author: STONE, J.

text:
    DEGRANDCHAMP v. SLEPSKI.
    New Trial — Appeal and Error — -Motions—Exceptions—Saving Questions eor Review — Arguments of Counsel — Evidence.
    Objections to the admission of evidence and to improper arguments of counsel should be made at the trial in order to warrant a review on error; the failure of appellant to include proper exceptions thereto in his bill of exceptions is not remedied by raising the point upon motion for a new trial.
    Error to Wayne; Barton, J., presiding.
    Submitted June 8,1915.
    (Docket No. 3.)
    Decided July 23, 1915.
    Assumpsit in justice’s court by Edward Degrandchamp against Mathew Slepski for broker’s commissions. From a judgment for plaintiff defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harry C. Milligan, for appellant.

      Frederick Miller and J. W. Bennett, for appellee.
   STONE, J.

The plaintiff sued the defendant in justice’s court to recover the sum of $285, which plaintiff alleged was due him as a commission on the sale of some real estate and personal property, made by his agent, for the defendant. The plaintiff recovered a judgment in justice’s court, and the defendant appealed. The defendant not appearing at the first trial in the circuit court, the plaintiff recovered a judgment. Upon a motion for a new trial the judgment was set aside and a new trial was granted. Upon the second trial in the circuit court, before a jury, the plaintiff had verdict and judgment for the amount of his claim, with interest. A motion for a new trial was made to set aside $us judgment for the reasons:

(1) That the verdict was against the weight of the' evidence.
(2) That plaintiff’s attorney was permitted to read a certain affidavit of the defendant to the jury.
(3) That counsel for plaintiff in his argument to the jury referred to the defendant as a “self-confessed perjurer,” and stated that “the truth was not in him.”

The motion for a new trial was denied, and exception was taken to such denial and the reasons therefor..

The defendant has brought the case here upon writ of error, and the first three errors assigned are the same as those stated in the motion for a new trial. The fourth assignment of error is to the effect that the court erred in denying defendant’s motion for a new trial. An inspection of the record shows, not only that no exception was taken to the ruling of the trial court in permitting defendant’s affidavit to be read to the jury, but that such matter was withdrawn from the jury, and the court stated in their presence that the jury would not consider the matter. It further appears that no exception was taken to the argument of plaintiff’s counsel to the jury, and no ruling of the court appears in the record relating to the matter, except that in its charge the court instructed the jury not to consider that part of the argument. Neither of these questions is therefore before us. We again call attention to the rule that failure to except to the admission of evidence, or arguments of counsel, prevents a review of the questions on writ of error, notwithstanding a motion for a new trial on that ground. Conger v. Hall, 158 Mich. 447 (122 N. W. 1073); People v. Auerbach, 176 Mich. 23-50 (141 N. W. 869).

The only assignments of error, therefore, which we can consider are those claiming that the verdict was against the weight of the evidence, and that the trial court erred in denying the motion for a new trial upon that ground. After a careful examination of the evidence, we cannot say that the verdict was against the weight of the evidence. On the other hand, we are of opinion that there was ample evidence to support the verdict, that the case was properly submitted to the jury, and that the court did not err in denying the motion for a new trial.

The judgment below is therefore affirmed.

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

The late Justice McAlvay took no part in this decision.


source: Caselaw Access Project

author: Moore, J. Bird, J.

license: Public Domain

text:
    DETROIT MUSEUM OF ART v. ENGEL.
    Constitutional Law — Detroit Museum oe Art — Private Purpose —Taxation—Mandamus.
    Act No. 489, Local Acts 1903, empowering the city of Detroit to appropriate public funds for the support and maintenance of the Detroit Museum of Art, a private corporation, is in conflict with Art. VIII, § 25, and Art. X, § 12, of the State Constitution, in appropriating public money for a private purpose, and the facts that said museum of art has a public purpose, that the city of Detroit has title to its property, and that the city has a minority representation on its board of directors, are insufficient to change its nature from a private corporation to a municipal agency, and the action of the circuit judge in granting a writ of mandamus to enforce the provisions of the act is reversed. Brooke, C. J., and Moore, J., dissenting.
    Certiorari to Wayne; Van Zile, J.
    Submitted January 12,1915.
    (Calendar No. 26,570.)
    Decided July 23, 1915.
    Rehearing denied April 21, 1916.
    Mandamus by the Detroit Museum of Art and another against George Engel, controller of the city of Detroit, to compel respondent to sign a voucher to pay the salary of the acting director of relator from public funds. An order granting the writ is reviewed by respondent on certiorari:
    Reversed.

      Stevenson, Carpenter, Butzel & Backus (William L. Carpenter, of counsel), for relators.

      Bichará I. Lawson, for respondent.
   Moore, J.

(dissenting). In the spring of 1885, 40 residents of the city of Detroit, each of whom had contributed $1,000, organized the Detroit Museum of Art. That organization was made under Act No. 3 Pub. Acts 1885, entitled “An act for the formation of corporations for the cultivation of art.” Some of the provisions of the act read:

“Such corporations shall have power to acquire and hold such real estate as is suitable for the site of such art buildings as it may erect or maintain thereon, to receive and use such gifts, contributions, devises, and bequests as may be made to it for art purposes; to receive, acquire, collect, and own paintings, sculpture, engravings, drawings, pictures, coins, and other works of art, and to institute, maintain, or assist schools for the teaching of art.
“The public exhibition of its collection of works of art shall be the duty of every such corporation, and, as soon as it shall be prepared to do so, it shall, under reasonable regulations, and without any improper discriminations, open its buildings and art collection to the general public. ,
“Any person who shall contribute to any such corporation, in money or property, one thousand dollars, or more, shall be a member thereof. * * *
“The affairs of said corporation shall be managed by a board of trustees, the number of which shall be regulated by by-law, but in no case shall the number be less than four, nor more than sixteen.' Three-fourths of said trustees shall be elected by the members of the corporation, from their own number. The other one-fourth of such trustees shall be appointed from resident free-holders, by the board of aldermen of the city where such corporation is situated, upon the nomination of the mayor. * * *
“The president and trustees shall serve without compensation. * * *
“All gifts, devises, or bequests made to any such corporation, and all its income, shall be faithfully used for the purposes for which such corporation was organized; and no dividend in money or property shall ever be made by such corporation among its members.
“The character and purposes of such corporation shall not be changed, nor its general art collection be sold, incumbered, or disposed of, unless authorized by the legislature of this State upon the concurrent request of said corporation, and of the mayor and board of aldermen of the city in which it is situated.”

The articles of incorporation were filed on the 16th day of April, 1885, and in them it is provided with a life of 30 years. In the year 1899 (Act No. 429, Local Acts 1899) the legislature .by an amendment to the charter of the city of Detroit empowered the common council to appropriate each year for the support of the Detroit Museum of Art a sum not to exceed $20,000 in any one year, and appropriations were made under this provision. In the year 1903 the Detroit charter was amended so as to read as follows (chap. 7, § 66):

“Sec. 66. The common council shall also have power to appropriate each year for the support of the Detroit Museum of Art, such sum not exceeding twenty thousand dollars in any one year as it may deem necessary, which sum shall be paid from the general fund: Provided, however, such appropriation shall be made upon the express condition that admittance to said museum shall be free to the public at all times, subject to such reasonable regulations as to the hours as the board of trustees of said Detroit Museum of Art may establish. The common council shall also have power to appropriate from time to time such sums as is necessary for the purpose of erecting an additional building or buildings for the Detroit Museum of Art, which sums shall be paid from the general fund. The common council shall also have power, with the approval of the board of estimates, for the purpose of erecting. such additional building or buildings for said museum of art to borrow upon the best terms it can make and for such time as it shall deem expedient, such sums of money as it shall deem necessary, not exceeding the sum of fifty thousand dollars, and shall have authority to issue bonds pledging the faith and credit of said city for the payment of the principal and interest of said bonds, which bonds shall be denominated ‘Detroit Museum of Art Bonds,’ of the city of Detroit and shall bear interest not exceeding four per cent, per annum.” Act No. 489 Local Acts 1903.

In 1904 a $50,000 bond issue was authorized by the common council and approved by the board of estimates in accordance with Local Act No. 489. Mandamus proceedings were instituted in the Wayne circuit court to test the validity of said bond issue, and Judge Mandell sustained said act and held the bonds valid. This decision was never reviewed. The bonds, were issued and with the proceeds additional buildings were erected. Before these bonds were issued the city of Detroit and the Detroit Museum of Art entered into an agreement by which the museum building and real estate then owned by said relator were conveyed to the city of Detroit upon the conditions in the agreement contained. The control of the institution was continued in the hands of the board of trustees of the museum of art, but admittance to the museum from then until now has been free to the public.

From 1899 until now the city of Detroit has made an appropriation each year for the maintenance of the museum. The form of the appropriation for the year commencing July 1, 1914, and ending June 30, 1915, is shown by the following quotation from the report of the board of estimates, which was subsequently adopted by the common council:

“Resolved, that the estimates for the maintenance of the several municipal departments of the city of Detroit for the fiscal year ending June 30, 1915, be and are hereby allowed for the purposes and in the amounts as hereinbelow specifically set forth:

“Art Museum — Maintenance.
“Acting director ............................. $3,000 00
One librarian ............................... 1,100 00
Two- custodians, at $1,000 .................... 2,000 00
Three janitors, at $720 ...................... 2,160 00
One engineer ............................... 780 00
One watchman.............................. 720 00
One stenographer ........................... 720 00
Repairs and improvements.................. 1,000 00
General expense ............................ 2,500 00
Printing.................................... 700 00
Fuel........................................ 600 00
Postage..................................... 200 00
Library..................................... 200 00
Exhibitions ................................. 2,000 00
Purchase additions to museum collection____ 1,000 00”

Mr. Burroughs is acting director of the . museum of art. His duties are in part as follows:

The director of the museum shall be the chief executive officer thereof. He shall in person or by assistant have direct charge of the museum and administration of same, subject to such limitations or restrictions as the board may impose. He shall execute the orders of the board or its committees. He shall submit to the board, or the proper committees, such plans as in his judgment will make the museum more efficient and such methods as may seem to him improvements upon those in use.

