author: Fellows, J. Steere, J.

text:
    PEOPLE v. MARXHAUSEN.
    1. Searches and Seizures — Illegal—Without Search Warrant —Intoxicating Liquors — Constitutional Law.
    The entering of defendant’s home, during his absenee, without any search warrant, and by command of no court, and the search of his premises and the seizure of a quantity of liquor found thereon, was an unauthorized trespass and an invasion of his constitutional rights under section 10, art. 2, of the Constitution of Michigan.
    2. Same — Criminal Law — Evidence—Collateral Attack.
    It is the general rule that when defendant in a criminal case for the first time upon the trial objects to the admission in evidence of articles taken by unlawful search and seizure, and they are admissible under general rules governing the admissibility of proof, the court will not pause in the trial to determine the collateral question whether the prosecution became lawfully possessed of such articles; but where it is made to appear before the trial that articles have been taken from the possession of the defendant in violation of his constitutional rights and by unlawful search and seizure and without any search warrant at all, it becomes the duty of the trial court to order the return of the articles thus unlawfully taken.
    3. Same — Intoxicating Liquors — Criminal Law.
    Upon motion to quash the information in a criminal prosecution under the “Damon Act” (Act No. 161, Pub. Acts 1917), charging defendant with illegal possession of intoxicating liquors, where the evidence taken before the examining magistrate and returned to the circuit court conclusively established the invalidity of the search and seizure, the trial court was not in error in directing the return of the liquor seized'.
    4. Statutes — Construction—Intoxicating Liquors.
    The contention that the “Wiley Act” (Act No. 338, Pub. Acts 1917), prohibiting the manufacture, sale, keeping for sale or giving away of intoxicating liquors, except for certain purposes, was passed by the legislature to prohibit the dealing in intoxicating liquors, the business, while the “Damon Act,” passed previously at the same session of the legislature, was to prohibit its private use, held, negatived by the use of the words “clerk, agent, or employee,” in section 4 of the latter act.

      See notes in 59 L. R. A. 465; 8 L. R. A. (N. S.) 762; 34 L. R. A. (N. S.) 58; L. R. A. 1915B, 834.

      5. Same — Construction—Repeal by Implication.
    While repeals by implication are not favored in the law, where the later act covers the whole subject, contains new provisions evidencing an intent that it shall supersede the former law or is repugnant to the earlier act, it operates as a repeal.
    6. Same.
    The “Wiley Act,” covering the field with minuteness of detail, expressly repealing all former acts inconsistent therewith, passed to put into effect the mandate of the people declared in the constitutional amendment, and dealing with the same subject-matter as the “Damon Act,” i. e., that of intoxicating liquor, held, to repeal the latter act.
    7. Criminal Law — Quashing Information — Intoxicating Liquors.
    The motion to quash an information charging "an offense under the “Damon Act,” was properly granted, it having been repealed and superseded by the “Wiley Act.”
    8. Same — Commerce—Interstate Commerce — Appeal and Error.
    In reviewing the judgment of the court below quashing the information charging defendant with illegal possession of intoxicating liquors, upon writ of error under Act No. 159, Pub. Acts 1917, where the undisputed testimony shows that defendant purchased the liquor within this State when and where its sale and possession were lawful, this court will not consider the effect of Federal legislation upon the subject of interstate shipments of liquor (39 U. S. Stat. at Large, p. 1069)..
    Error to Wayne; Dingeman, J.
    Submitted January 17, 1919.
    (Docket No. 128.)
    Decided February 18, 1919.
    August Marxhausen was bound over to the circuit court for an alleged violation of the liquor law. The information was quashed in the circuit court and the liquor seized ordered returned. To review this judgment, under Act No. 159, Pub. Acts 1917, the people bring error.
    Affirmed.

      Alex. J. Groesbeck, Attorney General, Charles H. Jasnowski, Prosecuting Attorney, and Edwin S. Bartlett, Assistant Prosecuting Attorney, for the people.

      James McNamara and George A. Kelly, for appellee.

      Henry E. Chase, amicus curise.

   Fellows, J.

Defendant is the owner of Calf Island, consisting of about 10 acres. It is located in the Detroit river within the confines of Wayne county. It is defendant’s home. On August 1, 1918, while defendant was in the State of South Carolina, and was known by the officers to be absent, five inspectors of the food and drug department, the marshal of the village of Trenton, a deputy sheriff of the county, and the justice of the peace, who afterwards conducted the examination of defendant, went to the island. Some of the party effected an entrance to the dwelling house without breaking locks or doors, searched the house, found some liquor there, and also found some liquor in an improvised cellar and at other points on the premises. All the liquor was seized, conveyed to the mainland and from there to the county building in Detroit where it was stored. All this was done without a search warrant and without consent of defendant. Two days later a complaint was filed charging defendant with the violation of Act No. 161, Pub. Acts 1917. Upon his return he was arrested, and after a preliminary examination before the justice of the peace who was one of the party on August 1st, was bound over for trial. In the circuit court, the information was quashed and the liquor ordered returned to him. To review this judgment the prose-cuting attorney sues out this writ of error under the provisions of Act No. 159, Pub. Acts 1917. The following are the errors assigned:

“1. The court erred in deciding that Act No. 161 of the Public Acts of the State of Michigan for the year 1917 was superseded and repealed by Act No. 338 of the Public Acts of the State of Michigan for year 1917.
“2. The court erred in entering an order quashing the information.
“3. The court erred in directing the liquor seized to be restored to the defendant.”

We shall consider these assignments of error in their inverse order.

1. Section 10, art. 2, of the Constitution of the State provides:

“The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation.”

This provision is the same as found in the Constitution of 1850 (art. 6, § 26), and with the exception of the use of the word “person” in place of the word “individual” the same as found in the Constitution of 1835. It is in effect the same provision found in the Fourth Amendment to the Federal Constitution.

Section 16, art. 2, of the State Constitution provides :

“No person shall be compelled, in any criminal case to be_ a witness against himself, nor be deprived of life, liberty or property, without due process of law.”

Like provisions are found in the Fifth Amendment to the Federal Constitution. Similar provisions are found in the constitutions of the various States of the Union. By these provisions the rights of the individual are secured; the provisions of the Federal Constitution securing the citizen from arbitrary, unlawful conduct on the part of the Federal government and its officers, and the provisions of the State constitutions securing the citizen from arbitrary, unlawful conduct on the part of the State and its officers. These provisions not only secure the individual in his person, his home, and his property from invasion through unbridled legislation, but they also secure the individual in his person, his home, and his property from invasion through unbridled and unrestrained executive or administrative will. It ought not to be necessary to recall the fact that it is of the essence of a free government that the individual shall be secure in his person, his home and his property from unlawful invasion, from unlawful search, from unlawful seizure. The writing of these provisions into the Federal Constitution, into every constitution of every State in the Union was not an idle ceremony. With a clearness of vision our forefathers provided for a lawful search and seizure, one supported by oath or affirmation, describing the place to be searched and the person or things to be seized; and in the same section safeguarded the rights of the individual by inhibiting unreasonable and unlawful search. They provided an orderly manner for search and seizure and prohibited all others.

The substance of the provision found in the Fourth Amendment to the Federal Constitution was proposed by Mr. Madison in the seventh subdivision of his first amendment. Others proposed a similar provision, and the final result was the language found in this amendment. That we may better understand this provision it is well we consider some of the events leading up to its adoption. Obviously we cannot within the compass of this opinion detail at length all that preceded and finally culminated in far reaching decisions by the courts of England. Attention is directed to a foot-note which will be found in Cooley’s Constitutional Limitations (7th Ed.), beginning at page 426. It will suffice to say that a practice had grown up .in England of issuing so-called writs of assistance, originally by the Star Chamber and later by the secretary of state, under color of which messengers of the king entered any and all places agreeable to themselves, searched and seized such papers and evidences as their will dictated. These writs were general in their character, described no premises and named no persons to be searched. Their justification at that time was the publication of seditious libels and the end sought the suppression of these seditious utterances. The practice of issuing and serving these writs was of long standing; and the right to issue them was unassailed for many years; indeed, this was one of the reasons assigned to sustain their validity in the case to which we shall presently refer. But Lord Camden disposed of this claim in the following language:

“But still it is insisted, that there has been a general submission, and no action brought to try the right.
“I answer, there has been a submission of guilt and poverty to power and the terror of punishment. But it would be strange doctrine to assert that all the people of this land are bound to acknowledge that to be universal law which a few criminal booksellers have been afraid to dispute.”

