text:
    CYROWSKI v. POLISH-AMERICAN PUBLISHING CO.
    1. Libel and Slander — Damages—Mental Suffering.
    Mental anguish and suffering is a proper element of damages in an action for libel.
    2. Same — Damages—Physical Illness.
    Physical illness or ailment is not a proper element of damages in an action for libel.
    3. Same — Evidence—Admissibility—Expert Witnesses — Damages.
    Evidence of a physician that sleeplessness, headaches, and loss of weight would be natural results of mental anguish suffered by plaintiff was admissible to show the severity of mental anguish suffered as the result of the libel.

    4. Same — Evidence—Hearsay—Admissibility.
    The rule against hearsay was not violated by the admission of testimony of statements made by third persons not produced as witnesses relating to remarks made by them, their conduct and opinions as exhibited and expressed by them concerning the plaintiff after some time had elapsed from the publication of the libelous matter complained of.
    5. Same — Malice—Bona Pides — Evidence—Admissibility.
    The testimony of third persons who advised the editor of the defendant publishing company to question the plaintiff about the truth or falsity of the libelous article before publication, was properly admitted as bearing upon the good faith of the defendants and as showing malice.
    6. Same — Justification—Evidence—Admissibility.
    Where a plea of justification was filed, evidence of plaintiff’s good reputation previous to the publication complained of was admissible, such plea in effect putting upon the record a repetition of the defamatory charge complained of and including a deliberate averment of its truth.
    7. Same — Character of Plaintiff — Presumptions.
    In an action for libel the law presumes that the character of a plaintiff is good until attacked, and he can safely rest upon such presumption.
    8. Same — Evidence—Damages.
    Testimony concerning the early training and life of the plaintiff was admissible, as an aid to the jury in determining what the injury from the libelous declaration was.
    9. Same — Justification—Question fob Juey — Damages.
    Where the matter charged was libelous per se and a plea of justification was filed which was not sustained by
    . proof, there was no error in submitting the case to the jury on the sole question of damages, such being the real question for consideration by the jury.
    10. Same — Corporations—Liabiiity of Manager — Evidence.
    In an action for libel against a publishing corporation and one who was general manager, a stockholder and director of the corporation, and allowed the libelous article to be published after reading it and made no effort to see that a retraction was published after it was demanded by plaintiff, evidence held, sufficient to show that the manager’s connection with the corporation was such that the court was justified in submitting his liability to the jury.
    11. Same — Damages—Excessive Award.
    A verdict for $10,000 damages for loss of business by plaintiff as an attorney and $5,000 damages for injured feelings, as modified by reducing the amount allowed for loss of business to $5,000, was not excessive.
    Error to Wayne; Hosmer, J.
    Submitted October 18, 1916.
    (Docket No. 2.)
    Decided June 1, 1917.
    Case by August Cyrowski against the Polish-American Publishing Company and others for libel. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Clarence P. Milligan, for appellants.

      Monaghan & Monaghan (Frank Murphy, of counsel), for appellee.
    The plaintiff, an attorney at law, brought suit against the defendants, publishers of a newspaper called the Polish Daily in the city of Detroit, printed entirely in the Polish language, and with a circulation of about 7,000 among the Polish people of Detroit, Chicago, Bay City, Philadelphia, and other cities, for libel on account of the printing of certain articles in the Polish language in said paper on November 20, 22, 23, 1912. Prior to the alleged libel plaintiff was a candidate for the office of State senator. The publications relied upon to sustain this action are as follows, translated:
    ‘‘Polish-German-Catholic-Lutheran. Candidate.
    “It is_ difficult to limit ourselves to only one ‘Glimpse’ and it is more difficult yet to pass in silence the political debasement which Attorney . Cyrowski committed being a candidate for the office of senator in the Second district.
    “A man holding himself out as a Pole and a Catholic, who owes his position to the Poles and Catholics, assumes the garb of a German and Lutheran, so that thereby he might gain for himself several voters of other nationalities. Mr. Cyrowski can have no defense in his behalf because the election circular cited by us. in the Glimpses was mailed and sent to all other nationalities, and therefore known to him.
    “There are frequent instances among the Poles of denials of their nationality, but they have this in common, that a Pole, who forever denies his nationality and his religion gives himself wholly into the hands of Germans, Lutherans. Such examples, however, as Mr. Cyrowski who changes his nationality, religion and opinion and his. own soul to suit the direction of the wind we find very few in our post dismemberment of Poland history. Politics depraves people and often dictates acts not in harmony with the nationality, but in every instance has a reasonable and logical foundation for the treatment of the matter.
    “Mr. Cyrowski, announcing himself a German and a Lutheran, didn’t do so rationally nor logically, because he knew that such political maneuver would be detected sooner or later and would be given to the public.

      “From this time on there is no place for Mr. Cyrowski amongst the Polish people nor amongst the Catholics, because he who once has renounced ^ his fatherland and his religion for material gains is .a traitor and will forever remain one.
    “Mr. Cyrowski has gained a record in the political races for offices, but gained it in such a manner and by such means as the greatest of Targowiczanin would be' ashamed to employ. He has trodden on everything that can be most sacred. He renounced the virtues which he sucked out from the breast of his mother, and all this to satisfy his ambition. It is painful to write upon such a subject and painful to call a man to public account for such national treason and religious treason, but similar instances cannot be regarded as a personal matter not fit to be published, because they are symptoms of public character.
    “We know that many Polish politicians in America are renouncing their nationality, are catering to the greatest enemies of the Polish name, but are doing that privately, quietly, and secretly, and are not perpetuating their perverseness black on white. If we had but one fact in defense of Mr. Cyrowski, we would pass this by in silence, not wishing to punish a man too severely for such act, but not in a Polish-German-Catholic and Lutheran matter of a Polish-German-Catholic and Lutheran candidate for senator, we have no such fact. The Poles do not need such candidates for offices, because, supporting such, they would be false to themselves.
    “Who denies his own nationality, spits upon the religion of his forefathers, is not worthy of support nor of pity; he puts all his friends in a difficult position and exposes them to the contumely among others.
    “If Mr. Cyrowski had declared hi'mself an American, he would thereby deny his nationality, but when he had declared himself a German and a Lutheran, he thereby committed a crime of treason against his nation, joining our worst enemies, and his act is so much the worse, for no one in the United States- would demand of a Pole that he become a German or a Lutheran.
    “A Hakatist could only do that, and whoever joined such and seeks his support becomes one himself.”

      This article appeared in the issue of the Polish Daily of November 20, 1912. The following appeared on November 22d in answer to a letter demanding a retraction written by him to the defendant publishing company:
    “An Answer to Mr. Cyrowski.
    “To the request of Mr. Cyrowski to rectify our editorial published Wednesday referring to a certain coup employed during the last political campaign, we will reply with a question to which Mr. Cyrowski as an intelligent and educated man will doubtless find an impartial answer.
    “What would you do, Mr. Cyrowski, in a case like this: Suppose you are a man who loves sincerely his native land and the faith of his forefathers, and you know that a German is the greatest enemy of your faith. Suddenly you receive evidence black on white, that a compatriot of yours in whose loyalty to the fatherland and faith of his forefathers you believed implicitly — that that compatriot declares publicly before others that he is a German and a Lutheran and as such is running for office. What would you do in such a case, Mr. Cyrowski?
    “Would you not revolt against such a compatriot, especially at present, when the Germans, are depriving your fathers of all the divine and human laws?
    “Would you not grasp your pen to put an end to such a practice for once and ever?
    _ “Doubtless, you would do so, because in such contingencies the memory of your downtrodden fatherland and prosecuted faith and the care for the future of your nation would be dearer to you than all the worldly considerations, dearer than your own brother, sister, or even father.
    “Just consider yourself in this position for a moment, Mr. Cyrowski, take into your hands this year’s candidate’s ticket, glance at the name of the senatorial candidate from the Second district on the Progressive list and * * * judge!
    “If you will render an unbiased judgment, if you will read that unfortunate item as a Pole and a Catholic should read it, then you will feel a sting of shame for the imputed deed, and with your hand on your heart you will repeat thrice over — Mew culpa — mea culpa— mea maxima culpa. Through my fault, through my fault, through my most grievous, fault.”
    On the 23d of the same month the following article appeared:
    “Poles Are No Bandits.
    “Our case with Mr. Cyrowski, whom we accused of having declared himself a German and a Lutheran in a pamphlet circulated and distributed in the city, took an unexpected turn.
    “We gained a new enemy, the local German paper, instructed by Mr. Cyrowski. It attacks, the Polish Daily for the truth it printed, namely, that the German Hakatists. are the most abominable robbers permitted to exist on the surface of this globe.
    “We cite the German article verbatim, and those wishing to read the original we direct to No. 16721 of the Abend Post. This article reads as follows: [Quoting the article.]
    “Thus wrote the German paper, informed by Cyrowski. This information, however, is another slap at the Polish people, which Mr. Cyrowski struck through the Germans, who always were, and ever will be, enemies of the Poles.
    “Mr. Cyrowski dares to say that he feared bodily harm, or, in other words, of being beaten up. That is such a slander as only a Pole of the size and caliber of Cyrowski would be guilty.
    “How is that Mr. Cyrowski? So you deemed Poles to be bandits, barbarians, ready to commit assaults on you? How would you dare to insult the people? How could you dare to slander the Poles through the instrumentality of the Germans?
    “Oh! no, Poles act differently in such instances. They know enough not to extend the hand, and to pass without recognition a man who denies his nationality and faith but they don’t know how to commit assaults and be bandits.
    “You are convinced of that in your own life, Mr. Cyrowski. Do you not remember a certain evening when you, as we will hereafter write, preached in a certain Woodward avenue church, and criticized the Poles'and called them drunkards and slaves? No hand was raised against you then, and none demanded satisfaction for the slander of the Polish honor. Forgive those who are of weak spirit for they do not know what they are doing was the rule used by the Poles. You were regarded as weak in spirit and forgiven many things, but today, having passed the required examination of maturity, and when we are convinced that you are so poor in spirit as you appeared to be, you have to answer for all these slanders of the Polish name. You may go to William of Prussia himself and ask his curses on the Polish people and forewarn us against our Daily, but thereby you will not stop us from fighting all those Poles who swore allegiance with the Germans against the Polish people.
    “We also told the Germans that our article contained an indirect attack on Lutherans. As far as that is concerned, you and your Prussian friends may ‘take notice that our Daily always regarded the Prussians as robbers of the lands of our fathers, the torturers of our Wrzesen children, the persecutors of our rural and labor population, the intelligent class and of our clergy. For those we have only spit in our mouths.
    “Of course, we understand very well that the German community is composed of decent Saxons, Bavarians, and several other noble groups and individuals. Our remarks don’t pertain to them. But we hate the Prussians and all Polish renegades whom we regard as their equals.”
    The following paragraph from a pamphlet of the Civic Uplift League, which published a list of the candidates for the various public offices, was the foundation of the publications and was relied upon for the defense of good faith, the only defense offered:
    “Progressive County Ticket. State Senator, Second district, 5th, 7th, 9th wards of Detroit.
    “Aug. Cyrowski. Res. 905 Russell Street. Lawyer, 905 Russell St.
    “Married, with family, owns home. Graduate of Detroit College of Law. Age 35 years. German Lutheran. Highly recommended by.those who know, him.”

