text:
    MARSHALL v. WABASH RAILWAY CO.
    1. Railroads — Personal Injuries — Judgments—Liens.
    Although section 2, Act No. 110, Pub. Acts 1899 (section 8340, 2 Comp. Laws 1915), provides that a judgment for personal injuries against a railroad company shall constitute a lien upon the property of such company “over any and all other judgments, executions, or attachments,” there is no authority for the claim that such judgment takes priority over a mortgage executed before the injury was received.
    2. Same — Liens—Statutes—Construction—Presumptions.
    Since said act expressly mentions certain liens made subordinate, it by implication excludes others not mentioned, upon the presumption that, having designated some, the legislature designated all it was intended the act should include.
    3. Same •— Courts — Federal Courts — Jurisdiction—Receivers— Mortgages — Foreclosure.
    Under said statute, a judgment for personal injuries obtained in a State court would constitute a lien on the property of the railroad company against which it was obtained, subject to any prior mortgage, although pending the action the Federal court of another State took jurisdiction in foreclosure proceedings and appointed receivers, presumably to conserve the mortgaged property of the company, there being nothing to indicate that the foreclosure suit was for the purpose of making equitable distribution of its assets among its creditors, or that the possession of the receivers was disturbed.
    4. Equity — Jurisdiction—Accounting—Collecting Judgment.
    A prayer for an accounting cannot confer equity jurisdiction when the bill shows its only purpose is to collect an unsatisfied judgment, the amount of which is not open to question.
    5. Same — Liens, Enforcement of.
    While the equity court, having acquired jurisdiction for other purposes, may, as an incident to general relief granted, order property sold to satisfy a lien, it has no jurisdiction to enforce a lien upon a bill filed solely for that purpose.
    Appeal from Lenawee; Hart, J.
    Submitted January-30, 1918.
    (Docket No. 47.)
    Decided March 28, 1918.
    Rehearing denied June 20, 1918.
    Bill by Lewis J. Marshall against the Wabash Railway Company and another to enforce a lien for the amount of a judgment. From an order granting a motion to dismiss, plaintiff appeals.
    Affirmed, without prejudice.

      J. N. Sampson and Frank M. Sala, for plaintiff.

      Baldwin, Alexander & Russell, for defendants.
   Steere, J.

Plaintiff’s bill of complaint is filed to have a judgment obtained by him against the Wabash Railroad Company for personal injuries declared a preferred lien upon the property of defendants and that they be directed to pay the same, in default of which sufficient of their property found within the State be ordered sold to satisfy said judgment. His claim of right to such relief is based upon the provisions of section 2 of Act No. 110, Pub. Acts 1899 (section 8340, 2 Comp. Laws 1915), which provides, so far as material here, as follows:

“All claims arising out of the death or personal injury of any person, when such death or personal injury shall result from the negligence of any * * * steam railroad company, organized and doing business under the laws of this State, shall, after judgment is obtained therefor, against any such corporation, constitute a lien upon all of the assets of said corporation, and all of the property thereof, and all of its rights and franchises, and over any and all other judgments, executions or attachments levied upon said property, except such as may be issued in favor of persons having obtained judgment for personal work,” etc.

Against this bill defendants filed a motion in the nature,of a demurrer asking that the same be dismissed on various grounds, the substance of those calling for most serious consideration being that the statute relied upon and referred to in the bill of complaint does not, under the facts stated therein, give plaintiffs claimed lien priority over a previous mortgage, neither does it operate against or apply to foreclosure proceedings pending in the Federal court when all the property, rights and franchises of the defendant railroad company were in possession and under control of receivers appointed by that court at the time plaintiffs judgment was rendered.

The history of this litigation between plaintiff and the Wabash Railroad Company up to the time of securing the judgment to enforce which this bill is filed will be found in Marshall v. Railroad Co., 163 Mich. 88, 171 Mich. 180, and 184 Mich. 593. Briefly summarized from the bill sufficient for the questions involved,. it appears that on February 2, 1908, plaintiff sustained serious injuries while-a passenger on a train of the Wabash Railroad Company in an accident which resulted from its negligence at a point on .its line in Lenawee county, Michigan, and to recover compensatory damages for such tort he commenced an action in the circuit court for that county on September 15, 1908. The case was tried three times, resulting on each trial in a verdict and judgment in his favor, successively removed by the defendant to this, court for review. The first two judgments were reversed and the case remanded for retrial. The third trial resulted in a verdict and judgment for plaintiff, on February 15, 1913, in the sum of $11,255.75, which was affirmed by this court on March 18, 1915. That judgment is yet in force with no part paid, no execution has been taken out to recover the same and demand of plaintiff for payment has been refused. Whether it became a paramount lien upon the property of the Wabash Railroad Company on February 15, 1913, the date of final judgment in the circuit court, is the chief issue here.

On January 29, 1912, the Wabash Railroad Company went into the hands of receivers by order of the United States district court for the eastern district of Missouri, upon application of the Equitable Trust Company of New York, trustee, as complainant in a suit against said railroad company and James B. Forgan, defendants, to foreclose a first refunding and extension mortgage given by the Wabash Railroad Company on July 1, 1906. A decree foreclosing this mortgage and ordering sale of the property covered by it to satisfy the same was rendered by that court on January 30, 1914, and sale under said foreclosure was had on July 31, 1915, followed by confirmation of the same on August 20, 1915, about one year and a half after plaintiff’s judgment was rendered in the circuit court of Lenawee county. Under said foreclosure proceedings the property of defendant Wabash Railroad Company was transferred to a company known as Wabash Railway Company, which now claims to own the property and operate the road. The bill makes special reference to the records and files in the foreclosure and receivership proceedings before the United States district court of Missouri, designated as “consolidated cause No. 3977,” and asks leave to use any portion thereof deemed matei-ial on the hearing of this case, and avers that “notice of all files and papers in said cause, and all orders and decrees made in said court were filed in the district court of the United States for the southern district of Michigan, eastern division, at Detroit,” which includes within its jurisdiction a portion of the line and other assets of the Wabash Railroad Company, and that no notice was ever given to plaintiff or his attorneys to appear in those proceedings and present his claim. No copies of any of the files and records of said cause in the Federal court appear in this record, but it is stated in the opinion of the circuit judge who heard the motion, and not disputed, that the receivers in that case were discharged some time before this bill was filed and that “plaintiff had knowledge of these proceedings in the district court.”

Eeferring to dates, upon the question of priority of lien, it is shown that the act upon which plaintiff relies was passed in 1899, the mortgage in question was given in 1906, the accident in which plaintiff was injured occurred February 2, 1908, he began his action for damages September 15, 1908, and recovered the judgment under which he claims lien on February 15, 1918. Under the act of 1899, “it is not until judgment is obtained that the statutory lien attaches.” Kaiser v. Railway Co., 169 Mich. 254.

