text:
    BOARD OF AUDITORS OF WAYNE CO. v. REYNOLDS.

    1. County Clerk — Salary—Fees—Marriage Licenses.
    Act No. 425, Local Acts 1895, fixing a salary, in lieu of all other compensation, for the clerk of Wayne county, and providing that all fees received by him shall go to the county, entitles the county to fees paid the clerk under Act No. 243, Pub. Acts 1895, for issuing licenses to marry, although the public act was approved after the local act went into effect; the provision of the later act respecting license fees being a re-enactment merely of a like provision in effect when the local act was passed.
    2. Same — Constitutional Limitations. '
    The exclusive power conferred upon the board of auditors of Wayne county by article 10, § 10, of the Constitution, providing that such board shall have the “ exclusive power” to fix the compensation for all services rendered the county, relates to services rendered for the county exclusively, and does not preclude the legislature from prescribing the salary of a county officer, — as the clerk, — in the proper performance of whose duties the people of the entire State are interested.
    3. Same — Notarial Fees.
    A county clerk, who is allowed by the marriage-license law to charge, as clerk, for his services in issuing marriage licenses, only 50 cents in each case, is obliged to pay over to the county no more, under a special statute fixing his salary, and providing that all fees collectible by him shall belong to the county, though further amounts collected as fees for a' notary public, who was a clerk in the office, and before whom applications for the licenses were made, were turned over to him.

      Certiorari to Wayne; Hosmer, J.
    Submitted March 28, 1899.
    Decided September 12, 1899.

      Mandamus by the board of auditors of Wayne county to compel Henry M. Reynolds, county clerk, to turn over to the county certain fees. From an order granting the writ, respondent brings certiorari.

    Modified.

      Allan H. Frazer, Prosecuting Attorney, and Ormond F. Hunt, Assistant Prosecuting Attorney, for relator.

      Jasper G. Gates, for respondent.

       Rehearing denied October 7, 1899.

   Moore, J.

The relator petitioned the circuit court for the county of Wayne for a writ of mandamus to compel the respondent to pay over to the county certain fees he had received upon the issuing of marriage licenses. The court below directed the writ to issue as prayed. The case is brought here by writ of certiorari to review the action of the circuit judge.

It is claimed respondent is not, as county clerk, entitled to any fees, but is entitled only to his salary. This contention is based on the provisions of Act No. 425, Local Acts 1895, which, so far as they are applicable here, are as follows:

“Section 1. The People of the State of Michigan enact, That the county clerk * * * of the county of Wayne shall receive a salary of three thousand five hundred dollars per annum; and that the said salary of said county clerk shall be full payment for services performed by said officer for said county, or for the patrons of (his) respective office, and shall be in lieu of all fees, commissions, or perquisites payable to said officer under the laws of this State for the performance and discharge of any duties required by (his) respective office, or any office the duties of which (he) exercises by virtue thereof, and in lieu of all fees or commissions collectible by said officer for the performance of the respective duties of (his) said office where the said fees are not fixed by law; and that said officer shall receive no other or further compensation for the duties imposed upon (him), but all fees or commissions made payable to or that may be charged by (him) by virtue of said office shall be received by and on account of said county.”
“Sec. 3. The said county clerk * * * of Wayne county shall receive or collect no other compensation, except the salary above provided, for the performance or discharge of any of the duties of (his) respective office, but (he) shall pay the fees, commissions, or charges provided by law to be paid, or that (he) may fix or charge, for the performance or discharge of such duties, or any duties, in (his) said office, to the county treasurer, on the last Saturday of every month, and the same shall be for the use of said county, and placed to the credit of the general fund.”

Act No. 243, Pub. Acts 1895, was approved 11 days later than the act fixing the salary of the county clerk. It is claimed the later act imposed additional duties upon the county clerks in relation to issuing licenses, and provided that for his services the clerk should be entitled to 50 cents for each license issued, and that the local act would not limit the public act, so as to prevent its taking effect in Wayne county as well as in all the other counties of the State; citing Roulo v. Board of Auditors of Wayne Co., 74 Mich. 129. The provisions of the marriage-license law in relation to the fees to be paid the clerk were not changed by Act No. 243. In that respect the law remained as it was when Local Act No. 425 was passed, and .the case of Roulo v. Board of Auditors of Wayne Co., supra, does not apply.

It is claimed the legislature could not fix the salary of the county clerk, and that this act is unconstitutional, so far as it attempts to fix the salaries of the county officers of Wayne county. Section 10 of article 10 of our Constitution is as follows:

“The board of supervisors, or in the county of Wayne the board of county auditors, shall have the exclusive power to prescribe and fix the compensation for all services rendered for, and to adjust all claims against, their respective counties; and the sum so fixed or defined shall be subject to no appeal.”

It is said that to sustain the validity of this act would be to imperil that system of local self-government which is one of the most important features of our Constitution. It is asserted that the board of auditors, and they alone, can fix the salary and fees of the county clerk in Wayne county. Does section 10, art. 10, of the Constitution, give them the right to the exclusion of any legislation upon that subject? If it does, the legislature is powerless to legislate upon the subject. The legislature has evidently not so understood it. Section 577, 1 How. Stat., provides where the county clerks shall keep their offices, and that the clerk—

“Shall receive for all- services rendered the county in criminal cases, and as clerk of the circuit court, and for his services as clerk of the board of supervisors and as clerk of the board of county and district canvassers, such salary as the board of supervisors may fix; for his services in civil cases and other matters, such fees and compensation as shall be provided by law. ”

Section 9006, 2 How. Stat., provides what his fees shall be in the circuit court.

I do not think it has before been asserted that the legislature might not provide how the clerk should be compensated, but must depend upon the board of auditors for the amount and manner of his compensation. For nearly a quarter of'a century the county officials of Wayne county have been paid salaries, as provided by various acts of the legislature. The fact that the fees in dispute in this cause are in the hands of the respondent is due to the further fact that the legislature, and not the board of auditors, authorized him to collect them. The contention of the respondent proves too much. If he is entitled to only such compensation as the board of auditors may allow, then he is not entitled to these fees, because-they came to his hands only by virtue of an act of the legislature. The “exclusive power” conferred upon the board of supervisors and the board of county auditors by section 10, art. 10, of the Constitution, relates to services rendered for the county exclusively, except when the fees for the services rendered are, as in criminal cases, provided by a statute. The services rendered by the county clerk do not relate exclusively to matters in which the county only is interested. The great bulk of his services relate to the administration of the law, criminal as well as civil, through the medium of the courts. The,marriage-license law was called into being in the belief that society generally would be benefited by its enactment and observance. By the terms of the act the county clerk is .required at stated intervals to report to the secretary of state all licenses and certificates issued and received by him. The people of the State as well as Wayne county have an interest in much of the service performed by the county clerk of Wayne county. People v. Board of Auditors of Wayne Co., 13 Mich. 233; Attorney General, ex rel. Moreland, v. Common Council of Detroit, 112 Mich. 145 (37 L. R. A. 211). In such cases it is entirely competent for the legislature to provide how compensation shall be made for the service. In such cases, when it is made to appear to the board of supervisors of the board of county auditors that the services have actually been rendered, and that the fees charged are in accordance with the fees established by law for such services, they cannot reject the claim, but must allow it. People v. Supervisors of Macomb Co., 3 Mich. 475; People v. Board of Auditors of Wayne Co., supra; People v. Gies, 25 Mich. 83. The legislature, then, having the power to fix the amount and manner of the compensation of county clerks, we think it was entirely competent by a local act to prescribe the compensation of the clerk, and that he should be compensated by a fixed salary, which should be in lieu of all other compensation. People v. Supervisors of Calhoun Co., 36 Mich. 10.

