author: McAlvay, C. J.

text:
    NEW YORK MORTGAGE CO. v. SECRETARY OF STATE.
    1. Corporations — Foreign Corporations — Admission to State —Banking Corporations.
    Banking corporations and those corporations which are within the contemplation of our banking laws are not within the provisions of the statute (Act No. 206, Pub. Acts 1901, as amended by Act No. 34, Pub. Acts 1903) prescribing the terms and conditions on which foreign corporations may be admitted to do business in Michigan.
    2. Same — Right to do Business — Filing Articles — Duty of Secretary of State — Matters Considered.
    In considering whether a foreign corporation presenting its articles for record preparatory to being authorized to do business in this State is such a corporation as may be so authorized, the secretary of State may consider the history of the applicant, the character of its business, and, it being a financial corporation, the character of the property upon which its bonds or mortgages, which it purposes to sell to citizens of this State, are secured.
    3. Same — Refusal to Record Articles — Mandamus—Propriety.
    Mandamus will not issue to compel the secretary of State to receive, file, and record the papers of a foreign corporation which, as appears from its history and the persons and corporations with which it is associated, desires to come within the State for the purpose of selling its bonds and securities which are practically worthless.
    4. Mandamus — Discretion—Propriety of Issuance.
    Mandamus is a discretionary writ which will not be awarded in all cases in which a prima facie legal right is shown, but will be withheld whenever the public interest would be injuriously affected by its issuance, or there is a doubt of its propriety.
    Mandamus by the New York Mortgage Company to compel George A. Prescott, secretary of State, to issue a certificate authorizing relator to transact business in this State.
    Submitted March 5,1907.
    (Calendar No. 22,089.)
    Writ denied December 10, 1907.

      De Forest Paine, for relator.

      John E. Bird, Attorney General, and Charles W. McGill and Thomas Ambrose Lawler, Assistants Attorney General, for respondent.
   McAlvay, C. J.

Relator, a foreign corporation organized under the banking laws of the State of New York in October, 1906, desiring to do business in this State, intending to conform with the provisions of an act of the legislature entitled “An act to prescribe the terms and conditions on which foreign corporations may be admitted to do business in Michigan,” approved June 6, 1901, being Act No. 206, Pub. Acts 1901, as amended [by Act No. 34, Pub. Acts 1903], made and presented to respondent the statements and documents required by said law and at the same time tendered and requested respondent to receive, file, and record the papers, and to issue to relator the certificate which the law provides shall be issued to show compliance with the provision of the statute entitling it to do business in Michigan. Respondent refused to receive and file said papers and to receive the fee tendered, and refused to issue the certificate requested, and returned said documents to relator’s attorney with a letter in which he stated:

‘ ‘ This corporation was organized under the provisions of the banking law of New York. I do not find any provisions of statute under which a foreign corporation for the purposes stated in this certificate of incorporation, or for the purposes stated in the sworn statement can be admitted to carry on its business in this State. I therefore return the papers herewith.”

This application for mandamus was then made.

In its declaration presented to the respondent relator stated:

“ The purpose for which the company desires to be admitted to the State of Michigan is, to make loans secured by mortgages on real estate, to. sell such mortgages and bonds of this company secured by mortgages on real estate, but said bonds are not to be sold on the installment plan.”

Relator’s certificate of incorporation under the provisions of article 7 of the banking law of the State of New York declares:

“The purpose for which it is to be formed is a mortgage loan or investment corporation and to exercise all the powers enumerated and authorized in sections 197 and 199 of the banking law.”
“Section 197 prescribes what the article of incorporation shall contain. Section 199 reads:
“In addition to the powers conferred by the general and stock corporation laws, a corporation organized as provided in the two preceding sections shall have power to sell, offer for sale or negotiate bonds or notes secured by deed of trust or mortgages on real property situated in this State or . outside of this State, or choses in action owned, issued, negotiated or guaranteed by it, or may receive money or property either from its own stockholders or other persons in installments or otherwise, and may enter into any contract, engagement or undertaking with such persons for the withdrawal of such money or property, at any time, with any increase thereof, or for the payment to them or to any person of any sum of money at any time, either fixed or uncertain, excepting that said corporation cannot do a general deposit business without complying with the provisions of section fourteen of this chapter.”

The company has not complied with said section fourteen, and is not doing a general deposit business.

The purposes for which relator desires to be admitted to do business in this State are not as broad as the powers granted and exercised or which may be exercised by it under the provisions of section 199, art. 7, and section 14 of the New York banking law.

It is contended by relator that it is a foreign corporation duly incorporated for purposes for which a corporation may be formed under the laws of Michigan and therefore entitled to be authorized to do business of that character within this State under section 4 of Act No. 206, Pub. Acts 1901. This section provides:

“No such foreign corporation shall be permitted to transact business in this State unless it be incorporated, in whole or in part, for a purpose or object for which a corporation may be formed under the laws of Michigan, and then only for such purpose or object.”

It is claimed that under Act No. 205, Pub. Acts 1877, as amended, or under Act No. 232, Pub. Acts 1903, such corporations may be formed in Michigan. It is not contended on the part of respondent that sUch corporations cannot be formed in this State under the act of 1877 above referred to, but it is urged:

(a) That relator, a foreign corporation, organized under a banking law, cannot be admitted to do business in Michigan.

(6) That the statutes referred to do not .authorize the admission of foreign corporations to do business controlled and supervised by the banking commissioner, and within the contemplation of our banking laws.

(c) That the history of this corporation, the character of its business, the character of the bonds and mortgages and the property upon which the same are secured, warranted the respondent in withholding permission to do business.

In this State corporations organized for the purpose for which relator asks to be permitted to do business within this State are required, for the protection of those of its citizens who do business with them, to conform with the provisions of the statute under which they may organize (Act No. 205, Pub. Acts 1877, as amended, entitled “An act to provide for the incorporation of societies for the receiving, loaning and investing of money”).

Among other things this act requires such corporation, before it receives any loans or deposits, to invest $100,000 “of its paid-in, permanent stock capital,” in real estate securities on unincumbered real estate of at least double the value of the amount secured (§§ 3, 8); to make reports under oath, not less than four times a year, and whenever required, to the commissioner of the banking department, showing the resources, assets, and liabilities of such corporations at any given time, which reports shall be published; to make special reports when required; to submit at any time to an examination of all books and assets by the commissioner giving him free access to them for such purpose, and to pay him a fee therefor; a penalty of $100 for each day’s delay after time expires when report should be made is provided for failure to make reports. When in the opinion of the bank commissioner the corporation is insolvent, or when the business is conducted contrary to law and prejudicial to the interests of creditors, he makes report to the attorney general, who, if the facts warrant it, proceeds to dissolve the corporation (§§ 23, 24).

In the State of New York also the legislature, by the general banking laws, has undertaken to protect its citizens in dealing with relator and similar corporations, by provisions practically the same as those above recited, now in force in Michigan.

The contention of relator is, that being organized under the laws of a foreign State to conduct the business it asks to be authorized to conduct in this State, and to do which a corporation may be organized under our laws, that fact is conclusive of its right to be admitted to this State under Act No. 206, Pub. Acts 1901, as amended. If this is true, it requires no argument to show that such construction, would be repugnant to the policy of this State relative to' such business, and would abolish, as far as foreign corporations conducting such business within the State are concerned, every protection now guaranteed to the people of this State in dealing with domestic corporations of that character, and would give an unfair advantage to such foreign corporation over those organized within the State. In other words, such construction would operate, as to such foreign corporations, as a repeal of all the beneficial and protective provisions of Act No. 205, Pub. Acts 1877. To hold that such was the legislative intent would be contrary to every suggestion that arises to the mind upon the consideration of the proposition.

It is evident that the legislature never intended to make such discrimination against the citizens of this State, and never intended to include within this statute and admit to this State foreign corporations to do a business of the kind relator is engaged in, of such peculiar nature, that the legislature has in its wisdom, for the protection of its citizens, put such business under official supervision, care, and control.

The matter of admitting foreign corporations to do business in a State is absolutely within the discretion of the legislature. It is granted, not as a matter of right, but as a matter of comity. Hartford Fire-Ins. Co. v. Raymond, 70 Mich., at pages 501-2, and cases cited. This comity is never extended by States “where the existence of the corporation or the exercise of its powers are prejudicial to their interests or repugnant to their policy.” Justice Meld in Paul v. Virginia, 8 Wall. (U. S.) 168. Our construction of the act is that banking corporations and those corporations which are within the contemplation of our banking laws are not within the provisions of the act authorizing foreign corporations to transact business in this State.