      The plaintiff denied each and every statement represented as coming from him in the libelous articles.
    Plaintiff recovered a verdict upon the trial for $10,-000 damages for loss of business or professional gains as an attorney and $5,000 for injured feelings. Upon a motion for a new trial the amount of the verdict was reduced to $5,000 for damages for loss of business, while the verdict for injured feelings was allowed to stand.' The errors assigned refer to the admission of evidence, the court’s charge to the jury, and the refusal to grant a new trial.

      On admissibility of opinion of witness as to damaging effect of libel or slander, see note in 35 L. R. A. (N. S.) 1119.

   Kuhn, C. J.

(after stating the facts). The first assignment of error relates to the testimony given by Dr. Sadowsky, who testified that sleeplessness, headaches, and loss of weight would be the natural results of mental anguish suffered by the plaintiff because of the libels published against him. This testimony was offered and received for the purpose of proving that the mental anguish was real and had expression. That mental anguish and suffering is a proper element of damages is not disputed, but it is urged that evidence of physical pain and disability is too remote in character and cannot be considered the usual, ordinary, or necessary consequences of the wrong. While it is true that no recovery can be had for physical illness or ailment claimed to be a result of the libel, no such claim of damages was submitted to the jury, and we cannot see any impropriety in admitting the testimony to show the severity of the mental anguish which was a proper subject of damages. It must be borne in mind that the article in question was clearly libelous per se and that a retraction was demanded. In place of a retraction other articles were published similar in tenor to the first. A plea of justification was filed, but no effort to justify it was made on the trial.

The next assignment of error relates to the admission of the testimony of statements of third persons not produced as witnesses relating to remarks made by them, their conduct, and opinions as exhibited and expressed by them concerning the plaintiff after some time had elapsed from the publication of the alleged libelous attack. It is. claimed that this testimony was incompetent on the ground that it was hearsay. The declaration in the instant case alleges the following as to damages :

“In consequence of the committing of which said grievances by the defendants, the plaintiff has not only been greatly injured in his good name, credit, and reputation and esteem, and has been brought into public scandal, ridicule, and disgrace, has been and is shunned by many persons> but also, by means of which the said plaintiff has been and is greatly injured in his said practice of his said profession, and has fallen into great discredit, disgrace, dislike and disrepute amongst his clients and amongst the Polish people residing in said State of Michigan and elsewhere generally and amongst other good and worthy citizens of the State of Michigan with whom he had dealings in his profession and otherwise, as aforesaid, and who by reason and on occasion of the writing and publishing of said libel have altogether refused to have any further dealings with him in his profession as aforesaid, and plaintiff has been greatly vexed and harassed and injured thereby, and has lost and been deprived of great gains and profits in his said profession, which would have arisen and accrued to him had not the said defendants composed and published and caused the same to be composed and published as aforesaid the said false, malicious, defamatory, and injurious libel of and concerning said plaintiff; and plaintiff, by reason of said false, malicious, defamatory, publication as aforesaid, lost his said position of pre-eminence amongst the Polish people of said State of Michigan and his said representative capacity thereof and his said choice of high political honors, and also thereby suffered great mental pain, anguish, and mortification and thereby he is and was otherwise greatly injured.”

The plaintiff claimed that he had become a leader among the Polish people, and that he had established himself in a position of trust and confidence among them, and as a result of the libélous attack his good reputation was destroyed, which resulted in great pecuniary damage to him in the loss of business as a practicing attorney. This element of damage is particularly set forth in the declaration, and it would seem proper to show the fact that the libelous article had been read by proving the statements and conduct toward him of persons who had in all probability read the article. A similar question arose in Park v. Detroit Free Press, 72 Mich. 560 (40 N. W. 731, 1 L. R. A. 599, 16 Am. St. Rep. 544), where Mir. Justice Campbell, in speaking of similar testimony, said:

“Plaintiff was not allowed to show that various other persons called his attention to the libelous article. We can see no reason why such facts were not pertinent. The mischief of a libel consists in the fact that it is actually seen by third persons. The circulation of a paper is allowed to be shown, as making it probable that the article has been read by several persons. Evidence of actual knowledge cannot be inferior to presumption. In Steketee v. Kimm, 48 Mich. 322 (12 N. W. 177), a claim was made that there could be no presumption in an American community that articles in Dutch would be read by any one; but we had no difficulty in finding that Hollanders could and might do so. It would certainly have been proper in that case to show that Hollanders actually did read the libel, and there was convincing proof that it affected the plaintiffs business. In many, if not most, cases, actual pecuniary injury to business could not be shown without incidentally or directly indicating that there must have been individual readers.”

The authorities seem also to agree that the rule against hearsay is not violated by such testimony because the truth of the remarks is not at issue, but the point in controversy is rather the uttering of the libelous remarks. See 1 Greenleaf on Evidence, § 100; 2 Jones on Evidence, p. 648. In the case of McDuff v. Detroit Journal Co., 84 Mich. 5 (47 N. W. 671, 22 Am. St. Rep. 673), by the testimony disputed an attempt was made to show that the plaintiff was slighted by certain acquaintances. It was held that it was inadmissible because the allegation in the declaration as to damages was general, and no special damages were alleged. The declaration in this case alleges special damages, and the testimony in question was therefore proper in support thereof.

The third assignment of error had to do with testimony, which was admitted, of third persons who advised the editor of the defendant publishing company to question the plaintiff about the truth or falsity of said alleged libelous article before publication. We are of the opinion that it was properly admitted as bearing upon the good faith of the defendants, and as showing malice.

Another assignment of error relates to the admission of evidence of plaintiff’s good reputation previous to the publication complained of. In this State, as held in Hitchcock v. Moore, 70 Mich. 112 (37 N. W. 914, 14 Am. St. Rep. 474), the rule is that the law presumes that the character of a plaintiff is good until attacked, and he can safely rest upon that presumption, but nevertheless in this case we find a plea of justification filed which is in effect putting upon the record a repetition of the defamatory charge and includes a deliberate averment of its truth. No attempt was made on the trial to justify and it must be said that it takes it from under the rule above referred to as the plea clearly put his reputation in issue.

Testimony was offered and admitted concerning the early training and life of the plaintiff. We see no error in admitting this testimony as it was helpful to the jury in determining what the injury from the libelous declaration was.

Complaint is made of the charge of the court in that it did not give the defendants’ theory of the case and did not give proper instructions as to the liability of defendant Welzand and on the subject of malice. The article being clearly libelous per se, and the defense being justification in which the defendants admittedly failed, the trial judge was justified in submitting to the jury the only real question for their consideration, to wit, damages, which he did in a clear and able charge which outlined the entire situation with great fairness. ' Mr. Welzand was a stockholder, director, and general manager of the publication. It appeared from the evidence that Zielinski, the editor, told Welzand that he was going to write about the plaintiff after he had received the pamphlet of the Civic Uplift League, and that the writers of the paper’s editorials were under his authority and discipline. Welzand testified that after reading the article he called Zielinski’s attention to the fact that they might get into trouble over publishing it, but did nothing to prevent him from writing further on the subject, and, after answering plaintiff’s letter demanding a retraction, made no effort to see that a retraction was published. His connection with the corporation was such that the court was justified in submitting his liability to the jury.