It appears by the record that 304 marriage licenses were issued by the respondent, for which he received $152. In 300 of the licenses, applications for the license were made before a clerk in the office, who was a notary public. He was paid $150, which came to the -hands of the respondent, in addition to the $152 which was paid him for license fees. In the court below, the respondent was required to pay over the $150 as well as the $152. The county clerk is allowed by the marriage-license law to charge, as clerk, for his services in issuing the marriage licenses, but 50 cents in each case. It is the fees or commissions collectible by him in the discharge of the duties of his office that he is required by the local act which fixes his salary'to pay over, and upon which the county has a claim. We do not think the county is entitled to the fees collected by the notary public, and paid to the respondent. The order made in the court below must be modified in that respect, and affirmed in all other respects.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    SMITH v. DETROIT LOAN & BUILDING ASSOCIATION.
    Land Contract — 1Tenancy—Evidence.
    Upon a review of the evidence, held, that a certain arrangement, entered into after complainant had defaulted in payments under a land contract, and judgment of ouster had been rendered against her, whereby complainant was to remain in possession of the premises, paying to defendant a specified amount monthly, contemplated the relation of landlord and tenant, and not a renewal of that of vendor and purchaser.
    Appeal from Wayne; Smith (George W.), J., presiding.
    Submitted April 20, 1899.
    Decided September 12, 1899.
    Bill by Minnie Smith against the Detroit Loan & Building Association for specific performance of contract. From a decree for complainant, defendant appeals.
    Reversed.

      Jay Fuller, for complainant.

      Levi J. Fiek and Robert Young, for defendant.
   Long, J.

This bill was filed for an accounting, and to compel the specific performance of a land contract, as well as to set aside a judgment for restitution of the premises mentioned in the contract. The court below stated the account between the parties in the decree, and also by it set aside the judgment, and ordered the specific performance of the contract.

It appears that in March, 1890, complainant purchased of defendant, on contract, the premises described, for the sum of $1,675. In the following October or November complainant went into possession, and remained in possession until March 30, 1896, when the defendant, through its agent, took possession during the absence of the complainant, and refused further to recognize her rights in the premises, claiming that she had forfeited them in the contract, and that thereafter she had become a tenant of the defendant, and failed to pay rent therefor. Complainant’s claim is that she continued to make payments on the contract from time to time until August, 1895, when defendant took proceedings before a circuit court commissioner, and judgment of restitution was rendered against her, but no writ was ever issued thereon; that on November 1, 1895, she entered into a new arrangement, whereby she was to pay the balance of the consideration named in the contract at the rate» of $10 per month, to be applied on principal and interest, until April 1, 1896, after which time she was to pay $20 per month until the amount due on the contract was fully paid; that these payments were made as agreed up to February, 1896; that in the meantime complainant had put water upon the premises at a cost of $25; that on February 21st she went to the office of the defendant with sufficient money to pay the entire amount due on the contract, but that the amount was not ^ paid because the correct figures could not be given her; that, notwithstanding the judgment of restitution, complainant and defendant both treated the contract as existing; that she made her said payments with that understanding and agreement, and continued to make payments until the defendant forcibly took possession, and denied her rights therein.

The defendant contends that the arrangement made in November, 1895, was for the renting of the premises to complainant at $10 per month, and that no such'agreement as she now claims was ever made. It appears that between October, 1892, and November, 189.5, complainant had paid $83 upon the interest on her contract. The interest for that time amounted to $315, and defendant had paid the taxes and insurance, amounting up to that time to $203.70; so that complainant was in arrears on the contract on November 1, 1895, in the sum of $435.70 for interest, taxes, and insurance, besides the principal of $1,500, when she had been in possession for more than five years. Defendant claims that a notice of forfeiture had been served upon her July 12, 1895, and in August the judgment of ouster had been taken, with no appeal from the judgment.

We are satisfied from the circumstances of the case and the testimony given on behalf of the defendant that no such arrangement as complainant claims was ever made, but that the arrangement was one by which the complainant became the tenant of the defendant at $10 per month. The conduct of all the parties is in keeping with this theory, and not with the theory of a new contract of sale, which would set aside the judgment of ouster, and still allow the complainant years in which to make her payments.

The decree of the court below must be reversed, and a decree entered here in favor of defendant, with costs of both courts.

The other Justices concurred.


author: Per Curiam.

text:
    DAVIDSON v. FOX.
    Attachment — Service and Return.
    Case ruled by Davidson v. Fox, 120 Mich. 385.
    Error to Wayne; Carpenter, J.
    Submitted April 20, 1899.
    Decided September 12, 1899.
    Trover by Alexander Davidson against David W. Fox, the Detroit Journal Company, Fred H. Lutz, and William W. Watson. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      George W. Bates, for appellant.

      Bacon & Palmer, for appellee Watson.

      A. Ward Gopley (Gutcheon & Stellwagen, of counsel ), for other appellees.
   Per Curiam.

The questions raised in this case are disposed of in the case of Davidson v. Fox, 130 Mich. 885.

The judgment must be affirmed.


author: Moore, J.

text:
    LUTZ v. DAVIDSON CYCLE CO.
    Attachment — Service and Return.
    Case ruled by Davidson v. Fox, 120 Mich. 385.
    Error to Wayne; Carpenter, J.
    Submitted April 20, 1899.
    Decided September 12, 1899.
    Attachment proceedings by Fred H. Lutz against the Davidson Cycle Company. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      George W. Bates, for appellant.

      A. Ward Copley (Cuteheon & Stellwagen, of counsel), for appellee.
   Moore, J.

This case was commenced by attachment in justice’s court. Defendant appeared specially, and moved. to dismiss the case because of defective service of the writ. Its motion was granted. The case was removed by a general appeal to the circuit court by the plaintiff. In the circuit court the defendant renewed the motion made in justice’s court, which motiomwas overruled, and judgment rendered in favor of plaintiff. The case is brought here by defendant, which insists its motion should prevail for the following reasons:

1. That the return of service in this case is defective, because the writ was prematurely served, and there is no showing that any effort was afterwards made to find the last place of residence of the defendant, or of inability to find the defendant or its last place of residence.
2. That, the Davidson Cycle company being a foreign corporation, but doing business in this State, the writ should have been served upon the agent within this State, or the jurisdiction will be lost.

The opinion in the case of Davidson v. Fox, 120 Mich. 385, quotes this return, and establishes its validity. That case controls this one. For that reason it is not necessary to write any further opinion in this case.

Judgment is affirmed.

The other Justices concurred.


text:
    HOLLAND v. HOLLAND.
    1. Fraudulent Conveyances — Husband and Wife — Deed to ' Defeat Alimony.
    Where a husband, immediately before instituting divorce proceedings, to avoid paying alimony, conveys his property to his mother without any money consideration, procuring by false representations the wife’s signature to the deed, the wife, on securing a decree on her cross-bill, may have the deed set aside as fraudulent, under 2 How. Stat. § 6203, providing that conveyances made with intent to hinder, delay, or defraud creditors or ‘' other persons ” of their lawful suits, damages, forfeitures, debts, or demands, shall, as to the persons, so hindered, delayed, or defrauded, be void.
    2. Probate Courts — Disallowance of Will — Collateral Attack.
    Where persons go into probate court, and, on evidence introduced, procure an adjudication that a will is void, and have it disallowed, they cannot collaterally attack such judgment.
    Appeal from St. Clair; Vance, J.
    Submitted May 10, 1899.
    Decided September 12, 1899.
    Bill by Ida Holland against Lavina Holland and others to set aside a deed. From a decree for complainant, defendants appeal.
    Affirmed.

      William Baird, C. A. Hovey, and A. E. Chadwick, for complainant.

      Avery Bros. & Walsh (Phillips & Jenks, of counsel), for defendants.
   Long, J.

