author:
Ostrander, J.
      Kuhn, C. J.

text:
    CLARK v. DETROIT & MACKINAC RAILWAY CO.
    1. Evidence — Admissibility — Negligence — Contributory Negligence.
    In the absence of evidence pointing to one cause or another as to the sinking of a rowboat with its occupants, so long as the cause is plainly conjectural, it is proper to prove, in an action for the negligent death of an occupant of such rowhoat against the one renting it, as accounting for the disappearance of the boat, that the men who were in it had a few minutes earlier rocked the boat.
    2. Death — Presumptions—Negligence—Evidence.
    Where no one saw a hired rowboat sink with its occupants, the presumption that those on board were using due care at the time it sank is to be indulged only to relieve a plaintiff from an inference of negligence, and not to supply evidence of the negligence of the renter of the boat.
    3. Negligence — Death by Drowning — Liability.
    Negligence and consequent liability of the letter of a rowboat for the death of an occupant by drowning cannot be predicated upon the failure to furnish a boat, which, when capsized, would float, supporting in the water four clinging passengers.

      4. Same — Death by Drowning — Evidence—Instructions.
    In. an action against the renter of a rowboat to recover for the death of an occupant alleged to be due to the sinking of the boat because of its defective condition while deceased and three other persons, who were also drowned, were in it, held, that the jury should have been instructed that negligence of defendant was not made out, and that, If negligent, it was purely conjectural whether the loss of the boat and of lives was the result of its negligence. Kuhn, C. J., and Bird and Moore, XT., dissenting.
    5. Same — New Trial.
    In an action against the letter for hire of a rowboat to recover for the death of plaintiff’s intestate, alleged to be due to the sinking of the boat because of its defective condition, a new trial was awarded plaintiff, although a judgment in her favor was reversed upon the record.
    6. Death — Who Entitled to Sue — Actions.
    A mother who has been' divorced from her husband, has remarried, and receives the earnings of her son, who lives with her, may maintain an action for the son’s death.

    7. Evidence — Admissibility.
    In an action against the renter of a rowboat for the death of an occupant, alleged to be due to the sinking of the boat because of defective condition thereof, evidence of the condition of other' rowboats of defendant was inadmissible.
    8. Same — Instructions—Appeal and Error — Curing Error.
    In an action against the letter for hire of a rowboat for death of an occupant, alleged to be due to the sinking of the boat because of its defective condition, the erroneous admission of evidence of the defective condition of other rowboats of defendant was not cured by the giving of a cautionary instruction.
    9. Same — Weight of Evidence — Question for Jury.
    The weight of evidence is for the jury.
    Error to Arenac; Sharpe, J.
    Submitted October 23, 1916.
    (Docket No. 24.)
    Decided July 30, 1917.
    Case by Nettie M. Clark, administratrix of the estate of Milton Stocum, deceased, against the Detroit & Mackinac Railway Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Henry & Henry (James McNamara, of counsel), for appellant.

      William C. Cook, for appellee.

      On right of deserted wife to recover for death or injury to child, see note in 31 L. R. A. (N. S.) 519.

   Ostrander, J.

Four young persons, two boys and two girls, were drowned- in Saginaw Bay June 17, 1912. They were Milton Stocum, 16 years old, Ion Lincoln, Nellie Salmon, and Eva Ouilette, also minors. They were riding in a rowboat which belonged to and had been hired of the defendant at Linwood Park, a resort owned and operated by defendant, to which in summer it ran daily excursion trains. Those named and others, with their teachers, went to the park on one of defendant’s trains for a school picnic. The boys had twice before been out upon the waters of the bay in the boat, the second time with two other girls. Upon the third excursion upon the water they were seen at some distance from shore and called to dinner by one of the teachers, and waved a response to the call. Two others, who were rowing out, met them as they were returning to shore. In some manner, for some reason, they soon thereafter disappeared and were not again seen alive. Their bodies were recovered a few days later. A floating seat board, air tank, and oar were found, which it is claimed were a part of the boat. This suit is brought by the mother and administratrix of the estate of Milton Stocum, who alleges in her declaration that defendant is liable for the injury suffered by the said Nettie N. Clark, mother, and Irwin Stocum, father,' of the deceased intestate, on account of his death.

It is alleged in the plaintiff’s declaration, after stating the general relations which existed between plaintiff’s decedent and others in the same party and the defendant, that plaintiff’s decedent, because of his tender years, was unable to judge, in hiring or using a boat for rowing purposes, the dangers arising from the condition and repair of the boat, its carrying capacity, from going upon the water without a skilled oarsman to handle the boat, from the leaky condition of the particular boat, the leaky condition of air bulkheads or tanks attached to the boat, from the rotten condition of the boat and of the strip of wood around the inner side thereof, to which was attached the seats with screw nails, and which held the air tanks in place, from overloading the boat, from going upon the water when a high sea was running, or from a momentary squall of wind. She says, therefore, that it became the duty of defendant to provide a reasonably safe and seaworthy boat; to provide for a prudent and careful inspection of it before renting it; to maintain the ends, sides, and bottom of said boat free from holes and leaks, that the same be water tight; to maintain the strip of wood around the inner side of said boat; to which was attached the prow and stern seats, including the air tanks, free from rot and other defects, thereby making said seats and air tanks secure and fast with screw nails to prevent the same from falling or pulling out in the event the said boat capsized while being rowed upon the water; to maintain the air tanks free from leaks and holes, preventing water entering them, should the boat for any reason ship water or be capsized; to refrain from renting boats to children of immature age without providing competent oarsmen to accompany them; to refrain from allowing a boat to be loaded with more persons than its rated carrying capacity; to refrain from allowing plaintiff’s decedent and his companions to go out upon the water in the boat at a time when the wind was off shore and the sea running high; and to have provided a competent beach patrol whilst its boats were in use upon said dangerous water. It is alleged that defendant negligently omitted, or failed to perform, such several duties, and that the boat

“without warning wrecked and fell to pieces upon said water, at a distance of about three-quarters of a mile out from shore, throwing said plaintiff’s intestate and his said three companions into the water, at the same time causing said prow and stern seats, including the air bulkheads or tanks (being the nonsinkable device used in the construction of said boat) to pull loose and out, owing to the rotten condition of the strip of wood to which the same was attached with screw nails, and drift away and sink, causing said steel boat hull to sink beneath the surface of the water, whereby plaintiff’s intestate and his said three companions were drowned in said water.”

The personal representative of young Lincoln also instituted a suit against this defendant, which upon a trial was determined in favor of the defendant upon the opening statement of counsel for plaintiff. Upon error, the judgment of the circuit court was reversed and a new trial granted. Lincoln v. Railway Co., 179 Mich. 189 (146 N. W. 405, 51 L. R. A. [N. S.] 710). Upon the last trial the Lincoln Case and the Stocum Case were tried practically as one case and submitted to the same jury. There was a verdict returned for each plaintiff, and a separate judgment entered for each. A reference to the opinion of this court above referred to will disclose that it was concluded that upon the statement of plaintiff’s counsel it could not be determined as matter of law that defendant was not, in some of the respects alleged, negligent, and that, upon the same statement, the presumption was that plaintiff’s decedent exercised due care — a presumption sufficient to permit recovery, if negligence of defendant was made out.

Plaintiff declares that the persons entitled to the personal estate of the intestate are herself and Irwin Stocum, his father, who “were entitled to the services and earnings of decedent until he arrived at the age of 21 years.” The testimony is that plaintiff and said Irwin Stocum are divorced, she having remarried; that the last information she had was that Stocum was alive; that Milton never lived with - his father, nor contributed to his support, and had not been maintained by his father, and did give all of his earnings to his mother, the plaintiff. Defendant says of this situation that the father was, in law, entitled to the earnings of his son, and is the person entitled to be appointed administrator, and the sole person for whose benefit this suit could be maintained. 3 Comp. Laws, §§ 10427, 10428 (3 Comp. Laws 1915, §§ 14577, 14578). The statute provision is that the amount recovered in such an action shall be distributed to the persons and-in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate, and the limit of recovery is the amount of the pecuniary injury suffered by the persons entitled to the award. Over objection, testimony was admitted to the effect that Milton Stocum was very bright, with a very kind, cheerful, and sweet disposition — obedient.

