author: Hooker, J.

text:
    PEOPLE v. BOWEN.
    1. Homicide — Evidence—Insanity.
    In a prosecution for murder of respondent’s wife, respondent, whose defense was that he committed the crime while temporarily insane and under the influence of suspicion that his wife was guilty of illicit relations with other men, testimony as to any facts within his knowledge, or conduct of which he knew, reports true or false, that were brought to him and that would tend to produce belief in her infidelity, unless otherwise privileged, was admissible..
    2. Same — Evidence—Character of Deceased.
    ^Evidence of his wife’s guilt or innocence was not, however, admissible, since it would not have influenced his mind, and raised collateral issues.
    3. Evidence — Privileged Communications — Husband and W ife — Murder—Insanity.
    Under 3 Comp. Laws, § 10213, the last conversation between respondent and his wife, held in, privacy, relating to their proposed final separation, was of a privileged character.
    4. Same— Presumptions— Privileged Communications— Confidential.
    It is presumed that communications between husband and wife, no other person being present, are confidential until the contrary is shown.

      5. Same — Death—Marriage.
    The privilege created by the statute survives separation, divorce, or death.
    6. Same — Correspondence—Letters.
    It also extends to letters written by the wife to the husband, and to letters from other persons shown or given by her to him.
    7. Same.
    The husband could testify to the contents of letters from others to his wife, received and read by him, provided that it was not through her permission, and that the proper foundation for secondary evidence was laid.
    8. Same.
    Conversations at which third persons were present were competent.
    9. Trial — Criminal Law — Homicide—Evidence.
    It was improper conduct on the part of respondent’s counsel to persist in asking leading questions upon a subject that had been excluded from the consideration of the jury, in a trial for murder; and any necessary offers of testimony should have been made in writing without bringing them before the jury.
    10. Homicide — Manslaughter.
    Although respondent did not claim that he killed his wife in sudden anger, but defended on the theory that he was seized by emotional insanity, it was of doubtful propriety to instruct the jury that they must find defendant guilty of murder or acquit him, thus excluding a verdict of manslaughter.
    11. Evidence — Hypothetical Questions.
    A hypothetical question based on facts not shown by the evidence was properly excluded.
    12. Same — Opinion Evidence.
    Questions asked of a medical expert, on the basis of his understanding of testimony given by another expert, was properly excluded.
    Error to Newaygo; Palmer, J.
    Submitted January 20, 1911.
    (Docket No. 175.)
    Decided March 31, 1911.
    Clyde Bowen was convicted of murder in the second degree.
    Reversed.

      Dunham & Phelps, for appellant.

      John G. Anderson, Prosecuting Attorney, for the people.
   Hooker, J.

The respondent and his wife were young married people. There was testimony tending to show that they were living apart; she doing laundry or housework for hire, and he working at other places. It is inferable from the testimony that he was, and perhaps had cause to be, jealous and suspicious of her relations with at least two other men. A while before the homicide, Vera, his wife, came to the residence of Ezra Brower, whose wife was her relative, and later she went to her mother’s home. Respondent went there to visit her on or shortly before October 30th, and on the 31st, the day of her death, they went to church together. On the way home from church they §at down to rest or converse, and during the conversation he cut her throat, and she died immediately. He dragged her back from the road, and went to his mother’s house and' told what he had done, after making a futile and perhaps feeble effort to cut his own throat. He made repeated admissions and at first pleaded guilty, but later secured counsel and made a defense; it being claimed that he was mentally irresponsible at the moment that he committed the act. “Emotional insanity ” is the name that is applied to this particular kind of alleged irresponsibility in the briefs of counsel. The defendant was convicted of murder in the second degree, and was sentenced. The cause is here on writ of error and bill of exceptions.

. The assignments of error are numerous, but have been conveniently grouped by counsel for the defendant. Upon the trial the defense sought to show defendant’s jealousy, and that his wife’s conduct was such as to cause it, and that from her conduct in his presence, and things she did in his absence, reports of which were brought to him, a condition of mind resulted which made his act that of an irresponsible person. While there was testimony tending to show that he was much worried, and very unhappy for some time prior to the homicide, we recall no evidence nor any claim that he was irresponsible, except the alleged momentary unaccountableness, while he was engaged in cutting his wife’s throat, of which he denies all knowledge until he saw the blood.

The learned circuit judge seems to have thought that such a condition as the defense claimed existed at that moment was not dependent on the actual conduct of defendant’s wife, but upon what he understood and believed it to be. Accordingly he held that proof tending to show misconduct on her part was not admissible, although he permitted proof of reports of misconduct and testimony from third parties to what occurred at interviews between the defendant and his wife, but did not allow defendant to testify concerning them. Again, he seems to have thought that under the circumstances of the case there was nothing justifying the submission of the question of manslaughter to the jury, and instructed them that he could not be found guilty of that, but must be found guilty of one of the degrees of murder, or not guilty.

The defendant was a witness in his own behalf, and counsel sought, but was not permitted, to show by him conversations, that for convenience may be divided into four classes:

(1) Private conversations which occurred between defendant and his wife when alone before the day of the killing.

(2) Similar conversations in the presence of others.

(3) The conversation during their walk and leading up to the homicide.

(4) Testimony as to the contents of certain letters written to or by his wife.

We are of the opinion that it was not competent to show facts indicating the infidelity of the wife where such facts were not shown to have come within the personal observation of the defendant. It must be borne in mind that the defense sought to show that for the moment, by reason of disease or insanity, defendant’s mind was in a condition which made him incapable of understanding the nature of his act, or of having the power to control his acts, or, as expressed in the case of People v. Durfee, 62 Mich. 493 (29 N. W. 111):

“ Perhaps it would be enough to say — and to leave it right there — that if, by reason of disease, the defendant was not capable of knowing he was doing wrong in the particular act, or if he had not the power to resist the impulse to do the act by reason of disease or insanity, that would be an unsound mind. But it must be an unsoundness which affected the act in question, and not one which did not affect it.”

And:

“ This unsoundness must be the result of a disease, and not the result of his having allowed his passions to run until they have become uncontrollable. We frequently meet men in courts of justice who claim that they have committed a crime because they were drunk. The law holds them responsible, because they should not have got drunk; they should not have formed the habit. So the law requires of a man that he will curb his passions and restrain himself, and if he does not do it, holds him accountable, unless it is by reason of disease, which renders him unable to do it.”

The condition of defendant’s mind could only be affected by his knowledge or belief. Hence any facts within his own knowledge, or any conduct that he must have personally known, and any reports, true or false, that were brought to him, which would tend to produce in his mind suspicion or belief in her infidelity,-were competent, and unless privileged were admissible. These would not be strengthened or weakened by substantial proof of the fact of incontinence or innocence, or of the truth or falsity of the reports brought to him. These were collateral questions and tended to raise collateral issues foreign to the real inquiry, i. e., What was defendant’s condition of mind on the occasion of and preceding the homicide ? In the recent case of People v. Sharp, 163 Mich. 79 (127 N. W. 758), defendant was on trial for shooting the alleged paramour of his wife. The prosecution on rebuttal introduced testimony tending to show that incontinence was a fault of the wife that existed before her relations with the man who was shot, for the purpose of meeting the defense of emotional insanity. We held that this was inadmissible; the real question being whether her husband had known or heard of any such relation or rumor, and the action of the trial judge in striking out the testimony was approved.

The statute, 3 Comp. Laws, § 10213, provides that neither (husband or wife) “shall either during the marriage or afterwards without the consent of both, be examined as to any communication made by one to the other during the marriage,” etc.

The defendant was called as a witness on his own behalf, and his counsel questioned him in relation to the conversation that occurred between himself and wife on the occasion of and immediately preceding the homicide, as well as on other occasions when they were alone. He sought to prove admissions or communications expressly conferring or implying her incontinence. The court held that such testimony was inadmissible under the statute mentioned. Counsel for defendant say that there was no reason to believe that the communications between them on these occasions were confidential. It is sufficient to say upon this subject that the presumption should be that the intention was that any communication between husband and wife, no other being present, should be considered confidential until the contrary appears. 4 Wigmore on Evidence, § 2336, and cases cited. These parties sought solitude. According to the claim of the defense, they were having a last talk before a final separation, and doubtless they were discussing a matter of extreme delicacy and vital importance, closely related to their marital relation, and in our opinion the most liberal construction of the statute would not justify a suspicion even that the communications were not intended to be in marital confidence. 23 Am. & Eng. Enc. Law (2d Ed.), p. 99. They were then privileged, and under the explicit words of the statute the husband could not testify to them without the consent of his wife, which, being dead, she could not give. The privilege secured by this statute survives separation, divorce, and death. 4 Wigmore on. Evidence, § 2341; 23 Am. & Eng. Enc. Law (2d Ed.), p. 98.