Plaintiff contends that the fact the mortgage antedates his judgment is immaterial, because the statute antedates the mortgage and its provisions must be read into and be regarded as a part of the mortgage, citing Southern R. Co. v. Bouknight, 70 Fed. 442; Guardian Trust & Deposit Co. v. Fisher, 200 U. S. 57; Provident Institution for Savings v. Jersey City, 113 U. S. 506. These authorities and others which may be found of like import sustain the rule that a prior law imposing conditions and limitations on mortgages determines, their force and effect, whatever scope is attempted by the provisions they contain. To the extent such limiting statutes are applicable they are held to enter into and become a part of such contracts to the same extent as if so provided in the instruments themselves. In the Bouknight and Fisher Cases statutes were under consideration which in express terms designated mortgages as subordinate to the liens sought to be enforced. In the Jersey City Case an act making water rents a charge.and prior lien upon .land in a municipality to the same extent and to be collected in like manner “as other taxes assessed on real estate,” which by law took priority over any mortgage or other incumbrance, was held to be constitutional and to give preference to liens for water rent over subsequent mortgages. The construction- and application of the act plaintiif urges requires that the court go further and by inference read into the act itself priority of judgment liens for personal injuries over mortgages, and thus amplified read the act into mortgages given after the statute was enacted. '

The provision relied on makes no mention of contract obligations, mortgages, or other securities voluntarily given by the corporation before such judgments are taken and become liens, but provides that, as against other liens established by adversary action, such judgment liens for personal injuries shall have preference “over any and all other judgments, executions or attachments levied upon said property,” and from those are excepted “such as may be issued” in favor of persons having judgments for personal labor. If it was the legislative intent to subordinate previously given mortgages to liens for torts, labor or other claims against the delinquent corporation, there was no difficulty in so providing in plain words. Under the legal maxim of construction that express mention of one thing implies the exclusion of other similar things, there is reason in the contention that, the act having expressly named certain liens made subordinate, it by implication excludes others not mentioned, upon the presumption that, having designated some, the legislature designated all it was intended the act should include. In other acts both preceding and following this, the legislature of this State, in providing liens upon the property of corporations for labor in dangerous, vocations, has made plain its intent to in-elude mortgages amongst subordinated liens by expressly naming them. 3 Comp. Laws 1915, §§ 14840, 14841. The inference from a failure to mention mortgages in an intervening act of kindred import has persuasive significance.

No right of lien obtains under plaintiff’s judgment except as expressly provided and to the extent prescribed by statute It is not in recognition of the underlying principles nor enlargement of the scope of a common-law lien. It involves no claim for labor upon, material furnished for, or conservation of, the property against which a lien is asserted. The legislation providing for it goes beyond liens previously recognized at common law or in equity. Its character and extent are fixed and limited by the terms of the statute creating it, which the court may not extend or add to, although the legislature might with equal or greater merit have done so.

Although the statute relied on makes plaintiff’s judgment when obtained a lien on all assets of the defendant corporation, it gives the judgment lien in express terms priority only over other “judgments, executions or attachments,” and we think the learned circuit judge correctly held, when dismissing plaintiff’s bill, that his judgment was not a prior lien to the previously given mortgage and it could not be maintained upon that theory.

We are impressed, however, that plaintiff’s judgment is valid as it stands, and, under the statute, constitutes a lien on all the property of the defendant Wabash Railroad Company against which the action ran, subject to any valid prior mortgage upon any of such property. His action was legally begun in the circuit court of Lenawee county before the receivers were appointed or suit begun in the foreclosure case. When the Federal court of another State later took jurisdiction in the foreclosure proceedings and appointed receivers pendente lite, presumably to conserve the mortgaged property for the- purpose of the decree of forclosure as between the parties to that suit, the State court was not deprived thereby of its right to proceed with this distinct personal action in which it had first taken jurisdiction. By permission of the court appointing them the receivers could have appeared in the case and defended had they seen fit to do so. Its progress did not interfere with their possession of the mortgaged property or with the mortgage foreclosure. They did not represent the Wabash railroad in its individual character nor supersede it in the exercise of its corporate powers, beyond their temporary custody and control of its mortgaged property. The corporation was energetically and independently, so far as shown, pursuing an active defense of plaintiff’s case to the court of last resort while the foreclosure proceedings were pending. There is nothing before us to indicate that the foreclosure suit in the Federal court was for the purpose of making equitable distribution of the assets of the corporation amongst its creditors or had any object beyond the ordinary foreclosure of a mortgage and incidental conservation of the mortgaged property while the suit was in progress.

While authorities are cited by defendants sustaining extreme views as to the immunity afforded delinquent railroads from legal liability by appoiritment of receivers to conserve mortgaged property during foreclosure proceedings, we think there is respectable authority and better reason for the view that so long as the presumably temporary possession by the receivers of the property they are appointed to conserve is not disturbed other courts are not closed by the foreclosure suit to those desiring to pursue their legal remedies against the defaulting corporation.

‘A receiver,’ says the Supreme Court of the United States, ‘derives his authority from the act of the court appointing him, and not from the act of the parties at whose suggestion or by whose consent he is appointed; and the utmost effect of his appointment is to put the property from that time into his custody as an officer of the court, for the benefit of the party ultimately proved to be entitled, but not to change the title, or even the right of possession in the property.’ Union Bank of Chicago v. Kansas City Bank, 136 U. S. 223. The ownership of the property is not changed by the appointment of a receiver. The possession of the receiver is merely that of the corporation.” 5 Thompson on Corporations (2d Ed.) § 6373.

While not in all particulars analogous to the instant case, in Pittsburgh, etc., R. Co. v. Trust Co., 172 U. S. 493, involving a contention between two lienors, the court said, referring to Wiswall v. Sampson, 14 How. (55 U. S.) 52, upon which .defendants rely:

“If there had been any attempt by a suit to enforce the lien given by the Parkhurst mortgage by an actual sale of the property in question pending the proceedings in the foreclosure suits, it may be that the principle announced in that case could have been invoked, and the sale would have been ineffectual to pass title to the purchaser. But nothing was done by Lynde, after the institution of the foreclosure suits and pending proceedings therein, which was inconsistent with or tended to defeat the object of those suits.”

In Moore v. Timber Co., 83 Fed. 399, the court said:

“It has, however, been held that when a decree appointing a receiver and awarding an injunction, so far as disclosed upon its face, was to provide for the safekeeping of the property of the corporation, and to prevent any transfers thereof, and such decree did not state that the ulterior intent of the court was to make an equitable distribution of the funds, and contained no direction to the receiver to give notice to the creditors to file their claims, the decree imposed no restrictions upon creditors in prosecuting their claims, either at law or in equity, and a judgment subsequently recovered by a creditor is as much a lien on the real estate of the corporation debtor as if the appointment of a receiver had. never been made. (Citing authorities.) I think this ruling is founded in reason, and my opinion is that until the court has made some decree showing that its ulterior intent is to make an equitable distribution of the funds, and giving notice to the creditors to file their claims,- such creditors may sue at law, and acquire a priority. Up to that time the complainant is permitted to dismiss the case and discharge the receiver.”

Vide, also, Blair v. Walker, 26 Fed. 73; Trust Co. of America v. Railway Co., 183 Fed. 803.

