author: Brooke, J. Ostrander, J.

text:
    McCORMICK v. HAWKINS.
    L Libel and Slander — Publication—Damages.
    An article published in a newspaper charging a superintendent of schools with gross incompetency, with trickery and dishonesty, was, if false and malicious, slanderous per se, relieving plaintiff of the necessity of proving special damages.
    2. Same — Trial.
    The court, in an action for libel, properly refused to receive a verdict offered by the jury for $1,500 and requiring defendant to retract the libel; and it was proper to state to the jury the applicable rules of law and to receive their final verdict of $3,000.
    3. Same.
    Considering the fact that a retraction would have benefited plaintiff in his profession, the increase in damages was not in itself erroneous.
    4. Same — Damages—Appeal and Error — Jury—Statutes.
    In the absence of a request to instruct the jury to separate damages for injury to plaintiff’s feelings from other damages assessed, defendant could not review the point on error.
    5. Same — Damages—Excessive Verdict.
    Without proof that plaintiff suffered in his business or profession from the libel, a verdiot of $3,000 was too much, and is reduced, on review of defendant’s motion for a new trial, to $1,500.
    Error to Antrim; Mayne, J.
    Submitted November 23, 1911.
    ( Docket No. 172.)
    Decided May 3, 1912.
    Case by Peter F. McCormick against Oren E. Hawkins for libel. Judgment for plaintiff. Defendant brings error.
    Modified and affirmed.

      Clark E. Densmore and Smith, Baldwin & Alexander, for appellant.

      Fitch B. Williams and Elisha N. Clink, for appellee.
    This is an action of libel. Defendant, who is the owner of a newspaper which he conducts at the village of Mancelona, in this State, on January 23, 1910, published the following paid advertisement:
    “Speaks for Itself.
    “Muskegon, Mich., Jan. 23rd, ’10.
    “ Two years ago I took the work of serving supper to the business men’s banquet in Medalie hall at Mancelona for $22. Up to this time I have received $6 on this amount and have never been able to find out who I was to collect balance of $16 from. P. F. McCormick gave me the contract.
    “Geo. L. Petrie.”

      On February 3, 1910, there was published in the. Mancelona News, a rival paper, the following:
    "It Speaks for Itself.
    " The News has taken some pains to make an investigation of what the facts are in relation to the alleged letter recently published and entitled: ‘Speaks for Itself.’ As a public official, the party reflected upon, personally says that he does not care to be dragged into any controversy, and states that he believes that his daily life and work among our people will vouch for his integrity and worth and is too well founded to be shaken by any venom which a personal enemy of himself can throw at him.
    " The News, however, believes that the public and our business men who are also reflected on by the article, should have the benefit of knowing that the matter is not based on any true statement of facts. And as the News stands for the upbuilding and advancement of Mancelona and against this kind of knocking and the attempt to reflect upon and injure our little village or any of its citizens or institutions, we recognize the matter just far enough to advise that any person who may take or be inclined to take any stock in the reflection made in the article named, should investigate the facts himself and then give censure or credit to the party where it belongs.”
    Defendant thereupon, and on February 10, 1910, published in his paper, the Mancelona Herald, the following article, which is alone counted upon in plaintiff’s declaration :
    "A New Facts in The Case.
    "It appears that the paid ad. in the Herald of Geo. L. Petrie has stirred up considerable excitement in the camp of the ring. There would never have been any cause for such publication if Petrie had been honestly paid for his services, and as the ad. was a perfectly legitimate publication the blame of the affair rests upon the parties who neglected to settle an honest account. Now as to the facts of the case as told by E. L. J. Mills to The Herald. He says that just prior to. Dr. Wyman’s lecture given here two years ago that E. J. O’Brien a student in the Detroit Medical College where Wyman was a professor, wrote to him that he (O’Brien) would consider it as a personal favor if Mills would arrange for a complimentary reception in honor of Mr. Wyman. Mills says that being very busy he asked P. F. McCormick to take charge of the affair, that the latter consented and that he (McCormick) did arrange with Petrie for the feed and took full charge of the affair. Mills also says that as 60 or more people attended the banquet, that each one was charged 50 cents, there was surely plenty of money to settle all bills and that he supposed everything had been satisfactorily settled until he read the ad. in the paper. We might add that P. Medalie gave the free use of his hall for the reception, hence there was no expense in that direction.
    “This article would never have been published if an entirely untruthful statement of the publication of the ad. had not appeared in the ‘Spite or Knocker’ sheet of the town which is supposedly run by the hatchet faced shadow of the man with the shady reputation and backed by the rotten political ring that dominated affairs in this country for years until it was knocked out by primary reform.
    “ Now so far as McCormick is concerned, his career in the town has been a disgrace to the school that he is supposed to honor by standing at its head. He seemingly has no appreciation of the responsibility that goes with indebtedness incurred by him. He has had trouble with almost every business man in town with whom he has had dealings and several of them will not extend credit to him, as he almost invariably becomes angry when presented with a statement. He started a spite paper out of personal enmity to the editor of The Herald and it is reported on good authority said he would run us out of town and all simply because we forced him to pay what he honestly owed us. He got goods at this office under false statements and then swore like a trooper when called to this office and forced to settle. He gave a note to the Herald Editor for a press for the High School and then had to be threatened with suit and garnishment of salary to secure its payment. And finally he had to be sued before Justice Wallace to compel him to pay his subscription and a small ad account.
    “Last winter the school board heard rumors of his laxness in paying accounts and one member investigated and found about half a dozen business places where he owed, one merchant complaining that he was no better about paying than a former superintendent who was literally ‘ forced ’ out of the school. Another board member loaned him the money to go around and settle his bills. This was shortly before the board re-elected him superintendent.
    “ He has a mean habit of slurring and ‘ roasting ’ students before a room full of children, and not many months ago after insulting a student during literary exercises before a crowd of visitors was publicly called down by one of the lady visitors whose very proper womanly dignity became aroused at such boorish conduct. He has had trouble with several of the teachers in the past and few besides his pets have little respect for him. He has been responsible for the loss to the school of several experienced and capable teachers, some of whom could more creditably and more worthily fill the position of superintendent. He has a mean habit of sneering at anything and everything unless he is at the head of it.
    “ The stuffing of book knowledge into children’s heads is not the chief object of a school nor the real duty of a teacher, but instead the building of a character. What respect can children have for an instructor who is tricky and has to be forced to pay honest debts." Does not such an example have a tendency to cause the children to think dishonestly and dishonorable methods rather than the right ? Remember that school children are building the character every day that is to guide their life, that is to lead them to higher and noble man and womanhood or just the reverse. Which way do you wish your boy or girl to go ?
    “We know it is not a nice thing to parade a town’s troubles in cold print, and while we care nothing about his meanness and lies about the editor personally, but there is a limit to outraged feelings and that is when an unprincipled thing strikes at us by insulting our family and our children in school, that which any man holds dear, and if he has a particle of manhood about him will protect against the attacks of any dirty cur.”
    After the publication of the foregoing article, plaintiff demanded of the defendant the publication of a retraction which was refused. Under the plea of the general issue defendant gave notice of good faith and justification. Plaintiff having recovered a judgment in the sum of $3,000, defendant reviews his case in this court by writ of error. He makes and relies upon the following points:

      “(1) The refusal to receive and accept the verdict for $1,500 and the failure to treat the rest of the verdict as surplusage.
    “(2) The refusal of the court to grant defendant’s motion for a new trial.
    “(8) The failure of the court to require the jury to divide the damages.
    “(4=) The error of the court in receiving certain evidence.
    “ (5) The error of the court in excluding certain evidence.
    “(6) The error of the court in refusing to instruct the jury as requested.
    “(7) The error of the court in instructing the jury in the manner the jury was instructed.”
   Brooke, J.

(after stating the facts). Before considering the errors assigned, it seems proper to consider the character of the article counted upon. The plaintiff, at the time of its publication and for some years prior thereto, occupied the position of superintendent of schools in the village of Mancelona. He held a place in his community not only of great importance, but also one which demanded of its incumbent that he be a man of high character, of unimpeachable integrity, and of correct conduct. .

The effect of the publication-we are here considering upon the reputation of a man holding such a position cannot in our opinion be questioned. Even if it does not directly charge the commission of a crime, it does impute to plaintiff gross incompetency and unfitness for the position he held. It was published of and concerning the plaintiff as superintendent of schools, and its tendency unquestionably was to bring plaintiff into hatred and contempt, to imperil the position he then held, and to prevent him from securing like employment elsewhere. Under all the authorities, this publication, if false and malicious, was actionable per se and relieved the plaintiff from the necessity of proving special damages. Tryon v. Evening News Ass’n, 89 Mich. 686; Oliver v. Perkins, 92 Mich. 304 (52 N. W. 609); Smedley v. Soule, 125 Mich. 192 (84 N. W. 63); 18 Am. & Eng. Enc. Law (2d Ed.), pp. 909, 942, 964, and cases cited; 25 Cyc. p. 336, and cases cited.

The first reason assigned for reversal involves a consideration of what occurred at the close of the trial. After the jury had been out for a time, they returned into court for further instructions. The foreman said:

“We want to find out if we could assess the defendant to a retraction of the article as published in Exhibit 1. Also, if we had authority — would have authority to assess a penalty aside from that.”