The history of relator, the character of its business and of the property upon which its bonds or mortgages are secured, were, we think, matters properly considered by respondent, at least as bearing upon the construction of the statute. It is alleged in the return of the respondent that the Industrial Savings & Loan Company, a New York corporation, acquired a tract of land at Grantwood, N. J.; that afterwards its management organized a new corporation, called the Columbia Real Estate & Investment Company, to which company the Grantwood property was transferred and a mortgage of several hundred thousand dollars given back to the Industrial Savings & Loan Company; that the management of the Grantwood property in order to obtain money to improve its property was desirous of issuing bonds, but the Columbia Real Estate & Investment Company had not authority to do so. The management then organized another company, the New York Mortgage Company, under the general corporation laws of New York; that the particular character of business in which the said New York Mortgage Company engaged was the selling of debentures and bonds claimed to be secured by mortgages upon the property located at Grant-wood, N. J.; that the said New York Mortgage Company was granted a certificate of authority to do business in this State by respondent, who was not then acquainted with the true character of its affairs, its purpose being ‘ ‘ to negotiate, receive, hold, own, and dispose of and deal in and with bonds, mortgages, trust deeds, debentures, notes, and other securities of firms, persons, and corporations; to loan money on the security of real estate and personal property;” that ■this New York Mortgage Company never loaned a dollar upon real estate in this State but sold its bonds in various denominations to the citizens of this State; that during 1906 the authorities of the State of New York discovered that the laws under which said company was incorporated did not permit the said company to sell bonds or investment securities of any kind; that said company was notified of such fact by the superintendent of banks of the State of New York, whereupon the said New York Mortgage Company changed its name to the Grantwood Realty Company, organized the New York Mortgage Company, which is the relator, under the general banking laws of the State of New York; that this Grantwood property mentioned is the particular property the mortgages cover which are supposed to secure the bonds which relator desired to sell to the citizens of this State; that there are first and sec- , ond mortgages on the Grantwood property aggregating $1,000,000; that the Industrial Savings & Loan Company, one of these corporations mentioned above, has mortgages on said property of'about $800,000; that the management of all of these companies is practically the same; that there is an interchange of interests, and the property at Grant-wood is not worth as much as the mortgages upon it, and the security for the bonds relator desires and requests permission to séll to citizens of this State is insufficient to protect the purchasers.

These facts are before this court uncontradicted. A legitimate conclusion to be drawn from them is that relator’s desire is to come within this State for the purpose of selling' its bonds and securities which are practically worthless, and it invokes the official indorsement of the State in furtherance of such scheme.

If our construction of the statute were as contended for by relator we would not hesitate, in view of these facts, to exercise our discretion in withholding the writ for reasons of public policy. The naked right to the writ is not sufficient to warrant its issuance. It may be withheld where the public interest would be injuriously affected, and if there is a doubt of its propriety it will not be issued. 26 Cyc. p. 146.

This court has repeatedly held that this discretionary writ will not be awarded in all cases, even when a prima facie right to relief is shown, but regard will be had to the exigency which calls for exercise of such discretion, the nature and extent of the wrong or injury which would follow a refusal of the writ, and other facts which have a bearing upon the particular case. Tennant v. Crocker, 85 Mich. 328, approved in the following cases: Baker v. Board of State Canvassers, 111 Mich. 378; MacKinnon v. Auditor General, 130 Mich. 552; George N. Fletcher & Sons v. Alpena Circuit Judge, 136 Mich. 511; Sherwood v. Rynearson, 141 Mich. 92; Grand Rapids, etc., R. Co. v. Auditor General, 144 Mich. 77. See, also: Wiedwald v. Dodson, 95 Cal. 450; State, ex rel. Hathorn, v. Express Co., 95 Minn. 442; People, ex rel. Wood, v. Board of Assessors, 137 N. Y. 201; High on Extraordinary Legal Remedies (2d Ed.), § 9, and notes; Merrill on Mandamus, § 62.

The writ is denied.

Carpenter, Blair, Montgomery, and Hooker, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    PEOPLE v. BEARDSLEY.
    1. Homicide — Manslaughter—Intent—Inference from Negligence — Duty to Act.
    Though the law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter, the rule is based upon the proposition that the duty neglected must be a legal duty, imposed by law or by contract, and not a mere moral obligation, and the omission to perform the duty must be the immediate and direct cause of death.
    2. Same — Death from Negligence — Legal Duty to Act.
    Where a married man, during his wife’s temporary absence from home, engaged in a drunken debauch with deceased, a woman, who had full knowledge of the circumstances and had had ample experience in such affairs, he owed her no legal duty of care and protection such as to render him legally responsible for her death from an overdose of morphine, taken with suicidal intent during the debauch, though he neglected to obtain medical assistance for her.
    Error to Oakland; Smith, J.
    Submitted April 18, 1907.
    (Docket No. 62.)
    Decided December 10, 1907.
    Carroll Beardsley was convicted of manslaughter, and sentenced to imprisonment for not less than one nor more than fiveyears in the State prison at Jackson.
    Reversed, and respondent discharged.

      Aaron Perry and M. F. Lillis, for appellant.

      Frank L. Covert, Prosecuting Attorney, and Charles 8. Matthews, Assistant Prosecuting Attorney, for the people.
   McAlvay, C. J.

Respondent was convicted of manslaughter before the circuit court for Oakland county, and was sentenced to the State prison at Jackson for a minimum term of one year and a maximum term not to exceed five years. He was a married man living at Pontiac, and at the time the facts herein narrated occurred, he was working as a bartender and clerk at the Columbia Hotel. He lived with his wife in Pontiac, occupying two rooms on the ground floor of a house. Other rooms were rented to tenants, as was also one living room in the base-, ment. His wife being temporarily absent from the city, respondent arranged with a woman named Blanche Burns, who at the time was working at another hotel, to go to his apartments with him. He had been acquainted with her for some time. They knew each others habits and character. They had drunk liquor together, and had on two occasions been in Detroit and spent the night together in houses of assignation. On the evening of Saturday, March 18, 1905, he met her at the place where she worked, and they went together to his place of residence. They at once began to drink and continuedrto drink steadily, and remained together, day and night, from that time until the afternoon of the Monday following, except when respondent went to his work on Sunday afternoon. There was liquor at these rooms, and when it was all used they were served with bottles of whiskey and beer by a young man who worked at the Columbia Hotel, and who also attended respondent’s fires at the house. He was the only person who saw them in the house during the time they were there together. Respondent gave orders for liquor by telephone. On Monday afternoon, about one o’clock, the young man went to the house to see if anything was wanted. At this time he heard respondent say they must fix up the rooms, and the woman must not be found there by his wife, who was likely to return at any time. During this visit to the house the woman sent the young man to a drug store to purchase, with money she gave him, camphor and morphine tablets. He procured both articles. There were six grains of morphine in quarter-grain tablets. She concealed the morphine from respondent’s notice, and was discovered putting something into her mouth by him and the young man as they were returning from the other room after taking a drink of beer. She in fact was taking morphine. Respondent struck the box from her hand. Some of the tablets fell on the floor, and of these, respondent crushed several with his foot. She picked up and swallowed two of them, and the young man put two of them in the spittoon. Altogether it is probable she took from three to four grains of morphine. The young man went away soon after this. Respondent called him by telephone about an hour later, and after he came to the house requested him to take the woman into the room in the basement which was occupied by a Mr. Skoba. . She was in a stupor and did not rouse when spoken to. Respondent was too intoxicated to be of any assistance and the young man proceeded to take her downstairs. While doing this Skoba arrived, and together they put her in his room on the bed. Respondent requested Skoba- to look after her, and let her out the back way when she waked up. Between nine and ten o’clock in the evening Skoba became alarmed at her condition. He at once called the city marshal and a doctor. An examination by them disclosed that she was dead.

Many errors are assigned by respondent, who asks to have his conviction set aside. The principal assignments of error are based upon the charge of the court, and refusal to give certain requests to charge, and are upon the theory that under the undisputed evidence in the case, as claimed by the people and detailed by the people’s witnesses, the respondent should have been acquitted and discharged. In the brief of the prosecutor his position is stated as follows:

“It is the theory of the prosecution that the facts and circumstances attending the death of Blanche Burns in the house of respondent were such as to lay upon him a duty to care for her, and the duty to take steps for her protection, the failure to take which, was sufficient to constitute such an omission as would render him legally responsible for her death. * * * There is no claim on the part of the people that the respondent * * * was in any way an active agent in bringing about the death of Blanche Burns, but simply that he owed her a duty which he failed to perform, and that in consequence of such failure on his part she came' to her death.”

Upon this theory a conviction was asked and secured.

The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter. 21. Cyc. p. 770 et seq., and cases cited. This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed ,by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death. 1 Bishop on Criminal Law (6th Ed.), § 217; 2 Bishop on Criminal Law (6th Ed.), § 695; 21 Am. & Eng. Enc. Law (2d Ed.), p. 99; 21 Cyc. p. 770 et seq.; State v. Noakes, 70 Vt. 247; 2 Wharton on Criminal Law (7th Ed.), § 1011; Clark & Marshall on Crimes (2d Ed.), p. 379 (e), and cases cited.

