author: Steere, J.'

text:
    PENNSYLVANIA FIRE INSURANCE CO. v. ANN ARBOR RAILROAD CO.
    1. Appeal and Error — Insurance—Fire—Railroads.
    ' In. determining whether the evidence of plaintiff, who brought an action for the negligence of defendant railroad company in setting fire to his house, made out a case for the jury, the testimony must be considered in the light most favorable to him, irrespective of any evidence in defendant's behalf tending to contradict it.
    2. Insurance — Fires—Railroads—Negligence.
    Testimony in behalf of plaintiff, who charged that defendant negligently set fire to his house, was sufficient to require the court to submit the case to the jury where it tended to show that the defendant railroad company occupied land 46 feet away from plaintiff’s house; that the season had been dry; that immediately preceding the commencement of the fire a switch engine had been passing along the track near the house and that the wind blew considerable quantities of smoke from it to the dwelling; that there was no fire in the house and that the roof was ignited upon the side toward'the railroad track from which direction the wind was blowing; other evidence tending to connect the engine with the fire and the testimony having a tendency to show that the spark arrester in the smoke stack had become defective and had been patched; although defendant’s inspector gave evidence that the spark netting was in good order before the fire.
    3. Same — Evidence—Setting Fires.
    The statute relating to the liability of railroad companies’ where a fire is set by its locomotives (2 Comp. Laws, § 6295; 3 How. Stat. [2d Ed.] § 6649), changes the burden of proof and shifts the same upon the defendant so as to require it to show that the engine was properly equipped and netted.
    4. Evidence — Railroads—Opinion Evidence — Expert Testimony.
    Upon the trial of an action for negligently setting fire to a house the trial court was not in error in admitting in evidence the testimony of an engineer of ahont 13 years' experience, to the effect that an engine properly equipped would not throw sparks of sufficient vitality to set a fire at the distance at which plaintiff’s house stood from the track, though the witness qualified his statement on cross-examination by an admission that dry weather would add to the vitality of the spark and that in times of drouth it would be possible for a' spark of sufficient vitality to set a fire to escape through the netting.
    5. Trial — Evidence—Exclusion oe Testimony.
    The exclusion of reports of an inspection made by defendant’s inspector immediately before and after the date of the fire tending to show that the locomotive which it was claimed had caused it was in proper condition, which were excluded by the court with the statement that counsel might present the point later, where counsel did not again bring the matter up for final ruling, did not constitute reversible error though the exhibits might properly have been admitted.
    Error to Gratiot; Searle, J.
    Submitted November 6, 1914.
    (Docket No. 139.)
    Decided March 17, 1915.
    Case by the Pennsylvania Fire Insurance Company against the Ann Arbor Railroad Company for negligent operation of its locomotives and the setting of a fire. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Gustavus Oklinger (Alexander L. Smith, of counsel), for appellant.

      Arthur P. Hicks and Charles H. Goggin, for appellee.
   Steere, J.'

On September 1, 1908, plaintiff insured for a term of three years the so-called Amanda M. Hicks frame residence in Alma, Mich. On February 2, 1910, a second policy was issued by plaintiff providing for $500 additional indemnity on the house and $900 on its contents. Near midday of July 11, 1911, the house was damaged by fire. Before an adjustment was reached, Amanda Hicks, died, and plaintiff subsequently settled the loss with her administrator by payment of $1,092.25, becoming subrogated under the terms of the insurance contract to whatever rights the insured might have, in respect to the loss, against any third party. This action was begun, on July 16, 1913, by declaration against defendant charging, amongst other things, negligence in the matter of the operation and repair of its engines whereby fire was communicated to said house, properly alleging liability for the resulting loss under section 6295, 2 Comp. Laws (3 How. Stat. [2d Ed.] § 6649), relative to damages by fire originating in operating a railroad. Defendant pleaded the general issue. On trial of the case before a jury in the circuit court for Gratiot county, plaintiff recovered the amount it paid to. settle said loss, with interest.

While various other questions are raised by defendant’s assignments of error, that chiefly urged and argued, and manifestly calling for most serious consideration, is the denial by the court of defendant’s motion for a directed verdict in its favor on the ground that plaintiff’s testimony furnished no probative evidence that the fire in question originated from defendant’s engine, which was charged with having caused the fire, or that said engine was not in good order and properly managed; defendant’s positive evidence showing that it was.

The portion of section 6295, 2 Comp. Laws, upon which right of recovery is predicated, provides:

“Any railroad company building, owning, or operating any railroad in this State, shall be liable for all loss or 'damage to property by fire originating from such railroad, either from engines passing over such roads, fires set by company employees. * * * Provided, that such railroad company shall not be held so liable if it prove to the satisfaction of the court or jury, that such fire originated from fire by engines whose machinery, smokestack or fire boxes were in good order and properly managed. * * *”

The Hicks residence, a two-story, frame dwelling house with a shingled roof over 15 years old, its eaves 21 feet from the ground, stands upon a lot adjoining on the east a railroad right of way, running northeasterly and southwesterly, jointly occupied by parallel tracks of the Pere Marquette and defendant Ann Arbor Railroads. The lot is bounded on its east by Wright avenue running north and south, and at the south by Superior street, towards which the house fronts, and which runs east and west, crossing the right of way. The house is 48 feet east of the right of way, and from a point immediately under the north valley of its west gable, near which plaintiff showed fire was first discovered, to the center of defendant’s track, which runs 13 feet nearer the house than that of the Pere Marquette, is 51% feet. The nearest building to this house is the so-;called Cheeseman residence, in the same block, some 50 or 60 feet to the north. All other buildings in that vicinity are some distance father away, across streets or the railroad tracks. Except for the railroads and their buildings, the section is purely residential. The lever of a switch of the Ann Arbor Railroad’s track is located a short distance south of the house, from which point the switch extends its entire length northwesterly to its freight depot, which is about one block north of the Hicks house and 60 rods northwest of the passenger depot. The Pere Marquette has no switch here.

In considering defendant’s contention that plaintiff’s circumstantial evidence bearing upon the origin of the fire goes no further than to show the fire might have been ignited by sparks from defendant’s engine, and does not amount to probative evidence that it did so originate, we find testimony in the record which, if true — and it must be so considered in passing upon such contention — warranted the court in submitting that issue to the jury. In outline it is as follows: The house was occupied as a residence by members of the Hicks family. There were no electric light or telephone wires in it. The only fire inside the house that day was kindled in the kitchen stove in the morning and was all out at 8 o’clock. Two west rooms in the second floor were occupied by a chiropractor named Keene, who received and treated his patients there. He was the only person in the house at the time the alarm of fire was given. He had, while working with a patient about 40 minutes previous, been so annoyed with smoke coming from an engine switching opposite the house that he was obliged to close the window. He last noticed the engine, shortly before the fire, where it stood on the switch track near the switch lever for a short time, sufficient to shift the switch, when it went north. The switching was done from the main line of the Ann Arbor road onto its siding. Shortly after it left he was notified the house was on fire outside and went down upon the ground where he could see it. It was on the west side of the roof, on the surface, right in the gable towards the tracks, on the upper part of the eaves, six or eight inches in circumference. He immediately went upstairs and into the garret but could discover no fire on the inside. The fire was discovered by a boy who pointed it out to a man named Shaw, defendant’s flagman at that crossing, who notified Keene and gave the alarm. Though on the morning of the fire a slight rain fell showing a precipitation of .03 of an inch, it had ceased by 7 o’clock. From the 1st to the 10th of July the weather was exceptionally dry and warm, the mean temperature being above 93 degrees. On July 11th, the date of the fire, it was 89 degrees with a wind blowing at a rate of 8 to 10 miles an hour from the southwest, approximately at right angles to the railroad, and from it towards the Hicks house. The engine engaged in switching, identified by certain witnesses as No. 100, was engaged in switching west of and past the Hicks house for from about 40 minutes before the fire was discovered until it left, from 3 to 5 minutes before the alarm.

Numerous witnesses testified, and there was abundance of conflicting evidence; but, without further detail, it can be said this record clearly contains evidence tending to show: That at the time this fire caught the wind was blowing from the railroad track, and from the locality where this engine was working, towards the house. That there had been a season of excessively dry, hot weather, continuing that day except for a slight shower in the early morning, followed by wind and some sunshine for several hours before the fire, which was first discovered after 11 o’clock. Defendant’s flagman, Shaw, testified:

_ “It was a nice day, and the sun was shining at the time of the fire. It had been shining before 11 o’clock.”

