author: McAlvay, J.

text:
    HANEY v. VILLAGE OF PINCKNEY.
    1. Municipal Corporations — Highways and Streets — Personal Injuries — Notice oe Claim — Sueeioiency.
    In an action against a municipal corporation for personal injuries caused by a defective sidewalk, a notice filed under section 2775, 1 Comp. Laws, as amended by Act No. 223, Pub. Acts 1899, and section 2754, 1 Comp. Laws, which includes an item for “permanent injuries” is sufficient to sustain a judgment for permanent injuries although no certain amount of such damages was claimed in the notice.
    2. Damages — Permanent Injuries — Evidence — Mortality Tables.
    If, in an action for personal injuries, the evidence shows permanent injuries, the admission in evidence of the mortality tables is both competent and relevant.

      3. Evidence — Admissibility—Municipal Corporations — Claims.
    The admission in evidence oí testimony of a member of the village council to the effect that plaintiff’s claim for personal injuries was presented in the council for allowance, that the claim was discussed informally, that some of the members were in favor of settling the claim and others opposed to it, and that the matter was then dropped, was competent as showing that the claim was presented, and the error in stating the action taken by the council was cured by striking out that portion of the testimony.
    4. Same — Conclusions—Appeal and Error.
    The statement of a conclusion is not competent as evidence; but where the bill of exceptions does not indicate that all of the testimony given on the trial has been made a part of the record, it will be presumed that the verdict is supported by evidence of probative force, and the obviously uncertain statement complained of held not prejudicial.
    Error to Livingston; Miner, J.
    Submitted January 13, 1909.
    (Docket No. 79.)
    Decided March 3, 1909.
    Case by Mary Haney against the village of Pinckney for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Louis E. Howlett■, for appellant.

      Richard D. Roche (Shields & Shields, of counsel), for appellee.
   McAlvay, J.

Plaintiff recovered a judgment against defendant village for personal injuries, claimed to have been received on account of defective sidewalk. Upon the trial no testimony was offered on the part of defendant. A new trial was asked and denied. Defendant seeks a reversal of the judgment, relying upon the following errors assigned:

(а) That the plaintiff should not have been permitted to recover for permanent injuries under the claim filed and the pleadings.
(б) That a new trial should have been granted for the same reason.
(c) That the court erred in receiving certain testimony.

The accident occurred April 22, 1906, while plaintiff and two young women, on their way home from church, were walking along a street of the village, when one of the young women stepped upon one end of a loose plank in the sidewalk, the other end of which tripped the plaintiff, causing her to fall, and injuring her. Plaintiff at the time of the trial was 63 years of age.

The first two errors relied upon may be considered together, as they both relate to the question of damages for permanent injuries. The determination of this question depends upon whether the notice plaintiff gave defendant under the statute was sufficient to allow evidence of damages for permanent injuries. The section of the statute referred to is section 2775, 1 Comp. Laws, as amended by Act No. 223, Pub. Acts 1899, which provides:

“No village * * * shall be liable in damages sustained by any person in such village, either to his person or property, by reason of any defective sidewalk * * * situated in such village unless such person shall serve or cause to be served within sixty days after such injury shall have occurred a notice in writing upon the clerk or deputy clerk of such village, which notice shall set forth substantially the time when and place where such injury took place, the manner in which it occurred, and the extent of such injury as far as the same has become known, and that the person receiving such injury intends to hold such village liable for such damages as may have been sustained by him.”

Within the time prescribed by this statute, plaintiff filed with the village clerk the following notice and claim:

“To the President and Common Council of the Village of Pinckney:
“You are hereby notified that on, to wit, the 22d day of April, A. D. 1906, at the village of Pinckney, in the county of Livingston and State of Michigan, while walking upon the sidewalk in front of the residence of George Reason’s on the north side of Main street in the village of Pinckney in company with Miss Flora Culhane, a loose board in said walk upon one end of which Miss Culhane had stepped, threw up, caught my feet and threw me heavily forward upon the sidewalk, by reason of which my limbs became black and blue, lame and sore, my neck and head were wrenched, and have ever since caused me great pain and suffering, and I have received certain internal injuries and injuries to my back, and that I intend to hold the village of Pinckney liable for all such damages as I have sustained by reason of the defective condition of the said sidewalk, and by reason of having fallen thereon while in such defective condition. My claim for damages for injuries sustained by me as above set forth, as far as known, is made up of the following items:
“For loss of time from April 22, 1906, to June 20, 1906, 8 weeks at $6 per week____________________$48
To medical attendance.......................... 34
To medicines................... — ------------- 5
To bodily and mental pain and suffering---------300
To permanent injuries.
To attendance---------------------------------- 10
$397”

This notice was duly verified, and on the same date served upon the proper officer. The claim is that this notice was not sufficient to warrant a recovery for permanent injuries. It is urged that no amount was claimed in this notice for permanent injuries, and that plaintiff should have been limited in her recovery to the sum of $397, the total of the amounts of the items stated. This statute clearly recognizes that as to some injuries the damage cannot be stated exactly, but that the notice should state “the extent of the injury so far as the same has become known.” An examination of this section of the statute satisfies us that it contains no requirement for a statement of the amount which it is claimed the village will be held liable to pay for damages sustained by reason of a defective sidewalk, nor is there any requirement that the claim of which notice may be given must be verified. Another section of the general village law (section 2754, 1 Comp. Laws) is relied upon as sustaining defendant’s contention as to the requirements of this notice of claim. This section makes provision for auditing ordinary accounts against a village, which must be certified or verified in a certain manner, with a further provision, as follows:

“And every such account shall exhibit in detail all the items making up the amount claimed, and the true date of each. It shall be a sufficient defense in any court to any action or proceeding for the collection of any demand or claim against the village for personal injuries or otherwise, that it has never been presented, certified to, or verified, as aforesaid to the council for allowance; or if such claim is founded on contract, that the same was presented without the certificate or affidavit aforesaid and rejected for that reason; or that the action or proceeding was brought before the council has a reasonable time to investigate and pass upon it.”

A provision in every respect like this, except the clause “for personal injuries or otherwise,” contained in the charter of the city of Adrian, was construed by this court in the case of Lay v. City of Adrian, 75 Mich. 438. The court, in an opinion concurred in by all the justices sitting, held that this section was not intended to apply to claims for damages for personal injuries sustained by reason of the negligence of the municipality, for the reason that certain elements of damages in those cases cannot be made items of an account. Later this charter was amended to include all the provisions contained in section 2754, 1 Comp. Laws, under consideration. In Davis v. City of Adrian, 147 Mich. 300, the question of the sufficiency of the notice of a claim under this amended charter was before this court. The claim was not itemized, nor any amount stated for any part or the whole thereof; nor was it verified strictly as required. In the opinions written, all of the justices agreed that defendant had waived the question. Three concurred in an opinion which held the notice sufficient and which cited Lay v. City of Adrian, supra, with approval, and stated:

“After this decision the concluding sentences of the section were added. They should be construed in the light of this decision. The terms of the amendatory provision are as inapt to indicate a purpose to require an itemized statement as were the original provisions. It is true the claim must be presented in the manner provided in the original act, but this can mean no more than that it shall be a verified statement of claim. When the statement itself is referred to, the requirements are not left in doubt. ‘The place and circumstances out of which the claim arose shall be fully set forth therein.’ ”

It was recognized by the court that there were elements, in a claim for damages for personal injuries in negligence cases against municipalities, which could not be itemized in like manner as accounts for property or services furnished. In the case at bar, plaintiff did specifically itemize all the items which were known to her, which could be itemized, and verified the claim as required by the statute. She with particularity described the nature and extent of her injuries, including “internal injuries and injuries to my back.” Among the items for which she made claim was one for “permanent injuries.” This was an item the amount of which was not liquidated, and could not be set down at a certáin sum with any certainty. Our conclusion is that this claim gave notification of permanent injuries for which plaintiff intended to hold defendant liable and was sufficient under the statute. The court was not in error in permitting evidence upon the question of permanent injuries and in refusing to grant a new trial.

