author: Montgomery, J.

text:
    PRATT FOOD CO. v. BIRD.
    1. Injunction — Equity Jurisdiction — Injury to Business.
    Though equity will not enjoin a criminal prosecution, nor transfer to its own jurisdiction the trial of a criminal case, nor, as a general proposition, interfere to restrain the publication of a libel, an injunction will issue to restrain the State dairy and food commissioner from placing in the hands of every dealer in the State a bulletin which in effect threatens them with prosecution in case they make use of complainant’s products in a form in which they are lawfully sold.

      %. Statutes — Subjects and Titles — Suepicienoy.
    If what is introduced into a statute by way of amendment might have been incorporated in the act under its original title, the subject of the amending act is germane to the title of the original act under section 20, article 4, of the Constitution.
    3. Same — Food Law.
    A provision fixing a standard of pure food, and providing means to prevent deception in the sale of such food, is within the title of an act to provide for the appointment of a dairy and food commissioner, and to define his powers and, duties and fix his compensation.
    4. Food — Statutes—Application.
    A preparation sold as a “food” in packages the labels of which, though they state that it is not sold as a feeding stuff, state that it fattens stock, makes them grow larger and healthier, etc., is subject to regulation under a statute (Act No. 12, Pub. Acts 1905, section 18) applying to “all condi - mental stock foods, patented and proprietary stock foods, claimed to possess nutritive properties and all other materials intended for feeding to domestic animals.”
    Appeal from Ingham; Wiest, J.
    Submitted January-24, 1907.
    (Docket No. 31.)
    Decided July 1, 1907.
    Bill by the Pratt Food Company against Arthur C. Bird, State dairy and food commissioner, to enjoin the publishing of a bulletin warning the public against buyr ing or selling complainant’s preparations. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    Thomas, Cummins & Nichols (Walter C. Rodman, of counsel), for complainant.

      John F. Bird, Attorney General (George 8. Law and Charles W. McGill, of counsel), for defendant.
   Montgomery, J.

The bill in this case is filed to restrain the defendant, his clerks, and employés from writing, printing, issuing, publishing, or sending out any bulletin, writing, publication, or notice, to the effect that complainant’s preparations, sold as Pratt’s Food for Horses and Cattle, Pratt’s Poultry Food, and Pratt’s Animal Regulator, or either of them, are not licensed under Act No. 12, Pub. Acts 1905, and warning the public against buying or selling these preparations. The bill sets out that the defendant asserts and claims that these preparations come within the terms of the act, and that, unless restrained by injunction, he will so assert by bulletins issued to the trade, and by this method intimidate dealers and prevent their purchasing complainant’s products. (We are stating simply the substance of the averments in brief.) It also asserted that the effect of such bulletins will be to destroy and ruin the complainant’s trade and work irreparable injury. Upon the hearing below the bill was dismissed, and the complainant appeals. Three questions are presented upon the record: First, whether, in view of the case, complainant is entitled to the remedy here invoked; second, whether Act No. 12, Pub. Acts 1905, is constitutional; third, whether, if it be constitutional, the complainant’s products come within the terms of the statute.

The statute in' question is an amendment of Act No. 211, Pub. Acts 1893, entitled “An act to provide for the appointment of a dairy and food commissioner, and to define his powers and duties and fix his compensation,” and, by section 18 of the act, it is provided:

“Any manufacturer, company, person or persons who shall sell, offer or expose for sale or for distribution, in this State, any concentrated commercial feeding stuff used for feeding live stock, shall furnish with each car, or other amounts shipped in bulk, and shall affix to every package of such feeding stuff, in a conspicuous place, on the outside thereof, a plainly printed statement, clearly and truly certifying the number of net pounds in the car or package sold or offered for sale, the name or trade-mark under which the article is sold, the name of the manufacturer or shipper, the place of manufacture, the place of business, and a chemical analysis, stating the percentages it contains of crude protein, crude fibre, nitrogen, free extract and ether extract, all constituents to be determined by the methods adopted by the association of official agricultural chemists. Whenever any feeding stuff is sold at retail, in bulk or in packages belonging to the purchaser, the agent or dealer shall furnish to him a certified copy of the chemical analysis named in this section. The term concentrated commercial feeding stuffs as used in this act shall include linseed meal, cotton seed meal, pea meals, cocoanut meals, gluten meals, oil meals of all kinds, gluten feeds, maize feeds, starch feeds, mixed sugar feeds, hominy feeds, rice meals, oat feeds, corn and oat feeds, meat meals, dried blood, clover meals, mixed feeds of all kinds, slaughter house waste products; also all condimental stock foods, patented and proprietary stock foods, claimed to possess nutritive properties and all other materials intended for feeding to domestic animals. # $ * »

A penalty is provided for the violation' of this provision.

It is strenuously insisted by the attorney general, that, if it be conceded that the complainant’s products do not come within the inhibition of this statute, yet no remedy by injunction exists, for the reason that the effect of issuing an injunction is to restrain the prosecution of a criminal proceeding. Numerous cases are cited, among them Arbuckle v. Blackburn, 113 Fed. 625 (65 L. R. A. 864), State, ex rel. Kenamore, v. Wood, 155 Mo. 425 (48 L. R. A. 596), and Pre-digested Food Co. v. McNeal, 1 Ohio N. P. 266. In so far as these cases lay down the rule that a court of equity will not interfere to restrain a public officer from invoking the criminal law and instituting a prosecution for a violation of a statute, they have our full approval. A court of equity will not transfer to its own jurisdiction the trial of a criminal case; and this though the prosecution may fall with some hardship upon the accused party. Nor, as a general proposition, will a court interfere to restrain the publication of a libel. But we held in Beck v. Protective Union, 118 Mich. 497 (42 L. R. A. 407), that injunction will lie to restrain a combination of persons from acts which tend to ruin complainant’s business by bringing to bear upon his customers intimidating and coercive means; The principle which should rule the present case is identical. If the acts which are threatened are unlawful, it cannot be doubted that placing in the hands of every dealer in the State a bulletin which in effect threatens them with prosecution in case they make use of these products in the form in which they are lawfully sold to them, would be to absolutely exclude complainant’s business from the State. The case presented is very similar in this aspect to that of American School of Magnetic Healing v. McAnnulty, 187 U. S. 94, which case involved the right of the postmaster general to exclude the complainants from the use of the United States mails. An order had been made excluding complainants from the use of the mails. The court interfered and held that such order was a violation of the property rights of the person affected and granted relief.

Is the law constitutional ? It is claimed that the law is unconstitutional, in that it violates section 20 of article 4 of the Constitution, which provides that no law shall embrace more than one object, which shall be expressed in its title. It is established by our decisions that, if what is introduced by way of an amendment to an act might have been incorporated in the act under its original title, there is no violation of this section. People v. Gadway, 61 Mich. 285; Attorney General, ex rel. Maybury, v. Bolger, 128 Mich. 355. The question is, therefore, whether, under the original title, a provision fixing a standard of pure food, and providing means to prevent deception in the sale of such food, is within the title of an act to provide for the appointment of a dairy and food commissioner, and to define his powers and duties and fix his compensation. We think the title is within our previous decisions sufficient. It is- obvious to one reading this title that there must have been imposed upon the commissioner certain powers and duties to make his department of any value to the State, and, furthermore, that these powers and duties must have relation to something. It is equally obvious that the relation of these powers and duties must be to the subject which is brought within the department that is created, viz., the dairy and food department. The title is very similar to that which established the insurance bureau. In Connecticut Mut. Life-Ins. Co. v. State Treasurer, 31 Mich. 6, it was held that a title which read “An act to establish an insurance bureau ” was sufficiently broad to cover any pertinent regulations respecting the bureau’s course of action towards those engaged in insurance, and any appropriate provisions -for prescribing the duty due from the insurance companies to the State in the matter of taxation, without violating the constitutional provision.

The question of more difficulty is the question of fact, as to whether the preparations of complainant are concentrated commercial feeding stuffs as defined by the act cited above. It is true the testimony shows that upon each of the labels which accompanied Pratt’s Food for Horses and Cattle was the statement:

“Pratt’s food is a regulator, to be used according to directions, and is not sold as a feeding stuff, nor is it to be fed in place of grain or any other feed.”

But, in addition to claiming medicinal properties for the food, it was also stated how it should be used to fatten and improve stock. It was stated that:

“It fattens both cattle and hogs quickly, makes them grow larger and healthier, and makes their meat tender, more juicy, and better eating.”