That there were no other buildings near to the Hicks house, which was in a residential neighborhood with no factories in the vicinity. There were no fires inside the house, and but one person within at the time, Dr. Keene, who was disturbed in his work by black smoke coming from the switching engine to such an extent that he found it necessary to close his windows. That all the witnesses but Shaw, who located it in the cornice, testified that the fire was first seen on the outside of the upper part of the house on a part of the roof towards the railroad track and but a few inches from the gutter. That parties, going to the attic could find no fire or smoke on the inside. That this locomotive was switching back and forth past the house on the windward side laboring and emitting volumes of smoke but a short time before the fire was discovered — showing proximity of time and place.

Regardless of how persuasive defendant’s evidence may be to the contrary, with such testimony in the case there was sufficient to go to the jury upon the origin and source of the fire under the rule laid down in Jones v. Railroad Co., 59 Mich. 437 (26 N. W. 662); Hagan v. Railroad Co., 86 Mich. 615 (49 N. W. 509); Clark v. Railway Co., 149 Mich. 400 (112 N. W. 1121, 12 Am. & Eng. Ann. Cas. 559); Potter v. Railway Co., 157 Mich. 216 (121 N. W. 808, 22 L. R. A. [N. S.] 1039); Union Ice Co. v. Railway Co., 178 Mich. 346 (144 N. W. 1033).

There being evidence to support the finding of the jury that the fire was started by sparks from defendant’s locomotive, and the jury having so found, to escape liability it became incumbent upon defendant to assume the burden and show that its engine was in good order, properly equipped and managed.

Upon that phase of the case defendant contends a verdict should have been directed in its favor for the reason that all competent evidence bearing upon that subject was uncontroverted and conclusively established full compliance by defendant with the exculpatory provisions of the statute under which plaintiff seeks to recover.

The trial court did not leave to the jury the question of negligent or improper operation of the engine, saying among other things:

“As applied to this case, there is no evidence of improper management. Consequently, I use the term properly equipped, and, as applied to this engine, you will take up that question. * * * Take up the question of whether or not this engine was properly equipped within the statute that I have read to you here. If the defendant railroad company have shown to you, to your satisfaction, by a preponderance of the evidence, that it was so equipped, then that is the end of the case, even though you find that the engine set the fire in question. They are liable only when it is not properly equipped.”

This was referred to more than once and emphasized in different parts of the charge. Passing from instructing the jury as to the first question for them to determine — whether the evidence showed to their satisfaction that defendant’s engine caused the fire— the court said:

_ “If you get to the second question, the second question is: Was this engine properly equipped? If it was, and the railroad company has shown to your satisfaction by a preponderance of the evidence that it was, then that is the end of the case, regardless of how the fire was set. If it was not and you have previously found that the fire was set by the engine, then you determine what the damages are.”

In interpreting the proviso of the statute as applied to the question at hand, this court said, in Dolph v. Railway Co., 149 Mich. 278 (112 N. W. 981):

“The statute shifts the presumption of non-negligence to the presumption of negligence. See Fisk v. Railroad Co., 114 Mich. 248 (72 N. W. 205). We there said: ‘The statute does not change the common-law liability for setting fires. It simply shifts the burden of proof upon the defendant to show that such fires were not negligently set.’ ”

The Dolph Case contains a somewhat exhaustive discussion of this question,, as a result of which the conclusion is reached, in substance, that if defendant establishes by reputable and uncontroverted evidence the fact that its engine was in good condition, equipped as required by the statute and according to good railroading, no question of fact arises for the jury, and a verdict should be directed for defendant by the court. Having occasion later to construe what was there said, considered in its entirety, this court, in Clark v. Railway Co., supra, stated the rule to be as follows:

“If upon the whole case there is room for inference, based upon evidence, that equipment was defective or that management was improper, the case is for the jury. Whether, in any case, the fact of setting a fire would be any evidence of infirmity of apparatus or of improper management, must depend upon other facts and circumstances in evidence.”

In reversing the latter case on the ground that there was a lack of other facts and circumstances in evidence to raise an issue upon the question of proper equipment, the court pointed out an important consideration, and emphasized the fact, that:

“There is no testimony that an engine in good repair, equipped as this engine was, will throw sparks 30 or 35 feet and set a fire.”

In the case at bar the defendant introduced testimony to the effect that the engine in question was properly equipped and in good condition according to approved standards of railroading. This calls for a determination as to the conclusiveness of such testimony and whether, based upon all the evidence, there is room for an inference that the equipment was, in the particular specified in the statute,, defective.

As bearing upon the condition of the “machinery, smokestack, or fire box” of the engine, defendant produced four witnesses: Jennings, assistant master mechanic of the Michigan Central Railway; Reifsnider, engineer on engine No. 100 at the time of the fire; Rathburn, the boiler maker in defendant’s shops; and Hobbs, its general foreman and formerly its boiler maker foreman. Jennings as an expert described and explained from a diagram the standard fronts of locomotives, and their variations, with reference to appliances designed to prevent throwing sparks, etc., stating at the conclusion of his direct examination that a smoke box could not be devised “that absolutely. prevents throwing cinders through the ■stack.” Rathburn, with two and a half years’ experience inspecting front ends and ashpans, testified to inspecting engine 100 at 8 or 9 o’clock on the evening following this fire; was told that there had been a fire at Alma and to inspect 100 thoroughly; that he put a little piece of oily waste behind the baffle-plate and another down the stack to examine the netting; found the baffle-plate, netting, and ashpan in good condition, there being no patches on the screen, the netting good, not burned, and he placed no patches upon the screen on that occasion. This, standing alone, appears convincing and conclusive beyond contrary inference; but on cross-examination he denied telling a Mr. Butterfield that the screen was somewhat burned, and refused to admit or deny that some time during the trial he had told Mr. Butterfield that there were patches upon it. Butterfield testified on rebuttal:

“Rathburn told me yesterday in this courthouse, in the presence of Mr. Shaw and Mr. C. A. Hicks, that he was asked to make an examination of the screen of this locomotive after the fire. He stated that there were patches upon it and that the screen was somewhat burned.”

He also denied knowing a man named Charles Powers, but stated he would neither admit nor deny that 11 months later than the fire he had made a statement on the subject at the instance of Charles Powers, who then reduced it to writing. Shown the signature to such alleged statement, he declined to admit that it was his writing. Powers testified on rebuttal that he interviewed Rathburn as indicated in the questions put to him upon cross-examination and wrote down what he then said and read it over to him; that he then signed said statement, after having also himself read it. This writing, previously shown to Rathburn as described and identified by Powers, was put in evidence and contained, amongst others, the following statements:

“In regard to inspecting engine No. 100, I was working at the A. A. roundhouse during the month of July, 1911. I was night boiler maker. * * * The engineer left an order to fix the spark arrester; that it was throwing sparks bad. * * * I do not know the exact date. Anyhow, at that time, I put a strip of netting around the spark arrester where I thought sparks could get out. * * * Usually, when we fixed an engine, we would just make a report, ‘Engine all right.’ * * * Engine 100 gave us the most trouble anyhow; it was reported throwing sparks the most. * * * There are thin plates also where sparks could get through if they were not closely watched; that is, if they wore through. Also, where bolts go through. * * * I think engine 100 was reported once again after I fixed the spark arrester. * * * ”

J. V. Reifsnider, engineer of No. 100 on July 11, 1911, testified as to the condition of the engine on direct examination:

“I opened the front end of engine 100 * * * probably 30 or 40 minutes after the fire. * * * I examined the netting, and the netting was perfect on all sides; bolted well all around and the trapdoor was O. K.”

This can scarcely be said to cover the ground specified in the statute and was modified as follows on cross-examination:

“I did not examine the baffle-plates. It was too hot. I know nothing about the plates in the back of the front end. I did not examine the plate around the exhaust pipe. I could see that there were cinders lying on top of it, but these gases were so strong that I could not get my head far enough in to tell through the netting. It was so dark back in there and the small amount of smoke coming out. * * * I have not seen any engines properly equipped throw sparks. I have seen engines throw sparks, and in my opinion they were improperly equipped.”

This witness on cross-examination also expressed the opinion that such an engine as 100 properly equipped would not emit sparks of sufficient vitality to set a fire. Reifsnider was the only one of the train crew called as a witness.

Hobbs, defendant’s general foreman who had been its boiler maker and boiler inspector, testified that he was familiar with engine No. 100 and had known it for 13 years, had been inside of it and observed its extension front, the nature of which he described, making reference to a diagram, explaining the purpose, operation, and effect of certain parts and appliances designed to prevent fire and sparks from escaping, and stated that on July 11th, the date of the fire, engine 100 was equipped with a standard front-end netting, but did not claim, and is not shown, to have examined or seen it at or near that time, and did not testify to its then condition or state of repair from personal knowledge. On cross-examination he testified, in part:

“The spark netting sometimes gets warped, and, if not properly fastened, will warp away from the door that goes into the smokestack. The wires in the netting wear out from the action of the cinders in the course of time, and not infrequently they wear out when the engine is on the road.”

