author: Ostrander, O. J.

text:
    INTERNATIONAL TEXT-BOOK CO. v. MARVIN.
    1. Contracts — Fraudulent Representations — Evidence—Legal Eeeect op Stipulations — Parol Evidence.
    Under the terms of a contraot to provide instruction in mechanical drawing by correspondence to defendant, by plaintiff, in an action for the stipulated price remaining unpaid, evidence of defendant was not competent to show that the agent who procured his signature to the agreement falsely represented that the contract was one for mechanical engineering, that defendant need not continue the course if he was unable to do so; no testimony tending to vary or contradict its terms was admissible.
    2. Same — Deceit—-Appeal and Error — Damages.
    The contention that it was a fraud to induce a working man with a family to undertake a course in engineering by correspondence could not be considered on error, in a case in which the contention was not urged on the trial; nor could defendant insist that plaintiff was only entitled to nominal damages after proceeding on the theory below that plaintiff was entitled to the damages claimed if the contract bound defendant.
    3. Same — Breach—Damages.
    Notwithstanding a proviso in the contract that when accepted by the plaintiff it should not be subject to cancellation nor could defendant require any part of his payments to be returned, the damages recoverable were those occasioned by the breach, not the entire price.
    Error to Wayne; Murphy, J.
    Submitted June 6,1911.
    (Docket No. 1.)
    Decided September 29, 1911.
    Assumpsit by the International Text-Book Company against Norris E. Marvin on a contract of subscription to a correspondence course. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Choate, Webster, Robertson & Lehman (Otto Kirehner and David C. Harrington, of counsel), for appellant.

      Thomas L. Dalton (James 8. Doyle, of counsel), for appellee.
    Defendant signed a paper, partly printed, partly written, headed:
    “ Do not sign this subscription without reading it. It is subject to acceptance by the company at Scranton, Pa., and agents are not authorized to change its conditions ”— and reading: “I hereby subscribe for a scholarship in the International Correspondence Schools, covering a course of correspondence instruction in mechanical drawing with mathematics,” etc.

      The price agreed to be paid was 173.60, payable $5 on signing subscription and $5 monthly thereafter. Defendant paid $5 and no more. He received by mail a certificate of enrollment and, later, some instruction papers. He returned such papers to the office of the plaintiff in Detroit and declined to pay more or to pursue the course.
    Suit was begun in justice’s court and an appeal taken to the circuit court. The action was assumpsit; the declaration alleging, among other things, that plaintiff had exercised its contract option to declare the balance unpaid on the contract to be due and payable, and had demanded payment accordingly. With his plea defendant gave notice that he Fould show that there was fraud and misrepresentation in the inception of the contract, and that the signature of defendant to the contract was procured by fraud and misrepresentation. In the circuit court a motion to direct a verdict for plaintiff was overruled and a verdict for defendant was returned, upon which a judgment was entered. It is recited in the record that plaintiff moved for a new trial “ for the reason, among others, that the verdict was against the weight of the evidence, which motion the court overruled and gave plaintiff an exception thereto.”
    The errors assigned relate (a) to rulings admitting testimony, (6) the refusal to direct a verdict for plaintiff, (c) the overruling of the motion for a new trial. It is further assigned as error that the court permitted the jury to determine what the contract of the parties was. The position of defendant, at the trial, was one confessing that the plaintiff ought to recover the amount unpaid on the contract, if the contract was binding on defendant.
    The issue submitted to the jury was stated in the charge to the jury as follows:
    “The two aspects of the case presented to you are these: Did the plaintiff through its agent, Mr. McGregor, fairly advise the defendant that the contract was for a course of instruction in mechanical drawing, and with that understanding did the defendant attach his signature to the contract ? If so, then, if you find further that the plaintiff has been willing, up to this time, to carry out its duties in the matter, your verdict should be for the plaintiff for the sum in question.”
    The jury was further instructed:
    “Now, assuming what I said with reference to the defendant, when you come to regard the defense which he interposes here, it is necessary, before you accept that defense, to be satisfied by a preponderance of the defendant’s proof that there was a misrepresentation to the effect that the course of instruction was to be in mechanical engineering, and that the defendant, relying upon that representation, and because of it, entered into the contract. If so, your verdict should be for the defendant. Now, in viewing this case, you are called upon to scrutinize the testimony of the witnesses for both sides, with a view to endeavoring to find out just what contracts these parties made. It is not for you sitting here to make a contract for them. They had their day of negotiations with each other, and whatever they mutually agreed upon at that time should be binding upon them. So it is your province here, not to make a contract for them, but to endeavor to find out from the testimony of these witnesses just what was the precise agreement which they made, and, having found out that, leave them where they put themselves. You are not to favor one or the other, but to endeavor to find what their negotiations were, and what mutual agreement they finally came to, and then leave them in the very situation, whatever it may be, in which they voluntarily and mutually placed themselves. It is not your concern where they are left, but it is your concern to find out what mutual agreement they actually came to, and to require both of them to live up to it, whatever it was.”
    The defendant testified, over objections, that the plaintiff’s agent solicited him to take, and agreed to give him, a course in mechanical engineering; that he spoke something about mechanical drawing and told him the two went together; that when he signed the contract the agent said it did not amount to anything, only an enrollment.
    “ He had the contract in his hand, or the paper, what he called the enrollment. He put it on a stand where I was sitting before, with his name on it. He said, ‘ Put your name right down there.’ He didn’t let me see the paper at all. I didn’t think it amounted to anything, only for me to take out a course in that school, and I put down my name on it, and he told me afterwards I would not be obliged to go on with it, if I saw I could not go through with it. When he didn’t do with me what he agreed to in the first place, and I could not work out what he did tell me, I told him right out I could not do it, and that he had deceived me in giving me something else in place of what he agreed to give me.

      "Q. How many of those were sent to you (showing three papers) ?

      “A. Three came in one envelope, if I am not mistaken, all came at once, and that was all the lessons I ever got, and I told him when I got those I could not work them out, and they were not even what I asked him for or what I supposed I was getting.

      "Q. Did you attempt to work them out ?

      “A. Yes, sir.

      “Q. And you could not work them out ?

      “A. No, I could not do anything with them, and I told him that the first time he came.

      “Q. You told him when he came your education was such that you could not work out the proposition ?

      “A. Yes, sir; and he said, you would have to, you have got to now.
    “Q. Did you refuse to pay him anything further on the contract ?

      “A. Yes, sir; I refused to pay him anything further on the proposition.

      “Q. At the time you signed that contract, at that time he told you that the mechanical engineering and mechanical drawing went together ?

      “A. Yes, sir.

      “Q. Did he afterwards tell you they didn’t ?

      “A. Not until after I came down here to the office. I came down, looked through the papers, and came down to the school with it, and turned them in. ‘ Mechanical engineering is $140, ’ he said. I said, ‘ You agreed to give me mechanical engineering for something over $60,’ and he said, {Oh! No, no.’

      '‘Q. Whom did you have the conversation with at that time?

      "A. Mr. McGregor and Mr. Schoolcraft, if I am not mistaken; I think there was another gentleman. I don’t remember his name now.

      “Q. He wanted $140 for that course ?

      “A. Yes, sir.

      “Q. Did he solicit and say you could go through that in six months ?

      “A. He said, if I could average and put in two hours a day, I could go through it in six months, and an hour a day I could easily enough do it in a year. * * *

      “Q. When you received this enrollment on the 17th of July, did you then take up the question of mechanical engineering with him ?

      “A. Yes, sir.

      “Q. Then he told you you were only taking mechanical drawing ?
    “A. Yes, sir.

      “Q. Then later you went to the office with him ?

      “A. Yes, sir.

      “Q. Was it there you learned that mechanical engineering cost $140 ?

      “A. Yes, sir.

      “Q. You received those lessons ?

      “A. I think those are the ones; I received three little books, they all came together, and I looked them over some. He said I would receive lessons until the course was completed; he didn’t say how many lessons.”
    He also testified without objection:
    “I am an extra conductor on the railroad now, and have been railroading 12 years. I remember the occasion of this gentleman calling on me to solicit me for something in the International School, some course.

      “Q. Did he call on you frequently ?

      “A. He bothered me two or three times there before; he came there, and I told him I had no education to go ahead in anything like that. He said it didn’t require any, he said it wouldn’t require any; if I would put in an hour a day, it wouldn’t take me over from six months, he said about a year, if I put in an hour a day; if I could study two hours a day, I could get through with it in about a year; and I found out later it took seven years for a good scholar to go through with it.”
   Ostrander, O. J.

(after stating the facts). We have had difficulty in applying to the record much that is said in the main brief for appellant, in making which, Bule 40 of this court was not observed. We have read the “Additional Assignment of Error and Brief,” signed by foreign counsel but not by local counsel, filed in this court June 5, 1911. It is assumed therein that the effect of the rulings made by the trial court, adverse to plaintiff, was to impair the obligation of a contract, in violation of the Constitution of the United States. No Federal question was suggested at the trial, and no Federal question is considered by this court.

No argument is made in the brief for the appellee to support the rulings admitting testimony, the charge of the court, or the theory according to which the issue of fact was left with the jury. Nevertheless, we must sustain the judgment if no error occurred at the trial. The theory according to which the issue was left to the jury is one which assumes that defendant agreed with plaintiff’s agent that he would subscribe for a course of instruction in mechanical engineering, and that if this was so he would not be bound by his written proposal and subscription to take a course of instruction in mechanical drawing. It does not appear that defendant’s counsel made objection when the court advised the jury that defendant claimed that jt was represented to him that he was to be given a course of instruction in mechanical engineering, and with that understanding he attached his signature to this contract. Some of defendant’s testimony supports this statement of his claim. There is to be found in it support also for the contention that he did not suppose the writing was a contract, but supposed that it was a mere enrollment which involved no liability. As the theory that defendant intended to make a written contract or proposal was accepted by the court, approved by defendant, and given to the jury, we accept it in considering the assigned errors the more readily because defendant did not deny the execution of the writing.

