text:
    KNEELAND-BIGELOW CO. v. MICHIGAN CENTRAL RAILROAD CO.
    1. ' Evidence — Judicial Notice — State op War — Operation of Railroads by Government.
    Judicial notice may be taken by the courts that a state of war exists, and that congress has placed in the hands of the government the direction and operation of the railroads of the country during such emergency.
    2. War — Governmental Determination — Binding Upon Courts.
    The existence of war and restoration of peace are determined by action of the legislative, supplemented by the executive, department of government, and such determination is binding upon the courts.
    3. Same — Duration of Warfare.
    War having been declared, that condition must be recognized by the courts as existent until the duly constituted national power of the country officially declares to the contrary, even though actual warfare has long since ceased.
    4. Same — Operation of Railroads by Government — Powers.
    The government, in exercising its war-time power, vis major, or the greatest power of all, in taking over the railroads of the country and directing and operating them, has the power to initiate and change rates, fares, charges, etc., when the public interest requires, beyond any resistance by those against whom it is directed (39 U. S. Stat. chap. 418, p. 645; 40 U. S. Stat. chap. 25, p. 456).
    5. Same — Railroads—Governmental Agency.
    A railroad company, whose property has been so taken over by the government as a war measure, is but a subordinate governmental agency, serving under direction and at the will of the government.
    6. Same — Contracts as Affected by War.
    The existence of a state of war affects different contracts in different ways: Some are avoided or dissolved, others are rendered unenforceable for the time being, others, again, remain unaffected; the particular condition of each contract materially affecting the consideration of each case»

      7. Railroads — Contracts—Specific Performance — Operation by Government as War Measure — State Courts — Jurisdiction.
    The State courts will not entertain jurisdiction to compel the specific performance of a pre-war contract between plaintiff, a logging company, and defendant, a railroad company, for hauling logs at a specified rate, during the time said railroad is operated by the government under its war time powers; said defendant having been ousted and incapable of performing.
    8. Same — Breach of Contract — Remedies.
    The validity of the contract, defendant’s liability for damages by reason of its breach, or duty to continue performance should changed conditions render such course possible, and plaintiffs’ rights in an action at law or in some other appropriate proceeding, are passed without prejudice and not determined.
    Appeal from Bay; Houghton, J.
    Submitted June 6, 1919.
    (Docket No. 78.)
    Decided November 11, 1919.
    Bill by the Kneeland-Bigelow Company and another against the Michigan Central Railroad Company and another for a temporary injunction and the specific performance of a contract. From a decree dismissing the bill for want of jurisdiction, plaintiffs appeal.
    Affirmed.

      Beaumont, Smith & Harris, for plaintiffs.

      Frank E. Robson, for defendant railroad company.
   Steere, J.

This matter was heard in the circuit court of Bay county, in chancery, on a motion of plaintiffs for preliminary injunction to restrain a claimed excessive rate charge for transportation of logs, together with a motion of the Michigan railroad commission to dismiss plaintiffs’ bill as to it and a motion of the Michigan Central Railroad Company for dismissal of said bill on grounds set forth in its answer then'on file. The motions were argued and submitted together. Plaintiffs appeal from a decree dismissing their bill of complaint on the ground that the court was without jurisdiction to grant the relief asked.

The original bill of complaint was filed May 15, 1918. On May 22, 1918, motion for a preliminary injunction and an amended bill were served, the latter being practically the same in form and matter as the original and accompanied by certain exhibits referred to therein. The motion by defendant Michigan railroad commission to dismiss was served May 22, 1918. The defendant railroad company filed its answer on July 15, 1918, with motion to dismiss. The grounds stated in its answer and pressed in the motion to dismiss which present the controlling issues involved, as we view them, are that plaintiffs have an adequate remedy at law, if any, and—

“all jurisdiction by this court over the property of this defendant and all equipment thereof, appurtenances thereto and the operation thereof, and charges for the transportation of freight thereon, so far as pertains to the complaints alleged in said bill of complaint, and the relief therein prayed for, has been ousted by said act of congress of August 29, 1916, the proclamation of the President of the United States pursuant thereto, and the act of congress entitled ‘An act to provide for the operation of transportation systems while under Federal control, for the just compensation of their owners, and for other purposes/ approved March 21, 1918, and the action of the President and director general thereunder, as set forth in director general’s Order No. 28, and supplement thereto.”

The relief sought by plaintiffs’ bill is specific performance by the Michigan Central Railroad Company of a pre-war contract according to its terms, their immediate grievance being the imposition of a haulage rate in' excess of that provided in said contract which the court is asked to eliminate by injunction. While previous contract relations between the parties are detailed at length as a basis for plaintiffs’ various contentions in support of the validity and present enforceability of the contract immediately involved, as more directly in point and contemporaneous with the matter complained of, it appears that for several years prior and up to the time when the Federal government took over possession and control of the Michigan Central Railroad as a war measure said railroad company and plaintiffs were in mutual performance of a written contract entered into September 15, 1911, which, with numerous recitals, descriptions and conditions not necessary to detail, provided that plaintiffs would deliver from their lumbering operations on lands in northern Michigan 12,500,000 feet of logs per annum to said railroad company for transportation to Bay City during the ensuing period of 20 years, and the latter would receive, furnish cars therefor and transport the same over its line to said destination during said period, charging therefor a basic rate, with immaterial variations, of $2.25 per thousand feet. Before the time answer was filed herein and the motions, noticed for July 1, 1918, had been heard this rate had been increased 40% by two advances, the first of 15% becoming operative April 15th and the second of 25% effective June 25, 1918.

Section 1 of an act of congress of August 29, 1916, making appropriation for the support of the United States army, and for other purposes (39 U. S. Stat. chap. 418, p. 645, 9 Fed. Stat. Ann. [2d Ed.] p. 1095), provides in part as follows:

“The President, in time of war, is empowered, through the secretary of war, to take possession and assume control of any system or systems of transportation, or any part thereof, and to utilize the same, to the exclusion so far as may be necessary of all other traffic thereon, for the transfer or transportation of troops, war material and equipment, or for such other. purposes connected with the emergency as may be needful or desirable.”

On December 26, 1917, the President of the United States issued a proclamation that by joint resolutions of congress a state of war existed between the United States of America and Germany and Austria, that it had become necessary in the national defense to take possession and assume control of certain transportation systems under the act above quoted from, proclaiming that—

“under and by virtue of the powers vested in me by the foregoing resolutions and statute, and by virtue of all other powers thereto me enabling, do hereby, through Newton D. Baker, secretary of war, take possession and assume control at 12 o’clock noon on the twenty-eighth day of December, 1917, of each and every system of transportation and the appurtenances thereof located wholly or in part within the boundaries of the continental United States and consisting of railroads,” etc.

—and directed that possession, control, operation and utilization of such transportation systems be exercised through and by William G. McAdoo, appointed director general of railroads. (Official Bulletin December 27, 1917.) Said proclamation at some length declared the duties imposed and authority given to said director general, provided that until and except so far as from time to time otherwise by general or special orders directed and determined by him such systems should remain subject to existing laws, statutes and orders of the interstate commerce commission and to statutes and orders of regulating commissions of the various States in which said railroad systems or any part thereof should be situated, but that “any orders, general or special, hereafter made by said director general shall have paramount authority and be obeyed as such.”

Following this an act of congress was passed, on March 21, 1918, entitled: “An act to provide for the operation of transportation systems while under Federal control, for the just compensation of their owners, and for other purposes” (40 U. S. Stat. chap. 25, p. 456, Supp. Fed. Stat. Ann. [2d Ed.] p. 757), which provided in section 10, among other things:

“That during the period of Federal control, whenever in his opinion the public interest requires, the President may initiate rates, fares, charges, * * * That when the President shall find and certify to the interstate commerce commission that in order to defray the expenses of Federal control, and operation fairly chargeable to railway operating expenses, and also to pay railway tax accruals other than war taxes, net rents for joint facilities and equipment, and compensation to the carriers, operating as a unit, it is necessary to increase the railway operating revenues, the interstate commerce commission in determining the justness and reasonableness of any rate, fare, charge, classification, regulation, or practice shall take into consideration said finding and certificate by the President, together with such recommendation as he may make.”

Under the terms of this act and for its efficient execution the President issued a further proclamation on March 29, 1918, continuing Mr. McAdoo in authority as director general and authorizing him—

“to issue any and all orders which may in any way be found necessary and expedient in connection with the Federal control of systems of transportation, railroads, and inland waterways, as fully in all respects as the President is authorized to do, and generally to do and perform all and singular all acts and things and to exercise all and singular the powers and duties which in and by the said act, or any other act in relation to the subject hereof, the President is authorized to do and perform.”