It can be contended with reason that the testimony of these witnesses, taken as a whole find given full credit, falls short of conclusively showing that this engine, at least 13 years old, was, at the time of the fire, -in all parts and particulars specified in the statute, properly equipped and in good order.

Plaintiff called in rebuttal a locomotive engineer named Westcott, who, qualifying to testify on the subject, stated:

“I ran and fired about 13 years out of Durand and Bay City and also fired in Saginaw yhrds. On account of the lumber yards, sawdust, mills, etc., at Saginaw yards, I gave particular attention to the spark question.”

The substance of his testimony, based on observation and experience, was, so far as it had any probative force, that an engine properly equipped as this was said to be, and in good order, would not throw sparks with sufficient vitality to set a fire at the distance shown in this case. This was qualified by the statement on cross-examination that dry weather would add-to the vitality of the spark, and it was possible in a long period of dry and very warm weather for a spark which would set fire to get out of such an engine. Without reviewing at length the objections launched against his, testimony, we conclude that no reversible error appears in the rulings relating to it, under Union Ice Co. v. Railway Co., supra, and Potter v. Railway Co., 157 Mich. 216 (121 N. W. 808, 22 L. R. A. (N. S.) 1039). In the latter case witnesses who were experienced locomotive engineers were allowed in rebuttal to give testimony to the effect that an engine in good order and properly managed, as defendant’s evidence showed the one in question was, would not throw sparks and set a fire 81 feet distant. Of the admissibility of their testimony, the court said:

“A fair interpretation of their testimony is that, although some of the questions seem to call for scientific conclusions, the answers were, for the most part, really based upon their observation and experience as to the distance live or burning sparks would be carried if the engine was in proper order. We are satisfied that the testimony of these locomotive engineers raised a question of fact for the jury, and that the court did not err in refusing to direct a verdict.”

Defendant’s assignment of error on refusal of the court to receive in evidence its exhibits 6 and 7, being reports of inspection of engine 100 made by Eathburn immediately before and after the date of the fire, would be well taken if those exhibits had been again offered in accordance with suggestion of the court and squarely rejected. Worden Lumber & Shingle Co. v. Railway Co., 168 Mich. 74 (133 N. W. 949). We do not, however, think that the objection can fairly be urged or considered here. The record discloses that during the examination of Hobbs, the first witness called as to the condition of the engine, he was shown these exhibits and identified them as regular inspection reports made by Rathburn and given him by the roundhouse foreman, and kept in the office of the master mechanic. Counsel for defendant then offered them in evidence, stating the theory on which they were offered*. No objection was made by opposing counsel, but the court said:

“I think you will have to pass it. I have some doubt about their being competent. You may present it to me later.”

To which counsel replied, “An exception.”

When Rathburn was subsequently called as a witness, he was shown and identified these, reports as made by him, and had the benefit of them to refresh his recollection if so desired; but they were not again offered in evidence, nor the matter again called to the attention of the court and presented “later” for a final ruling, as the court had* suggested to counsel when expressing doubts and deferring the question for further consideration at the time it first arose. Manifestly, the court desired to give it further consideration, and, with but tentative expression of opinion, made it clear that the question was left open by an invitation to call for a final ruling if desired. No objection had been made by opposing counsel, and in the light of existing authorities it is but reasonable to presume that had these exhibits been again offered, after being fully identified by the witness who made them, a favorable ruling would have resulted. If counsel desired to put these exhibits in evidence or to save an exception on their rejection, we think in fairness to the court they should have been presented later, and, under the circumstances disclosed, no error can fairly be predicated on such tentative action of the court.

The court is not required to deal in this inquiry with the significance or" force of defendant’s testimony, so long as it is not conclusive and an issue of fact is raised. We are constrained to conclude from this record as a whole that there is fair room for inference, based upon evidence, that equipment was defective, and what inference, if any, should be drawn was a matter for the jury.

The judgment is affirmed.

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


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    MARSAC v. DE FORD.
    1. Cancellation of Instrument — Undue Influence — Contracts —Deeds—Breach—Life Estates.
    In a suit to cancel deeds given by a grantor who died after the time of the hearing and who it was claimed was induced by fraud or undue, influence to convey all his property to the defendants in consideration of support and maintenance, retaining only a life interest in the realty, held, to sustain the finding of the trial court that no improper conduct upon the part of the grantees was shown; also that the grantees performed their duty in relation to supporting decedent until he voluntarily left, and that no breach of the contract for maintenance was established.
    2. Same — Equity—Decree.
    In the decree of the trial court determining that the deeds made by the decedent in consideration of his support and maintenance for the remainder of his life were valid, a provision requiring the defendant to pay costs and expenses of his support, sickness and burial, during the time that he was absent from the home which defendant agreed to furnish, and making the amount thereof a lien upon the property granted by the deeds, held, to be an equitable determination of the respective contentions.

      Appeal from Tuscola; Beach, J.
    Submitted November 17, 1914.
    (Docket No. 101.)
    Decided March 17, 1915.
    Bill by Frank Marsac against Paul De Ford and Electa De Ford to cancel certain deeds and conveyances. Before his death complainant assigned his rights to William Marsac, who was substituted as party complainant. From a decree for defendants, complainant appeals.
    Modified and remanded for further proof.

      Lynn M. Johnston (Neil E. Reid, of counsel), for complainant.

      Paul Woodworth, for defendants.
   Steere, J.

This suit was brought by the original complainant, Frank Marsac, to obtain cancellation of two warranty deeds given by him to defendant Paul De Ford each conveying the title to 40 acres of land in Wisner township, Tuscola county, Mich. The theory of this bill and alleged ground for relief are that the deeds were obtained for an inadequate consideration, through overpersuasion, undue influence and tempting assurances of a good home in complainant’s declining years, at a time when he was ignorant of the true value of the property conveyed and did not fully understand the effect of said deeds, nor realize that he was absolutely conveying away his property in the manner they import; and, further, that an agreement then made by defendants, as a consideration for said deeds, to care for, support, and furnish him a quiet, comfortable home with them for the remainder of his life has been disregarded and broken. In their answer and proofs defendants freely admit such agreement to furnish him a home with them and to kindly provide and care for him during the remainder of his life, and positively aver that they did so in letter and spirit until he left them without cause a short time before this suit was begun, while laboring under a delusion following a serious illness, and specifically deny in detail all misconduct and grounds of complaint charged against them. The suit was heard in the circuit court of Tuscola county on pleadings and proofs taken in open court, resulting in a decree favorable to defendants. Notice of appeal was thereafter duly given, but before said appeal was perfected the original complainant, Frank Marsac, died, having in the meantime conveyed and assigned all his rights and interests in the subject-matter of the suit to his brother William Marsac, who has been substituted as complainant.

The two 40 acres so separately' conveyed lie adjacent to each other, composing a single 80-acre tract, which was purchased by Marsac in 1892 for $400, as he alleges. It was wild, low and somewhat swampy land in its natural condition, having upon it a limited amount of mixed forest growth, such as ash, cedar, maple, etc. He made no improvements upon it during the years he held title to it, but it has since been drained, cleared, and cultivated, proving to be fertile soil suitable for growing sugar beets, and has increased much in value.

The first deed in question was given on December 16, 1905, for a stated consideration of $1, Marsac reserving a life estate, and the second was given on July 31, 1906, for a stated consideration of $1,000, defendants at the same time giving back to him a mortgage on the same description for that amount. He was then some 75 or 76 years of age, but in good health and full possession of his mental faculties. On September 28, 1912, he released this mortgage, and defendants on the same day conveyed to him a life estate in the premises it covered.

Marsac and De Ford were both of the old French-Canadian nationality and trained to the calling of fishermen. Neither was able to read or write. Mar-sac was a bachelor, about 82 years of age at the time of the trial. De Ford was 46 years of age, and was married in 1895, his codefendant being his wife. From young manhood Marsac had engaged, with varying energy and success, in the business of commercial fishing, mostly at different points around the shores of Saginaw bay, during all of which time he seldom saw or heard from his own kinfolks. He was living at the home of De Ford’s parents at a fishing station when De Ford was born, and knew him all his life. After De Ford grew up he worked for Mar-sac in the fishing business, and later was in partnership with him for a time. They lived and worked together in close and apparently congenial relations for upwards of 20 years, and until shortly before commencement of this suit. The long story of their association and relations during practically the entire life of De Ford can be but scantily outlined here, only touching the points that may throw some light on this controversy.

