author: Fellows, J. Moore, J.

text:
    GINSBERG v. BURROUGHS ADDING MACHINE CO.
    1. Master and Servant — Workmen’s Compensation Act — Evidence — Res Gestas — Narration of Past Events.
    In proceedings under the workmen’s compensation act, statements made by the injured employee to his family as to the accident he suffered, made at a place some distance away, several hours thereafter, were but the narration of past events, not part of the res gestee, and inadmissible in evidence.
    2. Same — Statements of Injured to Physician.
    Statements as to the happening of the accident made by the injured employee to the physician, who was not regularly retained by defendant, but only called occasionally, were inadmissible as hearsay.
    3. Same — Appeal and Error — Harmless Error.
    If there is competent evidence to sustain the finding of the industrial accident board, this court should affirm same, notwithstanding the admission of incompetent hearsay testimony.
    4. Same — Burden, of Proof.
    The burden of establishing a claim for compensation rests on those seeking the award, and they may prove their case by circumstantial evidence as other cases are established.
    6. Same — Industrial Accident Board.
    The industrial accident board is the trier of the facts, and weighs and measures the conflicting testimony, medical as well as lay, and may draw legitimate inferences from established facts and weigh probabilities from such facts, but inferences drawn must be from established facts, and inferences may not be built upon inference's, possibilities upon possibilities, or inferences drawn contrary to the established facts or contrary to undisputed evidence.
    6. Same — Establishment of Case — Inferences—Conjecture.
    The applicant may not recover if an inference favorable to him can be arrived at only by conjecture' or speculation, or if there are two or more inferences equally consistent with the facts arising out of the established facts.

      7. Same — Hearsay—Testimony to Sustain Finding oe Board.
    Where it was claimed that deceased’s death was caused by a blood clot originating from an injury to the thigh, and the only testimony of an injury to the thigh was hearsay, the only witness of the accident testifying that only deceased’s toe was injured, there was no competent testimony to sustain the finding of the board awarding compensation. Bird, Moore, and Kuhn, JJ., dissenting.
    Certiorari to Industrial Accident Board.
    Submitted October 9, 1918.
    (Docket No. 16.)
    Decided December 27, 1918.
    Rehearing denied May 1,1919.
    Dina Ginsberg presented her claim for compensation against the Burroughs Adding Machine Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed.

      Standish Backus (William Strite McDowell and Stevenson, Carpenter, Butzel & Backus, of counsel), for appellant.

      Louis James Rosenberg (Hollis Harshman, of counsel), for appellee.
    Plaintiff’s husband, the decedent, was in the employ of the defendant on June 6, 1917.- He and others were unloading boxes of steel from box cars. The boxes of steel were about 1% feet square and from 6i/2 to 7 feet long. They weighed from 400 to 800 pounds. They were loaded in the ends of the car. The other workmen employed, with decedent were named Trzienski and Schacht. The manner of conducting the work in hand was that Trzienski. and Schacht with iron hooks, similar to ice tongs, would take down the boxes from their places in the car; with the aid of a roller, consisting of a two-inch gas pipe, they would be conveyed to the door; there decedent would attach a similar hook which was connected with rope and pulley; he would put the hooks or tongs in the center of the boxes and they would be lifted by the operation of the rope and pulley and slid out of the car. Schacht was not called as a witness, but Trzienski was. He testified that in the afternoon of the day in question he was trying to raise a box which he estimates would weigh about 600 pounds; decedent was ready to put the roller under it; that he was unable to lift it high enough to get the roller under it, and it slipped and grated decedent’s toe. He also says that he lifted the box off decedent’s toe and that the box did not hit decedent on his legs or body any place. There was testimony that thereafter decedent limped and was given other work to do. The straw boss learned of this accident and at supper time decedent took off his shoe and stocking and the straw boss looked at his foot; there was a little redness to the little toe and the one next to it, but no other evidence of an injury; decedent worked overtime until half past eight. When he arrived home.about nine o’clock he was limping; he.washed and had his supper, but was unable to get up from the table and had to be assisted to bed. Upon his clothing being removed it was found that the toes on his left foot were red, but they were not mashed; there was also a redness on his right leg, about four or five inches above the knee. He complained more about the leg than he did the toes. Over the objection of the defendant the plaintiff was permitted to introduce evidence of statements of decedent made at this time, and at later dates as to how the accident happened — that a box of steel fell on his right leg. We shall have occasion to presently refer to this testimony and will not now further detail it. The testimony also shows that decedent had always before this been a strong, healthy man, had never been sick. He did not return to work. It does not appear that there was any serious trouble with the toes but the condition of the leg grew serious and plaintiff called a doctor. Later a doctor employed by defendant also called on him. The doctor produced by plaintiff and the one produced by defendant do not disagree upon any material element of the case. From the medical testimony it appears that the condition of decedent’s leg resulted in a thrombosis or stoppage of the saphenous vein in the thigh by a blood clot, necessitating the removal of a section of that vein on June 20th; that he suffered a relapse on June 27th, and died the following day; that death was due to the lodgment of a blood clot in the vessels of the intestines; that the blood clot undoubtedly came from the condition originally developed in the saphenohs vein; that the condition of the toe had nothing to do with it; and that the condition of the saphenous vein might have been produced either by a blow or infection from bacteria in the system. The industrial accident board found that deceased was struck in the right leg by the box of steel, receiving an accidental personal injury to his right thigh; that such injury was the proximate cause of his death and affirmed the award of the committee of arbitration awarding plaintiff $8.27 per week for a period of 300 weeks. To review this award of the board, this writ was allowed.
   Fellows, J.

(after stating the facts). As the board has found that the deceased was injured as stated by him at various times after the accident, and as much of this hearsay testimony is quoted at length in the opinion, and as the board has expressly held that at least some of it was admissible, we will first consider the question of whether statements of the deceased as to how the accident happened, made after the happening of the event, are admissible.

In the case of Reck v. Whittlesberger, 181 Mich. 463, we had the question of hearsay evidence before us and it was there said:

“The rule against hearsay evidence is more than a mere artificial technicality of law. It is founded on the experience, common knowledge, and. common conduct of mankind. Its principles are generally understood and acted upon in any important business transaction or serious affair in life. In such matters men refuse to rely on rumor or what some one has heard others say, and demand the information at first hand.”

And we there approved the following language from Boyd on Workmen’s Compensation, p. 1123:

“The statements made by an injured man as to his bodily or mental feelings are admissible, but those made as to the cause of his illness are not to be received in evidence. The rule applies to statements made by a deceased workman to a fellow workman as to the cause of his injury.”

In addition to the authorities there cited, see Langley v. Reeve, 3 B. W. C. C. 175; Amys v. Barton, 5 B. W. C. C. 117; Wolsey v. Pethick Bros., 1 B. W. C. C. 411; Carroll v. Knickerbocker Ice Co., 218 N. Y. 435 (113 N. E. 507); Chicago, etc., R. Co. v. Industrial Board of Illinois, 274 Ill. 336 (113 N. E. 629). In the last cited case it was said:

“Declarations made by one injured, to his attending physician, are admissible in evidence when they relate to the part of his body injured, his suffering, symptoms, and the like, but not if they relate to the cause of the injury. (Citing authorities.) This rule is even more rigorously enforced as applied to lay witnesses.”

The statements made by deceased to his family as to the accident he suffered were made at a place some distance away, several hours thereafter, were but the narration of past events, and were not a part of the res gestae. Merkle v. Township of Bennington, 58 Mich. 156; Dundas v. City of Lansing, 75 Mich. 499; Jones v. Village of Portland, 88 Mich. 598.

The board held that the statements of deceased made to Dr. McDonnell as to the happening of the accident were competent evidence and bound the defendant. They were put into the case not for the purpose of showing notice of the injury, but as substantive evidence of the facts of the injury. It is argued in support of this holding that Dr. McDonnell was the agent of the defendant, made a report to the company, which however is not in the record, and therefore not before us; and that decedent’s claim as to how the accident happened is evidence that it did so happen, and Reck v. Whittlesberger, supra, and Fitzgerald v. Lozier Motor Co., 187 Mich. 660, are cited to support this holding. In the instant case Dr. McDonnell was not a regularly retained physician of the defendant. He and other doctors were called to treat employees of defendant as occasion might arise; he was called upon to administer to employees,- but not to represent the defendant in any way. It is apparent that the board has misconceived the holding of this court in these two cases. In the Reck Case, the employer reported to the board the cause and manner of the accident being that deceased was throwing wood in the furnace and a nail inflicted a gash in his hand. We there said:

“We think that such reports .from the employer, where all sources of information are at his command when the reports are made, and he has had ample opportunity to satisfy himself of the facts, can properly be taken as an admission, and, at least, as prima facie evidence that such accident and injury occurred as reported.”

It must be patent that the employer or the officer of a manufacturing company, who makes the report to the board, rarely, if ever, witnesses the accident. He obtains his information from others. It comes to him second hand. If, after making his investigation, he concludes that the accident happened in a certain way and so reports, it may be regarded as an admission, and therefore, some evidence before the board for its consideration. This was the situation in the Reck Case and this was the holding.

In the Fitzgerald Case, the foreman, whose duty it was to report accidents to his superior, reported that deceased scratched his right hand on manifold on top of the thumb joint. He had received his information from the injured employee. But he was the authorized agent of the company to investigate and make such report; by adopting the claim of the employee as his own report and version of the accident, the employee’s claim became and was his report. Following the Reck Case, it was held receivable as an admission and together with other evidence was held to be sufficient to support the finding.

