author: Grant, J.

text:
    SEARS v. WEGNER.
    1. Fraud — Deceit —Inducing Entry Into Marriage Relation.
    An action for fraud and deceit lies for fraudulently inducing a woman to enter into the marriage relation.
    3. Same — Pleading—Declaration—Sueeicienoy.
    A declaration alleging that defendant told plaintiff he had been once married, but that the marriage was void and formed no legal impediment to their marriage, and by such representations induced her to enter into a secret marriage with him by mutual promises, promising to have a public ceremony performed as soon as he should have the former marriage set aside, which he failed to do, and afterwards deserted her and her children, the offspring of the relation, and after procuring a divorce from his former wife married another, the former marriage being in fact a legal marriage, states a cause of action, though unless the allegation of plaintiff’s belief in the invalidity of the first marriage is made out plaintiff cannot recover.
    Error to Wayne; Hosmer, J.
    Submitted October 24, 1907.
    (Docket No. 128.)
    Decided December 10, 1907.
    Case by Minnie Sears against Frederick A. Wegner for fraud and deceit. There was an order sustaining a demurrer to the declaration, and plaintiff brings error.
    Reversed.

      Van Zile & Brownson, for appellant.

      Dwight O. Bexford, for appellee.
    The court sustained a demurrer to the declaration. The substance of the declaration is as follows:
    On December 34, 1897, plaintiff was an unmarried woman living in Adrian, engaged in school teaching at Lenawee Junction, near the city of Adrian. She met and became acquainted with defendant; that defendant, at that time fraudulently and maliciously intending to damage and ruin the plaintiff and bring upon her the pain and suffering of mind and body as well as loss of service and money set out in the declaration, with malicious and fraudulent intent, commenced to pay his attentions to the plaintiff, to become a suitor and endeavored to win her affections,, by his regular calls, by protestations of love, and made urgent suit that she should marry him and- become his wife. Plaintiff relied upon his representations, believing that he did love her with an ardent, unselfish love. Defendant, pressing his suit, fraudulently and maliciously represented and stated the facts to be that, whereas, he was married, he had not lived with his wife for 10 years; that the marriage was not a valid marriage, but was void; that he could have it. set aside at any time, and if she accepted him he would institute proceedings at once, and offered to take plaintiff to his alleged wife and prove that their marriage was void, and could be set aside. The plaintiff believed that his marriage was void and acceded to his importunities.
    Defendant, having thus won her confidence and affection, to further carry out his wicked and fraudulent scheme, induced her to go with him to Sandusky, in the State of Ohio, where, on to wit, June 18, 1898, he induced her to enter into formal exchange of promises which he represented would constitute and stand as a marriage between the parties until the void marriage was set aside, when he would have a formal public marriage with plaintiff solemnized. Carrying this out, he induced her to join hands with him and they then exchanged vows, he by words of pledge saying, speaking her name,' “Minnie Sears, I take you to be my true and wedded wife, promising to live with and protect you and to be unto you a devoted husband as long as I shall live.” And plaintiff repeated a like pledge to be his true §,nd wedded wife as long as she should live. At this time defendant promised that not later than the following December he would have the marriage he represented to be void set aside and a public ceremony of marriage performed. The defendant insisted and urged that after this ceremony and pledges exchanged between themselves, they were, in fact, married, and from that time their lives would be one, — and importuned plaintiff because of this to enter upon living together as husband and wife, and urged and importuned her to have sexual intercourse with him. Believing his representations and relying upon his promises, and because of the pledges exchanged, she acceded to his importunities and then and there permitted the defendant to have sexual intercourse with her. Because of this they commenced to live together as husband and wife, and continued to so live until defendant deserted her the latter part of 1904, seven years thereafter.
    Upon this plaintiff charges that the defendant seduced her and continued to debauch her and have intercourse with her. Defendant induced her to go with him and live with him as his wife in various cities and towns in Michigan, Wisconsin, Illinois, and Ontario, registering their names at hotels as husband and wife, and introducing her as his wife.
    By means of these fraudulent and false representations aforesaid, and which were relied upon by the plaintiff, the defendant induced the plaintiff to conceive and bear for him three children, offspring of the seduction, sexual intercourse, and relations aforesaid. Plaintiff bearing and enduring intense sickness and great pain of body and mind in her pregnancy and delivery of said children, born April 15, 1899, October 22, 1900, and December 12, 1903. Plaintiff, during all the time, often urged him to carry out his promise and have the void marriage set aside and have a public ceremony of marriage with her, and he as often promised, but excused the delay, saying he was not in position to carry out the possible order of the court, referring to the money it might cost him.
    The plaintiff believed and relied upon the false and fraudulent representations of the defendant and his pledges and importunities, and at divers times and places during the existence of their said relations, at the request of the defendant, furnished him money to pay his expenses, to wit, the sum of $500, and to wit, from the 18th day of June, 1898, to the 28th day of November, 1905, and during all the time between said dates, at his request, and because of the false representations, she rendered him her constant services in taking care of his household and in bearing, caring for and supporting his children; that the value of such service is $10,000; that his representations and protestations were false, fraudulent, and malicious, to the knowledge of the defendant; that they were made and persisted in with the design and intent upon his part to carry out his wicked and nefarious scheme to seduce and debauch the plaintiff to cause her to believe that she was really then his wife; that he might continue to debauch her and have sexual intercourse with her and cause her to bear children and to expend her time and services in caring for defendant’s house, in bringing up and supporting his children, and from time to time, at his request, furnishing him money. That the plaintiff fully believed all of his promises, representations, and protestations to be true, and because of her reliance thereon was induced to keep and perform each and all of the promises and pledges made by her and to do and perform the several acts complained of, and the defendant well knew this; that the defendant has utterly refused and neglected to carry out or keep his promises and obligations; that he procured a divorce from his former wife living in Three Rivers, in the city of Chicago in September, 1904; that, disregarding his promises to plaintiff, he neglected to have a public ceremony performed between himself and plaintiff, but married another woman, one Mary E. Emmons, and utterly deserted the plaintiff and the three children, and now refuses to furnish the plaintiff any means of support for herself and her three children, and has left her and the three children destitute and without the, necessities of life; that the three children are of such tender age that the plaintiff, their mother, is obliged to give all of her time to them, and that she has not sufficient time to earn her own or their support; that it will be a period of 10 years before she will have such time. The names of the children are: Frederick A. Wegner, Jr., 6 years old, named by the defendant for himself, Dora E. Wegner, 5. years old, named by the defendant for a favorite sister of defendant, then dead, Brandon D. Wegner, 2 years old.
    She alleges damages because of being brought into public disgrace and humiliation among her relatives, friends, and neighbors, by reason of great mental suffering and anxiety, by reason of being deserted entirely unprovided for, because of great bodily pain and suffering in bearing three children, by reason of defendant fraudulently obtaining her services rendered defendant for more than seven years, for money furnished defendant, because of future burdens put upon her by reason of caring for the children and by reason of future mental suffering and disgrace among her friends.
   Grant, J.

( after stating the facts). The court sustained the demurrer, holding that “the declaration is in its essence for breach of promise to marry, or seduction, or both,” and that the contract to marry was void as against public policy. The learned circuit judge in his opinion said:

“It would seem that the plaintiff must have understood that the former marriage was not so void as to authorize the defendant to enter into a new contract to marry.”

Even if the declaration were based upon breach of promise to marry, there is high authority for holding that it does not lie in the defendant’s mouth to plead his inability as a defense, provided the plaintiff was in ignorance of such inability. Kelley v. Riley, 106 Mass. 339. The court, however, was in error in holding the declaration to be one for seduction and breach of promise. It counted “tort-wise for fraud and deceit.” Such action lies for fraudulently inducing a woman to enter into the marriage relation. Blossom v. Barrett, 37 N. Y. 434; Morrill v. Palmer, 68 Vt. 1 (33 L. R. A. 411); Pollock v. Sullivan, 53 Vt. 507.

While it is true that the declaration admits that defendant informed plaintiff that he had once been married, it also alleges that he assured her that that marriage was void, and offered no obstacle to her marriage with him; that he offered to take her to the woman to whom he stated he had been married in order that plaintiff might ascertain from her the truth of defendant’s statement. The suspicions of a trusting woman might easily be allayed by this bold offer. In a similar case the plaintiff was informed by the defendant that he was divorced, and offered to take her to his mother to ascertain the truth of his assertion. He was not, in fact, divorced, and the court said that the very boldness and audacity of the offer would naturally disarm her suspicion. Morrill v. Palmer, supra.

If plaintiff entered into this relation with the defendant knowing that he was a married man, we may assume that plaintiff’s attorney was sufficiently versed in the law to know that she could not maintain an action either for breach of promise of marriage, or for fraud and deceit. Fairly construed, the declaration asserts that the plaintiff received the attentions of the defendant under his assertion that his former marriage was void, and that there was no legal impediment to his marriage with plaintiff; that she relied upon these representations, entered into the marriage relation with him, lived with him for years as his wife, and had three children by him; that she desired a public ceremony in accordance with the statute, and that he promised to have such ceremony performed, but put her off with promises. Under the allegations of the declaration it would be difficult to conceive of a more grievous wrong. His former marriage was valid, and he knew it. He kept up his relations with plaintiff until he tired of her, and thén obtained a divorce from his first wife, and sought the gratification of his lust by marrying another. If she sustains by proof the allegations of her declaration, she is entitled to recover. If she married him with knowledge that he was a married man, her action must fail.

