text:
    LITTLE v. BOUSFIELD & CO.
    1. Evidence — Mortality Tables — Damages.
    The mortality tables are controlling, if offered in evidence, as to the expectancy of life, unless there is testimony tending to show that such expectancy was greater or less than the tables indicate.
    2. Damages — Death—Mortality Tables.
    Where the plaintiff failed to introduce in evidence the mortality tables to show the expectancy of deceased, who died as a result of personal injuries, but the testimony tended to show the value of his contributions to his wife, the plaintiff, for various periods not exceeding his expectancy as indicated by the tables, and the verdict did not exceed an amount which they would justify, the judgment is not reversible for the omission to introduce them.
    8. Same —Negligence —Probable Earnings — Excessive Verdict.
    Upon the failure of the jury to make reasonable deductions from the earnings which decedent, who was forty-seven years of age and of infirm health, might have contributed to his wife, a deduction may be made on appeal from the verdict and a judgment be entered for such amount as the court deems not unreasonable, conditioned upon plaintiff’s acceptance of such finding.
    Error to Bay; Collins, J.
    Submitted April 12, 1911.
    (Docket No. 94.)
    Decided May 8, 1911.
    Case by Lulu L. Little as administratrix of the estate of Alvah S. Little, deceased, for the negligent killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.
    Affirmed on condition that plaintiff’s judgment be reduced.

      Gillett & Clark, for appellant.

      De Vere Hall (J. H. Patterson, of counsel), for appellee.
   Ostrander, C. J.

Proceedings upon a former (the second) trial of this cause were reviewed in an opinion found in 154 Mich., at page 369 (117 N. W. 903). The published opinion, in that portion of it which directs the final disposition of the cause, is misleading. After the opinion was filed, a motion was made by defendant for a modification thereof; the motion was granted, and the judgment entry reverses the judgment below and orders a new trial of the cause. Contrary to the statement in the published opinion, this court did not determine the amount for which a judgment in plaintiff’s favor would beaffirmed.

As upon the former trial, plaintiff at the last trial dismissed from consideration all but the fourth count of the declaration. She produced no new witnesses and relied upon substantially the same testimony to show the negligence of defendant, freedom from negligence on the part of plaintiff’s intestate, and the effect of the injury. The questions raised by exceptions and by the errors assigned are not materially different from those presented and decided when the cause was first in this court. We have considered them with especial reference to the additional testimony produced by defendant and the alleged changes in the testimony of plaintiff’s witnesses which are pointed out, and conclude that, while the jury might well have found that the negligence of defendant alleged was not proved, still as to all matters passed upon in the former opinion no error is made to appear.

It is contended that, because the tables showing the expectancy of life according to experience were not introduced in evidence, and no other testimony of the probable duration of the life of a normal man of any age was introduced, therefore the jury had no basis for assessing damages. The tables are admissible in evidence whenever the expectancy of life properly comes in controversy. They are controlling, when admitted, in the absence of evidence tending to show that the deceased had a probability of life greater or less than is shown by the tables. Nelson v. Railway Co., 104 Mich. 582 (62 N. W. 993); Davis v. Railroad Co., 147 Mich. 479 (111 N. W. 76). See, also, Jones v. McMillan, 129 Mich. 86 (88 N. W. 206); Damm v. Damm, 109 Mich. 619 (67 N. W. 984, 63 Am. St. Rep. 601); Belmer v. Tanning Co., 160 Mich. 669 (125 N. W. 726); Sax v. Railway Co., 125 Mich. 252 (84 N. W. 314, 84 Am. St. Rep. 572).

We are not prepared to reverse the judgment because plaintiff did not introduce the tables, or any other testimony, tending to prove the probable duration of life of a person of the age of plaintiff’s decedent. But we are of opinion that in determining, in such a case, whether a verdict was excessive, this court would find it excessive if it appeared that the jury, in the absence of any testimony upon the subject, had computed damages upon a basis of longevity which the tables did not substantially support.

The testimony for the plaintiff in the case at bar tended to prove that plaintiff’s decedent when he was injured was afflicted with a disease of the inner ear, of which disease, aggravated by the injury he received, he died about a year and four months after he was injured. During this period he earned some money, served as a juryman, and appeared to have recovered from the. effects of his injury.

Upon the subject of the expectancy of life, the court instructed the jury as follows:

“ If you should find for the plaintiff, the amount of your verdict must be limited, not only by the probable length of time that Mr. Little would have lived and would have been able to contribute to his wife’s support, but also by the time during which his wife may reasonably be expected to live and to receive such support. The amount, if any, must be limited by her expectancy of life, as well as by his.
“If you find it necessary to compute the period of time during which Mr. Little would have lived, which is known as his expectation of life, you must take into consideration the condition of his health, including the fact that it is admitted by the plaintiff that he was afflicted before the accident with a disease known as suppurative inflammation of the ear, and that this disease contributed to his death, and that a man suffering from this disease is not in perfect health, and is more likely to die, and to die sooner, than if he were free from such disease. In considering how much he would have contributed to his wife, if he had lived, you may therefore consider this previous condition of health, and you may also take into consideration the fact that laboring men do not always find steady work, and that there is no certainty that Mr. Little would always have had steady work in the future, even if he had not been injured. You should figure his probable contributions, if any, not necessarily by computing the amount, which he would contribute if he worked every day until his death, but may make deductions for the time that he might reasonably lose in the future on account of lack of work, or sickness, or old age, or any other cause. The uncertainty of his health and physical condition are to be considered, as well as the uncertainty of the work at which he was engaged. You should also deduct from the amount of the estimated contributions such sum as is necessary to discount the allowance in a lump sum of contributions which otherwise would have been made at various times in the future. This should be done by computing the present worth of his future contributions.”

The jury were thus given proper rules for their guidanee. The testimony upon the subject of damages was that of the widow, who said the amount of monthly contributions lost was $30, and that the husband received as wages $1.62½ per day generally, and sometimes received $1.75 per day. The widow was younger than her husband, who was 49 years old when he died.

The attorney for the plaintiff testified as follows:

“I have made a computation of the value of an annuity of $360 a year at the rate of 5 per cent, simple interest. The value of an annuity of $360 a year for 1 year at 5 per cent, simple interest is $342.85; for 2 years is $670.12; for 3 years,, $983.16; for 4 years, $1,283.16; for 5 years, $1,571.1 ; for 6 years, $1,848.08; for 7 years, $2,114.70; for 8 years, $2,371.89; for 9 years, $2,620.70; for 10 years, $2,860.17; for 11 years, $3,092.43; for 12 years, $3,317.43; for 13 years, $3,535.61; for 14 years, $3,747.37; for 15 years, $3,953.08; for 16 years, $4,143.08; for 17 years, $4,347.68; for 18 years, $4,537.15; for 19 years, $4,721.77; for 20 years, $4,901.77; for 21 years, $5,077.38. I have only taken it for 21 years, because I compute it from the time of the death, rather than from the time of the injury, under this statute.”

On cross-examination he further testified:

“My computation depends, first, on Mrs. Little’s testimony as to a dollar a day, and is dependent in addition on the uncertain question as to how many years Mr. Little would have lived; that is why the figures vary.
“A juror: When you say the value of money, what do you mean, 5 per cent, interest, or compound ?
“A. No, not compound; simple interest. That is, if $360 was to be paid .to Mrs. Little at the end of a year, you would find how much it should be if paid today, by dividing $360 by $1.05; and if it was to be paid at the end of two years, by dividing by $1.10, 5 per cent, being the rate of interest, and then you would add these several quotients for the years you wanted, and that makes the amounts which I have stated.
“Q I believe on the first trial your computation was $4,528. What did the difference represent ?
“A. The difference represents the fact that in the first computation there was no fuel included, $4. It was on the basis of $26 a month, or one dollar for each laboring day, as she testified, omitting anything for fuel and light, and this time $4 a month is added for fuel and light.”

The expectancy of life of plaintiff’s decedent, as appears from the tables, was 21 years plus. The jury returned a verdict for $5,077.38, showing that no deductions whatever were made for sickness, loss of time, infirmities of age, diminished earning capacity, diminished longevity on account of the disease of the ear; showing, too, that they found deceased for 21 years, or until he was 68 years of age, would have contributed to the support of his wife $30 a month out of his wages as a laboring man of about $1.62£ a day, or about $42 a month. It appears that upon the first trial of the cause the widow, upon whose testimony the point depended, testified that the regular wages of her husband were, and for some years had been, $1.50 per day, and estimated his contributions, lost by his death, at $26 per month. The rule laid down by the court for determining the present worth of the lost contributions has often been, and was recently, approved in Rivers v. Electric Co., 164 Mich. 696 (128 N. W. 254). We find no reversible error committed upon the trial.

Defendant moved for a new trial upon the ground that the .verdict was excessive and was against the weight of evidence. We are of opinion that the motion should have been granted. It is true there was testimony of medical men to the effect that the decedent might have lived out his expectancy of life, notwithstanding his diseased condition; but the weight of the testimony is not so. Nor does the weight of testimony, or human experience, support the conclusion that no deductions should be made from the amounts stated in the computation submitted by counsel. Undoubtedly the necessary inquiry is to be made by the jury. But, when it is evident that the necessary inquiry has not been made, the remedy must be, however reluctantly, applied by the court. King v. Railroad Co., 144 Mich. 65 (107 N. W. 868). If it is assumed that, but for the injury, plaintiff’s intestate would have lived 18 years longer than he did live, and that during that period he would have contributed to the support of his wife a sum averaging $22.50 per month, the present value of the contributions at the time of his death would be about $3,403. Such a result would be not unreasonable. A judgment for a larger sum would be, in our opinion, unreasonable. Rather than set aside the judgment and verdict absolutely, we are disposed to permit plaintiff to remit so much as exceeds $3,403, for which sum it will be affirmed, with costs of this court to appellant. Otherwise a new trial will be granted.