It is contended that the effect of the final act of defendant, i. e., the signing of the paper writing containing the proposal and delivering it to plaintiff’s agent, must be determined from the writing; therefore all testimony concerning what plaintiff’s agent said concerning its legal effect, and that defendant was not obliged to continue the course, was improperly received. The contention is sustained by the general rule. An inspection of the writing shows that it is so drawn as to be a complete memorial of the arrangement of the parties and, after acceptance by plaintiff, a complete contract. It does not fall within the class of writings considered in Phelps v. Whitaker, 37 Mich. 72; Weiden v. Woodruff, 38 Mich. 130; Walter A. Wood Mowing, etc., Machine Co. v. Gaertner, 55 Mich. 453 (21 N. W. 885); Bird v. Pope, 73 Mich. 483 (41 N. W. 514); Palmer v. Roath, 86 Mich. 602 (49 N. W. 590); Richey v. Daemicke, 86 Mich. 647 (49 N. W. 516); Butler v. Iron Cliffs Co., 96 Mich. 70 (55 N. W. 670), and many other like cases. And therefore testimony to vary or contradict its terms was inadmissible. Some of these cases and others are considered, commented upon, and distinguished in Cohen v. Jackoboice, 101 Mich. 409 (59 N. W. 665). See, also, R. K. Carter & Co. v. Weber, 138 Mich. 576 (101 N. W. 818).

Undoubtedly, parol evidence is admissible to show fraud and deceit at the inception of an instrument, and in this court counsel for appellee argues that plaintiff’s agent was guilty of fraud and deceit in inducing defendant, a workingman with a family, to believe that he could complete, or could profitably pursue, a correspondence course in engineering. He points out that a high school graduate must pursue such a course in our universities for four years, and says it is only the credulous who are seduced into subscribing for such a course of study in a correspondence school, with the idea of pursuing it in one or two hours of daily study. Whatever merit this contention may possess, it is not within the theory given to the jury. As the case was tried, the court should have directed a verdict for plaintiff.

It is contended by counsel for appellee that, inasmuch as plaintiff offered no proof of damages sustained by the breach of the contract, a verdict could have been directed in its favor for nominal damages only, and for this reason the judgment should not be reversed. International Text-Book Co. v. Schulte, 151 Mich. 149 (114 N. W. 1031); International Text-Book Co. v. Jones, ante, 86 (131 N. W. 98). See, also, Wigent v. Marrs, 130 Mich. 609 (90 N. W. 423). The point was not made in the court below, where, as has been stated, defendant apparently conceded the amount of the verdict if one was returned for plaintiff. We cannot know that plaintiff would not have presented further proofs if the concession had not been made. We therefore reverse the judgment with the right to a new trial. In view of the contentions made in this court in behalf of plaintiff, we think it proper to say that we are unable to distinguish this case and the first two of those above cited upon the facts.

The contract contains the provision that the subscription “when accepted by you shall not be subject to cancellation, and that you shall not be required to refund any part of the money paid for said scholarship,” which provision was not contained in the contracts considered in the cases above referred to, and contains also a provision that if default is made in the payment of any installment the whole amount remaining unpaid should thereupon become due and payable at the option of plaintiff. We are nevertheless of opinion that the damages recoverable are those occasioned by the breach of the contract, to be measured by the rule announced in the cases cited. It may be found that they are, substantially, the amount unpaid upon the subscription.

The judgment is reversed, and a new trial granted.

Bird, Moore, McAlvay, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, C. J.

license: Public Domain

text:
    MINER v. NATIONAL CASUALTY CO.
    Insurance — Health and Accident — Notice.
    A policy of insurance indemnifying the insured against siokness during a period of not more than 26 weeks, containing a provision that notice in writing of any disability for which claim is to be made must be sent to the secretary within 10 days after the beginning of such disability, sustains a recovery of the stipulated weekly sum for 26 weeks from and after the date on which notice was sent, although notice was not given 10 days after the illness began.
    Error to Gratiot; Searl, J.
    Submitted June 9, 1911.
    (Docket No. 27.)
    Decided September 29, 1911.
    Assumpsit by George M. Miner against the National Casualty Company on a policy of insurance. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      Henry C. Walters, for appellant.

      John T. Mathews, for appellee.
   Ostrander, C. J.

In a suit upon a policy of insurance, plaintiff claimed, and by direction of the court had, a verdict and judgment fpr the indemnity promised in the fourth subdivision of the policy, which reads:

“Fourth. At the rate of $8.00 dollars per week after this policy has been in force without delinquency for thirty days immediately prior to the beginning of sickness, should the assured by reason of sickness be wholly incapacitated from transacting any kind of work or business and as a result thereof be necessarily, entirely and continuously confined to the house and under the charge and subject to the persona] calls of a regular licensed physician; provided that he shall not be paid for the first week so confined nor for more than twenty-six weeks for any one continuous sickness.”

He offered testimony tending to prove such sickness and disability as is described in the aforementioned clause for a period of 36 weeks following some time in September, 1909. No testimony was offered by the defendant, which was not represented by counsel at the trial. With its plea, defendant company gave notice that it would insist in its defense that the said plaintiff did not give notice in writing to the company of the disability for which indemnity is claimed in this action within 10 days after the beginning of said disability, or at any other time, as required by the policy of insurance. The provision for notice reads:

“ Notice in writing of any disability or death for which claim is to be made must be sent to the secretary of the association at Owosso, Mich., within ten days after the beginning of said disability in order to entitle claimant to indemnity.”

Whether a proper notice was given is the only question presented for our consideration. It is alleged in the declaration under a videlicet that on July 10, 1909, plaintiff was stricken with sickness which rendered him for a time incompetent to do and perform any business in which memory, judgment, or business discretion was required, by reason whereof he became entitled to receive, and the defendant became obligated to pay to him, $8 a week, to wit, from the 1st day of August, 1909, to wit, for 36 weeks. The testimony for plaintiff tended to prove that his illness began in June, 1909, and continued during a part of that month, during the month of July, and the month of August. The nature of the illness is not made very clear, nor whether the plaintiff suffered during that time and thereafter on account of the same illness or illness produced by the same causes. No physician testified. The questions asked the plaintiff tended to elicit proof of the fact, if it was a fact, that during the months of July and August he was in such condition that he was unable to give, or to direct to be given, notice to the defendant company of his illness, and that he gave notice at the earliest opportunity in the beginning of the month of September. Without setting out the testimony, it is sufficient to say that it has no tendency to prove any such thing and if the plaintiff’s recovery must depend upon a notice given within 10 days from the time when the illness which he described began, a verdict should have been directed for the defendant.

But plaintiff takes the position also that for the 26 weeks ensuing the time when notice was given he is entitled to recover. This contention amounts substantially to this: If the insured is ill for 52 weeks, neglects to notify the company during the first 25 weeks, and then gives it notice, he is entitled to recover for the 26 weeks succeeding the time of giving the notice. Support for this contention is found in the terms of the condition itself, and, in the absence of an express provision to the contrary, in sound reason. The liability of the insurer is in any event limited to a period of 26 weeks, and if, after proper notice to the company, the insured is for that period, or any portion of it, otherwise entitled to the indemnity which is demanded, we see no good reason for denying relief. We can conceive of no purpose which the notice is intended to serve which is not as well served in such a case as it is in a case where notice is given within 10 days after the illness began. The condition relied upon relates to a disability for which claim is to he made.

The judgment is affirmed.

Bird, Moore, McAlvay, and Brooke, JJ., concurred.


author: Moore, J.

text:
    YOST v. GRAND TRUNK RAILWAY CO.
    Master and Servant — Personal Injuries — Hazardous Employment.
    Plaintiff applied for clerical employment at the office of defendant railway company and was put at work indexing cars. From the first he was required, as a part of his duties, to check each freight car as it went out of the yard. In performing his work, which was subsequently changed to day work, plaintiff climbed on the side of a car and was brushed off and injured by another car which the train passed. Held, that his duties were from the first those of a car checker and he was not changed to a hazardous employment that he did not engage to perform.
    Error to Wayne; Hosmer, J.
    Submitted June 7, 1911.
    (Docket No. 16.)
    Decided September 29, 1911.
    Case by Harry Yost, by bis next friend, against tbe Grand Trunk Railway Company for personal injuries. A judgment for defendant on a verdict directed by tbe court is reviewed by plaintiff on writ of error.
    Affirmed.

      Milligan & Milligan, for appellant.

      Harrison Geer, for appellee.
   Moore, J.

The plaintiff, while checking cars, was brushed from tbe side of a freight train and lost a portion of bis band. He sued to recover damages. From a directed verdict in favor of defendant, tbe case is brought here by writ of error.

We quote from the brief of counsel:

“Tbe right of recovery for tbe injury was based principally on these grounds: That tbe minor plaintiff’s employment was changed from a safe one to an extra hazardous one; that tbe minor plaintiff, by reason of tbe negligent orders of bis superior, was exposed to danger not in bis line of employment, and while carrying out tbe orders of bis superior, and without being properly and sufficiently instructed in bis work, met with bis injuries; that tbe fellow-servant doctrine was inapplicable; but, even admitting it to enter into the case, that the negligence of the defendant’s agents in placing and leaving the cars on the side track, not in clear of the main line in the yards, was the negligence of the defendant, under the proofs. * * * This disposes of assignment of error No. 6, which we first discussed because appellant considers it the real pivotal point upon which the case turned.”