These two cases hold that where the employer or his authorized agent, whose duty it is to make report of accidents, who have the opportunity to investigate, makes a report as to the accident, such report is receivable as an admission, and as an admission may be sufficient to establish a prima facie case. It is unimportant how the employer procures his information. It may all be hearsay. It may come through several hands, from different sources; but when he or his authorized agent reports that the accident happened in a certain way, the report stating that it happened in that way is an admission and receivable as such. These cases go no farther. They do not make the claim of the injured employee as to how the accident happened evidence of the facts. It is only by the adoption of that claim by the employer or his authorized agent that it becomes an admission and receivable as such. In the instant case we have no such report, nor was Dr. McDonnell the agent of defendant for the purpose of making such report. The board was in error in holding that such hearsay evidence was receivable as competent evidence of the facts.

But we should not reverse the case for the admission of incompetent hearsay evidence. If there is competent evidence to sustain the finding, the case should be affirmed. Reck v. Whittlesberger, supra. In the consideration of these cases the rules which govern are well recognized. The burden of establishing a claim for compensation rests on those seeking the award. They are not required to establish their case by positive, direct evidence; in many cases that would be impossible; they may prove their case by circumstantial evidence as other cases are established. The board is the trier of the facts, and weighs and measures the conflicting testimony, medical as well as lay. Deem v. Kalamazoo Paper Co., 189 Mich. 665; Perdew v. Nufer Cedar Co., 201 Mich. 520. It is the province of the board to draw the legitimate inferences from the established facts and to weigh the probabilities from such established facts. Wilson v. Phœnix Furniture Co., 201 Mich. 531. But the inferences drawn must be from established facts; inference may not be built upon inference, possibilities upon possibilities, or inferences drawn contrary to the established facts, contrary to the undisputed evidence. If an inference favorable to the applicant can only be arrived at by conjecture or speculation the applicant may not recover. So if there are two or more inferences equally consistent with the facts, arising out of the established facts, the applicant must fail. McCoy v. Michigan Screw Co., 180 Mich. 454; Draper v. Regents of University, 195 Mich. 449; Albaugh-Dover Co. v. Industrial Board, 278 Ill. 179 (115 N. E. 834); Curran v. Newark Gear Co., 37 N. J. L. J. 21; Savoy Hotel Co. v. Industrial Board, 279 Ill. 329 (116 N. E. 712); Sanderson’s Case, 224 Mass. 558 (113 N. E. 355); Carroll v. Knickerbocker Ice Co., supra; Burwash v. F. Leyland & Co., 5 B. W. C. C. 663.

In the instant case the only witness produced who saw the accident on June 6th testified that the only-part of the body of deceased struck by the box was his toes. There is nothing inconsistent or .improbable about his testimony. It is in no way discredited save by the statements of the deceased, which were hearsay and improperly received in evidence. It is undisputed upon this record. No other witness testified in conflict with it, and the established facts are not inconsistent with it. Nor is the opinion evidence of the doctors inconsistent with it. As we have stated they were not out of accord. Their testimony clearly puts the cause of death without the pale of inferences and within the sphere of speculation and conjecture. Short excerpts from the testimony of both demonstrate this. Dr. Allen, plaintiff’s witness, in answer to questions propounded by her counsel, testified:

“Q. I wish to ask, Doctor, if this man had told you nothing, and you had seen him in the condition he was in the first time that you saw him, and saw him in the condition the second time that you saw him, and examined him and found he was otherwise normal, and knew only these facts, what would your opinion have been as to the cause of that condition?
“A. I would naturally have to state that it was possibly an infectious thing father than a traumatic thrombosis.
“Q. Could you have determined one way or the other?
“A. No. Absolutely no difference. It does not make any difference whether you get your inflammation from a blow to start with or whether you get it from the infection, the pathological process is identical.”

Dr. McDonnell, defendant’s witness, testified:

“Q. Then what did cause the thrombus at that particular location?
“A. That is impossible to say. That is impossible for any doctor to state; it may have been so many different things.”

We therefore conclude that the testimony of the statements of the deceased as to the happening of an accident to his thigh was hearsay; that it should not have been received or considered; that without it there is no evidence in the record in conflict with the testimony of the witness Trzienski; that there is no competent evidence to sustain the findings of the board and that the award should be vacated.

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

Moore, J.

(dissenting). I think there was testimony upon which to base the finding of the industrial commission and that the case should be affirmed.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    HANNA v. MICHIGAN STEEL CASTINGS CO.
    1. Master and Servant — Personal Injuries — Liability of Master.
    In proceedings under the workmen’s compensation act, where the employee was injured by a piece of flying board while operating a buzz saw, said injury causing his death, the employer is liable, although the source of the board was unknown.
    2. Same — Witnesses — Evidence — Matters Equally Within Knowledge of Deceased.
    Testimony by the foreman that he had instructed deceased not to operate any of the saws was inadmissible under section 12553, 3 Comp. Laws 1915, being equally within the knowledge of deceased.
    3. Same — Evidence—Statements of Injured to Physician.
    Statements of deceased to the doctor as to how he was hurt were inadmissible.

      4. Same — Evidence—Basis or Award — Review.
    Where it cannot be said that there was no testimony upon which to base the award of the board, and its finding that deceased’s injuries were the proximate cause of pneumonia, which caused his death, this court will not interfere with the award.
    Certiorari to Industrial Accident Board.
    Submitted October 16, 1918.
    (Docket No. 78.)
    Decided December 27, 1918.
    Barbara Hanna presented her claim for compensation against the Michigan Steel Castings Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Michigan Workmen’s Compensation Mutual Insurance Company, insurer, bring certiorari.
    Affirmed.

      Beaumont, Smith & Harris, for appellants.

      Monaghan, Monaghan, O’Brien & Crowley, for appellee.
   Moore, J.

Certiorari to the industrial accident board to review its allowance of the plaintiff’s claim as the widow of Alexander Hanna who was in the employ of the Michigan Steel Castings Company, and who was injured September 14, 1917, and who died on September 18th. It was the claim of the widow, and the industrial accident board so found, that the death was the result of the injury.

In the brief of counsel for the appellants the discussion is under the following heads:

1. There can be no recovery if Hanna was injured by a board flying from an unknown source.

2. There can be no recovery if Hanna was injured by a board he was attempting to cut on the saw.

a. Because as a matter of law the accident did not occur in the course of the employment of Alexander Hanna by the Michigan Steel Castings Company.

b. Because as a matter of law the accident did not arise out of the employment of Alexander Hanna by the Michigan Steel Castings Company.

c. Because as a matter of law Alexander Hanna was injured by reason of his intentional and wilful misconduct.

d. Because the accident was not the proximate cause of the death of Alexander Hanna.

Each of these propositions is discussed at' great length by counsel and their conclusion is that this court should reverse the order of the industrial accident board, and hold that the defendants are not liable to plaintiff for the death of Alexander Hanna.

1. As to the first of these propositions there can be no possible doubt that Mr. Hanna was at work for the defendant company in some capacity, the company claims as a cleaner which did not call upon him to use any buzz saw. His widow claims he was at work as a carpenter. It was while he was engaged at work for the company, and because of that employment that he was injured and if as a result of the injury he died, it is difficult to escape the conclusion that liability followed.

2. We shall not attempt to follow the discussion of «ach subdivision under this head but will attempt tosíate the claims of the respective parties, what is shown by the record and our conclusions.

Mr. Hanna at the time of the accident had been employed by the defendant six months or more. He was 5S years of age. It is the claim of his widow that his work called upon him to push boards against a circular saw for the purpose of sawing them, and that one of them was thrown against him with great violence, hurting his hand and chest, and that as a result of his injuries his death followed.

It is the claim of the defendant that Mr. Hanna was employed as a cleaner and that no part of his duty required him to use the buzz saw, and that if he did so that he was violating a positive order, and that he was guilty of intentional and wilful misconduct. It is the further claim that the only injury Mr. Hanna received was to his hand and that he died of pneumonia, to which the injury he received did not at all contribute, and that the court should say as a matter of law that the injury was not the proximate cause of his death. The claim that Mr. Hanna was guilty of intentional and wilful misconduct is based upon the testimony of the foreman; we quote some of it:

“Q. State whether or not you had ever said anything to Mr. Hanna about operating or not operating any of the saws in your department.
“Mr. Crowley: I object to that testimony.
“Mr. Zierleyn: I think it is very proper, Mr. Crowley.
“Mr. Crowley: I desire that my objections stand as a matter of record.
“Mr. Zierleyn: Answer the question.
“A. I took him off the carpenter work because I did not think his eyesight was good enough for it, he had. to put glasses on for it, and I told him if he would not keep off the saw I would have to fire him, and not only told him that but I told his son, too.”

Mr. Hanna knew what conversation he had with the foreman upon that subject. He is not here to give his version. Such a contingency has been guarded against in section 12553, 3 Comp. Laws 1915. The language of the statute is not ambiguous as a reference to it will show. It has often been construed by this court as is shown by the many cases cited in the notes to section 12553. See, also, the case of Horn v. Arnett, 91 N. J. Law, 110 (102 Atl. 366). The testimony of the foreman should not have been received. With it eliminated there is nothing to indicate that Mr. Hanna was warned not to use the saw.

It is said that the case presented by the plaintiff when the improper evidence is eliminated, must be determined as a question of law in favor of the defendant. This makes it necessary to give a résumé of the testimony most favorable to the plaintiff. After the accident the company made a first report to the accident board in which it was said: “Occupation of employee carpenter.” “Date of accident September 14, 1917.” “Nature and cause of injury bruised left hand.” A second report was made September 19, in which the following appears:

“Place of accident in detail, Carpenter shop. Cause and manner of accident, Was cutting wood for wedges. In taking pieces from the saw one piece caught and struck him on the joint of the first finger of left hand. This finger was off at joint. It jammed stump of finger and bruised it.”