It also stated that for horses it “ produces bone, muscle, better staying powers, and improves the wind.” When this statute was enacted, commercial feeding stuffs were on the market, and this fact must have been known to the legislature. In employing the broad language “ all condimental stock foods, patented and proprietary stock foods, claimed to possess nutritive properties and all other materials intended for feeding to domestic animals,” the legislature intended to cover all preparations for which the claim of nutritive qualities was made. Complainant’s preparations come within this language. Similar representations were made in the labels of other preparations. We are of the opinion that the circuit judge was right in holding that all these preparations were within the statute.

The decree is affirmed, with costs.

Blair, Ostrander, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    FRANK v. NEWPORT MINING CO.
    Master and Servant — Personal Injuries — Liability op Master — Contract op Indemnity.
    Where a contract between master and servant, contained in a poster displayed in the master’s buildings, provides for the payment of a sum of money to the widow of an employé killed in the master’s service, upon the execution of a release, if required by the master, by all persons interested in or injured by the death of the employé, a widow cannot maintain an action on such contract until she has tendered a release, if demanded by the master, executed by all persons who would, under the death act, so-called, be entitled to share in the damages recovered for the wrongful act of the master causing death, notwithstanding the poster also contains the statement that employés assume their own risk of accident from whatever cause.
    Error to Gogebic; Cooper, J.
    Submitted February 12, 1907.
    (Docket No. 155.)
    Decided July 1, 1907.
    Assumpsit by Emma Frank against the Newport Mining Company on a contract of indemnity. There was judgment for plaintiff, and defendant brings error.
    Reversed, and judgment entered for defendant.

      Herb. M. Norris (James G. Flanders, of counsel), for appellant.

      James A. O’Neill, for appellee.
   Montgomery, J.

This is an action brought to recover upon a contract for indemnity. The plaintiff’s husband, John Frank, was employed by the defendant as a miner in the Newport mine in the city of Iron wood, and on the 23d day of December, 1905, he was killed by an accident occurring at the mine while in the discharge of his duties. At the time he entered the employ of the defendant there was in existence a benefit club, which continued during all the time that he was thus employed and of which he became and continued a member. The plan of the benefit company was stated in a printed poster put up on the defendant’s premises, and provided in a general way that all employés entering the employ of the mine should pay 30 cents a month into a fund, to which the company should contribute an aggregate equal to the amount received from the employés for that month. The provisions in regard to the disposal of this fund were as follows:

“This benefit fund, collected in accordance with the above provisions, shall be held by this company and paid out by it to those employés whom it shall be determined are entitled to it under the provisions herein set forth.
“ In case of death within six months following and from an accident sustained while a member is discharging his duties as an employé of this company, three hundred dollars will be paid from the benefit fund.
‘ ‘ The money provided by this rule to be paid in all cases of death shall not belong to the estate of the deceased, and shall not be liable to be attached, seized, or taken by or distributed to any creditor or creditors of the deceased; provided the deceased shall leave a living widow, a child or children, a father or mother, and the said money, and the whole thereof so to be paid in case of death as above set forth shall belong to and be the exclusive and absolute money and property of and shall be paid by the custodians of said benefit fund: First, to the widow of the deceased, if he should leave a widow surviving, then to his child, if he shall leave one surviving him, and, if more than one, then to all his children in equal proportions ; third, if he shall leave no widow or children, then to his father, if he be living; fourth, if he shall not leave a widow, child or children, or father living, then to his mother, if living; and, fifth, if'he shall not leave a widow, or child, or children, or father, or mother living, then the sum of money to be paid as aforesaid in case of death shall belong to the estate of the deceased, and shall be paid to the administrator thereof when duly appointed. All money paid under this rule will be paid to the person entitled, or to his or her agent duly authorized to receive the same, and, if a child or children under age shall be entitled to receive said money, or any part thereof, the same shall be paid to his, her, or their guardian when duly appointed, or to the agent of such guardian duly authorized to receive the same, and when so paid all obligations on the part of the benefit fund, and the custodian thereof, under the provisions of this rule, shall have been fully performed and shall cease.”

A further provision stated in this poster was as follows:

“ The receipt of relief from the benefit fund, in case of accident, relieves this company from all liability, and is in lieu of all damages, and said company reserves the' right to retain all sums due for indemnities until a release is properly executed by all persons interested in, or injured by the death or disability of such employé.”

In a statement preceding the statement of the general plan, but a part of the same poster, were the following statements:

“Employers cannot be considered legally responsible for the aid or support of those dependent upon any of the employés. All employés assume their own risk of accidents or illness from whatever cause.”

After the death of John Frank, plaintiff, who was his widow, demanded payment of the $300 indemnity provided in case of death, and payment was refused except upon condition that a release be obtained from those who would, under the death act, be entitled to share in any judgment recovered against the defendant in an action for damages for causing the death of John Frank. Plaintiff thereupon instituted this action and recovered judgment upon a finding of facts and law, the facts found being those above stated, and defendant brings error.

The defendant contends that, as this is an action based upon the contract, the terms of which contract must control, and that by the express and clear terms of the contract the indemnity payable to the plaintiff became due and payable only when a release should be executed by all persons interested in or injured by the death or disability of such employé, if such release should be required by the company, and that this language is susceptible of no other construction than that the company was entitled to demand a release executed by all persons who would, under the death act so-called, be entitled to share in the damages recovered for the wrongful act of defendant causing death. This is by no means a new question to the courts. A similar question has been dealt with in a number of the States in the following cases: Eckman v. Railroad Co., 169 Ill. 312 (38 L. R. A. 750); Pittsburgh, etc., R. Co. v. Moore, 152 Ind. 345 (44 L. R. A. 638); Chicago, etc., R. Co. v. Wymore, 40 Neb. 645; Chicago, etc., R. Co. v. Bell, 44 Neb. 44; Donald v. Railway Co., 93 Iowa, 284 (33 L. R. A. 492); Pittsburg, etc., R. Co. v. Cox, 55 Ohio St. 497 (35 L. R. A. 507).

The reasoning upon which they rest may be stated to be, briefly, this: The contract is not a contract relieving the defendant from the consequences of its own negligence, and, notwithstanding this contract, the party is entitled under the death act to sue and recover in case of death, or the party indemnified himself, if living, can maintain an action for damages as though this contract were not in existence; but the effect of the contract is to give to the party injured, if living, or to those entitled to take an indemnity under the contract in case of his death, an election, and either may, if he so elect, bring an action for the damages, ignoring the contract, or he may, if he can, comply with the conditions upon which the indemnity is payable, accept the indemnity, and upon doing so discharges wholly the right of action based upon the tort.

Construed in this light, these contracts have been sustained as in no way infringing any rule of public policy. The circuit judge was of the opinion in this case that the clause of the contract providing that the receipt of relief from the benefit fund should relieve the company from liability for damages and reserving the right to require a release by the persons interested in, or injured by, the death or disability of such employés could be construed as requiring such release only from those parties who were entitled under the contract of indemnity to take, or who were interested in or injured by the death or disability by reason of such contract. While there is some plausibility in this contention, we feel constrained to hold that the clause, taken as a whole, and the connection in which the terms of the release which may be required are defined, leads to the conclusion that the parties must have intended that the release should include all those who were injured by the death of the employe and would be entitled to recover because of such injury. It is true that, in other portions of the poster or contract, it is provided that this money should be payable to the widow, and that the children dependent upon the deceased are excluded, and it is argued from this that an absolute right is vested in the widow to this fund, and that, therefore, to require a release on behalf of others who are not interested in this fund is to require of her an impossible condition to the exercise of an admitted right. There is some force in this contention,' but the contract must be construed as a whole,.and, if effect be given to the clause authorizing the defendant to require a release, this must act as a qualification of the widow’s right to receive the indemnity, and her right must be considered as a right to receive such indemnity only on condition that she secure a release from all persons interested in or injured by the death or disability of the employe. The case of O’Neil v. Iron Co., 63 Mich. 690, is cited, in which case it was held that a representation that the company could not be made liable for damages for injuries resulting to an employe in any case might be treated as a fraud. It is obvious, however, that this case cannot control here, as no effort is here made to avoid the contract in question, but the action is brought in affirmance of the contract.

. But it is further argued that, as this furnishes a statement of the basis upon which the parties contracted, it is not reasonable to suppose that after representing that there could be no liability for damages, yet the parties contemplated that the release mentioned in the contract would be a release from something which the parties understood could not exist. This is a forceful statement of the contention, and, if the terms of the contract were more doubtful, the consideration suggested might be controlling. But upon careful deliberation we are not able to say that this contract is ambiguous or uncertain in its terms. The defendant contributed to this fund. It had the right to provide for such terms as should afford protection to itself in case of injury to an employé resulting in death or otherwise. It results from what has been stated that the court was in error.