Assignment No. 6 reads as follows:

“ (6) The court erred in charging the jury as follows:
“ * I do not think that the testimony which has been given by the plaintiff would warrant the inference that there was a change of employment. He was brought to Mr. Graham, and Mr. Graham set him to work.’ ”

When plaintiff entered the employ of defendant he was 19 years and 8 months old. He carried a letter to Mr. Graham. His testimony discloses that Mr. Graham was the yard clerk and had charge of the car checkers; that plaintiff desired clerical work, and commenced work under Mr. Graham about half past 4 o’clock in the afternoon about the middle of July, indexing cars.

“I had started to work at half past 4 in the afternoon, and somewheres around the vicinity of 12 o’clock at night Mr. Graham had a conversation with me in reference to doing other kinds of work. He. told me at that time that I would have to go out and let that work lie there; that I would have to go out and start to check the cars. I did not know what that was, and I had not agreed to work at that kind of work. * * * When Mr. Graham put me out that night into the yards, I told him that I understood that I was to work at just what I was doing, and that I had no experience or knew nothing of the outside work. He said, ‘Gome out anyway, and I will show you.’ He says: ‘You will learn; it won’t take long.’ * * * I remember the case of Sarah Yost v. Grand Trunk Railway Company, which was tried before Justice De Gaw the 3d of December, 1909. I was a witness in that case.
“Q. I will ask you if this question was asked you and you answered it as follows:
“ ‘Q. What conversation did you have with Mr. Graham — what did you say you wanted to do ?
“ ‘A. I told Mr. Graham the line of work I had been doing, clerking. He said he thought I would do first-rate.’
“A. Yes, sir.
“Q. Now listen to this question. That question was asked you, and you answered it in that manner.
‘Q. What did he say in regard to having sufficient work inside for a few weeks ?
‘A. He told me he would set me checking at night — at night until work got heavy, and then I could help him during the day in the office.’
“ Did you so testify ?
“A. Yes, sir. * * *
“ Q. Now, I will ask you if this question was asked you, and if you so testified ?
‘Q. Mr. Graham employed you as a car checker ?
‘ ‘ ‘A. He employed me — did not say what it was; he did not say it was a car checker or what it was. He employed me. Then he started me car checking.’
“Q. Did you so testify ?
“il. I don’t remember.
“Q. If so, was it true?
“A. Yes, it is correct — parts of it. All of it is correct under the circumstances. He started me at clerical work, and then he told me he would start me as a car checker at 11 o’clock. That was the same day I started work. I resisted and told him I was not hired for that kind of work, and he said to come on out and ‘ I will show you,’ and I went out. Mr. Graham showed me how to do the work and stayed there with me until about 1 o’clock in the morning, and the next night Mr. Graham stayed with me also, and also the next night. Mr. Wickford stayed with me the fourth night. I do not remember who stayed with me the fifth and sixth nights. I checked cars the first night I went to work there and every night while I was employed at night work. * * * When I had any spare time I would index cars, which consisted of getting the numbers of them as they came into the yard and putting them into a book with blue ink, and when they go out check them out in red ink, designating what cars were in the yard and what were not. I had to keep a record in the office of the cars coming in and going out of the yard. * * *
“Q. Now, as a matter of fact, is not the way the thing occurred there at the time you were employed, Mr. Graham told you, didn’t he, he would have the office work and you would have to check cars ?
“A. He told me that it would not last long. He told me to go out. He said it would not last long, and he said he could use me entirely in the office.
“Q. Later?
“A. Well, he used me there before and then after he said he would do it.
“Q. He told you for the time being you would have to check cars, that he did not have work in the office for you?-
“A. He did not say exactly I would have to do it.
“Q. If you worked for him ?
“•A. Yes, if I worked for him. * * * I did take the job without any complaint, but I complained about it after — at that time I took it without any complaint.
“Q. When he put you to work you did not complain at all at first?
“A. No, sir; until — the same day there.
'‘Q. And he put you to work checking cars, didn’t he ?
“A. Yes, sir.
“Q. And he showed you what the work of checking cars is, didn’t he ?
“A. Yes, sir.
“Q. And he spent a week at it, didn’t he ?
“A. Yes, sir.”

It is impossible to read all of the testimony of the plaintiff without reaching the conclusion that, while he sought a clerical position, he in fact was given one that, from the first day of his employment, required him to check cars; that from the night of his employment until about the 1st of August he was a night car checker, and from then until the day of the accident that he was a day car checker. This fact — that is, that there was no change of employment — established by plaintiff’s own testimony when read as an entirety disposes of the case.

Judgment is affirmed.

Ostrander, O. J., and Bird, McAlvay, and Brooke, JJ., concurred.


author: Brooke, J.

text:
    FARNSWORTH v. NATIONAL EXPRESS CO.
    1. Carriers — Express Companies — Bill op Lading — Limitation op Liability.
    If, without issuing a receipt, bill of lading, or other evidence of special contract, an express company accepts for carriage goods of greater value than fifty dollars, no limitation of liability is created, and the carrier is subject to common-law rules.
    3. Same.
    The carrier cannot limit its liability by afterwards delivering to the consignor a receipt containing the usual limited liability clause, unless the consignor had notice of a claim for such a limitation at the time of shipment.
    3. Same — Statutes—Michigan Railroad Commission.
    Under the terms of Act No. 300, Pub. Acts 1909, providing for the filing of schedules with the railroad commission and for limiting the liability of the carrier to fifty dollars, unless a greater value is declared, but by express words preserving the common-law liability of the carrier, a contract as aforesaid does not limit the liability of the express company.
    4 Same.
    Unless the consignor procured the shipment of the property with intent to defraud the carrier of the increased rate to which it would properly have been entitled, he was entitled to recover the value of his property lost without excuse in transit.
    Error to Lapeer; Smith, J.
    Submitted June 15,1911.
    (Docket No. 65.)
    Decided September 29, 1911.
    Case by John M. Farnsworth against the National Express Company. A judgment for plaintiff for less than the amount claimed, upon a verdict directed by the court, is reviewed by plaintiff on writ of error.
    Reversed.

      Herbert W. Smith, for appellant.

      Geer, Williams & Halpin, for appellee.
   Brooke, J.

Plaintiff, at the village of Imlay City, delivered to defendant a package to be carried by defendant to Detroit. Plaintiff testified that the package was unsealed at the time of delivery; that he requested defendant’s agent to seal it, as he (plaintiff) had no sealing wax; that the agent stated it would be just as well to seal it by pasting a “paid through ”label upon the end of the box, which he (the agent) did. Plaintiff was not asked for, nor did he disclose, the character of the contents of the package nor its value, and no receipt therefor was either demanded or given at the time. Plaintiff asked the agent what the charge would be, and the agent, after “hefting ” the package, said, “ Twenty-five cents,” which sum plaintiff paid. Four or five days later, the package not having been delivered, plaintiff called upon defendant’s agent and requested him to send a tracer to find the package, at which time defendant’s agent gave to plaintiff a receipt which contained the following language:

“ Nor in any event shall the company be held liable or responsible nor shall any demand be made upon it beyond the sum of fifty dollars unless the just and true value thereof is stated herein, and an extra charge is paid or agreed to be paid therefor, based upon the higher value.”

The package, in fact, contained a diamond ring valued at $200, and was never delivered. Defendant tendered to plaintiff the sum of $50, which he refused and brought suit for the value of the ring. Upon the trial a verdict was directed in favor of plaintiff, at the request of defendant, for the sum of $50, and plaintiff has brought the case to this court for review.

The record shows that plaintiff had been engaged in the jewelry business at said village for 25 years, during which time he shipped by express five or six packages each year, never receiving a receipt for a package upon delivery, and that he did not know that defendant’s rate for carriage varied with the declared value of the package to be carried. The evidence negatives the idea that plaintiff refrained from declaring the value of the package in order to fraudulently secure its carriage at less than the proper tariff.

It is urged by plaintiff, and we do not understand that this proposition is seriously disputed by defendant, that in the absence of statutory regulation, where no receipt is given at the time of shipment, the carrier cannot limit' its liability by afterwards delivering to the shipper a receipt containing the limited liability clause, if the evidence shows that the shipper had no knowledge that the carrier claimed any such limitations at the time of shipment. If, without any receipt or bill of lading being issued, the goods are accepted by the carrier for transportation, his common-law liability attaches. We think this rule is fully sustained by the authorities. In Magnin v. Dinsmore, 62 N. Y. 35 (20 Am. Rep. 442), the court said:

“ Where there is no special contract limiting the common-law liability of the carrier, nor any notice so specially brought home to the knowledge of the shipper as to have that effect, the shipper is not bound to disclose the value of the goods, unless he is asked thereof by the carrier; but the carrier * * * has a right to make inquiry and to have a true answer, and, if he is deceived by a false answer given, he will not be responsible for any loss. If, however, the carrier makes no inquiry, and no artifice is used to mislead him, he is responsible for loss, however great may be the value. Such is stated in Story on Bailments (§ 567), to be the better opinion, and the cases there cited sustain the text.”

See, also, American Express Co. v. Edward Spellman, 90 Ill. 455; Graves v. Express Co., 176 Mass. 280 (57 N. E. 462); 9 Cent. Dig. § 696; 6 Cyc. p. 407.

But defendant contends that its common-law liability is abrogated by reason of the provisions of Act No. 300 of the Public Acts of 1909. This act provides for the filing of schedules with the railway commission and in the various offices of the carrier and forbids the carrier to depart therefrom in making its charges. Defendant showed that its schedules had been duly filed in accordance with this act and that one of the provisions thereof was as follows:

“ Valuation charges:
“ (a) Merchandise rates are based upon, a value of not exceeding fifty dollars per shipment, and no further liability is assumed by the express company unless the shipper declares at time of shipment a higher value.
“ (b) When the declared value of any shipment of merchandise, jewelry, valuable papers, postage stamps, etc., exceeds fifty dollars, the following additional charges must be made on the value in excess of fifty dollars, viz.: When merchandise rate is three dollars or less per hundred pounds, ten cents for each hundred dollars value or fraction thereof.”