Judgment reversed, and the case remanded for further proceedings in accordance with the rules and practice of. the court.

Blair, Montgomery, Ostrander, and Hooker, JJ.„ concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    DODGE v. MILLS.
    Executors — Action—Parties—Stockholder’s Bill.
    On a bill by a stockholder of a street railway company for an accounting and to secure his share of the earnings of the company and of the proceeds of a transfer of its assets in exchange for interests in other corporations and property, executors of one of the officers of the company, into whose hands a portion of the property involved has come by reason of the transfer of their testator’s interest in the company, are proper parties, by reason of the necessity of concluding the estate by the decree.
    Appeal from Ingham; Wiest, J.
    Submitted October 24,1907.
    (Docket No. 134.)
    Decided December 10, 1907.
    Bill by Frank L. Dodge against Myron W. Mills and David Mills, executors of the last will and testament of Nelson Mills, deceased, and others, for an accounting. From an order overruling the demurrer of defendant ex.ecutors, they appeal.
    Affirmed.

      Black & Beasoner (Bollin H. Person, of counsel), for complainant.

      Moore, Brown, Miller & Ladd, for defendants.
   Hooker, J.

The bill of complaint alleges: That the complainant was a stockholder, with others, including Nelson Mills, now deceased, and other of the defendants, in the Lansing & Suburban Traction Company, incorporated March 8, 1904, under the street-railway act. That a week later said Nelson Mills died, whereupon his sons, David Mills and Myron W. Mills, were appointed executors of his will, and have since managed his estate and interest in said corporation, and were elected and have since acted as directors thereof. . That at the organization of said company, Nelson Mills, Myron W. Mills, James R.. Elliott, and George G. Moore were all of the stockholders of the company, and they caused 9,000 of the 10,000 shares to be issued to themselves, and became and have since remained owners of nine-tenths of the stock of the company, and they elected themselves, and, with the exception of Nelson Mills, have remained directors and officers of the company. At that time the complainant became, and he still remains, owner of 100 shares of said stock of the par value of $10,000. That said company then owned a large and valuable railway property, consisting of seven miles of street railway in the city of Lansing, and railways and franchises to the Agricultural College and to St. Johns, and other property. That said property cost and was then worth $700,000 and upwards.

The bill states further, that said property was operated by the persons above named until April 10, 1906. That they dominated all meetings, and during that time made no report of its business or financial condition, but that during that time they made several valuable additions, viz., a line from said College to Pine Lake, where it purchased and partly developed a resort, a line to Waverly Park, where it made another resort, additions to the Lansing system within the city, etc. That soon after the organization, at which time said company had an indebtedness of only $300,000, being about one-third of the value of its assets, said officers and directors made and delivered a mortgage of its property, to secure bonds to be issued by said company for $750,000, and that during the year 1904 all of said bonds were delivered by them to another corporation styled the Nelson Mills Company,” organized about February 11, 1904, by Nelson Mills, Myron W. Mills, Barney Mills, James R. Elliott, and George G. Moore, who were its sole stockholders, and have so remained, with the exception of Nelson Mills, who died as aforesaid. The purpose of this company was to build and equip street railways, etc., and especially to handle and manipulate, in .their personal interests, the bonds and finances of the Lansing & Suburban Traction Company, then about to be formed. That it is now claimed by the defendants that said Nelson Mills Company hypothecated or pledged said bonds to the Knickerbocker Trust Company of New York, 'whereby it borrowed $600,000 in money and paid it to the Lansing & Suburban Traction Company, and that it used in part to pay its debt of $300,000 and in part to pay for additions and improvements as aforesaid.

The bill states, further, that about May 1, 1905, the defendants caused the Lansing & Suburban Traction Company to again mortgage its property to the Trust Company of America to secure bonds in the amount of $1,000,000 to be issued by said traction company. These bonds, to the amount of $1,000,000, were delivered to the Nelson Mills Company. That said company and other defendants claim that it paid to said traction company the sum of $800,000. That $600,000 of this was used to retire the former issue of bonds to the amount of $750,000, and to repay the sum of $600,000 borrowed upon them from the Knickerbocker Trust Company. Complainant’s bill charges that if this claim is true, said traction company received $500,000 or thereabouts more than enough to cancel its indebtedness, in addition to large earnings which have not been accounted for.

It is further stated that about March 31, 1906, a new corporation was formed called the “Michigan United Railway Company,” with an authorized capital of $5,000,000. None of defendants appeared as incorporators, but they were the real promoters, and it was their object to merge therein all of the properties of several railway companies, including that of the Lansing & Suburban Traction Company, in each of which defendants had a majority of the stock, to cut off the minority stockholders, or to force them to accept a nominal and inadequate consideration for their stock, and by manipulation of the stock and bonds of the new corporation make large profits for themselves. Soon after, the persons mentioned and one Tomlinson became the owners of a majority of the stock of said company. They caused a meeting of the stockholders of the Lansing & Suburban Traction Company to be held, at which on behalf of said Michigan United Railway Company, of which they were officers, they made an offer to purchase the assets, etc., of the Lansing & Suburban Traction Company and pay to the stockholders 10 per cent, of the par value of their stock, or to exchange with them an equal amount of common stock of said Michigan United Railway Company, both at par value, and, having the power as owners of a majority of the stock of both companies, they voted in favor of accepting said offer and declared the same carried, against the consent and protest of complainant. Thereupon all property was transferred accordingly.

The bill states that this was a fraud upon the rights of stockholders not consenting thereto. It is further alleged that, while said United Railway Company has received the property, it has never made or offered compensation of any kind to the Lansing & Suburban Traction Company for its property; that the scheme was conceived to defraud other stockholders of the Lansing & Suburban Traction Company. Subsequently the' Michigan United Railway Company, through its officers, the defendants, made a trust deed to secure its bonds in the sum of $7,500,000, covering all of its property, $3,400,000 of which was to be devoted to the payment of outstanding bonds of the several roads, $1,600,000 of which were devoted to the payment of $100,000 in bonds of the Lansing & Suburban Traction Company. That said sum was delivered to Myron W. Mills, the vice president of the Michigan United Railway Company, one of these defendants. That bonds amounting to $1,040,000 were turned over to the Nelson Mills Company, the holders of said former bonds, sufficient to pay said bonds, and all debts of the traction company and a large dividend to some of the defendants, in their own rights and as executors of said Nelson Mills’ estate, and that $240,000 or more was so distributed, and that it is the intention to distribute to said persons the further sum of $560,000. It also claims that $1,000,000 of the preferred stock of the Michigan United Railway Company has been issued to said parties, and that the same should be accounted for. There are other allegations that need not be mentioned further than to say that it is charged that large sums belonging to the Lansing & Suburban Traction Company are included in the property held by the Michigan United Railway Company, the Nelson Mills Company, the executors of the estate of Nelson Mills, deceased, and the individual defendants.

The bill prays an accounting and a decree for the value of complainant’s stock, with interest, and his proportionate share of all profits. The executors demurred to the bill, upon several grounds, only two of which appear to be relied upon, viz.:

, “(3) The said bill of complaint contains no matter of equity wherein this court can grant any decree or give the complainant any relief or assistance as against these defendants.
“ (4) That it appears by the complainant’s said bill that there is no privity between the said complainant and these defendants to enable the complainant to call on these defendants for an accounting respecting any of the matters set forth and relied on in said bill of complaint.”

The bill shows that the fund which it alleges to have come to the possession of the executors arises from the transfer by them of decedent’s interest in the Lansing & Suburban Traction Company in exchange fcdr interests in other corporations and property, under circumstances which at least show a reasonable ground for a claim of right to the fund by those interested in the estate. These persons could not be concluded by any decree, in proceedings to which the estate is not a party, either as against the complainant or the executors, whose duty it is to defend the estate’s interests in the property. This property ias been received by them, lawfully, in their representative capacity, and, as said in De Valengin’s Adm’r v. Duffy, 14 Pet. (U. S.) 290:

“ Whatever property or money is lawfully recovered or received by the executor or administrator aftér the death of his testator or intestate, in virtue of his representative character, he holds as assets of the estate; and he is liable therefor in such representative character to the party who has a good title thereto ” — at least to the cestui que trust.

This being so, the complainants were justified in making the estate a party, through its executors, that the decree when rendered should be final and conclusive upon all interests, if for no other reason. This is not an action to recover damages for a tort, but an effort to follow a fund, under circumstances which show that it is held by executors under a claim of right, as property belonging to an estate, which claim they not only may assert, but which those interested in the final distribution of the estate have a right to require them to assert and defend. This appearing on the face of the bill makes them proper parties in their representative capacity, while the personal interest which they are shown to have makes them proper parties in their own right. ■

The decree is affirmed.

Grant, Blair, Montgomery, and Moore, JJ., concurred.


author: Blair, J.

text:
    MORLAN v. VILLAGE OF MARCELLUS.

    Municipal Corporations — Claims—Presentation to Council — Verification — Waiver.
    Failure of a claimant to verify a claim presented to the common council of a village (section 2754, 1 Comp. Laws) is waived by the council appointing an investigating committee and receiving and acting upon its report without raising the question of verification.
    Error to Cass; Des Voignes, J.
    Submitted October 25, 1907.
    (Docket No. 139.)
    Decided December 10, 1907.
    Case by M. Jay Morían against the village of Marcellus for personal and other injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Otis Huff and Smith & Lyle, for appellant.