There was ample foundation established by evidence tending to show permanent injuries to make the introduction of the mortality tables both material and competent. It was therefore not error to admit them.

Within a short time after this claim was filed, a regular meeting of the village council occurred, at which no official action upon it was taken, and none in fact was ever taken. Plaintiff was permitted to show by a member of the council what occurred at this meeting relative to this claim. Defendant objected:

“ That it was immaterial. It would have to be confined to official action, something that should have been recorded.”

The court admitted it “for the purpose of showing it was presented to the council, and that the council so understood it.” The testimony detailed an informal conversation among the members of the council present, and stated that no action was taken. The witness further testified:

ilQ. Can you give the substance of what was said and done about that claim at that time ?
“A. We simply talked the matter over, and there was one or two for settling it. The balance was against it, and it was dropped there.”

Defendant moved to strike out this answer. The court said:

“ So far as saying who was against it, or for it, it may be stricken out. ”

Error is assigned upon these rulings. We think it was not error to allow plaintiff to show that in fact the claim was presented to the council. Section 2754 provides that the neglect to make presentation of such a claim is a sufficient defense to any action brought upon it. Whether filing a claim with a proper officer would fulfill this requirement we need not decide. At most this evidence would be cumulative. The court struck out the incompetent portion of the testimony.

Another error is claimed to have been committed in receiving and retaining the following testimony of Mr. Lavey, at whose house plaintiff remained for about four hours immediately after the injury:

“Q. State whether or not while she was at your place she made any exclamations of pain or statements as to pain she was then suffering.
“A. I think she did. I couldn’t state what they were. I couldn’t tell what she said. I couldn’t remember.”

The answer of this witness, “ I think she did,” was his conclusion and was improperly admitted. Taken with the rest of his answer, it is vague and uncertain. The certificate to the bill of exceptions does not indicate that all the testimony in the case, or all that is necessary to intelligently consider the question raised, is before us. There is no claim of an excessive verdict if permanent injuries were properly considered. The presumption therefore is that the verdict was supported by evidence of probative force. In view of the absolute uncertainty of this objectionable testimony, we are constrained to hold that it was not prejudicial.

The judgment of the circuit court is affirmed.

Blair, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    LADIES’ LIBRARY ASS’N OF GREENVILLE, UNINCORPORATED, v. LADIES’ LIBRARY ASS’N OF GREENVILLE, INCORPORATED.
    Receivers — Appointment—Pending Litigation — Judicial Discretion.
    On a bill filed by a voluntary library association, in a dispute between it and an incorporated library association organized by some of its officers and members, to determine the rights to the property claimed by the former association, the appointment of a receiver, without expense, during the pendency of the litigation, is held a proper exercise of judicial discretion.
    Appeal from Montcalm; Davis, J.
    Submitted January 7, 1909.
    (Docket No. 24.)
    Decided March 3, 1909.
    Bill by the Ladies’ Library Association of Greenville, Michigan, Unincorporated, against the Ladies’ Library-Association of Greenville, Michigan, Incorporated, and others, to determine the right to possession of certain property. From an order placing the property in the custody of a receiver pending a hearing on the merits, defendants appeal.
    Affirmed.

      N. O. Griswold, for complainant.

      Harden & Harden and H. A. Hawley, for defendants.
   McAlvay, J.

Complainant, an unincorporated voluntary association, was organized in the year 1868 for the purpose of establishing and maintaining a permanent library for the use of its members and others, under certain rules and restrictions, and such association continued uninterruptedly to carry out such ^purpose until 1907. It had for several years prior to 1907 been furnished gratuitously a library room suitably heated and lighted, in the city hall of Greenville, by the municipal authorities. Its library had increased to 4,000 volumes, and, besides, it owned certain library furniture and a piano; all its said property amounting in value to the sum of about $4,000. The constitution of complainant association provided that it should remain a permanent library association, and that its property and funds should not be sold or used for any other purpose. Only women were eligible to membership, and there was no requirement of an election to membership. Any lady might become a member on the payment of a membership fee of $1 and pledging the payment of 25 cents as quarterly dues. The by-laws also provided that any person (male or female) might become a subscriber by paying 50 cents quarterly, and men were entitled to the use of the library, under the same rules and restrictions as members, upon the payment of $1, and 25 cents as quarterly dues. On June 15, 1907, differences which must have theretofore existed for some time between some of the officers and members of complainant association culminated in the organization of defendant corporation by 10 members or subscribers of complainant association, including in this number the president and two other officers, under Act No. 171, Pub. Acts 1903, entitled “An act for the incorporation of associations not for pecuniary profit.”

This corporation adopted the name of complainant. In the article of incorporation then executed, three of the four trustees required to be named therein for the first year were the president and two other officers of complainant association, then and for along time theretofore so acting. It appears, also, that the president of complainant was elected president of the corporation, which corporation and its officers immediately entered upon the duties of their respective offices, and assumed to be entitled to the possession, ownership, and control of the library and all the property of complainant, to the exclusion of all members of the old association who were not included in the corporation organized. The material differences between the constitutions of the old and new associations are that in the new one applications for membership must be made to the secretary accompanied with a fee of $10, and the applicant must be elected by a majority vote of members present, and the provision that “ the association remain a permanent library association, the property of which cannot be sold nor its funds appropriated for any other purpose,” is omitted. The annual meeting of the new organization was fixed for the same date as the old. The original bill of complaint was filed about September 1, 1907, against defendant corporation and Amelia Lester. It set out, among other things, the facts herein stated, and prayed that said defendants be required to yield and deliver up possession and control of complainant’s property; that the officers who had .joined defendant corporation, which assumed to be complainant’s successor, be declared to have forfeited their trust and all right and title to such offices, and for general relief. On September 3d, on motion of complainant, an order was granted against defendants to show cause why an injunction should not issue, which order was returnable September 9th, and contained á proviso that, if the motion was not disposed of before September 11, 1907,. defendants were restrained from interfering with the annual election of complainant to be held at the library room on that date. Notice of this annual meeting was duly given on the part of complainant to be held at the library on that date. Defendant Amelia Lester, representing the new association, issued notice of a meeting to be held on September 5, 1907, at her residence, “ for the purpose of taking action upon the resignation of the president, and to take action in regard to the suit now pending against said association,” to which notice she signed her name as president. Later she issued a further notice of the regular annual meeting of complainant association, to be held September 11, 1907, at the same place, which notice she also signed as president. Solicitor for complainant, considering that matters which had occurred subsequent to filing the bill of complaint were material, and should be litigated in this suit, and that other parties should be joined as defendants, prepared a supplemental bill and made a motion for an order granting permission to file the same, and for an injunction and receiver. This motion was noticed for hearing and argued at length on both sides. The original defendants in the meantime answered fully all the charges contained in the original bill of complaint. Coupled with this answer was a demurrer. On April 13, 1908, complainant was granted leave to file a supplemental bill. An injunction was granted, a receiver appointed, and four other parties were named as defendants. From this order the case is before us for review on appeal. No answer has been filed to the supplemental bill, and the cause is therefore not at issue as to any of the defendants. All of the defendants named in both bills have joined in this appeal.

