text:
    ROSENZWEIG v. ROSE.
    Covenants — Injunction — Building Restrictions — Residence District — Estoppel.
    In a suit to enjoin defendant from erecting a 24-family apartment house ón a single lot which had been conveyed with others in the same subdivision with restrictions limiting each lot to a “dwelling house,” held, that there had been no such departures from the restrictions as to estop plaintiffs from insisting upon a compliance' therewith.
    See note in 45 L. R. A. (N. S.) 726.
    Appeal from Wayne; Hally, J.
    Submitted April 17, 1918.
    (Docket No. 116.)
    Decided June 3, 1918.
    Bill by Charles Rosenzweig and others against Albert A. Rose to restrain the violation of certain building restrictions. From a decree for plaintiffs, defendant appeals.
    Affirmed.

      W. W. Chapin, for plaintiffs.

      Robert H. Burns (Monaghan, Monaghan, O’Brien & Crowley, of counsel), for defendant.
    The material facts with reference to this controversy are thus concisely stated in the opinion of the trial judge who heard the testimony and entered the decree:
    “The plaintiffs, Charles Rosenzweig and Dora, his wife, Joseph C. Robinson and Mary, his wife, William McMahon and Mary, his wife, Frederick Toepel and Susannah, his wife, and Oscar Kretzschmar and Margaret, his wife, are respectively the owners of lots numbered 83, 84, 86, 87 and 91 in Moses W. Field’s second subdivision situated on the east side of East Grand Boulevard between Agnes and St. Paul avenues in Detroit.

      “This subdivision covers the east side of the Boulevard and the west side of Field avenue between Lafayette and St. Paul avenues.
    “The building restriction is as follows:
    “ ‘The said party of the second part further agrees for his heirs and assigns that he will not occupy said premises except for a dwelling house, and that he will not erect any building on said premises of less value than $2,0,00.00 and not less than twoi stories in height.’
    “Beginning with Lafayette and going in a northerly direction the, lots in this plat on the Boulevard are occupied in this manner:
    Parcel 1 — An eight family terrace.
    “ 2 — A four family flat.
    “ 3 — A single house.
    “ 4 — A four family flat.

      “ 5 — A single house of the bungalow type.
    ■ “ 6 — A double house.
    “ 7 — A double house.
    “ 8 — A double house..
    “ 9 — A double house.
    “ 10 — A double house.
    “ 11 — A single house.
    “ 12 — A double house.
    “ 18 — Two single houses. One facing the Boulevard and the other in the rear facing Agnes avenue.
    “ 14 — The lot on which defendant is building.
    “ 15 — A double house.
    “ 16 — Vacant.
    “ 17 — A single house of the bungalow type
    “ 18 — A double house.
    “ 19 — A single house.
    “ 20 — A single house.
    “ 21 — A single house.
    “ 22 — A double house covering 100 feet.
    “ 23 — A single house.
    “ 24 — Vacant.
    “ 25 — Vacant.
    “On the west side of the street directly opposite, but not a part of the same subdivision, and not in all cases covered by a similar restriction, there are eleven double houses, one church, seven single houses, two vacant lots, and both lots at the cornel' of Agnes avenue, besides the structure facing the Boulevard have double houses facing the side street.
    “In the two blocks south of Lafayette, ending with Jefferson avenue, the Boulevard frontage is occupied with thirteen single houses, five double houses, three two-family flats, eight apartment houses, arranged as to apartments respectively as follows: six, four, six, six, twenty-four, fourteen, five and twenty-five; two terraces, one for three and the other for four families; four vacant lots; one church; one drug store and one saloon.
    “Immediately in the rear of defendant’s proposed structure the property fronting Field avenue is occupied by a public school. Other structures face Field avenue which have not complied with the restrictions given above.
    “While it is true the restrictions must be confined to the property of the plat over which they extend this general description is given to show the character of the avenue and the structures which make up its frontage.
    “Lot numbered 81 is on the northeast corner of Agnes and the Boulevard. The building which defendant proposes to erect on it will be 34 feet wide and 134 feet long. It will have entrances on the Boulevard and Agnes avenue; It will contain 24 apartments and be four stories high.”
    Plaintiffs by their bill prayed for an injunction restraining the construction of the building which the defendant proposed to build upon lot 81. The relief prayed for was granted, and the decree provided that it is left open to the defendant to bring to the attention of the court any changed condition of the property which may take place at a later date.
   Kuhn, J.

(after stating the facts). The contention of counsel for the defendant and appellant is thus stated in their brief:

“It is the contention of the defendant that the restriction which was originally imposed upon the whole of the subdivision has been abandoned and ceases to exist, by reason of the many violations that it has suffered, and that the conditions of the subdivision and the surrounding locality have so changed as to make it inequitable to enforce the restriction.”

The court below found that there had not been a complete change in the neighborhood. We are satisfied that in this conclusion he was quite correct. The property is still devoted to the purposes for which it was originally intended, that is, it is still a strictly residential district — in fact, it is one of the most desirable residential sections of the city of Detroit. While it is true that there have been departures made from the original restriction of a one family residence, nevertheless there has been no such substantial change in the structure of the buildings as is contemplated by the defendant in the erection of a 24-family apartment building on a single lot. We take it it needs no argument to demonstrate that the erection of such a building would destroy the privacy of the neighborhood and make it much less desirable as a residential district, and if such a flagrant violation of the building restrictions imposed on this lot were permitted, the practical result would be the cancellation of all the restrictions imposed upon the entire subdivision. We are of the opinion that there have been no such facts shown as to estop the plaintiffs from insisting upon a compliance with the restrictions imposed on the lot in question, which the defendant purchased with full knowledge thereof. Various authorities from other jurisdictions are cited by counsel for appellant to sustain their contention, but the legal question here involved has so recently had our attention that it is only necessary to cite our own decisions to sustain the conclusion here arrived at. See Moore v. Curry, 176 Mich. 456; Schadt v. Brill, 173 Mich. 647; Misch v. Lehman, 178 Mich. 225; Stewart v. Stark, 181 Mich. 408; Casterton v. Plotkin, 188 Mich. 333; Sherrard v. Mur phy, 193 Mich. 352; Davison v. Taylor, 196 Mich. 605; Andre v. Donovan, 198 Mich. 256.

It is our conclusion from this record that the erection of the structure contemplated by the defendant would seriously injure the property of the plaintiffs, and under the existing conditions the result reached by the circuit judge was clearly equitable and right. His decree is therefore affirmed, with costs.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ.,- concurred.


source: Caselaw Access Project

author: Fellows, J.

license: Public Domain

text:
    THOMPSON v. HURSON.
    1. Frauds, Statute of — Oral Contracts — Agreement to Divide Profits from Sale of Land.
    An oral agreement to divide the profits on the purchase and resale of real property, where the interest claimed by defendant was by way of compensation for services rendered in removing houses and relocating them, and not for any interest in lands, is not within the statute of frauds. Carr v. Leavitt, 54 Mich. 540.

    2. Same — Oral Contracts — Equity—Estoppel.
    Where plaintiff claims under an oral agreement he is estopped to invoke the statute of frauds in a court of equity, particularly where it would operate inequitably upon the claimed rights of defendants.
    3. Evidence — Preponderance—Credibility of Witnesses.
    Where there is no clear preponderance of evidence respecting the claims of the parties, the credibility of the witnesses, together with the general probabilities of the case, in the light of all the facts and circumstances, must be the controlling factors in arriving at a decision.

      4, Frauds, Statute of — Oral Contracts — Compensation for Services — Profits.
    Oral agreements involving transactions in real estate and for services to be compensated for. out of the profits, when realized, especially where the transactions are to extend over an indefinite period of time, and involve the expenditure of considerable sums of money, while not within the statute of frauds, are tainted with the evil at which the statute is aimed.
    5, Appeal and Error — Review—Credibility of Witnesses.
    Where, in a court of equity, the decision must turn almost entirely upon the relative credibility of witnesses, very clear evidence of unreliability of persons who testified to material facts must appear in the record to justify the Supreme Court in disturbing the findings of fact of the trial judge, because of his superior advantages.
    Cross-appeals from Wayne; Shepherd, J., presiding.
    Submitted Aprii 16, 1918.
    (Docket No. 101.)
    Decided June 3, 1918.
    Bill by William E. Thompson against Patrick E. Hurson, Martha L. Hurson and others for an injunction, the cancellation of a deed and contract, and for an accounting. Defendants Hurson filed an answer and cross-bill for similar relief. From the decree rendered, plaintiff and defendants Hurson. appeal.
    Affirmed.

      Charles T. Wilkins, for plaintiff.

      Chamberlain, Denby, Webster & Kennedy, for defendants Hurson.