      Walter O. Jones and Marshall L. Howell, for appellee.

       Rehearing denied January 6, 1908.

   Blair, J.

This action was brought to recover damages for injuries received on the night of July 21, 1906, alleged to have occurred through the negligence of defendant in leaving certain obstructions in one of the public streets of defendant village. The principal question in the case arises upon the ruling of the court that there was no evidence tending to show a waiver of the provisions of section 2754, 1 Comp. Laws, requiring a verification of plaintiff’s claim. In consequence of this ruling, the court directed a verdict for defendant and plaintiff brings the record to this court for review. Plaintiff filed with the common council three several notices or claims, at the dates therein indicated, as follows:

“To the President and Common Council of the Tillage of Marcellus, Michigan.
Gentlemen: You will please take notice that I intend to hold the said village of Marcellus liable for personal injuries, and for damage and loss of property, sustained Saturday evening, July 21st, 1906, in one of the public streets in said village, to wit: in Main street near the New Baptist Church building. Said injuries and damage being sustained on the account of a large amount of timber, rubbish, boards, brick and other obstructions being placed and left in the said street by the said village, or left there through their knowledge, and with their consent, making the said street unsafe for travel and dangerous, all of which the said village had knowledge of, and there being no lights or danger signals at the said place, contrary to the village ordinance.
“Dated, Marcellus, Mich., July 24th, 1906.
“Jay Morlan,
“By Otis Huff, his Attorney.”
“ State of Michigan, County of Cass,
“Tillage of Marcellus.
“ To the President and Common Council of the said Tillage of Marcellus, Michigan.
Gentlemen: You will please take notice that on Saturday evening, July 21st, 1906, while driving in, on and over one of the public streets in the said village of Marcellus, to wit: on Main street near the new Baptist Church building, without any fault or negligence on my part, but through the negligence and fault of the said village, I sustained injury, loss of property and damage to personal property belonging to me.
“At this time I cannot exactly estimate and itémize said loss, but in a general way the said damage and loss consist of serious damage to my driving team. Said team consisted of two valuable driving horses, one of said horses being seriously injured and may die as a result of said injury. Said loss and damage also consisted of destruction to the harnesses on said horses, loss and damage to my buggy, injury to myself and loss and damage of other personal property than herein enumerated.
“You will please take notice that said injury received and said damage and destruction to my property was sustained by my team and buggy coming in contact, without any fault on my part, with certain encroachments and obstructions in the traveled portion of said Main street, to wit: a large amount of timber, boards, plank, rubbish, stone, bricks, logs, poles and other obstructions and encroachments in the said street, placed there by and with the consent of said village, and through the knowledge and. with the consent of the president and common council and street commissioner and other officers of the said village, making the said street unsafe and dangerous to the public, all of which the said village had knowledge of.
“Said street was particularly dangerous on the night in question due to the fact, to the best of my knowledge and belief, that there were no danger signals or lights guarding the said dangerous place in the said street.
“For the said injury, loss and destruction of property sustained by me through the fault and negligence of the said village, you will please take notice that in accordance with my notice of July 24th, 1906, I claim damage against the said village, to wit: to the sum of one thous- and dollars.
“ If the said claim is not settled on or before August 18th, 1906, I shall bring suit in the circuit court for the county of Cass to recover the said amount.
“Dated, August 14th, 1906.
“ M. J. Morlan,
“ Otis Huff, Attorney for Plaintiff.”
“ State of Michigan, County of Cass,
Village of Marcellus.
“Village of Marcellus
To M. J. Morlan Dr.
To injury and damage to horse_________________ $100 00
To injury and damage to other horse........... 25 00
To destruction of harnesses................ 35 00
To livery expense to catch team, chasing team, expense of staying in town, etc............... 10 00
To destruction of whip...................... 1 00
To loss of time and loss of use of team......... 25 00
To damage to buggy.....-.................... 15 00
To veterinary expense, treating horse, etc...... 10 00
To other damage not specifically stated........ 10 00
To personal injury and other damages ......— 769 00
To R. D. Bailey taking views of 'obstructions in street which caused said damage and injury, no charges..........-.......................
“Total...............................$1,000 00
‘ You will please take notice that I claim said damage in conformity with my notice which I served August 14th, 1906, in which I then claimed as I do now that said damage and loss of property resulted through the negligence of the said village. You will please take further notice that I reserve the right to add to said amount, if the damage to the said team should prove greater than herein claimed.
“Dated, August 28, 1906.
“M. J. Morlan,
“ By Otis Huff, his Attorney.”

The record of the meeting of the common council held on the 24th of July, 1906, showed the following:

“Jay Morlan, through his attorney, Otis Huff, served notice upon the village council for injuries, damage and loss of property sustained by him in the village Saturday evening, July 21st, 1906, on Main street near the new Baptist Church. The president appointed trustees Long and Bailey as a committee to meet Mr. Morlan and confer with him in regard to the matter.
“C. E. Davis, President.
“Will M. Beadle, Clerk.”

At a meeting of the common council held September 4th, 1906, its records show that the following took place:

“Meeting, Sept. 4th, 1906.
Moved by Hoover, supported by Speigelmeyer, that the report of the special committee on the Morlan case be accepted and committee discharged. Motion carried.
“Moved by Hoover, supported by Speigelmeyer, that the president and clerk be authorized to settle with Mr. Morlan according to the committee’s report, if possible. Motion carried.
“Report of committee on Morlan case.
“Your committee to whom was referred the claims of Jay Morlan for damages against the village would respectfully report: We drove to his farm where we saw the horse that was injured. It was a good driving horse, worth before the accident about $175. It had sustained a wound in the breast, at that time nearly healed. Mr. Morlan claimed that it had been injured in the hip, but the horse was active on its feet and showed little or no signs of serious injury. Mr. Morlan stated to us that the other horse sustained no injury whatever and we did not see it. The harness worn by one of the horses was in Mr. Morlan’s barn and was badly torn to pieces. We saw the other half of the harness and the buggy at the livery barn in Marcellus.
‘ ‘ That part of the harness at the livery barn was not greatly injured and could have been repaired without much expense. The harness did not appear to have had good care before the accident, and was far from being a new harness. The buggy was an old affair, worn out, and of little value before the accident, and $3 would, we believe, fully cover the damage to the buggy. It appeared to us that $50 would cover the entire loss sustained by Mr. Morían.
“ We have consulted three good judges of the value of such property who have seen the rig since the accident. One placed the damage, including loss of the use of the horse, veterinary service, livery rig, etc., at $40 to $65, said it might possibly run to $75 at. the outside period. Reports made to the board by two gentlemen from Volinia township, who investigated the damage yesterday, were to the effect that when they first saw the horse, he was running in the pasture and no injury was then noticeable to the hip, and the wound in the breast had entirely healed, but that in standing still, he favored one hip and there was an injury to it, that might or might not be serious, only actual hard work would prove as to whether the horse was permanently injured or not. The gentlemen reported that in view of the possibility of the horse being permanently injured, the expense of veterinary services and the other actual damages, they would place Mr. Morlan’s total damages at $100.
“Your committee further finds that Mr. Morían had repeatedly driven by the building material in the street and had passed it by daylight the same evening and knew fully the condition of the street, which was not dangerous to a man driving with ordinary care; that he remained at the Power House with two women until after the street lights had been extinguished, after 11 o’clock, after which the three started to drive west from the livery stable on Main street and, leaving the beaten track, ran over the sills at the south side of the road.
“Under no circumstances can Mr. Morían legally recover from the village more than actual damages he sustained; knowing that the building material was there, the law makes it obligatory for any one to take extra precautions on that account; not doing so, makes it contributory negligence on his part, and he, therefore, could not recover any damages whatever. We believe the accident was entirely due to such negligence on the part of Mr. Morlan, and while we do not believe the village liable for damages, we would recommend, without prejudice of the case of the village if it goes into the courts, that we tender the claimant the sum of $100, for which he is to give the village receipt in full for all claims, and shall not now nor hereafter bring any suit, or make any further claim for damages on this account. This amount, $100, is the highest estimate of the actual damages sustained as made by any one of the five who have estimated the same at the solicitation of the village; and in proffering Mr. Morlan this sum in settlement, we do so to buy peace and avoid the expense of suits at law, even though we believe the same unjust and that the village is neither morally nor legally responsible for any damages whatever in the case.
(Signed) “Charles C. Long, “Arthur E. Bailey.
“Dr. Davis, as village president, tendered Mr. Morlan, through his attorney, the sum of $100, which was declined.
“ C. E. Davis, President.
“ Will M. Beadle, Clerk.”

The trial judge ruled that the facts of this case distinguished it from the case of Hunter v. Village of Durand, 137 Mich. 53. In this ruling we think the circuit judge was in error and that the case falls within the principle of and is ruled by that case. It seems clear from the record that, except for his erroneous view as to the question of waiver, the judge would have permitted amendments to obviate the objection of variance and would have permitted the case to go to the jury. We, therefore, do not consider the questions raised as to variance, since they are not likely to occur upon another trial.

Judgment reversed, and a new trial granted.