Section 40 of the act provides in part as follows:

“ Whenever any property is received by any common carrier, subject to the provisions of this act, to be transported from one place to another in the State, it shall, upon demand by the shipper, issue a receipt or bill of lading therefor, naming therein the classification of such freight at which the same is to be carried. And no common carrier shall limit or change its common-law liability by contract or otherwise as to its responsibility for the negligent act of its agents and servants with reference to property in its custody as a common carrier. Provided, that nothing herein contained shall be so construed as to abridge or in any wise lessen the liability of any such common carrier as it now is under existing laws.”

Counsel for defendant state:

“It is our contention that the statute requiring the filing of rate classification in the express offices, with notice that they are there for the inspection of shippers, and requiring a receipt to be given to the shipper only on demand, places the parties in the same position they were in when a receipt was given, before the statute was passed, showing the limitation as to liability, and in such ease counsel concedes, and the cases all hold, that the limitation as to liability is valid.”

In view of the proviso of section 40, above quoted, we are of opinion that it was not the intention of the legislature to change the common-law liability of carriers as it had existed prior to the passage of the act. The contention of defendant that such a holding will permit carriers to evade the terms of the statute by carrying goods for a different price or under- different conditions than those given in the classification and schedules is, we think, without force.

The Federal decisions under the so-called interstate commerce act, Texas, etc., R. Co. v. Mugg & Dryden, 202 U. S. 242 (26 Sup. Ct. 628); Gulf, etc., R. Co. v. Hefley, 158 U. S. 98 (15 Sup. Ct. 802), and Texas, etc., R. Co. v. Oil Co., 204 U. S. 426 (27 Sup. Ct. 350), cited by defendant, have been examined; but, in view of the proviso of our State act, they are not controlling.

Defendant had and has, under Act No. 300, the right to ascertain the value of the package 'to be carried, and it became its duty thereupon to charge its regular schedule rat;es for transportation. Its failure to do this cannot be permitted to defeat plaintiff’s right to recover the full value of the package, in the absence of any showing of limitation of liability in the contract of carriage, or of fraud or deceit on the part of the plaintiff in making the shipment.

The judgment is reversed, and a new trial ordered.

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


text:
    H. LEONARD & SONS v. STOWE.
    Husband and Wife — Necessaries Sold to Wife — Sales — Actions — Liability of Husband for Goods Sold to Wife — • Marriage.
    While the fact that goods sold to a married woman were charged to her on the books of the seller does not, as against the vendor, work an estoppel to claim that they were sold on the credit of the husband, the seller cannot hold the husband for goods furnished to the wife under a contract, in writing signed by her, retaining title to the goods until they are paid for, and leaving no implication that the seller relied on the credit of the husband; especially on a record showing that the wife was joined as a party to the action and judgment taken against her.
    Error to the superior court of Grand Eapids; Stuart, J.
    Submitted June 14, 1911.
    (Docket No. 52.)
    Decided September 29, 1911.
    Assumpsit by H. Leonard & Sons, a corporation, against Ernest A. Stowe and Harriet E. Stowe for the price of goods sold. A judgment for plaintiff against Harriet E. Stowe and for defendant Ernest A. Stowe, on a verdict directed by the court, is reviewed by plaintiff on writ of error.
    Affirmed.

      A. A. & H. A. Ellis, for appellant.

      Hatch, McAllister & Raymond, for appellees.
    Plaintiff is a mercantile corporation. The defendants are husband and wife, living together, maintaining a home in the city of Grand Eapids, Mich. This action was brought to recover the purchase price of certain merchandise furnished by the plaintiff during the period from April 25,1902, to March 29,1904; the total sum charged for it being $3,285.31. The plaintiff declared specially upon two written contracts, with the averment that they were entered into on or about October 10, 1902, by the defendant Harriet E. Stowe, in her own behalf and in behalf of the defendant Ernest A. Stowe, and as his agent. By the terms of these contracts, the agreement is between plaintiff and Mrs. E. A. Stowe, and each contains recitals to the effect that “ said first party agrees to sell said second party on fulfillment of this contract in every particular,” etc. In each contract title to the goods is retained in the first party until they are paid for, “ at which time said first party agrees to transfer the title thereto to said said second party.” In each the second party agrees to pay the amount due in monthly payments of $20 each. In the first contract the property described is:
    Bill of April 25th, ’02, amounting to______________ $937 23
    Bill of Oot. 8th, ’02, amounting to...............- 311 11
    Bill of Oot. 10, ’02, amounting to................. 21 04
    $1,269 38
    In this contract it is expressly agreed between the parties that, if the second party fails to make any payment at the time therein, specified, the agreement to sell the goods shall be considered void at the option of the first party, who may, without notice or demand, take possession of the goods; and the amount which has at such a time been paid to the first party shall be considered as paid for the use of the goods.
    In the second contract, which bears the same date as the first, but which was made later and dated back, as the testimony shows, the goods sold are described as in the first, and there is a further provision that the first party is authorized to indorse upon the contract merchandise thereafter purchased by the second party, and by said indorsement such merchandise shall immediately be subject to all the provisions of the contract; title to such after-purchased goods to remain in the party of the first part. There is the further provision that, if there is a failure to make payments as specified, the agreement to sell shall be considered void; the amount unpaid, whether due or not, shall, at the option of the first party, become due forthwith, without notice of any kind to the second party; the first party may immediately take possession of the goods; the amount paid shall be considered as paid for the use of the goods; and the first party shall have the right, after taking possession, to recover in any court of competent jurisdiction the balance due to said first party under the terms of the contract, and in such event shall recover against the second party as liquidated damages the unpaid balance and in addition 25 per cent, of said amount for damages for breach of the contract, and for wear, damage to, and use of the property. It is averred that other goods were added to the said contract until the total amount thereof was$3,285.31, upon which there was paid $540, leaving a balance of $2,745.31. It is averred that Harriet E. Stowe, for and in her own behalf, and in behalf of her husband and as his agent, purchased these goods, and in her own behalf, and in behalf of her husband, promised to pay plaintiff the sum of $20 a month therefor; that payment has not been made. In a second count it is alleged by way of inducement that the defendant Ernest A. Stowe, before and at the time of making the promises and undertakings mentioned, was a man possessed of great wealth, prominent in the business world of the city of Grand Rapids, and that both said defendants, because of the wealth and prominence of Ernest A. Stowe, were liable to the demands of society, and were compelled to do their share of entertaining, and that they maintained an establishment (domicile) in an exclusive residence portion of the city of Grand Rapids, having as neighbors other persons off wealth and prominence, and that it became necessary that the furnishings of the home of defendants should accord with those affected by others in like station in life, and necessary that defendants should furnish their home with costly ornaments, bric-a-brac, and other furnishings. On account of all this, it is averred, the contracts already referred to were entered into, the goods mentioned therein were purchased, and goods were after-wards purchased, as has been stated. The declaration concludes with the common counts in assumpsit. A bill of particulars was required and was furnished. Defendant Harriet E. Stowe, by her counsel, pleaded the general issue, and afterwards withdrew her plea. Defendant Ernest A. Stowe, by his counsel, pleaded the general issue. He also denied under oath the signing and execution of the written instruments declared upon, or either of them, and denied that he authorized any other person to execute the same in his name or behalf, or otherwise.
    The cause coming on to be tried in the superior court of Grand Rapids, with a jury, plaintiff offered testimony tending to prove that an account was opened by plaintiff with Mrs. Stowe some time in 1895; that thereafter and up to 1902 a considerable quantity of goods had been bought by her and charged to her; that in October, 1902, when the first contract was made, the unpaid balance of this account, consisting of the three bills already referred to, amounted to $1,269.88, all charged upon the boobs to Mrs. Stowe; that after the making of the contracts goods were purchased and charged in the same way; that the goods were, many of them, delivered at the residence of the defendants, and were used to furnish the residence; all of the testimony tending to prove that the first of the goods in question here were bought April 25, 1902, and the last March 29, 1904. All the goods in question are covered by the terms of the contracts, and a complete schedule of the goods is attached to’ the contracts. Defendant Ernest A. Stowe is not a party to the contracts. Neither purports to be executed for him or in his behalf, or by any person as his agent. The sole parties to the contracts are the plaintiff and Mrs. Stowe. Offers made by counsel for the plaintiff to prove that Mrs. Stowe was acting as the agent of her husband in buying these goods and in making the contracts, by testimony of her statements made in the absence of her husband, were excluded. Other rulings complained of are shown by the following:

      “Q. How were the goods charged all the way through ?

      “A. Always charged to Mrs. E. A. Stowe.

      “Q. On whose responsibility did you trust her for those goods ?

      “Mr. Hatch: I object to that, as a conclusion of law.
    “ The Court: The objection is sustained. * * *
    “ Witness: She bought at our store, as near as I can ascertain at the present time, prior to the amount of goods that are here in this case, ten or twelve hundred dollars’ worth. We never made any different arrangements with her from the time she commenced to buy goods up until the tiine she had bought over $1,200 worth on the bills in this case.

      “Q. The goods were bought and paid for ?

      “A. Yes, sir.

      “Q. From time to time ?

      “A. Yes, sir.

      “Q. All charged to her?

      “A. Yes, sir. She commenced buying goods in 1895, to buy goods for furnishing the house on Kellogg street. She came in that year, and the first bill was paid by Mr. Stowe himself, and she bought goods down to 1902. It so happened that the payment just balanced a certain number of bills on the ledger, and our bookkeeper drew a red line and balanced the book up; but really there was no break whatever in the purchases from the first to the very end. She notified us that she was getting the goods for the home, so she continued to buy until October, 1902, and she came in one day (there was owing about twelve hundred) and said—

      “Mr. Hatch: I object to what she said.