      See note in 15 L. R. A. (N. S.) 313, 317.

   Fellows, J.

After a full hearing of this case, the learned trial judge made the following findings of fact:

“(1) An oral agreement was entered into by and between the plaintiff, William E. Thompson, and the defendant Patrick E. Hurson by which it was agreed by and between these parties that they should enter into the business of purchasing houses which might be offered for sale and removing the same to and relocating and re-erecting the same upon real estate which should be purchased for that purpose, and the selling of such buildings and real estate, and that both of said parties should look out for such buildings and real estate as might answer the purposes of their agreement, and that the financing of such transactions should be provided for by the plaintiff, William E. Thompson, and that the defendant Patrick E. Hurson should supervise the necessary operations of removing a,nd relocating and re-erecting such buildings and that the plaintiff, William E. Thompson, should have control of the manner and time of the sale of such properties and the selling price thereof, and that the profits which might be derived from such transactions should be equally divided between the plaintiff, William E. Thompson, and the defendant Patrick E. Hurson; that there was no contract, or note or memorandum thereof, in writing between the parties, or signed by either of them, but that the sáid oral agreement was and is a valid and binding contract between the plaintiff, William E. Thompson, and the defendant Patrick E. Hurson; that under and in furtherance of such oral agreement, the buildings now located on Cortland avenue, Bethune avenue and Byron avenue properties were purchased and moved to the several parcels of real estate acquired for that purpose, the financing, of these transactions provided for by the plaintiff, the defendant Patrick E. Hurson paying out certain moneys in the erection of the building on the Cortland avenue site in addition to the moneys paid out or advanced by the plaintiff; that the building now on the Cortland avenue property was purchased and paid for by the plaintiff, for the use of himself and the defendant, to be removed to and re-erected upon real estate to be acquired for that purpose; that a contract for the purchase of the Cortland avenue site was drawn up in writing, naming the defendants. Brown as vendors therein and the plaintiff and the defendant Patrick E. Hurson as vendees therein, but was not signed by said Patrick' E. Hurson, but was, before the building was moved from its original site, signed and executed by the defendants Brown and the plaintiff, the plaintiff making the only payment, to wit, five hundred dollars ($500.00), thereon from his own funds; that afterwards and after the building had been removed to the Cortland avenue site, the defendant Patrick E. Hurson, without the knowledge or consent of the plaintiff, secured, from the defendants Brown, a deed to himself and wife, the defendants Hurson, of the part of the Cortland avenue site on which the building had been relocated and a contract for the purchase, by these defendants, of the remainder of that site, and secured, from the defendant Highland Park State Bank, a loan of five thousand dollars ($5,-000.00) secured by a mortgage on such deeded premises and building executed by himself and wife, the defendants Hurson, part of the proceeds of such loan being‘used on such building, part for the payment of the balance due on the delivery of the deed, and the balance being deposited in the Highland Park State Bank in the name of the defendant Patrick E. Hurson, the defendants Highland Park State Bank and Brown believing that the defendants Hurson had a right to such deed and contract and a right to execute such mortgage; that the title to that part of the Cortland avenue property so deeded now stands in the names of the defendants Hurson, under said deed and subject to the said mortgage, the title to the balance of these premises having_ been, with the consent of the parties, since the beginning of this suit, taken by deed and now being in Henry H. Sanger, as trustee, to await the determination of the court in this cause, the amount due on the contract having been paid from the moneys in the Highland Park State Bank, covered by the injunction heretofore issued in this cause, and from the rent of the premises; that the buildings now located on the Byron avenue and Bethune avenue premises and the real estate on which they are now located were purchased and paid for by the plaintiff from his own funds, the title to such real estate being taken, by deed, in the name of the plaintiff and a mortgage of two thousand six hundred dollars ($2,-600.00) being executed to the Wayne County and Home Savings Bank, of Detroit, and placed by the plaintiff on the Byron avenue property and a mortgage of four thousand six hundred dollars ($4,600.00) being executed to the said Wayne County and Home Savings Bank and placed by the plaintiff on the Bethune avenue property; that the title to the Byron avenue and Bethune avenue properties still stands in the name of the plaintiff, under the said deeds and subject to said mortgages; that the Cortland avenue and Byron avenue properties, so-called, are now occupied by tenants, the Byron avenue property being under the control of the plaintiff, William E. Thompson, and the rentals of the Cortland avenue property being received and held under an agreement between the plaintiff, William E. Thompson, and the said defendant Patrick E. Hurson made since the institution of this suit, under which neither of them receives the rentals until the further order of this court, and the disposition of this property being enjoined, by this court, the Bethune avenue property being continuously occupied by the plaintiff, William E. Thompson, as his home, since June 14, 1915; that none of said properties have been sold or any moneys received on account thereof, other than the rentals derived from the Cortland avenue and Byron avenue properties, and that the moneys invested by the plaintiff in said Cortland avenue property are in excess of any rentals received by the plaintiff.
“(2) There was no contract, or note or memorandum thereof, in writing concerning the agreement between the plaintiff, William E. Thompson, and the defendant Patrick E. Hurson, on which the claim of the defendant Patrick E. Hurson in this cause to any interest in the proceeds of the Bethune avenue and Byron avenue properties are based and on which the finding of the court and the decree herein as to the Bethune avenue and Byron avenue properties are founded, but the plaintiff, William E. Thompson, has come into a court of equity and seeking equity, must deal equitably with the defendant Hurson, equity sustains the claim of the defendant Hurson in the profits of the Byron avenue and Bethune avenue properties and no writing was necessary.
“(3) The plaintiff has maintained by proof his right to a one-half interest in the profits made in the transaction relative to the Cortland avenue property, so-called. '
“(4) The agreement between the defendant Patrick E. Hurson and the plaintiff, William E. Thompson, was substantially performed and was sufficiently definite to base thereon the claim of the defendant Patrick E. Hurson to one-half of the profits arising from the transactions as to the Bethune avenue and Byron.avenue properties, so-called, and contemplated, among other things, that the plaintiff, William E. Thompson, should finance these transactions, purchase the real estate necessary therefor and sell the same within a reasonable time and that the profits should be equally divided between the plaintiff, William E. Thompson, and the defendant Patrick E. Hurson, and that the plaintiff should have control of the manner and time of sale of such properties and of the price at which the same should be sold; and the defendant Patrick E. Hurson has maintained by proof his right to a one-half interest in the profits of the Bethune and Byron avenue properties, so-called.
“(5) On the transaction involving the first automobile and Waverly lot, set forth in the pleadings in this cause, there is' a balance owing to the defendant Patrick E. Hurson from the plaintiff, William E. Thompson, of two hundred and seventy dollars ($270.00), which should be allowed on the final accounting.
“(6)' The second automobile is the joint property of the plaintiff, William E. Thompson, and the defendant Patrick E. Hurson; it stands these parties in at four hundred and ninety-seven dollars and ninety-seven cents ($497.97), for purchase price and maintenance, of which amount the defendant Patrick E. Hurson has paid ninety-seven dollars and ninety-seven cents ($97.97) more than the plaintiff, William E. Thompson; and, on a final accounting, the plaintiff, William E. Thompson, should be charged and the defendant Patrick E. Hurson credited with one-half of that amount, or forty-eight dollars and ninety-eight cents ($48.98).
“(7) In the accounting in this cause, the value of the Bethune avenue property should be placed at twelve thousand dollars ($12,000.00), unless the same is sold by the circuit court commissioner before the final accounting, in which event the value thereof will, of course, be the price at which such property is sold.
“ (8) In the accounting, the value of the Byron avenue property should be placed at six thousand five hundred dollars ($6,500.00), unless the same is sold before the final accounting, in which event the value thereof will be the price at which such property is sold.” . '

The plaintiff in his bill of complaint did not mention the Byron avenue and Bethune avenue properties, nor the purchase of the two automobiles, nor the Waverly avenue lot transaction. The theory of his bill was that the oral agreement between himself and defendant Patrick E. Hurson (which he claims was not made till the fall of 1914) related only to the Cortland avenue transaction, and that the substance of the agreement was that he and Hurson were to purchase a certain brick-veneer four-family flat building then located on a certain lot on Cortland avenue in the village of Highland Park, in Wayne county, which the district of the public schools of Highland Park was contemplating purchasing as a school site; that Hurson was to supervise the work of removing the building from that lot and setting it up on another lot in the vicinity to be selected and purchased by them in the meantime; that plaintiff was to furnish the funds necessary to purchase the building and the new site and also to pay the expense of moving and relocating the building; and that any profits that might be realized out of the transaction were to be divided equally between the plaintiff and said defendant Hurson. The bill charged that the deed and land contract referred to in the foregoing findings of fact as having been executed by the defendants Brown to Hurson and wife covering this Cortland avenue property were obtained secretly and without plaintiff’s knowledge or consent, by means of false representations by Hurson to the defendant George D. Brown, and prayed that the said deed and land contract be canceled and a new deed and land contract executed to the plaintiff in lieu and stead thereof, subject only to the mortgage to the defendant Highland Park State Bank; that the Hursons be enjoined from collecting the rents or otherwise interfering with the management of the property, from conveying or incumbering the same and from withdrawing or using the unused balance of the amount loaned by the bank still remaining on deposit in said bank; that a receiver be appointed; that the property be sold; that an accounting be had; and that the rents and proceeds of sale of said property be divided and distributed in accordance with the respective rights of plaintiff and defendant Hurson under the agreement.