Grant, Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    VINCENT v. CLEMENTS.
    1. Master and Servant — Personal Injuries — Appliances and Places to Work — Duty of Master.
    • The duty to furnish a reasonably safe steam boiler in the first instance, involving the necessary inspection for that purpose, is a primary duty of employers, which cannot ordinarily be delegated so as to escape liability.
    2. Same — Inspection—Plaintiff as Inspector.
    Where defendant employed an engineer, licensed under municipal authority as required by ordinance, who was present during the installation of a steam boiler and inspected the same during its installation, and assisted the public inspector at the original and successive inspections, defendant is not liable for the death of such engineer caused by the bursting of the mudpipe elbow of the boiler, owing either to an original defect or to corrosion, either of which would have been disclosed by proper inspection, defendant having no notice of any incompetency in deceased necessitating further inspection of the boiler for his protection.
    Error to Wayne; Hosmer, J.
    Submitted November 12, 1907.
    (Docket No. 153.)
    Decided December 10, 1907.
    Case by Nettie Vincent, administratrix of the estate of George Vincent, deceased, against Charles H. Clements and Edwin W. Smith, copartners as Clements & Smith, and Edwin F. Webster, Edward M. Harrigan, and William H. Reid, copartners as Webster, Harrigan & Reid, for negligently causing the death of plaintiff’s intestate. There was judgment for plaintiff as against defendants Clements and Smith, and they bring error.
    Reversed.

      Clark, Jones & Bryant, for appellants.

      Dohany & Dohany, for appellee.
   Blair, J.

Plaintiff prosecutes this action as administratrix of her husband’s estate to recover damages for his death, alleged to have been caused .by the negligence of the defendants in failing to perform their duty—

“ To furnish him a reasonably safe place in which to work; also to furnish him a boiler and engine reasonably safe and complete in all its parts, fixtures and appurtenances and especially with a proper, suitable and perfect elbow of the mudpipe used in connection with the boiler and engine; and to so construct, maintain and place said boiler and engine and all parts, fixtures and appurtenances and especially said elbow of said mud-pipe in such a manner that the same would be properly and readily inspected by the proper officers or others having occasion or owing the duty to inspect the same,” etc.

The boiler in question was installed by a reputable firm, under written contract with defendants Clements and Smith, who were tjhe proprietors of the Metropole Hotel in Detroit, for use therein. The contract was dated January 4, 1901, and the work of installation was begun thereunder two or three days later. Plaintiff’s intestate, George Vincent, a licensed, first-class engineer, was employed by defendants Clements and Smith to take charge of their engine room and boilers on January 9th. He was present, in the room, during practically the entire work of placing the boiler and attachments, had an opportunity to see what was done, to inspect the work and attachments, if he desired to, and did occasionally assist the contractors’ workmen and make ocular inspections. Vincent continued in the employ of defendants from Jan-. uary 9, 1901, till the day of his death, January 29, 1904, except from September 20, 1901, to May 5,1902, when he was elsewhere employed. The boiler which had been used prior to installing the new boiler “was left there. It was left there as an auxiliary boiler to relieve the new boiler when it was necessary to clean it and repair it and so forth.” At the time this boiler was installed, a city ordinance provided for the appointment of an inspector, who was required to be—

“A man of skill and of at least ten years’ experience in the operation of steam boilers, whose knowledge of the construction and operation of steam boilers will enable him to determine the requirements of safety to' life and property under all the varying conditions under which they are operated, and enable him to intelligently fulfill the duties of his position. * * *
“The inspector may appoint, subject to the approval of the common council, two assistant inspectors, who shall have at least five years’ experience in the operation of steam boilers, competent to fulfill every requirement of this ordinance, and to exact proper compliance on the part of all persons interested.”

Among the provisions of the ordinance are the following:

“Sec. 9. Every new boiler shall be inspected and approved in writing by the inspector before being put in use. * * *
‘‘Sec. 11. Inspection of every boiler in the city of Detroit must be made at least once a year, excepting boilers in private residences. * * * A complete record of each inspection shall be kept in books of record provided for the purpose, giving in detail the result of the inspection, including the kind of boilers, and kind and quantity of material, thickness of plates, dimensions of the boiler, particulars as to riveting, including size and space of the rivets, whether they are single, double or triple riveted, results of calculations made by the inspector as to the pressure allowable, condition of the setting, feed water apparatus, safety valves, safety water column and other equipment, age of the boiler, date of inspection, and any other particulars that the inspector may deem pertinent. A manifold copy of this record shall be supplied with the certificate of inspection. * * *
“Sec. 14. All appliances provided for by this ordinance shall be kept in proper working order, and it shall be regarded as a misdemeanor for any owner, user or engineer to operate any boiler for a period not exceeding two weeks with any such appliance inoperative or out of repair. Such misdemeanor shall be punishable by a fine not exceeding one hundred dollars ($100), or imprisonment in the Detroit house of correction for a period not exceeding three months, or both, at the discretion of the court.
“ Sec. 18. No person shall have charge of or operate a steam boiler in the city of Detroit without a license. Whenever any person claiming to be qualified to operate a boiler shall apply in writing, on blanks provided for the purpose, for a license, the inspector shall examine him and consider the proof offered in support of his claims, and if, after full and careful examination, the inspector is satisfied that his knowledge and experience render him competent to handle boilers with safety to life and property, and that his character and habits are such as to cause the belief that he is a safe person to be entrusted with the responsibilities of such a position, he shall issue a license certificate to the effect, designating the class in which he is authorized to operate. * * * There shall be three grades of engineers’ licenses. First class shall be unlimited as to the number of boilers and pressure, and shall be granted to any citizen having five years’ experience in the care of steam boilers, providing he can pass a satisfactory examination. * * * Incompetency, intemperance, inattention to the duties of his position, absence from his post of duties without providing a competent substitute, failure to keep the boilers and all their equipment in his charge in good repair and proper working order, shall be regarded as sufficient cause for the withholding or revoking a license by the inspector.
“ Sec. 21. If any person shall, on or after 30 days subsequent to the passing of this ordinance, operate any steam boiler in the city of Detroit without having complied with the requirements of this ordinance, or shall keep in use any boiler after receiving notice from the inspector that it is unsafe at greater pressure than the inspector may stipulate, or shall operate any boiler at a greater pressure than authorized, or shall employ any person without a license to operate any boiler within the city of Detroit, he or they shall be deemed guilty of a misdemeanor, and, upon conviction, shall be sentenced to pay a finé not exceeding $1,000 and to undergo imprisonment in the Detroit house of correction for a term not exceeding six months, and any person so offending shall be liable for all damages resulting directly or indirectly from such acts.
“Sec. 23. In making inspections the inspector shall apply the hammer test, and also, when deemed necessary by said inspector, of the hydrostatic pressure in the relation of 150 pounds to 100 pounds, as the working power allowed such steam boilers.”

As shown by the inspection reports, copies of which were delivered to defendants, the boiler in question was inspected by assistant inspectors in February and April, 1901, and the condition of the boilers certified to be good, but it does not appear that the hammer test was used, as required by the ordinance, nor does it expressly appear that any inspection was made of the mudpipe elbow. The boiler was again inspected in February and April, 1902, during the interval when another engineer was in charge, and the condition of the boilers reported as good. On this occasion, the hammer test was used, but it does not appear specifically that there was any test of the mudpipe elbow. The boiler was also inspected in February,. 1903, and the hammer test applied, but with no specific reference in the report to the mudpipe elbow. The boiler in question was designed for a mudpipe underneath, and about four feet from, the back connected with the boiler by a flange and elbow called a mud elbow.

“A mudpipe on a boiler is usually used for two purposes. One is to answer the part of a feed pipe to supply the boiler with water through the mudpipe, and another is a settling basin for the mud in the boiler and when we clean out the boiler to wash it out.”

On January 24, 1904, while the engineer was in the performance of his duties, the mud elbow burst and the consequent escaping steam so injured him that he died during the day. The evidence in behalf of the plaintiff tended to show that the mud elbow was unsafe and defective when connected with the boiler by the contractors; that its unsafe condition would have been discovered if the “hammer test,” so called, had been employed by a competent inspector; that any other of the usual tests would not have been likely to disclose the particular defect which caused the explosion. Plaintiff’s expert testified:

“ Q. While this elbow was attached to the mudpipe and in regular service underneath the boiler, could the ordinary stationary engineer have ascertained the defective condition of this mud arm or elbow by means of what is known as the hammer test ?
‘A. The ordinary engineers as we have them, I think not.
“Q. As I understand you, the ear must be trained to the sound, is that the idea ?
“A. Why it is necessary that it should be. If the ordinary engineer knew that that was defective and would go there to find the defect with the hammer, he could do it if he knew it. The average engineer’s inspection of a boiler is a very crude affair.
“Q. Could you yourself have detected the defective condition of that elbow before it burst by means of the hammer test ?
“A. Yes, sir.
“Q. While in service under the boiler ?
“A. Yes, sir.
“Q. Could any inspector of trained ear have detected it?
“A. Yes, I think he could. * * *
“Q. It would take an ear especially trained for that purpose to detect the defect ?
“A. It usually takes, yes, sir, a man accustomed to sound and sense of feel. * * *
“Q. Now, do you say it was customary before putting in any fitting of that kind to test it with the hammer test?
“A. It is.”

