author: Brooke, J.

text:
    DONNELLY v. MICHIGAN MALLEABLE IRON CO.
    Contracts — Master and Servant — Salary.
    Evidence in an action for breach of contract of employment considered, and held, not to establish a hiring for a year at an annual salary.
    Error to Wayne; Murphy, J.
    Submitted January 20, 1914.
    (Docket No. 171.)
    Decided July 24, 1914.
    Assumpsit by Peter Donnelly against the Michigan Malleable Iron Company for breach of a contract of employment. Judgment for plaintiff for less than his claim. Plaintiff brings error.
    Affirmed.

      James PL. Pound, for appellant.

      Allan H. Frazer, for appellee.
   Brooke, J.

Plaintiff started to work for the defendant company 13 years ago or more as a molder. After working in that capacity for. a few months, he was made foreman of one of the shops, and after two-years was placed in charge' of another. A little later he was made foreman of all of them. On the 1st of January, 1909, he was made superintendent, his salary being $125 per month. This continued during the entire year 1909 and up to about the 1st of May, 1910, at which time he demanded an increase of salary. The matter was discussed between himself and Mr. Nelson, the assistant manager of the defendant company, and it was agreed between them that his salary, commencing June 1, 1910, should be $2,000 a year, or at the rate of $2,000 per year. . Commencing on June 1, 1910, his salary was paid at that rate until the end of October, 1910, when he was discharged. Plaintiff brought suit for salary at the rate of $2,000 per annum from November 1, 1910, to June 1, 1911.. Defendant claimed that the hiring was but from month to month. The court, in charging the jury, said:

“Much has been said intimating that plaintiff’s claim was for a yearly hiring, beginning J une 1, 1910. In your absence a careful examination of the testimony has been had, and it results in the conclusion that there is nothing in the testimony which would support the theory that a contract of employment for a year was had for the year beginning June 1, 1910. The plaintiff’s claim, then, gentlemen of the jury, is submitted to you, upon the theory that there was a contract by the year beginning January 1, 1910, and the theory that there was a contract for a year, beginning June 1, 1910, not being supported by the testimony, is not before you for consideration. To entitle the plaintiff to recover, then, you must be satisfied by the testimony that there was a yearly hiring of the plaintiff, beginning January 1, 1910, and the plaintiff, furthermore, must establish to your satisfaction his performance of that contract.”

Under this charge the jury rendered a verdict in favor of plaintiff for two months’ salary. Defendant does not appeal.

The principal contention of the plaintiff is that the court, under the testimony, committed error in instructing the jury that they could not find that a contract had been made between the parties running from June 1, 1910, to June 1, 1911.

We have carefully read all of the evidence offered on behalf of the plaintiff upon this point, and are satisfied that there is no testimony which would have warranted the court in permitting the jury to find a contract for a year commencing June 1, 1910.

As plaintiff recovered the full amount possible under this instruction of the court, which we hold to have been proper, it is unnecessary and unprofitable to discuss the other assignments of error.

The judgment is affirmed.

McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, C. J.

license: Public Domain

text:
    FERGUSON v. COUNTY OF MUSKEGON.
    Municipal Corporations — Highways—Sidewalks—Negligence— Parties — County Road System.
    The passage of Act No. 283, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §2173 et seq.), which provides for the so-called county road system, and creates a board of county road commissioners to have authority over grading, draining, and constructing roads, the construction of bridges and culverts; enacting, further, that “they shall have all the authority in respect to such roads, bridges, and culverts which is vested in the highway officers in townships,” etc.; also, enacting that townships and unincorporated villages shall possess the authority to build, repair and preserve sidewalks, was not intended to make counties that adopt the system liable for defects in sidewalks situated in an unincorporated village.
    Error to Muskegon; Sullivan, J.
    Submitted January 16, 1914.
    (Docket No. 110.)
    Decided July 24, 1914.
    Case by Harvey Ferguson, by next friend, against the county of Muskegon for personal injuries. From a judgment sustaining a demurrer to the declaration, plaintiff brings error.
    Affirmed.

      Sutherland, Johnson & Sessions, for appellant.

      Harris E. Galpin, for appellee.
   McAlvay, C. J.

Plaintiff brought suit against defendant to recover damages for personal injuries received by reason of a defective sidewalk in the township of Ravenna along a certain highway which runs through the unincorporated village of Ravenna; this highway being what is known as a county road. Defendant demurred to the plaintiff’s declaration upon the ground that Act No. 283 of the Public Acts of 1909, which provides for the county road system, imposed no liability upon defendant. The demurrer was sustained, and final judgment was entered thereon against plaintiff and in favor of defendant. The case is brought to this court by plaintiff asking for a reversal of such judgment.

The facts admitted by defendant’s demurrer are substantially as follows: The county of Muskegon has adopted a county road system under Act No. 283 of the Public Acts of 1909 (2 How. Stat. [2d Ed.] §2173), and it declared a portion of the public highway in the township of Ravenna, which runs through the unincorporated village of Ravenna to be a county road and named it Ravenna Road. After passing through the village of Ravenna, this road turns south, going down a short hill, and then crosses a bridge over Crockery creek in said township. On the west side and along this portion of the road is laid a sidewalk which at a point north of a bridge terminates abruptly, leaving a drop of about 18 inches. A timber about 12 inches square and 4 feet long was placed at this point, which made a step from the sidewalk to the ground below. This sidewalk at this point is 6 feet wide and the timber step, being but 4 feet long, lacked 2 feet of extending the full width of the sidewalk. This sidewalk had been open to public travel for a long time prior to the accident which occurred at this place. There was no handrail or guard, light, or other means of warning placed at this point whereby a foot passenger along the sidewalk might be made aware that the step was shorter than the width of the walk. The usual traveled way for foot passengers was to walk down this sidewalk to the step and then step down and thence along the road across the bridge.

Plaintiff was injured on this road at this place on- or about December 8, 1912, at 6 o’clock in the evening. He was at that time going to his destination across the bridge over Crockery creek and, walking along the sidewalk, attempted to go down the step. He was unaware that the step was shorter than the sidewalk and, stepping down at that place, fell violently to the ground below, breaking his leg, and causing the injury complained of.

The question raised upon the assignments of error is whether, under the provisions of Act No. 283 of the Public Acts of 1909, it is made the duty of counties to keep in reasonable repair, so that they shall be reasonably safe and fit for public travel, sidewalks along roads declared to be county roads. Plaintiff insists upon the affirmative of this proposition. The question is for the first time before this court for determination.

The construction of the statute in question is involved. . This is entitled “An act to revise, consolidate and add to the laws relating to the establishment, opening, improvement, maintenance and use of the public highways and private roads, etc.,” by which the laws relating to streets and highways in this State were codified, re-enacted, and added to. The details providing for adopting a county road system are not in question in this suit and need not be stated. The demurrer admits that such a system had been adopted in Muskegon county.

The law provides for the election of a board of county road commissioners who are given the general control of county roads. Section 19 of chapter 4 of the act in question defines the power and authority given to such boards, as follows:

“Sec. 19. Said board of county road commissioners shall have authority to grade, drain, construct, gravel or macadamize any road under their control, or to place thereon any other form of improvement which in their judgment may be best, and may extend and enlarge such improvements; they shall have authority to construct bridges and culverts on the line of such road, and to repair and maintain the said roads, bridges and culverts; they shall have all the authority in respect to such roads, bridges and culverts which is vested in highway officers in townships,” etc.

Chapter 21 of this act is devoted to sidewalks. Sections 1 and 2 of this chapter provide as follows:

“Section 1. In all unincorporated villages, commissioners of highways are hereby authorized to lay out and expend such portion of the township highway funds in their hands or under their control as they shall deem, subject to the limitations of section 7 of this chapter, (necessary) for that purpose for the construction, care and maintenance of suitable sidewalks and crosswalks in such villages.

“Sec. 2. Public sidewalks may be established, opened, improved, and maintained within the boundaries, and along the highways, within this State under the provisions of this act; and the townships and unincorporated villages of this State shall possess the authority herein prescribed, for the building, repairing, and preserving the same.”

Referring to section 19, chap. 4, supra, we find boards of county road commissioners in the counties where a county road system has been adopted “shall have authority to construct bridges and culverts on the line of such road, and to repair and maintain the said roads, bridges and culverts.” The significance of this clause of this section in omitting any reference to sidewalks and crosswalks is recognized by counsel for plaintiff, and in view of a former decision of this court (City of Detroit v. Putnam, post) it is admitted that the words “bridges, crosswalks and culverts” as construed in that case are special restrictive terms, and it would be reasonable to expect the court to follow its former decision where words of like significance were construed and hold that this portion of section 19 gives the county road commissioners authority over the traveled part of the roads, bridges, and culverts, and did not give them authority to build sidewalks along and on the side of the county road. City of Detroit v. Putnam, 45 Mich. 263-265 (7 N. W. 815).

This is the construction which this court gives to the authority delegated by the legislature to county road commissioners under this portion of section 19 quoted, and we confirm City of Detroit v. Putnam, supra. The authority to construct, care for, and maintain suitable sidewalks, and crosswalks is given by section 1 of chapter '21 specifically to commissioners of highways in all unincorporated villages. Under section 2 of the same chapter, “public sidewalks may be established, opened, improved, and maintained within the boundaries, and.- along the highways, within this State under the provisions of this act,” and authority is given to the townships and unincorporated villages of this State “for the building, repairing, and preserving the same.”

