author: Steere, J.

text:
    SCHWEITZER v. BIRD.
    1. Ejectment — Verdict—Specifying Estate of Plaintiff.
    The provision of section 13190, 3 Comp. Laws 1915, requiring the verdict in ejectment to specify the estate or right of the plaintiff in whose favor it shall be rendered, whether such estate be in fee, for life,- for a term of years, or otherwise, is mandatory.
    2. Same — Record—New Trial — Subsequent Suit.
    Where a case in ejectment had terminated in a verdict and judgment for plaintiff without specifying her interest in the land, when defendants filed their motion for a new trial, they were entitled to have it determined on the record as it then stood, and a subsequent chancery suit to determine plaintiff’s interest, to which defendants were not parties, could not be utilized to cure the defective verdict.
    3. Same — Void Deed — Infants—Burden of Proof.
    Where plaintiff’s claim to property, in ejectment, was based wholly upon the proposition that a deed which she gave her father was void or voidable because she was a minor, the burden of proof rested upon her.
    4. Evidence — Testimony as to Age of Witness — Hearsay.
    Plaintiff in ejectment, where the controlling question of fact was her age, could testify to same, although necessarily by hearsay.
    5. Triad — Infants—Evidence—Question for Jury.
    Where plaintiff testified that she relied for her knowledge as to her age upon what she saw in a bible in existence and in the possession of her father, where neither her father nor the bible was produced, and defendants questioned her testimony, they were entitled to have the fact of her minority determined by the jury.
    Error to Genesee; Stevens, J.
    Submitted October 16, 1918.
    (Docket No. 67.)
    Decided December 27, 1918.
    Ejectment by Elizabeth J. Schweitzer against Andrew Bird and another. Judgment for plaintiff. Defendants bring error.
    Reversed.

      B. F. Reed, for appellants.

      James S. Parker (Clay W. Wilber, of counsel), for appellee.
   Steere, J.

Plaintiff brought this action of ejectment in the circuit court of Genesee county to recover from defendants possession of a piece of land described in her declaration as “25 acres of land off the west end of the south part of the south half of the southeast quarter of section 28, town 8 north, range 8 east, which, said premises the said plaintiff claims in fee.”

Defendants pleaded the general issue, filing, under the statute so authorizing, a claim in writing for compensation for improvements made by them upon said premises, with request for a determination or estimation of the increased value thereof by reason of their having been in actual possession for more than six years. Plaintiff thereupon filed a request in writing under “the provisions of section 13196 of Howell’s Statutes, second edition,” that the jury estimate what would have been the value of the premises at the time of the trial had no improvements been made or waste committed.

The conceded common source of title to this property begins with Aaron J. Crossman, plaintiff’s father, who on September 8, 1903, conveyed the same to her by warranty deed. On January 26, 1904, plaintiff reconveyed the property by quitclaim deed to her father, who, on the same date, conveyed the same by warranty deed to William J. Langley. On February 13, 1907, William J. Langley conveyed the same by warranty deed to defendants Andrew Bird and Elizabeth M. Bird, his wife. Plaintiff’s action was based on the deed of September 8, 1903, from her father, Aaron J. Crossman, to her, claiming that she was an infant at the time of her reconveyance to him.

Upon the trial plaintiff testified that while she had no recollection of reconveying the property to her father by quitclaim deed on January 26, 1904, as the record showed and which she did not deny, that upon the 8th day of September, Í903, when her father deeded the premises to her she thought she was 18 years of age “if the record in the bible is anything to go by.” On cross-examination she stated she relied for her age upon what she saw in the bible which was then in possession of her father, who lived at Lapeer. A motion to strike out this testimony as to her age, because hearsay and not the best evidence, was denied.

At the close of the proofs the court directed a verdict in favor of plaintiff, saying that the deed of January 26, 1904, from her to her father, was void because she was then a minor, and instructed the jury to determine the value of the land in question with and without the improvements; whereupon the jury after due deliberation rendered a verdict given in the record as follows:

“Whereupon the jury retired and being absent for a time returned into court and found that the present value of the premises described in plaintiff’s declaration including all improvements made thereon as one thousand five hundred dollars and that the present value of said premises had the improvements claimed by plaintiff not been made thereon and no waste committed thereon is seven hundred and fifty dollars.”

The court upon the same day entered judgment upon the verdict with recitals relative to the same and notices given by the parties under the statute, concluding as follows:

“It is ordered and adjudged by the court now here that the said Elizabeth J. Schweitzer do recover against the said Andrew J. Bird the possession of said premises according to the verdict of the jury, as directed by the court, and that the said plaintiff Elizabeth J. Schweitzer have a writ of possession therefor, provided, however, that the said writ shall not issue until plaintiff has paid defendant the value of the improvements made on said premises as found by said jury.
“It is further ordered and adjudged that plaintiff recover from said defendant her costs and charges to be taxed and that she have execution therefor, which amount of said taxed costs may be set off and deducted from the value of the improvements as found by the jury.”

Shortly thereafter defendants moved for a new trial asking the court to set aside the verdict and judgment on the ground the court erred in not charging the jury to specify the estate or right of plaintiff in and to the lands described in the declaration, and the verdict as rendered did not “specify whether plaintiff has an estate in fee, for her life, for the life of another, for a. term of years, or otherwise, as required by subdivision 7 of section 23 [chapter 29] of Act No. 314 of the Public Acts of the State of Michigan for 1915 [3 Comp. Laws 1915, § 13190], in the property described in plaintiff’s declaration”; and for the further reason that should she elect to abandon the premises described in her declaration and take the present value thereof exclusive of improvements, there is no way o'f determining what portion of such value belongs to her.

The last proposition is based upon the following provision in the deed to her from her father of September 8, 1903, which is otherwise a plain warranty deed:

“The conditions of this deed is such that Elizabeth J. Crossman has the use of the above described land for the support of herself and child William during their lives, and should she outlive him, her title to become absolute, but should the child William outlive his mother, then his title to said lands to become absolute.”

This motion was filed February 15, 1916. On December 31, 1917, the court filed reasons denying the motion, somewhat in the form of a judgment and apparently so intended, the pertinent portions being as follows:

“And it further appearing to the court that after the verdict and judgment was entered in said cause, plaintiff Elizabeth J. Schweitzer filed in this court, in chancery, a bill of complaint against one William L. Schweitzer, defendant therein, praying for the construction of the deed by which she obtained title to the lands and premises described in plaintiff’s declaration.
“And it also appearing to the court that said chancery case has been heard and determined by decree, and that no appeal has been taken therefrom, and that by the terms, of the said decree it was determined by said court that said plaintiff is vested with a life estate in the premises described in plaintiff’s declaration with a contingent remainder in said premises contingent only upon his surviving said plaintiff.
“It therefore appearing to the court that said plaintiff is not entitled to the full amount of said judgment so entered in this cause, but is entitled to a certain portion thereof:
“It also appears to the court that inasmuch as the interests of said William L. Schweitzer have been determined by this court, that the verdict and judgment heretofore entered in said court should be set aside, vacated and held for naught, and a new trial granted therein unless said plaintiff remits all of said judgment not represented by her interest in said premises.
“Therefore * * * it is ordered and adjudged that the verdict and judgment heretofore entered in said cause be and the same is hereby set aside and held for naught and a new trial granted herein unless said plaintiff, within twenty days from the date of this order, remits, in writing to be filed in this court, the sum of two hundred seventy and 11/100 dollars, which this, court holds to be the value of the contingent remainder of said William L. Schweitzer.
“It is further ordered that if said plaintiff remits said sum of $270.11, within said twenty days, when the amount so remitted shall be deducted from the amount of said judgment as the date of said judgment and the balance thereof shall stand as the final judgment of said cause and shall be of full force and effect.
“It is further ordered that as provided by statute, plaintiff shall at this or the next subsequent term of this court, file her election in writing whether she will repossess herself of said premises or abandon the same to defendants and take the value of her interest therein as herein fixed and determined.
“It is further ordered and adjudged by the court that the entry of this order shall operate as the entry of a new judgment as of the date of the judgment heretofore entered in said cause, and that said defendants are entitled to an order staying proceedings in said cause for a period of twenty days from the date hereof, according to the statute and practice of this court.”

Plaintiff thereupon filed a remittitur for $270.11.

It may be assumed that the William L. Schweitzer, mentioned by the court, is the child William mentioned in the deed to plaintiff, of September 8, 1903, as she testified that the child referred to in the deed was her son.