We will avoid, as far as may be, any discussion of the disputes in the case. The record admits the fact that a corporation was organized as charged, and that the president and other officers of complain ant became president and trustees of the corporation, and that at the time of the annual meeting they undertook to hold such meeting as the annual meeting of complainant. Just exactly what these defendants claim that their relations to these two organizations are is not clear. Enough appears, however, to show that they dispute the claims of complainant’s right to the property in question, and deny any authority to bring this suit. The court below in hearing the motion upon which this order was granted had before him the original bill and answer, the supplemental bill, and all the affidavits of both parties. The court was warranted from the record then before him in making the order appealed from, and in doing so acted fairly and for the best interests of both parties. All the property in dispute is in the custody of the receiver without expense. The property is not such as will deteriorate in value from not being used. The business is not one in which a loss can occur and the contradictory and irreconcilable claims of the parties cán be settled only after a full hearing on the merits.

No other questions need be discussed. The order is in all respects affirmed, and the case will be remanded to the circuit court for further proceedings. Complainant will recover costs.

Blair, C. J., and Grant, Hooker, and Moore, JJ., concurred.


text:
    RICHARDS v. MICHIGAN PRESSED STEEL CO.
    Master and Servant — Personal Injuries — Proximate Cause— Negligence — Assumed Risks — Fellow-Servants.
    Plaintiff was employed at a stamping press taking sheets of steel from the machine after they had bedh stamped. A gauge, used for the purpose of measuring the steel, became loose and the sheet caught under it. Plaintiff attempted to loosen the steel with his hand, and called out to the feeder to pull it back. The feeder misunderstood and tripped the machine causing the die to descend cutting off plaintiff’s hand. Held, that plaintiff assumed the risks of his employment, such risks, according to his own testimony, being known to him; that the misunderstanding of the feeder, a fellow-servant, was the proximate cause of the injury; and that a verdict was properly directed for the defendant.

    Error to Washtenaw; Kinne, J.
    Submitted January 21, 1909.
    (Docket No. 17.)
    Decided March 3, 1909.
    Case by Harry Richards against the Michigan Pressed Steel Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Tracy L. Towner and Lehman, Biggs & Lehman, for appellant.

      Fred L. Vandeveer, for appellee.

       As to duty of master to warn or instruct servant, see note to James v. Rapides Lumber Co. (La.), 44 L. R. A. 33.

   McAlvay, J.

Plaintiff, a young man 21 years of age, while in the employment of defendant company, at its place of business in Ypsilanti, was injured. Defendant company owns and operates a manufactory at Ypsilanti where certain articles are made from sheet steel plates, which are passed through certain presses and are stamped out. Plaintiff at first went to work upon the smaller presses, and so continued until the day before the accident. On that day he was put at work upon the large Hamburg press, which had just been set up. These presses are all in one room, about 35 by 45 feet in size. This large press is described as being from 12 to 15 feet high, and 4 to 5 feet square. Dies or stamps in two parts, which exactly fit into each other, are used in these presses. The lower part of the die is securely fixed into the heavy iron table or base, which is stationary; the upper part into the upper jaw, or movable part of the press. They may be separated about six inches. When power is applied the upper part descends upon the lower part, and with great force presses the metal sheet into it, producing the article for which the dies then in use are made. At this time this press was stamping out hopper ends for the Superior grain drill. In operating this press the steel sheets used are placed upon a table, level with the base or lower part of the press, and fed one at a time into it. The sheets were 8 feet long, and 16 or 18 inches wide. The pieces they were stamping out at this time were about 18 by 14 inches in size. Plaintiff’s place of work was back of the press. On this side there were two gauges affixed to the corners of the press. The steel sheets were put into the press by the operator, who stood in front of it, and each was shoved by him through between the dies towards plaintiff, who placed it in position against these gauges, and called out “All right” to the operator, who then tripped the press, and a piece was stamped out. The tripping was done by the operator in front pressing his foot upon a lever. This operation was repeated until a sheet was used up, when another would be put through in like manner. One of these gauges had become loose on the afternoon before the accident, and had been fixed by the foreman at the request of plaintiff. It became loose again in the morning, and, at the request of plaintiff, it was tightened by the foreman. On being told the third time that it was loose again, he said, ‘ ‘ Let it go. I won’t fix it;” or words to that effect. The loosening of this gauge allowed the edge of the sheet of steel to catch under it. It would make it necessary to pull it back and place it in position. In a short time after this last notice to the foreman a sheet was placed on the bed of the machine, and in pushing it through it caught under this gauge. Plaintiff attempted to get it loose with his hand in the machine under the die. Plaintiff testified:

“The sheet would not come back against the gauge, but it was loosened, and it wedged, and I told him to pull the end of the steel towards him, and it would have a tendency to pull it away. I also had my hand here, trying to push it up. Of course, I had to have my hand there. I couldn’t get it out any other way, and he misunderstood me. Instead of pulling it towards him, as I told him to do, he tripped the press, and the die descended, and cut off this portion of my hand.”

There is no other testimony as to how the accident occurred. Defendant at the close of plaintiff’s case moved the court for a verdict in its behalf. This motion was granted for the reasons (a) that plaintiff assumed the risk; (6) that the negligence, if any, was the negligence of a fellow-servant; (c) that the looseness of the gauge was not the proximate cause of the injury; (d) that plaintiff was guilty of contributory negligence.

It appears from the record that plaintiff was a young man of intelligence, and his testimony shows that he is truthful and honest. He knew that the purpose of the gauge in question was to save material, and not to protect employés. He says he knew what would be the consequences if his hand was caught under the stamp; that it was dangerous to put his hand under it. He knew that the attempt to repair the gauge was abandoned. What excuse can there be offered for him, with all this knowledge, for putting his hand into a place of danger ? It is claimed that he should have been instructed how to do his work at this press; that the foreman stood by and watched him at his work for a considerable time, and gave him no instructions of caution. This may be answered, first, by saying that there was no hidden peril —all the danger was obvious and known to plaintiff; and, second, the record does not show that he was at that time doing his work in an improper manner. Plaintiff’s work was not to operate this press. He has described his work. It was to put the end of the steel sheet in the proper position to be stamped and to take away the pieces as fast as they were stamped out. There was but one danger of injury to him while working at that press, and that was the danger of having his hand caught by the descending die. He says that this was obvious and known to him. Further instruction was therefore unnecessary. It is fundamental that, where a person knows and understands all of the obvious risks to which he is exposed and continues his work, he assumes all such risks. Bailey on Masters’ Liability, p. 169 et seq.

It is insisted that the loose gauge was the proximate cause of this injury, and that the act of the fellow-servant, if it was negligence, concurred with the negligence of defendant. If we are right in the conclusion just reached, that plaintiff assumed this risk, then this last contention is not tenable. Considering this proposition under the facts in this case independent of other questions, can we say that the loose gauge was the proximate cause of the injury ? The machine was at rest. Plaintiff had made an unsuccessful effort to release the sheet of steel. His hand was in a dangerous position for some time, and he left it there, calling out to the operator to pull the sheet back. Misunderstanding the order, the operator tripped the press, which caused the injury. This was the direct and proximate cause. Without it no injury was possible. The injury was caused by the carelessness, negligence, or misunderstanding of a fellow-servant. The risk of injury in this case arising from the act of this fellow-servant was a risk assumed by plaintiff when he entered upon this employment. This rule is so well established and recognized that a citation of the authorities is unnecessary. There is no question in the case of the incompetenoy of this fellow-servant.

It will not be necessary to consider other reasons given by the trial court for his action.

The judgment is affirmed.

Blair, C. J., and Grant, Montgomery, and Moore, JJ., concurred.


author: Brooke, J.

text:
    WELLMAN v. BLACKMON.
    1. Appeal and Error — Evidence—Admissibility.
    - The consideration and determination of matters in controversy by consulting a sketch of the disputed boundaries made by the county surveyor and filed with the court after the testimony had been closed was unwarranted.
    2. Boundaries — Deeds—Description—Property Conveyed.
    On a bill to enjoin the interference with water rights, it appeared that in the deed to complainant the property was conveyed by a general description and also as containing “the water power and dam located on said property.” The dam actually occupied a portion of another description owned by the grantors at the time of the conveyance to complainant. Held, that the specific grant of the dam controlled the general terms of the conveyance, and that complainant acquired title to such land as was actually occupied by the dam.
    Appeal from Kalkaska; Chittenden, J.
    Submitted January 19, 1909.
    (Docket No. 119.)
    Decided March 4, 1909.
    Bill by William A. Wellman toenjoin William C. Blackmon and Casper Olin from interfering with certain water rights. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Gaffney & Miltner, for complainant.