This cause was heard in the St. Clair circuit court, in chancery. The.bill was filed to set aside a deed of certain real estate, so that a claim for alimony might be collected by complainant out of the interest of her husband in said lands, in a divorce proceeding in which complainant had procured a decree of divorce against her husband, Henry Holland. The court filed a written opinion in the case, setting out the facts found by him from the evidence, and in which he determined that the deed should be set aside. The facts as found are as follows:

“Ida Holland and Henry Holland were married in 1889, and have two children. Henry Holland was the son of Robert Holland, who died in 1893, leaving his widow, Lavina Holland, a daughter, Mary L. Cottrell, a son, Henry Holland, a son, Charles Holland, all of full age, and a daughter, Etta Holland, and a son, Robert Holland, who were minors. Etta Holland has since attained her majority, and Robert is still a minor.
“Robert Holland, Sr., who died in 1893, left what purported to be a last will and testament. In terms, this will made provision for his wife and for all his children; the allowance to Henry Holland, the defendant in this case, being about $200. .His estate was worth in the neighborhood of $100,000. Robert Holland, in his lifetime, and especially later years of his life, was not pleased with the conduct of his son Henry, and this was known to Henry and the other heirs. When the will was read, shortly after his death, it was discovered for the first time that he had left only about $200 to Henry. Henry was displeased with this allowance, and the widow was dissatisfied with the allowance to her.' Henry threatened to contest the will, and the heirs came to Port Huron at the day set for the hearing and probating of the will, and while at Port Huron had a conference looking towards an adjustment of their differences. They finally agreed verbally that the will should be disallowed, allowing Henry to take his share of the estate with the rest of the children,- but with the understanding and agreement on the part of Henry that he should, by a conveyance in which his wife should join, convey whatever interest he should thus acquire in the estate to his mother. The understanding between the parties at that time was that the mother should take this share which would come to Henry under the statute, and, while not bound strictly to give him any particular portion at any particular time, it was the understanding of the parties to that arrangement that it was a conveyance to the mother with the expectation that it would be used for Henry’s benefit. The minor children, Etta and Robert, were not represented in that arrangement, excepting through their mother; she not yet having been appointed guardian, but was appointed their guardian on the same day, after the will was disallowed. With this understanding they went before the probate court, and witnesses were sworn, and the probate court entered an order disallowing the will. . This was in April, 1893, and this order of the probate court has never been appealed from. No conveyance was made by Henry or his wife at that time, but from time to time his mother and his brother Charles spoke to him about making this conveyance, but he did not do it.
“In the summer of 1895 he was sailing, and on his return home learned of what he claimed was a grievance against his wife, justifying, as he thought, a divorce. He came to Fort Huron to consult an attorney (the same attorney who had advised in the disallowance of the will) concerning his divorce on December 27, 1895, and in the consultation the attorney discovered that he had not yet made this deed to his mother, and he was advised then to do it at once; and the attorney drew up the deed, and Henry took it to Marine City, where he lived, gave it to his brother Charles, with instructions to take it to one Saph, a notary public, and have Saph go to his house that evening and have it executed. In all the arrangements up to this time, Ida Holland, the complainant,, did not know of the arrangement between the heirs that Henry was to convey to his mother his interest in the estate as a condition of the disallowance of the will. At the time that Henry returned after the making of the deed, or just before coming to Port Huron to consult his attorney, where he had the deed drawn, he represented to his wife that he was having difficulty with the other heirs, especially with his brother Charles, who he thought would beat him out of his interest in the estate, and said he could sell his interest to his mother for $7,000, and procured his wife’s consent to such a sale. When the notary appeared there with the deed, it was not read to her, but she signed it, supposing and believing that it was to carry out the arrangement which Henry had represented to her; and in view of that fact she signed and executed the deed, which bears date December 27, 1895, and is recorded December 28, 1895, in Liber 121, page 530, in the register of deeds’ office in St. Clair county, and purports to convey all the interest, real and personal, that Henry Holland had in the estate of his father, deceased. At this time he did not make known to his wife that he had learned anything detrimental to her conduct, or that he contemplated or was considering the fact of a divorce, but, on the other hand, induced her to believe that they would move to Toledo, and start a clothing store there with the money which he was to receive from his mother for his interest in the estate.
“Shortly afterwards, in January, 1896, he filed his bill for divorce, and the complainant, Ida Holland, filed an answer and cross-bill, claiming affirmative relief on the ground of cruelty. When the divorce case came to a final hearing on pleadings and proofs in open court, a decree was entered on the 30th of January, 1897, dismissing the complainant’s bill, and giving the defendant in that suit, who is the complainant in this, a decree for divorce on the ground of cruelty, and this decree has not been appealed from. A determination was reached that Ida Holland, the present complainant, was entitled to alimony; and the matter was referred to a circuit court commissioner to take testimony as to the value of the property or interest which Henry Holland had, with the view to ascertaining the proper amount which he should be required to pay as alimony to his wife, and for the support and education of his children. The bill in this cause was then filed to set aside the deed from Henry and his wife to his mother, Lavina Holland, above referred to, and dated December 27, 1895, so that in the final hearing on the question of alimony the court would be advised and know what property Henry Holland had, from which and out of which alimony should be allowed.
“At the time .this deed was executed, on the 27th day of December, 1895, the complainant, Ida Holland, was confined to the house, and most of the time to her bed, as the result of childbirth on December 17th previous.
“Robert Holland, deceased, owned, and since his death the estate owns, the place where Henry and Ida Holland lived at the time the deed to the mother was made and the divorce proceedings started. While Henry may have assisted somewhat in repairing the house, the title to the property remained in his father, and since his father’s death in his estate. He went there to live by permission of his father, and I am unable to see that there is any foundation for the claim that there is any homestead rights in that property belonging either to the complainant, Ida Holland, or to Henry Holland, or to both of them.
“No money consideration was paid to Henry Holland for that conveyance, nor did any money consideration pass from his mother to him, nor between any of the heirs of Robert Holland, deceased, directly or indirectly. It is my conclusion from all the circumstances and the conduct of the parties that Henry Holland did not intend to deed his interest in his father’s estate to his mother, as he orally promised to do when the will of his father was disallowed, and that his mother and brothers and sisters did not intend to compel or attempt to compel him to do so, and that the deed he made to his mother December 27, 1895, would not have been made but for the fact that he anticipated a divorce would be granted to him from his wife, and he by that means could put his property beyond the reach of his wife and the court in case alimony was awarded to her.”

The conclusions of law are as follows:

“By statute in this State, conveyances of an estate or interest in lands, or in goods or in things in action, etc., made with the intent to hinder, delay, or defraud creditors or other persons of their lawful suits, damages, forfeitures, debts, or demands, as against the persons so hindered, delayed, or defrauded, shall be void. 2 How. Stat. § 6203. It will be noticed that this statute is not limited to creditors, but extends to other persons, and is not-limited to debts, but extends to suits, damages, forfeitures, and demands. The cause for which complainant was granted a divorce was one existing prior to December 27, 1895, the date of the deed in question. It is my conclusion that when a wife has a cause for divorce, and her husband, to avoid paying alimony, conveys away his property, the conveyance is void, under this statute, as to her. While not in the strict letter a creditor, she comes within the term ‘other persons;’ and while not, strictly speaking, delayed in the collection of a debt, she is hindered, delayed, or defrauded out of her demands. Lott v. Kaiser, 61 Tex. 673; Feigley v. Feigley, 7 Md. 537 (61 Am. Dec. 375); Bouslough v. Bouslough, 68 Pa. St. 495, 500; Tyler v. Tyler, 126 Ill. 525 (9 Am. St. Rep. 642); 2 Bish. Mar. Div. & Sep. §§ 1103, 1104, and cases cited. This principle controls when the conveyance is made before the divorce proceedings are commenced, but in anticipation of them. Damon v. Damon, 28 Wis. 515; Green v. Adams, 59 Vt. 602 (59 Am. Rep. 761); Bailey v. Bailey, 61 Me. 361.
“The deed must be treated as if Mrs. Holland had not signed it, her signature having been obtained by fraud.
“I am also of the opinion that when the Hollands went into probate court, and, upon evidence introduced, procured an adjudication that the will was bad, and had it disallowed, they cannot now collaterally attack that judgment. The complainant cannot be estopped, because she was not a party to that arrangement. She became vested with a wife’s interest the moment the will was disallowed. She never agreed to convey it away, and has never knowingly done so. The mother and brothers and sisters allowed that title to stand in Henry up to December 27, 1895, and kept her in ignorance of a secret arrangement which, if carried out, would devest her husband of his entire property, and her of her dower rights and such other rights as grow out of the marriage relation. To allow this deed to stand would cut off all chance for dower, if under her decree of divorce she should be entitled to dower, and turn her out on the world, with her children, penniless, while the mother of her husband would have her husband’s share of his father’s estate without paying one cent for it, and holding it for Henry’s interest. I know of no rule of equity that will sustain such a proposition.
“The deed must be set aside, so far as complainant is concerned, ^and the interest conveyed by it subjected to any rights which complainant may have either for alimony or dower or both. Complainant should recover costs, including a solicitor’s fee of $30.”

