Volume 223 — Michigan Reports

<p>Certiorari to Wayne; Perkins (Willis B.), J., presiding.</p> <p>Attachment proceedings by F. Jerome Le Faivre against the Kess-Line Motors. From an order granting a motion to dissolve, plaintiff brings certiorari.</p>

<p>Criminal Law — Appropriating Property Receive» m Official Capacity.</p> <p>In a prosecution for the violation, of 3 Comp. Laws 1915, § 15378, in connection with the sale of certain oil belonging to the city of Flint, evidence heló,, "sufficient to sustain a conviction.</p>

), J., presiding. Bill by Mathew Fijalkowski against Anna Fijalkowski for a divorce. There was a decree for defendant on her cross-bill. From an order respecting alimony, plaintiff appeals.

<p>1. Jury — Challenge for Cause — Appear and Error.</p> <p>Where the court at first overruled plaintiff’s challenge for cause and after both counsel had passed the jury for cause, stated he thought he had erred, and allowed plaintiff another challenge, there was no reversible error, in the absence of a claim that the men who constituted the jury were not competent, fair, and impartial.</p> <p>2. Negrtgence — Automtobires—Question for Jury.</p> <p>In an action for personal injuries which plaintiff received when struck by defendant’s automobile on a public street, it cannot be said, as a matter of law, that defendant was free from actionable negligence where his own testimony shows that he was running 12 miles an hour on a slippery pavement on a dark and rainy night, and that the rain on the windshield and the lights of approaching automobiles so obstructed his vision that he did not see plaintiff, a pedestrian, until he was struck.</p> <p>On speed of automobile as negligence, see notes in 25 L. R. A. (N. S.) 40; 38 L. R. A. (N. S.) 488; 51 L. R. A. (N. S.) 993.</p> <p>The reciprocal duty of operator of automobile and pedestrian to use care is discussed' in notes 42 L. R. A. (N. S.) 1178; 51 L. R. A. (N. S.) 990.</p> <p>3. Same — Contributory Negugence — Question eor Jury.</p> <p>The question of plaintiff’s contributory negligence was properly submitted to the jury. *</p>

<p>1. Criminal Law — Directed Verdict — Instructions as to Duty of Jury to Convict Under Undisputed Pacts.</p> <p>In a criminal case the trial judge may state to the jury that the law applied to the facts, which are undisputed, shows the defendant to be guilty of the offense charged, and that it is their duty to so find under the facts and 'the law, but he may not, in..so many words, direct them, that they must bring in a verdict of guilty.</p> <p>2. Same — Obscenity—Directed Verdict.</p> <p>In a prosecution for printing and publishing obscene matter in violation of 3 Comp. Laws 1915, § 15474, the trial court was in error in instructing the jury to return a verdict of guilty as charged, even if, under the undisputed facts, he might have told them that it was their duty to do so, since the defendant was entitled, under the Constitution, to the verdict of the jury.</p> <p>3. Same — Trial—Instructions—Intent Presumed.</p> <p>Where it was undisputed that while defendant was in charge of the paper as proprietor and editor copies of that paper containing the objectionable articles charged were printed and sold and also mailed to subscribers, reaching at least one family, the trial court rightly held that the intent of defendant as to those facts was conclusively presumed.</p> <p>On unlawfulness of obscene and indecent publications, see note in 24 L. ft. A. 110.</p> <p>4. Same — Obscenity—Duty of Court to Construe Writings.</p> <p>It was the duty of the trial court to construe writings put in evidence, and general rules relating to giving instruction thereon to the jury are applicable to prosecutions for obscenity.</p> <p>5. SameWhether Words Used Tended to Corrupt Morals Question for Jury.</p> <p>If the objectionable articles had been openly couched in vulgar and obscene words, or could, as a whole, have but one possible meaning, which was in import obscene and such as tended to corrupt the morals of youth, it would have been the duty of the court to so instruct the jury, but where they contained no words necessarily vulgar, obscene or immoral, but the combination in which they were used disclosed a thinly camouflaged indecent and obscure so-called joke, it was a question for the jury as to whether the items as printed tended to corrupt the morals of youth within the meaning of the statute, although the court could very properly have instructed the jury as to the indecent and vulgar meaning of which the language was susceptible.</p>