That the privilege extends to evidence in criminal cases generally admits of no doubt. 23 Am. & Eng. Enc. Law (2d Ed.), p. 95; People v. Warner, 117 Cal. 637 (49 Pac. 841); People v. Murphy, 101 N. Y. 126 (4 N. E. 326, 54 Am. Rep. 661); People v. Wood, 126 N. Y. 249, 271 (27 N. E. 362). In our opinion it was not competent for defendant to testify to the conversation that preceded his homicidal act, or to any other communication between himself and wife regarding the subject, when no other person was present.

We have said that the court did not err in refusing to allow the defendant to testify to communications between himself and wife in private, and for the same reason it was not error to refuse to permit him to testify to the contents of letters sent by her to him, or given or shown to him by her, whether written by her or others. He had the right to testify to the contents of letters from others addressed to her, but received and read by him (provided it was not through her permission, if there were such) which tended to support the defense made, provided a proper foundation for secondary evidence was laid, of which last condition we have been unable to satisfy ourselves.

Again, conversations between husband and wife and third parties sought to be shown in this case were not privileged ; such were the incidents of the postal cards, and her intention to go to San Francisco, to indorse and collect certain of his checks in her possession. There is no doubt of the propriety of admitting the testimony of third parties and of the respondent as to these conversations. See 23 Am. & Eng. Enc. Law (2d Ed.), p. 96, and cases cited. The incidents were as follows: Gertrude Bowen and defendant and Vera were together. Vera showed Gertrude a postal card. She asked who it was from. Counsel claims that it was from a man and offered to show that she answered:

“‘Clyde knows. Look at the look on his face;’ and that when she looked at the face of respondent, her brother, he was pale, and turned around and walked away, and was biting his lips.”

Defendant was not permitted to testify to this interview or its effect upon him. Again, defendant’s mother testified to a conversation in her presence, when Vera told defendant that she was going to San Francisco. This was admitted in part, but some of it was excluded. We are of the opinion that these conversations should not have been excluded.

We are impressed with the care taken by the learned circuit judge in trying this case, and his fairness in the face of persistent efforts to get before the jury a class of' communications which he had held to be privileged and inadmissible. Notwithstanding such ruling and notwithstanding the fact that there could not be and was not any claim that the questions put upon the record were not fairly within it, counsel persisted in the presence of the jury in putting to the defendant innumerable leading questions which, taken collectively, got before them their claim as to the entire details of the interview at the time of the tragedy. The effect of this might have been an acquittal and a possible irreparable injustice to the public. Counsel should not have attempted this, and the court should have taken whatever steps were necessary to prevent it. Counsel’s offers to prove in such a case, if necessary, could have been made in writing without allowing the jury to hear it, which would have sufficiently preserved the defendant’s rights. The fact that the people have no right to appeal makes it incumbent upon the circuit judge to protect them against influences of this kind.

There is another subject that from its prominence demands attention. It was not claimed on the trial, and is not here, that the defendant acted from sudden and uncontrollable anger, induced by a cause, which might reduce the killing from murder to manslaughter, and the court instructed the jury that they must find defendant guilty of murder, or not guilty. We think that this charge was of doubtful propriety, and, without at this time holding it to be error, commend the question to careful attention upon another trial. In this connection, see People v. Repke, 103 Mich. 459 (61 N. W. 861); People v. Holmes, 111 Mich. 364 (69 N. W. 501); People v. Nunn, 120 Mich. 534 (79 N. W. 800); People v. Warren, 122 Mich. 504 (81 N. W. 360, 80 Am. St. Rep. 582); People v. Remus, 135 Mich. 629 (98 N. W. 397, 100 N. W. 403); People v. North, 153 Mich. 612 (117 N. W. 63); People v. Doyle, 160 Mich. 423 (125 N. W. 358). See, also, People v. Brott, 163 Mich. 150 (128 N. W. 236).

Dr. Whitehead, a physician, was called as a witness for defendant; testified that he had examined him two or three days before he was sworn, and that the lobes of his brain might be affected by a disease that he testified that he had, and that, if so, it would have a tendency to cause what is called irascible mania and crime. In his opinion irascible mania and emotional insanity are practically interchangeable terms. He said that he must have been suffering from those lobes of his brain at the date of the homicide and, in his judgment, subject to what is known as impulsive insanity. Thereupon counsel for defendant asked this physician a hypothetical question covering more than eight pages, and in which there was an apparent attempt to set up as facts to be assumed the testimony as defendant’s counsel understood it, and concluding as follows:

“ Now, doctor, assuming all these things to be facts, I ask you whether or not Clyde Bowen at the very moment of taking the life of his wife that Sunday afternoon, October 31, 1909, in your opinion was suffering with emotional insanity to such an extent as to be unable to judge between the right and wrong of the act? ”

It was objected to as not warranted by the testimony. We think the answer was properly excluded. People v. Brown, 53 Mich. 531 (19 N. W. 172). Dr. Nelson was then called. He had testified to defendant’s diseased condition. Several questions were asked him, based in part on his understanding of what Whitehead had testified, and those were properly excluded. People v. Aikin, 66 Mich. 460 (33 N. W. 821, 11 Am. St. Rep. 512).

The conviction is reversed and a new trial ordered.

Ostrander, C. J., and Bird, Moore, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    PEOPLE v. BURKHART.
    1. Homicide — Evidence—Husband and Wife — Adultery — Motive.
    It was competent for the prosecution to show that respondent who was charged with murder had illicit relations with the wife of deceased.
    2. Criminal Law — Evidence—Witnesses.
    The respondent was properly refused permission to show that the prosecution caused several witnesses to attend, but did not place them on the stand.
    3. Same — Trial—Conduct of Court.
    In overruling objections of respondent, urged on the ground of immateriality of the testimony, the>court committed no prejudicial error in stating that it was material or in requesting counsel not to be so quick about taking an exception.
    4. Same — Charge.
    Nor did the court err in charging the jury that they might believe respondent’s testimony that he had not been unlawfully intimate with the wife of deceased, but that they should take into consideration the fact that respondent was oharged with a serious offense, and was under inducement to tell a story that would most redound to his credit.
    5. Same — Trial—Presence op Respondent.
    The court did not commit prejudicial error in calling the jury back, in the absence of the accused, and advising them to come to an agreement.
    Error to the recorder’s court of the city of Detroit; Phelan, J.
    Submitted January 20, 1911.
    (Docket No. 177.)
    Decided March 31, 1911.
    Michael Burkhart was convicted of manslaughter.
    Affirmed.

      Percy W. Grose, for appellant.

      Philip T. Van Zile, Prosecuting Attorney, and Fred H. Aldrich, Assistant Prosecuting Attorney, for the people.
   Moore, J.

An information was filed against respondent, charging him with the murder of Robert Barrows. He was convicted of manslaughter, duly sentenced, and has brought his case here by writ of error.

The assignments of error are grouped by counsel as follows:

(1) Admission and exclusion of evidence.

(2) Prejudicial remarks of prosecuting attorneys and the court in the presence of the jury.

(3) Argument of prosecutors to jury.

(4) Refusal of court to charge as requested by respondent.

(5) The charge of the court as given.

(6) Action of court in calling jury into court while deliberating, and in the absence of respondent, and the remarks of the court at such time.

Before taking up these assignments in detail, it may be well to get' a general view of the case as shown by the testimony of the wife of Mr. Barrows, and the testimony of respondent.

“I am the wife of Robert®Bárrows. On May the 4th of this year, at a few minutes past nine in the evening, I was on the corner of the new Y. M. C. A. building. I met Mr. Burkhart, the defendant. Mr. Burkhart called me up by phone about 8 o’clock. After talking with him, I met my husband before I met Burkhart. Burkhart and I went from there back to the place where I worked. We got there about 9:45. I went in the house when we got there. Burkhart did not. There is a front entrance, a side entrance, and a back entrance to this house. I went in at the kitchen entrance. This was a boarding house. I was a dining room girl at this time. I went in the house and took off my hat, and went to the bathroom, and went back into the room where the other girl was. I then went out in the yard. Mr. Burkhart was on the stoop in the corner when I went out. He stood up in the corner. I asked him what he was in the corner for, and he said, * Just to see where you were; that is all.’ He sat down on the stoop with me. We just got seated, when I heard some one coming, and I says, ‘ Here comes some one,’ and I got up off the stoop and I saw my husband come in, and Isays, ‘Mike!’ And my husband rushed past me with his arms outstretched and ran right up the steps. He says to Burkhart as he passed me, ‘ What are you doing with my wife?’ That is all I heard. I heard a shot; I didn’t see any one else present. I stood right where I was when he came in. My husband was at the top of the steps and the shot was fired. After the shot was fired, Burkhart ran past me and out. After the shot I walked into the kitchen with him.