Defendants duly excepted to this order contingently denying their motion for a new trial, and removed the case to this court by assignments of error, claiming reversal especially upon the following grounds:

“1. Because the court erred in denying the motion for new trial, which raises the question of the failure of the verdict to specify the estate, or right, which the plaintiff established on the trial in the premises described in her declaration in accordance with paragraph 7, of section 10974, of the Compiled Laws of 1897, being section 13190, of the Compiled Laws of 1915.
“2. Because the court erred in directing a verdict for plaintiff on her uncorroborated testimony as to her age.”

The only reference to this chancery case between plaintiff and her son appearing in this record is as above quoted from the reasons of the court for conditionally denying defendants’ motion. It certainly was not before the court and jury when this case was tried, nor when verdict and judgment were rendered and entered, for no such suit was then in existence. The record does not show the date of trial in this case but judgment was entered on January 27, 1916. Defendants’ motion for a new trial was filed February 15, 1916, and decided December 31, 1917. Defendants were not parties to the chancery suit which was put through the court to a decree in the meantime, and could not be bound by it. Whether the court assumed to take judicial notice of it in this case or it was presented by plaintiff in a delayed opposition to the motion for a new trial is but conjecture, and immaterial. Neither is it disclosed how the court arrived in this case at the value of William L. Schweitzer’s contingent remainder as $270.11. The mortality tables were not introduced and there is no evidence in the record of his or her expectancy of life. That matter was not presented to the court by either party, for the trial proceeded upon the theory and plaintiff’s claim in her declaration that she was the owner in fee. Her estate was not, however, determined or specified as the statute requires either in the verdict or judgment thereon. Section 13190, 3 Comp. Laws 1915, dealing with verdicts in ejectment cases, provides in paragraph 7 as follows:

“The verdict shall also specify the estate or right which shall have been established on the trial, by the plaintiff in whose favor it shall be rendered, whether such estate be in fee, or for his own life, or for the life of another, stating such lives, or whether it be a term for years, or otherwise, and specifying the duration of such term.”

This provision is mandatory. Any verdict and judgment thereon not in compliance with, or authorized by, this statute cannot be sustained; Shaw v. Hill, 79 Mich. 86. In all cases the verdict must specify the estate or right belonging to the plaintiff whether in fee or for life, or otherwise, as the statute requires; Michigan Cent. R. Co. v. McNaughton, 45 Mich. 87; Kinney v. Harrett, 46 Mich. 87. Under our statute actions in ejectment are not only possessory, but may and often do detérmine the title to land, which renders it of especial importance that, as the statute' directs, the nature of the interest or ownership of the plaintiff in whose favor a verdict is rendered shall be distinctly stated.

This case had been tried, had terminated in a verdict and judgment and the jury had.been discharged when defendants filed their motion for a new trial with reasons therefor. They were entitled to have it determined on the record as it then stood. A subsequently begun and tried chancery suit to which defendants in this action were not parties cannot be utilized to cure such defective verdict in ejectment.

Plaintiff’s claim to the property was planted wholly upon the proposition that the deed to it which she gave her father was void, or voidable, because she was then a minor. That was a controlling question of fact with the burden of proof resting upon her. She was the only witness as to her age. That she could testify as to her age, although necessarily by hearsay evidence, is not to be doubted (Cheever v. Congdon, 34 Mich. 296), but she testified that she relied for her knowledge upon what she saw in a bible in existence and in the possession of her father, who was yet living. Neither her father nor the bible was produced. Defendants questioned her testimony and at least had the right to have that fact determined by the jury and the value of her evidence determined by them. The court took that question from the jury, passed upon her testimony and found that the deed was void because she was a minor. In the absence of such vital fact being conceded, even though the testimony should and probably would satisfy any one required to decide, its determination should be submitted to the jury. In Woodin v. Durfee, 46 Mich. 424, this court said, speaking through Justice Cooley:

—“but evidence is for the jury, and the trial judge cannot draw conclusions for them. It is said that on some points there was no evidence of a conflicting nature; but that does not aid the claimant. A jury may disbelieve the most positive evidence, even when it stands uncontradicted; and the judge cannot take from them their right of judgment. If they return what he thinks is a perverse verdict, he may set it aside and order a new trial; but he cannot take upon himself their functions as was done here.”

For the reasons, above given the judgment is reversed with costs and a new trial granted.

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


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    GILBERT v. STICKLEY.
    1. Master and Servant — Contracts—Trial—Evidence — Burden of Proof — Question for Jury.
    In an action for breach, of contract of employment, where plaintiff’s claim was contradicted by defendant, there being only the two witnesses, whether plaintiff has sustained the burden of proof, held, a question for the jury.
    2. Trial — Special Questions — Conclusiveness.
    It was not error for the court below to refuse to submit special questions which were not plain and unambiguous and not conclusive of the real issue involved.
    3. Same — Based Upon Pacts.
    A special question not based upon the claimed facts in the case was properly refused.
    4. Same — Evidence—Question for Jury.
    Contradictory testimony as to whether certain stock, promised to plaintiff by defendant, was to be charged to expense account when issued or was to be paid for out of dividends, presented a question for the jury.

      Error to Kent; Brown, J.
    Submitted October 24, 1918.
    (Docket No. 43.)
    Decided December 27, 1918.
    Rehearing denied May 1, 1919.
    Assumpsit by Andrew J. Gilbert against Albert Stickley for breach of a contract of employment. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Francis D. Campau, for appellant.

      II. Monroe Dunham (Joseph T. Riley, of counsel), for appellee.
   Kuhn, J.

This action is brought to recover damages which the plaintiff claims to have sustained by reason of a breach of contract on the part of the defendant. On or about October 12, 1915, the defendant, Albert Stickley, was the controlling owner of the Gogebic Lumber Company, at Pentoga, Michigan. At about that time he entered into an arrangement with one Montambo, who owned a logging equipment and a mill, to begin logging operations on a tract of land owned by the Gogebic Lumber Company. Plaintiff was at that time an office employee of Stickley Brothers Company, in which the defendant, Albert Stickley, also owned a controlling interest. Messrs. Stickley and Montambo made an arrangement to organize as a company, to be known as the Presque Isle Lumber Company, an operating company, which was to get logs from the Gogebic Lumber Company at a stump-age rate, and manufacture lumber. The company was organized on December 13, 1915, with three stockholders, with a capital stock of $100,000; $25,000 of this stock was taken by Mr. Montambo; $25,000 by Mr. Stickley, and one share was given to plaintiff as the third incorporator. Plaintiff was elected secretary of the company and went to Pentoga and there assumed the office management of the Presque Isle Lumber Company, Mr. Montambo being the practical operator in the woods. The 'operations of the company were closed about the middle of January, and. the plaintiff remained at Pentoga, closing up the affairs of the company, until February 16th, when he returned to Grand Rapids, Michigan, and was employed in the office of Stiekley Brothers Company for the month of February, and about the first of March he was notified by the defendant here that his services would be no longer needed. He was paid up to the first of March. It is the plaintiff’s claim that on the 12th of December, 1915, the day before the organization of the company, the defendant personally, at the office of the Presque Isle Lumber Company, made an arrangement with the plaintiff by which it was agreed that the plaintiff was to have a salary of $3,000 in cash for the period from December 12, 1915, to December 1, 1916, and, in addition,. was to receive from the defendant $5,000 worth of the stock of the Presque Isle Lumber Company. From the time the plaintiff left the Stiekley Brothers Company, in October, 1915, and went to Pentoga, he received a salary of $250 a month on checks of Stiekley Brothers Company, which money was charged to the account of the defendant, and the defendant continued to pay the salary of $250 a month to the plaintiff from October, 1915, until plaintiff was informed by the defendant, on March 1, 1916, that there was no further work for him. Five thousand dollars of the stock of the Presque Isle Lumber Company was never delivered to the plaintiff, and he claims to have been unable to obtain employment from March 1st until December 1, 1916, and for claimed damages thus resulting, this suit was brought and resulted in a verdict for the plaintiff in the sum of $2,383.75.

The first claim here urged by defendant’s counsel is that the court, as a matter of law, should have directed a verdict for the defendant because the plaintiff has not sustained the burden of proving by the preponderance of evidence an affirmative case against the defendant. The claim of the. plaintiff as to the agreement was contradicted by the defendant, and there were only the two witnesses. The defendant claimed that with reference to this contract, he was acting for the Presque Isle Lumber Company, but in view of the fact that plaintiff’s name was never on the pay-roll of the Presque Isle Lumber Company and that he was actually paid up to March 1, 1916, either by check of Albert Stickley or by check of Stickley Brothers Company, which was charged to Stickley, the question of fact raised by the dispute in the testimony, in our opinion, was fairly a question for the jury to determine.