The 15% increase in rates was made while the railroads were in possession of the government and under Federal control, pursuant to acts of congress and proclamations of the President above referred to. _ No direct order of the director general is shown as to it, but rate tariffs were then published and filed with the Michigan railroad commission in compliance with the State law upon that subject (2 Comp. Laws 1915, § 8109 et seq.), providing, amongst other things, for a 15% advance in the rate on logs effective April 15, 1918. Plaintiffs, and others, then applied unsuccessfully to the State railroad commission under the State law for an order suspending or changing such tariff.

On May 25, 1918, Director General McAdoo issued General Order No. 28 by which the then existing rate was advanced 25%, expressly finding therein and certifying to the interstate commerce commission, in part:

“That in order to defray the expenses of Federal control and operation fairly chargeable to railway operating expenses, and also to pay railway tax accruals other than war taxes, net rents for joint facilities and equipment, and compensation to the carriers, operating as a unit, it is necessary to increase the railway operating revenues, and, * * * the public interest required that a general advance in all freight rates, passenger fares, and baggage charges on all traffic carried by railroad and steamboat lines taken under Federal control under an act of congress approved August 29, 1916, entitled 'An act for making appropriations for the support of the army for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes,’ shall be made by initiating the necessary rates, fares, charges, classifications, regulations, and practices by filing the same With the interstate commerce commission under authority of an act of congress approved March 21, 1918.” * * *

The basic rate upon which this 25% increase was authorized by Order No. 28 was the filed and published tariff rate then in effect and applicable to the public generally. The rates established and put in force by General Order No. 28 were initiated and authorized by proclamation of the President under and by authority of congressional legislation enacted as a war measure, in the exercise of a recognized paramount governmental power when a state of war exists. That the governmental power is ample in such emergency and Federal authority plenary under the exigencies shown by the presidential findings and proclamations, is not open to controversy. United States v. Russell, 13 Wall. (U. S.) 623. Judicial notice may be taken by the courts of such extraordinary conditions. The Kaiser Wilhelm II, 246 Fed. 786, 159 C. C. A. 88; Marshall v. Bush, 102 Neb. 279 (167 N. W. 59).

In the legislative branch, of the government congress passed resolutions declaratory of war and laws for the efficient conduct of the same, while the President as chief executive of the nation issued authorized proclamations and orders deemed by him essential to the execution of such laws. Within the scope of those two sovereign departments of our government, the action of congress in passing laws and of the executive in their administration are not to be questioned by the judicial department, Federal or State. The existence of war and restoration of peace are determined by action of the legislative, supplemented by the executive, department of government. Such determination is conclusive and binding upon the courts. War having been declared, that condition must be recognized by the courts as existent until the duly constituted national power of the country officially declares to the contrary, even though actual warfare has long since ceased. Perkins v. Rogers, 35 Ind. 124, 167.

“The existence of a state of war affects different contracts in different ways. Some contracts are avoided or dissolved; others are rendered unenforceable for the time being; others, again, remain unaffected. The particular condition of each contract materially affects the consideration of each case.” Trotter on Contract During and After War (3d Ed.), p. 7.

This is a pre-war contract partially executed and in course of performance by both parties at the beginning of and during the war until government interference by requisition intervened to deprive the defendant company of the independent power to perform on its part.

This case presents a peculiar if not exceptional situation in the particular that the contract was at the time of hearing in undisturbed physical performance with every indication of continuance, as to the manner and conduct of which plaintiffs offer no complaint. Their sole grievance is that as a condition of its continued performance they are compelled to pay a haulage price 40% in excess of that contracted for, not to the defendant company or its agent, as is clearly shown, but to the Federal government which has taken over the railroad as such in its physical entirety, and has been since December 28, 1917, through the President and his. subordinates acting under authority of Federal legislation, in possession and control of defendant’s entire system of transportation with all its property and appliances therefor or relating thereto, and is operating said system of transportation under direction and control of the President, who is authorized to initiate and change rates, fares, charges, etc., when in his opinion the public interest requires, while defendant company’s connection therewith is but as a subordinate governmental agency serving under direction and at the will of the government. The defendant company has been ousted from possession and control of its entire transportation system by governmental interference, in the exercise of that war time, paramount and irresistible power of government sometimes termed vis major, or the greatest power of all, beyond any resistance by those against whom it is directed. Metropolitan Water Board v. Dick, Kerr & Co. (1918), L. R. App. Cas. 119.

Since this contract was entered into in 1911 a grave change of conditions for which neither contracting party is responsible and neither anticipated has imposed upon the defendant company impossibility of further performance on its part, whether temporarily or permanently we need not inquire; while on plaintiffs’ part the existence of a state of war with resultant governmental interference in taking possession and control of defendant’s transportation system has only affected them by advanced traffic rates. This they seek relief from in a court of chancery under a bill for- specific performance against a defendant deprived of power to perform by the Federal government, which is in absolute control of the transportation system essential to performance and with it fulfilling the contract, except as to the matter of rates, while none of its officials in control and imposing the conditions complained of are parties to the suit. Under such conditions a decree of specific performance against the party ousted and incapable of performing would seem to be a vain thing.

For disposition of the issue directly involved we deem it sufficient to find and hold that, by a war measure interposition of the sovereign governmental power, this contract was rendered unenforceable, for the time being at least, and so long as such interposition is maintained by vis major.

Back of this proposition counsel present and ably argue in their briefs numerous interesting questions, both new and old, bearing upon the validity of the contract, which we do not find it necessary to discuss or pass upon. Whether this contract is valid or invalid is immaterial here in our view of the case, which turns on the duty and power of the court to enforce the specific performance, or injunctive relief asked against defendants under the conditions shown by this record. The validity of the contract, defendant’s liability for damages by reason of its breach, or duty to continue performance should changed conditions render such course possible, and plaintiffs’ present rights in an action at law or in some other appropriate proceeding, are passed without prejudice and not determined. For the reasons stated plaintiffs’ bill cannot be entertained at this time under the conditions shown.

The decree dismissing plaintiffs’ bill is affirmed, with costs to defendants.

Bird, C. J., and Moore, Brooke, Fellows, ' Stone, and Kuhn, JJ., concurred.

The late Justice Ostrander took no part in this decision.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    WOODS v. CHALMERS MOTOR CO.
    1. Negligence — Contributory Negixgence — ^-Inferences from Testimony to Be Drawn by Jury.
    In an action for the destruction of plaintiff’s houseboat by fire caused by an explosion on defendant’s premises, any inference that plaintiffs husband appreciated the danger and was guilty of contributory negligence that could be drawn from his testimony that he had been aware for a few days that gasoline was escaping from defendant’s premises onto the ground and a scum was forming on the surface of the water around his houseboat, and that he was looking for another location, held, for the jury rather than the court.

      2. Same — Explosives—Degree of Cabe Required.
    In storing upon its premises and handling for its purposes large quantities of "gasoline, defendant was bound to exercise such reasonable care to avoid accident as was commensurate with the apparent dangers attending such use.
    3. Same — Proof—Inferences—Question for Jury.
    While the burden was upon plaintiff to prove facts from which it might be fairly inferred that defendant’s negligence was the proximate cause of the explosion, the evidence need not be direct and positive; proof sufficient to give room for a reasonable inference, or permissible presumption, of negligence on the part of defendant being sufficient to carry the case to the jury.

      4. Same — Evidence—Question for Jury.
    Contradictory testimony as to whether defendant permitted gasoline to overflow and run at large, and to what extent, rendered the question of its negligence one for the jury.
    6. Same — Inferences—Question for Jury.
    Even if there were no conflict in the testimony, if different inferences might reasonably be drawn as to its import, the question as to whether there was negligence would still be for the jury.
    Error to Wayne; Tappan, J., presiding.
    Submitted June 13, 1919
    (Docket No. 66.)
    Decided December 22, 1919.
    Case by Anna Woods against the Chalmers Motor Company for the negligent burning of plaintiff’s houseboat. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Clark, Emmons, Bryant, Klein & Brotan, for appellant.

      Charles A. Lorenzo (Clifton G. Dyer, of counsel), for appellee.

       The question of liability of one for injury caused by escape of dangerous substance stored on his premises, is discussed in a note in 15 L. R. A. (N. S.) 535.

   Steere, J.