Upon the authority of the State court to now entertain jurisdiction and grant any portion of the relief asked, it is to be noted the bill indicates that by ancillary steps jurisdiction of the Federal court was extended over the mortgaged property of the defendant corporation in this State and it is said in plaintiffs brief that no attack is made upon the foreclosure decree of that court, the jurisdiction of which is conceded, it only being insisted that the sale under the decree was subject to his lien, and, inferentially, that court should have seen his rights were protected; and, not having done so before that litigation was ended and the receivers discharged, the State court may arid should deal with the property according to the rights of the respective parties: In denial of the application of this decree to him, counsel for plaintiff contend that his judgment became a lien upon the property of the Wabash Railroad Co. in this State before it changed its name, if not its spots, to the Wabash Railway Co. and by a court proceeding, only stated in outline, legal title to its assets went with the name; and he then had rights in the property which could not be cut off without his day in court; but he was not in any manner made a party to the foreclosure suit before final decree, served with notice or given opportunity to be heard.

Of Ms right to such notice, section 721 of the United States Statutes is cited, which provides that in the absence of Federal statutes, constitutional provisions, etc., prohibiting, “the laws of the several States * * * shall be regarded as rules of decision in trials at common law in the courts of the United States,” which shall take judicial notice of them as taken by the State courts, and section 3 of said Act No. 110, Pub. Acts 1899 (2 Comp. Laws 1915, § 8341), which provides that:

“It shall be the duty of all courts of this State, in which proceedings may be pending, for the foreclosure of any mortgage, trust deed or other lien, upon any of the property of any * * * steam railroad company, doing business in this State, to cause said company, before final decree is entered in said cause, to file with said court, through the register thereof, a statement of all the claims and demands made against said company by any and all persons for * * * damages resulting from death or personal injuries, and which claim shall have arisen 'Within six years prior to the date of filing the same with said court. And it shall be the duty of said court, upon the filing of the same, to notify any and all persons interested in said claims, or their attorneys, to be and appear before said court upon a certain day to present their said claims, and the proof thereof, * * * and to inform said court in case of claims for personal injury or death, whether it is the desire of said claimants to prosecute the same to final judgment or not.”

Reports of decisions by the Federal courts show that a “rule of decision” analogous in principle to this statute has frequently been adopted when dealing with foreclosure of mortgages and enforcement of trust deeds given by railroads, as a fair and equitable measure irrespective of any statutory suggestion or . requirement. While plaintiff’s bill avers that the Federal court did not require a statement of claimants to be filed with it and no notice of such proceeding was given to him or his attorneys, the details of the foreclosure suit are not in this record, and whether there was any substantial observance of that rule of decision, or general notice to claimants by publication or otherwise, we are not advised. The trial court stated plaintiff did have “knowledge of these proceedings in the district court.” The statute makes it “the duty of all courts of this State” to pursue the course outlined, which defendants contend applies only to State courts. We are not prepared, nor required upon this record, to determine it mandatory upon Federal courts located within this State.

Plaintiff’s bill shows that he has a judgment upon which execution might issue at any time, but no execution has been taken out. His bill is therefore not filed in aid of execution. His prayer for an accounting cannot confer equity jurisdiction when the bill shows its only purpose is to collect an unsatisfied judgment, the amount of which is not open to question. The palpable purpose of the bill is to have the chancery court declare and enforce collection of a statutory lien. Although there is some confusion of the law upon that subject in some jurisdictions, it has been determined in this State that while the equity court, having acquired jurisdiction for other purposes, may, as an incident to general relief granted, order property sold to satisfy a lien, it has no jurisdiction to enforce a lien, either common law or statutory, upon a bill filed solely for that purpose (Aldine Manfg. Co. v. Phillips, 118 Mich. 162), and such, we conclude, is manifestly the sole object of this bill.

The order granting defendants’ motion and dismissing plaintiff’s bill is therefore affirmed, with costs, but without prejudice.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    LEMMEN v. ALLENDALE GRANGE NO. 421.
    Deeds — Ejectment—Reversion—Evidence—Sueeiciency.
    In ejectment to recover possession of land deeded to a subordinate grange “for tbe purpose of building a grange ball and store, so long as tbe said parties of tbe second part shall use tbe said premises for said purpose,” evidence examined, and held, sufficient to sustain a directed verdict in favor of defendant.
    Error to Ottawa; Cross, J.
    Submitted January 30, 1918.
    (Docket No. 158.)
    Decided March 28, 1918.
    Rehearing denied June 20, 1918.
    Ejectment by Lambertus Lemmen against Allendale Grange No. 421 and others. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Affirmed.

      Louis H. Osterhous and DieJeema, Kollen & Ten Cate, for appellant.

      Smedley & Linsey, for appellees.
   Moore, J.

Prior to 1875, Allendale Grange No. 421 obtained a charter from the State Grange. On the 26th day of November, 1875, Allendale Grange No. 421 was incorporated under Act No. 68, Pub. Acts 1875, for a period of 30 years. Its corporate life was not renewed under this act, but in 1898, because it was claimed the prior charter had been lost or destroyed, another charter was granted to it by the State Grange. In 1876 and 1880 it received two deeds from Elizabeth Milne. Each deed provides, after setting forth the description, that it conveys to Allendale Grange No. 421 of the Patrons of Husbandry the land herein described:

“To have and to hold the said premises to the said parties of the second part, to the sole and only proper-use, benefit and behoof of the parties of the second part, for the purpose of building a grange hall and-store, so long as the said parties of the second part shall use the said premises for said purposes; but when the said parties of the second part shall cease to use the said premises for a grange hall or co-operative store, the said premises shall revert back to the said party of the first part, her heirs and assigns, but the said parties of the second part reserve the right to sell or dispose of and remove or cause to be removed all the buildings that they may build on said premises, within one year- and six months after they shall cease to use the said premises for said purposes.”

The defendant corporation built a grange hall on the lot and used the same more or less regularly for a number of years for grange purposes.

Elizabeth Milne died, and on July 10, 1916, an order was made by the probate court of Ottawa county determining her heirs. On the 10th day of June, 1915, the heirs of Mrs. Milne deeded to plaintiff and John J. Walbrink the property which had been conveyed to the grange by Mrs. Milne, and on June 9, 1916, John J. Walbrink and plaintiff divided the property, Lemmen taking the east half and Walbrink the west half.

It is the claim of the plaintiff that he obtained his interest in the property because he was told by the master of the grange and others that the grange was dead, and his claim is that it was dead when he obtained his deed. A controversy arose between the plaintiff and the master of the grange and others, the details of which it is unnecessary to recite here, and the plaintiff, claiming to be the owner of the land, brought this action of ejectment. At the close of the testimony offered on the part of the plaintiff the court directed a verdict in favor of the defendants. The case is brought here by writ of error.

We quote from the brief of appellant:

“The law in this case will be discussed under three separate and distinct headings as follows:
“1. Was there a breach of condition which made the reverter clause in the deeds from Mrs. Milne effective?
, “2. Is Lambertus Lemmen, the plaintiff, the proper party to commence this action?
“3. In whom did the title to the property vest when the corporation died?”

In our opinion a disposition of the first of these questions will make it unnecessary to discuss the others. It is true that the corporation brought into existence for the purpose of enabling the grange to conduct a co-operative store under Act No. 68 of the Public Acts of 1875, was ended in 1905, but the grange continued to hold meetings under its charter certainly until 1912, and defendants claim until now. From 1912 to 1915 these meetings were held infrequently, but the record shows that one was held November 16, 1912, one August 9, 1913, one January 20, 1914, and one November 12, 1915, since which time they have been held frequently. It is the claim of the plaintiff that the members lost interest in the grange, failed to pay their dues, were suspended; that the building was permitted to become dilapidated; that he was told by the master of the grange it was dead and that he .was advised to buy the property, and that' the want of activity on the part of the grange caused the property to revert to the heirs of Mrs. Milne, and that as he has succeeded to their rights he could maintain this ejectment suit.