Defendants’ evidence tended to show that the bursting of the mud elbow was due to corrosion of the metal after it was in place and not to an original defect; that Vincent represented the defendants, Clements and Smith, and that they relied upon him to see that they got what their contract called for. The chief deputy boiler inspector for the city of Detroit testified, on behalf of defendants, that he made the inspection of the boiler in 1903 :

“ The date of the inspection was February 27, 1903.
“Q. And what kind of an inspection did you make that time ?
“A. Well, we made a hammer test?
“Q. Did you inspect the mud pipe and mud drum?
“A. Yes, sir. We got in through the door. There was a door — an opening with an iron door on it on the side. "We inspected the boiler, the external parts and the internal parts. We inspected the mudpipe and elbow, examined it all around. We applied the hammer test to it.
11Q. You, as boiler inspector, know what a thorough test is, do you not ?
“A. Yes, sir.
“Q. State whether or not you made a thorough test.
iiA. No; there was a part of the mudpipe we couldn’t get at correctly.
“Q. What part of it ?
“A. Part of the elbow and the forward part of the pipe.
“Q. Why not? '* * *
“A. There was a brick wall built in front of it to protect it from the gases and the hot and cold air going through there, and the wall is built so a man could not get around that boiler or around the mudpipe, I should say — one side of it you can get at and the other side you could not. * * * I certainly gave it a hammer test in 1903, but about the wall, I can’t tell. They might have had a new wall — the old one got tore out. I don’t know what they had there, whether they tore it out or not. I didn’t make a hammer test on the mudpipe in 1903. I made a hammer test on the mudpipe in 1903, as far as I could get to it, that is right.
Q. Just a part of it ?
“A. That is right.
“Q. And you so notified Clements & Smith in your notice, did you ?
“A. I did not.
“Q. Well you turned in a report of that kind?
“A. I turned in a report, yes, sir.
“Q. And that report was that you tested only a portion of the elbow ?
“A. Yes, sir.
“Q. Now, as a matter of fact, you never made any complete test of this elbow from the time it was installed, up until the time it blew up, did you ?
“A. Not a complete, no, sir.
“Q. And you so reported to your boiler inspector ?
iCA. So reported.
“Q. That is to the chief boiler inspector ?
“A, To the chief boiler inspector. * * * In 1903 I could not get at the mudpipe all around, but a written report — I don’t think I put in a book about that, but I let the chief engineer — the chief boiler inspector — know about it.”

At the close of plaintiff’s testimony and again at the conclusion of the testimony, defendants’ counsel moved the court to direct a verdict for defendants. The court refused to direct a verdict for defendants and charged the jury, among other things, as follows:

“I think there has been evidence offered to you from the witness stand from which you may determine that the proximate cause of this accident is either one of two things — the insufficiency of the elbow in question by reason of the core having slipped in the casting, or, on the other hand, gentlemen of the jury, the weakening of that elbow by reason of the rust. Now it is for you to say in this case, what was the cause of it, was it from the insufficiency of this elbow from the slipping of the core in the casting, or was it, on the other hand, gentlemen of the jury, from the action of the heat and the elements upon the elbow after it was put in ? * * *
“Now, you have heard the testimony in this case as to the employment of Mr. Vincent, and the question for your determination in this case is, for what was he employed at the time of the installation of this new boiler and the appliances and the attachments ? If you believe in this case, gentlemen of the jury, that his employment at that time was simply and solely as an engineer, and that he did not at that time undertake the inspection of this machine, then I say to you, if you believe that there was negligence in the putting in of this elbow, and that the weakness — inherent weakness in the elbow, which should have been discovered on a proper inspection, was the proximate cause of this injury, then under those circumstances the plaintiff would be entitled to recover such damages as you will find have been sustained by reason of the death of Mr. Vincent.
“Now, what was Mr. Vincent’s position there? Was he inspecting that job ? Because if he was, gentlemen of the jury, and if he assumed, whether he was competent or not — if he assumed to perform that labor, then under those circumstances I do not think there can be a recovery in the case, and charge you that if you should find that he was acting as the inspector of that, for Clements & Smith, then, gentlemen of the jury, he cannot recover. * sK *
“After it was once installed, whatever his duties may have been before, it is unquestionably his duty to make a sufficient inspection of the appliances to the boiler if it was reasonably fit in the first instance, then his duties as an engineer would require him to make an inspection of that engine — of the boiler and its appliances, and if, as I say, time and the elements has destroyed that which was reasonably fit in the first instance, then it is not the fault of the defendants in this case, because it became his duty, as a user of this machinery, to make the proper inspection, and if he himself, gentlemen of the jury, felt that he was not competent to make suchinspection, if you shouldfind it was reasonably proper in the first instance, it became his duty to so inform Messrs.- Clements & Smith, and get a man who could properly inspect it. * * *
“Mr. Clark: I think, if the court please, you should charge the jury that even if they should find that the elbow was defective originally and that the elements and the rust and corrosion contributed to that injury, that he could not recover, because manifestly, it was his duty to examine it afterwards and if the rust and corrosion contributed to it, why,—
The Court: Well, I will say this, gentlemen, in that regard: Where there are contributing causes — where there is an intervening cause in this regard, if the intervening cause in general is an innocent cause, it is referable to the first; if it is not, why, of course, then it is referable to the second. In other words, gentlemen of the jury, if you find that time and the elements had a tendency to weaken that thing, then it becomes your duty to determine whether Mr. Vincent made a proper inspection or not, because if he was guilty of negligence and could have discovered this matter — should have discovered this matter, gentlemen of the jury, as an engineer — in other words, if he contributed by any negligence of his own to the matter, then, of course, gentlemen, there can be no recovery.”

The jury rendered a verdict in favor of plaintiff, and defendants bring the record to this court for review. The points presented for our consideration by the brief of counsel for appellants are:

1. Thai; the court erred in refusing to direct a verdict for defendants.

2. That the court erred in submitting to the jury for their determination whether Mr. Vincent represented defendants for the purpose of inspecting the boiler and attachments as they were being installed.

3. That the court erred in refusing to give defendants’ 5th request, which was as follows:

“5. If you find that the explosion occurred by reason of the fact that the mudpipe was originally defective and also because it had been subjected to external corrosion, that is to say, if both causes contributed to tho injury, then I charge you that your verdict in this case must he for the defendants.”

We are of the opinion that the circuit court erred in refusing to direct a verdict for defendants. It is established by the decisions of this court, as contended by plaintiff’s counsel, that the duty to furnish a reasonably safe boiler in the first instance, involving the necessary inspections for that purpose, is a primary duty of the employers, which cannot ordinarily be delegated so as to escape liability. Morton v. Railroad Co., 81 Mich. 423; McLean v. Railroad Co., 137 Mich. 482; Livingway v. Railway Co., 145 Mich. 86.

This primary duty is modified, however, in the case before us by the requirements of the ordinance, the character of the services to be rendered by the engineer and the duties owing by him to the defendants. The defendants were not at liberty to commit to whomsoever they pleased the care and operation of their boiler but were limited in their choice to those whose qualifications for the position had been determined by the official boiler inspector of the city and who held his license certifying that they were “competent to handle boilers with safety to life and property.” Mr. Vincent held such a licence as an engineer of the highest grade, and the defendants had a right to rely-upon his possession of the qualifications of' such an engineer. Among such qualifications were clearly the ability to determine by the usual and necessary tests the condition of the boiler and its attachments and equipment as to safety. There is nothing in the testimony to indicate that he did not possess the necessary qualifications nor that the defendants were chargeable with notice of any lack of qualifications. In the absence of evidence to the contrary, Mr. Vincent must be presuméd to have had the necessary qualifications for his position, including the ability to properly inspect the boilers under his charge.

The ordinance required every new boiler to be inspected before being put in use. Such an inspection was had and, as shown by the certificate of the official inspector, he was “assisted in examination by engineer V.” During the entire period of the installation of the boiler, Mr. Vincent was in charge of the engine room and boilers and not only had the opportunity but it was his duty to his employers to see that the boiler as installed was in reasonably safe condition. Mr. Vincent had charge of and operated the boiler for two years and a half under a constant obligation of vigilance as to its safety, and in February, 1903, again assisted the official boiler inspector in making his official inspection of the boiler. While the official inspector testified that he did not make a thorough inspection of the elbow in the mudpipe because prevented by the baffle wall, there was nothing in the official certificate, a copy of which was given to defendants, to indicate this. The certificate, like those of the preceding two years, testified to defendants that the boiler was in good condition, not only on the authority of the official inspector but of their engineer, who assisted in making the examination.

If a thorough inspection was not made by the official inspectors, it was the duty of the engineer to call their attention to it, and, upon their failure to make the proper inspection, to make it himself. The proprietors of the hotel purchased the boiler and equipment of a reputable firm; they employed a competent engineer to take charge of the boiler; before it was put in use by their engineer it was examined by him and the official inspector for the purpose of determining whether it was safe for such use; the certificate informed the proprietors that the examination by the city official assisted by their engineer disclosed that the boiler was in safe condition for use. Only upon the theory that the engineer himself was known to be incompetent can it be urged that defendants owed him the duty of further inspection of the boiler for his protection. There is no evidence of such incompetence or notice thereof, and the presumption is to the contrary. The record discloses no evidence of any negligence on the part of the defendants in the discharge of their legal duties towards the plaintiff’s intestate.

The judgment is reversed, and a new trial ordered.

