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property. We think, however, that section 3900 of the Civil Code of 1895, itself shows that the expression, 'injuries done to the person,' as therein used, includes not only injuries to the physical body, but every other injury for which an action may be brought, done to the individual and not to his property."
Other cases holding to the same effect are: Garrison v. Burden, 40 Ala. 513; Hoover v. Palmer, 80 N. C. 313.
As all the injuries complained of in this case, and which are usually complained of in cases of like kind, are personal to the plaintiff, we think it should be held that an action for seduction is an action for personal injuries, within the meaning of Act No. 155, Pub. Acts 1899. It would follow that the plaintiff's case is barred by the statute, and that the trial court was right in so holding.
2. We refrain from discussing the second ground of dismissal for want of a sufficient record of the proceedings of the former suit.
Error is assigned on the action of the trial court in directing a verdict for the defendant upon the opening statement of plaintiff's counsel. The record does not show that plaintiff entered any protest to the action of the court at the time and he makes no claim in this court that he did not state the case to the jury as strong as the witnesses would have stated it, if they had been permitted to testify. If the opening statement disclosed plaintiff's case as fully as it would have been disclosed had the witnesses testified, the case ought not to be reversed for that reason. In view of the fact that plaintiff fails to point out how his client's rights were prejudiced in any way by such action of the court, we think the assignment is not well taken. Spicer v. Bonker, 45 Mich. 630 (8 N. W. 518).
The case is affirmed, with costs.
OSTRANDER, HOOKER, MOORE, and STONE, JJ., concurred with BIRD, C. J.
HOOKER, J. I concur in the opinion of Mr. Justice BIRD, for the reasons stated therein and for the following
additional reason: Act No. 239, Pub. Acts 1909, was introduced, discussed, and passed by both houses under the following title, viz.:
"A bill to amend section 2 of chapter 140 of the Revised Statutes of 1846, entitled, 'Of the limitations of personal actions,' the same being compiler's section 9729 of the Compiled Laws of 1897, as amended by Act No. 168 of the Public Acts of 1905."
Both section 9729 and Act No. 168, which had a similar title, covered actions of assault and battery, false imprisonment, slander, and libel. The latter added actions for malpractice. It would seem to follow that a more comprehensive section was intended, rather than one limited to the class of actions popularly referred to by the term "personal injury cases." The title forbids the assumption that the last act was passed merely to cover such cases, and that in passing it there was no intention to affect the classes of cases covered by section 9729, and Act No. 168. Evidently the intention was to include all in the new act, and the term "personal injuries "should be given the broad construction contended for in defendant's brief. See Williams v. Williams, 20 Colo. 51 (37 Pac. 614); Hutcherson v. Durden, 113 Ga. 987 (39 S. E. 495, 54 L. R. A. 811); Houston Printing Co. v. Dement, 18 Tex. Civ. App. 30 (44 S. W. 558); Martin v. Telegraph Co., 6 Tex. Civ. App. 619 (26 S. W. 136); McMurtry v. Railroad Co., 84 Ky. 462 (1 S. W. 815); 3 Blackstone's Commentaries, p. 118. These cases are all cited in defendant's brief, but we include them here for convenient reference.
The judgment should be affirmed.
MOORE and STONE, JJ., concurred with HOOKER, J.
HOLLEY v. HORTON.
1. HOMESTEAD-EXEMPTIONS-PURCHASE PRICE.
The provisions of section 2, Art. 16, Const. 1850, and of section 2, Art. 14, Const. 1909, with the statute (3 Comp. Laws, § 10362), creating the homestead exemption, limit the amount of land to forty acres, and cannot be construed to exempt the entire purchase price of a parcel, claimed to constitute a homestead, consisting of forty-one acres of land; and the additional one forty-first portion of such purchase price may be levied upon in garnishment proceedings against the vendee by a creditor of the homestead owner, who has sold the property on a land contract.