Against the objection of defendant Mr. Hanna’s doctor was allowed to testify:

“Why he said that he had received it at a machine sawing wood. A piece of wood flew from the machine and struck him across the chest.”

In his testimony appears the following:

“Q. Do you at this time lay any stress upon the injury to the hand, or the injury to the chest or both?
“A. Yes I do on the injury to the chest. The hand was simply an abrasion of the hand that was ceptic, but I do not believe it had — did not have any factor towards causing his death.
“Q. It was the alleged injury to the chest which was the factor that finally resulted in his death in your opinion?
“A. Resulted in pneumonia, yes.
“Q. In other words the injury to the chest was the thing that caused the pneumonia in your opinion?
“A. Yes. * * *
“Q. The question is this, perhaps it would be more simple to say it in this way: In your opinion the cause of pneumonia was the blow on the chest?
‘‘A. Yes, sir. * * *
“Q. And the pneumonia caused the death?
“A. Yes, sir. * * * The man was at that time delirious and he was carrying a tremendously high temperature and rapid pulse and I thought there was a septic condition going on at that time. The man at the first time I seen him, I would not have taken anything he said to me anyway, because he was not in his right mind, he was delirious. So the next time I seen him I went into the matter closer and I found the hand was not the entire cause of the pneumonia but the chest had been injured.
“Q. Would the infection in any way superinduce the pneumonia?
“A. I do not think in this case.
“Q. Could it contribute to the cause of death?
“A. Yes, perhaps by having an embolus leave the wound in the hand and cause an infarction in the hand, that would probably cause pneumonia but the post mortem showed that the pneumonia was of too large an area for embolic pneumonia.
“Mr. Crowley: So that in your judgment, doctor, I understand you now that the blow on the chest caused this traumatic condition.
“A. Yes, I made the diagnosis of traumatic pneumonia caused by the concussion of the board striking the chest.”

A witness who was at work about 50 feet away from Mr. Hanna testified the latter was cutting a piece of wood on the saw.

“Q. What kind of a piece of wood did he have at the saw?
“A. It was a piece of pine about 18 inches long.
“Q. How wide or how thick was it?
“A. Well, when I seen it it was in two pieces, I only seen one piece of it and it was about five inches wide.
“Q. About five inches wide. You don’t know what he was going to saw that for do you?
“A. No.
“Q. What was the first notice — what was the first you noticed with respect to this accident?
“A. I looked up and I seen him holding his han<3 to his side.
“Q. Was he holding his hand to his right side?
“A. Yes. * * *
“Q. Now, did you see this piece' of wood that he was . working with after that? /
“A. Yes, sir.
“Q. Did you noti.ce anything peculiar about the wood ?
“A. It was broken that is all.
“Q. Did you notice any links of a chain in the wood?
“A. Yes.
“Q. What kind of chain was that?
“A. I think it was a kind of four-cornered piece.
“Q. What kind of chain was it, a watch chain?
“A., A watch chain, yes. * * *
“Q. Where was the rest of the chain?
“A. In his pocket.
“Q. Which pocket?
“A. Why, I think it was the vest pocket.
“Q. Vest?
“A. The vest pocket. * * *
“Q. What caused you to look up and notice what was happening at that saw?
“A. When I heard that piece fly over the saw.
“Q. When you heard the piece of wood fly over the saw?
“A. Yes.
“Q. Did it strike the saw?
“A. Yes, it struck the saw.
“Q. How do you know it struck the saw?
“A. Why, it would not have went back otherwise.
“Q. I assume then that it made a noise?
“A. Yes.
“Q. And you heard that and glanced up ?
“A. Yes.
“Q. When you first glanced up what was Mr. Hanna doing?
“A. He was holding his two hands on his left side.
“Q. On his left side?
“A. Yes.”

The piece of wood after it struck Mr. Hanna flew 10 or 12 feet down an open stairway and hit Mr. Thomas who was coming up the stairs, knocking him down. The record shows that part of the duties of a carpenter are to make molding flasks and in doing so that the carpenter would use a circular saw in preparing some of the pieces.

Mrs. Hanna testified as to what happened on the evening of the accident, in part as follows:

“A. Well, the usual time he got home about a quarter to six to the best of my knowledge,
“Q. What condition was he in whirs he arrived home? \
“A. Well, his hand was terribly swollen and very much inflamed and he said he was very weary and complained terribly of his breast.
“Q. Did you examine his hand?
“A. Yes, sir, I was ordered by first aid to bathe it in hot water. I told him my best judgment called for cold water, but he said no, he was told at the hospital, hot water.
“Q. Did you make an examination of his breast?
“A. Yes, sir, I did.
“Q. What did you notice particularly about his chest?
“A. There was a very, red place on his chest.
“Q. Where was that?
“A. On his chest, as near as I can tell you, over his lungs.”

It is urged that what Mr. Hanna told the doctor about how he was hurt was improperly admitted. We think this was so under the case of Ginsberg v. Burroughs Adding Machine Co., ante, 130.

But with this testimony omitted we think it cannot be said there was no testimony upon which to base-the award of the industrial accident board .and their finding that the injuries to Mr. Hanna were the proximate cause of his death. Under such circumstances this court will not interfere. See Reck v. Whittlesberger, 181 Mich. 463; Papinaw v. Railway Co., 189 Mich. 441; Vogeley v. Detroit Lumber Co., 196 Mich. 516.

The award is affirmed, with costs to the plaintiff.

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


author:
      Moore, J.
      Ostrander, C. J.

text:
    WALD v. PACKARD MOTOR CAR CO.
    1. Negligence — Contributory Negligence — Crossing Highway— Question eos Jury
    It cannot be said that to attempt to cross a pavement 35 feet wide with a horse and wagon in front of an approaching automobile upwards of 450 feet away was as a matter of law contributory negligence.
    2. Damages — Excessive Verdict.
    In an action for personal injuries caused by a collision between defendant’s automobile and plaintiff’s wagon on a public street, evidence that plaintiff was upwards of 72 years of age, with an earning capacity of from $65 to $75 a month, -that the horse was so badly injured it had to be killed, that the harness and wagon were damaged, that plaintiff incurred a doctor’s bill of upwards of $50, that he suffered severe and permanent injuries, that the injuries occurred nearly two years before the trial, during which time he suffered severe physical pain, held, sufficient to sustain a verdict' for $2,715.
    3. Evidence — Automobiles—Admissions of Driver — Res Gest®.
    Where the automobile colliding with plaintiff’s wagon had defendant’s license number upon it, testimony of a policeman that the driver told him, soon after the accident occurred, that he was in the employ of defendant, held, admissible by a divided court.
    See notes in 1 L. R. A. (N. S.) 223; 14 L. R. A. (N. S.) 251; 45 L. R. A. (N. S.) 699; 48 L. R. A. (N. S.) 946; L. R. A. 1915F, 30.
    Error to Wayne; Williams, J., presiding.
    Submitted October 18, 1918.
    (Docket No. 90.)
    Decided December 27, 1918.
    Rehearing denied May 1, 1919.
    Case by Andrew Wald against the Packard Motor Car Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed, by a divided court.

      Frederick J. Ward, for appellant.

      C. W. Hitchcock and W. A. Collins, for appellee.
   Moore, J.

The plaintiff was a man approximately 75 years of age. He used a horse and wagon in his business. On July 10, 1916, he was driving west on Ohio street in Bay City and was crossing Henry street when he was struck by an automobile. He claims the automobile was owned by the defendant company and was operated by a man by the name of Brown. From a verdict in favor of the plaintiff for $2,715, the case is brought here by writ of error. It is claimed defendant should have a directed verdict because of the contributory negligence of the plaintiff. This contention is based upon the claim that plaintiff might have avoided the accident. The question was left to the jury by the trial judge. The plaintiff testified that when he entered upon Henry street to cross it that the automobile was more than a block and a half, upwards of 450 feet, away. We do not think it can be said that to attempt to cross a pavement 35 feet wide under the circumstances shown here was as a matter of law contributory negligence.

It is claimed the verdict was excessive. This is based upon the fact that plaintiff was upwards of 72 years of age when hurt, with an earning capacity of $65 to $75 a month. The record shows that the horse was hurt so badly that a policeman killed it to put it out of its misery. That the harness and wagon were injured, that plaintiff incurred a doctor’s bill of upwards of $50; that he suffered severe injuries, some of which the doctor testified would be permanent. Nearly two years had elapsed between the time of the injury and the time of the trial. During all .that time the plaintiff claimed to have suffered severe physical pain. We do not think the verdict was so large that we should interfere.

The other assignments of error may be considered together. The assistant manager of the defendant company was called as a witness by the plaintiff. He testified in substance that he gave directions to have a car sent out on the Pikers’ tourist trip.

“I told the office manager to place a car and driver, the best driver he could find at the disposal of this good roads commission. I assume that my order was carried out.”

He testified he heard a report was made to his company that an accident occurred in Bay City, but that he did not see the report.

“I might add that does not come under my jurisdiction, that is the reason I would not see it. . * * * I know William E. Metzger. * * * When I made this order for a car of our company, I knew that Mr. Metzger was supposed to be in charge of the trip.”

A policeman in Bay City saw a crowd collecting at the corner of Ohio and Henry streets when he was two blocks away. He at once went there.