<p>1. Chmhai Law — Intoxicating Liquors — Trial—Unauthorized View by Juror Cured by Sending Entire Jury. •</p> <p>In a prosecution for violation of the prohibition law by keeping a place where intoxicating liquors were sold, etc., where the prosecution claimed that sales were made through a certain window, which defendant denied and claimed that the window had been painted some time before and not thereafter raised or disturbed, and, after court closed for the day, a woman juror, without authority, inspected the window, the error was cured by the court’s sending the entire jury, under proper instructions, to take a view; such view being authorized by 3 Comp. Laws 1915, § 15825.</p> <p>As to unauthorized view by juror or jury as ground for new trial, see notes in 42 L. R. A. 394; L. R. A. 1915B, 703.</p> <p>2. Appeal and Error — Trial—Instructions—Requested Instructions.</p> <p>It was not error for the trial court to refuse a requested instruction, where the subject was fully covered by the charge as given.</p>

<p>1. Searches and Seizures — Affidavit Must State Facts.</p> <p>An affidavit upon which a search warrant is issued must state facts as distinguished from conclusions.</p> <p>2. Intoxicating Liquors — Search Warrant for Private Dwelling.</p> <p>Under Act No. 336, Pub. Acts 1921, no valid search warrant may issue to search a purely private dwelling unless it is made to appear that It is a place of public resort, that it is used for the unlawful manufacture of intoxicating liquors, or that it is used for the unlawful sale of intoxicating liquors.</p> <p>3. Same — Affidavits—Sufficiency.</p> <p>An affidavit for the issuance of a search warrant for a private residence which merely stated that affiant was given some home brew by defendant, and that he had moonshine at defendant’s home without alleging that defendant manufactured or sold either commodity at his home, or that his home was used as a place of public resort, was insufficient.</p> <p>For authorities discussing the question of constitutional guaranties against unreasonable search and seizure as applied to search for or seizure of intoxicating liquor, see notes in 3 A. L. R. 1514; 13 A. L. R. 1316.</p>

Burget), J. Assumpsit by Raymond J. Wise and others, co-partners as Wise & Rich, against Nicholas Yunker for the value of a building on leased premises. Judgment for plaintiffs. Defendant brings error.

Clair; Tappan (Harvey), J. Assumpsit by John P. Egbert and Lucian J. Dirig, copartners as Egbert & Dirig, against Clair H. Barrett for breach of a contract for the purchase of certain beans. Judgment for defendant. Plaintiffs bring error.

<p>Error to Houghton; Stone (John G.), J.</p> <p>Assumpsit by Jemina Kangas against the New York Life Insurance Company on a policy of insurance. Judgment for plaintiff. Defendant brings error.</p>

Bill by William W. Durham and others against Wilson H. Stubbings to set aside a deed and to quiet title. From a decree for plaintiffs, defendant appeals.

), J. Oscar Collins was convicted of murder in the first degree, and sentenced to imprisonment for life in the State prison at Marquette.

), J. Bill by the Union Assurance Society, Limited, of London, England, against Louis Buono and others to enjoin an action at law, and for the cancellation of. certain policies of fire insurance: On petition to vacate a default decree for want of personal service of process. From an order denying the petition, defendants appeal.