■ We think the facts found by the court are supported by the evidence, and that the findings support the conclusions of law reached. We do not deem it necessary to discuss the case further than it has been discussed by the judge below.

The decree below must be affirmed.

The other Justices concurred.


text:
    BURNSIDE v. NOVELTY MANUFACTURING CO.
    1. Master and Servant — Defective Machinery — Inspection-Question for Jury.
    A pressman was injured by the falling of the upper die of the machine at which he was working. The die had fallen on several occasions, on some of which it had appeared from an examination of the mechanism, which was concealed within the machine, that the trouble was in the cutting of the clutch pin. After the accident, the machine was taken apart, and it was found that the clutch pin was cut. A defect in the pin could be ascertained only by taking the machine apart, an operation requiring from 30 to SO minutes. There was testimony showing that the pin might out in a short time, or it might take some time to cut. Held, that it was for the jury to say whether the pin was not gradually cutting, and whether proper inspection would not have prevented the injury.
    3. Same — Assumption of Risk — Relianoe on Superior.
    A pressman was relieved from any assumption of risk based upon knowledge that the machine at which he was set to work had continuously made trouble in the way which caused his injury, where the foreman, an expert familiar with the interior mechanism of the machine, who was expressly charged by the employer with the duty of inspecting and repairing it, assured him, in response to an inquiry, that there was no danger of further accident, and he went to work relying upon such assurance.
    Error to Jackson; Peck, J.
    Submitted May 9, 1899.
    Decided September 12, 1899.
    Case by Hugh Burnside against the Novelty Manufacturing Company for personal injuries. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.
    The following is the charge of the court below:
    “This, gentlemen, is an action of negligence. * * * I instruct you that it was the defendant’s duty to furnish the plaintiff with a suitable press with which to perform the work required of him, — a press reasonably well adapted to do the work which he was set to perform upon it. The evidence is undisputed in this case that the defendant did furnish a suitable press, and one well adapted to do the work which the plaintiff was set to perform with it. Therefore you will consider that the defendant performed its full duty in that regard, and is guilty of no negligence whatever in that respect. It was the defendant’s duty, also, to inspect the machine as often as was reasonably necessary, under the circumstances, to keep the machine in proper adjustment and in reasonable repair. This duty, the plaintiff contends here, was not performed by the defendant, and its failure to perform its duty in this regard constitutes the negligence which the plaintiff relies upon as the basis of his action. And I instruct you that there is no other negligence, if any existed, which could be relied upon by the plaintiff as the basis of his suit. Unless, therefore, negligence in one of the respects .which I have pointed out as being the proper basis of the plaintiff’s claim existed, and has been shown by a preponderance of the evidence, the defendant violated no duty which it owed to the plaintiff, and your verdict would be for the defendant.
    “Turning our attention now more particularly to the special claims of negligence made on behalf of the plaintiff, I instruct you, with reference to the subject of inspection, that it was the defendant’s duty to inspect the machine as often as was reasonably necessary, under the circumstances, to accomplish the purpose for which an inspection is made, viz., in a general way to ascertain whether the press was in proper condition of repair and adjustment, with a view to repairing it or properly adjusting it in case it should be found faulty in either of these respects, so that the machine might be put in proper and reasonable repair and safety. A less frequent inspection might be sufficient in the case of some machines, and under some circumstances, than would be required of other machines, or' under other conditions and circumstances. One machine, used for a certain purpose, and having only a moderate element of danger in its use, might, and probably would, require a less frequent inspection in order to satisfy the master’s duty-than would be required in the case of another machine, the use of which involved the operator or others in imminent and extreme peril. Now, in determining this question, you should consider the circumstances and conditions shown by the evidence to have existed here. Consider the machine, the danger necessarily involved in its use, its character, and what was to be done with it. In fact, you should consider all the circumstances which have been put before you in the evidence, and determine therefrom whether or not it has been shown, and by a preponderance of the evidence, that the defendant failed to inspect this machine as often and as fully as was its duty to do, under the circumstances. If, on- such an examination of the evidence, you find that the defendant was not guilty of negligence in making inspections of this machine, then the subject of inspection, and the defendant’s claimed fault for failing to make them, is out of the case, and you should so regard it.
    “On the other hand, if you find from the evidence that the defendant was negligent in this respect, then you should follow up that fact by examining the evidence,- and determining the next question, — whether that negligence resulted in the injury complained of. If you find that there was negligence in making the inspections, you should consider the defendant company bound by such knowledge as a proper and timely inspection would have disclosed; and if you find from the evidence that a proper and timely inspection would have revealed the fact that the press was not in reasonable repair, or out of adjustment, then I instruct you that the defendant’s duty would have required it to repair the machine, or put it in proper adjustment, before using it; and, if the defendant failed so to repair it, it failed to perform its duty in that regard, and such failure would constitute negligence. The plaintiff contends that the press in question was out of repair at' the time of the accident. I charge you that it was the defendant’s duty to keep the machine,in reasonable repair. The duty to repair attached to the defendant should have been performed by it as soon as the defendant had knowledge of a defective condition, or notice by inspection or otherwise that the machine needed repair or adjustment, and you should regard the duty of the defendant to begin its action of repair or adjustment as soon as it had knowledge or notice of the existence of the defective condition. But before the defendant would be liable for the defective condition, as for negligence, the defendant must have had knowledge of its existence, or have had notice, — that is, have been chargeable with knowledge. In other words, its duty to repair would not attach until it knew of a faulty condition in the machine, or, under the circumstances, as a reasonable man, ought to have known of it. I charge you -that the defendant was not bound to keep this machine in perfect adjustment or in perfect repair. It was bound to keep it in reasonable repair, under the circumstances. It is also true, as a matter of law, that a party who uses in its factory or shop a machine which is exceedingly or unusually dangerous to the operator or others is bound to increase his diligence in caring for it, so that what would be reasonable with reference to a comparatively innocent or harmless machine, in keeping it in repair so it could be operated, would not satisfy the duty of a party who used an unusually dangerous or hazardous machine; the rule being that, as the danger of the use of the machine to the operator or others increases, the duty of the proprietor or master to take care of it, and protect those who might be injured by it, also increases.
    “Now, gentlemen, I leave it for you to say, under the testimony in this case, whether the plaintiff has shown, and by a preponderance of evidence, that the defendant was negligent or failed to perform its duty in either one of the three respects: First, in failing to make frequent enough inspections; second, in failing to adjust the machine and keep it in proper adjustment; and, third, in failing to keep it in proper repair. If the plaintiff has failed to establish either of these propositions by a preponderance of the evidence, his action here must fail, whatever other conditions are found to be present, and your verdict will be for the defendant. On the other hand, if you are satisfied by a preponderance of the evidence that the defendant has failed to perform its duty in any one of these respects, you should regard such failure as negligent conduct, and next inquire whether or not that negligence, under the evidence in this case, produced the injury of which the plaintiff complains.
    “Negligence without injury amounts to nothing. No verdict can be based upon negligence, although proved, unless that negligence caused the accident. And, if you find the defendant was negligent in this case, you must determine from' the evidence whether or not it has also been established, and by a preponderance of the evidence, that the injury which occurred to the plaintiff was caused by that negligence. And I instruct you here, gentlemen, that, under the pleadings and evidence in this case, the plaintiff cannot complain of any erratic or unusual conduct of this machine as to its falling, .as the expression has been used upon the trial. If the defendant was negligent, and as a result of that negligence the machine made second or third or further revolutions after being only once tripped, and, as the result of a second or other revolution so caused, the plaintiff suffered the accident of which he complains, and lost his fingers, he cannot recover in this case, as that is not the case which he presents to us by his declaration and proofs. So that the only material inquiry in this regard is this: Whether the negligence complained of in this case, if it is found to have been well proved, caused the machine to fall, and the accident resulted from that falling. If it resulted from any other cause, whatever other conditions may be found to be present, or however serious the plaintiff’s misfortune, he cannot recover in this case, and your verdict will be for the defendant. If, on the other hand, the accident did result from the falling of the machine on the occasion in question, and you find that to be true by a preponderance of the evidence, you should regard this element of the plaintiff’s case as established.
    “The next and second general proposition in the case-is the question of contributory negligence. ‘Contributory negligence,’ as the term is used in conditions like the present, means negligence on the part of the plaintiff, which, coupled with negligence on the part of the defendant, produced the injury, as a common result. Contributory negligence is such negligence on the part of the plaintiff as contributed to the result complained of. Now, whenever- there is contributory negligence such as this, the plaintiff cannot recover; for the law regards it as a case of mutual fault, and neither party can recover against the other. Nor would it make any difference although the aggregate of negligence which produced the result was very much more contributed to by the defendant than the plaintiff. If it were 75 per cent, or 95 per cent, the defendant’s negligence, and only 25 or 5 per cent, the plaintiff’s, still the plaintiff could not recover. It is a part of the plaintiff’s case here to satisfy the jury, by a preponderance of the evidence, that he was not himself guilty of contributory negligence, — that he was at the time in the exercise of due care, and did not by his own carelessness in any way contribute to the unfortunate result which fell upon him. It is urged on behalf of the defendant that it was not necessary for him to put his hand under the upper die on this press, or between the two dies at all, and that the fact of his putting his hand under the upper die was contributory negligence on his part. Viewing the case from the aspect or point of view of contributory negligence, I instruct you that unless you are able to say, by a preponderance of the evidence, that the plaintiff was entirely free from-fault and carelessness in putting his hand under that press, your verdict should be for the defendant, whatever other conditions you find to be present in the case. Whether his conduct on that occasion was negligent or otherwise/is for the jury to determine from the evidence in the case bearing upon that subject. I instruct you to carefully consider all the evidence bearing upon that question, and give it patient and careful examination, and if, after such consideration, you reach the conclusion, and by a preponderance of the evidence, that the plaintiff was not guilty of carelessness which contributed to the accident, in putting his hand under the press, or in any of his conduct there on that occasion, which resulted in his injury, then you should regard this proposition as established. If you do not so find, the plaintiff cannot recover, and your verdict will be for the defendant.
    “ The third general branch of the case, to which I now call your attention, relates to what has been spoken of during the trial as the plaintiff’s assumption of the risk. Stated in other words, and with no effort at technical accuracy, the principle upon which this case is based is this: That every man who enters into the employment of another assumes the risk of all known or obvious dangers incident to that employment, and, if accident or injury results to him because of any such obvious or known danger, he cannot complain, and the employer is not liable. Now, that refers to risks or dangers incident to the employment which are obvious, open to his view, or which, if not open to his view, are such as he has knowledge óf when he goes into the employment or continues it. All risks and perils incident to the conduct of the work which he undertakes to do, and which are open to his view, or obvious, or of which he has knowledge, he takes the risk — the chances— of himself, if he continues in the employment without protest.
    “This branch of the case makes it important for you to consider precisely the condition of things that existed at and before the time of this unfortunate accident. The plaintiff, Burnside, testifies that about two weeks before the accident (I am giving you only the substance of his testimony) this machine went wrong, and he saw it; that (substantially) it dropped; that it did the very thing which it did when his hand was injured. He knew then, when he saw that conduct on the part of the machine, what it did then; and he swears that it had previously, to his knowledge, been guilty of such erratic conduct. If he had gone to work after such knowledge, and nothing had occurred to relieve him from the assumption of the risk, he would have taken the chances of its doing the same thing again, and could not be heard to complain if it did. He would have done what the law says any party does who enters upon employment and continues it with knowledge of the risks which are incident to it. And so, in this case, Mr. Burnside must be held to have taken the chances of this machine falling again, unless something had occurred after he saw it fall last, about two weeks before the accident, and between that time and the time of the accident, to relieve him from that assumption. He claims that something did occur to relieve him from that risk, and imposed the risk upon the defendant; and that something is this: That on the day he began to use this machine (Monday), the day before his accident, in substance, he asked Mr. Boss, the press foreman there, if the machine would drop when it got to the top, and Mr. Boss replied that it would not, and that the next morning he asked him if the machine, was all right, and Mr. Boss replied that it was, — that it was safe, or some such thing.
    “ Now, gentlemen, I charge you that the plaintiff would not be relieved from the assumption of the risk because of any opinion Mr. Boss may have expressed there on that occasion; if it was simply Mr. Boss’ judgment that was being expressed there to him, that the machine would not drop and was all right, that would not relieve Mr. Burnside from the assumption of the risk. He claims that there was more to it than that. He contends that by the use of those words, and under the circumstances then surrounding them, and which had surrounded them since the time when he observed the machine last fall, about two weeks before, Mr. Boss’ language bears this construction, and Mr. Burnside understood him to assure him (Burnside) that the machine had been repaired or fixed up since it last dropped, so as to obviate the danger of the upper die dropping. Now, gentlemen, I charge you that if you find from the evidence, under the circumstances that surrounded the parties at that time, that by that language Mr. Ross meant to convey to Mr. Burnside an assurance that, since the die had dropped last, the machine had been fixed or repaired so that it would not drop now, and that Mr. Burnside so understood it, and as a reasonable man was entitled to so understand it, and did rely upon it as such, then you would be justified in finding that Mr. Burnside was relieved from the assumption of the risk of its dropping, which he otherwise had undertaken or would undertake. But if that is not established by a preponderance of the evidence; if you cannot say that that was the meaning of the language, under the circumstances, and meant to be, and that Mr. Burnside, as a reasonable man, was not justified in so understanding it, or did not understand it and so rely upon it, — then you should regard him as still assuming the risk of the die dropping, and in that event your verdict should be for the defendant. And I give you, in that connection, the plaintiff’s fifth request to charge, as correct: ‘ If you find from the evidence the plaintiff made the inquiries on Monday and Tuesday preceding the accident which he claims to have made, and Ross replied as plaintiff testifies, and you further find that the plaintiff, as a reasonable man, had a right to, and did, believe from such replies that the press had been so repaired or fixed since it dropped the last time, about two weeks before, as to obviate the danger of the die dropping again, in such case he would not be held to have assumed the risk of the die dropping. But if this is not established, and by a preponderance of the evidence, your verdict should be for the defendant.’
    “ If the plaintiff has failed to establish his case in these essential particulars, which I have instructed you are the necessary ingredients to constitute it, or any of them, your verdict should be for the defendant. If all of them are found by you to have been established by the evidence, and a preponderance of it, your verdict should be for the plaintiff, and you will then consider the question of damages. * * * ”