      “Mr. Ellis: I offer to show that an arrangement was made at her request, and for the benefit of Mr. Stowe and herself, to get time on these goods, without any idea on Mr. Leonard’s part of releasing Mr. Stowe at all from liability for the goods.

      “Mr. Hatch: She is not a competent witness against him, under the statute, and we object to any statement she may have made, the same as though she was on the stand. It would be hearsay, anyway.

      “Mr. Ellis:- It is the claim, and Mr. Stowe is trying to defend against paying for these goods on account of what his wife did. Mr. Stowe wants to defend against this contract, and wants the contract.

      “The Court: Her statements, without any acquiescence or presence on his part, would not bind him.

      “Mr. Ellis: It may be true that her statements would not bind him; then her actions would not bind him, and this contract would not bind him. They claim, inasmuch as she made this contract, and was not authorized to make it by him, therefore it is her contract; if it is what she said about her own contract, it would be competent whether Mr. Stowe was around or not. If it is his contract, we are content.

      “The Court: You claim against her, too.

      “Mr. Ellis: We cannot help but get a judgment against her; she has withdrawn her plea, and we are entitled to a judgment against her without any evidence at all.
    “2%e Court: Then the objection is sustained. * * *

      “Q. At the time you made that contract (calling attention to what is known as Exhibit C, first contract), was there any understanding or agreement, or suggestion by anybody, that you would release Mr. Stowe from liability for those goods ?

      “A. No, sir.

      “Mr. Hatch: I object to that as incompetent, irrelevant, and immaterial; the question assumed that Mr. Stowe was there.

      “The Court: Objection sustained. * * *

      “Q. Up to the time that this contract was made, and after this contract was made, to whom did you look for the payment of these goods ?

      “Mr. Hatch: We object to that as incompetent, irrelevant, and immaterial. The contract is with Mrs. Stowe, and the goods are charged to her.

      “T%e Court: The objection is sustained. * * *

      “Q. Was it represented to you at the time by Mrs. Stowe, when you made this contract, that Mr. Stowe wanted additional time to pay for these goods, and that he would pay for them, and asked for this contract back, simply to extend the time of payment ?

      “Mr. Hatch: Objected to as incompetent, irrelevant, and immaterial.

      “The Court: Sustained.”
    Defendant offered no testimony, and the court directed a verdict against Mrs. Stowe and in favor of her husband, upon which verdict judgment was duly entered, and from the judgment in favor of defendant Ernest A. Stowe the plaintiff has appealed.
   Ostrander, C. J.

(after stating the facts). At considerable length counsel for the appellant has argued, and has supported by reference to decided cases, principles of law not controverted and not involved. The fact that the goods were charged upon plaintiff’s books to Mrs. Stowe would not necessarily estop plaintiff to claim that the goods were sold upon the credit of the husband. Larson v. Jensen, 53 Mich. 427, 430 (19 N. W. 130); Taylor-Woolfenden Co. v. Atkinson, 127 Mich. 633 (87 N. W. 89). The general principle which makes the wife, permitted to purchase goods, necessaries, and other than necessaries, the agent of her husband to pledge his credit therefor is not disputed. The essential and controlling fact in the case at bar is that the goods were not sold, or agreed to be sold, upon the credit of the husband, but upon the credit of the wife, who had the undoubted right to so contract. Metcalfe v. Shaw, 3 Campbell, 22. It seems to be unnecessary to state that in the face of the written contracts plaintiff is not permitted to say that the goods were in fact agreed to be sold upon the credit of Mr. Stowe. The contracts are express. Nothing is left to implication. Assuming that Mrs. Stowe, as wife, had authority, express or implied, to bind her husband by purchases of goods, she did not undertake to bind him. And, if any fact necessary to the argument should be otherwise considered lacking, we have the fact that the suit is begun against the wife, and that plaintiff has a judgment against her for the value of the goods.

The judgment is affirmed.

Bird, Brooke, Blair, and Stone, JJ., concurred.


text:
    MEASEL v. DETROIT UNITED RAILWAY.
    Street Railroads — Crossing Negligence — Contributory Negligence — Bicycles.
    In an action for the negligent killing of plaintiff’s intestate, a bicycle rider, who was killed in orossing defendant’s street railroad at a street crossing about dusk, when the track was visible and the approaching car was in plain view, a verdict for defendant was properly directed on the ground that the intestate should have seen the car and observed the rate at which it approached.
    Error to Wayne; Hosmer, J.
    Submitted June 13,1911.
    (Docket No. 31.)
    Decided September 29, 1911.
    Case by Margaret Measel, administratrix of the estate of Benjamin H. Measel, deceased, against the Detroit United Railway, for the negligent killing of decedent. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Philip A. McHugh and William Henry Gallagher, for appellant.
    Corliss, Leete & Joslyn (William G. Fitzpatrick, of counsel), for appellee.
   Ostrander, C. J.

We take what is a sufficient statement of the case from the charge of the trial judge:

“The testimony in this case upon the part of the plaintiff’s witnesses is to the effect that at the time of the death of the deceased the defendant company operated a street railroad which ran along Locust street and upon which cars were propelled from west to east; that, on the night of the death of the deceased, the deceased was coming with several companions from Sixth street upon a bicycle; that at that time a car was being propelled at a very rapid rate from the west; that the car, if the testimony is to be credited — and I can see no reason why it should not be, at least the testimony of the bicycle riders — was coming at least at the rate of 20 miles an hour, and there is testimony which, if credible, would fix it at a greater rate. There is testimony in this case — in fact all the testimony would tend to show — that no gong was rung upon that occasion, and that the car proceeded across Sixth street without the ringing of a gong and at a rate of speed which I think and which you would think was unquestionably, in the premises, excessive. In other words, the evidence shows that the defendant in this case was guilty of negligence, and it only remains for us to examine, I think, the conduct of the plaintiff’s intestate in question.
“The plaintiff’s intestate had lived something like a mile of the track for a period or a year or thereabouts. It does not appear that he knew of the existence of the track, but on- the night in question it was not dark; it was, as the witnesses said, dusk — as Mrs. Ward, I think her name is, said she could see the car just at a point beyond the alley between Brooklyn and Sixth, and, as one of the other witnesses testified, Bhe had no difficulty in seeing the riders as they came down the street at a point about half a block away. And I have no hesitation, therefore, in saying that whether the deceased knew of the existence of the track at that time, the track was a thing which crossed Sixth street, and was a thing of which I think he was bound to take notice. It seems to me, gentlemen of the jury, that the law of the State of Michigan is that he must approach that track with that degree of care which would enable him to see an advancing car and to see and observe the rate at which it was going, and under those circumstances, and under the testimony that at the curb he first swerved his machine, so as to cross the track, I think he should have seen the rate of speed at which the car was going, and I think the only inference to be drawn, under the existing circumstances, was that to cross the track at that point, or to attempt to cross the track, was negligence on his part.”

There is no testimony reasonably tending to support a different statement of facts or a different conclusion with respect to the imprudent conduct of plaintiff’s intestate. The testimony of witnesses in this behalf is confirmed by the picture of the place where the injury was received. A verdict for defendant was rightly directed. Zoltovski v. Gzella, 159 Mich. 620 (124 N. W. 527, 26 L. R. A. [ N. S. ] 435, 134 Am. St. Rep. 752); Gibbs v. Dayton, ante, 263 (131 N. W. 544).

The judgment is affirmed.

Bird, Brooke, Blair, and Stone, JJ., concurred.


text:
    GALL v. SOVEREIGN CAMP OF THE WOODMEN OF THE WORLD.
    1. Insurance —Defenses—Intoxicating Liquors — Fraternal Beneficiary Associations.
    Although it appeared by undisputed evidence that the insured, holding a fraternal benefit policy, had used intoxicating liquors more than three years before his application for the certificate, and there was testimony from which it might be inferred that he had used the same during the three years preceding the issuance of his policy, that contained a provision that if the insured should become so far intemperate from the use of intoxicants as to produce delirium tremens, or die as a direct result of drinking, the certificate should be void, under contradicted testimony showing that he had delirium tremens and died as a direct result of drinking intoxicating liquors, the defendant’s liability was for the jury.
    2. Same — Fraud.
    Also it was for the jury to determine whether his statement made in his application, that he did not use liquors and had never been intoxicated, was false.
    8. Same — Intoxication—Words and Phrases — Charge.
    Neither a definition of intoxication as a condition created by the use, to such an extent, of intoxicating liquors, that it affected the mental or physical powers of insured, nor an instruction that intoxication meant excited to frenzy, was proper in charging the jury.

      Error to Wayne; Donovan, J.
    Submitted June 16, 1911.
    (Docket No. 82.)
    Decided September 29, 1911.
    Assumpsit by Gertrude Gall against the Sovereign Camp of the Woodmen of the World on a benefit certificate. Judgment for plaintiff. Defendant brings error.
    Reversed.
    Beaumont, Smith & Harris, for appellant.