The court thereupon proceeded to instruct the jury as to the law upon the subject of retraction. He pointed out to them that, inasmuch as the defendant had not published a retraction of the alleged libelous article, the question of malice was open for their consideration. He did not in terms answer the question of the foreman, and it is evident that the jury failed to understand his instruction, for after further deliberation they returned to court, and the following proceedings were had:

The Court: Your foreman will arise. Gentlemen, have you agreed upon a verdict ?
Foreman: Yes, your honor.
The Court: What is your verdict ?
“jForeman: We have agreed upon the following verdict:
“Bellaire, Mich., Oct. 13, 1910.
“We, the jury, in the case of Peter E. McCormick v. O. E. Hawkins, agree on .the following verdict: That O. E. Hawkins did publish an article in the Mancelona Herald against Mr. McCormick, with malicious intent. Further, that we, the jury, assess O. E. Hawkins to $1,500 damages to Peter F. McCormick. Also, that said° O. E. Hawkins be caused to publish a retraction of said libelous article in the Mancelona Herald for three successive issues, and it be given some conspicuous place in each issue in said paper.
The Court: Now that portion of the verdict referring to his publishing it would be beyond the power of this court to enforce, and your verdict should be merely for damages — an amount of money. We could not make him do that. Under this form of action, all we can do is to assess the damages in money, and your verdict should be in this form: We find the defendant guilty, and assess the plaintiff’s damages at the sum of blank dollars — whatever that is, whatever you agree upon. This would be outside of the verdict. You may return to your jury room.
‘Foreman: Now, if we want to entirely vindicate this gentleman, Mr. McCormick, could we put that in the verdict in any way ?
The Court: No, all you can do is to put in dollars and cents. His vindication is dollars and cents.
“Foreman: It is a poor vindication.
“The Court: You may return. The requirements of the law are that it must be in dollars and cents only.”

After being out for a time, the jury returned into the courtroom, when the following proceedings were had:

“The Court: Gentlemen of the jury, have you agreed upon a verdict ?
“Foreman: We have.
“The Court: What is your verdict ?
“Foreman: We, the jury, in the case of Peter F. McCormick v. O. E. Hawkins, agree on the following ver-' diet: That O. E. Hawkins did publish an article in the Mancelona Herald against Mr. McCormick with malicious intent. Further, that we, the jury, assess O. E. Hawkins $3,000 damages to Peter F. McCormick.”

Should the first verdict have been received by the court and a judgment entered thereon ? We are of opinion that in declining to accept it, and in further directing the jury as he did, the learned trial judge acted properly. It is, we think, clear that the jury in rendering the first verdict believed that they-had the power to compel defendant to publish a retraction and that such publication would be of great value to the plaintiff. That such retraction, had it been published, would have been valuable to the plaintiff, cannot be doubted. We cannot agree with counsel for defendant in their claim that the remarks of the court at this juncture were in effect such as to invite the jury to wreak vengeance upon the defendant. On the contrary, the statements of the court seem to us to be fair and judicial and to indicate no bias on the part of the court.

We are cited by defendant to the following cases upon this point: Burkle v. Ingham Circuit Judge, 42 Mich. 513 (4 N. W. 192); Rawson v. McElvaine, 49 Mich. 194 (13 N. W. 513). Neither of these cases is authority for the position taken by counsel. The first was in a statutory proceeding in ejectment, and it was held that inapplicable special findings by the jury would not prevent the entry of judgment, for possession, in plaintiff’s favor. In the second, that part of the verdict objected to by defendant was held to be surplusage, as it was no more than would follow from the verdict rendered and judgment thereon.

The case of J. Richardson & Co. v. Noble, 143 Mich. 546 (107 N. W. 274), is in point. It requires no citation of authorities to demonstrate that, when a jury returns to the courtroom and tenders an imperfect, irregular, or defective verdict, it is the duty of the court to further appropriately instruct them, and direct their retirement. Jurors are not learned in the law, and very frequently misapprehend thp scope of their powers and duties. Such misapprehensions, when they find expression in improper verdicts, should at once be corrected by the trial judge, and, if possible, a proper verdict secured.

Nor are we prepared to say that, in doubling the money amount of the original verdict in lieu of the publication of a retraction, the jury acted unreasonably or vindictively. The wrong from which the plaintiff suffered, if the publication counted upon was false and malicious, was a continuing one, and the publication of a retraction would largely tend to prevent such injury in the future.

It is next urged that the court erred in refusing to grant defendant’s motion for a new trial. Thirteen distinct reasons are assigned by defendant why a new trial should be granted. These were considered seriatim by the trial judge. One of those principally relied upon has already been discussed. Such others as require attention will be noticed hereafter.

The third reason assigned for reversal is the failure of the court to instruct the jury to specify what sum is allowed for injury to feelings and what sum is allowed for other injuries. 3 Comp. Laws, § 10424, requires the damages to be so separated by the jury in any suit brought for the recovery of damages for libel or slander in this State. Defendant, however, made no request that the jury be so instructed, and in no way raised the point upon the trial. We have held that, under these circumstances, an assignment of error will not lie. McGee v. Baumgartner, 121 Mich. 287 (80 N. W. 21); Mahiat v. Codde, 106 Mich. 387 (64 N. W. 194), and cases cited.

Errors assigned upon the receiving and exclusion of evidence have been examined. They do not, in our opinion, require discussion.

Many assignments of error are based upon the refusal of the court to charge as requested and upon the charge as given. The charge, taken as a whole, is not open to criticism from the standpoint of the defendant. Many of defendant’s exceptions to it lose their force when it is considered that the published article was libelous per se, and, if untrue, entitled plaintiff to damages for injury to his feelings and reputation without proof thereof; it being presumed in law that such damages would necessarily follow the publication.

Was the verdict excessive ? We must consider the verdict of $3,000 as if it had been rendered without the incident which occurred in the rendering of the first illegal verdict. The verdict is undoubtedly a large one when-the situation of the parties is considered. Ordinarily, the jury having found the publication to be false and malicious, their determination as to the amount of damages suffered by the plaintiff should control. This record, however, is somewhat peculiar in one respect. It seems to show that, so far from injuring plaintiff in his business or profession, the publication had no harmful effect upon him in that respect. Indeed, it is not certain that it did not actually benefit him in the immediate neighborhood of his residence. While this fact may not be used to mitigate damages actually suffered by plaintiff, it may serve to help to a determination of what those damages were.

After a careful consideration of the whole matter, wé have concluded that the judgment must be set aside, and a new trial ordered, unless plaintiff will remit the surd of $1,500, in which event it will stand affirmed.

Moore, C. J., and Steer®, McAlvay, Blair, Stone, and Bird, JJ., concurred with Brooke, J.

Ostrander, J.

I concur in reversing the judgment, but am not satisfied that the case is one in which this court should fix the amount of judgment. I think therefore that a new trial should be granted.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    JOHNSON v. UNION CARBIDE CO.
    1. Appeal and Error — Trial—Directed Verdict.
    On error to a verdict and judgment directed for defendant, plaintiff is entitled to have the evidence considered in the light most favorable to him, leaving out of consideration testimony contradicting it offered by defendant.
    3. Master and Servant — Contributory Negligence — Trial— Directed Verdict.
    Although plaintiff testified that in putting his arm among runing machinery he did not observe whether or not the belts upon it were running, and did not look to see, but trusted the employé with whom he was working, it was error to direct a verdict for defendant on the ground of contributory negligence, where he afterwards stated that he looked at it, and so far as he could see in the dim light whioh he had, the belt which caught his arm was not moving.
    3. Same — Statutes—Machinery—Guards.
    Under Act No. 113, Pub. Aots 1901, plaintiff did not assume the risk of defendant’s failure to guard belts and pulleys.
    4. Evidence — Cross-Examin ation — 'W itnesses — Statutes.
    A witness in the employ of defendant, called by plaintiff for cross-examination under Aot No. 307, Pub. Acts 1909, could properly be asked leading questions and cross-examined by counsel for defendant.
    5. Same — Conclusion.
    A witness for defendant, who was asked if plaintiff had ever stopped the machinery on which he was engaged at the time of his injury, who stated that he could not remember any particular instance but was positive from work that plaintiff had been doing that he had stopped it, was improperly permitted to testify to his conclusion.
    6. Same — Stenographic Minutes — Identification.
    The official stenographer, who took the minutes of testimony given on a previous trial and identified a typewritten copy as uhe testimony given, was rightly permitted to give evidence as to the contents although he had no recollection of the testimony.
    Error to Chippewa; Steere, J.
    Submitted November 29, 1910.
    (Docket No. 124.)
    Decided May 3, 1912.
    Case by Joseph T. Johnson against the Union Carbide Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      John W. Shine, for appellant.

      Fred L. Vandeveer (Warner & Sullivan, of counsel), for appellee.
   McAlvay, J.

Plaintiff was injured while employed in defendant’s carbide factory. He brought suit to recover for such injuries, claimed by him to have been caused by the negligence of defendant. The trial resulted in a verdiet against him directed by the trial court on account of his contributory negligence. This court is asked by plaintiff to reverse this judgment.

In considering the case of plaintiff as presented by the record, the well-known rule that it will be considered most favorably to him will be applied, and in the statement of facts defendant’s case will not be considered.