      Wilson & Cobb, for appellant.

      Blair, Smith & Townsend, for appellee.
   Long, J.

This suit was brought to recover damages for injuries suffered while operating one of defendant’s presses. The basis of the action, as charged in the declaration, is the negligent failure of defendant to furnish for plaintiff’s use a properly adjusted and reasonably safe press, and particularly to furnish a press for forming stove tops, which should be so adjusted, and in such a reasonably safe condition, that, when the same was being operated by means of a foot treadle, the upper die would only descend from its high position to and against, the lower die when being operated. The declaration charges that a machine or press was furnished which was improperly adjusted and in a dangerous condition, in that the said upper die would not, as it .should have done, uniformly and invariably stop at its highest position when the operator’s foot was removed from said treadle, and remain in such position until said operator renewed such pressure, but, on the contrary thereof, was likely to fall at any time and catch the hands of such operator, of all of which the said defendant had notice and the said plaintiff was ignorant.

The second count of the declaration is substantially the same as the first, with the further averment that on a few occasions the said upper die had improperly fallen, and before commencing work with said press on April 20, 1897 (the day the injury was received), plaintiff asked the defendant’s foreman, one John Ross, who had charge of said machines and presses and the repairs thereof, whether said press was safe, and whether there was any danger of said upper die falling, whereupon said Ross assured the plaintiff that said machine was safe, and that there was no danger of said die falling; and that, in consequence of such assurances, the plaintiff then and there commenced work on said press.