There were 13 boats at the resort, numbered. The boats numbered 21, 22, 23, 24, 25, and 26 were bought at one time — in August, 1915 — and 21, 22, and 23 were of the same size. Made by the Michigan Steel Boat Company of Detroit, Mich., they were known as “B 14-foot square stern special livery boats.” They were 14 feet long, 44 inches wide amidships, and 14 inches deep amidships; height of bow 22 inches, and of stern 24 inches. The shells, or hulls, are described in the catalogue introduced in evidence in the following language :

“In considering the construction of our steel hulls, bear in. mind that they are not stamped or pressed ; they are made of heavily galvanized steel (made to order for us), cut in regular pattern strips, lock seamed and welded together by pneumatic hammers. The seams are rolled the same as steel is rolled from the billet, thus retaining its original rigidity and strength. The seams in each of our boats are placed four inches apart and have four thicknesses of steel, which run from bow to stern, acting as a steel girder encircling the hull and making it practically impossible for same to leak or come apart. They are not bulky and heavy, as are the smooth skin boats, which have no force to resist the waves or any other object with which they might come in contact, and they are not built with the exposed ■ rivets, as are the above-mentioned boats, so that it is only a question of time when the water and weather will wear the rivets away, and then the boat will rust, and leaks will spring when the boat receives a hard knock. It stands to reason that boats built with the concealed rivets and the lock seam can resist the waves and can stand knocks and jars, as the seams protect the hull and, the rivets being concealed, the water and weather cannot wear them away. All bolts, rivets, and screws in our boats are heavily galvanized. Every Michigan steel boat is equipped, bow and stern, with air-tight compartments, which pass a rigid hot-water test and are in-cased and not visible; therefore nothing can injure these air tanks, and each boat carries sufficient of these to insure the boat being absolutely nonsinkable —in fact, any Michigan steel boat filled with water will support its occupants.”

The sterns of the boats were wood; there were three wooden seats, as well as a small wooden deck at the bow; and, running longitudinally, strips of wood, some of them used as flooring. The rear seat, like the other-seats, was- lower than the gunwale of the boat, and lower than the stern, which showed several inches above the seat. The boat in question was numbered 22. Plaintiff claims it was not seaworthy; defendant, that no proper testimony tends to prove it was unseaworthy, and that much testimony relating to the condition of other boats was improperly admitted to prove the condition of the particular boat.

Stated very briefly, the testimony relating to the condition of boat No. 22 was that of George Walmsley, who testified that on the Sunday previous to the loss of the boat he rented a boat from the defendant, went out with it upon the bay, and while in the boat he marked certain initials upon the back seat. The seat board found after the catastrophe in question here, and claimed to have been in boat No. 22, was produced, and the witness identified the initials found upon it. He was out, he said, from a half to three-quarters of an hour. Asked to describe the condition the boat was in, he testified that it was in an unfit condition, was pulled apart “in back and there was rusty screws pulled out of the wood. The rear seat was loose and in right back of the rear seat is where the boat pulled apart — spréad apart at the top.” What he describes is that, by sitting in the center of the boat, facing the stern, there could be and was seen above the seat a space between the side of the boat and the board which made the back to the seat on the left-hand side. He testified that, when the man who was with him sat in the back seat, it did not leak. When the witness sat there, “I was heavier than what he was, it was down lower in the water, and the water splashing up came in, not a great quantity, but there was water coming in.” He further testified that he “took hold of the side and kind of pulled in on it, and it seemed to be pretty weak,” and that the sides of the boat went and came when the oars were used. He went ashore, he said, because he thought the boat was unsafe; that there was a small amount of water got into the boat; that the water was not very rough, and was not smooth. He further testified that by sitting in the center seat he could see that the boat at the stern was spread apart under the rear seat; he should judge it was opened up — “I could see about an inch,” so that if the water raised to within an inch of the seat, it could pour right in. On cross-examination he admitted, what is obvious, that he could not sit in the center of the boat and see the condition of the stern of the boat below the rear seat, and did not see it, and that because he saw the corners above the rear seat somewhat open he assumed that the opening extended below the seat. The boat had been used some by defendant’s agent for two days before June 17th.

The two boys who used this boat on the afternoon in question, and who lost their lives, were twice out upon the bay with the boat before making the trip when the boat was lost. After they had once been out with the boat, they invited two girls, one of them a teacher, to go upon the water with them, and they did go. Lincoln sat in the middle seat and rowed the boat. Milton Stocum sat upon the bow seat, and the two girls occupied the back seat. They went out a half a mile, “more or less,” and were out about 40 minutes. The teacher, Miss Tebeau, testified that the boys rocked the boat and splashed water upon them, rocking the boat until it dipped water from both sides; Milton Stocum standing up in the front part of the boat and rocking it. She was frightened, and asked the boys to take her back to shore, and that shortly after they did return to shore, when these two young ladies got out, and the boys then took in two other girls, who were with them when all were lost. There was no water in the boat when these young ladies first named went out with the boys, but before they returned there was enough water in the boat so that their feet and dresses were wet. The other young lady testified that, while she did not try to upset the boat, she, with the boys, rocked it as hard as she could, getting enough water in the boat to get wet, rocking it so that it dipped water. On cross-examination by plaintiff’s attorney, this testimony was given:

“Q. And the boat stayed on top of the water all the way until you got in?
“A. The boat stayed on top of the water.
“Q. You gave it a good thorough test, then?
“A. Yes, sir.”

It has been stated that in the course of the trial a seat, assumed to be the back seat of boat No. 22, and an air tank, assumed to be the air tank which was under that seat, were produced. Testimony was introduced tending to prove that there were screws in the back seat which had evidently been at some time imbedded in wood and had been pulled out or loosened, there being particles of wood in the threads of the screws. One or more witnesses expressed the opinion that the condition of the particles of wood adhering to the screws indicated that the wood was rotten. Nothing had been done to boat No. 22 by way of overhauling or repairing for the season of 1912. Witnesses were permitted to testify that after the loss of the boat No. 22 they examined other boats belonging to defendant, used in its boat livery, and to describe to the jury the condition of those boats. Of this testimony the learned trial judge in his charge to the jury said:

“Now, lest we forget it, I want to say right here there was some evidence, introduced and submitted to you, tending to show what the condition of some of the other boats were that lay on the beach, a day or two after this unfortunate drowning occurred. I admitted that evidence with considerable reluctance, because you can see how dangerous it is for you to judge of the condition that one boat was in by the condition of another boat that happened to lay there. You all, as prudent and careful men, will see that that is dangerous, if you should say that, because a boat was found on the beach in a certain condition, this boat that was lost was in a similar condition. But there was testimony in the case tending to show that these boats probably were all in the same condition. And so I said to counsel that evidence should go in, and I should deem it my duty to caution you as to the weight you should give it. I am not saying that you should not give it weight; that is for you to say. But I am cautioning you that it is of a different class of evidence, so far as the weight is concerned, than that of some one who had made an examination of this particular boat. And in determining the weight you' will give that you must consider the testimony offered by the defendant as to the condition of these boats, and as to when this boat and other boats like it were repaired, and so on.”

The testimony as to the condition of other boats did not tend to prove that the other boats were in one condition, but rather that they were ih various conditions as to repair.