On October 16, 1916, plaintiff was living with her husband in a houseboat moored in Con-nor’s creek near its mouth adjacent to land belonging to the city of Detroit, through the easterly part of which said creek flows. On that date the houseboat was destroyed by a fire resulting from an explosion in defendant’s nearby factory. Plaintiff’s husband assigned to her all his right, title and interest in the houseboat and its contents together with all demands for damages by reason of its destruction and she thereafter brought this action against defendant in the circuit court of Wayne county. From a verdict and judgment in her favor for $1,644, found by a jury to be the value of the property so destroyed, defendant has brought the case to this court for review upon various assignments of error all directed, as stated in its counsel’s brief, to these two questions:

“1. Was the defendant entitled to a directed verdict on the ground that the plaintiff had failed to show that the defendant was guilty of such negligence as would permit recovery? And
"2. Was the plaintiff guilty of such contributory negligence as bars recovery in this case?”

Defendant’s claimed right to a directed verdict was presented and preserved for review by motion, requests and motion for a new trial, with exceptions to the trial court’s rulings thereon, it being urged and argued that the record contains no testimony showing the cause of the explosion nor any negligent act or omission on defendant’s part; and that plaintiff’s husband negligently kept their houseboat moored where oil and greasy scum floated "around it and they well knew whatever dangerous conditions existed.

Connor’s creek curves in its southerly course through Detroit at a point near where it crosses Clairpointe avenue south of Jefferson, running thence in a southwesterly direction to the Detroit river. Along its shores in that locality are located a number of manufacturing establishments. Defendant’s factory property extends southerly from Jefferson avenue to Connor’s creek with a number of large buildings upon it. Near its easterly limits is a long four-story factory building containing the heat treating department, to which is connected a one-story building used by the block testing department, located next to and abutting on Con-nor’s creek. Close to the latter building on the northeast lies land owned by the city of Detroit known as the garbage plant property. Plaintiff’s houseboat was moored to the shore in front of the city property, about 50 feet from defendant’s one-story building of the block testing department in which motors manufactured and assembled elsewhere were tested. The two buildings were adjacent, and “connected by an opening in the steel aperture or door,” as defendant’s manager described their proximity.

Connor’s creek is a sluggish stream at its mouth practically on the level of Detroit river into which it empties. On the day in question there was no perceptible current near its. mouth, and a considerable quantity of oil and oily scum was floating upon its surface in that locality, held back by the wind which was then blowing up stream. That portion of the creek was quite commonly used as a place for mooring houseboats, especially in the fall, and on the day in question three were anchored not far from plaintiff’s.

Gasoline was used by defendant in its block testing department to run the motors, which were placed on blocks or iron cradles for examination and testing, oil being also used to lubricate and function them. A supply of gasoline was stored in the yard on the west side of the building in a sunken tank having a capacity of about 12,000 gallons. For use it was first drawn from the large sunken storage tank by a vacuum pump system into a smaller gravity tank with a capacity of three or four barrels, located close to the side of the building. The overflow from this tank ran, as claimed by defendant, back into the submerged tank. Plaintiff claimed this overflow did not all return to the larger tank but quantities escaped into a small depression in the ground, or ditch, extending from the building to Connor’s creek. The gasoline was piped from the small tank to the motor stand and released to the motors by pet-cocks. There was testimony that almost daily escaping gasoline, oil and water drained into Connor’s creek along the small open ditch, and in places, it could be seen standing in pools. There was also a sewer running from under the southeast corner of the test building to the creek. At about 5 p. m. of the day in question, just when the motor testing work had shut down and the quitting employees of that department were punching the clock preparatory to going home, there was a heavy explosion under that end of the building which blew off the covers of man-holes of a trench or sewer system, including one just outside the building. Simultaneously with this explosion flames burst out of the building and the oily surface of Connor’s creek was set aflame. At the same time plaintiff’s houseboat was listed over by the' explosion, caught fire, and burned so rapidly that plaintiff, who was thrown off her feet by the shock, had difficulty in escaping. Her husband was away from home at his daily employment when this took place and some men who ran down to the shore rescued her. She testified of this:

_ “Between the time of the explosion and the time I discovered the house was on fire I didn’t have time only to run for my life on the front deck, and when I got on the front deck of the boat the escape was cut off._ Mr. Thompson and this other man had risked their lives to take me off, * * * I had two cats burned, they couldn’t get off.”

The negligence imputed by plaintiff to defendant is that it carelessly failed to keep its oils, gasoline and other dangerous combustibles safely stored upon its own premises and negligently permitted the same to escape upon its own premises, and into Connor’s creek; that it employed unskilled persons to handle and use the same, and—

“did negligently and wilfully cause a large quantity of oils, gasoline and other highly dangerous combustible substances to become ignited and to explode which escaped from its premises to plaintiff’s said boathouse setting fire thereto and destroying the same together with all its contents,” and “did also communicate to the oils, gasoline and other inflammable matters then accumulated on the surface of said Connor’s creek near and about said boathouse, which also exploded and set fire to said boathouse, destroying same together with its contents,” etc.

Defendant’s contention that plaintiff was as a matter of law guilty of such contributory negligence as precludes recovery is directed to the claim that she and her husband with knowledge of conditions kept their houseboat moored in a manifestly unsafe location where oils, greasy scum, etc., had accumulated upon the surface of the water around it, the danger being, it is asserted, “appreciated by plaintiff’s husband, who testified that he was so concerned over the situation that he was looking for a place to move, and that he had known this for some time at least before the fire and explosion.”

The record scarcely sustains this version of his testimony. Thomas Woods, plaintiff’s husband, had known and been around that portion of Connor’s creek “off and on” for 17 or 18 years. It was navigable, sheltered water for some distance above its mouth and much used by rowboats, launches, and houseboats. He built their houseboat in 1914. It contained several rooms, was comfortably furnished and fitted up as a home for himself and wife. They had there the usual household goods, comforts and conveniences of a modest home, including customary furniture, culinary utensils, a sewing machine, rugs, draperies, silverware, etc., with various other articles of use and modest luxury, including a phonograph and two cats. Plaintiff testified to having been married 38 years and that they had lived on board their houseboat for over three years. It had been moored abreast the city property where it burned for some time, just how long is not shown. Her husband worked nights at the Michigan Central station, going on duty at 4 p. m., and was called home by telephone shortly after the fire. He had recently noticed and apparently been annoyed by fumes of gasoline, and planned to find a more agreeable ¡location. His testimony on the subject is as follows:

“Q. Did you have occasion to observe the condition of the surface of the water when you left? (On the day of the fire.)
“A. Yes, sir, I was trying to find a location to get out from the fumes of gasoline.
“Q. Because—
“A. On account of the fumes of gasoline.
“Q. You were doing what?
“A. Looking for a location to move.
“Q. When did you first notice those fumes?
“A. Sunday morning when I came home, which would be Sunday about 3 o’clock in the morning.”

Other houseboats were moored close by. He does not testify that in his purpose to move he was actuated by any thought or appreciation of danger from explosion or fire. If his testimony permits that inference, it was for the jury rather than the court.

This is not a case where a plaintiff is shown or claimed to have been at default in some defined duty in regard to a danger of which he had knowledge. It is said in 29 Cyc. p. 640:

“The fact that the person injured was aware of the danger is not sufficient to render him guilty of contributory negligence as matter of law, but the question should be submitted to the jury.”

Amongst the authorities cited in support of this text is Brezee v. Powers, 80 Mich. 172, in which it is said:

“Where the essential fact in a case is whether contributory negligence did or did not exist, and this depends upon inferences to be drawn from facts and circumstances about which honest, intelligent and impartial men might differ, such a case should be submitted to the jury.”

The trial court did not err in submitting the question of plaintiff’s contributory negligence to the jury nor in the charge upon that subject.

Not denying that there was an explosion in defendant’s building with an outburst of flames, in the air and on the water, which set fire to and destroyed plaintiff’s houseboat, defendant’s further contention is that a directed verdict should have been granted in its behalf for the reason that no presumption of negligence arises from the bare fact of an explosion, and the record is destitute of testimony showing any negligent act or omission on its part causing or contributing to the explosion.

The court charged the jury that no presumption of defendant’s negligence arose from the bare proof of an accident or explosion on its premises, that the burden of proving freedom from contributory negligence on her and her husband’s part, and negligence on defendant’s part causing the injury complained of rested upon plaintiff. If right in the assumption that the testimony viewed in its most favorable light for plaintiff, which is the recognized test, raised an issue of fact for the jury, the charge is not otherwise complained of, as we understand the position of counsel, nor open to criticism.