Although the literature upon the subject is quite meagre and the cases few, nevertheless, the authorities are in harmony as to the relationship which must exist between the parties to create the duty, the omission of which establishes legal responsibility. One authority has briefly and correctly stated the rule, which the prosecution claims should be applied to the case at bar, as follows:

“ If a person who sustains to another the legal relation x>f protector, as husband to wife, parent to child, master to seaman, etc., knowing such person to be in peril of life, willfully or negligently fails to make such reasonable and proper efforts to rescue him as he might have done without jeopardizing his own life or the lives of others, he is guilty of manslaughter at least, if by reason of his omission of duty the dependent person dies.
“ So one who from domestic relationship, public duty, voluntary choice, or otherwise, has the custody and care of a human being, helpless either from imprisonment, infancy, sickness, age, imbecility, or other incapacity of mind or body, is bound to execute the charge with proper diligence and will be held guilty of manslaughter, if by culpable negligence he lets the helpless creature die.” 21 Am. & Eng. Enc. Law (2d Ed.), p. 197, notes and cases cited.

The following brief digest of cases gives the result of our examination of American and English authorities, where the doctrine of criminal liability was involved when death resulted from an omission to perform a claimed duty. We discuss no cases where statutory provisions are involved.

In Territory v. Manton, 8 Mont. 95, a husband was convicted of manslaughter for leaving his intoxicated wife one winter’s night lying in the snow, from which exposure she died. The conviction was sustained on the ground that a legal duty rested upon him to care for and protect his wife, and that his neglect to perform that duty, resulting in her death, he was properly convicted.

State v. Smith, 65 Me. 257, is a similar case. A husband neglected to provide clothing and shelter for his insane wife. He left her in a bare room without fire during severe winter weather. Her death resulted. The charge in the indictment is predicated upon a known legal duty of the husband to furnish his wife with suitable protection.

In State v. Behm, 72 Iowa, 533, the conviction of a mother of manslaughter for exposing her infant child without protection, was affirmed upon the same ground. See, also, Gibson v. Commonwealth, 106 Ky. 360.

State v. Noakes, supra, was a prosecution and conviction of a husband and wife formanslaughter. A child of a maid servant was born under their roof. They were charged with neglecting to furnish it with proper care. In addition to announcing the principle in support of which the case is already cited, the court said:

“To create a criminal liability for neglect by nonfeasance, the neglect must also be of a personal, legal duty, the natural and ordinary consequences of neglecting which would be dangerous to life.”

In reversing the case for error in the charge — not necessary to here set forth — the court expressly stated that it did not concede that respondents were under a legal duty to care for this child because it was permitted to be born under their roof, and declined to pass upon that question.

In a Federal case tried in California before Mr. Justice Field of the United States Supreme Court, where the master of a vessel was charged with murder in omitting any effort to rescue a sailor who had fallen overboard, the learned Justice in charging the jury said:

“There may be in the omission to do a particular act under some circumstances, as well as in the commission of an act, such a degree of criminality as to render the offender liable to indictment for manslaughter. * * * In the first place the duty omitted must be a plain duty * * * In the second place it must be one which the party is bound to perform by law or contract, and not one the performance of which depends simply upon his humanity, or his sense of justice or propriety.” United States v. Knowles, 4 Sawyer (U. S.), 517.

The following English cases are referred to as in accord with the American cases above cited, and are cases where a clear and known legal duty existed: Reg. v. Conde, 10 Cox Crim. Cas. 547; Reg. v. Rugg, 12 Cox Crim. Cas. 16.

The case of Reg. v. Nicholls, 13 Cox Crim. Cas. 75, was a prosecution of a penniless old woman, a grandmother, for neglecting to supply an infant grandchild left in her charge with sufficient food and proper care. The case was tried at assizes in Stafford before Brett, J., who said to the jury:

“ If a grown up person chooses to undertake the charge of a human creature, helpless either from infancy, simplicity, lunacy, or other infirmity, he is bound to execute that charge without (at all events) wicked negligence, and if a person who has chosen to take charge of a helpless creature lets it die by wicked negligence, that person is guilty of manslaughter.”

The vital question was whether there had been any such negligence in the case designated by the trial judge as wicked negligence. The trial resulted in an acquittal. The charge of this nisi prius judge recognizes the principle that a person may voluntarily assume the care of a helpless human being, and having assumed it, will beheld to be under an implied legal duty to care for and protect such person. The duty assumed being that of care taker and protector to the exclusion of all others.

Another English case decided in the appellate court, Lord Coleridge, C. J., delivering the opinion, is Reg. v. Instan, 17 Cox Crim. Cas. 602. An unmarried woman without means lived with and was maintained by her aged aunt. The aunt suddenly became very sick, and for ten days before her death was unable to attend to herself, to move about, or to do anything to procure assistance. Before her death no one but the prisoner had any knowledge of her condition. The prisoner continued to live in the house at the cost of the deceased and took in the food supplied by the tradespeople. The prisoner did not give food to the deceased, or give or procure any' medical or nursing attendance for her; nor did she give notice to any neighbor of her condition or wants, although she had abundant opportunity and occasion to do so. In the opinion, Lord Coleridge, speaking for the court, said:

“ It is not correct to say that every moral obligation is a legal duty; but every legal duty is founded upon a moral obligation. In this case, as in most cases, the legal duty can be nothing else than taking upon one’s self the performance of the moral obligation. There is no question whatever that it was this woman’s clear duty to impart to the deceased so much of that food, which was taken into the house for both and paid for by the deceased, as was necessary to sustain her life. The deceased could not get it for herself. She could only get it through the prisoner. It was the prisoner’s clear duty at common law to supply it to the deceased, and that duty she did not perform. Nor is there any question that the prisoner’s failure to discharge her legal duty, if it did not directly cause, at any rate accelerated, the death of the deceased. There is no case directly on the point; but it would be a slur and a stigma upon our law if there could be any doubt as to the law to be derived from the principle of decided cases, if cases were necessary. There was a clear moral obligation, and a legal duty founded upon it; a duty willfully disregarded and the death was at least accelerated, if not caused, by the nonperformance of the legal duty.”

The opening sentences of this opinion are so closely connected with the portion material to this discussion that they could not well be omitted. Quotation does not necessarily mean approval. We do not understand from this opinion that the court held that there was a legal duty founded solely upon a moral obligation. The court indicated that the law applied in the case was derived from the principles of decided cases. It was held that the prisoner had omitted to perform that which was a clear duty at the common law. The prisoner had wrongfully appropriated the food of the deceased and withheld it from her. She was the only other person in the house, and had assumed charge of her helpless relative. She was under a clear legal duty to give her the food she withheld, and under an implied legal duty by reason of her assumption of charge and care, within the law as stated in the case of Reg. v. Nicholls, supra. These adjudicated cases and all others examined in this investigation we find are in entire harmony with the proposition first stated in this opinion.

Seeking for a proper determination of the case at bar by the application of the legal principles involved, we must eliminate from the case all consideration of mere moral obligation, and discover whether respondent was under a legal duty towards Blanche Burns at the time of her death, knowing her to be in peril of her life, which required him to make all reasonable and proper effort to save her; the omission to perform which duty would make him responsible for her death. This is the important and determining question in this case. If we hold that such legal duty rested upon respondent it must arise by implication from the facts and circumstances already recited. The record in this case discloses that the deceased was a woman past 30 years of age. She had been twice married. She was accustomed to visiting saloons and to the use of intoxicants. She previously had made assignations with this man in Detroit at least twice. There is no evidence or claim from this record that any duress, fraud, or deceit had been practiced upon her. On the contrary it appears that she went upon this carouse with respondent voluntarily and so continued to remain with him. Her entire conduct indicates that she had ample experience in such affairs.

It is urged by the prosecutor that the respondent “stood. towards this woman for the time being in the place of her natural guardian and protector, and as such owed her a clear legal duty which he completely failed to perform.” The cases cited and digested establish that no such legal duty is created based upon a mere moral obligation. The fact that this woman was in his house created no such legal duty as exists in law and is due from a husband towards his wife, as seems to be intimated by the prosecutor’s brief. Such an inference would be very repugnant to our moral sense. Respondent had assumed either in fact or by implication no care or control over his companion. Had this been a case where two men under like circumstances had voluntarily gone on a debauch together and one had attempted suicide, no one would claim that this doctrine of legal duty could be invoked to hold the other criminally responsible for omitting to make effort to rescue his companion. How can the fact that in this case one of the parties was a woman, change the principle of law applicable to it? Deriving and applying the law in this case from the principle of decided cases, we do not find that such legal duty as is contended for existed in •fact or by implication on the part of respondent towards the deceased, the omission of which involved criminal liability. We find no more apt words to apply to this case than those used by Mr. Justice Field in United States v. Knowles, supra.

“ In the absence of such obligations, it is undoubtedly the moral duty of every person to extend to others assistancewhen in danger; * * * and if such efforts should be omitted by any one when they could be made without imperiling his own life, he would, by his conduct, draw upon himself the just censure and reproach of good men; but this is the only punishment to which he would be subjected by society.”