Frank Marsac is described as a pleasant-mannered, kindly dispositioned old French fisherman, generally well liked by those who knew him. His parental home, where he grew to young manhood, was in Macomb county. His brother Daniel, six years younger, testified that when their mother died they were living together on a farm on the bay near Mt. Clemens, and after they had lived together as a family about 20 years Frank left and went to Bay City. His brothers became farmers in Macomb county, married, and raised families, while he continued unmarried and spent his life in the vicinity of Bay City as a shore dweller on the bay, changing his immediate place of residence from time to time as business interests or inclination suggested. He is not shown during his long life to have been intimate with or particularly-interested in any of his relatives. He twice visited his brother William in 35 years, had frequently seen his brother Daniel in Bay City some 30 years before, when Daniel worked there for a time, and Daniel is shown to have visited him five times in the 60 years since he left the old home. His mother tongue was French, which he claimed to talk and understand better than English. De Ford’s father was of the same nationality, apparently a congenial associate of Marsac, who says they were no relation, but that he let Paul’s father live on his place in Essexville, was himself there off and on, knew Paul since he was a baby, had built himself a shanty on the place and lived there when Paul was quite a boy, and hired him to work at fishing when he became a young man. When Paul De Ford was born Marsac was a middle aged man, with no family or settled home. He made his home with Paul’s parents from time to time for many years, and later boarded with one of Paul’s sisters.

This record as a whole discloses ■ clearly that during practically Paul De Ford’s entire life Marsac was more in touch with the De Ford family than his own, and more intimate with Paul than any of his own blood until shortly before this suit was begun. It also is plainly shown by direct and circumstantial evidence that both De Ford and his wife were personally attached to Marsac, made him welcome in their home, and treated him when with them as a member of the family. When they were married in 1895 Marsac, in company with a brother-in-law of De Ford named Willet, was running a fishery near the village of Caseville, on a shore fraction of land consisting of 12 acres, which Marsac had purchased from the United States government, and De Ford was in their employ. Thereafter De Ford’s wife lived with him at the fishery, keeping house, cooking for the men, etc. Having had some educational advantages, she also was able to be of assistance to them in keeping their accounts, and in other matters where the ability to read and write was helpful. Previous to this Mar-sac had lived there only a portion of the time, during the fishing season, but, as he himself states, about the time Paul was married he went there “to live all the year round.” He thereafter continued to live at the fishery with the De Fords until 1908, when he went with them to the Hotel Smalley in Caseville, which De Ford then owned and ran, where he lived with them until March, 1913. Shortly after De Ford was married Willet withdrew, and Marsac ran the business for two or three years, keeping De Ford in his employ, after which they formed a partnership. Marsac’s interest in and relations with the De Fords were particularly friendly, and in their nature paternal. It was early talked between them and understood that he should make his home with them the remainder of his days.

De Ford testified that while he was in Marsac’s employ the business had not been profitable, his wages being in arrears between $700 and $800, and he was constrained to contemplate some other employment, but Marsac wanted him to remain and take an interest in the business for his back wages, and he did so; that the fishing continued poor and unprofitable, and Marsac, in 1892, offered him the fishery if he would take it and pay the debts they owed, which amounted to about $1,200; that the fishing was poor and unprofitable for a time thereafter and he was in financial straits, but later business improved at that station, and he did well, paying the debts and making improvements there at an expense of about $2,000. In the meantime he also homesteaded 120 acres of State land along the shore adjoining the 12-acre fishery site. In 1908 he traded the fishery, with its improvements, outfit, and business, for the Hotel Smalley in Case-ville, and removed there,, accompanied by Marsac. Marsac denies owing De Ford when the partnership was formed, making a general statement that he liked him well enough when they fished together, and they fished in partnership for about three years, but did not make anything; that Marsac lost money and finally turned the whole thing over to De Ford, saying:

“I had a debt over to Stockmeyer’s, and Stockmeyer wanted to get his money and I gave the whole thing, nets and boats, to clear the business of the partnership debts.”

From the time De Ford took over the fishing business in 1902 until March, 1913, he and his wife furnished a home to and cared for Marsac as a member of their family. That he was a congenial member of their household during these years, and that they treated him kindly, with manifestations of filial affection and regard, Mrs. De Ford as a housewife attentively looking after his comfort in their home, is not only their testimony, but that of all other witnesses in the case giving evidence upon the subject, except Marsac himself, whose chief grievance, as claimed at the hearing, was that they did not continue to furnish him a home at the fishery as before, but exchanged it for and moved to the hotel, where conditions were noisy and uncongenial, and he was not only neglected, but shortly before he left threatened, and his life endangered until he was compelled to leave. Upon that aspect of the case no one reading his testimony in the light of the undisputed facts and circumstances disclosed by the record can, in reason, question the correctness of the following conclusion by the learned chancellor who heard the testimony taken in open court and had the witnesses personally before him:

“The court finds that as a matter of fact the matter of complaint alleged in the bill, of ill treatment and unsuitable surroundings, arose from absolute delusion following an attack of la grippe. This is evident from the fact that on the stand as a witness he persisted in asserting that certain happenings claimed by him to have taken place were real and true, and the testimony shows them to have been imaginary simply.

“The court finds that, while Mr. Marsac may possibly have been more contented remaining at the fishery with De Ford and his wife, if they had remained there De Ford would have been impoverished, the fishery could afford no income and no employment to De Ford, who had his own family to provide for, and that the removal to the hotel was practically without objection by Marsac, and before suit was commenced the hotel had been sold.”

In February, 1913, Marsac, then 81 or 82 years old, suffered an attack of la grippe. Dr. Young, the family physician who attended him, states that before this sickness he was unusually bright and alert for a man of his age, and that as a result of his attack he suffered with melancholia, evidenced by delusions. These delusions, as testified to by numerous witnesses, were to the effect that he was neglected and misused, disturbed by riotous gatherings, composed in part often of law-abiding and leading citizens, who threatened and pursued him, tried to break into his room, threw him out of the house — and De Ford assisted them — that “somebody was going to do him some injury, or take something away from him, but he didn’t seem to know who.” Henry McAdams, a witness for complainant, thus describes his mental condition:

“During this sickness last spring, he would talk of things occurring around the hotel that didn’t occur; I knew they had not. * * * Marsac once in particular told me somebody fell downstairs. I thought he imagined it. I also heard him tell, I think it was the day he left De Ford’s, that people in the office were talking about having him arrested and taking his clothes away from him, something similar to that. I never heard any such conversation. I was around there right along in the office and the bar. * * * I recall the day he left. Mr. Marsac then said to Paul that he hated to leave Paul as bad as he would his own boy. I says, ‘Marsac, what makes you leave?’ He says the boys there were talking about him and such things as that. I says: T don’t think it,_ Marsac; I never heard anybody.’ He said he was going to be arrested and his clothes taken away from him.”

These delusions remained with him and were tenaciously reasserted by him when on the witness stand during the hearing of this case.

In behalf of complainant it is urged that these deeds should be set aside “because De Ford falsely concealed from Marsac the value of the premises and because De Ford falsely pretended to Marsac that his relatives did not care for him.” When such false pretenses are claimed to have been made, Marsac had been living with De Ford and his wife for years. He was in full possession of his faculties, knew just what interest his relatives had taken in him since years before De Ford was born, and was in a better position than De Ford to know if any such representations were true or false. His relatives at that time had been informed of the arrangement to give De Ford this land for caring for Marsac in his old age, and it was freely told and talked of by all parties in interest whenever occasion suggested the subejct. It is not claimed De Ford misrepresented the value of the land or made any false statements in regard to it, but that he knew more of the development and enhancement of values in that locality than Marsac, and “falsely” did not tell him what he knew. It was yet wild and unimproved. Marsac knew what and where it was. It was burned over about the time he deeded the first 40 acres. De Ford testified that his brother-in-law sold an 80 acres adjoining with more timber upon it for $800; that he sold the timber on this tract for $440, giving Marsac half. He afterwards had it cleared, improved, and put upon a producing basis. Marsac had a life estate in the whole, and could control it while he lived, without disturbing the deeds here attacked.

It is also urged as a breach of the contract that defendants required “complainant, in order to receive the support agreed on, to live in a riotous place of public drunkenness, and De Ford becoming an habitual drunkard, and his consequent inability to give filial care and provide a home.” We do not find that the evidence sustains these charges. The Smalley hotel was the best in Caseville, a $2 a day house, with modern conveniences. Marsac ate in the dining room with the other people, and had a good, private room, well furnished and lighted, with a window overlooking the river. Myrtle Duffy, an employee in the hotel for four years, described him as apparently happy before his sickness, “an agreeable man to get along with and a great favorite around the hotel,” and stated that when Mrs. De Ford went away she used to tell them to be good to Frank, and they were. Fred Mitts, a witness for complainant, testified:

“I saw Mr. Marsac there almost every day. He was sitting in the office most of the time, talking with people, smoking and seemed happy.”