Counsel for defendant cite as analogous in facts and particularly in point here, Cosulich v. Standard Oil Co., 122 N. Y. 118 (25 N. E. 259). In that case plaintiff’s vessel was lying’ at a wharf in Newton creek, King’s county, N. Y., next adjacent to defendant’s wharf and premises on which it conducted a petroleum refinery, where some oil caught fire from an explosion and while burning a quantity of it ran down a pipe leading to a lighter lying at its wharf loaded with petroleum. The lighter exploded and set fire to plaintiff’s vessel at the adjoining dock some 20 feet away. Although quite analogous in its general outlines, that case does not impress us as particularly helpful to the present inquiry, for the principles of law applied to the undisputed facts in that case are conceded here. The opinion is a long one, dealing with many negligence cases involving explosions and similar accidents. It is somewhat peculiarly comménted on by Judge Thompson in his work on negligence with the concluding reflection:

■ — “but a great many judges forget the limitations of their own power and perform the functions of jurors in actions at law for damages, in this way.” 1 Thompson on Negligence, note to section 768.

Be that as it may, the essence of the long decision in facts and law as disposed of appears in the following excerpts:

“The plaintiffs proved simply an explosion. The inference is perhaps permissible that the subject of the explosion was the receptacle described as a boiler, tank, still or agitator, although no witness pretends to assert that it was destroyed or torn down. If it may be inferred that it was the tank the evidence is silent as to the cause. * * * he who alleges injury sustained through the negligence of his neighbor, with whom he has no contract relation and who owes him no other duty than that he shall observe reasonable care to prevent injury, must prove the facts from which an inference of the particular act of negligence charged can be drawn.”

Here facts were proved beyond simply an expíosion, from which plaintiff claims and defendant denies the inference of negligence can be drawn. The facts upon which plaintiff relies are scattered through the testimony in a more or less fragmentary way, of claimed varying significance, full understanding of which an examination of the entire record might best subserve, but we can only note certain significant items of testimony which at least distinguish this from the Cosulich Case.

Defendant used large quantities of gasoline in its testing department taken from a storage tank of 12,-000 gallons capacity sunken in the yard near by. It was elevated from there by a vacuum pump into a gravity tank just outside the building with a capacity of three or four barrels, from which the gasoline passed by gravity through piping to the motors. The gravity tank was elevated so as to keep a 10 or 12 foot head on the motors. On that side was an open ditch about 16 inches wide leading along the building from the creek for about 60 feet to where, as a witness states, “it got out of the building to an outlet.” From 55 to as high as 100 motors a day were tested in the building, supplied with gasoline from the small gravity tank by the wall outside. Carl C. Hinkley, defendant’s work manager and engineer, testified the vacuum pump supplying gasoline from the sunken storage tank pumped continually — “all the time,” the overflow running back into the big tank, and “in taking out gasoline for motors there was a third pipe.” Plaintiff contended and introduced testimony to show that the overflow was not properly cared for and safely returned to the big storage tank but quantities of gasoline were negligently permitted to overflow from the small elevated gravity tank to the ground, spreading into the open ditch and standing in pools, creating a condition which was in effect a dangerous nuisance. This was an issue of fact for the jury, of which Hinkleyisaidjwhen making denial of the fact:

• — “it would be highly dangerous to have a surplus, so many motors you know. For instance, if there was considerable gasoline permitted to accumulate around the premises, it would be highly dangerous, so many motors, you know. If gasoline was allowed to accumulate around the premises, it would be dangerous. I know where the ditch was on the outside of the premises that day. If that ditch was filled with gasoline or partly filled or if it had any gas in it) at all, there would be a certain amount of vapor always present. There would be a certain amount present if used with lubricating oil. * * * If gasoline was present there would be also gasoline action in the ditch. It is obvious that the greater the quantity, the greater the gasoline action.' I should imagine if there was sufficient gasoline saturating the air it would ignite if it came in contact with flame.”

An apparently disinterested witness named Thompson, who worked for the city at the garbage grounds adjoining defendant’s property and was near by at the time of the explosion, testified:

“I have seen this tank overflow for hours at a time. Gasoline came out of it. The gasoline would flow on the ground, lay there in a pool and run off into the creek. Some of it remained in that pool. This was .not protected in any way. * * * I saw the can run over day after day. * * * There is a little ditch running all the way through where this stuff comes out of the tank in this ditch, * * * I have seen gasoline and oils in this ditch; I saw this on the 16th of October, 1916. There was oil and gasoline in it. * * * There was quite a little bit in it, water and gasoline and oil together. The bottom of the ditch was covered with it. The ditch was probably 16 inches wide, just a narrow little gutter down to drain it. There was a flat hole, little trap running from the edge of the hole to the ditch and the flat hole was full. * * * I was down near where the sewer empties into the stream on the day in question. I saw oil and water coming out of it, right at the corner of the Chalmers building. * * * It was quite a ,little stream running there.”

Of the explosion. Thompson said in part:

“I was standing in the barn door and was looking in that direction. The explosion took place about the middle of the building. About the time of the explosion the air was on fire, gasoline oil or something going out of all the windows over there. The flames came from the Chalmers plant. I saw the burning flames in the air. The burning flames lit on the houseboat of the Woods. Prior to the explosion I did not see any flames around the houseboat. I was looking in that direction. After the explosion I saw flames light on the houseboat and saw the houseboat afire.”

Another witness near by who ran out on hearing the explosion to see what had happened said in part:

“I jumped up quick and ran outside and when I got outside everything was afire. The houseboat was afire. It was all over the houseboat, right around where the boat lay and kept working up further because Mr. Benowski had all he could do to get his boat out of the way. * * * There was fire inside the Chalmers plant. I saw fire coming out of the manhole at the'foundation of the one-story building. I saw flames coming from the inside of the building. * * * The point where the fire came out of the manhole there was about in the center of the one-story building.”

Outsiders testified to two apparent drainages from the test block building, a sewer from the southeast corner and an open ditch on the side of the building towards the garbage plant. It also appeared from Hinkley’s testimony there was some kind of a tunnel system under the building. He said he would “judge the tunnels are about 20 inches wide and 3 feet deep”; that they were “just a trench system from the block test” and not a part of the sewer system; that the only water which ran out of the sewer at the southeast corner was waste water from cooling the engines, and the only oil which could pass out with it “would be the lubricating oil that was backed up by the water in flushing out the circulating system of the engines.” He stated “the tunnel had an outlet to the outside.” Asked where the tunnels, or trench system, emptied he replied, “as near as I can recall, it emptied into the ditch that you referred to and ran down to the creek.” He also said that there were manholes in the tunnel system under the floor, and at the time of the explosion “the motors that were over the manholes were elevated and tipped over, causing the damage.” In explanation of his failure to remember to whom he reported the accident, and whether his report was in writing, he offered the reflection that “the management was changing quite rapidly at that time.”

Without further prolonging reference to other items of testimony of similar import which might be noted, we conclude it can be fairly maintained from the record that there is much more shown in this case from which it is possible to infer negligence than the bare fact of an explosion. Negligence is absence or want of ordinary care. In storing upon its premises and handling for its purposes large quantities of gasoline, defendant was in duty bound to exercise such reasonable care to avoid accident as was commensurate with the apparent dangers attending such use. While the burden was upon plaintiff to prove facts from which it might be fairly inferred defendant’s negligence was the proximate cause of the explosion and her injury, the evidence need not be direct and positive. Negligence in a given cause may be susceptible of proof only by circumstances pointing more or less directly to the ultimate fact charged. To carry the case to the jury plaintiff was only bound to prove sufficient to give room for a reasonable inference, or permissible presumption, of negligence on the part of defendant to her damage.

It is urged for defendant there is practically no conflict in the evidence and therefore “the decision of the case becomes a question of law, and not of fact for the jury.” We are impressed the testimony cannot be counted harmonious upon whether, or the extent, gasoline was permitted to overflow and run at large from the gravity tank upon and over the ground to gather in pools, or in the ditch connected with tunnels under the testing building; but were the testimony hot in conflict, if different inferences might reasonably be drawn as to its import, it does not follow the case should be disposed of as a matter of law.

“It is also the general rule that the mere fact that an injury has resulted from certain conduct does not establish the further fact that the conduct was negligent, and we may add a third rule, stated by counsel, which is that although the facts concerning the conduct complained about are not in dispute, if different minds may honestly draw different conclusions respecting them, the question whether there was negligence is still a question for the jury.” Brown v. Bryant, 166 Mich. 180.

We regard as well in point and applicable here the principles applied in Schoepper v. Chemical Co., 113 Mich. 582, involving an explosion of nitro-glycerine, the cause of which defendant contended rested entirely in conjecture. As was said there in conclusion:

“Negligence, like any other fact, may be inferred from circumstances. (Citing cases.) And, though the proof of plaintiff depended upon inference to establish the main fact, the question of whether the inference suggested by the plaintiff’s theory is the correct one, or whether it was sufficiently rebutted, was for the jury.” (Citing cases.)