December 19, 1914, Mr. Burroughs presented a voucher, duly verified under oath, for his salary for one-half month to the controller of Detroit, and demanded a warrant upon the city treasury of Detroit for the sum of $125 in payment of his services for the one-half month ending December 15, 1914. Upon the advice of the corporation counsel of the city of Detroit the controller refused to pay the salary of Mr. Burroughs. The circuit court issued a mandamus, directing the controller to pay Mr. Burroughs’ salary. This is certiorari to review that action.

The city attorney assigns seven reasons for saying that Act No. 489 of the Local Acts of 1903 is unconstitutional. These can all be discussed under two heads, viz.:

1. It is the use of public funds for a private purpose.

2. It is a violation of section 12, art. 10, of the Michigan Constitution of 1908 reading:

“The credit of the Státe shall not be granted to, nor in aid of, any person, association or corporation, public or private” (citing People v. Township Board of Salem, 20 Mich. 452 [4 Am. Rep. 400]; People, ex rel. Bay City, v. State Treasurer, 23 Mich. 499; Dodge v. Circuit Judge, 118 Mich. 189, 190 [76 N. W. 315]; Michigan Sugar Co. v. Auditor General, 124 Mich. 674 [83 N. W. 625, 56 L. R. A. 329, 83 Am. St. Rep. 354]; State, ex rel. Board of Control, v. City of St. Louis, 216 Mo. 47 [115 S. W. 534] ; Citizens’ Savings, etc., Association v. Topeka City, 87 U. S. [20 Wall.] 655; Cole v. City of La Grange, 113 U. S. 1 [5 Sup. Ct. 416]; St. Mary’s Industrial School for Boys v. Brown, 45 Md. 310; Curtis’s Administrator v. Whipple, 24 Wis. 350 [1 Am. Rep. 187]; State, ex rel. Garth, v Switzler, 143 Mo. 287 [45 S. W. 245, 40 L. R. A. 280, 65 Am. St. Rep. 653]).

The first three of the Michigan cases relate to attempts to use public funds in aid of railroads owned by their stockholders. The fourth Michigan case relates to an attempt to use public funds for the benefit of those growing sugar beets. Clearly these cases are not controlling.

It is said by the city attorney that the case of State, ex rel. Board of Control, v. City of St. Louis, supra, is on all fours with the instant case. An examination of the case will show that in many respects it resembles the instant case. The proceeding was mandamus to compel the authorities of the city of St. Louis to turn over to the St. Louis School and Museum of Fine Arts —a department of Washington University — upon its vouchers money which had been raised by taxation for the support of that museum. The case is unlike the instant case because of a provision in the Constitution of Missouri (section 6, art. 9), which reads that:

“No other county, township, city or other municipality shall hereafter become a subscriber to the capital stock of any railroad or other corporation or association^ or make appropriation or donation, or loan its credit to or in aid of any such corporation or association, or to or in aid of any college or institution of learning or other institution, whether created for or to be controlled by the State or others.”

The conclusion of the opinion reads:

“Learned counsel for relator has filed a most elaborate brief to demonstrate that the Art Museum is a public use, and the right and power of the city to act as trustee to such, trust, and, without controverting any of the propositions involved in that discussion, the conclusion at which we have arrived that the relator is but a subsidiary agency of Washington University, * * * and that the tax for which relator sues in this case * * * is, after all, but a donation to Washington University for its department of art, * * * forbids us to review the great number of cases collected. * * * In our opinion the tax fund * * * is but a donation to Washington University, a private corporation, and to that extent it is in violation of the Constitution of this State and the provisions thereof, which have hereinbefore been set forth at length.”

The cases in 87 U. S. and 113 U. S. were efforts to use public funds in aid of private manufacturing plants. Without analyzing in detail the other cases, it may be said of them that they are easily distinguishable from the instant case.

In the ease before us it was provided in the original act that the trustee should serve without pay, that no dividend in money or property should ever be made among the members of the corporation, and that its property could not be alienated unless authorized by the legislature upon the concurrent request of the corporation and of the mayor and board of aldermen. It is also provided that one-fourth of the trustees should be appointed by the board of aldermen, and from the beginning it was provided that without any improper discriminations the art collection should be open to the general public. For years the city of Detroit has owned the building in which the art collection is housed, and the management, since the bond issue mentioned, is bound to admit, and does admit, free of charge the public to the art exhibits. We think it clear that the purposes are public and not private.

The authority conferred upon the council to make the appropriation is permissive, and the council may surround the appropriation with such safeguards, if any more are needed, as are reasonable and proper. In the instant case the appropriation was passed upon by the board of estimates and the common council, and was within their powers. The controller should issue the warrant as prayed.

The writ of certiorari should be dismissed, and the judgment should be affirmed.

Brooke, C. J., concurred with Moore, J.

Bird, J.

The conclusion reached by Mr. Justice Moore in this- case, in my opinion, infringes the constitutional provisions that:

“The credit of the State shall not be granted to, nor in aid of any person, association or corporation, public or private.” Art. 10, sec. 12.
“No city or village shall have power * * * to loan its credit, nor to assess, levy or collect any tax or assessment for other than a public purpose.” Art. 8, sec. 25.

Mr. Justice Moore appears to have been moved in the main to his conclusion in this case by the existence of three facts, namely: First, that the object of the corporation is a public one; second, that the city has the title to the property; third, that the city has a representation on the board.

It is conceded that the Detroit Museum of Art was incorporated as a private corporation, and it must be conceded that it is now a private corporation, unless its organization has been changed. It has surrendered its real property to the city and granted to it a minority representation on the board of directors, but it is still managed by a private board of directors. Then just how and when was the character of this corporation changed, so that it could be the lawful recipient of public funds? It is said that its object is a public one. Grant that this is so, the change cannot be ascribed to this fact, as its. object now is the same as it was when it was first organized. It is of no importance how public the aims, and purposes of the corporation may be, unless it takes on the form of a municipal agency, it is still under the ban of the constitutional inhibition.

It is also urged that the city has title to the real estate heretofore owned by the corporation. The fact that a private corporation has - divested itself of its property does not change its character as a private corporation. To be sure, its resources are lessened but its privileges and franchises remain' the same. Neither does the fact.that the property has vested in the city work any change in it. The transfer simply operates as a security to the city, and makes it less probable that the assistance rendered by it will be in vain. If a conveyance of some or all of its property to the city converts this private corporation into a municipal agency, there would seem to be no good reason why the corporation which owns the Detroit Opera House might not follow the example of relator, and receive aid in the same way.

Another argument in behalf of relator is that the city has representation on the board. The representation which the city is given upon the board is a minority representation, and does not carry with it control of its affairs. The city has no power to remove the manager if it shall conclude he is dishonest or incompetent; neither has it the power to enforce the appointment of any particular person as manager if that position were vacant. If some lover of art should donate $100,000 to relator, would the city have any voice in its expenditure or investment? And if any portion of it were embezzled, could the wrongdoer be prosecuted under the statutes provided for the punishment of public officials? It may be said that this control could be brought about in part indirectly by coercion by withholding future appropriations, but that hardly answers the point that the city has no such control as it can enforce in the courts.

The same rule of construction should apply in this case that has been applied to the many attempts made by municipalities in this State to aid railroad and industrial projects. People v. Salem, 20 Mich. 452 (4 Am. Rep. 400); People, ex rel. Bay City, v. State Treasurer, 23 Mich. 499; Dodge v. Circuit Judge, 118 Mich. 189 (76 N. W. 315); Michigan Sugar Co. v. Auditor General, 124 Mich. 674 (83 N. W. 625, 56 L. R. A. 329, 83 Am. St. Rep. 354); Michigan Corn, etc., Association v. Auditor General, 150 Mich. 69 (113 N. W. 582).

The case at bar does not differ in principle, but only in degree, from the cases cited. The act creating this corporation was very cleverly devised to diminish the objections which were raised in those cases, and which might be raised under this constitutional provision, but the fact still remains that it is a private corporation. A similar attempt was made in St. Louis, Mo., to extend public aid to an art museum under similar conditions, and one of the claims of the relator there was that:

“The said St. Louis School and Museum of Fine Arts is established, regulated, and conducted in the same manner and upon the same general plan and scheme as are all of the art museums of the world, and particularly the art museums in the cities of New York, Buffalo, Chicago, Cincinnati, Cleveland, Detroit,” etc.

But the courts of that State withheld their sanction on the ground that money could not be legally collected as taxes and turned over to a private corporation to disburse. State, ex rel. Board of Control, v. City of St. Louis, 216 Mo. 47 (115 S. W. 534). A like conclusion was reached under similar constitutional provisions in the case of St. Mary’s Industrial School for Boys v. Brown, 45 Md. 310. Every argument made in behalf of relators in the case at bar is answered in those cases adversely to their contention.

The object and purpose of relator is a public purpose in the sense that it is. being conducted for the public benefit, but it is not a public purpose within the meaning of our taxing laws, unless it is managed and controlled by the public. As matters now stand, the people who are called upon to pay the taxes and furnish the money have no voice in the selection of the servants of relator; neither have they any voice in the selection of a majority of the board of directors who control and manage its affairs. It was said by Mr. Justice Campbell that:

“Taxes and loans, when authorized to be raised by any public body, must be raised under the implied condition that they are to be applied to the public uses under the control or care of that body.” Attorney General v. Board of Supervisors, 34 Mich. 46.

This has always been the policy of our law, and no instance has been pointed out where one other than a public official, either by election or appointment, has had charge of the disbursement of public funds.