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


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    HARTZ v. BROWN.
    Certiorari — Appeal and Error — Highways and Streets — Commissioner of Highways — Laying Out Publio Highway — Review of Special Proceeding — Statutes.
    Act' No. 283, Pub. Acts 1909, providing an adequate remedy by appeal to review the action of a commissioner of highways in laying out a road and determining the damages sustained, and of the township board in reviewing such action, certiorari will not issue from the circuit court to review such proceedings.
    Certiorari to Wayne; Murfin, J.
    Submitted April 13, 1911.
    (Docket No. 112.)
    Decided May 8, 1911.
    Certiorari by John C. Hartz against Berton D. Brown, commissioner of highways of Plymouth township, and Cyrus A. Pinckney, clerk of the same, to review eminent domain proceedings in laying out a highway. An order of the circuit court dismissing the writ is reviewed by plaintiff on writ of certiorari.
    Affirmed.

      Keena, Lightner & Oxtoby, for relator.

      C. C. Yerkes, for respondents.
   Blair, J.

On July 23, 1909, certain freeholders of the township of Plymouth, in Wayne county, presented to said commissioner of highways a petition for the laying out of a road. On July 26th the commissioner served notice of meeting to consider the application on August 10th. On the said 10th of August the commissioner laid out and established the road, and determined the necessity therefor and the damages. Plaintiff was present at this meeting, by his attorney, and filed a protest against taking his land. On August 14th the commissioner filed a full record and return of his proceedings with the township clerk. On August 17th plaintiff perfected an appeal to the township board, which board, on the 14th day of September, sustained the action of the commissioner. On September 14th, and prior to the determination of the appeal by the township board, the said commissioner and clerk were served with a writ of certiorari, issued out of the circuit court for Wayne county on the same day, commanding them to certify the proceedings and papers relative to laying out said highway to said court. On the 18th day of September plaintiff appealed to the circuit court. On October 9th the writ of certiorari was quashed as improvidently issued. Later a writ of certiorari was allowed by this court, and the proceedings are now before us on the return to that writ.

At the time the writ of certiorari was issued to the commissioner and clerk, Act No. 283, Pub. Acts 1909, was in force. That act contains no provision for reviewing by writ of certiorari either the action of the commissioner or of the township board, but provides only for an appeal. Section 8 of chapter 1 of the act provides:

“ * * * And the said circuit court shall also have full power and jurisdiction over said proceedings to hear and determine the same and render judgment therein, as if the said proceedings had been originally commenced before the said circuit court.”

It is apparent, therefore, that plaintiff had — and, indeed, is now pursuing — a complete and adequate remedy by appeal to the circuit court. Under such circumstances, the remedy by certiorari is not permissible. People v. Farwell, 4 Mich. 556; Detroit Lumber Co. v. Yacht Petrel, 155 Mich. 350 (119 N. W. 1072, 120 N. W. 749).

The order of the circuit judge is affirmed, with costs to defendants.

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


author: Stone, J.

text:
    LOOMIS v. HARTZ.
    1. Constitutional Law — Highways and Streets — Statutes— Eminent Domain — Appeal and Error.
    , Aot No. 283, Pub. Acts 1909, providing for a review by appeal to the circuit court of proceedings to lay out a highway, is not in violation of the Constitution of 1909, Art. 13, § 1, for failing to provide for a jury of twelve freeholders, as in other proceedings, by eminent domain, since the action of the commissioner of highways in such proceedings is excepted from the constitutional requirement by the express language of said section.

      2. Same — Taking Private Property.
    The exercise of the power of eminent domain is within the legislative control, subject to the provisions of the Constitution, and the necessity, time, and manner of its exercise are wholly legislative questions, subject to such restrictions.

      Certiorari to Wayne; Murfin, J.
    Submitted April 13, 1911.
    (Docket No. 113.)
    Decided May 8, 1911.
    Proceedings by Oliver H. Loomis and other freeholders of the township of Plymouth, Wayne county, Michigan, to lay out a highway. From an order of Berton D. Brown, highway commissioner, laying out a highway over lands of defendant, John C. Hartz, the defendant appealed to the township board, and, from its affirmance of the proceedings, to the circuit court. An order of the circuit judge dismissing the appeal is reviewed by defendant on certiorari.
    Reversed.

      Keena, Lightner & Oxtoby, for appellant.

      C. C. Yerkes, for appellees.
   Stone, J.

In this case defendant seeks by certiorari to review the action of the circuit judge in dismissing an appeal from the township board of the township of Plymouth, in a certain highway proceeding, and to reinstate said appeal in the circuit court.

It appears: That, upon the petition of the requisite number of freeholders of said township, the commissioner of highways took certain action to lay out a highway therein through lands belonging to the defendant. The defendant, conceiving himself aggrieved by the determination of such commissioner, perfected an appeal therefrom to the township board of said township. That later said township board took action, and affirmed the determination of said commissioner in said matter. That thereupon defendant, in pursuance with the statute, duly perfected an appeal from the determination of the township board to the circuit court for the county of Wayne. Due return was made to said appeal. Later said cause came on for trial on said appeal. While the jury was being impaneled a question was raised by the circuit judge as to the constitutionality of the proceeding, and he finally ? by order, dismissed the appeal, upon the ground that the statute providing for an appeal and hearing is unconstitutional because it contravenes the express language of the Constitution of this State. After the denial of a motion to vacate said order and judgment, the defendant applied to this court for the writ of certiorari.

We must therefore answer the question: Did the circuit judge err in dismissing the appeal ? Section 1 of article 13 of the present Constitution provides as follows :

“ Private property shall not be taken by the public nor by any corporation for public use, without the necessity therefor being first determined and just compensation therefor being first made or secured in such manner as shall be prescribed by law.”

Section %:

“When private property is taken for the use or benefit of the public, the necessity for using such property and the just compensation to be made therefor, except when to be made by the State, shall be ascertained by a jury of twelve freeholders residing in the vicinity of such property, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law: Provided, that the foregoing provision shall not be construed to apply to the action of commissioners of highways, or road commissioners, in the official discharge of their duties.”

The Constitution of 1850 as amended contained substantially the same provisions. Prom the language of the circuit judge as it appears in the record, he dismissed the appeal because he was of opinion that the statute is void, since it provides on appeal for a trial by a jury, which is not necessarily composed of twelve freeholders. In other words, he was of the opinion that the proviso above quoted applies only to the action of the commissioner of highways, and that it did not permit a hearing on appeal from the commissioner, unless that appeal was heard by twelve freeholders, or by three commissioners. It is evident that, if this reasoning is correct, then the statute providing for an appeal to the township board must also be held to be unconstitutional, because that board no more complies with the requirement of a jury of twelve freeholders or three commissioners appointed by a court of record than does the ordinary jury in the circuit court. The infirmity in this reasoning of the learned circuit judge is that this is a proceeding by a commissioner of highways in the official discharge of his duty under the statute to lay out a highway; and in such a proceeding no jury is provided for in the Constitution, but it is expressly provided that the jury provision shall not apply. It is enough if the necessity therefor and just compensation therefor are first made or secured “in such manner as shall be prescribed by law,” as is provided in section 1, above quoted. We must not lose sight of the fact that, tips proceeding, from beginning to end, is one by the commissioner of highways to lay out a highway, in which a jury is wholly dispensed with.

It should be borne in mind that each State by virtue of its statehood has the right to exercise the power of eminent domain. Barron v. Baltimore, 7 Pet. (U. S.) 243.

The exercise of such power is a matter entirely under the control of the legislature, subject to such restrictions as are found in the Constitution. The necessity, the occasion, time, and manner of its exercise are wholly legislative questions, with the exception just stated. Swan v. Williams, 2 Mich. 427; Woodmere Cemetery v. Roulo, 104 Mich. 595 (62 N. W. 1010). As we have already-said, the jury clause of the Constitution does not apply to such proceedings of the commissioner of highways, as we are here considering. It is enough if the statute has been complied with in a given case. This distinction is well illustrated by the case of City of Mt. Clemens v. Macomb Circuit Judge, 119 Mich. 293 (77 N. W. 936). That was a case where the Constitution imperatively required a jury of twelve freeholders in the first instance; and in such a case it is clear that no trial de novo on appeal could be had before an ordinary jury. But we are here dealing with a case where no jury of any kind is required by the Constitution; hence the difference. We shall not dwell upon the fact that for half a century appeals have been allowed from the commissioner of highways to the township board in this State, and that appeals to the circuit court from the township board have been a part of our law since 1901. Cases too numerous to cite involving these appeals have been before this court. It is true that the constitutionality of these statutes has not been directly raised, but their validity and the procedure under them have been sustained. Among these cases have been the following: Sanger v. Brownstown Township Board, 118 Mich. 19 (76 N. W. 121); Campau v. Le Blanc, 127 Mich. 179 (86 N. W. 535); Brown v. Greenfield Township Board, 109 Mich. 557 (67 N. W. 566); Weber v. Ryers, 82 Mich. 177 (46 N. W. 233 ); Dubois v. Riley Township Board, 126 Mich. 587 (85 N. W. 1067). We might add many others.

We are of opinion that the circuit judge erred in dismissing the appeal, and that the order and judgment should be reversed and the appeal reinstated.

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


text:
    BRANCH v. KLATT.
    1. Negligence — Contributory Negligence — Theaters.
    A person may presume that the owner of a theater has discharged his duty of having the premises and exits in a reasonably safe condition as to lights and construction, so that patrons may safely pass through a darkened passageway or exit in leaving the theater.
    2. Same — Theaters and Shows — Exits.
    Whether, in passing over a series of irregular flights of stairs leading from a five-cent theater, a patron who fell down an unexpected step in the dark, was guilty of contributory negligence, should have been submitted to the jury.
    3. Same — Stairways.
    The duty of such person to exercise care is lighter than that of a pedestrian on the public highway.
    Error to Wayne; Murfin, J.
    Submitted April 13, 1911.
    (Docket No. 105.)
    Decided May 8, 1911.
    Case by Theresa Branch against William F. Klatt for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Patrick J. Kelaher (McHugh & Gallagher, of counsel), for appellant.