The press in question is known as an “ extra heavy, wide bed, double crank press.” The side columns are about 7 feet high, and the distance between them is 52 inches. The ram to which the upper die is attached is hung to eccentrics on the shaft. On the right-hand end of the shaft is a large wheel, which is geared into a pinion wheel below it, which is connected with the power by means of a tight pulley. There is also a loose pulley. There is a bedplate, to which the lower die is attached, and the faces of the dies are about 2-J- inches apart when in position. On the inner face of the large wheel are four blocks or dogs to engage with the clutch pin. This large wheel is loose on the shaft, and, when the power is on, is constantly revolving. The press is operated by means of a clutch mechanism. This clutch mechanism is principally contained in the shaft. The shaft is considerably enlarged next to the large wheel, and a hole is bored through from top to bottom, in which the clutch beam plays. Connecting with this hole, another hole is bored out through the face of the enlarged part of the shaft, coming out on a level with the dogs on the large wheel, in which the clutch pin plays. The clutch beam is shaped like an ordinary tenpin, except that a portion of the lower end is turned down, leaving a shoulder above. The clutch pin is a cylindrical piece of steel, about 5 inches long and 2 and 7-16 inches in diameter, with a hole in the rear end, through which the ball end of the clutch beam passes. Near the bottom of the clutch-beam hole, a hole is bored obliquely upward and forward, in which is inserted a hollow steel tube, containing a powerful spring. This spring presses strongly against the bottom of the clutch beam, and, when the clutch lever is released, forces the bottom backward and the top forward, moving the clutch pin out to engage with the dogs on the wheel. The clutch lever is a semicircular piece immediately below the clutch beam, with a channel wide at one end, and gradually narrowing to the other end. When the press is at rest, the bottom of the clutch beam rests in this channel, and retains the clutch pin within its hole. One end of the clutch lever is pivoted on the brake, which, in the shape of a lyre, surrounds the enlarged part of the shaft. The other end is connected with the top of the other end of the brake by a strong coil spring, and a chain passes from this free end of the lever to a treadle in front and at the right'of the press. The operator presses this treadle with his foot. This pulls down the end of the clutch lever, and releases the clutch beam from the channel. As soon as the beam is released, the beam spring forces the clutch pin out, which engages with some one of the four dogs in the large gear-wheel, and the upper die descends. As the shaft revolves, the clutch beam passes by the clutch lever, which is pulled back to its place by the coil spring, and, as the revolution continues, the clutch beam comes back to the lever, striking the wide part of the channel, and the taper of the channel gradually pushes the bottom end of the. beam to the front, and pulls the clutch pin back into its hole, and the press stops. There is a bolt through the upper ends of the brake arms, with a thumb nut, by which the brake can be tightened.

It appears that the press was purchased in December, 1894, and was put in operation in February, 1895. On the second day of its operation it did not stop at the top. This was reported to Mr. Law, the machinist of the defendant. It was taken apart, and the clutch pin and clutch slide were found to be bruised. From time to time until the time of the injury, on April 20, 1897, the press would not stop at the top, but, when reaching the highest point, would immediately fall or drop down. At different times the machine was taken apart, and the clutch pin smoothed off and put back again, and the machine would work properly. It would sometimes work properly for two months, and again it would drop every few days. In February, 1897, it dropped down, and the foreman took it apart and examined it. About two weeks before the injury it dropped again. Plaintiff knew of the die dropping four times from January 2, 1897, till April 20th; the last time being two weeks before the injury. Others saw it drop, and on each occasion the attention of Mr. Boss was called to it. Plaintiff had worked for the defendant from time to time, commencing in 1894. He worked part of the time on other machines near the machine in question. On Saturday before the accident he was set to work on this machine. It worked all right during that day. He was forming stove tops, and, in order to remove them from the lower die, he reached in with a straight piece of iron with one hand to lift up the edge, drawing the top out with the other hand, while the upper die was at its highest point. He testified that this was the way of drawing out the covers, that he never saw it done in any other way, and that “you have got to use your fingers to get them in and out. You tip up the back side so you can draw it out, using your fingers to tip it up and draw it out. The foreman, Ross, showed me how to do it. I am certain Ross used his hand in taking out the work as I did.”

Mr. Ross, the foreman, testified that he had charge of the presses, and that it was his duty to inspect them, as he was the superior in command of the press room, and all the men understood it in that way. He further testified that the machine was supposed to stop at the top, and was not all right unless it did, and that it was a part of his duty to make the machine work so that it would stop at the top, if possible; that he took the machine apart a dozen times for the purpose of examining it; took the clutch apart; took the clutch pin out; cleaned them off tó see if they were cut, and put the machine together again; that he had the machine apart two or three months before the injury to plaintiff, and that it was all right at that time. It appears that there was no way of ascertaining whether the clutch pin was cut, without taking the machine apart, and that this could be done in 20 minutes or half an hour. The plaintiff testified, further, that on Monday, when he went to work on the machine, he asked Mr. Ross if there was any danger of the machine dropping when it once got up, and he said, “No;” that it did not drop that afternoon; that on Tuesday morning, after Ross oiled the machine, he asked him again if the machine was all right, and he said, “Yes;” that about 20 minutes after that, while he was lifting out a stove top in the usual way, with the iron to hold up the edge, and with his fingers to pull it out, the top die suddenly dropped, catching his hand, cutting off three fingers and injuring the other; that his foot was not near the treadle at this time; and that he did nothing to cause it to fall. After the accident, the machine was taken apart, and it was found that the clutch pin was cut.

At the conclusion of the testimony, counsel asked the court to direct the verdict for the defendant, for the following reasons:

“First. Because it appears by the undisputed evidence in the case that the machine was a good one, and proper and suitable for, the purposes for which it was used, and it does not appear that the machine was out of repair at the time of the accident.
‘ ‘ Second. Because it does not appear that the machine was improperly adjusted at the time of the accident.
Third. Because it does not appear that the defendant had any knowledge that this machine was out of repair or improperly adjusted, if it was; neither does it appear that there was any negligence on defendant’s part in inspecting, or providing for a proper inspection of, the machine.
“Fourth. Because it appears beyond dispute that the machine was a proper one, adapted to the purposes for which it was used, and the defendant had provided reasonably for the inspection and repair of the machine.
“Fifth. Because it appears from the undisputed evidence in the case that, from the mechanism of the machine, it was as likely the accident occurred by reason of such mechanism in its natural operation as through any want of repair or adjustment, and the verdict of the jury would only be a matter of guesswork.
“Sixth. That when he commenced and while operating the machine, up to the time of the injury, the plaintiff had knowledge of the alleged defective operation of such machine, and by continuing the employment he assumed the risk of injury resulting from such defective operation; that he could not relieve himself from the assumption of such risk by showing statements claimed to have been made by the foreman to him before the accident.
“Seventh. Because it appears by the undisputed evidence in the case that the plaintiff was guilty of contributory negligence in removing the stove top from the press.”

The court refused to give these instructions, but instructed the jury as will be found in the statement.

It is contended by counsel for defendant that negligence cannot be inferred from mere proof of the accident and consequent injury; citing Toomey v. Steel Works, 89 Mich. 249; Robinson v. Charles Wright & Co., 94 Mich. 283; Perry v. Railroad Co., 108 Mich. 130; Shadford v. Railway Co., 111 Mich. 390. There is no doubt that the rule contended for by defendant’s counsel is well settled by the cases cited, but the principle is not applicable to the present case. In the Perry Case, as said by coupsel for plaintiff, it was held that it did not appear but that the draught rigging might have been broken by the ■ impact of the cars at the time of the coupling. Here the press was continually making trouble, and, when examined, it was found upon two occasions, at least, that the trouble was in the clutch pin. The claim is that it was the cutting of the clutch pin which caused the press to drop, not that it was the dropping of the press that caused the clutch pin to be cut. There was testimony in the case from which the jury might find that the cutting of this pin caused the injury. Mr. Ross, the foreman, testified that the first time the machine ran away he found that the pin was burred up, and on the last occasion he found the same thing, only not so bad; that he thought it was done by grit getting in both times. There was testimony showing that the clutch pin might cut in a short time, or it might take some length of time to cut. It was for the jury to say whether the clutch pin was not gradually cutting, and whether proper inspection would not have prevented the injury. In the case of Redmond v. Limber Co., 96 Mich. 545, it was held that the mere fact that a machine, which was shown .to have performed its accustomed work properly both before and after the accident, failed so to work on that particular occasion, was not sufficient to justify the conclusion of negligence. This was but the reiteration of a familiar principle confined to that class of cases, as there was no evidence tending to show that the machinery was out of repair, unless it should be assumed from the alleged fact that it did not stop when the lever was released. It was there said:

‘ ‘ If there were anything to show that the machine had been out of order, and that its working was spasmodic or uncertain, there might be room for the contention that defendant was negligent in not keeping it in repair.”