      John H. Dohrman and James A. Murtha, for appellee.
    In his application for a certificate in defendant beneficiary society, John K. Gall answered certain questions as follows:
    “Do you now use wine, spirits or malt liquors? No. If so, what kind and average amount per day. (No answer.)
    “Were you ever intoxicated? No. If so, when. (No answer.)
    “ Have you ever taken a liquor cure? No. If so, when and where. (No answer.)”
    By the terms of the application, the answers to questions therein are warranted to be true, the certificate refers to and is based upon the said warranties, and it is a condition referred to and made a part of the certificate that if the member shall become so far intemperate from the use of intoxicating liquors as to produce delirium tremens or dies as a direct result of the drinking of intoxicating liquors, or if any of the statements or declarations in the application shall be found in any respect untrue, the certificate shall be void and all benefits thereunder forfeited without notice. The certificate is dated February 17, 1908, the benefit payable to the plaintiff. Gall, who was. 48 years old, died October 18, 1908.
    With its plea defendant gave notice that it would show in its defense, among other things, the untruthfulness of the answers to the first two questions referred to, and that John K. Gall, after receiving the said certificate, became “so far intemperate from the use of intoxicating liquors as to produce delirium tremens and did die from the direct results of the drinking of intoxicating liquors.” The trial resulted in a verdict and judgment for plaintiff. A motion for a new trial, one ground of which was that the verdict was contrary to the weight of evidence, was overruled. Exceptions taken and errors assigned and relied upon by the appellant present the contentions:
    (1) The court should have directed a verdict for defendant.
    (2) The charge of the court was erroneous.
    (3) A new trial should have been granted.
   Ostrander, O. J.

(after stating the facts). The undisputed testimony was that after the certificate was issued deceased used intoxicating liquors. It is not very clear whether he used liquor for three years immediately before the certificate was issued; before the three-year period he used liquors. We think the testimony does not conclusively prove either that he used liquor at the time the application was made, that he had before that time been intoxicated, that he had delirium tremens, or that he died as a direct result of drinking intoxicating liquors. Therefore the court was not in error in submitting the case to the jury.

The charge to the jury is rather confusing. They were told that the burden was upon defendant to prove that false answers were made by the applicant, or that he died of delirium tremens or as the direct result of the use of intoxicating liquors. Favorable to defendant was the instruction that, if the answer that he had never been intoxicated was untrue, there must be a verdict for defendant. Equally favorable to defendant was an instruction that, if the insured in fact used liquor at the time he made his application for the certificate, there could be no recovery. There was an instruction to the effect that if the insured had delirium tremens, induced by intemperate use of liquor, there could be no recovery, and the same verdict was required if the insured died as the direct result of drinking liquor.

“Intoxication” was defined as a condition of a man whose physical and mental powers are affected by the use of intoxicating liquors. Other portions of the charge were unfavorable to defendant. For example, the court said:
“ I charge you that the term ‘intoxicated’ is defined in Webster’s Unabridged Dictionary as ‘inebriated,’ ‘made drunk,’ ‘excited to frenzy.’ You see it is a pretty strong definition when you get it right down to the intoxication.”

In another portion of the charge occurs the statement:

“Now the real hinge and turn of the case is: Did he die from the direct cause of alcoholism ? That is really the question we are here for, and we will take that up in a moment and see if we can find out. A wise man has said: ‘ Tell me what life is, and I will tell you what death is.’ But it is a pretty hard matter to define, unless we have a post mortem examination, unless we are present when it «happened. It comes in so many different ways, it is complicated in so many different forms, that a good doctor is often puzzled .to know whether it is heart failure, or kidney trouble, or diabetes, or typhlitis, or some clog, or some shock, or some serpent in the brain that drops a poison and ends life. It is a difficult matter to tell, and laymen can rarely tell. I mean where death comes as it came in this case. It comes in a hospital. Comes without the doctor being there, at the last; it comes after-wards by a coroner’s certificate. Now the real question is: Did it come in this case by liquor, did it come from that alone ? Now, finding a bottle of whisky in a man’s room alone would not be evidence that the man died from that whisky. And especially that might be true of a man with the complaint that the man had suffered from, like la grippe, where he might have used it sometimes during the sickness. All that a man hath will he give for his life. He will struggle in the end, and he will use all the means he may find in reach.”

Finally, the jury was instructed in these words:

“ Now, gentlemen, you can do a good duty, today, because you know more about this case than anybody else, and because we have hundreds all over the State; yes, at least even in this county 9,000 in some of these. You can do a good duty by doing exact justice between these parties. It is entirely for you to decide.”

We are not satisfied with either definition of “intoxication ” given in the charge — one most favorable, and the other most unfavorable, to the defendant. For the favorable definition given, defendant is responsible, because the instruction was requested. The question, “Were you ever intoxicated ?” in an application for insurance, ought not to be treated as asking whether at any time the applicant had taken liquor with any perceptible effect upon either his mental or physical powers. Nor should it be held to be the equivalent of the question, “Were you ever excited to frenzy by drink?” The testimony tended strongly to sustain each of defendant’s contentions, and especially the one that the insured had been many times, if not commonly, intoxicated before he made the application. We are therefore constrained to hold that in giving the definition of the word intoxicated unfavorable to defendant reversible error was committed.

There is considerable argument in the charge, most of it favorable to plaintiff. Other questions debated in the briefs are not likely to arise upon a new trial, and therefore are not discussed.

The judgment is reversed, and a new trial granted.

Bird, Brooke, Blair, and Stone, JJ., concurred.


text:
    BATES v. KITCHEL.
    1. False Imprisonment — Abuse of Prooess — Justification.
    In an action for false imprisonment, in which plaintiff produced evidence that he .was a resident of California, and while temporarily in Michigan was a witness for the people in a prosecution against defendant, accused of running his automobile at an unlawful rate of speed, that defendant maliciously procured an order of the justice of the peace committing plaintiff to the custody of the sheriff, for failure to give a recognizance to appear as a witness, on appeal of said cause, at a future term of the circuit court, under 3 Comp. Laws, § 11856, the order being a nullity and the imprisonment unlawful, it was not a defense to the aotion that plaintiff might have given the recognizanoe and escaped the imprisonment.
    2. Trial — Argument—Harmless Error.
    Argument of counsel to the effect that the jury might consider, in determining the question of damages, what they would have been entitled to under the same circumstances, although improper, was not reversible error, where the court interrupted counsel and stated the proper rule, and though plaintiff’s attorney persisted in his statement, no further objection was taken, no request to charge on the point was presented, and the verdict was not excessive or against the evidence.
    8. Appeal and Error — Record—Correction.
    On error, this court cannot revise the bill of exceptions which the trial judge corrected so as to differ from the stenographer’s minutes of the charge and in accordance with the judge’s recollection of the instructions actually given.
    4. False Imprisonment — Damages—Humiliation.
    It was competent to receive in evidence testimony of the annoyance, etc., suffered by plaintiff in connection with evidence tending to show defendant’s malice.
    5. Evidence — Docket of Justice of the Peace.
    The petty nature of the charge on which defendant was tried might properly be proved from the docket entries of the justice.

      6. Damages — Expense op Procuring Release prom False Imprisonment.
    The costs and expenses of proceedings in habeas corpus, instituted by plaintiff to procure his release from commitment under the illegal order of the justice, was an element of damages recoverable in an action of false imprisonment.
    Error to Branch; Chester, J., presiding.
    Submitted June 16, 1911.
    (Docket No. 73.)
    Decided September 29, 1911.
    Case by Charles Bates against Horace Eitchel for false imprisonment. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      B. E. Barlow, for appellant.

      Leonard F. Humphrey and Frank B. Reynolds {Frank A. Lyon, of counsel), for appellee.
   Ostrander, C. J.

A judgment rendered for the defendant upon a former trial of this cause was reversed and a new trial granted. Bates v. Kitchel, 160 Mich. 403 (125 N. W. 684). There has been another trial, resulting in a verdict in favor of the plaintiff for $750. The former opinion of this court states somewhat fully the genesis of this action. It is sufficient to say here that the plaintiff was a witness for the people in a certain criminal proceeding instituted against defendant, in which proceeding defendant was found guilty in justice’s court in the city of Coldwater and appealed to the circuit court. Defendant made an application to a circuit court commissioner in which he recited his conviction and appeal, asked for and procured an order directed to the sheriff of the county to bring plaintiff before the commissioner to show cause why he should not be required to enter into a recognizance to appear in the circuit court, to be held some months later, to testify. It is stated in the said petition of defendant that plaintiff resides in California, intends to return there, and that the railroad fare and expenses of a journey from California to Cold water and return is about $300. After a hearing, the commissioner ordered plaintiff to enter into a recognizance, with one sufficient surety, in the sum of $500, for his personal appearance at the next October term of the circuit court, and in default, to be committed to prison to remain until he complied with the order or was lawfully discharged. Plaintiff declined to give the recognizance, and the justice of the peace committed him. Plaintiff gave a jail limits bond and was later discharged in habeas corpus proceedings. The authority of the magistrate to commit the witness was denied in the former decision of this court. At the trial defendant offered no testimony and requested the court to direct a verdict for defendant. The exceptions relied upon in this court are:

(1) To the ruling refusing a directed verdict for defendant.
(2) To the order denying the motion for a new trial.
(3) To rulings admitting certain testimony to show damages prior to the commitment.
(4) To a ruling permitting plaintiff to amend his declaration.
(5) To a ruling admitting evidence of certain habeas corpus proceedings and the expense thereof.
(6) To a ruling admitting in evidence the docket entries in the criminal case.
(7) And to refusals to charge as requested and to the charge as given.

The order of the circuit court commissioner requiring plaintiff to enter into the recognizance — to give bail — was not an unlawful order, although incapable of enforcement. Bates v. Kitchel, supra. That part of the same order which required plaintiff to be committed for default or refusal to enter into the recognizance was a nullity. Id. Appellant seeks to divide the order in this way and asks us to rule that, because plaintiff might have given the recognizance, but deliberately and wilfully refused to do so, it is his disobedience of that portion of the order, and not the enforcement of the remainder thereof, which brought about the results of which he complains, for which reason he ought not to be permitted to recover. This is the argument advanced in support of the motion for a directed verdict. It fails to take into account the fact that the testimony tends to prove that the effort to compel plaintiff to appear as a witness in the circuit court was a single one, conceived in malice; that defendant sued out and was instrumental in enforcing the order as made. Defendant was charged with driving an automobile at an unlawful rate of speed. Plaintiff, temporarily in the vicinity, on a visit, was a witness for the people. It is impossible to conceive of a proper motive of defendant for requiring him to return to Coldwater, from California, to give testimony on the trial of the appeal.