      Farm G. Gilbert, for defendants.
    On the 14th day of August, 1906, Francis A. Well-man and Silas A. Wellman, of the township of Board-man, county of Kalkaska, Mich., were owners of the N. E. i of the N. W. ^ of section 21, township 26 N., range 8 W., and also a piece of land1 lying immediately north of this description described as follows: Commencing at the S. W. corner of the S. E. -]r of the S. W. \ of section 16, in township 26 N., range 8 W.; thence north along the eighth line of section 16, 30 rods; thence east 68-j}?-rods; thence south 17f-f rods; thence west 9 A rods; thence south 12-J-| rods to the south line of section 16; thence west along the same to the place of beginning. On the said 14th day of August, 1906, the said Francis A. Well-man, Mary E. Wellman, his wife, and Silas A. Wellman, made a conveyance to the complainant, William A. Well-man, as follows:
    “All their right, title and interest in northeast i of the northwest i of section twenty-one (21), township twenty-six (26) north, of range eight (8) west, also the water power and dam located on said property, originally owned by Hamilton Stone and conveyed to the said first parties by warranty deed, from James R. Wylie and wife. Provided, however, of one exception of a certain contract made between said first parties and J. C. Gray, relative to an electric light plant, for one year in default of payment. First parties also reserve right of using pond to store logs and bolts and get same in mill for the sum of one dollar and a valuable consideration, lawful money of the United States of America, to them in hand paid by ■ the said party of the second part, the receipt whereof is hereby confessed and acknowledged,”
    On the 4th day of September, 1906, Francis A. Well-man, Mary E. Wellman, his wife, and Silas A. Wellman and May Wellman, his wife, made the following deed to Josiah O. Gray, Giles E. Hodges, and George S. Danser, trustees, who are the grantors of the defendants William O. Blackmon and Casper Clin:
    “ Witnesseth, that the said parties of the first part, for and in consideration of the sum of one dollar and other valuable consideration to them in hand paid by the said parties of the second part, the receipt whereof is hereby confessed and acknowledged, do by these presents grant, bargain, sell, remise, release and forever quitclaim unto the said parties of the second part, and to their heirs and assigns, forever, all that certain piece or parcel of land, situated in the township of Boardman in Kalkaska county and State of Michigan, known and described as follows: Commencing at the southwest corner of the southeast quarter of the southwest quarter of section 16 in township 26 north, of range 8 west; thence north along the eighth line of section 16, 30 rods; thence east 68 and ffths rods; thence south 17 and ffnds rods; thence west nine and tVths rods; thence south twelve and ffnds of a rod to the south line of section 16; thence west along the same to the place of beginning. Always excepting and reserving from the operation of this deed certain deeds heretofore made to Chas. Wellman, Nellie Burleson, the Lumberman’s Tool Company, Ltd., and Anna T. Hall. The southeast quarter of the northwest quarter and the southwest quarter of the northeast quarter of section fourteen in town twenty-five north of range eight west. Together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining; to have and to hold the said premises to the said parties of the second part, and to their heirs and assigns to the sole and only proper use, benefit and behoof of the said parties of the second part, their heirs and assigns, forever.”
    The deed last above set forth was recorded on the 25th day of October, 1906; whereas the deed first above set forth w.as recorded on the 16th day of August, 1907. It is apparent from the record that the dam mentioned in the conveyance to the complainant, or some portion thereof, extends a few feet beyond the northerly line of the N. E. £ of the N. W. J of section 31, and, so far as it extends over said line, lies upon that portion of section 16 covered by the conveyance to the grantors of defendants. The complainant through thé conveyance to him claims the right to control said dam and the flowage of water over the same for the purpose of creating power, and the defendants by reason of the fact that a small portion of the apron or slash board, and possibly a part of the flume, may lie north of the line between sections 16 and 31, and therefore on that part of section 16 conveyed to them, claim the right to use the water from the dam for the purpose of generating power to be used in running machinery on their land. They also threatened to make a connection with the dam for the purpose of taking water, or attempting to do so, and thereupon complainant filed his bill asking for an injunction to prevent said interference with his rights. The circuit judge upon the hearing of the case dissolved the temporary injunction and dismissed the complainant’s bill. From this decree complainant appeals.
   Brooke, J.

(after stating the facts). In reaching the determination which he did, the circuit judge was evidently of the opinion that because possibly some portion of the dam structure lay north of the line between sections 31 and 16, the defendants would have a right to the use of the flowage of water therefrom under their grant. He was influenced to this determination, according to his opinion, through the consideration of a sketch of the premises made by the county surveyor of’ Kalkaska county, and filed with him after the closing of proofs. It is not necessary, of course, to say that to receive this paper, so brought to his attention, and to permit it to in any wise influence his determination of the matters in dispute, was wholly unwarranted. In our view of the case, however, it is immaterial whether the dam in part lies upon that portion of section 16 covered by the conveyance to defendants or not, inasmuch as when the conveyance of August 14, 1906, was made, the common grantors of the complainant and defendants owned both parcels, and by the descriptions contained in the earlier conveyance distinctly sold to the complainant the dam in question. The language of the deed as to this is:

“Also the water power and dam located on said property originally owned by Hamilton Stone and conveyed to the said first parties by warranty deed from James R. Wylie and wife.”

It is quite clear that this specific grant of a definite object upon land at that time owned by the grantors must be held to control the general terms of the conveyance as to the land upon which it was supposed to be located. Long, C. J., speaking for the court in Woodbury v. Venia, 114 Mich. 257, said:

“ It is a well-settled law in this State that monuments control courses and distances, and that, when monuments and measurements vary, the monuments always control; but this reference is to monuments and measurements made by the original survey.”

In Gilman v. Riopelle, 18 Mich. 164, Cooley, C. J., speaking for the court, said:

‘ ‘ Where definite and permanent boundaries are given, the deed must be held to convey all the land within those boundaries, notwithstanding the quantity is much greater than that mentioned. This is on the familiar principle that the incorrect portion of the description is to be rejected where that which remains is sufficient, and that definite and permanent monuments are to control distance and quantity.”

It is a significant fact that the complainant, through his attorney in fact, after the conveyances in question, continued to exercise sole control over the dam in question, made repairs upon the bridge of the highway thereon, and was not disturbed in his use thereof until the threatened action of the defendants, whereupon complainant filed his bill in this cause.

The decree of the court below is reversed, with costs of both courts, and a decree will be entered in this court, permanently enjoining the defendants in accordance with the prayer of the bill of complaint.

Grant, Montgomery, Hooker, and Moore, JJ., concurred.


author: Montgomery, J.

text:
    KOERBER v. BOARD OF SUPERVISORS OF IONIA COUNTY.
    1. Intoxicating Liquors — Local Option — Petition for Submission — Sufficiency—How Determined.
    Under the statute (section 5417, 2 Comp. Laws), the determination of the board of supervisors that a sufficient number of .the qualified voters of the county had petitioned for the submission of the question of prohibiting the manufacture and sale of intoxicating liquor in the county is final.
    2. Same — Local Option — Petition—Withdrawal of Names.
    Section 5415, 2 Comp. Laws, giving the right to one whose name has been fraudulently attached to a petition to have it erased, does not confer such right upon one who signs such petition of his own volition.
    Certiorari to Ionia; Davis, J.
    Submitted February 23, 1909.
    (Calendar No. 23,241.)
    Decided March 10, 1909.
    Mandamus by John Koerber to compel the board of supervisors of Ionia county to reconvene and take testimony upon and determine the question of whether an application for submitting the question of prohibiting the sale of intoxicating liquors to a vote of the people had been petitioned for by the requisite number of voters. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      George E. Nichols\Ered A. Baker and William G. Manchester, of counsel), for relator.