In the present case there was abundance of evidence tending to show that the clutch mechanism was out of repair; that both before and after the injury the press was not in good working order, and that its action was spasmodic and uncertain. The other presses in use were working in good order, but this particular one was constantly giving trouble, and, as some of the witnesses say, “it gave more trouble than’all the other presses together.”

It is next contended that the court should have directed the verdict for defendant on the ground of contributory negligence on the part of plaintiff. The plaintiff’s testimony showed that he was performing the work in accordance with the usual custom, and as he had been instructed by defendant’s foreman. That question was fairly submitted to the jury in the general charge.

The question of proper inspection of the machine by the defendant was also properly submitted to the jury. That charge will be found in the statement. It treats this subject very fully and fairly, so that the jury could not have been misled as to the duty which defendant owed to its employés. The defendant’s rights were as fully protected as it was entitled to under the circumstances.

It is contended, further, that the court was in error in its charge on the question of plaintiff’s release from the assumed risk by what was said to him by the foreman on the Monday and Tuesday prior to the injury. It appears that the clutch mechanism was the source of all the trouble with the machine. That mechanism was wholly concealed within the machine. It could not be seen without taking the machine apart. So far as appears by the record, the plaintiff — an ordinary workman — had not seen this mechanism, and was not familiar with its working. The foreman was an expert, and familiar with the mechanism, and was expressly charged by the defendant with the duty of inspecting and repairing. Under these circumstances, the plaintiff had the right to rely upon this superior knowledge of the foreman, and it became a question for the jury to determine whether he went to work, and so continued, upon the assurance of Mr. Ross that the press would not drop; that it was all right. The cases holding that the operator assumes the risk of obvious dangers have no application here. It is not negligence for an employe, who is in doubt about the safety of the place where he is sent to work, to defer to the opinions and assurances of those who are supposed to know, and who, from their positions, are bound to have special knowledge as to whether it is safe or not. Lake Superior Iron Co. v. Erickson, 39 Mich. 492 (33 Am. Rep. 423). This principle is abundantly supported by the authorities. Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573; Burgess v. Ore Co., 165 Mass. 71; McKee v. Tourtetlotte, 167 Mass. 69; Northern Pacific R. Co. v. Babcock, 154 U. S. 190; Haas v. Batch, 6 C. C. A. 201, 56 Fed. 984. In the present case it appears further, from the testimony of the foreman himself, that the plaintiff “would have been warranted in going to work on the machine, supposing it was in repair.”

The charge of the court is so full and fair upon all these questions, it becomes unnecessary to discuss them further.

The judgment must be affirmed.

The other Justices concurred.


text:
    PEOPLE v. BOOTH.
    1. Marriage and Divorce — Cohabitation.
    That a marriage ceremony was performed four days' before a decree of divorce from a third person, which had been granted one of the parties, was formally filed, does not prevent a valid marriage being based upon the subsequent cohabitation of the parties as husband and wife.

    2. Same — Order or Publication — Delay in Issuing — Jurisdiction.
    A court may have jurisdiction to enter a decree of divorce, although the service was by publication, the affidavit for which was sworn to three days before the order of publication was made, when a subpoena was duly issued in the case, and the return showed the inability, after diligent search and inquiry, to find the defendant, and the affidavit for the order of publication was made after the return of the subpoena, and stated that the defendant was concealed within the State, so that process could not he served upon him; 3 How. Stat. § 6670, providing that service may he by publication when it is shown by affidavit that process has been duly issued, but could not be served because the defendant was concealed within the State.
    3. Disorderly Persons — Third Offense — Surrioienoy of Information.
    An information charging that respondent was "heretofore duly convicted of the same offense,” giving the dates and the person before whom he was convicted, and that "this is • charged against him as a third offense.” is a sufficient information to justify punishment for a third offense, under Act No. 190, Pub. Acts 1895, providing for the punishment of disorderly persons.
    4. Same,
    It is not necessary, in order to justify punishment for a third i offense under Act No. 190, Pub. Acts 1895, that the complaints and warrants in the former convictions should have stated that they were f.or first and second offenses.

      Exceptions before judgment from Wayne; Hosmer, J.
    Submitted May 3, 1899.
    Decided September 12, 1899.
    Prank Booth was convicted, under the disorderly act, of refusing and neglecting to support his family.
    Conviction affirmed.

      Edward McNamara, for appellant.

      Allan H. Frazer, Prosecuting Attorney, and Ormond F. Hunt, Assistant Prosecuting Attorney, for the people.

       The effect of the right to appeal from a divorce decree on a party’s right to marry is considered in a note to Re Smith, (Wash.) 17 L. R. A. 573.

   Long, J.

The information in this cause charges the respondent with being a disorderly person, within the meaning of Act No. 264, Pub. Acts 1889 (being section 1997a, 3 How. Stat.). The information charges a third offense, the respondent having been theretofore convicted of the same offense on, to wit, October 12, 1896, and Juno 29, 1897. It appeared on the trial that the respondent was married to one Rosa La Rue, in Detroit, on June -27, 1893; that they lived together there as husband and wife for nearly 3 years, and that 22 months after the marriage a child was born to them; and that in October, 1895, the respondent left his wife, and refused to support her or the child. The defense is that the said Rosa La Rue was not the lawful wife of respondent. It is conceded that, if it be found that she is the lawful wife of respondent, there is testimony sustaining the conviction.

It was shown that Rosa La Rue had been married before to one James P. La Rue; that a decree of divorce was granted by the court on June 24, 1893, but the decree was not formally filed until July 1,1893, and her marriage to respondent took place four days before, or on June 27th. The mere fact that the decree was not formally filed until July .1, 1893, cannot aid the respondent. The marriage ceremony was performed between himself and Rosa La Rue, and they continued to live and cohabit together as husband and wife from that time forward. These facts establish a valid marriage, within the ruling of this court in Williams v. Kilburn, 88 Mich. 279. The respondent was sworn on the trial, and admitted that the child was his; that he lived with Rosa La Rue as his wife, —so recognized her.

It is also contended that the court had no jurisdiction to enter a decree of divorce, because the affidavit of the complainant for the order of publication was sworn to on the 5th day of August, 1892, and the order of -publication was not made until August 8th, two days having intervened. It appears, however, that a subpoena was duly issued in the case, and a return indorsed thereon by the sheriff that he was unable, after diligent search and inquiry, to find the defendant named therein. The affidavit for the order of publication was made after the return of such subpoena. The affidavit for the order states thát the “ defendant is concealed within the State, so that process cannot be served upon him, and that the subpoena issued in the case has been returned unserved upon the said defendant, though diligent search has been made for him by the sheriff of this county, as will appear by the return made by the sheriff, now on file.” This affidavit' conferred jurisdiction upon the court, within the terms of section 6670, 3 How. Stat., though the order was not made until three days after the affidavit was sworn to. The statutory provision is that, “when the defendant is a resident of this State, upon proof by affidavit that the process for his appearance has been duly issued, and that the same could not be served by reason of his absence from or concealment within this State, or by reason of his continued absence from his place of residence,” the order may be made.