The judgment must be reversed, and judgment entered for defendant, with costs of both courts.

McAlvay, C. J., and Carpenter, Grant, and Blair, JJ., concurred.


author: McAlvay, C. J.

text:
    BROCKMILLER v. INDUSTRIAL WORKS.
    1. Master and Servant — Personal Injuries — Declaration — Sufficiency.
    In an action by a servant against his master for personal injuries, declaration examined, and held, to contain sufficient averments of neglect of duty on the part of the master in not cautioning and instructing plaintiff as to the proper way to use a tool of which he was ignorant, and the great danger attending such use, and also in furnishing plaintiff with a tool not in good repair.

    '2.'’ Same — Cause of Injury — Evidence—Sufficiency.
    Evidence examined, and held, sufficient to sustain a verdict for plaintiff upon the allegation that plaintiff’s injury was caused by a piece of iron flying from the rivet upon which he was working with a pneumatic chipping hammer and destroying his eye.

      3. Same — Fellow-Servants.
    Where a servant was injured by a piece of steel flying from a rivet which he was chipping with a pneumatic hammer, under order of his foreman and direction of his overseer, their failure to instruct him as to the proper way to use the tool, of which he was ignorant, and the danger attending its use, was not the negligence of a fellow-servant, barring his recovery against the master for the injury.
    4. Same — Release—Instructions—Error Favorable to Appellant.
    Where, in an action for injuries to a servant, a release is pleaded, and the evidence shows that plaintiff executed two, the one pleaded not being introduced in evidence, an instruction treating the release as in the case, leaving the question of fraud in its procurement to the jury, and holding that a sufficient tender of the consideration therefor has been shown, is more favorable to defendant than the record warrants, and defendant will not be heard to complain that a verdict should have been directed for it on that issue.
    6.Trial — Conduct of Counsel — Prejudice.
    Improper conduct and remarks of counsel do not amount to reversible error, where the court promptly interfered and reprimanded the attorney, not permitting him to complete his statement, and in his charge instructed the jury to pay no attention to remarks of counsel and give them no consideration.
    6. Same — Order of Proof.
    Where defendant, at the close of plaintiff’s case, announces that no proofs will be offered on its part, it is proper to permit plaintiff to introduce proof which during the trial the court considered rebuttal.
    7. Same — Discretion of Court.
    The matter of permitting plaintiff to put in further proofs after closing his case is within the sound discretion of the trial court, not prejudicial, and not reviewable, except where it clearly appears to be an abuse of discretion.
    8. Appeal and Error — Questions Reviewable — Exoessiveness of Damages.
    Where there is evidence upon which to base the verdict, the question of its excessiveness is one of fact which will not be reviewed, unless brought to the attention of the trial court by a motion for a new trial.

      Error to Bay; Collins, J.
    Submitted February 12, 190?.
    (Docket No. 125.)
    Decided July 1, 1907.
    Case by Louis Brockmiller against the Industrial Works for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Fred L. Vandeveer, for appellant.

      E. E. Anneke (M. L. Courtright, of counsel), for appellee.

       As to duty of master to warn or instruct servant, see note to James v. Rapides Lumber Co. (La. Ann.), 44 L. R. A. 33.

   McAlvay, C. J.

Plaintiff brought suit against defendant for damages for personal injuries claimed to have been suffered by him on account of the negligence of defendant. He was a common laborer in the employment of defendant for several years, and while so employed had been injured twice — once ,on May 6, 1904, which resulted in the loss of the sight of his right eye, and later, having returned to work, he was injured in his left eye. Plaintiff’s declaration contained two counts. Defendant with its plea gave notice of accord and satisfaction as to the claim made under the first count. At the close of plaintiff’s case, defendant moved for an instructed verdict of no cause of action on both counts. Plaintiff then withdrew from the consideration of the jury his claim under the second count. The court denied defendant’s motion. Defendant offered no testimony in the case. It was submitted to the jury upon the plaintiff’s claim stated in the first count, for the injury which caused the loss of his right eye, and a verdict was rendered for $7,000, upon which a judgment was entered. Before considering the errors upon which it is claimed this judgment should be reversed, a brief statement of the facts upon which plaintiff relied will be helpful. He was a common laborer and helper about defendant’s shops, and, without knowledge or skill as a mechanic, claims that he was set to work outside of the scope of his regular employment by defendant’s foreman to use what is known as a “pneumatic chipping hammer,” without knowledge of how to use it, or any instructions that this was a tool requiring skill and experience to be safely operated; that it was powerful, dangerous, and in one respect out of repair; that he was ignorant of all this, and, not appreciating or being informed of the danger, while using the machine, he held it in such a position that a chip of steel from a rivet head, which he was cutting off with this hammer, flew into his right eye and destroyed it.

First. Defendant’s first proposition is that plaintiff should not have been allowed to recover, because of the variance between the allegations of the declaration and his proofs, claiming that the only material allegation of the neglect of duty in the declaration is relative to the condition of the tool as to not being in good order and proper repair. An examination of this declaration discloses that the facts relied upon, as to plaintiff’s ignorance and want of skill, the kind of labor to which he was accustomed, the danger from this tool in the hands of an inexperienced workman, etc., are specifically alleged. Then the duty of the master to properly instruct the plaintiff in the use of the tool, and its dangerous character, is stated, how to hold it to prevent pieces of iron when cut loose from flying into the eyes, “and to have instructed plaintiff fully in the premises, yet plaintiff says that defendant, well knowing its duty as aforesaid and plaintiff’s ignorance in that respect, neglected its duty in the premises, and on said day set plaintiff to work using said machine or tool, and did not then and there have the same in good proper working condition and good repair and order as was its duty, but the same was out of repair, in that, etc., [describing wherein it was out of repair].” The allegation of the neglect of duty on the part of the master to caution and instruct plaintiff is clearly set forth, and is sufficient. Defendant overlooks the fact that plaintiff relied upon a neglect of - duty in not cautioning and instructing plaintiff as to the proper way to use the tool o£ which he was ignorant, and the great danger attending such use, and also upon a neglect of duty in not furnishing plaintiff with a tool in good repair. There was no variance between the declaration and the proofs. The court was not in error in admitting proofs to show negligence in both respects.

Second. Defendant claims that the proof failed to sustain the allegation in the declaration that the injury was caused by a piece of iron flying from the rivet on which plaintiff was working, and destroying his eye. A motion was made to direct a verdict on this account, and a request to so charge the jury was made. Both the motion and request were refused. This was not error. The testimony of the plaintiff and of other witnesses did not leave the jury, as defendant claims, to speculate and conjecture as to the cause of the injury. No one was working near plaintiff at the same kind of work. It was proven that the chisel did not break, and all the evidence upon the subject by expert witnesses was to the effect that plaintiff held the tool in a position which would throw the chips into his face. This was not a case where there was nothing more tangible to proceed upon than two or more conjectural theories, one more probable than the other.

Third. Defendant urges that the court erred in not instructing a verdict in its favor, because the risk, if any, ' was assumed; because plaintiff was guilty of contributory negligence; and because of the negligence of a fellow-servant. These reasons, among others, were included in the motion for an instructed verdict which was denied. Defendant later asked the court to charge the jury upon the questions of assumed risk and contributory negligence, and three such requests as presented were given. The fourth was properly refused. It appears, without dispute, that plaintiff was set to work with this tool by the foreman in authority over him, chipping on some beams for three-quarters of a day the first day. He continued working with this tool the next morning, chipping off rivet heads. Mr. Kilbern, the overseer of the car he was working on, told him what rivet heads to chip off. Plaintiff testifies he worked under Farquarson’s (the foreman’s) order with the chipping hammer until he was hurt. The foreman was present while he was doing that work. He testified:

“At the time he was hurt, I was standing close to him, having just arrived with a lighter hammer. It was possibly half an hour before he got hurt that he requested me to get a lighter one.”

The foreman saw him working on the rivet heads, and says that it was- the same class of work, and plaintiff was expected to do any chipping necessary with the chipper. The question of the negligence of a fellow-servant under this evidence was not in the case. The court was not in error in refusing to charge as requested upon this question.