      R. A. Hawley and Locke & Sheldon, for respondent.
   Montgomery, J.

The relator made application to the circuit court for a writ of mandamus to be directed to the board of supervisors of the county of Ionia, requiring said board to reconvene and hear testimony upon and again determine the question of whether an application made to said board for a submission of the question of prohibiting the sale of intoxicating liquors in Ionia county had been petitioned for by the requisite number of electors. The circuit judge determined that the action of the board of supervisors, in determining and declaring by its resolution that an election had been prayed by the requisite number of electors, was conclusive and final under the laws of this State, and could not be reviewed by the courts. He also, in answer to the questions raised by relator’s counsel, further determined that an elector, whose name had been entered upon the register of electors in the township, ward, or election district wherein he resided by his initials only, was a duly qualified elector, and that, in view of this determination, the other questions relating to the final action of the board became immaterial. On this hearing, and also before the circuit judge, it was contended that the petitioner was denied the privilege of being heard before the board of supervisors by its committee, and that for this reason the board should be reconvened and permit the petitioner to be heard by his counsel.

Among the other questions presented on the hearing before the circuit judge, was the question of whether the electors who signed the petition for submission of the question to the electors were entitled at any stage of the proceedings before final action of the board of supervisors to withdraw their names from the petition. Upon'the question of whether the petitioner had the right to be further heard in the case, the return of the board of supervisors was accompanied by an. affidavit of one of the members of the committee, and disclosed that George E. Nichols, the attorney for the relator, did go before the committee during its deliberations at various times; that on the morning of January 14th he stated that the relator had been to considerable expense and considerable time had been used by one F. S. Hutchinson in looking over and examining the petitions and the registration lists, and proposed that Mr. Hutchinson act with the committee, and aid and assist the committee in further examining the petitions and registration lists; that said committee made but little reply to this proposition, and did not invite said Hutchinson to appear before the committee or request that he lend the committee any aid or assistance; that Mr. Nichols also stated that he had a list of names that were properly registered in the several election districts of the county, and a list of the names that were not properly registered in said election districts, but did not on that occasion leave such lists; that on the same day, shortly before the noon hour, he again appeared before the committee, and stated, in substance, that he presumed they did not care to have the assistance of Hutchinson, but that he, said Nichols, was not very busy at that time, and would himself aid and assist the committee in the same manner as proposed by him in relation to said Hutchinson; that said committee did not accept such proposition, but finally, before leaving, said Nichols delivered said lists mentioned by him in his former interview into the hands of said committee, stating at the time that he did not make them and had not investigated them, and could not say tha’t they were correct; that afterwards certain individual members of said committee compared said lists with the registration lists in possession of said committee, and found said lists left by said Nichols to be inaccurate and incomplete; that on the morning of January 15th Mr. Nichols again appeared before the committee, and began to compare the said lists left by him with said committee with the registration lists in the hands of said committee, or certain members thereof, and proceeded to correct his list from the lists in the hands of said committee, and that he was then informed that his list was incomplete and incorrect; that Mr. Nichols replied that he could not swear to the accuracy of his list for the reason he had not made it himself; that, finally, Mr. Nichols left with the committee the following letter:

“ I am informed that your committee, after hearing the arguments upon the questions of law, presented by the objections filed by my client, John Koerber, to the submission of the question as to whether the manufacture of liquor and the liquor traffic should be prohibited in Ionia county, have decided:
“ (1st) That a qualified elector, under the law, must be a registered elector, and that your committee would investigate that question and every name found upon the petitions not registered, should be taken off.
(2nd) That it was a compliance with the registration laws if an elector had his name upon the registration books by initial only; and that the objections made to the petitioners who registered by initial only is not well taken; and that such names would be counted.
“ (3rd) That any petitioner so desiring, by request to the board of supervisors, might have his name removed up to the time of final action by the board, and as to the requests filed you had granted the privilege to each of the parties requesting that their names be removed and have stricken such names from the petitions.
“I have been before your committee twice and asked for an opportunity of presenting the question of fact as to the number of petitioners not registered, and although that privilege has not been in express terms denied me, at the same time the request has been evaded. I am informed that it is claimed that there are less than one hundred persons on those petitions" not registered, while on the other hand, I insist if given an opportunity of presenting the facts, that I shall be able, in behalf of my client, to show that there are more than nine hundred, which, together with the withdrawal cards, will bring the number of petitioners below the required percent.,one-third of all of the qualified electors, as shown by the poll lists of the last preceding election, and in behalf of Mr. Koerber and other parties — citizens'interested—I demand the right to go before your committee and presenting the original registration books, if necessary, from each township, voting precinct and ward, for comparison with the petitions, for the purpose of furnishing your committee and the board of supervisors with absolute and undisputed testimony that there are upon said petitions a number of unregistered electors, practically and substantially as claimed by Mr. Koerber in his objections filed, and before the committee adjourns or makes its report to the honorable board of supervisors, I insist that Mr. Koerber have the right to be heard upon this question before your committee and before the board, and I am putting this in writing so that hereafter there will be no question but what you understood his desires and demands in the premises, and that you may act accordingly.”

No other question of fact appears to have been raised before the committee, except the question of whether the names appearing upon these petitions were properly registered; nor was there any effort to make any proof upon the subject except by a comparison of the registration lists with the petition. It is obvious that the committee were just as capable of doing this as was the attorney for the relator. It was not like the case cited by relator’s counsel of State, ex rel. Hawley, v. Board of Sup’rs of Polk Co., 88 Wis. 355, in which the effort was made to offer proof aliunde to show that names appearing upon the poll list by initial were in fact the names of qualified electors, but it was a mere question of comparison of names, a duty which the committee were just as capable of performing as would be any party appearing before them. But another obvious answer to this claim of right is found in the statute itself. Section 5417, 2 Comp. Laws, provides:

“At such meeting of the board of supervisors it shall be the duty of the county clerk to lay before them the petitions filed in his office praying for such election, and when, upon examination, it shall appear to the said board, upon the face of said petitions, and by the transcripts of •the poll lists, or by reference to the returns and canvass of the last general election, that such election has been prayed for by the requisite number of electors, as herein-before provided, they shall, by resolution, determine and declare to that effect, and such determination shall be final as to the sufficiency of the petitions and the requisite number of electors signing the same, and they shall thereupon issue an order directing that such election be held in and for such county.”

The statute very plainly implies that it is the poll list to which reference is to be made by the board, and the return shows that these poll lists were before the board. The comparison was made by them. The board went as far as they were justified in going, certainly, in investigating the transcripts. There were admittedly 4,052 names on the petition. Of those, who had signed the petitions, 597 signed withdrawal cards, and it is claimed that the names of 700 of those who signed the petitions appeared upon the registration lists only by initial. It is the contention of the relator that if the names of those appearing by initial be deducted, and the names of those who sought to withdraw their signatures be deducted, less than one-third of the number of electors in the county would appear. If, however, the relator is wrong in either contention, it is apparently conceded that the names of the requisite one-third did appear upon the petition. We might readily dispose of the question presented by a reference to our own decisions, in which we have held that, under the statute above quoted, the determination of the board that the proper steps had been taken and that the requisite number of electors had signed the application is final. As was said in Friesner v. Charlotte Common Council, 91 Mich. 504:

“As it would be competent to call an election of the voters of the county, or indeed to have named in the statute a day for an election to be held, it is likewise competent to empower the board to determine when the prerequisite facts exist which shall authorize them to call an election of the people.”