“When 1 got there Mr. Wald was in the doctor’s office, the doctor lived on the corner, on the southwest corner. That man that ran into him gave me his name as George Brown. The horse was laying on the corner of Ohio and Henry streets, near the curb. The wagon was unhitched and backed away about 6 feet from the horse. The horse was right at the curb, his head was at the east curb as it circles around, the northeast corner. I could not say where the horse was hit. I know he had a broken leg, I couldn’t say which it was, I don’t remember. It was on the night of July 10, 1916. After viewing the horse and rig, I then went into Dr. McGoech’s office with Mr. Metzger.
“Q. Now you started a while ago to mention a man by the name of Brown; when did you first meet Brown ?
“A. I saw him where the accident happened.
“Q. Whereabouts was Brown from where the horse and rig was?
“A. He was in his machine headed the opposite way. * * * He told me he was the man—
“Mr. Ward: I object to what he told him. * * *
“The Court: How soon was it after the accident. Can you tell us how soon — how long it took to get down there? /
“A. About ten minutes, I should judge.
“The Court: You may take the answer for the present.
“Mr. Ward: I. want to object to it as incompetent and improper hearsay. * * *
“Q. The court says you may tell how you happened to talk to Brown.
“A. When I came back there where the accident happened this man was standing there in the machine. He told me that his machine ran into the rig. I asked Mr. Brown who he was and where he was from.
“Q. Did he tell you?
“A. He told me he was in the employ of the Packard Motor Car Company of Detroit. He told me he had just sent for the boss and he would be over in a short time. He sent another car for the boss, he was stopping at the Winona hotel, just a mile from where the accident happened. * * *
“A. He told me his name was Metzger. I did have a talk with Mr. Metzger. I did kill the' horse.”

The doctor to whose office the plaintiff was first taken died before the trial. Mr. Wald was put into the Packard car and driven by Mr. Brown to the office of Mr. Wald’s family physician. The doctor got into the car and was taken by Mr. Brown to Mr. Wald’s home. The number of the car was 5062-M. and that was the number of the license issued to the Packard Company.

It is the claim that what Mr. Brown said is incompetent, and that plaintiff failed to make a case and the verdict should have been directed in favor of defendant. Like questions were considered in Hatter v. Dodge Bros., 202 Mich. 97. Much of the language used in that opinion is applicable here. It will not be necessary to repeat it.

Judgment is affirmed, with costs to the plaintiff.

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

Ostrander, C. J.

(dissenting). That the automobile belonged to defendant is to be inferred from the proven facts; that it was being driven by an employee of defendant rests upon the statement of Brown, who was in the car. after the accident and who told the policeman witness that he was in the employ of the defendant. I think the testimony of Brown’s statement was .not competent and that it was reversible error to receive and consider it.

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


author: Stone, J.

text:
    THIEDEMANN v. MICHIGAN STATE BOARD OF DENTAL EXAMINERS.
    Mandamus — Dentistry—Pleading—Answer—Statute.
    In mandamus proceedings to compel the State board of dental examiners to.issue to plaintiff a license to practice dentistry in • this State, where plaintiff filed no plea to the answer of the board stating that he had failed to pass the required examination, said answer must be taken as admitted to be true, under section 4, chap. 36, of the judicature act (section 13440, 3 Comp. Laws 1915), and the writ denied.
    See note in 7 L. R. A. (N. S.) 528.
    Mandamus by William L. Thiedemann to compel the Michigan State board of dental examiners to issue to him a license to practice dentistry in this State.
    Submitted October 8, 1918.
    (Calendar No. 28,426.)
    Writ denied December 27, 1918.

      Charles G. Turner, for plaintiff.

      William K. Clute, for defendant.
   Stone, J.

Relator presented his petition, sworn to on May 3, 1918, to this court praying that a writ of mandamus might issue, directed to the Michigan State board of dental examiners commanding that board to cause a license to be issued to said petitioner, under Act No. 338 of the Public Acts of 1907, as amended by Act No. 183 of the Public Acts of 1913 (2 Comp. Laws 1915, § 6748 et seq.), to practice dentistry in this State. In his petition to this court relator represented that he was a graduate of the Marquette University, dental department, and was graduated in the class of May 1, 1905, and received his diploma to practice dental surgery; that said Marquette University is a reputable dental college duly organized under the laws of the State of Wisconsin; that under said license he practiced dentistry and dental surgery in a number of towns and cities in Wisconsin; that in the fall of 1917, desiring to locate and practice his profession in this State, he made an application under the provisions of the statute above referred to, to be licensed and registered by the respondent board, and for an examination as to his proficiency in his profession, and that acting under section 5 of the act above specified, he filed ah application in writing supported by an affidavit, stating the facts which entitled him to such examination, and that before taking such examination he presented to said board his diploma and license from said university and the State of Wisconsin, for verification as to genuineness; that he paid the legal fee of $20, and presented himself for examination to the respondent, at the first regular meeting for examination, after his application had been madeas provided by law.

In and by his petition, relator further represents that he was examined by the respondent, upon the subjects included in section 5 of the act above referred to, said examination being practical, and oral, both, and that he successfully passed the examination required of him by the respondent, but that he has never received his license to practice dental surgery in this State from said board, and that said board now refuses to give the same to him.

After stating that he is a person of good moral character, relator reiterates that he successfully passed such examination, and was entitled to receive such license, and that respondent refuses to state why the same is withheld; and he states that respondent at no time has denied that he passed the required examination.

The petition then sets forth an extended correspondence between the attorney of the relator and the secretary of the respondent, which in our view of the case, as shown by this record, it is not necessary to consider.

An order to show cause why the writ of mandamus should not issue was made, and the respondent board has made return and answer thereto. In its return the respondent board, among other things, says:

“Answering paragraph 5 (unnumbered), respondent says that relator took the examination before respondent board in practical dental work as provided might be done in such cases by said reciprocity contract hereinbefore set forth. Such examination consisted of clinical and practical work on the subjects of: (a) Filling; (b) Crown; (c) Plate. That the rules and practice of said respondent board fixed a standard upon a scale of 100 points perfect in marking all applicants taking such examinations, and the standard upon each of those three subjects which must have been attained by the relator as applicant for a Michigan license in order to pass the examination was 75 points. That if he fell below that standard on any one of the three subjects, he failed and was in no event entitled to a license. That said rules are uniform and apply alike to all applicants under said reciprocity contract. That on the examination before respondent board which relator applied for and took in November, 1917, his standings were as follows: on filling, 70 points; on crown, 77 points; on plate, 70 points and which results were entered úpon the official records of this board and are a part thereof. That-his degree of proficiency and technical skill attained in dentistry, as shown by his examination, was not sufficient according to the uniform standard set by respondent board in such cases to entitle him to a license to practice dentistry in Michigan, and he failed to pass the examination. That his case on said examination was dealt with and decided, by the same methods and uniform rules which apply to every other applicant similarly situated. That by reason of his failure to pass his examination on two of the foregoing subjects, said applicant is and was not entitled to a dentist’s license to practice under the laws of the State of Michigan. The applicable rules then and now in force provided as follows:
“ ‘Rule 15. Applicants taking the examination under the terms of reciprocal contracts with other States will be required to take the examinations in practical work only.
“ ‘Rule 18. In the theoretical work of the examination the applicant must have a general average of seventy-five per cent. In practical operative, and in practical prosthetic and crown work, if the applicant falls below seventy-five per cent, he shall fail to pass; but he may be re-examined on that in which he failed at the next regular examination.’
“Respondent, therefore, for the reasons and facts herein set forth, says that relator is not entitled to a license to practice dentistry or dental surgery in Michigan.”

Section 2 of the act above referred to gives the said board power “to make by-laws and necessary regulations for the fulfillment of' their duties under this act.”

In the course of the correspondence between relator’s, attorney and the secretary of the respondent, as appears by petition of the relator^ and under date of February 20, 1918, the secretary wrote said attorney as follows:

“I, have to suggest that it appears that you have been misinformed concerning this board having informed Dr. Thiedemann that he had successfully passed the Michigan State board of dental examiners.
“Entirely aside from the question, however, we believe that we are fully prepared to show why the doctor may not be given his license to practice dentistry in this State at this time. I do not recall at this moment the standings of the doctor, but whatever percentages he earned in the examination will be found upon the records properly placed to his credit.
“I have the honor to refer you for all further correspondence in the matter, to Dr. B. S. Sutherland, the new secretary, of Owosso, Mich.”

Under date of March 4, 1918, appears the following letter from Dr. Sutherland, the secretary, addressed to the attorney of the relator:

“Dear Sir: Your recent letter regarding Dr. W. L. Thiedemann at hand and contents noted. I do not know, nor can I understand, just what contention Dr. Thiedemann is making or what inference you draw from the letters you mention. But permit me to say in all kindness that the records now in my hands do not show that he successfully passed this board.
“Yours very truly,
“B. S. Sutherland.”

These facts must have been known to relator two months before he filed his petition here.

Section 6750, 2 Comp. Laws 1915, being section 3 of the said act as amended, reads in part as follows:

“All persons who desire to begin the practice of dentistry in this State after the passage of this act, and who shall have a license from the dental board of another State, requiring preliminary education before examination for license equal to the standard required of applicants for examination and registration in this State, or who shall have received a diploma from the faculty of some reputable college duly organized under the laws of this or any other State of the United States, or any other country, shall have the right to apply to the dental board of this State for examination as to their proficiency; and all successful applicants shall be licensed and registered by said dental board.”

There can, we think, be no question of the power of the board to make reasonable rules and regulations in regard to such examination. And there can be no question as to the reasonableness of the rules here referred to.