The judgment will stand affirmed.

Bird, C. J., and Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.

The late Justice Ostrander took no part in this decision.


text:
    HIGGINS v. McGILL.
    1. Vendor and Purchaser — Land Contracts — Execution—Consideration Open to Inquiry.
    In a suit to restrain summary proceedings, to set aside a certain land contract, and for an accounting, -where the vendee denied the execution of the contract and also denied the correctness of the consideration expressed therein, the latter was still open to inquiry although she failed to prove that she did not execute the contract; the consideration being always open to inquiry, even where execution is not denied.
    2. Same — Consideration—Accounting.
    Where plaintiff sustained the burden of proof that the consideration for each of two former contracts was $1,200, and that the consideration in the contract in dispute should be the combined balance owing on the two, she is entitled to an accounting on that basis with credit for all payments satisfactorily shown.
    Appeal from Cass; Des Yoignes, J-
    Submitted June 3, 1919.
    (Docket No. 33.)
    Decided December 22, 1919.
    Rehearing denied January 28, 1920.
    Bill by Irena Higgins against William McGill to enjoin summary proceedings, to set aside a land contract, and for an accounting. From the decree rendered, plaintiff appeals.
    Reversed.

      C. M. Lyle and. John B. Carr, for plaintiff.

      Chester E. Cone, for defendant.
   Steere, J.

This bill is filed for an injunction to restrain proceedings at law to dispossess plaintiff of certain premises, to have a certain contract in relation thereto claimed to have been signed by plaintiff declared void, for an accounting and right to redeem. The immediate moving cause for filing said bill was commencement by defendant, in August, 1917, of summary proceedings to recover from plaintiff possession of 120 acres of land in Calvin township, Cass county, Michigan, to which he held the fee title and claimed ownership, and of which she had been in possession for many years, claiming it as her own. At the time defendant instituted his summary proceedings he held the record title to this farm and amongst other papers an unrecorded contract from himself to plaintiff, purporting to be signed by both parties, dated July 24, 1912, by the terms of which she bought and he sold to her the 120 acres for a stated consideration of $7,-159, payable five years after date with interest at 7% per annum payable annually. He claims this was the renewal of a former land contract, dated June 24, 1898, between the same parties and covering the same property, in which the stated consideration was $3,-707. She admitted having signed the former, but denied the correctness of its stated consideration, and totally repudiated the latter, asserting she never signed it or had any knowledge of its existence until informed of it later by a little 12-year-old girl, named Augusta, who lived with her and had signed it without her knowledge at defendant’s instance. The issues of fact upon which the testimony of the parties is in direct conflict were whether plaintiff had signed or consented to the contract of July, 1912, and the amount owing by her to defendant. The trial court found said contract was executed by plaintiff as defendant claimed, that there was due upon it $9,944.43, on May 1, 1918, that defendant’s title was in effect a mortgage lien on plaintiff’s farm for enforcement of which he must resort to foreclosure proceedings, and granted an injunction permanently restraining summary proceedings at law to obtain possession.

These parties have had business relations for many years and are now both past the threescore and ten. Defendant testified he was 75 years of age. Plaintiff, who is an illiterate native of North Carolina, born in slavery, gave her age as 74 years, stated that her “nationality is white, Indian and a little colored descent,” and of her educational qualifications admitted:

“I can’t read nor write. I don’t know any figures or any dates of the month or anything like that. I ain’t got no learning; never went to school a day in my life.”

Defendant has lived many years in the village of Union, Cass county, about four miles from the farm in question which is in the colored settlement of Calvin township and was settled upon by plaintiff with her family between 45 and 50 years ago. He has been and is a money loaner, a dealer in land, horses and cattle; he acquired extensive real estate holdings and does many thousand dollars of business a year. Plaintiff was manifestly a person of energy and industry in her field of activity which was her farm and home. Her husband, from whom she was separated some 25 years ago and has since died, is. not shown to have figured in any of her business transactions during the many years she developed and worked this farm. She testified that she had borne nine children, all brought up on the farm. Five of them who appeared as. witnesses for her were of mature ages varying so far as stated from 40 to 56 years. The young girl, Augusta, who said she had lived with plaintiff all her life and called her' “mother,” is referred to by counsel as a daughter and a foster child.

Plaintiff early bought 80 acres, of this, farm from one George Redfield on contract and obtained a deed for it from him in 1883. In 1890 she borrowed $1,300 secured by mortgage on the 80 acres from a man named Silver who died in 1892, after which those settling his estate asked payment. She had before that time become acquainted with defendant in a business way and incurred some indebtedness to him secured by chattel mortgage, apparently on some stock, as in 1890 he gave her written permission to let the bearer have a certain cow and he would allow her $80 on it. When making a payment on a chattel mortgage she spoke to him about borrowing money to pay the Silver mortgage, and was also wishing to get a 40 acres of land which he owned, called the “Dungey forty,” which joined her place.

Their first real estate transaction was in relation to this 40 acres which she bought from him on a land contract dated February 29, 1892, for $1,200. In it the consideration is stated to be $1,260, $50 payable on that date and the balance in annual payments of $100 with interest at 8% per annum. They both testified to an agreed consideration of $1,200. When first examined he asserted that she paid nothing down “when she bought it for $1,200.” Shown the contract stating a consideration of $1,260 and asked if it should have been $1,200 defendant replied, “Well now, I don’t know just about what that was, but there was something that there was $60 put with it, I don’t remember just exactly how it was.” She testified positively that the agreed price was just $1,200 and she paid the $50 first payment then, and thereafter made payments on it of $100 per year or more. He denied that she paid $50 down, or any such amounts subsequently as she claimed, asserted “she paid but mighty little no time,” that he gave her a receipt whenever she made payments and each of them had a duplicate contract.

In January, 1894, plaintiff borrowed $1,200 from defendant to pay off the Silver mortgage. His method of transacting this business was to take from her a deed, dated January 22, 1894, of the 80 acres for a stated consideration of $1,500 and give her a land contract of like date for the same, in which the expressed consideration was $1,501.38 payable in five years with interest at 8% per annum. It bears five indorsements of payments amounting to $96. Of this plaintiff testified she had paid $100 and interest on the Silver mortgage, leaving $1,200 due, which was just the amount borrowed to pay off the mortgage; that she did not then know she was signing a deed to him of her 80 acres, but let him fix up the papers as he claimed they should be and she signed them for she then had confidence in and “trusted to him what to do,” as he said he “wouldn’t cheat her quicker than he would his mother.” He first testified of this that she borrowed money from him to pay off the mortgage, but he did not remember how much it was, nor when or'to whom the money was paid because they made papers, which was what he went by. Recalled as a witness, he said that $1,500 was the amount he paid for her. The mortgage was discharged from the public records by Mary Silver, administratrix, on May 3, 1894.

On May 24, 1898, defendant had a new land contract prepared and signed by both of them which on its face provided for the sale to her of the 120 acres covered by the two'previous contracts, the stated consideration being $3,707 payable in three years from date with interest at 7% per annum. On this there are seven indorsements of payments amounting to $200.32. She denies the correctness of the amount stated but says he came with the papers proposing that it would be better to have both pieces of land together, “to make it all in one payment,” as to which she agreed with him and signed the paper he produced for that purpose. Of this, defendant first testified the contract bore his signature, that he did not remember how much was then due on the two contracts put together, but he thought about $3,000, that he could not tell where the contract was made or who by, and he did not “know' anything about these transactions except as appears on the papers,” and when recalled was positive she then owed him $3,707.

July 24, 1912, defendant had a new contract covering the 120-acre farm drawn up between himself and plaintiff by A. H. Field who was accustomed to do clerical work for him. By its terms he sold the farm to her for $7,159, payable within five years from date with interest at 7%. Accompanied by Field he went to plaintiff’s home where she was alone with the little girl Augusta and, as defendant claims, secured plaintiff’s signature, or mark, to the instrument, which she emphatically denies. It is not acknowledged and bears no indorsements. On its face it appears as signed by defendant and “Irene (X) Higgins, her mark,” witnessed by “A. H. Field, Augusta H. Higgins.” Plaintiff testified of this that she was then sick in bed with paralysis and did not then know of McGill and Field being there, did not sign by mark or authorize her name to be written on the paper, and knew nothing about it until the next day when the girl informed'her and said they had left a new paper; that as soon as she got able to ride she went to see defendant about it and denied owing him the amount he claimed, as he had once told her she had done extra well and only owed him $200 or $300, saying, “He said I owed him $7,000 or $10,000, or something like that. He said he wouldn’t bother with it, and was going right up and put me out of doors. I told him to go on.” This interview apparently resulted in an awakening loss of confidence in him on her part and a grievance as she viewed it upon which she was easily aroused to warm discussion and intemperate assertion, as typical of which she declared:

“I will just walk up and down the road before I will pay it. * * * When I know I paid anything I ain’t going to pay no more; never allow to pay another cent while I live, and I told him so when he came there and said if I didn’t pay him he would throw me in the road. I told him to go ahead and throw me in the road, and I say so today.”