“Q. You may state if he (your husband) said anything to you while you were going in the kitchen in response to what you said to him?

“A. He said, when I saw the gun I started to back off the steps.

Mr. Grose: I ask that that be stricken out.

The Court: I will leave it stand.

Mr. Grose: Exception.”

A further examination of Mrs. Barrows developed testimony tending to show that soon after she became acquainted with respondent she assumed illicit relations with him, which were continued until the time of the shooting. Objection was made to this testimony, which objection will be considered later.

The respondent’s version of the occurrence was as follows :

“When we arrived at 143 Lafayette, we went to the back part of the house. I left her right there by the porch. When she came out I was standing there by the steps; I think it was by the steps or on the porch; I don’t remember. We went to the other porch; we went upon the porch. We were on top of the porch about three minutes; I think I was standing. Well, we heard somebody walking. Mrs. Barrows ran down off the steps, and just as she was about 10 feet from the bottom step Mr. Barrows came rushing around past her. He hollered: ‘ What are you doing with my wife?’ as though he were very angry. I was on top of the steps; he ran up the steps. When he was running up the steps he hollered: ' Come on, Dick,’ had both his hands out and he had something in his hand that shone; it shined bright. In his speed coming up, he knocked me against that door — has a sort of little step there, like stone step — knocked me down on that step. Well, I got up, got away from him; and when I was getting up I pulled my gun out and fired. I went down off the step and went home. I crossed the street and walked right across Lafayette and down to Woodward. When I arrived at my home my trousers were torn. When I got to the house, a policeman was there.”

On the cross-examination he testified in part as follows:

“Barrows did not grab hold of me. I knew that Mrs. Barrows heard him coming, because she started down the steps to meet some one. I did not get down off the steps. I did not know it was him coming up. I first knew it was he when he started up the steps. I knew it was he before he started up the steps.
“Q. When Barrows was running up the steps, what hindered you when he was coming up the steps there to strike him as he came up towards you; you had the vantage ground, didn’t you ?
" Mr. Grose: I object to that as incompetent and immaterial — the argument of counsel in there, ‘You had the vantage ground, didn’t you ? ’
Mr. Grose: Exception for the defendant,
“A. Maybe I could have struck him while he was coming up the steps, if I wanted to protect my life. I might have struck him; yes. I don’t know as I did intend to shoot him; I did not intend to kill him. I had no intention of shooting him. I don’t know as I thought of anything at the time the shot was fired. I thought enough to draw the revolver out. I drew it out and shot him. I don’t know as I intended to shoot him. I did not intend to kill him. I intended to shoot all right. I did not have no intention of shooting him. I didn’t intend to shoot any one. The revolver all went off in a minute. I intended to shoot it; I don’t know if I intended to shoot Barrows with it. I shot; I shot in self-defense that night. I done it because he had something in his hand. I know he was going to— It all went in a minute; I don’t know what my intentions were. I did not intend to kill him. I never had the intention to kill any man. I must have pulled the trigger; it went off. I fired to save my life. I don’t remember what I fired at.' I knew I pulled the trigger. I don’t know as I intended to. I seen something shine in his hand; I could not swear whether it was a revolver or a knife. It was a weapon of some kind.” (It is the claim of the people Mr. Barrows had no weapon with him.)

The respondent was cross-examined as to his knowledge of why Barrows had ill feeling toward him, and that is assigned as error. It was the claim of respondent that a. letter from Mr. Barrows to his wife had been shown him, which letter contained threats. The court held that if part of the letter was to be admitted it should all be admitted. This is said to be error. The letter is as follows:

Well, Pauline, I hope you are getting along all right. I am trying to live somewhat respectably. Now, this is what I want to say. The party you knew too well said you had your mind made up to leave three months ago. Now if that is the case, it is no use for me to look for you back; but I would like to see you, and see what arrangements we could make, so that I could help you somewhat if necessary. We can have a nice sociable talk and see what is best for the children; how can we arrange it. I quit my job, I guess I will go painting. Now, well, 1 don’t think it is satisfactory by me paying board for the little ones. He wants to adopt Vivian and I will wait until I hear from you or see you, and then we can see what is best. If you only knew what Billets told Rose what Mike said to him when he met him on the street, you would go for him and kick, too. Now I am going to drop speaking about him any more; but if ever I catch him out with you, well, it is good day to him, and I told him so, too. I don’t care who else I see you with; but if I see him, well, that is enough, because he is the dirtiest dog that ever talked about a woman, and you will find it out. Billets said he would come to court and prove what he said, and bring two more fellows from the house of correction who knew what he used to talk about Sundays and other days when they were all together. Now you see me as soon as possible and we will arrange for the little ones.
“Prom Rob.”

With this general survey of the case, we think we may consider the several groups of assignments of error. Groups 1 and 2 may be considered together. In addition to what has already been stated, the court declined to allow the attorney for respondent to show that in the court below the people had caused the attendance of certain witnesses, but did not swear them. This is said to be error. In overruling objections to testimony upon the ground that it was immaterial, the court said he thought the testimony was material, and upon another occasion that it was very material, and upon one occasion said to counsel, “Bo not be so quick about taking your exception. ” These are the remarks of the court that are said to be prejudicial. We have examined with care the rulings of the court and approve of them. While it perhaps might have been well to have disposed of the objections without remark, it is clear that when testimony was objected to because counsel thought it immaterial the court could not overrule the objection without indicating that it thought it was material. We cannot, see how the oral utterance of that thought could do any harm. There were other remarks of the court, but we will not refer to them further.

The remarks of the prosecuting attorney which are claimed to .be prejudicial occurred when he was seeking to elicit testimony which he Said he thought was competent and material. This testimony had been objected to and was excluded. We find no error in this respect.

Was there error in the argument of the prosecuting attorneys to the jury? These arguments are set out in great detail and have been examined with care. While there is an occasional remark that might well have been omitted, they were fully justified by the record.

Complaint is made of the refusal of the court to charge as requested. Part of these requests were proper and part were not. So far as they were proper to be given, they were fully covered by the general charge.

Was there error in that part of the charge reading as follows:

“You have heard the defendant’s statement to you upon the stand. You should weigh his testimony as you do that of any other witness in the case. If you believe the defendant’s testimony, you may believe it in preference to all other testimony in the case that he had no knowledge of this woman’s body, that he never had any carnal intercourse with her; but I charge you in that connection that he is the respondent in the case, and he is charged with the most serious offense known to the laws of this State, and is under inducement to tell that story which will most redound to his credit.”

It is said:

“This charge in effect places the question of the credibility of respondent upon one fact alone. It says in effect you can believe him if you believe he has not been intimate with this woman.”

We do not think the charge should be construed as counsel construe it. It is probable that the reason why the court mentioned one part of respondent’s testimony was it was the only part of his testimony in conflict with several other witnesses, and particularly the testimony of Mrs. Barrows. The jury were told without reserve that they should weigh respondent’s testimony, and might believe it if they did believe it.

La there reversible error in what occurred after the jury had been sent out ? It is said there is, because the proceedings were in the absence of the respondent, who was confined without bail. The jury retired at 2:40 p. m. At 6:30 p. m. it was brought in because of word sent by the foreman to the judge, and a colloquy occurred between the judge, the foreman, and the jurors. The respondent was not present, but his counsel was, and gave no intimation to the court until the jury were sent back that his client was not present. It would be a travesty upon justice if a case must be reversed for such a reason. The case took nearly two weeks to try; it was hotly contested. A careful reading of the entire record and briefs satisfies us respondent may count himself fortunate because he was not convicted of a more serious offense than manslaughter.

Judgment is affirmed.