This witness also said this “seemed to be a well-kept hotel.” Numerous other witnesses testify along the same lines, and as before stated, none to the contrary except Marsac. He was comfortably clothed, occupied and amused himself as he saw fit, was supplied with money, having a small deposit in the bank, and usually carried some gold in a little bag which he used as a purse.

It is shown that there was a bar in the hotel which complainant’s witness McAdams testified “was run as bars usually are,” and “sometimes they got a little noisy.” This same witness testified:

“I don’t know how Marsac could be treated better— * * * he was a favorite about the place — by Mr. and Mrs. De Ford and all. * * * The relations between him and the De Fords seemed to be pleasant.”

It is testified the bar was closed about 10:30 p. m. and there is no evidence of any trouble with the authorities as to the manner it was conducted. Mr. Cochran, cashier of the Caseville bank, testified:

“I am acquainted with the Hotel Smalley. It was a fair building when De Ford took it. It was steam-heated, a fair country hotel. De Fords ran the hotel as an average country hotel, and the bar fairly well.”

It is also shown that De Ford drank, and at times to excess. Marsac testified that he at one time offered him $100 if he would quit drinking. De Ford, however, became ill in the fall of 1912, and as a result could not and did not drink at all for six or seven months thereafter. His drinking is not shown to have interfered with Marsac’s support, nor is it shown that he treated him unkindly or neglected him. The details of providing for his care and comfort were always especially looked after by Mrs. De Ford, who was a favorite with Marsac, and even in his delusions he does not claim there was any change in her attitude towards him.

The refutation of these charges is, we think, found in what he said and did in September, 1912, after living in the hotel 4% years. He then went alone to Mr. Cochran, the banker, an old acquaintance of 16 years, and consulted him privately, saying that “he wanted to fix his matters so that if anything happened to him, Paul would have what was left of his property, and not have any trouble with any of his relatives in getting the money,” going on to explain about the previous conveyances and the $1,000 mortgage on the second 40, also stating he wanted it fixed so he would be taken care of as long as he lived. ■ Mr. Cochran made some suggestions as to what might be done, and he went away. He also went alone to an old friend of 20 years’ acquaintance named Green, who had been village president, and 'consulted him, telling what he desired to do. These interviews with responsible men, in whom he had confidence, preceded by a couple of days his going to the bank with defendants and executing the release of mortgage in exchange for a life lease of the 40 acres, as before described. He took occasion to have his friend Green accompany them to the bank to act as a witness, explain matters, and see that everything was done as he intended. He thus, at that time, while apparently in full possession of his faculties, ratified and renewed the contract, indorsing their treatment of him and all that had gone before as to their supporting him and his compensating them. Green testifies that he then “seemed to be bright and alert, the same as I had always known him.”

We think it convincingly shown that Marsac was well and kindly cared for by defendants during the years he lived with them; that they gave him no good cause for leaving, treated him kindly thereafter, soliciting him to return, and offering to pay his board and provide for his wants, in sickness and health, elsewhere if he so desired; in other words that they lived up to and fulfilled their contract to well care for him in the closing years of his life, so far as he would permit.

When the decree appealed from was rendered in the trial court, Marsac was yet living, making his home with his brother William, now substituted as complainant. It appearing that Marsac was averse to residing with defendants, the court, having found the contract was yet in force, decreed that De Ford should pay for Marsac’s maintenance, so long as he preferred to live elsewhere, $15 per month regularly, and, in addition, for all medical attendance and other expenses which might reasonably be incurred in case of sickness, provide him with proper clothing and defray his funeral expenses in event of his death. This decree appears to have been duly settled after notice, and was filed April 25, 1914. We think that the court, in sustaining the deeds and requiring De Ford to support Marsac elsewhere, if the latter so preferred, reached a right conclusion, and equitably decided the paramount questions involved. On May 9, 1914, complainants served notice of appeal from the decree. On May 13, 1914, the court, on its own motion, filed a supplemental decree, stating that the former decree did not fully provide for all matters at issue, and directed that defendant pay complainant, or his agent, $200 for his maintenance “from the date of leaving defendant’s home until the present time;” also determining that the life lease to complainant covering the land in question was intended as security for performance on defendants’ part, therefore giving the latter “the management and control of the land described in the pleadings.” On May 19, 1914, after notice to counsel and against objection of complainant’s counsel, the court ordered that the original decree and the supplemental decree “stand as the final decree in this cause.” On what showing the award of $200 was made in the supplemental decree is not disclosed by the record. As to the other matters there mentioned we think the court reached a right conclusion.

Marsac died July 7, 1914. We think, as indicated in the original decree, that the cost of his maintenance, and all reasonable charges for clothing, medical attendance, nursing, and burial, covering the time he was absent from defendants’ home after leaving them in March, 1913, should be borne by De Ford and made a lien upon the land here involved. Necessarily these have not yet been passed upon and fully determined by the trial court. The case will therefore be remanded for a supplemental hearing upon that question, which alone remains open, in which opportunity shall be given to the respective parties to present proofs, whereupon the court shall make such supplemental decree touching' the amount due from De Ford for the support and care of Marsac by others as the testimony warrants and seems to the court just and equitable, declaring the same to be a lien upon said premises.

With these directions the decree is affirmed, with costs of this court to defendants.

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


author: Moore, J.

text:
      In re STETSON’S ESTATE. APPEAL OF STETSON.
    1. Estates oe Decedents — Widow’s Allowance — Probate Court —Statutes—Homestead.
    3 Comp. Laws, § 8940 (4 How. Stat. [2d Ed.] § 10932), granting the widow the right to remain in the homestead one year after death of her deceased husband without charge for rent and granting her reasonable support out of the estate during her first year of administration, would not entitle the widow of the decedent to her allowance in addition to the provisions of the will giving to her the income of the real and personal property from , the date of death: having prayed for and obtained an order from the probate court granting the statutory allowance and having received the amount granted by the court the widow was not entitled to the provision made by the will of the entire income of the estate during the same interval.
    2. Same — Probate Court — Allowances to Widow.
    Although the probate judge is required to make an allowanee to the widow sufficient for tier support during the first year of administration, the amount to he awarded is within his sound discretion considering the size of the estate, its income and the needs of the widow.
    Certiorari to Kent; McDonald, J.
    Submitted November 24, 1914.
    (Docket No. 128.)
    Decided March 17, 1915.
    Elizabeth Stetson presented to the probate court of Kent county a petition praying that a certain part of the income and property of the estate of George W. Stetson, deceased, be ordered transferred to her by the executor. From an order denying the prayer of the petitioner, she appealed to circuit court, which affirmed the order. Petitioner brings certiorari.
    Affirmed.

      Coveil & Cross, for appellant.

      Lombard, Hext & Washburn, for appellee.
   Moore, J.

This is certiorari. George W. Stetson died, leaving a last will, wherein he devised and bequeathed to his wife, Elizabeth Stetson, the appellant herein, as follows:

“Second. I give, devise and bequeath unto my wife, Elizabeth Stetson, the use during her lifetime of all my personal property and real estate, in the State of Michigan.”

Some time after the death of the testator, a petition was filed in the probate court on behalf of the widow asking for an allowance to be made to her under the statute. On September 26, 1911, an order was duly made, reading as follows:

“It is ordered that said widow be allowed the personal property of said deceased selected by her not exceeding in value the sum of two hundred dollars and also all her articles of apparel and ornaments, and all of the wearing apparel and ornaments, and the household furniture of the said deceased.

“It is ordered that an allowance of the sum of ten dollars per week be and is hereby granted, out of the personal estate and the income of the real estate of said deceased, for the support and maintenance of the widow and the children constituting the family of said deceased, for one year from the date of the death of said deceased.”

Payments were made and received under this order for the full year.

The executor refused to pay to the widow, in addition to this, the income arising from the real and personal estate during the year, claiming she was not entitled to it until the expiration of the year during which she was receiving her widow’s allowance. The widow claims that under the will she was entitled to the income of the real and personal property from the date of the death of the testator, in addition to the sum of $10 per week, granted her by the court. The probate court and the circuit court, after hearing, disagreed with her.

The question involved is whether, in view of the provisions of the will and the terms of the order of allowance, the widow is entitled to the weekly allowance, and also the income of the estate during the year following the death of Mr. Stetson. The construction of the following statutes is involved:

“A widow may remain in the dwelling house of her husband one year after his death without being chargeable with rent therefor, and shall have her reasonable sustenance out of his estate for one year.” 8 Comp. Laws, § 8940 (4 How. Stat. [2d Ed.] § 10932).