Had this court been called upon to pass upon this question before the corporation transferred its property to the city and gave it a representation on the board, it probably would have found little difficulty in denying the writ upon constitutional grounds. What the relator has since done has made no material change in its character as a private corporation. It has not thereby been changed from a private corporation to a municipal agency. The most that can be said of the situation, as counsel for the respondent suggests, is that immunity from the constitutional provision is claimed upon the ground that the city has gone into partnership with a private corporation. In other words, if the State has no interest in a private corporation, granting it aid would be in violation of the Constitution. If it has some interest, however slight, the constitutional inhibition does not apply. And right here the great danger lies. If we are to say that this constitutional safeguard against an improper use of public money is to be sailed around by a private corporation conveying to the municipality a part or all of its property, and giving it a minority representation on its board, then that provision will be of little use in the future in protecting the people against reckless and extravagant use of public funds. I am of the opinion that the writ should be denied, and the case is reversed.

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

The late Justice McAlvay took no part in this decision.


author: Bird, J. Ostrander, J.

text:
    CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY CO. v. BERRIEN CIRCUIT JUDGE.
    Default — Judgment—Vacating—Proceedings.
    Under rule 12, subd. 6, providing that if tbe defendant has been personally served and proceedings taken after default on the strength thereof, the default shall not fee set aside unless application shall be made within six months after such entry, plaintiff’s note of issue and demand of a jury several months after entering default did not constitute a proceeding, so as to prevent the setting aside of the default. Bird, Moore and Steere, JJ., dissenting.
    Mandamus by the Cleveland, Cincinnati, Chicago & St. Louis Railway Company against George W. Bridgman, Berrien Circuit Judge, to require respondent to vacate relator’s default in an action in which the corporation aforesaid was defendant.
    Submitted June 29, 1915.
    (Calendar No. 26,706.)
    Writ granted July 23, 1915.

      Gore & Harvey, for relator.

      James H. Kinnane, for respondent.
   Bird, J.

A writ of mandamus is asked by the defendant in the case of Cullinane v. Cleveland, Cincinnati, Chicago & St. Louis Railway Co., pending in the Berrien circuit court, to compel the circuit judge to set aside its default, which had been theretofore entered by the plaintiff. Suit was commenced by declaration on the 31st day of July, 1911, and duly served upon the defendant. Proof of service was filed on August 17, 1911. On May 12, 1913, plaintiff entered defendant’s default for want of appearance. On January 16, 1914, plaintiff filed with the clerk a note of issue and demand for a jury. Through some misunderstanding or oversight, defendant’s counsel did not learn of the default until the 12th day of January, 1914, whereupon they filed a motion to set it aside. After hearing the motion, the circuit judge was quite inclined to grant the motion upon the merits, but concluded that he had no power to do so by Teason of Circuit Court Rule 12, subd. (6), and accordingly he denied the motion. The material part of rule 12, subd. (b), follows:

“But in cases'where personal service shall have been made upon a defendant, and proceedings taken after default on the strength thereof, his default shall not be set aside, unless the application shall be made within six months after such default is regularly entered.”

The question must turn upon whether the act of filing a note of issue and demand for a jury is a proceeding taken after default on the strength thereof. It has been held by this court that the taking of judgment was such a proceeding as would preclude the setting aside of the default (Petley v. Circuit Judge, 124 Mich. 14 [82 N. W. 666]; Carpenter v. Judge of Superior Court, 126 Mich. 8 [85 N. W. 265]; Biensteadt v. Circuit Judge, 142 Mich. 633 [105 N. W. 875]; Travelers’ Ins. Co. v. Circuit Judge, 144 Mich. 687 [108 N. W. 363]; Caille Bros. Co. v. Circuit Judge, 155 Mich. 480 [120 N. W. 6]; Burgard v. Burgard, 175 Mich. 565 [141 N. W. 549]), but we have never been called upon to pass upon this precise question. The following definitions of the word “proceeding” are found in Words and Phrases (Vol. 6, pp. 5632, 5633):

“Proceeding means the performance of an act. The term 'proceedings’ in its more general sense in law means all steps or measures adopted in the prosecution or defense of an action.”
“A proceeding in a civil action is an act necessary to be done in order to attain a given end. It is a prescribed mode of action for carrying into effect a legal right.”
“The word ‘proceeding’ is applicable to every step taken by a suitor to obtain the interposition or action of a court.”
“In its most comprehensive sense, the term ‘proceeding’ includes every step taken in a civil action except the pleadings.”

It is not uncommon to use the term “proceeding” to designate a suit or action in its entirety, but I am impressed, as applied to this rule, it is not used in that general sense, but is used in a restricted sense with reference to any necessary step that might be taken after default to entitle one to a judgment. The filing of a note of issue and a demand for a jury is a step in the case, and it was a necessary step in order to bring matters to a point where plaintiff would be entitled to take a judgment against the defendant. For this reason we are constrained to hold that filing the note of issue and the demand for a jury was a step or proceeding in the case within the meaning of this rule. Having reached this conclusion, the writ must be denied with costs to -respondent.

Moore and Steere, JJ., concurred with Bird, J.

Ostrander, J.

I do not think the rule should be construed so as to make what was done a “proceeding” within its meaning. The writ will issue.

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

The late Justice McAlvay took no part in this decision.


author: Kuhn, J.

text:
    CILLEY v. SULLIVAN.
    1. Constitutional Law — Sewers and Drains — Assessments— Taxation.
    Under Act No. 185, Pub. Acts 1911, which provides that the drain commissioners shall agree upon the proportion to be paid by each county for the construction of a drain in both jurisdictions, that if a disagreement should result, an appeal shall be taken to the State highway commissioner, whose determination shall be conclusive as to assessments and all other subjects relating to the drain, the finding of the circuit judge that the statute is unconstitutional and would not support a proceeding in mandamus to compel the drain commissioner of Monroe county to act under the statute, jointly, with the commissioner of Lenawee county, was unwarranted, on the ground that the legislature could not provide'for an appointment for a local assessment, without the assent of the electors of the district affected — since drain proceedings are of more than local interest and the draining of valueless lands is a subject of general public concern.
    2. Same — Drains—Taxation—Special Assessments.
    The cost of a drain of general State concern can be paid by local assessment, if made according to law; the assessment is valid on the basis that those who bear the cost of a public work are at the same time benefited to a corresponding degree by the increase in value of their property, and hence suffer no damage.
    Certiorari to Monroe; Gilday, J.
    Submitted June 15, 1915.
    (Calendar No. 26,790.)
    Decided July 23, 1915.
    Mandamus by J. W. Cilley and another against Daniel F. Sullivan, drain commissioner of the county of Monroe, to compel respondent to a,ct with the commissioner of Lenawee county in levying a special assessment for a drain. An order denying the writ is reviewed by relator on certiorari.
    Reversed.

      Thornton Dixon and /. N. Sampson, for appellants.

      Willis Baldwin, for appellee.
   This is certiorari to mandamus, to review an order made by the circuit judge denying such relief. The proceedings involve the constitutionality of Act No. 185, Pub. Acts 1911, and the question is thus stated in the opinion of the circuit judge:

“This is an application for a peremptory mandamus to compel the respondent, as county drain commissioner of Monroe county, to act jointly with the county drain commissioner of Lenawee county, to deepen, widen, and extend the Swamp Raisin drain, a water course of about 17 miles in length traversing Monroe and Lenawee counties.
“It is admitted by respondent that the petition for such work is in accordance with chapter 7 of the drain law enacted in 1911, which chapter relates to the joint, action of county drain commissioners on drains in, or affecting, more than one county. This chapter provides that the drain commissioners, jointly, shall agree upon the per cent, of benefits to be paid by each county on the construction of any drain, and after such agreement, each commissioner shall thereafter assess the individual parcels of land and townships at large in his own county. In case the drain commissioners cannot agree upon this division of the per cent, of the cost of the drain, then an appeal is provided to the State highway commissioner; and it is provided that his decision, on appeal, shall be final, not only in the matter of assessments, but upon all other matters pertaining to the drain about which the drain commissioners cannot agree.
“It is. contended by respondent that these provisions are unconstitutional, and he declines to act further in the matter because, in this particular matter, of the very large expenses necessarily incurred in proceeding with it, the large total cost of the proposed proceedings, and the probability of future litigation over these matters.
“It is claimed that this chapter is unconstitutional for the following reasons: First, because when this drain law was enacted, the State highway commissioner was an officer appointed by the governor, not elected by the people of the State; second, because the law attempts to confer authority upon persons outside of the county to levy a local special assessment, in which the State or the general public have no interest.”

Kuhn, J.

(after stating the facts). The learned trial judge was of the opinion that the legislature did not have the power to provide for the appointment of a person to levy a local special assessment unless the people to be taxed, either directly or through their representatives, made such appointment, coming to this conclusion largely because of his opinion that the laying out and maintaining of drains is a matter of local and neighborhood interest only. In support of this conclusion he relies upon the cases of Dawson v. Township of Aurelius, 49 Mich. 479, 480 (13 N. W. 824); Camp v. Township of Algansee, 50 Mich. 4 (14 N. W. 672); Hillyer v. Township of Jonesfield, 114 Mich. 644 (72 N. W. 619); Albert v. Gibson, 141 Mich. 698 (105 N. W. 19).

In the case of Dawson v. Township of Aurelius, supra, an action in assumpsit was brought to recover the amount of the drain tax which the plaintiff had paid to the township treasurer under protest, and which the treasurer had subsequently paid out on the order of the township board. It was held that the moneys sued for had been paid out to the persons shown by the commissioner’s report to be entitled to them, and that therefore the township could not be said to have misappropriated them, and should not be called upon to respond. In the opinion Mr. Justice Cooley said:

“The laying out of drains is commonly a matter of mere neighborhood interest; they affect small bodies of land; the taxes laid are local assessments, and do not and cannot, under the statute, become a general charge. In the performance of his duties, the commissioner is in no sense the agent of the township, and there is no township responsibility for his defaults or misconduct.”