The infraction of individual rights tolerated then as now under the claim of necessity in order to enforce the law finally came before the courts for decision. In the case of Entick v. Carrington, 19 Howell’s State Trials, 1029, Lord Camden, pronouncing the judgment of the court, laid broad and deep the principles which were afterwards crystallized in the Fourth Amendment. Of Lord Camden’s decision Mr. Justice Bradley, speaking for the court in Boyd v. United States, 116 U. S. 616 (6 Sup. Ct. 524), said:

“The law as expounded by him has been regarded as settled from that time to this, and his great judgment on that occasion is considered as one of the landmarks of English liberty. It was welcomed and applauded by the lovers of liberty in the colonies as well as in the mother country. It is regarded as one of the permanent monuments of the British Constitution, and is quoted as such by the English authorities on that subject down to the present time.”

Substantially contemporaneous with this case is that of Money v. Leach, 3 Bur. 1742. In both cases these general writs were held invalid and in April, 1766, the house of commons passed resolutions condemnatory of these so-called general warrants, whether for the seizure of persons or papers. Chatham thus tersely stated:

“Every man’s house is called his castle. Why? Because it is surrounded by a moat, or defended by a wall? No. It may be a straw-built hut; the wind may whistle around it, the rain may enter it, but the king cannot.”

The events bringing about the disuse of these writs in this country and premising the adoption of the Fourth Amendment are best described by Mr. Watson in his work on the Constitution. We quote (Vol. 2, page 1415):

“While officers of the crown were issuing and serving such warrants in England they were doing the same in the American colonies, — and this contributed much to that public sentiment which eventually demanded the adoption of this amendment. So oppressive had become the practice that here, as in England, it caused great alarm among the people, and here, as there, resistance was made to such writs on the ground of their illegality. These warrants were principally issued and the seizures made in the colony of Massachusetts. The trial which tested their legality occurred in Boston in February, 1761. It proved to be more than a mere trial, as we shall see, for the greatest question which could affect the inteiests of the colonists was involved. James Otis, a native of Massachusetts, was advocate-general of the crown at Boston, a legal position of great responsibility and honor; but he was so wrought up at the outrage which had been committed by the arrests under these warrants that he resigned his office, and, though offered a most remunerative fee if he would take charge of the defense, he said: ‘In such a cause as this I despise a fee.’ He then acted as one of the counsel in resisting the arrests. He spoke for five hours, and it is doubtful if any legal argument ever made on this continent produced a more profound or lasting impression. He set fire to a torch which is still burning, and which will continue to burn, for in that masterful effort he impressed upon the American heart the great lesson of resistance to tyranny and outrage. As the result of the trial the writs were never afterwards served by judicial sanction.”

A portion of Mr. Otis’ speech will be found in Life and Works of John Adams, Vol. 2, page 523. In this speech Mr. Otis pronounced these general writs “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,” since “they placed the liberty of every.man in the hands of every petty officer.” In a letter to William Tudor written March 29, 1817 (Life and Works of John Adams, Vol. 10, page 244), John Adam's most graphically described this trial which he attended. In. the course of his letter he said:

“Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child of Independence was born.”

These events which we have but given in outline occurred within the memory of the men who formulated and adopted the Fourth Amendment. In clear and unmistakable language these men wrote into the fundamental law of the nation to be afterwards incorporated into the fundamental law of the various States of the Union the safeguard against unlawful and unreasonable search and seizure of the person and property of the citizen, irrespective of whether such unlawful and unreasonable search and seizure had the sanction of legislative approval or rested in the arbitrary will of the executive and administrative arm of the State. Does the search of defendant’s premises and the seizure of his property in the instant case offend the rights secured to him by this provision of the fundamental law of the State? These officers had no search warrant issued upon oath or affirmation, no search warrant of any kind. They entered the home of defendant by command of no court, they searched his premises by virtue of no process. They justify, if at all, under administrative will and mandate not recognized by the Constitution, and unauthorized in a government of laws. That “the end justifies the means” is a doctrine which has not found lodgment in the archives of this court. The search and seizure detailed in this record was an unauthorized trespass and an invasion of the constitutional rights of this defendant.

These rights of the individual in his person and property should be held sacred, and any attempt to fritter them away under the guise of enforcing drastice sumptuary legislation (no matter how beneficial to the people it may be claimed to be), must meet with the clear and earnest disapproval of the courts.

Did the trial judge commit error in ordering the return of the liquor thus seized? It must be borne in mind that we are not here dealing with the search by a jailor of one lawfully under arrest upon warrant duly issued before placing him in his cell, and the retention of the proceeds of such search; nor are we considering a case where under a lawful search warrant duly issued a search and seizure has been effected; here we are dealing with the right to retain the liquor taken without any search warrant. An examination of many cases decided by the United States Supreme Court involving both the Fourth and Fifth Amendments satisfies us that the rule announced by that court will be reached by careful consideration of three cases decided by that court, and only three; that by a careful consideration of these three cases we will be able to clearly understand the rule laid down by that, the court of last resort of the nation, and the reason for the rule. These cases are Boyd v. United States, 116 U. S. 616 (6 Sup. Ct. 524); Adams v. New York, 192 U. S. 585 (24 Sup. Ct. 372); and Weeks v. United States, 232 U. S. 383 (L. R. A. 1915B, 834, 34 Sup. Ct. 341). A brief statement with reference to each of these cases will aid in understanding the discussion which follows: In the Boyd Case an information was filed to forfeit 35 cases of polished plate glass. It was charged that the plate glass was imported by the owners in fraud of the customs laws. By the terms of the act under consideration such owners were liable to heavy fines and imprisonment. Pursuant to the provisions of the act the district attorney obtained an order of the court requiring the importers to produce their invoices of the shipment. It was held in an able and exhaustive opinion written by Justice Bradley that the proceedings were criminal, and that the act and the proceedings taken thereunder offended both the Fourth and Fifth Amendments. The opinion of Lord Camden in the case of Entick v. Carrington, supra, together with the. circumstance surrounding the adoption of the amendments were fully considered by the court. Considering the compulsory production of papers it was said:

“And any compulsory discovery by extorting the party’s oath, or compelling the production of his private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom.”

The Adams Case brought up for review the decision of the court of appeals of the State of New York (People v. Adams, 176 N. Y. 351 [63 L. R. A. 406, 68 N. E. 636]). The State court had held that upon the trial the manner in which competent evidence offered against the defendant had been obtained could not be inquired into. The State court had said:

“The underlying principle obviously is that the court, when engaged in trying a criminal cause, will not take notice of the manner in which witnesses have possessed themselves of papers or other articles of personal property which are material and properly offered in evidence. In the case before us, if there has been any illegal invasion of the rights of this defendant by reason of alleged unlawful searches and seizures of private papers, his remedy is in an independent proceeding, not necessary to be considered at this time.”

The Supreme Court of the United States adopted this view and affirmed the case, Mr. Justice Day, speaking for the court, saying:

“The question was not made in the attempt to resist an unlawful seizure of the private papers of the plaintiff in error, but arose upon objection to the introduction of testimony clearly competent as tending to establish the guilt of the accused of the offense charged. In such cases the weight of authority as well as reason limits the inquiry to the competency of the proffered testimony, and the courts do not stop to inquire as to the means by which the evidence was obtained.”

In the Weeks Case the defendant had been arrested at his place of employment. Other officers without a search warrant went to his house, and learning from a neighbor where the key was kept, obtained it, entered the house, searched it and took away certain property including letters there found. Before the trial, defendant filed a petition praying the return of such property thus taken. The trial judge ordered the return of such property as was not desired to be used as evidence, but as to this property he denied defendant’s petition. Before any evidence was offered defendant again moved for the return of the property so taken, which motion was also refused and the papers taken were received in evidence over defendant’s objection. The conviction was reversed. Mr. Justice Day, who wrote the Adams Case, also wrote this case. Speaking for the court, he said:

“The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all entrusted under our Federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain convictions by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights. * * *
“The accused, without awaiting his trial, made timely application to the court for an order for the return of these letters, as well as other property. This application was denied, the letters retained and put in evidence, after a further application at the beginning of the trial, both applications asserting the rights of the accused under the Fourth and Fifth Amendments to the Constitution. ’ If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.”