“All the estate of the testator, real and personal, shall be liable to be disposed of for the payment of his debts, and the expenses of administering his estate, and the probate court may make such reasonable allowance as may be judged necessary for the expenses of the maintenance of the widow and minor children, or either, constituting the family of the testator, out of his personal estate, or the income of his real estate, during the progress of the settlement of the estate, but never for a longer period than until their shares in the estate shall be assigned to them.” 3 Comp. Laws, § 9289 (4 How. Stat. [2d Ed.] § 11002).

The relator insists the allowance is part of the expenses of administration, and that, in addition to it, she is entitled to the income, citing Streeter v. Paton, 7 Mich. 341; Rough v. Womer, 76 Mich. 375 (43 N. W. 573); Campau v. Campau, 19 Mich. 116; Pratt v. Millard, 154 Mich. 112 (117 N. W. 552); Holbrook v. Campau, 22 Mich. 288; Hill v. Probate Judge, 128 Mich. 77 (87 N. W. 113); Houghteling v. Stockbridge, 136 Mich. 544 (99 N. W. 759); and Dickinson v. Henderson, 122 Mich. 583 (81 N. W. 583).

It is insisted the last-named case is on all fours with the instant case. An examination of it will, we think, show it to be distinguishable in that no formal order of allowance was made, though a marginal memorandum was made on the docket of the probate judge. It also appears an order was made approving the final account of the executors, showing the payments made to the widow; the court saying:

“The order approving the account involved an approval of the payments made to. Mrs. Henderson for her support. We think this allowance must be treated as having been made from the estate left by the testator, and not from the income.”

We will not analyze the other cases, but an examination of them will show they are distinguishable from the case at bar.

The language of section 9289, 3 Comp. Laws, is not ambiguous. It states the allowance may be made “out of his personal estate, or the income of his real estate.” This language authorized the form of the order made by the probate judge. Instead of objecting to the order, the executor and the widow acted under it. She must have known that, if it was carried out, she could not have the income during the same time by virtue of the provision of the will.

While a probate judge is bound to make an allowance, the amount of the allowance is within his sound discretion, taking into consideration the estate, its income, and the needs of the widow. See North v. Probate Judge, 84 Mich. 69 (47 N. W. 663).

The writ of certiorari is quashed, and the order of', the probate court is affirmed.

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


text:
    JOHNSON v. FIDELITY & CASUALTY CO. OF NEW YORK.
    1. Insurance — Health and Accident Policy — Limitation of Action — Statutes.
    Where a policy of accident insurance contained the proviso that if any limitation in the policy should he prohibited by statutes of the State in which the policy was issued the limitation should be considered as amended so as to conform to the minimum period of limitation permitted by the statutes, and where under the statutes of the State of Illinois in which the policy was issued it was prohibited to insert in any life insurance policy a provision limiting the time within which action might be commenced to less than three years from the date that the action accrued, the policy must be held to have been affected by the provisions of the statute and plaintiff’s right of action was not restricted to the period of sis months after the date named for filing the final proofs of death, as fixed by the language of the policy.

      2. Same — Accident Insurance.
    Under a policy of insurance against death by external or . violent and accidental means, the rules applicable to the rights of the insured are the same as in case of life insurance; the mere addition of one or more features or limitations in a contract of insurance that may serve to give the policy a peculiar designation, in the business and insurance world, will not have the effect of divesting it of its character as insurance upon life.
    3. Witnesses — Privilege — Physicians and Surgeons — Waiver— Insurance — Right of Beneficiary.
    A physician of the insured, who is offered as a witness in behalf of the beneficiary, is not precluded on the ground that his testimony is privileged, from giving testimony concerning facts relating to the cause of death, which he may have discovered from the existence of the confidential relation of physician and patient: the beneficiary is entitled to waive the privilege.

    4. Evidence — Insurance—Retort—Rebuttal.
    It was competent, in an action on an insurance policy, for the plaintiff, in rebuttal, to show what occurred at an interview between the examining physician and the deceased, in the presence of herself and others, where said physician testified in behalf of defendant, and his report of an examination of deceased was allowed in evidence as also a letter, written by the defendant company to the plaintiff, following said report, in which it was stated that her physician and defendant’s physician both advised the writer that deceased was affected by tuberculosis: nor did the court err in receiving in evidence the statement made by insured to his physician relating to the cause of his illness which plaintiff claimed was ptomaine poisoning.
    5. Insurance — Accident Insurance — Premiums—Non-Payment— Breach of Contract.
    Where decedent was insured in the month of September and it was provided by the contract that the first payment of premium should be made on the 15th of November out of wages in the hands of his employers, that the premium was not paid but the insured left his employment before November 15th and the wages due were retained by the employer, the insured dying on November 21st, the policy did not terminate for failure to make the payment in time.

      6. Same — Ac.cidentai, Death — Ptomaine Poisoning.
    Under a policy of accident insurance the beneficiary was entitled to recover for death of the insured by reason of his taking tainted food resulting in ptomaine poisoning and death, where there was a conflict of evidence whether decedent had tuberculosis or not and what was the immediate cause of his decease, the trial court correctly submitted the question to the jury as one of fact.

    Error to St. Clair; Law, J.
    Submitted November 10, 1914.
    (Docket No. 154.)
    Decided March 17, 1915.
    Rehearing denied July 23, 1915.
    Assumpsit by Catherine Johnson against the Fidelity & Casualty Company of New York upon a policy of accident insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Phillips & JenJcs (Edwin A. Jones, of counsel), for appellant.

      John B. Mcllwain, for appellee.

       As to when limitation of time for suit on insurance policy begins to run, see notes in 47 L. R. A. 704 and 48 L. R. A. (N. S.) 908.

       For waiver by beneficiary of privilege as to communications between physician and patient, see note in 48 L. R. A. (N. S.) 418.

       On the question as to what constitutes an accident within an accident policy, see note in SO L. R. A. 206.

   Moore, J.

Suit was brought February 3, 1913, on a policy of insurance, which provides for the payment of $3,000 in case the assured comes to his death as the result of an accident. The policy was issued September 15, 1911, and the assured died November 21, 1911. The plaintiff is the mother and beneficiary named in the policy. It is the claim of the plaintiff that the proximate cause of the death was ptomaine poisoning, and that this is an accidental death within the meaning of the policy. The defenses urged will appear later. The case was tried before a jury, which returned a verdict for the plaintiff. A motion was made for a new trial, which motion was overruled, the trial judge stating at length his reasons for doing so. From a judgment for $3,346.25 in favor of the plaintiff, the case is brought here by writ of error.

The first group of assignments of error relates to the claim that the suit was not brought within the time limited by the policy, as article 3 of the policy provides that legal proceedings shall not be brought at all unless begun within 6 months from the date specified therein for final proofs, and it is said the suit should have been brought within 8 months from the time of death, while in fact more than 14 months elapsed. It is contended by plaintiff that this limitation is controlled by another provision of the policy and a statute of Illinois, in which State the policy was written and delivered. The policy provision is in article 3, and is as follows:

“If any limitation set forth in this and' the preceding article is prohibited by the statutes of the State in which this policy is issued, the said limitation shall be considered to be amended to agree with the minimum period of limitation permitted by such statutes.”

The Illinois statute relied upon by the plaintiff is Senate Bill No. 388, approved May 20, 1907 (Laws of Illinois 1907, page 367). Section 2 of the act provides :

“No policy of life insurance shall be issued or delivered in this State * * * if it contain any of the following provisions: (1) A provision limiting the time within which any action at law or in equity may be commenced to less than three years after the cause of action shall accrue.”

It is claimed by defendant these provisions do not apply to the policy involved here because this is an accident and death policy and not a life insurance policy within the meaning of the statute, and cases are cited sustaining this contention. It must be conceded that the authorities are in conflict upon this question. No Michigan case is cited upon this point, though we have a statute with substantially the same provisions as the Illinois statute. See section 2, Act No. 187, Pub. Acts 1907 (3 How. Stat. [2d Ed.] § 8313), and section 6 of Act No. 236, Pub. Acts 1909 (3 How. Stat. [2d Ed.] § 8317). The case of Logan v. Fidelity & Casualty Co. of New York, 146 Mo. 114 (47 S. W. 948), is an instructive one. The defendant in that case is the same defendant as is now before us, and it there urged a similar defense. The opinion is too long to quote here. We content ourselves with excerpts from it:

“Section 5855, Revised Statutes 1889, reads as follows: ‘In all suits upon policies of insurance on life hereafter issued by any company doing business in this State, it shall be nq defense that the insured committed suicide, unless it shall be shown to the satisfaction of the court or jury trying the cause, that the insured contemplated suicide' at the time he made his application for the policy, and any stipulation in the policy to the contrary shall be void.’

