text:
      In re PARSELL’S ESTATE. EDGAR v. PARSELL.
    1. Bailment — Animals—Sale—Distinction—Conversion.
    Where claimant delivered 12 ewes to one since deceased, who receipted for the animals, stating that he was to keep them for an annual rental of one-half the wool and increase, for a term of three years, the transaction was not a sale, but a bailment, since the obligation to be implied from the transaction was that decedent was to return the same sheep or the survivors of them at the end of the term.
    2. Limitation of Actions — Bailments—Animals—Redelivert.
    Decedent, who received ffom the owner 12 ewes to be kept for one-half the wool and increase for a period of three years, and who was not shown by the evidence to have asserted any claim of title in the property after the termination of that period, but on the contrary to have admitted that he had in his possession sheep of the claimant, and made payments in labor or in kind upon the contract, which were receipted in writing thereon, was not entitled to retain possession of the ewes on the ground that the action was barred under the statute of limitations.

    3. Evidence — Limitation oe Actions — Statute oe Limitations— Adverse Holding.
    Although the provisions of the statute of limitations, section 9740, 3 Comp. Laws (5 How. Stat. [2d Ed.] §14147), require that an acknowledgment or promise as evidence of a continuing contract so as to take the case out of the provisions of the statute must be in writing, they do not require the exclusion from the evidence of admissions of the deceased tending to show that he was in possession of claimant’s sheep and that he acknowledged claimant’s ownership; the proof having a tendency to establish that his holding was not adverse but that he held as bailee.
    4. Same — Contracts—Trust Relation.
    If at the expiration of the agreed time the bailee does not deliver the property or deny the bailor’s right to possession, the bailment does not necessarily terminate, and he holds the property in trust, the bailor having the right to resume possession or consider the bailment as renewed.
    5. Same — Adverse Possession.
    It is recognized as a general rule of bailment that mere retention of possession by the bailee, however long continued, will not of itself effect change of ownership: until he asserts an adverse claim the statute of limitations does not operate in his favor.
    Error to Tuscola; Beach, J.
    Submitted January 14, 1915.
    (Docket No. 85.)
    Decided March 17, 1915.
    Mrs. M. V. Edgar presented a claim against the estate of G. Franklin Parsell, deceased, for certain sheep and their increase. The commissioners on claims rejected the claim in part and claimant appealed to the circuit court. Judgment for defendant upon a directed verdict. Claimant brings error.
    Reversed.

      Coburn & Misner and Harry P. George, for appellant.

      H. H. Smith, for appellee.

       Upon the liability of a bailee under special terms of contract for care or return of subject of bailment, see note in L. R. A. 1915B, 295.

   Steere, J.

Mrs. M. V. Edgar inaugurated this proceeding in the probate court of Tuscola county to establish a claim against the estate of Franklin Par-sell, deceased. Josephine Parsell, executrix of said estate, contested said claim, which was for 12 ewe sheep let to deceased, with one-half their wool and increase from 1898 to 1913, amounting less credits to $307.50. The commissioners on claims rejected all of said account but $31.61, and allowed the claim for the latter amount. Claimant appealed the matter to the circuit court, where a judgment was entered in favor of said estate on a verdict directed by the court at the conclusion of plaintiffs testimony, on the ground that recovery was barred by the statute of limitations. Plaintiff moved for a new trial, which was denied.

Appellant’s assignments of error, covering refusal to charge as requested, directing a verdict and denying a new trial, all center upon the single question of whether, regarding the testimony in its most favorable light for her, she is, as a matter of law, precluded from recovery by the statute of repose. No objections were made, so far as the record discloses, to any testimony offered by her, and the only issue is upon its significance and adequacy.

Upon the trial the following exhibit was identified and introduced in evidence:

“Almer, October 18, 1898.

“This is to certify that G. F. Parsell has this day taken of M. V. Edgar twelve (12) ewe sheep to keep for the rental annually of one-half the wool and increase from said twelve (12) sheep, for the term of three years from and after this date.

“G. F. PARSELL;”

Indorsed on the back of this • appears:

“Paid eighteen (18) she'ep back, November, 1903.

“M. V. Edgar.”

“November, 1908, to ten days’ work.”

At the end of the three-year term deceased continued to keep the sheep. There is no direct proof of an express contract of renewal in writing, or otherwise. The indorsement on the back of the written memorandum that 18 sheep were paid back in November, 1903, is not questioned. Plaintiff’s husband, testifying as to this, says that 18 lambs were returned then. He further testified, without objection, to three different conversations, one as late as 1912, in which deceased stated he yet had plaintiff’s sheep, and admitted an indebtedness to her in that connection, and directed that some work done by him for her be applied on such indebtedness. John Miller, a' neighboring farmer, testified that in 1906 deceased stated to him, “I have some of Mrs. Edgar’s sheep yet, and they are dandies.” In behalf of said estate it is urged that such evidence is not competent to show renewal of said contract during the remaining 10 years of deceased’s life, nor indebtedness or payment on such renewal, the indorsement of “ten days’ work” in November, 1908, shown to have been made by plaintiff, not being evidence of payment “so as to take the case out of the operation” of the statute under section 9744, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14151); Fowles v. Joslyn, 130 Mich. 272 (89 N. W. 946), and deceased’s oral admissions or promises are excluded by section 9740, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14147), which provides:

“In actions founded upon contract express or implied, no acknowledgment or promise shall be evidence of a continuing contract, whereby to take the case out of the provisions of this chapter, or to deprive any party of the benefit thereof, unless such acknowledgment or promise be made or contained by or in some writing, signed by the party to be charged thereby.”

This may eliminate from consideration certain promises and admissions of deceased, testified to, touching past indebtedness, but not, in our opinion, his statements of the existing fact that he was yet in possession of some of her sheep and did not hold them adversely.

We are impressed that in disposing of this case in harmony with general rules as to limitation of actions, sufficient consideration was not given to the nature of the transaction by which contractual relations were established between the parties. The four-line memorandum of agreement signed by deceased, and the meager evidence of what was done in pursuance of it, clearly point to a bailment — a trust relation arising from lawful possession of property taken with consent of the owner for an agreed time and purpose, and the duty to later account for it to the owner.

In Ruling Case Law, vol. 3, p. 73, the general rule upon this subject is thus stated:

“Where one leaves animals, as sheep, with another on shares for a certain period of time, providing for the payment of a certain amount of wool per head and for the disposition of the increase, the sheep to be redelivered at the end of the term, the transaction is of course a bailment; but where an equal number is to be returned, of like value, ordinarily it is to be deemed a sale.”

There was no agreement in this case to return an equal number of like value. The implied legal obligation arising from this agreement' was to return the same sheep or their survivors at the end of the term. That this was a bailment there can be no question. Woodward v. Edmunds, 20 Utah, 118 (57 Pac. 848); Manti Bank v. Peterson, 30 Utah, 475 (86 Pac. 414, 116 Am. St. Rep. 862); Robinson v. Haas, 40 Cal. 474; Smith v. Niles, 20 Vt. 315 (49 Am. Dec. 782). In the latter case the transaction was held to be a bailment and not a sale, although the animals were to be returned “or those worth as much in all respects.”

It is shown that these sheep were not redelivered at the end of the term, nor ever demanded by the owner, so far as shown, nor that her title was ever denied. There is evidence tending to show it was not. Two years later deceased “paid eighteen (18) sheep back,” or “lambs,” according to the testimony of plaintiff’s husband. Whether during the three years or afterwards he made the annual payments in kind as stipulated is otherwise left to conjecture.

The short memorandum of agreement leaves much to inference. Deceased took the 12 ewe sheep, in 1898, to “keep” for three years, agreeing to pay annually for their “rental” half the wool and increase. He died in 1913. How many of these sheep outlived him is not shown. In the absence of special agreement, it was his duty, while in possession of them under his bailment, to annually pay the agreed rental in kind, and properly keep, feed, shelter, and otherwise care for them. He did not insure them, nor agree to replace any which perished from natural causes, by disease, or accident without fault on his part. He was only holden to the honest exercise of average diligence. It was a bailment for benefit of both. Where the parties fail to expressly define their relative rights and duties in that particular, the law only requires of the bailee the care and diligence in conserving the property intrusted to him which persons of average diligence and prudence bestow towards such property, or upon their own property, under like circumstances.