We find, then, from these sections of this act which have been quoted, that the county road commissioners have exclusive charge of roadways, bridges, and culverts on roads over which they have assumed control, and only townships and unincorporated villages have within their respective limits power and authority to build and repair sidewalks along the same roads. These powers and duties are specifically defined and distinguishable, and, although exercised over the same highway, they are not conflicting, and the giving of ■such separate and distinct powers and authority to two public bodies arises -naturally from their relations to the public, as has been recognized by this court. Quinlan v. Village of Manistique, 85 Mich. 22 (48 N. W. 172).

The county road system is maintained by the county for the purpose of providing for its entire population and the public generally adequate highways for the purposes of public travel, and such system adapted to the present necessities created by modern conditions. Each small municipality within its narrow limits provides along such county roads suitable sidewalks for the use of its inhabitants and others who, as foot passengers, desire to pass along and over such sidewalks.

The other sections of this act which are invoked by plaintiff as imposing liability for injuries sustained on this sidewalk upon the county must be considered in connection with our construction of the sections already considered. It is contended that the liability for injuries resulting from failure to maintain a sidewalk in a reasonably safe condition fit for public travel which is laid on a road under the control of county road commissioners is fixed upon the county by the following portions of section 21, chap. 4, of this act:

“It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be safe and convenient for public travel, all county roads, bridges, and culverts that are within their jurisdiction and under their care and control and which are open to the public travel. The provisions of law respecting the liability of townships, cities, villages and corporations for damages for injuries resulting from a failure in the performance of the same duty respecting roads under their control, shall apply to counties adopting such county road system.”

This liability of townships, cities, villages, and corporations referred to in the portion of section 21 last quoted is created by section 1 of chapter 22 of this act, which reads as follows:

“Any person or persons sustaining bodily injury upon any of the public highways or streets in this State, by reason of neglect to keep such public highways or streets, and all bridges, sidewalks, crosswalks, and culverts on the same in reasonable repair, and in condition reasonably safe and fit for travel by the township, village, city, or corporation, whose corporate authority extends over such public highway, * * * whose duty it is to keep the same in reasonable repair, such township, villages, city, or corporation shall be liable to and shall pay to the person or persons so injured or disabled just damages, to be recovered in an action * * * on the case before any court of competent jurisdiction.”

The duty mentioned in the section just quoted .is imposed by section 3 of- the same chapter, as follows:

“It is hereby made the duty of townships, villages, cities, or corporations to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all public highways, streets, bridges, sidewalks, crosswalks, and culverts that are within their jurisdiction and under their care and control, and which are open to public travel. * * * ”

It is urged that the legislative intent to fix upon counties who have adopted the county road system liability for injuries which have occurred upon sidewalks built along such roads is made clear by that portion of section 19 of chapter 4, heretofore quoted, which reads:

“They [county road commissioners] shall have all the authority in respect to such roads, bridges and culverts which is vested in highway officers in townships.”

We cannot agree with this contention and argument. It overlooks entirely the distinction which we have already made between the powers and duties which we have construed the legislature to have granted and imposed by this act upon counties and upon townships, cities, villages, and corporations, which distinction we think has been kept in view by the legislature throughout the entire act. It will be noted that, where a liability for damages is imposed either upon counties or lesser municipalities, if imposed upon counties which have adopted the county road system, such liability is restricted to injuries caused by their neglect to keep all county roads, bridges, and culverts which are within their jurisdiction and under their control in the condition for travel required by this statute; if imposed upon the lesser corporations, it is by reason of their neglect to keep such public highways, streets, bridges, sidewalks, crosswalks, and culverts as may be within their respective jurisdictions in reasonable repair and in a condition reasonably safe and fit for travel.

This construction is in harmony with the conclusions of the circuit court.

The judgment of the circuit court is therefore affirmed.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    HOLLAND FURNACE CO. v. HARTIG.
    Mechanics’ Liens — Homestead—Husband and Wife.
    Where complainant installed a furnace in the homestead of the defendants under a contract with the wife alone, who had no authority to act as agent for the husband, and such husband signed no written contract as required by 3 Comp. Laws, § 10711 (5 How. Stat. [2d Ed.] § 13767), and at no time recognized the written agreement, no lien was enforceable against the property.
    Appeal from Bay; Collins, J.
    Submitted January 9, 1914.
    (Docket No. 44.)
    Decided July 24, 1914.

      Bill by the Holland Furnace Company against Emil Hartig and another for the enforcement of a mechanics’ lien. From a decree for defendants, complainant appeals.
    Affirmed.

      James Donnelly and Visscher & Robinson, for complainant.

      E. E. Annelce and W. A. Collins, for defendants.
   McAlvay, C. J.

In this case complainant filed its bill of complaint to foreclose a mechanic’s lien upon certain premises occupied by defendants in Bay City, Mich., for the price and value of furnishing and installing therein a certain furnace, together with all the piping and fitting and material connected therewith, and the labor performed thereon. The title to these premises was in defendant Emil Hartig. The other defendant is his wife, and these premises were occupied by them as their homestead. Complainant, a Michigan corporation, was engaged in the business of manufacturing and installing furnaces. Providing this furnace, together with its equipment and the labor and .material for installing the same, was undertaken by complainant under a written proposal, dated December 21, 1910, in which it was proposed and agreed by complainant to furnish “Mr. E. Hartig, of Bay City, Mich.,” in consideration of the payment of $235 on the completion of the work, and put into his residence in Bay City, Mich., one of its furnaces complete, of a certain size, and under certain conditions and guaranties, that the furnace would warm all rooms which had been completely piped, with proper fuel furnished by the owner. This was accepted in the following terms: '

“I hereby accept the above proposal and terms.

[Signed] “Mrs. E. O. Hartig.”

The last of the labor was performed and the material furnished under said agreement April 6, 1911.

Defendants answered the bill of complaint, Emil1 Hartig denying all knowledge of the allegations contained therein and asserting that he never entered into any contractual relations with complainant, and denied all liability to complainant for the work, labor, and material done and furnished in installing this heating apparatus upon the premises described, which he admitted belonged to him.

The defendant Mrs. Hartig answered, admitting that she entered into a contract with complainant to install the furnace, but denies that the furnace was installed as agreed, and charges that the furnace absolutely failed to heat the residence and make it fit and habitable; that she ordered complainant’s agent to take it out because of its failure to do the work represented.

These premises were occupied by defendants, husband and wife, as a homestead in Bay City, and were of the value of $2,400.

After a hearing upon the issue joined between the parties upon the pleadings in which proofs were taken, the case was submitted to the court, and a decree dismissing the bill of complaint was granted to defendants. Complainant has appealed from this decree.

Sufficient of the facts in the case have been stated to properly consider and dispose of the material question raised, which is whether the mechanic’s lien given by the act attached to these premises under the contract in question. As stated, the title to these premises was in defendant Emil Hartig. The section of the act relied upon by defendants reads as follows:

“Sec. 2. In case the title to such lands upon which improvements are made is held by husband and wife jointly, or in case the lands upon which such improvements are made are held and occupied as a homestead, the lien given by this act shall attach to such lands and improvements if the improvements be made in pursuance of a contract in writing signed by both the husband and wife.” Section 10711, 3 Comp. Laws; Act No. 179, Pub. Acts 1891.

See, also, section 13767, 5 How. Stat. (2d Ed.).

It is not disputed but that the premises upon which the mechanic’s lien in this case is claimed were occupied by the defendants husband and wife, as their homestead. Complainant in its supplementary brief does not question that by the decisions of this court a homestead is not subject to a mechanic’s lien unless both husband and wife sign the contract, but it is contended that there was a contract' with Mr. Hartig, the owner, made and entered into and signed by his wife in his behalf and authorized by him. As far as the written contract is concerned, it was, as already stated, accepted and signed by Mrs. Hartig in the following words:

“I hereby accept the above proposal and terms.

[Signed] “Mrs. E. O. Hartig.”

The record shows that the complainant’s agent had no interview with defendant Emil Hartig in reference to the contract, and that the negotiations he had were with Mrs. Hartig. He testifies:

“I did not ever have any talk with Mr. Hartig himself about making this deal. All our business was transacted with Mrs. Hartig.”

The only interview he had with Mr. Hartig was to collect for the furnace after it was installed. The testimony relied upon by complainant to show Mrs. Hartig’s authority is her statements of the authority she had, the fact that Mr. Hartig knew a furnace was being put in the house, and his cross-examination to the effect that he made no arrangements with complainant to put in the furnace, but left it to his wife to look after.

We agree with the finding of the learned trial judge, who, in his opinion, said:

“In respect to the defendant Emil Hartig, the proofs show that he did not undertake to make this contract his contract, or his wife his agent, or in any way to become a party to the contract at or before the execution of the same, and that he did not by any admission or conduct, before the contract was signed and before the work of placing the furnace was completed, cause the complainant to believe that he was the principal in said contract and that his wife was his agent in the making of the same, or in having the work done thereunder. So far as the proofs show the complainant treated Mrs. Hartig as the principal in the making of the contract and in the work done thereunder.”

The conclusions of the trial judge are supported by the evidence. We desire to add that in signing the contract Mrs. Hartig did not in any manner refer to her husband by signing it for him as his agent or by signing his name by her.

It is further contended by complainant that this case is controlled by the cases of McAllister v. Des Rochers, 132 Mich. 381 (93 N. W. 887), and Scott v. Keeth, 152 Mich. 547 (116 N. W. 183). In each of these cases the husband, owner of the property, signed the contract; in neither instance was it signed by the wife. In this respect these cases are distinguishable from the instant case. Both cases were decided upon the proposition that a mechanic’s lien can be enforced upon premises constituting a homestead, the value of which is in excess of $1,500, for the amount of such excess. In the first case two of the five justices who sat dissented in an able opinion. The second case relied upon was decided upon the authority of the first case.