At the close of the testimony, counsel for defendant requested the court to submit to the jury the following three special questions:

“1. Was the salary of the office manager and secre- • tary of the Presque Isle Lumber Company to be paid by Albert Stickley personally?
“2. Was the salary of the secretary and office manager of the Presque Isle Lumber Company, including the stock, to be paid from the earnings of the company?
“3. Was there any other service on the part of A. J. Gilbert in the minds of the parties on December 12th than his service with the Presque Isle Lumber Company?”

The court refused, to submit these questions. In order that questions of this kind can, under the decisions of this court, be submitted to the jury, they must be plain and unambiguous and call for findings on questions of fact which are conclusive of the real issue involved in the case. See section 12611, 3 Comp. Laws 1915; Crane v. Reeder, 25 Mich. 303; Fowler v. Hoffman, 31 Mich. 215; Foster v. Gaffield, 34 Mich. 356; Sherwood v. Railway Co., 82 Mich. 374; Zucker v. Karpeles, 88 Mich. 413; Cousins v. Railway Co., 96 Mich. 386; Ward v. Campau, 161 Mich. 85; Keeley v. Stratton, 185 Mich. 409. Upon examination of these questions, we are of the opinion that the court was justified in not submitting them, because they were not so clear and unambiguous as to warrant their submission to the jury. It is not clear in the first question whether the word “salary,” as referred to in the question, was to include, not only the $3,000 in cash, but also the stock issue, and both of these items of plaintiff's claim were submitted to the jury under proper instructions. The second question is also subject to the infirmity that it is not based upon the claimed facts in the case, because, as we understand the defendant’s claim, it is not urged that the salary, that is, the $3,000 cash, was to be paid out of the earnings of the company, although it is claimed by the defendant that the stock was to be paid out of such earnings. A decision of the third question would also not be conclusive of the question here involved. We therefore find no merit in the appellant’s contention that the court erred in not submitting these questions.

Defendant’s fourth request to charge reads as follows:

“4. The undisputed testimony shows that the $5,000 stock in the Presque Isle Lumber Company was not to be furnished from the stock held by Mr. Stickley nor to be purchased for the plaintiff by the defendant, but was to be set apart by the company to be paid for by the earnings of the company, and therefore as to the portion of the claim that relates to the $5,000 stock you will find for the defendant, no cause of action.”

The court’s refusal to give this charge as. requested is next alleged as error. An examination of the testimony of the plaintiff is rather confusing as to what his real idea was as to this $5,000 of stock. While on direct examination he did testify that the stock was to be paid out of the earnings of the company, later on in his examination he stated that under the ordinary course of accounting, when this stock was issued, it would be charged to an expense account, which would be treated as any other expense account and deducted from the gross earnings in computing the earnings for a given period, and that it was not his understanding that the stock was to be paid out of dividends earned. We are of the opinion that there was sufficient dispute as to this claim in the testimony as to present a question of fact for the jury, and that therefore the court did not err in refusing to give the request as presented.

We are unable to find any error, and therefore feel constrained to affirm the judgment.

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


text:
    NELSON v. IRONWOOD & BESSEMER RAILWAY & LIGHT CO.
    1. Master and Servant — Common Carrier Railroad — Street Railways — Federal Employers’ Liability Act.
    A street railway company engaged in transporting passengers from one State into another is a “common carrier hy railroad” within the meaning of the Federal employers’ liability act. 35 U. S. Stat. 65.
    2. Same — Commerce—Interstate Commerce.
    A motorman on a street car whose run was wholly within the limits of one State, but who, when his run was completed, turned his car over to another crew who took it across the line into another State, was engaged in interstate commerce within the meaning of the Federal employers' liability act, since the car upon which he was employed was an instrumentality engaged in interstate commerce.
    3. Same — Personal Injuries — Federal Act — Defenses — Contributory Nesmsence.
    Where a servant’s action for personal injuries was submitted on the erroneous theory that the Federal employers’ liability act did not apply, and defendant was thereby deprived of the defense of plaintiff’s contributory negligence, which, under the facts, was a question for the. jury, reversible error was committed.
    4. Same — Workmen’s Compensation Act — Settlement.
    An agreement for compensation to an injured servant was. not binding upon him where the master had not elected, to come under the workmen’s compensation act.
    5. Same — Release—Return of Money — Bar to Action.
    Plaintiff’s failure to return certain payments received was-not a bar to an action for personal injuries, as a matter of law, where he claimed he did not understand they were paid in settlement of defendant’s disputed liability.
    Error to Gogebic; Cooper, J.
    Submitted October 11, 1918.
    (Docket No. 47.)
    Decided December 27, 1918.
    Rehearing denied May 1, 1919.
    Case by Victor O. Nelson against the Ironwood & Bessemer Railway & Light Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Charles M. Humphrey (Sanborn, Lamoreaux & Pray, of counsel), for appellant.

      James A. O’Neill (S. G. Nelson, of counsel), for appellee.
   Kuhn, J.

The defendant is a corporation admitted to do business in both Michigan and Wisconsin, and at the time of the accident which gives rise to this litigation, was operating a street railway and interurban system, the entire system extending from the city of Bessemer, as its eastern terminus, in the State of Michigan, to the village of Gile, Wisconsin,.as its western terminus. Its tracks were laid along the main streets of the city of Ironwood, Michigan, and the village, of Hurley, in the State of Wisconsin. It operated interurban cars from the city of Bessemer to a point in the city of Ironwood, a short distance east of the State line. It also operated cars, designated as local cars, from Jessieville, a suburb within the city limits of Ironwood, through the city of Ironwood, through Hurley, Wisconsin, to Gile.

The plaintiff, at the time of the accident, was employed as a motorman on one of the city or local cars. His employment was limited to the city of Ironwood, and he commenced his run at a point in that city, took his car on a trip eastward through the city to the eastern terminal of the line at Jessieville and returned to the point at which he took charge, being at all times in the city of Ironwood. When he completed his run through the city of Ironwood, the car was turned over to atiother crew, the conductor on the plaintiff’s run becoming the motorman, and the car was then taken on a trip across the line into Hurley, Wisconsin, and return.

On the night of the accident, at about 8:30 in the evening, the plaintiff had taken his car on the trip through Ironwood to the eastern terminal of the line and was returning without any passengers. As the car turned the corner of Ayer and Marquette streets in the city of Ironwood, the trolley pole came off the trolley wire, and, as was his duty, he went to the rear of the'car with reference to it. In replacing the trolley pole, it was necessary for him to stand between the rails of the track in the rear of his car and manipulate a rope that was attached to the trolley pole. As he was in the act of replacing the trolley pole, an interurban car approached rapidly from the rear and collided with his car, which resulted in the plaintiff being caught between the cars and severely injured, and as a result he lost his left leg at the thigh.

At the time of the accident the defendant railway company had not elected to come under the State workmen’s compensation law, and this action, was brought to recover damages as a common-law action, resulting in a verdict for the plaintiff in the sum of $12;500.

At the time the plaintiff was injured, he was 21 years of age and had resided in the United States a little over two years, having immigrated from Sweden, and it is claimed that he was unable to speak or read the English language and could understand but little of it. The defendant, on the trial, pleaded settlement and release, and there was offered and received in evidence on the trial, over the objection of plaintiff’s counsel, an instrument purporting to be an agreement in regard to compensation, signed by the plaintiff and bearing date of November 1, 1916, seven days after the accident. This agreement was made out on the usual blank form used by the industrial accident board. The defendant at the time of the accident was not subject to the provisions of the workmen’s compensation act and did not elect to come under that act for several months thereafter. This paper was signed by plaintiff while he was confined in the hospital, and about a month later he received a check for a little over $8, and thereafter he was paid about $16 every two weeks until the following March, a period of about three months. After he had consulted his counsel, he was advised to no longer accept payments and did not accept any money thereafter.

The questions which are raised by defendant’s counsel are discussed in their brief and were discussed on the argument under three heads, as follows:

“(1) That the parties to this action, at the time of the accident, were subject to the rule of liability established by the Federal employers’ liability act, and that the case was improperly submitted to the jury upon the theory that the defenses were taken away.
“(2) That the settlement agreement having been entered into in good faith and the plaintiff, having received payments on that settlement after discovering that the defendant was not under the Michigan workmen’s law, ratified and confirmed the settlement agreement.
“(3) That the plaintiff could not maintain his action without returning or offering to return to the defendant the money received by him and the money paid for him under this settlement agreement.”

