text:
    BROWN v. CITY OF ST. JOHNS.
    1. Municipal Corporations — Negligence—Highways And Streets —Proximate Cause — Directed Verdict.
    In an action for personal injuries against a municipal corporation for negligence in failing to keep a street and sidewalk in a condition reasonably safe and fit for public travel, in that it failed to remove a quantity of sheet steel which stood upon the walk for a long time and which tipped over and injured plaintiff -while he was passing, the trial court was in error in directing a verdict for defendant on the ground that the acts of boys in moving the steel was the proximate cause of the injury and relieved the defendant from liability, notwithstanding. its negligence.

    2. Same — Question oe Fact.
    The evidence offered by plaintiff as to the condition of the sidewalk and the position in which the steel stood presented a question of fact for the jury as 'to whether the street was reasonably safe for public travel.
    Error to Clinton; Searl, J.
    Submitted November 18, 1914.
    (Docket No. 113.)
    Decided September 28, 1915.
    Case by James E. Brown against the city of St. Johns for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings' error.
    Reversed.

      William M. Smith and Frank L. Dodge, for appellant.

      Dean 'W. Kélley (Edwin II. Lyon, of counsel), for appellee.

       As to responsibility of municipality for injury.from falling object in street, see note in 20 L. R. A. (N. S.) 644.

   Bird, J.

On the evening of June 3, 1913, plaintiff, with a companion, was walking west on the north side of Walker street, in the city of St. Johns. While passing Fowler & Ball’s hardware store, a quantity of sheet steel weighing about 600 pounds, and resting on edge and leaning against the store, tipped over and fell onto plaintiff, breaking his leg, and otherwise injuring him. He brought this action against the city, charging it with negligence in failing to keep the street and sidewalk in a condition reasonably safe and fit for public travel. Upon the trial testimony was received which was open to the inference that the cause of the steel tipping over was due to the acts of some young boys who were chasing a rat. This was the only testimony offered to account for its falling. The trial court concluded that to be the only reason for its falling, and held the act of the boys to be the proximate cause of plaintiff’s injuries, and that under these circumstances the city was not liable, and accordingly a verdict was directed for defendant.

Plaintiff’s counsel insist that the trial court was wrong in this position. They contend that there was no one near the steel when it tipped over, and they further contend that, even though it be admitted that the boys caused the steel to tip over, still they were entitled to take the judgment of the jury on the question as to whether the city was negligent in permitting the steel to remain on the sidewalk in such a precarious position. We have therefore presented the question whether defendant was negligent by omission in permitting 600 pounds of steel, 30 inches in height, to stand on the sidewalk in so nearly an upright position that the ordinary use of the sidewalk would .be liable to tip it over on to pedestrians.

The position of the appellant appears to me to have much force. It is not questioned that the steel was placed on the sidewalk and near the traveled part thereof. Neither is it questioned that it had remained in that position for a long time.. There was testimony to the effect that, while it leaned slightly against the building, it stood so nearly upright as to be easily toppled over. If it can be said, as a matter of fact, that the position of the steel was a dangerous one to passersby, then the failure of the city to remove it was a negligent act, which would make it liable in this action.

The duty of municipalities, under section 3441, 1 Comp. Laws, has been commented on by this court as follows:

“It is doubtless true that a municipality, having the control of the highways and the duty of keeping them in repair, must at its peril remove or guard against perils growing out of defects and obstructions within the highway limits.” Temby v. City of Ishpeming, 140 Mich. 146 (103 N. W. 588, 69 L. R. A. 618, 112 Am. St. Rep. 392).

In the course of the discussion of a similar case bjr the Illinois court it was said:

“If I am guilty of negligence in leaving anything dangerous in a place where I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, and if that injury shall be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first.” Weick v. Lander, 75 Ill. 93.

See, also, City of Osage City v. Larkin, 40 Kan. 206 (19 Pac. 658, 2 L. R. A. 56, 10 Am. St. Rep. 186).

And if it should be determined by a jury that the public street was not in a reasonably safe condition for public travel by reason of the position of the steel, the city would be liable, even though the acts of the boys concurred with that of defendant’s in causing the injuries. 29 Cyc. p. 496; Detzur v. B. Stroh Brewing Co., 119 Mich. 282 (77 N. W. 948, 44 L. R. A. 500).

The question as to whether the sidewalk was in a condition reasonably safe and fit for public travel should have been submitted to the jury. It was within the province of the jury to say in what position the steel actually stood, and whether that position rendered the street unsafe for public travel. This view of the case makes it unnecessary to consider the other assignments of error.

The judgment is reversed and a new trial ordered.

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

The late Justice McAlvay took no part in this decision.


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    PEKLENK v. ISLE ROYALE COPPER CO.
    1. Jury — Employer—Excusing for Cause.
    In an action by tbe mother as administratrix for the death of a minor son, caused by the alleged negligence of defendant mining company, employees of other mining companies under the same manager as defendant company, and subject to discharge by him, were disqualified to sit as jurors, and the trial court was not in error in excusing them.

    2. Negligence — Mines and Mining — Notice—Dangerous Premises.
    In an action by the mother as administratrix for the death of a minor son, caused by falling into an old excavation on defendant’s mining property, evidence of the close proximity of the hole to a much-traveled way, and the knowledge of others in the vicinity of its existence, together with other testimony, was sufficient to raise an issue for the jury as to whether the officers of defendant, in the exercise of reasonable diligence, ought to have been aware of it.
    3. Same — Contributory Negligence — Instructions — Presumptions.
    Where there are no witnesses of the accident, and no testimony of any contributory negligence on the part of the deceased, the presumption is that deceased was in the exercise of due care, and the court was not in error in so instructing the jury.
    4. Damages — Evidence—Financial Condition.
    In an action for the death of a minor son, brought by the mother as administratrix under the death act (section 10427 et seq., 3 Comp. Laws), which has been held to require the administrator to show that some person has suffered some pecuniary injury by the death, while it i? competent to show in a general way the financial circumstances of the beneficiaries, it is not competent to show specific instances of indebtedness owing by the beneficiaries and the reason for such indebtedness.
    5. Appeal and Error — Evidence—Prejudicial Error — Damages.
    Where the amount of the verdiet gives no evidence that the erroneous testimony had any appreciable effect upon it, the case will not be reversed, upon appeal.
    Error to Houghton; Cooper, J.
    Submitted November 12, 1914.
    (Docket No. 49.)
    Decided September 28, 1915.
    Case by Margaret Peklenk, administratrix of the estate of Mike Peklenk, deceased, against the Isle Royale Copper Company for the wrongful death of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Allen F. Rees {Rees, Robinson & Petermann, of counsel), for appellant.

      Le Gendre & Driscoll, for appellee.

       As to competency as juror of employee or relative of employee of party or persons interested in an action, see note in 40 L. R. A. (N. S.) 982.

   Bird, J.

Plaintiff recovered a judgment of $750 in the Houghton circuit court for the wrongful death of her 12-year-old son. He lost his life by falling into an old excavation on defendant’s mining property, which plaintiff claims should have been guarded. The case was before this court on a former occasion, and the opinion appears in 170 Mich. 299 (136 N. W. 352), where a more extended statement will be found. The appellant raises several questions. Those which we think demand attention are:

(1) Was the court in error in granting plaintiff’s challenges of certain jurors drawn upon the panel?
(2) Was it the duty of the court to direct a verdict for defendant?
(3) Should the question of plaintiff’s contributory negligence have been submitted to the jury? -
(4) Did the court err in admitting certain testimony?