In the instant case the owner of the premises never signed a contract in writing or authorized an agent to do so for him or recognized in any way such contract or his liability under it. This court in no case under such circumstances has held that a mechanic’s lien will attach to premises occupied by a husband and wife as a homestead, but has consistently followed the decisions in McMillan v. Schneider, 147 Mich. 258 (110 N. W. 961), and Bauer v. Long, 147 Mich. 351 (110 N. W. 1059, 118 Am. St. Rep. 552, 11 Am. & Eng. Ann. Cas. 86), and cases cited therein.

The decree of the circuit court is therefore affirmed, with costs against complainant.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Steere, J.

text:
    MASON v. BOARD OF MANAGERS OF MICHIGAN SOLDIERS’ HOME.
    1. Soldiers’ Home — Public Officers — Charities — Public Institutions — Army—Pensions.
    The purpose of establishing the Michigan soldiers’ home (1 Comp. Laws, § 2055 et seq., 2 How. Stat. [2d Ed.] §§ 3716-3728) was to provide a refuge or home for that class of honorably discharged veterans who, disabled by disease or wounds or otherwise from earning their living and having no adequate means of support, would, without public aid, become objects of' common charity. The law does not contemplate that the board of managers shall admit as inmates of the home any self-supporting, honorably discharged soldiers, however worthy,' and allow them, in case they so desire, to pay for their care and maintenance, in whole or in part. If the soldier’s pension is adequate to support him,.or, added to his other resources, renders him self-supporting, he is not entitled to admission to the home- as an inmate.
    2. Same — Pensions.
    Besides this condition, the statute imposes no others, and there is ho provision in the law that the members of the class entitled to admission shall contribute from their pensions or other resources towards their maintenance.

      3. Same — Board of Managers — Bunas.
    And no power was delegated by the legislature to the board of managers to include in the rules and regulations which it was authorized to adopt for the government of the home, a condition requiring the applicant for admission to contribute from his pension; but they may, if it is deemed necessary to preserve order, enforce discipline, or preserve the health of the inmate, require him to deposit the pension money so received.
    4. Same — Equity.
    Hence, in a suit in equity instituted by inmates of the Michigan soldiers’ home against the board of managers of that institution to enjoin the requirement by rule of a deposit of such pensions received from the United States, and to obtain an accounting of funds so withheld, evidence tending to show that the inmates of the home were misled into the belief that the statutes required the deposit of their pension money and that they were threatened with dismissal if they did not conform to the requirement, warranted a decree in favor of the complainants, and the contention of the defendants that the money was voluntarily paid to them is overruled. Held, also, that, notwithstanding the transfer of such moneys from one fund to another, the amounts belonging to deceased soldiers and discharged inmates were a trust fund for the benefit of the heirs or other persons by law entitled to share in their estate or of the depositary in person, and should be accounted for with interest at 5 per cent.; that other moneys, not earning any interest, should be returned and that no deposit can be required, except in pursuance of some rule or regulation promulgated for the necessary purpose of discipline.
    5. States — Actions—Parties.
    A suit for an accounting against the board of managers of the soldiers’ home for pension money deposited by inmates of the institution is not a proceeding against the State.
    Appeal from Kent; McDonald, J.
    Submitted January 29, 1914.
    (Docket No. 150.)
    Decided July 24, 1914.

      Bill by Orange S. Mason and others against the board of managers of the Michigan soldiers’ home for an injunction, accounting and other relief. From a decree for complainants, defendants appeal.
    Modified and affirmed.

      Grant Fellows, Attorney General, and David H. Crowley, Assistant Attorney General, for appellants.

      A. A. Ellis and S. Wesselius, for appellees.
   Steere, J.

The ultimate question presented by this record is whether the board of managers of the Michigan soldiers’ home at Grand Rapids ever had the right to take and retain permanently all or any part of the pensions of inmates of that institution.

Defendants have appealed from a decree of the circuit court of Kent county, in chancery, awarding $8,373.14 to 126 of the 206 complainants, in sums ranging from $4.95 to a maximum of $541.86 (principal and interest), being pension money received by said complainants from the United States government while residents of said soldiers’ home, and retained by defendants under rules and general orders adopted and promulgated by said board of managers in cases where the individual pensions exceeded $12 per month.

The'original bill of complaint herein was filed September 4, 1909, by Orange S. Mason, since deceased, in his own behalf and that of others, to restrain enforcement of a general order promulgated by the defendant board of managers, requiring all inmates of said home to surrender all pension money received by them in excess of $12, or in exceptional cases $15, per month to the authorities of the institution, to be permanently retained and ultimately turned into the general State fund. Subsequently all parties who are' now complainants were made parties to said bill of complaint by an order of the court.

Upon the filing of such bill a preliminary injunction was issued restraining the defendants from enforcing the provisions of said order. Defendants demurred to said bill, later amending said demurrer, alleging, among other reasons, that the suit instituted by complainants was in fact a suit against the State of Michigan, and therefore could not be maintained without the consent of the State; that said board of managers was an agency of the State, and defendants possessed only limited powers especially provided by law, not including the right to sue and be sued in the courts of the State of Michigan. Complainants’ bill was later amended, and a plea was filed by defendants to said amended bill, followed by a replication of complainants. Thereafter a stipulation between the parties provided that the suit should be brought on for hearing upon the bill of complaint and plea on a date fixed, at which time, by permission of the court, complainants’ replication was withdrawn, and an amended bill filed praying for an accounting by defendants for the moneys collected from complainants as alleged, and asking for an injunction restraining defendants from discharging any of complainants from said home until the further order of the court, from collecting or appropriating any money due complainants as pensioners of the civil war, from compelling them to sign receipts or transfers for any money due them as pensioners of the United States government, and from transferring or setting over any moneys received by defendants as aforesaid to the general fund of the State of Michigan. A plea was then filed by defendants to said amended bill fairly putting in issue all material questions raised by said amended bill and involved in this controversy, with a general denial of complainants’ right to the relief asked. A later replication filed by complainants finally concluded the protracted pleadings, and the suit was brought to a hearing on March 4, 1913, upon pleadings and proofs taken in open court.

The trial court rendered an opinion that said board of managers of the Michigan soldiers’ home had no authority, under the law creating such institution, to make rules by which any part of the soldiers’ pensions received from the United States government could be permanently taken from the inmates of the home and appropriated by the board; the gist of said opinion being as follows:

“If soldiers, sailors, and marines come within that class which entitles them to the benefits of the home, they are entitled to the enjoyment of such benefits, without payment therefor. If not entitled to the benefits of the home, they should not be admitted. The State gave the board no authority to contract with those not eligible for admission to the home. It did not intend to give the board of managers any authority to deal with any except those entitled to the benefits of the home. It was not intended that the institution should be supported in any way by contributions from the pensioners.”

The Michigan soldiers’ home was established by Act No. 152, Pub. Acts 1885 (2 How. Stat. [2d Ed.] § 3716 et seq.); entitled:

“An act to authorize the establishment of a home for disabled soldiers, sailors, and marines in the State of Michigan.”

By section 2 of said act the general supervision and government of said soldiers’ home is vested in a board of managers consisting of six members appointed by the governor by and with the advice and consent of the senate. *

Section 8 provides:

“It shall be the duty of the board of managers to meet once m every three months, oh their own adjournment, and of tener if they shall deem it advisable, at which meeting they shall prepare and carefully digest and mature a system of government for said home, embracing all such rules, regulations, and general laws as they may deem necessary for preserving order, for enforcing discipline, for preserving the health of such disabled soldiers, sailors, or marines as may be received at this home.”

Other parts of the act, of minor importance here, provide for the selection by said board of a treasurer and clerk from their own body and a commandant for said home, with such subordinate officers and employees as may be necessary. Provision is also made by subsequent legislation for establishing upon the same premises and under the same management a home for the wives and mothers of such disabled soldiers.

Section 11 of said act provides in part as follows:

“All honorably discharged soldiers, sailors and marines, who have served in the army or navy of the United States in the late War of the Rebellion [or in the Mexican War], and who are disabled by disease, wounds, or otherwise, and who have no adequate means of support, and by reason of such disability are incapable of earning their living, and who would be otherwise dependent upon public or private charity, shall be entitled to be admitted to said home, subject to the rules and regulations that shall be adopted by the board of managers to govern the admission of applicants to said home.”

This section also requires a previous residence of one year in the State, unless the applicant served in a Michigan regiment or was accredited to the State of Michigan, and subsequent amendments provide for the admission to said home of soldiers, sailors, and marines who have served in the Spanish-American or Philippine wars upon the same conditions.

This court, in construing the law creating the soldiers’ home, has defined it as an eleemosynary institution ; the purpose of its existence being to dispense to a favored but dependent class a well-bestowed and deserving charity. The language of the act admits of no other construction. Its object was to furnish a home, which would be a more congenial and fitting refuge than the ordinary charitable institution, to that class of honorably discharged veterans who, disabled by disease, wounds, or otherwise from earning their living, and having no adequate means of support, would otherwise become objects of common charity. Wolcott v. Holcomb, 97 Mich. 361 (56 N. W. 837, 23 L. R. A. 215).