Fourth. Defendant pleaded accord and satisfaction for all damages on account of loss and injury to plaintiff in bar to his recovery under the first count of his declaration. A motion was made to direct a verdict for defendant on account of release and settlement. The denial of this motion is assigned as error. The question was finally submitted to the jury as one of fact to be found by them. Defendant claimed it had obtained on May 16, 1904, from plaintiff a signed statement of how the accident occurred; also, on May 27, 1904, two receipts and releases, each for the consideration of $1, and the second one reciting as a further consideration the payment of a surgeon’s bill of $25, being in full accord and satisfaction and release for all damages and injury on account of the loss of plaintiff’s right eye. These documents were offered during the cross-examination of plaintiff on the trial. At the time of the trial he was totally blind, and consequently could not identify his signature. He denied several of the material facts contained in the statement, and swore that the papers were not read to him, and that nothing was said in relation to a release or settlement. He stated that he could not see to read at the time defendant’s attorney visited him; that a dollar was left on the table, which he pushed from him, saying he did not want it; that the representative of defendant pushed it back, and walked out. Plaintiff insists that this question is not in the case, for the reason that no evidence of the accord and satisfaction pleaded was introduced. The second receipt and release was the one pleaded, and it does not appear to have been introduced in evidence. The first receipt was put in evidence, and the court treated the question as in the case, submitting the matter to the jury to determine whether or not fraud had been practiced upon plaintiff in securing his signature to the release, and held that from the evidence a sufficient tender of the dollar received by him had been made. As this was more favorable to defendant than the record warranted, it will not be heard to complain.

Fifth. Error is assigned upon improper conduct and remarks of plaintiff’s attorneys during the trial. The court promptly interfered and reprimanded the 'attorney, not permitting him to complete his statement, and in his charge instructed the jury to pay no attention to remarks of counsel and give them no consideration. The conduct complained of did not amount to reversible error.

Error is also assigned upon the action of the court in permitting the recall of the plaintiff twice after resting his case. The fact that defendant announced that no proofs would be offered on its part made it proper for plaintiff to offer proofs, which during the trial were considered by the court as rebuttal, and not error for the court to allow. The whole matter of permitting plaintiff to put in further proofs was within the sound discretion of the trial court, not prejudicial to defendant, and not reviewable, except it should clearly appear to be an abuse of such discretion, of which in this case there is not the slightest evidence.

Sixth. The only remaining error assigned necessary to discuss is that the damages awarded plaintiff are excessive. No motion for a new trial was made on this ground, nor was objection to the verdict as excessive made in the trial court. The general practice is that, unless a motion for a new trial upon that ground is made and denied, the question will not be considered in this court. In the case of McDonald v. Steel Co., 140 Mich. 401, 413, Justice Blair, speaking for the court, said:

“A verdict which has no evidence upon which to base it is, in law, erroneous, and error can be assigned upon it without making a motion for a new trial.”

That case was distinguished from Hunn v. Railroad Co., 78 Mich. 513 (7 L. R. A. 500), and Coots v. City of Detroit, 75 Mich. 628 (5 L. R. A. 315). Speaking of the case last cited, the court in the McDonald Case, supra, said:

“Plaintiff was seriously injured, and was entitled to recover for pain and suffering, as well as for the loss of time and incapacity to work. In such cases the amount of compensation rests entirely in the sound judgment of the jury, and can only be considered where a motion is made for a new trial and denied. In such cases the court very properly said: ‘ Whether damages found by a jury are excessive or not does not present a question of law.5”

There was evidence in the case at bar upon which to hase the verdict of the jury. The question presented to this court is therefore not a question of law. We find no reversible error in the case.

The judgment is affirmed.

Carpenter, Grant, Blair, and Montgomery, JJ., concurred.


author: Me Alva y, C. J.

text:
    SLATER v. WALTER.
    1. Actions — Joinder—Slander—Malicious Prosecution.
    A cause of action for malicious prosecution and one for slan-' der may be joined in one suit.
    8. Slander — Privilege—Appeal—Theory Below.
    Where a slander case was not tried on the theory that the words complained of were privileged, it will not be reversed by this court on that theory, especially where, from defendant’s own testimony, it appears that he repeated the words on some occasions when they were clearly not within the protection of the rule.
    3. Same — Nominal Damages.
    Where defendant does not justify the truth of the slanderous words he admits using, plaintiff is entitled to- at least nominal damages.
    4. Malicious Prosecution — Defenses—Advice of Counsel.
    It is a complete defense to a suit for malicious prosecution, that defendant actually submitted to his counsel all the facts, and bona fide acted on his advice, irrespective of the questions of probable cause and absence of malice.
    5. Trial — Instructions—Specific Charge —Theory Supported-by Evidence.
    Notwithstanding the jury are correctly instructed upon the general propositions of law governing the case, a party'is entitled to have given a request embodying a specific charge, hypothetically stated, of his theory of the case, if supported by the evidence.
    6. Malicious Prosecution —Specific Instructions — Necessity.
    In an action for malicious prosecution in complaining of plaintiff for assault with intent to rob, it was error to refuse an instruction, supported by the evidence, stating under what circumstances defendant would be justified in making such a complaint. ,
    7. Same — Instructions—Probable Cause.
    In an action for malicious prosecution general instructions defining probable cause, without a statement of what facts in the case if found by the jury will constitute probable cause, or show a want of it, are insufficient.

      Error to Kent; Perkins, J.
    Submitted February 14, 1907.
    (Docket No. 139.)
    Decided July 1, 1907.
    Case by Irving O. Slater against Alexander A. Walter for slander and malicious prosecution. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Smedley & Corwin and Edward N. Barnard, for appellant.

      O’Keefe & Oannser (George C. Brown, of counsel), for appellee.
   Me Alva y, C. J.

Plaintiff instituted suit by capias ad respondendum against defendant, afterwards filing a declaration containing two counts — one for slander, and the other for malicious prosecution. A plea of the general issue was filed. Defendant is a practicing physician, residing in Grand Rapids. Plaintiff, an electrician and salesman for a Chicago firm, came to Grand Rapids August 29, 1904, from White Lake, Mich., where he had been spending a short vacation with his wife. They went to the Hotel Pantlind. He was short of money, and started out to solicit business. He called upon defendant that afternoon, and an agreement was made to repair defendant’s X-ray machine for $5. He was given the key to the office, and worked upon it that evening. The next morning defendant was not satisfied with the work, claiming it was not as agreed. Plaintiff asked for and received the advance of $1 to get a breakfast for himself and wife. Later he returned with his wife, and a dispute arose about the work done on the machine. During the dispute plaintiff sent his wife back to the hotel. Defendant claims that finally plaintiff made a proposition to settle for $2 in addition to the $1 advanced, which agreement was accepted, and the money paid; that plaintiff, who had started to leave the office, suddenly turned around and struck him violently on the head with his fist, and at the same time grabbed his watch chain and pulled his watch from his pocket, but did not get the chain loose from his vest; that the plaintiff then escaped, running down the stairs; that defendant, when he recovered from the effects of the blow, went down to the street, followed the crowd after the plaintiff, and cried out, “Catch him! He tried to kill me, to rob me.” Plaintiff ran into an alley and escaped. Defendant returned to his office for his coat and hat, and went to a doctor’s office for treatment of his injury, which he claimed was severe. Returning, he met á police officer, who, upon hearing his complaint, told him he must have a warrant in order to arrest the man, and directed him to the prosecuting attorney. Defendant went as directed, stated his case, and the prosecutor drew up the complaint, and sent him to the police court, where it was signed, sworn to, and a warrant issued. Plaintiff was arrested shortly afterwards and locked up. He secured bail in a few hours. The following morning his examination was held, and he was discharged. This litigation is the result. •

Plaintiff denies that he proposed to settle for $2, claiming that he thought defendant was paying him $4 until he counted the money, .when he demanded the balance; that defendant told him to leave his office, which he refused to do; that defendant took hold of him to push him out, and he then struck him a slap on the face. In other respects there is no material difference between the parties as to what occurred.

When the matter came up in.the police court, defendant in the anteroom repeated the language used by him on the street after the assault was committed. These are the statements relied upon in the count for slander in plaintiff’s declaration. Plaintiff recovered a verdict of 6 cents damages for injury to feelings under the charge for slander, and for malicious prosecution the sum of $500.

Of the errors assigned in the case upon which defendant asks a reversal, we will first consider the action of the court in refusing to require plaintiff to elect under which count of His declaration he would proceed; it being claimed that causes of action for malicious prosecution and for slander cannot be joined in one suit. In the case of Cadwell v. Corey, 91 Mich. 335, it was held that such joinder was proper, and that the trial court should not have compelled plaintiff to elect under which counts he would proceed. A like joinder of causes of action appears in McLeod v. Crosby, 128 Mich. 641, but it does not appear that the question of improper joinder was before the court. Such practice is approved by Chitty. 1 Chitty on Pleading (16th Am. Ed.), p. 222. The court charged the jury to find for the plaintiff upon the slander count at least nominal damages for injury to feelings only; he having waived actual damages.