Several employees of the Calumet & Hecla Mining Company and the Osceola Consolidated Mining Company were excused for cause by reason of their being in the employ of these companies. The relations of the defendant company with these companies were very frankly stated by counsel for the defense as follows:

“Out of the 150,000 shares of the issued capital stock of the Isle Royale, the Calumet & Hecla Company, as such, is the holder and owner of 29,700 shares, a little less than one-fifth of the stock. A majority of the directors of the Isle Royale Company are also directors or officers of the Calumet & Hecla. I think, if I remember right, there are four out of seven who are in that situation; three being entirely independent of Calumet & Hecla interests. The local management, meaning by that the general manager and the oversight and supervision, is the same; Mr. McNaughton being general manager of the Calumet & Hecla, and also of the Isle «Royale. Otherwise they are distinct corporations, each having its own superintendent and conducting its operations separately.”

The position of the trial court was that it was a question which rested within his discretion, and, so thinking, he exercised the discretion and excused the jurors. The question which is raised for our consideration is whether the trial court was right in so doing.

This court has held that the law.disqualifies an employee from sitting as a juror in suits to which his employer is a party. Pearce v. Mining Co., 149 Mich. 112 (112 N. W. 739, 12 Am. & Eng. Ann. Cas. 304). See, also, 24 Cyc. p. 276.

Presumably the thing which disqualifies the employee, under such circumstances, is. the fear that, if he acts impartially and against the master, he may incur his displeasure, and thereby render his employment precarious.' It places him in a situation which appeals to his selfish interest, and that is a very potent factor with the average person in controlling his actions. It is conceded that the defendant’s board of directors is controlled by the directors of the Calumet & Hecla, and that Mr. McNaughton is the general manager of not only the Calumet & Hecla, but the Osceola and the defendant, and that he has the power to cause the discharge of any employee of the defendant, and the record shows that these facts were well known in that vicinity. The conditions which are liable to affect the fairness of the employee as a juror are present under these conditions, as well as in a case where the employment is direct, but perhaps in a lesser degree.

It is suggested by counsel that the question is whether an employee of one corporation is disqualified, as a matter of law, from acting as a juror in a case where another corporation, in which his employer owns stock, is a party. The question involves more than the mere inactive ownership of stock. It involves the control and management as well. The relation of the Calumet & Hecla to the Osceola Consolidated Mining Company is conceded by counsel to be substantially the same as its relations with the defendant. The fact that these corporations have distinct legal boundary lines separating them is not so important with the employees as the fact that they have a. common master. I am of the opinion that the position of the trial court was well taken, and that he did not err in excusing the jurors.

Was the defendant entitled to a directed verdict? The record of the retrial does not differ materially from the former one, save in this, respect: The defendant made a very full showing upon the retrial that none of its officers had any actual knowledge of the existence of the hole. We think the evidence tended to support constructive notice. The proximity of the hole to a much-traveled path, and the knowledge of others in the. vicinity of its existence, together with the other testimony, were sufficient to submit to the jury on the question whether the officers in the exercise of reasonable diligence ought to have been aware of it.

The trial court instructed the jury that:

“There is no evidence in this case upon which the boy can be held to have been guilty of contributory negligence contributing to his injury, and you must so find by your verdict.”

The defendant recognizes the rule that due care upon the part of the boy must be presumed, but it insists, in substance, that the inferences to be drawn from the testimony make it a question of fact for the jury. No witness saw the child fall into the hole, and no conditions were shown about the hole-which would lead to any reasonable conclusion or theory as to how he managed to get into it. - We think there are no inferences from the testimony which are sufficient to' send the question of his-contributory negligence to the jury.

Frank Peklenk, the father of the deceased, was interrogated, under objection, in this wise:

“Q. State to the jury whether you were in debt at the time the boy fell in the hole and' drowned.
“A. Well, I wasn’t, not at that time; but after my. boy died I went into debt.
“Q. Will you state who paid the funeral expenses of the boy?
“A. I paid some, but not all yet.”

Counsel comments that:

“The fact that the father was indebted, either at the time of the boy’s death or at any.other time,.could not affect, nor could it increase or diminish of measure, the ‘pecuniary injury’ suffered by the parents through the death of the boy. ■ The evidence was immaterial and prejudicial, because .its only purpose and its only effect could have been but to excite the sympathies of the jurors, .and improperly influence their verdict.”

The action is brought under’ the death act, 3 Comp. Laws, § 10427 et seq. In commenting upon this statute it was said by this court:

“The law requires in this class of cases that the administrator must show that some person has suffered some pecuniary injury by the death. The statute does not imply that damages and pecuniary losses necessarily flow from the negligent killing. This is a matter that must be made to appear by the proper allegation in the declaration, and proof of the fact.”

In order to meet this construction of the statute, it was proper to show the age, calling, and condition of the father, and also the age and condition of the mother. Black v. Railway, 146 Mich. 568 (109 N. W. 1052). It was likewise competent to show the circumstances of the plaintiff and her family, and .the condition, character, and sex of the child. Houghkirk v. President, etc., D. & H. Canal Co., 92 N. Y. 219 (44 Am. Rep. 370); Birkett v. Ice Co., 110 N. Y. 504 (18 N. E. 108). Thompson on the Law of Negligence lays down the rule that:

“In jurisdictions where the statute makes the recovery turn upon the dependency of the beneficiaries on the deceased for support, the circumstances, age, health, and means of support of the beneficiaries may be proved, for the purpose of showing whether such beneficiaries would in all likelihood have received financial aid from the deceased. * * * And where the suit is for the death of a boy 7 or 8 years of age, it has been held that, if the family was poor, the fact that the boy would probably have commenced early to assist in supporting the family may be taken into consideration.” Section 7134.

While it was undoubtedly competent to show in a general way the financial circumstances of the beneficiaries, we doubt the propriety of permitting the administrator to show specific instances of indebtedness owing by the beneficiaries, and the reason for such indebtedness. The amount of the verdict, however, in this case gives no evidence that this testimony had any appreciable effect upon it. In view of this, we do not think the error is serious enough to call for a reversal of the case.

The judgment of the trial court will be affirmed.

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

The late Justice McAlvay took no part in this decision.


text:
    DOTSON v. MICHIGAN CENTRAL RAILROAD CO.
    1. Appeal and Error — Question of Pact — Railroads.
    In an action for personal injuries alleged to have been- caused by defendant’s engine and train frightening plaintiff’s horse, a disputed question of fact as to where the train stood in reference to the crossing was determined according to plaintiff’s claim by the verdict of the jury in her favor.

      2. Railroads — Negligence—Operation of Train — Question for Jury.
    In an action for personal injuries alleged to have been caused by defendant’s train and engine starting up and frightening plaintiff’s horse, when she was crossing a viaduct over the track, evidence to show that defendant operated its train in such an unusual and unnecessary manner as to cause the fright of plaintiff’s horse would raise a question of fact for the jury.

    3. Same.
    A railroad company is not liable for the fright of horses resulting from the ordinary use, movement, or situation of its engines, cars, or trains, and it has a lawful right to make all such noises as are necessarily connected therewith.
    4. Same — Directed Verdict.
    Where plaintiff’s testimony failed to show that any unusual or unnecessary noises occurred in the starting of the train, defendant’s motion for a directed verdict should have been granted.
    5. Same — Instructions—Viaduct—Negligence.
    An instruction by the court below that it is the duty of a railroad company, before starting its train, to observe whether any one is crossing on the viaduct, and, if there is, to refrain from starting until the traveler has an oppor- ■ tunity to get across, is erroneous.
    Error to Kalamazoo; Barry, J., presiding.
    Submitted October 6, 1914.
    (Docket No. 9.)
    Decided September 28, 1915.
    Case by Constance Dotson against the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed and no new trial ordered.
    ' Stewart & Stewart (Henry Russel and Frank E. Robson, of counsel), for appellant.