Ostrander, C. J., and Bird, Hooker, and McAlvay, JJ., concurred.


author: Stone, J.

text:
    CUENAT v. KEENAN.
    Cancellation of Instruments — Equity — Undue Influence — Competency — Decree.
    Although a decree, canceling certain deeds from decedent to defendant on the ground of incompetency and undue influence, is affirmed, and the finding of the trial court that certain notes and securities in defendant’s hands belong to the estate of deceased, is found to be supported by the testimony, defendant is entitled to an allowance for services rendered in supporting and caring for decedent, and for taxes paid upon the property deeded to defendant, and for the expense of burying the deceased, and permission to present his claim . therefor in probate court is included in the decree.

      Appeal from Wayne; Murfin, J.
    Submitted February 9, 1911.
    (Docket No. 144.)
    Decided March 31, 1911.
    Bill by John F. Cuenat, Marie O. Chambers, and John F. Cuenat as administrator of the estate of Clemence Surleau, deceased, against Mary Y. Keenan, personally and as administratrix of the estate of Jacques Surleau, deceased, to set aside certain deeds and for an accounting. From a decree awarding complainants a part of the relief prayed, both parties appeal.
    Modified and affirmed.

      William M. Mertz and Frank N. Renaud, for complainants.

      James H. Pound, for defendants.
   Stone, J.

The controversy in this case is between John F. Cuenat, as administrator of the estate of Clemence Surleau, deceased, and John F. Cuenat and Marie C. Chambers, nephew and niece of said Clemence Surleau, deceased, and her sole heirs at law, as complainants, and Mary Y. Keenan individually, and Mary V. Keenan as executrix of the last will and testament of Jacques Surleau, deceased, as defendant.

The questions involved are whether Clemence Surleau was mentally incompetent to make two deeds of conveyance, one dated October 25, 1900, purporting to convey to defendant Mary V. Keenan 22 acres of land on Snyder road, in Greenfield township, Wayne county, and one deed dated December 12,1904, which purported to convey to defendant Mary Y. Keenan a house and lot at 1045 Twelfth street, Detroit; and whether said Clemence Surleau was under the influence and control of said Mary Y. Keenan, or her said husband, Jacques Surleau, or of both of them, when these conveyances were made. A further question involved is whether upwards of $8,000 in money and notes claimed to have belonged to said Clemence Surleau in her lifetime passed, directly or indirectly, into the possession and control of said defendant Mary V. Keenan without consideration, and by undue influence and advantage.

Complainants filed their bill in equity to set aside these conveyances on the ground of mental incompetency of Clemence Surleau, fraud, undue influence, and want of consideration, and to compel an accounting at the hands of defendant for moneys and personal securities so received. Defendant’s answer consists of a general denial, alleging a purchase of the 22 acres of land for the sum of $3,500 in cash payments claimed to have been made to Clemence Surleau and her said husband. The answer also claims transfer to the said defendant of the home on Twelfth street in consideration of the care and maintenance of said Clemence Surleau and her husband, Jacques Surleau; the title to the Twelfth street- property being in Jacques Surleau and Clemence Surleau as tenants by the entireties. The answer also admits the receipt of certain notes assigned by Jacques Surleau to the defendant, the principal of which aggregated about $1,750, and admitting that a certain judgment obtained in February, 1901, may belong to the estate of Clemence Surleau, deceased.

The record is a large one, there being over 400 pages of ' the testimony, which was taken in open court before the circuit judge who heard the case. The questions presented and discussed by counsel are largely questions of fact. We have read the record with care, and have considered the evidence in the case. It would not be profitable to refer to the same at length. The circuit judge found that Clemence Surleau, deceased, was not, during the last years of her life, mentally competent to transact business. Clemence Surleau died at the home of the defendant on April 10, 1907, having lived with the defendant at the latter’s home from July, 1905, to the time of her death. Jacques Surleau died also at the home of the defendant on April 2, 1906, having lived with the defendant and in her family after July, 1905, down to his death. The 22 acres of land had been purchased by Clemence Surleau in 1864. The house and lot above referred to were purchased by Clemence Surleau and Jacques Surleau on April 4, 1893, and soon after the purchase of the last-mentioned property Jacques Surleau and Clemence Surleau, his wife, moved into the city and lived upon this property on Twelfth street until they went to live with the defendant in July, 1905, except that Clemence Surleau had been for three months confined in the Emergency Hospital in the city of Detroit.

The circuit judge granted the relief prayed for as to the house and lot on Twelfth street, but denied relief as to the 22 acres, holding that the proof introduced in the case was not sufficient to overcome the presumption of the payment of the consideration of $3,500. The evidence tends to show that the defendant purchased the said 22 acres of land with the expectation that she soon could dispose of it at an advanced price. This she has not been able to do. There is no evidence in the record that the said 22-acre parcel was worth more than the consideration named, to wit, $3,500. The complainants are unable to produce any positive or direct evidence that the consideration named in this deed was not actually paid by the defendant. This was a transaction which took place in 1900. There is positive and direct evidence in the record, given by the said defendant and her husband, that this consideration was actually paid in cash.

The evidence shows that Clemence Surleau was a woman of peculiar and weak mind. While she had not been strong mentally, yet she had in the earlier years of her married life with Jacques Surleau, which marriage took place in December, 1875, been strong enough in mind to dominate and control him to' such a degree that she handled and controlled their property. Prior to moving to the city they had lived upon 40 acres of land which belonged to her, save that Jacques seemed to have title with her to 10 acres of the homestead. They had farmed this property, and had sold produce in the city. The evidence tends to show that, after they moved into the city, the said Clemence Surleau grew weaker in mind and body, and her husband, Jacques, began to get control and possession of the personal property and money, the latter of which was obtained for the sale of the 40-acre homestead. We are not satisfied from this record that at the time the sale of the 22-acre parcel was made Clemence Surleau was not of sufficient mental strength to make the conveyance, and to know what she was doing. We agree with the circuit judge, in view of all the evidence in the case, that it does not sufficiently appear that the consideration stated in the deed was not actually paid to warrant setting said deed aside. From the date of that deed the defendant took control of the 22-acre parcel, and has ever since controlled it, leasing it, from time to time, to different parties who were witnesses in the case. The consideration, if paid, seems to have been a reasonable one for the conveyance of this property. We do not feel warranted in disturbing the conclusion reached by the circuit judge with reference to this parcel of land.

Referring to the sale and the transfer of the city house and lot, which occurred over four years later, the circumstances were very different. The mental condition of Clemence Surleau was one of degree, and we gather from the testimony that she failed both physically and mentally from 1900 to December, 1904. The record shows that this city property was, so far as the deeds show, owned by Clemence Surleau and her husband as tenants by the entirety. The property would therefore go to the survivor. As we have already shown, Clemence Surleau survived her husband for about one year. It is not claimed by defendant that any money consideration was paid for this deed. The consideration named in the deed is $1 and other valuable considerations. The deed reserved to the grantors the possession, use and control of said premises for and during their natural lives. The deed also contained this clause:

“As a further consideration for this deed said second party shall maintain and care for first parties whenever called upon so to do by first parties, or either of them, during their natural lives.”

From the circumstances surrounding the execution of this deed, as disclosed by the evidence, we are satisfied with the conclusion reached by the circuit judge that Clemence ¡Surleau at the time of its execution was not mentally competent to execute it, and that she was at that time dominated by, and under the influence of, her husband and the defendant. Sufficient appears in the evidence to warrant us in saying that an effort was then being made by Jacques Surleau and the defendant to get control of the property of the Surleaus.

Treating this deed as void, or at least voidable, and considering that Clemence Surleau survived her husband, and was after his death the surviving owner of this property, and in view of the further circumstances which we are about to state, we are satisfied that this deed should be set aside, and held for naught. The evidence shows that on the 1st of June, 1905, Jacques Surleau, who had succeeded in getting into his name a number of promissory notes which had been made for money loaned from the funds of Clemence Surleau, made a will in which he devised and bequeathed all his property, both real and personal, to the defendant, providing, however, that, if his wife survived him, the defendant should maintain and care for his wife during her lifetime. The defendant was made executrix of this will. Subsequently, and in the month of October, 1905, the several notes hereinafter mentioned were indorsed over and transferred by Jacques Surleau to the defendant.