The accident occurred in defendant’s carbide factory, where plaintiff, who had been injured some time before by an explosion, was employed in doing light work, sweeping the floors, filling carbide cans, and oiling machinery, as directed from time to time. He had been an oiler about two weeks before the injury. He was hurt by having his arm drawn in between the belt and pulley on the end of the stack of rollers called No. 1, being one of five such sets or stacks of rollers used for grinding carbide in the large grinding and packing room on the ground floor in the factory. This department is filled with machinery. These rollers consist of three pairs each, and are inclosed in iron casings 6 or 8 feet square and 10 to 12 feet high. These rollers crush the carbide which is admitted at the top and passes down between them and out at the base. The roller shafts upon which they revolve extend through the casings on the front two feet, and upon the outer end of each is a 10-inch pulley with a 12-inch face upon which runs a 12-inch belt which drives the rollers. The bottom of the lower pair of pulleys is 25 inches from the floor. The drive belt comes from under the left side of a 16-inch pulley, which is 2 feet below the right-hand pulley of the lower pair of pulleys on No. 1, running up over the top of that right-hand pulley and down under the left-hand pulley of this pair, and then directly up to the left face of the left-hand pulley of the second pair, then over it down under and up around the right-hand face of its mate, and so on to the third pair.

This belt, when power is applied, moves in the direction described and indicated up over and around these pulleys, and by this arrangement the rollers of each pair turn to' wards each other in grinding the carbide.

When plaintiff was put at work oiling, he objected because he was not acquainted with machinery. The boxes in which the roller shafts rest and revolve are bolted to the iron framework of the roller casing back of the pulleys in such a manner that the rollers may be adjusted to grind coarse or fine. These boxes from vibration and other causes at times become loose and require adjustment. Between the boxes of the two lower rollers was placed a piece of iron with a hole and thread into which was screwed a set screw. The piece of iron pressing against the inner end of one of these boxes and the head of the set screw presses against the inner end of the other. The distance between the faces of these pulleys on the ends of the roller shafts was 2£ inches, and between the inner ends of the shaft boxes was about 2 inches. Between the face of the casing and the inner edge of the pulleys the distance was 12 inches.

Plaintiff was not acquainted with machinery. When he was changed from sweeping to work as an oiler, he objected for that reason, and was told by the superintendent that it would be but a few days until he could get an experienced man. On the day of the injury these lower rollers in No. 1 required adjustment. They were grinding too coarse. The superintendent was absent, and the man who was always in charge in his absence called to plaintiff, and ordered him to help him adjust these rollers. It was about four o’clock in the afternoon of February 25, 1908. The light was very dim and the air was full of dust. Objects could not be discerned clearly. The man in charge, when plaintiff came to him, had an electric light in his hand, the only light in that part of the room at the time. He handed the plaintiff a wrench, and ordered him to turn the set screw, and said he would hold the light for him. He stepped behind the belt on the outside of the left-hand, pulley and reached in with the light so that plaintiff could see the set screw and block. Plaintiff had never done this work before, and was not warned of the danger, or instructed how to do it. As the light was held he could not see clearly the pulleys or belt. Plaintiff stood in front of the pulleys, reached over, and put the wrench on the set screw, and Owen, holding the light, told him to give it a quarter turn towards him. He did this easily, and was told to give it another turn. He undertook to do this, and found that it required the use of more force, and pulling hard the wrench slipped, and his left arm was caught by the belt and drawn under the left-hand pulley, and so injured as to require amputation at the shoulder. These pulleys were not guarded in any manner.

Plaintiff testified that he thought there was no danger, and trusted Owen, who knew about it, not to put him in danger. The running machinery on this floor made a great noise. Plaintiff had been working about this factory about two years, but not in connection with the machinery until he was put at work oiling about two weeks before he was injured. It is undisputed that this machine had never been adjusted before without stopping it. The superintendent only could authorize stopping it. Plaintiff had never stopped it, and did not know how to do so. Plaintiff charged defendant was guilty of negligence in putting him at work on dangerous unguarded machinery without warning or instructing him as to such dangers, in a dim light with a defective tool.

Upon the question of the unguarded belt and pulleys, the facts are not disputed, and the record shows that this belt was not properly safeguarded as required by statute. It was recognized by the trial court that plaintiff, but for what the court held to be his contributory negligence, made a case for the jury. The jury was charged:

“Even conceding the contention which is made in his behalf that he is relieved of the assumption of risk by the failure of defendant to observe a statutory duty, and conceding that there was negligence on the part of defendant in the other respects complained of, we still are confronted in this case with the legal question of contributory negligence and with the rule, as applied to that, which holds specifically and beyond any question that he cannot recover unless on his part he has exercised due care reasonably commensurate with the obvious danger to avoid any iniury.”

He further stated that it appeared plaintiff was of mature years, of sound mind and good eyesight, that he was very familiar with the factory and the machinery, and presumably with its plain and obvious dangers. In effect, that he was a normal individual, with eyes and intelligence which he did not use, and determined, as a matter of law, that upon his own testimony he had contributed to his injury, and therefore could not recover.

The testimony of the plaintiff, upon which the court relied in directing a verdict by reason of contributory negligence, is as follows:

“ I didn’t take notice whether the pulleys were running or whether the belt was running. I didn’t look at it closely, and I didn’t know as a matter of fact whether it was running or not. * * * I didn’t notice the belt when I went in there. I didn’t notice it. * * * I knew the machinery was running after I was caught. I didn’t know before I was caught.
“Q. Did you walk up there and put your arm over these pulleys without ever noticing whether the machinery was running or whether it was standing still ?
“A. Yes, sir.
“Q. And without ever looking to see whether there was any danger of getting caught or not ?
“A. I didn’t think there was any danger.
“Q. Well, you told me you didn’t look to see whether the machinery was running or not ?
“A. No, sir.
Q. What made you think there was no danger ?
“A. I thought he wouldn’t put me there if there was any danger.
ilQ. And you were trusting to Owen entirely, were you?
•“A. Well, yes; he knew something about it, and I didn’t.”

In another place his testimony is:

“Q. Did you give your own safety any thought at the time you went up there to turn the set screw ?
“A. I didn’t think of anything, only of doing the work he told me to do.”

The question is repeated.

“A. No.
“ Q. If you had stopped to think about it, you knew it was dangerous, didn’t you ?
“A. Well, if I had understood it, I would, probably.”

The question is repeated.

“A. No. * * * I oiled that machine when it was standing still. I didn’t know the way to stop it at the time. I couldn’t tell you for that at all whether I knew the belt was running. I knew the machinery did run sometimes. I didn’t know it might be running at that time. It looked like as if it was standing still. Why, you couldn’t help looking at it when you came right up to it. It looked as though it was standing still under the shade of the light. That is all I could see in there. The light was behind the belt when he went in there. I looked at it when I got right up to it. I didn’t look at it closely, but as he pointed it out to me. * * * I don’t think the set screw revolved with the machinery. No, it didn’t. When I looked over there I couldn’t see nothing moving. Everything seemed to be still, from the light that he had there.”

In this connection it is well to call attention to some other parts of his testimony: He says it was growing dusk. The light was poor; the only light there being the one held by Owen. There was a great noise from the various machines.

“When Mr. Owen was holding the light inside there, it was shaded in there so I could not see clearly these pulleys or belt. * * * It looked as though it was standing still under the shade of the light. That is all I could see there. * * * There was not sufficient light for me to observe whether belts were running or wheels in motion.”

From an examination of all his testimony and a consideration of all the facts, circumstances, and conditions appearing in the record, to all of which we must give the most favorable construction for the plaintiff, we cannot agree with the trial court in holding as a matter of law that plaintiff was guilty of contributory negligence. The court evidently construed his testimony quoted as showing no care for his safety. A careful reading of it shows that he denies he stated he did not look to see whether this machinery was running, and it will warrant the construction that because of the want of light he did not see that it was running. Our opinion is that the question of his contributory negligence was one of fact to be submitted to the jury under proper instructions.

The court was in error in instructing a verdict for defendant.

For the reason that a new trial must be had, other questions must be discussed. From the record as presented it appears uncontradicted that defendant had violated a statutory duty in not properly safeguarding this belt. The requirement is:

“All gearing or belting shall be provided- with proper safeguards.” Section 8, Act No. 113, Pub. Acts 1901.

Plaintiff did not assume the risk attendant upon the absence of the guard. Swick v. Cement Co., 147 Mich. 454.(111 N. W. 110).

Failure to provide safeguards is evidence of negligence. Sipes v. Starch Co., 187 Mich. 258 (100 N. W. 447); Little v. Bousfield & Co., 154 Mich. 369 (117 N. W. 903); Van Doom v. Heap, 160 Mich. 199 (125 N. W. 11), and cases cited.

Plaintiff assigns error because the court permitted a witness in the employ of defendant, claimed to be called by plaintiff for cross-examination, under Act No. 307, Pub. Acts 1909, to be cross-examined and asked leading questions by counsel for defendant. This act is entitled i

“An act to authorize parties litigant when they call as witnesses in their behalf the opposite party, employé or agent of said party, to cross-examine such witnesses, and providing that they shall not be bound by their answers.”

