text:
    FLETCHER PAPER CO. v. DETROIT & MACKINAC RAILWAY CO. ISLAND MILL LUMBER CO. v. SAME. RICHARDSON LUMBER CO. v. SAME. CHURCHILL LUMBER CO. v. SAME. MICHIGAN VENEER CO. v. SAME.
    1. Carriers — Freight Rates — Order of Railroad . Commission.
    Where the Michigan railroad commission determined that certain rates previously published and exacted from shippers by a carrier were unreasonable and ought not to be exacted, and that other rates were and would be reasonable and proper to be exacted and should. thereafter be exacted, there was created a legislative rate, immediately in effect, although liable to be set aside by the courts.
    2. Same — Freight Rates — Illegal Charges — Statutes.
    Upon the railroad commission deciding that a certain rate charged a shipper is unreasonable, and that another is reasonable, a shipper may recover the money illegally exacted through the charging of a higher than the fixed rate, irrespective of whether it declare upon Act No. 300, Pub. Acts 1909, § 10, subd. g (2 Comp. Laws 1915, § 8118fir), and the action of the commission or on the common counts.
    3. Same.
    If the charges exacted by a carrier have been duly fixed by the railroad commission, and are attacked, the commission should be first applied to, since it is the rate-maker, and it would be wholly incongruous from an administrative standpoint to have successive juries, or different courts or judges, passing upon the reasonableness of a rate already fixed by the commission.
    4. Same — Freight Rates — Validity.
    In an action by a shipper against a carrier to recover the difference between the amount paid under a tariff published by defendant and that designated by the railroad commission, the question of the reasonableness of the exactions was not a proper one for consideration.
    5. Same.
    Where rates charged by a railroad are condemned by the railroad commission as unreasonable, and new ones approved as reasonable, the collection of the old rate while a temporary injunction against the new rate is in effect does not legalize the exaction nor prevent recovery of the excess charges by the shipper, upon the representations upon which the injunction was based later being shown to be unfounded. .
    6. Same.
    An order of the railroad commission fixing rates to apply to a shipper of logs when manufactured product is reshipped via the carrier’s line, and, when not so shipped, allowing the collection of an additional charge per thou-

       sand feet, to be refunded, however, if shipper later ships out the manufactured product, or some part of it, does not provide for a rebate or discrimination, and is not necessarily unlawful, under Act No. 300, Pub. Acts 1909, § 11 (2 Comp. Laws 1915, § 8119), providing that nothing in the act shall be construed to prevent concentration, commodity, transit and other special contract rates, but all such rates shall be open to all shippers for a like kind of traffic under similar circumstances and conditions.

      7. Same.
    The order of the railroad commission, must be construed as referring to tonnage generally of a product similar to that of the logs shipped in and not of particular logs shipped in.
    8. Same — Freight Rates — Double Damages — Statutes.
    Where a carrier simply refused to put into effect a tariff ordered by the railroad commission which was temporarily suspended by injunction in a court of chancery and the shipper was compensated by the return of the money exacted with interest, double damages will not be awarded a shipper under Act No. 300, Pub. Acts 1909, § 19 (2 Comp. Laws 1915, § 8127).
    Error to Bay; Coumans, J.
    Submitted June 20, 1917.
    (Docket Nos. 94-98.)
    Decided September 27, 1917.
    Separate actions of assumpsit by the Fletcher Paper Company and others against the Detroit & Mackinac Railway Company for excessive freight charges. Judgments for plaintiffs. All parties bring error.
    Affirmed.

      Edward S. Clark, for plaintiffs.

      James McNamara and Henry & Henry (Fred A. Baker and Weadock & Duffy, of counsel), for defendant.
    Act No. 312, Public Acts of 1907, required railroad companies to file with the Michigan railroad commission, and to post in their offices and depots, tariff rates. After the act became effective, the Detroit & Mackinac Railway Company, a Michigan corporation, whose main line extended from Bay City on the south northerly through Alpena to Cheboygan, and which had branches and spurs extending into timber sections adjacent to its line of railway, published, pursuant to the act, tariff rates. The schedules of tariff rates were and are designated by the letters M. R. C., with numbers and other initial designations. February 20, 1909, a rate was published for carload shipments on logs between Alpena and what may be designated as the Fletcher dam, which provided a rate of $5 a car each way, and was designated M. R. C. 217. February 1, 1909, a rate was scheduled and published for carload shipments of logs to Alpena from various places on the lines of defendant railroad each way from Alpena, providing for a minimum of 2,500 feet per car, which fixed a rate on logs to Alpena from designated points north and south at $3 to $3.25 a thousand feet, and for a refund of 50 cents a thousand feet, the provision for the refund being:
    “A refund of 50 cents per thousand feet on logs will be made when an equal amount of manufactured product is shipped out via the Detroit & Mackinac Railway.”
    It was known as M. R. C. 205. February 20, 1909, a rate was in like manner published for hauling logs in carload lots on a mileage basis, without reference to the places from or to which they were transported, and it contained the provision:
    “The rates named herein apply only when the manufactured product is to be reshipped via Detroit & Mackinac Ry. and in the absence of tariff naming specific rates.”
    March 11, 1909, the Fletcher Paper Company filed with the Michigan railroad commission a complaint, alleging that the rate so fixed by M. R. C. 217 was unfair and retaliatory, praying for an order requiring the defendant to desist from violations of the law referred to in the said petition. ■ To this the defendant filed a detailed answer. t April 19, 1909, F. W. Gilchrist, the Churchill Lumber Company and Island Mill Lumber Company filed with the commission a complaint, alleging that defendant by its tariff M. R. C. 205 discriminated against Alpena shippers in favor of Cheboygan, and that the tariff was unjust and unduly discriminatory and higher than the rates established by M. R. C. 208, and prayed for an order requiring defendant to cease and desist from violations of the law and to publish and file rates shown on an attached statement. To this the defendant filed its answer. After the filing of the complaints, and before proofs before the Michigan railroad commission had been concluded, defendant published a schedule of rates, designated as M. R. C. 237, abolishing all discriminations in favor of Cheboygan. The testimony of the complaining parties and of the defendant was taken in June, 1909, and on October 22d of that year the commission made an order on the complaint last above referred to, the one made by Gilchrist and others, reciting that the matters alleged in the complaint were substantially true, and that the rates charged for the transportation of logs in carload lots to the said city of Alpena were unjust, unreasonable, and excessive, and ought to be reduced as therein set forth, and providing that the defendant railway company publish and file and put into operation so as to become effective 20 days from the service of the order a tariff for the transportation of logs in carload lots to the said city of Alpena according to rates set out in said order corresponding with M. R. C. 208. Following the statement of rates, the order contains the following:
    “Above rates to apply when the manufactured product is reshipped via defendant company’s line, and when not to be so reshipped, that defendant company are authorized to collect in addition to said rate, fifty cents (50c) per thousand (1,000) feet, but if later reshipment is made over defendant company’s line, they are to refund to such shipper the fifty cents (50c) per thousand (1,000) feet collected.”
    No provision was made in this order for a minimum carload lot, and on November 3d following the commission, without any further hearing, made a supplemental order, fixing the minimum at 2,500 feet per car. .
    Upon the complaint of the Fletcher Paper Company, and on October 19, 1909, the commission made an order, reciting that it appeared that the switching charge of $5 per car between Alpena and the dam (Fletcher dam or Broad well dam) was unreasonable and unjustly discriminatory, and that a rate of $3.50 per car would be reasonable and just, and they ordered the defendant, within 20 days from the date of service of'a copy of this order upon it, to file, publish, and put into force a rate for such switching charge not to exceed $3.50 per car in each direction on all commodities, and ordering that M. R. C. 217 be canceled, and that the defendant cease, after said 20 days, from charging more than $3.50 a car for such switching charges. The order relating to switching charges was served on defendant November 4, 1909, and the final order, relating to freight rates, was served on November 6, 1909. It is from the time they became effective, that is, 20 days after service, that plaintiffs compute their damages.
    On June 2, 1909, Act No.. 300 of the Public Acts of 1909 (2 Comp. Laws 1915, § 8109 et seq.), was approved, and it became effective in September. By its terms Act No. 312 of the Public Acts of 1907 was repealed so far as there was conflict between the two acts. The two acts are generally similar, and not different. As matter of fact, the defendant did not actually file, publish, and put into effect the schedule of rates provided for in the orders which have been referred to, but the schedules, as hereinbefore designated, continued, so far as their publication and enforcement were concerned, unchanged until February 18,. 1915.