There has been some criticism of the Boyd Case by courts and writers who have regarded it as not in accord with a long line of cases in State courts of which the following will be found to be illustrative, although but a fragmentary list: Gindrat v. People, 138 Ill. 103 (27 N. E. 1085); State v. Flynn, 36 N. H. 64; Commonwealth v. Dana, 2 Metc. (Mass.) 329; State v. Griswold, 67 Conn. 290 (33 L. R. A. 227, 34 Atl. 1046); State v. Burroughs, 72 Me. 479; State v. Miller, 63 Kan. 62 (64 Pac. 1033); Williams v. State, 100 Ga. 511 (39 L. R. A. 269, 28 S. E. 624); Commonwealth v. Tibbetts, 157 Mass. 519 (32 N. E. 910). And after the decision in the Adams Case was handed down it was thought by some that the holding in the Boyd Case was modified thereby, notwithstanding it was expressly stated by Justice Day that:

“The case (Boyd Case) has been frequently cited by this court and we have no wish to detract from its authority.”

We are impressed, however, that a careful consideration of the Boyd Case in connection with the Adams Case and the decisions of the State courts, some of which are cited above, but many of which are not, taken in the light of what was said by the court in the Weeks Case, demonstrates that in the main the United States Supreme Court and the courts of last resort of the various States are in accord, and that the Boyd Case does not conflict, as its critics claim, with the holdings of the many State courts. The Adams Case and many State cases along the line of that case belong to one class of cases, while the Boyd and Weeks Cases belong to another class of cases. In the Adams and similar cases the question of the legality of the search and seizure was sought to be raised collaterally, not by direct proceedings. In these cases the objection was not made until the article or paper unlawfully seized was offered in evidence. It must be patent that upon the trial of a criminal case the court cannot pause in the trial when a bit of evidence, admissible under general rules, is offered, to engage in a collateral inquiry as to how the prosecution became possessed of such evidence. That would be the trial of a collateral matter, and as a general proposition the courts have so held, and where the evidence offered was competent, have not paused in the trial to determine the collateral issue of whether the evidence was legally secured or not. We say as a general proposition, because a few States are not in accord with this view. See State v. Slamon, 73 Vt. 212 (87 Am. St. Rep. 711, 50 Atl. 1097); Wright v. State, 9 Ga. App. 266 (70 S. E. 1126); State v. Height, 117 Iowa, 650 (59 L. R. A. 437, 91 N. W. 935); State v. Sheridan, 121 Iowa, 164 (96 N. W. 730), these cases holding that the question may be determined on the trial.

In the Boyd and Weeks Cases the question was not raised collaterally, but in both cases by a direct proceeding; in the Boyd Case by an affirmative order of the court requiring claimant to produce the invoice, which order was directly assailed in the review of the case in the Supreme Court, and which order was held to invade the claimant’s rights under the Federal Constitution; in the Weeks Case by a negative order refusing the return of the property taken by the unlawful search and seizure, and which order was directly assailed upon review in the Supreme Court, and which order was held by that court to have denied defendant his constitutional rights.

From this consideration of these cases it is obvious that the rule underlying them is that when defendant in a criminal case for the first time upon the trial objects to the admission in evidence of articles taken by unlawful search and seizure, and they are admissible under general rules governing the admissibility of proof, the court will not pause in the trial of the case to determine the collateral question of whether the prosecution became lawfully possessed of such articles; but that where it is made to appear before the trial that articles have been taken from the possession of the defendant in violation of his constitutional rights and by unlawful search and seizure and without any search warrant at all, that it then becomes the duty of the trial court to order the return to the defendant of the articles thus unlawfully taken. The rule is thus stated in 10 R. C. L. p. 933:

“The principle underlying the decisions admitting the evidence is that an objection to an offer of proof made on the trial of a cause raises no other question than that of the competency, relevancy and materiality of the evidence offered, and that consequently the court, on such an objection, cannot enter on the trial of a collateral issue as to the source from which the evidence was obtained. But since there is a right, there must of necessity be a remedy, and the remedy is to be found in the making of a timely application to the court for an order directing the return to the applicant of the papers unlawfully seized. On such an application, the question of the illegality of the seizure may be fully heard, and if the court erroneously refuses to order a return of the papers, and thereafter receives them in evidence against the applicant over his objection, it is an error for which a judgment of conviction must be reversed.”

Turning now to our own cases we find them in strict harmony ydth the rule announced. This court has held that the courts will not pause in the trial of a cause to open up a collateral inquiry of whether a wrong has been committed in obtaining information which a witness possesses. Cluett v. Rosenthal, 100 Mich. 193; People v. Campbell, 160 Mich. 108 (34 L. R. A. [N. S.] 58); People v. Aldorfer, 164 Mich. 676. But this court has also held upon an application made before trial for mandamus to set aside an order of the circuit court, permitting the police department to take possession of property of the citizen, pending investigation for crime and depriving the owner of its possession, that the order should be vacated and set aside, resulting in the return of the property thus unlawfully withheld: Newberry v. Carpenter, 107 Mich. 567 (31 L. R. A. 163).

In the instant case the evidence taken before the magistrate and returned to the circuit court conclusively established the invalidity of the search and seizure and the invasion of defendant’s constitutional rights. The circuit judge did not err in directing the return of the liquor to the defendant.

2. We shall consider the first and second assignments of error together as they involve but one question. The trial judge was of the opinion that the act under which the information was filed was superseded by a later one and for this reason quashed the information. Act No. 161, Pub. Acts 1917, under which this information was filed, was approved May 2, 1917. It will hereafter be called the “Damon Act.” Act No. 338, Pub. Acts 1917, was approved May 10, 1917. It will hereafter be called the “Wiley Act.” Both acts by their terms became effective on and after May 1, 1918.

We shall first consider the argument advanced on behalf of the people that the Wiley Act was passed to prohibit the dealing in intoxicating liquors, the business, except for the permitted purposes, while the Damon Act was passed to prohibit and prevent its private use. This is the foundation of the argument at the bar by the learned counsel for the people. It was forcefully presented and the people’s case largely rests upon its soundness. A reading of section 4, however, convinces us that it cannot be maintained. This section provides:

“Any person who, himself or by his clerk, agent or employee, shall violate any of the provisions of this act,” etc.

Clearly if the legislature by the Damon Act solely designed to prohibit and prevent the personal use of intoxicating liquors there would be no occasion to use the words clerk, agent or employee. The use of these words in the fourth section of the act, the penal section, eliminates the argument that the Damon Act was designed to cover and apply only to a field not contemplated by the Wiley Act.

The Damon Act simply prohibits, with a penalty for its violation, the bringing into, carrying, receiving or possessing of intoxicating liquors except for the permitted purposes, and by reference adopts applicable laws pertaining to search and seizure. It makes no attempt to provide for the lawful sale of liquors for medical, mechanical, chemical, scientific or sacramental purposes recognized in the constitutional amendment (Art. 16, § 11). Its absence of detail and definiteness might well have prompted the thoughtful legislator desiring to carry out the mandate of the constitutional amendment to insist upon a complete, comprehensive act, superseding it, and covering the entire field. While we may not inquire into the intent of the legislator we are bound to ascertain the legislative intent; and this we must determine by what was done by the legislature as an entity. If the subsequent act of the legislature operates to supersede the earlier act the latter act must be accepted as the latest and final declaration of the legislative will.

The Wiley Act is a comprehensive measure of 61 sections completely covering the field and expressly repealing all acts or parts of acts in conflict with its provisions. It shows careful thought in its preparation, a recognition of constitutional rights without detracting from its virility. It provides in detail and definiteness the manner of sale of liquors for medical, mechanical, chemical, scientific and sacramental purposes, both by wholesale and retail, and prohibits all others.

Repeals by implication are not favored in the law. But where the later act covers the whole subject, contains new provisions evidencing an intent that it shall supersede the former law or is repugnant to the earlier act it operates as a repeal. In Shannon v. People, 5 Mich. 85, the rule was quoted with the citation of a large number of authorities in the following language:

“That where a subsequent statute covers the whole ground occupied by an earlier statute, it repeals, by implication, the former statute, though there be no repugnance.”