See, also, Thomas v. Abbott, 105 Mich. 687, and Attorney General v. Van Buren Circuit Judge, 143 Mich. 366.

The important question, however, is presented in the brief, and discussed by counsel, as to whether those who signed the petitions may, without assigning any reason therefor other than a change of mind, withdraw their names after the proceedings are launched. The statute (section 5415, 2 Comp. Laws) reads as follows:

“To enable each and every elector to determine for himself if his name has been fraudulently attached to said petition, it is hereby required that the signatures of all the petitioners residing in any one and the same township, ward or election district, shall be attached to one petition or list, separate from those of any other township, ward or election district, and that an exact copy of said petition and of all the signatures thereto shall be posted in three of the most conspicuous places in the said township, ward or election district for at least ten days immediately prior to its presentation to the county clerk.”

If this statute can be held to imply the right, which we think it fairly does, of one whose name has been fraudulently attached to the petition to have it erased, it goes no further, and confers no right upon one whose name is attached, of his own volition and without any fraud to demand such withdrawal. There was no claim in the applications for withdrawal in the present case that these names were fraudulently procured. ' The withdrawal cards were uniform, and read as follows:

“Since signing the same, for reasons satisfactory to myself, I have concluded that I am not in favor of the submission of that question, and I, therefore, respectfully request that my name be withdrawn and struck from said petition; and that you do not consider me as in favor of the submission of the question.”

These requests or cards of withdrawal were presented after the action of the clerk in calling together the board of supervisors and up to as late as the 15th of January, the date upon which action was had. There would be furnished no opportunity of determining the means resorted to in procuring these withdrawal cards nor of verifying the signatures, except by comparison with the signatures in the list. No provision is made for such withdrawal, and we think under these circumstances that there was no authority for it.

The precise question has been before numerous courts. In Bordwell v. Dills, 70 Ark. 175, it was said:

“ When the petition has been filed with the county court, it has been then delivered, presented to the court, made a court record. The public has now become interested in it. The jurisdiction of the subject-matter has now attached. In the absence of something in the statute permitting it, no individual signer, nor, indeed, all the signers, could thereafter withdraw or erase their names from the petition without leave of the court. And the court should not grant such leave without some good cause shown therefor. He who voluntarily sets on foot a proceeding for the enforcement 'of a salutary police regulation in any community should not be permitted to capriciously undo his work. He should not be allowed to play fast and loose with the interests of society.”

The same question and principle was presented in State v. Gerhardt, 145 Ind. 439 (33 L. R. A. 313). In that case it appeared that three days before the meeting of the board of commissioners a remonstrance against the sale of liquors in the township had been filed, and that, after filing the remonstrance, certain electors who had signed the remonstrance applied to withdraw their names therefrom. The court stated the question as follows:

“ Has a remonstrant, after the expiration of the time within which a remonstrance may be filed, the absolute right, without cause, to withdraw from it, leaving the remonstrance, which theretofore had contained sufficient remonstrants to defeat the granting of the license, insufficient, on account of the withdrawal of the signatures, to accomplish the result ? ”

This question was answered in the negative in an opinion which commends itself to us in its reasoning. See, also, Carr v. Boone, 108 Ind. 241. We also think that Patterson v. Mead, 148 Mich. 659, in principle, rules this case. Were we to hold otherwise, this might result: The sentiment in favor of the passage of such a resolution might be overwhelming in a county. The minority who were opposed to such a resolution might join with the majority until a sufficient number had petitioned for a submission of the question to the people. At the last moment, and at a period so late that the question could not again be raised, the minority might withdraw their names, and thus defeat a purpose which was entirely lawful, and prevent the majority from obtaining an expression from the people upon the subject. Furthermore, this is a proceeding involving expense. Acting upon a petition regular in form and containing a sufficient number of names, the board of supervisors was called together to act, and we think, within the cases above cited, signers could not then defeat this proceeding by withdrawing their names capriciously.

Having reached this conclusion, it becomes unnecessary to determine or discuss the question of whether a registration by initials is sufficient.

The order of the circuit court is affirmed.

Hooker, Moore, and McAlvay, JJ., concurred. Ostrander, J., concurred in the result.


author: Blair, J. Hooker, J.

text:
    BROWN v. LENNANE.

    1. Master and Servant — Injuries to Servant — Assumed Risk —Obeying Orders.
    A servant did not, as a matter of law, assume the risk of injury from the fall of the frozen crest of a pile of sand from which he was shoveling, where, on his objecting to working at that particular place because of that danger, the master’s vice principal ordered him to do the work on pain of discharge and at the same time assured him that he had tested the pile and that it was safe. Hooker, J., and Grant, O. J., and Ostrander, J., dissenting.

    3. Same — Vice Principal — Evidence—Sufficiency.
    In an action for injuries to a servant, evidence examined, and held, sufficient to show that defendant’s superintendent in charge of the work upon which plaintiff was injured was a vice principal. Hooker, J., and Grant, C. J., and Ostrander, J., dissenting.
    Error to Wayne; Murphy, J.
    Submitted June 18, 1908.
    (Docket No. 25.)
    Decided November 30, 1908.
    Case by Joseph Brown against William E. Lennane and John Lennane, .copartners as Lennane Brothers, for personal injuries. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Washington I. Robinson, for appellant.

      Brennan, Donnelly & Van De Mark, for appellees.

       Rehearing denied July 15, 1909.

       As to effect, on assumption of risk, of assurance of safety given by the master or a coservant, see note to McKee v. Tourtellotte (Mass.), 48 L. R. A. 542.

   Blair, J.

Plaintiff, a man of mature years, was injured by reason of the frozen crest or crown of a sand pile falling upon him, and brought this action to recover damages therefor'.

Plaintiff testified, omitting the curses with which he claims Mr. Brennan’s statements were interlarded, as follows:

“ I had a conversation with Mr. Brennan before the accident. It might be a minute before. I don’t know what it was exactly. I don’t remember it all. I remember part of it. He came rushing over. I was taking the sand from the side. Mr. Brennan came rushing over, and he says, ‘--it, Brown, you are scraping there like an old woman.--, why don’t you come over here, and take it where it is plentiful ? ’ And he started shoveling the sand from under this crown, and at the same .time he motioned to the other man to come over with him to the center, and the man pulled his wheelbarrow over, and I says: ‘ Mr. Brennan, ain’t that crown liable to cave in on us fellows ? ’ He says: ‘ No,-it, no; that is as firm as masonry. That is as strong as stone.--that is perfectly safe.--it, I was up and around there. That is perfectly safe. I want the sand over, Brown.’ And I lifted the shovel and was shoveling the sand, and Mr. Brennan comes towards me, and I says: ‘ Mr. Brennan, did you expect two men to do five men’s work?’ And he says, ‘--you, Brown, I don’t want any back talk.--, I want the sand over. I don’t want any back talk at all. You will be the next one to get out of here. I will fire you.’ I was working then, I was shoveling sand, and I didn’t talk back any more. He was still digging in from the same place, and filling up his wheelbarrow. The other man was doing this. Brennan ordered him over. He swore at him, and told him to come over where the sand was plentiful. I started to dig there. I was digging only a few seconds after he told me about this being safe. I was shoveling the sand into the wheelbarrow. Brennan had shoveled about two-thirds of the wheelbarrow full, and I shoveled probably three, four, five, or probably six shovelfuls of sand after that. . My colaborer was still digging at the sand from the same place and throwing it into bisown wheelbarrow. After I got through, I turned right around like this, and I catched the handles of the wheelbarrow and lifted it up to run away with it, and the crash came right down on me. The frozen sand came down from this overhead, hanging over. This hung over probably three or four or five feet.”

The trial judge directed a verdict for the defendants upon the ground that plaintiff assumed the risk, and plaintiff brings the record to this court for review upon writ of error.