An examination of this record shows that there was no plea filed to the return or answer of the respondent board. Section 4 of chapter 36 of the judicature act (3 Comp. Laws 1915, § 13440), relating to mandamus proceedings, reads as follows:

“Whenever a return shall be made to any such writ, the person prosecuting the same may plead to all, or any of the material facts contained in said return; and such issue of fact thus joined, shall be determined as in other cases: Provided, That all material facts stated in said return, that are not specifically denied by plea, shall be taken as admitted to be true. In case no plea is filed to such return, the cause shall stand for hearing upon the petition and return.”

It has been frequently held that in a case heard on petition and answer, the averments in- the respondent’s answer must be taken as true, in the absence of a plea. Michigan Railroad Commission v. Railway Co., 192 Mich. 426, 433; Anderson v. Newaygo Circuit Judge, 173 Mich. 608, 610.

There can, in our opinion, be no question as to the conclusiveness of the return of the respondent board, upon the question of the relator having failed to pass a successful examination. This is sufficient to dispose of the case.

The writ is therefore denied, with costs.

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


text:
    PEOPLE v. ELLIS.
    1. Criminal Law — Prosecution—Definition.
    A prosecution is generally understood to be a criminal action; a proceeding instituted and carried on by due course of law before a competent tribunal for tbe purpose of determining tbe guilt or innocence of tbe person charged with some crime or offense.
    2. Same — Statutes—Construction.
    Criminal statutes cannot be extended to cases not included within the clear and obvious import of their language, and if there is doubt as to whether the act charged is embraced in the prohibition, that doubt is to be resolved in favor of the defendant.
    3. Same — Wife Desertion — Offense.
    Where no proceeding or prosecution for bastardy had been had against defendant prior to his marriage with complaining witness, his subsequent desertion of her was not a violation of Act No. 310, Pub. Acts 1913 (section 7794, 2 Comp. Laws 1915), mating it an offense to desert a wife married for the purpose of escaping prosecution.
    Exceptions before judgment from the superior court of Grand Rapids; Dunham, J.
    Submitted October 17, 1918.
    (Docket No. 113.)
    Decided December 27, 1918.
    Charles R. Ellis was convicted of wife desertion under Act No. 310, Pub. Acts 1913.
    Reversed, and defendant discharged.

      Ellis & Ellis, for appellant.

      Cornelius Hoffius, Prosecuting Attorney, and Willis B. Perkins, Jr., Assistant Prosecuting Attorney (Fred P. Geib, of counsel), for,the people.
   Stone, J.

This case is here upon exceptions before sentence. The defendant was convicted in the superior court of Grand Rapids upon an information charging that:

“Charles R. Ellis * * * on, to wit, the 13th day of March, 1917, at the city of Grand Rapids, county of Kent, aforesaid, was then and there married to one Gertrude Britton, for the purpose of escaping a prosecution for bastardy, she, the said Gertrude Britton, having accused said Charles R. Ellis of making her pregnant with child, and she, the. said Gertrude Brit-ton, on the said 13th day of March, 1917, being then and there pregnant with child,' for which the said Charles R. Ellis was liable to prosecution under the laws of this State, and he, the said Charles R. Ellis afterwards, to wit, on the 13th day of March, 1917, did desert and abandon said Gertrude Britton Ellis without any cause or reason, whatsoever. Contrary to the statute,” etc.

The statute (Act No. 310, Pub. Acts 1913, being section 7794, 2 Comp. Laws 1915) is entitled:

“An act to provide punishment for wife desertion in certain cases.”

It reads as follows:

“Every man or boy who shall marry any woman or girl for the purpose of escaping prosecution for rape, bastardy or seduction, and shall afterwards desert her without good cause, shall be deemed guilty of a felony, and shall, upon conviction, be fined not more than one thousand dollars or be imprisoned in the State prison for not more than three years: Provided, That no prosecution shall be brought under this act after five years from the date of the marriage: Provided further, That in all prosecutions under this act, the wife may testify against a husband without his consent.”

We are met at the threshold with the proposition of defendant’s counsel, duly raised by an assignment of error, that a proper construction of this statute requires the dismissal of the case and the discharge of the defendant for the reason that the words, “for the purpose of escaping prosecution for * * * bastardy” are intended to apply to a case only where a prosecution for, or proceeding in, bastardy had actually been instituted against the defendant at, or prior to, the time of his marriage. It is undisputed that the evidence in the instant case shows that no actual prosecution or proceeding had been commenced at the time of the marriage.

There is no claim that the statute is unconstitutional, and that question is not before us.

This statute is here for consideration for the first time. It is apparent that it is a drastic, and radical statute, making it a felony for a class of persons named to desert their wives without good cause, without reference to financial ability, and making no provision, as did Act No. 144, Pub. Acts 1907, for suspension of sentence upon giving a bond conditioned to support the wife. See People v. Stickle, 156 Mich. 557.

We have examined the statutes and certain decisions from other jurisdictions, without receiving much aid therefrom. Counsel for the people called our attention to the statute and certain decisions of the State of Indiana. The statute of that State provides:

“That any male person who being at the time under or liable to a prosecution, either civil or criminal, for 'seduction or bastardy, fraudulently enters into a marriage with the female who has been seduced, or who is the mother of the bastard child, with the intent thereby to escape or avoid such prosecution or the consequences thereof, and who within two years after such marriage, without just cause, shall abandon his wife, or who shall, within such time, cruelly and inhumanly mistreat such wife, or fail and neglect to make reasonable provision for her support, shall be liable to an action for the recovery of a penalty which shall in no case be less than two hundred dollars.” 4 Burns’ Ind. Ann. Stat. (1914) § 8377.

Section 4 (8380) of the same statute provides that:

“the practice in such cases as to the execution of the bond, examination by the justice, commitment of the defendant for failure to give bond, trial, judgment, commitment for nonpayment or failure to secure the judgment rendered in the circuit court, execution, and as to all other matters shall be governed by the laws now in force governing prosecutions for bastardy.” * * *

It will be noted that this statute did not create a felony. It has been construed a number of times. See State, ex rel. Lannoy, v. Lannoy, 30 Ind. App. 335 (65 N. E. 1052); State, ex rel. Richeson, v. Richeson, 36 Ind. App. 373 (75 N. E. 846); Latshaw v. State, ex rel. Latshaw, 156 Ind. 194 (59 N. E. 471).

While the Indiana statute differs radically from ours, an examination of the above cited cases will disclose that in each instance the defendant had been arrested and prosecution was pending at the time of the marriage, and pending such prosecution the party sought escape by marriage. In fact we have been unable to find any case of a similar kind where a specific charge had not been made and prosecution instituted before the marriage.

In Morris v. Stout, 110 Iowa, 659 (78 N. W. 843), the court, speaking of a similar statute, said:

“It fixes the facts that will constitute the crime, and any man who does the prohibited act is guilty of the crime. One fact to appear is that there is a charge of seduction.”

By construction, the Indiana statute has, by her courts, been held to be supplementary to the bastardy act, and that under it provision might be made for the support of the wife and child. That being so, the courts have held the statute to be a remedial one, and it has been given a broad and liberal construction for that reason. We get but little aid from it in construing a statute like that which we have under consideration, which is not a remedial statute, but creates a felony and provides for drastic punishment. It will be observed that the word “prosecution” is used twice in our statute. Can it be said, with any force or reason, that the word “prosecution,” is used in different senses here? We think not. A prosecution is a definite thing. A prosecution is generally understood to be a criminal action; a proceeding instituted and carried on by due course of law before a competent tribunal for the purpose of determining the guilt or innocence of the person charged with some crime or offense. Black’s Law Dictionary (2d Ed.).

The language of this statute is not very clear in the particular mentioned. A criminal statute ought to be so plain and unambiguous that “he who runs” may read, and understand whether his conduct is in violation of its provisions.

It will be noted that the public prosecutor in the information in the instant case charged that the said Ellis “was liable to prosecution under the laws of this State,” thus substituting other words for those used in the statute. It is a fundamental rule of construction of criminal statutes that they cannot be extended to cases not included within the clear and obvious import of their language. And if there is doubt as to whether the act charged is embraced in the prohibition, that doubt is to be resolved in favor of the defendant. In other words, nothing is to be added by intendment. 36 Cyc. p. 1186, and cases cited in notes. See, also, Meister v. People, 31 Mich. 98; Van Buren v. Wylie, 56 Mich. 501; Crosby v. Railroad Co., 131 Mich. 288.

Considering the language and purpose of this statute, and applying the foregoing rules, it seems to us that the safer ruling is to hold that there must be a proceeding or prosecution for bastardy instituted before a person can be held to come within its terms; and the evidence showing that no such proceeding or prosecution had been had prior to the marriage in this case, we are of opinion that the defendant was not within the purview or scope of the statute.

It is urged, with some force, by counsel for defendant, that any other view of the provision of the statute than that contended for by him would render it a dangerous instrument in the hands of a deserted and unscrupulous wife, who, at any time within five years after the marriage, without any charge or prosecution having been ever instituted or appearing anywhere of record, could say to the husband:

“You seduced me before marriage and married me to escape prosecution, and I will therefore prosecute you under this criminal statute.”

The people’s attorneys claim that the words “liable to be prosecuted” are equivalent to prosecution. We are of opinion that the legislature has failed to express any such intent in the statute; and its provisions could be easily amended should the legislature see fit to do so.