Appellant in his brief insists that the words counted upon as slanderous were privileged. The case was not tried upon that theory; and, although it may be said that the occasions when they were first spoken might well bring them within the rule of privilege, yet from defendant’s testimony it appears there were other occasions when they were repeated by him not within the protection of that rule. Defendant did not justify the truth of the words uttered, so the case under the proofs on the slander count justified the direction of the court that at least nominal damages should be awarded plaintiff. As before stated, the jury found damages to plaintiff’s feelings 6 cents.

Defendant asked the court at the close of the case to direct a verdict in his favor on the count for malicious prosecution, for the reason that plaintiff had not shown any malice, and that there was probable cause, and that on the undisputed facts there was enough to warrant defendant in going to the prosecuting attorney which would be a complete defense. This motion was denied, and error is assigned upon such denial. An examination of all the evidence in the record bearing upon this proposition satisfies us that we cannot say that these facts were undisputed. Where there is evidence, however slight, ■which should go to a jury, the question is one for the jury, and not the court, to determine. It was not error to deny the motion.

Upon the subject of advice of counsel, the court charged at considerable length, giving it in connection with what was charged as to probable cause, as follows:

“The want of probable cause, as I have told you, is a necessary and essential fact to be found from the evidence before the plaintiff can recover upon the count for malicious prosecution. It cannot be inferred fróm malice, as I have said. It must be established by the evidence.
“The true inquiry upon the subject of probable cause is not whether the plaintiff was or was not guilty of the offense charged in the complaint made against him; but what did the defendant have reason to believe and actually believed was the fact when he swore to the complaint for assault with intent to rob ?
“There is another question in connection with this subject of probable cause which I deem it material for your consideration, viz., in connection with the subject of advice of counsel. Upon this question, I instruct you that advice of counsel can only be considered when the party seeking such advice has fully, fairly, and honestly stated all the facts and circumstances within his knowledge to the counsel of whom he seeks advice.
“ If the party seeking such advice, instead of fully and fairly stating the facts, stated as a matter of fact that which he did not know to be true or had good reason to believe to be true, then the advice of counsel would be no protection. Neither would it be any protection if it were resorted to merely for the purpose of covering a previous intent to do wrong. But the advice of counsel, when sought, must be sought in good faith, and all of the facts and _ circumstances within the knowledge of the party seeking it, and the information upon which he acts after receiving the advice of counsel, must be fully and fairly stated to the counsel in good faith, and. the party seeking the advice must believe the facts and circumstances he narrates to be true.
“You will understand that this has reference to the claim made by the defendant in this case, that he went to the prosecuting attorney and stated to him the facts and circumstances upon which the complaint and warrant were based, and that the prosecuting attorney, after such statement, caused the complaint to be drawn and sworn to by the defendant and the warrant thereafter to be issued, leading to the arrest of the plaintiff.
“ Our Supreme Court has said in one case, in speaking of advice of counsel:
“ ‘ A person seeking or receiving such advice is in law as well as in morals justified in acting upon it, provided he has fully and fairly .stated the facts to the attorney.’
“This is a question for you to determine from all the-evidence in the case.”

Upon this matter defendant requested the following charge, which was denied:

“ If you find that defendant laid all the facts before the prosecuting attorney, and the prosecuting attorney drew up the warrant which he did, and the defendant had no knowledge of the law, but relied upon the prosecuting attorney to frame the charge, then plaintiff cannot recover.”

Defendant was entitled to this request or its substance. Justice Carpenter, speaking for this court, said of this •defense:

“ It is a complete defense to a suit for malicious prosecution that defendant actually submitted to his counsel all the facts and bona fide acted on his advice. Authorities are not agreed as to the ground upon which this holding proceeds. * * * On whatever ground the defense of advice of counsel rests it affords the defendant a defense which otherwise he does not have. We think it would not be unfair to say that it often, if not always, affords a new defense when the defense of probable cause and of absence of malice have failed.” Adkin v. Pillen, 136 Mich. 682.

In the case just cited there was involved the question •of the interest of the attorney consulted in the subject-matter of the suit. In the case at bar no such question arises, and the quotation from the opinion is here approved as a correct statement of the law. The charge of the court was too general. The general propositions of law are not questioned, but defendant was entitled to a specific charge, hypothetically stated, of his theory upon this branch of the case, which was supported by evidence.

At this point it will be well to consider defendant’s claim that the court refused to submit the case to the jury on defendant’s theory. The court refused the following request:

“ The plaintiff had no right to attempt to take defendant’s watch from him by force and without his consent, and, if you find from all the facts and circumstances in the caáe that the plaintiff did attempt to take defendant’s watch from his person and by force and without his con-' sent, under circumstances which would lead a reasonably prudent man to believe that plaintiff intended to rob him, then the defendant was justified in making this complaint for attempt to rob, and the plaintiff in this case cannot recover on the count for malicious prosecution.”

This proposition is not covered in the general charge of the court. Defendant had the right to have his theory of this case submitted to the jury, and the request briefly stated the law upon the main proposition relied upon by him.

‘ ‘ The plaintiff was entitled to a charge applicable to the theory he contended for, and which his evidence tended to support.” Comstock v. Norton, 36 Mich. 277, 280.

See, also, Fletcher v. Bradford, 45 Mich. 349; Winchester v. King, 46 Mich. 102; Miller v. Miller, 97 Mich. 151; People v. Parsons, 105 Mich. 177, and cases cited. The court erred in refusing this request.

The only remaining question to discuss is that of provable cause, upon which it is claimed the court did not properly instruct the jury. The charge upon the question was general, and the jury were left to find probable cause as a question of fact. While it is'the province of the jury always to find the facts which exist in a given case, it is the province of the .court to decide, as a matter of law, whether such facts constitute probable cause. In Hamilton v. Smith, 39 Mich. 222, this court said:

“But, as the law appropriate to the facts cannot be laid down unequivocally until it is ascertained what the facts are, it is found necessary, where they are in dispute, to submit the whole subject ■ to the jury under proper instructions as to the rule of law to be applied according as they find one state of facts or another.”

The material part of the charge upon the question of probable cause necessary to quote is as follows:

“ Probable cause is the existence of such facts and circumstances as would excite the belief in a reasonable mind that the ground alleged against the accused for the arrest actually existed.
“To constitute probable cause for the prosecution of criminal proceedings against another, it is necessary that the person instituting such proceedings shall not only believe, but have good reason to believe, that the accused was guilty of the offense charged. Such belief should be founded either upon knowledge, or upon what he believed to be reliable information, which, if true, would justify the belief.
“The want of probable cause, as I have told you, is a necessary and essential fact to be found from the evidence before the plaintiff can recover upon the count for malicious prosecution. It cannot be inferred from malice, as I have said. ' It must be established by the evidence.
“The true inquiry on the subject of probable cause is not whether the plaintiff was or was not guilty of the offense charged in the complaint made against him, but what did the defendant have good ’reason to believe, and actually believed, was the fact when he swore to the complaint for assault with intent to rob.”

The court also charged:

“All the facts and circumstances shown by the evidence are to be taken into consideration upon the subject of probable cause. ”

Defendant does not object to what the court said, but contends that this charge was too general; that the court did not instruct the jury what facts in the case if found by them would constitute probable cause, or show a want qc probable cause. Wilson v. Bowen, 64 Mich. 133.

In McClay v. Hicks, 119 Mich. 65, Mr. Justice Montgomery, speaking for the court, said:

“It will be seen that the charge does not point out what facts would constitute probable cause, but leaves the jury to determine the question according to their best judgment. One vice of such an instruction lies in the fact that it, of necessity, leaves the jury to determine for themselves what constitutes the offense for which plaintiff was prosecuted. * * * The question of what constitutes probable cause in a particular case has for this reason, among others, been treated as a mixed question of law and fact; and correct practice requires that, where the facts are in dispute, the court shall state hypothetically what facts, if found, would constitute probable cause;” citing Hamilton v. Smith, supra; Rankin v. Crane, 104 Mich. 6.

The charge of the court upon the question of probable cause in the case at bar is subject to the objection made by defendant, in that the court did not point out what facts would constitute probable cause.

For the reasons given, the judgment is reversed, and a new trial ordered. .