      James S. Dodge and Harry C. Howard, for appellee.

       Generally as to liability of railroad for frightening horse on highway or near crossway, see notes in 3 L. R. A. (N. S.) 111, 42 L. R. A. (N. S.) 568, 23 L. R. A. (N. S.) 946.

   Bird, J.

The plaintiff recovered a judgment in the trial court for personal injuries which she claims were due to the negligence of the defendant. The defendant assigns error in this court, and the principal error relied upon is the refusal of the trial court to direct a verdict in its behalf.

The record discloses that plaintiff was visiting her parents, who live south and east of the village of Mattawan, situate on defendant’s line; that on the morning in question she was driving to the village, and her mother was riding in the carriage with her. The highway to the village was carried over defendant’s tracks on a concrete and steel viaduct, with a concrete floor and iron railings. She drove onto this viaduct, and when about midway thereon a freight train, which was standing thereunder, started up, and the noises occasioned by so doing frightened her horse, and it became unmanageable and ran for some distance, throwing both her and her mother out of the carriage, and injuring the plaintiff. The negligence with which the defendant was charged was:

“The starting of the train immediately beneath the horse’s feet, without any warning, or giving the plaintiff time to get to a place of safety, and in so doing produced noises which became fear-exciting agencies, and caused the fright of the horse.”

We shall consider only the assignment of error which has reference to the refusal of the trial court to direct a verdict in behalf of the defendant.

The question whether defendant was in duty bound to give the statutory crossing signals, where the highway passes over the railway, is a question much discussed in the briefs, and we are urged to determine that question, as it is a new one in this State. In the view we take of the case, that question is not involved. The testimony as to where the train stood was in conflict, but we must assume in the consideration of this question that the train stood just where plaintiff and her witnesses testified that it did. She testified that the train was headed west; that there were 2 or 3 cars east of the viaduct and 10 or 15 west of the viaduct. If the train were standing in this position, the engine had passed the viaduct from 300 to 500 feet, and we know of no statute which makes it obligatory upon the engineer to give signals for a highway crossing after he has passed it. Neither are we aware of any statute which makes it the duty of the engineer to give any particular signals upon starting his train.

The real question to be considered is whether the defendant, under all the attendant circumstances, operated its train in such an unusual and unnecessary manner as to cause the fright of plaintiff’s horse. If there were any evidence to show that it did, then the trial court was right in submitting the question to the jury. That is a question, however, about which counsel disagree. The rule governing such cases was well! stated by Mr. Justice Blair in Foster v. Lumber Co., 141 Mich. 316 (104 N. W. 617). It was there said: ^

“It is well settled that a railroad company is not liable for the fright of horses resulting from the ordinary use” movement, or situation of its engines, cars, or trains, and that it has a lawful right to make all such noises as are necessarily connected therewith. It may, however, become liable if in such use of its property it does anything unusual or unnecessary, naturally calculated to frighten ordinarily well broken and gentle horses. Thompson on Negligence, § 1908; Hinchman v. Railway Co., 136 Mich. 341 [99 N. W. 277, 65 L. R. A. 533]; Geveke v. Railroad Co., 57 Mich. 589 [24 N. W. 675]; Dunn v. Railroad Co., 124 N. C. 252 [32 S. E. 711]; Petersburg R. Co. v. Hite, 81 Va. 767.”

The testimony of plaintiff on this point follows:

“Q. Then what happened?
“A. As we got about to the middle of the viaduct the-train started to move and the horse became frightened..
“Q. I wish you would state whether there was a noise incidental to the train starting.
“A. Yes, sir; there was.
“Q. Like a train usually starting? * * *
“A. It started with the usual noise, the engine with the steam escaping, and the car wheels grinding on the track.
“Q. Have you stated all that you can remember about that now, about it starting?
“A. That is all I remember.
“Q. Whether or not the cars were jerking or jumping?
“A. I think they were.”

This testimony, given by the plaintiff, was substantially corroborated by her mother. The testimony fails to show that any unusual or unnecessary noises occurred in the starting of the train. The noises mentioned were the grinding of the wheels, the jerking of the cars, and the escaping steam. These, as she admits, are the ordinary and usual noises produced by the starting of a train. The noise produced by the escaping steam must have been considerably lessened by the fact that the locomotive was from 300 to 500 feet west of the viaduct when the train started. Tested by the rule heretofore referred to, plaintiff was not entitled to recover, and defendant’s motion for a directed verdict should have been granted.

It is urged that it was the duty of the defendant, before starting its train, to observe whether any one was crossing on the viaduct, and, if there were, to refrain from starting the train until the traveler had an opportunity to get across. The jury were charged in substance to this effect. We are unable to approve of this proposition. Municipalities and railroads are expending large sums of money yearly to separate grades for the protection of the traveling public, and to expedite the movement of trains. If the duty urged were the law, then railway traffic would be delayed, instead of expedited, by carrying the highway over the railroad. In case the highway was much traveled, a train might find it difficult for several minutes to start; whereas, if it had been a grade crossing, the railway train would have had the preference.

As before stated, we are of the opinion that the plaintiff’s own testimony has made her recovery impossible in this case. The judgment will be set aside, and no new trial ordered.

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

The late Justice McAlvay took no part in this decision.


author: Per Curiam.

text:
    HOWE v. DOYLE.
    Appeal and Error — “Blue-Sky Law” — Moot Questions — Dismissal.
    Where Act No. 143, Pub. Acts 1913, known as the “Blue-Sky Law,” was repealed pending an appeal by complainants of injunction proceedings attacking the validity of the law, and there are no proceedings pending before the Michigan Securities Commission in which complainants are interested which are continued by the repealing act, but the questions raised on appeal are mere moot questions, this court will, on its own motion, dismiss the appeal.
    Appeal from Ingham; Collingwood, J.
    Submitted February 3, 1914.
    (Docket No. 174.)
    Decided September 28, 1915.
    Bill by Burton Howe and another against Edward H. Doyle, John W. Haarer, and Grant Fellows, constituting the Michigan Securities Commission, for injunction restraining defendants from .enforcing the provisions of Act No. 148, Pub. Acts.1913. From a decree for defendants, complainants appeal.
    Appeal dismissed.

      Beaumont, Smith & Harris, and Caldwell, Masslieh & Reed (Robert R. Reed, Thomas C. P. Martin, and Hal H. Smith, of counsel), for appellants.

      Grant Fellows, Attorney General, for appellees.
   Per Curiam.

This case is an appeal from the decree of the circuit court in chancery, which dismisses the bill of complaint of the complainants, filed again”st the defendants herein, members of the Michigan Securities Commission created by Act- No. 143, Pub. Acts 1913, the so-called “Blue Sky Law.” The bill attacks the constitutionality of this law on several grounds, and prays for an injunction restraining the defendants from enforcing its terms.

While this case has been pending in this court on this appeal, the legislature at its session of 1915 enacted a new law, creating a similar commission, and by its terms repealed Act No. 143, Pub. Acts 1913, and all acts or parts of acts in conflict with the new legislation. The new act also provided:

“All proceedings pending before said Michigan Securities Commission created by said Act one hundred forty-three of the Public Acts of nineteen hundred and thirteen shall be continued by the commission created by this act; all actions, civil and criminal, pending under said Act one hundred forty-three of the Public Acts of nineteen hundred thirteen shall be continued and completed thereunder.” (Act No. 46, Pub. Acts 1915).