1. Is the defendant a “common carrier by railroad” within the meaning of the Federal employers’ liability act? (35 U. S. Stat. 65). In the determination of this question, and in attempting to ascertain what the legislative intent of congress was in passing the act in question, we will necessarily be governed by the Federal decisions. Whether or not it was within the legislative contemplation that the word “railroad” was to include a street railroad must be determined by construing the statute as a whole. Plaintiff’s counsel strongly urge that it was not the intention of congress by this act to legislate with reference to the employees of purely local street railways which might be engaged in interstate commerce, and cite, in support of their contention, the case of Omaha, etc., R. Co. v. Interstate Commerce Commission, 230 U. S. 324 (33 Sup. Ct. 890, 46 L. R. A. [N. S.] 385), where the court construed the act to regulate commerce, and the question was whether street railways became subject to its provisions and under the jurisdiction of the interstate commerce commission. Mr. Justice Lamar, in writing the opinion for the court in that case, showed the distinction between ordinary street railways and commercial railroads, and reviewed the act, and concluded, from its entire context and from provisions therein contained which were peculiarly applicable to commercial railroads and not to street railways operating only on the. streets of cities and villages, that it was not the intent of congress to include purely street railways within the provisions of that act. An examination of the Federal employers’ liability act, however, does not, in our opinion, call for the drawing of any such distinction, and, as was sjtid by Mr. Justice Clarke in reference to the Omaha Case, supra, in the more recent case of Washington Ry. & Elec. Co. v. Scala, 244 U. S. 630 (37 Sup. Ct. 654):

• “The case is of negligible value in determining either the construction of the act we are considering in this case (employers’ liability act), or the classification of the defendant, which clearly enough is a suburban railroad common carrier of passengers within the scope of the Federal employers’ liability act, as is sufficiently decided by United States v. Railway Co., 226 U. S. 14 (33 Sup. Ct. 5); Kansas City Western R. Co. v. McAdow, 240 U. S. 51 (36 Sup. Ct. 252); Spokane, etc., R. Co. v. United States, 241 U. S. 344 (36 Sup. Ct. 668), and Spokane, etc., R. Co. v. Campbell, 241 U. S. 497 (36 Sup. Ct. 683).”

It seems to us clear that the purpose and intent of the Federal employers’ liability act was to establish throughout the United States a uniform rule of broad liability on the part of common carriers by railroad'to their employees for negligent personal injuries, in so far as, and to the full extent to which the regulative power of congress extends, in order that the legal status of such employers’ liability for negligent injuries inflicted upon an employee* while both employer and employee are engaged in interstate commerce, instead of being subject to the uncertainty of varying rules depending upon the particular locality in which the accident may chance to occur, may be fixed by a single rule, and by such a rule, moreover, as will tend to impel such carriers to avoid, or prevent the negligent acts and omissions for which the statute gives the right of recovery, .thereby promoting not only the safety of the employees, but also, as a necessary consequence, the safer and less impeded transportation of the objects of commerce, whether freight or passenger. If any distinction whatever can be drawn between street railways and other railroads in any respect that can fairly be claimed to have a possible bearing on the question of the legislative intent of congress as to the inclusion or exclusion of the former class of carriers, the difference, we are convinced, will be found to be merely one of degree and not of kind. No substantial reason suggests itself to us why the safe and unimpeded transportation of passengers from one State into another on a local street railway line operating solely over city streets, and the safety of the employees of such a railway, should not have been objects of solicitude on the part of congress as well as the like beneficial results in connection with other forms of interstate railroad transportation. Nothing in the terms and provisions of the act indicates a design to exclude street railways. Every provision of the act is as applicable to a purely street railway carrier whose lines extend from one State into another, as to an interstate suburban electric railroad or an interstate steam railroad.

In the case of Arends v. Railway Co., 172 Mich. 448, this court had under consideration an act of our legislature, the title of which was “An act to prescribe the liability of common carrier railroad companies to their employees,” and the express language of section 1 of the act made it applicable to “every common carrier railroad company in this State.” (2 Comp. Laws 1915, § 5496). It was determined in that case that the term “railroad” was broad enough to include street railways.

In our opinion, it must be said that it was the intent of congress by the act in question to include street railways that were engaged in interstate commerce, and therefore, if it can be said that the plaintiff was engaged in interstate commerce at the time of the accident, his action should have been brought under the Federal act. See South Covington, etc., R. Co. v. Finan’s Adm'x, 153 Ky. 340 (155 S. W. 742); Kiser v. Railway Co., 188 Mo. App. 169 (175 S. W. 98).

It is the contention of plaintiff that even if it should be held that the defendant, in the operation of its street railway, was under the Federal act, plaintiff was not at the time of the accident engaged in interstate commerce and was not, therefore, subject to the provisions of that act. With this contention we cannot agree. In the instant case the street car upon which the plaintiff was employed was an instrumentality clearly engaged in interstate commerce, and the case comes within the test laid down in Shanks v. Railroad Co., 239 U. S. 556 (36 Sup. Ct. 188, L. R. A. 1916C, 797), where it is stated that the question is:

“Was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?”

The car upon which the plaintiff was employed went from one State into the other, and the plaintiff being employed thereon, the case is clearly within the test above set forth, and it must, therefore, be said that he was engaged in interstate commerce. See, also, North Carolina R. Co. v. Zachary, 232 U. S. 248 (34 Sup. Ct. 305, Ann. Cas. 1914C, 159); Spokane, etc., R. Co. v. Campbell, 241 U. S. 497 (36 Sup. Ct. 683); Western Oil Refining Co. v. Lipscomb, 244 U. S. 346 (37 Sup. Ct. 623); South Covington, etc., R. Co. v. City of Covington, 235 U. S. 537 (35 Sup. Ct. 158, L. R. A. 1915F, 792); Moliter v. Railroad, Co., 180 Mo. App. 84 (168 S. W. 250).

It is next contended by counsel for plaintiff that, while under the State law the defenses of negligence of fellow-servant, contributory negligence, and assumption of risk were not open to defendant, nevertheless there was no prejudicial error committed in submitting the case on the theory that the case was not subject to the Federal act, because, under the facts in this case, the defendant was not deprived of making any defense that it could have made under the Federal act, and it is therefore contended that even if it should be held that the plaintiff was subject to the Federal act, the judgment should be affirmed. With this contention we cannot agree, because, under the Federal act, the question of plaintiff’s contributory negligence might properly be submitted to the jury as affecting the question of damages, and we are impressed that, under the facts of this case, the question was one of fact, and would necessarily be submitted to the jury.

2. With reference to the agreement in regard to compensation, which it is claimed the plaintiff signed following the accident, we are of the opinion that it should not be held as a bar to this action. In accepting these compensation checks, plaintiff testified that he did not know, and was not told, what they were for, and that he assumed that they were probably club money, as he had worked on a railroad in the old country where a fund was provided by the employees for such contingencies. At the time that the so-called release agreement was signed, the defendant had not elected to come under the workmen’s compensation act, and the agreement, therefore, was not binding upon the plaintiff at the time it was executed. See Bernard v. Traction Co., 188 Mich. 504. The court, at the request of the defendant, charged the jury that if they found that the agreement in regard to compensation was a mutual agreement and the parties understood each other, or if the plaintiff after-wards ratified the agreement by his action and intent to release the defendant, the plaintiff would be bound by it, and it would be an absolute release. This was as favorable an instruction as the defendant was entitled to. Plaintiff’s testimony tended to show that his signature to the instrument was obtained by false and fraudulent representations, and even if it purported to be a release or could be construed to be a release if entered into fairly and understandingly, in our opinion the jury was warranted, under the testimony and the charge of the court, in finding that it was not binding upon the plaintiff.

3. Neither are we of the opinion that, because of the claim that it was not understood by the plaintiff that the amounts received were in settlement of the disputed liability, it follows as a matter of law that a return of the money was necessary. The question was in dispute and should be submitted to the jury. See Brown v. Railroad Co., 183 Mich. 574.

Under the declaration filed in this cause, the court should have granted the motion made by the defendant that the plaintiff had not made out a case, as he had elected to stand on his common-law action, it appearing that the parties to the action were both subject to the Federal employers’ liability act.