The first ground asserted for a new trial is the argument of one of the counsel for the plaintiff, in which argument it is claimed an incorrect measure of damages was stated to the jury and counsel appealed to the prejudices of the jury. Counsel for plaintiff said in his argument to the jury, in the course of which he was interrupted by counsel for the defendant with numerous announcements of exceptions to his remarks, among other things:

“Now, that is not the absolute test; but I apprehend you have got a right to take into consideration what you would think that you were entitled to under the circumstances. . You have got a right to consider that, gentlemen of the jury, what you would think it had damaged you, your feelings, if you had been subjected to that. There is no other way that you can get at it.”

And much more to the same effect, to which he added:

“That is the law, gentlemen of the jury, and the court, if he tells you anything about it, will tell you so.
The Court: I think when they get there, Mr. Lyon, they have got to find out what the damage is to him, not what it is to them, or would be to them.
Mr. Lyon: I say they have got a right to take it into consideration in determining that, and I stated that that would not be the absolute rule, but they have got a right to take that into consideration.
Mr. Barlow: We take particular exception to the remark of counsel that a certain thing is the law regardless of what the court charges.
The Court: The jury must take the law from the court and not from counsel.
Mr. Lyon: As I stated to you, gentlemen of the jury, it is not what you would charge to be subjected to that— no, no, that is not it, because, if you were to be asked how much you would charge to be subjected to that humiliation, you would say, I wouldn’t do it at all for all that Horace Kitchel has got — but you have got a right to take that into consideration, what you think it would injure your feelings.”

Upon the other side, it is contended that the argument was a proper argument, and, in any event, that appellant is not in a position to raise the question of its propriety. Concerning the last proposition, counsel relies upon Maclean v. Scripps, 52 Mich. 214, 222, 223 (17 N. W. 815, 18 N. W. 209); Mayo v. Wright, 63 Mich. 32 (29 N. W. 832); Henry C. Hart Manfg. Co. v. Car Co., 65 Mich. 564 (32 N. W. 820); Pierson v. Railroad Co., 149 Mich. 167 (112 N. W. 923); Miller v. Lachman, 117 Mich. 68 (75 N. W. 284); Formiller v. Railway, 164 Mich. 653 (130 N. W. 347) — all of which are cases holding that remarks of counsel supposed to be objectionable should be called to the attention of the court in such a manner as to secure a ruling thereon at the time they are made, and that this court will not sit in review on questions when it appears that they were not passed upon or a ruling asked in the court below. In Mayo v. Wright, supra, it was said:

“Two ways are open for counsel for a defendant when the plaintiff’s counsel, in his closing argument to a jury, takes positions not warranted by the pleadings and evidence. One is to object to the statements of counsel, and obtain a ruling of the court upon them, as to whether they are proper or improper to be made; the other is to request the court to instruct the jury upon the point, so that any false or erroneous positions may be corrected. The latter is the preferable method, as it conduces to a more orderly and seemly disposition of the matter in dispute, while a resort to the former interrupts argument, and is apt to foment contention and distract the mind of the jury.”

In the case at bar, objections were made in such a manner as to call the attention of the court to the argument which counsel was making, and the court, interrupting counsel, stated a proper rule. The real point to the objection which is made is that, after the court had stated the law, counsel continued his argument in such a manner as to intensify rather than abate any prejudice which his former argument had created. It is well known that men’s reasoning processes, as well as their actions, are influenced, often unconsciously, by suggestion, and in this argument, both before and after the interruption and ruling of the court, are suggestions calculated to influence jurors to take into consideration matters which, if avowedly made the basis of a decision, would require that the decision be set aside. But counsel for defendant asked for no other or further ruling, the court stated a correct rule in the charge, and the verdict does not appear to have been the result of passion or of prejudice. It is not, in our opinion, clearly excessive, in view of all of the testimony;

One of the reasons for a new trial assigned by the defendant was that, as shown by a transcript of the minutes of the official stenographer, the court, instructed the jury not to take into consideration, in mitigation of damages, the fact that defendant was advised by his counsel that he had a lawful right to require plaintiff to appear as a witness in the circuit court, if he received such advice and in good faith acted upon it. In denying the motion for a new trial, the court expressed himself as satisfied that he laid down a precisely contrary rule, in accord with a request preferred by counsel for defendant and with the bill of exceptions as settled. We cannot revise the bill on error.

It is the contention of plaintiff that the entire proceeding to compel him to recognize to appear as a witness was intended to annoy — to get even with — him. As has been stated, there was testimony tending to support this contention. It was not error, therefore, to admit testimony tending to prove all the annoyance, vexation, and humiliation suffered by plaintiff from the inception of the proceeding. It was a part of plaintiff’s case to prove the petty nature of the charge made against defendant in justice’s court, and this was as well proved by the docket entries as in any other way.

If the declaration required amendment in order to make it certain, or more certain, that all damages.resultingfrom the attempt of defendant to compel plaintiff to appear as a witness were claimed, no reason was suggested by counsel for defendant for not permitting an amendment to be made. He contented himself by excepting to the ruling.

The habeas corpus proceedings were instituted after the bond for jail limits was given. The jury was advised that the cost and expenses in the habeas corpus proceeding were to be considered in estimating plaintiff’s damages. Defendant requested the court to charge otherwise.

In Fuller v. Bowker, 11 Mich. 204, which was an action for false imprisonment, it was held that, if one arrested on a void execution gives a bond for jail limits, the bond is void, and he cannot in such an action recover damages for remaining in the county according to the terms of the bond. What was shown in that case was that plaintiff’s business took him out of the county, that he was requested upon one or more occasions to go out of the county, and was damaged because he could not attend to business outside of the county. In the case at bar, it will be presumed that if plaintiff had not given the bond for jail limits he would have been imprisoned. If he had been imprisoned, we assume it would not be contended that the expense of procuring his discharge in habeas corpus proceedings was not recoverable in an action for false imprisonment. Assuming that the bond he gave for the jail limits was void because the commitment was void, and that his presence in the county was therefore, in the eye of the law, voluntary, the expense of procuring a discharge from his commitment was a direct and necessary result of the unlawful imprisonment. See, as bearing upon the subject, Friesenhan v. Maines, 187 Mich. 10, 15 (100 N. W. 172); Castor v. Bates, 127 Mich. 285 (86 N. W. 810, 89 Am. St. Rep. 471).

We have examined the charge of the court in the light of the criticisms made by counsel for appellant and are of opinion that it correctly stated the issues of fact and the applicable rules of law.

We find no error, and therefore afBrm the judgment.

Bird, Brooke, Blair, and Stone, JJ., concurred.


text:
    SCHERER v. OTIS ELEVATOR CO.
    1. Pleading — Master and Servant — Negligence — Defective Machinery — Guard—Allegations op Insufficiency of Protection — Variance.
    It is a fatal variance from plaintiff’s declaration alleging that defendant’s jointer, at which he worked, was guarded by a defective guard, to introduce testimony proving that no guard was employed.
    2. Same.
    And the averments of the declaration that the machine was provided with an alleged guard which was the poorest type in use, that the guard on said machine was not in general use, and that previous to plaintiff’s injury defendant had been ordered by the State factory inspector to furnish a guard for the jointer, when such averments are read together, present the theory that the ineffective guard was no guard; the theory not being supported by evidence, a verdict for defendant was rightly directed.
    Error to Wayne; Rohnert, J.
    Submitted June 16, 1911.
    (Docket No. 87.)
    Decided September 29, 1911.
    Case by Albert Scherer against the Otis Elevator Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Samuel E. Jones, for appellant.

      Angelí, Boynton, McMillan, Bodman & Turner, for appellee.
    While in the employ of defendant, and while operating a machine known as a jointer,the plaintiff on November 13, 1909, was injured. In June, 1910, plaintiff brought this action, alleging in his declaration, which is most in-artificial, and contains but one count:
    (1) That it is the general custom to have the knives of the jointer machine covered or guarded where the knives are not in use, that a portion of the knife where plaintiff was injured was about ten inches long, “and unnecessary to be there, and, because of it being there and not guarded, the plaintiff was injured.”
    (2) That the jointer machine was defective, that the defect was known to the defendant and was the cause of the injury, and “that the bearings of the head of the jointer machine were defective, in that the bearings were loose and very much worn, which caused the head of the machine to run uneven and with a jumping and jerking motion, which caused the knife which was attached to the head of the jointer machine to run uneven and in a jumping and uneven condition, and, because of the defect as before mentioned, the work was thrown and jerked out of the hand of the plaintiff, and his hand came into contact with the cutting edge of the knife.”
    (3) The jointer machine was provided with an alleged guard which was of the poorest type of guard used to cover the part of the knife that was not in use. The guard was fastened to the head of the jointer by a bolt. The bolt was loose and defective, and would not hold the alleged guard in place, and, because of the defect in the bearing of the machine and the uneven and jumping motion of the head and knife, the alleged guard would swing away from the knife “with the result that, when the work was jerked or thrown out of the hand of plaintiff, the hand of plaintiff came in contact with the unprotected knife of the jointer machine,, and injured plaintiff as aforesaid, and plaintiff avers that the aforesaid alleged guard that was attached to the jointer machine upon which plaintiff was injured is not in general use as a guard for the knives of a jointer machine as aforesaid.”
    (4) Plaintiff called the attention of the superintendent of defendant to the defective condition of the bearings of the jointer machine, and the superintendent promised to repair and make perfect the defect, and ordered plaintiff to continue to work, which he did for three-quarters of an hour, when he was injured.