And it is a sufficient and timely selection of the homestead right, where the owner, who had conveyed the premises by land contract, filed a bill of complaint to enjoin the proceedings at law, and claiming her homestead, at the first opportunity after learning that the unpaid purchase price had been garnished.
The owner of real estate including a homestead is not obliged to select the exemption until the officer who levies on the land makes and presents an appraisal.
Appeal from Livingston; Miner, J. Submitted November 14, 1910. (Docket No. 165.) Decided December 22, 1910.
Bill by Ella Holley against John F. Redinger and William Horton to enjoin garnishment proceedings and have her rights of exemption determined. From a decree for complainant, defendant appeals. Modified and affirmed.
Louis E. Howlett, for complainant.
Shields & Shields, for defendant Horton.
BIRD, C. J. Complainant is a resident of Livingston
county and filed her bill of complaint in the circuit court for that county to enjoin certain proceedings at law, and to have declared exempt certain premises as her homestead.
The complainant was the owner of 41 acres of land in the township of Iosco, Livingston county. There was a' mortgage on it of $550. She and her husband occupied it as a homestead. Neither complainant nor her husband was the owner of any other real estate. The complainant, being desirous of freeing herself from debt, made a contract with defendant Redinger for the sale to him of the premises, subject to the mortgage, for $1,450, $100 to be paid down and the balance to be payable October 1, 1909. Prior to the making of this contract defendant Horton had obtained a judgment against complainant for $120 in justice's court. Subsequent to the making of the contract he garnished the defendant Redinger, seeking to satisfy his judgment out of the balance due complainant from the sale of the premises. At this juncture of affairs complainant filed her bill of complaint to stay the proceedings at law and to have the premises declared exempt as a homestead, and the proceeds thereof exempt from legal process. The pleadings were perfected and a hearing had, and the trial court found that the premises were exempt as a homestead, that the purchase price thereof was likewise exempt from legal process, and that she had not waived her exemption. From this decree, the defendant Horton appeals.
It is claimed by defendants that the trial court was wrong in holding that the premises constituted a homestead, for the reason that its acreage was in excess of that permitted by the Constitution and statute of the State, and that if it were a homestead she had waived her homestead rights by her failure to make a selection.
The Constitution provides that:
"Every homestead of not exceeding forty acres of land and the dwelling house thereon, and the appurtenances to be selected by the owner thereof, and not included in any
town plat, city or village, shall be exempt from forced sale on execution or any other final process from a court." Section 2, art. 16.1
The statutory provision provides that:
"A homestead consisting of any quantity of land not exceeding forty acres and the dwelling house thereon and its appurtenances, to be selected by the owner thereof, and not included in any recorded town plat or city or village, * * ** shall not be subject to forced sale on execution, or any other final process from a court for any debt or debts growing out of or founded upon contract either express or implied." 3 Comp. Laws, § 10362.
The language of both the Constitution and statute, as to the quantity of land that may be exempted, is susceptible of but one construction. The limitation is clear. There is no room for any refinement in construing it. It means just what it says, "not to exceed 40 acres.' If we can say 41 acres may be exempted under this language, why not 46 or 50 acres? Complainant's counsel argues that if this provision is construed as liberally as the one exempting a lot in a village or city, that the exemption can be made to include the 41 acres. The difference in construction is explained by the difference in the language creating the exemptions. The language of one provision is, "not exceeding 40 acres;" in the other, "a quantity of land not exceeding in amount one lot." An acre of land is a definite and fixed quantity, always the same, whereas the word "lot" is more or less indefinite as to quantity. It may be a large lot or a small lot, but there is no such thing as a large or small acre. A certain quantity of land may be one lot today and two lots tomorrow. This uncertainty as to how much land constitutes a lot has undoubtedly given rise to the liberal construction in King v. Welborn, 83 Mich. 195 (47 N. W. 106, 9 L. R. A. 803), and other cases cited by counsel. The constitutional provision, which differs somewhat from the statu
1Const. of 1850. For similar provision in new Constitution, see section 2, Art. 14, Const. 1909.