For these reasons the judgment' must be reversed and a new trial granted.

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


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    KANE v. DETROIT LIFE INSURANCE CO.
    1. Trial — Directed Verdict — Questions for Jury — Waiver.
    The presentation to the court of requests to charge negatived any intent on the part of counsel to waive the right of his client to have the jury pass on the questions of fact involved, although he had expressed the opinion that the court should direct a verdict.
    2. Insurance — Solicitor Agent of Insurer — Statutes.
    Under section 9305, 2 Comp. Laws 1915, the person soliciting an application for insurance must be regarded as the agent of the company and not of the assured, in any controversy arising between them.
    3. Same — False Statements — Fraudulent Intent — Silence.
    Retention of insurance policies by assured for seven months with application attached containing false statement that he had never been rejected by any other company, held, to be persuasive proof of fraudulent intent, assured having remained silent.
    4. Same — Notice—Estoppel.
    If the insurance company, through its officers, had actual knowledge of the fact that assured had been rejected by another company, a false statement in the application that he had never been rejected would become immaterial.
    5. Same — False Statements — Connivance of Agent.
    An .insurance company is not bound by statements contained in an application, when not only the agent, but the assured, knows they are untrue, and calculated to deceive, and the application is to be forwarded to the company as the basis of its action.
    6. Same — Notice— Question for Jury.
    In an action on insurance policies, defended on the ground of false statements in the application by assured, disputed testimony as to actual knowledge by the company, through its officers, that the statements were false, held, to present a question for the jury.
    Error to Wayne; Davis, J., presiding.
    Submitted October 16, 1918.
    (Docket No. 75.)
    Decided December 27, 1918.
    Assumpsit by Sam Kane and another against the Detroit Life Insurance Company on certain policies of insurance. Judgment for plaintiffs on a directed verdict. Defendant brings error.
    Reversed.

      Frank H. Watson (M. J. Cavanaugh, of counsel), for appellant.

      Drook & Kaufman (Fred H. Aldrich, of counsel), for appellees.
   Kuhn, J.

In this action it is sought to recover on two policies of insurance issued by the defendant upon the life of one Isrel Kane on November 26, 1915. In the application for insurance the applicant certified that he had read all the statements and answers in the application and agreed, on the part of himself and any person who may claim under the policy, that all the statements and answers so made, and all that may be made to the medical examiner in continuation of the application, are full, complete and true and are representations made as inducements to the issuing of the policy. He was subsequently examined by the company’s medical examiner, and upon the strength of the application and this examination the two policies here in suit were issued. The plaintiffs are the sons of the insured and beneficiaries under these policies. The defendant filed a plea of the general issue, to which notice was attached to the effect that false and fraudulent statements were made to it in the application of insured and false and fraudulent statements were made in the statements to the medical examiner, referring to the following question and answer which occurred in the application:

“Has your application for life insurance ever been declined or postponed by any other company or fraternal organization? No.”

—and the following in the medical examiner’s report:

“Have you ever been declined or postponed by any life company? (If so, give name of company.) No.”

The defendant in its notice alleges the falsity of these statements and charges the truth to be that the insured had made application to, and was declined by, the New York Life Insurance Company, November 16, 1915, and claimed that because of these false statements made in the application and to the medical examiner, the policies issued thereunder are void and not collectible. Isrel Kane, the insured, died June 27, 1916, some seven months after the policies were issued, and it is the claim of the defendant that the defendant first discovered that the statements made by the insured in his application and statement to the medical examiner were false, after that time. It is admitted that Kane had made an application to the New York Life Insurance Company, and the proofs show that he had been rejected by the company and that he had received this information prior to his making application for insurance to the defendant company. The testimony further discloses that the application for insurance was written by one Herman Solomon, who at that time was agent for the New York Life Insurance Company, and was the agent who had written the application for Isrel Kane in that company, which had been rejected. Solomon was called as a witness for the plaintiffs, who claimed the right to cross-examine him as though he were the agent of the defendant company, which agency was denied by the defendant, the defendant claiming that Solomon never was an agent of the company and never was authorized to write insurance for said company by any person empowered to authorize it. It appears that the application, in. most of its parts, is in the handwriting of Solomon, and was signed, as agent, by Jacob Meltzer,' a general agent of the company. The testimony of Solomon shows that he took the application to the insured, who signed it before the same was filled out, and it is his claim that he filled out a part of it and that the other portions thereof were filled out by a Miss Herber, who was the secretary of Mr. Meltzer, and that the insured never signed the application at all, but merely signed a blank, and that it was fixed up entirely by himself and Miss Herber. This statement is denied by Miss Herber in her testimony. It is his claim that the false answer to the statement complained of by the defendant, purporting to have been made by the insured in his application, .was answered in that way for the reason that Miss Herber told him that it made no difference; that the Detroit Life Insurance Company was not interested whether he had ever been rejected or not, which statement is also denied by Miss Herber. A copy of the application and medical examination was attached to the policy and made a part thereof. Plaintiffs further claim that the insured could neither read nor write, and the testimony of Solomon showed that Meltzer was informed, prior to the making of the application by the insured, that the insured had been rejected by the New York Life Insurance Company prior to his application to the defendant company, which testimony is denied by Meltzer. There is also some testimony given by Mr. Solomon to the effect that Mr. Baty, the secretary of the company, had' knowledge that the insured was a rejected risk before the delivery of the policies to the insured, which testimony is denied by Baty. Solomon's testimony further showed that he had been requested by Meltzer to bring risks rejected by the New York Life Insurance Company, upon applications secured by him, to the defendant company, and that it was pursuant to this arrangement that the application of the deceased was brought to the defendant company. The insurance of Isrel Kane went onto the books of the company as the business of Meltzer, the city manager for the company, but Solomon was paid the regular commission paid to subagents of the company, and the books of the company showed the payment of this commission to Solomon.

At the close of the proofs, the following colloquy was had between the court and counsel:

“The Court: Anything further?
“Mr. Watson: Nothing on our part.
“The Court: Nothing further on your part?
“Mr. Aldrich: No, your honor.
“The Court: Gentlemen, you may be excused for a few moments until I call you in.
“The Court: I know the counsel upon- both sides asked for directed verdict.
“Mr. Aldrich: I know we did, your honor.
“Mr. Watson: I don’t think it should go to the jury.”

Here followed a discussion between the court and counsel for the respective parties, and thereupon defendant’s counsel presented certain requests to charge, the fourth of which read as follows:

“If you find from the evidence in this case that Isrel Kane made application for insurance in the defendant company and before the policy was written .appeared before the medical examiner and there answered the questions propounded to him by the medical examiner and therein stated ‘No’ in reply to the question ‘Have you ever been declined or postponed by any life company; if so give the name,’ and if you find that he answered this question in the manner above, that answer was a misstatement and was a fraud upon the company; and if you find that the company had no knowledge that the answer was fraudulent and false, the plaintiffs in this case cannot recover, it being entirely immaterial that Mr. Solomon knew that it was false. The knowledge of Mr. Solomon cannot be imputed to the company, he being a party to the fraud and apparently anxious to put through the insurance. And it is immaterial as to whether he will be deemed an agent of this company, or not, for the reason that an agent cannot co-operate with an applicant in perpetrating a fraud on the company and later on have the fraudulent act of the agent used for the purpose of excusing the applicant for making untruthful statements in his application for the insurance and in his examination by the medical examiner.”

The court, however, directed a verdict for the plaintiffs, and counsel for appellees now say that the appellant is precluded from raising any question as to the nonsubmission of a question of fact to the jury, in view of the dialogue which occurred between the court and counsel, above set forth, and the following Michigan cases are relied upon: Culligan v. Alpern, 160 Mich. 241; Germain v. Loud, 189 Mich. 38; Kyselka v. Assurance Co., 194 Mich. 430. The presentation to the court of the request to charge above set forth must be said to have negatived any intent on the part of counsel, if his statements to the court are to be so construed, to waive the right of his client to have the jury pass on the questions of fact involved in the controversy. In our opinion, this record clearly raises such questions of fact.

Section 9305, 2 Comp. Laws 1915, reads as follows:

“Any person who shall solicit an application for insurance upon the life of another shall, in any controversy between the assured or his beneficiary and the company issuing any policy upon such application, be regarded as the agent of the company and not the agent of the assured.”