Complainants claim that the defendant, by conniving with the said Jacques Surleau, became possessed of a large amount of other money belonging to the estate of Clemence. In our judgment the evidence is too vague and indefinite to warrant us in holding that any other moneys than those evidenced by the notes and judgments hereinafter referred to were traced to the defendant. The decree below directed the defendant to assign and deliver to complainant John F. Cuenat, as administrator of the estate of Clemence Surleau, the following promissory notes, the same being notes made by various parties in favor of Jacques Surleau or Clemence Surleau, or both of said persons, and particularly described as follows: One note made by George Pillard in the principal sum of $800, dated April 2, 1904, and bearing interest at the rate of 6 per cent, per annum. Two notes made by William Holmes, one for $500 and one for $200, dated, respectively, February 24, 1905, and April 26, 1905, both bearing interest at 6 per cent, per annum. One note made by Charles Richardot in the principal sum of $300, the date of which does not distinctly appear, bearing interest at the rate of 6 per cent, per annum, and also the judgments obtained by the defendant upon the said William Holmes’ note for $200, and the said Charles Richardot’s note of $300, appearing upon certain dockets of justices of the peace as described in the decree, and also a certain judgment obtained in the circuit court for the county of Wayne on transcript filed for $428.88 in a certain suit wherein Jacques and Clemence Surleau were plaintiffs and Charles Loueys and Elizabeth Loueys were defendants.

It was further found by the circuit judge that the money claimed against one Fred Pillard on a mortgage and note executed by him to Jacques Surleau, bearing date March 5, 1898, was a part of the estate of Clemence Surleau, deceased, and did not belong to Jacques Surleau. The decree also provided that the defendant should pay forthwith to said John F. Cuenat, administrator as ' aforesaid, the sum of $248, the same being the principal sum of the note amounting to $200 made by James Kennedy to Jacques Surleau, together with interest on said note at the rate of 6 per cent, per annum from and after October 18, 1895; and, further, that said defendant pay to said administrator the sum of $124, the same being the principal sum of a note of $100 made by Abel Petrequin to Jacques Surleau, together with interest on said note at the rate of 6 per cent, per annum from and after October 18, 1905; and, further, that said defendant pay forthwith to said complainant administrator all sums of interest and principal collected by her on any of said notes and mortgages above mentioned, and not otherwise provided for in the decree, and that defendant should deliver to said complainant administrator all personal effects, including any and all household goods, furniture, and books, and all other effects and personal property that came into her possession that belonged to said Clemence Surleau in her lifetime. The decree also provided that said defendant should account forthwith to said complainant administrator for rents and profits from said house and lot on Twelfth street at the rate of $16 per month, payable monthly from and after April 1, 1907, with interest on said rental at 5 per cent, per annum, and the court found that at the date of the decree there was due by reason of said rent the sum of $474.97. Both complainants and defendant have appealed from said decree.

As we have already stated, it is undisputed that said Clemence Surleau lived with, and was cared for by, the defendant from about July 7, 1905, down to her death. In fact, the evidence shows that she was well and properly cared for during that period, and was buried by and at the expense of said defendant. The conditiqn of the pleadings and evidence is such that we are not able to determine the value of this service. We think that it is just and equitable that the defendant should be cpmpensated for the care, support, and burial aforesaid of said Clemence Surleau, as well as for any and all taxes paid by the defendant upon the Twelfth street property after the date of the deed to her. For these services and items, we think the defendant should be at liberty to present a claim in the probate court in the matter of the estate of Clemence Surleau, deceased, to be passed upon by the probate court.

To that extent the decree of the circuit court will be modified, and in all other respects it will be affirmed. Complainants will recover against the defendant their costs to be taxed, except that complainants, they having also appealed, shall pay to defendant one-half of the cost and expense of obtaining transcript of record and the printing thereof, and of the register’s fees on perfecting appeal.

Ostrander, C. J., and Bird, Brooke, and Blair, JJ., concurred.


author: Blair, J.

text:
    HILSENDEGEN v. HARTZ CLOTHING CO.
    1. Landlord and Tenant — Lease — Forfeiture — Subletting Premises.
    Permission to sublet portions or departments of a store that the owner leases under the usual proviso against subletting, warrants the lessee in leasing the entire premises except the basement and one room on the ground floor and a space in one corner for the lessee’s office, to a corporation formed by him to take over his business,
    3. Same — Interpretation.
    Interpretations which create a forfeiture are not favored, and it is the policy of the law to limit so far as is reasonable the effect of a covenant in a lease by which a forfeiture is created.
    3. Same.
    Such covenants are construed most strongly against the lessor and most favorably to the lessee.
    Error to Wayne; Murfin, J.
    Submitted February 6, 1911.
    (Docket No. 133.)
    Decided March 31, 1911.
    Summary proceedings by Elizabeth Hilsendegen and the estate of V. Hilsendegen against the Hartz Clothing Company to recover possession of certain portions of a store building. From a judgment of the circuit court commissioner awarding restitution, defendant appealed to the circuit court. A judgment for complainants on a verdict directed by the court is reviewed by defendant on writ of error.
    Reversed.

      Sloman & Sloman (Benedict H. Lee, of counsel), for appellant.

      Corliss, Leete & Joslyn (John B. Corliss, of counsel), for appellees.
   Blair, J.

Elizabeth Hilsendegen, one of the above-named complainants, on May 1, 1905, leased to John C. Hartz the following premises:

“The store Nos. 52 and 54 Monroe avenue and 14 Farrar street, together with the basement thereunder, said premises being located in the Hilsendegen Block; it being the intention of the parties to lease the same premises now occupied by said second party for the term of ten years from and after the 1st day of May, 1905.”

The lease contained the usual printed clause against assigning, transferring, or subletting the premises without written consent, and the following clause in writing:

“Permission is hereby given second party to sublet portions or departments of said store for the same line of business, also the basement for any unobjectionable business, other than for saloon, restaurant, pawnshop, and jewelry business.”

At the time of the making of the lease, John C. Hartz was in possession of the premises under a prior lease from said Elizabeth Hilsendegen. He had occupied No. 52 of said premises for 28 years and No. 54 for 15 years, conducting therein a clothing and furnishing business. Nos. 52 and 54 were practically one store. No. 14 Farrar street was in the same building, in the rear of 52 and 54, and was connected with 52 by two doors, which were always open during the daytime, allowing access from one to the other. It was occupied by a hat hospital and tailor shop. At the time of the trial the former had been there 15 years, and the latter about 10 years, under lease from John C. Hartz.

On December 7, 1909, Hartz organized the Hartz Clothing Company, subscribing for all the shares of stock except two. On the same day he transferred to the corporation all of his stock in trade, fixtures, good will of the business, etc., excepting the leasehold of the premises, and executed to it a lease of the following described premises:

“ The ground floor of the store Nos. 52 and 54 Monroe avenue, located in the Hilsendegen Block, now occupied by John C. Hartz, doing business as the John C. Hartz Company, excepting a space 15 by 20 feet in area, situated in the southwest corner of the rear of said floor, and reserving the right of entrance thereto and exit therefrom, by and through the entrance to said floor, for the term of five years four months and twenty-four days, from and after the 7th day of December, 1909, on the terms and conditions hereinafter mentioned, to he occupied for a hat, gents’ furnishing goods, and clothing store.”

On January 14, 1910, complainants instituted summary proceedings before a circuit court commissioner to recover possession of the premises. Complainants recovered judgment before the commissioner, which was affirmed on appeal by the circuit court, and defendant prosecutes its writ of error to reverse the judgment.

Plaintiffs contend:

“ (1) That the lease was to John C. Hartz personally for the maintenance of a business of a certain character, with the privilege of extending the same by the addition of other lines of a kindred nature.
“(2) That the transfer to defendant corporation of the entire business, including good will, etc., was a violation of the conditions of the lease and worked a forfeiture thereof.
“ (3) That the reservation of a little space 15x20 feet in area in one corner of the store by Hartz for a real estate office or some other business foreign to the character of his original enterprise was a subterfuge, inserted for the purpose of avoiding the terms and conditions of the lease, and the effect of the transfer of the entire possession of his business to the defendant'corporation.”

We are unable to agree with complainants’ construction of the lease. Interpretations which create a forfeiture are not favored, and it is the policy of the law to limit, so far as is reasonable, the effect of a covenant in a lease by which a forfeiture is created. Miller v. Havens, 51 Mich. 485 (16 N. W. 865); Crouse v. Michell, 130 Mich. 355 (90 N. W. 32, 97 Am. St. Rep. 479). Such covenants should be construed most strongly against the lessor, and most favorably to the lessee. 24 Cyc. p. 967.

Construing this lease in accordance with the foregoing general canons of interpretation, what “portions or departments of said store ” theretofore described as ‘ ‘ the store Nos. 52 and 54 Monroe avenue and 14 Farrar street” was the lessee authorized to sublet ? The lessor might have determined this question by a specific limitation in the lease. She did not see fit to determine whether the sublease might cover large or small portions of the store, and therefore the clause would permit a sublease of any portion short of the whole. The sublease did not cover 14 Farrar street, the basement under No. 52 Monroe avenue, or the space of 15x20 feet on the ground floor of 52 and 54 Monroe avenue. It therefore covered portions of the store, as permitted by the lease.