The petition for the drain in the instant case sets up the fact that the improvement was necessary for the good of the public health, and indeed without this allegation the petition would have been of no force. It may be true that in the sense in which the language was used by the learned jurist in the opinion quoted from above drains are a matter of local and neighborhood interest only. But in so far as they concern the public health we do not think that it can be said that they are matters of only local and neighborhood interest. Indeed, Mr. Justice Cooley, in his book on Taxation, discussing the question of drainage laws, says the following:

“Similar considerations apply in the case of drainage laws, which are enacted in order to relieve swamps, marshes, and other low lands of the excessive waters which detract from their value for occupation and cultivation, and perhaps render them worthless for use, and are likely at the same time to diffuse through the neighborhood a dangerous nuisance. If these may be drained at the expense of the owner, by special'tax, there can be no doubt of the right of the State to make it his duty to drain them, as a matter of police regulation ; the State coming forward to perform the duty at his expense, in case of its not being suitably or expeditiously performed by himself.” Volume 2 (3d Ed.), p. 1132.

And again, in the paragraph entitled “Drains and Sewers,” etc., p. 1168, he said:

“The expense of constructing drains in order to relieve swamps, marshes, and other low lands of their stagnant water is usually provided for by special assessments. The grounds on which this is done are not always very clearly shown in the statutes. Sometimes the ground indicated is that the drainage is important to the public health; and in such cases the right to levy assessments for the purpose cannot plausibly be disputed. The special benefits from the enhancement of values must accrue mainly to the owners of the lands drained, who ought, therefore, to bear the expense. But the authority to levy assessments for draining lands, upon no other considerations than such as pertain to the improvement of the land as property, must, it would seem, be confined within limited bounds. It has been said that ‘a tax cannot be levied upon any portion of the public for the construction of a drain in which the public is not concerned. Even the owner of the land benefited cannot be taxed to improve it, unless public considerations are involved; but he must be left to improve it or not, as he may choose.’ But where any considerable tract of land, owned by different persons is in a condition precluding cultivation, by reason of excessive moisture which drains would relieve, it may well be said that the public have such an interest in the improvement, and the consequent advancement of the general interest of the locality, as will justify the levy of assessments upon the owners for drainage purposes. Such a case would seem to stand upon the same solid ground with assessments for levee purposes, which have for their object to protect lands from falling into a like condition of uselessness.”

This very question has, however, been passed upon recently by this court in an opinion written by Mr. Justice McAlvay, in the case of Attorney General v. McClear, 146 Mich. 45 (109 N. W. 27), where the question involved was whether an act authorizing the appointment by the governor of a county drain commissioner was unconstitutional as contravening the right of local self-government. It was there said:

“It is urged by the relator that a drain commissioner is not an ordinary local officer; that he may be considered by the courts, and in fact is, an officer acting by virtue of the police powers of the State, and exercising its functions for the benefit of the public health. It is the settled law of this State that, independent of the consideration _ of necessity on account of the public health, there is no authority in the legislature to enact laws for the condemnation of private property, and to levy taxes for the construction of drains, and that such legislative action is a provision for the exercise of those police powers inherent in every government for the protection of the people. The drainage laws of this State are framed and based upon this fundamental proposition. As the basis of every valid proceeding under these laws, the drain commissioner must find that the drain is necessary to the public health. Brady v. Hayward, 114 Mich. 326 [72 N. W. 233]; Kinnie v. Bare, 68 Mich. 625 [36 N. W. 672]; Cooley on Constitutional Limitations (7th Ed.), pp. 734, 770. The power of the State to care for the health and welfare of the people is conceded, but it is urged that the State already has all the official machinery essential to the complete exercise of its powers in that regard, the State and local boards of health being clothed with adequate authority. The State is not limited to any particular method or set of officials by and through which it shall perform its functions in the interest of the public welfare. The legislature may provide any suitable and proper method within the limitations of the power to be exercised. It is recognized that the power under consideration is frequently directly exercised in municipalities or districts by levying taxes and exercising the right of eminent domain for the construction of drains. Cooley on Taxation (2d Ed.), p. 684. Upon this proposition alone have the drain laws of this State been upheld by the courts. It follows that a drain commissioner is not a local officer, but an officer exercising public functions on behalf of the State under and by virtue of its police powers. His appointment then would not be in contravention of the principle of local self-government and unconstitutional, and the legislature could provide that such appointment be made by State authority.”

It is urged by counsel for respondent that this opinion is not in harmony with the four cases cited supra and relied upon by the circuit judge. We are of the opinion that the decision in Attorney General v. Mc Clear, supra, is decisive of the question here involved, and are satisfied with the reasoning upon which it is based. As the State has become more populous, and with the progress of scientific thought and investigation, the question of the public health has become more and more recognized as a question of vital interest to the State at large, and it needs no argument to demonstrate that proper drainage is one of the very essential prerequisites to the creation of proper sanitary and healthful conditions. To hold that public drains which the legislature has determined may be constructed when necessary and conducive to public. health, convenience, and welfare are matters of such purely local and neighborhood interest that the State at large has no interest therein, would, in our opinion, be entirely out of accord with modern thought and against good reason. We can see no reason why the cost of such a local improvement, which may be of general State concern, cannot be paid by local special assessment, so long as the assessment is made according to the law. appertaining thereto, the theory of the special assessment being that those who are to bear the cost of the public work are at the same time to suffer no pecuniary loss thereby, their property being increased in value by the expenditure to an amount at least equal to the sum they are required to pay. See recent cases: German Lutheran Church Society v. City of Mt. Clemens, 179 Mich. 35 (146 N. W. 287); City of Detroit v. Weil, 180 Mich. 593 (147 N. W. 550).

We are satisfied that the provision in the act which confers authority upon the State highway commissioner, an officer who at the time that this suit arose was appointed by the governor, to act as arbitrator in drain proceedings, is not unconstitutional as invading the right of local self-government. The order of the trial judge is therefore reversed and the proceedings remanded, with directions that the writ of mandamus issue as prayed for.

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

The late Justice McAlvay took no part in this decision.


author: Stone, J.

text:
    JOHNSON v. FEDERAL UNION SURETY CO.
    1. Contracts — Acceptance—Rejection—Compromise and Settlement.
    Where an offer of settlement was made by defendant, with the understanding that plaintiffs’ assignor should have time to consider the offer and report later, an attempt by the latter to modify or change the offer did not have the effect of rejecting it.
    2. Same — Revocation—Acceptance.
    Where an offer has not been revoked, a party may accept it, although he previously asked the proposer to modify it.
    3. Same — Compromise and Settlement — Acceptance—Reasonable Time — Directed Verdict.
    Where it is conceded that the offer was made by one having authority to make it, and it also clearly appears that the proposer was to be notified later as to acceptance, defendant’s claim that the offer should have been accepted or rejected when made cannot be sustained, and the question as to whether acceptance was made within a reasonable time should have been submitted to the jury, under proper instructions.
    Error to Ingham; Wiest, J.
    Submitted June 10, 1915.
    (Docket No. 41.)
    Decided July 23, 1915.

      Assumpsit by P. Albin Johnson, and Leo L. Wood, copartners as Johnson & Wood, assignees of the Title Guaranty & Surety Company, against the Federal Union Surety Company, a foreign .corporation. From a judgment for defendant on a verdict directed by the court, plaintiffs bring error.
    Reversed.

      Goodenough & Long, for appellants.

      Moore & Moore, for appellee.
   Stone, J.

Plaintiffs and appellants are assignees of a claim of the Title Guaranty & Surety Company against the defendant, based upon a contract which plaintiffs claim defendant made with said first-named company to contribute $2,500 to a settlement which the Title Guaranty & Surety Company made with the State of Michigan in discharge of official bonds signed by plaintiffs’ assignor, the defendant, and other surety companies in behalf of Frank P. Glazier, as State treasurer.

When Glazier entered upon his first term as State treasurer in January, 1905, he executed an official bond to the State in the. penal sum of $150,000, and obtained as his surety the Fidelity & Deposit Company of Baltimore, Md. At the beginning of the second year of his first term the Fidelity & Deposit Company, becoming dissatisfied, persuaded him to give a new bond, and he accordingly executed a second bond covering the same term, signed by the Empire State Surety Company, Federal Union Surety Company, Bankers’ Surety Company, and EEtna Indemnity Company, as sureties. By this bond the two first-named companies became liable for $50,000 each, and the two last named for $25,000 each.

Glazier was re-elected State treasurer in 1906, and began his second term in January, 1907. Upon entering office he ga^e an official bond in the sum of $150,-000 for the first year of his second term, with the Title Guaranty & Surety Company as surety. In the latter part of the year 1907 the Chelsea Savings Bank, of which Glazier was a principal stockholder and director, failed, owing the State about $685,000, which Glazier, as State treasurer, had deposited in the bank during his terms of office. A receiver was appointed for the bank and its affairs liquidated. Dividends were paid to the State by the receiver, and the State authorities collected from various sureties upon depository bonds given by the bank sufficient to reduce the principal indebtedness of the bank to the State to the sum of $84,758.07. This sum was ascertained in January, 1912.

Rending the liquidation of the affairs of the bank and the collections upon depository bonds, the State brought suit in the Ingham circuit against the Title Guaranty & Surety Company, upon its official bond, alleging that the deposit by Glazier in the Chelsea Savings Bank was a violation of his trust, and that the bond was forfeited. This suit was stayed by a chancery suit brought by the Title Guaranty & .Surety Company against the State, the receiver of the Chelsea Savings Bank, and the sureties upon the bonds given during the first term of office. The bill in that suit alleged that part of Glazier’s default occurred during his first term, for which the Title Guaranty & Surety Company was not liable.

An accounting was sought between the various surety companies to determine the proportion of the State’s claim which should be borne by each. This bill was finally dismissed in this court in December, 1911. See Title Guaranty, etc., Co. v. Indemnity Co., 167 Mich. 535 (133 N. W. 515). The outcome of the chancery case left the suit of the State against the Title Guaranty & Surety Company where it had been before the bill was filed. Preparation was being made for the trial of this case, when it was suggested by the vice president of the defendant in that suit and by its attorneys that a conference be held between representatives of the various surety companies upon Glazier’s bonds, and the attorney general, to adjust, if possible, the amounts, if anything,- which the companies upon the first term bonds should pay in satisfaction of the State’s claim.