The master of the grange, who was called as an adverse witness, admits he had a talk with the plaintiff in which he told him he thought the grange was dead and advised him to get into the game. He also says that he was mistaken; that it turned out that it was only dormant; that, while the members had failed to pay their dues promptly and some of them had been suspended, when plaintiff got his deed there were 13 members of the grange who had not been suspended. The by-laws of the State grange were in evidence. They show that the State grange under existing conditions might have forfeited the charter of the subordinate grange, but it did not do so. On the contrary, on November 20, 1915, the 13 members who had not been suspended met an officer of the State grange, paid certain dues and the subordinate grange was at that time revived, as some designated it, or, as others stated it, was reorganized. Its membership increased so that at the time of the trial it had upwards of 30 members. All of the time it had in its hall its charter, an organ, chairs, tables and its usual lodge furniture.

We think it may be stated as a fact that the grange had not “ceased to use the said premises for a grange hall” so that the title to the property reverted back to Mrs. Milne or her heirs and assigns.

Judgment is affirmed, with costs.

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


author: Fellows, J.

text:
    FAULKNER v. PARISH MANUFACTURING CO.
    1. Trial — Evidence—Presumptions—Directed Verdict.
    Upon defendant’s motion to direct a verdict in its favor, , the testimony most favorable to plaintiff’s claim must be accepted.
    2. Negligence — 1Trial—Personal Injuries — Evidence — Customs and Usages.
    In an action for personal injuries received by plaintiff, a skilled mechanic, in falling into an unguarded pit in defendant’s factory, while going to see a foreman, seeking employment, in view of the testimony of the foreman that he had been instructed by the manager to surround himself with skilled help, it could not be said that there was no evidence tending to establish a custom in defendant’s plant of permitting the foreman to employ skilled labor for his department.
    3. Same — Question oe Fact — Evidence—Inferences.
    Where the evidence as to whether the custom of allowing the foremen to employ the skilled labor was later abrogated by a new manager was contradictory, a question of fact was presented for the jury; they being the judges of the credibility of the witnesses and the legitimate inferences to be drawn from the testimony.
    4. Same — Contributory Negligence — Negligence.
    It cannot be said, as a matter of law, that plaintiff was guilty of contributory negligence because he entered defendant’s plant unattended at an early hour in the morning; a pitfall upon the first floor of a manufacturing plant not being a thing to be expected by an ordinarily prudent person.
    5. Appeal and Error — New Trial — Weight oe Evidence.
    That the Supreme Court might reach a different result on the facts than did the jury, is not sufficient justification for reversal on the ground that the verdict was against the weight of the evidence.
    6. Damages — Personal Injuries — Excessive Verdict — Permanent Injuries — Earning Capacity.
    Where plaintiff was 39 years old at the time of the accident, a skilled mechanic earning $25 a week, and at the time of the trial his pecuniary loss amounted to $2,100, a verdict of $9,800 was not excessive for fracture of the thigh bone, resulting in one leg being shorter than the other; he having spent five weeks in the hospital at one time and about eight months at another, suffering considerable pain; and the inference is strong that his earning power has been materially reduced.
    Error to Wayne; Mandell, J.
    Submitted January 23, 1918.
    (Docket No. 169.)
    Decided March 28, 1918.
    Rehearing denied April 25, 1918.
    Case by Edward S. Faulkner against the Parish Manufacturing Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Goodenough & Long (Angelí, Bodman & Turner, of counsel), for appellant.

      Bauble & Bauble, for appellee.
   Fellows, J.

Plaintiff is by trade a machinist, a toolmaker; defendant a manufacturing corporation employing several hundred men; it had foremen in the different departments of its plant; among them was a Mr. Hovey who was foreman over unskilled labor, also a Mr. Kadow, foreman of toolmakers. A large room, where considerable in number of the employees worked, was called the “pressroom.” A part of this room was occupied by toolmakers and the part so occupied was called the “toolroom,” although not partitioned off. The entrance to the pressroom is a large sliding door in which is cut a smaller one. Defendant has a “No Admittance” sign at this entrance. The room leading to this entrance has the time clock; it is called the “checkroom,” and is sometimes spoken of as the “clockroom.” On the right as one enters the checkroom, is a room occupied by the employment manager and timekeeper. It is not established' that there is a sign or other indication of the use of this room upon its entrance, but at the entrance of the premises, and before the building is reached is a “watchman’s house.” Its occupant, defendant claims, directs persons seeking employment to the proper room.

At the time of the accident Mr. Hovey was living at the same place plaintiff was, but they do not seem to have been acquainted. The landlady, knowing plaintiff was temporarily out of employment, spoke to Mr. Hovey about getting a job for him with defendant. He in turn spoke to Mr. Kadow, and Mr. Kadow told him to have plaintiff come to defendant’s plant. Pursuant to this he left word with the landlady to have plaintiff come to the toolroom. On the morning of February 24, 1916, the exact time being in dispute, having received this word from his. landlady, plaintiff went to defendant’s plant. The watchman testifies that he directed plaintiff to wait in the checkroom. Plaintiff denies this. In answer to special questions the jury found with plaintiff on this subject. ' It is the claim of the plaintiff that while he remained in the checkroom some employees came in, opened and blocked the small door in the entrance to the press-room; that he did not see the “No Admittance” sign; that he inquired of a laborer where the toolroom was, and was directed to a place in the pressroom where a light was burning; that it was early in the morning; the pressroom was dark, with no other light than the distant one burning. He fell into a pit a short distance from the entrance to the pressroom, which he claims had been left unguarded, and which had been excavated for the purpose of installing a heavy press. Plaintiff received serious, injuries from this fall and was confined in the hospital for several months.

Defendant insists, and its proof tended to show, that employees were not hired direct by the foreman; that it had an employment manager in a room provided for that purpose, where all employees were engaged ; that its. superintendent had, shortly before the accident, sent a written notice to all foremen directing that prospective employees be required to come to the office; that skilled employees were sent with someone to direct them to the foreman to try them out before being finally employed; that, while occasionally this rule was infringed, it was not of such frequent occurrence as to create a custom; that plaintiff was not on the premises under such circumstances as made him its invitee, and that it, therefore, owed him no duty to guard the pit or see that it was properly lighted. ■ Defendant, however, insists that it had caused the pit to be guarded, and that the pressroom at the time of the accident was properly lighted.

The plaintiff does not claim that defendant owed him the duty of guarding or lighting the pit, unless he was lawfully on the premises by invitation of defendant, either express or implied. ' He does not deny the right of the defendant to make such a rule as it may desire requiring persons seeking employment to go to the office of the employment manager instead of the foreman. He does deny that such rule was made, or at least denies that it was promulgated to the foreman of toolmakers, and insists that the plan of having skilled employees, at least toolmakers, go direct to the foreman to be first tried out before going to the employment office had been so long and so universally adhered to and acquiesced in by defendant as to amount to a custom.