Other assignments of error, not being specifically mentioned, have been examined and found to be without merit. We are satisfied that the verdict as modified by the trial judge on the motion for a new trial is not excessive under the proofs in this case.

It not affirmatively appearing that the trial resulted in a miscarriage of justice, the judgment is affirmed.

Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


source: Caselaw Access Project

author: Kuhn, C. J. Fellows, J.

license: Public Domain

text:
    DETROIT, BAY CITY & WESTERN RAILROAD CO. v. FIRST NATIONAL BANK OF YALE.
    1. Eminent Domain — Damages—Benefits.
    In the absence of statutory authority, benefits cannot offset damages in proceedings for condemnation of land for a railroad right of way.
    2. Same — Jury—Questions of Fact and Law — How Determined.
    In proceedings to condemn a railroad right of way the jury are judges of the law as well as of the facts. Fellows, Stone, Ostrander, and Bird, JJ., dissenting.
    3. Same — View of Premises — Damages—Application of Benefits to Damages.
    Where the jury, in proceedings to condemn a railroad right of way, viewed the premises, heard proof and argument of counsel, and allowed the respective owners substantial damages, defendants could not be heard to complain as to the theory of the application of benefits to damages adopted by the jury;
    4. Same — Damages'—Mortgages—Impairment of Security.
    In proceedings for the condemnation of a railroad right of way over mortgaged land, where the jury found that the loss of the land for the right of way did not impair the security of the mortgagee, an award of damages or compensation for such land tahen would not be warranted where the mortgagor had released such right of way to petitioner. Fellows, Stone, Ostrander, and Bird, JJ., dissenting.
    Appeal from Sanilac Probate Court; Pearson, J.
    Submitted January 10, 1917.
    (Docket No. 82.)
    Decided June 1, 1917.
    Rehearing denied September 28, 1917.
    Condemnation proceedings by the Detroit, Bay City & Western Railroad Company against the First National Bank of Yale and others to acquire a right of way. From an order confirming the award of the jury, defendants appeal.
    Affirmed by a divided court.

      Lincoln Avery, for appellants.

      John C. Hewitt and Walter S. Wixson (C. F. Gates, of counsel), for appellee.
    These proceedings were instituted in the probate court of Sanilac county under chapter 107, 3 How. Stat. (2d Ed.) § 6596 to and including § 6601 (2 Comp. Laws 1915, §§ 8252-8257), for the purpose of acquiring a right of way for the petitioner, which right of way crossed or intersected the'lands of the respondents. Prior to filing the petition negotiations were had between representatives of the petitioner and respondents with the end in view of securing the right 'of way from each of them. They were unable to agree upon the compensation, and the petition was filed as provided by law. A jury was chosen, viewed the premises, and heard the proofs and arguments of counsel. An award was returned by them, objections of counsel heard, and the award confirmed by the judge of probate. The amounts of the awards were as follows:' To John Wellman and Hattie Wellman, owners of 2.14 acres, and Otto H. Cain, mortgagee, $150; to William Wellman, owner of 3.7 acres, and Henry Patterson, mortgagee, $250; to Robert Sibbald, owner of 2.89 acres, $75; to Mary Ann Rolls, owner of 2.69 acres, $175; to Thomas Grimes, owner of 1.7 acres, and the estate of Charles Palmer, deceased, mortgagee, $50; to the First National Bank of Yale, Mich., and Charles G. Cork, interested in 2.87 acres of land as mortgagees, no dollars.
    About three acres of land was taken from the Mitchell farm, upon which the First National Bank had a first mortgage lien. Mitchell had given a bonus note of $150, and subsequently gave a quitclaim deed to this right of way for a surrender of this note. The mortgage lien was not released, and the mortgagee received no part of the consideration, and was not a party to 'the agreement between Mitchell and petitioner.
    Objection was made to the admissibility of certain evidence, and the court ruled that the jury passed upon the admissibility of the evidence, and that he had no power of keeping any evidence from going to the jury. The respondents appeal to this court, and no question of jurisdiction or of the necessity for taking the particular parcels of lands sought to be acquired under the petition is involved in this case. The questions for review presented by the record, as stated by appellants’counsel, are as follows: .. -
    (1) Can a jury in a railroad condemnation proceeding set off against the value of land taken for a right of way the general benefits to be derived by the community as a whole?
    (2) Can general benefits be used to "reduce the amount of damages to the remaining land after a right of way is taken?
    (3) Can a jury refuse to determine ilae value of land taken, when the same is subject to a mortgage lien, the mortgagor having released the right of way subject to the mortgage?
    (4) Is it within the province of a condemnation jury to pass on the sufficiency of the security to satisfy a mortgage indebtedness, and award nothing for mortgaged land taken for a right of way, if in its opinion sufficient land remains, subject to the lien, to satisfy the debt?
   Kuhn, C. J.

(after stating the facts). Upon the hearing before the jury it was claimed by petitioner’s counsel that the benefits should be taken into consideration in arriving at the compensation, and only such compensation should be allowed as the testimony showed the value of the several parcels were depreciated by the proposed improvements, and the respondents contended, and so argued before the jury, that no benefits, general or special, should be offset against the value of the land taken or against the damages to the remaining land. Regarding this contention, under the present state of the law in this State, in our opinion the respondents were correct. The statute under which these proceedings are brought. (section 21, art. 2, chap. 164, 2 Comp. Laws, § 6246, 2 Comp. Laws 1915, § 8255) nowhere refers to benefits, and no authority is vested in the jury to estimate the benefits and reduce the award for the value by taking therefrom the amount of the estimated benefits. In the case of Township of Custer v. Dawson, 178 Mich. 367 (144 N. W. 862), the statute (1 Comp. Laws 1915, § 4310) expressly provided that “the benefits accruing to owners of lands by reason of laying out or altering any highway shall be taken into consideration,” which distinguishes that case from the one now under consideration. It is argued that “just compensation,” as used in the Constitution (section 1, art. 13), means a compensation which would be just in regard to the railroad company as well as in regard to the individual, and if the jury should be satisfied that the individual would receive benefit from the taking of the property, it could not be said to be just compensation to give him full value. This question was recently considered by us in the case of Plantenga v. Railway Co., 190 Mich. 661 (157 N. W. 425), and I was of the opinion that the petitioner’s contention was a just and reasonable construction of the language of the Constitution. The majority of my Brethren did not agree with me, and I therefore now defer to their judgment, and it must be said that the rule in this State is that, in the absence of authority given by statute, benefits cannot offset the damages and should not be considered in proceedings of this kind.

It was early decided, however, that the jury in proceedings such as these are judges of both the law and the facts. In Toledo, etc., R. Co. v. Dunlap, 47 Mich. 456 (11 N. W. 271), Justice Campbell, in commenting upon this statute, said:

“The judge formed no part of this special tribunal. The statute, indeed, allows the judge to ‘attend said jury, to decide questions of law and administer oaths to witnesses.’ Section 21, art. 2. But the same statute which allows this allows him to designate a circuit court commissioner for the same purpose, and also allows the jury to proceed without either. Whatever the language of this statute, literally construed, may mean, it is very clear that any such functions must, at most, be advisory. The jury will undoubtedly be regarded as accepting and doing what they permit to be done. But in all such cases the Constitution, as well as the principles of the common law, makes them judges of law and fact. Chamberlin v. Brown, 2 Doug. 120. Their conclusions are not based entirely on testimony. They are expected to use their own judgment and knowledge from a view of the premises, and their experience as freeholders, quite as much as the testimony of witnesses to matters of opinion. And while an appellate court is bound in such, cases to set aside proceedings which appear to be based on false principles, it cannot properly deal with rulings as if they were excepted to on a common-law trial or dispose of the controversy on merely technical notions. Chamberlin v. Brown, supra; Michigan Air-Line Railway v. Barnes, 44 Mich. 222 (6 N. W. 651).”

It was the claim of the petitioner, and the testimony tended to show, that the benefits exceeded the damages, and the several farms would be of greater value after the railroad was constructed across them than before the condemnation. The jury viewed the premises, heard the proofs, the argument of counsel and accepted the theory of respondents, rejecting the theory of the petitioner, and allowing the several owners of the fee substantial damages in each case. It is not to be presumed that the incompetent evidence which was introduced regarding benefits influenced their judgment any more than the same evidence would if it had come to them when acting merely as citizens buying and selling the land. See Detroit, etc., R. Co. v. Crane, 50 Mich. 182 (15 N. W. 73). We are therefore of the opinion that the respondents cannot be heard to complain as to the first and second propositions here advanced by them.

With reference to the other contentions of respondents’ counsel, it must be borne in mind that the mortgagor had released the right of way to the petitioner, and that the mortgagee possessed no title to the land, and its interest in the real estate is simply to see that the value is not diminished. The jury found that the mortgagee’s security was not impaired by the taking of the 2.87 acres of land of the mortgagor. Whether in arriving at this conclusion they recognized the claim as to benefits or decided for other reasons that the changed conditions did not impair the value of the mortgagee’s security is conjectural. If the jury, after carefully viewing the premises and hearing the testimony, became satisfied that the value of the security in dollars and cents remained equal to what it was before, the mortgagee is in no respects injured, and the jury would not be warranted in awarding damages or compensation under such circumstances. We see no valid reasons for disturbing the award of the jury, and the proceedings are therefore affirmed, with costs to the petitioner.