In view of the language of the statute, we are constrained to hold that the people have failed by the evidence to bring the defendant within its terms. Having reached this conclusion, it is unnecessary to consider the other points raised by defendant’s, counsel. However, it perhaps should be said that a careful examination and scrutiny of the evidence in the case fail to show that the marriage was other than a voluntary one on the part of both the husband and wife. There was no threat even of a prosecution. The only threat shown was that the complaining witness said she would tell the defendant’s mother of her condition, if he did not marry her. It is true that the evidence shows that they were both minors, and were married' under the provisions of Act No. 180, Pub. Acts 1897, being section 11387, 3 Comp. Laws 1915, entitled:

“An act to provide for the protection of the reputation and good name of certain persons.”

This statute provides that the judge of probate may issue marriage licenses in certain cases. Section 1, in part, is as follows:

“The judge of probate of each county in the State shall have authority, and. it shall be his duty to issue, without publicity, a marriage license to any female making application to him, under oath, containing a statement that she is with child, which if born alive before her marriage will become a bastard, or has lived with a man, and has been considered as his wife, or for other good reason, expressed in such application and deemed to be sufficient by the judge of probate, desires to keep the exact date of the marriage secret, to protect the good name of herself and the reputation of her family.” * * *

Then follows the proviso with reference to written requests of parents and guardians in the case of female minors.

There is nothing in this act to indicate that the marriage there provided for is to take place to escape a prosecution. Nor is there any evidence in the case which shows that the marriage did in fact take place because defendant was either liable to a prosecution, or that it was for the purpose of escaping a prosecution for bastardy, rape, or any other oifense.

We are therefore of the opinion that the conviction should be reversed and set aside, and the defendant discharged.

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


text:
    FIRST NATIONAL BANK OF BAY CITY v. VANDEN BROOKS.
    1. Licenses — Parol License — Revocation bx Deed.
    Where the owners of adjoining buildings built a stairway jointly, the middle of the stairway being upon the line, and by parol agreement one owner used the basement under the stairway, and the other the rooms over it, a parol license was created which was revoked by a deed by one of the owners.
    2. Easements — Adverse Possession — Prescription.
    Defendant’s exclusive use of a stairway and rooms over it for more than 20 years after a parol license had been revoked, held, to create a prescriptive right to their use so long as the present building stands.
    3. Same — Exclusive Use — Prescription.
    Because persons other than defendant used said stairway, does not prevent his user from being exclusive, since exclusive use means that his right does not depend on a like right in others.
    See note in 44 L. R. A. (N. S.) 89.
    Appeal from Bay; Davis, J., presiding.
    Submitted October 24, 1918.
    (Docket No. 6.)
    Decided December 27, 1918.
    Reargued February 7, 1919. Opinion reaffirmed May 29, 1919
    (see 206 Mich. 177).
    Bill by the First National Bank of Bay City against John C. Vanden Brooks and others to quiet title to land. Defendant Vanden Brooks filed a cross-bill claiming title by adverse possession and prescription. From a decree for plaintiff, defendant Vanden Brooks appeals.
    Reversed, and decree entered for appellant.

      Edward S. Clark, for plaintiff.

      Coumans & Gaffney, for appellant.
   Stone, J.

The bill of complaint herein was filed to remove a cloud upon plaintiff’s title to lot twelve (12) and the westerly one (1) foot of lot eleven (11) in block sixty-seven (67) plat of Lower Saginaw, now Bay City, according to the recorded plat thereof, and for an injunction. The parties are owners of adjoining property and buildings in the business section of said city. The present condition of the buildings is shown by the photograph, Exhibit “M,” which appears in the record and is hereto attached. Prior to the year 1915 the condition of the property was as shown by Exhibit “A,” which also appears in the record and is also hereto attached.

In Exhibit “A,” the building which extends from W to X is known as the “old bank building.” The building which extends from X to a point half way between Y and Z is known as the “Warren” building, it having been built by one Byron E. Warren, although owned by the plaintiff during the period of this litigation. The building which extends east from the Warren building past Z and B to the alley, is known as the “Vanden Brooks building.” Plaintiff’s new bank building shown in Exhibit “M” occupies the space formerly occupied by the old bank building and the Warren building. An entrance doorway, within which is a stairway, is situate between the Warren and Vanden Brooks buildings in Exhibit “A.” The subject-matter of this litigation is that part of the structure occupied by this entrance and stairway (marked Y-Z on said exhibit, and hereafter referred to as “the stairway”). It is the claim of the plaintiff that this stands one-half on the land of each party.

In 1871, and for a number of years thereafter, the Vanden Brooks building was owned by the father of the defendant Vanden Brooks, and the Warren building was owned by Byron E. Warren. The plaintiff has succeeded to the rights of Warren, and defendant to the rights of the elder Vanden Brooks. The buildings were constructed at the same time, probably in 1871. The stairway in dispute, which is the main stairway leading from Center avenue to the second floor of the two buildings, has, as is claimed by plaintiff, its center line upon the property line, so that it stands one-half upon the land of each of the parties. It was built jointly by Warren and the elder Vanden Brooks, each paying one-half of the cost. This stairway had always been used in common by the owners and occupants of both of the blocks, and an open hallway at the head of the stairway, leading to the various offices in both blocks had always existed.

In 1914, the plaintiff owned the old bank building and the Warren building, and the defendant Vanden Brooks owned the Vanden Brooks building. Both were brick structures. The plaintiff was planning the erection of its new bank building, and desired to construct its. east wall on a straight line, following the property line, which it claimed ran through the middle of the stairway. This, it is evident, would necessitate either a reduction in the width of the stairway, or a change in its position. It was the claim of the plaintiff that, although the two halves of the stairway had always been separately owned, they had always been used in common by the tenants of all of the buildings, and the plaintiff attempted to make some satisfactory arrangement with defendant Van-den Brooks, before proceeding to demolish its half of the stairway. No agreement could be made. Said defendant objected, not only to the demolition of what, plaintiff claimed was its half of the stairway, but also claimed that the Warren and Vanden Brooks buildings had been so constructed, with halls, corridors and skylights used in common, that defendant had acquired a perpetual easement which entitled him to insist upon the maintenance of the Warren building, or at least to the entire stairway, as it stood.

Owing to the failure of the parties to reach an agreement, plaintiff filed this bill, praying among other things for an injunction restraining defendant Vanden Brooks from interference with its building operations. Defendant filed an answer and cross-bill, claiming title to the stairway by adverse possession, also claiming a prescriptive easement in respect to the skylights in the Warren building, and seeking to enjoin plaintiff from altering or removing the Warren building.

In his cross-bill, referring to the erecting of said buildings, defendant Vanden Brooks stated that an agreement was entered into between said Byron E. Warren and the said Andreas Vanden Brooks by which they adopted a common building plan by which both of such contemplated buildings should be constructed upon a common plan of similar architecture and construction, and by which the areas, halls, stairways and openings in and to the second and third floors should be used in common by both of said parties, and that certain skylights in the roof of each building should be so constructed that light would penetrate and be carried to the entire halls, openings and areas of both buildings. Also that the hallways on the second and third floors which lead into the various rooms and offices thereon, were go constructed, in pursuance of the aforesaid common plan of said parties, in the erection of both of said adjoining buildings; that said hallways were lighted by skylights of similar design placed in the roofs of both buildings; that it was contemplated and understood between the owners of both of said buildings at the time of their construction that skylights would be used by both owners, and that the skylights in the building on lot 12 had become and were a necessary appurtenance in furnishing light to the halls in that part of the building owned and. maintained by. defendant, and that the removal of the skylights in either of the said buildings would cause irreparable injury and damages to either of said buildings; that plaintiff was threatening to remove its said building and the skylights thereof, and to erect certain walls which would entirely obstruct any light from penetrating from the skylights above lot 12 to the halls of defendant’s building on lot 11; that said course would lessen the rental value of the second and third floors of defendant’s building, and would cause him irreparable injury and damage, and claiming the prescriptive easement as above stated. The plaintiff desiring to proceed with its new building, changed its plans so as to leave the stairway untouched, and notified the defendant that it would proceed to demolish its old building without further delay. Defendant at once pressed his application for a temporary injunction to restrain plaintiff, not only from interfering with the stairway, but also from interfering with the halls, corridors, and open spaces in the second and third floors of the Warren building. This application for injunction was, upon hearing, denied. The plaintiff was thus permitted to proceed, and did proceed with the construction of its new building, upon plans which left the stairway practically untouched. The final hearing did not take place until June 23, 1916, and after the new bank building was completed as shown in Exhibit “M.” The said defendant declined to try any question of damages in this proceeding, so that the hearing amounted to a mere controversy over the title to the stairway, and the land occupied by it. Said defendant claimed title by adverse possession, on the ground that his tenants, and those of his predecessors in title, had always occupied the rooms over the stairway, and that he had always treated the stairway as belonging to his building. Plaintiff offered some evidence tending to show that its tenants, and those of its predecessors in title, had always occupied the basement under the stairway, while the stairway itself had been used in common by the tenants of both buildings, including those of the old bank building. Plaintiff’s real claim, however, was, and is, that neither party had acquired title by adverse possession, but that the rights of both had always been purely permissive; that as a result of the revocation of the mutual license by the plaintiff, when it planned to construct its new building, and gave notice thereof, neither party had any right, title or easement extending beyond the property line which runs through the center of the stairway. The learned circuit judge who heard the case held with the plaintiff and entered a decree quieting plaintiff’s title to the center of the stairway, giving said defendant 18 months to make alterations, and remove so much of the structure as is upon plaintiff’s premises, and restraining said defendant from “interfering with the free and unrestricted use by plaintiff of the premises aforesaid, and with the removal by plaintiff of any structure, or other property which may remain on said premises at the expiration of the period of 18 months aforesaid.”