We can, therefore, assume that by virtue of this, statute, so far as any controversy is concerned between the assured, or his beneficiary, and the company issuing the policy upon such application, the person soliciting the application must be regarded as the agent of the company and not the agent of the assured. Plaintiffs further claim that the offer by an agent duly authorized to write insurance for one company, of a rejected risk to another company is a perfectly legitimate transaction, even though he had no license from the last named company, by virtue of section 6, Act No. 124, Pub. Acts 1915 (2 Comp. Laws 1915, § 9144), which reads as follows:

“Any authorized agent of an insurance company transacting business in this State shall have the right to procure the insurance of risks or parts of risks, that have been refused by companies represented by him, in other like companies duly authorized to transact business in this State, but such insurance shall only be consummated through a duly licensed resident agent of the company taking the risk: Provided, however, That nothing herein contained shall be deemed to authorize the conducting of any insurance brokerage business in this State.”

It conclusively appears that Solomon was not a regularly appointed agent for the Detroit Life Insurance Company and had no certificate of authority to act as its agent, and that being the case, the only business he could legally do for the Detroit Life Insurance Company would be to procure the insurance of risks, or parts of risks, that had been rejected by the companies represented by him, duly authorized to transact business in this State, and such insurance could only be consummated through a duly licensed resident agent of the company taking the risk. Whether or not the defendant company had knowledge that Kane had been rejected by any other insurance company was a question of fact for the jury, and the testimony is at variance in the record on this point, Solomon testifying that the officers of the company had such knowledge, and Meltzer, Baty and Miss Herber contradicting him with reference to his claims thereto. Whether Kane actually knew of the false statements in his application and signed statement to the medical officer becomes immaterial, he having had them in his possession, as a part of the policies, for seven months, and it was his duty to know that the representations therein contained and which constituted the inducement for the issuance of the policies, were true. Silence during the life of the policy has been held to be persuasive proof of fraudulent intent. See Metropolitan Life Ins. Co. v. Freedman, 159 Mich. 114 (32 L. R. A. [N. S.] 298), and cases therein cited. If the jury should find that the defendant company, through its officers, Meltzer and Baty, had actual knowledge of the fact of Kane being a rejected risk in any other company, the false statement relied upon would become immaterial, but even under the theory advanced by counsel for plaintiffs, that Solomon, by virtue of the statute (2 Comp. Laws 1915, § 9305), above set forth, became, so far as this controversy is concerned, an agent for the defendant company, and he having full knowledge of the false statements, still his knowledge should not be imputed to the defendant company.

The rule sustaining this conclusion was announced in Ketcham v. Accident Ass’n, 117 Mich. 521, and is there thus stated:

"The courts have always been anxious to take care of the rights of the assured when the applicant has relied upon the agent informing the company what had been truthfully told to him about the character of the risk; but the courts never have said the company is bound by statements contained in an application, when not only the agent, but the assured, knows they are untrue, and calculated to deceive, and the application is to be forwarded to the company as the basis of its action. To so hold would put these organizations completely at the mercy of dishonest and unscrupulous agents.”

See, also, Haapa v. Insurance Co., 150 Mich. 467 (16 L. R. A. [N. S.] 1165, 121 Am. St. Rep. 627).

We are of the opinion that these questions of fact should have been submitted to the jury and that'at least the substance of the fourth request to charge should have been given to the jury for determination..

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

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


text:
    PEOPLE v. FITZGERALD.
    1. Criminal Law — Trial—Instructions—Silence of Defendant —Receiving Stolen Goods.
    In a prosecution for receiving stolen property, testimony by the chief of police that when defendant was brought in witness told him he was in wrong, and asked if he wanted “to tell us about this,” when he responded, “I don’t want to say anything about it until I see an attorney,” held, not to warrant submission of his silence as evidence of guilt.
    2. Witnesses — Cross-Examination—Direct Examination.
    In a prosecution for receiving stolen property, where the person from whom defendant had bought the goods testified, for the purpose of showing guilty knowledge, that defendant was present when he sold some ham and bacon, which had been stolen, to third parties, who were after-wards prosecuted, it was not error to exclude testimony, on cross-examination, that said parties were acquitted on charge of receiving stolen blankets, witness having admitted, on cross-examination, that he stole the blankets. but tbe subject of tbe blankets was not gone into on either direct or redirect examination by the prosecuting attorney.

      See notes in 25 L. R. A. (N. S.) 542; 42 L. R. A. (N. S.) 889.

      Exceptions before judgment from Jackson; Williams, J.
    Submitted October 17, 1918.
    (Docket No. 114.)
    Decided December 27, 1918.
    Edward Fitzgerald was convicted of receiving stolen goods.
    Reversed.

      James J. Noon and John F. Henigan, for appellant.

      Nathan E. Bailey, Prosecuting Attorney, and M. Grove Hatch, Assistant Prosecuting Attorney, for the people.
   Kuhn, J.

The respondent was charged and convicted of having received and aided in the concealment of 2,450 cigars, of the value of $103, well knowing the same to have been stolen property. This property, it appears, was stolen by Orrin J. Robinson and Homer. Patch, both' of whom were ex-convicts. Upon the trial of the respondent, the prosecuting attorney attempted to introduce a claimed written statement of Robinson, not under oath, it being claimed that this so-called confession of Robinson was read in the presence of the respondent, Fitzgerald, after his arrest and having been taken to the police station. The introduction of this statement was objected to and the objection sustained by the court. Mr. John Hudson, the chief of police, testified on the trial that when the respondent was brought to the police station, the following brief conversation occurred between himself and respondent:

“I was at the police station when Fitzgerald was brought in by Abbott for this offense; I had a little talk with Fitzgerald; I told him, ‘Ed, you have got in wrong.’ He says, ‘It looks like it.’ I says, ‘Do you want to tell us about this?’ He says, 'I don’t want to say anything about it until I see an attorney.’ I asked him no further questions.”

On cross-examination, the witness would not say positively whether he said, “you have got in wrong,” or, “you are in trouble.” In charging the jury, the court, notwithstanding the elimination of the unsworn statement in the case, charged as follows:

“Something has been argued to you as to the silence of the respondent when he was questioned about the crime with which he is charged here. In that regard I will say to you that silence, to be equivalent to a confession, it must be shown that the accused had heard and understood the specific charge against him and that he heard it under circumstances not only permitting, but calling on him for a denial, taking into consideration all the circumstances and the persons who were present. Silence of the accused may spring from such a variety of motives, some of which may be consistent with innocence, that silence alone is very slight evidence of guilt, and aside from the inference which may arise from attendant circumstances should be received with caution as proof of guilt.
“If the respondent shall show by evidence to the satisfaction of the jury that his silence was caused for reasons or prompted by motives consistent with innocence and the accusatory statements, his silence should be disregarded.”

It is the contention of respondent’s counsel that this charge was improperly given and prejudicial to respondent’s rights, because there was no evidence in the case which would warrant the submission of the question involved to the jury. It is undoubtedly true, as contended by counsel for the people, that on the authority of People v. Courtney, 178 Mich. 150, and what seems to be the rule as stated by text book writers, there are certain circumstances where the silence of the respondent may be weighed against him. In our opinion, however, there is nothing in this reeord which would warrant the submission of this question to the jury. The respondent did not remain silent, but answered the questions that were put to him, and what he did say in response to the question as to whether he wanted to tell anything about it, was to the effect that he would say nothing further until he had seen an attorney, which rather showed dissent than assent. There were no attending circumstances which called upon the respondent to speak, and in our opinion the submission of this question, in view of the state of the record, was clearly prejudicial to the respondent’s rights. For an interesting discussion of this question in a somewhat similar case, see O’Hearn v. State, 79 Neb. 513 (113 N. W. 130).

On the trial, on cross-examination, the witness Robinson was asked by respondent’s counsel whether he had burglarized certain buildings prior to the burglary involved in this case, which he admitted. The prosecuting attorney showed on redirect examination that Robinson sold Nick LeSeno and Mary LeSeno some ham and bacon, which it was claimed was stolen, and that Fitzgerald was present at the time, and it is claimed this was brought out for the purpose of showing guilty knowledge on the part of Fitzgerald in the case under consideration. Thereupon respondent’s counsel sought to show that Mary LeSeno had been brought into the police court of Jackson prior to Fitzgerald’s trial; that she had been charged with receiving blankets stolen by Robinson; that Robinson had been a witness upon her trial; and that she had been acquitted. Upon the cross-examination of Robinson he testified that he had burglarized the residence of a man by the name of Carroll and had procured blankets therefrom, and that he claimed that he had sold the same to Mary LeSeno. It appears, however, that the prosecuting attorney did not ask Robinson about the disposition of the blankets procured in the Carroll burglary, either on direct or redirect examination. We are, therefore, of the opinion that there was no error in the court excluding the testimony with reference to the acquittal of Mary LeSeno on the charge of having received the property from this burglary, the subject-matter of which was not gone into on the direct or redirect examination by the- prosecuting attorney.