Joseph A. Sinn, vice president of the Title Guaranty & Surety Company, notified the other surety companies interested, including the defendant, of a proposed meeting in New York. The first letter to the defendant was as follows:

“The Title Guaranty & Surety Company.
“Scranton, Pennsylvania, March 6, 1912.
“Federal Union Surety Company,
“Indianapolis, Indiana.
“Gentlemen:
“In re: Frank P. Glazier.
“Mr. Bell, our comptroller, and I were in Detroit a few days ago, and had a five minutes talk with Mr. Kuhn, the attorney general. It was not very satisfactory.
“However, since then our attorney, Mr. Luman W. Goodenough, of Detroit, has had a conference with Mr. Kuhn and Mr. Kuhn has made the suggestion that we arrange to have representatives of all the companies interested meet him in New York to talk over the situation. Mr. Kuhn has an appointment for the 22d of March, but we are informed that he wiil be free any other day. Would your company be willing to attend such a conference?
“I have written to the other companies interested, and if responses are favorable, I will ask the attorney general to fix a time for meeting, or I will suggest a time to him, if that is the consensus of opinion of the parties interested. Will you kindly let me hear from you. Very truly yours,
“Jos. A. Sinn,
“Vice President.”

Under date of March 9, 1912, C. M. Abbott, vice president of defendant, answered this letter, stating:

“I do not know to what you refer when you ask for a conference regarding this matter. If you will explain to me in detail just what you are driving at, I shall be very glad to advise you our attitude.”

To this Mr. Sinn replied as follows, under date of March 11, 1912:

“Mr. C. M. Abbott,
“Vice President Federal Union Surety Company,
“Indianapolis, Ind.
“Dear Sir: In re: Frank P. Glazier.
“I assume that you are perfectly familiar with the Glazier case, and with the fact that your company is on the bond of Mr. Glazier for the first term of his office.
“Mr. Kuhn, the present attorney general of the State of Michigan, stated to our attorney in Detroit, that he was going to take some action in this matter with the companies on the bond for the first term, and before doing so, it was he, Mr. Kuhn, that suggested that he meet the representatives of the companies interested in New York some time during this month.
“I have heard from two of the companies, the Fidelity & Deposit Company and the Empire State Surety Company, stating that their representatives would attend a conference on a day fixed. I would like to know what you will do.
“Will you kindly let me hear from you by return mail. Yours very truly,
“Jos. A. Sinn,
“Vice President.”

Accordingly, a meeting was arranged at the Waldorf Astoria Hotel, New York, for April 12, 1912. A conference was held at the time and place arranged and was attended by the following persons: the attorney general of Michigan; Joseph A. Sinn, vice president; Grant L. Bell, auditor; and Mr. Goodenough, counsel for the Title Guaranty & Surety Company; Joseph T. Magee, representing the Empire State Surety Company; Charles W. Miller, representing the Fidelity & Deposit Company; M. A. Craig, representing the Bankers’ Surety Company; and C. M. Abbott, vice president of the defendant, representing that company.

After a statement by Mr. Goodenough and the attorney general, they, with Mr. Sinn and Mr. Bell, withdrew, and a separate conference was held by the representatives of the surety companies upon the first-term bonds. According to the plaintiffs’ claim and testimony, there was at this conference a discussion of the question of liability to the State, and the opinion was expressed quite generally that the representatives did not believe the companies upon the first-term bonds were liable to the State, but that there was doubt upon the question, and that, rather than have any litigation, the companies upon the first-term bonds would contribute certain amounts to a settlement with the State. The sum suggested was figured upon the basis of a contribution of $15,000. The Fidelity & Deposit Company was to contribute $7,500; the Empire State Surety Company, $2,500; the Federal Union Surety Company, $2,500; and the Bankers’ Surety Company, $1,250. The .¿Etna Indemnity Company, which was a surety upon the second bond of the first term, was then insolvent, and it was suggested that the Title Guaranty & Surety Company assume the share which that company would have been expected to contribute to a settlement upon the basis of $15,000.

Plaintiffs’ witnesses testified that the amounts named were unconditionally offered to the representative of the Title Guaranty & Surety Company, with the exception of the amount named by the Bankers’ Surety Company, whose representative stated that he did not have authority to make the offer, but that he would recommend it to his company.

Upon calling the representatives of the Title Guaranty & Surety Company back to the room, Mr. Miller, acting as spokesman for the representatives of the other companies, stated that the several companies would contribute upon the basis of $15,000, and named the amounts above given. Mr. Abbott was present when this statement was made, and it was the claim of the plaintiffs that he assented to it. Mr. Sinn replied to the proposition that he was disappointed that a larger amount vas not offered, but said that he would confer with the home office of his company and advise the representatives of the other surety companies later. Thereupon Mr. Sinn made trips to the home offices of the other surety companies, and succeeded in obtaining a larger amount than that which had been previously promised from the Fidelity & Deposit Company and from the Bankers’ Surety Company.

About May 24,1912, Mr. Sinn visited the home office of the defendant, at Indianapolis, and saw Mr. Abbott. In their conversation, Mr. Sinn testified that he stated to Mr. Abbott that he hoped that the company would be willing to make a contribution of $3,338.83, which would be its proportion based on a total of $20,000; that Mr. Abbott stated that he would confer with the president of his company, who was. not in Indianapolis at that time; and that he would let Mr. Sinn know that day or the next, as the president was expected home. During the conversation Mr. Sinn referred to the $2,500, which it is claimed Mr. Abbott agreed to contribute at the conference.' The next day, while Mr. Sinn was in Chicago, he received a telegram from Mr. Abbott in the following words :

“Am unable to give any assurance whatever as to what this company will do in matter discussed yesterday.”

On May 27, 1912, Mr. Sinn replied by letter, acknowledging receipt of the telegram, but saying:

“I do not quite understand it, but perhaps your president did not return on Saturday. May I ask you to write me at Scranton as soon as you are able to give me a reply?”

Later, and on June 6, 1912, Mr. Sinn again wrote Mr. Abbott as follows:

“Dear Sir:
“In re: Frank P. Glazier..
“May I have a definite reply from you now, on the above subject? The matter must be disposed of in the near future, and I await hearing from you.”

On June 8, 1912, Mr. Abbott replied to that letter as follows:

“Referring to your letter of the 6th relative to the Glazier matter, I have referred it to Mr. Wofford at Dallas. I am writing again today asking that he advise me. regarding it. As soon as I hear from him I will communicate with you.”

To this letter Mr. Sinn, on June 10th, replied:

“Dear Mr. Abbott:
“In re: Frank P. Glazier.
“I have received your favor of the 8th instant, for which I thank you. I do not want to appear to be unduly pressing in the matter, but the question of settlement is immediately at hand, and I would like to have your reply as soon as possible. If you can do anything to hurry the matter I will personally appreciate it.”

On July 3, 1912, Mr. Sinn wrote to Abbott as .follows :

“Dear Sir:
“In re: Frank P. Glazier.
“I had hoped to hear from you before this in this matter. We cannot settle the case for less than the full amount of the claim (not including interest), $84,-763.07.
“We are still expecting that you will agree to pay us $3,333.33, which would be on the basis of a contribution by the companies on the first term bond of $20,000, we assuming the share of the ¿Etna Indemnity Company. I would appreciate very much receiving your check for this amount, or if your company is not willing to go along on this, we would thank you to send us the amount pledged by you of $2,500.
“I think you understand that the Fidelity & Deposit-Company and the Bankers’ Surety Company have agreed to contribute on the new basis.”

Abbott replied to this on July 5th, as follows:

“Dear Sir:
“I have your letter of July 3d relative to the Glazier matter. I have referred it to President Wofford at Dallas and as soon as I hear from him will communicate with you further.”

On July 29, 1912, Mr. Sinn wrote Mr. Abbott the following letter:

“Dear Sir:
“In re: Frank P. Glazier.
“May we not have definite answer without further delay in this matter? If you would prefer that we take up the matter directly with Mr. Wofford, we will do so.
“The other companies have come through on the proposition, and you, doubtless, will live up to the amount you pledged. We have settled the claim for the full amount, $84,763.07, without interest, and have taken a release from the State of Michigan.”

On August 6, 1912, Mr. Abbott, vice president of defendant company, wrote Mr. Sinn the following letter:

“Federal Union Surety Company,
“C. M. Abbott, Vice President.
“Indianapolis, Ind., August 6, 1912.
“Mja. Joseph A. Sinn, Vice President,
“Title Guaranty & Surety Company,
“Scranton, Pa.
“Dear Sir:
“I have been instructed by the executive committee of this company to say to you that the proposition made you in New York was not open to your acceptanee at any time you might elect but was for your acceptance or rejection at the time it was offered to you.
“The executive committee directs me further to say that if the Federal Surety Company has any liability to your company in the Glazier matter it will have to be determined by an action at law and if your company thinks it has a case against us we shall be very glad to pay any judgment which you may obtain.
“Yours very truly,
“C. M. Abbott,
“Vice President.”

Sinn immediately replied, expressing surprise at the attitude taken by Abbott, and the latter again wrote, stating that the executive committee did not believe that the defendant company was morally or legally liable, and that it was content to leave the ques-. tion of liability to the courts. The claim was then placed by the surety company with its attorney at Detroit, who wrote to the defendant company requesting a settlement; Mr. Abbott replied on September 20, 1912, as follows:

“This alleged offer of $2,500 was made by me and declined by the Title Guaranty & Surety Company. Some weeks later they announced their willingness to accept the $2,500. There was nothing said about the Title Guaranty being free to change their minds at any time they saw fit in the future. The offer was made for two reasons: One was that we figured that it would take about that sum to beat the hocus pocus claim the Title Guaranty & Surety Company alleged against us. The other was it was intimated to us that unless we met the demand of the Title Guaranty Surety Company, our license to do business in Michigan would be canceled. Their demand was for a much greater sum than $2,500, and we absolutely refused to contribute anything to them beyond an amount that we considered it would cost to beat this so-called claim and that amount the Title Guaranty & Surety Company’s representative, Mr. Joseph Sinn, declined to accept. Later on, when he found he could not get any more, he changed his mind and agreed to accept it. We were buncoed out of $57,500 once before, by a threat of expulsion from the State of Michigan. We do not have any fear at the present moment of any threats that may be fired at us from any official of the State of Michigan. We do not think it. will cost us $2,500 to beat the Title Guaranty & Surety Company’s alleged claim. At any rate, we are perfectly willing to have a try at it.”