Defendant asked the circuit judge to direct a verdict for the defendant, because there was no evidence of defendant’s negligence. Various other requests to charge were proposed on the part of the defendant and appellant, some of which were refused; the principal complaint being that the court refused to instruct the jury that it was not incumbent upon defendant’s agent to see that the rented boat was not overloaded, and, akin to this, the request to charge that, if the boat was overloaded, that was the fault of the young men who invited others to use it with them. Error is assigned upon the refusal of the court to instruct that the occasion of the death of plaintiff’s intestate was conjectural or speculative. Error is assigned, also, upon the charge as given, and upon the refusal to set aside the verdict and grant a new trial. It is well enough, in considering this case, to say in the beginning that the case is not made complex by alleging that defendant owed to plaintiff’s decedent and his companions a multitude of duties, setting them out and alleging that each of them was breached. The case is really a very simple one, if confined to the facts which the evidence tends to prove. The allegation of a multitude of duties, and the breach of them, in an attempt to meet any and every possible contingency which the evidence might present and almost all conceivable causes for the tragedy, is not condemned, and shows the careful pleader; but the apparent necessity for it, the uncertainty of the cause so indicated, betrays the idea, which will force itself upon any one who reads the record, that not inferences from known facts, and not presumptions, but pure conjecture alone, connects the alleged negligence of defendant and the death of these young people.

In the case developed there is no rough water, although the water was not perfectly smooth, no particular wind, no overloaded boat, no hiring of the boat to immature and tender youths. Lincoln was a high school graduate; Stocum was 16 years old. There is no testimony tending to prove that either was not perfectly at home in a rowboat; none that Lincoln, who so far as is known did the rowing, was not a capable oarsman. The ability of the boys, or of Lincoln, to navigate the boat, is demonstrated, as well as the fact that' the boat did and could safely carry four persons. There is no testimony which tends to prove that the hull of the boat was infirm or that the boat leaked. The seats may have been loosened, or imperfectly fastened; but in use the boat was proven to be safe, with the load which it carried. As a witness for defendant, the owner of a similar boat, testified, and as is matter of common knowledge, it makes" no difference about the wood “as long as the shell on the outside of the boat is whole, as long as there is a seat there to sit down on, and no leakage alongside of the shell, it is perfectly safe.” Except the stern and, possibly, a small part at the bow,_ and a keel, the wood in the boat was all inside of the hull, or shell, and might all of it have been removed without affecting the safety of the hull.

Lincoln and Stocum, after rocking the boat so as to give it some load of water, were not themselves affected with any evidence of infirmity in the boat. At no time were they seen or heard to give signals as if in trouble. Quite the contrary. The witness who found the hull to be flexible, yielding when he pulled upon its sides and when the oars were used, discovered only what most persons know who ever have used a metal boat, or one of any material built with laps, whether the laps ran longitudinally or latitudinally the boat. This boat, after the demonstration described, disappeared with its passengers.. By all rules of probability, by all natural inferences from known facts, it ought to have come safely to shore, if properly managed, and if the passengers behaved as circumstances required. It is assumed that the boat sank. But what made it sink? What room is there for inference based upon established facts? Clearly there is none; established facts supporting conclusively no theory of destruction, but supporting best the inference, based upon demonstration, that the cause was not the infirmity of the boat. What may be conjectured? Plainly, several things. Some of the occupants of the boat attempted to exchange seats? The young men indulged in another rocking of the boat? Experience has proven these to be each of them common enough causes for capsizing boats and death by drowning. What right— logically — has one to say rather that the boat collapsed, supported as it was by water, or that it suddenly sprung a leak?

It is said that, no one having seen the boat when it disappeared, it is presumed that those on board her were using due care. Indulging this presumption, it is argued, we are left to find the cause of the catastrophe in the condition of the boat. This is not necessarily so, and, if it was so, the known condition of the boat refutes such a conclusion. It is, however, more reasonable to say that we have certain phenomena to consider, and if we include among them the said presumption, it is still from all of them that we must determine, if we can, why the boat and its occupants disappeared. The presumption is not conclusive, and does not operate to bar consideration of all known facts. In the absence of evidence pointing to one cause rather than another, so long as the cause was plainly conjectural, it was proper to prove, as accounting, as well as anything which had been proven, for the disappearance of the boat, that the young men who were in it had indulged, a few moments earlier, in a pastime which was calculated to capsize the boat. In any event, the presumption referred to is indulged only to relieve a plaintiff from an inference of negligence, and not to supply evidence of the negligence of a defendant. It remains that, when last seen, and for a long time before, the boat was performing its. duty, was demonstrably a sound and safe craft.

It may be said, and there is in the brief suggestion to the effect, that if the boat from any cause capsized it would then be of importance to have seats and air tanks, safely and soundly attached to the boat. This may be admitted, since a hull which would not sink when filled with water might also support for some time,. in certain conditions, persons thrown into the water. This consideration should not divert attention from the true question to be determined. Once it is assumed that the boat was capsized, did not by its own infirmity cause the hazard and crisis following its capsizing, plaintiff has failed in this action. Negligence and consequent liability of defendant is not, and cannot be upon this record, predicated of failure to furnish a boat which, when capsized, would float, supporting in the water four clinging passengers. Perfectly secure and seaworthy rowboats will sink when filled with water. A frightened person, in the water, will drag down and be lost with wreckage which would have supported a fearless person. Defendant did not undertake to furnish a nonsinkable boat, if, indeed, there is any, except self-bailing boats, which can be called nonsinkable.

The facts established at the trial are not the facts stated by counsel and considered by the court in Lincoln v. Railway Co., supra, although it is probable that the trial court believed the decision in that case required this one to go to a jury. In my opinion, the court should have instructed the jury that negligence of defendant was not made out, and that, if in any respect found to have been negligent, it was purely conjectural whether the loss of the boat and of the lives was-the result of its negligence.

The conclusion I have stated disposes' of the case, and requires a reversal of the judgment. It is not deemed proper to refuse plaintiff a new trial, although upon this record there can be no recovery. If a new trial is had, some questions arising upon this record are likely to again arise. As to the right of the mother of decedent to maintain the action, it is settled in Yost v. Railway Co., 163 Mich. 564 (128 N. W. 784, 31 L. R. A. [N. S.] 519, Am. & Eng. Ann. Cas. 1912A, 988). The testimony of the condition of other boats, examined after the loss of the particular boat, ought to have been excluded; its admission being error. A reason for its exclusion has been given. A further one is that little, if any, of it tended to prove the boats to be in-a leaky or unseaworthy condition. Error was not avoided by a caution as to the weight to be given to the evidence. The weight of evidence is for the jury.

Stone, Steere, and Brooke, JJ., concurred with Ostrander, J,

Kuhn, C. J.

(dissenting). The negligence of the defendant became a question of fact for the jury upon the record here presented, for the reasons stated in my opinion in the case of Lincoln v. Railway Co., post, 504 (168 N. W. 969), handed down herewith.

The judgment should be affirmed.

Bird and Moore, JJ., concurred with Kuhn, C. J. Person, J., did not sit.


source: Caselaw Access Project

author: Kuhn, C. J. Ostrander, J.

license: Public Domain

text:
    LINCOLN v. DETROIT & MACKINAC RAILWAY CO.
    This case is ruled by Clark v. Railway Co., ante, 489.
    Error to Arenac; Sharpe, J.
    Submitted October 20, 1916.
    (Docket No. 23.)
    Decided July 30, 1917.
    Case by Lansing E. Lincoln, administrator of the estate of Ion Lincoln, deceased, against the Detroit & Mackinac Railway Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Henry & Henry (James McNamara, of counsel), for appellant.

      William C. Cook, for appellee.
   Kuhn, C. J.

This case is before us the second time; a verdict directed for the defendant having been reversed on the former appeal and a new trial granted. Lincoln v. Railway Co., 179 Mich. 189 (146. N. W. 405, 51 L. R. A. [N. S.] 710). A second trial was had, which resulted in a disagreement of the jury. On the third trial, by agreement of the parties, the facts as stated in the former opinion of this court, as written by Mr. Justice Stone, were accepted as proven and read into the record. They are as follows:

“The defendant owns and operates a railway system running from Pinconning, Bay county, to Linwood, in said county, and elsewhere. It owns in connection with its railway system a pleasure resort, located along its right of way at its station of Linwood, which resort is contiguous to the waters of Saginaw bay. In connection with this summer resort it operates and controls certain amusement features, to wit, stands, bathing, boating, and other devices for the amusement of the public, for profit. On June 17,1912, plaintiff’s intestate, a boy 16 years of age, was a passenger for hire on excursion rates from his home in Pinconning to said summer resort to attend a school children’s picnic thereat. Upon his arrival at said resort he secured a ticket from the defendant’s ticket agent for the use of one of the defendant’s row boats. He presented the ticket to another agent of defendant, who had the boats in charge, and obtained a certain boat, known as ‘D. & M. Ry. Co. No. 22,’ from the boat tender, which was a 14-foot steel rowboat. The boat was obtained by plaintiff’s decedent for the purpose of taking a row on the waters of the bay in company with three companions about the same age. Soon after leaving the landing, the children were lost sight of, and it was afterwards discovered that they had been drowned. The action was brought under what is termed the death act tó recover the pecuniary damages which it is claimed the father and mother have sustained by the death.”