      By Act No. '800, Pub. Acts 1909, § 22, it is provided:

      “(a) Upon complaint in writing of any person, firm or corporation or association, or of any mercantile, agricultural or manufacturing society, or of any body politic or municipal organization, that any of the rates, fares, charges or classifications, or any joint rate or rates are in any respect unreasonable or unjustly discriminatory, or that any regulation or practice whatsoever affecting the transportation of persons or property or any service in connection therewith, is in any respect unreasonable or unjustly discriminatory, or that any service is inadequate, the commission shall notify the common carrier complained of that complaint has been made and shall furnish a copy of the said complaint with said notice, and twenty days after such notice has been given the commission may proceed to investigate the same as hereinafter provided. Before proceeding to make the investigation, the commission shall give the said common carrier and the complainants at least ten days’ notice of the time and place when and where such matters will be considered and determined, and said parties shall be entitled to be heard and shall have process to enforce the attendance of witnesses. Such hearings may be continued from time to time in the discretion of the commission. If, upon such investigation, the rate or rates, joint rate or rates, fares, charges or classifications, regulation, practice or service complained of shall be found to be unreasonable, inadequate or unjustly discriminatory, the commission shall have power to and it shall determine and by order fix and order substituted therefor, such rate or rates, joint rate or rates, fares and charges, as is or are just and reasonable, and which shall be the maximum to be charged in the future, and such classifications, regulation, practice or service as is or are just, reasonable and adequate, and which shall be imposed and followed or service rendered in future in lieu of that found to be unreasonable, inadequate or unjustly discriminatory, and in either case the commission shall make an order that the common carrier cease and desist from such violation, and shall conform to the regulation and practice so prescribed, and it shall cause a certified copy of each, such order to be delivered to an officer or station agent of the common carrier affected thereby, which order shall, of its own force, take effect and become operative twenty days after the service thereof.” * * *
    By section 25 it is provided that all rates fixed by the commission, and all regulations, practices, and services shall be in force and shall be prima, facie lawful and reasonable—
    “until finally found otherwise in an action brought for the purpose pursuant to the provisions of section twenty-six of this act or until changed or modified by the commission.” * * *
    Every carrier is required (section 4) to furnish reasonably adequate service, making just and reasonable charges therefor, and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful. By section 10, subd. “g,” it is provided:
    “Within six months after the delivery of any shipment of freight at destination any person aggrieved, may complain to the commission that the charge exacted for the transportation of such freight between points in Michigan is irregular or exorbitant, and thereupon the commission shall have power to investigate such complaint, and to hear the same and to decide upon the merits thereof, in the manner provided by section twenty-two of this act. If, upon such hearing, the commission shall decide that the rate or charge exacted is irregular or exorbitant it shall find what, in its judgment, would have been a reasonable rate or charge for the service complained of. If the rate or charge so found shall be less than the charge exacted the carrier shall have the right to refund to the person paying such charge the amount so found to be excessive. In case of the refusal of the carrier to make such refund, the party aggrieved thereby may maintain an action in the courts of this State, to recover the amount of such excessive charge as found by said commission, and in the trial thereof the findings of the commission shall be prima facie evidence of the truth of the facts found by it, and no carrier shall be permitted to avail itself of the defense of such action that’ the shipment involved was in fact made on the published tariff rate in force at the time such shipment was made, but no carrier making a refund upon the order of the commission or pursuant to a judgment of court as herein provided, shall be liable for any penalty or forfeiture,' or subject to any prosecution under the laws of this State on account of making such refund.”
    Section 19 reads:
    “If any common carrier shall do, or cause to be done, or permit to be done, any matter, act or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter or thing required to be done by it, or by any lawful order made under the provisions of this act by the Michigan railroad commission, such common carrier shall be liable to the person, firm or corporation injured thereby in double the amount of damages sustained in' consequence of such violation: Provided, That any recovery as is in this section provided shall in no manner affect a recovery by the State' of the penalty prescribed for such violation.”
    By section 26 is provided the method by which the carrier or other party in interest may seek to have set aside, in the circuit court, in chancery, any order fixing any rate or rates, in which proceeding the complaining party has the burden of showing “by clear and satisfactory evidence” that the order of the commission complained of is unlawful or unreasonable. One provision (b) of the section is that no injunction shall issue suspending or staying any order of the commission, except upon application to the circuit court, in chancery, or to the judge thereof. Sections 32 and 47 are here set out:
    “Sec. 32. Whenever, after hearing and investigation as provided in this act, the commission shall find that any charge, regulation or practice affecting the transportation of passengers or property, or any service in connection therewith not herein specifically designated, is unreasonable or unjustly discriminatory, it shall have the power to regulate the same as provided in section twenty-two of this act.”
    “Sec. 47. In addition to all the other remedies provided by this act for the prevention and punishment of any and all violations of. the provisions hereof and of all orders of the commission, the commission, and likewise any. person, firm or corporation interested, may compel compliance with the provisions of this act and with the orders of the commission by proceedings in mandamus, injunction or by other appropriate civil remedies.”
    The defendant, following the provision of the statute, on November 20, 1909, filed its bill of complaint in the circuit court for the county of Wayne, in chancery, alleging reasons why the said orders of the Michigan railroad commission should not become effective and operative and why the defendant should not publish a schedule of rates pursuant to such orders. It asserted that the proposed rates were unlawful and unreasonable, were not subject to the regulation or control of the commission, were in conflict with the constitutional provisions and laws of the State, and in violation of the due process of law clause of the 14th amendment to the Constitution of the United States. It prayed, among other things, for a temporary injunction restraining the commission from enforcing, or attempting to enforce, such orders or making them effective. The chancellor made an order requiring the commission to show cause on the 24th of November, 1909, why such an injunction should not issue, and, no one appearing at the time named in the order to. show cause, a hearing was had, and, defendant being represented in court, a restraining order was issued, requiring the commission to—
    “desist and refrain from putting into operation or making effective three orders of said Michigan railroad commission directed to the Detroit & Mackinac Railway Company, said complainant, dated respectively October 22, 1909, October 19, 1909, and November 3, 1909, known and set forth in complainant’s bill of complaint as Exhibits 1, 2 and 3, which said orders undertake to make a new tariff for the transportation of logs in carload lots to the city of Alpena over the Detroit & Mackinac Railway Company, other than the ones now in force and effect on said complainant’s railroad, until the further order of this court.”
    Later, on December 2, 1909, a stipulation was made in writing, signed by the solicitor for the complainant and the attorney general of Michigan, which, omitting the title, is as follows:
    “It is hereby stipulated by and between the attorneys for thé respective parties hereto that the application for an injunction and the order to show cause made by said court, and the hearing thereon may be and is hereby continued in its present state until the final determination of said cause upon the merits thereof.”
    The Fletcher Paper Company, Frank W. Gilchrist, Churchill Lumber Company, and the Island Mill Lumber Company upon their petition were permitted to intervene with the Michigan railroad commission as defendants in the chancery suit, and various parties were, in like manner upon petition, permitted to intervene as parties complainant, and all of such intervening parties, defendants, and the Michigan railroad commission filed answers to the bill of complaint; and, the cause being at issue, proofs were taken, heard, and a final decree dismissing the bill was entered therein, which decree was signed February 11, 1911. As originally submitted, the decree contained a provision for the dissolution of the injunction, which* provision was struck out by the judge who signed the- same. An appeal was taken from the decree of the Wayne circuit court to the Supreme Court, was heard, and the decree of the lower court was affirmed. Detroit, etc.,