Counsel for appellee emphasize that, conceding this transaction was a bailment, it was for a definite time, and urge that the bailment terminated when the time expired; that plaintiff was then entitled to a return of the sheep, and her right of action to recover them or their value then arose. This may be recognized as the general rule and, unquestionably, the bailment ends absolutely if the bailee returns the property or accounts for it as is his duty; but if at the expiration of the appointed time he does not redeliver the property or excuse the failure to do so, nor deny the bailor’s right to possession of it, the bailment does not necessarily end as to him, for he yet holds the property in trust, and “the bailor has a right to resume the property or consider the bailment as continued or renewed” (5 Cyc. p. 207; Elliott on Contracts, §3005), and under some circumstances the inaction of the parties might be treated as inferential evidence of an agreement to that effect (Schouler on Bailments [3d Ed.], §159).

The law of bailments does, not, however, as in case of leases, imply a renewal of the former contract from the mere naked act of retaining possession, but possession, retained without 'objection after the period originally fixed has expired, in connection with other persuading circumstances, may raise a question of fact for a jury as to whether the bailment was terminated or continued and renewed. Chamberlain v. Pratt, 33 N. Y. 47, 2 Enc. of Ev. p. 189.

It is recognized as a general rule of bailment that the mere retention of "possession of property by the bailee, however long continued, will not in itself work a change of ownership, and the statute of limitations cannot run in his favor until he sets up and asserts some adverse claim in respect to the bailment by which he acquired possession of it. Blount v. Beall, 95 Ga. 182 (22 S. E. 52); Reizenstein v. Marquardt, 75 Iowa, 294 (39 N. W. 506, 1 L. R. A. 318, 9 Am. St. Rep. 477). While in these cases the time of termination of the bailment is not shown to have been so definitely-set as here, both the rule and reason therefor are well stated as of general application. In the last case cited it is said:

“The rights and obligations of a bailee of personal property are very much like those of a trustee of a resulting trust in realty, and it has always been held that the statute of limitations commences to run in favor of a trustee from the, time when he denies the trust and claims the trust property as his own. Peters v. Jones, 35 Iowa, 512; Gebhard v. Sattler, 40 Iowa, 152. Upon the same principle the statute of limitations will not begin to run in favor of a bailee until he denies the bailment and converts the property to his own use.”

That the burden of proof rested upon plaintiff to establish, by a preponderance of evidence, a continuance or renewal of the bailment, as well as various other facts essential to recovery, is clear, but under the facts and circumstances disclosed in this record we must conclude it cannot be said, as a matter of law, that she is absolutely barred from any recovery by the statute of limitations.

The judgment is reversed, and a new trial granted.

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


source: Caselaw Access Project

author: Brooke, C. J.

license: Public Domain

text:
    WILSON v. VAN BUREN COUNTY FARMERS’ MUTUAL FIRE INSURANCE CO.
    1. Bankruptcy — Judgments—Garnishment—Insurance.
    Under subdivision /, § 67 of the bankruptcy law, providing that all levies, judgments, attachments, etc., against the insolvent, obtained within four months before the petition in bankruptcy was filed, shall be deemed null and void in case he is adjudged a bankrupt, judgment in garnishment obtained by one of the creditors of a bankrupt against a mutual insurance association in which the insolvent had insured her goods, became void and inoperative when the trustee in bankruptcy, who had commenced an action within four months. from the date of the institution of garnishment proceedings for the recovery of the fund, obtained a judgment affirming his right to the insurance due to the bankrupt.
    2. Same — Evidence oe Appointment — Waiver.
    YThere defendant, in an action by a trustee in bankruptcy, proceeded to a trial in the court below upon the assumption that the plaintiff was in fact the lawful trustee and his verified petition setting up the fact of his appointment as trustee was offered in evidence, no claim being made upon motion for directed verdict that the proof was inadequate, it was unnecessary to show by additional evidence the appointment of plaintiff.
    3. Same — Laches.

      Held, also, that the trustee acted with reasonable diligence after making application for an order in the district court for the eastern district of Michigan compelling the defendant insurance company to pay over the money to him as trustee, and obtaining a temporary injunction to restrain defendants from turning over the fund to plaintiff in garnishment, in commencing action promptly after dissolution of the restraining order.
    Error to Van Burén; Des Voignes, J.
    Submitted January 19, 1915.
    (Docket No. 8.)
    Decided March 17, 1915.

      Assumpsit by Harry Wilson, as trustee in bankruptcy of Elizabeth A. Humphrey, against the Van Burén County Farmers’ Mutual Fire Insurance Company to recover insurance on the goods of said bankrupt. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      A. Lynn Free, for appellant.

      Glenn E. Warner, for appellee.
   Brooke, C. J.

In this suit the trustee in bankruptcy seeks to recover possession of a certain fund in the hands of the defendant, which is the property of Elizabeth A. Humphrey. ■ The said Elizabeth A. Humphrey was possessed of certain goods and chattels covered by a fire insurance policy issued by the defendant company. On October 13, 1910, these goods were partially destroyed by fire. On the following day, October 14, 1910, Elizabeth A. Humphrey assigned the insurance money to become due under said policy to one Thomas J. Cavanaugh, as trustee for certain creditors. On October 15, 1910, Alice Brown commenced a suit at law against the said Elizabeth A. Humphrey, and on October 17, 1910, served a writ of garnishment upon the defendant company. On December 10, 1910, the loss was adjusted at the sum of $675, and on February 5, 1912, the defendant insurance company filed a disclosure in the garnishment proceedings showing an indebtedness to Elizabeth A. Humphrey in that amount. On January 30, 1912, Alice Brown secured a judgment against Elizabeth A. Humphrey in the sum of $820.53. In the garnishment proceeding Thomas J. Cavanaugh was impleaded, and claimed the fund under his assignment bearing date October 14, 1910. Such proceedings were had therein that it was determined that he was entitled under said assignment to the sum of $178.80 and costs taxed at $30.20. A judgment was entered in his favor for this amount on November 14, 1912. Deducting this sum from $675, the amount shown by the disclosure of defendant to be due Elizabeth A. Humphrey, left $466, for which amount judgment was rendered in favor of Alice Brown on February 7, 1913.

Elizabeth A. Humphrey was adjudged a bankrupt on February 16, 1911. This adjudication occurred two days more than four months after her assignment of the insurance money to Thomas J. Cavanaugh, and one day less than four months after the service of the writ of garnishment by Alice Brown upon the defendant company. The plaintiff, as trustee in bankruptcy, claims to be entitled to the sum of $466, for the reason that the lien of Alice Brown as fixed by the service of the writ of garnishment on October 17, 1910, was so fixed within four months of the adjudication of bankruptcy against Elizabeth A. Humphrey. Subdivision of section 67 of the bankruptcy act provides:

“That all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months prior to filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment or other liens shall be deemed wholly discharged and released from the same, and shall pass to the trustee as a.part of the estate of the bankrupt,” etc.

This section of the statute has been construed in many cases, and has been given effect according to its tenor. In re Kenney, 105 Fed. 897 (45 C. C. A. 113); In re Lesser (D. C.), 108 Fed. 201; In re McCartney (D. C.), 109 Fed. 621; and In re Beals (D. C.), 116 Fed. 530.

At the conclusion of the introduction of evidence both parties moved for a directed verdict. The motion made on behalf of the defendant was granted by the learned trial judge upon the ground principally that the plaintiff had been guilty of laches in not having secured the right to intervene in the case of Alice Brown v. Elizabeth A. Humphrey, and by such failure permitting a judgment to go in favor of Alice Brown and against the defendant company for the sum of $466. While it is doubtless proper for a trustee in bankruptcy to act with diligence lest the rights of parties may be changed, we are unable to see how the delay in the present instance worked any harm to Alice Brown. The application of the trustee in the district court for the western district of Michigan for an order compelling the insurance company to pay over the money to him as trustee was made prior to the rendition of said judgment in the circuit court in favor of Alice Brown, and a temporary injunction was issued on said application on the 6th of December, 1912, preventing the defendant from turning over said fund. This injunction was dissolved on February 25, 1913, whereupon, as was intimated to the trustee by the referee in bankruptcy in his order dissolving the injunction, the trustee secured authority to bring this suit. We are of opinion that it cannot be said that the trustee did not act with reasonable diligence in the premises.

In this court it is contended on behalf of the defendant that there was no adequate proof of the fact that the plaintiff is trustee of the estate of Elizabeth A. Humphrey, and many cases are cited to the effect that such proof is necessary. A sufficient answer to this proposition is found in the fact that the case proceeded to trial in the court below upon the assumption that the plaintiff was, in fact, the trustee of Elizabeth A. Humphrey, as he claimed. Exhibit B introduced in evidence is his verified petition filed in the district court for the western district of Michigan, in which there is set up the fact of his appointment. Further than this, although a motion was made for a directed verdict on behalf of the defendant for several reasons, no claim was made by the attorney for the defendant that proof upon this point was lacking or insufficient.