Other questions discussed in the briefs need not be considered. The conviction is set aside, and respondent is ordered discharged.

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


text:
    DICK v. GENERAL ASSEMBLY OF ORDER OF THE AMARANTH.
    1. Beneficial Associations — Constitutions —Amendment—Procedure.
    Amendments to the constitution of a society must be adopted in substantial accordance with the provisions of the constitution relative thereto and in force at the time.
    2. Same — Assessments—Nonpayment—Forfeiture.
    Under the laws of the Order of the Amaranth as they existed in 1895, failure to pay assessments and dues did not of itself work a forfeiture of a member’s right to benefits, but affirmative action on the part of the order was required to work a suspension. Petherick v. Order of Amaranth, 114 Mich. 420, followed.

      3. Same — Constitution—Unauthorized Changes — Acquiescence —Estoppel of Member — Question of Fact.
    Whether a member of a mutual benefit society had notice of changes in its constitution which were illegally adopted, and acquiesced therein so as to estop himself and his beneficiary from questioning the legality of their adoption, constitute a question of fact for the jury.
    Error to Wayne; Mandell, J.
    Submitted April 10, 1907.
    (Docket No. 12.)
    Decided December 10, 1907.
    Assumpsit by Emma Dick against the General Assembly of the Order of the Amaranth on a mutual benefit certificate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Maybury, Lucking, Emmons & Helfman, for appellant.

      Dickinson, Stevenson, Gullen, Warren & Butzel, for appellee.
   McAlvay, C. J.

Plaintiff brought suit as beneficiary under a certain certificate issued by defendant order to her deceased husband, John A. Dick, June 19, 1895. Upon the trial a verdict was directed by the court against plaintiff. Prom a judgment entered upon such verdict the case is brought before us for review. The facts of the case necessary to be stated in order to understand the questions at issue, are very few.

John A. Dick, a resident of Detroit, was initiated into defendant order, June 17, 1895. The certificate was issued to him and he continued to remain a member in good and regular standing, as is admitted by all parties, until June 28, 1900, when defendant claims he was suspended by reason of nonpayment of assessment. This suspension plaintiff insists was irregular and unlawful. Mr. Dick was what is known as a paying member. He did not attend the meetings of the order. It was understood at the time he joined that he could not attend.

In the application made by him and which is referred to and made a part of the consideration of the benefit certificate was the following statement:

“I further agree that strict compliance with all the laws, regulations and requirements, which are or may hereafter be enacted by the order, is the express condition upon which I am entitled to have and enjoy all the rights, benefits and privileges of the Order of the Amaranth.”

It appears to be conceded in the case that appellant’s recovery depends upon whether any lawful amendment was made to the constitution and laws of defendant order, which justifies this suspension. The record shows that amendments of the constitution and laws were recommended and submitted as the result of meetings of the representative body of the order held September 8, and October 16, 1897. The result of the submission was that all of the amendments proposed were defeated. This is admitted by defendant. This submission included amendments of the rates, and the provision relative to suspension. It is claimed by defendant that another submission of amendments was made as the result of a special meeting of the representative body of the’ order held April 7, 1898. This is the submission upon which defendant relies as' amending the schedule or rates, and the provision for the suspension of members for nonpayment of assessments.

It is claimed by defendant that the witness general secretary Sinclair testified that the proposition to amend the provision for suspension was submitted. His testimony is not susceptible of that construction. Twenty-five motions (amendments) were submitted. As far as this record shows an amendment relative to suspension was not submitted.

Amendments to the constitution of a society must be adopted in substantial accordance with the provisions of the constitution relative thereto and in' force at the time. Niblack on Accident Insurance & Benefit Societies, § 17; Bear v. Heasley, 96 Mich. 279 (24 L. R. A. 615); Lemp v. Haven, 113 Mich. 375; Kuhl v. Meyer, 42 Mo. App. 474; Torrey v. Baker, 1 Allen (Mass.), 120.

The provision under which action was taken having been decided to have been of no force, it remains to decide whether, under the law as it was at the time the insurance contract was made, the failure to pay assessments and dues would of itself work a forfeiture. This court has construed this provision of this constitution and held, that it would not, but that affirmative action was required to work a suspension. Petherick v. Order of Amaranth, 114 Mich. 420.

There is a claim made by defendant that Mr. Dick had notice of or acquiesced in these changes, and cannot question the regularity of their adoption. If there is any force, in the contention, the question was one of fact to be submitted to the jury. For the errors pointed out, the judgment is reversed, and a new trial granted.

Carpenter, Grant, Blair, and Ostrander, JJ.5 concurred.


author: Grant, J.

text:
    PERE MARQUETTE RAILROAD CO. v. GRAHAM.
    1. Ejectment — Evidence—Plat—Admissibility .
    “Where the deeds under which both parties to an action of ejectment claim title, as well as other deeds introduced in evidence, describe and convey the lots in dispute according to a certain plat, and it appears that lots in the city have been conveyed with reference to it, and the streets shown by it have been used as public highways for more than 20 years, the plat is admissible in evidence as an instrument referred to in the deeds, though it was so defectively executed as not to be entitled to record.
    2. Boundaries — Surveys—Starting Point —Street Corners— Defective Plat.
    An iron pin, buried deep in the ground, that has been recognized for many years as marking the intersection of two streets, according to a plat in use as such for upwards of 60 years, is properly used as a starting point from which to locate the boundaries of the lots on the ground, though the plat itself contains no description of any starting point, and is so defectively executed as not to be entitled to record.
    Error to Berrien; Coolidge, J.
    Submitted April 9, 1907.
    (Docket No. 40.)
    Decided December 10, 1907.
    Ejectment by the Pere Marquette Railroad Company against Edmond A. Graham and others. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Marshall L. Howell and Lawrence O. Fyfe, for appellants.

      Stevens, McPherson & Bills ( Victor M. Gore, of counsel), for appellee.
   Grant, J.

This is an action of ejectmentfor the south two-thirds of lot number 451 in the city of St. Joseph. On the first trial the court directed a verdict for the defendants. That judgment was brought to this court and reversed. 136 Mich. 444.

Two questions were settled upon substantially the same record, which need not now be considered. It was there held that the foreclosure proceedings and the deed based thereon covered after-acquired property, including that in dispute. It was also held that there were two disputed questions of fact, namely: Was the land in dispute a part of the south two-thirds of lot 451 ? And had defendants acquired title by adverse possession ? It only remains to be determined whether the court committed error during the progress of the trial in admitting or rejecting testimony, and in its instructions to the jury.

The evidence upon adverse possession was conflicting. The court gave to the jury 14 of the defendants’ requests upon this point, which completely covered the law of adverse possession. These principles are familiar to the profession, and no further reference to the subject is required. One Brittain formerly owned the tract of land situated on the north side of St. Joseph river, extending to the lake. He made a plat of the land which now constitutes the city of St. Joseph. It was platted as the village of Newberryport and recorded in 1831. Between a steep bluff and the river was a strip of low land. Near the foot of the bluff was located a street called Water street. Between this street and the river bank were platted lots numbered from 433 to 466. This plat was recorded in the office of the register of deeds. There was a bend in the river along the front of a part of these lots, so that the river fronts and the street fronts of some of the lots were not the same. The plat contained no reference to monuments, and there is no evidence .that the lots were originally staked out, or that any monuments were then placed from which the lots could be identified.

Objection was made to introducing in evidence a certified copy of the plat of the village of Newherryport because it (the plat) did not in all respects comply with the law under which it was executed, and was therefore not entitled to record. Deeds under which both parties claim title, as well as deeds of other lots, introduced by defendants, described and conveyed the lots according, to this plat. Lots in the city of St. Joseph had been conveyed with reference to it, and the streets shown by it had been used as public highways for more than 20 years. Although it was so defective as not to be entitled to record, still it was admissible in evidence as an instrument referred to in the deeds. Johnstone v. Scott, 11 Mich. 232; Wiley v. Lovely, 46 Mich. 83; Quinnin v. Reimers, 46 Mich. 605.