<p>1. Bailments — Damage Caused by Bailee — Evidence—Sufficiency.</p> <p>In an action for damages to plaintiff’s automobile alleged to have been caused by defendant’s use of tbe car while left in his garage for storage and repairs, testimony held, to present an issue of fact for the jury, although there was no direct proof of usage.</p> <p>2. Same — 'Trial—Instructions—Burden of Proof.</p> <p>The charge of the court imposing the duty on the plaintiff to prove that either the defendant himself “or some one in his employ with his permission or under his direction used that car, drove it during the time when it was supposed to be in the storage warehouse,” and that the repair work “was not done in a good, workmanlike manner,” held, as favorable to defendant as he was entitled to under the law applicable to a bailment for the mutual benefit of the parties.</p> <p>3. Same — Pleading — Declaration—Sufficiency—Cause of Action.</p> <p>Allegations in the declaration that plaintiff made a contract with defendant to store and paint a part of the car, that it was defendant’s duty to take reasonable and proper care of it, that defendant, disregarding .such duty, did wrongfully and unlawfully use and allow the car to be used, whereby it became seriously damaged, and that the repair work was not properly done, held, to sufficiently state a cause of action.</p> <p>4. Same — Breach of Duty by Bailee.</p> <p>Case may be brought for any breach by the bailee of duties implied by law from the existence of the relation of bailor and bailee, and if the duty alleged to have been violated is one that arises out of the relation it is no objection to an action in case that the performance of the duty has been expressly stipulated for.</p> <p>5. Same — Right to Recover Payments for Improper Work — Consideration.</p> <p>If defendant demanded and accepted payment for repair work on plaintiff's car which, was of no benefit to plaintiff, recovery might he had for - want of consideration therefor.</p> <p>For duty and liability of garage keeper to owner of cars, see notes in 45 L. R. A. (N. S.) 314; 48 L. R. A. (N. S.) 561; 15 A. L. R. 681.</p> <p>6. Appeal and Error — Trial—Instructions.</p> <p>Where, from the entire charge of the court the jury must have understood that they should allow an amount paid for repairs only in the event that they found it was paid on the assurance of defendant that the work done made the car all right, and that such assurance was not true, the use of the word “duress” by the court in describing the conditions of payment, although unfortunate, held, not reversible error.</p> <p>7. Same — Amendments to Declaration After Judsment — Court Rules.</p> <p>If payment for repairs not properly done was not recoverable in an action of trespass on the case a count in assumpsit might have been added, and where the amount paid was not in dispute, and the jury found plaintiff was entitled to recover same, Circuit Court Rule No. 22 is authority for the Supreme) Court’s treating the amendment as here made in order to sustain the judgment.</p>

<p>Appeal from Wayne; Mandell (Henry A.), J.</p> <p>Bill by Edward A. Hildebrandt against Margaret Hildebrandt for a divorce. From a decree for plaintiff, defendant appeals.</p>

), J., presiding. Case by James Raymond Rohrer and Glen M. Ferguson against Mooney Schreiber and another for personal injuries. Judgments for plaintiffs. Defendants bring error.

<p>Exceptions before judgment from Jackson; Parkinson (James A.), J.</p> <p>Joe Wysocki was convicted of violating the liquor law.</p>

), J. Samuel C. Patchel, administrator de bonis non of the estate of Leah E. Barton, deceased, presented a claim against the estate of Willard D. Thompson, deceased, for the value of certain personal property of his intestate. The claim was disallowed by the commissioners, and plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

), J. George Ruggero was convicted of taking indecent liberties with, the person of a female child, and sentenced to imprisonment for not less than 3 nor more than 10 years in the State prison at Jackson.

), J. Case .by Enoch Glidden and another against the Beaverton Power Company for damage to land by flooding. Judgment for defendant on a directed verdict. Plaintiffs bring error.

John Yanderwill presented his claim for compensation against the Evening News Association for an accidental injury in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

<p>1. Principal and Agent — Right of Principal to Revoke Agency.</p> <p>A principal has the right to sever an agency and all powers thereunder at will, subject only to responsibility so far as the power granted has been executed.</p> <p>2. Same — Agent Must Perform Within Reasonable Time.</p> <p>Where defendant gave plaintiff an oral order to purchase for him certain shares of stock at a certain price, if it be conceded, that plaintiff was defendant’s agent therefor, it was its duty to perform the order within a reasonable time..</p> <p>3. Frauds, Statute of — Sales—Contracts.</p> <p>An oral order to purchase 100 shares of a certain stock for $1,300 was void under the statute of frauds, in the absence of any writing signed by the buyer or partial payment or acceptance of the stock.</p> <p>4. Principal and Agent — Unreasonable Delay.</p> <p>Where defendant, on November 19th, gave an oral order to plaintiff to purchase for him 100 shares of a certain stock for $1,300, and on December 6th following revoked the order in writing because of plaintiff’s delay in filling same, defendant was not bound to accept and pay for the stock tendered to him on January 9th following, conceding the law of agency applies, since the delay in filling the order, under the circumstances, was unreasonable.</p>

), J. John Micalizzi was convicted of murder in the first degree, and sentenced to imprisonment for life in the State prison at Marquette.

), J. Bill by The Epworth Assembly against the Ludington & Northern Railway for an injunction and other relief. From an order granting a motion to dismiss, plaintiff appeals. Plaintiff files this bill alleging that it was incorporated under the camp-meeting and assemblies act (2 Comp.

), J. Lulu Powell was convicted of manslaughter, and sentenced to imprisonment for not less than 7% nor more than 15 years in the Detroit house of correction.