In its general scope the law does not contemplate, nor by its language does it permit, that the board of managers shall admit as inmates of the home any self-supporting, honorably discharged soldiers, however worthy, and allow them, in case they so desire, to pay for their care and maintenance in whole or in part, as is the law in some other States which extend the privileges of the home to veterans whose financial condition would bar them from regular admission. A soldier’s pension is not a charity, but a reward won, or compensation earned, by services rendered to his country, to which he is entitled, wholly regardless of his financial circumstances, and which is paid alike to the rich and poor. Comparatively few of those entitled to, and who receive, soldiers’ pensions are entitled to admission to the soldiers’ home. If a soldier’s pension is adequate to support him, or, added to his other resources, renders him self-supporting, he is not entitled to admission to the home as an inmate. If, though receiving a pension, his means of support are not adequate, and he is incapable of earning a living, and his status is such that, unless admitted to the home, he would have to be supported by charity in whole or in part, he is entitled to admission. That is the test. The statute creates no grades or degrees in that -particular, and imposes no conditions beyond that. There is no suggestion in the law that those of the class entitled to admission shall contribute from their pensions or other scant resources which they may have towards their maintenance. The legislature might have so provided; but it did not. In some of our sister States such conditions were imposed, and the Federal law creating national soldiers’ homes first expressly provided that applicants must surrender their pensions as a condition of admission; but subsequent legislation to the contrary has removed those conditions for admission to the national soldiers’ homes, and the same course has been followed by most of the States. A report of inspection of State soldiers’ and sailors’ homes for the year 1910, made by the inspector general of the national home for discharged soldiers, shows that of 54 such institutions scattered throughout the United States only 5 exact any part of the inmate’s pension for his maintenance or the support of the home.

It is contended in behalf of defendants that under the provisions of sections 8 and 11, above quoted, power was delegated to the board by the legislature to include in the rules and regulations which it was authorized to adopt for a system of government of the home the condition of admission requiring contributions from pensions now in controversy, and that such authorized rules and regulations when adopted and promulgated have all the force and effect of a statute.

The question of what power was delegated by statute to the board came before this court in Loser v. Board of Managers, 92 Mich. 633 (52 N. W. 956). In that case a mandamus was asked to compel respondents to vacate a rule, numbered 14, and a general order based upon it, requiring every pensioner admitted to the home who received a pension in excess of $5 per month to turn the excess over to the commandant, subject to the disposal of the board of managers, and providing that if an improper use was made of the $5 allowed to be retained leading to infractions of rules of the institution, such allowance should be suspended; also directing that the commandant ascertain as soon as possible the wife, dependent children, or parents of the inmates receiving pensions, and cause the money so received from the pensioners to be sent to them, or, in case no one was dependent upon any pensioner, the money so received from him should be held by the board and ultimately paid back to him upon his final discharge from the home. The position then taken by the board of managers is not in harmony with the present attitude of the board. It then, in effect, disclaimed any purpose or right to permanently retain or appropriate the money taken from pensioners, and urged in justification. of the rule that it was adopted for the sole purpose of enforcing discipline and maintaining order, and that without such rule it would be impossible to do so. Approving this contention as well founded so far as it applied to temporarily taking control of the pensioner’s money, the court said:

“We think it is within the power of the board to require the pension money of the inmates to be deposited, if, in the words of the statute, they deem it necessary to preserve order, enforce discipline, or preserve the health of the inmates.”

The permanent retention of a former inmate’s pension after he is dead or discharged could scarcely be urged as necessary to enforce discipline, preserve order or health.

The significance of that opinion as applied to this case is found in that portion dealing with the provision of rule 14 requiring the commandant to ascertain the dependent relatives of inmates who drew pensions, and to pay the deposited portions of the pensions to such relatives. While recognizing that the act lodged a broad discretion with the board, in the management and government of the institution, which courts would not interfere with, unless a very clear case of abuse was shown, the court in that connection very plainly indicated the limit of such discretion in handling the pensions of inmates, as follows:

“We do not, however, think that the statute confers upon the board the right to determine what relatives are dependent upon the pensioner for support, and to direct how much of such money shall be sent to such relatives. To this extent, therefore, rule 14 is void, and must be vacated.”

It is true, as claimed by defendants, that the question, directly in issue here, of the right of the board to for all time deprive the inmate of any part of his pension money and permanently appropriate it to support of the home was not raised, for the manifest reason that no such right was claimed or suggested; but when this court squarely held that the right of the board did not even extend to permanently depriving the inmate of his money for the apparently laudable and equitable purpose of applying it to the support of his dependent relatives, whom it was his natural and legal duty to support, if able, we see little room for argument as to the indicated limit of the board’s authority in making final disposition of this money. To impose the condition requiring inmates to pay the institution in whole or in part for their maintenance, whether out of the pensions received or from other sources, is not to be treated as an abuse of discretion, but rather as an attempted exercise of a discretion •which the law did not authorize.

It is urged in behalf of defendants that in other States," under similar statutes, the right of managing boards of soldiers’ homes to take and appropriate the pensions of inmates has been universally upheld, citing, in support of this contention, the following cases: Ball v. Evans, 98 Iowa, 708 (68 N. W. 435); Howell v. Sheldon, 82 Neb. 72 (117 N. W. 109); Treadway v. Board of Directors, 14 Cal. App. 75 (111 Pac. 111); Brooks v. Hastings, 192 Pa. 378 (43 Atl. 1075); O’Donohue v. Soldiers’ Home, 65 N. J. Law, 484 (47 Atl. 452). These cases involve the question raised here as applied to the statutes of the respective States. To the extent they are in conflict with Loser v. Board of Managers, supra, they cannot be regarded as controlling. Some of them are distinguishable in marked particulars. In Ball v. Evans, supra, the distinction is pointed out in the opinion. The Iowa statute creating the home did not define who was entitled to admission. Section 2 of the act provided that:

“The board of commissioners shall determine the eligibility of applicants for admission to the home.”

The Loser Case is cited in the opinion, and, amongst other things, it is said:

“In that case the court sustained rules similar to those here in controversy. So much of one rule was declared invalid as determined what relatives were dependent upon the pensioners for support, and directed how much of his pension money should be sent to such relatives. This holding was based upon the ground that the statute of Michigan did not authorize the board to determine that matter. Even that holding would not obtain here, for our statute authorizes the board to determine the question of the eligibility of applicants for admission to the home.”

Treadway v. Board of Directors, supra, is devoted chiefly to construing the California statute; the rules of the board being of minor significance. The following excerpt from the opinion indicates the principal question at issue, and the view of the court upon a condition relative to retaining any remaining pension money, of deceased inmates, expressly authorized by-statute :

“The law does not purport to affect ‘the estates of deceased persons’ or ‘change the law of descent or succession,’ and was intended for no such purpose; it merely extends to the class of persons indicated the benefits and privileges of the home on certain conditions. In the particular complained of applicants agree that their pension money shall be paid to the treasurer of the home from time to time as received to be held for their personal benefit and use while members, and without having made other disposition of it, any balance unexpended shall go to the home for the benefit of all the members, subject to the right of certain named persons to this balance if called for within a stated period — five years. It cannot be said that this regulation is harsh or burdensome or ungenerous, for the applicant is supposed to be in indigent circumstances when admitted, having no one under any legal obligation to support him, and it is only when the member dies intestate that the law operates to dispose of any balance to his credit, and to this he agreed when admitted as a member.”

Howell v. Sheldon, supra, was based on the Nebraska statute, differing from that of Michigan in the particular that the board was not only required to prescribe rules for admission, but authorized to admit as inmates old soldiers, otherwise qualified, upon payment by them of their board if they so desired, thus giving the board a discretion not conferred by our statute. Though impelled to hold that the rule complained of was within the discretion of the board, the court suggested that:

“If the legislature believes the rule to be harsh, unnecessary, or inexpedient, it can limit the power of the board as to its right to require the payment of any part of the pensions of the inmates for the support of the institution, and thus conform the rule in this State to that in the majority of those States maintaining like institutions.”

In the Pennsylvania and New Jersey cases special circumstances are shown under which the inequity of granting a recovery was emphasized, and the courts held that the payments were voluntarily made and could not be subsequently recovered, as- the testimony clearly disclosed that the pensioner when applying for admission distinctly understood and freely agreed to the arrangement. Those cases being, however, chiefly based on the doctrine of contract obligations, the courts necessarily held, in substance, that the managing boards had power to impose such conditions and, in effect, make contracts with applicants for permanent surrender of their pension money received while inmates. So far as those opinions disclose, their statutes are quite similar to that of Michigan, though not identical, and, to the extent the conclusions reached by those courts as to authority of the boards are at variance with the tenor.of the Loser Case, they caiinot be followed; but, aside from that question, there is testimony in this case that much misunderstanding and confusion existed at times in the minds of inmates as to how their pensions were to be treated. They all signed an agreement, when making application for admission, to abide by the rules and regulations of the home, and knew they were required to deposit their pension money with the officials. As to their further consent and understanding, the testimony is not clear and unquestioned, as it was in the New Jersey and Pennsylvania cases. In this case numerous changes in the rules and forms of application were made from time to time. Subsequent to the time of disavowing in this court any purpose to permanently appropriate any part of the pension money inmates were required to deposit, rules to the contrary were adopted, and the conditions of admission so indicating were, as a rule, printed on the back of applications, under headings, purporting to be portions of the law creating the home. The various complainants in this suit were admitted at different times, under several different forms of application. Inmates, as they were admitted, discharged, and readmitted, from time to time, often paid little attention to and apparently did not have distinct knowledge or clear understanding of the significance of the printed matter on the back of their applications. The records show that men were admitted, discharged, and readmitted as often as ten different times, or more. As a result of the. varying forms of application and the manner in which inmates were received, complainants claim they did not voluntarily and understandingly consent to permanently surrender their pensions, but were misled or coerced into so consenting so far as it appears they did consent. In some instances they testify to being misled into signing their applications by the form used, believing that the rules were part of the statutes of the State; in others that attention was not called to the rules at all; in others that the rules were promulgated after their admission, and either not made clear to them, or, in cases where they were, and protest was offered, they were told that refusal to abide by the rules would result in dishonorable discharge, which would preclude admission to any other soldiers’ home. The evidence shows opportunity for confusion and misunderstanding upon that question.