As to the original location of lot lines, the court stated to the jury the theory of each party. Upon this point the court instructed the jury in part as follows:

“ Now, the real question in this case, so far as the title is concerned, is whether this Riverside House is on lot 451 according to that plat. Now, the contention of the plaintiff is that this Riverside House, which is now in possession of defendants, is on lot 451. The contention of the defendants is that the evidence don’t show that this Riverside House is on lot 451. Now, the burden of proof devolves upon the plaintiff to show by a preponderance of evidence that this Riverside House is located on lot 451. Of course it is immaterial whether the defendants have any title to the premises or not, if the plaintiff has not established his title. The plaintiff must make out his title to this Riverside property or he fails in the action.
“ Now, the plaintiff, in order to support his theory, has introduced the plat of the original village of St. Joseph or Newberryport, and the testimony of certain surveyors and engineers. The testimony, of these surveyors and engineers is not conclusive, that is, you have a right to determine whether they have made a correct survey or not, whether they have got a correct starting point, whether they have used the proper methods or not. At the same time, gentlemen, it is your duty to pay due regard and respect to surveyors of ability and experience, unless you have some reason to question their integrity in the matter. I mean by that, where surveyors have been occupied in their business for a long time, and experienced surveyors, why of course their testimony is entitled to weight, but of course it is not conclusive. You have a right to consider all the facts and circumstances in the case, and determine whether they have proceeded according to right methods, whether they have used the right starting point and whether their theory is correct or not.
“ In this case the plaintiff’s surveyors started out from an iron pin in Broad street at the intersection of Main and Broad. They assumed that that iron pin was in the center of Broad street, and from thence they started their survey, proceeding westward. They proceeded westward to Water street and found a number of iron pins, one at the corner of Front and Broad streets, one down on Water street; and from thence they proceeded — extended their line northward along Water street, finding other pins or what was assumed to be the intersections of streets.
“Now, this claim of the plaintiff is that, extending those lines from that iron pin at the intersection of Broad and Main streets, these iron pins which they found along their course were where they should have been; in other words, that they agreed with each other and that furnished evidence by which they conclude that the starting point was correct. * * *
“ If you find that the circumstances, the manner of the survey, the existing conditions all go to establish that survey to a reasonable certainty and leading to the conclusion that the Riverside House was on lot 451, then you will find that the original or record title of the Riverside House was on lot 451, and the plaintiff, so far as the original title is concerned, would be entitled to recover.
“Now, the contention of the defendants is, gentlemen, that- no starting point has been established in this case. Of course no government monument is in evidence; it does not appear that the plaintiff’s surveyor started from any monument erected by the government, and they say there is no reason why the surveyor should not have started from the north line instead of the south line, that is, from lot 440 up on State street.
“Now, it appears in this case from the testimony of the surveyors of the plaintiff that lots 440 down to 450 are less than 66 feet in width. Now, it is contended by the defendants that no reason is shown why those lots should be made less than 66 feet, or less in width than the lots south of 450. This is a mere matter of argument for you to consider in the case.
“It appears also in this case from the evidence produced by the defendant that Calvin Brittain, the original proprietor and platter of these lots, made deeds of these lots in 1832, the year after the plat was made, and by those de.eds he described the width of the lots as 66 feet frontage on Water street. Now, gentlemen, you have a right to take those deeds into consideration. The defendant has argued and insisted that those deeds are conclusive. I don’t charge you that they are conclusive, but you have a right to take them into consideration for this purpose, as showing what the understanding of the original platter was as to the width of those lots. It is an important factor in the case. The deeds having been made at or near the time the plat was made, those deeds • show what the understanding of Mr. Brittain, the original platter, was. as to the width of those streets. As I say, at the same time, I do not hold that they are conclusive. If they were I should have to direct a verdict for the defendant, but I hold those deeds merely constitute a fact in the case, and you have a right to take them into consideration.
“The defendants also have introduced a deed from Wallace to Joy, and their contention is that by that deed it appears Morrison and Joy thought the Riverside House was either on lot 449 or 450. The theory of the defendant is that the house was on 450. The contention of the plaintiff in regard to that deed is that none of the parties knew where the Riverside House was located at all, and that the transactions in regard to the Midway and with regard to the driveway support the' contention of the plaintiff rather than that of the defendant. I leave those facts entirely for you, for your consideration, and do not comment or criticise them in any way.”

The theory of the defendants is not that they have established title according to established monuments, but that the plaintiff has failed to establish title by any original monuments, or that the monuments they, found and from which they made their measurements, were established monuments. Their counsel assert:

“ The plat contained no statement of any character indicating the scale upon which it was drawn, or the course of any lines or distance or dimensions; no section or other government lines appear upon it, and no monument or starting place of any character is designated; no description of the property platted or of the plat itself, — no words of dedication and no field notes are attached to it.”

Yet the validity of the plat was recognized for more than 60 years, and deeds were made conveying land by reference to it. Iron pins were located at the intersection of streets, buried deep in the ground. When they were placed there the record does not disclose. It was also shown by the records of the common council that by an ordinance of the village the intersection of the center of Vine street with the south line of Ship street is shown by an iron pin. The surveyor found that pin. The record does not state when this action of the common council was taken. It is apparent that it was a long time ago. The date must have appeared from the record of the council.' It was competent to use this as a starting point.

“Streets that have been opened in supposed conformity to a plat, and have been long acquiesced in, should be accepted as fixed monuments in locating lots or blocks contiguous thereto or fronting thereon.” Van Den Brooks v. Correon, 48 Mich. 283.

See, also, Twogood v. Hoyt, 42 Mich. 612; Hoffman v. City of Port Huron, 102 Mich. 432.

This rule applies to landmarks or monuments which have long been recognized and established in supposed conformity to a recorded plat.

Under the theory of counsel for defendants, it would be impossible for any lot owner to establish his title in any other way than by adverse possession, and, as the court said to the jury, that was the principal claim of the defendants. The defendants’ surveyors ignored the pins and other monuments, and, asoné of them said, “failing to find pins in many intersections and finding other pins that misled me in my surveys, I adopted the sidewalks as established and went by them,” though he admitted that he would not deem sidewalks, laid without a survey, to be a safe and proper guide in determining street lines.

The plaintiff employed educated and experienced engineers. They examined all the records and obtained all the information possible. Acting, upon the information thus obtained, they located the monuments above described and found them to correspond with the plat. The evidence was competent. It would not be profitable to set forth in detail the testimony of the surveyors for the respective parties. It would unnecessarily lengthen this opinion. It was conflicting, and the issues were properly submitted to the jury. We find no error in the rulings of the court during the trial, or in his instructions.

The judgment is affirmed.

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


author: Grant, J. Ostrander, J.

text:
    VANDENBERG v. SLAGH
    1. Physicians and Surgeons —Claim for Services — Malpractice — Set-off.
    Under proper pleadings, malpractice may be proven for the purpose of defeating a claim for services rendered by a physician or surgeon.
    2. Justices of the Peace — Pleadings — Notice of Recoupment —Malpractice by Surgeon — Defense—Issues.
    Where a surgeon sues in justice’s court for services, the pleadings being oral, a notice of special defense that the defendant will recoup for the negligent manner in which plaintiff performed the service is sufficient to authorize the giving on appeal of an instruction that the plaintiff cannot recover if the jury find he did his work in such a careless and negligent manner as to produce an injury to the patient. Grant and Hooker, JJ., dissenting.

      . Case made from Ottawa; Padgham, J.
    Submitted April 16, 1907.
    (Docket No. 57.)
    Decided December 10, 1907.
    Assumpsit by John W. Vandenberg against Conrad B. Slagh for services rendered. There was judgment for plaintiff, and defendant appeals.
    Reversed.

      Smedley & Corwin, for appellant.

      Diekema & Kollen, for appellee.
   Grant, J.

The plaintiff, a surgeon, sued to recover the value of services of himself, and assistants in setting the broken arm of the defendant’s son at the defendant’s request. The plea of the general iss,ue was accompanied by a notice of recoupment, for such negligent treatment that the son is unable to perform manual labor for the defendant, to his damage of $300, or under. The case was commenced in justice’s court, and defendant has by successive appeals brought it to this court.

He claims that the testimony in the case warranted a finding that the services were valueless, and that the court erred in not instructing the jury that—

“If you find that the plaintiff and his assigns did their work in such a careless or negligent manner that it resulted in the young man, the defendant’s son, having a stiff arm which disables him from using it like he does the other arm, then the plaintiff cannot recover, and your verdict should be ‘ No cause for action.’
‘ ‘ The plaintiff and the other doctors who assigned their claims to him, held themselves out to the public as physicians and surgeons, and the public have a right to expect, and the doctors hold themselves out as able to perform, the necessary surgical operations that they may be called upon to perform in the neighborhood where they live and practice their profession; and when these doctors undertook this surgical operation, the law implies a contract on their part, that they will do a good workmanlike job, and such an operation as would give the defendant’s son the use of his arm for all practical purposes; and if they do not turn out a good operation and the result of their operation, through their carelessness or neglect, produces an injury to defendant’s son which is permanent and disables him for life, then the plaintiff has no right to ask compensation which he would have a right to ask if the re- , suit of their operation had proved successful.
“ If you find that the bad result of this surgical operation was the neglect on the part of the doctors to manipulate the arm, and that stiffness was the result of this neglect, then the plaintiff cannot recover and your verdict should be ‘ No cause for action.’
“ The plaintiff sues for $125, the amount of the different doctors’ bills; if you find that the doctors did their full duty and were not negligent in the performance of their duty, then you come to the consideration of the amount due the doctors. You have a right to consider the time spent by them, whether it was necessary to have three doctors the first day, and four doctors the second day, and whether the sums charged by each are reasonable under the circumstances. If you find that the doctors were not to blame for the condition you find the boy’s arm is in, then you should give them such a sum as will compensate them for their labor; but if you find that the condition of the boy’s arm is the result of carelessness or neglect on the part of the doctors, then the doctors have not performed then-part of the contract, and your verdict should be ‘No cause for action.’”