It does not appear from this record that there are any proceedings pending before the commission; nor are there any actions, civil or criminal, pending in which complainants are interested. The act whose constitutionality is assailed by these proceedings having been repealed, if we should consider the questions here raised, we would be giving our consideration to mere moot questions, and this we must decline to do.

We will therefore dismiss the case on our own motion, without costs to either party.

The late Justice McAlvay took no part in this decision.


author: Kuhn, J.

text:
    TOWNSHIP OF FOREST v. AMERICAN BONDING CO. OF BALTIMORE.
    Limitation of Actions — Official Bond — Public Officers — Bonds.
    A surety bond, given by a township treasurer to protect the township against loss, is an official bond, and, by eliminating as surplusage a provision in said bond fixing a shorter limitation than that fixed by section 9734, 3 Comp. Laws, is a good and sufficient bond in compliance with section 1408, 2 How. Stat. (2d Ed.), and a judgment thereon will be affirmed.
    Error to Cheboygan; Shepherd, J.
    Submitted January 15, 1915.
    (Docket No. 26.)
    Decided September 28, 1915.
    Assumpsit by the township of Forest against the American Bonding Company of Baltimore and Harry L. Sias on a surety bond. Judgment for .plaintiff. Defendant bonding 'company brings error.
    Affirmed.

      I. S. Canfield (Keena, Lightner, Oxtoby & Hanley, of counsel), for appellant.

      C. S. Reilley, for appellee.
   Kuhn, J.

This controversy has been before this court before, and a statement of the facts and the questions involved therein are sufficiently set forth in an opinion written by the late Justice McAlvay in the case of Township of Forest v. Bonding Co., 180 Mich. 90 (146 N. W. 416). The case being remanded to the circuit court, the defendant filed its plea, wherein, in addition to the general issue, it gave notice of the claims mentioned in the opinion of this court, viz., that no notice was given to the bonding company, within six months, and also that action was not begun within 365 days after the date when the defendant’s responsibility for the further acts of defendant Sias had ceased. The trial in the circuit court resulted in a verdict against the defendant herein for $1,599.94, and judgment was duly entered thereon. The case being brought here by writ of error, the following questions are raised by appellant by proper assignments of error:

(1) Are the provisions in the bond limiting the time within which suit can be brought binding?
(2) Were certain rulings of the court during the trial and in charging the jury erroneous, calling for a reversal of the judgment in the court below?

That the bond here involved was an official bond, there can be no question, as it recites that the principal, in his position of township treasurer, shall make good to the township named as his employer, within 60 days, any loss sustained by the employer by larceny or embezzlement committed during a term commencing on the 22d of April, 1907, at 12 o’clock noon, and ending on the 22d of April, 1908, at 12 o’clock noon.

There also is no question that, if the bond was a private bond, the position taken by appellant would be tenable and sound. But we are of the opinion that a different rule must be said to apply to official bonds, and that no such bond can be given whose provisions are in contravention with the terms of our statutes applicable thereto. Treating the provisions in the bond limiting the time within which suit can be brought as surplusage, the bond then clearly would be a good and sufficient bond, in compliance with section 1408, 1. How. Stat. (2d Ed.). By eliminating these provisions as surplusage the scope of the contract entered into between the defendant and the plaintiff is not extended, but that part of the contract which seeks to give the defendant greater rights than it would have had if the bond had been strictly in compliance with the terms of the statute is given no effect.

In this State the statute of limitations with reference to personal actions upon a bond limits the time of commencing such actions to ten years. Section 9734, 3 Comp. Laws. When the defendant company became a surety on the bond of the township treasurer for the purpose of allowing him to handle the public funds, it must be presumed that, if it inserted any provision in such a bond that was contrary to the statute, such provision was void and must be treated as surplusage. As was said in the case of State v. McGuire, 46 W. Va. 328 (33 S. E. 313, 76 Am. St. Rep. 822): “Courts struggle to make public bonds answer public justice.” See, also, United States Fidelity & Guaranty Co. v. McLaughlin, 76 Neb. 307 (107 N. W. 577, 109 N. W. 390).

We have carefully examined appellant’s claim with reference to the exceptions taken to the rulings of the court during the trial, but are satisfied that no prejudicial error was committed by the court in these rulings, and this record does not disclose, in our opinion, any basis for the criticism that the defendant did not have a fair and impartial trial.

The judgment should be, and is hereby, affirmed.

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

This is a case assigned to the late Justice McAlvay, remaining undetermined at the time of his death.


text:
    FITZGERALD v. LOZIER MOTOR CO.
    1. Master and Servant — Workmen’s Compensation Act — Industrial Accident Board — Evidence—Appeal and Error.
    Decisions of tbe Industrial Accident Board will not be reversed because of tbe admission of incompetent evidence in bearings pursuant to Act No. 10, Extra Session 1912, in tbe absence of fraud, if there is any legal basis for its findings.
    2. Same — Evidence-Hearsay—Admissions.
    On sucb bearing, a memorandum of tbe injury made by tbe foreman of tbe injured employee in pursuance of bis duty to report all accidents in bis department to bis superior, who in turn reported them to tbe employing company, was admissible in evidence as an admission on the part of said company by its agent.
    3. Same — Weisht of Evidence — Prima Facie Case.
    In tbe proceedings in this court sucb admission will be considered as prima facie evidence that sucb an accident and injury occurred, and makes a legal basis for tbe findings of tbe board.
    4. Same — Evidence—Proximate Cause.
    After eliminating tbe erroneous testimony, it is held, that there is sufficient to support the finding that the injury arose out of and in the course of the deceased’s employment, and was the proximate cause of his death, and the decision of the Industrial Accident Board awarding compensation is affirmed.
    Certiorari to the Industrial Accident Board.
    Submitted June 3, 1914.
    (Docket No. 7.)
    Decided September 28, 1915.
    Application by Emma Fitzgerald to the Industrial Accident Board for an award of compensation against the Lozier Motor Company for the death of her husband. A judgment for the applicant is reviewed by said motor company on writ of certiorari.
    Affirmed.

      F. J. Ward, for appellant.

      Charles Wagner, for appellee.
   Kuhn, J.

This is a proceeding brought before us by certiorari to the Industrial Accident Board of this State to review a decision rendered by said board October 22, 1913, wherein it affirmed an award by a board of arbitration granting the claimant and appellee the sum of $7.21 per week for a period of 300 weeks.

The record discloses that William J. Fitzgerald, deceased, a machinist about 45 years of age, went to work in the assembling department of the Lozier Motor Company on or about January 20, 1913. He worked in this department a few days, and then was transferred to the carburetor department, where he continued to work until about February 4, 1913.

Some time in the last of January, 1913, the wife of the deceased saw a scratch on his hand, at which time the hand was badly swollen and inflamed, and the deceased told her that he received it on the carburetors in the assembly room of the Lozier Company. During the latter part of January the deceased went to see Mr. Whitehead, an employee of the Lozier Motor Company, to have the scratch on his hand dressed. His hand at the time was badly inflamed, and it looked as if it had been infected for at least 48 hours, and the deceased received medical attention from Mr. Whitehead.

About the 30th of January Mr. Brown, an employee of the Lozier Motor Company, and the foreman of the department in which the deceased was employed, noticed him at work with a bandage on his thumb. He asked the deceased what was the trouble with his thumb, and the deceased informed him that he had scratched it about a week prior to that date— that is, on January 23d. Working on the same bench about six feet from the deceased was a Mr. Anderson, who stated that he did not see nor did he know anything of an accident until the deceased told him he had hurt his hand on the manifold on the day before he had the talk with him.