It was testified by her and other members of her family that during the summer of 1912 she had suffered a stroke of paralysis affecting mainly one side, which laid her up for some time, during which two named physicians attended her and she slowly recovered, walking first with crutches and at the time of the trial yet remained somewhat crippled on that side so that she walked with a cane. The girl Augusta testified that when McGill and Field came to the farm plaintiff was “sick in bed suffering with a stroke” and she herself was outdoors; that Mr. McGill, whom she knew, called her and said he had some papers to sign, telling her to write plaintiff’s name to them with her mark and sign as a witness, which she did as directed; that the papers were not read to her, and plaintiff “did not have anything to do with the contract at all.” McGill, who when first examined said he knew nothing about those transactions except as appears by the papers and monotonously punctuated his testimony with “I don’t remember,” experienced an active renaissance of memory when recalled, stated plaintiff was up and attending to her work when they went there to have a settlement with her, that Field did the figuring, with which she was satisfied and made her mark to the contract, which he thought was read to her. Field testified that he had acted as clerk for McGill off and on since 1897, drawing, many papers for him, as he did many thousands of business in a year, and there was nothing more about this transaction to impress it on his mind than any other and he had “no distinct recollection of drafting this paper in 1898,” saying further:

“All I recollect about it is what is stated in the contract, Exhibit G. As to what was said and done I don’t pretend to remember, I figured the amount by the former contracts; interest on them, whatever payments were made, * * * I have no recollections of what took place there that day, except what it takes to complete the paper. That applies to any contract that is made. I know nothing in this contract any different from any other contract that I have made for Mr. McGill.”

Thus qualifying his indicated inferential testimony as based on “what it takes to complete such papers,” he stated that plaintiff was around the house, was told what the amount was, said she could not write, “a very common occurrence,” that he wrote her name with her hand on the pen, presumed he made the mark, that Augusta H. Higgins wrote her own name as a witness, and in a general way confirmed McGill’s version of the matter.

Plaintiff does not deny having signed by her mark the various instruments defendant prepared relative to this farm prior to the last contract of 1912, although she denies knowing at the time that one of them was a deed to him of her 80-acre farm. Her testimony that she could not read, write or figure, “trusted to him what to do” and none of these papers were read to her is not denied by defendant, beyond his thought that the last was. read to her, or by any other witness. These transactions were in her life rare and unusual events, of magnitude and serious import, vitally affecting her home and all she possessed. She knew by first knowledge what was done and said, but only knew what was written in the papers to which she made her mark as, and to the extent, defendant may have told her.

In his examination relative to the Dungey 40 contract of 1892, on which are indorsed payments amounting to $176.42, defendant stated he could not remember when he bought the 40 or what he paid for it, had little recollection of any important deals with plaintiff, although he “had a little deal with her, more or less. She has bought horses of me and I bought one or two of her.” Following this he was asked if she borrowed $1,200 of him after February 29, 1892, and said, “Well, she borrowed money to pay the mortgage off” — then was asked and answered as follows:

“Q. How much did she borrow?
“A. I don’t remember.
“Q. Was it $1,200?
“A. I don’t remember. I didn’t try to keep those things in my head because we made papers and that is what I go by. * * *
“Q. How much did you pay?
“A. I don’t remember.
“Q. And to whom?
“A. I don’t remember whom it was paid over to.
“Q. You don’t remember anything about it, do you?
“A. Yes, I remember the deal, but I don’t remember just whom it was paid over to.
“Q. You don’t remember the amount?
“A. No, sir.
“Q. Do you. remember who discharged the Osborn Silver mortgage?
“A. I don’t remember.”

When recalled later and asked what he had to say relative to plaintiff’s claim of the amount she borrowed, he replied, “I say I paid the whole thing, $1,-500. She gave me a deed of the 80 acres at the time.”

It is undisputed the third contract, of 1898, was made to extend and combine her existing indebtedness then represented by the two previous contracts. Plaintiff so understood, but contends it does not correctly represent the amount then owing by her, and that advantage was taken of her inability to read and write by inserting a larger amount. Field identified this contract as in his handwriting. Asked if he remembered when it was made he answered: “Nothing in particular about it. That is my writing, that is all,” and also said of it later, “I don’t remember anything about this contract, nothing particular about it to impress it on my memory.”

Fourteen years later defendant took Field with him and went out four miles into the country to plaintiff’s home at a time she was there alone with a little girl and obtained, as he claims, a renewal of the former contract by which he agreed to sell her and she agreed to buy this 120-acre farm, then assessed at $2,650 but shown worth $75 per acre at the time of trial, for an expressed consideration of $7,159, claimed to be with its increase her original indebtedness to him, incurred about 25 years before, beginning with $2,400 as claimed by her, and $2,761.53 according to his version. In the meantime his dominant muniments of title to her farm, as party of the first part, provided “that all hay made and crops raised on said land are not to be sold or otherwise disposed of without the written consent of the party of the first part.” The evidence is persuasive that he received payment for wheat and other products of the farm which he evasively denies. Plaintiff’s denial and repudiation of this instrument was absolute and her refusal to recognize it by further payments positive, whether from honest belief that her indebtedness was fully or mostly paid, or because of surprise at the rate at which money breeds when cultured by a scientific breeder whose business is to “buy and sell horses, and do different kinds of business, and loan money,” in connection with which he handles chattel mortgages. Her words and conduct are at least consistent with the theory that if she did make her mark to this paper she did not understand its contents.

Defendant’s answer is a denial, asking for no affirmative relief. The trial court held, as was ultimately conceded, that the deed and land contracts defendant held covering plaintiff’s farm were but security for money loaned, in their nature a mortgage lien which could only be enforced by foreclosure, and granted an injunction restraining defendant’s summary proceedings, but finding that the last contract, of July 24, 1912, was valid, held that having acquiesced therein by its execution plaintiff’s “defense utterly fails because she says the debt had been extinguished at that time, and there would be no occasion to enter into a new renewal contract; what would be her due would be a deed and not a contract.” So concluding, the court accepted the consideration nominated in that contract as indisputable and determined her indebtedness to be the amount therein stated with interest from the date of the contract, and as a consequence did not grant an accounting as to the many transactions which preceded it, although the court said of plaintiff’s witnesses:

1 “Counsel for McGill in his brief uses this language: ‘‘None of these witnesses produced on the part of the plaintiff are worthy of credit. They have all except one, possibly, been convicted of crimes. Mr. H. C. Wilson testifies that their reputation for truth and veracity in the neighborhood in which they have long lived is bad and that he would not believe any of them under oath. Mr. Wilson is a colored man himself and very loyal to his people.’ * * * An examination of the record discloses the unfortunate history of the family and confirms, I regret to find, what is said in defendant’s brief.”

From this it is perhaps inferable that the record before us is incomplete. Our scope of inquiry is confined to the authenticated printed record furnished this court for review of the appeal. • An examination of it confirms but part of what is said in defendant’s brief. The Mr. Wilson there mentioned was the only impeaching witness called by defendant. So far as the record discloses his asserted loyalty to his people cannot be taken seriously. He condemns the character of all members of the colored race of whom he makes mention, including himself. He testified that he long lived near and knew plaintiff and her family, that he knew the reputation for truth and veracity of six named members of the family who were witnesses, including plaintiff, and it was “bad,” adding, “I would not believe Irena Higgins or one of the family under oath.” On cross-examination he testified he had been arrested for crime, convicted and sentenced to Ionia, the occasion, as he states, being:

“I throwed some lead at a man kind of careless that time, and he needed it — cost me a thousand dollars, too, but he would have got his bacon if he hadn’t went.”