It is urged on behalf of counsel for defendant that to permit a recovery by the plaintiff in this case would result in two judgments against the defendant for the same sum. This view we think untenable, for the reason that a judgment in the case at bar against the defendant can only be predicated upon the fact that the Federal statute above quoted makes absolutely null and void all levies, judgments, etc., obtained through legal proceedings within four months prior to the filing of the petition in bankruptcy. It follows, of course, that the entry of judgment in favor of the plaintiff in this suit operates as a vacation of the prior judgment against the same defendant for the same fund in favor of Alice Brown.

We are of opinion that the learned trial judge was in error in directing a verdict in favor of defendant, and that he should have directed in favor of plaintiff.

The judgment is reversed, and a new trial ordered.

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


author: Steere, J.

text:
    LOCKE v. IONIA CIRCUIT JUDGE.
    1. Constitutional Law — Physicians and Surgeons — Practice oe Medicine — Criminal Law — Amendment to Statute — Title op Act.
    The amendment of Act No. 237, Pub. Acts 1899, passed in 1913, Act No. 368, Pub. Acts 1913, defining the practice of medicine to mean the actual diagnosing, curing or relieving in any degree, or professing or attempting to diagnose, treat, etc., by attendance, prescribing, or- manipulation, exceeds the power of the legislature in that it attempts to render criminal any acts of kindness to or relief of the suffering, as an amendment to an act which related to the examination, regulation, licensing, and registration of physicians and surgeons: but • in so far as the original act applies to practicing medicine and regulates the same it is valid and is not open to the objection of unconstitutionality because it attempts to include persons engaged in the practice of chiropractic or drugless healing.
    2. Same — Criminal Law — Treatment of Diseases.
    Under the police power of the State it is competent for the legislature to regulate and control the examination and licensing of persons engaged in healing and in the medical profession or the treatment and cure of ailments and diseases, so that an information based upon the act of 1899 regulating physicians and surgeons, and charging the respondent with practicing as a chiropractor without complying with the requirements of the law, was sufficient and should not have been quashed upon the motion of the accused. The information was good irrespective of any amendments to the law.
    3. Same — Title oe Act — Licensing Physicians.
    The title of Act No. 237, Pub. Acts 1899 (2 How. Stat. [2d Ed.] §5108 et seq.), sufficiently covers the practice of medicine or it is suggested by the reference to regulation and licensing of physicians, etc., in said act; and the respondent, a chiropractor, engaged in the treatment of diseases by (manipulation of the spine and muscles of the back, was within the prohibition of the statute.

      4. Same — Due Process oj? Law — Federal Constitution — Criminal Law — Licensing Chiropractors.
    It is within the police power also to license and regulate the practice and treatment of diseases and to protect the citizens from fraudulent or improper claims on the part of persons who pretend to practice the profession; — such legislation does not interfere with the unalienable right of a citizen to employ whomsoever he choo'ses as his physician. The qualifications of persons who hold themselves out as qualified to cure diseases is within the province of the legislature to regulate or license.

    Mandamus by Alfred R. Locke, prosecuting attorney of the county of Ionia, against Frank D. M. Davis, judge of the circuit court, to require respondent to set aside an order quashing the information in a prosecution against one D. J. Healey.
    Submitted January 19, 1915.
    (Calendar No. 26,312.)
    Writ granted March 17, 1915.

      Grant Fellows, Attorney General, and Alfred R. Locke, Prosecuting Attorney, for relator.

      Hawley & Eldred, for respondent.

       For the application of statutes regulating practice of medicine to persons giving special kinds of treatments, see notes in 3 L. R. A. (N. S.) 762; 24 L. R. A. (N. S.) 103; 25 L. R. A. (N. S.) 1297, and 33 L. R. A. (N. S.) 179.
      Upon the constitutionality of regulations as to practice, see ¡note in 14 L. R. A. 581.

   Steere, J.

In this proceeding relator seeks by mandamus to compel respondent to set aside an order quashing an information filed in the circuit court of Ionia county charging one D. J. Healey with having from the 15th of August, 1913, to the 23d of March, 1914, wilfully and illegally engaged in the practice of medicine in the city of Belding in violation of the provisions of Act No. 237, Pub. Acts 1899, and acts amendatory thereto.

The record discloses a complaint, warrant, arrest, preliminary examination before a magistrate, and holding for trial in the circuit court according to the regular course of procedure in criminal prosecutions, followed by filing this information, arraignment in the circuit court, refusal to plead, the entry of a plea of not guilty by order of the court, and, when the case was brought on for trial, a motion to quash said information and discharge the accused because of the invalidity of the act under which it was filed, which motion was granted.

The record does not contain any testimony taken on the preliminary examination, and the only official information as to what the accused actually did, aside from practicing medicine without a license in violation of the provisions of said statute, stated in phraseology purporting to follow the statute with proper allegations negativing exceptions, is that:

“The said D. J. Healey then and there wilfully and illegally did advertise and hold out to the public himself as being able to treat, cure, and alleviate human ailments and diseases, and claiming to be capable of curing diseases and human ailments, and did then and there, for hire and reward, treat for diseases, prescribe for, and advise as to health and diagnosis, and give consultation and advice as to health and disease, divers persons, and did then and there attempt to treat, cure, and relieve human diseases, ailments, defects, and complaints of physical and mental origin, by attendance, advice, appliances, manipulations, divers persons, and did then and there treat and attempt to cure of ailments and disease one Albert Hammond and divers other persons then and there consulting him, contrary to the provisions of” said act and to the form of the statute in such case made and provided, etc.

It is stated, however, in the people’s brief that the prosecuting attorney admitted, at the time said motion to quash such information was presented and argued, that he did not claim, or propose any proof tending to show, that the accused made use of drugs, but would prove that he designated himself as a “chiropractor,”, and engaged in the practice of the system of that so-called school; that the proofs would show that he treated his patients in attempts to cure disease and relieve suffering by manipulation of the spine and muscles of the back.

The scope of the information being accepted as settled by this concession, the trial court, after argument, granted said motion, holding the act of 1899, as amended in 1913 (Act No. 368, Pub. Acts 1913), unconstitutional, for the reasons, briefly stated, that its title, relating only to the examination, regulation, licensing, and registration of physicians and surgeons and punishment for offenders against said act, did not include nor apply to persons assuming to treat diseases by mere manipulation, without surgery or the use of drugs and medicines; that the provisions of section 9 of said act, as amended, defining the practice of medicine, is both beyond the scope of said title and unconstitutional, in the further particular that it is “unreasonable, unjust, and deprived citizens of this State of their liberty, rights, and equality before the law;” that the provisions of section 7 regarding licensing persons who claimed to cure disease otherwise than by surgery, drugs, and medicines is not only beyond the purview of said title, but in its terms “confusing, conflicting, and contradictory, insomuch as to render the law incapable of construction or enforcement as to that paragraph.”

A motion to set aside the order quashing said information being denied, application was made to this court for mandamus.

The substance of the attack upon this information is that it rests upon amendments to the act of 1899, passed without changing the original title, which provide for licensing persons desiring to practice a system of treatment of human ailments without resort to drugs, medicine, or surgery, subjecting them to the punishment provided in said act for practicing medicine without a' license, and in the concluding paragraph essays to stamp them beyond question as medical practitioners by coining the following definition:

“In this act, unless otherwise provided, the term ‘practice of medicine’ shall mean the actual diagnosing, curing or relieving in any degree, or professing or attempting to diagnose, treat, cure or relieve any human disease, ailment, defect or complaint, whether of physical or mental origin, by attendance or by advice, or by prescribing or furnishing any drug, medicine, appliance, manipulation or method, or by any therapeutic agent whatsoever.”

This sweeping effort at definition, with all provisions “otherwise” taken into account, would render criminal numerous gratuitous and humane acts of relief and kindness to the suffering common amongst mankind in all ages and places. The police power of the State, though comprehensive, is scarce adequate to compass the’possibilities of such a definition, and it is difficult to discern in the title of the act any warning of a purpose to make such a definition a part of the law of this Commonwealth. That attribute of sovereignty known as “police power,” though difficult of definition, includes the power of legislation deemed essential for protection of the public peace, good order, morals, safety, and health. Preservation of the public health is universally recognized as a matter peculiarly within the police power, and to that end it is competent to control, under proper legislation, the activities of those who claim especial skill or knowledge in the healing art, and who seek for gain to engage as a business in the practice of their art upon the public, to regulate such practice, to prescribe qualifications necessary to be possessed by persons making such pretensions, and to grant them licenses before they may engage in the serious business of treating human ailments as a vocation. The power to license involves the power to prohibit and punish those attempting to practice the healing art without a license.