      Luman W. Goodenough, for appellee.
   Stone, J.

This is an action on the case to recover damages by reason of the alleged negligence of the defendant in failing to provide a safe entrance and exit to and from his theater, in not equipping the stairways with railings, and in not keeping the stairways lighted sufficiently, and in not otherwise* by signs or by attendants, apprising the plaintiff of the location of the various steps and stairways leading into the theater.

On October 21, 1909, the defendant maintained a five-cent moving picture theater, so called, known as the Bijou Theater, on the second floor of a building on Monroe avenue, in the city of Detroit. The theater was reached by entering the ground floor of the building on Monroe avenue, and then passing to the rear, where the stairway was-situated.

The stairway consisted of- several flights of steps, as shown by the annexed diagram, the entrance being at X. The first flight was distant seven feet from' the southerly wall of the building, and consisted of eight steps. There was a platform at the head of this flight. At right angles to the first flight, and directly along the easterly wall of the building, there was a second flight of three steps, also ending in a platform which was set in the southeastern corner of the building. Parallel with the first flight, and at right angles with the second, a third flight of eight steps was erected along the south wall

of the building, which brought one to the level of the second floor, at C. The stage of the building was at the west end, so that the stairway brought one in at the rear of the theater. There was a single aisle through the theater, in the center of the building, which, with the seats, on either side, inclined up from the level of the stage. The last row of seats was thereby left considerably above the level of the floor of the building, and made necessary four additional steps after reaching the top of the third flight of stairs already mentioned. From the top of said third flight of stairs to the last row of seats is a distance of upwards of eight feet. Extending from a point a few inches north from the top step of said last flight to a point on the south wall, about five feet distant from the top of said third flight of steps, there is a single curved step (A, B,) and beyond this step another platform extending northerly entirely across the building, and also extending westerly to the last row of seats. From this platform to the aisle of the theater there is a flight of three steps ( M, N, O ), the base of which is distant from said single curved step at the nearest point about two feet. At the time of the injury of the plaintiff there was no railing down this flight of three steps, nor over the single step.

At about 4 o’clock p. m. of the day named, the plaintiff visited this theater, bought a ticket and went up the stairway, reaching the seat without incident, and without paying any particular attention as to how the steps were constructed or arranged. The performance was a continuous one, and she remained until she had seen all of the acts, and then started to leave. People had been leaving all of the time during the performance, though none did so while she was going out. When plaintiff started to descend the flight of three steps (M, N, O), the upstairs of the theater was very dark. She could not see the steps, and had to feel her way down. It was light on the ground floor of the building, and from this light the plaintiff could see where the stairway went, but above that could see nothing. After she felt her way down the flight of three steps, she started to walk toward the platform, and stepped down the single curved step (A, B) without being aware of its existence there, whereupon she lost her balance, and fell forward and down the flight of eight steps-leading downstairs, thereby sustaining the injuries complained .of.

The plaintiff had been in the theater once before. She testified that “it was a long time before that.” She fell against the side wall when she stepped off the single step, and tried to catch hold of something, but there was nothing there to get hold of. Plaintiff’s eyesight was good. She had no parcels in her arms, and was not incumbered in any way. Further witnesses were sworn to prove the damages of the plaintiff. After the plaintiff rested, upon the motion of defendant, the trial judge directed a verdict and judgment to be entered for the defendant upon the ground that plaintiff was guilty of contributory negligence as matter of law. In directing the verdict the trial judge said:

“ She should either have asked for assistance, or called for a light, or something. I do not believe, gentlemen of the jury, as matter of law, that any careful and prudent person exercising good, sound, common sense in the ordinary care that is expected of any pedestrian or anybody else under the same circumstances would go through a strange hallway, with knowledge of these steps there, at a time when it was so dark that it was just as dark ( as the testimony shows in this case ) as it could possibly be, and I think * * * that anybody that does that must be held, as a matter of law, to be guilty of contributory negligence, and therefore, gentlemen, even though there be a prima facie showing of negligence on the the part of the defendant company, the testimony being undisputed that the plaintiff herself was guilty of negligence which contributed to the injury, I think it my duty to direct you to render a verdict of no cause of action.”

The plaintiff has brought the case here, and has assigned error upon the action of the trial court in directing the verdict and judgment for defendant.

The single question is presented, whether the plaintiff can be said, as matter of law, to have been guilty of contributory negligence. How would a person in the exercise of ordinary prudence conduct himself if placed in the plaintiff’s situation at the time of the injury ? One would have a right to presume that the defendant had discharged his duty of having the premises in a reasonably safe con-. dition, as to lights and construction; and the ordinary person would naturally suppose that it would be safe to pass along a passageway provided for his exit, with reasonable assurance of its being in safe condition. The very fact of the premises being maintained in a darkened condition might give him added assurance of its being reasonably safe.

This was a place where the public were invited. Can it be said, as a matter of law, that a person seeking to leave a public theater, and following the only path leading to an exit, should apprehend that that path contained an unsafe place or a pitfall, or the like, and yet such was claimed to be the condition of the plaintiff’s only path of egress at the time in question, as appears from her testimony. We think, to say the least, that, under the evidence, this question was one for the jury under proper instructions, and that the trial court erred in directing a verdict for the defendant. Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457); Brezee v. Powers, 80 Mich. 172 (45 N. W. 130); Graves v. City of Battle Creek, 95 Mich. 266 (54 N. W. 757, 19 L. R. A. 641, 35 Am. St. Rep. 561); Cousineau v. Lighting Co., 145 Mich. 314 (108 N. W. 720); Williams v. Park Association, 128 Iowa, 32 (102 N. W. 783, 1 L. R. A. [N. S.] 427, 111 Am. St. Rep. 184, 5 Am. & Eng. Ann. Cas. 924, and note); Bloomer v. Snellenburg, 221 Pa. 25 (69 Atl. 1124, 21 L. R. A. [ N. S.] 464). The last-cited case holds that in a building where the public are invited it is not reasonable to expect that the same degree of attention on the part of the plaintiff should be bestowed upon the placing of the feet as would properly be required outside, upon a public highway.

The duty of a person in á theater, where he has been invited, is lighter than that resting upon one passing along the public streets.

The judgment of the circuit court is reversed, and a new trial granted.

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


text:
    MINER v. BEURMANN.
    1. Elections — Recount—Public Officers.
    Where respondent, a candidate for election as supervisor, was also a member of the board of election canvassers, and signed the report of a recount declaring respondent elected, but a majority of the board without counting respondent signed the report, it was valid and conclusive of the facts stated therein. 1 Comp. Laws, § 3725.
    3. Same — Supervisors—Recount—Board.
    A recount of the vote for township supervisor was properly held before the township board as a board of canvassers under 1 Comp. Laws, § 3725, one of the candidates who was a member of the board not participating in the proceedings, and the contention that the inspectors of election had jurisdiction is not sustainable.
    3. Same — Petition—Precincts.
    The recount was properly limited to the precinct in which the petition alleged fraud and mistake occurred.
    4. Same — Officers—Books and Records — Mandamus—Remedies.
    Respondent, who was declared elected to the office of supervisor by the township board after a recount and who took the oath of office and assumed the functions thereof, may not be dispossessed on mandamus, by which title to office is not triable.
    Mandamus by James H. Miner against E. Miller Beurmann, to test respondent’s right to the office of supervisor.
    Submitted April 18, 1911.
    (Calendar No. 24,580.)
    Writ denied May 8, 1911.

      E. A. & L. E. Stowe, for relator.

      James A. Greene, for respondent.
   Stone, J.

Upon the petition of the relator, an order was made that the respondent show cause why he should not be directed to turn over to relator all of the records, books, and papers belonging to the office of the supervisor of the township of Howell, in Livingston county.

It appears that at the election held on April 3,1911, the relator and the respondent were duly and regularly nominated by their respective parties for the office of supervisor of said township, and both received votes at said election therefor. The township is divided into two voting districts, in each of which both of said parties received a number of votes as follows: According to the report made by the district inspectors of election, relator received in district No. 1, 187 votes, and respondent 198 votes, and in district No. 2, relator received 203 votes, and respondent 191 votes, making in all 779 votes cast for said office, of which relator had 390 votes, or a majority of one.

The petition of relator states that at the conclusion of the canvass and count of said inspectors, he was declared by said inspectors of election duly elected supervisor of said township for the ensuing year. While this statement in the petition is formally denied by respondent, yet from the fact that he made a petition for a recount we are led to conclude that the statement of the petition in that respect is correct.

The township board at the time of this election consisted of the respondent as supervisor, Alfred E. Papworth, deputy township clerk ( who was performing the duties of that office by reason of the sickness of the township clerk ), and Herbert Satterlee and William O. Earl, justices of the peace. The respondent being a candidate for re-election, and said Alfred E. Papworth being a candidate for the office of justice of the peace, they were both barred from acting as inspectors of election at said election, and other electors were chosen to act in their stead at the election in district No. 1. See section 3612, 1 Comp. Laws. The two oldest justices of the peace, however, acted as inspectors.

It appears that on April 5, 1911, respondent filed a petition for a recount of the ballots cast for the office of supervisor in precinct, or district, No. 1 of said township, with said Alfred E. Papworth, deputy township clerk, who was still acting as above stated, and at the same time deposited with that officer the sum of $10, to defray the expenses of said recount, in case he did not establish fraud, error, or mistake in the original canvass of said votes in said district. A copy of the petition and written notice of the time and place of hearing said petition, signed by said deputy township clerk, were duly served on relator. On April 7,1911, the township board met at the hour and place designated in said notice. The relator did not appear.