Counsel were not entitled to have their requests given. It was competent for the defendant to prove that these services were worthless, and if there was any proof going to that extent it might have led the jury to so find, but in the face of the testimony, it was at the most a question for the jury. The circuit judge could not properly have said, as a legal proposition, that if, through negligence of the plaintiff and his assistants, the result was a partially stiffened arm, there could be no recovery of any sum. He did not instruct them that they might find a verdict of no cause of action upon the ground that the services might be found valueless. It does not appear that he was requested to do so, plaintiff’s counsel apparently relying on the claim that, if there was malpractice, there could be no recovery whatever, if it caused a stiffened arm, upon the theory that in such case the services had no value.

The learned circuit judge did say to the jury that they should find a verdict for the plaintiff, if they should find the services rendered, for such sums as they should find them reasonably worth. Evidence was offered tending to show that $125 (the price charged) was an unreasonable price if the result of plaintiff’s negligence was a stiffened arm, and counsel say in their brief that—

“ Physicians were also sworn on the part of defendant to show that the plaintiff did not begin to manipulate the elbow joint soon enough, and for that reason it became stiff. And also to show thát if the arm, on account of the negligence of the plaintiff and his assigns, was a stiff arm, then the services were of no value, and this price of $125 was unreasonable.”

But we fail to find that this statement has the support of the record. There appears to be no evidence of want of value except the fact of a partially stiffened arm as a result of plaintiff’s negligence, and there was no indication that plaintiff’s counsel contended that there was any such testimony, or any such question for the jury, though counsel insisted that the-court should instruct the jury to find that plaintiff could not recover if a stiffened arm resulted from malpractice. Under these circumstances, the cause should not be reversed for the omission mentioned.

The question of recoupment was taken from the jury. The judge correctly held that the only damages which the defendant could recoup, upon this record, were for loss of services. This he would have left- to the jury but for the fact that he was of the opinion that there was no evidence as to the amount of such damage. He said:

“ The question is, Where is there any evidence in this case before you as to the amount of damage that he has sustained by his minor son’s not being able to work for him ? That is the point. How many days ? How much a day or how much a year ? Or how long has the boy to work? And all that sort of thing. Has there been any such testimony in the case ? I don’t recollect of any at all; I may be mistaken about" it but I cannot recollect now that there has been any such testimony in the case, as to how much the boy could'’ earn, how much he earned before, how much he earns now, how much he worked before, how much he worked since. There has been some testimony here that he worked upon the farm, that he plowed and raked and sowed and mowed and that sort of thing. But is there any testimony in the case upon which you could say under your oaths, if he has been damaged, how much he has been damaged, that you can take out of this $125, or has he been damaged so that you can say that the whole $125 should be taken out ? ”

All that the record shows upon this subject is that—

“Defendant offered evidence tending to show that the arm was partially stiff, and that the boy was unable to get his hand to his mouth. That it was his right arm that was broken, and that he was unable to reach his face with his right hand. That he could not move the arm as well as before, but only had a partial movement of the elbow joint. That he could plow, run the self-binder, handle creamery cans, and do other farm work.”

The basis of defendant’s claim of recoupment is the contract of employment. The law implies an agreement by the plaintiff to bring to its performance reasonable skill and care. If he failed to do this there was a breach of the contract, and, under the plea and notice, defendant was entitled to damages for the breach, to the extent of his injury, from lost or impaired service, if any is shown. In actions for breach of contract, nominal damages are recoverable upon proof of the breach. Wyatt v. Herring, 90 Mich. 584, and cases cited; but in order to recover substantial damages the plaintiff must offer evidence from which the loss can be computed with reasonable certainty. Telfener v. Russ, 145 U. S. 522; Hibbard v. Telegraph Co., 33 Wis. 558; Supreme Lodge Knights of Pythias v. Knight, 117 Ind. 489 (3 L. R. A. 409); 2 Joyce on Damages, §§ 1282, 1283; 7 Current Law, p. 1038, note; 4 Enc. of Evidence, p. 6, and cases cited.

Under the evidence in this case, substantial damages and their amount are conjectural.

The judgment should be affirmed.

Hooker, J., concurred with Grant, J.

Ostrander, J.

The only question presented by the record is whether under the pleadings the evidence tending to prove malpractice should have been submitted to the jury. It is the theory of defendant that the malpractice alleged may and should defeat in whole or in part a recovery by plaintiff. None of the requests preferred indicate a claim on the part of defendant to recover against plaintiff a judgment for damages. The entire subject of malpractice was withdrawn from the jury. Under proper pleadings, malpractice may be proven for the purpose of defeating a claim for services rendered by a physician or surgeon. McLure v. Hart, 19 Ark. 119; 16 Enc. Pl. & Pr. p. 534; Howell v. Goodrich, 69 Ill. 556; McKleroy v. Sewell, 73 Ga. 657; Ressequie v. Byers, 52 Wis. 650; Jordahl v. Berry, 72 Minn. 119 (45 L. R. A. 541); Bellinger v. Craigue, 31 Barb. (N. Y.) 534; Patten v. Wiggin, 51 Me. 594; Whitesell v. Hill, 101 Iowa, 629 (37 L. R. A. 830). Our statute, 3 Comp. Laws, § 10426, reads:

“If any person professing or holding himself out to be a physician or surgeon shall be guilty of any malpractice, an action on the case may be maintained against such person so professing, and the rules of the common law applicable to such actions against licensed physicians and surgeons shall be applicable to such actions on the case; and such malpractice may be given in evidence in bar of any action for services rendered by such person so professing.”

The action was begun in justice’s court, the pleadings were oral, the notice of special defense as it is set out in the record was—

“Of recoupment for the negligent manner in which plaintiff performed the services for the recovery of which this suit is brought, to wit, setting the broken arm of defendant’s minor son in such a negligent manner that he is unable to perform manual labor for the defendant, to the defendant’s damage of $300 or under.”

This notice and the testimony introduced by both parties put in issue the negligence (malpractice) of the plaintiff and the assisting physicians. The record shows that the defendant’s evidence tended to show that if the result had been a good arm with a flexible elbow joint, the price of $125 (the amount of the various items of charges made ) would not be unreasonable, and the testimony also tended to show that if the arm, on account of the negligence of the plaintiff and his assistants, was a stiff arm, then the price of $125 was unreasonable. Each of the requests to charge sought to have the testimony applied to the detérmination of the right of plaintiff to recover; the second request correctly applies the law to the facts if the claim of the physicians was apportionable, the others as correctly state the law if it was not apportionable.

In my opinion, the requests to charge should be treated as a limitation of the demand of defendant under his notice of recoupment rather than as advancing a new and special defense of which no notice had been given. Any other ruling would rest upon a technicality which the rights of the plaintiff do not require to be employed. Defendant’s second request should have been given and it was error to say to the jury after explaining to them a theory of defendant’s claim of recoupment which did not include the point here discussed, that (I quote from the charge):

“In that view of the case my idea is, it is unneces-' sary to go into this question and leave this to you, whether the injury of this arm has been well attended to or whether it has not. ”

The judgment, should be reversed, and a new trial granted.

McAlvay, C. J., and Carpenter, Blair, Montgomery, and Moore, JJ., concurred with Ostrander, J.


text:
    GRANDCHAMP v. McCORMICK.
    1. Drains — Establishment — Proceedings — Review — Equity— Adequate Remedy at Law.
    Certiorari, as provided by section 4346, 2 Comp. Laws, provides a complete and adequate remedy for the review of the legality of proceedings to establish a drain, and interested landowners cannot ignore the statutory remedy and maintain a bill to restrain the construction of a drain on such grounds. Grandall v. McElheny, 146 Mich. 191, followed.
    2. Constitutional Law — Courts—Drains—Review of Proceedings.
    Since the certiorari provided by section 4346, 2 Comp. Laws, for the review of proceedings to establish a drain affords a complete and adequate remedy for the purpose, the statute cannot be said to be unconstitutional on the ground that it denies to the courts inherent jurisdiction granted by the Constitution, since chancery has never assumed jurisdiction in cases in iyhich the suitor has a full, adequate, and complete remedy at law.
    Appeal from St. Clair; Law, J.
    Submitted April 15, 1907.
    (Docket No. 96.)
    Decided December 10, 1907.
    Bill by Frank Grandchamp and others against George McCormick, drain commissioner, to enjoin the construction of a drain. From an order sustaining a demurrer to the bill, complainants appeal.
    Affirmed.

      A. E. Chadwick, for complainants.

      Avery & Walsh, for defendant.
   McAlvay, C. J.