The answer and cross-bill of the Hursons denied the oral agreement as set forth in plaintiff’s bill, but alleged that an oral agreement was entered into in the spring of 1914 in terms, substantially, as found by the trial judge. It then recited the several joint transactions under said agreement referred to in the findings of fact above quoted, claiming for the defendant Patrick E. Hurson a half interest in the profits of each of said transactions, except as to the Cortland avenue property, of which it alleged the Hursons were the sole and lawful owners, free from any claims or rights of the plaintiff under the oral agreement, by reason of the alleged fact that the plaintiff, in return for Mr. Hurson’s having allowed him to take out of the operation of said oral agreement a proposed transaction involving the removal from one lot to another on Josephine avenue in the city of Detroit of a certain house, which plaintiff wished to acquire for himself as a residence, had agreed verbally to allow Hurson to take over the moving and relocating of this Cortland avenue flat building as his individual transaction, released from the operation of the agreement, provided Hurson repaid plaintiff all moneys plaintiff had or might advance in connection therewith. It was further alleged that plaintiff, in closing the transaction for the purchase of the new site, was acting as Hurson’s attorney, and that he inserted his own name in the land contract together with Hurson’s without the latter’s knowledge or consent, and presumably as security for the moneys advanced by plaintiff in the transaction; that Hurson financed the moving operations so far as he was able, but was .obliged to borrow some amounts from plaintiff; and that as soon as he obtained a deed of the property and was able to borrow money from the bank on a mortgage he tendered plaintiff all amounts advanced by him in the matter, but that plaintiff refused to accept same; that Hurson later left in plaintiff’s office a check for the amount of said advances (less the amount of a counterclaim by Hurson), which check plaintiff had neither cashed nor returned. The cross-plaintiffs claimed that no settlement had ever been had in connection with any of the joint transactions under the oral agreement, and prayed for an accounting in said matters; also for the appointment of a receiver for the Bethune and Byron avenue properties, and for an injunction restraining plaintiff from conveying or incumbering same.

The plaintiff denied Hurson’s right to one-half of the profits in connection with the Byron and Bethune avenue properties, claiming that everything done by Hurson in supervising and assisting in the moving of these houses was done gratuitously and in contemplation of the purchase of the Cortland avenue property, in the profits of which alone Hurson was to have an interest.

A decree was entered, providing for the sale of the Cortland avenue property by a circuit court commissioner, for an accounting before-such commissioner by both plaintiff and defendant Hurson of all their respective receipts and disbursements in connection with the transactions in question, in which accounting the rental value of the Bethune avenue property during the time it has been occupied by the plaintiff shall be estimated and charged against him; and reserving further consideration of the case until after the taking of the account and application for further order or decree by the circuit court commissioner or any party to the case. The plaintiff and the defendants and cross-plaintiffs Patrick E. Hurson and Martha L. Hurson have appealed from this decree.

The disagreement between the parties in this case arises solely over disputed questions of fact. It is true, counsel for plaintiff makes the bare suggestion towards the close of his brief that the general oral agreement claimed by the defendant Hurson to exist between plaintiff and himself and the special oral agreement to release the Cortland avenue property from this general agreement are both within the purview of the statute of frauds, but no argument is advanced in support of this view and the point does not seem to be seriously taken. As to the oral agreement to release, the statement in plaintiff’s brief that,-—

“The agreement to surrender claimed by Hurson would certainly be an agreement for a transfer of an interest in lands,”

must have been an inadvertence on the part of counsel, for at the time this agreement is claimed to have been made, the lots to which the building was to be moved had not even been selected and the only'tangible property involved was the building which had just been bought as a chattel under a bill of sale. The other agreement in question — the general agreement as testified to by Mr. Hurson — seems to us to be clearly of the class of oral agreements upheld by this court in Carr v. Leavitt, 54 Mich. 540, Hurson’s claim as finally made being merely for one-half of the profits of the transactions as compensation for services rendered and not for any interest in lands. Moreover, although there is a dispute as to the date and scope of the oral agreement, that agreement, whatever it was, is the foundation of plaintiff’s bill of complaint, and he is therefore not in a position to question its validity, particularly when he is seeking relief in a court of equity and the invoking of the statute of frauds would operate inequitably upon the claimed rights of the defendants. We do not think there were any legal obstacles to bar the decision arrived at by the trial court.

We turn, then, to consider the disputed facts. Taking the testimony alone, as it appears in the printed record before us, if we assume that the witnesses on the opposing sides are equally reliable, we are unable to find any clear preponderance of evidence in fqvor of plaintiff as to the disputed facts alleged in his bill or in favor of the cross-plaintiffs as to the disputed facts set up in the cross-bill. The credibility of the respective witnesses, therefore, together with the general probabilities of the case in the light of all the facts and circumstances, must be the controlling factors in arriving at a decision, unless, as might perhaps be warranted, the court were simply to leave the parties where they have placed themselves by their negligence in allowing transactions of such a character to rest upon so slight and uncertain a foundation. While, as we have said, our former decisions have held such cases to be outside the letter of the statute of frauds, we think they are clearly tainted with the evil at which the statute was aimed. Transactions involving a series of dealings in real estate, the investment of considerable amounts of money, and the performance of services to be compensated out of the profits of the real estate when realized, especially where these operations are to extend over an indefinite period of time, should certainly never be allowed to be entered into on the basis of a mere vague verbal understanding, which, the moment any difficulty or dissatisfaction arises, is almost certain to prove to be a misunderstanding.

In' a case such as this, where the decision must turn almost entirely upon the relative credibility of the various persons who testified, very clear evidence of unreliability on the part of witnesses to material facts must appear in the record to justify this court in disturbing the findings of fact made by the trial judge, who had. the advantage of listening to all the witnesses, observing their appearance and manner when testifying, and receiving that direct impression from their words and conduct which is such an important element in producing a conviction in the mind as to the truth or falsity of their statements. We have examined the testimony of all the witnesses with great care, and while we have observed in a number of instances some inaccuracies and contradictions in the answers of certain witnesses and some doubt is thrown upon certain of their statements by rebutting testimony, yet, on reading the testimony of these witnesses as a whole, as it stands in cold print, with no knowledge of the manner in which the testimony was given, there is nothing that impresses us that the statements of any one of the principal witnesses concerning the material facts in issue should be greatly discredited. Finding, therefore, nothing in the testimony itself that would incline us to accept the version of the transaction given by one side in preference to that insisted upon by the other, clearly we are not warranted in disturbing the findings of the circuit .judge. He had the witnesses before him and received impressions from their testimony which resulted in his findings of fact. Moreover, judging merely by the probabilities of the case— what we would expect the average man to do under similar circumstances, or what circumstances would induce ordinary men .to act in the way these parties did — we are inclined to think that the findings of the lower court on the two principal points in controversy, viz., the date and scope of the oral agreement and whether or not the Cortland avenue property had been withdrawn from the oral agreement, are well made.

Accepting, therefore, the findings of the circuit judge as correct, we think his decree affords the proper remedy, and it is accordingly hereby affirmed, without costs to either party.

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


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

text:
    BRABON v. GLADWIN LIGHT & POWER CO.
    1. Master and Servant — Workmen’s Compensation Act — Agreements — Approval by Board Necessary.
    In cases arising under the workmen’s compensation act (2 Comp. Laws 1915, § 5423 et seq.), the terms of any agreement made by the employer and employee or his dependents, concerning compensation, to be binding, must, under section 5458, be filed with, and approved by, the industrial accident board, which will not approve settlements or agreements therefor not in conformity with the act.
    2. Same — Election of Remedies — Abatement.
    If an employee has the right either to sue his employer or to take compensation under the workmen’s compensation act, and he sues and later files a claim under said act, the action at law will abate (2 Comp. Laws 1915, § 5488).
    3. Same — Workmen’s Compensation Act — Negligence of Third Person — Remedy of Employer — Measure of Damages.
    If an employee is injured by the negligence of a third person, lie may eleGt to sue that person or to claim compensation from the employer under the statute (2 Comp. Laws 1915, § 5468); and if'he claims and is paid, such amount becomes the measure of the recovery of his employer against the third person.