The respondent did not act as a member of the board during such recount. Said Alfred E. Papworth, deputy township clerk, was designated as chairman of a committee for the purpose of such recount. Herbert Satterlee was designated by respondent for the second member of said committee, and the relator, not appearing in person or by attorney, and designating a third member of said committee, and after waiting one hour from the time stated in said notice, said board designated from its number a third member of said committee, to wit, W. O. Earl, which committee thus designated proceeded to open the ballot box, wherein the ballots cast for supervisor in said precinct or district No. 1 were deposited, and canvassed and corrected the claimed errors and mistakes made in the original canvass of the same, and made their report in writing to said board of canvassers as follows:

“To the Township Board of the Township of Howell, Livingston County, Michigan, Board of Canvassers of Said Township:
“In the matter of the recount of the ballots cast for supervisor in the first precinct of the township of Howell, Michigan, upon the petition of E. Miller Beurmann: Your committee on above recount did investigate the errors, mistakes, or frauds complained of in said petition, and did, in the office of the township board of the township of Howell, in the courthouse in said township, that being a public place where said candidates and their counsel could be present, did, on the 7th day of April, 1911, convene at 9 o’clock a. m., and after adjourning to 1 o’clock of the same day did proceed to open the ballot box from the first voting precinct of the said township of Howell in which the ballots for supervisor were deposited at the election held on Monday, the 3d day of April, A. D. 1911, and did make recount thereof as to such candidates for supervisor, and a correct and full return in writing thereof is as follows: The whole number of votes given for said office of supervisor was three hundred and eighty-three (383), and the names of the candidates upon the ballots were E. Miller Beurmann and J ames H. Miner; and that, of the said whole number of votes given, one hundred and ninety-nine (199) votes were given to E. Miller Beurmann, and one hundred and eighty-four (184) votes were given to James H. Miner.
“ In witness whereof the said committee, by each member thereof, certify the above to be a correct and full return in writing under their hands to said board.
“ Dated, Howell, Michigan, April 7, A. D. 1911.
“ Committee by,
“A. E. Papworth, Chairman.
“ W. O. Earl, J. of P.
“Herbert Satterlee, J. of P.
“ Returned and filed in the office of the township clerk of Howell township this 7th day of April, A. D. 1911.
“Alfred E. Papworth,
“ Dept. Township Clerk.”

It will be noted that, both by the petition and answer, it appears that in district or precinct No. 2, relator received 203 votes, and respondent 191. The change by recount in district No. 1 resulted in giving the respondent a majority of three in the township.

The statute (section 3725,1 Comp. Laws) provides that:

“ Said board of canvassers, upon receiving the report of such committee, shall accept the same as correct, anything in the previous declaration, certificate or returns from such township, ward or village to the contrary notwithstanding.”

We attach no importance to the fact that respondent signed with the other members the final determination or certificate. The report above set forth was conclusive of the facts stated, and, a majority of the board having signed, his signature was not necessary. On April 8th the final record was made, declaring respondent elected, and, having taken the oath o£ office, he entered upon its duties. The constitutional oath of office was taken by relator on April 7th, and filed with the township clerk on April 8th.

It is the claim of relator that, the action of the township board in the recount proceedings, as a board of canvassers, was a nullity for the reasons:

(1) That the recount proceedings should have been taken before the inspectors of election in this instance, because of the disqualification of the respondent and of Mr. Papworth. It already appears that the respondent took no part in the recount, and Mr. Papworth, the deputy township clerk, not being interested, and his rights not being affected by the recount, it cannot be held that he was disqualified to act. We think that the proceeding was properly had before the township board as a board of canvassers, under the provisions of section 3725, 1 Comp. Laws.

(2) It is urged by relator that a recount could not legally be made of one district or precinct only, but should have been of the whole township. We are of opinion that the recount should be limited to the ballot box in the precinct named in the petition. The petition only complained of error, mistake, or fraud in the first precinct. May v. Board of Canvassers, 94 Mich. 505-512 (54 N. W. 377). The petition must show which box the mistake or fraud is in, and the recount limited to that. 15 Cyc. p. 430.

An examination of the statutes involved leads us to the conclusion that the recount proceedings were regular and valid. This being so, and the respondent having been declared elected, and having taken the oath and entered upon the duties of the office, before these proceedings were begun, we cannot say upon this record that the relator is prima facie entitled to the books and papers of the office. Curran v. Norris, 58 Mich. 512 (25 N. W. 500); Ashwell v. Bullock, 122 Mich. 620 (81 N. W. 577); Murta v. Carr, 140 Mich. 606 (104 N. W. 27).

We cannot in this proceeding try the title to this office. Mandamus is not the proper remedy. Frey v. Michie, 68 Mich. 323 (36 N. W. 184); Maynard v. Board of Canvassers, 84 Mich. 228 (47 N. W. 756, 11 L. R. A. 332); Packard v. Board of Canvassers, 94 Mich. 450 (53 N. W. 934); Attorney General v. Looker, 111 Mich. 498 (69 N. W. 929); Keeler v. Deo, 117 Mich. 1 (75 N. W. 145); Pipper v. Wayne Circuit Judges, 122 Mich. 688 (81 N. W. 962); Lachance v. Board of Canvassers, 157 Mich. 679 (122 N. W. 271).

Writ denied.

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


text:
    WELLS v. TOOGOOD.
    1. Evidence — Libel and Slander — Privilege. '
    Statements made to a deputy sheriff in the nature of information relating to the alleged commission of a crime are privileged and incompetent in an aotion for slander.
    2. Same.
    Only the general reputation of a plaintiff, not specific acts, may be shown to mitigate damages for slanderous words.
    3. Same — Replevin, Writ of — Privilege.
    A copy of a writ of replevin is not admissible to corroborate an alleged slander, without foundation properly laid, and such writ is privileged.
    Error to Kent; Perkins, J.
    Submitted April 13, 1911.
    (Docket No. 137.)
    Decided May 8, 1911.

      Case by Magdaline Wells against Emery Toogood for slander. Judgment for plaintiff. Defendant brings error.
    Reversed.

      John W. Powers, for appellant.

      William F. McKnight and E. M. Cook, for appellee.
   Stone, J.

This is an action on the case for an alleged slander, claimed to have been uttered by defendant in the presence of divers persons. There are two counts in the declaration. The first count charges that the slanderous words were uttered on September 28, 1909, and charged the plaintiff with the larceny of certain bedding and knives and forks. The second count charges that the slanderous words were uttered by the defendant on April 7, 1910, and charged the plaintiff with having stolen from $175 to $200 worth of Haviland china, a blanket, and certain silver knives and forks, and a quantity of bedding and other articles.

Upon the trial of the case, the plaintiff offered as a witness one Gilbert Flanders, a deputy sheriff, who testified that he held that position in April, 1910, and that he remembered the occasion when the defendant came to the sheriff’s office. He was asked the following question by plaintiff’s counsel:

“Q. On the first occasion when he came in, did he state to you that he had some goods stolen ?
Defendant's Counsel: Just a moment. I object to any conversation between Mr. Toogood and this witness at that time, as privileged; he is a .deputy sheriff.”

The objection was overruled and defendant’s counsel excepted.

The witness was then permitted to testify that he was present at defendant’s first visit to the office; that Mr. Pettis, the undersheriff, was there; that in the afternoon Mr. Pettis sent the witness out to defendant’s house, on report of a robbery; that defendant took witness through the house, and gave the witness a list of the articles which he said had been taken. Witness asked defendant whom he suspected, and he said he believed the plaintiff, and another person. Defendant gave witness a list of the articles that' he claimed had been stolen. Defendant said that the goods had been taken during his wife’s sickness, and, after her death, during his sickness. The witness read the list which defendant gave him.

A writ of replevin was sued out by the defendant, for the articles, against the plaintiff and her husband, on the 7th day of April, 1910, and the plaintiff was permitted, against the objection and exception of defendant’s counsel that the same was incompetent and immaterial, to offer in evidence a copy of the affidavit and writ of replevin.

In his defense the defendant offered as a witness one Gertie Bowman, and he sought to show by this witness certain questionable conduct of the plaintiff with a young man upon the street, as bearing upon the character of the plaintiff. This was objected to as immaterial and irrelevant, and the objection was sustained, and defendant’s counsel excepted.

The plaintiff recovered a verdict and judgment, and the defendant has brought the case here on writ of error.

.There are three assignments of error:

(1) That the court erred in admitting the testimony of the deputy sheriff, under objection, relative to the larceny of household goods from his residence; the same being a privileged communication.

(2) The court erred in refusing to admit the testimony of Gertie Bowman, relating to certain claimed facts bearing upon the character and reputation of plaintiff.

(3) The court erred in admitting in evidence a copy of a writ of replevin, under objection that the same was incompetent and immaterial.

We shall consider the assignments of error in the order above stated.

We are of the opinion that the trial court erred in admitting the testimony of the deputy sheriff as to statements made to that officer by the defendant, as they were privileged communications within the rule frequently stated by this court. Hart v. Baxter, 47 Mich. 198 (10 N W. 198); Moore v. Thompson, 92 Mich. 498 (52 N. W. 1000); Garn v. Lockard, 108 Mich. 196 (65 N. W. 764); Graham v. Cass Circuit Judge, 108 Mich. 425 (66 N. W. 348); Shinglemeyer v. Wright, 124 Mich. 230 (82 N. W. 887, 50 L. R. A. 129); People v. Pratt, 133 Mich. 125 (94 N. W. 752, 67 L. R. A. 923); Flynn v. Boglarsky, 164 Mich. 513 (129 N. W. 674); Schultz v. Strauss, 127 Wis. 325 (106 N. W. 1066); 25 Cyc. pp. 375-384.

Did the court err in sustaining the objection to the specific facts sought to be proved by defendant, bearing upon the character and reputation of the plaintiff ? We think not. The case of Hitchcock v. Moore, 70 Mich. 112 (37 N. W. 914, 14 Am. St. Rep. 474), does not sustain the contention of the defendant.

It is the settled doctrine in this State, that the general reputation only of the plaintiff, and not specific acts, can be shown in libel and slander. Proctor v. Houghtaling, 37 Mich. 41-44; Bathrick v. Tribune Co., 50 Mich. 629 (16 N. W. 172, 45 Am. Rep. 63); Thibault v. Sessions, 101 Mich. 279, 290 (59 N W. 624); Georgia v. Bond, 114 Mich. 196 (72 N. W. 232).