Moore, Steere, and Brooke, JJ., concurred with Kuhn, C. J.

Fellows, J.

(dissenting). I am unable to agree with the Chief Justice in the disposition to be made of this case. I understand the rule to be that this court will not ordinarily set the award in condemnation proceedings aside because of the introduction of improper evidence (Detroit, etc., R. Co. v. Campbell, 140 Mich. 384 [103 N. W. 856], and cases there cited); but where-we are clearly satisfied that improper and prejudicial testimony was received and acted upon by the jury, and the award made was the result of such improper and prejudicial testimony, or the result reached by the jury was clearly brought about by the adoption of an erroneous theory of the law, our duty is plain. As was said by Mr. Justice Campbell in Grand Rapids, etc., R. Co. v. Weiden, 70 Mich. 390 (38 N. W. 294):

“The powers and duties laid upon us by the statute require us to see that substantial justice shall not be disregarded by the jury of inquest. We are not disposed to be governed by such technicalities as are not in the furtherance of justice. But we are bound to see that parties are not deprived of their property without necessity, or without full compensation for being compelled to relinquish it.”

I do not believe it to be within the province of courts, or a jury, of inquest, to deprive a mortgagee of a portion of the security agreed upon and covered by the terms of the contract of mortgage, even for a public purpose, without just compensation. In the case of Long v. Kaiser, 81 Mich. 518 (46 N. W. 19), as in the instant case, the mortgage had been foreclosed. The trial court there found as a fact that the value of the premises was considerably in excess of the amount of the mortgage, but this court said:

“The effect of this decree, if allowed to stand, would be to compel the mortgagees to accept a part of the property held by them as security, in satisfaction of their debt. This the courts have no right to do, unless it clearly appears that the mortgagees have released, or agreed to release, such part of the mortgaged premises. This the complainant alleged .in his bill, but the circuit judge did not so find, nor do we think there is any evidence in the case of such an agreement. Every mortgagee .has a right to have all the property covered by his mortgage brought to sale for the satisfaction of his debt. The courts cannot appraise the property, and say to the mortgagee: 'You may have so much, which, in our judgment, is enough to satisfy you.’ The courts can, in a proper case, order a sale of the property in parcels, and in a certain order, but cannot say that the. mortgagee shall release a part, and take the remainder for his debt.”

The defendant First National Bank of Yale held a mortgage on 100 acres of land owned by one Andrew E. Mitchell. This mortgage had been foreclosed, and the amount due the bank when the equity of redemption expired would be $5,880. The amount of land taken by the railroad in this proceeding was 2.87 acres. The plaintiff produced only one witness who testified with reference to the value of this land. He says:

“In my opinion, the entire value of the Mitchell land, 100 acres, as it lies, based on the price a man said he would take it for, is $6,500; it may be worth $7,000. Based upon my own knowledge of value, for farming purposes, I think it would be worth from $60 to $65 an acre; the north end would not be worth more than $50 an acre.”

Defendant produced one witness who testified that this land was worth $60 per acre and another witness who put the value at $50 to $55 per acre. It also gave testimony tending to show damages to the extent of $10 per acre by reason of the construction of the railroad. In addition to the bank’s mortgage, there was a second mortgage for $500 held by one Cork, whose claim did not receive any consideration or award by the jury. As he has not appealed, we cannot adjudicate his rights, but we may consider this action, of the jury as showing the theory upon which they proceeded in reaching the result. Andrew E. Mitchell had executed a quitclaim deed of the right of way to the plaintiff, but he could not, and did not, thereby wipe out and discharge the lien of the bank or of Cork. Proper practice required, as contended by defendant, that the jury should fix the damages to this piece of land; then an apportionment of the award to those entitled might be had, pursuant to the provisions of section 6249, 2 Comp. Laws (section 6602, 3 How. Stat. [2d Ed], 2 Comp. Laws 1915, § 8258). I am not prepared to .hold that a failure to follow this practice would constitute such error as would justify setting aside the award where substantial justice has been done. However, the practice adopted in the instant case makes patent the error into which the jury fell by adopting plaintiff’s theory and evidence.

It was the plaintiff’s theory that the jury “should consider the general benefits to the lands of each defendant for the construction of petitioner’s railroad, and to set off the same against the value of the land taken and the damages, if any, to the remaining land,” and witness after witness was called by plaintiff and gave testimony tending to show, not only such special benefits to the owners of land traversed by the railroad, but also testimony was given tending to show general benefits to the community at large. The failure to allow any damages to the bank, although nearly three acres of its security was taken from it, and the balance of its security seriously damaged, puts beyond cavil that the jury adopted the theory so forcefully urged upon them by the able counsel for the plaintiff. This is fortified by the fact that Cork, and his mortgage of $500 junior to that of the bank also appears to have been entirely lost sight of, and no damages were awarded to him. Upon no theory could this result have been reached upon this record, other than that the benefits derived from the building of this railroad equaled or exceeded the value of the land taken together with severance and other damages to the land remaining.

Being satisfied that plaintiff’s theory was adopted as to the Albert E. Mitchell land, I think we must conclusively presume that it was .adopted as to the other lands taken and that it permeated the entire award.

But I am not content to rest my conclusion as to the other awards on this presumption. The damages awarded as to the other pieces of land taken is equally persuasive that the same theory was adopted as to them. Robert Sibbald was awarded $75 for 2.89 acres of land in the village of Roseburg. Witness Ruttle, plaintiffs right of way man, testified that he offered Sibbald $50 per acre, which was refused, and he later offered $100 per acre. He says:

“I think I made him a fair offer. I don’t think he would be entitled to any damages or compensation at all by reason of the benefits he got.”

Plaintiff gave no further testimony as to the value of the Sibbald piece, and there is no testimony in the record justifying a conclusion that the land taken was worth less than $50 per acre. At $50 per acre the land taken is worth $144.50, and when we consider that it was a strip 66 feet wide and extending 1,908 feet through Mr. Sibbald’s land the conclusion is irresistible that the jury did adopt plaintiff’s theory, and not only offset supposed benefits arising out of the construction of the railroad to wipe out severance damages, and other damages to the remaining land, but also by the same process wiped out nearly one-half the value admitted by plaintiff for the actual land taken. Mr. Justice Campbell, in Grand Rapids, etc., R. Co. v. Chesebro, 74 Mich. 466, 474 (42 N. W. 66, 69), said:

“* * * The mere taking of 4 acres for a right of way could not be regarded, in any sensible point of view, as compensated by one-tenth of the value of the 40 acres, taking acre for acre. The damages in such a case must be such as to fully make good all that results, directly or indirectly, to the injury of the owners in the whole premises and interests affected, and not merely the strip taken.”

In the instant award the jury have allowed only about one-half the admitted value per acre of the land taken. This award can be permitted to stand only upon the theory that benefits may be offset against damages, a theory out of accord with the Plantenga Case, cited by my Brother Kuhn.

John Wellman and Hattie Wellman, owners, and Otto H. Cain, mortgagees, were allowed $150 for 2.14 acres of land. The only testimony offered by plaintiff as to the value of this land was its offer of $80 per acre for it. At this figure per acre the strip taken was worth $171.20. But like the Sibbald strip it was 66 feet wide, and the record disclosed that it entered a 40 at the northwest corner and ran practically diagonally across it, coming out 556 feet west of the southeast corner. Can we close our eyes to the right of the owner to just compensation under both Federal and State Constitutions, and to the fact that such just compensation includes not only the value of the land taken, but also all damages to that remaining, and conclude that the jury of inquest adopted the correct theory, that advanced by the defendant, when they allowed less than the admitted value of the land taken? I think not.

I shall not take up the other awards. Some of them are not as marked as those to which attention has been called. Some of them, when properly analyzed, are equally so. The conclusion is irresistible, the record establishes beyond doubt, that the jury accepted plaintiff’s theory that benefits could be offset against damages in condemnation proceedings, and, believing the great mass of plausible testimony as to such benefits, did not award to the defendants that just compensation secured to them by the Constitution when their private property is taken for a public use.

I think the award should be set aside,' and a new appraisal ordered.

Stone, Ostrander, and Bird, JJ., concurred with Fellows, J.


author: Kuhn, C. J. Ostrander, J.

text:
    CHAPMAN v. ANN ARBOR RAILROAD CO.
    1. Master and Servant — Federal Employers’ Liability Act-Assumption of Risk.
    Under the Federal employers’ liability act an employee assumes the usual and ordinary risks incident to his employment.
    2. Same — Question for Jury.
    It was a question for the jury whether plaintiff assumed the risk, in an action under the Federal employers’ liability act to recover for injuries received while plaintiff was, with other employees, unloading heavy timbers from a railroad car, one of which, without warning, shot out of the car and struck plaintiff.
    3. Damages — Excessive Verdict — Personal Injuries.
    A verdict for ?1,800 for pain and suffering, loss of time, and injury to two fingers of plaintiff’s right hand, resulting in ten to twenty per cent, loss of efficiency thereof, held, not excessive.