“Appellant’s contention is that when section 5855 was enacted, it related to life insurance in its usual and ordinary significance, and referred to those life policies issued by life insurance companies furnishing the indemnity to the insured from death from any and every cause, and not otherwise. * * * When a policy covers loss of life from external, violent, and accidental means alone, why is it not insurance on life? Such a provision incorporated in a general life insurance policy admittedly would be insurance on life, then why less insurance on life because not coupled with provisions covering loss of life from usual or natural causes as well? If one holds a general life policy and an accident policy, and is killed by lightning or commits suicide, so that he may be said to have died by accidental means, both the companies should pay, and the stipulation against liability in the event of suicide in the policies should be no more a defense against the suit upon the accident policy, providing against death from accidental cause, than against the policy which goes further and covers death from other causes as well. * * *

“The mere addition of one or more features or elements in a contract of insurance on life that may serye to give the contract or policy a particular designation in the business or insurance world will not, in the least, divest the contract or policy of its chief character, of insurance on life, or make the contract other than life insurance. The promise to pay a weekly indemnity, by an insurance company, in the event the insured receives an injury from an accident not resulting in death, does not change the character of the agreement of the policy to pay a certain other sum when the accident results fatally, which is life insurance from accidental causes. * * *

“The calling of a contract of insurance an accident, tontine, or regular life policy, or, for that matter, by any other appellation that may be adopted for business or conventional uses or classification, cannot make a policy containing an agreement to pay to another a sum of money designated upon the happening of an unknown or contingent event depending upon the existence of life less a policy of insurance on life.

“Insurance on life includes all policies of insurance in which the payment of the insurance money is contingent upon the loss of life.”

See, also, Vance on Insurance, p. 564, and note; Richards on Insurance, § 884, and notes. We think the suit was commenced in time.

Two groups of assignments may be treated together. It is said the court erred: (a) In allowing

the deposition of Dr. Hertel to be read; and (b) in permitting the testimony of the mother as to statements made by the assured as to ptomaine poisoning.

(a) It was the claim that the assured was poisoned by eating tainted food. Within a day or two after he was taken sick he consulted Dr. Hertel in Chicago. This was on October 21st. His testimony in part was:

“A. I made an examination of the heart, thorax, and lungs, and found them to be in a perfectly healthy condition. In fact the patient was in a perfectly healthy condition, so far as I could see outside of his symptoms. From the examination I made I was able to form a professional opinion of the trouble he was suffering from at that time.

“Q. What is your professional opinion as to what the trouble was from which Mr. Johnson was suffering on the date he visited you? * * *

“A. I diagnosed the case as ptomaine poisoning.

“Q. Doctor, tell the symptoms of ptomaine poisoning as briefly as you can?

“A. Severe pains in the abdomen, temperature, nausea, vomiting, possibly chills, headache; the pains are of a severe lancinating character. Diarrhea is not necessarily one of the symptoms.”

This was objected to for the reason that the physician is not permitted to disclose any knowledge he obtained by reason of the examination of Mr. Johnson, and that it is in violation of our statute governing the rules of evidence. Such information would be privileged, and under the statute he could not disclose it.

“The Court: The question is whether the beneficiary can waive the privilege.

“The court overruled the objection and defendant excepted.”

We think the ruling of the court was correct. Grand Rapids, etc., R. Co. v. Martin, 41 Mich. 667 (3 N. W. 173); Scripps v. Foster, 41 Mich. 742 (3 N. W. 216); Fraser v. Jennison, 42 Mich. 206 (3 N. W. 882); Briesenmeister v. Knights, 81 Mich. 525 (45 N. W. 977); Slater v. Sorge, 166 Mich. 173 (131 N. W. 565), and In re Oldenberg’s Estate, 177 Mich. 150 (142 N. W. 1076).

(6) This testimony relates to what was said and done in an interview in the presence of the mother, the sister, and another between Dr. Hanson, who was produced as a witness by defendant, and the deceased. It was offered as rebuttal testimony, Dr. Hanson having testified that at the request of the company he made an examination of the deceased and made a report to the company, which report was allowed in evidence, as was a letter written by the company following the report, to the plaintiff, in which it was stated: “Your physician and our physician have both advised me that Mr. Johnson’s disability was occasioned by tuberculosis.” This testimony was competent as rebuttal testimony.

It is insisted there is no liability because there was no payment of premiums. The policy commences as follows: “Railroad Employees’ Installment, Accident and Health Policy.” In the general provisions of the policy appears the following:

“Article 11. Section A. If the first payment under the order on the paymaster of the assured’s employer bearing even date and number with this policy is made at the time specified in said order for said payment this policy shall continue in force for 60 days; if the said payment is not made at the said time this policy shall immediately thereupon terminate without any action on the part of the company and the assured shall immediately pay to the company the earned premium for the time the policy shall have been in force.”

“Section C. If any one of the payments specified in said order subsequent to the first payment is not made at the time specified in said order for any such payment, this policy shall terminate at the end of the period for which the last payment under said order was actually made, without any action on the part of the company.”

“Article 14. This policy is issued in consideration of the premium and of the statements which are set forth hereon in the Schedule of Warranties and which the assured makes and warrants to be true by the acceptance of this policy.”

In the schedule of warranties appears the following:

“I am employed by the Pullman Company, whose business is Pullman Company, located at Central district, city of Chicago, State of Illinois. My occupation is conductor. The duties of my occupation are fully described as follows: Conductor. My monthly wages are $70. The order on the paymaster referred to in this policy provides for the following payments to be made from my wages as follows: First payment of $6.50, from month of October, 1911. Second payment of $6.50 from month of November, 1911. Third payment of $6.50 from month of December, 1911. Fourth payment of $6.50, from month of January, 1911.”

The following stipulation was made at the trial: That Lawrence Johnson left the employ of the Pullman Car Company on or about October 23, 1911, and came to Port Huron, where he remained until his death, November 21, 1911. That under the terms of the policy in issue the first installment of premium to be paid thereon, to wit, the sum of $6.50, would have been payable out of his pay for the month of October, which according to the Pullman system would not be payable until the 15th of November. That on or before November 15th, the defendant received notice from the Pullman Company that Johnson had left its employ. At the time of leaving the employment of the Pullman Company there were moneys belonging to Johnson for his wages as Pullman conductor during October $29.35. This money remained in the hands of the Pullman Company until January 4, 1912, when a check for the sum was sent to Mrs. Catherine Johnson, the plaintiff.

The case is within Lyon v. Insurance Co., 55 Mich. 141 (20 N. W. 829, 54 Am. Rep. 354), and is not in conflict with the majority opinion in Geddes v. Relief Association, 178 Mich. 486 (144 N. W. 828). See, also, 1 Am. & Eng. Enc. of Law, p. 289.

It is said death as the result of ptomaine poisoning does not create liability under this policy, counsel citing American Accident Co. v. Reigart, 92 Ky. 142 (17 S. W. 280), and Bacon v. Accident Ass’n, 123 N. Y. 304 (25 N. E. 399, 20 Am. St. Rep. 748). The first of these citations relates to the improper taking of an appeal and is not in point. The second case is distinguishable and is not controlling. The instant case is more like Paul, Adm’r, v. Insurance Co., 112 N. Y. 472 (20 N. E. 347, 3 L. R. A. 443, 8 Am. St. Rep. 758), where the liability of the company was sustained. No question would be raised here, I take it, if the assured by mistake had taken carbolic acid, when he intended to take a helpful medicine. Travelers’ Insurance Co. v. Dunlap, 160 Ill. 642 (43 N. E. 765, 52 Am. St. Rep. 355). Why, then, should it be said there is no liability when the assured, intending to take nourishing food, in fact took tainted food, which resulted in ptomaine poisoning and death? See Vance on Insurance, pp. 570, 576, and notes; Richards on Insurance Law, § 386, and notes; 1 Am. & Eng. Enc. of Law, p. 272, and p. 294; Freeman v. Accident Ass’n, 156 Mass. 351 (30 N. E. 1013, 17 L. R. A. 753); Jiroch v. Insurance Co., 145 Mich. 375 (108 N. W. 728).

The other assignments of error have had our attention; we think it unnecessary to discuss them.

In the instant case there is a great conflict in the testimony. Young Johnson had lived in Port Huron for a long time prior to his going to Chicago on August 14, 1911. He took out the policy of insurance September 15, 1911. His sister testified in part as follows:

“Before my brother went to Chicago he was in perfect health, was tall, an athlete; played ball as a catcher on the Independent baseball team. * * * He was in perfect health all the time. * * * I never heard of his having consulted a physician nor was the subject of his having any ailment discussed in the family; never knew of his taking any medicine.”