Taking this view of the case, it becomes unnecessary to consider the other questions raised. We are of the opinion that the defendant was entitled to an instructed verdict in its favor upon the undisputed facts.

The judgment is reversed, and a new trial granted.

Ostrander, C. J., and Bird, Brooke, and Stone, JJ., concurred.


author: Brooke, J.

text:
      In re RAYMOR’S ESTATE. RAYMOR v. MICHIGAN TRUST CO.
    1. Judgment — Confession Under Power of Attorney — Agency —Bills and Notes.
    Authority to confess judgment under a power of attorney contained in a promissory note must be strictly followed.
    2. Same — Conflict of Laws —Private International Law — Foreign Judgments.
    A judgment of the oourt of common pleas of Pennsylvania, entered without service of process against the maker of a promissory note that contained authority to any attorney to confess judgment in any court of any of the States, is invalid for failure to show that an attorney confessed the same, although the laws of Pennsylvania, which were followed in entering it, require the prothonotary to enter judgment upon the authority of such instrument.
    Error to Kent; Perkins, J.
    Submitted February 10, 1911.
    (Docket No. 151.)
    Decided March 31, 1911.
    Emma K. Raymor presented a claim against the estate of Edward A. Raymor, deceased, which was disallowed by the commissioners on claims. Claimant appealed to the circuit court, where the cause was tried without a jury. Judgment for claimant. The Michigan Trust Company, administrator of said estate, brings error.
    Reversed and judgment entered for defendant.

      Elvin Swarthout and R. A. Hawley, for appellant.

      Drew & Campan and Sherdian F. Master, for appellee.
    Emma K. Raymor, the claimant, filed a claim against the estate of Edward A. Raymor, deceased, in the probate court for Kent county. The commissioners on claims disallowed the claim. The claimant appealed to the circuit court where the claim was allowed. The administrator now brings the case to this court for review upon writ of error.
    Claimant bases her right upon a judgment obtained in a Pennsylvania court, upon an instrument as follows:
    “Battle Creek, Mich., Aug. 1905.
    “On demand, I promise to pay to my son Edward Spain Raymor, or order, ten thousand dollars, which said sum is due my son for the maintenance of his mother, Mary H. S. Raymor (my wife), without defalcation, value received. And further, I do hereby authorize and empower any attorney of any court of record of any State of the United States to appear for and enter judgment against me for the above sum, with or without declaration, with costs of suit, release of errors, with stay of execution until day of payment aforesaid, and with (10%) ten per cent, added for collection fees; and I also waive the right of inquisition on any real estate that may be levied upon to collect this note, and I do hereby voluntarily condemn the same and authorize the prothonotary or clerk of the court to enter upon the fi. fa. my said voluntary condemnation; and I further agree that said estate may be sold on a fi. fa., and I hereby waive and release all relief from any and all appraisement, stay or exemption laws of any State now in force or hereafter to be passed.
    “This note is a renewal of a note for a like amount (110,000) given by me at Ionia, Mich., June 4th (1896), eighteen hundred and ninety-six.
    “E. A. Raymor. [L. S.]
    “York, Pennsylvania, March 1, 1906.
    “ For value received I do hereby indorse the within note to Emma K. Raymor.
    “ Edward Spain Raymor,
    “Emma K. Raymor.
    “For value received, I, Edward Spain Raymor, do hereby sell, assign, transfer and set over unto Emma K. Raymor all my right, title, interest and demand in and to the within note and all moneys due and to grow due thereon. Witness my hand and seal this 24th day of May, A. D. 1906.
    “Edward Spain Raymor. [Seal.]
    “ Witnesses:
    “ Jacob Weaver,
    “Donald H. Yost.”

      The record of the judgment, a certified copy of which was offered in evidence, was as follows:
    “Among the records and proceedings enrolled in the court of common pleas in and for the county of York, the Commonwealth of Pennsylvania, to No. 411, April term, 1906, is contained the following :
    Copy of Appearance Docket Entry.
    Weaver
    Atty. §3 00
    Entry 135
    Assmt. 25
    Prothy. 45
    §4 95
    Edward Spain Raymor,
    vs.
    E. A. Raymor,
    $1.25 pd. by Plff.
    Judgment in favor of the plaintiff for the sum of Ten Thousand dollars (§10,000) debt on note sealed and dated August 7, 1905, with warrant of attorney payable on demand with costs of suit, release of errors with stay of execution until day of payment, with ten per cent, added for collection fees, with inquisition, condemnation and exemption waived, with agreement to sell real estate on a writ of fi. fa.

    Entered May 24, 1906. George W. Maish
    Prothy.
    Assigned to
    Emma K. Raymor.
    Attach. Ex. 46 Aug. Term, 1906.
    Alias Attach. Ex. 49 Aug. Term, 1906.”
    On November 9, 1908, this record was, by order of the court upon the petition of the prothonotary, without notice to the administrator of Edward A. Raymor, amended so as to make the marginal-note “Weaver” read “Jacob E. Weaver, Attorney for Emma K. Raymor, Plaintiff.”
    The judgment was rendered without service of process upon Edward A. Raymor, apparently under the authority of section 28, p. 278, vol. '4, of the Laws of Pennsylvania, which provides:
    “It shall be the duty of the prothonotary of any court of record, within this Commonwealth, on the application of any person being the original holder (or assignee of such holder) of a note, bond, or other instrument of writing, in which judgment is confessed, or containing a warrant for an attorney at law or other person, to confess judgment, to enter judgment against the person or persons who executed the same) for the amount which, from the face of the instrument, may appear to be due, without the agency of an attorney or declaration filed, with such stay of execution as may be therein mentioned, for the fee of $1 to be paid by the defendant; particularly entering on his docket the date and tenor of the instrument of writing on which the judgment may be founded; which shall have the same force and effect as if a declaration had been filed and judgment confessed by an attorney, or judgment obtained in open court, and in term time; and the defendant shall not be compelled to pay any costs or fee to the plaintiff’s attorney when judgment is entered on any instrument of writing as aforesaid.”
    There is no evidence in the record tending to show that Edward A. Raymor, prior to August 7, 1905, had ever been a resident or citizen of the State of Pennsylvania. It appears, on the contrary, that he had, for a period of about 80 years prior to February 1, 1905, been a resident in and a citizen of the State of Tennessee; that about that date he came to Michigan, living for about five months at the village of Saranac, from whence he went to the James White Home, a sanitarium located at Battle Creek, Mich., where he had resided for about a month before he executed the note and warrant of attorney sued upon in Pennsylvania. After the execution of said note, and on August 10, 1905, with his son, Edward Spain Raymor, he went to York, Pa., and remained there until May, 1906, when he returned to Battle Creek, Mich. Later, he removed to the Soldiers’ Home at Grand Rapids, Mich., where he died, December 29, 1906. The judgment was entered' in Pennsylvania, May 24, 1906, after Edward A. Raymor had returned to Michigan.
   Brooke, J.

{after stating the facts). It is urged by the appellant that, inasmuch as the exemplification of the Pennsylvania record shows that the judgment was obtained without service of process upon Edward A Raymor and without an appearance for him by any attorney, in accordance with the provisions of the warrant, the judgment itself is invalid, and not binding upon the deceased or his estate. That the authority to confess a judgment under warrant of attorney, such as is here considered, must be strictly followed, seems to be settled by abundant authority. See 30 Am. & Eng. Enc. Law (2d Ed.), p. 113, where the rule is laid down as follows:

“ It is well settled that the authority to confess a judgment under a warrant of attorney must be strictly pursued, and the instrument delegating such a power will not be interpreted as granting authority to do any acts beyond those authorized in terms, or those which are necessary to carry into effect the power expressly given. A warrant of attorney to confess judgment cannot be enlarged by writing into it the laws of the nature of which the donor is not charged with knowledge.”

See, also, Rasmussen v. Hagler, 15 N. D. 542 (108 N. W. 541); First Nat. Bank v. White, 220 Mo. 717 (120 S. W. 36, 132 Am. St. Rep. 612); Grubbs v. Leon & H. Blum, 62 Tex. 426; Manufacturers’ & Mechanics’ Bank v. St. John, 5 Hill (N. Y.), 497; Cushman v. Welsh, 19 Ohio St. 536; Cowie v. Allaway, 8 Durnf. & East, 257.