Subsequently the Title Guaranty & Surety Company assigned its claim to the plaintiffs, and the instant suit was brought.

At the trial Mr. Abbott testified .that, during the time covered by the negotiations, he was second vice president of the defendant company; that his duties were to look after the underwriting of the company, secure business for it, and the management of its agency affairs; that the control of authority in regard to settling claims was in the hands of the executive committee; that his authority to bind the company to adjustments was limited to the amount of $500 or less; that, if it was more than $500, the case was reported to the executive committee, and that committee passed upon whether it should be paid or resisted, and at that time the executive committee was located at Dallas, Tex.; that Mr. Wofford was president and a member of the executive committee.

At the close of the evidence defendant requested.the court to direct a verdict in its favor on the grounds:

(1) That no contract had been entered into between plaintiffs’ assignor and defendant.
(2) That Abbott had no authority to bind the Federal Union Surety Company to contribute $2,500.

The motion was granted by the court upon the first proposition. The court in the course of its opinion said:

“I am of the opinion that the counter proposition might be treated by the Federal Union Surety Company as a rejection of its offer of $2,500. It was not an acceptance. Did the act of Mr. Sinn, instead of accepting, merely in making a counter proposition offer a new and different contract, still save to him theright to come back and accept? I am satisfied that under the evidence in this case, and under the statement that that proposition would be submitted to the executive committee of the defendant company, the Title Guaranty & Surety Company lost its right, if it could not get what it was demanding, to come back and say, ‘We will take what you offered.’ ”

Judgment having followed the directed verdict for the defendant, the plaintiffs have brought the case here by writ of error to review the court’s action, and it is said that the two questions involved are whether Abbott had authority, express, or implied, to make the offer that his company would pay $2,500, and, if so, whether the offer was accepted, so as to constitute a contract.

As only the latter question was considered by the court, counsel have first discussed it in their briefs and arguments. Counsel for appellants say plaintiffs’ evidence establishes the fact, so far as the court is concerned, upon the question of allowing the case to go to the jury, that Abbott agreed that his company would contribute $2,500 to a settlement of the claims of the State against the Title Guaranty & Surety Company and other sureties upon Glazier’s bonds. No question is raised by the defendant as to the consideration for the contract or legality of the object to be attained. It is only the right of the Title Guaranty & Surety Company to accept this offer, after its representative had expressed the hope that a larger sum would be forthcoming, that is here questioned. Manifestly the evidence must be considered in the light most favorable to the plaintiffs. If an intention can be gathered from the interviews and correspondence that the parties intended to be bound in contract, it is a question for the jury and not for the court.

It is not the claim of the plaintiffs here that any agreement was consummated at the interview in New York. It is their claim that a proposition was there made by the defendant, which the plaintiffs’ assignor afterwards accepted. The interview between Sinn and Abbott in Indianapolis is pertinent. The correspondence following that interview down to the letter of July 3d are inquiries relative to the attempt to get an increased offer from defendant. We are of opinion that the letter of July 3d is a complete acceptance, although it is true that it reiterated the hope that defendant would be more liberal and pay the larger sum. In it Sinn says in effect:

“We think you ought to pay us $3,333.33, but if you will not pay that sum we will take $2,500, which please send.”

Going back to the interview with Abbott, we do not think it can be considered a rejection of the offer of $2,500. According to the testimony of Sinn, in the same conversation reference was made to the offer of $2,500 which Abbott had agreed to. The Title Guaranty & Surety Company was engaged in an effort to effect a compromise with the State of the claim that was made primarily against it, but which might rest ultimately in some measure upon the defendant. The parties were seeking to arrive at an equitable adjustment between themselves of their liabilities to the State. We think that even Abbott’s testimony as to what occurred at that interview would be sufficient to carry the question to the jury. We think the cases cited by appellants, are to the effect that the mere inquiry as to the terms of the proposal, or a request to modify or change the offer, does not have the effect of rejecting the offer, and, if the offer has not been revoked, a party may accept it, although he previously asked the proposer to modify it.

In 1 Elliott on Contracts (1913 Ed.), § 41, that author says:

“The rejection of an offer terminates it, and it is beyond the power of the acceptor to revive the proposal by a subsequent acceptance. However, a mere inquiry as to the terms of the proposal, or a request to modify or change the offer, does not have the effect of rejecting the offer, and, if the offer has not been revoked, a party may accept it, although he previously asked the proposer to modify it.”

We have considered the correspondence carefully, as well as plaintiffs’ version of the interview with Abbott at Indianapolis, and we do not find therein any rejection of the original offer of $2,500, as contended by appellee. Stevenson, Jaques & Co. v. McLean, 5 Q. B. Div. 346; Phillips v. Moor, 71 Me. 78; 6 Ruling Case Law, p. 608. Pollock in his work on Contracts (page 40 [2d Am. from 4th Eng. Ed.] and notes by G. H. Wald), says:

“An acceptance may be complete, though it expresses dissatisfaction at some of the terms, if the dissatisfaction stops short of dissent, so that the whole thing be .described as a 'grumbling assent.’ ”

We are impressed with the claim of the plaintiffs that the most that can be inferred that is favorable to defendant’s position from the interview at Indianapolis, and the letter of July 3, 1912, is that they constituted a “grumbling assent” on the part of Sinn to Abbott’s former proposal of $2,500. We think that the learned trial court erred in directing a verdict for the defendant upon the ground stated.

As to Abbott’s authority, we are saved any lengthy discussion of this question by the statement of Mr. Abbott in his letter of August 6, 1912, in which he states:

“I have been instructed by the executive committee of this company to say to you that the proposition made to you in New York was not open to your acceptance at any time you might elect, but was for your acceptance or rejection at the time it was offered to you.”

Mr. Abbott testified that he had authority to submit propositions of this kind to the executive committee and to report the same. We think it must be held, therefore, that the statement here of the winter of this letter is virtually the statement of the executive committee. In it no claim is made that the proposition was not made in New York, as claimed by the plaintiffs, or that Abbott had no authority to make it, but the claim is that the acceptance or rejection should have been made when offered. We do not think that this position is sustained by the record. It clearly appears that Mr. Sinn was to submit this proposition to his home office and report later to the defendant and other surety companies. And at least it would be a question for the jury as to whether the acceptance was made within a reasonable time. To the same effect is the letter of Mr. Abbott to the attorney for the plaintiffs’ assignor of September 20, 1912. We are of opinion, therefore, that the learned trial court erred in directing a verdict and judgment for the defendant, and that the case should have been submitted to the jury under proper instructions.

For these errors the judgment is reversed, and a new trial ordered.

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

The late Justice McAlvay took no part in this decision.


text:
    BROWN v. MITTS.
    1. Trial — Cross-Examination — Conduct of Court — Automobiles.
    In an action for injuries to plaintiff’s automobile from collision with defendant’s machine, where, on cross-examination of plaintiff by defendant’s counsel, the court remarked that it did not know what counsel was trying to get at, but, on explanation, admitted the testimony, stating that, if necessary, it would be stricken out later, and no motion was made to strike it out, and the whole question was submitted to the jury, under proper instructions, no error was committed by the court.
    2. Same.
    Where, during the cross-examination, counsel asked plaintiff a¡s to his ability to stop his machine in time to avoid the accident, and, on objection, the court remarked, “I don’t know upon what theory Mr. Brown was obliged to stop his machine at that time,” the remark of the court did not constitute error, because the evidence at that time did not disclose any duty on the part of Mr. Brown to stop his car.
    3. Negligence — Contributory Negligence — Highways and Streets — Automobiles.
    It is not, as a matter of law, the duty of a party to stop his automobile when he sees another approaching him at a rapid rate of speed, and he has a right to presume, where there is ample room for the other party to pass in safety to the rear or. elsewhere, that he will do so.
    4. Trial — Testimony in Justice’s Court — Prejudicial Error— Evidence — Witnesses.
    Where plaintiff, on cross-examination, had already admitted that it would have been possible for him to have stopped his car before the collision, had he known there was any necessity for so doing, no prejudicial error was committed by the court in excluding his testimony in justice’s court on the same question.
    5. Same — Conduct of Counsel.
    Where, in objecting to defendant’s counsel delaying the ease, plaintiff’s counsel remarked that there was only $30 or $40’ involved, and that a half day of the court’s time amounted to more than the whole ease, the court removed any prejudicial error by instructing the jury that a defeated party in the lower court has a right to appeal and it makes no difference to the jury as to the amount involved.
    6. Negligence — Contributory Negligence — Directed Verdict— Automobiles.
    In an action for injuries to plaintiff’s automobile caused by a collision with defendant’s automobile, no error was committed by the court in refusing to direct a verdict for the defendant because of plaintiff’s contributory negligence, where the evidence was contradictory.
    7. Trial — Instructions—Requests to Charge.
    Where the charge as given covered, in substance, the requested instruction, no error was committed ,by the trial court in refusing to charge as requested.
    • 8. Same.
    Where the requested instruction did not correctly state the applicable rule of law, no error was committed in its refusal.
    9. Same — Appeal and Error — Assignments.
    Assignments of error should be specific, and an assignment to the charge as a whole is too general to receive attention.
    10. Same — Automobiles—Negligence.
    Where the court instructed the jury that if plaintiff saw defendant coming towards him at a rapid rate of speed, he had a right to act on his best judgment, and might assume that defendant would do what he could to avoid a collision, taken in connection with the further instruction that it was the duty of both parties, under the circumstances, to do what they reasonably could to prevent damage, but that neither party was bound to exercise the very best judgment, no error was committed by the court.
    Error to Saginaw; Gage, J.
    Submitted June 18, 1915.
    (Docket No. 117.)
    Decided July 23, 1915.
    Case by William A. Brown against Peter Mitts for damages to plaintiff’s automobile. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Julius B. Kirby, for appellant.