The claim is also made that the argument of the prosecuting attorney to the jury, and also certain questions asked by the prosecuting attorney of a witness while on the stand, were prejudicial to respondent. Objection was promptly made by respondent’s counsel, and the court sustained his position with reference to these matters, and therefore they will in all likelihood not occur .again upon a new trial.

Because of having given the charge to the jury as to the silence of the respondent, which, in our opinion, as we have said, was prejudicial to the respondent, and which must therefore be said to have resulted in a miscarriage of justice (see People v. De Meaux, 194 Mich. 30), the conviction must be, and is hereby, reversed and the respondent granted a new trial.

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


text:
    SUFFROUW v. BREWER.
    1. Waters and Watercourses — Prescription—User.
    A prescriptive right to tlie flow of water can be acquired by 20 years of user.
    2. Same — Prescription—Diversion op Water — Injunction.
    On a bill to enjoin, defendants from diverting water in a stream from plaintiffs’ land, evidence helé, to justify tbe conclusion of tbe court below that plaintiffs were entitled to one-balf tbe water in tbe stream, it having been so divided for more than 40 years.
    See notes in 59 L. R. A. 79, 838.
    Appeal from Kent; Barton, J., presiding.
    Submitted October 23, 1918.
    (Docket No. 59.)
    Decided December 27, 1918.
    Bill by Fred Suffrouw and others against Joseph Brewer and others to enjoin the diversion of water from plaintiffs’ farms. From a decree for plaintiffs, defendants appeal.
    Affirmed.

      Hatch, McAllister & Raymond, for plaintiffs.

      Norris, McPherson, Harrington & Waer, for defendants.
   Kuhn, J.

This is an appeal from a decree of the circuit court for Kent county, in chancery. The plaintiffs. owned farms on section 14, Plainfield township, which lie north of the east and west highway and parallel to and adjoining each other. The defendant John P. Weller owned 40 acres immediately east of and adjoining the farm of the plaintiff Fred Suffrouw. The defendant Augusta H. Brewer owned land directly south of the John P. Weller farm. The dispute between the parties arises from the flow of a certain stream of water across their land. In its natural state this stream had its source in the western part of section 13, Plainfield township, and flowed southwesterly into the east half of the southeast quarter of section 14, now owned by the defendant Weller, where it overflowed into a swamp or pond, from which it flowed southerly and southwesterly across the wesx half of the west half of section 24 and emptied into the Grand River. Upwards of 50 years ago, the exact date not being shown by the evidence, the course of this stream was changed by the digging of artificial canals. A channel was dug carrying the stream in a westerly direction across the lands now owned by the defendant Weller and about 15 rods east of the Suffrouw land, and on the Weller farm there was a divide established in the creek, and it is the claim of the plaintiffs that one-half of the water was turned directly to the south and the other half of the water ran through the west branch of the creek, across the plaintiffs’ lands, on through to the river Rogue, and it is the claim of the plaintiffs that this condition existed for upwards of 50 years, the creek being fed and supplied by springs, the west branch running across the plaintiffs’ land continuously the year around, conveying and carrying large quantities of pure live spring water, amply sufficient to supply their live stock and for all other farm purposes.

On October 12, 1915, the defendant Joseph Brewer, acting for his wife, the defendant Augusta H. Brewer, with the consent of the defendant Weller, had constructed in this stream, at the point of the divide, a cement basin with a two-inch pipe leading into the west branch and so arranged that, unless obstructed, this pipe would empty its full capacity of water into the west branch. The basin was arranged with a concave apron leading into the south branch so that the balance of the water would flow through the south branch. It is the claim of the defendants that they are entitled to the full flow of the stream, but that they placed this pipe in the dam, not in any recognition of the rights of the plaintiffs, but as a courtesy to a neighbor. This bill is filed to enjoin the defendants from maintaining the cement basin or dam and from diverting more than one-half of the flow of the stream into the south branch..

After hearing all the testimony, the trial judge came to a conclusion as follows:

“From the testimony of 10, or perhaps 11 witnesses, there being about 13 witnesses sworn in the case, the court is satisfied that by a preponderance of the evidence it is established that the waters of this stream have, for a period of 40 years, or perhaps more, been divided upon the premises of the said Weller at the location where the divide now exists, about equally, the natural flow of the water going about one-half in a westerly direction and the other half south and across the premises of the said Augusta Brewer; and from the evidence it is clearly established by a preponderance of the evidence and more, by the great weight of the evidence, that this use of the water and the manner in which it has been so divided, has been so divided for 40 years or more.”

That a prescriptive right to the flow of water can be acquired by 20 years of user, is definitely estabalished in this State. Stock v. City of Hillsdale, 155 Mich. 375; Chapel v. Smith, 80 Mich. 112; Conklin v. Boyd, 46 Mich. 56; Gregory v. Bush, 64 Mich. 37 (8 Am. St. Rep. 797). A careful reading of this record has satisfied us that the circuit judge was fully justified in coming to the conclusion that he did, that by the clear preponderance of the evidence it was established that for a long period of years, more than 40, this water has befen divided at the point where the divide now occurs on the Weller farm, and that it did run, according to the great weight of the evidence, one-half through the west branch and the remainder through, the south branch. There is some testimony in the record which shows that before the construction of the cement dam which diverted a large part of the water which originally went through the west branch, into the south branch, there were certain old plank dams which had been placed in both branches of the stream, and it is contended that an actual examination of these plank dams showed, from the way in which they were placed and the notches cut in them, that a larger amount of water was diverted through the south channel than through the west channel, and it is urged that the court overlooked the positive physical evidence given by these old plank dams in making his determination as to how the water should be divided. It does not, however, satisfactorily appear how long the wooden planks were in the stream and for what purpose they were placed there, and the weight of evidence seems to conclusively show that from personal observation that the witnesses made of the water in question over this long period of years, it actually flowed one-half through the west branch and the other half through the south branch.

It would not be. profitable to here review the evidence in detail, and it is sufficient to say that upon the record as here made, we are satisfied that the trial judge reached a just and equitable conclusion in dividing the water one-half to each stream and granting the plaintiffs the relief they prayed for. See Hilliker v. Coleman, 73 Mich. 170; Rummell v. Lamb, 100 Mich. 424; Mastenbrook v. Alger, 110 Mich. 414.

The decree is affirmed, with costs to the plaintiffs.

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


text:
    ROWE v. MYERS.
    1. Libel and Slander — Evidence—Justification—Reputation.
    In an action for slander for calling plaintiff “Nick Myers' old whore,” testimony in justification that plaintiff was guilty of adultery with another man 12 years before she met Myers was too remote to warrant its admission, there being no evidence to show continuance of the act or like acts until she became acquainted with Myers.
    2. Same.
    In such action, testimony that witness had seen plaintiff and Myers in a compromising position was admissible for the purpose of proving the truth of the slanderous charge, but not for the purpose of proving plaintiff’s character.
    3. Same — Evidence—Other Slanderous Words — Malice.
    In such action, the plaintiff, after proving the words alleged, may give in evidence other slanderous words of like import to show malice.
    4. Same— Charging Crime — Justification — Reputation — Evidence — Admissibility.
    In such action, where the libelous words charged the crime of adultery, and justification was pleaded and evidence offered to prove the charge, evidence tending to show plaintiff’s good reputation for chastity and morality was admissible.
    5. Same — Trial—Instructions—;“Whore.”
    In such action, a requested instruction that “A whore is a woman who practices illicit sexual intercourse either for hire or reward or to gratify a depraved passion,” was proper, and should have been given to the jury as presented.
    6. Same — Damages—Basis of Award.
    In such action, the amount of the verdict is not, in its nature, susceptible of mathematical computation but, necessarily, rests on the judgment and discretion of the jury, the theory of the law being that damages shall be compensative in character, properly compensating the plaintiff for injury to feelings, humiliation, and disgrace, and the actual damage from the injury itself.

      See notes in 4 L. R. A. (N. S.) 560; 21 L. R. A. (N. S.) 502; 24 L. R. A. (N. S.) 607; 31 L. R. A. (N. S.) 132; 50 L. R. A. (N. S.) 1040.