Deceased had just graduated from high school, and a few days previous to the accident oral arrangements had been made whereby he was to go into the business, with his grandfather, of raising and selling cattle. It was a partnership arrangement, and each was to get .half of the profits of the business. There were no eyewitnesses of the accident, but when the young people were last seen in the boat the waters of the bay were calm. Miss Grace McKay, one of the teachers, went to the edge of the beach to call them in to dinner, and, while she could not distinguish their faces, she knew who were in the boat. When she called, they waved back to her, and she assumed that, as they were turning, they were coming in to shore, and paid no further attention to them.

As to the condition of boat No. 22 on the day of the accident and a few days before the witnesses disagree. Two witnesses for the plaintiff testified that the boat was unsafe and out of repair. After the accident, a seat board, oars, and air tank were found. Witness Walmsley said that he had the boat out the Sunday prior to the 17th, and found it to be in an unsafe condition, and by sitting in the center seat it was pulled apart in back, and there were rusty screws pulled out of the wood, and he was able to identify the seat board which was found, because he had marked upon it his initials at the time he had it out. Other witnesses testified that they had observed no defect in the boat on the day before and on the day of the accident, when they were out in it. Capt. Cotter, who found the parts of the boat, testified with reference to the parts that he found as follows:

_ “I put them away, and took care of them for some time. At the time the seat board was found, I think there were some screw nails in it on the champered edge. I examined them a little; it looked as though they were pulled out of it — soft wood of some kind. The wood that still stuck to the screws would naturally be soft, or they would not pull out. It looked as though it was rotten. I do not know how many screws were in the seat board at that time. I think there was one or two or more. I searched Saginaw bay for two weeks for the D. & M. Company, to find the boat; I never found a thing that belonged to the boat proper; I found stuff that came out of the boat, the clothing and things like that. It is so long ago I have, forgotten what the clothing consisted of; there were coats, neckties, and collars, and handkerchiefs. I turned the stuff over to somebody. I did not know any of the people. I think I am quite familiar' with the 'construction of boats. I use wooden boats in my livery business. After I got possession of the air tank, my attention was called to the fact of there being a little water in it, because I could shake it around, and I was wondering how the water got in there.”

By agreement between the parties and the consent of the court, this suit and the suit of Nettie M. Clark, administratrix of the estate of Milton Stocum, deceased, were tried together before the same jury, and the proofs, except upon the question of damages, were substantially the same. The jury rendered separate verdicts, and a special question submitted to them. “Did either Ion Lincoln or Milton Stocum, or either of the girls with them at the time of the accident, do any act by way of rocking the boat whereby the boat capsized?” was answered, “No.” At the close of plaintiff’s proofs counsel for the defendant moved for a directed verdict, on the ground that the plaintiff had not proved any damages, and that there was no evidence of negligence on the part of the defendant. This motion was denied, and at the close of the trial a verdict was rendered for the plaintiff in the sum of $1,-500 as damages. Thereupon a motion for a new trial was made, which was also denied by the court.

The first assignment of error relates to the admission of certain testimony concerning the disposition and characteristics of the plaintiff’s intestate. Witnesses were allowed to testify that as to his disposition he was kindly and pleasant, and that he was obedient to his teachers and parents, and that his habits were good, and that he gave the valedictory to the graduates of his class. We see no harm in the admission of this class of testimony, as it had a proper bearing on the question of damages, under the authority of Black v. Railroad Co., 146 Mich. 568 (109 N. W. 1052).

Other assignments of error relate to the admission of testimony as to the condition of other boats belonging to the defendant and used by it at the resort, as a result of an examination made within a few days after the accident. It is contended that there is no evidence showing the comparative age of the 13 boats which comprised the boat livery operated by the defendant company, nor the comparative use or condition of these boats. Mr. Kurzrock, defendant’s agent, who had charge of the boats for the season of 1912 and for several seasons before that time, testified in a general way that they all appeared to be in the same condition as to repair and general appearance, and that they all looked as if they were of the same age. The admission of this testimony was one of the grounds urged to the trial court in the motion for the new trial, and the learned judge, in denying this motion, said in part, with reference to this question:

“On the decision of this question of fact rests largely the rights of the parties. It is unknown and in dispute. It is incapable of proof by the production of the boat. Must we not, then, resort to inference? And if another fact can be established by proof, which may be used as a basis of inference to the fact in dispute, may we not use it for that purpose? If we concede it to be a fact that these other boats were in a state of repair similar to the one lost, can it be said that evidence of their condition would not raise a fair inference as to whether or not this boat was safe and seaworthy when hired to these boys? If so, then the fact that such similar condition was in dispute renders such evidence only less strong in degree. It will be noticed that the jury were expressly cautioned as to the weight to be given to this testimony. In the charge they were instructed:
“ ‘Now, lest I forget it, I want to say right here there was some evidence introduced and submitted to you tending to show what the condition of some of the other boats were that lay on the beach a day or two after this unfortunate drowning occurred. I admitted that evidence with considerable reluctance, because you can see how dangerous it is for you to judge the condition that one boat was in by the condition of another boat that happened to lie there. You all, as prudent, careful men, will see that that is dangerous, if you should say that, because a boat was found on the beach in a certain condition, this boat that was lost was in a similar condition. But there was testimony in the case tending to show that these boats probably were all in the same condition, and so I said to counsel that evidence should go in, and I should deem it my duty to caution you as to the weight you should give it. I am not saying that you should not give it any weight; that is for you to say. But I am cautioning you that it is of a different class of evidence, so far as the weight is concerned, from that of some one who had made an examination of this particular boat. And in determining the weight you will give it you must consider the testimony offered by the defendant as to the condition of these boats, and as to when this boat and other boats like it were repaired, and so on.’
“While it is true, as claimed by counsel for defendant, that these boats may have been subjected to more and longer service since purchase or repair, yet it was defendant’s duty to.have all its boats in a reasonable state of repair, and the fact that those examined by the witness were not, if true, might, it seems to me, under the evidence, be considered by the jury, along with the other testimony submitted, in determining the probable condition of the boat on the day in question.
“Another thought that presents itself to me is this: The defendant relied on the presumption that, in the absence of evidence to the contrary, this boat was safe and seaworthy. If the boat cannot be produced, was not plaintiff entitled to show the condition of other boats used in, the same place and for the same purpose, as tending to rebut such a presumption?”

There is considerable doubt in our minds whether the proof as to the comparative condition of these boats was sufficient to warrant the introduction of this testimony; but, in view of the fact that the judge in his charge cautioned the jury as to this evidence, and that there was other competent evidence before the jury as to the unseaworthy condition of the boat in question, we are not prepared to say that the admission of this testimony should be held, under the circumstances of this case, to be prejudicial error.

It is also contended that, because of the understanding which had been arrived at between Ion Lincoln, his grandfather, and his father, relative to the future earnings of Ion, he had been emancipated, and that therefore there was no question of damages for the jury. The agreement had not been reduced to writing, and was to be concluded after the day’s outing, at which time Ion was drowned. The details had not been closed, and in fact no definite understanding or agreement had been arrived at. Whether or not he was emancipated was left to the -jury as a question of fact by the judge in the charge, which in our opinion properly submitted the question. See Reeder v. Moore, 95 Mich. 597 (55 N. W. 436); Freeman v. Shaw, 173 Mich. 262 (139 N. W. 66); Black v. Railroad Co., supra; Yost v. Railway Co., 163 Mich. 564 (128 N. W. 784, 31 L. R. A. [N. S.] 519, Am. & Eng. Ann. Cas. 1912A, 988).