We are of opinion that the court erred in receiving in evidence the copy of the writ of replevin against the objection that it was incompetent and immaterial. No proper foundation was laid for receiving in evidence the copy of this paper: We think that it was a privileged matter, also, although the objection was not specifically directed to that point.

For the errors pointed out, the judgment of the circuit court is reversed, and a new trial granted.

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


author: Ostrander, C. J.

text:
    HANEY v. AUDITOR GENERAL.
    1. Res Judicata — Decree in Equity — Taxation — Questions Necessarily Determined by Judgment.
    Relator in mandamus to compel the auditor general to issue- a certificate of error canceling a tax sale, is concluded from setting up the claim that the taxes had been paid, by evidence of a prior decree in a cause in-chancery dismissing relator’s bill of complaint, in which he averred that he had tendered to defendant the amount of such tax that he treated as valid, and was therefore entitled to redeem and that defendant’s purchase of a previous bid was void.
    2. Taxation — Redemption.
    After redemption from a purchaser of lands for unpaid taxes returned by and bid in by the State, which subsequently sold the property as State tax lands, the owner may not secure from the State the repayment of taxes claimed by him to have been invalid which the purchaser paid at the time of his purchase.
    Mandamus by Elijah Haney against Oramel B. Fuller, auditor general of the State of Michigan, to compel the issuance of a certificate of error canceling certain tax sales. On motion to settle issues:
    Submitted March 13, 1911.
    (Calendar No. 23,973.)
    Petition dismissed May 8, 1911.

      Eugene Carpenter, for relator.

      Franz C. Kuhn, Attorney General (Charles W. McGill and George L. Hauser, of counsel), for respondent.
   Ostrander, C. J.

After the. decision in Haney v. Miller, 154 Mich. 337 (117 N. W. 71, 745), was handed down, the complainant, who is the relator here, applied to the auditor general for a certificate of error, canceling the sale and bid to the State of the west half of the northeast quarter of section 26, town 1 north, range 11 west, forcertain drain taxes claimed to have been reassessed thereon in the year 1885, and to cancel the sale and the bid to the State of the northeast quarter of the same section for the taxes for the year 1891, and to cancel two tax deeds issued by the auditor general to Archie T. Miller, conveying to him the said lands as State tax lands. The auditor general denied the petition, and thereupon the relator applied to this court for an order to the said auditor general to show cause why mandamus should not issue to compel him to issue the said certificate of error. An order to show cause was granted on the 1st day of April, 1910. Copy of the order and of the petition and affidavits was required to be served upon both the respondent, auditor general, and Archie T. Miller, who was defendant in the cause which has been referred to.

The auditor general answered the petition, and in the answer asserted that relator is entitled to no relief, and that all matters now sought to be inquired into and adjudicated were involved in and were adjudicated and determined by this court in the said cause of Haney v. Miller. The answer of the auditor general was filed in May, 1910, and the matter appears to have stood upon petition and answer until some time in October, 1910, when relator moved for an order striking respondent’s answer from the files and also to have an issue framed for trial. This motion was noticed for hearing on October 25, 1910. December 3,1910, an order was made, denying the motion to strike respondent’s answer from the files, but permitting relator to file a replication, if he desired to do so, and to propose issues to be framed for settlement. Under date March 23, 1911, relator proposed questions of law and fact, with notice to the auditor general and an invitation to propose amendments. Objections were filed by the auditor general, who again insisted that the situation is the same as that considered by this court in deciding Haney v. Miller, and that this is an attempt to reverse the decision of this court in that case.

It appears from the record in the case of Haney v. Miller, and from the opinions which were filed, that the complainant sought a decree permitting him to redeem the land from the sale thereof, made by the auditor general to the defendant Miller, and quieting his title to the land. The facts were that when the defendant Miller applied to the auditor general to purchase the northeast quarter of section 26, township 4 north, of range 11 west, which was in June, 1904, the west half of the premises had been returned delinquent for taxes assessed thereon for the year 1885, together with certain reassessed drain taxes for the years 1881, 1882, 1883, and 1884; that none of these taxes were paid, and that the land was bid in to the State in 188?; that the entire quarter section was returned delinquent for the taxes assessed thereon in the year 1891, and was bid in tó the State at the annual sale in 1893. The land was held as State tax land until sold to the defendant Miller, whose deed was dated August 16, 1904. Complainant owned the original title and was in possession of the land, and when Miller served upon him notice of his purchase and a statement of the amount required to secure a reconveyance the relator tendered him the tax of 1891, with the interest, costs, and penalties, and demanded a reconveyance, claiming that the prior taxes were void. His tender being refused, he filed his bill, as has been stated. The-bill was dismissed in the court below, and the decree affirmed in this court.

Two propositions are made plain in the opinion agreed to by a majority of the justices, which are, first, that the auditor general had no right to sell the State’s title to the land to any person who should not pay all taxes which had been returned and appeared on his books as outstanding and unpaid, and, reaffirming former decisions of the court, that the State took title to this land in 1893, the complainant was completely divested of title, and when the State parted with its title to the defendant Miller it was upon the condition that complainant might secure a reconveyance when he had repaid to the purchaser the money which had been paid to the auditor general, with the statutory costs and penalties.

It will be noticed that in the minority opinion it is said:

“ Complainant by his bill and proofs made out a case entitling him to equitable relief. The taxes of 1885 were not a valid lien upon this land at the time of defendant Miller’s purchase. The sale for said taxes was a void sale. The entire amount thereof, except $2.83, was absolutely void, and complainant is entitled to have the same so decreed. All the parties in interest are before the court, and such decree can be now made as will dispose of the entire controversy. It will be unnecessary to order this amount of "the 1885 assessment, which is a valid tax, to be returned for reassessment, but the same will be paid by complainant to defendant Miller, with such interest, if any, as may lawfully be added to the same, if returned for reassessment. This amount, together with the amount tendered by complainant to said defendant Miller, will be decreed to be paid him by complainant, and thereupon said Miller to reconvey all his interest in the lands in question to complainant. The auditor general will be decreed to refund to defendant Miller the money paid on his purchase for such portion of the 1885 taxes as are by this opinion declared to be invalid.”

This reference is made to show the scope of the inquiry and the questions which were considered upon that appeal.

But in the majority opinion appears this language:

“Again, the remedy through cancellation may possibly render redress to the repurchasing owner in proper cases, though we do not decide that question” — a remark which it may be assumed invited the complainant, the relator here, to attempt in this proceeding to secure a cancellation of the tax deeds and a return to him from the State of a portion of the money which he had paid to secure a reconveyance of his land. If it can be said that any new matter is set up in the petition for the order to show cause, it is because relator asserts therein that he paid the taxes for the year 1891 to the township treasurer and has a writing which he exhibits, purporting to be made by the township treasurer, to the effect that the taxes on said quarter section for the year 1891 were paid on January 20, 1892. It was expressly found in the chancery proceeding that by virtue of the sale of the land for the taxes of 1891 the State obtained an absolute title to these premises. It was complainant’s theory in >that proceeding that he 'was bound to pay to the purchaser of the State’s title the taxes of the year 1891, with the proper penalties, and that he had tendered the necessary amount to the purchaser. It was not claimed that the taxes for the year 1891 were paid, or that they were not valid. Relator is "therefore concluded by the adjudication then made.

This being so, it is evident that the only question open to relator is the one whether in this proceeding he may procure a cancellation of the deed for the taxes of the previous years, and the cancellation and setting aside of those taxes as invalid. That he may not do this is a conclusion which logically follows the reasoning of the majority of the justices in Haney v. Miller. If the State’s title, acquired in the year 1898, divested the complainant of all interest in the land — was an absolute title — and, in selling that title, the auditor general was lawfully bound to exact from the purchaser payment to the State of the taxes for the previous years which stood upon the books of the State charged to this land, and if the owner to secure a re-conveyance of that absolute title was bound to pay to the purchaser the monéy which the purchaser so paid to the State, with the statutory costs and penalties, this being the limit and extent of the grace extended to him by the State, there is no escape from the conclusion that having secured such reconveyance upon such terms he may not now secure from the State a portion of the sum so paid, upon the theory that it was an unlawful exaction.

The order of this court, permitting the relator to propose issues to be framed, is set aside and revoked, and relator’s petition dismissed.

Bird, Hooker, Moore, McAlvay, Brooke, Blair, and Stone, JJ., concurred.


text:
    MACLAM v. HALLAM.
    1. Landlord and Tenant— Negligence— Nuisance— Highways and Streets — Obstructions.
    No liability of a landlord for injuries to a pedestrian is imposed by the common law for the act of a tenant in piling crates on the sidewalk in front of leased premises, and leaving them for a period of four months and upwards.
    2. Same — Nuisance.
    Such invasions of the public right of travel are not in and of themselves nuisances, although they may become such if the obstruction is not removed within a reasonable time.
    3. Same.
    The owner of premises in front of which such obstructions are placed is not required by law to inspect the property and prevent the creation of the nuisance.
    4. Same — Charter—Ordinances—Municipal Corporations.
    Nor is the duty of the landlord to one so injured increased by provisions in a municipal charter requiring the owner and occupant of any lot to remove or clear away obstructions from the sidewalk, under penalty of a fine; for such enactment creates only a public duty, not a private right of action.
    Error to Marquette; Stone, J.
    Submitted April 13, 1911.
    (Docket No. 144.)
    Decided May 8, 1911.
    Case by' Robert A. Madam against Carrie Hallam, Laura Manthei, and Clara Mack for personal injuries. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      J. L. Heffernan, for appellant.

      A. B. Eldredge and A. E. Miller, for appellees.
   Ostrander, C. J.

Plaintiff walking upon a sidewalk in the city of Marquette, stumbled or fell over a,crate or crates so placed in the street that the' end or ends projected over and upon the sidewalk. Claiming to have been injured, he brought his action for damages against the owners of the property fronting and abutting upon the street at the point where the obstruction was placed. Of the seven joint owners or co-owners of the property, three only were served with process, and only those who were served appeared. The cause coming on for trial, and, a jury having been impaneled, counsel for the plaintiff made an opening statement, in the course of which he was interrupted by counsel for defendants, and was questioned by the court. The result was that, upon the motion of defendants and upon the pleadings and the said statement of counsel for plaintiff, the court directed the jury to return a verdict for defendants. Judgment was entered upon the verdict.