While the Pennsylvania statute quoted above makes it the duty of the prothonotary to 9nter judgment against the person who executed the warrant, upon application to him of any person who is the original holder (or assignee of such holder) thereof, no such authority is contained in the warrant itself. The instrument says:

“And further, I do hereby authorize and empower any attorney of any court of record of any State of the United States, to appear for and enter judgment against me.”

It is not contended, of course, that either the original or amended record shows that Weaver appeared as attorney for the maker of the note and warrant. The entry of the judgment by the prothonotary was without authority so far as the instrument itself is concerned, and, though authorized by the Pennsylvania law, it was not binding upon a citizen of another State.

An instructive case upon this point will be found in Grover & Baker Sewing Machine Co. v. Radcliffe, 66 Md. 511 (8 Atl. 265), which was appealed to the Supreme Court of the United States and is reported in 137 U. S. 287 (11 Sup. Ct. 92). In that case one John Benge, a resident of Maryland, had executed an obligation to the Sewing Machine Company which contained a warrant of attorney, conferring practically the same powers as those conferred in the warrant here under consideration. Judgment was in that case, as in this, entered by the prothonotary in the State of Pennsylvania. Suit was after-wards brought upon that judgment in Maryland, where it was held that the judgment was void.

The case having been removed to the United States Supreme Court, the judgment of the Maryland court was affirmed, and it was said:

“ John Benge was a citizen of Maryland when he executed this obligation. The subject-matter of the suit against him in Pennsylvania was merely the determination of his personal liability, and it was necessary to the validity of the judgment, at least elsewhere, that it should appear from the record that he had been brought within the jurisdiction of the Pennsylvania court by service of process, or his voluntary appearance, or that he had in some manner authorized the proceeding. By the bond in question, he authorized 'any attorney of any court of record in the State of New York, or any other State, to confess judgment against him (us) for the said sum, with release of errors, etc.' But the record did not show, nor is it contended, that he was served with process, or voluntarily appeared, or that judgment was confessed by an attorney of any court of record of Pennsylvania. Upon its face, then, the judgment was invalid, and to be treated as such when offered in evidence in the Maryland court.
“It is said, however, that the judgment was entered against Benge by a prothonotary, and that the prothonotary had power to do this under the statute of Pennsylvania of February 24, 1806. Laws of Penn. 1805-1806, p. 347. This statute was proved as a fact upon the trial in Maryland, and may be assumed to have authorized the action taken, though under Connay v. Halstead, 73 Pa. St. 354, that may, perhaps, be doubtful. And it is argued that the statute, being in force at the time this instrument was executed, should be read into it, and considered as forming a part of it; and therefore that John Benge had consented that judgment might he thus entered up against him without service of process, or appearance in person, or by attorney.
“But we do not think that a citizen of another State than Pennsylvania can be thus presumptively held to knowledge and acceptance of particular statutes of the latter State. What Benge authorized was a confession of judgment by any attorney of any court of record in the State of New York, or any other State, and he had a right to .insist upon the letter of the authority conferred. By its terms he did not consent to be bound by the local laws of every State in the Union relating to the rendition of judgment against their own citizens without service or appearance, but, on the contrary, made such appearance a condition of judgment. And, even if judgment could have been entered against him, not being served and not appearing, in each of the States of the Union, in accordance with the laws therein existing upon the subject, he could not be held liable upon such judgment in any other State than that in which it was so rendered, contrary to the laws and policy of such State.
“ The courts of Maryland were not bound to hold this judgment as obligatory, either on the ground of comity or of duty, thereby permitting the law of another State to override their own.”

See, also, Teel v. Yost, 128 N. Y. 387 (28 N. E. 353, 13 L. R. A. 796); Cuykendall v. Doe, 129 Iowa, 453 (105 N. W. 698, 3 L. R. A. [N. S.] 449, 113 Am. St. Rep. 472); Sim v. Frank, 25 Ill. 125.

In Sim v. Frank, supra, the court, in discussing the Pennsylvania statute, said:

“ Such a statute can only be binding upon citizens of that State, while Sim was a citizen of Illinois at the time the judgment was rendered.”

The judgment is reversed, and as there is no disputed question of fact involved the case will be remanded to the court below, where judgment will be entered in favor of the defendant.

Ostrander, C. J., and Bird, Blair, and Stone, JJ., concurred.


text:
    BORKOWSKI v. AMERICAN RADIATOR CO.
    1. Master and Servant — Contributory Negligence — Explosion op Molten Metal.
    Plaintiff’s alleged contributory negligence was a question for the jury where he placed a ladle for carrying molten metal, containing a small quantity of water, under the flowing metal, which exploded and blinded one of his eyes, and where he testified that he was ignorant of such danger.
    2. Same — Duty to Warn and Instruct.
    The duty is imposed on the master to warn the servant of latent dangers which' he, by reason of ignorance or inexperience, is incapable of understanding or appreciating, or which he would not be likely to know, such as the danger of an explosion resulting from the contact of molten metal with water.

    3. Same — Instructions—Charges—Assumption oe Risk.
    While language used in the court’s charge, to the effect that it was not necessary to warn plaintiff of a danger which he must appreciate, was inaccurate, it was not misleading when considered with other portions of the charge, that if plaintiff’s prior experience should have taught him the danger to be apprehended, no warning was required.
    Error to Wayne; Hosmer, J.
    Submitted February 10, 1911.
    (Docket No. 156.)
    Decided March 31, 1911.
    Case by Michael Borkowski against the American Radiator Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Keena, Lightner & Oxtoby, for appellant.

      Dohany & Dohany, for appellee.

      The plaintiff, a young man 21 years of age, started to work for defendant September 27, 1909, as a molder’s helper. About two years earlier he had worked for defendant in the same shop and in the same capacity for a period of about 2-| months. It was his duty as a molder’s helper to sift sand and shovel it into a box; also to carry molten iron in ladles provided for that purpose from the cupola to the molds. These ladles were of two sizes, the larger called “bull ladles,” requiring two men to carry them, and the smaller, called “hand ladles,” capable of being handled by one man. At the end of the day the molders would leave these ladles upon the floor of the foundry. It was the duty of one August Reinke to collect the ladles and wheel them out under a shed adjoining the foundry where, on the following morning, he would reline them with a mixture of fire clay and molding sand. After relining them they were placed in an oven until about 1 o’clock, when they were again ready for use. Plaintiff had been accustomed to use these ladles, particularly the bull ladles, while employed as a molder’s helper.
    On the morning of the second day of his last employment, September 28, 1909, plaintiff was put to work with the cupola gang. At the close of each day’s work, a surplus of molten metal would remain in the large mixing ladle. It was the duty of the cupola gang to run this off into hand ladles and pour it into pig beds. About 5 o’clock the cupola gang were ordered to perform this duty. This was the first occasion upon which plaintiff had done this work, according to his own testimony.
    Plaintiff described the accident as follows:
    “After the molders got through, the foreman of the cupola told us to go over and get the smaller ladles, and carry the melted iron out of- the big bull. We got the small ladles under the shanty.

      “Q. And where did you go to get the small ladles ?
    “A. Under the shanty where all the rest of the men got it, and I got mine.

      ”Q. Now, did you go out of the west door of the small building to get into that shanty, or shed ?

      “A. I did.

      “Q. State whether or not this establishment in which the coke is loaded on the small truck — state whether that is the shed.

      “A. It is.
    “Q. And will you state whether or not the south side of that shed is open from the roof down to the ground.

      “A. It is.

      “Q. And where did you pick up your ladle ?

      “A. I got mine about two feet south of the pile that the other fellows got theirs; there was a whole pile of them lying there, and they were all taking theirs, and I took mine about two feet south of the pile where they got theirs.
    “Q. And were those ladles piled on top of each other, or were they just grouped together, standing on the ground ?

      “A. They were thrown on a pile.

      “Q. Now, where did you get the handle to your ladle, the small ladle ?

      “A. There was a man brought it to me.

      “Q. One of the helpers ?

      “A. Yes, sir.

      “Q. State whether or not that was an iron handle.

      “A. It was.

      “Q. And that fitted around the ladle, around the top of it ?

      “A. It did.

      “Q. Had you ever used one of these small ladles before?

      “A. No.

      “Q. How close to the open side of the shed was it that you picked up this ladle of yours ?

      “A. About three feet and a half.

      "Q. You mean it was three and a half feet in under the edge of the shed, or three feet and a half out of the shed, which?