On the 5th of February the condition of Mr. Fitzgerald’s hand was such that he was obliged to quit work, and was never afterwards able to go back to his work, and continued medical treatments until the day of his death, which was March 8, 1913. The deceased treated with Dr. Hayes until about the 12th of February, at which date he went to the office of Dr. Raymond C. Andries, who continued to treat him until the time of his death. The doctor gave as the cause of his death “arterio sclerosis and myocarditis.” “Myocarditis,” the doctor explained to mean inflammation of the heart muscle, and testified it might be caused by a toxic infection, and that such an infection would tend to lower bodily resistance to other disease. He also testified that when he first saw the deceased it was apparent that he had an infection, and that the condition of the hand showed that there had been an entrance of micro-organisms into it in some way from some cause.

A nurse, who stated that she had had some experience in the treatment of cases of blood poisoning, testified as to the condition of the deceased on the day before and up to the time of his death, and stated that the discoloration in spots on his body, in her opinion, indicated symptoms of blood poisoning, and that she also saw the wound on the hand.

The assignments of error relied upon by appellant are as follows:

“That the Industrial Accident Board erred:
“(1) In holding that said William J. Fitzgerald, deceased, received a personal injury arising out of and in the course of his employment while he was employed by your petitioner.
“(2) In holding that said William J. Fitzgerald, deceased, died as the result of a personal injury arising out of and in the course of his employment.
“(3) In holding that a personal injury arising out of and in the course of his employment was the proximate cause of the death of the deceased, William J. Fitzgerald.
“(4) In holding that the death of said William J. Fitzgerald was not the result of a disease unconnected in any way with his employment with your petitioner.
“(5) In holding that the death of said William J. Fitzgerald was the result of a personal injury sustained on or about January 23, 1913, while in the employ of your petitioner.
“(6) In admitting into evidence and considering as part thereof the evidence of the claimant, Emma Fitzgerald, the witnesses William Brown and Burns L. Whited, as to conversations they had with the deceased, which were not in the presence of your petitioner or any officer thereof, and not at the time of the alleged accident.
“(7) In admitting as evidence and considering as part thereof the memorandum made by the witness William Brown of a conversation had between said William Brown and said deceased, William J. Fitzgerald, in regard to what said William J. Fitzgerald had told him pertaining to said alleged accident and personal injury.
“(8) In determining and ordering your petitioner to pay said claimant, Emma Fitzgerald, the sum of seven and twenty-one hundredths dollars ($7.21) per week for 300 weeks as compensation because of the death of said William J. Fitzgerald.”

It may be noticed that the assignments of error relate principally to three questions: Whether the unrestricted admission of hearsay testimony was reversible error; and whether there was any competent evidence in the case on which a finding could be based that the injury complained of arose in the course of the deceased’s employment; and whether it can be said that the injury complained of was the proximate cause of the death of the deceased.

It is urged by the appellee that the hearsay rule should not be held to apply to arbitrations under the provisions of the workmen’s compensation act. This question has quite recently had the consideration of this court, in the case of Reck v. Whittlesberger, 181 Mich. 463 (148 N. W. 247) (found also in 5 Negligence and Compensation Cases Annotated, p. 917), and the rule against hearsay evidence and its applicability to proceedings under this act are very fully discussed, and this conclusion is arrived at;

“We do not think, however, that under the language used in our workmen’s compensation act the decisions of its administrative board must be in all cases reversed under the rule of presumptive prejudice, because of error in the admission of incompetent testimony, when, in the absence of fraud, there appears in the record a legal basis for its findings, which are made 'conclusive’ by statute when said board acts within the scope of its authority.”

The question then is: Was there any competent evidence offered to make a prima facie case in support of the claimant’s contention ?, Mr. Brown, who was the foreman in charge of the department of the factory in which the deceased was employed, testified that it was his duty to inquire' about all accidents that occurred in the factory, and that he first noticed that Mr. Fitzgerald had sustained an injury on January 30th; that after inquiring of Mr. Fitzgerald concerning the nature of the injury he immediately made a memorandum in writing of the information which he obtained, which was offered in evidence, and which read as follows:

“W. J. Fitzgerald, last Thursday afternoon, scratched on manifold, right hand, on top of the thumb joint. January 23d, 1913.”

That he immediately thereafter notified Mr. Anderson, the general foreman of the Lozier Motor Company, of the fact of the accident. It appears that it was the duty of the employee, as soon as he was injured, to report his injuries, however slight, to the foreman of the shop in which he was employed, and that notice of this was given to all the employees by signs posted throughout the shop. ^It also appears that the Lozier Motor Company made a report of the accident to the Royal Indemnity Company, which report was submitted to counsel during examination before the arbitrators, but was not offered in evidence. )

It is the contention of counsel that the memorandum made by the company’s foreman is competent proof as an admission on the part of the company by its agent. On the other hand, it is claimed that the information therein contained is based purely on hearsay, and is inadmissible for that reason. In our opinion, under the circumstances of this case, the memorandum was admissible as an admission. Under the rules it was the duty of the employee to immediately notify the foreman in charge of the particular division of the factory in which he worked of the fact of an injury. It thereupon became the duty of the foreman of the factory to immediately notify his superior, and also to refer the employee to another foreman who had charge of the “first-aid” work in the plant. It clearly appears that Fitzgerald, the deceased, after having received the injury, reported to the foreman in charge of the shop in which he was working, and this foreman thereupon perpetuated the information received by him by putting it in writing, and thereupon notified his superior of the fact of the injury. That these steps were taken was further evidenced by the fact that the defendant company notified the indemnity company.

It may be said that admissions of this kind, which are not made upon the party’s personal knowledge of the facts, have little probative force, but the weight of such an admission in the trial of an ordinary case, and the circumstances under which it was made, would be for the consideration of the jury. In the proceeding before us, in our opinion, the admission may be considered at least as prima facie evidence that such an accident and injury occurred as reported, and this makes a legal basis for the findings of the board. See 17 Cyc. p. 814.

Without considering the purely hearsay testimony, which it may be said was erroneously admitted, and considering merely the testimony of the physician and the nurse and the admission of the company’s foreman, we think that there is sufficient to support the inference that the injury arose out of and in the course of the deceased’s employment, and was the proximate cause of his death.

We therefore affirm the decision of the Industrial Accident Board.

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

This is a case assigned to the late Justice McAlvay, remaining undetermined at the time of his death.


author: Person, J.

text:
    FULLER v. McKIM.
    1. Wills — Construction—Equity.
    in proceedings by the executors for the construction of a will which disposed of an estate consisting largely of real estate in a foreign jurisdiction subject to a long-term lease, . where they will have practically no money in their hahds to satisfy the bequests made until such real estate shall have been sold or enough realized from rents and income to satisfy the bequests, the validity of the trusts, which the executors have no means of satisfying, and the disposition of a residue that may never exist, are too speculative for the courts of this State to.pass upon.
    2. Equity — Trusts.
    The court of equity should not attempt to direct the disposition of a fund until it is within the control of the executors asking the instructions.
    3. Wills — Heirs—Parties.
    Where the heirs and next of kin of the testator and other parties who may be interested in the distribution of the estate are not made parties to the proceedings by the executors, the court is not in a position to pass upon the trusts nor upon the disposition to be made of a possible intestate residue until such heirs and next of kin shall have a chance to be heard.
    4. Same — Intent oe Testator — Construction.
    Where the will provided for bequests largely in excess of testator’s personal property, and directing postponement of the sale of real estate so long as the present lease might remain outstanding and in force, and also directing the bequests to be paid out of the rents and income and proceeds of such sale, it is held, to' be the intent of the testator that the sale should be postponed so long as the present lease might be in force, but. the direction to sell to become mandatory whenever it should cease to continue as an existing lease, and during such postponement the executors should receive the rents and income and apply them in accordance with the terms of the will.