In Breitung v. Lindauer, 37 Mich. 217, it was said by this court, speaking through Justice Marston:

“The rule is that the latter act operates to the extent of the repugnancy, as a repeal of the first, or, if the two acts are not in express terms repugnant, yet if the latter covers the whole subject of the first, and contains new provisions showing that it was intended as a substitute, it will operate as a repeal.”

In Attorney General v. Commissioner of Railroads, 117 Mich. 477, it was said:

“While repeals by implication are not favored in the law, yet it is a rule of construction followed by this court and other courts that a statute revising the whole subject of a former statute, and intended as a substitute, operates as a repeal of the former law, though it contains no words to that effect.”

Chief Justice Long writing for the court in Porter v. Edwards, 114 Mich. 640, said:

“The rule is well settled that a new statute covering the same ground as the former act supersedes it for all further cases, without the necessity of repealing words.”

In Graham v. Muskegon County Clerk, 116 Mich. 571, it was said by Mr. Justice Montgomery:

“That a later act which covers the whole subject repeals prior acts repugnant thereto is established doctrine.”

See, also, People v. Bussell, 59 Mich. 104; Feige v. Railroad Co., 62 Mich. 1; People v. Furman, 85 Mich. 110; Attorney General v. Parsell, 100 Mich. 170; Board of Sup’rs of Saginaw Co. v. Hubinger, 137 Mich. 72.

In the Wiley Act we have an act, carefully prepared, covering the field with minuteness of detail in many particulars, expressly repealing all former .acts inconsistent with its provisions, passed to put- into effect the mandate of the people declared in the constitutional amendment but recently adopted and fresh in the minds of the members of the legislature, dealing with the same subject-matter as the former act, that of intoxicating liquor, complete in itself, containing the latest expression of legislative will.

We are constrained to hold in view of the former decisions of this court that the learned circuit judge correctly held that it superseded the Damon Act.

3. Upon the argument it was insisted that by the so-called Reed amendment (section 5, Act of March 3, 1917, 39 U. S. Stat. at Large, p. 1069), congress had legislated upon the question of interstate commerce in intoxicating liquor, and that congress having occupied the field committed to it by the commerce clause of the Federal Constitution all legislation by the State upon the subject of interstate shipments of intoxicating liquor must fail. We do not find it necessary to consider this, question. Upon this record it is undisputed that defendant purchased this liquor within this State when and where its. sale and possession were lawful.

It follows that the judgment must be affirmed.

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

Steere, J.

I concur in the conclusion that the “Damon Act” is repealed by the - “Wiley Act,” which is the controlling question involved.

Ostrander, J., did not sit.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    FRENCH v. PERE MARQUETTE RAILWAY CO.
    1. Carriers — Bill of Lading — Delivery Without Surrender of Bill — Liability.
    Where a bill of lading or a shipping receipt contains a elause providing that a third person shall be notified of the arrival of the goods, or where it contains this clause and an additional clause reciting that the goods are shipped to the consignor’s order, the carrier is not authorized to treat the person to be notified as a consignee, and if it delivers the goods to him without production and surrender of the receipt or the bill of lading, it will be liable to the true owner of the goods for any loss resulting from such delivery.

      2. Same — Interstate Commerce — Federal Statute — Amendment —Construction.
    Act of Congress August 29, 1916, section 9, subd. c (39 U. S. Stat. at Large, p. 538), entitled “An. act relating to bills of lading in interstate and foreign commerce,” amending and supplementing tbe interstate commerce law relative to carrier’s liability, commonly called tbe “Carmack Amendment,” making the initial carrier in interstate transportation liable for through carriage to point of destination under the bills of lading required to be issued therefor, construed and held, not to restrict or affect the rights of the parties connected with the transaction as the law upon that subject previously stood.

    3. Statutes — Federal Statutes — Construction by Federal Courts Controlling.
    State courts, when called upon to deal with Federal laws, are governed by the construction given to them by the Federal courts.
    4. Carriers — Bill oe Lading — Initial Carrier — Liability.
    Where a carload of potatoes was shipped over defendant’s line as the initial carrier, and was reconsigned by the terminal carrier for further movement over another line without authority of the assignee at the destination point, or requiring surrender of the original bill of lading, contrary to instructions, defendant was liable, as a matter of law, for any loss sustained by the shipper.
    Error to Kent; Perkins, J.
    Submitted October 15, 1918.
    (Docket No. 53.)
    Decided April 3, 1919.
    Assumpsit by Jay F. French and another, copartners as J. F. French & Co., against the Pere Marquette Railway Company for breach of a contract of carriage. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Norris, McPherson, Harrington & Waer (Parker & Shields, of counsel), for appellant.

      Hall & Gillard, for appellees.

       See notes in 44 L. R. A. (N. S.) 257; 50 L. R. A. (N. S.) 819.

   Steere, J.

This action was brought against defendant as initial carrier to recover damages sustained by plaintiffs on a carload of potatoes shipped from Bailey, Mich., on November 3, 1917, over defendant’s line and connecting carriers, to Louisville, Ky. The potatoes were intended for ultimate delivery at Camp Zachary Taylor, located near Louisville on the Southern railroad. After this camp was established the Southern road opened a station at that point, called Dumesnil, to handle the freight business which the camp demanded and developed. A firm named Marshall & Kelsey, of Indianapolis, Ind., had secured from the quartermaster of the camp a contract to supply it with a quantity of potatoes, and sublet a contract to a produce broker of Grand Rapids named Mosely to supply 40 carloads, of which plaintiffs, who were produce dealers and handled potatoes, furnished a part, the ear in question being one of several which they shipped in that connection. The price of the potatoes to plaintiffs was $2.63 per hundredweight, less freight rate from Bailey to Indianapolis. The bill of lading, issued by defendant, shows it was N. Y. C. Car No. 151,473, containing 300 sacks of potatoes weighing 45,000 pounds, billed from Bailey, Mich. — destination Louisville, Ky., consigned to the order of J. F. French & Co. — route C. C. C. & St. L., often called the “Big Four.” Upon the bill is the direction, “Notify Marshall & Kelsey, c/o Captain Bernard, Commissary at Camp Zachary Taylor,” and “Allow inspection.”

The car was moved under a standard uniform bill of lading, and a billing of like import accompanied the car showing routing, destination, consignee, etc. Defendant was the initial carrier and the Big Four railroad was both the connecting and terminal carrier. No claim of negligence is made as to time or manner of transporting the car over its route from point of shipment to Louisville, its destination and contracted point of delivery. Plaintiffs’ grievance, and claimed ground of negligence which resulted in the damages sought- to be recovered, is a reconsignment of the car by the terminal carrier at Louisville for further movement over another line, without authority of the assignee at the destination point or requiring surrender of the original bill of lading for cancellation.

The trial court held that, as a matter of law, under the undisputed evidence, the terminal carrier was guilty of negligence in that particular and defendant liable for resulting damages, if any; and submitted to the jury the question of damages with proper instructions upon that issue, as to burden of proof, measure of damages if any were shown, etc. Plaintiffs recovered verdict with judgment thereon for $689.20.

Defendant’s counsel properly saved adverse rulings desired reviewed by seasonable objections, motions, request for directed verdict, etc., and concisely point out in their brief that they center to a “narrow and Well-defined” issue, saying:

“There is involved simply a construction of the Federal uniform bills of lading act passed in 1916 (39 U. S. Stat at Large, p. 538-542) in connection with the so-called Carmack amendment.”