      “A. Outside — three feet out of the shed.

      “Q. Where was the other pile of ladles ?
    “it. They laid the same place.
    “ Q. That would make the pile of ladles — that is, where the ladles were grouped the thickest about under the edge of the shed, would it not ?

      “A. Yes; right on the edge.

      “ Q. Now will you state what you did with that ladle after you picked it up ?
    “A. I picked it up and went after the iron.

      “Q. Will you state to the jury whether or not you helpers had to hurry, in order to get this metal out of the bull before it cooled ?
    “A. We had to, because it would get cold.

      "Q. Who told you to?
    “A. The foreman.

      “Q. And did you start back with the other helpers as soon as you got your ladle?
    “A. I did.

      “Q. Do you know whether or not it rained on the afternoon of September 28th, the day-you got hurt ?
    “A. It did.

      “Q. Do you know about what time in the afternoon it rained ?
    “A. Between 8 and 4 o’clock.

      “Q. Do you know whether or not there was in your ladle when you picked it up — water ?
    “A. There was a little water, I think.

      “Q. About how much.
    “A. About a spoonful.
    “ Q. Did you hurry right back with the other men to the bull after you got your ladle ?
    “A. I did.
    “Q. Did you think it was dangerous for that water to be in the ladle ?
    "A. I did not; no one told me.

      “Q.. Were you the first one of the helpers to put your ladle under the bull to get it filled, or did some of the others fill their ladles first ?
    “A. There were some of the others who got it first.

      "Q. What happened when this molten metal ran out of the bull into your ladle ?
    “A. When he turned it on, why the iron flashed right up.
    “ Q. When he turned what on ?
    “A. The man that turns on the metal.
    “Q. Well, what do you mean, the man in charge of the wheel that turned the bull over ?
    “A. Yes, sir.

      “Q, Well, when he turned the wheel, state whether or not some of the molten metal came out of the bull.
    “A. It dropped into my ladle.

      “ Q. As soon as this molten metal from the bull struck into your ladle what happened ?
    “JL. It came right up into the air.

      "Q. What came up?

      ‘‘A. The iron.

      “Q. Did it make a noise ?

      “A. It made a kind of crack.

      “Q. An explosion ?

      “A. Yes, sir.

      “Q. Now did the metal strike you ?

      “A. It struck me right in the eye.

      “Q. Did it strike you anywhere else ?

      “A. Some on my back.

      “Q. Anywhere else,?

      “A. And on my shoulder.

      "Q. And state whether or not it was hard when it struck you.
    “A. No; it was melted metal.

      “Q. And state whether or not the pieces were hard that struck you.

      “A. No; they were not.

      “Q. Well, do you know what sized piece struck you in the eye ?

      “A. Oh, it must have been'about as big as a pea.

      “Q. What did you do right afterwards ?

      “A. I caught hold of myself by the eye.

      “Q. State whether or not any one connected with the company had ever told you to be careful about putting molten metal into a ladle that was wet, or had water in it ?

      “A. I did not.

      “Q. Did any one else ever tell you that it was dangerous to put molten metal in that ladle — in a ladle with water or dampness in it ?

      “A. No one ever told me.”
    Upon cross-examination plaintiff testified that the ladle he secured was leaning against one of the posts which supported the roof of the shed. This shed was an open one.
    The only negligence relied upon at the trial was that defendant had failed to warn plaintiff of the danger of allowing the molten iron to come into contact with water.
    Plaintiff secured a judgment for $5,000, and defendant has removed the case to this court for review.

      As to the duty to warn or instruct servant, see note in 44 L. R. A. 33.
      As to the liability of master for injury to servant by explosion of molten metal with which he is at work, see note in 27 L. R. A. (N. S.) 953.

   Brooke, J.

(after stating the facts). Defendant’s first contention is that there is no liability, for the reason that plaintiff’s injury resulted from a transitory act of negligence on the part of a fellow-servant; that act being the placing of the ladle which plaintiff secured in an improper place, where it was liable to collect and hold rain water. In our opinion this is not a case in which this doctrine can be invoked. The record shows that Reinke, in the performance of his duty, customarily collected the ladles and wheeled them out under this uninclosed shed, where they were piled or scattered somewhat promiscuously.

Reinke testified:

“As I bring these ladles out, I pile them up in different places around underneath that shed. The shed is wide open on the outside.”

Tie further testified that he never put any ladles in the place from which plaintiff took the one which occasioned his injury. It would seem that an open shed would afford little protection to the ladles in case of rain. The record does not show that it was Reinke’s duty to keep them dry after he had collected them and before he had relined them for use next day; nor does it show that he handled them on the day in question, in any other than the usual manner.

But the whole matter of alleged transitory negligence appears to us to be unimportant, because plaintiff does not predicate his right to recover upon the fact that defendant negligently permitted the ladle which caused his injury to be so placed as to collect water, but says that defendant was negligent only in not warning him of the fact that, if he permitted molten metal to come into contact with water, an explosion would follow. His testimony is to the effect that he was ignorant of this danger; that no such explosion had occurred within his observation during his employment as a molder’s helper. It seems to us apparent that the ladles used by the molder’s helpers would be very unlikely to contain moisture, for the record shows that after relining they were baked in an oven and kept dry until required for use. The extent of plaintiff’s experience and his opportunity for observation of like phenomena were fully placed before the jury. We do not think it can be said as a matter of law that his experience was such as to make him guilty of contributory negligence in placing the ladle containing a small amount of water under the flowing molten metal. Defendant insisted that it was such, and that question was fairly submitted to the jury.

It was further urged by the defendant that the accident occurred through the carelessness of plaintiff in so placing the ladle under the stream of metal as to permit it to fall, not into the ladle, but upon the cold, iron shank with which the ladle was held. This theory likewise was presented to the jury, and they were instructed that, if plaintiff received his injury because of this alleged act of negligence, he could not recover. We have frequently held that it is the master’s duty to warn the servant of latent dangers, which he (the servant) through ignorance or inexperience was not capable of understanding or appreciating, or which he would not be likely to know; and the liability of an explosion following the mixing of molten metal and water has been held to be such a latent danger.. Smith v. Car Works, 60 Mich. 501 (27 N. W. 662, 1 Am. St. Rep. 542), and cases cited; Ribich v. Smelting Co., 123 Mich. 401 (82 N. W. 279, 48 L. R. A. 649, 81 Am. St. Rep. 215); Adams v. Refrigerator Co., 160 Mich. 590 (125 N. W. 724, 27 L. R. A. [N. S.] 953). See, also, Tissue v. Railroad Co., 112 Pa. St. 91 (3 Atl. 667, 56 Am. Rep. 310); McGowan v. Smelting Co. (C. C.), 9 Fed. 861; Holland v. Railroad Co., 91 Ala. 444 (8 South. 524, 12 L. R. A. 232).

Error is assigned upon that portion of the charge in which the court used the following language:

“Now, whether there was the duty upon the master in the particular case to give any such warning I think is wholly a question for you, under the existing circumstances, because, gentlemen of the jury, it is not essential to warn a man of danger which in the nature of things he must appreciate.”

The use of the words ‘ must appreciate ’ in the foregoing excerpt is objected to. Standing alone, this portion of the charge might be misleading, but when read with the context it is apparent that the jury could not have been misled as to the standard of duty imposed upon the master.

The court later said:

“ It is for you to say, gentlemen of the jury, whether that experience that he had, prior to that time, would have rendered it unnecessary that a person should warn him of the danger to be apprehended from bringing molten iron into contact with that amount of water. Of course, gentlemen of the jury, all the evidence in this case shows the extreme danger which results when a certain amount . of hot iron is poured upon water, or hot iron is poured upon water; the proofs show that there is an instantaneous conversion of water into steam, and an explosion does follow, unquestionably; that all the evidence and the testimony shows; and it is for you to say whether his prior experience, concerning which you have heard the testimony of the plaintiff, and the testimony as adduced by the defendant, should have taught him of the danger to be apprehended by the water which he testifies was in the ladle. If, gentlemen of the jury, that experience should have warned him, then, of course, no warning which could be given him by the company would have been of any benefit.”

A careful reading of the entire charge convinces us that the case was properly and fairly submitted to the jury, both upon the question of plaintiff’s contributory negligence (based upon his experience) and upon the defendant’s theory of the manner in which plaintiff received his injury, Under the facts disclosed by this record, both issues were properly before the jury.

The judgment is affirmed.

Ostrander, C. J., and Bird, Blair, and Stone, JJ., concurred.