It is also urged that a verdict should have been directed for the defendant, because the proofs did not establish negligence on its part, and because the evidence shows that the cause of the accident is entirely conjectural. This question was considered by this court in its previous decision (Lincoln v. Railway Co., supra), and we there said:

“In the absence of such testimony [that of a living witness to the drowning], the presumption is that he and his companions were in the- exercise of due care, which presumption is sufficient to permit recovery if negligence is shown on the part of the defendant [citing cases]. We cannot say, as matter of law, that the defendant was not guilty of any of the alleged negligence.”

It is plaintiff’s claim, and there was evidence in support of it, when the young men applied to the defendant’s agent for the use of a boat, that they asked for a boat large enough for four, and that he gave them the boat in question, although witnesses testified that the boat was not suitable for four persons, but was rather a two-passenger boat. We are of the opinion that there was sufficient evidence of the negligence on the part of the defendant to warrant the submission of the case to the jury.

We are also satisfied that the charge of the court fairly presented to the jury the claims of the respective parties, and that the instructions of law with reference to them were proper. We have been unable to find any prejudicial error in this record, and therefore would affirm the judgment.

Bird and Moore, JJ., concurred with Kuhn, C. J.

Ostrander, J.

For reasons stated in Clark v. Railway Co., ante, 489 (163 N. W. 964), in which opinion is herewith handed down, judgment is reversed, and a new trial granted.

Stone, Steere, and Brooke, JJ., concurred with Ostrander, J. Person, J., did not sit.


author: Ostrander, J. Fellows, J.

text:
    WINANS v. WILLETTS.
    1. Navigable Waters — Test of Navigability.
    An unmeandered body of water, covering 100 acres, which has no inlet except small spring-fed streams, has an outlet connecting through various bodies of water with a large lake, and through which fish can pass and a small boat can be floated, has a highway around it extending to the low-water mark, and most of the land underneath which, as well as the land bordering on it, is owned by one person, is not a public navigable body of water but a privately owned pond. Kuhn, C. J., and Fellows, J., dissenting.
    2. Same — Trespassers, Who Are.
    Persons who have no right or license from the owners or part owners of a private pond to fish therein and enter for such purpose are trespassers, whether they enter from a highway or elsewhere. Kuhn, C. J., and Fellows, J., dissenting.
    3. Same — Trespassers—Customs—Notice.
    ’ Persons who have not been misled by any custom of public fishing in a privately owned pond or by any failure to notify them that a public license to continue to fish therein has been withdrawn are not justified in trespassing on such property for fishing purposes. Kuhn, C. J., and Fellows, J., dissenting.
    4. Same — Trespassers—State Control of Fish.
    The fact that there may be fish in a privately owned pond which are not the private property of the owner of the pond or any one else and that the State njay control the taking of fish therefrom does not warrant trespassing upon such property for fishing purposes. Kuhn, C. J., and Fellows, J., dissenting.
    5. Same — Trespassers—Injunction—Continuing Trespass.
    An injunction against trespassing upon the water of a private pond for fishing purposes is proper where there is such an assertion of right by defendants and such conduct that continuing trespasses might be anticipated.
    6. Same.
    Informality in an arrangement among those interested under which one of the heirs of an estate is in possession of the property, including a private pond, and is expected to protect the estate from trespassers, cannot avail persons trespassing on the lake for fishing purposes.
    7. Same.
    The fact that the right to fish in a private pond belonging to an estate has been granted to another by the heir who is in possession under an arrangement among those interested does not prevent a suit by the heir to restrain a trespass upon such water for fishing purposes.
    8. Same.
    Whether an injunction against trespassing upon a private fishing pond is perpetual is immaterial, and it should continue until such time as the defendants, or some of them, have secured the right to invade the property, and will not prevent them from securing or exercising the right when obtained.
    Appeal from Livingston; Miner, J.
    Submitted January 22, 1917.
    (Docket No. 50.)
    Decided July 30, 1917.
    Bill by George G. Winans against David O. Willetts and others to restrain a trespass upon a private pond. From a decree for plaintiff, defendants appeal.
    Affirmed.

      Louis E. Rowlett, for plaintiff.

      A. J. Sawyer, F. A. Shields, and B. M. Thompson, for defendants.
   Ostrander, J.

Paragraphs 1, 2, 3, and 5 of the bill of complaint are here set out:

“(1) That there is located in the township of Hamburg, Livingston county, Mich., on the west half of section No. 14 and the east half of section No. 15 a small body of fresh water known as Winans lake, covering about 100 acres of land; that said body of water is one of the finest lakes in southern. Michigan entirely surrounded by a highway and a good shore and is well stocked with fish and is a valuable piece of property.
“(2) That your orator is the owner in fee simple of all the land to the high-water mark under the water of the said lake, except a small parcel on the east shore thereof, of which land your orator has a lease from the tenant thereof of all the land under the water upon said east shore; that he is either the owner in fee simple or the lessee and in possession of all the land covered by the waters of Winans lake to the high-water mark thereof; that he is also the owner of about 800 acres of real estate adjacent to said lake and the owner of cottages located upon the shores thereof, which cottages are used by him and his friends and tenants as summer homes.
“ (3) He shows that no other person or persons own any of the lands under the waters of said lake, and that there are no riparian owners thereof except himself. He further shows that there is no natural outlet to the waters of said lake and no outlet [inlet?] thereto except small ditches draining the adjacent lands. * * *
“(5) He further shows unto the court that David O. Willetts, Willis G. Johnson, and La Verne O. Cushing, all of whom are residents of the city of Ann Arbor, have from time to time for a period of two or three years last past been in the habit of coming upon your orator’s premises without his permission or consent and going upon said lake with their boats and fishing outfits and with their friends and agents and traversing the waters of said lake, taking fish therefrom, crossing your orator’s premises, and denying him the right to control his own premises; that your orator has asked the said above-named parties who are made defendants to this bill to desist and refrain from trespassing upon his property as aforesaid, and that they deny your orator’s rights to control his own property, and that they threatened to continue with their acts of trespass as heretofore stated, unless restrained from so doing by an order of your honorable court.”

At the hearing in the court below the plaintiff moved for leave to amend the bill of complaint, and, receiving leave to do so, over objections which are repeated and urged on this appeal, stated the proposed amendment as follows:

“The amendment, I propose, is to strike out of the second paragraph the sentence reading, ‘That he is either the owner in fee simple or the lessee of all the land covered by the waters of Winans lake to the high-water mark thereof,’ and insert instead of that the following: ‘That the lands on the southerly and westerly parts of said lake are owned by the plaintiff and his brother, Edwin B. Winans, Jr., subject to a dower interest therein owned by their mother, all of which lands he is in possession and has control thereof, except the dwelling house in which his mother resides; that he is either, the owner in fee simple or the lessee or the joint owner and in possession of all the land covered by the waters of Winans lake to the high-water mark thereof.’ ”

The prayer of the bill is that the said defendants be restrained, temporarily and permanently, from entering upon said premises without plaintiff’s permission. Defendants filed a joint answer, in which they admit the existence of the lake, that it is surrounded by a public highway, and they say that the boundary of the highway extends on the lake side to the low-water mark of the lake, and aver that any person rightfully upon the highway can rightfully pass over the waters of the lake in a boat without trespassing on the lands of any riparian owner. They aver, further, that the highway was established, constructed, and maintained by the public. They deny that plaintiff is the owner of all the land under the waters of the lake to the high-water mark except a small portion on the east side, or that he is the owner of all the land or the lessee thereof under the water of the lake. They aver that more than one-third of the shore of the lake on the east side is owned in fee by the heirs and estate of George Hull, deceased, and that those lands have been in the actual exclusive possession and control of said. George Hull and his grantors for more than 30 years, and deny that plaintiff has any valid lease for the lands under the waters of the lake in front of the lands of the said George Hull, deceased, and deny that he is now, or has at any time during the last 5 years been, in actual or exclusive possession of any of the lands of the said George Hull bounded on the said lake above, or under the waters thereof. They deny that no other person than the plaintiff is the owner of any lands under the waters of the lake, saying again that the heirs and estate of George Hull, deceased, own in fee simple more than one-half the east shore of the lake and the land under the waters thereof to the low-water mark, and as owners they and their grantors have enjoyed the legal right for more than 30 years to go upon the waters of the lake and fish therein, and that no portion of the lands belonging to the heirs and estate of the said Hull, deceased, is now, or ever has been, in the possession of the plaintiff. They deny that there is no natural inlet or outlet to the lake, but aver that there is such an inlet and such an outlet. The defendants deny that they, or either of them, have at any time during the last 3 years gone upon the waters of the lake by passing over the land of plaintiff. They admit that they have gone upon the waters of the lake and fished therein, but say that in so doing they have in every instance gone over the lands belonging to the heirs and estate of the said George Hull, deceased, and have in every instance first obtained a permit and license so to do from said heirs and estate of the said Hull, deceased.