We think that the case is distinguishable from Toomey v. Steel Works, 89 Mich. 249, Livingstone v. Plate Glass Co., 146 Mich. 236, and other Michigan cases cited by counsel for defendants, in that in the case at bar defendants’ vice principal vehemently and with oaths ordered plaintiff to do the work, on pain of losing his job, and at the same time informed him substantially that he had been up on top of the sand pile and tested its safety, and that it was actually safe. This is more than the mere expression of an opinion or than a statement apparently based upon facts equally open to plaintiff’s visual observation. It was a representation that the superintendent had actually gone upon the sand pile, tested it, and found as a matter of fact that it was safe. We do not think it can be said, as a matter of law, that the plaintiff " assumed the risk, under such circumstances, in obeying the orders for a reasonable time. Throughout the trial of the case, Mr. Brennan was apparently treated as defendants’ superintendent and representative. And no claim appears to have been made that he was a fellow-servant of plaintiff. The trial judge charged the jury:

That, for the purpose of this case, Mr. Brennan stood, upon that day, toward the plaintiff in the position of the plaintiff’s employer. He had the power to hire and discharge men and give directions, and was in control over them, so that whatever Mr. Brennan did upon that day may be taken to be the act of the defendants themselves.”

The correctness of the charge in this respect is not called in question by counsel for defendants, and in my opinion the record supports it. Plaintiff testified:

{‘ There were five of us wheeling sand, all to the same place, under the direction of Superintendent Brennan. Superintendent Brennan had charge of the cement work on the overhead crossing, the piers, and abutments and parapet walls that were put up out of concrete. * * * Mr. Brennan hired me and he paid me. * * * Mr. Brennan had charge of the carpenters, and he directed them.”

Mr. Brennan testified:

‘ ‘ I don’t know that Brown claims that it was through my carelessness and negligence as superintendent of Lennane that he was injured. I don’t think so. I had charge of 400 or 500 men. * * * The work was in two separate sections. I had charge of the concrete construction work, and Mr. Walker had charge of the grade work, and, when I would want to borrow a few men, 1 would take them from his gang, and, if he wanted to borrow a few men, he would take them from my gang, and the men appear on both books. Sometimes they might appear on this for 45 hours or on Mr. Walker’s for the balance of the date, according to how we kept them, but the majority of these men were with me from the day I commenced the work till I ended it. I ended it some time in June, if I am not mistaken. I went to Des Moines, Iowa, to take charge of a construction job there. I haven’t seen any of these men since I left. I hired these men and Mr. W alker hired them. If I borrowed men from Mr. Walker, I had the men for the concreting. I had the men for the cement construction. They left it entirely to me, and sometimes they would come around and say, ‘ I want you to discharge a man,’ and I had to go under their supervision.”

Judgment reversed, and new trial granted.

Montgomery, Moore, and McAlvay. JJ., concurred with Blair, J.

Hooker, J.

(dissenting). This case should be ruled by that of Livingstone v. Plate Glass Co., unless the fact that defendants’ superintendent commanded plaintiff to go into a place of danger, and assured him of its safety, distinguishes it from that case in principle. The plaintiff in the present case was a man 46 years old and of experience in mechanics. As was said in the Livingstone Case:

He must be held chargeable with the knowledge that a sand pile lying out of doors was frozen, and that digging into such pile would remove the support from the frozen crust. ”

He did know it and objected to working under it for that reason; but the superintendent told him it was safe and ordered him to get at work, and he did so. There is nothing to indicate that he did not know as much about the danger after as before. See Welch v. Brainard, 108 Mich. 38; Ritzema v. Brick Co., 152 Mich. 75. In such a case one assumes the risk of the dangerous employment which he undertakes. Anderson v. Lumber Co., 47 Minn. 128; Kean v. Rolling Mills, 66 Mich. 277; Soderstrom v. Lumber Co., 114 Mich. 83; Rohrabacher v. Woodard, 124 Mich. 125. These cases hold:

“One cannot continue to operate a machine which he knows to be d'angerous simply upon the assurance of his employer that it is not, if he has just as much knowledge of the danger * * * as his principal has.”

See, also, Reese v. Clark, 146 Pa. 465; Perschke v. Hencken, 44 N. Y. Supp. 265; Linch v. Manufacturing Co., 143 Mass. 206; Kinzel v. Railway Co., 137 Fed. 491, 70 C. C. A. 73 (69 L. R. A. 757); Chicago Great Western R. Co. v. Crotty, 141 Fed. 913, 73 C. C. A. 147 (4 L. R. A. [N. S.] 832).

There is another reason for affirming this judgment. A right to recover was and is claimed upon the theory that Brennan was the vice principal or alter ego of the defendants. There is nothing in the case tending to show it. The testimony of plaintiff was that:

“ There were five of us wheeling sand, all to the same place, under the direction of Superintendent Brennan. Superintendent Brennan had charge of the cement work on the overhead crossing, the piers and abutments, and parapet walls that were put up out of concrete. That was made up partially of this sand and crushed stone and cement and water. Mr. Brennan hired me and paid me. * * * Brennan had shoveled about two-thirds of the wheelbarrow full, and I shoveled probably three, four, five, or probably six shovelfuls of sand after that. * * * I don’t know where Mr. Brennan was when this happened, probably on the street. I know Mr. Walker and have known him for probably 16 or 18 years. He was working for Lennane Bros., too. Taking his word for it, he was manager.”

Brennan testified:

“I was employed by Lennane Bros, in 1903 and in 1904 building the Michigan avenue subway, track elevation, where they were separating the grade of Michigan avenue and another street, Park and Lovett.”

Duncan testified:

** I had been working for Lennane Bros, before Mr. Brown. At that job that he went down to see Mr. W alker, and he introduced him to Mr. Brennan, the superintendent, and Mr. Brennan gave us a job dumping it in the mixer, not wheeling it. * * -* Mr. Walker went and got an ambulance. I did not go in the ambulance. * * * I was there when they took him out to the ambulance. I helped to fetch him, when Dr. Milligan was there. Mr. Walker sent me after Dr. Milligan. Mr. Walker was working for Lennane. When Mr. Walker came down there when Mr. Brown was carried in was when he told me. This was at Brown’s house. He told me to go and get the physician. I went over to the drug store to see if I could find out where he was. He was not home in the office, and I came back and told Mr. Walker that I could not find him. He was out, and he was down about the middle of the block on Congress street with a horse and buggy, and we happened to strike him, and then we called him in, or Mr. Walker did. Mr. Walker knew him, and went down. Mr. Walker brought Dr. Milligan. * * * I knew Mr. Walker had sent for Dr. Milligan to come and see him, and I followed his instructions. * * * Brown was hired just about the same time I was. Mr. Brennan told us to come to work the next morning. * * * We went up there to Lennane Bros, together to get a job. We saw Mr. Walker first. Mr. Brown had known Mr. Walker. He had worked for him. Brown is a stonecutter. I am a stonecutter. We had worked in the same stone yard. Mr. Walker introduced us to Mr. Brennan. We were glad to get anything we could. He put us on the platform. * * * Mr. Walker went in the ambulance, but I went ahead of him to notify the sister. Mr. Walker told me to go and notify his sister.”

The plaintiff testified further:

“I worked for Walker. I have worked on two streets in this city for Walker.”

From the foregoing, which is all of the testimony that we have found upon the subject, it is inferable that defendants had a contract for erecting overhead crossings in Detroit, that Walker was their manager, and that Brennan was the superintendent of the construction of the cement piers. Nothing indicates that he had general charge of defendants’ work or that he was more than a construction boss, and, if so, he was a fellow-servant under the rule laid down in many cases. Guest v. Illuminating Co., 150 Mich. 438; Younggren v. I. Stephenson Co., 150 Mich. 488; Corey v. Iron Co., 151 Mich. 558, where the authorities are collected. If it can be said that the testimony shows that Brennan was called a superintendent, it does not follow that he was a vice principal, and the jury should not have been allowed to so find upon this record. It would, at most, have been a guess. The burden of proving that he was a vice principal was upon the plaintiff, and he failed to prove it; the evidence being equally if not more consistent with the claim that he was a fellow-servant.