In a recent case this statute has been before the court for construction, where it was pointed out that, except provision was made that the party calling such witnesses, should not be bound by, and might contradict, their testimony, no other right was conferred making them the witnesses of the opposite party. Jones v. Railroad Co., 168 Mich. 1 (133 N. W. 993). No error was committed in allowing this cross-examination complained of.

Error is assigned upon the refusal of the court to strike out certain testimony of the foreman of this department of defendant’s plant; it being claimed that such testimony was a conclusion of the witness, who testified as follows:

“I can’t remember any particular instance that Johnson ever stopped No. 1 roll; but I am positive that he has.
“Q. What makes you positive that he has?
“A. Well, he was doing that work around there for quite a while, and he would have to do it.”

It will be remembered that plaintiff has worked but' two weeks oiling machinery; that this machine had never before been adjusted without stopping it. The record shows that he helped change the rolls in it on Sundays, when the machine was not running. This superintendent’s testimony is that he had no recollection of having seen the plaintiff stop the machine, but was positive that he had stopped it, because of the work he did around there. This testimony was upon a very material matter, and was certainly a conclusion of the witness, and should' have been stricken out.

The last question relates to the testimony of the court stenographer, relative to the testimony of plaintiff taken upon a former trial, used for the purpose of impeachment. On cross-examination of the plaintiff, certain questions were asked relative to testimony given by him upon a former trial, for the purpose of laying a foundation for impeachment. This official stenographer was called by the defense to prove such testimony. He testified that he took the stenographic notes of the testimony of plaintiff correctly and had written a transcript of it, and identified the typewritten copy as being the testimony given at that time. Counsel for defendant then proceeded to examine the witness in the usual manner as to the testimony given by plaintiff on a former trial. It appeared that the stenographer, on being interrogated by counsel, did not have a recollection of all that was testified to by plaintiff. He said:

“ I know it was said without remembering. I took it down and wrote it out, and I. can identify page by page this typewritten testimony as being testimony given at that time.”

It was objected that he was not testifying from his recollection of what the witness said. The objection was overruled and the testimony was admitted.

This court, in a recent case where the question of the admissibility in evidence of memoranda made by a witness at the time of the happening of the event under inquiry, held that upon reason and authority such a memorandum would be competent evidence of the facts therein recorded, if its verity as a record of fact is sufficiently established. Koehler v. Abey, 168 Mich. 113 (133 N. W. 923), and cases cited. In the instant case the verity of the stenographer’s notes was not questioned. They were therefore admissible in evidence. See, also, 26 Am. & Eng. Enc. Law (2d Ed.), p. and cases cited. No error was committed in receiving this testimony.

For the reasons stated, the judgment is reversed, and a new trial granted.

Moore, C. J., and Blair, Stone, and Ostrander, JJ., concurred.


author: Bird, J.

text:
    COLUMBUS & HOCKING COAL & IRON CO. v. SEE.
    1. Sales — Sample—Acceptance — Remedies for Breach of Implied Warranty.
    The duty of a buyer of coal, of the same quality as a previous shipment which he purchased, is to inspect the merchandise upon receipt, and, if it is inferior, to reject it.
    2. Same — Recoupment—Damages—Rescission.
    He may not accept the goods and recoup damages for breach of an implied warranty of its quality.
    8. Same.
    Defendant, who sold the coal after discovering its inferior quality, became liable for the entire purchase price.
    Error to Charlevoix; Mayne, J.
    Submitted January 16, 1911.
    { Docket No. 95.)
    Decided May 3, 1912.
    Assumpsit by the Columbus & Hocking Coal & Iron Company against Llewellyn See and Karl Wardrop, co-partners as the Charlevoix Coal & Wood Company, for goods sold and delivered. Judgment for defendants. Plaintiff brings error.
    Reversed.

      B. W. Kane, for appellant.

      Lisle Shanahan and Halstead & Halstead, for appellees.
   Bird, J.

Plaintiff brought this action to recover the contract price of a cargo of coal sold to defendants in the summer of 1908. In the trial court the defendants prevailed, and the plaintiff has assigned error.

The plaintiff, being desirous of selling coal to defendants, sent them a sample car of coal. It proved to be as represented, and defendants ordered a cargo. This also proved satisfactory, and later in the same year they ordered a second cargo, which is the one in question. The order for the last cargo was as follows:

“August 26, 1908.
*‘The Columbus & Hocking Coal Co.,
“Columbus, Ohio.
‘' Gentlemen:
“ Please forward to Toledo 600 tons Hocking coal to be the same as the last cargo shipped us. The schooner 4 Oliver Mitchell ’ is now, or will be, in Detroit and will go from there to Toledo for cargo. We look for her to be in Toledo about the 2d of September. Do not have much over 600 tons as that is about all she will carry.
“Yours truly,
“Charlevoix Coal & Wood Co.,
44 L. S. See.”

The coal arrived and was found to be inferior in quality to the previous cargo. Soon after the defendants commenced to sell from this cargo, complaints began to come in from their customers that the coal was slaty and was of an inferior quality, and there was testimony that it was not worth more than two-thirds as much as the previous cargo. The defendants reduced the retail price ■50 cents a ton to their customers and deducted it from the -contract price and remitted the balance to plaintiff.

The defendants claim that there was an implied warranty that the second cargo was like the first in quality, and, inasmuch as it was inferior in quality, they had the option to reject the coal or retain it and recoup their damages in this action. The plaintiff insists that there was no implied warranty which survived the acceptance of the coal; that the contract was executory, and when defendants had an opportunity to and did discover the inferiority of the coal, they could refuse to accept it. Failing to do this, the only other course open to them was to pay the contract price. Both counsel have made a strong presentation, and cited many cases in support of their respective contentions. Their differences arise out of the fact that there are two well-defined rules of law, either of which is applicable to the facts in this case. One rule is that in executory contracts for the sale of personal property, where there is an implied warranty, the warranty does not survive the acceptance of the goods; and the other is that the buyer may retain the goods, and either sue to recover his damages or recoup them when sued. 2 Mechem on Sales, § 1392.

In the case before us, both counsel agree it was a sale by sample. Whether it was a sale by sample or description is of little consequence in this case. It was an executory contract with an implied warranty that the second cargo was of the like kind as the first. It therefore became the duty of defendants, upon its arrival, to make an inspection of the coal to see if it corresponded in quality with the first cargo. It was their duty to discover, as promptly as they could, any defects in the coal, and, as soon as they discovered them, to reject the coal as not being in compliance with the contract. It appears, however, that after the defendants discovered the defects in the coal, they continued to sell it by reducing the price 50 cents per ton. No attempt was made to rescind the contract, but the coal was all disposed of at a reduced price. Under the holdings of this court, this must be regarded as an acceptance of the coal and a liability to pay the contract price. This court has arrayed itself with those courts which hold that in executory contracts, with an implied warranty, the duty is to inspect and reject, or pay the contract price. Farrington v. Smith, 77 Mich. 550 (43 N. W. 927); Talbot Paving Co. v. Gorman, 103 Mich. 403 (61 N. W. 655, 27 L. R. A. 96); Williams v. Robb, 104 Mich. 242 (62 N. W. 352); Buick Motor Co. v. Reid Manfg. Co., 150 Mich. 118 (113 N. W. 591); Remy, Schmidt & Pleissner v. Mealy, 161 Mich. 266 (126 N. W. 202, 29 L. R. A. [N. S.], 139, 21 Am. & Eng. Ann. Cas. 74).

The first case cited is a good illustration of the rule. In that case defendants ordered of plaintiffs various qualities of teas, which, it was alleged, the plaintiff represented were as good as those defendant had on sale. The teas were ordered from samples. Afterward the defendant defended on the ground of the inferior quality of the tea shipped to him. There, as here, the defendant continued to sell the teas after he discovered their inferior qualities. In holding the defendant liable, the court said, in part:

“The defendant had the duty laid on him of finding out, with no unreasonable delay, the quality of the teas. As soon as complaints arose it was his duty to investigate at onee, and to make up his mind what he would do. He had no right to offer them for sale thereafter, and at the same time repudiate the bargain. What he sold before being led to suspicion would not affirm the purchase for the remainder; but it was his business to make no further sales except on his own account, and it was his duty to notify plaintiffs at once of his decision.”

The defendants having chosen to retain the coal and made a sale of a large portion of it, after they discovered the inferiority of it, they thereby became liable to pay the contract price, and the trial court was in error in refusing to direct a verdict for the plaintiff.

In view of the decision reached in this case, it will be unnecessary to discuss any of the other errors assigned.

The judgment of the trial court is reversed, and a new trial ordered.