The cause came on to be heard in open court, testimony was taken therein as in a suit at law, and a decree favorable to plaintiff, and from which he has not appealed, was entered. Defendants have appealed.

Plaintiff says the only question involved is whether or not “a man who owns the bed of the lake, even though it has an outlet through which fish may pass and repass, may control it and keep others from trespassing thereon.”

For the defendants it is said that the testimony does not support the contention that plaintiff is the owner or lessee of all of the land above or below high-water mark, but that, if he is owner or lessee of the entire bed of Winans Lake, and as such a riparian owner has the exclusive right to fish in the lake, he cannot maintain this action because he has leased the right to fish in the lake to the Pleasant Lake Club, a private lease. It is contended further that the undisputed facts show that Winans lake is a part of the navigable waters of the State, and any person navigating these waters from Lake Erie through and upon the Huron river and so through the connecting waters of Strawberry and Zukey lakes is rightfully upon the water and may fish therein from his boat. Finally, it is contended that, if Winans lake is, in fact, a private pond, plaintiff has not given such a notice to the public not to fish in its waters as to revoke the license which the public by custom had to fish there.

Winans lake used to be called Pleasant lake. There is no evidence that it is a meandered body, and there is only one line recorded in the government survey, which is the section line between sections. 14 and 15. The water covers a part of the southeast quarter of the northwest quarter, also the northwest quarter of the southwest quarter, and the northeast quarter of the southwest quarter, and the southeast quarter of the southwest quarter and the southwest quarter of the southwest quarter, and the southwest quarter of the northwest quarter of .section 14. On some of the subdivisions the water only covers a slight part thereof. On section 15 it covers a portion of the east half of the northeast quarter, the northeast quarter of the southeast quarter, the southeast quarter of the southeast quarter, and the west half of the southeast quarter, about 160 acres in all. There is a small outlet from the lake, and, whether it was originally an artificial or a natural passage for the water, it has existed for many years, water running to Gut lake, some 24 rods away, from thence to Zukey. lake, and from thence, not directly, but finally, to the Huron river. Fish can pass from the Huron river to Winans lake by the various connecting waterways. A boat, if small enough, might be floated from Lake Erie to and upon Winans lake, which lake has, however, no inlet except small, spring-fed streams. From a public highway one may step into the waters of the lake or into a boat upon the surface of. the lake.

It is plain, however, that the lake is not a public, navigable body of water, and 'is a privately owned pond. Giddings v. Rogalewski, 192 Mich. 319 (158 N. W. 951), and cases cited. Defendants have no right or license, from any owner or part owner of the property, to fish therein, without which, whether they enter the premises from a highway or elsewhere, they are trespassers. They have not been misled by any custom of public fishing in the pond or any failure to notify them that a public license to continue to fish there had been withdrawn. Marsh v. Colby, 39 Mich. 626 (33 Am. Rep. 439). The fact that there may be fish in the lake, not the private property of plaintiff or of any one else, and that the State may control the taking of fish therein, does not avail the defendants. They can no more enter without permission the portions of the premises covered by water than they can invade the uplands of the riparian owners. Sterling v. Jackson, 69 Mich. 488 (37 N. W. 845, 13 Am. St. Rep. 405); Hall v. Alford, 114 Mich. 165 (72 N. W. 137, 38 L. R. A. 205); Giddings v. Rogalewski, supra.

Except as costs are involved, the enforcement of the decree according to its terms can affect no right or privilege which defendants, or either of them, possess. It is not of the slightest consequence to them whether the plaintiff does, or does not, possess all of the rights which he asserts. They have no business fishing in the lake without permission, and permission they do not claim to have. However, since they have been invited, if not forced, into court, and since a decree for costs against them has been entered, I must inquire whether plaintiff is technically or otherwise entitled to the relief granted by the decree.

There is evidence of such an assertion of right by defendants and such conduct that continuing trespasses might be anticipated, to prevent which a court of equity may grant an injunction. There is such evidence of a family arrangement, to which plaintiff, his brother, and his mother are parties, by which plaintiff is in such possession and control of the Winans estate, and expected, if not under obligation, to protect and defend it from trespassers, that defendants ought not to be permitted to profit by any want of formality in the arrangement. And although the right to fish in the lake may have been granted by plaintiff to the Pleasant Lake Club, this fact does not prevent plaintiff from preventing, by proper action, trespasses upon his property. So also it is quite unimportant whether the injunction granted is in form perpetual. It should continue until such time as defendants, or some of them, have secured the right to invade the property and will not prevent them from securing or from exercising the right when obtained.

As I understand the record, however, plaintiff has not shown himself to be owner, or lessee in possession, of all of the land covered by the waters of the lake. In such case, of course, defendants might prove a license to fish in the lake, and it would then be a question for decision whether, possessing such a license, the licensee could fish in any part of the lake. No such question is presented upon this record.

No reason for disturbing the decree is seen, and it is affirmed, with costs to appellee.

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

Fellows, J.

I am unable to agree with Mr. Justice Ostrander in this case, and will briefly state my reasons.

I do not conclude from this record, measured by the holdings of this court, that Winans lake is a non-navigable body of water, or that its outlet is a non-navigable stream. The lake itself covers 100 acres, and is certainly a floatable body of water. Its outlet connecting it with Gut, Zukey, and Strawberry lakes flows into Huron river and Lake Erie. The fact that this outlet has a capacity sufficiently large to allow small boats to come up stream into Winans lake demonstrates to my mind that it has sufficient capacity to float logs down stream. It therefore has a sufficient capacity, a sufficient capability, to perform a valuable service to the public. If it has the capability of such valuable use, it is not of importance that it is not now so used. Its capability determines its character and fixes the rights of the parties; its use or nonuse does not change its character. I entertain no doubt that millions of feet of forest product have been floated to mill and market through lakes and streams much more inconsequential than this lake and outlet without a thought by owners of subaqueous lands that a trespass had been committed, or their rights invaded.

The narrow construction of what were and what were not navigable waters, and limiting the term “navigable waters” to those only where the tide ebbs and flows, never found lodgment here. The leading case of Moore v. Sanborne, 2 Mich. 519 (59 Am. Dec. 209), early laid down the rule in this State which has not been deviated from. It was there said:

“But in this country the public right cannot depend upon custom, or upon general use, and we accordingly find that in nearly all the States this rule has been extended so as to be adapted to the necessities of our trade and commerce, and to embrace all streams upon which in their natural state there is capacity for valuable floatage, irrespective of the fact of actual public use, or the extent of such use. A stream which can only be made floatable by artificial means can in no sense be deemed a public highway, nor, on the other hand, can the fact that a floatable stream has not been used by the public, or has only been used by persons following a particular occupation, deprive such stream of its public character.”