      (5) Previous to the injury defendant was ordered by the State factory inspector to provide a proper guard for the knife of the jointer machine, which order was not complied with, contrary to the statute.
    In his opening statement to the jury, counsel for plaintiff said:
    “We charge that the plaintiff received his injuries through the negligence of the defendant and without any negligence of his own. That when employed there he was ordered to work upon the jointer. It not being guarded as ordered to be guarded by the State factory inspector, * * * when so employed on the unguarded machine, he was injured by having three fingers of the left hand cut from the hand, permanently injuring him.”
    Plaintiff testified that there was no guard on the jointer machine. On cross-examination he testified there was no guard, and his attention was called to the allegation in the declaration to the effect that the jointer machine was provided with an alleged guard, but of the poorest type. To this his counsel objected, saying:
    “ I stand on my opening statement.

      “The Court: I think the declaration sets up the cause of action.

      “Mr. Jones: But I don’t have to prove everything in the declaration.”
    Plaintiff called á witness who testified that he was State factory inspector from 189? to January 1, 1909, that he inspected the defendant company’s plant, and that at some time he served a written order on the superintendent of the plant to guard a jointing machine. (It appears there was but one in use by defendant.) No order was produced, the witness stating that he could not produce . such an order because he left all his orders and all records in the office when he severed his connection with the State factory department. No testimony was offered to prove any other negligence of defendant, nor to prove any defect in the machine, or in a guard to the machine. Defendant offered no testimony, and the court directed a verdict for the defendant.
   Ostrander, C. J.

(after stating the facts). The question, the only one debated in the briefs, is whether there was a fatal variance between the proof and the declaration. It is the contention of defendant, appellee; and was the view of the trial court, that the declaration alleges, not the absence of a guard, but the presence of a defective guard; that, consequently, testimony that there was no guard tended to prove no negligence of defendant alleged in the declaration.

The provision of the statute relied upon by the plaintiff is:

“All vats, saws, pans, planers, cogs, set-screws, gearing and machinery of every description shall be properly guarded when deemed necessary by the factory inspector.” Act No. 285, Pub. Acts 1909, § 15.

Plaintiff, appellant, insists that the first allegation referred to in the foregoing statement is an allegation that the machine was not guarded. The reply which is made is that the averment relied upon is plainly not one that the planer (jointer) machine was not guarded, and is one that a knife was not guarded; that the averment must be read with the later averments of the declaration, and, when so read, it is clear that the averment is that the machine had a guard, and that the negligence alleged is the use of an inefficient, or defective, guard. Fair construction of the language of the declaration supports appellee’s contention. As has been pointed out, the declaration has but one count, the meaning of which must be gathered from all the language used. The pleader has averred a defective machine, independent of the guard, or want of a guard, and also a defective guard. This is the negligence averred. Neither averment is supported by testimony.

It may be said that the legislation referred to requires an effective guard, and that an ineffective guard is no guard. This, we conceive, is the real theory of the declaration so far as a guard is concerned. It was testimony tending to support this theory that defendant was called upon to meet. The testimony tends to support no such theory. The variance is fatal. 22 Enc. Pl. & Prac. p.527; Shanke v. Heater Co., 125 Mich. 346 (84 N. W. 283); Hoyt v. Garlock, 145 Mich. 632 (108 N. W. 1074); Wabash, etc., R. Co. v. Friedman, 146 Ill. 583 (30 N. E. 353, 34 N. E. 1111). The case of Hunter v. Township of Dwight, 157 Mich. 634, 640 (122 N. W. 267), relied upon by appellant, is plainly opposed to his contention here, since defendant is not apprised by the declaration that a mere breach of the statute duty to guard is relied upon.

The judgment is affirmed.

Bird, Brooke, Blair, and Stone, JJ'., concurred.


text:
    HAMILTON v. DETROIT UNITED RAILWAY.
    Negligence — Contributory Negligence — Street Railways.
    Upon a record showing that a passenger alighted from defendant’s car at a crossing, where the road was double tracked, the track being straight and level, that although he looked and listened, he neither saw nor heard a car coming, but was struck by a south-bound car as he stepped on the west rail, any possible error committed at the trial was immaterial after a verdict rendered for defendant, since plaintiff was guilty of contributory negligence.
    Error to Oakland; Smith, J.
    Submitted June 26, 1911.
    (Docket No. 77.)
    Decided September 29, 1911.
    Case by John Hamilton against the Detroit United Bailway for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Thos. J. Mahon, F. L. Covert, and B. M. Henderson, for appellant.

      James H. Lynch, for appellee.
   Moore, J.

Plaintiff sued to recover damages for injuries received by him while attempting to cross defendant’s railroad track. The case was tried before a jury, which returned a verdict in favor of defendant. The case is brought here by writ of error.

The plaintiff is upwards of 60 years of age. He was a passenger on a north-bound suburban car out of Detroit. He left the car at the 8-mile road. He had with him a bag of provisions, whioh, after leaving the car, he threw over his shoulder, and started to go across the tracks. As he started to put his foot over the first rail of the west track, he was struck by a south-bound suburban car, and received injuries which resulted in the amputation of one of his legs. The accident happened about 6 o’clock De. cember 16, 1907. It is the claim of the plaintiff that, before he attempted to cross the track, he looked and listened, and neither heard nor saw the car. The tracks were straight and level where the accident occurred and for at least 50 rods north therefrom.

The plaintiff offered, in addition to his own testimony, two witnesses, the first of whom saw the car coming when it was a quarter of a mile away, and the second one saw it, at one time in his testimony he stated, at Ford’s, 40 or 50 rods from where the accident occurred, and at another time he stated it was between the 8-mile road and Ford’s. The testimony on the part of the defendant was to the effect that the car and the headlight were lighted, and that the crossing signals were given.

At the close of the testimony offered on the part of the plaintiff, and again after all the testimony was in, the defendant asked for a directed verdict. Among the requests offered on the part of the plaintiff was one asking for a directed verdict in favor of the plaintiff. The court declined to direct a verdict, and told the jury, in substance, that about the only question for them was whether a proper headlight was burning.

There are more than 30 . assignments of error which are grouped under three or four heads. We think it unnecessary to discuss them.

In view of the case as presented by the record, it is incredible that one in the exercise of the ordinary care of a reasonably prudent man would not have seen or heard this car coming on a straight, level track. We think the judge might very properly have said that the negligence of the plaintiff contributed to his injury, and directed a verdict in favor of defendant.

Judgment is affirmed.

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


text:
    HANSEN v. HALL.
    1. Taxation — Notice — Redemption — Mines and Minerals — Grantee — Tax Title.
    Until the holder of a tax deed serves notice upon the owners of a mineral estate in lands, that was reserved in a deed executed by them, as well as upon the owners of the surface rights, the right of redemption from the tax purchase remains to all. (1 Comp. Laws, § 3959, Act No. 270, Pub Acts 1909.)
    2. Same.
    The ownership of undiscovered minerals constitutes an estate in the land.
    Appeal from Iron; Flannigan, J.
    Submitted June 16, 1911.
    (Docket No. 78.)
    Decided September 29, 1911.

      Bill by Olaf Hansen against Stephen C. Hall, Alfred B. Stryker, Arthur A. Juttner, and Fred S. Nor cross to quiet title to lands. From a decree for defendants, complainant appeals.
    Affirmed.

      Isaac W. Byers, for complainant.

      Charles H. Watson, for defendants.
    Complainant is the holder of a tax title upon certain lands described in the bill of complaint and seeks a decree quieting title to the lands in himself. Defendants, by their answer and cross-bill, admit that complainant is the owner of the tax title covering the lands in question, but aver that complainant has failed to give the statutory notice required by Act No. 229 of the Public Acts of 1897 (1 Comp. Laws, § 3959), as amended. This statute requires that service be made “upon the grantee or grantees under the last recorded deed in the regular chain of title and the mortgagee or mortgagees named in all undischarged recorded mortgages or any assignee thereof of record.” It appears that on February 9, 1895, the trustees of the estate of Joseph Juttner, deceased, were the owners in fee simple of the lands in question, under deeds duly recorded. On that day they executed a quitclaim deed of said lands to one Henry E. Martin. This deed contained the following exception and reservation, and was likewise duly recorded:
    “ Excepting and reserving unto the said parties of the first part, their heirs and assigns, from the operation and effect of this conveyance, their present respective rights and interests in all the metals, minerals, or ores, which are in or upon or under said lands, together with the full right at all times to enter in and upon said lands, or any, part thereof, to search for and to mine and to take and remove therefrom any and all such metals, minerals, or ores.”
    Complainant served the statutory notice upon the holders of the title conveyed by the quitclaim deed, but did not serve the notice- upon the holders of the estate reserved. Defendants tendered the amount of the taxes with the statutory premium and charges and prayed for a decree compelling reconveyance. The record contains no evidence as to whether or not minerals actually underlie the lands in question. From a decree in favor of defendants, complainant has appealed.
   Brooke, J.

(after stating the facts). The only point involved is this: Must the holder of a tax title serve the statutory tax notice upon the record owners of the title to the minerals reserved ?

We have held that the ownership of undiscovered minerals constitutes an estate in the land. Negaunee Iron Co. v. Iron Cliffs Co., 134 Mich. 264 (96 N. W. 468).

It is contended by complainant that the words “grantee or grantees under the last recorded deed in the regular chain of title ” cannot be so construed as to compel service upon the grantors in the quitclaim deed containing the reservation.

We think the position untenable. As to the estate reserved, the grantors in that deed remain grantees under the recorded conveyance to them until they convey, and as such are entitled to the statutory notice.

Until this notice is duly served upon each part owner and the statutory proof thereof is made and filed, the right to redemption remains to all. White v. Shaw, 150 Mich. 270 (114 N. W. 210); Dolph v. Norton, 158 Mich. 417 (123 N. W. 13).

The judgment is affirmed.

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