      Crane & Crane, for appellee.
   Stone, J.

This is an action on the case to recover damages for injuries to the plaintiff’s automobile, which he claims were caused by the negligent conduct of the defendant. In the city of Saginaw Germania avenue runs east and west and is intersected by Warren avenue, which runs north and south. About 1 o’clock p. m. on Sunday, May 18, 1913, the plaintiff owned and was driving a Reo automobile west, on Germania avenue. With him was one passenger, the witness Adam Sharp. At the trial it was the claim of the plaintiff that he was proceeding west on the north side of Germania avenue at about six or seven miles an hour, across Warren avenue at its intersection with Germania avenue, intending to stop at the Elks’ Temple on the northwest .corner; that as he was about 10 feet from the east line of Warren avenue he first saw the automobile of the defendant, driven by defendant, proceeding northerly on Warren avenue, in the center of the street, and on the street car track which ran along the last-named avenue; that defendant was running his car at the rate of 20 to 25 miles per hour at the time; that plaintiff sounded his horn three times to attract the attention of defendant; that defendant did not heed the warning, but was looking westward toward the post office, which was near the southwest corner; that finally the plaintiff called to the defendant, shouting a warning; that nevertheless the defendant drove at the same rate of speed into the car of the plaintiff, striking the rear wheel and injuring the fenders and running board and springing the axle. The plaintiff claimed that there was plenty of room for the defendant to have gone behind plaintiff. There was a conflict in the evidence, the defendant claiming that he was going north at the time of the collision, but, instead of being in the center of the highway, or street,_ and on the street car track, which runs pretty near the center of Warren avenue, that he was on the east side and near the east curb of the street, and that he was proceeding at a rate of speed not to exceed 8 or 10 miles an hour, and claims that he had his machine under perfect control; that as he came to the corner of Warren and Germania avenues he did not discover the plaintiff’s machine on account of some billboards which stood at the southeast corner on the lot line, and that suddenly the plaintiff’s machine, driven by plaintiff, appeared in front of him on the south side of Germania avenue instead of on the north side; and he claimed that the reason he did not see plaintiff sooner was because the plaintiff was on the south side, or wrong side of the avenue, and that he did not see plaintiff’s machine in time so that he could stop his machine. The declaration claimed careless and negligent driving by defendant and a violation of certain ordinances of the city of Saginaw, and also the statutory violation. The ordinances, which were introduced in evidence, provided that no person should run or propel an automobile on any street or avenue within the territory where this accident occurred at a higher rate of speed than 8 miles per hour. Another ordinance provided that vehicles should be driven in a careful manner, and with due regard to the safety and convenience of pedestrians and all other vehicles, and that vehicles should be kept on the right side of the street except when necessary to turn to the left in crossing or overtaking another vehicle; that drivers or operators of vehicles before turning, stopping, or changing their course should make sure that such movements could be made in safety, and that no vehicle should cross any main thoroughfare or make any turn thereon at a greater speed than one-half of the legal speed limit which was permitted upon such thoroughfare. In its charge to the jury the trial court called attention to the ordinances, and also to section 7, subd. 1, Act No. 318, Pub. Acts 1909, entitled:

“An act providing for the registration, identification and regulation of motor vehicles operated upon the public highways of this State, and of the operators of such vehicles.”

The issues in the case were submitted to the jury under a lengthy charge, and the plaintiff recovered a verdict and judgment for $33.40 and costs.

The defendant has brought the case here upon writ of error. Error' is assigned upon certain rulings of the court in the admission of evidence, for refusal to give certain requests of defendant, and upon a portion of the charge of the court. We cannot better dispose of the assignments of error relating to the admission of testimony than to quote somewhat at length from the cross-examination of the plaintiff. That testimony was as follows:

“Q. (Had that been a street car instead of Mr. Mitts coming down at that same speed, could you have stopped so as not to have collided with the car?
.“Mr. Crane: Objected to as incompetent.
“The Court: Objection sustained.
“Q: Could you have stopped your car when you seen him coming down there before you entered upon Warren avenue?
“Mr. Crane: I object to that. It was not incumbent upon Mr. Brown, under the rule of law, to stop his car.
“The Court: I don’t know what counsel is trying to get at, I must say.
“Mr. Kirby: It is the duty of every man operating an automobile to exercise due care, and if he sees a car coming, and he can avoid a collision, that he has reason to think from a man who is coming so fast he should, and it is his duty to exercise care and not run in front of him.
“The Court: I don’t think it is competent. I think it is the duty of a man who is running an automobile down the street to pay attention to the law of the State and the city ordinances. If he violates it he is responsible for the violation of' it. It is not the duty of the other man to assume he won’t take care of his automobile and manage it in that way.
“Mr. Kirby: Do I understand a man is not chargeable with the exercise of due care even though the other man is violating the ordinance?
“The Court: He has a right to assume a man will avoid him on coming up toward him until such time as he sees an accident cannot be avoided. A man who is running too fast is the man who is responsible.
“Mr. Kirby: Exception. On cross-examination I claim I have a right to ask the witness whether he could not have stopped his car to avert this accident.)
“Mr. Crane: I have already stated my objection.
“The Court: What is the objection?
“Mr. Crane: I object to it as incompetent, there is no duty in the law making it incumbent upon Mr. Brown, under such circumstances, to stop his car. He had a right to assume that the other man was paying attention to his duties. What was going on in Mr. Mitts’ mind Mr. Brown did not know.
“The Court: Well, I will admit it. I will strike it out afterwards upon the motion, if you can satisfy me it should not be in. I don’t know upon what theory Mr. Brown was obliged to stop his machine at that time.
“Mr. Kirby: (We are not admitting that Mr. Mitts was violating the statute of this State.
“The Court: The testimony shows so far that he was. You have got to disprove that.
“Mr. Kirby: Note an exception.)
“The Court: Do you withdraw the objection?
“Mr. Crane: No.
“The Court: I allowed you to ask the question. Do you want an exception to that?
“Mr. Kirby: I want an exception to the last statement of the court that the law presumes, until there is something to the contrary shown, that Mr. Mitts was violating the law.
“Mr. Crane: There is no such statement.
“The Court: (I made no such statement. I said the testimony as it stands here now is that Mr. Mitts was violating that law, and he was also violating the ordinance of the city. They have both been pleaded in this case.
“Mr. Kirby: I take exception to that statement.)
“Q. I understand I have a right to inquire, Mr. Brown, as to whether or not you could have stopped your automobile when you saw Mr. Mitts coming, and when you tooted your horn for him to stop, before you got on the track ahead of him?
“A. Before I came ahead of the intersection I never dreamed for a moment but what he would have control of his car and perform his duty.
“Q. When you first discovered him, or seen him coming you might then have stopped before you got into the path where he finally struck you?
“Mr. Crane: Same objection.
“A. I might have been able to stop my car, but I didn’t think it was necessary to stop that time.
“Q. You could have stopped?
“A. I could have stopped my car. I assumed the right I had to cross the street regardless of Mr. Mitts, or anybody else coming across the street.
“Q. You could have stopped if you had desired?
“Mr. Crane: Same objection.
“A. If I had known what he was going to do. * * *
“Q. (Now, witness, did you continue running your car along here at the usual rate of speed of which you run your car, Mr. Mitts would not have struck you, would he?
“A. If I had been running the usual speed.
“Mr. Crane: Just a moment.
“The Court: Objection sustained.
“Mr. Kirby: Exception.)
“Q. (If you had not intended to stop right here as soon as you got over the track, but had been going on, you would not have had the collision, would you?
“Mr. Crane: I will have to object to that; it is a contingency nobody could tell about. Nobody can speculate upon what might have been done.
“The Court: I sustain the objection.
“Mr. Kirby: Note an exception.) * * *
“Q. (If you had not slackened your car with the expectation of stopping at the Elks’ Temple, I want to know, in your judgment, if Mr. Mitts would not have passed with safety?
“Mr. Crane: I object to that. There is no such testimony.
“The Court: I sustain the objection.)
“Mr. Kirby: Note an exception.
“A. When I came on to Warren avenue from Ger-mania I was on the north side of the street. It is not true when I rounded this corner here I made the circle papt upon Warren avenue near the billboard. No, sir; it is not true the collision occurred just in turning over north on the south line of Germania. I came right down Genesee street, straight here, it wasn’t over 10 feet from the curb. I have turned shorter than that already. The machine was out probably 10 feet from the curb. The outside was out further. The car is, I should judge, about 5 feet wide. I was not out in the center of the street at any time. After I discovered Mr. Mitts I hollered at him. I had a right to expect him to slacken up. I expected him to slacken up.
_ “Q. (When you tooted your horn once and seen it didn’t attract his attention, why didn’t you exercise that care by stopping your car?
“Mr. Crane: I object to that; there is no duty on the part of Mr. Brown to do that.
“The Court: I sustain the objection.
“Mr. Kirby: Note an exception. It is my claim that every man must exercise due care.
“The Court: A man who approaches a crossing or intersection of a street is bound to get his machine under control. If he is running 25 miles an hour it is not under control. He is bound to have it under control so as not to interfere with traffic upon the street. It is a part of his duty.
“Mr. Kirby: The court assumes he was running at 25 miles an hour.
“The Court: Up to this time the only testimony is that he was.
_ “Mr. Kirby: I want it to appear that I claim the right to examine this man thoroughly as to the proposition that he could have avoided the accident by exercising due care and stopped after he saw the place of danger.
“The Court: I have not made any general ruling. Whenever you ask a question I will rule upon it.
“Mr. Kirby: I except to the ruling of the court. When I asked him if he could not have avoided the injury by himself stopping, the court sustained the objection to my question. I assume that I should not go into that matter any further.
“The Court: You may take your own course.
“Mr. Kirby: I assume that.
“The Court: You may assume all you are mind to in this case. But whenever there is a question asked I will rule upon it.
“Q. Mr. Brown, could you have stopped your car after you tooted your horn the first time and seen he continued to look west; could you have stopped your car before the collision?
“Mr. Crane: Before the question is answered, for the benefit of getting it upon the record, I want to object to that for the reason there is no duty upon the part of Mr. Brown to have stopped his car under the circumstances.
“The Court: As disclosed so far?
“Mr. Crane: As disclosed in this case.
“The Court: I sustain the objection.
“Mr. Kirby: Note an exception.)
“A. I said Mr. Mitts was about the center of Warren avenue when I first seen him. In the center of the street I mean. Yes; he continued right in the center of the street' * * * the entire time I saw him until we collided. As soon as I got where I could look down the street I looked down Warren avenue to see if anybody was coming. I was not watching my speedometer; I was watching Mr. Mitts. The best of my judgment is 6 -or 7 miles an hour.
“Q. (Didn’t you testify in justice’s court that you could have stopped your car when you discovered Mr. Mitts and saw he was looking west and wasn’t paying any attention to his duty; you could have stopped your car before you got out on the track where the collision occurred?
“Mr. Crane: I object to that for the reason that I have objected to it before. It is merely an assumption or claim that he gave that testimony in the justice court.
“The Court: I don’t see how you are going to contradict it. I sustain the objection.
“Mr. Kirby: Note an exception.)
“Mr. Crane: Any further question, Mr. Kirby?
“Mr. Kirby: I will let you know in a minute.
“Mr. Crane: You have already delayed this thing for 15 minutes.
“Mr. Kirby: Any time that this case can proceed, if you think it is all right, proceed.
“The Court: There is a great deal of time being taken up in this case — a matter ox this importance, I think it ought to be expedited.
“Mr. Crane: (There is a sum involved of about $30 or $40, and the court and stenographer and the jurymen are here, and it costs more in a half day than this whole case amounts to.
“Mr. Kirby: Give me the benefit of an exception to this statement.
. “The Court: If you are going to proceed, I would like to have you proceed.)
“Mr. Kirby: I ask the court to state to the jury that they should not consider the remarks of counsel as to what is involved in this suit, or what the costs may be.
“The Court: I will say to the jury, of course, a party who is defeated in the lower court has a right to appeal to this court and to take such course as he sees fit in the case; it is all under control of the judge. It makes no difference to the jury what the amount involved is, it is made our duty to try this case just the same as though there was $1,000 or $1,500 or more involved. I would like to have you proceed with the case. If you don’t, I will take the matter in my own hands and exercise my authority.
“Mr. Kirby: I will repeat that I cannot continue until I have an opportunity to gather matters and know what I want to ask. I have got to have an opportunity to get my questions framed. That is all I am asking for.”