The title of the original act under consideration is:

“An act to provide for the examination, regulation, licensing and registration of physicians and surgeons, and for the punishment of offenders against this act, and.to repeal acts and parts of acts in conflict therewith.”

The amendment of 1913 refers to the original act by title and proposes to amend sections 3, 7, 8, and 9. Otherwise than as pointed out and as applied to “those persons who desire to practice (and do practice) a system of treatment of human ailments and disease without the use of drugs and medicines,” the amendments of 1913 are, in detail, of slight importance here.

The respondent, against whom this information is filed, does not claim to hold or to have .applied for a license under any provision of the act. He claims to be without the pale and purpose of the act as expressed in its title. His defense is that he is neither a physician nor surgeon, and does not practice medicine within any meaning of the title in question, and that, as applied to the things with which he is charged, such legislation is in any aspect unconstitutional and void, because it would operate to abridge his privileges and immunities as a citizen of the United States, to deprive him of his property — the right to earn — without due process of law, and thus denies him equal protection under the law.

The issue here is the validity of this information. It turns, in our opinion, upon the two questions of whether that with which the accused is charged can, in common acceptation and as generally construed by the courts, be regarded as engaging in the “practice of medicine,” and whether the title of the act is sufficiently broad to include the same. If so, the information is good under the original act, irrespective of the amendments.

In Reetz v. Michigan, 188 U. S. 505, 23 Sup. Ct. 390, appealed from this court (People v. Reetz, 127 Mich. 87 [86 N. W. 396]), in an opinion written by Justice Brewer, it is said:

“The power of a State to make reasonable provisions for determining the qualifications of those engaging in the practice of medicine, and punishing those who attempt to engage therein in defiance of such statutory provisions, is not open to question. Dent v. West Virginia, 129 U. S. 114 (9 Sup. Ct. 231); Hawker v. New York, 170 U. S. 189 (18 Sup. Ct. 573), and cases cited in the opinion; State, ex rel. Burroughs, v. Webster, 150 Ind. 607 (50 N. E. 750, 41 L. R. A. 212), and cases cited.”

Does the title of this act cover and apply to the practice of medicine? It is not so stated in express language, and respondent contends that:

“The act is not one for the regulation of the practice of medicine, but is an act for the regulation of physicians and surgeons.”

The act is not only one to regulate, but to examine, register, and license, them. The police power to license, as indicated in said title, is the recognized power to authorize persons to engage in vocations which need special surveillance without which they would not be permitted. The object of this act would be no more clearly expressed if it proposed to provide for licensing physicians and surgeons to practice medicine and surgery. An act to license a class of persons designated by their trade, profession, or business is commonly understood to mean, and can only mean, to authorize and legally qualify them to pursue the vocation or business which the identifying names used necessarily point out. The subject-matter of this statute is fairly stated and indicated by its title to be physicians and surgeons in the pursuit of their calling — the practice of medicine and surgery— and it distinctly suggests the purpose of the act to be surveillance of such vocation, by examination, registration, license, and regulation. Auxiliary details and collateral provisions depending upon, and germane to, the principal purpose are by rule included, and need not be enumerated at length. The words “persons practicing medicine” are held to be synonymous with “physician” in Harrison v. State, 102 Ala. 170 (15 South. 563).

It needs no citation of authority to sustain the proposition that practicing medicine, surgery, and the healing art' generally or professing to heal the afflicted in any manner by any means as a vocation for hire are related subjects, ostensibly to the same end, naturally affecting one way or the other, and germane to the public health.

In recognition of such relation, although somewhat conversely to the question here, it was held in People v. Phippin, 70 Mich. 6 (37 N. W. 888), that under a law entitled “An act to promote the public health,” a statute prescribing conditions for practicing medicine and punishment of violators was sustained, though by a divided court, and respondent, who claimed to be a “magnetic healer,” and treated the sick for pay according to his so-called system, without complying with the statute, was held properly convicted of unlawfully engaging in the practice of medicine.

We are unable to discern any material difference in scope and meaning between this title and the titles of similar laws in other States passed “to regulate the practice of medicine” dealing with the various activities of those who, assuming special skill and knowledge in the treatment of disease, engage in such work for profit, and which, under such titles, provide for their examination as to qualifications, registration, and license to practice, with resulting punishment for those offending against such provision.

The original act of 1899 and the amendment of 1913 both make it a misdemeanor to practice medicine or surgery in this State without complying with the provisions of the act, the amendment including also advertising in any form or holding one’s self out “to the public as being able to treat, cure or alleviate human ailments or disease.” We conclude that regulation of the practice of medicine, as construed in People v. Phippin, supra, and the great weight of more recent authority in other courts, is a provision fairly related to and naturally suggested by the title in question.

That the practice of various systems of drugless healing which have been devised and exploited from time to time, the respective merits of which the courts cannot and do not.assume to decide, is to be regarded as practicing medicine, has been held in the following States and decisions, as well as many others therein cited, and every feature of the many questions raised so thoroughly analyzed and discussed that any attempt to go over them here in detail would be superfluous duplication: Bragg v. State, 134 Ala. 165 (32 South. 767, 58 L. R. A. 925) (osteopathy); Little v. State, 60 Neb. 749 (84 N. W. 248, 51 L. R. A. 717) (osteopathy); State v. Pollman, 51 Wash. 110 (98 Pac. 88) (osteopathic and magnetic); People v. Gordon, 194 Ill. 560 (62 N. E. 858, 88 Am. St. Rep. 165) (magnetic, healing in the nature of osteopathy); State v. Wilhite, 132 Iowa, 226 (109 N. W. 730, 11 Am. & Eng. Ann. Cas. 180) (neurology and ophthalmology); State v. Yegge, 19 S. D. 234 (103 N. W. 17, 69 L. R. A. 504, 9 Am. & Eng. Ann. Cas. 202) (ophthalmology, or fitting eyeglasses); State v. Adkins, 145 Iowa, 671 (124 N. W. 627) (vital science); State v. Marble, 72 Ohio St. 21 (73 N. E. 1063, 70 L. R. A. 835, 106 Am. St. Rep. 570, 2 Am. & Eng. Ann. Cas. 898) (Christian Science for pay); Witty v. State, 173 Ind. 404 (90 N. E. 627, 25 L. R. A. [N. S.] 1297) (suggestive therapeutics); O’Neil v. State, 115 Tenn. 427 (90 S. W. 627, 3 L. R. A. [N. S.] 762) (functional ray treatment); Parks v. State, 159 Ind. 211 (64 N. E. 862, 59 L. R. A. 190) (magnetic healer); Milling v. State (Tex. Cr. App.) (150 S. W. 434) (manipulation); State v. Johnson, 84 Kan. 411 (114 Pac. 390, 41 L. R. A. [N. S.] 539) (chiropractic); State v. Miller, 146 Iowa, 521 (124 N. W. 167) (chiropractic); State v. Smith, 233 Mo. 242 (135 S. W. 465, 33 L. R. A. [N. S.] 179) (chiropractic); People v. Allcutt, 117 App. Div. 546 (102 N. Y. Supp. 678) (mechano-neural therapy).