When the car was loaded and started from Bailey, its point of shipment, plaintiffs received from defendant, its initial carrier, the original order bill of lading covering this car, of the standard form approved by the interstate commerce commission, to which they attached a draft for the selling price drawn on Marshall & Kelsey of Indianapolis and turned it over to their local bank at Grand Rapids, receiving credit therefor on their commercial account and the bank forwarded the bill of lading with draft attached to •the Commercial National Bank of Indianapolis for collection. As it turned out, the Indianapolis bank, in careless disregard of its duty as a collecting agent, handled the shipping bill in a way which made possible the complications which followed. Instead of requiring payment of the draft before surrendering the shipping bill to the payor, it detached the bill from the draft and intrusted it to Kelsey, who took it with other bills to Dumesnil, and, on about November 14th or 15th, left it at the Southern railroad station with one of its employees named Bindner who worked in the station as cashier. The agent of the Southern road at Dumesnil, named Baker, testified that he never had the bill of lading for that car and could not say that it was in the office, but the cashier had the same authority as he to deliver shipments. Bindner testified that he was not holding those bills for the Southern railroad company, but they were given to him by Kelsey, who had a whole lot of stuff in his pocket, to keep for him, and he (Bindner) “chucked them in a drawer” and was holding them for Kelsey. The car arrived at Louisville on November 9th and remained at the Big Four station until November 16th, when Bindner called up by ’phone the trackage clerk of the Big Four at Louisville, námed Smith, told him he had the bill of lading and to let the car go out to the camp. Bindner testified that he did not do this under Kelsey’s. directions or as agent for the Southern railway but on his own hook because the car was Overdue; he had looked at the routing which was over the Big Four and he knew the government needed potatoes. Smith testified that on receiving this word from Bindner he told him if the Southern railway would guarantee him “our car service” and he had the bill of lading, he would send it out and, although he knew that under the rules of the Big Four he should not let the ca^r go without surrender of the bill of lading he “took the chance” and reconsigned the car by changing the destination in the way bill with charges to follow and sent it forward over the Southern railway line, which received and moved it under the altered way bill marked “Dumesnil, Kentucky So. R. R.,” delivering it at its destination on November 18th, charging a six cent local rate for the haul from Louisville to Dumesnil.

This car arrived at Louisville over the Big Four line on the evening of November 9, 1917. Kelsey had told Smith that he was stopping in that city at the Watterson hotel and asked to be notified by ’phone when cars, which he expected, arrived for his firm, and Smith on the next day (November 10th) first attempted to get him by ’phone, but being unsuccessful sent a regular form postal card notice by mail, addressed to the firm, care of the Watterson hotel, with a 5-day return mark on it, containing full information relative to the car and stamped across its face in large letters “Present Bill of Lading.” Smith testified it was the rule of the company that a car billed as this one was should not be delivered without surrender of the bill of lading.

When the car arrived at Dumesnil it was placed on the side tracks near the commissary buildings and, as was shown against plaintiffs’ objection, was subsequently rejected with numerous other cars on inspection by quartermaster officers, on what date does not appear, on the ground that the potatoes were suffering from “field frost,” as diagnosed by Captain Hanson, while Col. Pearson stated that when his attention was called to them they were badly frost-bitten and rotten, and he directed Hanson to reject the cars from which they were taken; that as he recollected it the weather was extremely cold at that time and he could not tell whether they were frosted en route or in the field.

Bindner gave the original bill of lading back to Kelsey who returned it to the Indianapolis bank which reattached the draft to it, and returned it to plaintiffs’ attorney who delivered it to them on December 7th. Plaintiffs’ first notification of rejection of the car was by a telegram Bindner sent to Mosely at Grand Rapids, Mich., on December 4th, telling him the , car in question and certain others had been rejected, and Mosely informed plaintiffs of it on December 5th. The original bill of lading was then in possession of the Indianapolis bank with the draft. After the original order and draft were returned to plaintiffs they gave the Grand Rapids bank a check for the amount of the draft and surrendered the original order to defendant’s division freight agent in exchange for a bill of lading reconsigning the car to plaintiffs at Memphis, Tenn., where the goods could be and were dispqsed of, to the best advantage, as is claimed, but at a loss, for recovery of which this action was brought.

Plaintiffs’ contract was with Marshall & Kelsey, of Indianapolis, to whom they „old this carload of potatoes to be delivered at Louisville, Ky., with right of inspection at point of delivery. The right of the purchaser to examine the goods while in the hands of the carrier before accepting them was at the point of delivery only. There is nothing in the acts relied upon which restricts or affects the right of any of the parties connected with the transaction as the law upon that subject previously stood. The law relative to the effect of a “notify” clause in the bill of lading as heretofore settled in this jurisdiction and many others is well digested with numerous citations, as follows, in 10 C. J. p. 259:

“Where a bill of lading or a shipping receipt contains a clause providing that a third person shall be notified of the arrival of the goods, or where it contains this clause and an additional clause reciting that the goods are shipped to the consignor’s order, the carrier is not authorized to treat the person to be notified as á consignee, and if it delivers the goods to him without production and surrender of the receipt- or the bill of lading, it will be liable to the true owner of the goods for any loss resulting from such delivery.”-

This court has spoken definitely to that effect and emphasized the significance of a provision in the order bill of lading that its surrender properly indorsed shall be required before delivery of the consignment. Perkett v. Railroad Co., 175 Mich. 253; Turnbull v. Railroad Co., 183 Mich. 213; Thomas v. Blair, 185 Mich. 422; Churchill v. Railway Co., 188 Mich. 376.

It is defendant’s contention that these decisions are largely emasculated in their general import and become wholly inapplicable here by reason of the negotiable characteristics given a bill of lading by the act of congress passed August 29, 1916, to take effect January 1, 1917, entitled “An act relating to bills of lading in interstate and foreign commerce” (39 U. S. Stat. at Large, p. 538), construed in connection with the Carmack amendment of the interstate commerce act under which this action was brought. Counsel’s position is pointedly stated in part as follows:

“The rules of ordinary contract law have absolutely nothing to do with this case because this case involves a negotiable instrument and not a contract of the common law. * * * Mr. Bindner, while he had possession of the bill of lading, exercised the authority which its mere possession conferred and obtained the car from the Big Four. Bindner by virtue of his possession (not ownership) of the bill of lading, was a person to whom the Big Four, the delivering and terminal carrierwas justified in making delivery of this car. The Big Four did make delivery of the car to Bindner while he was in possession of the bill of lading, and thereby did what it was authorized to do by section 9 of the bills of lading act.”

That act, containing 45 sections, is in its nature related to and supplemental of the interstate commerce law, which, as enacted in 1887, underwent various amendments by the act of June 29, 1906 (34 U. S. Stat. at Large, p. 584, chap. 3591), especially as to section 20 relative to carrier’s liability, commonly called the Car-mack amendment, which made the initial carrier in interstate transportation liable for through carriage to point of destination under the bills of lading required to be issued therefor. The material concluding portion of that lengthy amendment of section 20 (of the 1887 act — section 7 of the 1906 act) is as follows:

_ “That any common carrier, railroad or transportation company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad or transportation company, to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed: Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.”

Section 9 of the act of 1916 relating to bills of lading, upon subdivision (c) of which defendant relies, is as follows:

“Sec. 9. That a carrier is justified, subject to the provisions of the three following sections, in delivering goods to one who is—
“ (a) A person lawfully entitled to the possession of the goods, or
“(b) The consignee named in a straight bill for the goods, or
“(c) A person in possession of an order bill for the goods, by the terms of which the goods are deliverable to his order; or which has been indorsed to him, or in blank by the consignee, or by the mediate or immediate indorsee of the consignee.”

The section immediately preceding (8) and three sections following (10, 11, 12) also relate to delivery, and so far as material are as follows:

“Sec. 8. * * * a carrier, in the absence of some lawful excuse, is bound to deliver goods upon a demand made either by the consignee named in the bill for the goods, or, if the bill is an order bill, by the holder thereof, if such a demand is accompanied by—
“(a) An offer in good faith to satisfy the carrier’s lawful lien upon the goods;
“(b) Possession of the bill of lading and an offer in good faith to surrender, properly indorsed, the bill which was issued for the goods, if the bill is an order bill; and
“(c) A readiness and willingness to sign, when the goods are delivered, an acknowledgment that they have been delivered, if such signature is requested by the carrier.
“In case the carrier refuses or fails to deliver the goods, in compliance with a demand by the consignee or holder so accompanied, the burden shall be upon the carrier to establish the existence of a lawful excuse for such refusal or failure.
“Sec. 10. * * * where a carrier delivers goods to one who is not lawfully entitled to the possession of them, the carrier shall be liable to any one having a right of property or possession in the goods if he delivered the goods otherwise than as authorized by subdivisions (b) and (c) of the preceding section; and, though he delivered the goods as authorized by either of said subdivisions, he shall be so liable if prior to such delivery he—
“(a) Had been requested, by or on behalf of a person having a right of property or possession in the goods, not to make such delivery, or
“(b) Had information at the time of the delivery that it was to a person not lawfully entitled to the possession of the goods. * * *
“Sec. 11. * * * if a carrier delivers goods for which an order bill had been issued, the negotiation of which would transfer the right to the possession of the goods, and fails to take up and cancel the bill, such carrier shall be liable for failure to deliver the goods to any one who for value and in good faith purchases such bill, whether such purchaser acquired title to the bill before or after the delivery of the goods by the carrier and notwithstanding delivery was made to the person entitled thereto. * * *
“Sec. 12. * * * if a carrier delivers part of the goods for which an order bill had been issued and fails either—
“(a) To take up and cancel the bill, or
“(5) To place plainly upon it a_ statement that a portion of the goods has. been delivered with a description, * * * he shall be liable for failure to deliver all the goods specified in the bill to any one who for value and in good faith purchases it, whether such purchaser acquired title before or after the delivery of any portion of the goods by the carrier, and notwithstanding such delivery was made to the person entitled thereto.”