    4. Sam:e — Evidence.
    The verdict held, not against the weight of the evidence where there was a sharp conflict of evidence.
    Error to Shiawassee; Miner, J.
    Submitted January 19, 1917.
    (Docket No. 34.)
    Decided June 1, 1917.
    Rehearing denied September 28, 1917.
    Case by James L. Chapman, an infant, by Amelia Voss, his next friend, against the Ann Arbor Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Gustavus Ohlinger and S. Q. Pulver (Alexander L. Smith, of counsel), for appellant.

      George E. Pardee and Roy M. Chroueh, for appellee.

      This action is brought by James L. Chapman, through his guardian, Amelia Voss, against the defendant railroad company under the Federal employers’ liability act for injuries received while in the employ of the defendant on August 20, 1915, in the city of Owosso, Mich.
    Plaintiff had been working for the defendant since August 3, 1915, and on the day in question was employed, together with three other men, in unloading bridge timbers from a freight car. These bridge timbers were about 10 feet long and 10 inches square, and weighed between 300 and 400 pounds, and lay lengthwise in the car. Two of the men worked inside the car, and two on the outside to receive the timbers as they were rolled onto a skid by the men on the inside. This skid was a timber one end of which rested on the middle of the sill of the car door, and the other end on the ground, and later, as the timbers were unloaded, on the pile of unloaded timbers. One of the men in the car would place a roller under one end of the timber, and the other man would push the timber onto the skid. The men on the outside stood on each side of the skid, and, as the timber came into view, would steady it down the skid and lift it onto the pile.
    On the day in question, plaintiff and the other three men had been unloading timbers from this car all day. A few minutes before the accident, the car had been switched to allow the passing of a train and then switched back again to its original position. During the operation, plaintiff, who was working on the outside of the car, got into the car together with his companions. After the car was switched back into position, plaintiff jumped to the ground, assisted in replacing the skid against the doorsill, and stood by the side of the skid with his right hand on the pile of timbers on the ground and with his head turned slightly away from the car. While in this position, a timber shot out of the car door without any warning and struck the pile of timbers at the point where his hand was resting and injured it. It was the explanation of the men in the car that one of them had just placed the roller under the end of the timber, which was up on top of the pile in the car, and the other man started to push, the intention being to lower the front end onto the floor or onto the skid, when the timber, by reason of its weight, got away from them and went out of the door as described.
    There was conflict in the testimony regarding a custom of the men inside the car warning those outside the car when a timber was to be shoved out. As to the injury to plaintiff’s hand, it appeared that a portion of the bone of the third or ring finger was crushed at the middle joint and had to be removed; but no portion of that or any other finger had to be amputated. When the ring finger was healed, it had a sidewise flexion of about 10 per cent, and a flexion toward the palm of about 25 per cent. The little finger was anchylosed in the middle joint, causing a flexion toward the palm of the hand. It is claimed that the entire injury resulted in a loss in the efficiency of the hand of from 10 to 20 per cent., and there was evidence to the effect that the injury was permanent and might grow worse.
    The trial court submitted the case to the jury, after overruling defendant’s motion for a directed verdict, and a verdict was returned for the plaintiff for $1,800. The defendant thereupon moved for a new trial on the ground that the verdict was against the weight of the evidence, that the amount of the< verdict was gross and excessive and out of proportion to the actual damages proved, and that the court had erred in overruling the motions for directed verdicts. The court overruled the motion, but made the following order as to the amount of the verdict:

      “That if the defendant shall within 60 days deposit with the clerk of this court the amount of $1,500 or a certified check for that amount payable to the plaintiff, then the plaintiff shall receive the same. In case he refuses, a new trial shall be granted, without costs, to either party.”

      On excessiveness of verdicts for personal injuries other than death, see comprehensive notes in L. R. A. 1915F, 30.

   Kuhn, C. J.

(after stating the facts). The principal question raised by appellant’s assignments of error relates to the alleged error of the trial court in overruling defendant’s motion for a directed verdict in its favor. It is based upon the contention that, as the common-law defense of assumption of risk is retained under the Federal employers’ liability act, except where a statute enacted for the safety of employees is violated, under the evidence in this case it should be held that the plaintiff assumed the risk as a matter of law. In this connection, it was claimed that the timber which caused the injury was taken from a high position in the car; that the plaintiff stood in a position where he could, if he had merely turned his head, have looked into the car and seen what was going on there; that it was one of the obvious risks that the plaintiff assumed that the timber might pass beyond the control of the men; that an ordinarily prudent person would have looked in the direction of the car; and that the danger would have been obvious to him.

The trial judge submitted, the question of whether the risk was a usual or ordinary one to the jury with the following instructions:

“Now, the defendant claims that the plaintiff assumed all of these risks when he entered the employment of the defendant. Now, the law upon that is, by virtue of the contract of service between the plaintiff and defendant, the plaintiff assumed the usual and ordinary risk incident to the employment. He assumed the usual and ordinary risk incident to the employment; that is, such risks as were usual and ordinary. Those he assumed. Such risks that he knew of, or by the use of ordinary precaution ought to have known. I will read that again. The plaintiff, by' virtue of the contract of service between the plaintiff and defendant, the plaintiff assumed the usual and ordinary risk incident to the employment.
“So, in this case, if what happened there that day about the timbers coming out was usual and an ordinary incident, plaintiff assumed them; or if it is such an incident that plaintiff knew would happen, or by the use of ordinary precaution ought to have known, then he would have assumed them, and he could not recover in this case.”

It was the contention of the plaintiff, and there was evidence to support it, that after a period of rest it was usual to warn the party on the outside before a timber was put out, and it is claimed that if the men in the car had given that warning the accident would not have occurred. We are of the opinion that whether the plaintiff should have known of the danger, and whether the danger was so obvious that as a person of ordinary care and diligence he would have apprehended it, and, failing to do so, that he assumed the risk, was a question of fact for the jury and was. properly submitted to them by the trial court. Walker v. Railway Co., 104 Mich. 606 (62 N. W. 1032); Balhoff v. Railroad Co., 106 Mich. 606 (65 N. W. 592); Thomas v. Railroad Co., 114 Mich. 59 (72 N. W. 40) Shadford v. Railway Co., 121 Mich. 224 (80 N. W. 30); Nichols v. Railroad Co., 145 Mich. 648 (108 N. W. 1016); McClure v. Railroad Co., 146 Mich. 457 (109 N. W. 847); Huber v. Electric Co., 168 Mich. 531 (134 N. W. 980); Gila Valley, etc., R. Co. v. Hall, 232 U. S. 94 (34 Sup. Ct. 229); Texas & Pac. R. Co. v. Harvey, 228 U. S. 319 (33 Sup. Ct. 518); Seaboard Air Line-Railway v. Horton, 233 U. S. 492 (34 Sup. Ct. 635).

Defendant’s counsel also urge that the trial court erred in overruling defendant’s motion for a new trial on the ground that the amount of the verdict was excessive. Considering the pain and suffering which the. record shows the plaintiff endured, his loss of time, his disfigurement and humiliation because thereof, we are not prepared to say that the verdict was so excessive as to warrant our interfering with the judgment of the jury.

Other assignments of error relate to errors in the introduction of evidence and to the claim that the verdict was against the weight of the evidence. There was a sharp conflict of evidence as to there being a custom to warn, but we are not satisfied that the verdict is against the weight of the evidence under the rule announced in Gardiner v. Courtright, 165 Mich. 54 (130 N. W. 322), and since repeatedly cited with approval.

It not having been made to affirmatively appear, after an examination of the entire cause, that the verdict and judgment resulted in a miscarriage of justice, it is unnecessary to discuss the assignments of error with reference to the introduction of evidence.

The judgment is affirmed.

Stone, Bird, Steere, Brooke, and Fellows. JJ., concurred with Kuhn, C. J.

Ostrander, J.

(concurring). The trial judge, in the instruction concerning assumption of risk by the plaintiff, in the last clause quoted in the opinion of the Chief Justice, used an illustration — made an explanation — which made the whole instruction erroneous. There was a risk that a timber might, without negligent conduct of the men in the car, escape their control. It seems to me this cannot be doubted. But what happened there was not a usual or ordinary incident. Fortunately, most of the risks assumed by workmen do not culminate in injury. And when the court said, “If what happened there that day about the timbers coming out was usual and an ordinary incident, plaintiff assumed them, or if it is such an incident as plaintiff knew would happen,” * * * everything before that stated upon the subject was improperly qualified, to defendant’s prejudice. A correct charge would have been that plaintiff assumed the risk that, without negligence on their part, the timbers might escape from the control of the men in the car. The complaint made by appellant, however, is, not that the charge is faulty in the respect pointed out, but that the court should have charged the jury, generally, that plaintiff assumed the risk, a position emphasized by the form of appellant’s request to charge upon this subject.

I concur in holding that whether plaintiff assumed the risk was a question for the jury, and that the judgment should be affirmed.

Stone, Bird, and Steere, JJ., concurred with Ostrander, J. Moore, J., did not sit.


author: Brooke, J. Bird, J.

text:
    BROWN v. BROWN.
    1. Equity — Forfeitures.
    Equity wiU recognize a forfeiture when it is simply an incident of a past transaction.
    2. Landlord and Tenant — Summary Proceedings — Vendor and Purchaser — Re-Entry.
    Tlie taking of summary proceedings by a vendor and landlord, upon the failure of the purchaser to comply with the provisions of his contract for purchase, and judgment thereon constitutes a re-entry upon the part of plaintiff.