      See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.

      4. Same — Workmen's Compensation Act — Negligence of Third Person — Election of Remedies — What Constitutes.
    An acceptance by the widow of some compensation for the death of her husband voluntarily paid by the employer and not under an agreement filed with, and approved by, the board, does not constitute a “proceeding” under 2 Comp. Laws 1915, §§ 5468, 5488, so as to preclude an action at law against a third person whose negligence caused his death. Fellows, J., dissenting.
    5. Evidence — Expert Witnesses — Opinion Evidence — Electricity —Possible and Probable Effects.
    In an action under the death act (3 Comp. Laws 1915, §§ 14577, 14578), for death by electrocution, testimony by a witness who had formerly been a lineman for defendant that it would be possible, under certain conditions, for electric current to jump from the primary wires to exposed places on the lighting circuit was admissible, since a subject can not be developed by one question and answer and the witness was further examined and cross-examined and what he actually knew was made plain.
    6. Electricity — Death by Electric Shook — Evidence—Sufficiency.
    In an action for death by electric shock, evidence examined, and held, to warrant a finding by the jury that a metal wall was electrified from defendant’s wire, and that plaintiff’s decedent was electrocuted because thereof; inference from proven facts, and not conjecture, supporting the finding of the jury..
    7. Same — Instructions—Instantaneous Death.
    In such action an instruction that death was instantaneous was proper, since the death was caused by an electric shock and whether or not one or more minutes elapsed before life was extinct is not material.
    Error to Gladwin; Sharpe, J.
    Submitted April 3, 1918.
    (Docket No. 18.)
    Decided June 3, 1918.
    Case by Alma Brabon, administratrix of the estate of Jacob Lehman, deceased, against the Gladwin Light & Power Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Vandeveer & Foster, for appellant.
    /. C. Shaffer, John Prindle, and Hal P, Wilson, for appellee.
   Ostrander, C. J.

Plaintiff’s decedent, Jacob Lehman, was a carpenter, but sometimes did other work. He was killed while in the employ of E. A. McGeorge & Son, who own and operate an elevator at Gladwin, Michigan, who had elected to come under the workmen’s compensation act, whose insurer was the Fidelity & Deposit Company. Although little testimony upon the subject was elicited, it seems to be conceded that Lehman was making some repairs about the place, working as a carpenter. In the morning of August 12, 1915, he was found standing, in contact with the metal siding of the elevator building, dead. Surviving him are his widow and three minor children. His widow, since remarried, is administratrix of his estate, and, assuming that the death of her husband was caused by a current of electricity and that the defendant, whose wires entered the elevator and who furnished the own-* ers electric energy for power and lighting, was negligently responsible for charging the metal siding of the building with electricity, she brought this suit against it under the death act, filing her declaration in August, 1916. With the plea defendant gave notice that it would prove that after Lehman’s death the plaintiff “accepted and received benefits as provided for by said workmen’s compensation act,” by reason of which she is barred from maintaining this action. Upon the trial the jury returned a verdict for plaintiff for $8,-300, upon which judgment was entered. Various exceptions were taken at the trial, upon some of which assignments of error, nine in number, are based, those relied upon in the brief being (1) a refusal to strike out certain testimony, (2) refusal of the court to direct a verdict for defendant when plaintiff had rested, (3) refusal to direct a verdict for defendant at the close of the testimony, (4) a statement made by the court in the charge, “The death, there is no question about, was instantaneous,” and “This man was instantly killed,” (5) an erroneous instruction concerning the measure of damages, (6) the instruction,

“I do say to you as a matter of law * * * that there was not such an agreement made by the widow relative to the compensation as precludes her from bringing this suit.”

1. The contention of appellant that this plaintiff can not maintain this action is first considered. Sections-5468 and 5488, 2 Comp. Laws 1915, read as follows:

“(5468) Sec. 15. Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the employee may at his option proceed either at law against that person to recover damages, or against the employer for compensation under this act, but not against both, and’ if compensation be paid under this act the employer may enforce for his benefit or for that of the insurance company carrying such risk, or the commissioner of insurance, as the case may be, the liability of such other person.”
“(5488) Section 1. If the employee, or his dependents, in case of his death, of any employer subject to the provisions of this act files any claim with, or accepts any payment from such employer, or any insurance company carrying such risks, or from the commissioner of insurance on account of personal injury, or makes any agreement, or submits any question to arbitration under this act, such action shall constitute a release to such employer of all claims or demands at law, if any, arising from such injury.”

The testimony discloses that the employer and the Fidelity & Deposit Company, before this suit was begun, paid the widow of Lehman, the plaintiff here, sums of money. The exact amount is not made certain, but it seems to have been at least $129 or $130. The widow was advised about her rights and she understood that she could either accept payments of $7.21 a week or she could sue the defendant here, as she has done: Plaintiff gave testimony as follows:

“Q. Isn’t there an agreement between you and the insurance company that you can claim your compensation at any time that you desire to do so?
“A. No, no agreement.
“Q. There is not? (No response.)
“Q. And before determining whether or not you will claim that compensation you are waiting the outcome of this lawsuit are you not?
“A. Yes, sir.
“Q. And that is the understanding that you have with the attorneys in this case?
“A. Yes, sir. * * :1:
“Q. Well, there is an agreement that if this case fails that you shall then continue to get your compensation, that is true, isn’t it, Mrs. Brabon?
“A. I think so.
“Q. Well, you had a talk and you know that if you don’t get any money in this case then your understanding and your agreement is that you are to get your compensation?
“A. Do you mean so much a week?
“Q. Yes, for the death of your husband.
“A. For how long?
“Q. Well, for the 300 weeks, for the balance of the 300 weeks.
“A. I don’t know. * * *
“Q. You are now awaiting the outcome of this case to determine as to whether or not you will accept additional compensation, are you not, Mrs. Brabon? * * *
“A. Why, of course I am waiting to see the outcome of this—
“Q. Waiting for what, Mrs. Brabon?
“A. I am waiting for this—
“The Court: ‘To see the outcome of this’ is the way she answered.
“Q. Yes, and if you don’t recover in this case, it is the understanding and the agreement between the parties that you are then to receive your compensation, is it not? * * *
“A. Well, I haven’t agreed to nothing like that. * * * I have not entered into a contract with my attorney as to what percentage he shall obtain as fee in event of a recovery in this case * * * I did not sign an agreement regarding compensation in this case.”

It does not clearly appear that any formal claim for compensation was made by the widow to the employer, and it does not appear that any agreement about compensation was made or that any document or agreement about it was filed with the industrial accident board. There is some testimony to the effect that she was offered money by the employer and urged to accept it but, for a time at least, refused it. It is, however, a reasonable, if not a necessary, inference from the testimony that the widow understood that the sums paid to her were not mere advances, or charitable gifts, but were paid to her on account of an admitted right which she had to look to the employer for compensation.

The employer wrote two letters which indicate its attitude in the premises, one dated October 7, 1915, the other the next day, which are here set out:

“Mr. A. J. Spalding, Adjuster
“Fidelity & Deposit Company of Baltimore, Maryland,
“Detroit, Michigan.
“Dear Sir: Regarding the case of Jacob Lehman, the widow came to our office Wednesday, October 6th, and asked if I could let her have some money. I let her have a check for $7.21 which is the amount you advised we should advance. This is the first time that she has asked for or accepted money from us since the accident and we would like to know if you people cannot arrange to send her the correct amount weekly from now on.
“Kindly let us have a prompt reply.”
“Mr. A. J. Spalding,
“Detroit, Michigan.
“Bmr Sir: We learned today in a round-about way that Mrs. Lehman has decided to accept her compensation as advised you yesterday we advanced her $7.21 on October 6th. You will kindly advise the Fidelity & Deposit Company of Maryland to take care of the weekly payments in the future.”

In cases arising under the compensation act, it is the rule that the terms of any agreement made by the employer and employee or his dependent claimants, concerning compensation, to be binding, are subject to the approval of the industrial accident board, which will not approve settlements, or agreements therefor, not in conformity with the act. The agreement is not final and binding until filed with and approved by the said' board. If the employee has the right either to sue his employer at law or to take compensation under the statute, and he sues and later files a claim for compensation, the action at law will abate; because by the terms of section 5488, above quoted, in filing his claim he has released to his employer all demands at law. Gray v. Brown & Sehler Co., 200 Mich. 177. If the employee is injured by the negligence of a third person, he may elect to sue that person or to claim compensation under the statute (Grand Rapids Lumber Co. v. Blair, 190 Mich. 518; Albrecht Co. v. Iron Works, 200 Mich. 109; Dettloff v. Hammond, Standish & Co., 195 Mich. 117), and if he claims and is paid compensation, the amount which is paid becomes the measure of- the recovery of his employer against the third person. Beyond this, it was intimated in Grand Rapids Lumber Co. v. Blair, supra, in agreement with Thompson & Sons v. Engineering Co., 1 K. B. (1903) 428, Nettleingham & Co. v. Powell & Co., 1 K. B. (1913) 113, that if compensation is voluntarily paid by the employer under an agreement to do so, not formally sufficient to satisfy the statute or bind the employee, the employer may sue the responsible third person for indemnity, having to satisfy the court that the amount claimed was properly'paid by him.