His mother, his brother, the city clerk of Port Huron, and the county clerk of St. Clair county, and others testified to substantially the same condition. We have already called attention to what Dr. Hertel observed October 21, 1911. Physicians were called on the part of the plaintiff as experts, who described ptomaine poisoning and its symptoms. These physicians, in answer to hypothetical questions which the trial judge thought covered the history of the case, expressed the belief that young Johnson was suffering from ptomaine poisoning, and that the cause of his death was ptomaine poisoning.

“Q. From the history of the case which I read to you state whether in your opinion the cause of Lawrence Johnson’s death could be attributable to pulmonary tuberculosis.

“A. Absolutely impossible. In pulmonary tuberculosis you never have vomiting; you very rarely have dysentery or diarrhea; you never have any abdominal pain. I have seen muscular contractions due to tuberculosis, but very, very seldom, and that would be in the very later stages.

“Q. Now as to the time from the beginning of the trouble until the death, what do you say about that?

“A. It is too absurd to even answer, almost. You never get pulmonary tuberculosis to kill in a month.”

On the part of the defendant there was testimony tending to show that the assured died of tuberculosis. This raised a' question of fact which was submitted to the jury in a charge which, when read as an entirety, presented the questions involved fairly and fully.

Judgment is affirmed.

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


text:
    HOMANN v. ALLGEMEINER ARBEITER BUND OF MICHIGAN.
    Insurance — Premiums—Non-Payment—Waiver of Breach — Termination of Policy.
    The constitution of defendant, a mutual benefit association, provided that members suspended should not be entitled to any assistance during the period of suspension and that dues were payable in advance; that in case of non-payment within a month after they were due the insured should be suspended from all benefits except insurance and that upon the lapse of another month he should be expelled and that the secretary should notify him eight days before action was taken. It also appeared that the insured had been in arrears for a considerable period of time but that his premiums were received without objection when they were forwarded to the society. There was evidence of the sending of a postal card notifying decedent of a special assessment levied by the association after the alleged date of expulsion; numerous other members of the society were shown to have been frequently in default; held, that defendant waived the effect of its constitution requiring the expulsion of the member and held, that the action of the society in interpreting the by-laws by conduct was to establish that the by-laws were not intended to be self-executing.
    Error to Manistee; Withey, J.
    Submitted November 11, 1914.
    (Docket No. 13.)
    Decided March 17, 1915.
    Assumpsit by Barbara Homann against the Allgemeiner Arbeiter Bund of the State of Michigan upon a certificate of insurance. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      Zimmer & Chedester, for appellant.

      Smurthwaite & Bigelotv (Max E. Neal, of counsel), for appellee.
   Moore, J.

The defendant is a mutual benefit life insurance society with local societies in various cities; one of them being at Manistee, where this action arose. The plaintiff’s husband, Fred Homann, became a member of the local society at Manistee on the 20th day of April, 1890, at which time there was issued to him a death benefit certificate which provided that at the time of his death the sum of $500 would be paid to the beneficiary named in the certificate. He died on the 24th day of February, 1914. Barbara Homann, as beneficiary, brought this suit. After all'the testimony was in, the circuit judge directed a verdict in favor of the plaintiff in the sum of $500. The case is brought here by writ of error.

There are many assignments of error, but most of them are abandoned.

Counsel say in the brief:

“Although we incorporated several assignments of error in the record, we believe that the question to be submitted to this court is * * * whether or not the .court was justified in directing a verdict for the plaintiff, or should have submitted the case under proper instructions to the jury. * * * The question is whether or not the defendant, by its conduct in permitting the deceased to pay at other times, waived the necessity of a strict compliance of the contract, or so conducted itself in its course of dealings with the deceased while he was a member, as would justly and fairly lead the deceased, as a reasonable man, to believe that he might become in arrears in the payment of his dues, as he did in this case for a period of four months. * * * It was a question for a jury, as reasonable men, to consider what defendant intended and what its conduct, as shown by the evidence in this case toward the deceased while a member, would lead a reasonable man to believe in reference to it. If the defendant by its conduct led the deceased, as a reasonable and prudent business man, to believe that he could make payments two, three, or four months after the time prescribed by its constitution and by-laws, and after they had become due, then it could not turn around and say to the deceased, Fred Homann, that he did not pay in time; but we submit that it was a question of fact on the evidence in this case to have been submitted to the jury.”

Article 8 of the constitution of the Allgemeiner Arbeiter Bund, section '39 — C, reads:

“A member who is suspended in the society belonging to the Bund is not entitled to any benefits or any other assistance from the Bund during the period of his suspension.”

It is claimed that the testimony of August Guhse, the financial secretary of the Manistee society, shows Mr. Homann was suspended by the society January 9, 1913; but the pencil memorandum upon which he based that testimony was excluded.

Section 4, art. 8, of the constitution of the Manistee local society, reads:

“The full dues shall be one dollar per month, and must be paid in advance.”

While article 5, § 16, of the constitution of the local society reads:

“Every member who does not pay his dues or fines inside of a month after the first meeting in the month, or quarter, after they are due, is suspended from all benefits, except the Bundes insurance. After another month if such member does not pay he is expelled, but the financial secretary shall notify him eight days before such action. But this notice is not binding on the society.”

It is claimed that, as Mr. Homann was in arrears $4, he was not only suspended, but was also by the automatic action of the by-laws expelled. It is claimed that a postal card was mailed to Mr. Homann January 3, 1913, and it is said it was a notice of suspension. The postal card was not offered in evidence, nor were its contents proven, nor was it shown that it reached Mr. Homann. A postal card mailed to him at the same address February 18, 1913, notifying him of a special assessment, reached him. It is claimed by defendant this postal card was mailed by mistake. There is no proof that the notice mentioned in article 5, § 16, of the constitution of the local society, was ever given or ever attempted to be given.

The case in many respects is an anomalous one. As already appears, Mr. Homann was a member of the society for more than 20 years. For much of the time, according to the testimony of the local secretary, he was from one to three months late in the payment of his assessments, and this was the usual condition of a very large percentage of the members. The secretary testified that in July, 1912, Mr. Homann paid, and he receipted, $5 as the dues for May, June, July, August, and September. The dues when offered were habitually received without objection, even though they were from one to three months late. The secretary of the State society was a witness. On the cross-examination he testified in part:

“As secretary of the State Bund, I have a list of the members of the local society, and the moneys coming from the local society are sent to the treasurer of the bund. The time for sending them to the State treasurer is from the 1st to the 28th of the month, and every month the treasurer charges the local society with the dues for as many members as the report shows are in good standing. And when any member is suspended or expelled, we are notified by the local society. A member is suspended as soon as we are informed of the suspension by the local society. The State bund requires the local society to pay to the bund dues upon all members that are in good standing at the time of the last report. The local society pays the State bund dues or assessments of its members until they are suspended. Up to the time of Mr. Homann’s death, the local society had paid the dues and per capita tax of Mr. Homann up to the 15th of February.”

Mr. Smurthwaité, as attorney for the plaintiff, wrote the secretary a letter on March 19, 1918. This letter was shown the witness, and the witness continued his cross-examination as follows:

“Mr. Smurthwaite: Now, Mr. Kersten, after reading that letter would you say you then had the report of the death of Mr. Homann?

“A. No, sir.

“Q. The report came after my letter?

“A. This report was dated.

“Q. The first notice you had of the death or suspension of Fred Homann, from this local society, was in my letter then. Is that true?

“A. You mean suspension, or do you mean death?

“Q. You said you had no notice of his suspension?

“A. Yes, the first information I received was through your letter.

“Q. The State bund received from the local society at Manistee all the moneys it ever was entitled to on account of Fred Homann up to the time of his death?”

The production of the beneficiary certificate and the proof of death made a prima facie case for the plaintiff. Petherick v. Order of the Amaranth, 114 Mich. 420 (72 N. W. 262), and the many cases cited therein; Taylor v. Columbian League, 135 Mich. 231 (97 N. W. 680, 106 Am. St. Rep. 392). Was this prima facie case overcome?

It is very clear, from what we have quoted, that the defendant society had received its full dues, and that neither Mr. Homann nor the officers of the local society regarded the by-laws we have quoted as self-executing. The case is within the reasoning of Petherick v. Order of the Amaranth, 114 Mich. 420 (72 N. W. 262); Dick v. Order of the Amaranth, 150 Mich. 215 (113 N. W. 1125); and Roulo v. Schiller Bund, 172 Mich. 557 (138 N. W. 244).

Judgment is affirmed.

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