      5. Same — Construction—Courts—Domicile—Intent.
    The courts of a testator’s domicile are justified in construing the will to determine its intent, although the property disposed of may be largely real estate in a foreign jurisdiction.
    6. Same.
    The courts of a testator’s domicile have no power to determine the effect of at will upon the title to lands in another State, and the executors should have applied to the courts of such State for a determination of their rights and interests in, and powers over, the lands in that State, as the tenure, mode of enjoyment, transfer, and descent of real property is regulated by the lex loci rei sites.

    Appeal from Barry; Smith, J.
    Submitted April 15,, 1914.
    (Docket No. 37.)
    Decided September 28, 1915.
    Bill by Daniel E. Fuller and Leonard H. Evarts, as executors of the will of Julia S. Newman, deceased, against Eunice M. McKim and others for construction of said will. From the decree entered, complainants appeal.
    Reversed and decree entered in this court.

      Colgrove & Potter, for complainants.
   Person, J.

Julia S. Newman died in this State on the 25th day of July, 1911, leaving a will by which she disposed of some $70,000, all in pecuniary legacies and trusts. When the will was made, on the 17th day of October, 1910, she was a resident of New York, and from the language of the instrument it was evidently her expectation that her property would be administered in accordance with the laws, and through the courts, of that State. Shortly thereafter, however, she came to Michigan, and her domicile was here at the time of her death. She left comparatively little property other than real estate in the city of New York, in fact, nothing except the personalty, appraised here at $2,286.15, out of which some $400 and more has been used for funeral expenses. There is no direct proof of the value of the New York real estate, but in the lease to be hereinafter mentioned an option is given for its purchase at $125,000, and the circuit judge assumed, no doubt correctly, that such was its probable worth.

In the will, following the provisions for the direct legacies and the trust, all to be paid in money, are these directions, to wit:

“Eighteenth — I hereby authorize, direct and empower my executors and such of them as may qualify, and the survivor of them, to sell and dispose of all of the real estate of which I may die seized or possessed, whether in the State of New York or elsewhere, upon such terms and in such manner as to them shall seem best, but it is my wish, and I direct that if such can be done under and in compliance with the law of the State of New York, that my real property now known as No. 15 West Thirty-First street, shall not be sold during the lifetime of the lease of said property now outstanding and in force.
“Nineteenth — Until the sale of my property, now known as No. 15 West Thirty-First street, or the proceeds thereof otherwise coming into the hands of my executors, I direct that the legacies aforesaid and the trust funds set apart aforesaid shall be paid out of the personal property that I may leave and the income from my real estate in the following order:
“I. The fund for keeping in order my plot and the monument in Woodlawn.
“II. The provision for my nephew, Leonard H. Evarts.
“III. The provision for the children of my nephew, Simpson Shipman, provided for in the eleventh paragraph :
“As to all the other legatees hereinbefore provided I direct that the income from my said property, No. 15 West Thirty-First street, be applied pro rata among them until the sale or other disposition of said property as hereinbefore provided for.
“Twentieth — And I further direct that should my estate prove insufficient to pay said legacies in full I direct that said legacies be reduced pro rata and distribution be made accordingly, except that in no event shall the trust fund for the maintenance of my plot in Woodlawn be reduced.
“Twenty-First — Should any of the legacies or trusts, hereinbefore provided for be held to be in contravention of the laws of the State of New York, I direct that then and in that event the distribution of the amount therein provided for shall be made according to the statute of descent and distribution of the State of New York.”

The will contains no residuary clause, and no disposition is made of the residue,of the estate, if there should be any. The lease mentioned in the “eighteenth” paragraph of the will was outstanding at the death of the testatrix, and is yet outstanding. It covers the entire real estate and was drawn for a term of 21 years from the 1st day of May, 1906, at an annual rental of $5,000, payable in monthly installments. It contains provisions for the granting, under certain conditions, of two new consecutive leases of the same lands to the same tenant, at rentals to be determined according to a prescribed plan, each new lease to be also for a term of 21 years, the first to begin at the termination of the present lease, and the second at the termination of the first new lease; also by the present lease the tenant is given an' opportunity to purchase the premises, at any time during its term, for a consideration of $125,000.

The will was duly admitted to probate in the county of Barry, in this State, where the testatrix resided at the time of her death, and complainants were appointed its executors. , Subsequently, and before beginning this suit, they caused the will to be also admitted to probate in New York, and ancillary proceedings are now pending in that State with complainants as the New York representatives. It is not shown that any steps had been taken, when this suit was begun, towards the sale of the New York property, and it is to be presumed that none had been taken.

The complainants, as executors, file this bill for a construction of the will, alleging doubts and difficulties as'to most of its provisions, and asking instructions as to nearly every step to be taken in its administration. They wish to know whether the will directs an equitable conversion of the New York real estate; whether it should be construed in accordance with the laws of Michigan or with the laws of New York; whether it violates the statutes against perpetuities and illegally suspends the power of alienation, and, if it does, whether such illegality affects the entire will; whether the legacies are a charge upon the real estate, or only upon the personal property; whether any residue that there may be will pass under the laws of New York or under the laws of Michigan; and as to the payment of transfer taxes.

The decree appealed from passes upon most of these questions, holding that the directions for the sale of the real estate are mandatory, and work an equitable conversion of that property; that the testatrix intended by the provisions of the will to charge the real estate, as well as the personal estate, with tbe payment of the legacies; that the executors are authorized to control the real estate in New York, receive and collect the rents, dispossess the tenant for noncompliance with its terms, and thereupon to lease and release the property; that all the trusts are valid,"both by the laws of New York and Michigan; that the executors should pay all transfer taxes, whether assessed in Michigan or New York, with all interest or penalties thereon; that the will should be construed according to the laws of New York wherever those differ from the laws of Michigan; and that any residue of the estate not disposed of will pass under and in accordance with the laws of the State of New York.

The executors alone appeal to this court, and the lack of interest on the part of the legatees in the proceedings is shown by the fact that the only brief before us is that furnished by counsel for the appellants. From an examination of the record we are led to rather doubt whether all of the peculiar features growing out of the present situation of the assets of this estate were fully brought to the attention of the able circuit judge by whom the case was heard.

Until sufficient rents and income from the lands in New York, where'ancillary proceedings are being had, shall be received by complainants as Michigan executors, and perhaps not until such lands shall have been sold and the proceeds are in their hands, will there be money enough within the jurisdiction of the courts of this State, or within control of complainants as executors in this State, to satisfy the first preference mentioned in the “nineteenth” paragraph of the will hereinbefore quoted. Whether, even, any part of the limited amount of personal property now here will be left, after payment of the expenses of administration, to be applied upon the legacies, cannot as yet be determined. Practically the entire fund with which to meet the requirements of the will is yet to come, if it comes at all, from, real estate in a foreign jurisdiction. Under these circumstances it is somewhat speculative for courts of this State to pass upon the validity of trusts which the executors here have no means of satisfying, and especially is it speculative to pass upon the distribution of a residue that may never exist. It has frequently been held that a court of equity should not attempt to direct the disposition of a fund until it is within the control of the executors asking for the instructions. Tuttle v. Woolworth, 62 N. J. Eq. 532 (50 Atl. 445); Hughes v. Fitzgerald, 78 Conn. 4 (60 Atl. 694); Meacham v. Graham, 98 Tenn. 190 (39 S. W. 12); 40 Cyc. p. 1846.