The board had authority under the statute to insist, as a police regulation, and did insist, that the applicant, deposit his pension with it while he was an inmate, in this way coming lawfully into possession of his money. The inmate necessarily knew this. Upon that there could be no misunderstanding, and his consent to that course was binding. Beyond that, even if he did acquiesce in the proposal to thereafter retain and permanently appropriate part of the money so received to the purposes of the home, such consent, if imposed as one of the conditions of becoming or remaining an inmate under a mistaken belief that such was the law, was exacted without legal authority, and could not be sustained as a binding contract. We think this is a necessary conclusion from the construction of our statute and the limit fixed upon the authority of the board in Loser v. Board of Managers, supra.

A claim is made of legislative authority to permanently appropriate this money under an act of the legislature passed in 1905 (Act No. 313), which provided that money accumulated in the “post fund” and ■“posthumous fund” might be used to furnish the hospital and for certain other purposes to the benefit of the home and its inmates. The testimony shows a somewhat confused condition of accounts in the books of the institution at times, and Charles P. Coffin, adjutant of the home, who was in charge of, or had access to, all the books, records, and documents, and during his incumbency made a portion of the records showing the different funds and the sources from which they came, furnished a list of the amounts of excess pension received from the different complainants, which are admitted by defendants, and are taken as the bases of the decree. He testifies to difficulties encountered in making up such list, and says he “spent nights and Sundays going through these books” to make his compilation; that he made mistakes—

“But, so far as I know, it is pretty near correct, and especially from data I could get hold of to compile it with. * * * I do not think the treasurer’s report is kept in such a way that I can point out the amount of pension money taken from residents of the home.”

Various fund accounts were kept from time to time known as “post fund,” “posthumous, fund,” “home pension fund” and “excess pension fund.” The witness states that in 1905 the “post fund” was a small account, and in his opinion the money in it was received from other sources; said fund being made up from “money derived from sale of clothing, shoes, garbage, and sources of that kind.” The “posthumous fund” was “made up largely of money that was on deposit belonging to pensioners at the time of their, death.” As a rule no receipts were given to inmates for their pensions which were taken, and no report of the same was ever made by the board to any higher authority. We think, although the pension money of inmates was more or less mingled in these various funds, it is quite clearly shown that at the time the law in question was passed the excess pension money which had been collected was little, if any, of it in the “post fund” or “posthumous fund.” No report of the excess pension fund was ever made to the State or legislature until some time after this suit was begun, when in 1911 the treasurer of the home, on request, reported that he had the adjutant go back as far as possible in order to satisfy the joint committee, and he accordingly reported a detailed statement of excess pensions taken from members of the home from 1897 to 1911, and there was then on hand “of this pension money, $7,980.15, having kept the same separately, that it is available for distribution and refunding if the legislature in their wisdom so desire to do.” Subsequently, without any further authority or direction so far as shown, “the home pension fund” was turned into the “post fund.” We are unable to find that the legislation referred to, or the subsequent transferring by the board of this money to the post fund, affects the legal status of defendants as trustees of this money.

Neither can the claim prevail that this suit cannot be maintained because it is against the State, which cannot be sued by a private individual. Defendants are not the State. They had not reported or accounted to the State for this money when this suit was begun. They had lawfully received it as a police regulation, and were holding it in trust for the owners. They only claim a right to convert it to the uses of an institution of the State, of which they are the managers. Indirectly and rather remotely, it can be admitted, the State may be interested in the result, and its legal representative is entitled to be and has been heard; but defendants’ claim of right as State officers to use this money for a State institution does not make this a suit against the State. Its purpose is not to take money from the State treasury, or to seize or interfere with State property.

For various reasons, not necessary to detail at length here, no excess pension money of inmates has been permanently appropriated since July, 1908, and the present management makes no claim of right to do so. This case only involves the right of those managing the home before that time to exercise such right. Act No. 102 of the Public Acts of 1911 made yet more clear the proper course to be pursued by requiring receipts to be given inmates for any of their property, including pensions, coming into the custody of the board, except fines, and providing that the same could only be so taken for the purpose, of discipline, to be held in trust for the “purpose of paying or turning the same over to said resident at the time of his discharge from the Michigan soldiers’ home, and accounting for the same to the heirs or legal representatives of said residents after death.”

We conclude it is in harmony with the intent of the statute and purport of the decision in Loser v. Board of Managers, supra, that these excess pension moneys under consideration, now in possession of defendants, or which should be, the amounts of which are conceded, must be decreed to be held in trust, and accounted for according to the provisions of said Act No. 102. The amounts due to discharged or deceased soldiers, in relation to whom the trust has terminated, should be paid, with interest computed at 5 per cent, per annum from the time of death or discharge. The money of those yet inmates can only be retained and held- under control according to rules and regulations of the board promulgated for the purpose of discipline. Interest cannot be exacted from the board for money so held in trust under an authorized rule, while the pensioner is an inmate, unless it be shown that while so holding the board received interest, in which case it should account for the same.

With these modifications, the decree is affirmed, with costs.

McAlvay, C. J., and Brooke, Stone, Ostrander, and Moore, JJ., concurred. Kuhn and Bird, JJ., did not sit.


author:
Moore, J.
      Ostrander, J.

text:
    GROBBEL v. BOARD OF WATER COMMISSIONERS OF THE CITY OF DETROIT.
    1. Municipal Corporations — Civil Service — Detroit Charter— Cities.
    Under Act No. 279, Pub. Acts 1909, as amended by Act No. 203, Pub. Acts 1911 and Act No. 5, Pub. Acts 1913, an amendment to tbe charter of the city of Detroit, adopted by the vote of the people, establishing a system of civil service as to all officers, commissions and departments of the city and prohibiting the discharge of employees for political reasons, took effect when certified copies of the enactment and the vote for and against it were filed with the secretary of State and county clerk; i. e., on May 3, 1913. See section 24 of Act No. 5, Pub. Acts 1913.
    2. Same — Constitutional Law — Special Statutes.
    Although the board of water commissioners, created by special act of the legislature, was not embraced within the provisions of the city charter and is a distinct entity, the provisions of the Constitution, sections 20 and 21, art. 8, grant plenary power to the electors of local mu* nicipal bodies over tbeir local affairs, and sucb civil service provisions were valid.
    3. Same — Master and Servant — Wrongful Discharge.
    Where tbe civil service amendment was adopted at the spring election, on April 7, 1913, and the certified copies required by section 24 of Act No. 5, Pub. Acts 1913, were filed with tbe proper officials on May 3d, tbe employees of tbe board of water commissioners of tbe city of Detroit were affected and brought within tbe law on tbe 3d day of May, although no commission as provided for by tbe amendment bad yet been appointed, and an employee who was discharged by tbe commissioners on tbe 6th of May was entitled to invoke tbe benefit of'the civil service law: mandamus will issue to require tbe board to rescind sucb resolution discharging tbe relator.
    McAlvay, C. J., and Stone and Ostrander, JJ., dissenting.
    Certiorari to Wayne; Murphy, Van Zile, and Hally, JJ.
    Submitted January 13, 1914.
    (Calendar No. 25,809.)
    Decided July 24, 1914.
    Mandamus by Daniel J. Grobbel against the board of water commissioners of the city of Detroit to compel respondent to revoke a resolution discharging relator from the employment of the commission. An order granting the writ is reviewed by respondent on certiorari.
    Affirmed.

      Allan H. Frazer, for appellant.

      Percy W. Grose, for appellee.
   Moore, J.

The relator, on May 6, 1913, and for some time prior thereto, was employed as cashier by the board of water commissioners of the city of Detroit. On the 6th of May, 1913, he was, by the adoption of a resolution by respondent, discharged, without cause being assigned, and on the same day a different person was appointed. The relator filed his petition in the circuit court for the county of Wayne, praying that a writ of mandamus issue, requiring the respondent to convene, rescind such resolution, and reinstate the relator to the employment held by him prior to the adoption of such resolution. The respondent answered.

It was stipulated by the parties in open court, and thereafter ordered by the court, that the judgment in this cause should be the judgment of the court in the following causes, then pending in the circuit court for the county of Wayne:

No. 57162: Louis Montgomery v. Board of Water Commissioners of the City of Detroit.

No. 57163: Fred J. Wright, Jr., v. Board of Water Commissioners of the City of Detroit.

No. 57164: Thomas L. Walsh v. Board of Water Commissioners of the City of Detroit.

No. 57165: John F. Callahan v. Board of Water Commissioners of the City of Detroit.

No. 57166: Bruno Pieganowski v. Board of Water Commissioners of the City of Detroit.

No. 57167: John W. Sweeney v. Board of Water Commissioners of the City of Detroit.

No. 57168: Hugo A. Gilmartin v. Board of Water Commissioners of the City of Detroit.

No. 57169: Maurice Fitzgerald v. Board of Water Commissioners of the City of Detroit.