It is also contended that the complaints and warrants ' under which the former convictions were had were not in compliance with the statute, in that they did not recite that it was for the “first offense” and “second offense,” as required by Act No. 190, Pub. Acts 1895. Section 1 of that act provides:

“Any person who shall be convicted a second time of being a disorderly person, the offense being charged as a second offense, shall be punished * * *. And for a third and all subsequent convictions, the offense being charged as a third or subsequent conviction, the punishment shall be by imprisonment in the Detroit house of correction,” etc.

The information charges that said ‘ ‘ Frank Booth was heretofore duly convicted of the same offense, to wit, October 12, 1896, and June 29, 1897, before Frederick W. A. Kurth, and this is charged against said Frank Booth as a third offense,” étc. It was held in People v. Buck, 109 Mich. 687, that:

“ An information for a third offense under the act in relation to disorderly persons (section 1997a et seq., 3 How. Stat.) must allege that convictions were had for such previous offenses, and, properly, it should also state the date and the occasion of such convictions.” .

The information in that case had no averments of previous convictions, and it was said, “A sentence could not lawfully be imposed for a longer term than 30 days.” In the present case the information charges two previous convictions for the same offense, and gives the dates of those convictions, and before whom they were had. We think the information sufficiently stated the former convictions to warrant the conviction here, and, so far as this case is concerned, it does not matter whether the former complaints and warrants averred that they were for first and second offenses. The statute does not require, in the prosecution for a third offense, that the complaints and warrants in the former convictions shall have stated that they were for first and second offenses, but simply that the offense shall be “charged as a third or subsequent conviction,” etc. The objection has no force.

The conviction must be affirmed.

The other Justices concurred.


text:
    BLITZ v. ROACH.
    1. Evidence — Contracts—Cross-Examination.
    Where defendant, claiming to have made a certain contract with plaintiff, is asked on cross-examination if he ever made another such a one-sided contract, and replies that he has made such a contract, the paper he calls a contract may, on his redirect examination, be introduced in evidence.
    2. Same — Relative Reliability — Instructions.
    It was not error for the court to refuse to instruct the jury, in an action for breach of contract, that they should bear in mind that written documents are more reliable than human recollections, where it was not shown that the contract between the parties rested in written documents, and the several claims of the parties as to the circumstances surrounding the making of the papers received in evidence, as well as the papers themselves, were presented to the jury under careful instructions.
    Error to Wayne; Lillibridge, J.
    Submitted June 6, 1899.
    Decided September 12, 1899.

      Assumpsit by Louis Blitz against James Roach for breach of a contract of purchase. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Moore & Moore, for appellant.

      John W..McGrath, for appellee.
   Moore, J.

The plaintiff sued defendant to recover damages, which he placed at the sum of upwards of $800, for a breach of a contract which he claims was made between the parties. The case was tried before a jury, who rendered a verdict in favor of defendant.

The plaintiff assigns error upon the admission of testimony. It was the claim of plaintiff that, while he was supplying defendant with glass, the latter placed with him an order to supply the glass for the Home Savings Bank building for the sum of $2,000; that he accepted the order, and ordered the glass, when defendant refused to accept it. It was the claim of defendant that he arranged with plaintiff to supply him with such glass as he needed, giving him a certain discount from the list price in any event, and, if the price of glass should become lower, he was to have the benefit of the lower price; and that plaintiff was to carry his paper for an amount not exceeding $3,500; and that he furnished plaintiff with a list of glass which would be needed in the savings bank building, at plaintiff’s suggestion, so that plaintiff could place the order, as the price of glass was likely to go up. He claims he was relieved from the obligation to take the glass because in the bills rendered for the glass which was received by him plaintiff charged more than the current rates, and also neglected to renew his paper for $930 when he was requested to do so. He denied he was to'pay $2,000 for the glass which was to go in the Home Savings Bank building, but claimed it was to be furnished at current rates, which rate was to be as favorable, in any event, as a certain discount from the list price. The defendant testified in support of the claim just stated, when he was asked on cross-examination if he had ever made another such a one-sided contract. He replied he had made such a contract. On the redirect examination the paper he called a contract was introduced in evidence. This is said to be error. Plaintiff, on cross-examination, drew out the existence of this contract, bringing the case within Pierce v. Rehfuss, 35 Mich. 53. It is not necessary to discuss the other assignments of error in relation to the admission of testimony.

■ Plaintiff requested the court to charge the jury as follows:

“In determining the questions in dispute between the plaintiff and the defendant in this cause, you should take into consideration the appearance of the witnesses upon the stand, the situation of the parties, and the condition of the markets at the time it is claimed the contract was entered into, and also the condition of the markets at the time of the breach, the subsequent action of the parties, and all the written documents in the case; and you should, in determining those questions, bear in mind that written documents are more reliable than human recollections.”

The court gave this request, with the exception of the last clause, which is as follows:

“And you should, in determining those questions, bear in mind that written documents are more reliable than human recollections.”

Counsel say the part of the request stricken out by the court must be conceded to be sound law, and the jury should have been so instructed. The record does not disclose, according to any theory of the parties, that the contract between them in relation to this bill of glass rested in written documents. The several claims of the parties as to the circumstances surrounding the making of the papers which were received in evidence were presented to the jury, as well as the papers themselves. The jury were told that all the evidence received might be taken into consideration by them. We do not think the court erred in declining to say that some of this evidence was more reliable than other of the evidence. ' The charge was a very full one. The claims of the parties were in sharp conflict with each other. The charge left to the jury these diverse claims, and instructed them as to the law applicable thereto.

Judgment is affirmed.

The other Justices cóncurred.


author: Grant, C. J.

text:
    THOMPSON v. OWENS.
    Deeds — Cancellation—Decree.
    A decree setting aside a voluntary fee-simple deed to defendant, executed by complainant, an aged man, when seriously ill, and directing that a new deed be executed, giving-her'a life estate in the lands, to commence at his death, held, under the evidence, sufficiently favorable to defendant.
    Appeal from Newaygo; Edwards, J.
    Submitted June 7, 1899.
    Decided September 12, 1899.
    Bill by George W. Thompson against Emily C. Owens to set aside a deed. From a decree for complainant, defendant appeals.
    Affirmed.
    Defendant is a half-sister of complainant. He has one son. His property consisted of the 40 acres in question, used as a farm, and the personal property upon the same. In 1892, when he was 71 years of age, he was very sick, and did not expect to live. Prior to the death of complainant’s wife, defendant had lived in the family, and after her death continued to live there, and took charge of the household affairs. He evidently desired to make some provision for the care of defendant after his death. The deed —a full warranty deed — was made out, and signed, witnessed, and acknowledged. The scrivener who wrote it then put it in an envelope, sealed it, and, by the direction of the complainant, .indorsed upon it, “ Not to be opened until the death of George W. Thompson,” and handed it to defendant, who was cautioned by complainant “to put it in a safe place, where it would be safe.” Defendant took the deed, and put it in a chest belonging to her. Complainant recovered from his illness, and, under the claim he was intending to place a mortgage upon the farm, she opened the envelope, and placed the deed upon record. When complainant heard of this, he filed this bill to set the deed aside. A few days after the execution of the deed, complainant executed to defendant a bill of sale of nearly .all his personal property. He admits that he intended to execute a deed giving her a life estate in the premises after his death. The court, by a decree, set this deed aside, and decreed that complainant execute another deed, giving her a life estate in the lands, to commence at the death of complainant.

      W. D. Fuller, for complainant.

      George Luton, for defendant.
   Grant, C. J.

(after stating, the facts). The four claims of complainant are:

1. That he was incompetent.
2; That he intended to convey to defendant only a life estate after his death.
3. That the deed was to be inoperative if he recovered from his illness, and was intended as a testamentary disposition of his land.
4. That there was no such delivery as to make the deed effective.

Upon the first three claims the testimony was in conflict. The court must have found either that complainant had not sufficient mental capacity to execute the deed; or that the deed was not such as the parties had agreed to. It would require very strong evidence to sustain a finding that a father had deliberately disinherited his own son. There was good reason why complainant should provide a home for defendant during her life, but no good reason appears why he should give her all his property. We think the court reached a conclusion sufficiently favorable to defendant, who alone appeals, and that there was substantial evidence to sustain it. We need not discuss the question of delivery.

Decree affirmed, with costs.

The other Justices concurred.