Complainants filed their bill of complaint in the circuit court for St. Clair county, in chancery, against defendant county drain commissioner. The purpose of the suit is to perpetually restrain the construction of a certain drain established under the general drain laws. To this bill a demurrer was interposed by-defendant for the reasons:

First. Because complainants have a full, adequate and sufficient remedy at law

Second. Because complainants should have proceeded by certiorari and having failed to do so, the bill of complaint cannot be maintained.

Third. Because the several matters alleged have been adjudicated in the probate court.

This demurrer was sustained on the ground that the remedy sought was not in compliance with section 4346, 2 Comp. Laws, citing as controlling, Crandall v. McElheny, 146 Mich. 191. Complainants have appealed.

It appears from the bill of complaint, which must be taken as true upon this hearing, that a hearing was had in probate court upon the proceedings to establish the drain in question before a jury demanded by complainants. The circuit judge stated in his opinion:

“This bill of complaint was filed on January 25, 1907. * * * It appears by concession of counsel that the final order of determination establishing the dráin was filed with the county clerk on December 8, 1906. The bill of complaint recites at some length the history of the proceeding; the fact that two condemnation juries were had in the probate court; that the first jury disagreed, but that the last jury determined the drain to be practicable and necessary, and awarded complainants certain damages. It appears by the bill of complaint that the principal issues here raised have been contested in probate court before the condemnation jury.”

We agree with the circuit judge that the case cannot be distinguished from the case of Crandall v. McElheny, supra. Counsel for complainants fails to distinguish between this case and the case of Hudlemeyer v. Dickinson, 143 Mich. 250, upon which he relies. In that case the legality of the establishment of the drain was not attacked. The proceedings in determining the district and making and confirming the assessment were set aside and vacated, and the drain commissioner was ordered to begin such proceedings de novo. In the case at bar, as already stated, the objections relied upon were before the probate court and werepassed upon. They could have been reviewed upon certiorari. It is not pointed out to. us wherein such remedy is not complete and adequate.

It is claimed that this statute denies to courts inherent jurisdiction granted by the Constitution, and thereby deprives complainants of constitutional rights. A court in chancery has never assumed jurisdiction where a suitor has a full, adequate, and complete remedy at law. In this case we are not informed in what particular complainants can be injured or deprived of rights under the remedy provided by statute. No constitutional objection to the application of the statute to the case made by complainants is pointed out. Crandall v. McElheny, supra. See, also, Auditor General v. Bolt, 147 Mich. 283.

The decree is affirmed.

Montgomery, Ostrander, and Moore, JJ., concurred. Hooker, J., concurred in the result.


author: Hooker, J.

text:
    DENEEN v. HOUGHTON COUNTY STREET-RAILWAY CO.
    1. Dismissal and Nonsuit — Voluntary Nonsuit — Propriety.
    The practice of allowing a plaintiff to submit to a voluntary nonsuit at any time before the jury have retired, even after the judge has indicated his purpose to direct a verdict for defendant, has the sanction of long usage, and is a protection against defeat through surprise, disappointment, or technicalities which otherwise might defeat justice.
    2. Street Railroads — Personal Injuries — Crossing Accident— Negligence — Evidence—Sufficiency.
    In an action against a street-railroad company for a personal injury inflicted in a crossing accident, evidence tending to show fast running and failure to decrease the speed of the car before plaintiff was struck, together with testimony by plaintiff that he heard no gong sounded, held, sufficient to carry the case to the jury on the question of defendant’s negligence.
    3. Same — Contributory Negligence — Failure to Observe Approach of Car.
    Failure to observe the approach of a street car until it was within 100 feet of the crossing, when it might have been seen much farther away, is not conclusive of plaintiff’s negligence, the speed of the car and the necessity of looking in the opposite direction first entering into the question, and making it one for the jury.
    4. Same — Attempt to Cross After Discovery of Car.
    An attempt to cross a street-car track after discovery of a car 100 feet away, instead of trying to back one’s team away, is not necessarily negligent, but the question depends on the eircumstanoes and is one for the jury.
    5. Same — Negligence — Speed Ordinance — Applicability to After-Acquired Territory.
    A municipal ordinance regulating the speed of street-railroad cars is a police regulation, and applies to after-acquired territory in which a street railroad is in operation under a grant from another source, and affords a sufficient basis for an action for a personal injury due to its breach.

      6. Negligence — Contributory Negligence — Acts in Emergencies — Instructions—Propriety.
    Where the question of plaintiff’s contributory negligence arose in an action against’a street-railroad company for a personal injury inflicted at a crossing, it appearing that plaintiff attempted to cross after discovering the approaching car instead of backing his horses away, it was not error to instruct - the jury that a plaintiff, in attempting to take what appears to be the safest course to avoid a discovered danger, is not necessarily guilty of negligence, although he does not use the best of judgment.
    7. Damages — Personal Injury — Permanent Injury — Instructions — Propriety.
    Where, in a personal injury case, there is no testimony that indicates a probability that the injury will be permanent, the giving of an instruction that permits the jury to find that the injury is permanent and to base damages thereon is harmful.
    Error to Houghton; Streeter, J.
    Submitted June 11, 1907.
    (Docket No. 64.)
    Decided December 10, 1907.
    Case by John Deneen against the Houghton County Street-Railway Company-for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Ghadbourne & Bees, for appellant.

      Burritt & Burritt, for appellee.
   Hooker, J.

The undisputed evidence in this cause shows that, when 28 feet distant from the rail of defendant’s car track, the plaintiff could have seen a car distant 450 feet to the northwest of the crossing in front of him. At that time his horses’ heads would have been 11 feet from the rail. He testified that he looked and listened all of the way from a point 60 feet from the track, yet did not see a car until his horses’ heads were within two feet of the track, when he saw it about a hundred feet away. He then whipped up his horses but the sleigh was struck and he was injured. A verdict was rendered for the plaintiff and defendant has appealed.

The important points raised are:

1. Should a verdict have been directed for the defendant ?

2. Was it error to admit an ordinance of the village of Hancock ?

3. Conduct of counsel.

4. Errors in the charge.

On the trial of the former action for the same cause, the defendant moved at the close of the evidence that a verdict be directed for the defendant. The point was argued and the court indicated that while there was evidence of defendant’s negligence, he thought that plaintiff was guilty of contributory negligence. He began to address the jury to that effect when the plaintiff submitted to a nonsuit. It is contended that the judgment rendered thereon is a bar to this action and it was pleaded in bar. We understand that at common law a plaintiff may submit to a voluntary nonsuit at any time before verdict. The practice has been modified by Cir. Ct. Rule 14 d. Apparently counsel do not.insist upon the point but suggest a rule precluding this practice. This is a practice which has the sanction of long usage and is a protection against defeat through surprise, disappointment, or technicalities which otherwise might defeat justice. We see no good reason for changing the rule.

Should a verdict in defendant’s favor have been directed? Counsel base such claim upon two grounds: (1) That there was no evidence indicating defendant’s negligence; (2) that contributory negligence was conclusively shown.

The accident occurred at the junction of two streets crossing at right angles, both car and plaintiff’s team approaching each other on down grades. The declaration alleged various acts of negligence, such as running too fast, failure to give signals, etc. There was evidence tending to show fast running and a failure to decrease speed before plaintiff’s sleigh was struck. He was asked if any gong was sounded and replied: “No, sir, I didn’t hear any.” This was some evidence tending to show the failure to give the signal, plaintiff being close by, and where he could and naturally should have heard them if given. There was evidence sufficient to carry the case to the jury upon the question of the defendant’s negligence.

Contributory Negligence: The plaintiff did not get an unobstructed view of the track for 450 feet until his team was within 11 feet of the rail, when he saw the car about 100 feet away. It is manifest that from his surroundings he must have been able to see a car much more than a hundred feet away before his horses were so near the track. A jury might well say that a failure to see the car earlier was sufficient evidence of his negligence. There are, however, several other thingB which enter into the question, such as the speed at which he and the car were going, and the necessity for his looking to the east before looking to the west, which may have been justified by more difficulty in ascertaining whether a car was near from that direction than from the west. Again, after seeing the car about a hundred feet away, he determined to try to get across. We cannot say that it was negligent to do that instead of trying to back his team away from the car. It all depends upon the circumstances, and the question was one for the jury. One better take a serious chance of injury than to drive immediately in front of a car with the certainty of being struck; but, as such certainty diminishes by reason of increased distance and apparent opportunity to cross safely, the negligence of an attempt to cross is not so clear, especially where the character of the team and surroundings make any other course necessarily hazardous. This was a question for the jury.

Counsel for defendant assert, however, that it was error to allow the plaintiff’s counsel to introduce an ordinance of the village of Hancock restricting defendant’s rights to run its cars faster than eight miles an hour. This ordinance was one passed by the village council some years before granting a franchise to the defendant to build its road in the village of Hancock upon certain streets. The following is a portion of the ordinance:

“Said cars shall after sunset be provided with proper signal lights, shall be properly heated in cold weather, and shall be run at a rate of speed not exceeding eight (8) miles an hour within the limits of said village.”