No. 57170: Sol Goldwater v. Board of Water Commissioners of the City of Detroit.

No. 57171: John A. Nowakowski v. Board of Water Commissioners of the City of Detroit.

No. 57172: Frank Kunkel v. Board of Water Commissioners of the City of Detroit.

No. 57173: Harry Murphy v. Board of Water Commissioners of the City of Detroit.

After a hearing before Judges Alfred J. Murphy, Philip T. Van Zile, and P. J. M. Hally, upon these questions, a writ of mandamus issued directing the respondent, the board of water commissioners of the city of Detroit, to reinstate the relator in this cause to the employment held by him on the 6th day of May, 1913. Respondent brings this cause to this court by writ of certiorari.

We are so well satisfied with the opinion filed by the judges in the court below that we reproduce it here:

“The relator, a discharged employee of the board of water commissioners of the city of Detroit, seeks a writ of mandamus to compel his reinstatement. The facts involved are not in dispute. It will serve consideration of the legal issues presented to summarize them.

“With due observance of Act No. 279 of the Public Acts of 1909, as amended by Act No. 203 of the Public Acts of 1911, and as further amended by a public act passed at the session of 1913, known as the Verdier Act [Act No. 5, Pub. Acts 1913], and entitled ‘An act to provide for the incorporation of cities and for revising and 'amending their charters,’ there was submitted for adoption to the electors of Detroit, at the election held April 7, 1913, a bill to establish a civil service system for the employees of the city.

“The measure was adopted by an affirmative vote of 26,561, with 7,291 cast against it. As required by the statute, the requisite copies of the enactment, with a statement of the-votes cast thereon, were filed with the secretary of State and the county clerk of Wayne county, respectively, on May 3, 1913.

“Upon May 6, 1913, Grobbel was dismissed by the respondent by resolution upon the assumption that the civil service enactment was not as yet in effect, and if in effect that the water board is not amenable to its provisions. The four commissioners created by the adoption of the civil service measure were duly appointed June 3, 1913, and had all qualified by June 6, 1913.

“The title of the measure approved by the voters is ‘A bill to amend an act entitled “An act to provide a charter for the city of Detroit, and to repeal all acts and parts of acts in conflict therewith,” approved June 7, 1883, by adding a new chapter thereto, for the purpose of providing for civil service regulations for employees of the city of Detroit;’

“Among other things, it requires the civil service commission created by it to classify the employees of the city, and prohibits their discharge for political reasons, or for reasons other than the good of the service. Except certain designated officials, not here germane, ‘all officers, clerks and subordinates of all officers, departments, and commissions of said city, whether now existing or hereafter created, shall be selected and appointed as herein provided, but the officers, clerks and other employees in the service of said city, when this amendment shall take effect, unless removed for cause, shall be entitled to retain their positions.’

“Two contentions are made by the respondent. It is urged that the civil service measure became operative only with the appointment and qualifications of the commissioners. If this be so, the discharge of the relator, being antecedent thereto, is not open to question. It is next insisted that the respondent, as a distinct corporate entity, does not come within the purview of the civil service law, and hence is in no way bound by its provisions.

“The first position is wholly untenable. The enabling act of the legislature by explicit language determines the time when measures such as the one in quéstion shall go into effect. In section 24 of that- act it is provided that upon the adoption of an amendment to a city charter, and upon filing with the secretary of State and the county clerk of the county in which the city interested is located, certified copies of the amendment, with the vote for and against it, as was done in the present case, the amendment ‘shall thereupon become law.’

“The power of the legislature to fix the time when the action of the electors shall become operative is unquestioned. The legislature having spoken in unmistakable terms, it is clear that the amendment received its vitality and, in fact, became law upon May 3, 1913, when the essential preliminaries had been complied with. To hold otherwise would be to disregard language which has no ambiguity in it, and which is imperative in its command.

“Furthermore, the claim that the efficacy of the measure lay wholly latent and suspended until the commission was appointed is negatived by the civil service act itself.

“The commission is required by the terms of section 1 to be appointed by the mayor ‘in the month following the date when the amendment shall become operative.’ Here is a clear recognition of the validity and force of the law itself as pre-existent to the required appointments. One month is set aside within which to establish the machinery necessary to execute the provisions already operative. And finally, one of the expressed objects of the law, the right of all existing employees ‘to retain their positions’ in its inception bears no necessary relation to the future time when commissioners may be appointed. The conclusion seems irresistible that the civil service law was in force from and after May 3, 1913.

“The second proposition urged by the respondent, to the effect that the board of water commissioners is not included within the provisions of the civil service legislation, grows out of these considerations. The board is a distinct corporate entity. (See Laws of 1853, p. 180, § 1; also chapter 21, § 623, of the compilation of 1904 of the charter and acts of the legislature relating to or affecting the city of Detroit.) The act establishing this board is not embraced within the charter of the city. The title of the civil service law states the purpose of the law to be the amendment of the charter by adding to it a new chapter. Neither in the title nor in the body of the law is any specific reference made to the water board act. Therefore, it is argued, considering the distinctive legal character of the board, and keeping in mind both the purpose of the civil service measure as expressed in the title and as declared in the terms of the enactment, the board must be held to be not within its scope.

“The precise legal position of the board due to its status as a distinct corporate body has been determined in an analogous case. O’Leary v. Board of Fire & Water Com’rs, 79 Mich. 281 (44 N. W. 608. 7 L. R. A. 170, 19 Am. St. Rep. 169). Justice Campbell, speaking for the court in that case, said of the defendant, which was a body of like corporate functions with this "respondent:

“ ‘While it is a local corporation, created to serve municipal purposes, it is in no sense a municipal corporation, within the legal meaning of that term. It has been settled in this State that there can he no municipal corporation that is not the direct representative of the people of its locality [citing cases]. In several of these, as In other cases, the doctrine has been recognized that the establishment of corporations to act as municipal boards or agencies did not give them any governmental municipal authority. * * * The incorporation of water and fire boards appointed by the city is only a convenient way of removing that business from the constant interference of the ordinary city authorities, with such safeguards as are deemed best for that purpose.’

“That an agency such as the water board is thus defined to be is subject to the direct legislative power of the electors becomes clear from an examination of the history of the grants of that power to the people. Such an examination is also essential to test the soundness of the objection that the board is not reached by the terms of the civil service measure.

“A departure from the former method of granting charters to cities was made by the Constitution of 1909. By sections 20 and 21 of article 8 of that instrument, the legislature was required to provide a general law for the incorporation of cities, and the electors of each city, acting under such general law, were given plenary power, subject to the Constitution and the general laws of the State, over their local affairs. The debates of the constitutional convention demonstrate that the purpose of the framers was to vest in the people of municipalities full legislative control over their own problems of local self-government.

_ “In order to amplify the powers thus conferred, section 21 was amended by the people at the election in November, 1912, and now reads as follows:

“ ‘Under sucb general laws, tbe electors of each, city and village shall have power and authority to frame, adopt and amend its charter, and to amend an existing charter of the city or village heretofore granted or passed by the legislature for the government of the city or village and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of the State.’

“One of the chief ‘municipal concerns’ is the procurement of a water supply. And one of the essentials of urban life is the proper administration of that supply when procured. Thus the right of the voters of the city to legislate upon the administrative methods of the respondent, one of the mere agencies of the city for carrying on its, municipal affairs, is obvious.

“Did the voters effect such legislation by the adoption of the civil service law? They have added a chapter to the charter establishing a system for the employment and discharge of ‘all officers, clerks and subordinates of all offices, departments and commissions of said city.’ They were within their clear right in so doing. They have employed language which is not only broad, but so comprehensive as to include necessarily such a department as the water board.

“No obligation rested upon the voters to enumerate the affected departments. It was competent for them to express their will in language so inclusive that by necessary implication it should embrace all departments. And that was the plan pursued. There being no legal obstacle to prevent that course, and the authority to sustain it being ample, under the broad constitutional grants made available to the people by the legislative enactments of 1909, 1911, and 1913, first referred to, there is no difficulty in giving effect to the purpose sought in the enactment of the civil service law. That purpose, among others, was to add to the charter a new chapter by which such department as the water board should place the employment and discharge of its subordinates upon a civil service basis. The power so to do being ample, the method employed being appropriate, and the end sought being both clear and free from invalidity, the will of the voters must be made effective.

“A writ of mandamus will issue commanding the respondent promptly to rescind its resolution by which the relator was discharged, and to reinstate him in the employment held by him at the time of its passage.”

See the case of Philbrick v. Dust, 178 Mich. 605 (146 N. W. 175).

The action of the court below is affirmed. As the question involved is a public one, no costs are allowed.

Brooke, Kuhn, Bird, and Steere, JJ„ concurred with Moore, J.

Ostrander, J.

(dissenting). In my opinion, the electorate of the city of Detroit has not the power to amend (by implication or otherwise) an act of the legislature, other than the charter, which sets up and defines the duties and powers of a municipal board such as the respondent is.

McAlvay, C. J., and Stone, J., concurred with Ostrander, J.


author: Bird, J.

text:
    BACON v. CANDLER.
    1. Negligence — Streets—Ladders, Use of.
    It was a question of fact for the jury whether defendants’ servants were guilty of negligence, in view of the weather conditions disclosed and known to them, in leaving a ladder unguarded or unfastened against the side of a building in the public street so that the wind blew it down upon a pedestrian.
    2. Same — Independent Contractor — Master and Servant.
    A copartnership that furnished labor and materials for general repair work and painting upon a building or store, having submitted bids in response to an advertisement therefor and having control of the work subject to the supervision of general contractors to see to the proper execution of the work, was not a servant of the general contractor but an independent contractor, liable for the negligence of its employees.