Carpenter, Grant, Blair, and Montgomery, JJ., concurred.


author: Ostrander, J.

text:
    PATTERSON v. MEAD.
    1. Drains — Establishment — Regularity of Proceedings — Statutory Presumption.
    Where proceedings were taken to formally establish certain drains and the landowners released the right of way, and the public has been in possession of, and has exercised dominion over, the right of way so acquired, and the drains so laid, for upwards of 15 years, section 4381, 3 Comp. Laws, if given a prospective operation only, conclusively establishes the regularity of the proceedings.
    2. Same — Improvement — Proceedings—Joinder of Several Drains.
    There is no objection to a single proceeding by the county drain commissioner to open, widen, straighten, deepen, and extend, three drains, established- by township drain commissioners, where they in fact constitute one drainage canal, no portion of which can be much disturbed without affecting the entire drain.
    8. Same — Application—Sufficiency—Signers.
    Section 4379, 4382, and 4384, 2 Comp. Laws, when read in connection with section 4319, require, in a proceeding to improve an established drain, an application signed by not less than 10 freeholders of the township or townships in which the drain or the lands to be drained thereby and to be assessed therefor may be situated, three or more of such signers to be owners of lands liable to an assessment for benefits; they need not, however, be resident freeholders, and there need not be 10 freeholders from each township.
    4. Same — Female Freeholder.
    A woman may be a statute freeholder, entitled to sign an application for the improvement of a drain, though she cannot he a qualified juror to condemn lands under section 2, article 18, of the Constitution.
    5. Same — Withdrawal from Application.
    After having launched proceedings to improve a drain, by filing the proper application, the applicants cannot cause it to be discontinued by joining in a remonstrance filed with the commissioner.

      6. Same — Special Commissioners — Release op Right op Way —Epports op Commissioner.
    When a landowner, when requested to give the right of way for the improvement of a drain, refuses, and informs the commissioner that he will contest the proceedings in court, his action relieves the commissioner of further efforts to agree with him, and makes the selection of special commissioners, or a jury, necessary, even if all the' other owners of land release both right of way and damages. (Sections 4322, 4325, 4326, 2 Comp. Laws.)
    7. Same — Citation—Suppicienoy as to Nonresidents.
    Under section 4324, 2 Comp. Laws, the citation, in proceedings to oondemn lands for right of way for a drain, need not be personally served upon, nor name, nonresident owners of lands to be affected.
    8. Same — Review—Questions Considered.
    On certiorari to review proceedings for the improvement of a drain, the facts are not reviewable.
    9. Same — Record—Suppicienoy.
    Wrongful participation- in the deliberations of the jury by the drain commissioner, and the furnishing of evidence to them after the submission of the case, can only be brought upon the record by motion and affidavit.
    10. Same — Exceptions to Award — Eppect—Review.
    Exceptions to the award of the jury, in proceedings to establish a drain, based upon the affidavit of the landowner alleging misconduct on 'the part of the commissioner, amount practically to a motion for a new trial, and the commissioner having filed an affidavit denying misconduct, and the court having overruled the exceptions, this court cannot determine the truth of the disputed allegations.
    11. Same — Costs and Fees.
    Section 6240, 2 Comp. Laws, as amended by section 15, Act No. 266, Pub. Aots 1899, is a provision of the railroad law distinct from those relating to procedure, is not adopted in the drain law, and does not authorize the allowance of attorney’s, stenographer’s, and witness’ fees in proceedings to establish drains.
    Error to Calhoun; Chester, J., presiding.
    Submitted February 19, 1907.
    (Docket No. 75.)
    Decided July 1, 1907.
    Certiorari by John C. Patterson and others to review the action of Charles B. Mead, county drain commissioner, and William A. Lane, judge of probate, in locating and establishing a drain. There was an order dismissing the writ, and relators bring error.
    Affirmed.

      John C. Patterson, for appellants.

      Hatch & Page, for appellees.
   Ostrander, J.

The county drain commissioner of Calhoun county attempted, in a single proceeding, to extend, deepen, widen, and straighten three existing» independent township drains, known, respectively, as the Ball & Patterson, the Hopkins & Chase, and the Wilder creek. Each of these drains had existed for a period of 15 years and more. They connect, one with the other, and the necessity for deepening, widening, straightening, and extending the drainage channel, or canal, made by the three, and the necessity for taking private property for that purpose, and the compensation to be made therefor,' have been determined by a jury, and the report of such jury made and confirmed. It appears, also, that the Wilder creek drain is wholly within the limits of one township, and that the other two drains extend, each of them, into two townships. Application in the present proceeding was made and filed in September, 1898, a remonstrance by all or some of the appellants was made and filed in February, 1899, the writ of certiorari was tested August 25, 1900, and the judgment of the circuit court dismissing the said writ was entered April .27, 1905. It appears, therefore, that for about seven years this attempted improvement in drainage has been suspended by this Suit. In this court, to which the cause was removed by writ of error, appellants rely upon the assignments of error set out in the affidavit for the writ of certiorari, 52 in number, extended by subdivision to 85. These errors are, however, grouped, and are stated in the brief for appellants, as propositions, as follows:

“1. The county drain commissioner, under the statute, did not have jurisdiction over the subject-matter of deepening, widening, straightening, and extending the township drains in question.
“2. These three separate township drains with their several assessment districts and their -independent entities, cannot be joined in a proceeding to deepen, widen, straighten, and extend said several drains in one proceeding.
“8. The three township drain proceedings involved were without jurisdiction, and were absolute nullities, ab initio, and cannot constitute a legal basis for any drain proceedings.
“4. The application for the proceedings in question, filed with the drain commissioner on the 8th day of October, 1898, was defective and insufficient, and did not give respondents jurisdiction over the subject-matter of the said drain, or over the owners of the lands traversed thereby.
“5. No steps were taken, and no efforts were made to secure the right of way in question and releases of damages therefor by negotiation with the landowners, or by purchase, before the commencement of the condemnation proceedings in question, which was a condition precedent, required to give the courts jurisdiction to act under the right of eminent domain. '
“6. The first order of determination made by the drain commissioner April 10, 1899, was defective, insufficient, unauthorized, and void, and constituted no legal basis for the subsequent proceedings, and that the probate judge erred in overruling the motion to quash the said proceedings. 1
“ 7. The petition of the drain commissioner to the probate court for the appointment of special commissioners, filed August 5, 1899, and the facts established by the proofs upon the hearing thereof, were insufficient in law to confer jurisdiction upon the probate court in the premises, and that the probate judge erred in" overruling the motion to quash said proceedings.
“ 8. The citations issued upon the said petition for special commissioners were not served, either personally or otherwise, upon several of the owners of land traversed by said drain, and such landowners have not had their day in court, and the probate court acquired no jurisdiction over their lands, or persons, and the probate judge erred in overruling the motion to dismiss the said petition and to quash the said proceedings.
“9. No order or determination to appoint special commissioners was ever entered or made of record in the probate court, and the said court thereby lost jurisdiction (if it ever acquired any) in the premises. The oral decision of the judge of probate, announcing that the prayer of the petition would be granted, was not made of record, is no part of the record, and is insufficient.
10. The probate judge erred in overruling the several objections made to swearing an officer to select names for a jury, and in swearing such officer.
“11. The oath administered to and taken by the officer appointed to select names for the jury was insufficient and void.
“12. The probate judge erred in overruling the challenge made to the array of said jury.
“13. The venire issued by the probate court was defective, insufficient, and void for uncertainty.
“14. The oath administered to the jury was insufficient, and void upon its face for uncertainty.
“ 15. The report and award of the jury was defective, uncertain, unauthorized, and void, and the probate judge erred in overruling the exceptions filed thereto, and in confirming the said report and award.
“16. The probate judge erred in refusing to audit and allow the relators’ bill of costs filed in said probate court, as provided for by the general railroad law, made a part of the drain law by reference, in cases where juries are demanded and condemn right of way for drains.
“ 17. The final order of determination made by the drain commissioner July 19,1900, and filed in the county clerk’s office July 21, 1900, was defective, insufficient, unauthorized, and null and void.
“18. Several clauses and provisions of the drain law of 1897 pursued in the proceedings at bar, are in conflict, not only with the Constitution of the State of Michigan, but are also in conflict with section 10 of article 1, and with the Fifth and Fourteenth Amendments to the Constitution of the United States, and are null and void.”

A large number of objections may be disposed of without extended comment or discussion. The attacks made upon the proceedings which were taken in establishing the three township drains in question are none of them considered. 2 Comp. Laws, § 4381, provides that:

“All drains regularly established, opened or constructed under any provisions of law heretofore existing, shall be deemed to be legal drains under this act. * * * And any drain that has been established for ten years shall be conclusively deemed to have been regularly established, and it shall be the duty of the county drain commissioner, where no records of such drains have been preserved, to see that the records of such drains are made in the most practicable manner in the drain records of their respective counties. ”

This last provision is found in the statute of 1885, and has since been in force. 2 Comp. Laws, § 4382, provides that:

“All the powers conferred by this act for establishing and constructing drains and for the enforcement of assessments thereof, shall also extend to and include the deepening, widening and extending of any drains which here-' tofore have been laid, or may hereafter be constructed.”