Measured by this standard, and it is the standard used by this court in numerous cases, I think that not only Winans lake, but its outlet, form part of the navigable waters of the State. Sterling v. Jackson, 69 Mich. 488 (37 N. W. 845, 13 Am. St. Rep. 405), and Hall v. Alford, 114 Mich. 165 (72 N. W. 137, 38 L. R. A. 205), are not in point. Both cases involve the right of fowling. Giddings v. Rogalewski, 192 Mich. 319 (158 N. W. 951), dealt with a small pond covering only 20 to 25 acres, with no inlet or outlet, entirely surrounded by lands of a single owner, and it was expressly stated:

“The right of the people to fish in navigable or meandered waters where fish are propagated, planted, or spread, and to which they have lawful access by land or water, even though such waters may superimpose the subaqueous lands of a private owner, is not decided nor involved here.”

It is provided by section 7694, 2 Comp. Laws 1915:

“That in any of the navigable or'meandered waters of this State where fish have been or hereafter may be propagated, planted or spread at the expense of the people of this State or the United States, the people shall have the right to catch fish with hook and line during such seasons and in such waters as are not otherwise prohibited by the laws of this State.”

The testimony shows that Winans lake has been planted, with fish from the State fish hatchery at Northville. If this lake is navigable water, and I believe it is, and it has been planted with fish at public expense, as the proof shows it has, then I think the public has the right to go upon its surface and exercise the right of fishing, provided no fast land,under private ownership and control is crossed to exercise that right. It was said by this court in Lincoln v. Davis, 53 Mich. 375 (19 N. W. 103, 51 Am. Rep. 116) :

“Such fishing as is done with lines from boats, even in narrow streams, cannot be complained of by riparian owners. The fish are like any other animals ferse naturas, and in this region have always been regarded as open to capture by those who have a right to be where they are captured.”

The bill alleges and the map shows a public highway on the shores of this lake. One can step into a boat from this highway and touch no part of the fast land under the control of plaintiff. I do not understand that there has been any trespass upon or threatened trespass to the fast land under the control of plaintiff. I think the bill should be dismissed.

Kuhn, C. J., concurred with Fellows, J.


author: Moore, J. Ostrander, J.

text:
    JONES, ex rel. HALL, v. TURNER.
    Intoxicating Liquors — Revocation of License — Justices of the Peace — Liquor Bonds.
    An applicant for a license to sell intoxicating liquor is not an innocent party who will be protected by the face of the record showing approval of his bond, where he knows that at a meeting of the township board his application was rejected by an equally divided vote and that one of the two senior justices who, with the supervisor and township clerk, composed the board, was opposed to the approval of the bond, procures counsel after its rejection, induces the supervisor to call another meeting, knows that the justice who was opposed to him was not at such meeting and that his place was taken by a junior justice, which was permissible when a senior justice was unable to act, and three votes were cast in favor of the approval of the bond, including that of the junior justice, the other justice protesting that the meeting was illegal, and that the other senior justice was able to come but was not called. Ostrander, Steere, and Brooke, JJ., dissenting.
    Appeal from Ontonagon; Shepherd, J., presiding.
    Submitted April 20, 1917.
    (Docket No. 172.)
    Decided July 30, 1917.
    Bill by John Jones, prosecuting attorney of Ontonagon county, on the relation of William Hall, against Alex Turner for an injunction restraining defendant from conducting a saloon under an illegal license, and for the cancellation of the license. From a decree for complainant, defendant appeals.
    Affirmed.

      John Jones, in pro. per.

      ■ Michael J. Doyle, for defendant.
   Moore, J.

The plaintiff is prosecuting attorney of the county of Ontonagon, and as such files this bill of complaint at the relation of William Hall, a member of the township board of Stannard township. The bill prays for injunction against conducting a saloon under a license claimed to be illegal and for the cancellation of the license. From a decree in accordance with the prayer of the bill the case is brought here by appeal.

The statutory provisions material here are as follows:

“The supervisor, the two justices of the peace whose term of office will soonest expire, and township' clerk, shall constitute the township board, any three of whom shall constitute a quorum for the transaction of business.” 1 Comp. Laws, § 2343 (1 Comp. Laws 1915, § 2122).
- “When from any cause there shall not be three of ¡the officers constituting such board, competent or able to act, one of the remaining justices, on being notified by any member of said board, shall meet with any members of the board, and shall have the same authority as the other members of the board.” 1 Comp. Laws, § 2344 (1 Comp. Laws 1915, § 2123).

There is not much dispute about the facts. On April 10, 1916, at a meeting of the township board attended by the supervisor, the township clerk, and the two justices of the peace, one of whom is the relator, whose terms of office would soonest expire, the liquor application of defendant Turner was considered. On April 14, 1916, at a meeting attended by the same men, two men voted to accept the application, one member voted no, and one did not vote, and the application was declared carried. At a meeting of the township board attended by the same officials held April 28, 1916, a motion to reject the bond of Mr. Turner was carried. On the following day, at a meeting attended by a junior justice of the peace, the bond was accepted, Justice Kaiser protesting that the meeting was illegal. Justice Hall, a senior justice who had attended all of the previous meetings, was in the township, and was able to attend this meeting, but had.no notice it was to be held.

The following occurs in the testimony of the clerk:

“As township clerk of Stannard township, I did not make out, or send any notice to any of the board to attend at a meeting that day. ' There were no written notices given to attend the meeting of the board that day. Well, I was simply come out after. They got me and said there was a meeting. Lloyd Vest came after me. I do not know whether anybody went after Mr. Hall. * * * I did not have any idea how the township board come to hold a meeting on that day. I was simply sent for. I did afterwards certify that the bond passed upon by the persons assuming to act as township board that day was duly approved by the board. I did that by voting on it. I talked with the supervisor about filling it out.”

The following is taken from the testimony of Mr. Turner:

“And at this meeting on the 28th with Messrs. Brown, Hall, Kaiser, and Kopperi present, they either rejected this bond, or failed to approve of it; you knew that, on the 28th it was approved. I beg your pardon, it was the 29th; they didn’t approve it on the 28th. I learned that they didn’t approve my bond directly after, the meeting adjourned; they told me. It was a matter of considerable moment to me. I simply asked them why, and they said they didn’t know. I asked the supervisor why they turned my bond’ down, and he said he didn’t know. I didn’t talk to any of the others. I understood from the supervisor that Mr. Hall was against it.
“I knew that if I was going to get a liquor license that I had to get it that day or not at all. I did not immediately get busy among the members of the board to get another meeting. I got busy to get counsel. Counsel was to get a new application and present the new application before the bpard. * * * They didn’t approve it on the 28th, and then I knew that it was up to me to get the bond approved, and then I had a conversation with- Mr. Brown, the supervisor, and he couldn’t understand why some of the board were against it. I simply asked Mr. Brown why they turned the bond down. Mr. Kopperi was out on the farm. I did not talk about it to Kaiser — he seemed to be against accepting my bond — so I had it arranged with Mr. Brown, the supervisor, that he was to call another meeting of the board, and get the bond approved so I could get a license. Í did not talk with any of the other members of the board. * * * All the conversation I had about the bond was that with the supervisor before the meeting. I had not talked with him about calling in another justice. I had no conversation about that. I knew, however, when I was at this meeting and when this bond was brought up, that Mr. Peterson was assuming to act as a member of the board. I did not know whether or not Mr. Hall was notified. I knew all the time that it was Hall and Kaiser that were objecting.”

We quote from the brief of appellant’s counsel :

“When the State of Michigan or its attorney general or prosecuting attorney comes into this court as a suitor, it or he, whether asserting sovereign prerogative or seeking pecuniary relief, is bound by all the rules of equity with a few exceptions, none of which is applicable to the present controversy. * * * Equity will, in the proceeding where the plaintiff asks its intercession, regard as done that which ought to have been done, and will treat the bond in question as approved on April 28, 1916. The maxim, ‘He that hath committed iniquity shall not have equity,’ applies with singular force to the conduct of the complainant in this case. ‘A court of equity will leave this complainant, the people of the village, * * * in the bed they have deliberately made, and to such defense as a court of law may find they are entitled to,’ is the language of Justice Grant in Common Council of Cedar Springs v. Schlich, 81 Mich. 411 (45 N. W. 995, 8 L. R. A. 851). .* * * An innocent third party need not look beyond the face of the records or the declaration in documents by officials authorized to, issue the same. All presumptions are in favor of the validity of the proceedings.”

