, and upon its face, section 12a, necessárily treated as a part of the ordinance and considered in that relation, is a discriminatory and unreasonable interference with the freedom of trade beyond any necessities of the case, does not appear upon its face, and is not shown to be a necessary means to an end within the police power of public protection, and is therefore without the legitimate field of reasonable regulation.

Auctioneering, honestly conducted, is a business within the legitimate scope of trade, traffic or merchandizing. When by ordinance all fraud and misrepresentation in effecting sales and when all questionable methods of attracting attention or conducting sales, which are recognized as likely to develop in that special line of business, and which may tend to public annoyance, imposition, and disturbance of public peace and safety of a community, have been guarded against and prohibited, further restriction extends beyond the fair scope of powers granted to regulate for the protection of society. Though no directly controlling case in this court is found, we are satisfied that the reasoning and views expressed in cases where plainly analogous principles are involved tend towards the foregoing conclusions.

Cases cited from other jurisdictions where the question has arisen cannot be entirely reconciled. In Butte v. Paltrovich, 30 Mont. 18 (75 Pac. 521, 104 Am. St. Rep. 698), an ordinance which made it unlawful to keep open and transact business in a pawnshop, loan office, or second-hand store after 6 o’clock in the evening, except the evening preceding a legal holiday, was sustained as within the police power. That short ordinance, consisting of but one section, besides a concluding penal and repealing clause, contained no other regulating provisions, and it was shown that under the circumstances there was no discrimination in the particular complained of, as all other places in that city were accustomed to close for the day at 6 p. m.

In Hyman v. Boldrick, 153 Ky. 77 (154 S. W. 369, 44 L. R. A. [N. S.] 1039), a short ordinance regulating,- pawnbrokers, second-hand dealers, junk merchants or junk dealers, similar in its provisions to the Montana case, was held to be a reasonable restriction. In support of and disclosing reason for the restriction it was shown that in the city (Louisville) there were many petty thieves difficult of detection in a city of its size, that:

“Thieves resort to second-hand stores especially at night to dispose of stolen goods, and as they do this under cover of darkness, it is almost impossible to apprehend them. Housebreakers and other thieves follow their calling usually under cover of darkness and when they get booty, try to dispose of it as soon as possible. If the second-hand stores are not allowed to remain open at night, they will be ipore easily detected, as they can safely carry things in the darkness which the police could detect in the daylight, and when property has been once sold to a second-hand dealer it is often difficult to find the thief.” 44 L. R. A. (N. S.) 1040.

The case at bar is destitute of any proof even suggesting any reason for the provision in question. It is recognized in this State that evidence bearing upon the reasonableness or unreasonableness of an ordinance, as applied to the subject-matter or to local conditions, is admissible (People v. Railway, 134 Mich. 682 [97 N. W. 36, 63 L. R. A. 746, 104 Am. St. Rep. 626]); but no such evidence was produced here.

Most directly analogous in facts to this case of. any cited in briefs, or found, is Hayes v. City of Appleton, 24 Wis. 542, in which an ordinance that no licensed auctioneer should “sell any goods, wares, or merchandize after sundown,” was held upon its face to be unreasonable as not manifesting any beneficial purpose within the meaning of the charter; therefore unconstitutional and void. What other provisions the ordinance contained is not shown by the published report. It was there said in part:

“It is not shown in the case what evil was to be prevented or good promoted by the passage of the ordinance in question; nor can we judicially see that any restriction of the kind was necessary. No cause for it, whether good or bad, is even suggested, in the brief submitted by counsel for the city; and it is impossible for us to conjecture that any sufficient one existed. * * * And so, too, it might be proper to restrain such sales on particular days or at particular places; or, if the manner of conducting them was particularly objectionable, to prescribe how they should be conducted.”

Here the ordinance does prescribe the manner of conducting them, and that the place shall not be in a public street or alley.

In harmony with and sustaining the general principles governing the Hayes Case, Justice Marshall later, in State v. Redmon, 134 Wis. 89 (114 N. W. 137, 14 L. R. A. [N. S.] 229, 126 Am. St. Rep. 1003, 15 Am. & Eng. Ann. Gas. 408), exhaustively discussed the limitations, rules, and controlling elements of the police power, under which citizens may be restrained for the general good in their pleasures and business activities. This case was cited with approval and freely quoted from in Daugherty v. Thomas, 174 Mich. 371 (140 N. W. 615, 45 L. R. A. [N. S.] 699, Am. & Eng. Ann. Cas. 1915A, 1163).

We are unable to discern from this record that section 12a was proper or necessary for the public welfare, or the protection of society; it does not appear, and certainly is not a matter of common knowledge, that the business of a licensed auctioneer of good character, under bond, is a menace to public peace, health, or safety when properly conducted, in his place of business, during general business hours, or that the excluded hours would be more disturbed by such business, than those which are not. This attempt to prohibit it during a portion of business hours without any disclosed, special reason therefor, impresses us as a discrimination in restraint of trade, and an unreasonable regulation, beyond the limits of police power conferred upon the municipality to license and regulate.

The judgment is reversed.

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