It is urged in behalf of appellant, that, in determining the issue upon the statement of counsel, the court assumed certain material facts to have been conceded by counsel, notably the facts that the owners were not occupiers of the premises; that a person occupying the premises was occupying wholly in his own right and not for the owners; that the person occupying the premises had exclusive control of them; and that this person placed the crates where they were when plaintiff was injured. It is said that the court must consider the opening statement to have been at least as broad as the declaration which alleges that defendants were owners and occupiers of the premises, and that there is nothing in the record to indicate that, if the relation between owners and occupier was that of landlord and tenant, the lease was not given when the nuisance (the pile of crates on the sidewalk) existed.

The declaration contains two counts, in each of which it is alleged that defendants were owners and occupiers of certain described premises and of the building thereon occupied and used as a meat market, and the duty of defendants to keep the sidewalk clear of obstructions and in a reasonably safe condition for travel is alleged. The breach of duty which is assigned is that defendants permitted and allowed a certain number of poultry crates to be placed and to remain in and upon the sidewalk, creating a dangerous obstruction and nuisance at the place where they were so placed. In his opening, counsel said, among other things, that the crates had been on the sidewalk for four months, and after describing what occurred on the night in question, the following colloquies took place:

Mr. Eldredge: May I ask if you claim these defendants actually put these boxes there ?
“Mr. Heffernan: No; I don’t claim that.
“Mr. Eldredge: Will you state the facts with reference to what you do claim in reference to that ?
“Mr. Heffernan: We do not claim these defendants put those crates there; that they permitted them to remain there for four months, in that position.
“ Mr. Eldredge: Who do you claim put them there ?
Mr. Heffernan: Why, I don’t know. I suppose Mr. Manthei. Of course, he is not in the case. They were put there, 'we are informed, by Mr. Manthei.
“Mr. Eldredge: What relation did Mr. Manthei hold to the property ?
' “Mr. Heffernan: I don’t know. Mr. Manthei was an occupant of the building. These crates were of various sizes, 4 feet by 2 feet, 6 feet by 1 foot, and other sizes. They were placed on the walk which runs north and south. They were placed over against this pole. This pole was at the rear of the building known as the Mack and Manthei block, opposite the stairway that runs up there. They extended out towards the curb. They had been piled there. There were several piled to extend over the walk 16 to 18 inches, as we claim — or 15 inches.
The Court: Wherein does the second count differ from the first ?
“Mr. Heffernan: There is not much difference, except a cause of rubbish, and not putting a light. That would really come in under the evidence, I suppose. The people took no measures to protect the public and this plaintiff, by not putting any warning light, or anything of that kind on these crates, and negligently and carelessly suffered them to remain on the walk, or over the walk, a dangerous obstruction, and that this plaintiff was without any fault. * * *
“Mr. Eldredge: Do you claim this liability arises at common law, or under the ordinances of the city of Marquette, or the charter of the city of Marquette, that requires the lot owner to keep the street free from obstruction?
“Mr. Heffernan: I claim it arises at common law, supplemental with this statute and charter of the city.
‘ ‘ Mr. Eldredge: On that statement of facts I move that the court direct a verdict for the defendants. Will your honor hear me on it ?
The Court: * * * You base it on his statement to the jury ?
“Mr. Eldredge: I base it on his statement to the jury as I understand the facts as he states them to be.
“Mr. Heffernan: We claim that that was a public nuisance, that obstruction on the walk.
“Mr. Eldredge: As I understand it, the proposition is this: That Mr. Manthei, being a tenant of this building, occupying it, put these crates so that they projected onto the sidewalk; that they remained there three or four months, and that they were a nuisance, and that under the. ordinances and charter of the city of Marquette it was made the duty of the lot owner to see that that street was kept clear; that they neglected that duty, and that therefore a liability arises, although they had nothing to do with putting the cases where they were, that having been done by their tenant, Mr. Manthei.
‘ ‘ The Court: The question is, Doesn’t the charter itself make both the owner and occupant liable ? They have not sued the occupant.
Mr. Eldredge: The charter does make it the duty of the owner and of the occupant. * * *
“ Mr. Heffernan: Can I supplement that statement a little' further ? These particular defendants live in this city — Mrs. Manthei, Mrs. Hallam and Mrs. Mack — and that they ought to have knowledge of these obstructions ? I understand you admit they had knowledge of the obstructions ?
“Mr. Eldredge: You allege it, for you say they had knowledge of the existence of these crates. It must be admitted on this motion, for the purposes of the motion only.
The Court: What is your distinct proposition ?
“Mr. Eldredge: My distinct proposition is this: That the owner of premises who rents them to a third person, either in good condition at the time, and without a covenant to repair, is not liable to third parties for any act of the tenant or for any lack of repair that may thereafter arise upon these premises, or even though the occupant shall create a nuisance; the owner is not liable unless the very nature of the occupation and purposes for which the party rented it was such as to lead inevitably to the creation of a nuisance.
The Court: Now I agree with you on that proposition, at what we term common law. The only question is, whether this charter does not give them a right of action.
“Mr. Eldredge: Whether under the charter a right of action is given ?
“ The Court: That is right.
“Mr. Eldredge: The law is settled that the duty that is created by this statute is a public duty by its express terms. It creates no liability to any third persons. The only liability created by this statute is such a liability as may arise when the city itself has been damaged. * * *
The Court: Is there any other provision of the charter, Mr. Heffernan, that Mr. Eldredge has not read, that shows that there is a private liability ? Your proposition is, Mr. Eldredge, between the landlord and tenant there could be no liability as against the landlord unless it appears that he was the active instrumentality in placing the obstruction in the street. That the liability, if any, would be that of the tenant; that the charter speaks simply of a public duty, and gives no right of action to an individual as against the owner or occupant.
“ Mr. Eldredge: By virtue of the statute.
The Court: By virtue of the statute, yes.
“Mr. Eldredge: It takes away no common-law right and does not add any common-law right. It does not make that negligence which before was not negligence; or add any duty, so far as a third party is concerned, to any liability which the landlord already had. * * *
Mr. Heffernan: There are a great many things we could admit in those decisions, but when we get down to the main point in this case, which I think is the main law point, that this thing was a public nuisance which had been permitted to exist for a long time, four or five months, and it should have been abated, and the statute made it their duty to go on and abate it, the question of landlord and tenant would not arise. They had a duty to abate the nuisance, and, moreover, there is no penalty whatever imposed under that provision on the owner to keep the premises clear. It is only on the occupant.
The Court: What penalty do you refer to — the ordinance of August 7th ?
Mr. Heffernan: There is no penalty for not doing this work, as we can find, on the part of the owner. He is relieved; but when you take up Cooley on Torts you see where this question comes up fully. * * *
• “ The Court: I had supposed when we started in to try the case, until I commenced to write the title, that Mr. Manthei was a party here. That you had joined the occupant of the property. I thought ypu had probably joined all. If you could not maintain an action against all, you would discontinue as to some and proceed against the others. It seems you left out the very party you .should have sued. You claim it is the duty of the landlord, if a nuisance is erected by the tenant, so there could be a liability against the landlord by a private party.
. “Mr. Heffernan: It makes no distinction. I think that is the object of this statute. It was going to make some one liable who could respond -in damages. The city is not liable. It is manifestly intended for the protection of the individual. It states specifically what he should do and what would be expected of him. There is nothing to prevent his doing these things because he is required to doit. He could go on the premises and abate the nuisance. We claim it was a nuisance. For a day or two it might not be. * * *
The Court: There is nothing in your statement to the jury that the owner had control. You must have in mind we are trying this upon your statement to the jury.
Mr. Heffernan: Under the law we claim that is so.
“The Court: That this nuisance' was created by the occupant, Mr. Manthei.
Mr. Heffernan: We do not claim that he had control because the law makes it his duty to go and abate a nuisance.
The Court: You have got your remedy against the person who actually did the wrong. The question is whether the statute intended to furnish you a remedy against any one else. I think it is a serious question whether you can maintain this action under this statute. I' confess it is not absolutely clear to me, but these decisions seem to show that such provisions as these are intended for the public. * * * There is nothing in the statement before the court that would give the owner the right of occupation.
Mr. Heffernan: Except under the law and charter. I am speaking of the common-law doctrine. He had the duty imposed upon him under the common law and under this statute. He had no other control that I know of.
The Court: I think it comes right down to this, and I reiterate it. In all cases it shall be the duty of the owner and occupant to do so and so. Does that give you a private remedy ?
Mr. Heffernan: That is what we claim, your honor. That is why I would like to read the Cooley provisions.
The Court: I have read them, but you can read them again if you want to.
“Mr. Heffernan: I am keeping clear of the repairing cases all the time, and confine myself to the question of nuisance. * * *
The Court: You do not claim there was a nuisance when the occupant took possession ?
“Mr. Heffernan: Oh, no. It occurred there since, and they did not abate it. * * *
The Court: There is nothing here showing the right of the landlord to go on and abate the nuisance by any statement of facts.
“Mr. Heffernan: No; we' rely on the law, of course.
The Court: You rely on the landlord’s right to go into possession?
“Mr. Heffernan: Under the duty to perform this for the benefit of individuals; one of his common-law duties * * * We claim this was a nuisance. I would like to confine myself to that point. I insist this was a public nuisance.
The Court: I understand your position about that.
“Mr. Heffernan: And nothing else.
“The Court: I answer you by saying, so far as the case appears here, if it was a public nuisance, it was the duty of the occupant and not the owner.
“Mr. Heffernan: That is what I claim; it was the duty of the owner.
The Court: I do not think so.
“Mr. Heffernan: He is given full permission and right to do it because required to do it.”