      196 Michigan Reports. [June
    3. Vendor and Purchaser — Land Contracts — Growing Crops— Judgments.
    Where a judgment was rendered against a contract purchaser in summary proceedings and the premises had been sold to another under an agreement between the vendor and contract purchaser, upon the latter’s default in payment, growing crops upon the premises planted by the contract purchaser, where the rights of the second purchaser had been assigned to the vendor, belonged to the vendor as against the contract purchaser.
    4. Same — Judgments—Equity—Jurisdiction—Receivers.
    Where a contract purchaser of land held over after a judgment against him in summary proceedings and the vendor, in proceedings for a receiver to harvest crops grown by the contract purchaser filed an ancillary petition for the payment to him of the proceeds of a judgment on a bond given by defendant conditioned upon his payment of the proceeds of such crops to the clerk of court if a judgment was entered against him in the summary proceedings on appeal, the decision of the court in an action on the bond that a court of equity had jurisdiction to appoint a receiver or compel the giving of a bond was binding.
    5. Same — Land Contracts — Default—Bonds—Setoff and Recoupment.
    Where a contract purchaser of land, who has made default, gives a bond conditioned upon his paying to the clerk of court the proceeds of crops raised by him on the premises if a judgment on appeal is entered against him in summary proceedings by the vendor to recover possession, fails, in a suit on the bond, to request the court to grant an allowance for harvesting and marketing the crops, as authorized by the decree in proceedings for the appointment of a receiver to harvest the crops and in which the bond was given in lieu of the appointment of a receiver, and elects to stand upon the invalidity of the court’s action in requiring the bond or the appointment of a receiver, he cannot, on an ancillary petition in such receivership proceedings to compel payment of the proceeds of the judgment on such bond by the clerk of court, set off against the amount of the bond such expenses
    6. Same — Judgments—Bonds—Accounting.
    Where judgment was rendered against the defaulting contract purchaser of land, who was defendant in an action on an appeal bond, given in summary proceedings by tbe vendor to obtain possession of tbe premises, conditioned upon tbe payment to plaintiff of rent due or to become due up to tbe time plaintiff obtained possession, and at tbe time of tbe trial of tbe action on tbe appeal bond there was due as rent a sum exceeding tbe amount of tbe bond, and no claim for rent of tbe farm for tbe year tbat tbe purchaser was wrongfully occupying tbe farm was made, held, tbat there was no allowance of a double recovery in permitting recovery on a bond conditioned for tbe accounting to tbe clerk of court of tbe proceeds of crops for such year, which was allowed in lieu of a provision for tbe appointment of a receiver for such crops. Bird, J., dissenting.
    Appeal from Chippewa; Fead, J.
    Submitted January 12, 1917.
    (Docket No. 117.)
    Decided June 1, 1917.
    Petition by David Brown against Hugh Brown for the payment to plaintiff of money,in the hands of a receiver. From a decree for defendant, petitioner appeals.
    Reversed, and decree entered for petitioner.

      John W. Shine, for petitioner.

      Albert E. Sharpe, for defendant.
    In the year 1903, plaintiff, who was the owner of a large farm, entered into a contract with the defendant for its sale. The contract is very full and explicit and provides among other things:
    “And it is further expressly agreed that, in case this contract is declared void as aforesaid, said party of the second part shall at once become a tenant of said premises under said first party, * * * and said second party shall be liable to said first party- for rent for said premises from the date of this contract, until the 1st day of April following the declaration of this contract as void, at which time his tenancy shall cease, and he shall become a tenant holding over without permission, and said party of the first part may then, take immediate possession of said premises and remove the said party of the second part therefrom.”
    Defendant continued to occupy the farm under said contract until the fall of 1912, a period of more than, nine years. He had fallen in arrears in the payments provided for by the contract, and was indebted to the plaintiff in the sum of $4,000 or upwards. This being the situation, plaintiff and the defendant agreed that plaintiff should resell the farm to one Godfrey for the sum of $10,000, Godfrey to secure possession of the same on January 1, 1913. Deducting the several accounts due from defendant to plaintiff under the terms of the contract, there remained a balance of something less than $1,000, which constituted the equity of the defendant in the farm. While there is no dispute between the parties as to the fact that defendant was ultimately entitled to this amount, there arose a dispute as to when plaintiff should pay the same to defendant; it being defendant’s claim that his equity should be paid to him in cash before he surrendered possession of the farm, which claim was disputed by the plaintiff. In the meantime, in the fall of 1912, Godfrey, with defendant’s consent, had gone onto the farm and plowed about 20 acres, which was to be planted the following spring.
    Godfrey having been refused possession of the farm under his contract, plaintiff on February 8, 1913, served notice on defendant, declaring the contract forfeited, as he was entitled to do under its express terms. The service of this notice, by the terms of the contract, terminated the tenancy of the defendant on the 1st day of April, 1913. The defendant, however, disregarding his contractual obligation, refused to vacate the premises, whereupon, on May 14, 1913, plaintiff commenced summary proceedings before the circuit court commissioner to secure possession. While this suit was pending before the commissioner, defendant filed a bill in chancery, praying for an injunction restraining plaintiff from prosecuting a suit for possession, under the claim that he (defendant) had no legal defense to the action. This relief was denied by the court in chancery, and on May 23, 1913, judgment in favor of the plaintiff for the possession of the premises was entered by the commissioner. Defendant immediately appealed from this judgment of the circuit court commissioner to the circuit court and filed a statutory bond in the sum of $1,200. Defendant continued in possession after the judgment rendered by the circuit court commissioner and proceeded to plant with oats the 20 acres, plowed by Godfrey the previous fall. The balance of the farm, some 130 acres, was at this time covered with a crop of growing hay.
    On June 12, 1913, before either the hay or oat crop was ready for harvesting, plaintiff filed a petition in the court in chancery, asking for a receiver to harvest the crops and market them pending the litigation for possession. Defendant answered this petition, and the matter came on for hearing before the circuit judge, who made a decree in the alternative, which provided for the appointment of a receiver to take possession of the growing crops unless the defendant filed a bond in the penal sum of $1,400, conditioned upon his accounting for the value of the same to the clerk of the court. Defendant thereupon filed the bond. He still continued in possession and proceeded in due season to harvest the hay crop and the oat crop as they severally matured. These crops defendant sold with alacrity and refused to account for the proceeds thereof to the clerk of the court, as by the terms of the decree he was commanded to do. Having violated the provisions of the bond, plaintiff then filed a petition with the circuit court for leave to bring suit upon the bond. This leave was granted, and upon the trial of that suit defendant insisted that the bond in question was absolutely void, because the plaintiff had elected to proceed against defendant by means of a suit at law to recover possession, and therefore that a court of equity was without jurisdiction to either appoint a receiver or compel the giving of a bond. The court below, however, was of opinion that defendant’s occupancy of the premises after April 1, 1913, being clearly wrongful, and according to his own petition, filed in chancery, manifestly illegal, the crops grown upon the farm during such illegal occupancy should be preserved either for the benefit of the plaintiff or for Godfrey. A verdict was therefore directed in favor of the clerk for the amount of the bond.
    Defendant immediately appealed from that judgment to this court. It was here contended in that case, as it was below, that the court in chancery was without jurisdiction to compel the giving of the bond in the first instance because, inter alia, the plaintiff had resorted to legal measures to recover possession of the farm from defendant. The contentions of the defendant were considered by this court, were found to be without merit, and the judgment was affirmed. Parsille v. Brown, 188 Mich. 485 (154 N. W. 569). That judgment having been affirmed, and the money being in the hands of the clerk, the plaintiff thereupon filed an ancillary petition in this cause, praying that an order be made to turn over the money to him. To this petition defendant filed an answer, and a hearing in open court followed. The learned trial judge, after full consideration, concluded that the plaintiff, having elected to proceed at law for recovery by summary possession of the premises, could not maintain his right to the fund in question. He further held that to direct the payment of the fund to the plaintiff would amount to the enforcement of a forfeiture to which equity will not lend its aid. A decree was thereupon entered, providing for the return to the defendant of the money in the hands of the clerk, from which decree plaintiff appeals.
   Brooke, J.

(after stating the facts). It is entirely apparent from a perusal of this record that after April 1,1913, defendant continued in possession of the farm without shadow of right. In his opinion herein the learned circuit judge says:

“Defendant's financial condition, his evident desire to prevent complainant and Godfrey having the use of the farm as long as he could prevent it, after having agreed to deliver possession on January 1st, the fact he was holding, not by virtue of the original contract, nor with a claim of right, but as a ‘strong arm’ measure to compel complainant, in order to save trouble, to pay him the sums he claimed, the fact he was estopped from disputing Godfrey’s right of possession, his entire lack of good faith, led inevitably to the conclusion that, unless the court took charge of the crops in some way, neither complainant nor Godfrey, in case he were finally found to be entitled to them, would have any redress.”