At the close of plaintiff’s proofs, and again at the close of the case, defendant asked for a directed verdict. The refusal of the court to grant those motions presents the principal question in the case. The main contention of defendant is that a custom has not been established. If we consider defendant’s testimony alone, this is undoubtedly true, but upon defendant’s motion to direct a verdict the testimony most favorable to plaintiff’s claim must be accepted. The plaintiff produced as witnesses all the men who had been foremen of the toolroom covering a period of over a year and a half preceding the date of the accident. These witnesses were Fred A. Fuestel, Harold F. Skiff, and Charles K. Kadow. Mr. Feustel was in defendant’s employ in the toolroom for two different periods, one of ten and the other of four months. He testifies:

“The fact of the matter is in my time with the Parish Manufacturing Company, my first time with the concern was that any man in executive capacity employed his own help, provided he knew of suitable persons who could fill the vacancy which he might have open, he might have a friend or an acquaintance or another executive man in the institution who knew of such a man who could fill the vacancy for him, .and he might come along and suggest him. If such a man suggested it and he informed this man to bring his friend, to bring a man to the institution or send him with a slip of paper, or maybe nothing, to come in and see the man in charge preparatory to starting'to work. * * * The employment bureau never hired a man for me in the entire time I worked for the Parish Manufacturing Co. I had about 18 men under me when I started there and I used the larger class men. I covered it with ten men and would fill the vacancies whenever the occasion presented itself. I had hired men that way. * * * When a man worked for me three or four hours, 99 cases out of 100 if he filled the bill he never saw the employment man. I took his name and address, whether married or single, his age, etc., and what I knew the company required and took that in on a slip of paper myself or sent it in with the errand boy, that is all they got. After that he got his pay at the office, I would not hand it to him.”

Mr. Skiff succeeded Mr. Fuestel. He originally commenced work there under Mr. Fuestel and was hired direct by him. He testified as follows:

“The men would come in and ask the foreman for a position, and he would ask the man and see what he could do and what his ability was, and he would tell, him to go in and go to work, if lie wanted him, and if he did not want him he did not give him a job.
“Q. How did he get in there?
“A. Sometimes the watchman at the gate would tell him to go in, and if the watchman was not there he would walk in, and if the man was recommended to you, he would come out there, and if anyone stopped him he would tell the watchman, and he would come on in and he was generally told where the tool room was. I was employed there on three different occasions. I hired men in that way, and was hired myself there.”

Mr. Kadow was the foreman at the time of the accident, as we have already stated. He was originally hired to work in the toolroom by Mr. Skiff through the recommendation of a friend of his to Skiff. He testified:

“Through this friend of mine, he came up to see me and told me that they needed a man and I was not working at the time and I went over there and got a job. I walked right through there to the toolroom and saw a man named Skiff, and also this man that told me to come there. They told me to come in on Monday. They told me to come Saturday, but I did not want to come in on Saturday for a half a day, and I went Monday. I went to work then. It must have been two or three hours after I went to work before I went to the office. Afterwards I was foreman of the die and tool department. I had had requirements there for skilled labor during my time. * * * Mr. Eckert was superintendent at the time I went there as foreman of the tool department. I did not receive any instructions from him with regard to employment of skilled labor. I got instructions from Mr. Burkhardt, the manager of the Parish Manufacturing Company. They went to the effect that I was to surround myself with the most capable men that I Could get, that I was now to take charge of the tool room and surround myself with the most capable help that I could get. I procured skilled labor under those instructions at different times. Any one that knew of a man in our line of work, if he came to me and said, can you use another man, and I would say yes, and any one that he knew of he brought back in, or any one that worked there that knew about them. It must have been 25 men that I employed there in that way.”

On cross-examination he testified:

“The clockroom and employment office was erected along in October or November, 1915. It is a building about 18 feet square. The main building of the company is of brick. After that building was erected it was customary for men seeking employment to stand in the clockroom or in the employment office. That was before they got into the pressroom.
“Q. So that conditions were different at the time you were empoyed there and later?
“A. Not as far as the men got to our department, it was not any different at all. I remember distinctly of half a dozen men who were hired through the employment office that were in my department the next morning previous to my getting there. Those men were employed in the employment office after I talked with them before reporting to the employment office. I would tell them to report the next day.”

We are impressed that with this testimony in the case the court could not say that there was no evidence tending to establish a custom in this plant of permitting the foreman of the toolroom to employ the skilled labor for his department. But it is said, and much was made of it upon the argument, that in January preceding the accident Mr. Peppel became superintendent of the factory and that a few days thereafter he gave written instructions to the foremen and posted them up in the factory, that all workmen must be employed by the employment manager. Some of the foremen corroborate this but none of them are able to produce such written instructions, nor was Mr. Peppel able to produce the copy from his files, or the one posted in the factory. Mr. Kadow was not asked by either party the direct question whether he received such instructions, so far as wé are able to ascertain from the record, some of his testimony being in narrative form; but we are impressed that his testimony is reasonably susceptible of the construction that the only instructions received by him came from Mr. Burkhardt, and that there was no change ordered with reference to the men seeking employment going to his department direct, as he says: “It was not any different at all.” In addition to the testimony of these foremen, with reference to the particular department in which plaintiff was seeking employment, there is in the record the testimony of Mr. Hovey, who, as we have stated, was the labor foreman. He sustained the claim of plaintiff that skilled workmen were employed direct by the foreman. He says:

“Q. What instructions did you have, if any, with regard to employing skilled workmen, or mechanics from the outside?
“A. The help I employed I employed direct; if I needed a man I hired him and put him to work.”

He further says that he did not employ the mechanics himself but would take them to the foreman who would hire them. He further testified:

“Q. You had already done the same thing in regard to mechanics with other foremen there before this?
“A. Taken men in there — yes.
“Q. Had you been informed by any one in authority there forbidding you to do that?
“A. No, sir.
“Q. During the time you were there?
“A. No, sir.”

The jurors were the judges of the credibility of the witnesses and the legitimate inferences to be drawn from the testimony, and in view of all the testimony of Mr. Kadow and Mr. Hovey we cannot accept the contention of defendant that the testimony shows without dispute that this rule of the superintendent was promulgated in this department, or that Mr. Kadow’s orders, that he was to take charge of the toolroom and surround himself with the most capable men he could get, received direct from the manager, the head of the plant, were abrogated.

Nor are we able to say, as matter of law, that plaintiff was guilty of contributory negligence. Defendant claims that it was negligent for plaintiff to go into the pressroom unattended at so early an hour as defendant claims he did. But the time of plaintiffs arrival at the plant and of his injury were matters of dispute. The witnesses differing some 30 minutes in their testimony. It was for the jury to determine who was correct. While some of defendant’s testimony was quite persuasive its credibility was for the jury. Neither plaintiff nor any prudent person could be expected, as matter of law, to anticipate a pitfall upon the first floor of a manufacturing plant; it was not a thing to be expected. It was occasioned by preparing a foundation for a heavy press and was something out of the ordinary. Plaintiff was directed to the place where the light was burning, and while going towards it, and looking ahead, he fell into an unguarded pit. The court committed no error in refusing to direct a verdict on the grounds asked.