These are Federal laws, for controlling interpretation by the Federal courts in their final analysis, and the State courts when called upon to deal with them are governed by the construction declared in decisions of those courts, where they have spoken. Counsel do not cite and we have not found any adjudication directly construing the provisions of the statute upon which defendant relies. The scope and purpose of the Carmack amendment, of which the iater act is but supplemental, has frequently been before the United States Supreme Court for consideration of its various provisions. Its manifest purpose is, as interpreted by that court, to create in the initial carrier unity of responsibility for transportation to destination and bring contracts for. interstate shipments under one uniform law, to which end a proper receipt, or bill of lading, must issue therefor.

“The liability of any carrier in the route over which the articles were routed, for loss or damage, is that imposed by the act as measured by the original contract of shipment so far as is valid under the act.” Kansas City Southern R. Co. v. Carl, 227 U. S. 639 (33 Sup. Ct. 391).

In Adams Express Co. v. Croninger, 226 U. S. 491 (44 L. R. A. [N. S.] 257, 33 Sup. Ct. 148), holding that a contract in a bill of lading relative to rates was not in violation of the act, the court said:

“The statutory liability, aside from responsibility for the default of the connecting carrier in the route, is not beyond the liability imposed by the common law as that body of law applicable to carriers has been interpreted by this court as well as many courts of the States.”

In view of the history of the interstate commerce law, its administration and the many decisions of both Federal and State courts recognizing certain of its features as but declaratory of common-law principles, it is wide of the mark to assume that because enacted into statute the rules of the common law have nothing to do with this inquiry. This order bill of lading under which the shipment was made, while now negotiable under the act of 1916, possessed those attributes in like degree and had often been recognized as such by the courts years before the act was passed. That act, which counsel in their briefs designate the “Uniform bills of lading act,” nowhere in express language, either in its title or body, prescribes a form for or even mentions a uniform bill of lading. As “An act relating to bills of lading in interstate and foreign commerce,” its subject-matter is suggestive of the name and instructive of its purpose in the particular that many of its provisions and requirements harmonize with and follow in general plan the standard uniform bills of lading which the interstate commerce commission had approved as such and which, by years of use, had become familiar to commerce. Those forms, after careful consideration in the light of experience, had been approved by the commission and adopted by shippers and carriers, without direct legislation therefor, to meet the general requirements of. the Carmack amendment. In practical application, as' the law was administered by the commission and interpreted by the courts, they had through years of trial and test apparently proved satisfactory and efficient for conduct of the gigantic and complicated business of interstate and foreign transportation. It is fairly inferable that the intent of this act was to strengthen by legislative indorsement that which had for efficient administration of the interstate commerce law been worked out, adopted, and approved by the combined efforts of shippers, carriers, and the interstate commerce commission.

If it was the purpose of the act to impose limitations on these long used and often construed bills of lading to an extent which changed the settled law in the important particular claimed, it would seem that, in the absence of a prescribed form and in view of the context, a clearer declaration than that relied on would be found somewhere in the act.

The form of order bill of lading used by defendant in this case and delivered to plaintiffs, stating in bold type on its face that its surrender properly indorsed “shall be required before the delivery of the property,” is the prescribed form set out at length in connection with the opinion and order of approval thereof filed by the interstate commerce commission after full hearing, on June 27, 1908 (14 Interstate Commerce Commission Rep. 346). Two forms are there recognized, as also in this act. An order bill of lading though negotiable represents property, not money, and the certainty of its surrender before delivery of the property it describes is a matter of serious significance in financing consignments for transportation, as pointed out .by Judge Knapp, chairman of the commission, in the portion of the opinion discussing the two approved forms of bills of lading, as follows:

“The main point in this connection is that the ‘order’ bill will possess a certain degree of negotiability, while the ‘straight’ bill will be nonnegotiable and is to be so stamped upon its face. Moreover, and this is a matter of consequence, the order bill of lading will be required to be surrendered upon or before the delivery of the property to the consignee. It is believed that this plan will in large part meet the requirements of the banking concerns of the country which advance vast sums of money upon bills of lading and are entitled to a reasonable measure of protection.”

Section 8 of the act under consideration affords the carrier full protection by refusing delivery of the property when demanded by the consignee or holder of an order bill of lading, unless possession of the same properly indorsed thereon is surrendered.

Section 42 of the act specifies that “unless the context of the subject-matter otherwise requires, * * * 'holder’ of a bill means a person who has both actual possession of such bill and a right of property therein.” That definition clearly did not fit Bindner who had no right of property nor interest in the bill, nor control of it or right of possession beyond its safe keeping, for Kelsey, which accommodation trust he executed by “chucking” it with other papers into a drawer and handing it back when called for, in the meantime, however, on his “own. hook” without instructions from any one telling Smith, who neither saw nor asked for the order, that he had it, with the results before detailed. But, eliminating him as a.“holder” under the strict statutory definition, it may be conceded that nev-‘ ertheless, under subdivision (c) of section 9 he was entitled to delivery of the shipment as a person in possession of the order bill indorsed in blank "by the consignee. Defendant in fact did not deliver the goods direct to him but turned them over by an irregular reconsignment to another carrier on the strength of his statement that he had the bill, without asking for it or even seeing it, in admitted violation of its own rules and of the distinct provision on the face of the order bill under which it had received the consignment, that its surrender should be required before delivery. By statute the carrier is made liable for the acts of its agents. The act nowhere prescribes the form of shipping bill which should be used nor in express language forbids that used here, and generally. Resorting to context to determine the intent of subdivision (c) of section 9 in the connection used, especial importance is given to surrender of the order for cancellation on delivery, for protection of the carrier, both in preceding and following provisions, read in connection with which it may be fairly inferred, taking all the related provisions together, that when a person in bare possession of the bill, not shown or known to have any actual interest or right of property therein, demands delivery of the goods, the carrier is only justified in complying on surrender of the bill to it; or, at least, as tinctured by the context and in view of the general purpose of the act, the provision relied on is not to be construed as prohibitive of a contract requirement in the order bill of lading issued by the carrier to that effect.

Other points raised and discussed have not been overlooked, but regarding the controlling question, as stated by defendant’s counsel, to be the construction of the act of 1916 in connection with the Carmack amendment, and agreeing with the construction, as applied to the facts in this case, by the trial court, we find no occasion to disturb the judgment, which is therefore affirmed.

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


text:
    PATTERSON v. WAGNER.
    1. Negligence — Automobiles—Damages—Evidence—Sufficiency.
    In an action by an administratrix under tbe “Death Act” for the negligent killing of plaintiff’s decedent, evidence that the funeral expenses amounted to $225, that his minor daughter was dependent upon him, and that he contributed about $25 every two weeks for grocery bills, rent, clothing for the minor daughter, etc., held, sufficient to support a judgment for $545.
    2. Same — Contributory Negligence — Presumptions.
    Where there are eyewitnesses to an accident, the legal presumption that a decedent was free from contributory negligence does not obtain to the full extent as in cases where there were none.
    3. Highways and Streets — Automobiles—Pedestrians—Duties —Negligence.
    At crossings on city streets the right of passage is common to all, and both pedestrians and drivers of motor vehicles are bound to exercise'reasonable care for their own safety and the safety of others upon the street.