      R. Co. v. Railroad Commission, 171 Mich. 335 (137 N. W. 329). Later a writ of error to the United States Supreme Court having been refused unless defendants would execute a bond for the benefit of interested parties, which the defendants did not do, and an application for a writ of certiorari to the United States Supreme Court having been denied by one of the Justices of that court, the defendant, on August 17, 1912, filed a bill of complaint in the district court of the United States for the eastern district of Michigan, southern division, in equity, asking for a review of the orders of the railroad commission as to their legality and effectiveness, and applying also for a temporary injunction. The commission filed an answer to the bill and to the motion for injunction, and the matter was submitted September 27, 1912, to three Federal judges, who, on the 22d of March, 1913, filed an opinion denying the motion for temporary injunction, from which decision an appeal was taken to the United States Supreme Court, the return on such appeal being filed June 28, 1913. The commission and other defendants moved to dismiss such appeal or affirm the decree, and that court, December 14, 1914, affirmed the decree. Detroit, etc., R. Co. v. Railroad Commission, 235 U. S. 402 (35 Sup. Ct. 126). A motion of the commission to amend the decree in the principal cause was denied. 178 Mich 250 (144 N. W. 689). June 16, 1914, the Michigan railroad commission petitioned the Supreme Court of Michigan for a writ of mandamus to compel the defendant to file and publish the orders made by the Michigan railroad commission and comply with their provisions, which writ was granted pursuant to the petition July 25, 1914. Michigan Railroad Commission v. Railway Co., 182 Mich. 234 (148 N. W. 385). The defendant, on August 15, 1914, published a tariff of rates on the transportation of logs to Alpena, which was not approved, whereupon contempt proceedings against the defendant were instituted and were disposed of February 4, 1915. Michigan Railroad Commission v. Railway Co., 184 Mich. 242 (150 N. W. 861). February 18, 1915, a tariff was published by the defendant, followed by a further motion in the contempt proceeding. Defendant moved to amend and modify the opinion reported in 184 Mich. 242 (150 N. W. 861). These motions were submitted April 6, 1915, and were denied April 22, 1915. Michigan Railroad Commission v. Railway Co., 185 Mich. 649 (152 N. W. 198). In the opinion of this court then delivered, one of the contentions of the relators is thus debated and disposed of:
    “The second contention of relators again raises the question of the construction of the following paragraph contained in the order of the railroad commission, which was put into effect on February 19, 1915:
    “ ‘Above rates to apply when the manufactured product Is reshipped via the Detroit & Mackinac Railway Company. And when not to be so reshipped, the railway company will collect in addition to the above rates fifty (50) cents per thousand feet. But if later reshipment Is made over the Detroit & Mackinac Railway, the company will refund to such shipper the fifty (50) cents per thousand feet collected,’
    “It is. shown by relators in this application that the respondents construe this clause as permitting them to charge in all instances the extra 50 cents per thousand feet and to rebate the same only when it is shown that the manufactured product is reshipped via the respondent railway company’s lines, and this is urged by relators as a reason why a penalty should be inflicted. The construction given to this clause of the order by the respondents was urged upon the court in the original contempt proceeding, and we there held that their contention was untenable; this for the reason that they were plainly in contempt in failing to comply with the order of this court by putting into effect the orders of the railroad commission, as they were directed by this court to do. Having obeyed the order of the court by filing the rate fixed by the commission, we are of opinion that their contention with reference to its construction may fairly receive consideration. A careful reading of the clause in question will serve to demonstrate its ambiguity. The last sentence of the clause, ‘But if later reshipment is made over the Detroit & Mackinac Railway, the company will refund to such shipper the fifty (50) cents per thousand feet collected,’ indicates very clearly that, in some instances at least, it was contemplated by the commission that the higher rate should be charged and collected, and the extra 50 cents refunded only after reshipment over respondent railway company’s lines had been made. It would not seem reasonable to suppose that the commission intended one rule to apply to one shipper and another to another shipper; and such a result would be of doubtful legality even if intended. These views are based wholly upon the language of the clause in question, and are not predicated upon the contention of respondents that to compel them to carry, in the first instance, all logs at the dower rate, collecting the extra 50 cents only after they could make proof that the product had been reshipped over their line, would entail upon them unnecessary hardship and loss. Without determining that the construction given to the clause by the respondent is correct, we are satisfied that it is so far justified as to warrant us in withholding the infliction of a penalty upon rélators’ theory that, acting under such construction, respondents still continue in contempt.”
    April 3, 1915, the Fletcher Paper Company, Island Mill Lumber Company, Richardson Lumber Company, Churchill Lumber Company, and Michigan Veneer Company each began a suit against the Detroit & Mackinac Railway Company in the circuit court for the county of Bay, filing in the said causes, respectively, a declaration, alleging the right to recover from the defendant the difference between the amount paid by them as shippers under the tariff published by the defendant and the tariff designated by the said several orders of the Michigan railroad commission, counting expressly on such orders, and including in their declarations the common counts in assumpsit. They served with the declarations bills of particulars, consisting of a summary by years of the alleged overcharges and interest théreon. The defendant in each case appeared and demanded a more specific bill of particulars, and moved to dismiss for want of jurisdiction, and thereafter, on May 12, 1915, demurred to each of the said declarations. Six grounds of demurrer were alleged, as follows:
    “I. The common-law remedies for irregular, exorbitant, unreasonable or excessive charges or exactions by common carriers for the transportation of freight between points in Michigan have been abrogated and abolished by subdivision ‘g,’ § 10, Act No. 300, Public Acts 1909, pp. 704, 715, as re-enacted by Act No. 139, Public Acts 1911, pp. 205, 209, the same being the acts of the legislature of this State, defining and regulating common carriers and creating the Michigan railroad commission.
    “II. The plaintiff seeks reparation without having made any complaint to the Michigan railroad commission under said subdivision (g’; and the special counts of its declaration do not show that complaint had been made to the commission, or that the commission has made any findings or orders on complaints made under said subdivision.
    “III. It appears by the special counts of the plaintiff’s declaration that the orders therein set forth of October 22,1909, and November 3, 1909, were not put in force by filing a schedule or tariff until February 18, 1915, and that the plaintiff’s cause of action is for alleged excessive charges before that date.
    “IV. It does not appear by the plaintiff’s declaration that the order therein set forth of October 19, 1909, was ever put in force by the filing of a tariff or otherwise.
    “V. No cause of action is set forth in the special counts of the plaintiff’s declaration.
    “VI. The plaintiff’s bill of particulars shows that it has no cause of action under the common counts of

      the declaration, other than the alleged causes of action in the special counts.”
    The motion to dismiss was denied, and an order overruling the demurrers was entered July 7, 1915. July 12,1915, an application was made to the Supreme Court for a writ of certiorari to review the order overruling defendant’s demurrers, which application, on July 23, 1915, was denied. Thereupon, July 23, 1915, the defendant pleaded, giving notice of certain special and affirmative defenses. A more specific bill of particulars was filed, with certain stipulations of counsel. On December 31, 1915, the following stipulation was filed in the cause:
    “For the purpose of facilitating the trial of these cases, it is hereby stipulated as follows :
    “A bill of particulars and a more specific bill of particulars have been furnished in the Fletcher Paper Company case, and bills of particulars similar to the more specific bill of particulars in the Fletcher Paper Company case have been furnished in all of the other cases. The more specific bill of particulars in the Fletcher Paper Company case has been checked by defendant, and certain amendments which have been agreed upon will be made by a stipulation to be hereafter filed. In the other four cases, the bills of particulars furnished will be checked over by defendant’s accountants as rapidly as possible, and a list of the disputed or incorrect items (if any) will be furnished plaintiff’s attorneys in each case as soon as possible, and an effort will be made to ascertain and agree upon the facts in regard to each. A stipulation covering the facts, so far as they can be agreed upon, will be filed in each case, leaving in dispute upon the trial only such items (if any) as cannot be disposed of by such stipulations. In order to satisfy plaintiffs that the work of checking up the bills of particulars is proceeding with reasonable speed, any representative of the plaintiffs may at any time make inquiries at the office of the defendant at Alpena, and will be given information in regard to the rate of progress that is being made.