The trial court,, upon the motion for a new trial, found that the verdict was not against the weight of evidence, and this is assigned as error. It is not a sufficient justification for reversal on this ground that this court might reach a different result on the facts than did the jury. There must be something more. While some of defendant’s testimony would be quite persuasive if this court was the trier of the facts, we are not impressed that it so greatly preponderates as to justify us in disturbing the finding of the trial judge, who heard and saw the witnesses. We gather from this record that the trial judge felt that the case was a close one on the law and so expressed himself, but we find no such expression or intimation on the facts.

Nor are we persuaded that the verdict is grossly excessive. The amount awarded plaintiff was $9,800. At the time of the accident plaintiff was 39 years old, was- a skilled mechanic earning $25 a week. It is admitted that his pecuniary loss to the time of the trial amounted to $2,100. The concrete foundation had been put in the pit where plaintiff fell. He fractured the thigh bone. Infection set in, and a steel plate and wire were first put in, but gave way, due to softening of the bone which' became practically rotted. Several months later he was inclosed in a plaster dressing. He was in the hospital on the first occasion for five weeks, and was then home seven weeks, when he was obliged to return to the hospital, where he remained about eight months. The record fairly discloses that during all this time he had a constant discharge of pus and suffered considerably. The injured leg is two inches shorter than the other one, and the inference is very strong that his earning power has been materially reduced.

We have examined the other errors assigned, and find no reversible error. The charge was an able one, and fully protected the rights of the defendant.

The judgment is affirmed.

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


text:
    WISHCALESS v. HAMMOND, STANDISH & CO.
    1. Suicide — Accident—Evidence—Presumptions.
    Where a person is found dead under such, circumstances that death may have been due to suicide or to accident, the presumption is against suicide and in favor of accident.
    2. Master and Servant — Workmen’s Compensation Act — Finding oe Industrial Accident Board — Review.
    On certiorari to review an award by the industrial accident board, under the workmen’s compensation act, conclusions of the board, supported by competent testimony, will not be reviewed by the appellate court.
    3. Same — Death—Presumptions—Burden oe Prooe.
    Where an employee engaged in running an elevator met his death in such a way that there was a reasonable inference that it was the result of an accident while he was engaged in his employment, it falls upon the employer, who seeks to evade liability under the workmen’s compensation law, to prove the contrary.

      4. Same — Evidence—Finding oe Industrial Accident Board.
    Evidence held, to support the finding of the board that deceased met with an accident which arose out of and in the course of his employment, causing his death.
    Certiorari to Industrial Accident Board.
    Submitted January 10, 1918.
    (Docket No. 35.)
    Decided March 28,1918.
    Mary Wishcaless presented her claim for compensation against Hammond, Standish & Company for the accidental death of' her husband in defendant’s .employ. From an order awarding compensation, defendant brings certiorari.
    Affirmed.

      Beaumont, Smith & Harris, for appellant.

      Leonard L. Szymanski, for appellee.
   Moore, J.

This is certiorari to review an order of the industrial accident board on the claim of Mary Wishcaless against Hammond, Standish & Company, for compensation because of the death of her husband. Counsel say:

“The record presents the question whether there was an accident, and if so, whether it arose out of and in the course of Wishcaless’ employment by Hammond, Standish & Company. Liability was denied on these grounds at the time of the arbitration” and is now denied for the same reason.

Frank Wishcaless had been employed for five years by Hammond, Standish & Company, at its plant at Detroit, and for some months prior to and on August 18, 1916, was operator of freight elevator No. 3. On that day he disappeared. Three days later his body was found in the pit of the shaft of that elevator.

It is argued that deceased did not meet with an accident which arose out of and in the course of his employment. We quote from the brief of counsel:

“Appellant alleges that it is impossible because of the construction of the elevator and the size of deceased, to do more than merely guess how Wishcaless reached his death; that to say, his death arose out of and in the course of his employment by the Hammond, Standish & Company is pure conjecture; that such a guess or conjecture is no more reasonable than other guesses and conjectures, any one of which would bring the happening outside of the scope of the compensation act.”

Again we quote from the brief:

“The record in this case is not even strong enough to invoke the rule that compensation should not be allowed when two guesses or conjectures exist, one favorable to applicant and one opposed, both of which are equally strong. All that is known here about what happened to Wishcaless is that he had been operating the elevator some time that morning; that he disappeared; that he could not have fallen through or around the floor of the elevator into the pit; that his body was found, not at his place of employment but twelve feet below the first floor in a pit where he had no business to be and where he would not get from his place of employment because of any incident of that employment, and where he actually could not get unless he deliberately set about or was thrown there. How he got into the shaft and the pit, whether he fell into it, what caused his death, whether he was attending to his duties and suffered an accident, no one has testified. It is wholly unreasonable to. say, bearing in mind his duties and his surroundings, that his death was due to any accident which arose out of and in the course of his employment.”

Again we quote from the brief:

“It is much more logical to accept the theory of several of the witnesses that he must have forced himself through the eight and a half inch space than it is to adopt those advanced by the board. If he did that, no proof has been submitted that he was in the course of his employment while so doing and that his duties required him to do any work under the elevator platform. Rather, the proofs are that he had no business under the car, and therefore, it cannot be said that the risk was reasonably incidental to his employment. Bischoff v. Foundry Co., 190 Mich. 229; Spooner v. Detroit Saturday Night Co., 187 Mich. 125.”

We again quote from the brief:

“For the sake of argument it might even be admitted that there is sufficient evidence in the record to support a finding that deceased met his death as the result of an accident rather than by suicide, and yet it. does not follow that compensation should be awarded. The applicant must further prove that the accident arose out of and in the course of his employment. And supposing it did arise in the course of his employment, there is not an iota of testimony to prove that it arose out of his employment.” ¡

It is proper here to consider what is shown by the record. Upon the hearing counsel for appellant stated:

“I can make my line of questioning very material, if your honor please. It may be as well to state now as later that one of the defenses is that the man did not meet his death, as I have already said, through any accident that occurred at our plant; that his death was due to the voluntary act of the man himself.”

The deceased had worked for defendant a number of years. His foreman said they had less trouble with the elevator he ran than any of the others. He had a wife and several children. He left home about six o’clock in the morning. There is testimony indicating tnat he was under the influence of liquor early in the day, but the effect of the liquor apparently passed away later in the morning. About nine o’clock the mechanical superintendent reprimanded him because he was not more attentive to his work. There was testimony indicating that his wife had him arrested about three years before his disappearance. One witness said that, about three weeks before August 18th, when he disappeared, he heard him say he wished he was dead, but all of the witnesses who saw him on the day in question, who spoke upon that subject, said there was nothing in his appearance or talk out of the ordinary or that indicated he was despondent.

There is a conflict in the testimony as to the time when he disappeared. The mechanical superintendent claims that about 10 o’clock he learned there was no operator on the elevator. He learned this from the electrician, who had charge of the elevators, who testified that about 10:30 o’clock he learned the elevator was not running, who after receiving notice that the elevator had no operator, went to it and found it deserted between the fifth and sixth floors. The floor of the elevator was just far enough below the top of the door sill on the fifth floor so that he says he could crawl through the opening and into the elevator, although in doing so, the contents of his pockets were squeezed out. After considerable difficulty he opened the door from the outside with a file. All the doors were closed and locked from within the shaft.