Upon the hearing below, it was.conceded that when the building in controversy was erected, the east part of lot 12, and the west one foot of lot 11, were owned by Byron E. Warren, and the remainder of lot 11 was owned by Andreas Vanden Brooks; that the plaintiff had succeeded, by various conveyances, to the title of the said Warren, and that defendant John C. Vanden Brooks had succeeded, by inheritance, and conveyances, to -the title of said Andreas Vanden Brooks. Mr. Warren’s deposition was taken and read upon the hearing at the circuit. He was the principal witness as to the loriginal agreement. On direct examination by the plaintiff, he testified in part as follows:

“I am acquainted with the stairway leading up* into the Bank block from Center avenue. I came down them a good many times.
“Q. How was that located with reference to the property line between you and Mr. Vanden Brooks?
“A. It was half of it supplied by Mr. Vanden Brooks, and half by myself — half of the frontage.
“Q. Where was the center of the stairway with reference to the property line?
“A. It was the center line between the two owners, Vanden Brooks and myself.
“Q. How was the building built that was on your land and Mr. Vanden Brooks’, that is, by contract, or by day labor if you know?
“A. I think both of them were built by day labor. Mr. Vanden Brooks personally superintended the construction of his part of the property, as it went along, and I did the same way. I do not know of any written agreement in respect to this stairway on Center avenue. I don’t think there ever was any written agreement:
“Q. What kind of an arrangement was there, if any, in regard to the stairway. Was there a definite verbal arrangement?
“A. I don’t hardly know how to answer that.
“Q. Describe what the arrangement was. That is the best way to answer it.
“A. Well, I should say that as incidents — when decisions or discussions were necessary, when it came up at the time and seemed to become necessary, we always settled it. We were working nicely together, without any friction in any way or shape, and the work went along, seemed to meet the views of both of us, and that is about all there was to the construction of the building. * * *
“Q. How much of an understanding or agreement, if any, did you have about the location of the stairway, being on both of your lands? Explain that.
“A. We decided that each would furnish the same proportion of the stairway, and that was done. My recollections are, and I believe I am correct, there was an understanding between myself and Mr. Van-den Brooks that the area underneath these stairs was to become exclusively for my use, and then the stairway itself was to be used jointly, and then above the .stairway, Mr. Vanden Brooks was to open, cut an opening through the wall, and have the use of that, and myself and tenants of my building were to have the right of the alleyway, which you don’t show here * * * I owned my building from 1871. I began building on it in 1871. I continued to own it, I think to 1891, then I was interested in it for a few years later. * * *
“Q. When this agreement or understanding was had between you and Mr. Vanden Brooks in regard to the use of these various spaces under and over this stairway, was anything said as to how long that use would continue?
“A. No. I guess we didn’t think it would ever come to an end.
“Q. What do you mean by saying you didn’t think, you and he didn’t think it would ever come to an end, explain that?
“A. We didn’t seem to make any provision for the future.
_ “Q. Did you then anticipate the tearing down of either section of that building?
“A. No, not in those days.” .

On cross-examination, Mr. Warren testified as follows :

“Q. Mr._ Warren, you rememher that Mi;. Vanden Brooks paid the entire expense of building this stairway?
“A. At the rear?
“Q. At the front.
“A. Oh, no. * * *
“Q. You shared the expense?
“A. Yes, it is my recollection that we paid for the work jointly, some way, excepting only just relating ' to that basement there.
“Q. And a heavy wall was built on the west side of the stairway?
“A. Yes.
“Q. North and south?
“A. Yes.
“Q. And that went to the roof and supported the roof of that same wall?
‘‘A. I think it goes clear to the roof, both sides.
“Q. And on the east side of the stairway, a wall was built which only came to the surface of the ground, and the rest was—
“A. No. You mean on the first floor.
“Q. Yes.
“A. I guess that is so, may be. * * * It is my remembrance that that goes all the way up, but it is wood instead of solid. I guess all the way. * * *
“Q. Just tell us how the wall on the east side of the stairway was built, of what material?
’“A. It is built of stone and brick, the first floor, and my recollection is that it was wood above that, at one time. What it is now I don’t recall, I didn’t look to see.
_ “Q. You considered when you built it that the dividing line on the stairway would be the wall on the west side of the stairway?
“A. No, no, the dividing line was right in the center, each of us owning a half of it.
“Q. Was that the arrangement with Vanden Brooks ?
“A. It must have been, because it was constructed under that system. * * * The only specific agreement with reference to who should use it, was in reference to these little rooms. When we kind of got finished, that is my recollection, and I guess I am right, coming along to where we were going to do something with these spaces, Mr. Vanden Brooks and I finally decided that he should have these two little rooms over the stairway.
“Q. Mr. Vanden Brooks has had possession of all of the space above the stairway from the time this building was constructed?
“A. Yes, I guess that’s right.
“Q. And Mr. Vanden Brooks shared in the building expense of the stairway that is in dispute?
“A. Yes, his half of it on his side of the building. I am almost sure about surrounding that stairway, because, as I recall it, I scolded about that on account of the fire risk, of his using wood in the construction of the first story, using studding instead of solid brick, on account of the insurance. My part would naturally cost more than the construction • of Mr. Vanden Brooks.”

He further testified, that in painting the front of his building, he just painted up to the windows and stopped there — up to the pilaster of the stairway. Also that he deeded to the Bank Building Company, and had charge of the property for at least a couple of years thereafter, adding:

“My best recollection is that it would be about 1892 to 1895. I should think it was about 1893.”

The defendant Vanden Brooks testified that he had known this property for 25 years, and had always supposed that he had the absolute title to the whole stairway. He testified:

“I can remember back as to the condition of this building for the last 25 years. * * * I never thought anything else, but the whole stairway belonged to the Vanden Brooks’ block. We always kept the stairway in repair, painted it, painted the walls, both sides. That would be right up to the west pilasters, considering that as a party wall, to the point Y on Exhibit ‘A.’ And we had possession of the rooms here, and rented them. At that time I had possession of everything above the stairway and I still occupy that. * * * I have control of all of that property. The west pilaster is an iron beam from the ground to the first floor, right from the basement, bottom of the basement, right to the roof, is a solid brick construction. I am referring to the pilaster as the point in Exhibit ‘A,’ marked Y. * * * That wall supports the roof, is a carrying wall for the roof from the second and third floors. * * * No one had ever made any claim that the First National Bank, or any successors of Mr. B. E. Warren had any title to that stairway during the 20 years, that I can remember. From the time that I had been administrator of my father’s estate to the time shortly before the commencement of this suit, no one ever made any claim that the First National Bank or any successors of B. E. Warren had any interest in the stairway.”

The position of the plaintiff is, as we understand it, that the use by Warren of the basement under the stairway, and by Vanden Brooks, of the rooms over the stairway, and of the joint use of the stairway itself, were in pursuance of an oral agreement between the parties, made when the buildings were constructed; that this agreement was never put in writing, and was not made for any definite time; that the arrangement between Warren and Vanden Brooks created a mutual, revocable license; that it was revoked by the plaintiff when the bill of complaint herein was filed; and that the original property line therefore marks the present boundary line of the property.

The plaintiff, from the foregoing position, claims that in this State there can be no adverse possession or prescriptive right made under such circumstances, and that the use was a permissive user, citing Gates v. Sebald, 180 Mich. 578, 583; Township of Jasper v. Martin, 161 Mich. 336, 341 (137 Am. St. Rep. 508); and Wilkinson v. Hutzel, 142 Mich. 674. And that where there is no prescriptive right, an easement cannot be created, in real estate, by parol or estoppel, or by any other means than a grant; citing Nowlin Lumber Co. v. Wilson, 119 Mich. 406, 410, 412.

The position and claim of defendant and appellant are frankly stated in the brief as follows:

“It is not disputed that defendant Vanden Brooks, and his father had sole possession of the space above the stairway for 42 years. The answer and the cross-bill are therefore founded upon the theory of title by adverse possession in and to the lands under the stairway, and all the spaces above it. The testimony, however, discloses that Mr. Vanden Brooks had not had exclusive possession of the spaces under the stairway for the statutory period, and for this reason, in the argument, the claim of title was abandoned, and the lower court was advised, as is this court, that defendant does not claim title by adverse possession, but does claim an easement in the stairway and the spaces above the stairway. * * * Inasmuch, however, as claim is not made by defendant in the title of the real estate under the stairway, for the purposes of this case, the discussion as to the party wall is of no importance, except as it tends to corroborate the testimony that Vanden Brooks has maintained an adverse user of all the space east of the wall since its construction.”

Defendant says:

“Plaintiff seeks to defeat the apparent equities of defendant’s position by the assertion of a hard rule of law, viz., that the testimony shows that Vanden Brooks’ continual use of this stairway and the space above it, was permissive only, and that under this rule of law, his apparent rights are defeated.
“Our position is, that the facts clearly show that the original possession and continual use of Vanden Brooks was not by permissive or revocable license, but was under an agreement which was to continue for all time. However, for the sake of this argument only, and conceding that the original arrangement between Andreas Vanden Brooks and B. E. Warren was permissive and revocable in character, another hard legal rule intervenes, which this court has announced in several cases, but has been loath to enforce where it is possible to make a decision on any other ground. This rule is, that a permissive license is revoked by operation of law, when the licensor parts with his title. This court has said:
“ ‘It is well settled that a conveyance of the land by the licensor operates ipso facto as a revocation of a license previously granted. Maxwell v. Bay City Bridge Co., 41 Mich. 466; Minneapolis, etc., R. Co. v. Marble, 112 Mich. 10; Eckerson v. Crippen, 110 N. Y. 585 (1 L. R. A. 487, 18 N. E. 443).’ Toney v. Knapp, 142 Mich. 652, 661.
“The testimony is undisputed that B. E. Warren parted with his title in 1891, which would be 24 years prior to the. filing of the bill of complaint in this case. Therefore, even though it should be found that the original arrangement was permissive and revocable in character, upon revocation of such license, the element of permission would from that time be eliminated.”