    3. Same.
    Nor would the fact that at the moment of the accident the employee was engaged in some work that the general contract did not cover, and for which the owner had agreed to pay extra compensation directly to the defendants, relieve them of their liability for such negligence.

      Error to Wayne; Donovan, J.
    Submitted April 27, 1914.
    (Docket No. 136.)
    Decided July 24, 1914.
    Case by Elbridge F. Bacon against James D. Candler and George V. Candler, copartners as J. D. Candler & Company, and Vinton Company, a corporation, for personal injuries. Judgment for defendants on a verdict directed by the court. Plaintiff brings error.
    Reversed.

      N. Calvin Bigelotv, for appellant.

      Lodge & Brown, for appellees Candler.

      On the general question who are independent contractors, see notes in 65 L. R. A. 445 and 17 L. R. A. (N. S.) 371.

   Bird, J.

The injury for which plaintiff seeks to recover in this case occurred while he was walking south on the west side of Woodward avenue, in the city of Detroit. When he reached the southwest corner of the intersection of Woodward avenue and State street, a ladder which was leaning against the Siegel store blew over and struck him on the head, causing injuries of a serious nature. The ladder was an ordinary one, 14 feet long, and was being used by an employee of defendants Candler & Co. in constructing or repairing the galvanized iron cornice which covered the show windows on the State street side of the Siegel store. The employee who was using the ladder left it for a moment for some purpose which is not disclosed. The neglect which the defendants were charged with was the act of leaving the ladder leaning against the building with no one in charge to prevent it from falling onto pedestrians traveling on said streets. Defendant Vinton Company had the contract to make general repairs on the Siegel store. The contract for doing the cornice work over the show windows was sublet by it to defendants Candler & Co. Upon the trial plaintiff discontinued as to the Vinton Company, leaving Candler & Co. the sole defendants. At the conclusion of the proofs, the trial court was of the opinion that the injury was caused by a pure accident, and that no recovery could be had therefor'; but he observed that, if there were any negligence, it should be chargeable to the Vinton Company.

There seems to be no contest as to the facts, and it is insisted by plaintiff that the testimony brought the case squarely within the rule in Haxer v. Griessel, 162 Mich. 310 (127 N. W. 309), a case in which the facts were very similar. In that case it was said by Mr. Justice Brooke that:

“A careful reading of the record impels us to the conclusion that the question of defendants’ negligence should have been submitted to the jury. While the placing of the ladder in the position in which it stood at the time of the accident, and its use by Bishop while in that position, may be said to indicate reasonable care upon his part, or at least to afford no evidence of negligence, we are still of the opinion that his leaving it, even for the time necessary for him to change his paints, leaning against the freshly painted, slippery edge of the roof of the bay window, under the weather conditions which prevailed and to which his attention had been at that moment called by his master, was such an act as to warrant the court in taking the verdict of the jury as to its character.”

We are of the opinion that this case is controlling of the one under consideration, and that the trial court erred in directing a verdict on this ground.

Were Candler & Co. independent contractors? The court held that, if there were any actionable negligence, the Vinton Company must be charged with it, thereby holding, in effect, that Candler & Co. were not independent contractors.^ The testimony in the record bearing upon the question of what the contract was is somewhat meager, but from what does appear we are led to the conclusion that defendant Candler & Co. were independent contractors. It is shown that the Vinton Company advertised for bids for the construction of the galvanized iron cornice over the show windows according to plans and specifications; that Candler & Co. submitted a bid and it was accepted. It appears that Candler & Co.’s contract included the furnishing of the materials and the labor, and was to be done for a fixed price. There is no showing that the Vinton Company reserved the right to control in any manner the execution of the work, or that any attempt was made to do so. It reserved the right of supervision, but, we think, only as to results. The reservation of the right by the Vinton Company to see that the work was executed in accordance with the plans and specifications would not make it liable for the negligent manner in which it was done. Lenderink v. Village of Rockford, 135 Mich. 531 (98 N. W. 4).

There is some testimony that, at the precise time the injury occurred, Candler & Co.’s employee was engaged in repairing some roofing for which an extra charge was made by them. The authority to do the extra work was communicated by Siegel through the Vinton Company to Candler & Co., with a promise to pay extra for it. The inference'is that the extra work was not included in the contract of the Vinton Company, but that the company was used merely as a medium through which to communicate the fact to Candler & Co. that Mr. Siegel desired the extra work done, and that he would pay the added expense. This showing might bear upon the liability of Siegel, but would not charge the Vinton Company for the negligence of the employee of Candler & Co. while making repairs. We are of the opinion that the trial court was likewise in error as to this question.

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

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


author: Bird, J. Moore, J.

text:
    GAINES v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    Master and Servant — Interstate Commerce — Statutes—Railroads — Eellow-Servants.
    Recovery is permissible only under the Federal act abolishing the fellow-servant rule and modifying the doctrines of contributory negligence and assumed risk (35 U. S. Stat. § 65, U. S. Comp. Stat. Supp. 1911, p. 1322; see, also, Act No. 104, Pub. Acts 1909, 4 How. Stat. [2d Ed.] §4110 et seq.), in favor of an employee who was engaged at the time of his injury in repairing a draw-bar of a freight car that belonged to the Baltimore & Ohio Railroad Company and that had been used to bring coal into Michigan from a foreign jurisdiction.
    Error to Shiawassee; Miner, J.
    Submitted April 9, 1914.
    (Docket No. 13.)
    Decided July 24, 1914.
    Case by Clarence D. Gaines against the Detroit, Grand Haven & Milwaukee Railway Company, and others, for personal injuries. Judgment for defendants. Plaintiff brings error.
    Reversed.

      Terry & Parsons (George E. Pardee, of counsel), for appellant.

      Harrison Geer, for appellees.
   Bird, J.

While the plaintiff was employed as a car repairer for the defendant in its yards at Durand, he was severely injured. The circumstances leading to his injury were such that he claims the company was negligent in failing to warn him of the dangers attendant upon his work. The declaration filed included not only a common-law count but a statutory one based upon Act No. 104, Pub. Acts 1909 (4 How. Stat. [2d Ed.] §4110 et seq.). At the conclusion of the proofs the plaintiff requested the trial court to submit the case to the jury upon the statutory count. The defendant objected to this and took the position that, if any recovery could be had, it must be under the Federal act. The trial court, not being impressed with either contention, submitted the case upon the common-law count, and the jury returned a verdict in favor of the defendant. The plaintiff assigns error in this court and .relies chiefly upon the action of the trial court in submitting the case upon the common-law count.

The record discloses that, when the plaintiff received his injuries, he was assisting in repairing a defective drawbar on a car belonging to the Baltimore & Ohio Railroad Company. The car had brought a load of coal into this State, and the defendant had conveyed it from Detroit to Durand. On its return trip one of its drawbars was found to be defective, and was placed by the defendant upon its repair track.

Under recent rulings of the Federal Supreme Court, we think it is clear that the defendant, while dealing with this car, was engaged in interstate commerce, notwithstanding the fact that its own line of railway lies wholly within this State. Johnson v. Southern Pacific Co., 196 U. S. 1 (25 Sup. Ct. 158); McNeill v. Railway Co., 202 U. S. 543 (26 Sup. Ct. 722); St. Louis, etc., R. Co. v. Seale, 229 U. S. 156 (33 Sup. Ct. 651); Baltimore & Ohio R. Co. v. Darr, 204 Fed. 751, 124 C. C. A. 565 (47 L. R. A. [N. S.] 4).

If the work at which plaintiff was engaged at the time of his injury was a part of interstate commerce, then his remedy is under the Federal act. Pedersen v. Railroad Co., 229 U. S. 146 (33 Sup. Ct. 648). Measured by this test, we have no hesitancy in saying that the repair work in which the plaintiff was engaged when he received his injuries was a part of interstate commerce. The car belonged to a railway doing an interstate business, and it had come into this State on an errand of interstate commerce. It was one of the instrumentalities of interstate commerce and was being repaired in obedience to a mandate of the Federal statute. Having arrived at this conclusion, it must follow that, if the plaintiff is entitled to recover on account of his injury, it must be done by counting on the Federal statutes. Fernette v. Railroad Co., 175 Mich. 653 (144 N. W. 834).

The judgment must be reversed, and the case must go back to the trial court for such further proceedings as are consistent with the law and the rules of court, but defendant will recover costs of this court. Fernette v. Railroad Co., supra.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, and Steere, JJ., concurred with Bird, J.

Moore, J.

I concur in the result, except I think appellant should recover costs of this court.


author: Ostrander, J-.

text:
    BAYNE v. RIVERSIDE STORAGE & CARTAGE CO.
    Master and Servant — Workmen’s Compensation Act — Evidence —Cause of Death.
    Opinion, evidence of two physicians that pneumonia did not result from injuries which decedent received in the course of his employment, and which were followed by his decease, contradicted by plaintiff’s experts who gave a contrary opinion, held, not to justify the court in reversing the finding of the industrial accident board awarding compensation.

      Certiorari by the Riverside Storage & Cartage Company and Standard Accident Insurance Company to the industrial accident board to review a finding of the board awarding compensation to Lillian Bayne for the death of her husband, Harry Bayne.
    Submitted April 29, 1914.
    (Docket No. 158.)
    Affirmed July 24, 1914.

      Keena, Lightner & Oxtoby, for appellants.

      Frank C. Sibley, for claimant-and appellee.
   Ostrander, J-.