Moore, C. J., and Steere, McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred.


text:
    SCENDAR v. WINONA COPPER CO.
    1. Master and Servant — Safe Plage — Mines and Mining.
    Except in cases where a place is made unsafe by the work of the employé, or danger is oreated as an incident of the labor in which he is engaged, a master is charged with the duty of providing his employés with a reasonably safe place in which to work.
    2. Same — Negligence—Safe Plage — Assurance of Agent.
    Where plaintiff was directed by his employer where to work in its mine, was advised that he must rely on the captain, shift boss, and other employés as to the safety of the place in which he might be working, and where, considering a place in which he was ordered to perform service, dangerous, he called the attention of the captain to it, and, being advised, after an inspection, that it was safe, continued to work there, and three hours later suffered injuries from the fall of rock, the employer assumed the common-law duty to make the place reasonably safe and was not within the exceptions.
    8. Same — Fellow-Servant.
    The duty could not be delegated to other employés so as to relieve the master of liability for their neglect.
    4. Same — Inspection—Care Required.
    Where the alleged inspection was shown to have been less complete or thorough than inspections of its kind in defendant’s mine usually were, its sufficiency was for the jury.
    5. Same — New Trial.
    Evidence upon the point that the attention of the captain and shift boss was not directed to the loose, overhanging rook, being in conflict, was properly left to the jury.
    6. Pleading — Variance—Amendment.
    A variance between declaration and proofs not being brought to the notipe of the trial court, and being curable by amendment, will be regarded on error as cured by amendment.
    Error to Houghton; Streeter, J.
    Submitted January 16, 1911.
    (Docket No. 86.)
    Decided May 3, 1912.

      Case by Valentine Scendar against the Winona Copper Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Allen F. Bees, for appellant.

      Anthony Lucas (.Patrick H. O’Brien, of counsel), for appellee.
   Bird, J.

While plaintiff was working as a trammer on the ninth level of No. 3 shaft in the Winona mine, his partner noticed what appeared to be loose rock in the overhanging wall and called the attention of the captain and shift boss to it. They examined it, with several of the miners, and, after doing so, the captain told plaintiff and his partner that it was solid; that they need not be afraid of it, to go on with their work of filling the car. At this particular point the drift had been cut out but had not yet been timbered. In less than three hours after the captain assured them that it was solid, the rock fell and injured plaintiff. The plaintiff recovered in the trial court on account of his injuries, and the defendant now asks this court to set aside the judgment, principally for the reason that the facts disclosed by plaintiff’s case bring it within the exception to the “safe place doctrine,” which denies to the servant the right to recover for injuries incurred in an unsafe place created or constructed by himself and his co-servants. It is also strenuously insisted by the defendant that the case is ruled by Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 33 L. R. A. 435, 58 Am. St. Rep. 505), and should be so declared by this court.

The rule is well settled that a master must at his peril provide his servants with a reasonably safe place in which to work. Exception, however, has been made to this rule where the unsafe place is made by the servant himself, or where the unsafe place is created as an incident of the work being performed by the servant and his co-laborer, as in mining. This exception to the rule is well illustrated by the following cases: Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (61 N. W. 658, 27 L. R. A. 266); Petaja v. Mining Co., supra; Livingstone v Plate Class Co., 146 Mich. 236 (109 N. W. 431), Strepanski v. Plaster Co., 162 Mich. 696 (127 N. W. 706).

The difference between the Petaja Case and the one under consideration lies in the proofs which tend to show that, as regards, loose overhanging rock, the defendant relieved the trammers of the necessity of looking out for themselves and took upon itself the duty of making the place safe for them.

The plaintiff testified that it was not the custom of the trammers to examine the overhead wall for loose rock; that as a rule the captain and shift boss did it. Plaintiff’s partner testified that they were not allowed to spend any time pinching down loose rock. John Braun, upon cross-examination, testified as follows:

“ I am head mining captain of the Winona, and general superintendent of all the underground operations. I have knowledge of all the work underground, and I hire and discharge men. The shift bosses have authority to hire and discharge men, but I do most of the hiring and discharging. I have power to discharge men working in the mine. I tell the miners where to start cutting out, and tell the trammer bosses where to put their men to work, and tell the shift bosses where to start work of different kinds, and I have general observation of that work as it goes along. I have supervision of where the drifts are to start, and have the right to stop the work at any time. If the cutting-out is completed, I have the right to tell the men to start stoping, and I customarily have the superintending. I would have the right, if there was a question of safety of a place, to determine that, and if I ordered men to go to work there I would expect them to obey it. * * * It takes time to pinch down rock. Sometimes men will bar away for a day to get a piece down, and sometimes they have to put in powder to take it down. The trammers are not supposed, under their duties, to work under loose rock.
UQ. The company undertakes to keep their place reasonably safe in that regard, doesn’t it ?
“A. That’s the business of the miners.
“Q. Isn’t it your business as underground superintendent to see that these trammers are kept safe ?
“A. Yes, but underground superintendents can’t be every place at the same time.
“Q. But it is your duty to see that they have a safe place P
“A. Yes, and I go personally and inspect the place. * * * The only way they would be protected would be to have some one take down the loose rock. They are not paid to do it themselves; they are paid to-shovel dirt.
“Q. And the company undertakes that duty, as far as they are concerned, even in those cutting-outs, as far as the trammers are concerned, to take down the loose ground from the hanging ? (Question objected to by defendant’s counsel as incompetent.)
“A. Yes, sir; as far as in their power.”

From this and other like testimony in the record, we think it sufficiently appears that the defendant, as regards loose overhanging rock, undertook to make the place reasonably safe for the trammers. When the plaintiff was denied the time and privilege to use the ordinary precautions to protect himself and was forced to rely on the judgment of one more skilled as to the safety of the place, the defendant put itself outside of the exception to the safe place rule, and assumed the common-law duty to make the place reasonably safe.

It is argued that, if there were negligence in making the inspection of the walls of the drift, it was the negligence of the captain, shift boss, and miners, and not the negligence of the defendant. The defendant directed the plaintiff where to work and instructed him that he was neither employed nor paid to “pinch down” rock from the overhanging walls, and that he must spend no time in making the place safe in that regard; that that work would be attended to by the captain, shift boss, and miners, and the place would be kept safe for him by them; and that he must abide their judgment whether or not the place was safe. After directions and assurances of this character have been made to plaintiff and he is injured while obeying and relying on them, the law will not permit the defendant to hide behind the captain, shift boss, and miners, and say it was their neglect and not its own. Whether the duty to make the place safe was imposed by law or assumed by the defendant, it could not delegate this duty in such a way as to relieve itself of liability. Sears v. Ames, 117 Mass. 413; Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572); Brown v. Gilchrist, 80 Mich. 56 (45 N. W. 82, 20 Am. St. Rep. 496); Morton v. Railroad Co., 81 Mich. 423 (46 N. W. 111); Roux v. Lumber Co., 94 Mich. 607 (54 N. W. 492).

It is also argued by defendant that, conceding the captain was notified of the loose rock, as claimed by plaintiff, there is no evidence that an insufficient or improper inspection was made, neither was there any evidence that any other or different inspection could have been made, and therefore no negligence upon the part of defendant was shown. The kind of an inspection and what tests were made were in evidence, and this fell far short of what the witness Stan Scendar testified was usually done at defendant’s mine in making such inspections. We think the evidence was sufficient to carry the question to the jury.

It is urged by the defendant that the weight of the evidence does not show that the attention of the captain and boss was directed to the loose overhanging rock, as sworn to by the plaintiff and his partner. The testimony upon this point was in conflict. It was properly submitted to the jury, and we are unable to say that the conclusion reached by them was against the weight of the evidence.

The point is made by defendant that there was a variance between the declaration and the theory upon which the case was submitted to the jury. We have discovered no assignment of error which directly raises the point, and the record does not disclose that it was called to the trial court’s attention, either on the hearing or upon the motion for a new trial. We have no hesitancy, however, in saying that the variance was one which might have been cured by amendment, and it will now be regarded as amended.

The judgment of the trial court is affirmed.

Moore, C. J., and MoAlvay, Brooke, and Ostrander, JJ., concurred.


text:
    HENNES v. CHARLES HEBARD & SONS.
    1. Value — Opinion Evidence — Market Price.
    As an element of damages for marketable timber, the value to the owner of a mill at a given market was improperly included in one of plaintiff’s interrogations, but in the view of all the testimony prejudicial error was not made out.

      2. Same — Damages—Logs and Logging.
    Evidence in support of plaintiff’s theory that he was entitled to recover the market value of converted logs at the nearest market, deducting cost of transportation, was correctly received to show the average cost of hauling and loading, the cost having been shown to vary at different seasons of the year.
    3. Evidence — Ekpert Testimony — Timber Estimates.
    The estimate of one witness based on stump and top measure- • ment of timber might properly be supported by testimony of another experienced estimator that such method was an accurate one.
    4. Process — Service—Prooe—Return—Sheriff.
    There was a substantial compliance with the court rule by the return of a sheriff, that he “served the within subpoena by copy on Ethan Critchfield and Mrs. Elizabeth Critchfield, personally on Elizabeth Critchfield by delivering to each of said defendants a true copy of the within subpoena inscribed ■ copy’ and subscribed ‘ T. M. Brady, complainant’s solicitor,’ and, at the same time I showed them, said defendants, the original subpoena,” eto. The words “onMrs. Elizabeth Critchfleld” should be rejected as surplusage. Chancery Rule 4, subd. 6.
    5. Trover and Conversion — Coten ano y — Joint Tenants.
    Trover was the proper form of action for timber cut from land owned principally by plaintiff alone, though as to one description he was a cotenant with defendant; under the exception to the general rule that a cotenant may bring trover for joint property where the cotenant has lost or destroyed or so converted it to his own use as to render impossible any further enjoyment by the other.
    6. Same.
    The cotenant was not entitled to out timber from the common estate and take it to mill, mixing the property with other timber of his own.
    7. Same — Waste.
    Such action constituted waste.
    8. Same — Demand.
    A demand was unnecessary, as a basis for trover, where the evidence showed a removal of the timber and an actual conversion by defendant.
    Error to Houghton; Streeter, J..
    Submitted January 6, 1911.
    (Docket No. 50.)
    Decided May 3, 1912.
    Trover by Leo Hennes and others against Charles He-bard & Sons, a corporation, for the conversion of certain timber. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Mason & O’Connor (Allen F. Rees, of counsel), for appellant.