McAlvay, C. J., and Carpenter, Grant, and Moore, JJ., concurred.


author: Ostrander, J.

text:
    SMITH v. KIEL.
    1. Certiorari — Habeas Cortos — Review—Question of Fact.
    On certiorari to review habeas corpus for the possession of a minor child, this court, having examined the testimony sent up by agreement with the return sufficiently to ascertain that there is testimony which supports the conclusions announced, will not re-examine it for the purpose of determining the facts.
    2. Habeas Cortos — Custody of Child — Certiorari —Review-Decision.
    Where, on certiorari to review habeas corpus for the possession of a minor child, it is clear that the decision of the court below was based upon the idea of the superior legal right of the parent over that of the grandparent, both being suitable persons, language indicating a balancing of the rights of the parent and the interests of the child rather favorable to the parent is not sufficient to overturn a decision awarding the custody to the parent.

      Certiorari to Kent; Sessions, J., presiding.
    Submitted November 12, 1907.
    (Calendar No. 22,500.)
    Decided December 10, 1907.
    Habeas corpus proceedings by Frederick Smith against Benjamin Kiel and Jane Kiel for the custody of Jennie Smith, an infant. There was an order awarding the custody to petitioner, and respondents bring certiorari.
    Affirmed.

      Taggart & Taggart, for petitioner.

      Holmes & Holmes, for respondents.
   Ostrander, J.

Jennie Smith is an infant, born November 19, 1897. Frederick Smith is her father. Benjamin and Jane Kiel are her grandparents, being the father and mother of her mother, who died August 4, 1898, since which time Jennie has been in the care and custody of her grandparents, living in their family and entirely supported by them. Upon the application of the father, a writ of habeas corpus was issued out of the circuit court for the county of Kent, directed to the grandparents, the purpose of the father being to secure the custody of his daughter. In the habeas corpus proceeding, the parties appeared by counsel, and a large amount of testimony was taken, with the result that an order was entered awarding the custody of the daughter to her father. Thereupon the grandparents sued out of this court a writ of certiorari to review the order and determination of the circuit court, and in their affidavit for the writ they assign errors as follows:

<c(l) Because Frederick Smith, after the death of his wife, made and entered into a contract with these petitioners, by the terms of which they were to assume the care, custody, and education of said Jennie Smith during her minority, and in lieu of furnishing such care, custody and education were to have her custody.
“ (2) Because Federick Smith has wholly and completely abandoned his said child, Jennie Smith, and has not contributed or offered to contribute anything towards her care, custody, and education and support from the date of her birth up to the present time, although he claims to have been fully able and capable to furnish such support, if he desired.
“ (3) Because the said Frederick Smith is not a proper person to have the care, custody, and. education of said child, which is thoroughly and completely demonstrated through his actions and conduct toward her, and the lack of interest that he has taken in her welfare during the first nine and a half years of her life.
“ (4) Because it is for the best interest of said child to remain with these petitioners, where she has remained and been brought up from three days prior to her mother’s death up to the present time.
“ (5) Because the said Frederick Smith is now estopped from claiming any right to the possession and custody of said child, after having accepted the benefits of the contract that he made and entered into with these petitioners for upwards of nine years.
“ (6) Because the child desires to remain with her grandparents.”

In a written opinion, the circuit judge determined, adversely to plaintiffs in certiorari, the contentions indicated in the assignments of error, excepting only the sixth — as to the fact expressed in the sixth assignment, the opinion is silent. He found, as matter of fact, that a contract was not proven; that the father was a fit person to have the custody of the child, and was financially able to care for her; that he had not abandoned her; that it was not established that the best interests of the child demanded that she remain with her grandparents. By agreement of counsel, the testimony was sent up with the return. We have examined it sufficiently to ascertain that there is testimony which supports the conclusions announced. This court will not re-examine the evidence for the purpose of determining facts. Corrie v. Corrie, 42 Mich. 509; Carpenter v. Carpenter, 149 Mich. 138. The child gave no testimony, but counsel for defendants requested the court to question her. This the court declined to do, saying that her wishes could not be permitted to overrule legal rights. From this and the language of the opinion which was filed, it is made clear that, having become convinced that both the father and the grandparents were suitable persons to have the care of the child, decision was based upon the idea of the superior legal right of the parent. It is also clear that the court had in mind the rule that the legal right of the parent to the custody of his child will not be enforced against the best interests of the child. It is true that the language, “His right is also lost in case the welfare and interests of the child imperatively require that he should be deprived of its custody,” employed in the opinion, is somewhat indicative of a balancing of the rights of the parent and the interest of the child rather favorable to the parent. We are of opinion, however, that we should not say, as matter of law, that the conclusion should be overturned.

The decision is affirmed.

McAlvay, C. J., and Carpenter, Hooker, and Moore, JJ., concurred.


author: Hooker, J;

text:
      In re RICHARDS.
    1. Criminal Law — Indeterminate Sentence — Validity—Fixing Maximum.
    Where, in sentencing a person convicted under section 11488, 8 Comp. Laws, of assault with intent to kill and murder, the penalty for which is imprisonment for life or any term of years, the court follows the form of sentence provided by section 1, Act No. 184, Pub. Acts 1905, instead of the form provided by section 3, and recommends a maximum term instead of fixing it, the sentence must be construed as fixingthe maximum term at the number of years recommended, and is not, therefore, a nullity justifying another sentence.
    3. Same — Indeterminate Sentence — Fixing Maximum — Duty of Court.
    A person convicted of a crime, the penalty for whioh is imprisonment for life or any term of years, is entitled, under section 3, Act No. 184, Pub. Acts 1905, to have the decision of the judge upon the maximum of his imprisonment and a minimum fixed which shall not exceed half of such maximum, and a sentence which fixes a maximum, and a minimum in . excess of one-half of such maximum, is invalid as to such excess.
    3. Same — Sentence—Resentence—Validity.
    A trial court cannot set aside a valid sentence and impose a new and different one after the prisoner has been remanded to jail to await the execution of his sentence.
    4. Same — Sentence—Commitment—Necessity.
    Where, after a prisoner had been legally sentenced and remanded to jail to await the execution of his sentence, the court erroneously undertook to vacate the sentence and impose another, upon which a commitment issued and the prisoner was confined in prison, this court upon habeas corpus will not order the discharge of the prisoner for want of a valid commitment, but he will be remanded to the custody of the superintendent of the prison in order that the court may correct its record and issue a proper commitment.
    Habeas corpus proceedings by William J. Richards to obtain his release from the Detroit house of correction.
    Submitted November 12, 1907.
    (Calendar No. 22,539.)
    Writ denied December 10, 1907.

      Thomas O’Hara, for petitioner.

      John E. Bird, Attorney General ( George 8. Law, of counsel), for respondent.
   Hooker, J;

The petitioner was convicted of assault with intent to kill and murder, and on the 14th day of June, 1906, he was sentenced by the recorder’s court of Detroit in the following language, “is sentenced by the court, he being now of the age of twenty-five years, to be committed to the Detroit house of correction for a term of not less than six years, and the court recommends that the maximum term be not more than seven years from and including this day.” On June 20, 1906, and during the same term of court, and before the issue of a commitment, an order was made in open court setting aside the sentence of June 14, and a sentence was then imposed, reciting his age, and directing that he be “ committed to the Detroit house of correction and therein confined, for a term of not less than six years, and the maximum sentence be not more than twelve years at hard labor, from and including this date.” On June 23, he was committed to the Detroit house of correction under the latter sentence and he is there now. No other commitment ever issued in the cause.

He asks a discharge on habeas corpus upon the ground that the court had no jurisdiction to impose the second sentence and that the commitment was therefore void. The foregoing facts are shown by the return of the recorder to the ancillary writ of certiorari. This return also shows that upon July 25, 1907, the following order was entered:

“At a session of the recorder's court of the city of Detroit, held in and for said city, at the court-room of said court, on Thursday the 35th day of July in the year of our Lord 1907.
“ Present: Hon. James Phelan, recorder of the city of Detroit, and Hon. William F. Conolly, judge of the recorder’s court of the city of Detroit.
“The People v.
‘ ‘ William J. Richards:
“Heretofore convicted of an assault with intent to kill and murder, and sentenced on J une 30, 1906, to a term of not less than six years, and not more than twelve years, at the Detroit house of correction.
“After an examination of the minutes of the proceedings in the above entitled cause, it nowhere appearing of record that the sentence imposed on the above named defendant on June 14, 1906, to serve a term of not less than six years and not more than seven years in the Detroit house of correction, was heretofore vacated and set aside: It is now ordered that an order be entered vacating and setting aside the sentence imposed on the above named defendant on June 14,1906; that the record may show that the defendant is not now serving under a double sentence, and that no mittimus was issued on said sentence of June 14, 1906, but was withheld by order of the court, and that no commitment was issued for this defendant on the Detroit house of correction, other than that bearing date of June 30, 1906.
“James Phelan,
“ Recorder of the City of Detroit.”

The indeterminate sentence act (Act No. 184, Pub. Acts 1905, §§ 1-3) provides:

“Section 1. The court imposing sentence, shall not fix a definite term of imprisonment, but shall fix a minimum term of imprisonment which shall not be less than six months in any case. The maximum penalty provided by law shall be the maximum sentence in all cases except as herein provided and shall be stated by the judge in passing sentence. The judge shall at the time of pronouncing such sentence recommend and state therein what, in his judgment, would be a proper maximum penalty in the case at bar not exceeding the maximum pen; alty provided by law. * * ' *
“Sec. 3. The maximum term of imprisonment shall not exceed the longest term fixed by law for the punishment of the offense of which the person sentenced is convicted, and the minimum term of imprisonment fixed by the court shall not exceed one-half of the maximum term of imprisonment fixed by statute. * * *
“Sec. 3. The provisions of this act shall not apply to any person convicted of an offense the only punishment for which prescribed by law is imprisonment in one of the penal institutions named for life: Provided, That in all cases where the maximum sentence, in the discretion of the court, may be for life or any number of years, the court imposing sentence shall fix both the minimum and maximum sentence. The minimum term of imprisonment thus fixed by the court shall not exceed one-half of the maximum term so fixed.”