The substance of conclusions reached in this line of authority upon the scope of medical practice is comprehensively expressed in Commonwealth v. Jewelle, 199 Mass. 558 (85 N. E. 858), as follows:

“It would be too narrow a view of the practice of medicine to say that it could not be engaged in in any case or class of cases otherwise than by prescribing or dealing out a substance to be used as a remedy. The science of medicine, that is, the science which relates to the prevention, cure, or alleviation of disease, covers a broad field, and is not limited to that department of knowledge which relates to the administration of medicinal substances. It includes a knowledge, not only of the functions of the organs of the human body, but also of the diseases to which these organs are subject, and of the laws of health and the modes of living which tend to avert or overcome disease, as well as of the specific methods of treatment that are most effective in promoting cures. It is conceivable that one may practice medicine to some extent, in certain classes of cases, without dealing out or prescribing drugs or other substances to be used as medicines. It is conceivable that one may do it in other ways than those practiced as a part of their respective systems, by either ‘osteopathists, pharmacists, clairvoyants, or persons practicing hypnotism, magnetic healing,' mihd cure, massage cure science, or the cosmopathic method of healing.’ ”

We are not unmindful of the authorities to the contrary of the foregoing views, some of which can be distinguished by reason of special statutory provisions in their jurisdictions, and others which cannot, but an examination of the many decisions upon the subject which that fruitful source of litigation has demanded leads clearly to the conclusion that the great weight of authority and soundest reasoning sustains the views voiced in the cases cited. In the State of New York, Smith v. Lane, 24 Hun, 632, a leading case to the contrary, has been overruled by People v. Allcutt, supra. The comparatively early case of People v. Phippin, supra, plainly aligned this State with those “refusing to restrict the practice of medicine to the administration of drugs or the use of surgical instruments,” and, although then rendered less binding as a controlling precedent by a division of the court, it has not since been questioned, but on the contrary, both cited with approval by this court and strengthened as an authority by abundant and carefully reasoned decisions in other jurisdictions.

As to other constitutional questions raised, touching the inalienable rights of the accused as a citizen to equal protection under the law, etc., we are well satisfied that not only is the abundant authority elsewhere conclusive to the contrary of the contentions made, but the subject is fully and finally disposed of in People v. Reetz, 127 Mich. 87 (86 N. W. 396), referring in strong approving terms to the Phippin Case as follows:

“Notwithstanding the former decision of this court in People v. Phippin, 70 Mich. 6 (37 N. W. 888), counsel again attack the constitutionality of this legislation. That case settled the question against the contention of the respondent. See, also, People v. Moor- man, 86 Mich. 433 (49 N. W. 263). Counsel argue that such legislation is an interference with the inalienable- right of a citizen when ill to employ anybody he chooses as his physician. This contention is not supported by authority or reason. The practice of medicine affects the public health, and it is clearly within the police power of the State to provide that those dealing with disease shall be amply qualified to do so, so far as human experience and education may qualify them. * * * This legislation has been almost universally sustained by the courts of other States and the Supreme Court of the United States. Among the cases are the following, which we cite without further comment: State v. Dent, 25 W. Va. 1, affirmed in Dent v. West Virginia, 129 U. S. 114 (9 Sup. Ct. 231); State v. Webster, 150 Ind. 607, 50 N. E. 750 [41 L. R. A. 212], and authorities there cited.”

As before suggested, the validity of this information is not contingent upon the legality of provisions relative to licensing in the amended act. That it is within the police power of the State and the scope of the title to so provide, or not, in the discretion of the legislature, we are well satisfied. Neither can the court concern itself with whether “the system of treatment practiced by chiropractors is a separate, systematic, coordinated, and arranged branch * * * which has firmly established its worth,” or merely of the class of alleged methods of treatment without proved merit, often skillfully heralded with extravagant assurances and new-coined names as a thing inspired for the healing of the nations, to which the sick and afflicted searching a cure in their extremity are prone to harken with credulity. Those questions are for the legislative, and not for the judicial, branch of this government. The defendant is charged' with, and has claimed, the skill and right to practice as a profession for profit his system of healing. It may be all he claims for it, but it is a calling directed to the serious business of treating human ailments for the purpose of restoring the sick to health, and directly related to public health, to protect which is peculiarly within the police power of the State. We are not prepared to say that the exercise of that power by this legislation is unwise or unreasonable.

For these reasons, we conclude that the case should have been permitted to proceed to trial under the information filed, and the order quashing said information should be set aside.

Writ granted.

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


author: Moore, J.

text:
    SIMPSON v. OHIO FARMER’S INSURANCE CO.
    Insurance — Dwelling House — Principal and Agent — Authority oe Insurance Agent.
    Where plaintiff applied for insurance upon a frame building which was occupied at the time as a mission house in which religious services were held, and defendant’s agent had knowledge that the policy covered a building used for such purpose, but in issuing the policy a rider was attached to the contract, stating that the policy covered the premises while occupied as a private dwelling, defendant was estopped to claim that the policy was invalid on the ground that it covered only the premises while occupied as a dwelling house, the verdict of the jury determining that the agent was correctly informed concerning the use to be made of the building and that he had authority to write insurance upon a structure used as a mission house.

      Error to Washtenaw; Kinne, J.
    Submitted January 26, 1915.
    (Docket No. 67.)
    Decided March 17, 1915.
    Assumpsit by Martha Simpson against the Ohio Farmer’s Insurance Company. Judgment for plaintiff, defendant brings error.
    Affirmed.

      Floyd E. Daggett, for appellant.

      Lee N. Brown and John P. Kirk, for appellee.

       Upon the effect of the agent’s insertion in the application of false answers to questions correctly answered by the insured, see notes in 4 L. R. A. (N. S.) 607 and L. R. A. 1915A, 273.

   Moore, J.

The plaintiff, the 19th day of October, 1912, took a policy of insurance from the defendant, which described the property as follows: $500 on the two-story shingle roof, frame building and additions, while occupied as a private dwelling house, situate No. 528 Second avenue, Ypsilanti, Mich. The premium of insurance was paid. The application for insurance was an oral one. Proofs of loss were made. The defendant declined to pay the loss, and this suit was brought. The case was tried before a jury. From a judgment in favor of plaintiff in the sum of $450, the case is brought here by writ of error.

In the plaintiff’s declaration was incorporated a copy of the policy. In the amended declaration it was averred:

“That at the time of the procuring of said insurance by said plaintiff of said defendant, the said defendant, through its agent, Edmund Hewett, was notified that the property insured by the terms of said policy was not being used at that time as a dwelling house, but instead thereof that it was being used and occupied as a mission house and a place of holding meetings for religious worship. And the plaintiff further avers that said building so insured by the terms of said policy continued to be used as a mission house and as a house of worship from the time of the issuance of said policy until said building was destroyed by fire as hereinafter described.”

There are many assignments of error, but all of them which are important hinge upon whether the trial court correctly stated the law in the part of his charge reading as follows:

“The principal controversy arises through a clause in what may be termed a rider, but which is nevertheless an essential part of the policy, as follows: ‘While occupied as a private dwelling.’ From that more particularly it is that the controversy in this case has arisen. * * *

“It is the claim of the plaintiff that on or about October 19, 1912, she, through her husband, who was acting as her agent, secured a policy of insurance upon the building located at 523 Second avenue, Ypsilanti, from the defendant company in the sum of $500, and paid the premium therefor.

“It is further claimed on the part of the plaintiff that, at the time she secured said insurance, Mr. Edmund Hewett, the duly authorized agent of the said defendant company, was informed before said policy was issued, and knew at the time of the issuance of said policy, that the building was being used for a meeting or mission house and for other religious purposes and that it would be so used during the life of the policy.

“Now, if you find from the evidence that these contentions on the part of the plaintiff have been sustained_ by the evidence, and you further find, from the evidence, that the company has not been injured by any breach of the conditions mentioned in the policy, and if you further find that said loss did not occur by reason of any breach of any condition in the policy, then the plaintiff is entitled to recover in this case. $ $ ‡

“As I have said to you before, the policy of insurance in this case provided, among other things, that it should remain in force while the building was occupied as a private dwelling. Under the undisputed evidence in this case, this building was never during the life of this policy used as a private dwelling, but wholly as a building for public religious purposes, and, as I said to you before, about this clause arises the principal controversy in this case.

“I instruct you, if you find from the evidence that there was no understanding between the insured— that is, between Mrs. Simpson, who was represented by her husband — and the agent of this company, other than as written in this policy, then there can be no recovery in this case.

“If you find from the evidence that there was no understanding between the insured, Mrs. Simpson, and the agent, Mr. Hewett, that this building was being used, and that it was to be used in the future while the policy was in force, as a mission house and for religious purposes, then the defendant is entitled to your verdict; but, on the other hand, if you find from the evidence that Mrs. Simpson, through her husband, as her agent, stated to Mr. Hewett, as agent of the insurance company, that the building was rented already to Mr. Taylor, who appears to b.e a clergyman, and that it was being used and would be used as a mission house and for religious purposes, then I think the said company is estopped from setting up as a defense in this case that said building was not occupied as a dwelling. That defense must fail, if you do so find.”

It was the claim of plaintiff, and proof was given tending to support the claim, that the agent of the defendant was informed, when application was made for the policy, that the building was used, and was to be used, as a mission house in which religious services were to be held, and that neither the husband of the plaintiff nor the plaintiff read the policy or knew its contents until after the fire.