There is also a still further reason why it was not competent in the decree before us to pass upon the validity of the trusts in the will, or upon the disposition of any possible residue of the estate coming into the hands of the executors, and not disposed of by the will. Any such residue must necessarily be intestate, belonging to the heirs or next of kin of the deceased, and not to be affected by any action of the court until such heirs and next of kin shall be made parties to the proceedings, and have a chance to be heard. Lomerson v. Vroom, 42 N. J. Eq. 290 (11 Atl. 13); McKethan v. Ray, 71 N. C. 165; Stevens v. Smith, 126 Fed. 706 (61 C. C. A. 624); 40 Cyc. p. 1851. And as to the several trusts which the will creates, or attempts to create, it is provided by the will itself, in the “twenty-first” paragraph above cited, that in case any of them should be held to be in contravention of the laws of the State of New York, then the money provided by the will for such contravening trust shall be distributed according to the statute of descent and distribution of that State. Undoubtedly those thus alternatively taking should also be parties to the suit, and be heard, should they so choose, as to the validity of the trusts.

But the bill of complaint does not attempt to tell us who are the heirs, or next of kin, of the testatrix, nor who are the distributees of her estate under the laws of New York. No one is made a party to the bill under those designations. Probably the petition for the probate of the will, a copy of which appears in the records, is no proof in this court of the facts therein stated, yet according to that petition there is at least one heir —Simpson Shipman — who is not a party to . this 'suit, and we are not informed as to whether there may or may not be others. We think, therefore, that the court was not in a position to pass upon the validity of the several trusts, nor upon the disposition to be made of a possible intestate residue.

The real question of present importance, however, is, as stated by the circuit judge, the intention of testatrix as regards the real estate in the city of New York. She could not have failed to realize the immense disparity between the small value of her personal property and the large aggregate bequests she was making. It was unquestionably her intention that these bequests should be paid, so far as was necessary, out of such rents and income as the executors might receive from the real estate, and out of the proceeds arising from the sale of the real estate. She, in fact, directly charges their payment upon such rents and income, and upon the proceeds of such sale, in the “nineteenth” and “twentieth” paragraphs of the will.

It was her intent that the sale should be postponed so long as the present lease might remain outstanding and in force against the property, if that could legally be done, and that during such postponement the executors should receive the rents and income, and apply them in accordance with the terms of the will. Indeed, the right to receive the rents and income was clearly intended to be a condition to the postponement, a part of the scheme for postponement, and if, because of illegality, any portion of this- scheme should fail, she intended that a sale of the property should be effected immediately, or as soon as the executors could reasonably'accomplish it. When she directs a postponement of the sale during the lifetime of the present lease, she clearly did not intend it to continue during any part of the terms of the succeeding leases provided for in this one, nor necessarily during all the years remaining of the designated term of the present lease. She only intended a postponement so long as this lease should continue outstanding and in force against the land; and whenever it should cease for any reason to continue as an existing lease, she intended that the direction for the sale of the property should 'be absolute and mandatory:

" The courts of a testator’s domicile are justified in construing the will so far as to determine its intent, no matter where the property may be located. This is for the guidance of the executors there appointed, so far as they may have duties in the premises. The only portion of this will in which they have an immediate interest is that relating to the real estate in New York as a source of funds for the payment of the legacies bequeathed. As to this we have indicated the intent of the testatrix as we understand it.

While the courts of the domicile may, and perhaps ought, to construe a will, even where foreign lands are affected, so far as to discover the intent of the testator, they have no power to determine the effect of such intent, or of such will, upon the title to lands in another State. As was said by the New York court of appeals, in Knox v. Jones, 47 N. Y. 389, speaking of a somewhat similar situation relative to lands in California:

“Title to real estate can only be acquired or lost agreeably to the law of the place where the same is situated. The tenure, mode of enjoyment, transfer, and descent of real property is regulated by the lex loci rei sitae. Whether, therefore, the trust created by the will is valid, or whether it is void as in conflict with the laws and policy of the State of California, can only be determined by the courts of that State.”

It is to the courts of the State of New York, in this case, that the executors must apply for an authoritative determination of their rights and interests in and power over the lands in that State, as given by the will under consideration. Ford v. Ford, 80 Mich. 42 (44 N. W. 1057); Id., 70 Wis. 19 (33 N. W. 188, 5 Am. St. Rep. 117); Clark’s Appeal, 70 Conn. 195 (39 Atl. 155); Carpenter v. Strange, 141 U. S. 87 (11 Sup. Ct. 960); Peet v. Peet, 229 Ill. 341 (82 N. E. 376, 13 L. R. A. [N. S.] 780, 11 Am. & Eng. Ann. Cas. 492). It follows that the circuit court, in the decree appealed from, went too far, in declaring the rights of the executors in, and their control over, the real estate in New York City. No doubt the ancillary administration in New York will determine all questions as to the transfer of inheritance taxes, if any, in that State, and the duties of the executors in relation thereto. When the fund reaches this State, if it does reach it, any perplexities in that direction can be solved.

The decree of the circuit court will be reversed, and one will be entered in accordance with and to the extent indicated by this opinion, without prejudice to the right of complainants and others interested to reapply to the court at a proper time for a construction of the will as to matters not herein disposed of and as to such further questions as may arise.

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

This case having been submitted on briefs, without oral argument, was reassigned after the death of Justice McAlvay.


text:
    HUTCHINS v. VINKEMULDER.
    1. Factors — Principal and Agent — Liability of Factor for Goods Received — Instructions.
    In assumpsit on the common counts to recover the value of a quantity of pears, claimed by plaintiff to have been sold to defendants and by the latter to have been delivered to them to he sold on commission, it was error for the court, upon the ground that plaintiff was entitled to recover upon either theory of the case, to instruct the jury that mere possession or receipt by the, defendants of the goods under consignment makes them liable prima facie for their value.
    2. Same — Accounting—Burden of Proof.

      ft is the duty of a factor to exercise ordinary prudence in caring for and disposing of the property intrusted to him, and to duly account for it or its proceeds, but the burden of showing such a receipt of money as will impose upon him the duty to account is upon the principal.
    3. Same — Pleadings — Declaration — Assumpsit — Common Counts.
    An action based upon the common counts as for money had and received will not authorize a recovery if the defendants received the goods to be sold on commission, as claimed by them.
    4. Same — Presumptions—Evidence.
    Any presumption that defendants had sold the goods and received the money, arising from the lapse of considerable time, is overcome by their uncontradicted evidence that they had received no returns from the goods.
    5. Same — Accounting—Conversion—Pleading.
    Neither a mere failure of the factor to account for the proceeds, nor a sale of the goods by the carrier, in the absence of evidence as to the facts of the sale, amount to a conversion of the goods by the factor, which would render him liable in an action upon the common counts alone; plaintiff’s action should be based upon a breach of promise to account.
    6. Evidence — Hearsay—Correspondence.
    Correspondence between a factor and his agent, for the purpose of showing what had become of the goods and what was done by defendant in the discharge of his duties, is inadmissible as hearsay.
    Error to Kent; Brown, J.
    Submitted October 8, 1914.
    (Docket No. 36.)
    Decided September 28, 1915.
    Assumpsit by Edward Hutchins against Henry J. Vinkemulder and Moses J. Dark, copartners as Vinkemulder Company, in justice’s court for goods sold and delivered. Judgment for defendants and plaintiff appealed to the circuit court. Judgment for plaintiff. Defendants bring error.
    Reversed.

      Don E. Minor, for appellants.

      Clapperton, Owen & Hatten, for appellee.
   Person, J.