The elevator served five floors, but did not go into the basement, leaving a pit 12 feet deep. There was but one elevator in the shaft. The elevator was lighted by electricity and the lights were burning continually. A diagram was introduced in evidence which showed the floor of the elevator was seven feet ten inches square; that there were seven and a half inches from the floor of the elevator to the east wall of the shaft, eight inches from the floor of the elevator to the north .wall of the shaft, three inches from the floor of the elevator to the south wall, and three and a half inches on the west side. These measurements were taken between the fifth and sixth floors at the place at which the elevator was found. The north and south sides of the elevator were protected by wooden walls six feet high. The other sides were not protected. There are doors on the east and west sides of the shaft on some of the floors, but on the fifth there is only a door on the west side. These doors are solid and double, swinging out. They are locked from the inside of the shaft by the elevator operator by a pine cross bar which is a two-by-four about four feet long. . The cross bar is swiveled in the center and swings, into receptacles on each end, one end of the bar being heavier than the other. The doors cannot be locked from the outside without going to considerable trouble with a thin file or long knife. The elevator cannot be operated excepting by- the controller which is a small handle attached to the top of a circular chamber six or seven inches in diameter, set up on the north wall of the elevator. It is semiautomatic, that is, the moment the operator takes his hand off the controller the elevator stops. In order to move the elevator it is absolutely necessary for the operator to keep his hand on the controller. The record does not disclose that the disappearance of Wishcaless caused any particular wonderment at the time to the mechanical superintendent, or. to the electrician. One of them inquired of the other if he had been discharged and the other testified:

“Q. When you heard on the morning of the 18th that he was not operating the elevator, what did you think had become of him?
“A. Why I simply thought he had quit and. gone home, as those fellows usually do when they are dissatisfied, walk out of the plant.”

Witnesses' gave testimony indicating that the elevator did not stop running as early as the electrician and superintendent had testified it did. Three of the witnesses on the part of the claimant testified they saw and talked with the deceased at from three to five minutes before the noon lunch hour, and that he then entered the elevator, closed the doors and started it. No one saw him alive after this. All of the witnesses for the respondent are substantially agreed that Mr. Wishcaless must have been in the elevator when it stopped, that he did not leave it through the door. One witness for the respondent had a theory that deceased for some reason of his own, after stopping the elevator, attempted to crawl over the six foot wall on the south side to get to a window on that side of the shaft to find a cool spot to rest. It is not explained why he should do this when he could have done it so much easier by stopping at the fifth floor and opening the door. Nor is it explained how, if he did it, he got into the elevator pit.

The serious question in the case is the claim that deceased must have committed suicide. We have already quoted testimony bearing upon that subject, but it is urged and witnesses testified that because of the size of the man, and the narrowness of the opening he could not have got through it without intentionally squeezing himself through. After witnesses expressed themselves to this effect the committee took a recess and went and looked at the elevator and found that the distance between the elevator and the east wall was greater than shown on the diagram which we have before mentioned, and that it was about 81/2 inches. They reached the conclusion that deceased passed through this opening to the pit where he was found.

The evidence as to the size of the deceased is not at all conclusive. No one testified as to the girth of the man, no one testified to the chest measure, the waist measure, or the hip measure. No one testified to having seen the man weighed. Witnesses gave their opinion as to his weight varying from 170 to 190 pounds. One witness in answer to the question, “Was he a man of your size or smaller?” answered, “He was larger than I am and taller. He was not taller but thicker. I am very slender.” Another witness, when asked, “Was he a heavy-set man or a light, thin man?” answered, “Well, he was medium.”

August 18th was a hot day. The deceased, like other employees, was dressed in white. It may be easily demonstrated at any elevator having a door that may be opened 8% inches, that a man of even more than medium size, dressed in summer clothes could easily pass through the opening. The record is silent as to whether the elevator was loaded when found, and if so whether the character of the load was such as to require adjustment so that some of it might not slip into this opening.

In 1 Am. & Eng. Enc. Law (2d Ed.), at p. 331, it is said:

“Presumptions — Against Suicide. — Where the insured is found dead under such circumstances that death may have been due to suicide or to accident, the presumption is against suicide and in favor of accident.”

There are cited a great many authorities in the note.

In Travelers’ Ins. Co. v. Sheppard, 85 Ga., at page 801, appears the following:

“The plaintiff must make out her cáse; but in so doing she can use the presumption against suicide which the law recognizes as arising out of the instincts of nature-, one of which is the love of life. Where the fact of death is -established, and the evidence points equally or indifferently to accident or suicide as the cause of it, the theory of accident rather than suicide is to be adopted. Cronkhite v. Insurance Co., 75 Wis. 116 (19 Ins. L. J. 267); Mallory v. Insurance Co., 47 N. Y. 52; Travelers’ Ins. Co. v. McConkey, 127 U. S. 661.”

In Walcott v. Insurance Co., 64 Vt., at p. 228, it is said:

“A person is found dead; the presumption is that his death was natural or accidental. The mere fact of death in an unknown manner creates no legal presumption of suicide or tRe taking of one’s life by his own hand or act. Upon evenly balanced testimony, the law assumes innocence rather than crime. Lawson on Presump. Ev. p. 241; 1 May on Insurance (2d Ed.) § 325; Mallory v. Insurance Co., 47 N. Y. 52 (7 Am. Rep. 410); Cronkhite v. Insurance Co., 75 Wis. 116 (17 Am. St. Rep. 184); Freeman v. Insurance Co., 144 Mass. 572.”

In Connecticut Mut. Life Ins. Co. v. Akens, 150 U. S., at p. 475, it is said:

“And in making out such proof the plaintiff is entitled to the benefit of the presumption that a sane man would not commit suicide, and of other rules of law established for the guidance of courts and juries in the investigation and determination of facts. Travelers’ Ins. Co. v. McConkey, 127 U. S. 661, 667.”

In Travelers’ Ins. Co. v. McConkey, 127 U. S., at p. 666, appears the following:

“Were the means by which the insured eame to his death also accidental? If he committed suicide, then the law was for the company, because the policy by its terms did not extend to or cover self-destruction, whether the insured was at the time sane or insane. In respect to the issue as to suicide, the court instructed the jury that self-destruction was not to be presumed. In Mallory v. Insurance Co., 47 N. Y. 52, 54, which was a suit upon an accident policy, it appeared that the death was caused either by accidental injury or by the suicidal act of the deceased. ‘But,’ the court properly said, ‘the presumption is against the latter. It is contrary to the general conduct of mankind; it shows gross moral turpitude in a sane person.’ ”

We have often held that, if there was competent testimony upon which the conclusions of the industrial accident board were based, we would not weigh that testimony. Section 5465, 2 Comp. Laws 1915; Reck v. Whittlesberger, 181 Mich. 463; Rayner v. Furniture Co., 180 Mich. 168; Vogeley v. Lumber Co., 196 Mich. 516.

In the instant case the deceased was engaged in his usual work of running an elevator. It is found stopped between floors under such circumstances that he must have been in it at the time and did not pass out through the doors. There is no good reason shown why he should climb over the top of the elevator and if he did that would not account for the presence of the body in the pit. If he stepped or fell through the opening the pull of gravity which never ceases its work would take him where he was found.