The agent was a witness and denied that he was told the building was to be occupied for any other purpose than as a dwelling. His authority was not restricted. He had authority to write a policy on the building had it been occupied as a mission house. The agent knew the building and had insured it previously in the sum of $600. He passed it.frequently both before and after the insurance.

“I knew the building, I had passed by it perhaps 100 times and knew it was there. * * * My attention was never called to the fact that this place was being used as a mission house.”

It is insisted all the testimony as to what was told the agent is incompetent. We quote from the brief:

“It is the contention of the defendant that the policy of insurance was perfectly plain, in that it insured certain property therein described only while occupied as a private dwelling house. The language is plain, unambiguous, and therefore needs no outside evidence to explain its meaning. And, further, that the evidence shows, and is admitted, that the building was never so occupied, and that therefore the policy never covered the property.

“If a policy of insurance does not read correctly, it may be amended in a court of equity, says this court in Kleis v. Insurance Co., 117 Mich. 469 [76 N. W. 155], but that in an action of law the contract as written must prevail. The declaration in this case is upon the insurance policy itself. No new count is sought to be added by the amendment. The amendment simply introduces into the original declaration certain oral statements made at the time the agent was approached to write the risk.”

Counsel also cite Wierengo v. Insurance Co., 98 Mich. 621 (57 N. W. 833), and many other cases which may be found in the briefs. In the Wierengo Case it was claimed as a defense to the policy the property insured was mortgaged without the consent of the company. The opinion states:

“Neither the defendant nor its agent, White, had any knowledge of the existence of this mortgage at the time the policy was issued.”

Clearly a different case from the one before us.

In Kleis v. Insurance Co., supra, the plaintiff sought to recover upon an oral contract; the court held there was no oral contract. We quote from the opinion:

“A few days later, the policy which was subsequently issued by the defendant company was received by the plaintiff; and, a week or two after that, she was required to sign an application, which she did. This was the completion of a contract, evidence of which was contained in the two writings, viz., the application and policy, which merged all negotiations and agreements in the writing; and, under innumerable authorities, it is not subject to contradiction or variation by parol in an action brought upon it.”

Clearly not the case before us. Without stopping to analyze the other cases, an examination of them will show them distinguishable.

We think the instant case is within a line of cases of which Gristock v. Insurance Co., 87 Mich. 428 (49 N. W. 634), is an example. Justice GRANT, speaking for the court, said:

“The learned counsel for the defendant in their brief on this hearing insist that certain clauses of the policy were omitted in the former opinion (84 Mich. 161 [47 N. W. 549]), and that similar clauses were never before passed upon in this court. The first clause referred to is the one containing conditions as to mortgage. The policy provided that the company should not be liable

“ ‘If tRe property * * * Is or shall become mortgaged * * * without the assured’s written notice to, and without the written permission of, this company indorsed on this policy.’

“In such case the policy was to be void. As stated in the former opinion, there was no written application, and defendant’s agent was informed by the plaintiff of the mortgage existing upon the property. In obtaining this insurance, this agent represented the defendant and_ not the plaintiff. The plaintiff had concealed nothing, but, on the contrary, had disclosed to the defendant, through its agent, the exact condition of the property. * * * Why, with the more reason, should it not be held to assume the risk of a disclosed incumbrance, which, for some reason, it has not seen fit to indorse upon the policy? The only difference between that case and this one is that this policy required a written notice by the assured, and' permission to be indorsed upon the policy. But, if the attention of the assured in that case had been called to the condition, it would as certainly have avoided his policy as would the clause now under consideration. The principle is the same in both cases,' and both must be governed by the same rule. Plaintiff had a right to rely upon the assumption that his policy would be in accordance with the terms of his oral application. If the defendant desired to make it anything different, it should, in order to make it binding upon plaintiff, under the authorities in this State, have called his attention to those clauses which differed from the oral application.”

See Crouse v. Insurance Co., 79 Mich. 249 (44 N. W. 496); Russell v. Insurance Co., 80 Mich. 407 (45 N. W. 356).

The case of Gristock v. Insurance Co., supra, is cited with approval in Hartford, etc., Ins. Co. v. Cartier, 89 Mich. 41 (50 N. W. 747).

In Pollock v. Insurance Co., 127 Mich. 460 (86 N. W. 1017), notice was given to the agent of the insurer of the proposed removal of the insured goods to another building, and the company was held bound, though the consent was not indorsed on the policy. The court referred to Maryland Fire Insurance Co. v. Gusdorf, 43 Md. 506, and quoted from the opinion as follows:

“Since that decision the doctrine of equitable estoppel has, especially in insurance cases, been extended and applied at law as well as in equity, by adjudications of the courts of last resort in many of the States, and the current and weight of judicial precedent and authority in this country have established the proposition that, in such cases, the estoppel is equally available in either tribunal. The Supreme Court, in Wilkinson’s Case, 13 Wall. 222, has also in a very able opinion sustained this position. * * * 'The principle is that, where one party has, by his representations or_ his conduct, induced the other party to a transaction to give him an advantage, which it would be against equity and good conscience for him to assert, he would not, in a court of justice, be permitted to avail himself of that advantage.’ This proposition, thus sustained by the modern decisions, and founded in reason and justice, they add, does not admit that the written instrument may be contradicted by oral testimony, but goes upon the idea that it may be shown by such testimony that the written instrument cannot be lawfully used against the party whose name is signed to it.”

The opinion in Pollock v. Insurance Co., supra, concludes as follows:

“There could be no possible question about the authority of Gaukler to consent to the removal of these goods, and, he and the company having knowledge of their removal, it became the duty of the company to do one of two things — either consent to the removal, or cancel the policy and return the unearned premium. It could not retain the premium, and thus profit by it in case there was no loss, and, the moment there was a loss, deny any liability, though still retaining the premium. McGraw v. Insurance Co., 54 Mich. 148 (19 N. W. 927); Haire v. Insurance Co., 93 Mich. 481 (53 N. W. 623, 32 Am. St. Rep. 516) ; Ætna Ins. Co. v. Maguire, 51 Ill. 342; Goit v. Insurance Co., 25 Barb. [N. Y.] 189; Hathorn v. Insurance Co., 55 Barb. [N. Y.] 28.”

The case of Dowling v. Insurance Co., 168 Pa. 234 (31 Atl. 1087), is in many respects like the one before us. That case was assumpsit upon a policy of fire insurance. At the trial it appeared that the policy was for $5,000 covering a dwelling house and household furniture. The building was described in the policy as being “occupied by insured as a dwelling house only.” The evidence showed that the house was used as a boarding house, but that the agent who wrote the policy was fully informed of this fact by plaintiff, and that plaintiff did not read the policy until after the trial. Further facts appear by the charge of the court. We quote from the opinion (page 239 of 168 Pa., page 1087 of 31 Atl.) :

“The fraud or mistake of an insurance agent within the scope of his authority will not enable his principal to avoid a contract of insurance to the injury of the insured who acted in good faith, and the fraud or mistake of the agent may be proved by parol evidence notwithstanding it is provided in the policy that the description of the property shall be a part of the contract and a warranty by the insured. This is clear upon principle, and it is abundantly sustained by authority. Smith v. Farmers’ & Mechanics’ Mutual Fire Ins. Co., 89 Pa. 287; Eilenberger v. Protective Mutual Fire Ins. Co., 89 Pa. 464; Susquehanna Mutual Fire Ins. Co. v. Cusick, 109 Pa. 157; Kister v. Lebanon Mutual Ins. Co., 128 Pa. 553 [18 Atl. 447, 5 L. R. A. 646, 15 Am. St. Rep. 696]; Meyers v. Insurance Co., 156 Pa. 420 [27 Atl. 39]. This case is much stronger for the plaintiff than those above cited. In all of these, written applications had been signed by the insured, and in each case the application was made a part of the contract. In this case no written application was made, and the policy was written by the agent and not read by the insured until after the fire. The building insured was built for and used as a boarding house, and was erroneously described in the policy as ‘occupied by the insured as a dwelling only.' The testimony was clear and uncontradicted that there was no mistake or deception on the part of the plaintiff, who fully and accurately described the property to the agent as a boarding house and spoke to him of its capacity and use. It was seen and examined by the agent, and its use, which was apparent, was fully known to him. The misdescription was his act alone, in the face of light and knowledge, and was unknown to the insured until after the loss occurred. The defendant cannot be released from its contract because the plaintiff acting in good faith accepted without examination the policy written by its agent.”