      “Defendant will make all possible efforts to complete the work of checking up the bills of particulars promptly, so that the cases may be tried at the earliest date consistent with the completion of that work. If that work can be completed during the December term of the circuit court for the county of Bay, then the said cases shall be placed upon the docket for that term to be tried as soon as possible thereafter. If there is any unreasonable delay on the part of the defendant, plaintiffs may apply to the court by motion on the usual four days’ notice, and the court, on the hearing of said motion, may set the cases for trial or may make such other order as may seem to him proper for the purpose of expediting the preparation and trial of the cases.
    “All of the cases shall be consolidated for trial as far as possible in the following manner: All of the cases shall be submitted to the same jury (or to the court) at the same time. If the attorneys for all parties can agree that there are no questions for a jury, a jury will be waived by all parties. The parties will, first introduce so much of their evidence as may apply jointly to all of the cases, and will then introduce separately the evidence applying to each one of the cases separately, and the court or jury shall make a separate finding or verdict as to each with the same effect as if they had been separately tried. A separate judgment shall be entered in each case.”
    The issues joined came on to be tried September 19, 1916, without a jury. Plaintiff’s counsel-offered in evidence the proceedings in the so-called rate cases, including the files, pleadings, evidence, record and briefs in all of the court hearings hereinbefore referred to, concluding with evidence of computations of the amounts claimed and interest to various periods in the progress of the rate cases proceedings, with other evidence and depositions.
    It appeared, among other things, that the Fletcher Paper Company does not manufacture lumber. All forest products received by it are made into paper. In addition to what it receives via defendant’s line, it also receives logs by water. Ninety-eight per cent, of its output goes out over defendant’s line. During six years, its average was 1,834 pounds of paper to 1,000 feet of logs. It shipped in by rail 20,481,619 feet of logs and shipped out by rail 117,408,337 pounds of paper. This shipment of paper represents the manufac-. tured product of more than 64,000,000 feet of logs.
    All of the manufactured product of the Michigan Veneer Company from logs shipped in by rail went out by rail excepting six boat shipments, during the six years in question. These were more than offset by the product of logs brought in by team.
    In the cases of the Michigan Veneer Company and Fletcher Paper Company, the computation of plaintiffs’ demand is made by using the flat commission rate, saying nothing about the 50 cents per thousand, and the rate actually paid.
    • The claims of the other plaintiffs are not materially different from each other. They operated sawmills, shipping out timber by rail and by water.
    “Their claims for overcharges are first computed by subtracting from the amount paid on each shipment the commission rate without any allowance for the differential. Outshipments of lumber by rail are then shown, and are subtracted from the total amount of logs shipped in by rail. The difference represents such of th'e logs shipped in by rail as were not reshipped by rail, and upon this difference the sum of 50 cents per thousand was computed and .deducted from plaintiff’s claim (in this way being added to the commission rate) as a penalty for failure to reship this part of the manufactured product by rail. . In these cases it does not appear, and cannot be made to appear,-just how much of the lumber reshipped by rail was sawed out of the individual logs that were shipped in by rail. The logs and the lumber were both necessarily confused in the process of manufacture, but the lumber reshipped was identical in every respect with the lumber manufactured from logs shipped in by rail, and may have been actually manufactured from those logs.”
    Defendant made a statement of the defense, giving an outline of events connected with the matter in issue, and moved to dismiss the causes. Before that motion was decided, defendant offered to submit proofs in addition to the documentary evidence and other evidence before the court, which motions were taken under consideration. The offer to prove was calculated to present the issue that the rates fixed in the orders of the Michigan railroad commission were in fact confiscatory and therefore unlawful. Stated otherwise, the position asserted was that the rates collected were in fact fair and reasonable rates. Later, September 27,1916, a motion was made and filed, praying for an order requiring plaintiffs to elect whether they would rely upon the statutory counts in their declarations, or whether they would rely upon the common counts in assumpsit and seek a recovery under a general common-law remedy. November 13, 1916, the court filed an opinion in the several causes, with findings of fact and conclusions of law, denying defendant’s motion to dismiss, refusing proofs under defendant’s offer, determining that each of the plaintiffs was entitled to the full amount of its claim, with interest, and directing that judgment should be entered November 20, 1916, in pursuance of said opinion, findings, and conclusions. On the 16th of November, 1916, the plaintiffs moved the court to double the damages indicated by the opinion and findings. This motion was denied, and, on November 27, 1916, judgments were rendered for the plaintiffs for the amounts of said overcharges, respectively, with interest at 5 per cent, from the time such overcharges were respectively made to November 13, 1916. The judgments were: For the Fletcher Paper Company, $25,788.76; Richardson Lumber Company, $28,239.65; Island Mill Lumber Company, $24,584.88; Churchill Lumber Company, $14,336.13; Michigan Veneer Company, $6,-058.19.
    A motion for a new .trial was made by defendant, which was denied. The defendant excepted to the findings of fact and law, to the refusal to dismiss the proceedings and render a verdict of no cause of action, to the refusal to grant a new trial, and it is not claimed, and it does not appear, that the questions presented and argued upon the appeals are not properly saved. The defendant sued out its writ of error in each of said .causes; the plaintiffs, excepting to the refusal of the court to double the damages, are also plaintiffs in error.
    Three of the five plaintiffs, Fletcher Paper Company, Richardson Lumber Company, and Michigan Veneer Company, made no complaint to the railroad commission, and no order was ever made by the commission in their behalf upon their application, excepting the order with respect to the Fletcher Paper Company’s switching rate. Two of the plaintiffs, Richardson Lumber Company and Michigan Veneer Company, did not intervene in the litigation to fix or enforce the said rates. All plaintiffs have, however, been treated alike in the proceedings had in the court below to the rendition of the judgments.
    The principal questions presented and argued for defendant are:
    (lj Whether a complaint to the Michigan railroad commission is not a necessary preliminary to any action by a shipper or consignee to recover excessive rates or charges which have been already collected by a carrier.
    (2) Whether an injunction issued to prevent an order of the commission from taking effect, no bond being required from .the carrier and no order impounding the overcharge, does not prevent the order from having any force or effect until the commission obtains and serves a mandamus commanding the carrier to put the order into effect. (In this connection the effect of the stipulation entered into by the attorney general is discussed.)
    (3) Was the defendant entitled to prove on the trial that the rates and charges it collected were just and reasonable?
    (4) Should the court below have required the plaintiffs to elect whether they would seek to recover on common-law grounds or under the statute?
    (5) Is the rebate of 50 cents per thousand feet of logs shipped into Alpena on the defendant railroad in case the manufactured product is shipped out thereon a legal discrimination against those who shipped out by water?
    (6) Is there any ground on which any of the damages recovered or recoverable by plaintiffs can be doubled?
    Plaintiffs state, also, substantially the same questions, as follows:
    “(1) Is a freight rate fixed by a State railroad commission considered as the lawful rate, during chancery litigation to determine its legality?
    “(2) To what extent is the chancery decree to be considered as res judicata?
    “(3) Is the general rule changed by the delay of the railroad company in publishing and posting a new tariff in compliance with the orders of the commission?
    “ (4) Is the general rule affected by delay in the enforcement of the rate by mandamus?
    “(5) Is the application of the general rule in this case changed by the injunction issued by the chancery court or the stipulation of the attorney general in respect thereto?
    “(6) Is there any distinction between a common-law action and a statutory action in such a case, and has there been any failure to select the proper remedy or to follow any statutory requirements which are necessary preliminaries to such an action? (a) In general, (b) Defendant’s offer of proof.
    “(7) What are the plaintiff’s rights in respect to an allowance for the outshipment of the manufactured product? («■) Validity of provision for credit on reshipment. (6) Construction and application.
    “(8) Is the situation in any way affected by the motion for a new trial ?
    “(9) Plaintiff’s motion for double damages and the cross writ of error based thereon, (a) Double clam-ages not a penalty. (6) Rule to be applied if double damages aré considered as a penalty.
    “(10) ‘Election of remedies.’
    “(11) Defendant’s demurrer.”