      Ball & Stone, for appellees.
   Bird, J.

Judgment in trover passed against the defendants in the trial court for the value of certain sawlogs and poles cut from lots 3 and 4 on section 26, Township 52 North, of Range 32 West, in Baraga county. Both parties claimed title to the lots. The plaintiffs claim title to all of lot 3 and an undivided half of lot 4 through a mortgage foreclosure and commissioner’s deed, which was made in 1878. The defendant claims title to both lots through a conveyance from one Critchfield in 1893, who was also the mortgagor in the foreclosure proceedings. The questions raised by defendant are:

First, that evidence on the question of values was improperly admitted; second, that the commissioner’s deed, under which the plaintiffs claim title, is void; third, that plaintiffs failed to show any conversion of the logs and poles taken from lot 4; fourth, that no demand was made by plaintiffs prior to commencement of suit; fifth, that the trial court did not give the correct rule of damages with reference to the logs and poles cut from lot 4.

It was stipulated that the defendant removed the timber in good faith, believing that it was the sole owner of it.

First. Complaint is made because the witness Green was permitted to answer the following question:

“Do you know what the value of hemlock sawlogs would be on the beach 4 or 4£ miles from the Hebard mill to one operating that mill ? ”

It is said that this question was incompetent and immaterial; that the value “to one operating that mill” was not a proper criterion of plaintiffs’ damages, but, instead, the market value was the proper one. It appeared from the testimony of the witness that he had been engaged in lumbering for 10 years cutting mixed timber, and that his mill was located at Ontonagon, not far from the Hebard mill, to which the product had been taken, and that both mills were tributary to Lake Superior. He testified in detail as to the value of the several classes of timber, what it was worth at the Hebard mill, and what it would cost to cut and transport it to that mill. While the particular question asked was objectionable in that form, we are inclined to the view, from all of his testimony, that neither the witness nor the jury understood that any value other than the market value was being considered.

. The witness was further permitted to testify, over defendant’s objection, what the average cost of logging such premises would be. It was plaintiffs’ theory of damages that they wore entitled to the market value of the logs and poles at the nearest market, less what it would cost to lumber and transport them to the Hebard mill. We can see no impropriety in allowing the average cost of logging to be shown to the jury, inasmuch as it appeared that the cost varied at different seasons of the year, and that it was uncertain as to just when all of the logging was done. The defendant insists that the market value at the time and place of conversion was the only proper method. We think the plaintiffs’ theory of damages was a proper one and one that has been sanctioned by this court in the very similar case of Winchester v. Craig, 33 Mich. 205, and quite recently approved and followed in Anderson v. Besser, 131 Mich. 481 (91 N. W. 737).

Peter Larson was permitted to answer the following question:

‘ ‘ What have you to say as to the accuracy of a stump and top measurement, as based upon your experience ? ”

Darwin Forbes had preceded Larson as a witness, and testified as to the amount of timber taken from the premises, estimating it by what is known among lumbermen as the “ stump and top measurement.” Counsel say that this testimony—

“Was incompetent as tending to bolster up the testimony of Forbes, and as an attempt to ask the witness what weight should be given to the testimony of another witness.”

We think there, is no merit in this objection. A certain method of estimating had been followed, and the question sought to develop whether that method made for accuracy in estimating as much as other methods which were sometimes employed. Larson had had 20 years’ experience as a timber cruiser and estimator and was amply qualified to speak of the accuracy of the several methods usually employed in estimating the quantity of timber after it has been removed.

Second. It is contended that the commissioner’s deed, through which plaintiffs claim title, is void because the court which made the decree of sale never obtained jurisdiction over the defendant. To show the lack of jurisdiction, the defendant relies upon the return of the officer. The return reads as follows:

“ I hereby certify and return that on the 16th day of August, 1876, I served the within subpoena, by copy, on Ethan A. Critchfield and Elizabeth Critchfield, personally on Mrs. Elizabeth Critchfield, by delivering to each of said defendants a true copy of the within subpoena, inscribed ‘ copy ’ and subscribed e T. M. Brady, Complainant’s Solicitor,* and at the same time I showed them, said defendants, the original subpoena with the seal of the court impressed thereon.”

It is insisted—

“ That this return fails to show a personal service at least upon defendant Ethan A. Critchfield, who was the owner of the land, but as worded it shows clearly that there was no personal service at all.”

The rule regulating the service of chancery subpoenas provides that:

“ It may be served by delivering a copy of the writ, subscribed by the complainant, his solicitor, or the officer or person serving the same, and inscribed c copy,’ and showing the original, under the seal of the court, at the time of such delivery, to the defendant.” Chancery Rule 4, subd. 6.

In making service of a subpoena, two things are essential: A copy of the subpoena must be delivered to the party to be served, and the officer or person making the service must at the same time show him the original subpoena with the seal of the court impressed thereon. The return shows that both of these essentials were substantially complied with. The words “on Mrs. Elizabeth Critchfield” should be treated as surplusage and rejected as such. When this is done, the misleading feature of the return disappears.

Third. The point is made that, assuming plaintiffs’ title is good, they are then the owners of lot 3 and owners of an undivided half of lot 4, thereby making them co-tenants with defendant as to lot 4. That being true, defendant argues that plaintiffs could not maintain trover against their cotenant for taking into its possession the timber, as the proofs do not show a conversion of it. The general rule is that one cotenant cannot maintain trover against his cotenant for the common property. There is an exception to the rule which provides that he may maintain such action if his cotenant has lost or destroyed the property or so converted or appropriated it to his own use as to render any further enjoyment by his cotenant impossible. 17 Am. & Eng. Enc. Law (2d Ed.), p. 700, and cases cited. The defendant recognizes the exception, but claims that the proofs went only to the point of showing that the timber was cut and taken to the mill, and' that this action upon the part of defendant was not inconsistent with its right as cotenant and does not amount to a conversion. We cannot agree with counsel in4 this conclusion. It appears from the testimony that the defendant not only cut and hauled to the shore of the lake the timber on these lots, but that in so doing some of them became mixed with logs cut by defendant from the adjoining premises, and the same were afterwards towed four miles away to the Hebard mill. This treatment of the common property so far put it beyond the use and enjoyment of plaintiffs as to amount to a conversion of it by defendant. Clow v. Plummer, 85 Mich. 550 (48 N. W. 795).

If any further proof of conversion were needed, it might be found in the fact that the defendant was guilty of waste in removing the timber from these lands (Benedict v. Torrent, 83 Mich. 181 [47 N. W. 129, 11 L. R. A. 278, 21 Am. St. Rep. 589]), for which the statute gives the plaintiffs an action on the case against the defendant. 3 Comp. Laws, § 11118.

Fourth. It is said no demand was made upon defendant before suit was commenced. If there were a conversion by defendant, no demand was necessary. Williams v. Rogers, 110 Mich. 418 (68 N. W. 240).

Fifth. The argument of counsel that the trial court did not give the correct rule of damages as to that part of the timber taken from lot 4 finds no basis in the record. Counsel evidently had some stipulation with reference to the damages; but, as it does not appear in the record, this assignment will not be considered.

The judgment of the trial court is affirmed.

Moore, C. J., and Brooke, Blair, and Ostrander, .JJ., concurred.


author: McAlvay, J. Ostrander, J.

text:
    WILLIAMS v. WALSH MANUFACTURING CO.
    Contracts — Words and Phrases — “Proceeds.”
    Under á license contract between an inventor and manufacturer providing that the manufacturer should have a half interest in the patent which had been applied for, should have the right to manufacture said invention or license its manufacture and use upon a royalty, paying the inventor one-half of the net proceeds of the royalty, license fee or other consideration of each license, the manufacturer to advertise the product and introduce it and make the business, so far. as possible, successful, the term “ net proceeds ” included the profits after deducting losses on sales, expenses, and costs of the business: Per Moore, C. J., and Steere, MoAlvay, and Brooke, JJ.
    Blair, Stone, Ostrander, and Bird, JJ., holding that complainant was entitled to half the proceeds of licenses, without deducting losses, and was not interested in profits on the manufactured product.

      Appeal from Branch; Yaple, J.
    Submitted June 9, 1911.
    (Docket No. 24.)
    Decided May 3, 1912.
    Bill by Charles F. Williams against the Walsh Manufacturing Company, a foreign corporation, for an accounting. From a decree for complainant, defendant appeals.
    Reversed.
    Merriam, Terlces & Simons (George N. Monro, Jr., of counsel), for appellant.

      jF. A. Lyon, for complainant.
   McAlvay, J.