The record does not disclose why the bond.was rejected on April 28th. It does disclose that after it was rejected the defendant sought the advice of counsel; that he knew the relator Mr. Hall was opposed to approving his bond; that he knew he was not at the meeting of April 29th; and that his place was taken by a junior justice. We think it can hardly be said he is an innocent third party who will be protected by the face of the record.

The pivotal question involved was so recently before the court in George v. Travis, 185 Mich. 597 (152 N. W. 207, L. R. A. 1915E, 408), that we shall content ourselves by referring to the opinion in that case.

The decree is affirmed, with costs.

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

Ostrander, J.

(dissenting). It is assumed that, except as costs may be awarded, the decision of this cause will be of no importance to the parties thereto. Defendant’s license to do business covered a period which expired last May. As, however, a decree was rendered in the court below in December, 1916 (the date not appearing), and it is contended that a different decree ought to have been given, and, as I am unable to agree with Mr. Justice Moore as to the proper disposition of the contentions made, I state my reasons for disagreement.

The contention of the plaintiff rested and rests upon the proposition that defendant had no right to conduct his saloon from May 1, 1916, because his bond was approved at an informal meeting of the township board, which one of the senior justices of the peace did not attend, and of which meeting he had no notice. It is to be inferred from the record before us that the township board was bound in law to approve the bond which defendant presented, and that refusal to do so would have been a breach of .official duty. That senior justice of the peace who was absent from the township board meeting held April 29, 1916, at which time the bond was approved, and who instituted this proceeding, testified upon cross-examination as follows:

“When I voted not to approve of that bond on the 28th day of April I didn’t know that I was violating my oath of office in so voting. We had been directed by this circuit court for the county of Ontonagon a year ago to reconvene and approve of the bond. I knew that at this meeting of the 28th of April a like bond was being submitted for approval. And yet I voted no. I thought we had the authority. And I am a party in this action. I started it of my own will and my own desire, with the consent of the other justice. The other members of the board are not authorizing me to do this. I believe it is against the wish and will of the other members of the board. I know that Mr. Turner took his bond after it had been approved, and delivered it to the county treasurer. I know that he paid $500 to the county treasurer, and I knew that the township board received that $500. As a member of the township board I never protested against the township receiving that $500. I even acknowledged receipt of the $500, and knew that the $500 went into the town treasury, and was then by the township board spent in the interests of the town.”

The prosecuting attorney, who is the plaintiff, says that two questions are involved: (1) Was the action approving of the bond void so that the license issued was illegal, and (2) is a bill for injunction against conducting the saloon and for cancellation of the license a proper remedy? In argument, after referring to Lewick v. Glazier, 116 Mich. 493 (74 N. W. 717), and Auditor General v. Sparrow, 116 Mich. 574 (74 N. W. 881), he says:

“An examination of these decisions, and of other decisions to the same effect, shows that the earlier decisions have not been modified, but that this court has held that technical nicety is not required in records of township boards, and that if the contrary does not appear, it will be presumed that the meetings were regularly called. In the present case, it was proved on behalf of the plaintiff that the meeting was in fact not regularly called or held, and was not a legal meeting, and while, under these later decisions, this court, from an inspection of the records alone, might presume the meeting to be a legal one, no such presumption can exist when, as in this case, it is conclusively proved that the meeting at which it was undertaken to approve the Turner bond was not a legal meeting. While there is no evidence in the case that Mr. Turner was guilty of actual, intentional fraud, it nevertheless does appear that he was present at the meeting; that he knew that Messrs. Brown, the supervisor, Kopperi, the clerk, and Hall and Kaiser, justices of the peace, constituted the township board of that township, and knew that they were not all present, and had sufficient knowledge to give him notice that this was not a legal meeting of the board. It follows, therefore, that the bond pursuant to which Turner’s license was issued has never been legally approved, and that the county treasurer was not authorized to issue a license to him to engage in the retail liquor business.”

The jurisdiction of equity in cases like this is confined to compelling the surrender and cancellation of instruments which, illegally and fraudulently obtained, nevertheless are evidence of apparent right to carry on the business. George v. Travis, 185 Mich. 597 (152 N. W. 207, L. R. A. 1915E, 408). Defendant relied and relies upon favorable action of a public official body in approving his bond. The county treasurer relied upon it in issuing the license. The favorable action of this official body, in this behalf, the defendant might have compelled. It was in fact irregular, and, because irregular, illegal, action. Good conscience does not demand that the apparent evidence which the township board was bound to furnish to defendant, and which it did furnish him, should be, because of the fault of the board, surrendered and canceled.

The decree should be reversed, and one entered dismissing the bill.

Steere and Brooke, JJ., concurred with Ostrander, J.


author: Ostrander, J.

text:
    HORNER v. KNIGHTS OF COLUMBUS BUILDING CO.
    Equity — Dismissal of Bill After Issue Joined — Pleadings.
    The judicature act (Act No. 314, Pub. Acts 1915), chap. 14, § 4 (3 Comp. Laws 1915, § 12456), providing that objections to a bill of complaint theretofore raised by plea or demurrer may be raised by motion to dismiss saving always the right to object to the jurisdiction, does not contemplate that, issue having been joined, an interlocutory decree will be entered upon a motion thereafter made to dismiss the bill, and accordingly a motion to dismiss the bill after joining of issue, where a question of jurisdiction is not involved, is properly denied.
    Appeal from Kent; Brown, J.
    Submitted April 3, 1917.
    (Docket No. 19.)
    Decided September 27, 1917.
    Bill by Frank A. Horner against the Knights of Columbus Building Company and another to foreclose a mechanic’s lien. From an order overruling a motion-to dismiss, defendant Knights of Columbus Building Company appeals.
    Affirmed.

      Hatch, McAllister & Raymond (Charles E. Ward, of counsel), for plaintiff.

      Martin H. Carmody (Francis A. Stace, of counsel), for appellant.
   Ostrander, J.

A bill of complaint to foreclose an alleged mechanic’s lien was filed June 1, 1916, and a subpoena was issued and served upon the defendant named in the bill. The defendant, oh July 6, 1916, filed its answer and cross-bill. Plaintiff, on July 22, 1916, answered the cross-bill. The defendant thereafter, on July 28,1916, moved the court to' dismiss the bill founding the motion on the record on the affidavit of one of its counsel, and upon the contract out of which the alleged lien arose, a copy of which is set out with the said motion. The motion coming on to be heard, it was overruled; no reasons for decision being given. An appeal from this order was allowed.

Counsel have argued the case upon the merits — upon such merits as it is contended are disclosed by the pleadings. Counsel for plaintiff also questions the right of the defendant to raise, upon a motion to dismiss, the points which are relied upon to defeat the action. The practice pursued is defended by counsel for defendant upon the ground that it is permitted, if not required, by the judicature act (3 Comp. Laws 1915, § 12456). It is not pointed out that the judicature act has enlarged, or added to, the causes for which jurisdiction of the court may be questioned, or demurrers or dilatory pleas be interposed. The act has provided that objections to the bill of complaint heretofore raised by plea or by demurrer may be raised by motion to dismiss. Now, as formerly, the object of attack is, in a case like this one, the bill — the pleading. The act contemplates that if the attack upon it is successful the bill may be amended; if unsuccessful, defendant may still answer it. The order which the court may make in the premises contemplated by the act will be, usually, interlocutory in form. It may be, of course, if jurisdiction is denied — a final decree. But. saving alwnys the right to object to the jurisdiction of the court, the act does not contemplate that, issue having been joined, an interlocutory decree, will be entered upon a motion thereafter made to dismiss the bill. A decree, with or without the introduction of testimony, is demanded by the pleadings; but it is a final decree. The court should not have entertained the motion to dismiss, and I assume would not have done so, had proper objection been made. The order allowing an appeal should have been refused.

The order denying the motion to dismiss is affirmed, with costs to plaintiff, appellee.

Kuhn, C. J., and Stone, Bird, Muore, Steere, Brooke, and Fellows, JJ., concurred.