       Removed to the Supreme Court of the United States by writ of error January 2, 1918.

       As to right of carrier to make discriminating rate for materia] to be employed in manufacture of a finished product which will be shipped over its road, see note in 6 L. R. A. (N. S.) 225.
      On recovery back of excessive payments to public service corporations, generally, see note in 18 L. R. A. (N. S.) 124.

   Ostrander, J.

(after stating the facts). The Michigan railroad commission determined that certain rates (charges) theretofore published and exacted from shippers by defendant were unreasonable and ought not to be exacted, and that certain other rates (charges) were and would be reasonable and proper to be exacted and should thereafter be exacted. The action of the commission furnished for the. benefit of any and every shipper evidence that the old rates were illegal, the new rates reasonable and lawful. Although liable to be set aside by the courts, the result of what the commission did was a legislative rate, immediately in effect. Michigan Cent. R. Co. v. Wayne Circuit Judge, 156 Mich. 459 (120 N. W. 1073); Michigan Railroad Commission v. Railroad Co., 159 Mich. 580 (124 N. W. 564); Detroit, etc., R. Co. v. Railroad Commission, 171 Mich. 335 (137 N. W. 329); Michigan Railroad Commission v. Railway Co., 178 Mich. 230 (144 N. W. 696). See Detroit, etc., R. Co. v. Railroad Commission, 240 U. S. 564 (36 Sup. Ct. 424).

This point, a vital one, may be restated. The rates fixed by the commission were not effective when, and if, an attacK upon them failed, but were effective at once and pending any attack upon them.

Attacks made by defendant upon the action of the commission failed. The commission has not itself modified its determination. It is admitted that defendant has refused to conform to the orders of the commission, and has exacted from plaintiffs rates (charges) higher than those fixed by the commission. It has therefore money which in equity and good conscience belongs to the plaintiffs, which it ought to restore to them. Putting aside the question of the effect of the injunction and the question whether the statute has provided a method for recovering such exactions, no reason appears for denying to plaintiffs, or any other affected shipper, the right to recover from defendant all of the money so illegally taken from them, in an action of assumpsit in which it is wholly immaterial whether they declare upon the statute and the action of the commission or upon the common courts. As was said by Carland, J., in Love v. North American Co., 229 Fed. 103 (143 C. C. A. 379):

“The railroad company got this money into its treasury by superseding rates that were fixed by authority of the State. When those rates were sustained, the carrier was bound to restore its excessive exactions. This was a duty not only to the shippers; it was a public duty owing to the State, whose orders had been superseded.”

The action of the commission, in any event, furnishes the necessáry evidence of the unlawful character of the exaction.

It is clear, I think, that plaintiffs have no statute remedy, and that the statute does not seek to interfere with or amend the remedy at common law. Plaintiffs base their actions precisely upon the action of the commission. Everything essential to a recovery, so far as the character of the exaction is concerned, has been determined by the commission, whose determination they rely upon. If it were otherwise, if the charges exacted by the defendant had been duly fixed according to the act and approved by the commission, and they were attacked, a different question would be presented. In such a case, the commission, and not the courts, should be first applied to. In the first place, the commission is the ratemaker; in the second place, it would be wholly incongruous from an administrative standpoint to have successive juries, or different courts and judges, passing upon the reasonableness of a rate already fixed by the commission. To this effect are the decisions in Texas, etc., R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426 (27 Sup. Ct. 350, 9 Am. & Eng. Ann. Cas. 1075); Robinson v. Railroad, Co., 222 U. S. 506 (32 Sup. Ct. 114); Gimbel Bros. v. Barrett, 215 Fed. 1004. These cases are authority, also, for the rulings of the trial court refusing to receive and consider offered evidence, and denying defendant the right to try out in these cases the question of the reasonableness of the exactions it made.

Defendant does, indeed, say that the charges made by it were once approved, and were published as its rates, and, until suspended, were lawful rates; this as a part of an argument which asserts that only the voluntary action of the carrier or the writ of mandamus can put into operation rates fixed by the commission. It makes little difference whether we do or do not say that the new rates were in effect, or whether we say they were in effect, but not in operation. The old rates were condemned as unreasonable, and the new ones approved as reasonable by the commission, action which is now, and was when these suits were begun, conclusive upon defendant.

Instead of publishing and collecting the rates fixed by the commission, defendant sought and obtained an injunction restraining the commission from putting into operation its said orders. The statute plainly recognizes the authority of a court of equity to so suspend the operation of the orders of the commission. The case of the defendant is not, however, that of one prevented from doing something, pleading the prevention in excuse, or bar, of the consequences of its enforced nonaction. On the contrary, it is pleading its own action, pleading the injunction it sought for and secured upon representations held to be unfounded, as an excuse for retaining an exaction at all times prima facie unlawful, and, finally, in its own suit, conclusively determined to be unlawful. The temporary injunction permitted defendant, notwithstanding the orders of the commission, to continue to take what its published tariffs called for, but it is not apparent, and is not pointed out, how it legalized the exaction. See Pacific Gas & Electric Co. v. San Francisco, 211 Fed. 202; Spring Valley Water Co. v. San Francisco, 165 Fed. 667; In re Arkansas Railroad Rates, 168 Fed. 720; Bellamy v. Railway Co., 220 Fed. 876 (136 C. C. A. 442); State, ex rel. Barker, v. Railroad Co., 265 Mo. 646 (178 S. W. 129, L. R. A. 1916C, 309).

It will be perceived that the order of the commission fixes freight rates to apply when manufactured product is reshipped via defendant’s line, and, when not so reshipped, the defendant is permitted to collect 50 cents per thousand feet additional, to be refunded, however, if shipper later ships out the manufactured product or some of it. Ambiguous the order in some respects is, but not, I think, in respect to the rate. The order made a rate of $1 a thousand for logs in car loads moving 10 miles or less, and varying rates as the distance was increased. To them defendant was permitted to add 50 cents a thousand, no matter what the length of haul, if the product was not shipped out by its line. Defendant could take nothing from these rates. What it did was to enforce its old tariff of $3 and $3.25 per thousand feet, which tariff contained the provision for a refund of 50 cents per thousand when an “equal amount of manufactured product” was shipped out over its line. Defendant says that:

“The rebates offered by the railroad company and the provision to the same effect in the order of the railroad commission”