Whatever questibns may have been open to the persons interested in, and who were taxed for, the construction of these three township drains, it remains that proceedings were taken to formally establish each of them. The landowners released the right of way. The public had been in possession of, and had exercised dominion over, the right of way so acquired and the drains so laid for upwards of 15 years. Zabel v. Harshman, 68 Mich. 273, 281. Giving the statute (section 4381) prospective operation only, its effect is to conclusively establish the regularity of the proceedings.

We come, therefore, at once, to the particular proceeding. Here, also, we may dispose of many of the contentions made by saying that there is no objection to a single proceeding by the county drain commissioner to open, widen, straighten, deepen, and extend, three drains, established by township drain commissioners, where it appears, as it does here, that they, in fact, constitute one drainage canal, no portion of which can be much disturbed without affecting the entire drain. Each of these drains, and consequently all of them, are under the direct supervision and control of the county drain commissioner. The action contemplated by petitioners affects them all and relates to the result to be accomplished by each of the three drains as originally constructed and the improvements which ate now desired. These rulings are based upon thedanguage of the statute, and are approved in Tinsman v. Monroe Probate Judge, 82 Mich. 562. The language of the statute answers, also, many other objections, not here repeated, to the sufficiency of the application filed with the drain commissioner. Fifteen signatures appear upon that application. The statute qualification of 10 of those signing is denied. The provisions of 2 Comp. Laws, §§ 4379, 4382, 4384, read in connection with section 4319, are held to require, in this proceeding, an application signed by not less than 10 freeholders of the township or townships in which such drain or the lands to be drained thereby and to be assessed therefor may be situated; three or more of such signers to be owners of lands liable to an assessment for benefits. They need not be resident freeholders (Kinnie v. Bare, 68 Mich. 625); and there need not be 10 freeholders from each township (Brady v. Hayward, 114 Mich. 331). We need not answer the objections that certain of the signers were not freeholders because holding their lands as vendees in executory contracts or with their wives as owners of estates by entireties. Excluding all such signers, 10 remain if we consider H. M. Bryant to be a freeholder within the meaning of the law. The objection to doing this, which is urged, is that H. M. Bryant is a woman, and that she cannot be a statute freeholder without being also a qualified juror to condemn lands under section 2, art. 18, of the Constitution of this State. The fact that jurors must be males, as well as freeholders, does not necessarily or reasonably support the conclusion that a female freeholder may not exercise the rights of a property owner, and join with other property owners in moving for public improvements. Counsel cites no authority for his position.

One other objection tó the application may be noticed. Two of the ten qualified signers joined in a remonstrance which was filed with the commissioner on February 4, 1899, before the commissioner had determined the necessity, etc., of deepening, widening, straightening, etc., the said drains, but after he had made a personal examination for the purposes of such a determination. It is said there was thereafter no proper application for the improvement. Here, again, no authority, statute or- other, is given in support of the position of counsel. It is not suggested, in argument, to what point such proceedings may go and be then interrupted by the withdrawal of one or more of the original applicants. It is to be presumed that the fact of withdrawal will, in proper cases, exert some influence with the commissioner and the jury; but we are not prepared to say that, having launched the proceeding, applicants may cause it to be discontinued by protesting against further steps being taken.

In his application for the appointment of special commissioners, the drain commissioner averred that he had tried to obtain a release of right of way and damages from the several owners of land traversed by the drain, and had attempted,- but had failed, to agree with the landowners for such releases. Appellants answered this petition, denying these facts. Appellants also moved the probate court to quash the proceedings for various reasons, supporting the motion by the affidavit of John C. Patterson. This motion was overruled. Later, before special commissioners were appointed, a jury was demanded by six of the appellants, and one was ordered. The only evidence, aside from the statements in the petition for special commissioners, of efforts to procure releases, is found set out in the affidavit for the writ of certiorari and admitted in the return thereto, which evidence is, in substance, that appellant John O. Patterson was requested to give the right of way, refused, and informed the commissioner that he should contest the drain proceedings in court. Certainly, there was no occasion to go further with this landowner, and his action made the selection of special commissioners, or a jury, necessary, even if all other owners of land released both right of way and damages. 2 Comp. Laws, §§ 4322, 4325, 4326. The facts set out in the petition of the drain commissioner are in no other way contradicted. 2 Comp. Laws, § 4325. The petition was, in this respect, jurisdictionally sufficient. Grand Rapids, etc., R. Co. v. Weiden, 69 Mich. 572, 70 Mich. 390. It is said that the citation was not served personally upon William Martin, Electa J. Reynolds, and Darius Bickford. They were all of them nonresident owners. 2 Comp. Laws, § 4324. William Martin was not named in the citation. The statute has been amended since the decision in Campau v. Charbeneau, 105 Mich. 422, was made; the express provision now being that it shall not be necessary to name such owner or owners in the citation. That case, relied upon by counsel for appellants, is therefore not controlling. The citation was published in the manner pointed out by the statute. We think it unnecessary to set out and discuss the various assignments of error>which challenge the validity of the drain law of 1897. They have been examined, and the argument of counsel for appellants has been considered, with the result that they are overruled. So, also, of the errors assigned upon the action of the probate court, it is sufficient to say that objections were made to the form of oath administered to the officer appointed to select a jury, to the order overruling a challenge to the array, interposed when the jury had been summoned, to the venire, to the oath to the jury. We find nothing in the objections which requires discussion. The thirty-third assignment of error contains 10 subdivisions following the averment that “the probate court erred in overruling the following objections to the confirmation of said findings, report, and award of said jury.'” In the various subdivisions are set out the objections referred to, most of them allegations of facts. For example, subdivision c reads:

“The said jury ignored and disregarded the evidence produced on the hearing upon the questions of the public necessity and the amount of damages,’’ etc.

We cannot review the facts or the evidence in this proceeding.

It appears that, in support of exceptions to the award of the jury, John C. Patterson filed his affidavit. In opposition thereto, the drain commissioner filed an affidavit. In so far as these affidavits relate to the presence of the drain commissioner in the jury room, they are, in substance, as follows: Mr. Patterson swears that the drain commissioner informed him that, after the jury had determined the question of necessity, he (the commissioner) went into the jury room and was present when they determined the amount of damages, and furnished the jury certain data they sent for, the tax rolls from the county treasurer’s office, and assisted the jury in making and formulating their findings, report, and award. The commissioner swears that his connection with making out the report of the jury was as an official to furnish blanks and measurements at the request of the chairman of the jury; that he had nothing to do with the fixing of damages or the amount paid for the lands which were condemned; that the only information asked of him was “the legal information which the jury wished to have in said case.” Counsel for appellants states in his brief that, after the hearing had been closed, “tax rolls from the county treasurer’s office and additional evidence were submitted to the jury and taken to the jury room without the knowledge and consent of the relators (appellants) and were considered and acted upon by the said jury!” If this appeared in the record to be an undisputed fact, we should be obliged to consider whether in this proceeding advantage could be taken of it. Manifestly, the fact, if it existed, would not appear, unless it was brought upon the record by motion and affidavit. The statute provides (3 Comp. Laws, § 4335), that the court shall, when a jury is demanded, proceed in the same manner as is provided by law in cases of taking private property for the use of railroad companies. In proceedings to condemn lands for the use of a railroad company, the probate court may set aside the report of commissioners, or of a jury, for good cause shown. Marquette, etc., R. Co. v. Houghton Probate Judge, 53 Mich. 217; Detroit, etc., R. Co. v. Campbell, 140 Mich. 384. The objection made was, practically, a motion for a new trial. The law respecting the conduct of jurors and of parties, including the drain commissioner, in such proceedings, is not in doubt. Detroit, etc., R. Co. v. Campbell, supra; Hudlemyer v. Dickinson, 143 Mich. 250. But, necessarily, the fact of improper conduct must be established. Here the probate court, presumably, was of opinion that the fact was not established. The jury was entitled to have furnished to it certain data (2 Comp. Laws, § 4327), and the affidavit of the drain commissioner, while somewhat uncertain in meaning, may be reasonably construed to mean that he furnished the jury with nothing except the data he was by law required to produce. We cannot set the affidavit of Mr. Patterson over against that of the commissioner, and determine the truth of disputed allegations.