The only evidence we discover of loyalty to his people is his account of another criminal experience which cost him $100, based on an event in which he knocked a man, “as far as from here across to that wall there.” This he thought was a good investment, as before that the man “wouldn’t let a negro eat at his table. After that he was a gentleman.” The sweeping statements of defendant’s counsel that the witnesses produced on the part of the plaintiff “have all, except one, possibly, been convicted of crime” finds support in this record only as to five of the twelve witnesses called by plaintiff’s counsel and sworn. These were her children who testified mainly in confirmation of her claim that she had on certain occasions made specified payments, which defendant denied, when certain of them were present, with details of what products of the farm in crops or stock she sold to get the money and when paid. We find nothing in the record to support this accusation as to the girl Augusta or plaintiff herself, who is not shown to have ever during her long life in that community been arrested for or charged with any criminal offense, to have ever had a lawsuit or employed an attorney before the present litigation; and Wilson’s impeaching evidence as to her reputation for truth and veracity is met to the contrary by that of two apparently disinterested citizens of long acquaintance with no disclosed criminal record — color not shown — one of them being a U. S. mail carrier whose route passed her home and who had known her for 40 years.

We cannot agree with the conclusion of the trial court that having failed to show she did not execute the contract plaintiff’s defense utterly fails. The testimony of the four witnesses present is equally divided as to her participating in the transaction. Assuming that she did, the undisputed circumstances under which defendant secured her mark to an instrument of its character and importance shade its verity and are persuasive that if her hand was on the pen when Field made the mark, as he finally concluded and stated after testifying that he did not pretend to remember what was done and said or “anything about this contract,” she did not hear it read, nor as the matter was presented to her, execute the instrument with full knowledge of its contents and import, or clearly understand that it mortgaged- her farm and obligated her to an amount inserted as the consideration. But accepting the conclusion of the trial court that plaintiff has failed to sustain the burden of proof in denial of her mark against the presumptions of the written instrument, the considerations expressed in such instruments where execution is not denied is always open to inquiry, and particularly so under the circumstances of this ease.

We are impressed that plaintiff has on this record as it reads convincingly sustained the burden of her claim that the actual consideration for each of the first two contracts, of 1892 and 1894, was $1,200, and that she executed the third understanding and believing the consideration therefor was the combined balanee owing on the two which preceded it. She is entitled to an accounting on that basis with credit for all payments satisfactorily shown.

These parties were by no means on an equality in business experience and ability. Defendant was a money loaner and trafficker of large experience, doing many thousand dollars of business each year in lines of dealing which demanded keen business ability and shrewdness to succeed, as he did to a marked degree. She was an unlettered colored woman, living in the country with her family on new land she had secured which proved to be productive and by her efforts was made to produce. She for years successfully raised upon it both crops and stock. With an eye to business defendant early formed her acquaintance, secured her confidence, sold her horses, took chattel mortgages from her, sold her additional land at a profit, lent her money, took a deed of her farm and secured in writing control of what she raised upon it. Compared with his, her business transactions, were few. Unable to read or write she could only record them in her memory. Whether true or false, she relates the more important business events in her life with a distinctness and verifying circumstantial detail often characteristic of the illiterate, in marked contrast with defendant who in venturing beyond his asserted lack of remembrance and dependence on what is in the cop-tracts is quickly adrift in a maze of contradictions. Failure to have written evidence of their various business transactions is more readily explainable and excusable for one in her walk in life than in his. For a business man dealing with many people, in various lines, with clerical help, doing many thousand dollars of business a year, to keep no books of account, or written records beyond the securities he holds is at least peculiar. What the facts are in defendant’s case is open to conjecture. First stating he knew nothing about these transactions except as appears on the papers and had no independent recollection he later- inadvertently stated:

“Oh, I think I have records or accounts of payments that Mrs. Higgins made since she has been transacting business with me since February 29,1892, but I haven’t looked it over. I keep account of different things, you know, and when I get through with that book I lay it away.”

If that book which he had laid away, containing records of accounts of plaintiff’s payments since February, 1892, had been, or could be, produced it would seem a very helpful thing to one or both of these parties; but defendant shortly thereafter denied its existence and hastened to assert,—

“I haven’t any record at all outside of what are indorsed on these contracts. * * * I would not pretend to have a record of it. I don’t make any records or minutes when I make loans to different people. I simply rely on the papers of that date.”

Asserting that plaintiff “didn’t make but mighty little payments,” that he remembered “her making little payments once or twice” and he didn’t think she “ever made a payment to exceed $20,” when shown an indorsement of $100 in his handwriting he did not deny it, but later impeached his few indorsements, on “those older contracts” with the reflection that there were some of them “all right and some that are not.” He was the only witness for the defense in denial of plaintiff’s claimed payments, his only other witnesses being Field and Wilson. His testimony was in substance an omnibus denial, behind dependence on the contracts and asserted non-remembrance, with at times conflicting statements when he ventured into details.

Claiming that throughout all these years plaintiff paid but little on her indebtedness to him and never near kept up the interest, admitting he knew the deed of her farm and contracts he held were only security for money loaned and to be treated as a mortgage, with the nature of which he was not unfamiliar, he attempted after a difference developed as to the amount plaintiff owed him to short-cut past a possible accounting and right of redemption by summary proceedings to put her off the place. She is entitled to an injunction, as held by the lower court, restraining summary proceedings, and to an accounting, either in this suit or on foreclosure by defendant as to her indebtedness to him which is secured by the deeds and contracts which he holds.

Under the theory on which the decree appealed from was rendered, no accounting was gone into as such and directly passed upon by the trial court. The finding and decree of the trial court that between the original parties the consideration set out in defendant’s security in the nature of a mortgage may not be inquired into is set aside and the case remanded for such further proceedings as parties may desire and the trial court determine in harmony with this opinion, with costs of this court to plaintiff.

Bird, C. J., and Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.

The late Justice Ostrander took no part- in this decision.


author: Bird, C. J.

text:
    McMULLEN v. GAVETTE CONSTRUCTION CO.
    1. Master and Servant — Workmen’s Compensation Act — Construction — Commutation of Deferred Payments — Discretion of Industrial Accident Board.
    The workmen’s compensation act (part 2, § 22) construed, and held, to provide (1) for a lump sum agreement between the parties with the approval of the industrial accident board, and (2) for a commutation of deferred payments without the consent of the employer if the discretion of the board is moved by special circumstances attending the case.
    2. Same.
    Said section held, not inconsistent and therefore void because by the second provision thereof the employer would be deprived of the right to retain future payments should the injured employee die prior to the expiration of the period within which he would have received weekly payments, leaving no dependents (part 2, § 12), or surviving dependents be deprived of them (part 2, § 7), since it is in furtherance of the central idea which underlies the legislation, viz., to provide for the misfortunes of employees by accident.
    3. Same — Evidence—Sufficiency—Industrial Accident Board— Discretion.
    A showing by the injured employee that he is permanently incapacitated for work at his trade of carpenter, that he might be able to do some kinds of clerical work where he could sit, that he requires the money to educate himself for such purpose, and that to pay medical and hospital bills his father mortgaged his farm, held, sufficient to authorize the board to exercise the discretion provided in said section.
    For authorities passing on the question of lump sum settlement under workmen’s compensation act, see subdivision of a comprehensive note in L. R. A. 1916A, 175.
    Certiorari to Industrial Accident Board.
    Submitted October 14, 1919.
    (Docket No. 32.)
    Decided December 22, 1919.
    Petition by Roy McMullen against the Gavette Construction Company and the Globe Indemnity Company, insurer, praying for a lump' settlement of a claim for accidental injuries. From an order awarding payment, defendants bring certiorari.
    Affirmed.

      Douglas, Eaman, Barbour & Rogers and O. G. Wismer, for appellants.

      Herbert W. Smith, for appellee.
   Bird, C. J.

Plaintiff is a carpenter by trade. On November 20, 1916, he was employed by defendant construction company. On that date he fell from a scaffold and sustained what is termed by counsel as a “broken back.” No question is raised but that the injury arose out of and in the course of his employment. On April 9, 1917, the parties entered into a compensation agreement of $10 a week. This weekly wage was regularly paid by defendants up to January 20, 1919, when plaintiff filed a petition with the industrial accident board praying for a lump sum settlement. A hearing followed in which a„ showing was made bearing upon plaintiff’s physical condition and financial necessities. After considering the same the board made an order, the material part of which is as follows:

“(a) That said applicant, Roy McMullen, as a result of the accidental personal injury sustained by him November 20, 1916, while in the employ of said respondents, is totally and permanently incapacitated for work as a carpenter, the occupation in which he was engaged at the time of the accident;
“(b) That as a result of respondents’ failure to provide for applicant necessary and reasonable medical and hospital services during the first three weeks following his injury, as provided by the workmen’s compensation act, said applicant had to himself secure proper medical attention and become liable for the payment of the same ($1,000.00), about one-half of which medical attention should have been furnished the applicant by the respondents, at their expense, during the first three weeks following the injury;
“(c) That the circumstances in this case are such that it is reasonable and proper that said applicant should receive a sufficient amount of compensation in a lump sum to take care of debts contracted because of the accident, and also to make it possible for said applicant to educate himself so that he will be able to follow some new vocation.
“It is therefore ordered and adjudged, that said petition should be and the same is hereby denied, as to the granting of a lump sum settlement, but respondents are hereby authorized and directed to make an advance payment of one thousand seven hundred fifty dollars ($1,750.00), which commuted on its present worth would amount to the sum of one thousand six hundred seventeen and 6-100 dollars ($1,617.06), which latter amount shall be paid forthwith and receipt therefor filed with the board.”