—are a plain violation of the act. If a rebate was intended, or was provided for, a discrimination in favor of particular shippers, no difference of opinion would exist. This provision was not questioned in the bill filed by the defendant. In my opinion, there is no rebate, no discrimination, provided for in the order. A uniform rate is established, and with it a milling in transit rate, not necessarily unlawful and not shown here to be unlawful. Watkins on Shippers and Carriers (2d Ed.), § 169; In re Transportation of Wool, Hides, and Pelts, 23 I. C. C. R. 151; Transit Case, 24 I. C. C. R. 340; Laurel Cotton Mills v. Railroad Co., 84 Miss. 349 (37 South. 134, 66 L. R. A. 453). The statute, section 11 (2 Comp. Laws 1915, § 8119), reads:

“Nothing in this, act shall be construed to prevent concentration, commodity, transit and other special contract rates, but all such rates shall be open to all shippers for a like kind of traffic under similar circumstances and conditions.” * * *

Defendant says, however, that to entitle any of the plaintiffs to the flat mileage rate fixed by the commission, they must have proved, not only that the manufactured product reshipped equaled the product of the logs shipped in by rail, but also that it was actually made from the logs shipped in by rail. This contention is not debated in the briefs for defendant. A reasonable interpretation of the language sustains the conclusion that tonnage generally, and not the tonnage of particular logs, was intended. In operation, the tariff, so interpreted, will not necessarily conflict with the law if the product shipped out is identical with the product of logs which were actually shipped in, logs which moved into the transit point under the transit rate. We are required here to go no further than this. The subject generally has, however, had the attention of the interstate commerce commission, which, first adopting a governing rule, later abolished the same as inadequate, and thereafter treated each case as it arose. In the Matter of the Investigation into the Substitution of Tonnage at Transit Points, 26 I. C. C. R. 204. See Sondheimer Co. v. Railroad Co., 20 I. C. C. R. 606; Watkins on Shippers and Carriers (2d Ed.), § 169. The conclusion of the trial court is not out of harmony with the views of the interstate commerce commission upon this point. I have not overlooked the North Carolina cases (Hilton Lumber Co. v. Railroad Co., 136 N. C. 479 [48 S. E. 813] ; Hilton Lumber Co. v. Railroad Co., 141 N. C. 171 [53 S. E. 823, 6 L. R. A. (N. S.) 225]), cited by defendant, nor the claim of defendant that this court, in Michigan Railroad Commission v. Railway Co., 185 Mich. 649, 653 (152 N. W. 193), held directly, or by implication, that the 50 cents differential here in question is not recoverable by plaintiffs as an excessive charge. I find nothing in these decisions to sustain any contention made here by defendant.

With the computations, upon which the verdicts and judgments are based, we have nothing to do, since counsel have agreed that, if the method followed is the correct one, the results of the computations are correct. The defendant’s exceptions must, be overruled.

What remains is the question of the right of the plaintiffs to have their damages, or any of them, doubled by the court. I shall not consider' whether the statute provision for double damages is a provision for a penalty or for compensation. I am of opinion that it should not be applied in the cases at bar. The carrier, the defendant, has neither done, nor permitted to be done, anything prohibited by the act, or by it declared to be unlawful, beyond this, that while questioning it has refused to put a tariff into operation, conduct approved by the court of chancery when it suspended by its process the operation of the orders of the commission. I have held that defendant may not profit by its said conduct, or by .the said action of the court. And, on the other hand, what damages have been suffered by plaintiffs? Clearly, they are no other or different in kind than those suffered by any other shipper from whom the illegal charges were exacted. They have lost the use of money, of which defendant has had the use. Return of the sums exacted and interest is compensation. For this, the judgments, respectively, provide.

The judgments are affirmed. Neither party will recover costs of the appeal as against the others.

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


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    BERNARD v. MICHIGAN UNITED TRACTION CO.
    1. Master and Servant — Workmen’s Compensation Law — Acceptance by Employer — Retroactive Effect.
    An employer is within the operation of the workmen’s compensation aet, by the provisions of section 6, part 1, thereof (2 Comp. Laws 1915, § 5428), from the date of the filing of his statement of acceptance if the approval of the industrial accident board be subsequently given, such approval operating retroactively to accomplish this result.
    2. Same.
    The common-law defenses withdrawn by section 1 thereof are open to the employer under section 3, part 1, of the act (2 Comp. Laws 1915, § 5425), when he is under the act and the employee either voluntarily or involuntarily is not under it.
    3. Same.
    The purpose of the legislature in making the industrial accident board’s approval of the employer’s acceptance of the workmen’s compensation act operate retroactively so as to place the employer under the act from the date of the filing of'his statement was to prevent the penalising of the employer by the denial to him of his common-law defenses after he had indicated his desire to come under the act during the short period which must elapse between the filing of the acceptance and its approval by the board.

    Error to Jackson; Parkinson, J.
    Submitted April 11, 1917.
    (Docket No. 72.)
    Decided December 27, 1917._

      Case by Charles N. Bernard against the Michigan United Traction Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Sanford W. Ladd (Charles E. Lems and Warren, Cady, Ladd & Hill, of counsel), for appellant.

      Price & Whiting, for appellee.

       On construction and effect of workmen’s .compensation acts, generally, see notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.

   Brooke, J.

This case has been before this court before. The opinion will be found reported in 188 Mich., at page 504 (154 N. W. 565). When first considered in the court the sole question for determination was whether under an undisputed statement of facts the circuit court had jurisdiction to try the case, or whether plaintiff’s sole remedy was under Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5423 et seq.), commonly known as the workmen’s compensation act.

By its plea to the jurisdiction defendant asserted that, by operation of law, plaintiff at the time the accident happened was under the act, and second, that if this was not so plaintiff had placed himself under the operation of the act by voluntarily filing a claim with the industrial accident board for compensation under the act.

We there held that inasmuch as the 30 days within which plaintiff, an employee, might have elected whether or not he would come under the terms of the act, had not expired at the time of the accident, he was not bound by its terms. We further held that his conduct in voluntarily seeking compensation under the act did not work an estoppel. The judgment overruling the plea in abatement was affirmed. ' Upon a new trial upon the merits, which this court had ordered, defendant was denied the right to introduce any defenses to the action, and the case was submitted to the jury simply for the purpose of computing plaintiffs damages which were assessed at the sum of $9,000. The judgment entered upon such verdict is now here for review.

Section 1 of the act is as follows:

“In an action to recover damages for personal injury sustained by an employee in the course of his employment, or for death resulting from personal injuries so sustained, it shall not be a defense:
“(a) That the employee was negligent, unless and except it shall appear that such negligence was wilful;
“(b) That the injury was caused by the negligence of a fellow employee;
“(c) That the employee had assumed the risks inherent in or incidental to, or arising out of his employment, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances.”

Section 2 provides that the provisions of section 1 shall not apply to actions to recover damages for personal injuries sustained by household domestic servants and farm laborers.

Section 3 is as follows:

“The provisions of section one shall not apply to actions to recover damages for the death of, or for personal injuries sustained by employees of any employer who has elected, with the approval of the industrial accident board hereinafter created, to pay compensation in the manner and to the extent hereinafter provided.”

Section 6 is in part as follows:

“Such election on the part of the employers mentioned in subdivision two of the preceding section, shall be made by filing with the industrial accident board hereinafter provided for, a written statement to the effect that such employer accepts the provisions of this act, and that he adopts, subject to the approval of said board, one of the four methods provided for the payment of the compensation hereinafter specified; The filing of such statement and the approval of said board shall operate, within the meaning of the preceding section, to subject such employer to the provisions of this act and all acts amendatory thereof for the term of one year from the date of the filing of such statement.”

Reading these three sections together it is obvious that it was the intention of the legislature (indeed section 6 so states in plain language), to place an employer under the operation of the act from the day of the filing of the statement as soon as the approval of the board was given to said application. Such approval, when given by the terms of the statute, operates retroactively and fixes the status of the employer as being under the act, “from the date of the filing of the statement.” We, therefore, have the situation here in which the employer at the time of the accident was under the act and the employee (not having had an opportunity for election) was not under the act. This situation is exactly covered by section 3, which declares that the provision of section 1 shall not apply to such actions. In other words, the common-law defenses withdrawn by section 1 are open to the employer when he is under the act and the employee either voluntarily or involuntarily is not under the act.