See, also, Westchester, etc., Ins. Co. v. Earle, 33 Mich. 143; Kitchen v. Insurance Co., 57 Mich. 135 (23 N. W. 616, 58 Am. Rep. 344); Carpenter v. Insurance Co., 61 Mich. 635 (28 N. W. 749); Cronin v. Fire Ass’n, 119 Mich. 74 (77 N. W. 648).

In the instant case the jury by their verdict have found that defendant's agent was truly informed of the use which was to be made of the building. The record shows he had authority to write insurance on a building so used. He issued a policy which did not truly state the use to be made of the building. Applying the principles of law stated in the opinions we have cited to the instant case, we think it should be said the company is now estopped.

Judgment is affirmed.

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


author: Ostrander, J.

text:
    PEOPLE v. STEERE.
    1. Divorce — Conflict of Laws — Husband and Wife — Marriage— Criminal Law.
    In a prosecution for desertion brought against the respondent husband, who had been divorced under the law of the State of Illinois, in which State it was provided by statute that neither party should remarry within one year after the granting of the decree, respondent, who had not acquired a residence in Michigan, and who came to Michigan to avoid the effect of the Illinois statute, should have been discharged by the court upon the trial upon the ground that the second marriage to the complaining witness in the State of Michigan within the prohibited period was unlawful and void notwithstanding the fact that under the law of the State of Michigan the marriage would have been valid, if the parties had acquired a matrimonial domicile.
    2. Criminal Law — Abandonment.
    Marriage by a divorced person in violation of the statute of the State in which he had previously had a domicile prohibiting remarriage within the period of one year of the decree of divorce, was invalid wherever celebrated: the incapacity to contract marriage imposed by the policy of the foreign. State to protect the morals and good order of its citizens will be enforced in this State upon grounds of public policy; although the distinction might be made between a marriage that was celebrated in a State or country wherein the parties had acquired a domicile and a marriage outside the State of domicile by a respondent who was endeavoring to evade the effect of the statute.

    3. Same — Husband and Wife — International Law.
    If the respondent had obtained a valid domicile in the State of Michigan at the time of his second marriage, its validity would have been beyond question even in the State of original domicile in the event of the respondent’s returning to live there; but testimony that the second wife acted in good faith, and later returned to Michigan where respondent visited her twice, did not validate the ceremony.
    4. Same — Comity.
    There appears to be no rule of interstate comity that requires courts of the State of Michigan to enforce the prohibition of another State against remarriage within, a stated period following a decree of divorce.
    5. Same — Abandonment—Criminal Law.
    Neither party having acquired a domicile in the State of Michigan, there was no abandonment of the complaining witness by her husband within the meaning of Act No. 144, Pub. Acts 1907 (4 How. Stat. [2d Ed.] § 11539).
    Error to Cass; Des Voignes, J.
    Submitted January 21, 1915.
    (Docket No. 129.)
    Decided March 17, 1915.
    Clarence E. Steere was convicted of deserting his wife.
    Reversed; respondent discharged.

      Grant Fellows, Attorney General, and' Asa. K. Hayden, Prosecuting Attorney, for the people.

      C. M. Lyle, for respondent.

      In September, 1914, respondent, who had been brought from the State of Illinois in extradition proceedings, was informed against, charged with deserting and abandoning his wife on October 13, 1913, at Mason township, Cass county, Mich., without providing necessary and proper shelter, food, care, and clothing for her. Being arraigned, he stood mute, and upon a trial was convicted and sentenced to pay his said wife $15 a month, and to execute a bond to secure such payment. He complains of various rulings of the trial court; the principal errors alleged being the refusal to direct a verdict in his favor and to give his requests to charge. Two principad questions are presented; one that the testimony does not prove abandonment of his wife; the other that he is not her husband. The facts are not disputed. It appears that respondent is a citizen of Illinois, domiciled' at Chicago since 1896. In 1904 (December 13th), he married there Mona L. Rothe. In January, 1913, his said wife applied for and was granted (April 2, 1913) a divorce on the ground of cruelty, the decree specifying:
    “But neither party shall marry again within the time forbidden by statute, unless they remarry each other.”
    The statute of Illinois provides, the cause for divorce being as stated, that neither divorced party shall marry again within one year after the granting of the decree, and that, if they do, the marriage so contracted shall be absolutely void, unless they remarry each other. The supreme court of that State has ruled that:
    “A marriage contracted in disregard of the prohibition of the statute, wherever celebrated, will be void.” Wilson v. Cook, 256 111. 460, 100 N. E. 222, 43 L. R. A. (N. S.) 365; Hurd’s Rev. St. (1911) c. 40, § la.
    Respondent and Shirley Ross (who knew that, he was a divorced man, and was informed by him that his divorce had been granted in November, 1911) were married at St. Joseph, Mich., June 2, 1913. They were in St. Joseph four hours, returned to Chicago the same day, and lived there as husband and wife until July 19, 1913. On the last-mentioned day Shirley went to Cass county, Mich., to the home of her father, being ill, and respondent visited her there twice, staying a couple of days each time. The last time was October 13, 1913. Shirley expected to go back to Chicago until May 9, 1914. Her father was resident in Chicago until the spring of the year 1913. She testified:
    “I came out here for the purpose of getting well and recuperating, and then expected to go back shortly, but he wouldn’t allow me.

      “Ql How long did you continue to intend to return to your husband in Chicago, Illinois?

      “A. I intended to until when I went up there in May, 1914. * * *

      “Q. You considered your home in Chicago up until that time with your husband?

      “A. Yes.”
    The first, and divorced, wife began, or threatened to begin, proceedings to annul the decree of divorce. She threatened to have respondent arrested for his second marriage unless he remarried her. Respondent thereupon remarried his first wife October 6, 1913, the ceremony being performed by the judge who had granted the divorce.
    Shirley visited respondent in Chicago September 20, 1913, remaining four days, staying with respondent at a hotel on September 23d. She again saw him in Chicago November 18, 1913, and May 9, 1914. On these occasions he refused to have anything to do with her, telling her he was in. trouble, that she would be better off at home with her people, who could support her, which he said he could not do. She learned in June, 1914, that he remarried his first wife, and had him arrested, charged with committing adultery. What became of that proceeding is not disclosed.
    The trial court, considering the statute (Act No. 144, Pub. Acts 1907) and the opinion of this court in Re Price, 168 Mich. 527 (134 N. W. 721, Am. & Eng. Ann. Cas. 1913C, 594), ruled that it had jurisdiction, declined to instruct the jury that respondent’s marriage with Shirley was void, and submitted to the jury whether the wife (Shirely) was a party to defendant’s confessed purpose and attempt to avoid the law of Illinois and the condition of the decree by a marriage outside of that State, making her good faith an element necessary to be established in order to convict respondent.

       For the laws governing the validity of a marriage, generally, see notes in 57 L. R. A. 155; 11 L. R. A. (N. S.) 1082; 17 L. R. A. (N. S.) 800; 26 L. R. A. (N. S.) 179; 28 L. R. A. (N. S.) 753, and 43 L. R. A. (N. S.) 355.

   Ostrander, J.

(after stating the facts). Something is claimed by the people on account of the fact that Shirley Ross came to Michigan by the consent of respondent, was here visited by him, and was here when, upon the development to her of the real situation, he refused to further provide for her. In essence, however, the contention of the people is, and must be, that respondent must be considered to be the husband of Shirley Ross because the ceremony of marriage was performed in Michigan with due formality.

Excepted from the general rule that a marriage, valid according to the law of the State or country where it is celebrated, is valid everywhere, are marriages prohibited from motives of public policy by the public law of the State or country in which they are questioned. The supreme court of Illinois, in the decision already referred to, after a citation of authorities, said:

“These cases sustain the principle that, where a State has enacted a statute lawfully imposing upon its citizens an incapacity to contract marriage by reason of a positive policy of the State for the protection of the morals and good order of society against serious social evils, a marriage contracted in disregard of the prohibition of the statute, wherever celebrated, will be void.”

This is in keeping with numerous decisions in other jurisdictions, in which a similar policy is evidenced by statute. See Lanham v. Lanham, 136 Wis. 360 (117 N. W. 787, 17 L. R. A. (N. S.) 804, 128 Am. St. Rep. 1085), and cases collected in the opinion. In the application of the general rule, and the exception, a distinction may be made, and it has been made, between the marriage of persons celebrated in a State or country in which they have acquired a domicile and the marriage, outside the country of the prohibition, of persons domiciled within it; persons who are married elsewhere to escape the effect of the prohibition. Such a case is State v. Fenn, 47 Wash. 561 (92 Pac. 417, 17 L. R. A. [N. S.] 800).