We have set out such portions of the record as convince us that the court was fully informed concerning the position of plaintiff, of the facts proposed to be relied upon, and of the questions of law which were involved. We think the statement of counsel negatives the fact that the owners were also occupiers of the premises, and admits the fact that they did not occupy and that it was sought to charge them with responsibility for acts of a tenant in incumbering the highway and creating a nuisance therein upon the ground that they owed a duty to plaintiff to abate such condition and nuisance. The ruling was that if the law, statute or other, imposed upon defendants a duty to remove the obstruction, it was not a duty to plaintiff, and a breach of the duty would not afford him a right of action against defendants for damages for his private injury. It is the contention of plaintiff (appellant) that, conceding that the premises were occupied by a tenant who was alone responsible for the obstruction, or nuisance, there is a common-law liability of the owners of the premises having knowledge of the existence of the obstruction to respond in damages tú a pedestrian injured on account of the obstruction; that, if not, such liability grows out of a provision of the charter of the city of Marquette which imposes upon the owner and occupant of every lot the duty to keep the sidewalks and streets adjoining such lot in good repair and to “remove and clear away all snow and ice and other obstructions from such sidewalk and keep the same in reasonably safe condition for travel.”

We do not understand that the appellant questions the rule that, in the absence of a contract duty on the part of the owner or landlord, the tenant, as between himself and the landlord, is bound to keep the leased premises in repair, or the one that the owner is not liable for damages to third persons for injuries arising from the neglect of the tenant to repair. These rules have been applied where the injury arose from a defect in a sidewalk. Fisher v. Thirkell, 21 Mich. 1 (4 Am. Rep. 422); Lynch v. Hubbard, 101 Mich. 43 (59 N. W. 443). But it appears to be contended that because the obstruction complained about here had existed for so long a time as to become a public nuisance, and was in the street, in which the owners of the property, with the public generally, had the right to be, one at least of the reasons for the rule, namely, that the tenant had the exclusive right of possession and control, does not exist. I am not able to distinguish this case and Fisher v. Thirkell, supra. In that case the covering to an opening in the sidewalk adjoining leased premises, the covering being in fact a part of the sidewalk, became during the tenancy a public nuisance. It would turn under the weight of one who stepped upon it. It was originally created in a use of the street not unlawful in itself, namely, in constructing under the sidewalk a vault or passageway to the adjoining building. When constructed, and when the term of the tenant began, it was safe. It became broken and unsafe. In the case at bar the obstruction complained about was not a permanent and total obstruction of the highway, but was of the nature of such temporary and incidental uses thereof as proprietors of adjoining premises make of streets and which are permitted as of course if they do not continue for too long a time. Such invasions of the public right of travel are not in and of themselves nuisances, although they may become such if the obstructions are not removed within a reasonable time. There is no reason for requiring the owner of the premises at his peril to inspect the premises and prevent the creation of such a nuisance which will not also require him to discover and remedy such defects in the covering to an opening in the sidewalk as were considered in Fisher v. Thirkell.

It is said, however, that the duty imposed*upon the owner by the charter of the city of Marquette is a duty to the private citizen, and for a breach of it he may have his action if injured. This contention has also been decided by this court adversely to the appellant in Taylor v. Railroad Co., 45 Mich. 74 (7 N. W. 728, 40 Am. Rep. 457), in which it was held that the obligation imposed was a duty to the public and not to each individual using the walk. The charter of Marquette does not give a right of action for damages sustained by an individual for injuries growing out of an obstruction to the sidewalk.

We conclude that the court below committed no error; and the judgment is therefore affirmed.

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


author: Blair, J. Blair, J.

text:
    VINCENT v. EVANS.
    1. Taxation — Tax Deeds — Burden of Proof.
    The burden of proof to show the validity of proceedings on which tax deeds are based rests upon a complainant who relies on a title obtained from a purchaser of the tax interest.
    2. Same — Evidence.
    And the burden is not met by introducing in evidence the files in the county clerk’s office without the original tax record on file with the treasurer or a deed from the State to the original purchaser from whom complainant claims title.
    3. Same — Defense—Objections.
    Nor is a specific objection in defendants’ answer, that complainant had no sufficient title, necessary in order to permit them to defend on that ground. Wagar v. Bowley, 104 Mich. 38 (62 N. W. 293), distinguished.
    4. Same — Prima Facie Evidence — Notice to Redeem.
    Act No. 142, Pub. Acts 1905, providing that the notice to redeem with due proof of service by the sheriff, recorded in the county where the land is situated, shall be jprima facie evidence of the purchaser’s title, if the land shall not be redeemed in six months, does not apply to a case where the claimant in possession of the premises redeems from the tax cale.

      5. Executors and Administrators — Conveyance oe Real Property — Authority—Wills.
    Executors, having no power under the will to convey real property, can convey no title by deed to a purchaser of a tax interest in the real estate of deceased.
    6. Estoppel — Deeds—Witnesses—Real Property.
    A witness to an invalid deed by executors purporting to convey real property in which the witness has an interest is not estopped to assert her title.
    7. Taxation — Deeds prom State — Validity.
    Tax deeds executed by the State before expiration of the period for redemption are void. Monaghan v. Auditor General, 136 Mich. 247 (98 N. W. 1021); Fitschen v. Olson, 155 Mich. 320 (119 N. W. 3).
    8. Quieting Title — Parties—Heirs and Devisees.
    Devisees of a sixth interest in real property belonging to a testator are necessary parties to a suit to quiet title in a tax purchaser of the devised property.
    9. Taxation — Title—Ejectment.
    Such tax purchaser, having failed to perfect his title as purchaser and assignee of other purchasers, remains entitled to enforce his rights by the necessary statutory steps, and the same will not be terminated by a judgment in an action of ejectment brought by the owners to dispossess him of the premises.
    ON REHEARING.
    1. Same — Taking Bill as Confessed — Joint Defendants.
    As to three defendants against whom a decree pro eonfesso was entered below, the order dismissing complainant’s bill is modified on rehearing and the cause remanded to the circuit court for the entry of a decree in accordance with their interests.
    2. Same — Payment.
    Taxes paid by a tax purchaser whose title was invalid were voluntary payments, not recoverable in equity.
    Appeal from Mackinac; Shepherd, J.
    Submitted June 29, 1910.
    (Docket No. 44.)
    Decided September 28, 1910.
    Rehearing granted December 30, 1910.
    Former opinion modified July 5, 1911.
    Bill by William Vincent against George W. Evans and others to enjoin an action of ejectment, and to quiet title to certain land. From a decree for complainant, defendants appeal.
    Reversed, and bill dismissed.

      Frank L. Fowler, for complainant.

      D. W. Closser, for defendants.
   Blair, J.

The complainant in this case purchased in 1903 certain stump lands in the county of Mackinac, in this State, of the executors of the will and estate of Edward Evans, a resident at the time of his death of North Tonawanda, in the State of New York, receiving from such executors deeds purporting to convey the entire interest of the estate in such lands, for which he paid to such executors the sum of $120. The acting executors under the will, and who executed the deeds, were Paschal S. Humphrey, husband of defendant Mary C. Humphrey, a daughter, defendant Nancy C. Evans, the widow, and defendant Henry H. Evans, a son of deceased. The lands had been sold for taxes for many years, and, to protect his title, acquired as aforesaid, complainant purchased certain tax titles and paid a considerable amount of back taxes. In March, 1907, George W. Evans, one of the heirs at law of testator and a residuary legatee, commenced an action of ejectment for the possession of an undivided one-sixth interest in the lands in question. In September, 1907, complainant filed this bill of complaint to stay proceedings at law and to quiet his title and praying for relief as follows:

“By temporary injunction restraining the prosecution of the suit in ejectment, until the further order of said court., and praying that upon the hearing the said temporary injunction be made permanent. That the sale and conveyance of .the said lands made by the executors of the estate of Edward Evans, deceased, be ratified and confirmed, and the complainant decreed to be the lawful own^r of the same. That if there should appear to be any irregularities in the conveyances as executed by the executors of the estate of Edward Evans, deceased, that the defendants might he decreed to be forever estopped by their conduct from making or asserting any claim of right or title to the premises. That the said William Vincent be subrogated to the rights of one Vincent W. Bay-less and Frank Blake, tax title owners, from- whom said Vincent had redeemed tax titles. And that the said William Vincent, as owner of the said tax titles, of which legal notice had been served, and on which the period of redemption had expired, be decreed to be the owner of the said lands free from all liens and incumbrances and all clouds caused by the claims made by the said defendants.”

After hearing the proofs, the circuit judge filed an opinion as a basis for a decree, holding:

‘' That the will did not confer upon the executors power to convey land, and that the deeds therefore 'conveyed no title to the complainant.’ That none of the defendants were estopped from asserting any claim they might have under the will of said Edward Evans, deceased. That complainant had acted in good faith, without gross laches, and was entitled to be subrogated to all the rights of the tax title holders from whom he bought or redeemed tax titles, except as to the northeast quarter (i) of the southwest quarter (i) of section eighteen (18), township forty-four (44) north, range nine (9) west, to which the court held he had legal title through a tax title purchase from one Blake which was foreclosed by notice under the 1897 statute. And that complainant was also entitled to recover back a pro rata share of the amount he had paid on the lands, title to which had failed.”

A decree having been entered in accordance with this opinion, the defendants have appealed to this court.