In the instant case, the alleged responsible third person pleads, in effect, that the representative of the employee had proceeded against the employer for compensation under the act before bringing this suit, and, as she cannot proceed against both the employer and the defendant, the suit must abate. And this raises the precise question to be determined, namely, did she proceed against the employer for compensation, within the meaning of the statute? There is no statute definition of the word proceed. Particulars of conduct which would release to the employer, no third person being responsible, any right of action at law against him, namely, filing any claim, accepting any payment, making any agreement with reference thereto, recited in section 5488, are not repeated in section 5468. In Dettloff v. Hammond, Standish & Co., supra, the Widow and administratrix, before suing the alleged responsible third person, made an agreement with the employer, by the terms of which she was to sue the responsible third person, saving and reserving her right to compensation under the statute. If she received less than she would be entitled to receive under the compensation act, the employer, party to the said agreement, was to pay her the difference. Whether it was a good or bad agreement, in law, it was an agreement with respect to compensation, not submitted to or approved by the industrial accident board. As affecting the construction of the statute and the precise question presented in the instant case, the decision in Dettloff v. Hammond, Standish & Co. is that the mere making of the agreement was not a proceeding fco obtain compensation under the act. ■ No money had been demanded from or had been paid by the employer, who therefore had no claim to be indemnified by the wrongdoer. In short, all there was done was held not to evidence an election to proceed against the employer for compensation and to evidence an election to proceed against the responsible third person.

Here, the claimant widow has accepted some compensation from the employer, paid voluntarily, it is true, but under circumstances which, if payments were completed and accepted, would undoubtedly give him a right of action against the responsible wrongdoer for indemnity. Her loss resulting from the injury has been pro tanto reduced — satisfied—by the money she has accepted. If she may thus accept compensation for 20 weeks and then sue the wrongdoer, she may accept it for 100 weeks or more and sue the wrongdoer.

These and other considerations point to the conclusion that, within the meaning of the statute, she had proceeded against the employer before bringing this suit, as, in a supposed case, demand upon and settlement with the responsible wrongdoer would be considered to be a proceeding against him. Mulligan v. Dick & Son, 41 Sc. L. Rep. 77.

On the other hand, we have legislation which requires interpretation and, in the administration of the law, application, in harmony with its general purpose. It both creates a liability and provides a method for enforcing it. To proceed under it, against an employer, is to give notice of an injury, make a claim for compensation, secure the judgment and finding of the board upon all points involved, or its approval of any agreement for compensation which the interested persons may enter into. Finally, if it is desired, a judgment may be had, in conformity with the conclusions of the board. Little difficulty-is experienced where the facts are like those presented by this record, but in a large number of cases, perhaps in a majority of them, the original findings may be controlling for a limited period only, and subject upon certain conditions to revision and amendment. To proceed against the employer is. to employ the procedure, the method, pointed out in the statute. If the particular provision of the law is interpreted in harmony with this idea and view, questions like the disturbing one now being considered cannot hereafter arise, or, arising, may be disposed of by a certain rule. Tested by such a rule, plaintiff has not proceeded against the employer because she has neither made with him an approved agreement nor has she submitted a demand against him to lawful determination.

It is held, in agreement with the ruling of the learned trial judge, that plaintiff may maintain her suit.

2. The testimony which the court refused on motion to strike out was the answer of a witness to the question,

“In your opinion would it be possible for that primary wire to jump over on those places you have spoken of, those bare places?”

The witness, who had formerly worked as lineman for defendant, answered, “It would be possible under certain conditions.” The objection was,

“I object to that and ask that it be stricken out-as to what would possibly happen.”

The point presented in argument is that negligence of defendant cannot be made to rest upon mere possibilities. But the effect of this testimony was not to prove possible negligence or possible instead of probable conditions. An impossible condition can never be a probable one. A possible condition may or may not be probable. Usually, a subject cannot be developed by one question and answer, and it ,was not error for counsel to ask the witness, supposed to have extra knowledge, about certain phenomena and their causes, if it is possible that a certain result, or effect, or condition, may come from stated conditions. If no more was proved, the testimony might be wholly immaterial as affecting the issue of fact presented, depending somewhat upon the degree of care which the law required to be exercised in the premises. This witness was cross-examined and is commended by counsel for appellant for his frankness. Just what he knew and what he guessed at was made plain.

3. Two reasons were given for requesting a directed verdict when plaintiff had rested her case, namely, (1) no actionable negligence had been established, and (2)' the cause of the accident rested in speculation, guess, conjecture.

The testimony tended to prove that the person who discovered plaintiff’s decedent, dead, received an electric shock when he touched the body. It was not until the current was shut off that he was moved. It tends to prove, further, that there were several large burns on his person, and on the bottoms of his feet a number of holes having the appearance of being made with a hot iron. In the opinion of the medical man called to see him, he was electrocuted. At the point where the wire carrying the current for lighting entered the elevator,

“The metal had been- melted and looked as though it had been soldered together. Where the fire went in, a hole had been burned the size of a bowl.”

No other wires than defendant’s entered the building. Near the building was a transformer, on a pole to which a primary wire carrying 2,300 volts was run and from which the wire for the lighting current ran to the elevator. Normally, this secondary wire carried 110 volts, perhaps 220; the record does not seem to be quite clear upon this point. Formerly, another than defendant had furnished current for the elevator. A circular loom conduit led through the wall, and through it the wire passed. It was not a porcelain tube, but made of other material. A witness, a former lineman of defendant, testified that

“A circular loom is not supposed to be used on buildings where it is exposed.”

The same witness testified that after the injury and after the fire which was set to the elevator building had been put out, he noticed the wires and where current had jumped from the primary wire to the lighting wire which led to the elevator. He testified to •certain bare joints and points on the wires — not insulated — and also that there were places where the high tension wire and the lighting wire were separated from each other not farther than three inches. He further testified:

“The wires were supposed to be insulated. At places, a majority of the joints were not soldered, being bare for a distance of an inch or an inch and one-half. This condition, I think, I found immediately after Lehman was dead. More bare joints were found on the transformer pole than in other points. I couldn’t say how many there were on the transformer pole, but would say three.”

It is unnecessary to further set out testimony. The morning was a rainy one. The jury was warranted in finding that the metal wall was electrified from defendant’s wire and that plaintiff’s decedent was killed —electrocuted—because thereof. There was evidence of faulty conditions of wiring. It was possible for the greater voltage to reach the secondary wire. No other cause for what occurred is suggested. Indeed, any other cause is eliminated. Inference from proven facts, and not conjecture, supports the finding of the jury.

The motion for a directed verdict, made at the close of the testimony, was based upon reasons already given and then repeated, and upon the further ground that plaintiff had elected to accept compensation under the act. What has been said disposes of the contention.

5. The court was not in error in saying to the jury that death of plaintiff’s decedent was instantaneous— that he was instantly killed. For the purposes of the point made, namely, that suit was improperly brought under the death act (3 Comp. Laws 1915, §§ 14577, 14578), there can be no question about the fact. The man was killed by a current of electricity received when he leaned against or touched the metal wall, and whether one or more minutes elapsed before life was extinct is not material. A verdict based upon another conclusion would have properly been set aside by the court.

•No reversible error is pointed out, and the judgment is affirmed, with costs to appellee.

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

Fellows, J.

(dissenting). I think it would logically follow from the construction of section 15, part 3, of the workmen’s compensation law (2 Comp. Laws 1915, § 5468), indulged in by the Chief Justice in this case, that an employee negligently injured by a stranger while in the performance of his master’s service could enforce compensation from such master, even though he had secured by an amicable and voluntary settlement full compensation from such stranger for all damage done him by such negligence, because if we follow the construction of the Chief Justice the employee had not “proceeded at law” within the meaning of the section. If this plaintiff received and accepted money as compensation under the act from the employer or the insurer, and is not held to have elected under the act, because she had not instituted a proceeding by so doing, then an employee may accept by voluntary settlement with the wrongdoer his damages for the tort committed upon him, without having elected under the act, because he has not instituted a proceeding in court to secure such damages. I find no provision of the statute which would authorize either the board or the court in reducing the amount recovered by the amount already received, although equitable considerations would require that to be done. The construction when adopted by this court must be of universal application, and must apply as well where compensation as compensation is accepted without formal action by the employee or dependent as it would where money is received in settlement from the wrongdoer without formal proceedings to enforce the paymentoOf the same. I cannot agree with a construction of this section which by any possibility would reach the result indicated. It is at variance with the spirit and purpose of the act, and, in my judgment, in conflict with its language.