The language of the first quotation may be open to the construction that the recommendation as to the maximum period does not limit the period of confinement, while under the last the fixing of a maximum, in a case where the penalty prescribed is imprisonment for life or any number of years, precludes imprisonment beyond the limit of the maximum.

The first sentence did not conform to the law because; the maximum recommended was less than double the minimum fixed, or, as counsel for petitioner would probably prefer to state it, because the minimum fixed was more than half the maximum period recommended. If the language used can be construed as a “fixing” of the maximum period, although in the form of a recommendation, the earlier sentence can be sustained to the extent of at least one-half of the maximum, under a liberal, but, we think, reasonable, construction of the statute, 3 Comp. Laws, § 11984, or perhaps a resentence permitted under the rule of People v. Farrell, 146 Mich. 264, if the statute should be considered inapplicable. Had his original sentence recommended a maximum of twelve years and a minimum of six, we would think it technical to say that the sentence was void, merely because he recommended instead of fixing the maximum, the effect of which, under section 3, would necessarily be the same, viz., to place a limit upon the term, which might not be true were section 1 applicable. We are of the opinion, therefore, that the recommendation in the first sentence should be treated as a “fixing,” i. e., a determination of the maximum period for which the petitioner could be confined, and although it bore the form of a recommendation merely, that it cannot be treated as surplusage and therefore a nullity, justifying another sentence.

The prisoner was entitled to have the decision of the judge upon the maximum, and a minimum fixed which should not exceed half of it, not a minimum fixed, and a maximum which should not be less than double the minimum. Such is the language of the statute, Act No. 184, Pub. Acts 1905, § 3. Section 8 provides that the minimum shall not exceed one-half of the maximum penalty prescribed by law, while section 3 prohibits an excess over one-half of the maximum fixed, i. e., prescribed by the court. By this construction we preserve the harmony between the two provisions, between which there is an evident analogy. The court did determine the maximum penalty, and while we may well believe (especially in view of his subsequent change of sentence) that he did it believing that it was not conclusive upon the governor or pardon board, it must be governed by the same rule that would apply had the maximum fixed been double the minimum.

The statute prescribing the penalty for the offense of which the petitioner was convicted reads as follows:

“ ( 11483) Sec. 14. If any person shall assault another with intent to commit the crime of murder, every such offender shall be punished by imprisonment in the State prison for life, or any number of years.”

The first sentence is not in excess of this statute, standing alone, but by fixing the maximum penalty at seven years the court established the lawful extent of the minimum, under the indeterminate act, as effectively as though it had been so fixed in section 11483, as the extent of the penalty for such offense.

The minimum prescribed, therefore, was in excess of the lawful penalty. Section 11984 provides that a sentence in excess of the lawful penalty shall not be adjudged altogether void, but shall be valid and effectual to the extent of the lawful penalty. The first sentence was therefore valid as a sentence for a minimum of three and one-half and a maximum of seven years.

The effect of subsequent proceedings. The later proceedings were apparently an attempt by the recorder to vacate a sentence not altogether void, but valid in part, and to substitute another and heavier one for it. We have held that a trial court cannot set aside a valid sentence and impose a new and different one, after the defendant has been remanded to jail to await the execution of the sentence. People v. Meservey, 76 Mich. 223; People v. Kelley, 79 Mich. 320.

This being a valid sentence for three and one-half years, the most that the court could do, under these decisions, was to correct the record by making it show a minimum of three and one-half years. Instead thereof, he undertook to vacate it and impose another and greater penalty, which he had not lawful authority to do, and that order and the commitment issued upon it were void, and must be so treated. Under the circumstances, we should not discharge the petitioner merely for the want of a valid written commitment, when it appears, by his own showing, that he was remanded, after sentence, to the custody of the jailer, probably by an oral order made in open court that his punishment might be inflicted. It would be proper for the recorder to enter an order nunc pro tunc correcting the sentence of June 30 to conform to this opinion, and to issue as of that or a later date a proper commitment. The relief prayed is denied and the prisoner will be remanded to the custody of the respondent.

MoAlvay, C. J., and Carpenter, Grant, and Moore, JJ., concurred.


author: Moore, J.

text:
    SCHULTE v. PFAUDLER CO.
    1. Master and Servant — Personal Injuries — Unguarded Machinery — Contributory Negligence.
    In an action by a servant for a personal injury resulting from plaintiff getting caught in unguarded cogwheels of the machine upon which he was working, evidence examined, and Held, that, as the machine was of simple construction, with the unguarded cogs plainly visible, and plaintiff had worked upon the machine long enough to be familiar with it, and his duties did not require him to get any part of his person in dangerous proximity to the cogwheéls, it could not be said that the injury would have occurred if plaintiff had been free from negligence, and a verdict was, therefore, properly directed for defendant.
    2. Same — Negligence —Violation of Statutory Duty — Contributory Negligence.
    An omission of a statutory duty does not deprive an employer of the defense of contributory negligence.
    Error to Wayne; Rohnert, J.
    Submitted November 13, 190?.
    (Docket No. 138.)
    Decided December 10, 1907.
    Case by August Schulte against the Pfaudler Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      George E. Eckert and Lehmann & Biggs, for appellant.
    Keena, Lightner & Oxtoby, for appellee.
   Moore, J.

The plaintiff entered into the employ of defendant when he was past 22 years of age. He worked several weeks in the latter part of 1902. He was then sick for a time. He returned to work about the first of January, 1903, and worked until April 30th, when he got his arm in the cogs of a punching machine upon which he was at work, receiving injuries which resulted in the loss of his arm. This suit was brought to recover damages for said injuries. The trial judge directed a verdict in favor of defendant. The case is brought here by writ of error.

The declaration claims in substance :

(1) That leaving the cogwheels uncovered was a violation of section 5349, 2 Comp. Laws.

(2) That the place where the punch machine was located was not sufficiently lighted.

(3) That there was not sufficient space about the machine for plaintiff’s work.

(4) That the belt was an old one, which had been frequently mended; and

(5) That plaintiff was not warned as to the danger which he would incur in cleaning the machine.

Counsel insist that where the defendant neglects the statutory duty of safeguarding machines, it cannot be held that the plaintiff assumed the risks attendant upon the absence of safeguards, because the assumption of risks is the result of .the contract of employment, and the master cannot legally contract to violate a statute, and is not in position to assert, as against the servant, the doctrine of assumed risk, even in case where the omission of the statutory duty is known to the servant. Citing Sipes v. Starch Co., 137 Mich. 258.

Counsel for defendant insist upon several defenses, some of which it will not be necessary to consider.

The testimony of plaintiff and a picture of a machine in all its essential parts, the same as the one upon which the injury occurred, shows the machine to be of simple construction. The cogs were plainly visible. Plaintiff knew it would be disastrous for him to come in contact with them. He had worked about the machine about three months, first as. a helper, and for a considerable time just prior to the accident had charge of the machine. The thing he was attempting to do when the accident happened did not require him to get any part of his person in dangerous proximity to the cogwheels. He is unable to tell how the accident happened. No one else tells howY it happened. It did, in fact, happen, hut it could not if plaintiff had conducted himself as an ordinarily prudent man should have done. We do not think it can be said the injury would have occurred if plaintiff had been free from negligence. See Berlin v. Mershon & Co., 132 Mich. 183, and cases cited therein; Mushinski v. Vincent, 135 Mich. 26. An omission of a statutory duty does not deprive an employer of the defense of contributory negligence. See Swick v. Cement Co., 147 Mich. 454.

It is not necessary to discuss the' other questions presented.

Judgment is affirmed.

McAlvay, C. J., and Carpenter, Grant, and Blair, JJ., concurred.


author: Gbant, J.

text:
    GABLE v. DEAL.
    Drains — Proceedings —Costs op Abortive Proceedings —Liability op Petitioners.
    The liability of petitioners for the costs of abandoned drain proceedings, under section 4319, 2 Comp. Laws, does not extend to expenses incurred under a former petition, though by • making use of the survey and services therein the petitioners are relieved of the expense of making one upon their petition, there being no evidence that the petitioners had knowledge or assented to the use of such survey by the commissioner.
    Error to Allegan; Padgham, J.
    Submitted November 13, 1907.
    (Docket No. 169.)
    Decided December 10, 1907.
    Assumpsit by Elmer E. Gable and Philip W. Burgess, drain commissioners respectively of Allegan and Barry counties, against Joseph Deal and others for costs incurred in certain drain proceedings. There -was judgment for plaintiffs, and defendants bring error.
    Modified and affirmed.

      Wilkes & Stone and Ed. J. Anderson, for appellants.

      Clare E. Hoffman, for appellees.
    Plaintiffs, as drain commissioners of Allegan and Barry counties, respectively, brought this suit against defendant Deal, and 22 others, to recover from them the costs incurred by plaintiffs in proceedings to establish a drain through said counties. The statute (section 4319, 2 Comp. Laws) provides:
    “Such applicants shall be jointly and severally liable for all costs and expenses in case the county drain commissioner upon examination, or upon examination and survey, shall determine that the same is unnecessary or impracticable, or in case the proceedings shall be dismissed for other cause.”