It is equally apparent that he determined, rightly or wrongly, to possess himself of the crop of 1913 and to evade an accounting therefor as ordered by the decree of the circuit court. That crop, as shown by our former opinion (Parsille v. Brown, 188 Mich. 485 [154 N. W. 569]), was worth $1,900. On October 1, 1913, having disposed of the crop, he vacated the premises. In the meantime the judgment of the circuit court commissioner has been affirmed in the circuit- court, and no appeal has been taken therefrom. A suit upon the bond given in the summary proceedings resulted in a judgment for plaintiff, which was removed to this court for review. An opinion in that case is handed down herewith. 194 Mich. 578 (161 N. W. 823).

We are of opinion that the court below was in error in holding that:

“Complainant is seeking the aid of a court of equity to enforce a forfeiture.”

Equity will recognize a forfeiture, when it is simply an incident of a past transaction. Eberts v. Fisher, 44 Mich. 551 (7 N. W. 211). The petition in this case is filed, not for the purpose of enforcing a forfeiture, but to secure the payment of money heretofore collected in an action at law and now in the hands of the clerk of the court. The forfeiture had already become complete at the time the decree was made providing for the appointment of a receiver or the giving of a bond in the alternative. Judgment of restitution of the premises had already been rendered against defendant. His failure to comply with the judgment was the cause which induced the court to enter its decree for a receiver to conserve a crop to which defendant had no shadow of right. The taking of summary proceedings and judgment thereon amounted in legal effect to a re-entry upon the part of the plaintiff. Sections 9714-9725, 3 Comp. Laws (3 Comp. Laws 1915, §§ 12311-12322); Alexander v. Hodges, 41 Mich. 691 (3 N. W. 187). The affirmance of judgment of restitution now standing unappealed from conclusively shows that the conduct of the defendant was wholly without warrant.

We are of opinion that at the time of the filing of the bill in this case, which was while the crops in question were growing, they were in fact and in law the property of either the plaintiff or of Godfrey, and, Godfrey’s interest having been acquired by the plaintiff, the title was in the plaintiff. Upon this question the following authorities are in point: Heilwig v. Nybeck, 179 Mich. 292 (146 N. W. 141, Am. & Eng. Ann. Cas. 1915D, 356); Wadge v. Kittleson, 12 N. D. 452 (97 N. W. 856); Freeman v. McLennan, 26 Kan. 151; Crotty v. Collins, 13 Ill. 567; Cheney v. Bonnell, 58 Ill. 268. Aside from this fact, the question having been raised by the bill and answer filed in this case, the decree ordered a receiver for the crop or the giving of -a bond by the defendant to account therefor. The condition of this bond was that, if the plaintiff should be adjudged entitled to the possession of the farm, the defendant should account. Plaintiff has been adjudged entitled to the possession and defendant has not accounted. It is worthy of note that the decree providing for the appointment of a receiver and the giving of a bond stands unappealed from. The claim now made by counsel for appellee that the court was without jurisdiction to order a bond in the principal case is passed without discussion. That question is now foreclosed by our former opinion. I-Iad defendant seen fit, when suit was brought upon the bond, to apply to the court for an allowance for harvesting and marketing the crops as provided in the decree, such allowance could properly have been made. He did not, however, take this course, and, having elected to stand upon the invalidity of the court’s action, we are of opinion that he cannot now set off against the amount of the bond his expenses for harvesting and marketing the crop.

An examination of the record in this court in the case predicated upon the appeal bond shows that the bond is conditioned upon the payment by Hugh Brown to defendant of “all the rent due or to become due to said complainant for said lands up to the time when said complainant shall obtain possession thereof.” It further discloses that at the time of the trial of that case in the court below there was due as rent from Hugh Brown to David Brown upwards of $5,000. It further appears in that case that no claim was made for the rent of the farm for 1913, except for the use of the buildings and pasture. In directing a verdict in that case in favor of the plaintiff the court said:

“The plaintiff has, under the undisputed testimony in this case, shown a right to rent largely in excess of the amount of the bond upon which suit is brought— that is to say, $1,200 — and consequently he would be entitled to a verdict for that amount.”

It is apparent, therefore, that in permitting recovery upon the $1,400 bond given in the case at bar there is no double recovery.

. The decree of the court below is reversed, and a decree will be entered in this court providing for the payment to the plaintiff of the shm now in the hands of the clerk.

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

Bird, J.

{dissenting). The proceedings before the commissioner resulted in a verdict which entitled plaintiff to the possession of the premises. Brown v. Brown, 194 Mich. 578 (161 N. W. 823). He could then elect to sue on the bond or to proceed against the defendant to recover his damages (3 Comp. Laws, § 11176, 3 Comp. Laws 1915, § 13252), but he is not entitled to pursue both remedies (Schellenberg v. Frank, 139 Mich. 183 (102 N. W. 644); and this is so, even though he claims damages which could not be recovered in an action on the bond. {Id.) The judgment rendered for plaintiff in the summary proceeding included all rent due up to, and including the year 1913, and a verdict was directed therein upon the request and statement of plaintiff’s counsel that a judgment for the penalty of the bond would waive any rent due in excess of such penalty. In the present proceeding plaintiff is now seeking to recover the value of the crops raised in 1913, when he has already recovered the rent for that year. Brown v. Brown, supra. My opinion is that there is no further indebtedness to satisfy, and no indebtedness upon which the penalty of the bond in the present case can be applied.

This was the view of the trial court, and I think his conclusion should be affirmed.


author: Kuhn, C. J. Fellows, J. Ostrander, J.

text:
    CASE v. CITY OF SAGINAW.
    Taxation — Special Assessments — Municipal Corporations.
    Special assessments for local improvements are not included in Act No. 107, § 130, Pub. Acts 1899, and Act No. 211, Pub. Acts 1905 (1 Comp. Laws 1915, § 4130), providing that “all taxes charged against lands” sold for delinquent taxes “in the office of the auditor general at the time they are deeded to the State shall be canceled” and such lands omitted and canceled from the assessment rolls and “shall not be liable to any assessment for any purpose until the same are again sold and deeded by the State.” Ostrander, Bird, Steere, and Stone, JJ., dissenting.
    Appeal from Saginaw; Gage, J.
    Submitted January 9, 1917.
    (Docket No. 68.)
    Decided June 1, 1917.
    Bill by Winfred L. Case against the city of Saginaw and others to enjoin the spreading of an assessment against plaintiff’s land. From a decree dismissing the bill, plaintiff appeals.
    Affirmed by a divided court.

      A. Elwood Snow, for plaintiff.

      Robert T. Holland, for defendants.
   Kuhn, C. J.

This is an appeal from an order dismissing a bill of complaint filed to enjoin the city assessor of the city of Saginaw from spreading on the 1916 city tax rolls, against certain premises situated in said city of Saginaw, the 1916 installment of a special sewer tax, the first installment of which was levied in 1912, and the 1916 installment of a special sidewalk tax, the first installment of which was levied in 1914.

The premises in question were bid off . to the State of Michigan for delinquent taxes for the years 1905 to 1910, inclusive, and on January 28, 1914, were deeded to the State by the auditor general. On August 18, 1914, the commissioner of the State land office conveyed the premises to the plaintiff as trustee, and plaintiff still retains the title. During the year 1911 the city of Saginaw caused a sewer to be constructed in a street running along one side of the property, and an assessment was made by the city against the property and became a lien against it on March 26, 1912. The assessment was not paid, and the city divided it into ten equal parts and spread same over a period of ten years. At the time of the transfer of the land to the State two assessments only had been spread. During the year 1913 the city caused a sidewalk to be constructed on a street bounding this property, and an assessment was made against the property for this sidewalk which became a lien on November 15, 1913. The assessment was not paid, and the city divided it into five equal parts and spread the same over a period of five years.

At the time of the transfer of the property to the State there had been returned delinquent State, county, and city taxes amounting to the sum of $395.05, of which $62.14 were State taxes, $25.50 county taxes, and $307.71 city and local taxes. Included in the last sum was the item of $54.60, the 1912 installment of the special sewer tax. The plaintiff paid $500 to the State for the premises, and this' sum was divided between the State, county, and city in the ratio of the above amounts, viz., to the State $78.65, to the county $53.32, to the city $368.03. In arriving at the amount to be paid to the city, no consideration was given to installments for special taxes which were spread in 1913 and 1914, nor to those which would, under ordinary conditions, have been spread in future years to complete the payment of the improvements, making a total of $704.07.