This section of our act is taken almost literally from the English act of 1897 (60 and 61 Viet. chap. 37). In 1903, several years before the passage of our act, the Scottish court had this provision under consideration in the case of Mulligan v. Dick & Son, 41 Sc. L. Rep. 77. In this case Mulligan was an employee of Dick & Son, contractors for the mason work in the repair and reconstruction of the Grosvenor restaurant in Glasgow; Baird & Son were contractors for the iron and steel work. Mulligan, while so employed, was injured by the fall of a hammer through the negligence of an employee of Baird & Son; they voluntarily settled with him and paid him £17, 2s, and took a receipt which recited that it was “without prejudice” to his claim under the workman’s compensation act. Thereafter he brought proceedings against his employer under the compensation act, and it was urged in his behalf that he had not proceeded against Baird & Son because he had brought no action. Compensation was denied him, the Lord President, in answering the contention of the employee, saying:

“The main argument addressed to us against the judgment of the sheriff-substitute was that in order to this provision applying the words ‘proceed at law’ involve the institution of some proceeding by action or otherwise, and that inasmuch as there was. no such proceeding in this case the alternative stated was not raised, and the provision did not apply. But it appears to me that the words ‘proceed at law’ are not used, in the technical sense of taking proceedings in a court. It seems to me that the meaning conveyed by the word ‘proceed’ in the act might be more shortly expressed by the word ‘go,’ and that if the workman goes against one party he has elected to take one of the remedies open to him, and that if he takes his common-law remedy he cannot also claim his statutory remedy. I therefore think that the argument that what was meant by the . 6th section was some legal or judicial procedure, and not an extra-judicial settlement of a claim duly made, is not well founded, and that the conclusion at which the sheriff-substitute has arrived is a sound one.”

Lord Adam, in agreeing with the Lord President, said:

“In these circumstances, as your Lordship has pointed out, the appellant had two remedies — he could either proceed for damages against the persons who were responsible for the fall of the hammer, that is, against Messrs. Baird, or he could claim compensation from his own employers under the workmen’s compensation act. The act did not deprive him of his right to damages if he could make out fault in the person who caused the accident. But here section 6' comes into operation, and provides that he may, in his option, ‘proceed either at law against that person to recover damages, or against his employer for compensation under this act, but not against both/ That is what the act says, and the question here is, Did the workman exercise his option? What happens was that he made a claim against Messrs. Baird for damages, and received payment of £17, 2s, and the question is whether in doing so he exercised his option under the act. I did not understand Mr. Campbell to dispute that this was a proceeding for the recovery of damages, but he maintained that it was not a proceeding of the kind specified in section 6, which would bar a claim against the employers under the act. The argument went the length of maintaining that no matter how large the claim, and no matter how successful it might be in obtaining payment, if it was not in the form of an action at law it was not a proceeding contemplated by the act, because the provision of the act means that nothing but an action at law will bar the claim against the employers. The appellant founds on the words of the act ‘proceeding, either at law against that person to recover damages/ and says that the option which the workman must exercise lies between proceedings at law — i.e., an action in court, and proceedings under the workmen’s compensation act. I think that construction is quite wrong, and that the act does not mean proceeding at law in that sense. The true construction of the act is that an alternative is given between a claim under the ordinary common-law liability, in contradistinction to proceedings under the act. The statute says that if you take proceedings against the party in fault, that bars you afterwards from proceeding against your employers for compensation. I think that it cannot be disputed here that the appellant did proceed against the party at fault, and therefore exercised the option given to him under the act.”

Lord M’Laren also agreeing, said:

“I might also say that I think the word ‘proceed’ is sufficiently comprehensive to include the recovery of damages by voluntary agreement as well as recovery under a decree.”

Lord Kinnear, the other member of the court, said:

“It appears to me that the statute offers a perfectly clear option to the workman in circumstances like the present. He may either go against the person responsible for the injury, who in the running title of the 6th section is conveniently called the stranger, or he may go against his employer for compensation under the act, but he cannot go against both. Therefore if he has made- a claim against the stranger the statute says that he shall have no claim against his employers.”

In the case of Dettloff v. Hammond, Standish & Co., 195 Mich. 117, the plaintiff had entered into a contract which had not been approved by the board. We held that it contravened the public policy of the State to contract without such approval and that the contract without such approval was void and unenforceable. But in that case the plaintiff had received no compensation, nor had she secured to herself compensation by an enforceable contract. She, therefore, had not elected. In the instant case the testimony tends to show that the plaintiff had been paid, and had received as compensation under the act three weekly payments from the employer (who had been reimbursed by the insurance company), and several other payments from the insurance company. This, in my judgment, was an election under the act; she had “proceeded” against the employer within the contemplation of section 15, part 3 (2 Comp. Laws 1915, § 5468).


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

text:
    PEOPLE v. PRETSWELL.
    1. Criminal Law — Manslaughter—Corpus Delicti — Prima Faciei Proof.
    Where, on a prosecution for manslaughter, it appeared that defendant was driving an automobile at the rate of 30 to 35 miles an hour and ran over a boy; that the “body” was picked up from the street and carried to a grass plot; that a doctor testified that he performed a post mortem examination on the body of the boy, and that death was caused by a fractured skull; that said doctor was not cross-examined, nor his unequivocal testimony of identity shaken or questioned. Held, that the corpus delicti was prima facie established. Ostrander, C. J., and Stone, J., dissenting.
    2. Same — Corpus Delicti — Trial—Ex Parte Affidavits.
    In such prosecution, whether or not the corpus delicti was proven depended upon what occurred upon the trial, and not upon what was made to appear by a post trial ex parte affidavit in support of a motion to set aside the verdict; if defendant’s counsel had cross-examined the affiant upon the trial and brought out the facts disclosed in the affidavit, another question would be presented. Ostrander, C. J., and Stone, J., dissenting.
    3. Same — Admissions—Appeal and Error.
    Where, on such prosecution defendant’s counsel conceded, in open court, in the presence of defendant, that the death of the boy was established, he is estopped to question the prima fade proof of the corpus delicti. Ostrander, C. J., and Stone, J., dissenting.

      4. Appeal and Error — Admissions—Res Judicata.
    In a civil case a judicial admission is binding, not only upon the trial then in hand, but also on a subsequent trial of the same case.

      5. Same — Evidence—Admission of Testimony — Objections Not Raised on Trial.
    Error cannot be predicated on the admission of testimony to whicb no objection was interposed on the trial.
    6. Criminal Law — Manslaughter — Automobiles — Identity oe Driver — Evidence—Sufficiency.
    Evidence held, to warrant a finding that defendant was the driver of the car.
    7. Same — instructions.

      Held, that the trial court, in his instructions, fairly applied the principles laid down by the Supreme Court as to . what constitutes involuntary manslaughter.
    8. Appeal and Error — Ordinances—Statutes—Judicial Notice of Ordinance — Harmless Error.
    On a prosecution for manslaughter for killing a boy by recklessly driving an automobile on the public streets, it was not prejudicial error for the trial court to take judicial notice of the city ordinance regarding the speed at which such vehicles might be driven, where the statute fixed the same limit as the ordinance.
    9. Criminal Law — Manslaughter—Cause of Death — Question for Jury.
    Whether the death caused by the automobile was unavoidable or was the result of decedent’s own carelessness was a question of fact properly submitted.
    Error tp recorder’s court of Detroit;'Jeffries, J.
    Submitted April 12, 1918.
    (Docket No. 132.)
    Decided June 3, 1918.
    Arthur Pretswell was convicted of manslaughter and sentenced to imprisonment for not less than two nor more than fifteen years in the State prison at Jackson.
    Affirmed.

      Fitzgerald & Ring, for appellant.

      Alex. J. Groesbeck, Attorney General, Charles H. Jasnowski, Prosecuting Attorney, and DeWitt H. Merriam, Assistant Prosecuting Attorney, for the people.
   Ostrander, C. J.