Claimant’s intestate, an employee of the Riverside Storage & Cartage Company, died September 9, 1913; the cause of death being pneumonia. Whether the pneumonia was caused by an-accident arising out of and in the course of decedent’s employment was a question of fact, presented first to a board of arbitration and afterwards to the commission, both of which bodies answered it in the affirmative. Claimant’s decedent was apparently a strong and well man and was employed in the labor of lifting and moving household furniture and other objects. He quit work the morning of August 27, 1913, after lifting, at apparent disadvantage, a heavy article, complaining that in lifting it he had hurt his back. He went to bed, and the next day a physician was called. In five days he became delirious. On September 6th Dr. Stockwell was called and had bim removed to the hospital, where he died. Dr. Stock-well testified that when he examined the man on September 6th he displayed symptoms of pneumonia of two or three days’ duration, his vitality was lowered, his condition debilitated, and he was delirious.

Both claimant and respondent were of opinion that a connection between the injury and the death could be established only by the opinions of men having extra knowledge of the subject, and therefore physicians, other than the one who attended deceased, were called and their opinions taken. Conduct of the deceased prior to the alleged injury was laid before them, it appearing that he had danced on a boat on the evening of August 24, 1913, had become heated, and complained of being chilled; that on August 25th and 26th he had worked as usual, making no complaints, had lifted and carried a heavy object in the afternoon of August 26th, and had complained that in setting it down he “must have kinked his back,” and he said, on the morning of August 27th, that the jar of the wagon hurt his back when it crossed the street car track. Dr. Stockwell and Dr. Hitchcock testified there was no connection between the alleged injury and the pneumonia. Other physicians were of a contrary opinion, asserting the pneumonia to be directly caused by the injury. The case put by the plaintiff in certiorari, namely, that the employer is not liable to his employee for the consequences of disease superinduced by a physical condition, the result of the labors of the employment, is not the case before us. There is before us opinion evidence, disputed it is true, that the direct cause of the pneumonia was the hurt or strain of the back suffered by deceased August 27th. We do not understand it to be contended that, if the injury directly caused the cause of death, the employer would not be liable. Assuming that the court would have the right to brush aside wholly improbable expert testimony or correct the commission for not doing so, we do not feel warranted in saying that the opinion evidence favorable to claimant is wholly improbable. There is therefore a dispute of fact, which the commission has determined.

We find no error.

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


author: OSTEANDEE, J.

text:
      In re McCONAUGHY’S ESTATE. STONER v. McCONAUGHY’S ESTATE.
    Estates of Decedents — Imputed Contracts — Support and Care.
    Evidence tending to show that decedent agreed to pay claimant well for living with and caring for him, and to see that the wife of claimant should have his house and homestead, that decedent died testate and provided by his will that a third person should have the house, omitting any provision for claimant, held, to support a verdict for the value of such services as claimant and his wife actually performed, and to justify the court in denying defendant’s motion to direct a verdict.
    Error to Eaton; Smith., J.
    Submitted April 30, 1914.
    (Docket No. 128.)
    Decided July 24, 1914.
    Henry Stoner presented his claim against the estate of William McConaughy, deceased, for services performed. From a finding of the commissioners on claims disallowing the same in part claimant appealed to circuit court. Judgment for claimant. Defendant executor brings error.
    Affirmed.

      Elmer N. Peters, for appellant.

      R. L. Soioers, for appellee.
    Testimony for claimant tended to prove that the deceased, William McConaughy, a widower, living alone in his brick house in the city of Charlotte, made an arrangement with claimant and his wife, who had no children, according to which'they, claimant and his wife, left their own home in the city and moved into decedent’s house, occupying it from about April 27, 1903, to October 11, 1907, a period of 232 weeks. During this period McConaughy boarded with them and was cared for by them. He was a stone mason by trade, and when not under the influence of liquor able to look after himself. His habits, with which claimant and his wife were familiar, were such that at times he required a good deal of attention. He drank heavily, and sometimes suffered for days on account of his protracted sprees. He died in March, 1913. He never paid claimant anything. His property was disposed of by will to another. Claimant presented to his estate an account for board and care for the 232 weeks, and recovered in the circuit court a verdict and judgment for $1,624. There is no particular dispute over the matter of the services which were rendered by claimant and his wife to the deceased for the period during which they occupied his house, although it is claimed that the value put upon them is excessive.
    While some errors are assigned upon exceptions taken to rulings admitting and rejecting testimony, the principal contention arises over the claim made by the estate that claimant and deceased had an express agreement, by the terms of which claimant was to move into the house of the deceased, board and care for him during his life, and in consideration was to have the use of his house and the property itself after his death.
    In his opening statement to the jury, the attorney for the claimant stated that he would offer testimony tending to prove that the deceased said to claimant and his wife that if they would make a home for him and care for him, moving into his house, he would see that they were well paid. He also stated that testimony which he would introduce would show that deceased frequently said to Mr. and Mrs. Stoner that they were doing well by him, he appreciated what they were doing, was going to see that they were well paid for it, and that it was a common thing for him to say to Mrs. Stoner, whom he had known from her childhood:

      “Kittle, I appreciate what you are doing for me. I am going to see you are well paid, and I am going to see that you have this house — this brick house for yours.”
    He made, also, the following statement:
    “The testimony will show he told them when he Came over there that he would — I think it will show he told them when they come over there that if they would stay throughout his life that he would give them the brick house; but, at least, we will say he promised to pay them well.”
    At this point he was interrogated by counsel for defendant, and the following colloquy occurred:

      “Mr. Peters: Mr. Sowers, do you claim an express contract to stay with him in his lifetime?

      “Mr. Sowers: No; we do not claim that.

      “Mr. Peters: Isn’t that the fact?

      “Mr. Sowers: I claim he did say to them, if they would stay, that he had told them he was going to leave them the brick house; that, if they would come over there and make a home for him, he would leave them the brick house. He did tell them he would pay them well for what they had done to come in, and we are not claiming the brick house.

      “Mr. Peters: Whether there was any such arrangement made.

      “Mr. Sowers: There was such talk.

      “Mr. Peters: Before they went in?

      “Mr. Sowers: At the time they went in, and after they went in, both; he told them if they would come over there and stay there, and make a home for him and care for him, that he would pay them well for what they did care for him.”
    A witness for claimant testified that he had heard deceased say that claimant should be well paid, and had heard him say several times that he was going to give the brick house to Mrs. Stoner. Another witness for claimant, and the only one who appears to have any knowledge of the real arrangement, testified in substance that from the conversations of the parties in his presence he understood, and the parties themselves understood, that the arrangement was as claimed on the part of the estate.
    The court, refusing to direct a verdict for the estate, and refusing to instruct them as requested:
    “If you find from the evidence in the case that complainant and deceased had an express contract, by the terms of which claimant was to board and care for the deceased during his lifetime, and receive in payment therefor the use or rent of the house occupied by claimant, and at the death of deceased to have the house, and claimant failed to perform his part of the agreement, violated the contract by moving out of the house, and ceased to provide deceased with board and care, then I instruct you that claimant has no right of action against this estate, and your verdict should be for the defendant”—
    Instructed the jury in substance that it was admitted that claimant and his wife moved into Mc-Conaughy’s house at the time above stated and remained there during the period stated, and that if they found that they were there, caring for the deceased at his request, and upon his promise to pay them for services rendered, they should render a verdict in favor of claimant for such sum as they should find the services were worth under all the circumstances, unless they found that claimant went there under a contract as claimed by the estate. If they found claimant rendered the services under an express understanding and agreement that he was to furnish McConaughy board and care during his lifetime, and to receive therefor the use of the house during the time such services were to be rendered, and at his death was to have the house, and if claimant abandoned this undertaking and voluntarily quit and ceased to render services, then claimant could not recover—
    “Unless you find that the acts of Mr. McConaughy made it impossible for Mr. Stoner and his wife to remain there. I want you to pay particular attention, and I see you are, to this, for it is quite important. If they made that contract which it is claimed by the estate they did make, they would be barred, unless you find the acts of Mr. McConaughy made it impossible for Mr. Stoner and his wife to remain there, and by that I mean some wrongful act independent of his rights under the contract committed by him, something outside of the scope of their duties or his rights, by which it is not possible for them to stay. The fact that he may have dissipated more or been more difficult to care for would not be such an act, because that was part of their contract to care for him and take care of him. If they entered into the contract as claimed by the defense, it was their duty to perform it, unless prevented by some wrongful act on the part of Mr.“McConaughy outside the relations and duties under the contract, and, if they have not done so, they cannot recover.”
    Error is assigned upon the portion of the charge here set out; but none is assigned upon the refusal to give- the requested instruction.
   OSTEANDEE, J.

(after stating the facts). Reading the entire record satisfies me that the court properly refused to direct a verdict for the estate, and that the question whether claimant performed the services under an express agreement was a question for the jury. This because there is testimony which may be interpreted as meaning that deceased agreed to pay claimant well for what services he should perform, and to give him or his wife the house, if he would continue to perform them during his life. But I find in the record, which contains the substance of all the testimony given upon the trial, no testimony tending to prove that, if there was an express agreement as claimed, McConaughy committed any act making it impossible for claimant to perform it. If he abanr doned performance of an express contract, he did it voluntarily. The testimony upon the subject is all to this effect. However, the point is not made by counsel for appellant, who complains only that the question of whether there was an express contract was submitted to the jury, contending that such a contract is made out by undisputed testimony.

The other exceptions appear to me to be without merit, and the judgment must therefore be affirmed.

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