The bill of complaint was filed in this cause, asking for a disclosure, an accounting, the construction of a certain contract, an injunction, and genera] relief. The record shows that the cause, either originally or by removal, was pending in the Circuit Court of the United States for the Eastern District of Michigan, Southern Division. By a stipulation, all of the files, exhibits, and testimony in the case in that court have been received and treated as the original files, etc., in this case.

It appears from the briefs of both parties that they consider the matter of dispute in the case to be the construction of the following contract between these parties:

“This agreement made this twenty-second day of September, 1904, by and between Charles F. Williams, of Marion, Michigan, party of the first part, and the Walsh Manufacturing Company, a Pennsylvania corporation, having its general office at Pittsburg, Pennsylvania, party of the second part: Whereas, the party of the first part has invented a certain new and useful improvement in kilns for drying lumber, for which an application for letters patent of the United States was filed by him on July 13, 1904, serial No. 216,450; and whereas, the party of the second part is desirous of acquiring a one-half undivided interest in the said invention and the letters patent to be obtained therefor and both the parties hereto are also desirous of putting the said invention on the market upon the terms hereinafter set forth: Now, therefore, these presents witness, that for and in consideration of one dollar to him in hand paid by the party of the second part, the receipt of which is hereby acknowledged, and other good and valuable considerations, the said Charles F. Williams, party of the first part, has sold, assigned and transferred, and by these presents does sell, assign and transfer, unto the said the Walsh Manufacturing Company, party of the second part, its successors and assigns, the one-half undivided interest in and to the said invention set forth in the specifications forming part of the above recited application, serial No. 216,450, or intended so to be; and he does hereby authorize and request the commissioner of patents to issue the said letters patent to be granted as aforesaid to the said the Walsh Manufacturing Company and himself, as the owners thereof; and further, for the consideration aforesaid, the said party of the first part does hereby grant unto the party of the second part, its successors and assigns, the right, free of royalty or other charge, to manufacture, sell and use kilns embodying the said invention, at any and all plants now and hereáfter owned or controlled by it, and upon the conditions hereinafter stated, the exclusive right to license others to manufacture for their own use and to use such kilns, but not to sell; the party of the first part, however, reserving the right to build for his own use, and to use free of charge, one kiln only embodying the said invention.
“ It is hereby covenanted and agreed between the parties hereto, for themselves, their successors, legal representatives and assigns, that the licensing of others to use the said invention shall be upon the following terms and conditions, to wit:
“ (1) The party of the second party may license others to build for their own use, and to use, kilns embodying the said invention, or it may itself build and sell to others to be used, such kilns, in either case charging such royalty, license fee, or other consideration as to it may seem best, but shall not grant any license without royalty or other consideration, and shall, immediately upon its receipt thereof, pay to the party of the first part one-half the net proceeds, whether by way of royalty, license fee, or other considerations, of each such license granted by it to others.
“(2) The party of the second part shall use its best endeavors to introduce the said kilns into the market and to sell licenses to others to use the same, and to make the business a successful and profitable one; it will advertise the same in some first-class cooperage journal, and in some lumber journal or paper, and in case it shall seem best to employ a special representative or agent to exploit the said invention, it will confer with the said party of the first part as to the employment of such agent, and in what manner the business shall be handled.
"(3) The party of the second part shall also keep full and accurate accounts of the licenses granted to others as hereinbefore provided, and the proceeds thereof, and shall exhibit the same to the party of the first part, or his duly authorized agent, at all and reasonable proper times.
" (4) The party of the first part will not grant any licenses under the said letters patent to any party whatsoever, and for all kilns which said party of the first part may himself desire to use, in addition to the single kiln, the right to use which without charge, has been hereinbefore reserved to him — he will pay to the party of the second part a royalty to be agreed upon.
“ (5) Neither of the parties hereto nor their successors, legal representatives, or assigns, shall, without the consent of the other, sell or assign to any others their interest in the said letters patent or any part thereof.
" In testimony whereof, witness the hands and seals of the parties hereto affixed the day and year above written. "Charles F. Williams.
"The Walsh Manufacturing Company.
" J. V. Walsh, Pres, and Treas.”
"Witnessed. Jurat.”

It appears that these parties had business dealings before January 39, 1904, the result of which was that complainant was indebted to defendant to the amount of $400. Complainant on that date made an offer, by letter, to sell defendant a .small heading mill he was running at Marion, Mich., by which means this indebtedness could be paid, in which letter the kiln which complainant desired to patent was mentioned. Mr. Walsh, representing defendant, in April following, came to Marion and examined the mill, and also the dry kiln, which was a part of it. The result of the visit was that defendant purchased the plant, which was held in the name of complainant’s wife, for the sum of $800, on the next day, April 16,1904, and on the same day defendant company, by an agreement in writing, employed complainant, at a salary of $1,200, as manager of this mill plant at Marion for a period of one year, beginning June 1, 1904, with an option to defendant to renew for another year on the same terms, if his services were entirely satisfactory.

At this time, the letters patent on the kiln had been applied for, but not issued. Negotiations were then begun between the parties relative to defendant acquiring a one-half interest in this patent and with the complainant to put the invention on the market. These negotiations, after correspondence and suggestions, finally culminated in the written contract above set forth, under which the parties entered into the business of selling licenses and manufacturing and selling dry kilns according to its terms. Complainant, under his contract, continued to run the Marion plant as manager for about one year; then, the business of manufacturing and selling kilns having developed, he was taken from such management and employed exclusively ips connection with that branch of the business, and so continued from about April 10, 1905, until March 1, 1907, when business relations between the parties ended.

The following paragraph of this contract is the part over which this dispute arises:

“(1) The party of the second part may license others to build for their own use, and to use, kilns embodying the said invention, or it may itself build and sell to others to be used, such kilns, in either case charging such royalty, license fee, or other consideration as to it may seem best, but shall not grant any license without royalty or other consideration, and shall, immediately upon its receipt thereof, pay to the party of the first part one-half of the net proceeds, whether by way of royalty, license fee, or other considerations, of each such license granted by it to others.”

Complainant’s contention is, as stated in his brief, that this contract provides that the defendant, in case kilns were manufactured and sold upon the market, was obligated to pay the entire expense of all kinds incurred in such manufacture and sale, “as against the invention” put in by complainant, “ and [such expenses] were not to be charged up against the kiln business, or against the complainant.” And, further, that each kiln was to be the unit of settlement, and defendant required to pay the complainant one-half of the entire net proceeds received by it on each transaction, whether arising from a license to use a kiln or the sale of a manufactured kiln. To establish such construction, complainant introduced a great deal of testimony relative to conversations, agreements, and understandings between these parties before they finally entered into the written contract; such testimony being claimed to be admissible to show what was the consideration to complainant, and to ascertain the true intention of the parties to this contract, upon the theory that such intention is not clearly expressed.

Defendant contends that by this contract the parties entered into a joint venture, for the purpose of selling licenses to others to use this patented kiln, and to manufacture and sell the kiln upon the market, and carrying on and developing the business; that it furnished all of the money to pay for labor, materials, and expenses of all kinds to carry on this joint adventure in selling licenses and manufacturing and marketing the kilns, all of which, together with the losses, if any, were to be deducted from the receipts of the business before any division of net profits was to be made; that the term “net proceeds” in this contract is equivalent to net profits.

Evidence outside this written instrument to explain its meaning, and to arrive at the intention of the parties, is only admissible when the same cannot be gleaned from the instrument itself.

Turning to the instrument, we find that complainant had invented this kiln and made application for a patent thereon; that defendant desired to acquire a one-half interest in the invention and the letters patent; that both were desirous of putting the invention upon the market upon certain terms, which they set forth in the contract. By these recitals, we are given the situation of the parties, the thing with which they were dealing, and the object of the venture. In furtherance of their undertaking, complainant sold to defendant an undivided one-half interest in his invention, and authorized the issuance of the letters patent thereon to both of them as joint owners. Defendant was given “the exclusive right to license others to manufacture for their own use, and to use, such kilns, but not to sell,” upon the following terms:

“ (1) The party of the second part may license others to build for their own use, and to use, kilns, embodying the said invention, or it may itself build and sell to others to be used, such kilns, in either case charging such royalty, license fee, or other consideration as to it may seem best, but shall not grant any license without royalty or other consideration, and shall, immediately upon its receipt thereof, pay to the party of the first part one-half of the net proceeds, whether by way of royalty, license fee, or other considerations, of each such license granted by it to others.”

Defendant agreed to use its best endeavors to introduce the said kilns into the market, and to sell licenses to others to use the same, and to make the business a successful and profitable one, to advertise the same, and, if it seemed best, “to employ a special representative or agent to exploit said invention.” It agreed to confer with complainant “as to the employment of such agent, and in what manner the business shall be handled.” Defendant also agreed to keep accounts of all licenses granted to others, and the proceeds thereof, open to the inspection of complainant. Other terms of the contract are not material to the issue.

We are of opinion that upon its face a fair interpretation of this contract is that the parties entered into a joint adventure to sell licenses, and to manufacture and sell dry kilns, and to equally share in the result of such adventure. They started out with the intention of putting the invention upon the market, and, to bring about such result, undertook “to make the business a successful and profitable one.” Squally interested in the business, they were to confer together as to the employment of a representative and in the manner of conducting it.