The place where the plaintiff was injured was not within the village at the time the grant was made, and defendant acquired its right to construct and operate its road at that point from other sources. Defendant’s counsel do not question the authority of the village authorities to make ordinances regulating speed at this point, but claim that they have not done so, and that the ordinance in question did not become operative as 'to that locality by the subsequent extension of the village limits; in other words, their contention is that the defendant might lawfully operate its road in compliance with its vested right, acquired from the outlying township, subject, to the obligation of complying with such police regulation as should be made by the village after acquiring jurisdiction of this territory. Its grant was made under 2 Comp. Laws, § 6446, which provides:

“ Such company may extend, construct, etc., their road, in and along the streets or highways of any township adjacent to said city or village, upon such terms and conditions as may be agreed upon by the company and the township board of the township.”

It is the general rule that a genera* ordinance applies to all territory within the corporate liinits at the time of its passage, and becomes effective in additional territory when such is attached. St. Louis Gaslight Co. v. City of St. Louis, 46 Mo. 121; 6 Current Law, p. 718; 21 Am. & Eng. Enc. Law (2d Ed.), p. 996. See Virginia v. Smith, 1 Cranch C. C. (U. S.) 47, as to an ordinance prohibiting slaughter houses, and Town of Toledo v. Edens, 59 Iowa, 352, as to regulation of liquor traffic, where the court said:

“If an ordinance be enacted and afterward the city limits be extended by adding thereto adjacent territory, no one would contend that a new ordinance must be passed in order to be operative in the newly-acquired territory.”

See, also, Swift v. Klein, 163 Ill. 274; Covington v. City of East St. Louis, 78 Ill. 548; 1 Dillon on Municipal Corporations (4th Ed.), § 185, and note on page 268; McQuillin on Municipal Ordinances, § 40 et seq., and note, and § 397.

We are of the opinion that this provision of the ordinance was intended for the protection of the citizens, and that it was in the nature of a police regulation, although it may also have aided in establishing contractual relations (see McQuillin on Municipal Ordinances, § 11), and that actions for personal injuries due to its breach, and alleged as such (as in this declaration), may, be brought by the injured person. See McQuillin on Municipal Ordinances, § 40, and note. Manifestly, then, the ordinance was admissible. McQuillin on Municipal Ordinances, § 40, note 9, and § 397; Flater v. Fey, 70 Mich. 644; Haines v. Railway Co., 129 Mich. 475; Iamurri v. Gas Co., 148 Mich. 27; Blickley v. Luce’s Estate, 148 Mich. 233.

It was not error to instruct the jury that a plaintiff in attempting to take what appears to be the safest course to avoid a discovered danger is not necessarily guilty of negligence, although he does not use the best of judgment.

The court instructed the jury as follows:

‘ ‘ In considering the question of damages, you are also to determine from the evidence whether the plaintiff has entirely recovered from his injuries or whether his injuries are permanent. And if you find that he has not entirely recovered from his injuries, or that his injuries\ are permanent, and that he will suffer total or partial loss of time in the future, and mental and physical pain in the future, you should in such case award such additional amount as you find from the evidence he should recover to fully compensate him for loss of time and what he will suffer in the future.”

There was no testimony in the case that indicated a probability that the injury would be permanent, though there was testimony that there was a possibility that he might never entirely recover. While two physicians so testified, they united also in the opinion that there would probably be complete recovery in a period of from two months to two or three years. To leave the jury the opportunity of finding that the injury was permanent and basing damages thereon was harmful. The evidence did not tend to prove that the injury was permanent, and the instruction mentioned should not have been given.

We need not consider other questions as they may not arise upon another trial.

We are constrained to reverse the judgment. A new trial is ordered.

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


author: Carpenter, J.

text:
    ROY v. BORDAS.
    1. Pleading — Declaration—Immaterial Averment — Variance —Effect.
    In an action for damages for a fraudulent conspiracy, of which the organization of a corporation under Act No. 232, Pub. Acts 1903, is alleged to have been a necessary step, an averment in the declaration that the articles of incorporation were made and executed ‘ ‘ under oath ” is an immaterial one, there being no provision in the statute for executing articles under oath, and articles conforming otherwise in their legal effect to the averments of the declaration are admissible in evidence, though they do not appear to have been executed under oath.
    2. Fraud — Conspiracy — Organization of Corporation — Evidence — Admissibility—Articles of Incorporation.
    A declaration claiming damages for inducing plaintiff by means of a fraudulent conspiracy to invest money in worthless stock of a corporation, averring that the formation of said corporation and the execution of its articles was a necessary step in the scheme of fraud by which plaintiff was victimized, is not based upon the false representation contained in the articles of incorporation, but upon the fraud of which the execution of the articles was a preliminary but necessary step, and the articles are admissible in evidence under the declaration irrespective of whether an action could be maintained upon a false statement in such articles.
    3. Trial — Reoeption of Evidence — Rulings—Rejection of Evidence-Grounds.
    Where a ruling rejecting articles of incorporation offered in evidence is based upon a variance between the articles offered and those described in the declaration, a contention on error that the exclusion of the articles was not erroneous, because they were not admissible until plaintiff had by other evidence prima facie established the conspiracy declared upon, is untenable, since, under the ruling, plaintiff had no right at any stage of the trial to introduce the articles in evidence, and the court could not affirm the judgment without holding that plaintiff had no such right.

      Error to Houghton; Streeter, J.
    Submitted June 11, 1907.
    (Docket No. 78.)
    Decided December 10, 1907.
    Case by Sophie Roy against Edward P. Bordas, Joseph Bosch, John H. Wilson, George W. Orr, and Norbert Sarazin for fraud. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Joseph F. Hambitzer, for appellant.

      W. P. Belden, for appellee Bordas.

      Ohadbourne & Bees, for appellees Bosch and Sarazin.

      W. E. Gray, for appellees Wilson and Orr.
   Carpenter, J.

Plaintiff in this suit seeks to recover damages because, as she alleges, she was induced by a fraudulent conspiracy of defendants to invest $1,000 in worthless stock of a corporation called “The Cor-Ago Company.” According to the averments of the declaration, the formation of said corporation was a necessary step in the scheme of fraud by which plaintiff was victimized, and it is therein charged that said corporation was organized “under Act No. 232 of the Public Acts for the State of Michigan for the year 1903, for the purpose of manufacturing various medicines and preparations, and * * * said defendants made and executed under oath ” its articles of incorporation. To this declaration defendants pleaded the general issue.

The cause came on to be tried before the circuit judge and a jury. After plaintiff had introduced in evidence said articles of incorporation, which were duly acknowledged before a notary public as required by the act of incorporation, the trial judge struck them from the record on the ground that as they were not executed under oath there was a variance between them and their description in the declaration. He then denied a motion of plaintiff to amend said declaration by striking out the words “under oath ” and in consequence of this ruling a verdict was directed in favor of defendants. Was this ruling correct ?

Act No. 232 of the Public Acts of 1903, under which the corporation was organized, contains no provision for executing the articles under oath, and had they been so executed that oath could have been given no effect. Beecher v. Anderson, 45 Mich. 543. The averment that the articles were executed under oath was, therefore, an immaterial one. The legal effect of the articles conformed precisely to their description, and, therefore, there was no variance. The rule is correctly stated in 9 Cyc. p. 751, as follows:

“ Where the declaration * * * purports to set out an instrument according to its substance and legal effect, it is ordinarily sufficient if the instrument proved and the one alleged correspond in all essential particulars.”

Defendants contend, however, that the ruling excluding the articles was not erroneous because, for other reasons than that of variance, they were inadmissible. This contention requires us to consider such other reasons. The first of those reasons is this, viz., that plaintiff can base no right of action upon a false statement in said articles, because “the articles were not intended for the public, but only for a specific purpose and that the public nor any individual had any right to rely on the statement contained therein.” Whether or not this is correct as an abstract proposition, we will not undertake to say. It is sufficient to say that it assumes that plaintiff’s right of action is based on a false representation contained in said articles of incorporation, and that such assumption is unfounded. Plaintiff does not base her right of action upon a false statement in said articles. Her claim is that the execution of the articles was a preliminary but an essential step in a scheme of fraud consummated by other steps subsequently taken. In this respect the case is not unlike Bush v. Sprague, 51 Mich. 41, and McDonald v. Smith, 139 Mich. 211, and under the rule applied in those cases the articles were admissible in evidence.

The second of those other reasons is this, viz., that the articles were not admissible until plaintiff had by other evidence established a prima facie case of conspiracy. It is a sufficient answer to this objection to say that, under the ruling complained of, plaintiff had no right at any stage of the proceedings to introduce these articles in evidence, and we cannot affirm the judgment of the court below without holding that she had no such right.

Judgment reversed, and a new trial ordered.

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