The purpose of the legislature in making the approval of the board retroactive is plain. It was to prevent the penalizing of an employer by the denial to him of his common-law defenses after he had indicated his desire to come under the act, during the short period which must elapse between the filing of his election and its approval by the board.

The judgment must be reversed and a new trial ordered, at which time defendant may interpose the common-law defenses mentioned in section 1 of the act.

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


author: Steere, J.

text:
    PORTH v. CADILLAC MOTOR CAR CO.
    1. Compromise and Settlement — Release—Personal Injuries— Fraud — Question for Jury.
    In an action to recover for personal injuries in which the defense set up was a complete settlement and release, and the testimony was in conflict, it was a question for the jury as to the terms of the contract and whether the release was procured by fraud from-plaintiff, he claiming that he thought it was a receipt for money paid under the contract, as he was assured by a representative of defendant and of the insurance company.
    2. Same — Fraud—Evidence—Burden of Proof.
    One signing a release of damages for personal injuries is presumed to have executed it understandingly, and prima facie it must be taken as truly stating.the agreement of the parties, and the burden of proof is upon him not only to show by a preponderance of evidence that it is not true, but that he was fraudulently deceived and misled by what was done and said into believing that he was signing a mere receipt for money paid under a contract different from that stated in it.
    3. Same — Release—Avoidance—Tender.
    If the contract under which the money was paid to plaintiff was limited to his loss of time, extra expenses and total incapacity for a year following the time it was entered into, with the matter of full compensation left open, owing to the uncertainty at that time of the permanency of the injuries and the extent of possible recovery, and plaintiff affirmed the contract, he was under no obligation to return the money paid in fraudulent settlement of it.

    4. Master and Servant — Safe Place to Work — Personal Injuries — Evidence—Materiality.
    While the doctrine of safe place does not apply where a carpenter is employed by the owner in constructing a scaffold to do work on a cupola on a new building, the steel framework of which had been constructed by an independent contractor, and was injured as the result of the falling of the scaffold due to the absence of a bolt
      in a steel beam on which the platform rested, yet the fact that he was directed to begin his work on top of a steel structure finished by an independent contractor is material as bearing upon his contributory negligence and the negligence of his employer.
    •5. Same — NegugeS ce — Pees oral Injuries.
    Where the owner of the building had knowledge or notice of the absence of the holt in the beam in the steel framework of the building which caused the injury of the carpenter upon falling of the scaffold, and he neglected to take proper precautions for the protection of the carpenters, he was responsible for the resulting injuries.

    6. Same — Evidence—Sufficiency.
    Evidence held, sufficient to go to the jury on the question whether a foreman in charge of the carpenters had direct notice of the defect in the steel work so as to bind defendant.
    7. Trial — Instructions—Interest, Computation of.
    In an action for personal injuries an instruction that if the jury should find for the plaintiff they should deduct the amount already received was confusing and prejudicial, where it would devolve upon the' jury to figure interest on the amounts to be deducted and they were uninstructed upon that subject.
    Error to Wayne; Cross, J., presiding.
    Submitted April 11, 1917.
    (Docket No. 135.)
    Decided December 27, 1917.
    Rehearing denied March 28, 1918.
    Case by William Porth against the Cadillac Motor Car Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Keena, Lightner, Oxtoby & Hanley, for appellant.

      Dohany & Dohany, for appellee.

       On return of tender of consideration for release of claim for personal injuries set aside on ground of fraud, see note in 35 L. R. A. (N. S.) 660.

       Authorities discussing the question of knowledge as an element of master’s liability to an injured servant, see note in 41 L. R. A. 33..

   Steere, J.

Plaintiff was inj'ured on September 16, 1911, while working in defendant’s employ as a carpenter on a building in process of construction, by the fall of a scaffold which precipitated him to the ground some 40 feet below.

During the summer season of 1911 defendant was erecting a new factory building about 250 feet long at its Trombley avenue plant in the city of Detroit. Most of the construction work was done by independent contractors, but defendant also had in its own employ a force of carpenters to do certain of the wood work under the supervision of J. W. Butler, who took charge of the carpenter work for defendant as soon as the building was ready for that part of the construction. The Whitehead & Kales Company did the steel construction work under contract, which was early entered upon and had been completed when the accident happened. After its completion the Albrecht Company, which had the masonry contract, installed in the structure a freight hoist with which to carry on its work, and in so doing found it necessary to temporarily remove a small portion of the previously erected steel work, for which permission was obtained from the Whitehead & Kales Company. When through using the hoist at that place the Albrecht Company’s employees removed it and replaced the steel work. It was subsequently discovered that at this point one of the bolts used to fasten a steel beam or channel iron where one end of it rested on a truss was left out or not properly replaced. This beam, or channel iron, was at the top of the steel construction on the trusses which supported the roof, in which the carpenters were constructing supports for a cupola. When the accident occurred a force of carpenters, including plaintiff, had just completed a platform or scaffold preparatory to working upon the cupola above it. This was made by placing planks upon the channel irons, or steel beams, including the one which had not been bolted at one end, which it is claimed allowed it to spring in the center with the weight put upon it so as to withdraw the unbolted end from its bearing on the truss. After the platform, or so-called scaffold, was completed and the men were proceeding to use it in their work plaintiff was the first upon it, and when he reached its center it fell, taking him with it to the ground and seriously injuring him.. He was at once removed to Harper hospital and there given proper care and medical attention.

Dr. Stockwell, who was called by defendant at the time of the accident, and attended plaintiff both at the hospital and afterwards at his home, testified that his injuries consisted of a laceration of the lower lip, a comminuted fracture of the middle left radius — one of the bones of the forearm — and fractures with considerable displacement of the os calcis bones in both ankles, which he diagnosed in his report as “probable results not good,” meaning the injury would be permanent ; that there was nothing in the report showing anything wrong with the collar bone, ribs, backbone, or the legs above the feet, and had there been it would have appeared in the chart as he went over the patient looking for all injuries. Dr. Povey, who was sent by plaintiff’s attorney to examine him some three years later, testified to finding indications and the effects of those described by Dr. Stockwell and other fractures, including both collar bones, with the right elevated and the left depressed, and the breastbone depressed; that both ankle joints had been fractured and stiffened so that 75 per cent, of the foot motion was lost without hope of recovery; that the spine had been injured and his whole nervous condition upset, and as a result of scar tissue formed in the spinal cord and nerves his whole body was affected with a muscular tremor. While there is a marked variance in the testimony of the physicians as to the extent of plaintiff’s injuries, it appears undisputed that they were serious, leaving him permanently crippled and totally incapacitated to perform the work he was engaged in at the time of the accident.

After remaining in the hospital about eight weeks plaintiff was taken to his home, where Dr. Stockwell continued to attend him professionally until about the middle of the following January. An office employee of the Cadillac Motor Company named Stanley called upon him occasionally at the hospital to see, as he stated, how he was getting along and to take him his regular wages as instructed by his employer. This he continued to do after plaintiff was taken to his home until the latter part of January, when he broached the matter of a settlement with plaintiff and the subject was discussed several times along lines upon which they do not agree, but later Mr. Sawyer, an attorney for the casualty company which insured defendant against loss resulting from injuries to employees, was called in, and their negotiations culminated in some kind of a settlement, the nature of which is in dispute. Under it payment was made to plaintiff of $2,500, less the amount he had already received from defendant, and he signed the following document, for which a printed form was used:

“Release.
“Received of Cadillac Motor Carr Co. this 27th day of January, 1912, the sum of twenty-five hundred ($2,500.00) dollars, in full satisfaction and discharge of all claims which I now have or may hereafter have on account of all injuries or injurious results, direct or indirect, arising or to arise from an accident sustained by me on or about the 16th day of September, 1911, while in the employment of the above. I am satisfied with this settlement.
“William Porth.
“Witnesses:
“Mrs. Sophie Porth,
“Address. 208 30th St.
“E. A. Stanley,
“Address. 1343 Cass Ave.”
(The italicized portions are in writing.)