    4. Negligence — Automobiles—Crossing Accident — Contributory Negligence — Question for Jury.
    Where deceased was struck and killed by an automobile while attempting to cross a street at a public crossing, evidence raising questions upon which reasonable men might differ as to whether deceased was, under all the surrounding circumstances, in the exercise of reasonable care, held, to present a question of fact for the jury.
    5. Same — Rate of Speed — Ordinances.
    While a speed in excess of the legal limit prescribed in the State law is in itself primo fade evidence of negligence, a lower speed may, according to the circumstances, be excessive and evidence of negligence; due regard to existing conditions at the time and place, the lives and safety of the public being the test.
    6. Same — Evidence—Question for Jury.
    In an action for the negligent killing of plaintiff’s decedent by the driver of an automobile on a public crossing, contradictory evidence as to the rate of speed at which defendant was driving, held, to present a question of fact for the jury as to defendant’s negligence.

    Error to Jackson; Parkinson, J.
    Submitted October 11, 1918.
    (Docket No. 38.)
    Decided April 3, 1919.
    Case by Edna R. Patterson, administratrix of the estate of George F. Patterson, deceased, against Abraham H. Wagner for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Forrest C. Badgley and F. H. Dusenbury, for appellant.

      John F. Henigwn, for appellee.

       See notes in 38 L. R. A. (N. S.) 487; 42 L. R. A. (N. S.) 1178; 51 L. R. A. (N. S.) 990.

       See notes in 25 L. R. A. (N. S.) 40; 38 L. R. A. (N. S.) 487; 42 L. R. A. (N. S.) 1178; 51 L. R. A. (N. S.) 990.

   Steere, J.

Plaintiff as administratrix recovered a verdict and judgment against defendant under the so-called “death act” (section 14577, 3 Comp. Laws 1915), in the circuit court of Jackson county in the sum of $545 and costs, for fatal injuries sustained by her father, George F. Patterson, at the intersection of East Main and VanDorn streets in the city of Jackson on the evening of May 27, 1916, caused by the right front fender of defendant’s automobile striking him.

Defendant brings error and asks reversal on the three grounds of failure to prove defendant negligent, contributory negligence of plaintiff’s intestate, and that even if actionable negligence by defendant and freedom from contributory negligence by decedent were shown there is no proof of any damages as contemplated by the death act nor any basis shown from which the amount of damages, if any, could be ascertained.

At the time of his injury and death deceased was over 59 years of age, a widower, living near the scene of the fatal accident, oh the east side of VanDorn street in the second block north of Main street with his two daughters Edna and Irene, the three constituting the family, he being employed as an assistant section foreman by the Lake Shore division of the New York Central Railroad Co. His daughter Edna, since married, was then 26 years of age and self-supporting. She and her father worked and earned wages, while Irene, then 18 years of age, kept house under the older sister’s direction and assistance, also working out at times, and had worked a week in the telephone office during the month of the accident. Deceased was in normal health and condition for his age except, as his daughter Edna testified:

“There was a peculiarity about my father’s walk. My father was hurt in a railroad wreck ten years ago. On one foot there was no toes. The toes settled down into the bottom of his foot and he wore a shoe — an inch sole on his shoe and he reeled when he walked because he had to protect that foot. There was no power in that foot, and that is the reason it made him stagger. The toes were off his left foot. * * * My father did reel when he walked — when he walked any place where the sidewalk or road was bad.”

Her testimony on his subject was given on rebuttal to meet, or explain, that given by certain of defendant’s witnesses who noticed deceased just as the accident was about to occur, and testified that he staggered, as though intoxicated, apparently from his course against or in front of the right fender of the car which struck him.

Main street in the city of Jackson runs east and west, intersected by VanDorn, running north and south, Park avenue being the next intersecting street to the west, near the Michigan Central railroad crossing, with a slight up-grade from there to VanDorn. The accident occurred near the southwest corner of Main and VanDorn streets at about 8 o’clock in the evening or a little after, witnesses variously characterizing the visibility as between daylight and darkness, quite dusk, dark, and practically dark except for the street lights which were on. A double-track street car line extends along Main street at that point which is a business portion of the city just to the east of the union railroad passenger station.

Defendant was a business man about 55 years of age, his vision and other faculties normal, and accustomed to driving a car. He had owned and driven the car he was using that evening, a “Buick 37,” since September, 1914, and was familiar with its operation. He had “just got the car out,” as he states, and was driving down to a station on the south side of Main street in the next block east of VanDorn to get some gasoline. There were three persons in the car, defendant and Mrs. DeMay, his cousin, on the front seat and her daughter, a girl about ten years old, on the rear seat. He was driving and sat on the left at the wheel, Mrs. DeMay being on the right and to the south nearest the curb. The headlights of the car were lit, with the dimmers on.

Deceased was in a barber shop on the south side of Main street between VanDorn street and Park avenue to get shaved about 8 o’clock and finding them busy paid his bill, took a number and left, stating he thought he had “time to go over to the house.” The proprietor of the shop, who knew deceased, testified he was not then intoxicated, and he heard about 30 minutes later of his being killed.

It is undisputed that deceased was struck and killed by defendant’s automobile at the intersection of Main and VanDorn streets, the direct cause of death being a fracture of his skull as testified to by a physician called to see him shortly after the event. That he was in the street and staggered just before he was hit is the testimony of all defendant’s witnesses who saw him at that time. The cause of his doing so, his then condition and negligence in that particular were clearly for the jury. The barber whose shop he left shortly before the accident testified he had not been drinking, his daughter Edna testified that he had a crippled foot that caused him to stagger or reel when he walked in any place where the sidewalk or road was bad, and Mr. Gusenbar, a witness for plaintiff, whose photograph studio was about 40 feet west of where the accident happened and who saw it, after-wards helping to pick deceased up and carry him into his place of business, testified that there was “a depression in the pavement near the place where he was struck.” Further saying:

“There is a crosswalk across Main on the west side of VanDorn. It is all the sa,me sidewalk clear to the curb there, so you couldn’t distinguish where the crosswalk would be. It is all pavement. Patterson wasn’t over five feet east of the west line of VanDorn street in Main street. * * * He was about half way between where the curb would be on the south side of Main and the street car track.”

Confirmatory of the place of the accident, a witness of defendant named Myrtle Benn testified that while standing on the south side of Main street, that evening, at the west corner of VanDorn and Main, she saw a man on the sidewalk start out to the curb and go out into the street, saying:

“The man staggered and that is about all I know— that he was in front of the car. I got away from there as quick as I could. * * * I saw something was going to happen and I got right away. I saw him go from the curb right out into the street. He was on the same side of the street I was.”

This locates the accident practically at a regular crossing for pedestrians at the intersection of two streets in a business portion of the city, where there was a lighted street lamp hung over the center of the intersection, as defendant testified. In Babbitt on Motor Vehicles (2d Ed.), § 885, it is said to be a fundamental rule of law and common sense—

“that motor vehicles must be driven slowly on approaching a crossing. The test seems to be whether the driver has control of the situation, whether he is so driving that he can stop if necessary soon enough to avoid an accident.”

It is conceded that by ordinance the lawful rate of speed for automobiles in that part of the city is limited to ten miles per hour, exceeding which is charged in plaintiff's declaration, and also violation of the provisions of sections 21 and 22 of Act No. 302, Pub. Acts 1915 (1 Comp. Laws 1915, §§ 4817, 4818), which provide:

“No person shall operate a motor vehicle upon a public highway at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the highway, or so as to endanger the life or limb of any person or the safety of any property; * * * Upon approaching an intersecting highway, * * * a person operating a motor vehicle shall have it under control and operate it at such speed as is reasonable and proper, having regard to the traffic then on such highway and the safety of the public.
“Upon approaching a person walking in the roadway of a public highway, * * * a person operating a motor vehicle shall slow down to a speed not exceeding ten miles an hour and give reasonable warning of its approach and use every reasonable precaution to insure the safety of such person.” * * *

The questions brought up by defendant were saved for review by proper objections, motions and request for directed verdict during the trial and the weight of conflicting evidence is not before the court. Of the claim that there is no evidence on which to base an award of damages, it was shown that the expenses of deceased’s burial were approximately $225, that his youngest daughter was a minor living with him and dependent, that he was earning $65 per month and customarily contributed for the household about $25 every two weeks, which the older daughter expended for grocery bills, rent, clothing for the younger daughter, etc. The trial court carefully instructed the jury that only the younger daughter would be entitled to compensation, for what she was deprived of in that respect until she was 21 years of age. There was evidence to support, in the discretion of the jury, the verdict of $545.