Error is assigned upon the portion embraced in parentheses.

The following are requests of the defendant to charge, the refusal of which is excepted to:

“(1) If you find the plaintiff at the time he entered Warren avenue, going west, he was on the south side of the center line of Germania avenue, near the board fence, and by reason thereof Mr. Mitts collided with him, he could not recover, because the law requires him to travel on the right side of the street at such a point, and if he violated the law in that respect he contributed to the injury.
“(2) I charge you that at intersection of streets, like Warren and Germania, persons approaching the same must have their machines under control and each-have a right to expect the other to exercise due care at such places, and if you should find the defendant Mitts’ negligence may have been the primary cause of the injury complained of, yet an action for such injury^ cannot be maintained, if the proximate cause of the injury can be traced to the want of ordinary care and caution in the person injured or whose property is injured.
“ (3) If you find the plaintiff could have stopped his car by the exercise of due care in time to have avoided the accident after he claims to have discovered Mr. Mitts paid no attention to his warnings and seemed to be looking in an opposite direction, then he could not recover because he was not exercising due care.”

The court charged the jury in part as follows:

“If the plaintiff was on the north side of Germania avenue when he was coming across into Warren avenue, and had his machine under control, and was running not at a higher rate of speed than that testified by him — I don’t' know as there was any testimony which indicated he was running at a higher rate of speed — why then he was entirely within his rights, and if the collision occurred by the fault of Mr. Mitts, by reason of Mr. Mitts running his machine faster than the law permitted, or by his failure to stop his machine when he could have stopped it by paying attention to what he was doing, then the plaintiff would be entitled to recover for the injury which he suffered. If, on the other hand, Mr.-, the plaintiff here, Mr. Brown, was not on the north side of Germania avenue, then he was on the wrong side of the street, and if by reason of his taking the wrong side of the street, he contributed to his injury in any way, to his damage in any way, then he could not recover even though Mr. Mitts was at fault. It was his duty to be on the north side of the street, at the intersection of those two streets.
“Now, where two parties are suddenly confronted with an emergency, risk of collision, or if a party is on a street railway and imagines a collision is going to occur,, he has a right to act upon the information or the facts as they appear to them. They are not bound to act in the very best manner possible under the circumstances, as they might appear to others afterwards, but they are to act upon their best judgment under all the circumstances. That applies to this case in this way: (That if Mr. Brown coming across Warren avenue there at Germania, saw Mr. Mitts coming towards him at a rapid rate of speed, he had a right to act on his best judgment. He had a right to assume Mr. Mitts would do what he could to avoid a collision if he could do anything to avoid it, and that he would swing his automobile away from the line of the plaintiff's automobile, or check it, if it were possible to check it.) It is the duty of both parties, under circumstances like this, to do what they reasonably can to prevent damage. But neither party is bound to exercise the very best judgment; he must exercise such judgment as the circumstances appear to him to require, and he is excused from failing to take the very best course.
“I think the instructions which I have already given you are sufficient for this case, and all I am warranted in giving you in the case. There are other requests made to me that I think I am not warranted in giving under all the circumstances of this case. Really the questions involved are questions of fact more than law. I have endeavored to explain to you fully what the duty of each party was under the circumstances, and if Mr. Mitts violated his duty in any way, and by reason of his violation of his duty this accident occurred, why he is amenable to Mr. Brown, the plaintiff here, for such damages as he has suffered by reason of Mr. Mitts’ negligence. If, on the other hand, Mr. Brown failed to take such action as he might have done' to protect himself, or if he was on the wrong side of Ger-mania avenue, or did other acts that contributed to this accident, then Mr. Mitts is not responsible. But I think I have already explained to you that Mr. Brown was not obliged to anticipate that Mr. Mitts would go ahead, if he was going ahead at the rate of speed that he claims he was when he saw him coming down the avenue, or at an excessive rate of speed so. he could not very well prevent a collision. He simply had a right to assume that Mr. Mitts was obeying the law.”

The first six assignments of error relate to the rul-' ings of the court, made in the course of the cross-examination of the plaintiff. We have copied the testimony at considerable length to show the latitude which was given to the defendant and appellant in the cross-examination of this witness. It is true that the court said at one point that it did not know what counsel was trying to get at, but when explanation was made by defendant’s counsel the court admitted the testimony, stating that if it found it necessary, the same would be stricken out afterwards. No motion was made to strike this testimony out afterwards, and the whole question was submitted to the jury, we think, under a proper charge. We do not think the fact that the court made use of the expression, “I don’t know upon what theory Mr. Brown was obliged to stop his machine at that time,” constituted error, because the evidence at that time did not disclose any duty on the part of Mr. Brown to stop his car. It cannot be said that, under the law, it is the duty of a party to stop his car when he sees another approaching him at a rapid rate of speed, and there is ample room for the other party to pass him in the rear or elsewhere. The plaintiff was proceeding west, and the evidence is undisputed that there was ample room for the defendant to have passed in the rear of plaintiff’s car, and we think that the plaintiff had the right to suppose that such course would be taken by the defendant, and we cannot say that his duty was to stop his machine at that time. We find no error in the remark of the court.

We have given enough of the proceeding to show that the defendant’s counsel was permitted to cross-examine the plaintiff at great length, and we find no error in the rulings of the court upon that subject.

The seventh assignment of error relates to the claimed testimony in the justice’s court; and, while we think the trial judge might well have permitted the question to have been answered, we do not think the ruling constituted prejudicial error, for the reason that the plaintiff, upon his cross-examination, had not denied, but admitted, that it would have been possible for him to have stopped his car before the collision had he known that there was any necessity for so doing.

The eighth assignment of error relates to the remark of plaintiff’s counsel as to the amount involved and the length of time the trial was taking. We think that the trial court, as we have already indicated, explained that matter sufficiently .to the jury, and we see no prejudicial error in the conduct of the case in that regard.

The tenth assignment is based upon the refusal of the court to direct a verdict for the defendant, for the reason that under the undisputed evidence in the case the plaintiff was guilty of contributory negligence. We do not think the court erred in denying this motion.

The eleventh assignment of error relates to the refusal of the court to give defendant’s first request to charge. As already appears from the portion of the charge quoted, the substance of this request was given, as was also the substance of request No. 2, which is the basis of the assignment of error No. 12.

The thirteenth assignment of error relates to the refusal to give request No. 3. We do not think that this request stated the applicable rule of law correctly, and there was no error in its refusal.

The fourteenth assignment of error is directed to the charge as a whole. We have examined the charge and find many rules of law which were correctly stated.' This assignment is too general to receive any attention. Assignments of error should be more specific.

Assignment No. 15 relates to that portion of'the charge which we have embraced in parentheses. We think, when taken in connection with the remainder of the charge, as quoted, there was no error in the instruction there given.

We find no prejudicial error in the record, and the judgment of the court below is affirmed.

Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. McAlvay, J., did not sit.