The defendants threaten to levy the assessments for the year 1916 against said property, amounting to the sum of $105.13. The plaintiff contends that, inasmuch as these assessments became a lien upon the property-before it was sold to the State, the lien became canceled by the transfer to the State, that they are no longer a lien upon the property, and he is not chargeable with them. He relies upon sections 127, 130, and 131 of Act No. 107 of the Public Acts of 1899, and Act No. 211 of the Public Acts of 1905 (1 Comp. Laws 1915, §§ 4126, 4129, 4130), to uphold his contention. The principal question involved is whether the language of section 130 of the general tax law—

“All taxes charged against such lands in the office of the auditor general at the time they are deeded to the State shall be canceled,” and “the supervisor shall omit and cancel from his assessment roll all said lands so deeded to the State,” and “said lands so deeded as aforesaid shall not be liable to any assessment for any purpose until the same are again sold and deeded by the State,”

—operates to cancel the lien of the special taxes referred to in the bill of complaint. Being satisfied that the construction given this statute by the learned trial judge is correct, and he having given us the benefit of a written opinion supporting his conclusions, we herewith set forth and adopt certain parts thereof as follows:

“It is apparent that, if the contention of the complainant is correct that wherever the expense of the laying of pavements, of sewers and of sidewalks is felt to be a burden by the owner of a piece of property, especially if it is unimproved real estate, that in order to throw the burden of constructing these improvements upon the city at large, it is for his interest to let the taxes accumulate against the property from year to year, until it is finally sold to the State and then get some one else to buy it from the auditor general, thereby releasing it from all the expenses of making the improvements mentioned. It is also apparent that, after making these improvements and paying for them out of the funds of the taxing district at large, that the taxing district must stand all of the cost of these improvements notwithstanding the fact that the charter provides that the expense of such improvements shall be charged upon the property benefited, so the words, ‘All taxes charged against such lands in the office of the auditor general at the time they are deeded to the State shall be canceled/ authorize the canceling of these special assessments by the auditor general. If so, where is the warrant for so holding? Certainly it is not found in the language quoted. These special assessments were not ‘charged against such lands in the office of the auditor general’ at the time that the land was taken over by the State and became State tax land. The previous section, 129, throws light on the proper construction of this part of section 130, and it reads as follows:
'“The commissioner of the State land office shall make a list or entry in books in his office of such lands, separate from other State lands, showing the amount of taxes due and the years for which such lands were delinquent for taxes. * * * ’
“This section clearly indicates that these are.the taxes to be canceled as provided for in the next section. The word ‘taxes’ in section 131 does not include special assessments for local purposes. It was early decided in this State that the exemption of houses of public worship from taxation applies only to taxes imposed under the general system of taxation adopted for the State, counties, townships, or other municipal corporations, and does not extend to assessments for the expense of paving of streets imposed upon the owners or occupants of lots. Lefevre v. Mayor, etc., of Detroit, 2 Mich. 587; Motz v. City of Detroit, 18 Mich. 495; City of San Diego v. Linda Vista Irrigation District, 108 Cal. 189 ([41 Pac. 291] 35 L. R. A. 33). See, also, note 1 of the last volume.
‘‘The provision of article 10, § 3, of the State Constitution, which reads in part as follows: ‘The legislature shall provide by law a uniform rule of taxation, except on property paying specific taxes’ — is uniformly held by the courts not to refer to special assessments for local purposes, but to refer to the general taxes imposed upon the public for general governmental purposes. Rolph v. City of Fargo, 7 N. D. 640 ( [76 N. W. 242], 42 L. R. A. 646, at page 651); Mayor, etc., of Birmingham v. Klein, 89 Ala. 461 ( [7 South. 386] 8 L. R. A. 369, and notes). It is unnecessary to cite authorities to the point that where a local act conflicts with the general statutes the legislature is presumed to have intended that the local act be an exception to the general statute. It is equally well established that the later statute governs. The charter is the last expression of the legislative purpose. Pattinson v. Flayer, 158 Mich. 56 (122 N. W. 215).
“The law cited by counsel does not provide that all lands transferred to the State under the provisions of section 127, Act No. 107 of the Public Acts of 1899, shall be relieved of all liens for local improvements. It is true that the charter permits the city to avail itself for the collection of all revenues due to it, of the machinery provided by the general statute for the collection of taxes due for township, county and State taxes. The city might have proceeded to sell the property for the collection of such revenues, as does Detroit and many other municipalities, by separáte proceedings for the collection of its local assessments. It cannot be because the city avails itself of the proceedings provided by the general statute for the collection of these revenues that it thereby is to suffer the loss of all the money that has been expended by it for local improvements, which have not, at the time the property is taken over by the State, been, as yet, placed in the general tax roll. All special assessments for such improvements may be reassessed under the provisions of the charter.
“Charter of 1904, tit. 8, § 26, reads as follows:
“ ‘Whenever any special assessment for the improvement of streets or for any other public work shall in the opinion of the council be deemed invalid the common council may vacate and set aside the same; and whenever any such special -assessment shall be so vacated or shall be held invalid by a judgment or decree of any court of competent jurisdiction the common council may cause a new assessment to be made. Such new assessment shall be made in the manner provided for making original assessments of like nature, and whenever the tax, or any part thereof, assessed upon any lot or parcel of real estate by the original assessment, has been paid, and shall not have been refunded, it shall be the duty of the assessor and controller to apply such assessment upon said lot or parcel, and to make a minute thereof on the new assessment roll.’
“Such a proceeding has been upheld by our Supreme Court in A. P. Cook Co. v. Auditor General, 79 Mich. 100 (44 N. W. 420), and in Auditor General v. Gurney, 109 Mich. 472 (67 N. W. 525, 1113), where it is said:
‘“Even where the taxes have been set aside by the court as invalid, they may be reassessed against the land, except as to such as are absolutely void.’
“Judge Cooley in his work on Taxation, vol. 1 (3d Ed.), p. 526, says:
“ ‘The method of curing defects by reassessment of the tax is less open to abuse than any that has hitherto been mentioned. Whether this be done by general law, which shall provide for all cases in which tax proceedings prove invalid, and authorize the same tax to be imposed upon the same persons or property that ought to be charged therewith, by proceedings begun de novo-, oi* on the other hand, shall assume the form of a special law providing for a like reassessment in any particular case, it is scarcely possible that it should cause serious injustice beyond what is incident to all tax legislation.’
“Continuing on page 527 Judge Cooley holds that no injustice is done by such reassessment even in cases where there has been a change of owner since the original assessment was levied (citing May v. Holdridge, 23 Wis. 93; Mills v. Charleton, 29 Wis. 400 (9 Am. Rep. 578); Evans v. Sharp, 29 Wis. 564; Chase v. Whiting, 30 Wis. 544). For a careful discussion of this power of reassessment, see Tallman v. City of Janesville, 17 Wis. 71, at page 76, etc.
“In the Tollman Case the supreme court by Cole, J., says:
“ ‘Almost every system of taxation operates more or less unequally, and works injustice in individual cases. The objection here taken would lie with equal force against the provision of the revised statutes which authorizes the assessor, upon discovering that, any land liable to taxation in his town was omitted in the assessment roll in either or both the two previous years, to assess the same for those years it was omitted, in order that the taxes, to the amount which should have been paid in the years of such omission, may be imposed and collected’ (citing Revised Statutes of Wisconsin). ‘Under these provisions it is very apparent a tax might he levied and collected upon lands which had, by purchase, become the property of other persons than those who owned them when the tax should have been paid.’
“ ‘Where a special tax * * * to pay for city improvements is invalid by reason of some defect of power in the municipal authorities, it is competent for the legislature to supply the defect, and to provide for a reassessment.’ May v. Holdridge, 23 Wis. 93.
“If the complainant in this case had examined the assessment rolls in the office of the city assessor, he would have discovered that these special assessments had never been paid on that property, and certainly in justice to the city should be paid.
“As I have before stated, the statute under which these lands were acquired by the State and by the complainant nowhere provided that they should be discharged of all liens for special assessments for local improvements, and it would be a manifest injustice to the city to so construe this statute as to deprive the city of all the moneys which it had expended for those improvements. Complainant cites the case of Auditor General v. Clifford, 143 Mich. 680 (107 N. W. 287), in which it is- held that a conveyance in due form for taxes extinguishes all prior liens, whether for taxes or otherwise. That is no new doctrine; that has always been the law of this State. But the question here is one of statutory construction. If. you adopt the one contended for by the complainant, we abrogate the provisions of the city charter, which were devised for the protection of the city in the orderly improvement of its streets. If the other is adopted, the charter and the general law are reconciled and made to stand. I am of the opinion that the latter course ought to be taken, and the bill should be dismissed.”

The order dismissing the bill of complaint is affirmed, with costs to the defendants.

Moore and Brooke, JJ., concurred with Kuhn, C. J.

Fellows, J.

(concurring). I am not prepared to agree with all that was said by the learned circuit judge in his opinion filed in this case. I think it suffident to hold, and that we should hold, that spedal assessments which are to fall due in the future and for the payment of which these lands were not delinquent when bid off to the State are not “taxes charged against such lands in the office of the auditor general at the time they are deeded to the State”; that the lands were not liable for special assessments falling due while they were owned and held by the State, but were liable for such special assessments as became due after they became subject to private ownership. I agree with the Chief Justice that the case should be affirmed.

Ostrander, J.

(dissenting). It is, I think, illogical ■to say that, when the State acquires title to lands in tax proceedings, a lien for a special tax, existing when title is so acquired, remains, to be enforced whenever the State secures a purchaser for the land. After lands are deeded to the State, the supervisor is directed by the law to omit them from his roll. While they belong to the State,- they are liable to no assessment, for any purpose. If any táx is charged against them in the office of the auditor general, it must be canceled. The State, then, has all the title there is, and when it sells and conveys the land, the purchaser acquires, prima facie, a fee. The law does not, in my opinion, contemplate a continuing lien for special taxes after the State has acquired its title.

The order dismissing the bill should be reversed, with costs to appellant, and the record remanded.

Stone, Bird, and Steere, JJ., concurred with Ostrander, J.