It is claimed, also, that upon the face of the award various irregularities are disclosed. The statute (2 Comp. Laws, § 4346) provides for a speedy review of proceedings in establishing a drain by certiorari, in which review, if any error be found in the proceedings, the court shall direct the county drain commissioner to correct such error or errors and then proceed the same as though no error had been made. We have examined the proceedings shown by the record with reference to the objections' made to them by counsel for appellants. In doing so, we have failed to find jurisdictional error, and, if there are irregularities which should be corrected, they are not made to appear.

A bill of costs for attorney’s, stenographer’s, and witness’ fees was presented in the probate court by counsel for appellant, and disallowed. The contention is that, as the general railroad law governs the proceedings when a jury is demanded, that provision of that law (2 Comp. Laws, § 6240, as amended by Act No. 266, Pub. Acts 1899, § 15), must be given effect. This provision of the railroad law is distinct from those relating to procedure, is not adopted in the drain law, and we know of no authority for holding it applicable here.

We find no reversible error, and the judgment of the circuit court is affirmed, with costs.

McAlvay, C. J., and Grant, Hooker, and Moore, JJ., concurred.


text:
    SMITLEY v. PINCH.
    1. Slander — Evidence—Character—Specific Acts — Admissibility.
    Specific acts of lewdness cannot be shown in support of a plea of justification in stating that plaintiff was a low (lewd) woman.
    2. Same — Reputation.
    After defendant has submitted testimony tending to show plaintiff’s general reputation for chastity to be bad, plaintiff may show by a witness who states that he has lived in the same town with her all his life, and has been a newspaper reporter three years, that he never has heard a word of suspicion against her chastity.
    3. Witnesses — Reputation —Chastity—Competency of Witness.
    Personal acquaintance is not a necessary prerequisite to qualify a witness to testify to the reputation of a person for chastity, if it appears the witness was in a position to know and has never heard the reputation questioned.

      4. Slander — Instructions—Ignoring Issues.
    Where no justification of a part of the slanderous statements declared upon was pleaded, an instruction to find only nominal damages in case such statements were proved to be true, was properly refused.
    5. Same — Verdict—Exoessiveness.
    A verdict of $1,000 for falsely charging plaintiff, a white woman, with being criminally intimate with a negro is not so excessive as to warrant the court in setting it aside upon that sole ground.
    Error to Berrien; Coolidge, J.
    Submitted February-21, 1907,
    (Docket No. 76.)
    Decided July 1, 1907.
    Case by Nora Smitley against Benjamin W. Pinch for slander. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Gore & Harvey, for appellant.

      Burns & Sweet, for appellee.
   McAlvay, C. J.

This is an action for slander. Defendant asks this court to reverse a judgment for $1,000 obtained against him in the circuit court for Berrien county. Plaintiff had worked for defendant at Niles as a dining-room girl in his hotel, and had sued him in justice’s court for wages claimed to be due her. After the trial, while awaiting the verdict of the jury in that case in the court-room, in presence of the justice and others, the alleged slander was uttered by defendant. Plaintiff was not present at the time.

The declaration in this case charges that defendant falsely published, and declared of and concerning her, the following slanderous words:

“ 1. She is a damned bitch.
“ 2. You can’t imagine how low this woman is.
“ 3. She had the teeth marks on her cheek where she let the nigger cook bite her.
“ 4. She had her trunk in the cook’s room.
“ 5. She slept in bed with the nigger cook.”

With his plea of the general issue defendant gave notice of the truth of the second, third, and fourth charges, and specifically denied that he used the language charged in the first and fifth. The errors relied upon by defendant are:

First. The ruling of the court in striking out the following question and answer during the examination of one of defendant’s witnesses:

Q. State whether or not you have seen any familiarities between her and the chef, Curtis.
“A. Yes, sir.”

The purpose of this question was in support of the plea of the truth in justification of the words charged, “You can’t imagine how low she isand was to show specific acts of lewd conduct on the part of plaintiff. The brief of defendant indicates that this charge, which is justified as true by the plea, referred to the character of plaintiff for lewdness. He says:

“What the plaintiff did, how she lived, and whether she was a woman given to lewd conduct was squarely in issue by the pleadings. Defendant had a right to show specific acts of lewdness.”

The weight of authority does not support the contention of defendant. He was seeking to prove plaintiff’s character as a low woman.

“It is settled by the great weight of authority that character cannot be proved by evidence of its operation in specific instances, even where the - conduct has become habitual.” 16 Cyc. p. 1278, and cases cited.

This rule was adopted in this State in Proctor v. Houghtaling, 37 Mich. 41, and has been approved and followed. Bourreseau v. Evening Journal, 63 Mich. 425; Thibault v. Sessions, 101 Mich. 279; McGee v. Baumgartner, 121 Mich. 287.

Second. Defendant had submitted testimony tending to show plaintiff’s general reputation for chastity to ■ be bad. In rebuttal, plaintiff recalled a witness who had lived in Niles all his life, and been a newspaper reporter three years, who was asked:

Q. Up to the time that you heard those remarks by Mr. Pinch in Mr. Beaver’s court-room, had you ever heard a word or a suspicion against the chastity of Nora Smitley, the plaintiff ? ”

Defendant objected, for the reason that no proper foundation had been laid, and there was no evidence that witness knew plaintiff. The court overruled the objection, and witness answered: “No; I hadn’t.” This is assigned as error.

This court has pointed out the distinction between the competency of a witness called upon to impeach and one to support reputation, affirming a ruling where a witness was allowed to testify that he had never heard the defendant’s reputation for truth and veracity questioned, in a case where evidence had been introduced to show such reputation to be bad. Mr. Justice Graves, speaking for the court, said:

“Where, however, the witness is not called to impair, but to support, credit, the ground is different. Not to have been talked about at all in regard to integrity is not to have been talked against. * * * The fact that a person’s truthfulness has never been the subject of controversy is, according to general observation and experience, very cogent evidence to prove him worthy of credit, and, where those who would be likely to know if it had been the subject of criticism, testify they have no knowledge that it has been, the evidence is proper as conducive to the effect that such person could not have borne the bad reputation imputed. ” Lenox v. Fuller, 39 Mich. 268, 272, and cases cited.

See, also, 5 Am. & Eng. Enc. Law (2d Ed.), p. 882, and cases cited under note 3; State v. Nelson, 58 Iowa, 208. Personal acquaintance is not a necessary prerequisite to qualify the witness to testify as to the reputation in question, if it appears the witness was in a position to know and had never heard the reputation questioned. 5 Am. & Eng. Enc. Law (2d Ed.), p. 882. The testimony was properly admitted.

Third. Error is assigned upon the refusal to grant the following request to charge:

“If you find from the evidence that the defendant did say of the plaintiff, ‘ She is a damned bitch, ’ and if you find upon the evidence that such statement is true, then I charge you the plaintiff could only recover nominal damages; that is, six cents. So, if you find defendant did say that she slept with the nigger cook, as charged, and you also find the truth of this statement, in that event your verdict should be for nominal damages; that is, six cents. But, if you find that the defendant did not make either of these statements as charged, then if you find the truth of the other charges, your verdict must be for the defendant.”

This request was properly refused. It does not state the law of the case. No justification of the truth of either of these charges was pleaded. The sole question for the jury to determine as to them was whether or not the words had been uttered by defendant. This was properly given by the court in his main charge, and he also gave defendant’s request as follows:

“If you find from the evidence that the defendant has established the statement that ‘the plaintiff is a low woman,’ that *‘ she did keep her trunk in the chef’s room,’ and that she did have the marks on her face where the colored cook bit her, then I charge you the defendant is entitled to your verdict as far as those statements are concerned. And, if you find that the defendant so far as his clairns are concerned as to all five of these charges, viz., that one of them he did not make at all, that the substance of the other was as claimed by defendant, and that the defendant has proven the truth of these charges substantially as made, then I charge you the plaintiff cannot recover and your verdict must be for the defendant.”

Fourth. The remaining question is as to the verdict. It is claimed to be excessive, and that the court erred in not setting it aside and granting a new trial for that reason. No exceptions were taken by defendant to the charge of the court as to the question of damages in this case. An examination of the charge in that regard satisfies us that the court correctly charged the jury. The court in denying the motion for a new trial said, relative to the question of excessive damages:

“The slander alleged consisted practically in a charge of criminal intercourse with a negro; the plaintiff being a white woman. The jury evidently found that no such charge was proved. Under the circumstances a verdict of $1,000, although larger than the court might have given, if tried without a jury, does not appear to be so excessive as to warrant the court to set aside the verdict upon that sole ground.”

We agree with the trial court upon this proposition.

No error appearing from the record presented, the judgment of the circuit court is affirmed.

Carpenter, Ostrander, Hooker, and Moore, JJ., concurred.