The judgment should be affirmed.

Grant, O. J., and' Ostrander, J., concurred with Hooker, J.


author: Grant, C. J. Ostrander, J.

text:
    KNIGHTS OF THE MODERN MACCABEES v. COMMISSIONER OF INSURANCE.

    • Insurance — Beneficial Associations —Exemption from General Law.
    Act No. 180, Pub. Acts 1907, providing in effect that every policy of insurance issued in this State shall contain the entire contract, has no application to policies issued by fraternal beneficiary associations, organized under Act No. 119, Pub. Acts 1893, which are exempt, by the terms of that act, from the operation of the general insurance laws of the State. Grant, C. J., and Hooker and Moore, JJ., dissenting.
    Mandamus by the Knights of the Modern Maccabees and others to compel James Y. Barry, commissioner of insurance, to vacate an order requiring relators to comply with the provisions of Act No. 180, Pub. Acts 1907.
    Submitted March 17, 1908;
    reargued October 6, 1908.
    (Calendar No. 22,743.)
    Writ granted November 30, 1908.

      J. B. Mcllwain and Edward Cahill, for relators.

      John E. Bird,, Attorney General, and Arthur P. Hicks, Assistant Attorney General, for respondent.

      This case was withheld from publication pending the motion for a rehearing in Brown v. Lennane, ante, 686.

   Grant, C. J.

Relators are incorporated and doing business under the provisions of chapter 212, 2 Comp. Laws, being Act No. 119, Pub. Acts 1893, as amended. Section 1 of that act provides:

“Such associations shall be governed by this act and shall be exempt from the provisions of the insurance laws of the State, except as provided by this act.”

In 1907 the legislature passed the following act:

“Section 1. Every policy of insurance issued or delivered within this State on or after the first day of January, nineteen hundred eight, by any life insurance corporation doing business within the State shall contain the entire contract between the parties. And nothing shall be incorporated therein by reference to any constitution, by-laws, rules, application or other writing unless the same are indorsed upon or attached to the policy when issued.
“Sec. 2. All acts and parts of acts inconsistent with the provisions of this act are hereby repealed.” Act No. 180, Pub. Acts 1907.

The respondent ordered relators to comply with that act. This is an application for the writ of mandamus to compel him to vacate that order. Relators contend that the legislature, in passing Act No. 180, did not intend that it should be applicable to these fraternal associations who were doing an insurance business.

The learned counsel argue:

“The presumption is that the legislature had in mind all prior laws in passing said act, and the construction put upon them by the Supreme Court, and therefore had ip mind the exemption of such association from the general insurance laws.”

They also argue the great inconvenience that would result to the relators if that statute is made applicable to them. We do not attach much force to this argument. We think it no more difficult for one of these fraternal and benefit associations to make a clear and complete contract of insurance than it is for any other company. It is not necessary to attach to such a contract all its by-laws, rules, regulations, etc. If such an insurer desires to reserve authority to change the annual premiums or times of payment, or other provision, it can so state in its policy, and provide that, when such change is made, notice thereof shall be served upon the insured. Those fraternal organizations which do an insurance business come within the definition of life insurance corporations. Rensenhouse v. Seeley, 72 Mich. 603; Citizens’ Life Ins. Co. v. Commissioner of Insurance, 128 Mich. 85; 1 Bacon on Benefit Societies & Life Insurance (3d Ed.), § 52; Lake v. Relief Ass’n, 61 Minn. 96.

It is immaterial whether the paper documents they issue be called certificates or policies. They are in fact policies of insurance, within the common understanding of that word. There is probably more necessity for the application of such a law to so-called “fraternal insurance policies” than to what are called -“old-line policies.” In the mutual and stock companies the policy usually forms the contract between the company and the insured, and comprises the entire contract. The learned counsel for petitioners does not cite a single case from the books which shows a reason for such a law to be applicable to those companies. Their policies do not refer to their constitution, charter, by-laws, rules, or other writing. The entire contract between the insurer and the insured appears upon the face of the policy. I am unable to find any reason for the enactment of this law other than that found in the numerous cases that have arisen over the insurance contracts of these fraternal and benefit associations. They alone, in my judgment, show a necessity for an insurance contract which will not compel the insured to hunt through the constitution, by-laws, rules, and regulations of his company in order to know what his contract is.' The decisions of the courts show the many misunderstandings that arise out of fraternal insurance policies, when the conditions are not contained in the policy or the certificate. But whether this be so or not, courts cannot read into a statute an exception which contradicts its very language. The language of this act is:

“Every policy of insurance, * * * by any life-insurance corporation * * * shall contain the entire contract.”

The language following is language naturally applicable to these fraternal organizations, namely, “ constitution, by-laws, rules, application or other writing.” Of course a general law may operate to repeal a special act. 1 Lewis’ Sutherland on Statutory Construction (2d Ed.), § 276; McCormick v. People, 139 Ill. 499. The act under which relators are organized does not refer to future laws, but to the general insurance laws then in force. We cannot infer that the legislature intended to exempt these fraternal organizations from any future general law which the legislature might see fit to enact. Had this been their intent, appropriate words should have been used for that purpose, as was done in the statute involved in Modern Order of Prœtorians v. Hollmig, 100 Tex. 623. The statute in that case exempted the association “from the provisions of the insurance laws of this State, and no law hereafter passed shall apply to them unless they be expressly designated.”

The writ should be denied.

Hooker and Moore, JJ., concurred with Grant, C. J.

Ostrander, J.

The act of 1907 (Act No. 180, Pub. Acts 1907) in question here is entitled:

“An act relating to the provisions of life insurance policies.”

Relators are organized under the provisions of Act No. 119, Pub. Acts 1893, which is entitled:

“An act to define what shall constitute fraternal beneficiary societies, orders or associations; to provide for their incorporation and the regulation of their business. ” »í»

It is one of the provisions of this statute (section 1):

“Such associations shall be governed by this act and shall be exempt from the provisions of the insurance laws of this State, except as provided by this act.”

Another provision (section 19) is:

“Nothing in this act shall be construed to apply to any corporation, society or association carrying on the business of life, health, casualty or accident insurance for profit or gain, and shall only apply to fraternal beneficiary societies, orders or associations as defined by section one.”

Since 1893 various amendments have been made to this act, and various amendments have been made to the act governing life insurance companies and affecting the life insurance business, but always under appropriate titles. When fraternal societies have been affected by legislation, they have been mentioned. The situation which legislation has created leads, not to an inference merely, but to a conviction, that if it had been intended that the act of 1907 should apply to fraternal organizations, they would have been mentioned in the act. This court has had occasion to mark the distinction. Monger v. New Era Ass’n, 145 Mich. 683. And so long as the contracts between members of such associations and the association may from time to time be varied by changes in the laws of the association, made by a representative lawmaking body (Wineland v. Maccabees of the World, 148 Mich. 608), such an act serves no useful, certainly not the apparent, purpose if applied to associations like the relators. I conclude that, so far from being obliged to read into the act terms contradictory of the language employed therein, we must add to both its title and body, in order to say that it was intended to apply to associations like the relators. I base the conclusion, not upon any want of power in the legislature to amend the fraternal society act by general legislation, but upon the evident differentiation between life insurance companies and life insurance policies and fraternal societies and the business they are permitted to do, which the legislature itself has made.

The writ should issue.

Blair, Montgomery, and McAlvay, JJ., concurred with Ostrander, J.