Assuming the indicated position of the courts to be correct in principle, what is the status of persons thus violating the law of their domicile in other States in which the validity of the marriage is brought in question, and, to be more precise, what is their status under such circumstances in States in which a public policy similar to that of the State of the domicile of the parties has not been declared by statute? In the State of Michigan the court granting a decree of divorce may provide in the decree that the party against whom any divorce is granted shall not marry again, etc., and, if a marriage is celebrated contrary to the decree, the guilty person “shall be deemed to have committed the crime of bigamy and shall be subject to the pains and penalties therefor.”

The rule that statutes of a State have, generally, no extraterritorial effect is familiar. If respondent and Shirley Ross had intended to acquire, and had acquired, a domicile in Michigan before or at the time the Michigan marriage was celebrated, the validity of the marriage could not be here successfully questioned; upon the authority of State v. Fenn, supra, it could not be successfully questioned in Illinois if, later on, they returned to that State to live. This being true, it must also be true that no personal disability to contract marriage in another State attended respondent. No impediment to such a marriage, save that interposed by the Illinois law, existed. Whatever public policy is evidenced by the Michigan law, it is directed rather to the controlling of the party guilty of marital wrongs than, generally, at parties to a divorce proceeding. +There appears to be no rule of State comity which requires the courts of this State to recognize and to enforce here the prohibition of the Illinois law, and no such rule is suggested. Nevertheless I must hold that respondent has not abandoned his wife in Michigan. He never acquired a domicile in this State. This State is not the matrimonial domicile of respondent and Shirley Ross, nor was it ever intended to be. Shirley Ross acquired no domicile here through respondent or her relation to him. The case is one of first impression, but I think it impossiblé to defend the proposition that because the marriage ceremony was performed in this State she can claim here to be wife of respondent ; that by mere removing of herself from her matrimonial domicile, in which she is no wife, she becomes, the State line being crossed, an abandoned wife in Michigan.

An argument may be made, reaching the same conclusion, based upon the proper construction and application of the statute under which respondent is charged. It is true, as was said by the learned trial judge, that it applies in terms to any person who deserts and abandons his wife. It is entitled:

“An act to prevent the desertion and abandonment of wife; * * * to make such abandonment and desertion a felony and to prescribe the punishment therefor; to provide for the care of the dependent wife and children. * * * ”

It would not be contended that, if a wife from another State, where was the matrimonial domicile, removed herself to Michigan and claimed here to have been thereafter abandoned by a husband who had not changed his domicile, the husband would be amenable to the statute, although a husband, domiciled here, who flees the State, abandoning and intending to abandon his wife remaining here, may undoubtedly be brought to book.

Decision that the conviction should be set aside and respondent discharged is based solely upon the ground that Shirley Ross does not occupy in this State the position of an abandoned wife; the people of the State being therefore not concerned.

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


text:
    CENTRAL CITY LUMBER CO. v. WEBER.
    Contracts — Implied Agreements — Material Men — Liability of Owner to Material Men.
    In an action brought by a corporation which furnished material to defendant’s contractors who were engaged in constructing a house under a building contract, evidence that plaintiff presented its claim to the owner and received from him a promise to pay the obligation, which was denied by the testimony of the defendant, in the absence of proof of a promise to forbear the filing of a lien under the mechanic’s lien law, did not sustain a judgment for the plaintiff; and no implication arose from the testimony that because plaintiff had told defendant it would hold the property and did not hold it for the obligation it must have been understood by defendant that it had abandoned its right to a lien in reliance upon the promise to pay the obligation.
    Error to Jackson; Parkinson, J.
    Submitted January 26, 1915.
    (Docket No. 54.)
    Decided March 17, 1915.
    Assumpsit in justice’s court by Central City Lumber Company against Andrew Weber for lumber and materials furnished to defendant. From a judgment for defendant plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed ; new trial denied.

      A. O. Reece, for appellant.

      Lyman B. Trumbull, for appellee.
   Ostrander, J.

Plaintiff furnished certain material to contractors who had undertaken to construct a house for defendant. The cost of the material was charged to the contractors on plaintiff’s books. The contractors abandoned the job, and defendant procured it to be finished. The cost of the material had been estimated by plaintiff, and all of it had been ordered by the contractors. The last material seems to have been furnished October 4, 1913. The balance left unpaid was $112.38. Plaintiff sued the owner for the unpaid balance, and recovered. The jury was instructed, in part, as follows:

“It is not enough that the defendant, Mr. Weber, simply promised to pay to the plaintiff company a debt owing to it by Andrews and Vogt. There is no written evidence signed by Weber to sustain such a ■claim, and, if that is all or the most you can find from the evidence, your verdict must be for the defendant. For such a promise to be valid and binding, it must be supported by a valid and valuable consideration. The consideration here claimed is to assume and pay the balance owing by Andrews and Vogt to plaintiff ■company on the understanding that plaintiff would not place a lien upon Weber’s property for this claim, and that it did not do so and gave up or abandoned its right to secure itself by such arrangement or understanding. Was there such an understanding on the part of both parties? Was that understanding performed on the part of the plaintiff company? When I say, was there such an understanding on the part of both parties, did they by their talks mean and understand each other that plaintiff would not put any lien on, would give up any right it had to put a lien on, and thereby secure itself, relying on the promise of the defendant to pay the debt? And did the plaintiff company forego its lien, let the time go by, and lose its opportunity to secure itself in reliance upon that promise, and did the defendant, Weber, so understand it? If there was such an understanding, it is evidenced by the two conversations had between Finch and Weber.

“I am not going to try to give all of what Finch testified to on that subject, nor all of what the defendant testifies to on that subject. You have heard the testimony, and it has been discussed here by the attorneys. But I shall refer to part of it and. what I may consider the very essential part.

“In the first conversation had over the phone, the plaintiff claims that Finch told Weber the company intended to hold the job anyway for its bill, and that Weber said, ‘All right.’ In that conversation there is no claim that Weber made any promise to pay, but, if that talk was had, he was informed that plaintiff intended to secure its pay by holding the job anyway, and plaintiff claims it was by such language understood by both parties that the company would place a lien on the property to secure itself. In other words, by the use of the language ‘it would hold the job for it,’ ‘hold the job anyway,’ it meant to put a lien on, which would be security and hold the job.

“Plaintiff claims there was a later talk between Finch and Weber when $200 was paid in by Weber, in which talk Weber asked for more time, and Finch said_ ‘All right, so long as you will pay it,’ and Weber replied, T will pay it,’ and plaintiff claims, it did thereupon, and in reliance upon such conversations, and because of it, let the time go by for securing itself by a lien upon the property, and thereby lost a security if might have had.

“In giving to you what I say their claims are, I have not covered all the language of those conversations, and it is for you to say what the conversations really were and what the parties meant by it and what the effect of the conversation was.

“But, if you find from a preponderance of the evidence, which means the greater weight of the evidence, in this case, that the defendant, Weber, for the purpose of inducing or prompting plaintiff to forbear filing a claim of mechanic’s lien, which lien plaintiff was then entitled by law to file, by promising plaintiff to pay the account in question, and said plaintiff relied upon such promise, and for that reason did not file a lien against the property of said defendant during the time when the same by law could be claimed — that is to say, within 60 days after the last of these materials were furnished — then under such state of facts, if you find they exist, I charge you that plaintiff’s forbearance to file a lien, and thereby relieving defendant’s property of the incumbrance, would be a good and valid consideration for defendant’s promise to pay it, and he would be liable therefor.”

Appellant contends there was no testimony warranting this instruction. In this I think he is right. There is testimony tending to prove that defendant said he would pay the debt, and that after all material had been delivered he asked for and was promised time in which to pay it, none tending to prove that the consideration for the promise was forbearance by plaintiff or an agreement on its part to forego the filing of a lien. It is not necessary to set out the testimony. Plaintiff’s witnesses do not claim there was any such agreement. Defendant denies that he ever promised to pay the debt.

Plaintiff relies upon an implication, namely, that because it once told defendant that, it would hold the property, and did not hold it (meaning by a mechanic’s lien), and defendant afterwards said he would pay the debt, it must have been understood by defendant that plaintiff was relying upon the promise and would therefore forego the lien. This is by no means the necessary, nor do I think it the proper, implication from the testimony.

The judgment is reversed, and there seems to be no reason for ordering a new trial.

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