In Papinaw v. Railway Co., 189 Mich. 441, it was said:

“This claim is by a dependent of a workman who was accidentally killed, and whose evidence is therefore not available. In Grant v. Railway Co., 1 B. W. C. C. 17, it is said:
“ ‘If in such a case facts are proved the natural and reasonable inference from which is that the accident happened while the deceased was engaged in his employment, I think it falls upon the employer, if he disputes the claim to prove that the contrary was the case.’ ”

Applying the principles of law. above stated to the facts and circumstances shown in this case, we think the inference may be fairly drawn that deceased met with an accident which arose out of and in the course of his employment.

The award is affirmed, with costs.

Ostrander, C. J., and Bird, Steere, Fellows, Stone, and Kuhn, JJ., concurred. Brooke, J., did not sit.


author: Kuhn, J.

text:
    WILLIAMS v. GREEN.
    1. Parties — Partnership • — ■ Individual Name • — • Right to Sue — Fraud.
    Where the record discloses that at the time suit was brought for fraud in the sale of a saloon and restaurant business, plaintiff was the only person interested in the business, he having a written bill of sale from another who had had some interest and expected to be a partner, plaintiff could bring the suit in his individual name.
    2. Appeal and Error — Names—Fictitious Names — Registration.
    The question of plaintiff’s failure to comply with the law relating to partnership registration (Act No. 101, Pub. Acts 1907; 2 Comp. Laws 1915, § 6349 et seq.; Act No. 164, Pub. Acts 1913; 2 Comp. Laws 1915, § 6354 et seq.), raised for the first time in the Supreme Court, will not be reviewed.
    3. Trial — Conduct of Jurors — Prejudicial Error.
    Where plaintiff was a man of limited intelligence, and made a very dull and unresponsive witness, both court and counsel endeavoring to impress upon him that he should answer the questions, a remark by one of the jurors, “Say ‘Yes’ or ‘No.’ We will stand by you if he wants to lick you or anything,” did not show any prejudice with reference to the merits of the case requiring reversal.
    4. Same — Evidence—Sufficiency—Excessive Verdict.
    Evidence held, sufficient to sustain the finding of the jury which was not against the weight of the evidence; nor was the verdict excessive.
    Error to Wayne; Collingwood, J., presiding.
    Submitted January 18, 1918.
    (Docket No. 143.)
    Decided April 2, 1918.
    Assumpsit by William H. Williams against Charles A. Green for money obtained by fraud and deceit. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      John W. Goodson, for appellant.

      Zimmer & Chedester, for appellee.
   Kuhn, J.

The plaintiff, who was a man of about 59 years of age, up to the time that he became involved in the transaction which resulted in this litigation, was a farmer, residing in Ontario, Canada. In 1914 he sold his 20 acres of land for the sum of $10,000, and with the proceeds of this, sale came to Detroit, and, upon the advice of one Charles McCord, purchased a saloon and hotel at 1359 Jefferson avenue, in that city. Not being a citizen of the United States, he could not take the license out in his own name, and took it out in the name of said McCord, who was to become a partner in the business with the plaintiff, providing (to use the words of the plaintiff) “they had good luck with the business, namely, if they were successful.” On the 17th of June, 1914, a bill of sale was executed by the defendant to the plaintiff and said McCord, wherein said defendant agreed to convey to the said plaintiff and said McCord all of the stock, fixtures, goods, wares, merchandise, furniture and equipment of every name and nature, used in the saloon, restaurant and hotel business located at 1359 Jefferson avenue east, together with the good-will of said business. The plaintiff paid the defendant the sum of $4,000 cash, and gave him, as evidence of the balance due, viz., $6,000, twelve promissory notes signed by McCord and himself, secured by two real-estate mortgages on real estate owned by the plaintiff. This bill of sale purported to convey to plaintiff and McCord, as before stated, all of the bar fixtures, furniture and equipment of every name and nature used in the saloon and restaurant, while it appears undisputed that the defendant did not own, at the time that he executed this instrument, certain of these bar fixtures, chairs and tables, and the piano and clock. It is also the, theory of the plaintiff that fraudulént representations were made as to the earnings of the business. .This action is brought to recover for the property which it is claimed the plaintiff bought and did not receive and for other damages resulting from the alleged fraudulent representations. The trial resulted in a verdict of $2,269.15. Counsel for defendant and appellant urges 23 assignments of error to support his contention that the verdict and judgment should be reversed.

It does not appear that the question of an assignment of the cause of action from McCord to Williams was raised, and the first question, which is argued at some length in the brief of counsel, is that the bill of sale of the property in question, given by the defendant to the plaintiff, Williams, and Charles S. McCord, was a partnership transaction and that the plaintiff had ño right to bring this action in his individual name; that Williams and McCord were partners,.and recognized and treated as such by the defendant Green. It is contended, on the other hand, that there was no actual partnership entered into, no written agreement was made, and that the agreement simply was that McCord was to, have an interest if the business was successful. But be that as it may, the record does disclose that at the time this suit was instituted, the plaintiff was the only person interested in this business, he having purchased, on the 7th of November, 1914, all the interest, if any, which McCord had in the business, which is evidenced by a written bill of sale signed by McCord.

The further claim'is made that the plaintiff is not entitled to recover because he had failed to comply with the law relating to partnership registration. Act No. 101, Pub. Acts 1907 (2 Comp. Laws 1915, § 6349 et seq.); Act No. 164, Pub. Acts 1913 (2 Comp. Laws 1915, § 6354 et seq.). We are unable to find from the record that this claim was called specifically to the attention of the trial judge, either in the motion to direct a verdict at the close of the plaintiff’s proofs or in any other way. We therefore deem it a sufficient answer to this claim to say, as we have often said, that we will not consider any questions on appeal which were not called to the attention of the trial judge so as to enable him to pass thereon.

It is further urged that prejudicial error ■ occurred during the trial of the case, while the plaintiff was upon the witness stand and was being cross-examined by defendant’s counsel, who was having considerable difficulty in getting' answers from the plaintiff to the: questions which he was propounding. He was admonished several times by the court to answer the questions, the court saying:

“Why don’t you answer the question, then. Brace up. We can’t have this thing go on this way.”

His own counsel also advised him that, unless he answered the question, they would be obliged to drop their case and get out of the court. The court thereupon said to the witness:

“You seem to answer Mr. Zimmer all right. Why can’t you answer this gentleman the same way. He is not trying to frighten you.”

Whereupon a juror said:

“Say yes or no. We will stand by you if he wants to lick you or anything.”

It is very apparent from a reading of the record that the plaintiff was a man of limited intelligence and made a very dull and unresponsive witness. The court and both counsel were endeavoring to impress upon him that he should answer the question, and we are not impressed that the remark made by the juror showed any prejudice with reference to the merits of the question involved in the controversy. It was un= doubtedly merely an effort on the part of the juror to assist the court and both counsel in reassuring the witness for the purpose of obtaining proper answers to the questions which were being asked.

We have examined the other assignments of error, and after a careful consideration of the claims made, we are not impressed that they should lead to a reversal of this case. The issue of the fraud claimed was fairly submitted by the trial judge to the jury. In our opinion there was sufficient evidence to sustain the finding of the jury, and we will not set the verdict aside on the ground that it was contrary to the weight of the evidence. Nor was the verdict excessive, in view of the claims of the plaintiff.

The judgment should be, and is hereby affirmed.

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