      7. Same — Damages—Excessive Vekdict.
    In such action, where the publication of the libel was very restricted, and plaintiff, who was 60 years of age, was not shown to have been injured in any way in her social position, and no special damages were alleged or proved a verdict for $5,000 was excessive.
    Error to Genesee; Brennan, J.
    Submitted October 22, 1918.
    (Docket No. 98.)
    Decided December 27, 1918.
    Case by Ida E. Rowe against Martha E. Myers for slander. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Clarence A. Cameron and Farley & Selby, for appellant.

      Brownell & McBride and Warner & Raudabaugh, for appellee.
   Kuhn, J.

This is an action for slander. The plaintiff is a woman 60 years of age, and it is her claim that on the 30th day of June, 1917, on a public street in the city of Flint, and in the presence and hearing of other persons, the defendant called her “Nick Myers’ old whore.” The defendant filed a plea of the general issue and gave notice of justification. The trial resulted in a verdict for the plaintiff in the sum of $5,000.

1. The defendant sought to show, under her plea of justification, that the plaintiff, before she was divorced from her husband in 1899, and while she was living with him in the township of Flushing, Genesee county, was intimate and guilty of adultery with one Sylvester Loop. This testimony was ruled out by the trial judge. We think that this character testimony which was offered was too remote to warrant its admission, because there was no evidence offered by the defendant to show a continuance of the act or like acts from 1899 until she became acquainted with Nick Myers, the husband of the defendant, in 1911.

It is further claimed that the court erred in not permitting the witness, Harry Wethered, one of the witnesses for the defendant, to answer the following question:

“Q. What position have you seen them in there, Mrs. Rowe and Mr. Myers, in the real estate office?”

The relations of the plaintiff with Nick Myers, the husband of the defendant, were very pertinent in this inquiry, for the reason that the defamatory words complained of charged the crime of adultery with the said Nick Myers. In our opinion, the witness should have been allowed to answer this question, as it seemed to be an effort on the part of the defendant to prove the truth of the very charge which she made against the plaintiffs It is clear that, under the authority of Smitley v. Pinch, 148 Mich. 670, the evidence was not admissible for the purpose of proving plaintiff’s character, but we do think that the evidence was admissible for the purpose of showing the truth of the slanderous statement.

2. The second contention of appellant’s counsel is that the court erred in permitting the witness, Homer J. McBride, to testify as to what occurred in his office, the testimony showing, that at that time’ Mrs. Myers called Mrs. Rowe names of the same nature as the ones she is alleged to have called Mrs. Rowe on other occasions and for which this action is brought. We think this evidence was admissible to show malice on the part of the defendant. See Leonard v. Pope, 27 Mich. 145; Fowler v. Gilbert, 38 Mich. 292; Cadwell v. Corey, 91 Mich. 340; Simons v. Burnham, 102 Mich. 199; and Everhart v. Clute, 203 Mich. 115. By these authorities it seems to be well settled that in an action for slander the plaintiff, after proving the words alleged, may give in evidence other slanderous words of like import to show malice, or may show a repetition of the slander in aggravation of damages; nor does the rule limit the evidence to verbatim repetitions, but allows proof of substantially similar slanders likely to make the same impression in the community. We are, therefore, of the opinion that there was no error in admitting this testimony.

3. It is next alleged that the court erred in allowing the plaintiff to introduce evidence tending to show her good reputation as to chastity and morality, when under previous rulings of the court no evidence had been admitted on the part of the defendant to show that the plaintiff had a bad reputation in that respect, and the case of Kovacs v. Mayoras, 175 Mich. 582, 590, is relied upon, where this court said, in the opinion written by Mr. Justice Stone:

“The rule that defendant may show the general bad reputation of the plaintiff in an action of this nature does not permit the plaintiff, in the first instance, to open the door by general evidence tending to show his good reputation. We think the court was in error in admitting this testimony.”

Counsel for appellee admit that this statement of the rule is correct, but it is contended and urged that by filing the plea of justification the defendant assails the reputation of the plaintiff, and that this amounts to a general attack, which permits the plaintiff to rebut the attack by offering evidence to show her good reputation, and that therefore the case falls under the rule announced in Smitley v. Pinch, supra, that where defendant has submitted testimony tending to show plaintiff’s general reputation for chastity to be bad, the plaintiff thereupon can rebut this evidence by other evidence to show good reputation. Mr. Chamberlayne in his work, The Modem Law of Evidence, § 3281, vol. 4, says with reference to this rule:

“Evidence of the good character of the plaintiff in an action for libel or slander has frequently been received where the alleged slanderous words charged a crime and the defendant pleaded justification, as that the words spoken were true. The evidence has been received even where the alleged slanderous words did not charge a crime. Where no justification is pleaded, or where a justification is pleaded, but no evidence offered under the plea, the evidence is rejected.”

In the case before us we have the plaintiff charged with a crime, and justification is pleaded, and an attempt was made by evidence under the plea to prove the charge. The rule is also referred to in the case of Fahey v. Crotty, 63 Mich. 383, 388 (6 Am. St. Rep. 305), where it is said:

“In civil actions, with the exception of those cases where, by the pleadings, the character of the party is put in issue, the weight of authority is against the admissibility of such testimony to rebut imputations of misconduct or fraud,”

—and a great number of cases are cited. On an examination of the record and briefs of the case of Kovacs v. Mayoras, supra, we are satisfied that it is easily distinguishable from this case, because in that case, in the notice given under the plea, the defendant denied that the article alleged in the plaintiff’s declaration should be construed as alleged in the declaration, and denied each and every innuendo alleged in. the plaintiff’s declaration, and insisted that under the plea of the general issue, the article as printed and published in his newspaper mentioned in the declaration is true in the ordinary meaning and generally accepted sense thereof. It is therefore seen that the defendant did not admit in that case any libelous article, and the pleadings, therefore, did not charge the plaintiff with anything which was conceded to have been libelous. Here the plea of justification admits the slanderous statement and seeks to justify its truth. We are of the opinion that there was no error in admitting the testimony complained of.

4. Defendant’s counsel preferred the following request to charge:

“I further charge you that a whore is a woman who practices illicit sexual intercourse, either for hire or reward or to gratify a depraved passion.”

The trial judge in his charge gave a part of this request in its exact language, but eliminated therefrom the words, “or to gratify a depraved passion,” and it is here urged that the defendant’s request on this subject should have been given without modification. It is the claim of the defendant that the jury might have been led into the belief that it was necessary for them to find, in order to consider the defendant’s justification, that Nick Myers had paid the plaintiff money or given her reward. While we are not prepared to say that under the circumstances of this case we would reverse the case because of this alleged error, in view of the fact that we have concluded to send the case back for a new trial, we should say that we think that the court might better have given the request as presented, which gives the definition as accepted by the lexicographers in its most general meaning. See 8 Words and Phrases, p. 7456; 40 Cyc. p. 933.

5. It is next urged that the verdict is excessive, and that the amount arrived at must be the result of passion, prejudice or bias on the part of the jury. The amount of the verdict is not, in its nature,, susceptible of mathematical computation and rested necessarily on the judgment and discretion of the jury, but in this case there were no special damages alleged and proved, there were no special circumstances shown in aggravation of damages, and the only persons who were shown to have heard the defamatory words complained of were Mrs. Ida Merrill and William Bliss. While it is true that in cases of slander no precise rules can be laid down for the ascertainment of damages, yet it is the theory of the law that in such cases damages shall be compensative in character, and it has been held that such damages may be awarded as to properly compensate the plaintiff for injury to feelings, humiliation, and disgrace, and the actual damage from the injury itself. We have carefully examined this record, and when we take into consideration the very restricted publication of the alleged defamatory words, the age, social position, and character of the plaintiff, and it not being shown that her social position was in any way impaired on account of the defamatory words, or that she was shunned by her neighbors, we have come to the conclusion that, consciously or unconsciously, some other element must have entered into the minds of the jury than a desire simply to compensate her for the injury alleged. We think the trial judge erred in not granting a new trial on the ground that the verdict was excessive.

6. Some complaint is also made that the charge of the court was argumentative, but upon examination of the whole charge we are satisfied that the issues involved were fairly and clearly stated to the jury with proper instructions as to the law applicable thereto, and that the charge was not subject to the criticism made of it.

However, for the errors above referred to, the judgment is reversed and a new trial granted, with costs to the appellant. .

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