Upon certiorari defendants insist the order is wrong and make the following contentions,:

“(1) The power of the board to grant or order lump sum advance payments is confined to those cases in which the consent of the employer is given.
“(2) If the power of the board is not confined to the extent stated in our first contention, it does not extend beyond cases involving specific indemnities.
“(3) Whatever disposition the court may make of contentions one and two, and even if it be held that the statute gives the. board power to direct at any time a lump sum advancement to be made, in any case, if special circumstances be found which, in its judgment, require the same, then the present award should be reversed.”

1 and 2. The statute under which the board acted in making the order provides that:

“Whenever any weekly payment has been continued for not less than six months, the liability therefor may be redeemed by the payment of a lump sum by agreement of the parties, subject to the approval of the industrial accident board, and said board may at any time direct in any case, if special circumstances be found, which, in its judgment, require the same, that the deferred payments be commuted on the present worth thereof at 5% per annum to one or more lump sum payments, and that such payments shall be made by the employer or the insurance company carrying such risk, or commissioner of insurance, as the case may be.” 2 Comp. Laws 1915, § 5452.

There appears to be very little necessity for construing this statute. In plain, unmistakable terms it provides for a lump sum agreement by the parties With the approval of the industrial accident board, and it also provides that the board may, at any time, in any case, provide for a commutation of deferred payments if its discretion is moved by special circumstances attending the case. While the first provision makes it plain that the consent of the employer is to be given, there is no language in the second provision from which any such conclusion could be drawn.

3. It is argued that if this provision of the statute is. to be given full effect, in many cases, it will suspend the following provisions of the act: ¡

“The death of the injured employee prior to the expiration of the period within which he would receive such weekly payments shall be deemed to end such disability, and all liability for the remainder of such payments which he would have received in case he had lived shall be terminated, but the employer shall thereupon be liable for the following death benefits in lieu of any further disability indemnity.” * * * 2 Comp. Laws 1915, § 5442.
“* * * In case of the death of one such dependent, his proportion of such compensation shall be payable to tbe surviving dependents pro rata. Upon the death of all such dependents, compensation shall cease.” * * * 2 Comp. Laws 1915, § 5437.
“Any weekly payment under this act may be reviewed by the industrial accident board at the request of the employer, or the insurance company carrying such risks, or the commissioner of insurance as the case may be, or the employee; and on such review it may be ended, diminished or increased, subject to the maximum and minimum amounts above provided, if the board finds that the facts warrant such action.” 2 Comp. Laws 1915, § 5467.

The argument is made under the first and third sections that if, after a lump sum advancement is made, the injured party should die, leaving no dependents, the employer would be deprived of the right to retain the future payments, and under the second section that the dependents would be deprived of them. In view of this we are asked to nullify this section of the statute as being inconsistent with the body of the act. It was evidently the intention of the legislature in passing this act to provide for the misfortunes of the employees by accident, and in doing so it was evidently in the mind of the legislature that in most cases the employees’ misfortune would be better served by making periodical payments rather than lump' sum payments, and that policy was adopted and carried out in the act. But to that rule the legislature created an exception, namely: That lump sum advancements might be made where special circumstances exist, which, in the discretion of the board, made it probable that the interest of the employee would be better served by so doing. We see no inconsistency between these provisions. The exceptions may in many cases be very beneficial to the injured man and his dependents and is, therefore, in furtherance of the central idea which underlies the legislation.

But it is insisted that there have been no circumstances shown here which justify action under this statute. It was shown, on the hearing, by medical testimony, that plaintiff is permanently incapacitated for work at his trade as a carpenter. It was further shown that he might be able to do some kinds of work where he could sit, such as clerical work or telegraphing. It is further shown that his medical and hospital expenses were over $900, and that in order to obtain the same his father mortgaged his farm. We think the showing was ample to authorize the board to invoke the aid of this statute and their order must be sustained, with costs to the plaintiff.

Sharpe, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Sharpe, J.

text:
    POCS v. BUICK MOTOR CO.
    Master and Servant — Workmen’s Compensation Act — Denial oe Rehearing by Industrial Accident Board — Review.
    There being no provision in either the workmen’s compensation act or the rules of the board for a rehearing by the industrial accident board after it has made a final order, the Supreme Court will not, on certiorari, review the action of the board denying such rehearing.
    The question of review and appeal under workmen’s compensation acts, generally, see notes in L. R. A. 1916A, pp. 163 and 266; L. R. A. 1917D, 186.
    Motion by George Poes against the Buick Motor Company and another to dismiss a writ of certiorari.
    Submitted October 7, 1919.
    (Calendar No. 28,829.)
    Motion granted December 22, 1919.
    Rehearing denied April 10, 1920.

      Kinnane, Black & Leibrand, for the motion.

      Kerr & Lacey, contra.

   Sharpe, J.

The petitioner filed a claim for compensation against defendants under the Michigan workmen’s compensation law with the industrial accident board. An arbitration was had, the award reviewed by the board, and a final order entered in favor of the petitioner and against defendants on January 24, 1919. On February 18, 1919, the respondents filed with the board a petition and motion for a rehearing, alleging therein that the board did not have before it, at the time of making such final order, a true and certified transcript of the testimony which was submitted to the committee on arbitration and that the errors and omissions in the transcript furnished were so flagrant and apparent that the order made should be vacated and the case reopened and a rehearing had. On April 15, 1919, the board made the following order denying said petition:

“In this case a petition having been filed, praying for the reasons therein set forth that the board reopen said case and grant a rehearing and that the order entered by the full board herein on January 24, 1919, reversing the award of the committee of arbitration be set aside, and said petition having come on to be heard before the full board on April 4, 1919, and having been argued on that date by counsel for the respective parties, and the board having carefully considered the entire record of the case and all matters herein involved, the board finds that while differences exist between the two transcripts of testimony made by the two stenographers who reported the arbitration hearing, yet there is no reason apparent to the board for reversing the order of the full board granting compensation in this case, and does not pass upon the question as to which of the two transcripts is the more accurate; and on full consideration of the case:
“It is ordered and adjudged that the said petition of the respondents should be and the same is hereby denied, and respondents shall comply in all things with the final order of the full board entered in this matter on January 24, 1919.”

The respondents applied to this court for a writ of certiorari to review such order, and the same was granted on May 14, 1919. Petitioner now moves to dismiss this writ, alleging that “it was improvidently issued and without authority in law” for the reason that such applications must be made and filed within 30 days after the determination by the board.

The statute providing for the review by this court of the orders of the board (2 Comp. Laws 1915, § 5465) reads as follows:

“The findings of fact made by said industrial accident board acting within its powers, shall, in the absence of fraud, be conclusive, but the Supreme Court shall have power to review questions of law involved in any final decision or determination of said industrial accident board: Provided, That application is made by the aggrieved party within thirty days after such determination by certiorari, mandamus or by any other method permissible under the rules and practice of said court or the laws of this State, and to make such further orders in respect thereto as justice may require.”

There is no provision in the law for a rehearing after a final order is made by the board. Neither has our attention been called to any rule relative thereto which has been adopted by the board. While other provisions of the act permit the board to review any weekly payment allowed, at the request of the employee, employer or insurance company carrying the risk, it was held in Estate of Beckwith v. Spooner, 183 Mich. 329 (Ann. Cas. 1916E, 886), that—

“On the hearing of such petition for review it can be stated as a general rule that the essentials leading up to the award, or its equivalent, are to be taken as res adjudicata, except the physical condition of the injured employee, which naturally and legally remains open to inquiry.”

The respondents claim that the decision in Shaffer v. D’Arcy Spring Co., 199 Mich. 537, supports their contention. In that case it appeared that, while an agreement between the parties had been filed with the board, it had never been acted on by it, and it was held that “until this is done the agreement is not final.”

It follows that the writ of certiorari was improvidently issued and the same will be dismissed, with costs to petitioner.

Bird, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.