(dissenting). On Commonwealth avenue, in Detroit, about half-past seven o’clock in the evening of September 12,1917, some children were standing and some were playing hide and seek. The goal was on the east side of Commonwealth avenue near the corner of Kirby avenue, an intersecting street. William Kerbyson, one of the children, a boy of about 13 years, had been in hiding on the west side of Commonwealth, and he ran out from between some houses there and into the street. Reaching the curb on the west side, running, he tried to stop, but ran or fell, or slid, into the street and either into the side of or into the path of an. automobile going south on Commonwealth, and was injured. The people charge that he was killed and that respondent was responsible for the killing; that he “wilfully, unlawfully, feloniously, wantonly, negligently and recklessly” operated his. car, and that he feloniously did kill and slay the said Kerbyson. But upon his trial, he was convicted of manslaughter and sentenced to be imprisoned for a period not less than two years, the statutory maximum sentence being fifteen years. A motion to set aside the verdict was denied.

Respondent contends in this court that the judgment should be reversed:

“First. Because the people failed to prove the corpus delicti.
“Second. Because the court erred in admitting the evidence of Edward Ross as to the speed of the car when he was not in a position to competently judge that speed.
“Third. Because the court erred in not directing a verdict of acquittal at the conclusion of the people’s case.
“Fourth. Because the court erred in not charging the jury fully and completely as to what constitutes involuntary manslaughter.
“Fifth. Because the court erred in charging the jury as to the provisions of the ordinances of the city of Detroit controlling the operation of motor vehicles within the city and basing respondent’s unlawful act upon the violation of such ordinance.
“Sixth. That the court erred in referring only to the evidence of the people’s witnesses and not referring in any manner to the theory of the defense.
“Seventh. That the court erred in charging the jury upon the theory of contributory negligence of deceased when as a matter of fact the proofs show that the accident was unavoidable upon the part of respondent.”

Neither in the motion to direct a verdict nor in a request to charge was the point made in the court below that proof of the corpus delicti had failed. It was first presented as a reason for granting the motion to set aside the verdict. The contention is, therefore, based upon no exception. As the argument is understood, the precise point raised is that the proofs fail to show that the boy who was injured by the automobile died as a consequence, or, indeed, is dead. It was an essential fact, required to be proved beyond a reasonable doubt. That it was not proven — that there was no testimony supporting such a conclusion — may be relied upon on a motion in arrest of judgment or to set aside the verdict and grant a new trial, and the point will be considered on appeal: this because a respondent charged with having committed a felony may sit by while the prosecution makes such a case as it can, and is not obliged, before verdict, to point out that an essential element of the offense which the prosecution is bound to prove has not been proved.

The record discloses that a boy, called in the information William H. Kerbyson, and by witnesses and counsel Corbson, was injured by an automobile on September 12, 1917, after his injury was lying in the street and was carried to the curb, where some one held him until a doctor came. Whether he was then alive or dead, the nature and extent of his injuries, does not appear, nor what was afterwards done with him. It appears further that on September 13, 1917, Dr. Kenneth Dick, one of the county physicians, performed a post mortem examination upon a body at the rooms of a certain undertaker. The inquiry made of the doctor was: “Q. I ask you whether or not you performed a post mortem examination on the body of William H. Corbson?” the answer: “I did.” . The evidences of injury which he found were described by the doctor, and among other injuries he found a fractured skull which he said was the cause of death. He described the boy as about 13 years of age. There is no other testimony upon the subject. In support of the motion to set aside the verdict, the doctor made an affidavit in which he says he did not know the boy but had been informed that the body upon which he performed the autopsy was that of William H. Corbson. Nothing is claimed in the brief for respondent for a difference in the spelling or pronunciation of the name of the boy.

This record, the fact that this case is here upon such a point, illustrates the value of the rule of practice in the trial of criminal causes involving homicide which requires proof, first of all, of the corpus delicti; that a certain named person is dead, and somebody’s criminality as the cause of the death. It is apparent that the prosecuting attorney at the trial principally •directed effort to prove the identity of the driver of the car, careless or forgetful of the fact that it devolved upon the people to prove, beyond a reasonable doubt, that a homicide had been committed, and of the further fact that the respondent waived proof of nothing essential to his conviction.

Counsel for the people call attention to decisions of this court, among them Foley v. People, 22 Mich. 227, to the effect that, unless some question is made upon it in the trial court, a point may not be relied upon on writ of error. None of the cases cited is controlling here. It has been the rule in this State, at least since People v. Lane, 49 Mich. 340, was decided, that even the respondent’s extrajudicial confession of crime, if unsupported, is not sufficient evidence of the corpus delicti. See, also, People v. Ranney, 153 Mich. 293 (19 L. R. A. [N. S.] 443).

In deciding this case, it is assumed that upon objection or suggestion the people could have produced testimony directly tending to prove the death of the boy as the'result of being struck by, or of running into, the automobile. But it must be held that what was offered was insufficient to sustain the burden resting upon the people.

No objection was made to the testimony.

The court ought not, for any reasons asserted at the trial, to have directed a verdict for respondent. There was testimony warranting the jury in finding that respondent was the driver, of the car.

The principles laid down and applied in People v. Barnes, 182 Mich. 179, were fairly applied in the charge which was given.

The court apparently took judicial notice of the ordinance of the city of Detroit concerning the lawful speed at which automobiles may be driven. People v. Quider, 172 Mich. 280. Whether the rate of speed with which the car was driven was a lawful rate was of some importance at the trial, and the statute and ordinance fix the same limit. There was, therefore, no prejudicial error in mentioning the ordinance.

The charge, no amendment being requested, did not misstate the applicable law.

It was a question of fact whether the striking of the boy was unavoidable or was the result of his own carelessness.

The judgment should be reversed, the prisoner remanded to the custody of the sheriff of Wayne county, to be dealt with according to law, and a new trial had.

Stone, J., concurred with Ostrander, C. J.

Fellows, J.

When the people proved in this case that the defendant, driving at the rate of 30 to 35 miles an hour, ran over the boy William H. Corbson (or Kerbyson), and that the “body” of the boy was picked up from the street and carried to the grass plot, when Dr. Dick was asked the question, “I ask you whether or not you performed a post mortem examination on the body of William H. Corbson?” and unequivocally answered, “I did,” and further testified that upon such post mortem examination he found a fractured skull, which he said was the cause of death, and he was not cross-examined, at all, or his unequivocal testimony of identity any way shaken or questioned, the corpus delicti was, in my judgment, prima facie established. This seems to have been the view of defendant’s counsel upon the trial, as he made no suggestion that the corpus delicti had not been proved, but centered his efforts to the question of whether the identity of the defendant had been established. Indeed, he affirmatively conceded that the death of the boy was established. During the discussion of his motion for a directed verdict the following occurred:

“The Court: Well, now_, let us see what the people have here, as a prima facie case: Here is a car — this is upon the people’s theory of this matter, and this is what the testimony tends to show, if the jury believe it, upon which they would be warranted in drawing a verdict from it — -the testimony tends to show that this boy was killed.
“Mr. Ellsworth (defendant’s attorney): Oh, yes.”

Whether the corpus delicti was proved or not depended upon what occurred upon the trial, not upon what was made to appear by a post trial ex parte affidavit. If defendant’s counsel had not admitted that the death of the boy was established and had upon the trial cross-examined Dr. Dick and brought out from him the facts disclosed by his affidavit, another question would be presented. I am impressed (1) That the corpus delicti was prima facie proved; and (2) by the admission made by defendant’s counsel in open court the question is not now available to defendant. In a civil case a judicial admission is held to be binding, not only upon the trial then in hand, but also on a subsequent trial of the same case. Connor v. Railway Co., 168 Mich. 29; Johnston v. Cornelius, 200 Mich. 209. It is not necessary to extend that doctrine to criminal cases in order to dispose of the instant case. Here defendant’s counsel, in open court, in the presence of the defendant, conceded that the death of the boy was established. I do nót think he, or other counsel substituted for him, can now on behalf of the defendant in this court, insist that it was not. For these reasons I do not agree with the Chief Justice that the case should be reversed on the assigned error that the corpus delicti was not proved. In other regards I agree with him. I think the conviction should be affirmed.

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


author: Ostrander, C. J.

text:
    STATE NATIONAL BANK OF ALBUQUERQUE v. WERNICKE.
    1.- Appeal and Error — Retrials—Law op Case.
    Although, an opinion of the Supreme Court was not unanimous, it settled the law of the case, -and upon a retrial the rule there announced should be applied by the trial court.

      2. Same.
    A finding of fact unsupported by evidence does not furnish a reason for declining to apply the law of the case as determined by the Supreme Court on a review of a prior trial of the same case; it appearing that the record was not materially different from that of the first trial.
    Error to Kent; Brown, J.
    Submitted April 16, 1918.
    (Docket No. 93.)
    Decided June 3, 1918.
    Assumpsit by the State National Bank of Albuquerque against Otto H. L. Wernicke on a contract of guaranty. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Carroll, Kirwin & Hollway, for appellant.