It is claimed by counsel for plaintiff that this question was a new one, not raised in the court below. Insofar as this record shows, the question is inherent both in the pleadings and the evidence. The defendant had claimed adverse possession and prescriptive right since 1871. Now he claims it since 1891, by reason of the deed of that date. The question has been discussed by counsel for both parties upon its. merits.

Conceding, as we do, the correctness of the position of the plaintiff as to the parol license and permissive use of the property in the first instance, we are constrained to hold that the deed of the premises by Warren in 1891 revoked that license and permissive use, and that the use of the defendant of the stairway and spaces above since that time has been of such a character as to give him a prescriptive right to the easement claimed. It is urged by counsel for plaintiff that the rule of revocation is a hard rule. We must say in reply that for 40 years it has been a rule of property in this State. In Minneapolis, etc., R. Co. v. Marble, supra, this court said that the rule was too well settled in this and other courts to need discussion. We applied the rule in the recent case of Voorhies v. Pratt, 200 Mich. 91. In that case, Justice Bird, speaking for the court, said:

“The drains appear to have had their beginning in favor, extended by Mr. Hatt to defendant, and, therefore, were permissive. While they were maintained as a matter of favor, defendant could not acquire any right by adverse user. People v. Ferguson, 119 Mich. 373. After a sale of the premises to Mr. James Pratt the favor was thereby extinguished (Maxwell v. Bay City Bridge Co., 41 Mich. 466), and the statute would begin to run.”

It cannot be said that, because other persons than this defendant used this stairway, his use was not exclusive. In Schmidt v. Brown, 226 Ill. 590 (80 N. E. 1071, 11 L. R. A. [N. S.] 457), it was held that because other persons besides the claimant of a right of way used it, did not prevent the claimant’s user from being exclusive, since exclusive use means that his right does not depend on a like right in others; the court citing Washburn on Easements, § 44, p. 164; Jones on Easements, § 272; Bennett v. Biddle, 150 Pa. 420 (24 Atl. 738); and McKenzie v. Elliott, 134 Ill. 156 (24 N. E. 965).

We do not think there is any incongruity in holding that defendant Vanden Brooks has a prescriptive right to the use of this stairway, and the spaces above it, so long as his present building stands; and that, upon this building being destroyed, or ceasing to exist, the easement will cease, and the land of the plaintiff as described in the bill of complaint and in the decree below, would no longer be charged with the easement. As to the stairway, and the spaces above it, the status quo would be maintained. We are of the opinion that we should so hold. Both parties seem to be standing here upon what they claim to be their strict legal rights. Under the circumstances here disclosed, we must leave the parties where they have placed themselves.

It follows that the decree below will be reversed; and if the plaintiff so elects, a decree will be entered here adjudging that the right and title of the plaintiff in and to said lot 12 and the westerly one foot of lot 11 is established and confirmed, subject to the easement above stated. And if such election is not exercised by the plaintiff, within 60 days from the filing of this opinion, the plaintiff’s bill of complaint will be dismissed.

In either case, the defendant Vanden Brooks will recover his costs in both courts, to be taxed. The party wall agreement of April 24, 1884, will not be affected by the decree.

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


text:
    DRUEKE-LYNCH CO. v. MICHIGAN BONDING & SURETY CO.
    Corporations — Service of Process — Domestic Corporations — Garnishment — Statutes.
    In garnishment proceedings against a Michigan bondin and surety company, the insurance commissioner havin been duly appointed by said company to receive service of process (section 9219, 2 Comp. Laws 1915), service upon the secretary of the company instead of upon the insurance commissioner was void. Sections 12432, 12436, 3 Comp. Laws 1915. b0 bo
    Certiorari to Washtenaw; Sample, J.
    Submitted October 11, 1918.
    (Docket No. 45.)
    Decided December 27, 1918.
    Garnishment proceedings by the Drueke-Lynch Company against William Corson, principal, and the Michigan Bonding & Surety Company, garnishee defendant. From an order setting aside the proceedings for want of service, plaintiff brings certiorari.
    Affirmed.

      A. F. Freeman, for appellant.

      A. J. Sawyer, for appellees.
   Stone, J.

On February 1, 1918, plaintiff, appellant, obtained a judgment against the principal defendant herein, for $246.31 damages, and including costs, in the circuit court for the county of Washtenaw. On April 16, 1918, a writ of garnishment was duly issued from said court against the Michigan Bonding & Surety Company as garnishee, to reach moneys or funds supposed to be in its hands belonging to the principal defendant, to satisfy the said judgment. On April 17, 1918, the writ of garnishment was served upon William J. Nagel, the secretary of the said bonding company, at the city of Detroit. The writ was returnable May 2, 1918. No disclosure was made by the garnishee. On May 15, 1918, plaintiff, appellant, entered the garnishee’s default and took judgment against it for the amount of its judgment against the principal defendant, with interest; and execution was issued thereon and sent to the sheriff of Wayne county. On May 21, 1918, the garnishee defendant filed its motion in the court below to set aside the service of the writ of garnishment, and cancel the judgment, and recall the execution issued, because the service of the writ of garnishment had not been made upon the commissioner of insurance of this State. That motion was supported by affidavit of the attorney for the garnishee defendant, in which, among other things, it was stated that the commissioner of insurance of this State had been and was appointed to receive service of process upon the said Michigan Bonding & Surety Company. On May 27, 1918, the said motion was argued and submitted, and on June 15, 1918, a formal order was entered by the court below setting aside said service and the judgment against the garnishee defendant, and recalling said execution; the court holding that the service of the garnishee process should have been made upon the commissioner of insurance of this State.

The plaintiff, appellant, has brought the case here upon certiorari; and the sole meritorious question presented is whether the service of the writ of garnishment upon the secretary of the said bonding company was a proper and legal service, or whether service should have been made upon the commissioner of insurance.

It is the contention of the plaintiff, appellant, that under the provisions of section 29 of chapter 13 of the judicature act (3 Comp. Laws 1915, § 12432), the service upon the secretary of the garnishee defendant was legal. That section reads as follows:

“Process issued from any court of record against a corporation, partnership association or unincorporated voluntary association, may be served upon any officer, director, trustee or agent thereof, or by leaving same during regular office hours at the office of such corporation, partnership association or unincorporated voluntary association, with any person in charge thereof. Except as otherwise provided in this act, all general or special laws relating to the service of process upon corporations are hereby repealed.”

It will be noted that the section just quoted provides that:

“Except as otherwise provided in this act, all general or special laws relating to the service of process upon corporations are hereby repealed.”

This section should be read in connection with section 38 of the same chapter (3 Comp. Laws 1915, §. 12436), which reads as follows:

“In all cases of domestic or foreign insurance companies, fraternal, co-operative and mutual beneficiary societies, orders or associations, and in all other cases where it is required by law that any company, society, order or association, shall appoint in writing the commissioner of insurance, the secretary of State, or any other officer of this State, as their agent or attorney, upon whom all legal process in any action or proceeding may be served, if such appointment shall have been made, service of process shall be made upon such officer.”

Reference should here be made to the provisions of Act No. 321, Pub. Acts 1907 (2 Comp. Laws 1915, § 9219), being an amendatory act relating to bonding companies. The last proviso of section 1 of that act reads as follows:

“Provided further, That suits may be commenced in the circuit court in any county where the plaintiff resides, by declaration or writ, and service shall be made in such cases only upon the commissioner of insurance in like manner, and. with like effect as is provided for the service of process upon societies, orders or associations organized under the laws of any other State, Province or Territory, and doing business in this State, and not having its principal office within this State, and for the purpose of service of process as herein provided such surety company shall appoint in writing the commissioner of insurance, or his successor in office, to be its true and lawful attorney.”

This last provision of the statute has been construed by this court in the cases of People v. Fidelity & Deposit Co., 163 Mich. 94, and Taylor v. Davarn, 191 Mich. 243.

It is the contention of the plaintiff, appellant, that said Act No. 321 only has reference to suits commenced against the bonding company as a principal defendant, and has no application or reference to the service of garnishee process.

It will aid us somewhat if we examine the provisions of the judicature act relating to the service of garnishee process upon corporations. Manifestly, the Michigan Bonding & Surety Company is a Michigan corporation. Section 46 of chapter 28 of the judicature act (3 Comp. Laws 1915, § 13167), relating to garnishee proceedings, contains the following language:

“All corporations of whatsoever nature may be served and proceeded against as garnishees in the same manner and with like effect as individuals under the provisions of this chapter, and the rules of law relating to proceedings against corporations.” * * *

We think it is contemplated by this statute that the process, or writ in garnishment proceedings, shall be served upon the corporation, here the bonding company, in the manner provided by law for the service of process generally upon such company. This being so, it is very clear to us that the service of the garnishee process in this case should have been made upon the commissioner of insurance; it appearing uncontradicted in this record, that such commissioner had been duly appointed by the said bonding company to receive service of process against the Michigan Bonding & Surety Company.

We find no error in the record. The judgment of the court below is therefore affirmed, with costs.

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