Counsel for defendants contend that the burden of proof rested upon complainant to show the validity of the proceedings upon which his tax deeds rested and that he utterly failed to make such proof. As to the burden of proof, the decisions of this court sustain defendants’ contention. Taylor v. Deveaux, 100 Mich. 581 (59 N. W. 250); McKinnon v. Meston, 104 Mich. 642 (62 N. W. 1014); Dawson v. Peter, 119 Mich. 274 (77 N. W. 997); Morse v. Auditor General, 143 Mich. 610 (107 N. W. 317). Complainant contented himself with putting in the files in the county clerk’s office, but did not introduce in evidence the original tax record on file in the county treasurer’s office; nor did he introduce any deed from the State to Blake to support the conveyance from Blake to him, and there was therefore no competent, evidence of the validity of his tax deeds. It is said, however, that under the authority of Wagar v. Bowley, 104 Mich. 38 (62 N. W. 293), defendants could not impeach complainant’s tax titles, since they did not specifically state their objections thereto in their answer. The sales under consideration in that case were made under a statute making the tax deeds prima facie evidence of title and the burden of proof was on the party denying their validity, and not, as in this case, upon the party asserting their validity, and defendants argue that this distinction renders the case inapplicable. We are of the opinion that the distinction is well taken. It was said in Wagar v. Bowley that “ the title set out in complainant’s bill was prima facie valid,” etc. The Mississippi cases cited rest upon a similar ground and a similar statute. Since the repeal of the provision making the deeds prima facie evidence “the rule of the common law must be applied and the burden east upon the plaintiff to show a valid decree,” etc. Dawson v. Peter, supra. It is further argued by complainant in support of the decree that—

“It also appears in the record that proper statutory notice to redeem on this particular description was given by Mr. Blake to Mr. Vincent and the year’s taxes given in the notice correspond with those shown in the tax history to have been purchased by Frank Blake. What, then, is the situation on the record ? The notice appears to be in proper form, and the original thereof was produced and offered in evidence from the files in the clerk’s office. The statute provides (Act No. 142, Pub. Acts 1905) that such record ‘ shall b oprima facie evidence in all courts and tribunals that said purchaser is the owner of said land under such purchase.’ In other words, under this statute, the notice, having attached thereto the certificate of the sheriff showing proper service, is prima facie evidence that the purchaser named therein is the owner of the said land.”

The notice was dated May 20, 1903. The certificate of the sheriff showed service on complainant May 27, 1903. Complainant paid the amount required by the notice and received a deed dated July 6, 1903. The provisions of section 142a, Act No. 142, Pub. Acts 1905, only apply where the lands are not redeemed, and therefore the certificate lends no support to the title of Blake, and the proofs did not warrant the finding of the court that complainant acquired the entire title to the 40 acres. We are also of the opinion that the trial judge correctly held upon the record before us that the deeds of the executors conveyed no interest in the lands in question and created no estoppel against Mrs. Humphrey, who witnessed the same. The complainant therefore in a court of equity is not entitled to rely upon these void deeds as furnishing any authority to him to redeem the-lands.

Complainant also offered in evidence several tax deeds, most of which were void upon their faces, as having been executed before the period for redemption had expired. Monaghan v. Auditor General, 136 Mich. 247 (98 N. W. 1021); Fitschen v. Olson, 155 Mich. 320 (119 N. W. 3).

After making certain pecuniary bequests, the will of Edward Evans ( made a part of the bill of complaint) disposed of the residue of his estate, as follows:

“2ndly. All the residue of my property, whether real or personal, I give and bequeath to my beloved children and grandchildren as follows: To Mary C. Humphrey, James E. Evans, George W. Evans, Harrietta J. Grenier, Edward R. Evans, each one-sixth (1-6) of my entire property remaining as aforesaid and the remaining one-sixth (1-6)1 give and bequeath to the living children ( my grandchildren) of my oldest son, Henry H. Evans.”

Who these grandchildren, children of Henry H. Evans, were who were entitled to one-sixth of the lands in question or whether minors or of full age does not appear. They. were not made parties to the suit and were not represented. It further appears from the opinion of the circuit judge “that defendant Edward Evans died before the commencement of this suit, leaving minor heirs. These heirs are, of course, not bound by this proceeding.” All of these grandchildren were necessary parties to the suit and the bill of complaint should have been dismissed unless they were properly made parties and properly represented. Watson v. Brewing Co., 61 Mich. 595 (28 N. W. 726). So far as this record discloses, the complainant has not acquired a title to any of the lands in question, but has acquired certain rights as a tax purchaser, and as assignee of others which he is entitled to enforce by taking the proper statutory steps and which rights will not be cut off by a judgment in the ejectment suit, if, indeed, the plaintiff in such suit can show himself to be entitled to a judgment.

The decree is reversed and the bill dismissed without prejudice.

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

ON REHEARING.

Blair, J.

An opinion was filed in the above-entitled cause, and reported ante, 695 (127 N. W. 760). Later an application for rehearing was filed, based, among others, upon the following grounds:

“ It is evident from the opinion filed herein that the fact that the complainant had voluntarily paid a large amount of taxes, in good faith, believing that he was the owner of the lands in question, was inadvertently overlooked by the court, as the complainant certainly could not recover for taxes paid, except in a court of equity, and a decree based upon the opinion filed herein would forever deny to him any recover whatever for the amounts so paid. * * * The bill of complaint was taken as confessed by three of the defendants, Henry H. Evans, Edward R. Evans, and Harrietta J. Grenier, and yet by the opinion of this court it must be dismissed, presumably as to all defendants.”

A rehearing having been granted, we have reconsidered the case. In disposing of the case, the court failed to give effect to the decree pro ponfesso against the three defendants, Henry H. Evans, Edward R. Evans, and Harrietta J. Grenier. The decree recites the taking of the bill of complaint as confessed by the three defendants named. The opinion, however, shows “ that defendant Edward R. Evans died before the commencement of this suit,” and that Henry H. Evans claimed no interest in the lands, and the will of his father gives him no interest therein. Mrs. Grenier appears to have a one-sixth interest in the lands under her father’s will. It was the intention of the court, in dismissing the bill without prejudice, to preserve to complainant as a tax-title purchaser all the rights conferred upon him by the laws of the State, and we do not regard the objection as valid that “this will result in the defendants redeeming the more valuable pieces and leaving the others, some of which are practically worthless, to the complainant.” So far as concerns complainant’s payments of taxes on titles not shown to be valid, they must be deemed to be voluntary, and not a basis for relief in this suit. Morrison v. Semer, 164 Mich. 208 (129 N. W. 1). The court erroneously stated in the original opinion that the ejectment suit covered all of the lands in question. It should have stated that such suit related to a one-sixth interest in one forty only. Except as above indicated, we adhere to the former opinion.

The decree will be reversed without prejudice, except as to the three defendants above referred to, as to whom the record will be remanded to the circuit court for further decree in accordance with their interests in the subject-matter of the suit.

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


author: Moore, J.

text:
    PEOPLE v. KLISE.
    1. Criminal Law — Assault and Battery — Intent.
    Respondent, oharged with assault with intent to kill and murder and convicted of assault and battery, was not prejudiced by the admission in evidence of his statements as to what he would have done if he could, or would thereafter do, to the complaining witness; such testimony bearing on the question of intent, which was determined by the jury in respondent’s favor.
    3. Same.
    Testimony relating to a conversation between complaining witness and his employés, not brought to the knowledge of respondent, was properly excluded.
    8. Same — Assault With Intent to Murder.
    The court did not err in charging the jury that, if respondent did intend to kill the person assaulted, and that it was necessary for him to do so to protect himself, or that the circumstances appeared to him at the time of the assault to be such as to lead a reasonable man to so believe, and he did reasonably believe that it was necessary to kill or disable him in order to protect himself from death or great bodily harm, the verdict should be not guilty.
    Exceptions before sentence from Emmet; Shepherd, J.
    Submitted April 20, 1911.
    (Docket No. 122.)
    Decided May 8, 1911.
    Elmer Klise was convicted of assault and battery.
    Affirmed.

      Wade B. Smith, Proseeuting Attorney, for the people.

      Gaffney & Miltner, for respondent.
   Moore, J.

The respondent was charged with making an assault with intent to kill and murder. This case was tried before a jury, and resulted in a conviction of an assault with intent to do great bodily harm, less than the crime of murder, and, upon an appeal to the Supreme Court, was reversed and sent back for a new trial. The second trial resulted in a verdict of guilty of assault and battery, and is now before this court upon exceptions before sentence. The case is reported in 156 Mich. 373 (120 N. W. 989).

The exceptions relied upon by appellant may be grouped as follows:

(1) The admission of testimony of what was said by the respondent at the boarding house, about an hour after the assault, as to what he would have done at the time of the assault if he had thought of it or could have done it, and what he would do to the complaining witness if he ever came upon the company’s premises again.
(2) The refusal to receive direct evidence of a conversation between the complaining witness and two of his own employes, some time before there had been this encounter between Klise and Keiser.
(3) Permitting the defendant to be cross-examined as to previous occasions upon which he had, under a claim of self-defense, drawn and threatened to use weapons.
(4) Objections to the charge of the court.

This testimony was admitted as bearing upon the intent of respondent in doing what he did. We need not decide whether the testimony was competent, for the reason that, as the jury convicted respondent only of the offense of assault and battery, it is clear its admission did no harm.

This testimony related wholly to a conversation had some time before the occurrence which is now the subject of inquiry. It was between the complaining witness and his employés. The respondent was not present. The offer of this testimony was not accompanied by any offer to show that it was brought to the knowledge of the respondent, nor is it claimed it was brought to his attention. Its exclusion was not error.

The record does not show that any objection was made to the reception of this testimony, or that any exception was taken thereto.

We quote from the brief of counsel:

“We submit that the court should have instructed the jury as follows:
“ ‘ The question is not to be determined by what you believe the actual facts to have been, but what you believe from the evidence appeared to respondent at the time.’ ”

Again:

“Therefore the learned circuit judge erred when he said:
‘“If you find that the defendant did intend to kill or disable the complaining witness, and you further find that it was necessary for him to do so in order to protect himself from losing his own life or from great bodily injury, or that the circumstances appeared to the defendant at the time of the assault to be such as would lead a reasonable man to believe, and did lead the defendant to believe reasonably, that it was necessary to kill or disable the complaining witness in order to protect himself from losing his life or from great bodily injury, then your verdict should be not guilty.’”

If what counsel has quoted from the charge is read in the connection in which it was given, it will be very clear that respondent has no occasion to complain of the charge as given.

The conviction is affirmed, and the judge is directed to proceed to sentence.

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

       Continued from Yol. 165.