      The case was tried before the court without'a jury and judgments rendered for the plaintiffs for 11,725.94.
    On December 5, 1902, a petition was presented to one Clinton R. Baker, the then drain commissioner for Allegan county, which petition was signed by 80 freeholders, praying for the location of a drain and describing it. The drain was to extend also into Barry county, and its length was about 11 miles. Mr. Baker gave due notice to the^ drain commissioner of Barry county. A surveyor was employed to make the survey provided by the statute. He made the survey, and his field notes, survey, and specifications were completed by him on the 18th day of June, 1903. About that time the prosecuting attorney of Allegan county advised Baker that the application was defective, and advised that the proceedings be commenced anew. The proceedings under the first petition were therefore abandoned and a new petition was presented to Mr. Baker, identical in description with the first, and signed by these defendants. The proceedings were regular and in accordance with the statute.
    On July 15th the two commissioners made and filed their first order of determination in which they used and adopted the survey made by the county surveyor on the first application, said survey forming a part of said order of determination.. The then commissioners of Allegan and Barry counties retired from office by the expiration of their term on the 1st day of January, 1904. The plaintiffs, their successors, then took up the work, procured releases of some, but being unable to procure releases from all, took proceedings under the statute for condemnation. A jury was demanded and summoned, and on June 22, 1904, filed its report determining the necessity of the drain and appraising the damages to each, of the owners who had refused to grant a release. Further proceedings were taken as the statute requires until about the 13th day of September, 1904, when certain persons filed their bill in chancery in the circuit court for the county of Barry, attacking the validity of the drain, and praying for a perpetual injunction. That suit was heard upon pleadings and proofs and a decree entered perpetually enjoining the construction of the drain. Thereupon a proper order was entered dismissing the drain proceedings, and plaintiffs instituted this suit.
   Gbant, J.

(after stating the facts). The proceedings were instituted upon the petition of the defendants. The plaintiffs and their predecessors in office proceeded upon the second petition regularly until enjoined by the court of equity. The failure to construct the drain was not due to any fault of the plaintiffs or their predecessors. The defendants, the petitioners, are therefore liable for the costs. Among the items included in the judgment are $173.50 for the services of the surveyor, rendered under the first petition, and $163.50 to Mr. Baker, the then drain commissioner, for services rendered under the same petition. The theory under which these items were allowed appears to be that, although rendered upon the first application, they were used upon the second application and these defendants received the benefit, or, as Mr. Baker in his testimony said:

“All these services would have had to be rendered after June 30th, if they had not been rendered before; we simply used the knowledge acquired before.”

The result is, if the judgment be sustained, that the expense of the first and abandoned proceedings, which should have been shared among the 80, is now imposed upon 23, 7 of whom were not petitioners to the first proceedings. Drain proceedings are statutory and the requirements of the statute must be followed. The commissioners could no more pay for the knowledge obtained by a former abandoned proceeding than they could pay for knowledge obtained from any other source. If the drain commissioners in the first proceedings were not responsible for the defect and acted in good faith, the petitioners in that case alone must pay for the expense incur red. They could not be imposed upon petitioners to another petition under the plea that they were used upon the second petition. If the defendants had had knowledge of the action of the commissioners in so doing and assented to it, either expressly or tacitly, they would undoubtedly be responsible, but of this there is no evidence. In effect these defendants were no worse off than they would have been if the commissioners had procured another independent survey, — but the law does not permit the commissioners to impose upon petitioners to these pro- . ceedings any but the actual costs incurred in such proceeding.

The other objections raised have had due consideration, and we find that they are not well taken. They are not of sufficient importance to the profession to discuss.

The judgment will be - modified, eliminating these two items, with costs of this court to the defendants. As so modified it is affirmed.

McAlvay, C. J., and Carpenter, Blair, and Moore, JJ., concurred.


author: Carpenter, J.

text:
    PEOPLE v. RICHARDS.
    1. Theaters and Shows — License—Necessity.
    A performance in a theater situated within an enclosed park, to which entrance must be gained by payment of an admission fee before entrance can be had to the theater, is an exhibition to which admission is obtained on the payment of money which may be licensed by the township or village in which it is situated under sections 3480, 3481, 1 Comp. Laws.
    3. Townships — Resolutions — Authority to Pass — Special Meeting op Board — Record on Appeal.
    A claim that the township board had no authority to pass the resolution in question, because its action was taken at a special meeting called for another purpose, cannot be considered in this court where the record of the township board, though introduced in evidence below, is not before the court, and the court cannot say whether the trial court, in overruling the contention, based its ruling on a finding that the record, fairly construed, showed that the meeting was called for the purpose of acting upon the resolution, or held that the action was regular because all members of the board were present and consenting.
    3. Criminal Law — Appeals — Questions Considered — Suppicienoy op Record.
    Contentions that'a resolution of a township board licensing theaters has no application to respondent, and that the license imposed thereby is unreasonable, cannot be considered on exceptions before sentence where not made in the court below and the resolution is not in the record.
    Exceptions before judgment from Bay; Oollins, J.
    Submitted November 15, 1907.
    (Docket No. 171.)
    Decided December 10, 1907.
    Lamont W. Richards was convicted of conducting a theater without paying a license fee.
    Affirmed.

      Weadock & Duffy, for appellant.

      Charles. W. Hitchcock, Prosecuting Attorney, for the people.
   Carpenter, J.

Respondent was convicted in the circuit court under an information which charged that at Wenona Beach, in the township of Bangor, county of Bay, State of Michigan, he (respondent) did “ set up and promote an exhibition and show * -* * to which admission was obtained on payment of money,' and publish and advertise said exhibition and show without first paying the license fee to the township clerk and obtaining license of said township of Bangor as required by resolution adopted by the township board of said township at a meeting of said township board * * * on the 6th day of June, 1906.”

The statutes covering this subject are sections 3480 and 3481, 1 Comp. Laws, which read as follows:

“ Sec. 1. The township board of any township, or the corporate board of any village, may at any meeting held for that purpose, license theatrical exhibitions, public shows, and such other exhibitions as they deem proper, to which admission is obtained on payment of money, upon such terms and conditions as they shall think reasonable, and may regulate the same in such manner as they «ball think necessary for the preservation of order and decorum, and to prevent any danger to the public peace; but no such license shall be in force for a longer time than the officers granting the same shall have been elected to office.
“ Sec. 2. Any person who shall set up or promote any such exhibition or show, or shall publish or advertise the same, or otherwise aid or assist therein, without a license first obtained, as provided in the preceding section, or contrary to the terms and conditions of such license, or while the same is suspended, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding two hundred dollars.”

Respondent was manager of Wenona Beach for the Bay City Traction & Electric Company. As such manager he set up in a casino on said beach a theatrical exhibition and published and advertised it, and he did not obtain a license therefor.

The first question for our consideration arises from re■spondent’s contention that he was not guilty of any of-' fense under the statutes above quoted, for the reason that no charge was made for admission to said theatrical exhibition. The facts upon which this claim is based are correctly stated in the brief of the people’s counsel, from which we quote:

“ The theater building is situate within an inclosure called ‘ Wenona Beach Park;’ said inclosure having two gates through which people must pass in order to reach the theater. In order to be admitted through either of these gates each person must pay five cents direct, or pay substantially the same amount through purchasing a coupon ticket from the railway company. * * * The system was such that no person could gain admission to' the theater and see the show without paying money. He was obliged to pay for admission to the inclosure in which the theater was situate and could' not enter the theater without first entering the inclosure. * * * After a person had gained admission to the inclosure, by paying the price charged, if there were any free seats unoccupied in the rear end of the theater [there were two or three hundred such seats] he was admitted to them without further charge, but if he wanted a seat in the front part of the house, and these were the more convenient and desirable, he was charged an additional sum according to their location.”

Under these facts we agree with the circuit judge that these were exhibitions “to which admission is obtained on the payment of money.” The admission fee that was collected before one could enter the inclosure was in reality a charge for the privilege of witnessing the theatrical, exhibition. It would defeat the purpose of the statute and violate its express provision if it did not apply in such cases.

Second. Respondent contends that the township board had no authority to pass the resolution of June 6th because its action was taken at a special meeting called for the purpose of considering a liquor bond. This claim both in the lower court and in this court is based upon the construction of the record of the proceedings of said township board. That record was introduced in evidence in the trial court and was open to the inspection of the trial judge. It is not a part of the record in this case and is therefore not open to our inspection. The trial judge who inspected said record overruled respondent’s contention. Whether this ruling proceeded upon the ground that the record fairly construed showed that the meeting was called for the purpose of acting upon said resolution, or whether he adopted the contention of the people’s counsel that it showed that every member of the township board was present and consented to take action on said resolution (in which case there is authority for saying that the action was regular. See 1 Dillon on Municipal Corporations [4th Ed.], § 264) we do not know. It is sufficient to say that without an inspection of the record we cannot say that the trial court placed upon it an erroneous construction.

Third. It is contended that the resolution prescribing the license had no application to respondent and that the .license fee was unreasonable. We cannot consider these questions for two reasons: (a) They do not appear to have been raised in the lower court. (6) Their determination requires an examination of the terms of the resolution. That examination we cannot make, for that, like the record of the proceedings before the township board, is no part of the record before us.

The conviction is affirmed.

McAlvay, C. J., Grant, Blair, and Moore, JJ., concurred.