On the assignment of error that deceased was guilty of contributory negligence which precluded recovery and for that reason a verdict should have been directed for defendant, it is to be borne in mind that this accident occurred at a crossing and the injured party is dead. His mouth is closed as to how he came there, what observations he made, whether or not he looked before starting to cross, if so, what judgment he exercised in regard to what he observed and what caused him to stagger, or reel, and appear about to fall when struck, as witnesses of defendant state was the case. It is true when there are eyewitnesses to the accident, the legal presumption that a decedent was free from contributory negligence does not obtain to the full extent as in cases where there were none (Baker v. Delano, 191 Mich. 204), but no witness is shown to have observed deceased until he stepped off the curb into the street at or near a proper crossing for foot passengers, where he had a right to be, and apparently reason to go, on his way home, and where it was also defendant’s duty to exercise special care in anticipation both of crossing pedestrians and vehicles. Relative to the mutual rights and duties of those using the highway at such points it is said in Babbitt on Motor Vehicles (2d Ed.), § 1295:

“At crossings on city streets the right of passage is common to all and both pedestrians and drivers of motor vehicles are bound to exercise reasonable care for their own safety and the safety of others upon the street. The footman is not required as matter of law to look both ways and listen but only to exercise such reasonable care as the case requires. Both pedestrians and drivers are required to exercise that degree of care and prudence which the conditions demand. It is impossible to formulate any more' precise definition of these relative rights and duties.”

Unlike street cars or railroad trains, which in their noisy progress are confined to the narrow line of their rail tracks, automobiles with practically equal capacity for speed can range the road in substantial silence. They can and do traverse the streets at much greater speed, with much less noise, than other highway vehicles in common use, and on the other hand can be more surely and easily controlled by those experienced in their use. The duty and responsibility of those driving them should be, and is, proportioned to the possibilities and dangers attending the use upon the public highways of such an instrumentality of travel and transportation. It is but a rational rule which’ emphasizes the driver’s duty of special vigilance at crossing points on city streets where the right of passage is not only free and common to all, but in common and frequent use both by pedestrians and vehicles. While the duties of reasonable care for their own safety and that of others are imposed upon both pedestrian and driver, the driver’s comparative personal safety in case of collision with a pedestrian is not to be overlooked in measuring his duty to exercise commensurate care for the safety of others.

Deceased was lawfully on the street at this crossing when injured. There is evidence from which it may be inferred he was attempting to cross while on his way to his home. Whether under the conditions known or which should have been known to him he, in deciding to cross at that time and place, was in the exercise of reasonable care, and what caused him to stagger and partially fall, if he did so, are questions upon which the circumstances furnish fair material for the minds of reasonable men passing upon the facts to differ. It was properly left to the jury to say under the facts shown and inferences, which could reasonably be drawn from the evidence under all the surrounding circumstances, whether deceased was in the ordinary exercise of reasonable care.

Of the contention that no negligence is shown on the part of defendant, it is first contended that the only negligence properly charged is “excessive and unreasonable speed” and that there is no competent evidence showing that the legal limit of ten miles an hour was exceeded. The declaration, which contains two lengthy counts, not only charges an excessive and dangerous rate of speed with failure to give warning but makes special reference to the statute and defendant’s duties under it, which it charges, amongst other things, he violated by failure upon approaching the intersecting street to operate his motor vehicle—

“with due care and caution and with due regard for the safety of travelers and persons lawfully in said highway so as not to injure a person lawfully there, but on the contrary carelessly and negligently and without seeing or discovering the fact that said plaintiff’s intestate was in such highway, lawfully crossing said intersection and in the exercise of due care and caution for his own safety, with great force and violence ran said motor vehicle against the body of plaintiff’s intestate,” etc.

While a speed in excess of the legal limit is in itself prima, facie evidence of negligence, a lower speed may, according to the circumstances, be excessive and evidence of negligence. The rate of speed must always be reasonable and proper, having due regard to existing conditions at the time and place, the lives and safety of the public being the test.

There were estimates of speed from observation and proof of facts from which inferences might be drawn constituting competent evidence to carry the question of defendant’s negligence to the jury, whose function was to weigh it and determine. The speed was estimated as high as 15 miles an hour by one witness named Sims who saw the accident from a distance of about 12 rods. He frankly admitted his estimate was in the nature of a guess, but stated facts on which he based his estimate, which were for the jury. He was then a stranger to all the parties interested, and happened to be on the west side of VanDorn street about a block south of Main on his way down town with his wife when his attention was first drawn to the accident, as he testified, by hearing a woman scream followed by another scream just as he saw an auto shoot out from, to him, behind a building on the southwest corner of Main and VanDorn streets and its right fender hit a man and throw him down so that it “sounded a good deal like the falling of a tree or something like that — a sharp crash” and going down there he saw the man lying in the street with his feet to the north; he saw the car go about ten or twelve feet before it struck the man and it stopped near the southeast corner of VanDorn and Main streets, and said his judgment of the speed was from those observations. The witness Gusenbar, who helped pick the deceased up, was at his own automobile in front of his studio and about to start home when the accident occurred. He testified that his attention was suddenly attracted by a woman’s scream, almost immediately followed as he looked in that direction by Ms hearing what he designated as the “crash of the man being hit by the car” and in .another portion of his testimony as “the crash of the man’s head”; that as he first threw his eyes that way he saw the car going east on the south side of Main street eight or ten feet from the curb, he heard no horn and noticed no effort to slack up before it struck the man nor did he see it swerve, and “it went two and a half or three car lengths” after it hit him; that he had himself driven a car for about eight years and judged this car, which was a Buick, was going ten or twelve miles an hour. Of the persons in the car defendant was the last to notice deceased. The little girl on the back seat said she thought she saw him first; that her mother “said to Mr. Wagner, ‘Look out, there is a man coming,’ ” and when she told him to look out he swung his car over and put the emergency brake on. Mrs. DeMay, sitting in front with defendant, who thinks she might have screamed but does not remember, and whose not always lucid narrative is at times somewhat self-contradictory, said the car was running as indicated by the speedometer between seven and eight miles an hour and moved “about a length and a half or twice its length after it hit the man.” In her direct examination her account of the accident is as follows:

“I first saw Mr. Patterson. I noticed an object. It was dark. There was no garage there on the corner and apparently it was dark. I heard the scuffling of feet. I looked and saw an object. I saw a man. I did not know at first whether it was a man, an animal or a dump cart. It appealed to me first it was a cart. I couldn’t make out at first what it was. When he drew nearer the car he scuffed and staggered and I saw he had his hand up like that (illustrating). He staggered over toward the car. I saw him stagger toward the car. He stepped up and put his hand on the front fender at the side. I called Mr. Wagner’s attention to it. I saw him put his hands on the fender. When he put his hand on the fender he seemed to put his hand out to balance himself. At that time the man wasn’t straight up. He was in a stooped position. He put his hands up to balance himself, and he took another step and fell down. The car didn’t run over him.”

Defendant, who gave darkness as a reason for not seeing deceased sooner, also testified that it was because he was “looking straight ahead,” that his lamps were lighted, an arc light was hanging over the intersection of the two streets, and street lights all the way along, that from where he sat he could see his front right fender when his “attention was called to it” and there was nothing to prevent him seeing any one approaching the fender, that he first saw deceased when Mrs. DeMay said, “Look at that man there” (also when she screamed), and the next he saw was “his hand go on the fender,” and he then threw the car away from him, applied the emergency brake and threw out the clutch, and the car ran a little over its length after it hit him. A witness of defendant’s who had put in eight years in the automobile business, saw the accident and testified as an expert that the car was going not to exceed seven miles an hour, also testified on cross-examination that on a dry pavement a car of that make “wouldn’t go over half its length with the emergency brake on — possibly two-thirds of the length according to the tires, whether they are old or new tires.”

Whether, as between defendant and deceased, the accident was attributable to either, or both, or neither of them, were questions of fact properly submitted to the jury.

The judgment is affirmed.

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