      Wilson & Johnson (Travis, Merrick, Warner & Johnson, of counsel), for appellee.
   Ostrander, C. J.

Setting up in the declaration an instrument, a promissory writing, dated February 20, 1907, plaintiff alleges

“that upon the execution and delivery of said guaranty or writing obligatory, and upon the strength thereof and relying thereon, and upon the special instance and request of the said defendant, it did, on, to wit, the 20th day of February, 1907, and on various dates * * * make loans, advances of money, and did extend credit to the said * *

The cause was tried by the court and findings of fact and law were made and filed. Exceptions followed and error is .assigned upon the action of the trial court.

Upon a former trial, a judgment for defendant was reviewed and reversed and a new trial ordered. 185 Mich. 281. Upon the record now before us, as upon the former record, it appeared — there is no dispute about it — that upon January 17, 1907, defendant wrote a letter to F. J. Houston Company, Albuquerque, N. M., in which., after reference to various matters, is the following:.

“In addition to this, if you can arrange it with the bank with which you are doing business to give you a line of credit of $1,200 or $1,500 and if they are willing to accept my guarantee in shape of bond or the usual form of guarantee so that I will not have to be bothered with the signing of the notes each time, I am willing to let you use the credit of my name to that extent.” * * *

This letter being presented to plaintiff bank, the bank prepared and handed to Mr. Houston to be sent on to defendant a form of guaranty and it went forward in a letter dated January 31, 1907. On or about February 4, 1907, defendant received the communication, made some changes in the form of the undertaking, had it rewritten, dated it February 4, 1907, signed it and sent it to the F. J. Houston Company with a letter. Mr. Houston, on February 11, 1907, presented the undertaking at the bank, which drew another guaranty to be signed by defendant, which was sent to defendant, and it was dated and signed by him at Grand Rapids, February 20,1907, and returned to Houston and reached the plaintiff. This is the writing set out in the declaration of plaintiff, which, after receiving it, returned to defendant his previously executed guaranty.

F. J. Houston Company had an account with plaintiff, opened in September, 1906. At the beginning of business February 11, 1907, F. J. Houston Company had overdrawn at the bank $1,085.69. On that day the bank discounted the note of said Houston Company, dated February 1, 1907, for $1,575, the amount of which was credited to the account of said Houston Company. It was discounted, so the cashier of plaintiff testified, upon the theory that the bank then extended to the Houston Company a credit of $1,575 “on the strength of the guaranty that we would get from Mr. Wernicke, which we afterwards did get from him.”

The note of February 11, 1907, above referred to, was renewed August 1, 1907. This renewal note was paid February 17, 1908, by cash $575 and a new note for $1,000, dated February 1, 1908. Including this, the indebtedness of the Houston Company to the bank February 17,1908, was $1,700. The fact that the parties did not at first agree upon the form of guaranty to be executed by defendant — that defendant amended' the form of the undertaking first proposed and signed it, that the plaintiff made another which defendant signed — was not proved upon the first trial. Otherwise, there is little, if any, difference in the testimony produced at the two trials.

The court found as matter of fact (a part of the 6th finding):

“On February 11,1907, the bank in form discounted a note for the F. J. Houston Company of $1,575.00. In making said loan or discounting said note, the bank did not rely on the statements contained in Mr. Wernicke’s letter of January 17, 1907, and Mr. Wernicke had refused to execute the guaranty drafted by the bank, and the bank had refused'to accept the guaranty executed by Mr. Wernicke dated February 4, 1907. The note was dated February 1, 1907; $75 of the amount was for six months’ interest, in advance, and $1,500 was credited to the F. J. Houston Company on open account, with the bank. At that time this account was overdrawn $1,085.69. The $1,500 paid this overdraft and left a balance of $415.31. Defendant knew nothing of this overdraft until after the failure of the company in September, 1909. Mr. Wernicke had no notice of the loan made by the bank to the F. J. Houston Company on the 11th day of February, 1907. He had no knowledge of any loan made to the F. J. Houston Company until some time after the execution by him of the instrument dated February 20, 1907, hereinafter mentioned.”

Conclusions of law are:

“1. The letter of January 17, 1907, written by Mr. Wernicke, was not a guaranty, and was not so regarded by the bank, and must be left out of consideration in fixing the liability of defendant. As Mr. Wernicke refused to sign the first form of guaranty drafted by the bank, and the bank declined to accept the guaranty which he did sign on February 4, 1907, the minds of the parties did not meet in regard to it. It is not claimed that the bank loaned any money relying on it. This suit is brought on the instrument dated February 20, 1907, and no liability can be based on the guaranty of February 4, 1907.
“2. The instrument dated February 20,1907, signed by the defendant, upon which this suit is brought, did not extend to any existing indebtedness of the F. J. Houston Company. It applied only to such credit as the bank might extend to the F. J. Houston Company after the execution and delivery of the instrument and relying upon that instrument. As no credit was extended by the bank to F. J. Houston Company relying upon said instrument, dated February 20, 1907, there is no liability against the defendant on the same.”

Appellant says that the finding that in making the loan, or discounting the note, of February 1, February 11, 1907, the plaintiff did not rely on the statements made in defendant’s letter of January 17, 1907, is not supported by any evidence, and is at variance with all the evidence in the case upon that subject. The direct testimony upon the subject has been referred to. It appears further that although the Houston Company was seeking credit at the bank, further credit was refused until the first undertaking made by defendant was presented. This tends to prove that the bank was in fact relying upon the promise made by defendant to the Houston Company. Treated as a finding of fact, the conclusion stated by the court does not appear to be supported by evidence.

In the opinion of this court (185 Mich. 281, 287, 288) it is said:

“It is urged that, inasmuch as the $1,575 note was discounted by plaintiff on the 11th day of February, nine days before the guaranty was executed, there was no consideration passing to the debtor which would support the guaranty. While there was an adjustment of the financial matters of plaintiff and the Houston Company before the guaranty was signed, it is obvious that they were adjusted and additional credit extended to the company on the strength of defendant’s letter, in which he promised to execute a guaranty to the amount of $1,500. It is doubtless true, as argued by counsel, that the letter itself did not amount to a guaranty; it was simply a promise to execute a guaranty. And it is quite likely that the bank took some chances in adjusting their matters in the way they did before they were advised that the guaranty had been executed; but that was a contingency which never happened. The guaranty was subsequently executed as promised, and the mere fact that it would have been difficult to enforce payment if the guaranty had not been executed affords no reason why the additional credit extended to the company in reliance upon defendant’s letter should not serve< as a consideration to support his guaranty. If any further consideration were needed, it can be found in the .fact that plaintiff was threatening the Houston Company with legal proceedings if it did not make payment of its overdraft.
“But it is argued that the plaintiff concealed the fact from defendant that the company was indebted to the bank, and therefore it was such a concealment of a material part of the transaction as would make it inequitable to enforce the contract. Unless the concealment amounted to a fraud, the surety would not thereby be released. If the defendant had inquired as to the fact, and the truth had been evaded, or otherwise concealed, it would then have amounted to a fraud; but, if no inquiry were made, the failure of plaintiff to disclose to the guarantor the indebtedness of the Houston Company to the bank would not amount to a fraud. 1 Brandt on Suretyship (3d Ed.), § 473; Hamilton v. Watson, 12 Clark & Finnellys (Eng.), 108.
“The defendant did not undertake by his contract to guarantee the payment of any existing note or overdraft owing by Houston & Co. to the bank. What he proposed to do in his letter, and what he afterwards did do, was. to guarantee a cash credit at the bank for Houston & Co. After he did so he was liable to the extent of his guaranty, whatever the form of the evidence of indebtedness might be. After the money was loaned to Houston & Co. in reliance upon the defendant’s letter and guaranty, it was at it's disposal, and if that company saw fit to use some or all of the $1,500 in paying existing indebtedness to the bank, of what importance is it, and how was the defendant prejudiced by such application? The defendant knew before he signed the guaranty that the Houston Company was experiencing some rough weather, and needed assistance, and he figured out himself in his letter that the company would need a credit of $1,200 or $1,500, and he consented to become surety in that amount to assist the company in making payment of its pressing demands, and it appears to me to be of ho moment that the bank happened to be the owner of one of those demands. Our conclusion is that the defendant is liable on his contract. Hamilton v. Watson, supra.”

It has been stated that the record now before us is not materially different from the record then before us. It is true that the conclusions reached by this court were not agreed to by all of the Justices. The law of the case was, however, settled. The rule announced in the opinion of the court should have been applied by the trial court upon the new trial. It was not applied and the finding of fact referred to, unsupported by evidence, does not furnish a reason for declining to apply it.

The judgment must be reversed, with costs to appellant, and a new trial granted.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.