Complainant and his solicitor, when this suit was instituted, in a petition, in this case, drawn by his solicitor and verified by complainant, for the purpose of obtaining a receiver, stated the relations of these parties to be as follows:

“ And your petitioner further represents that the relations created by and existing between your petitioner and the said Walsh Mfg. Co., by force of and under said contract, was to make your petitioner and the said Walsh Mfg. Co. jointly interested in the business of manufacturing and selling said kilns, and licensing others to use kilns, * * * which said relationship existed between your orator and the Walsh Mfg. Co. * * * (made) the business to be carried on under and by virtue of said contract a joint adventure in the nature ol and akin to a partnership, with few exceptions.”

We do not find that this contract is in its terms ambiguous and uncertain, or that the intention of the parties cannot be found within the instrument, taken as a whole. It follows that the large amount of testimony introduced by complainant, of facts and statements which occurred prior to the execution of the written instrument, was incompetent.

As bearing upon the construction of the contract, not bearing in mind his former views, complainant now urges that he was not to receive anything as net profits of the business, but was to receive one-half of the net proceeds of each kiln.

An examination of the bill of complaint discloses that complainant charges therein that the defendant agreed to use its best endeavor to make a profitable and paying business for both parties, and to that end this contract was entered into; that in the prosecution of said business there were manufactured and sold 29 kilns (naming the parties who purchased them), at a price of $1,000 to $1,600 each; that the net profit on each kiln was from $500 to $700, making a total net profit of $14,000 to $18,000 on kilns sold, over and above the amount received for licenses, “one-half of which said net profits, under and by virtue of the terms of said contract, belonged to your orator.” Further, that other kilns were sold and other licenses were granted to persons unknown; “one-half of which said license fees and one-half of the net profits upon said kilns belong to your orator.” The bill of complaint charges that he made a demand for an account of these sales and licenses granted, “showing the net profits received,” in order that he “might determine the exact condition of the said business and the exact amount of the net profits belonging to your orator from said business.”

Complainant, in his letters to defendant, also construed the contract as giving him a share in the net profits. This construction, upon which complainant has planted his suit, is, in our opinion, correct. “Net proceeds” used in this contract is equivalent to “net profits.” The distinction between these terms now claimed by the complainant, in support of the contention that any losses incurred in the conduct of this business cannot, under the contract, be charged against him, is contrary to a fair construction of the instrument and the practical construction given by the parties. This was a joint adventure, partaking of the nature of a partnership, and governed by the same rules, as far as determining the net profits is concerned.

Complainant, as soon as the first kiln manufactured was ready for installation, was put in charge of such work, and so continued as long as the business continued, under salary paid him by defendant, together with all of his expenses. He went from State to State, wherever needed, and was the man upon whom defendant relied. From this record, containing a voluminous correspondence between the parties, and their testimony, we find that complainant was the practical kiln man, who understood the business, and who took charge and superintended the installation and management of installing these kilns; and defendant was guided by his advice and instructions.

The contract is silent as to losses, but provides for a participation in net profits, which of itself contemplates the deduction of all expenses of every kind in carrying on the business, and of all losses sustained.

The proposition that under this contract complainant is entitled to a share in “net proceeds ” (net profits), without taking into consideration losses determining such net profits, is not supported by a fair interpretation of the contract. In fact, we have not been able to understand what complainant, in his brief and oral argument, contends will constitute “net proceeds.” It would seem that a fair deduction from the argument is that “net proceeds” means the entire sales price of each kiln, without any deduction for material, labor, or the usual and ordinary expenses of conducting a manufacturing business. As we understand, this construction is based upon certain claimed conversations between the parties as to what the terms of the contract would be, before it was reduced to writing and signed. The contract these parties made, and which we are called upon to construe, will not bear any such construction.

The paragraph of this contract over which this dispute arose has been quoted at length twice, and need not be repeated. By it the parties intended to, and did, give to defendant the exclusive right, in putting this invention upon the market for the benefit of both, to do the same in two ways: (1) To “license others to build for their own use, and to use, kilns embodying the said invention;” and (2) “to build and sell to others such kilns to be used by them.” The first required merely signing and delivering a proper written permit for the purposes mentioned and receiving payment therefor, either in cash, time paper, or other consideration, to which there could be no large expense attendant. The second required an investment of money for material, the expense necessary to provide specifications for the kiln, and for labor in constructing, superintending, installation, and installing the same. The second would be actually entering into a manufacturing business to put upon the market a manufactured article for sale, subject to all the ordinary risks of such a business. This was not the granting of a license, and is nowhere so considered in the contract. These things were necessarily within the knowledge of the parties at the time of making the contract, and were taken into consideration by them.

The provision made, relative to the payment of complainant’s share by defendant, reads:

“And shall, immediately upon its receipt thereof, pay to the party of the first part [complainant] one-half the net proceeds * * * of each such license granted by it to others.”

It is insisted that this clause made each kiln sold and paid for a unit of settlement; and complainant was entitled to his half of the net proceeds as soon as the same was paid. This view was taken by the trial court. In order to give such construction, something must be added to this clause. It does not speak of a kiln sold and paid for. It does designate a license.

The presumption is that every contract was intended to permit a performance in accordance with its terms; and such construction is, if possible, always given. The construction claimed would have been impossible of performance. In a going manufacturing business, where the article is put upon the market, only the most clearly expressed terms would warrant a court in holding- that the parties intended, when each unit was sold and paid for, to determine the net profits of such sale. In such a business as this, it would be an impossibility, considering all the elements which enter into consideration in arriving at the result; and by no means whatever could losses to the business be even estimated. Such results can be determined only at stated periods. We must hold that kilns manufactured and sold in the course of this business were not within the contemplation of the parties in the requirements of payment provided by this clause; that licenses only were included. The contract makes no provision relative to settlements and payment to complainant of his share of net profits arising from such sales; and such omission would in no way interfere with the due performance of the contract.

Other questions do not require discussion.

The relations between these parties personally and their conduct and disputes are not material to this issue. We have for consideration only the construction of the written contract. Under the contract, complainant is entitled to an accounting with defendant to determine the amount of net profits, if any, arising from this joint adventure between the parties, arising from license fees and sales of manufactured kilns, after deducting all losses on sales, and all expenses and costs incurred in any way in connection with carrying on the business, including all attorney’s fees and costs in making collections, and in prosecuting or defending suits arising out of sales of kilns or otherwise.

The decree of the circuit court is reversed, and a decree will be entered in this court in accordance with this opinion. The cause will be remanded for the purpose of such accounting. Defendant will recover costs of both courts, to be taxed.

Moore, C. J., and Steers and Brooke, JJ., concurred with McAlvay, J.

Ostrander, J.

Standing alone, the clause in the contract, the meaning of which is in dispute, is not ambiguous. Fairly interpreted, it means that whether another is permitted to embody the invention in a kiln built by himself, or whether the defendant builds and sells a kiln embodying the invention, in either case a royalty or a license fee, or some other consideration for the invention, shall be collected. Defendant has the right to fix the fee to be collected, but must in each case fix a license fee, or royalty, or make a charge, for the invention as such. I do not interpret the contract as meaning that the parties were to jointly engage in the business of building kilns. Defendant could build and sell kilns embodying the invention, if it chose to do so. Complainant was equally interested in kilns built by defendant and in those built by third persons; that is to say, he was interested in the royalty, license fee, or other consideration fixed as the price of the right to use the invention. It was in the invention, and in putting it on the market, that they were jointly interested. After providing that each party may use kilns embodying the invention, without paying for the right, the agreement is:

“It is hereby covenanted and agreed between the parties hereto * * * that the licensing of others to use said invention shall be upon the following terms and conditions, to wit.”

Then follows the particular clause referred to, and later the one requiring the party of the second part to keep full and accurate accounts of the licenses granted to others, and the proceeds thereof, and to exhibit the same to the party of the first part. Having this meaning, there was no occasion for providing in the contract for sharing losses. There could be no losses, so far as complainant is concerned. There might be — there would be — some cost and expense incurred in selling licenses to use the invention, which would diminish the license fee, or royalty, or other consideration, exacted from the licensee. I find nothing in the contract which can be said to be opposed to the interpretation I have given it. The words “the proceeds thereof,” in the clause last referred to, and the words “net proceeds,” in the particular clause before referred to, refer to the proceeds of licenses, and not to proceeds of kilns, as kilns, manufactured and sold by the defendant. This interpretation of the contract seems to be accepted by neither of the contracting parties. I am not satisfied that the contract has received a practical construction opposed to the meaning of the words employed therein. I am satisfied that complainant’s present contention cannot be sustained upon the words of the contract, or such evidence of a practical construction thereof as is presented on the record. On the contrary, if he asserts the right toa share of the profits on kilns made by defendant, as kilns, he must take losses in manufacture, etc., into account. If we are to interpret the contract as one or other of the parties thereto now interpret it, an accounting should be ordered upon the basis indicated in the opinion of Mr. Justice Mc-Alvay. The court is not obliged to accept the interpretation of either of the parties. The bill prays that the court will interpret and construe the contract and determine the rights of the parties thereunder.

I am of opinion that an accounting should be had upon the basis indicated herein, and that neither party should recover costs of the appeal, but that costs should be divided equally between them.

Blair, Stone, and Bird, JJ., concurred with Ostrander, J.