The plaintiff is a fruit grower near Fennville, Mich., and the defendants are copartners handling fruits and produce in the city of Grand Rapids. On or about the 4th day of November, 1911, plaintiff delivered to defendants 135 barrels of pears. An agent of defendants ordered the placing of the car, into which the pears were loaded by plaintiff, and the car was billed from Vinkemulder Company to Vinkemulder Company at Memphis, Tenn. It appears that within a few days after the shipment the parties were asserting conflicting claims as to the terms upon which the pears were delivered into the possession of the defendants. The plaintiff claimed that it was an absolute sale at $1.35 per barrel, while defendants insisted that the fruit was delivered to them to be sold on commission. Towards the last of the following January plaintiff placed the matter in the hands of an attorney, who demanded payment of defendants on the theory that the transaction was a sale' and purchase. In reply to this demand the defendants informed the attorney that they had never received any returns from the car, that it was refused, that the railroad company took the fruit and sold it, and that they had entered a claim against the railroad company for the value of the property.

On January 18, 1913, the plaintiff brought this action in justice’s court, declaring orally on all the common counts in assumpsit, and specially for goods sold and delivered. With the declaration he filed a bill of particulars in the following language:

November, 1911. To 135 barrels of pears at $1.35 per barrel $182.25

Judgment passing for defendants before the justice,plaintiff took his appeal to the circuit court, where the case was again tried at the September term, 1913. Upon the trial in the circuit the parties tenaciously adhered to their adverse theories as above stated; The plaintiff testified to, an absolute sale of the pears to defendants at an agreed price of $1.35 per barrel, and rested. The defendants denied a purchase of the pears, and as emphatically insisted that the pears were received by them to be 'sold on commission. Evidence was given by them that they had never received any returns from the pears, and that for plaintiff’s benefit they had presented a claim to the railroad company for their value, placing such value at $1.75 per barrel;

For the purpose of showing what had become of the property the defendants offered in evidence telegrams from their correspondent in'Memphis. Upon objection by plaintiff’s' counsel, these were excluded as in-' competent proof of the facts sought to be established' by them. After the rejection of this correspondence,, the defendants offered no further or other proof as to what had become of the pears. It was not shown on what grounds the claim had been presented ágainst the railroad company, nor why it had not been paid. What became of the fruit, after shipment from Fennville, was left entirely in the dark, so far as proof is concerned. At the close of the evidence it was- insisted by his counsel that plaintiff was entitled, under the evidence, to recover upon either theory of the case, as well if the pears were to be sold on commission as if. purchased outright by defendants. - Against the objection of counsel the court accepted this view and instructed the jury, among other things, as follows:

“So I say that the mere possession or receipt by the defendant of the goods under consignment makes him liable prima facie under the arrangement of the con-' signment for the value of the goods; and if the defendant or any person receiving the goods under consignment should simply convert them to his own use and not attempt to sell them, then the plaintiff would be entitled to recover in such case the fair market value of the goods, less the expenses involved in the ordinary marketing of the goods, and less the commission or the terms of the agreement of consignment.”

And it refused to give this instruction requested by defendants:

“I charge you as a matter of law that under the pleadings of this case that if you find from the evidence that the pears mentioned in the plaintiff’s bill of particulars were not sold by the plaintiff to the defendant, or that the defendant did not buy the pears as claimed by the plaintiff, but that the defendant handled said pears upon a commission, that then in such case the plaintiff cannot recover, and your verdict must be no cause of action.”

The jury having returned a general verdict in favor of plaintiff, without any special findings, it becomes necessary to determine whether the court was right in permitting a recovery upon defendants’ theory that the pears were received to be sold on commission. According to the claim of defendants their relation to the plaintiff was that of factors, or, as more commonly called commercially, commission merchants. They were agents of the plaintiff, and bailees in possession of his property for the purpose of selling the same and accounting for the proceeds. The plaintiff gave them no particular instructions as to the manner in which they should discharge their duties, and they assumed no obligations beyond such as ordinarily arise from the relation. Simply as factors, they were not purchasers of the property intrusted to them, and the instruction of the court that “the mere possession or receipt by the defendant of the goods under consignment makes him liable prima facie under the arrangement of the consignment for the value of the goods” was therefore not a correct statement of the law. This mistake was repeated in various parts of the charge, and seems to have been the theory upon which this branch of the case was submitted to the jury.

A factor, or commission merchant, is charged with various duties arising from his employment. Among others, it is required that he exercise ordinary prudence in caring for and disposing of the property intrusted to him, and that he duly account for it or its proceeds.

“The burden of showing the existence of such a relation, and such a receipt of money or property as will impose upon the agent the duty to'account, is upon the principal. When, however, this showing has been made, or when the agent voluntarily admits the receipt of the property or money, the burden of showing that he made a proper disposition of it rests upon the agent.” Mechem on Agency (2d Ed.), § 1344.

Where a duty arises from the relation of the parties, there is ordinarily a promise, either implied in fact or created by operation of law, to perform that duty, and upon the breach of which an action of assumpsit may be maintained under proper pleadings. Reeside’s Executor v. Reeside, 49 Pa. 322 (88 Am. Dec. 503).

But the declaration in this case is upon the common counts alone, and the proofs do not disclose such a state of facts as authorizes a recovery upon any of the common counts, if the defendants received the property to be sold on commission. After the lapse of considerable time, without any accounting, it may under some circumstances be presumed that an agent to sell goods has sold them, and an action may be maintained against him for-money had and received. 1 Mechem on Agency (2d Ed.), p. 975, note. In the case at bar, however, there was no actual evidence that defendants had sold the goods, or received any money for them, and the presumption arising from the lapse of time without an accounting was overcome by their undisputed testimony that they had not received any return whatever from the pears.

This court has also frequently held that, upon conversion of the property by a bailee, the tort may be waived, and an action maintained as for goods sold and delivered. This is because the bailee’s possession of the property and duties relating to it result from the contract relation between the parties. Fiquet v. Allison, 12 Mich. 328 (86 Am. Dec. 54); Morrison v. Cole, 30 Mich. 102; McDonald v. McDonald, 67 Mich. 122 (34 N. W. 276); Newman v. Olney, 118 Mich. 545 (77 N. W. 9); Brown v. Foster, 137 Mich. 35 (100 N. W. 167). But a mere failure to account is not proof of a conversion. If the railroad company sold the pears, such sale might or might not have resulted from the negligence of the defendants. We express no opinion as to this because we do not know the facts. But a sale by the railroad company, standing alone, does not show a conversion of the property by these defendants. While the failure of 'defendants to properly account to plaintiff for the pears might have authorized a recovery, had the action been brought for a breach of the promise to account, we know of no theory, under the proofs in this case, whereby plaintiff can recover of defendants, as factors, upon the common counts alone.

We think that the correspondence between defendants and their agent in Memphis, by the way of telegrams and otherwise, was properly excluded. This correspondence was offered for the purpose of showing what had become of the fruit and the things done by defendants in the discharge of their duties as commission merchants. For this purpose the testimony was merely hearsay. The identical question was considered in Framingham Manfg. Co. v. Barnard, 2 Pick. (Mass.) 532, where the court said:

“No case has been cited in which the letters of a person employed by an agent have been received in evidence to prove diligence or faithfulness in the agent.”

Complaint is made of certain language used by counsel, for plaintiff in addressing the jury. Inasmuch as the case must be reversed upon other .grounds, it is sufficient to say that this language was unwarranted by anything that appears in the record, and ought not to have been used.

Judgment reversed, and a new trial ordered.

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

This case, having been submitted on briefs, without oral argument, was reassigned after the death of Justice McALVAY.