At this time plaintiff was yet under total disability and in a helpless condition, attended and cared for by his wife and daughter. It is his contention that he was deceived into signing this instrument, supposing it was only a receipt for the money then paid him which, under the agreement they made, covered only damages, losses, and expenses for one year with the matter of final settlement left open. His version of the transaction, supported by the testimony of his wife, is that when first approached on the subject by Stanley he declined to make any offer, not knowing what his future condition would be, but upon being urged to do so he said he would take $10,000 to settle the whole matter if they would pay it then and there would be no further trouble, and never offered to take any less in. full settlement; that'as negotiations were pressed, from time to time Sawyer finally told him, “The company will allow you $2,000 for the following year,” which plaintiff protested was too little; that finally Sawyer and Stanley agreed to pay him and he agreed to accept at that time and for one year $2,500, deducting $287.50 which he had already received from defendant, they assuring him he would be well within a year, agreeing that the matter of a final settlement would be left open to be taken up at the expiration of that time when the result of his injuries could be better determined; that they came the following day and paid the amount agreed upon, presenting a paper for him to sign; that being unable to read he asked Sawyer to read it to him, but he said it was simply a receipt for the money which plaintiff believed and signed without hearing the paper read. His wife, who said she had been to school through the fourth grade and could read, testified that the agreement related only to the first year as she understood it; that Mr. Sawyer said the paper was a receipt and so believing she just glanced it over in part, and after her husband signed it she, at Sawyer’s request, signed as a witness and wrote in the words over her husband’s name as Sawyer requested and dictated, “I am satisfied with this settlement;” that her husband never agreed to settle his whole claim for this sum but did at one time say he would be willing to take $2,000 if he could get well as they said he would.

Sawyer and Stanley testified that there were no as.surances for the future, or misrepresentations, and the bargain was as the receipt indicates, which was read over to. plaintiff before he signed it. Sawyer testified he himself read it to plaintiff, who was very nervous at the time and in bad condition with an injured arm, so “it is very probable that one of us assisted him in writing his name;” that after plaintiff had signed it his wife signed as a witness and then at his (Sawyer’s) dictation wrote over her husband’s signature his expression of satisfaction with the settlement. What was said, explained,, understood, and agreed to on that occasion and prior thereto is in marked dispute.

In October or November of that year plaintiff’s physical condition was such that his wife appealed to Stanley for help and he called Dr. Fay, a physician in defendant’s employ, to see him. The doctor said an operation would relieve his ankles, but that he was then too weak for such operation and he would treat him at home for a time. Plaintiff testified that Dr. Fay thereafter attended him more or less for about nine months.

In January, 1913, just after the expiration of a year from the date of the receipt in controversy, plaintiff’s wife appealed to Stanley for further assistance, and defendant began paying plaintiff, or his wife, $45 per month, which was continued until the following October, when further payment was refused by Mr. Eaton, manager of defendant’s welfare department, who had taken charge of the matter. He testified that the payments made and services rendered by him had nothing to do with any claim for damages, which plaintiff told him were settled, but were an ordinary activity of defendant’s welfare department in aid of present or former employees, and after repeated warnings without results they were discontinued because of plaintiff spending the money given for the support of his family in saloons. Plaintiff denies so spending the money, and entirely different reasons are urged in his behalf for said payments.

Defendant’s counsel requested the court for a directed verdict on various grounds, especially urging that no original liability on the part of defendant was shown, that if there had been there was a complete settlement and, in any event, plaintiff could not recover because he had not repaid or tendered back the money received and receipted for in full settlement of his claim.

The court submitted the questions of original liability and settlement to the jury as issues of fact, with instructions that in case they found for plaintiff in a greater sum than the amount he had already received, the latter, with interest at 5 per cent, per annum, should be deducted from the former. A general verdict was returned for plaintiff in the “sum of $5,000 over and above the amount of money heretofore received by the said plaintiff from said defendant,” and judgment was entered thereon.

Defendant thereafter moved for a new trial contending amongst other reasons that, as shown by his affidavit, the testimony of a witness named Frank Dybalski touching notice given to defendant of the defect, alleged as the only foundation for plaintiff’s claim of negligence, was wrongfully interpreted and contrary to the facts as he knew them. Dybalski was one of the carpenters working with plaintiff at the time of the accident, and still in defendant’s employ when this case was tried. He was called for cross-examination by plaintiff under the statute and examined through an interpreter, who was not objected to by defendant. The evident object in calling him was to show that he had notified Butler of the absence of a bolt in the end of the channel iron which fell, and defendant thus had notice of the defect which caused the accident. His testimony, as interpreted, is somewhat contradictory and confusing. The record-indicates that counsel for both sides found trouble in getting consistent and responsive answers to their questions through the interpreter. He had answered that he informed Butler two or three days before the accident that the bolt was out; did not remember how many days, nor whether it was just a few minutes before it fell; did not know whether it was out two or three days; he wasn’t up there to look; that his partner told him; that he did not know whether it was out two days or three days, etc.; until finally, near the close of his bewildering testimony as interpreted, counsel for defendant, who was examining him, said, “Tell in English what you said”; and he thereupon proceeded, somewhat disjunctively, to describe in English the situation shortly before the accident and said: “Then I told the foreman that place over there had no bolt in one end. He says, ‘All right, never mind, they are going to be fixed.’ That is what I know.” His affidavit in support of the motion for a new trial was also taken through the interpreter and is, like his interpreted testimony, inconsistent in some respects. He however repeats that he saw the bolt was out and notified Butler of it.

Counsel for appellant state in their brief, as a major premise, that “Porth necessarily is seeking to avoid the contract of January 27,1912;” assert that it was a contract of settlement in full, as evidenced by the paper he signed, and contend that he-can only repudiate the settlement and bring this action on the ground of mutual mistake or fraud, in which case return or tender of the amount paid is a prerequisite.

Plaintiffs repudiation is only directed to the paper he signed. Both parties say a contract was entered into shortly before this paper was signed, and that it was executed in full. Neither claims any fraud or mistake as to it. Their disagreement is as to its scope and terms. Plaintiff does not seek .to repudiate the contract he claims was made, but contends it was limited to his loss of time, extra expenses, and total incapacity for a year following the time it was entered into, with the matter of full or further compensation left open, owing to the uncertainty at that time as to the permanency of his injuries and the extent to which he would recover; while defendant claims the contract was a full and complete settlement, just as the receipt signed by him shows. He only claims fraud as to the paper he signed — that advantage was taken of his ignorance, inability to read, and confidence in Stanley and Sawyer, at whose request he signed the paper then produced under the assurance that it was only a receipt for the money they had just paid him according to the terms of the oral agreement, as he asserts it was made. The testimony of the witnesses is clearly in marked conflict both as to this and the terms of the contract to which it related. In such case it is not for the court to pass upon the probability of his story or the credibility of the witnesses, for his testimony, taken as true and viewed in the aspect most favorable to his contention, raises issues of fact for a jury both as to whether he was fraudulently deceived into signing the paper in question and the terms of the contract then entered into. Of a release given under a somewhat analogous contention, it was said in O’Neil v. Iron Co., 63 Mich. 690 (30 N. W. 688):

“It is not the intention, but the effect upon the plaintiff of what 'was said, and done at the time the paper was signed, that is material here; for if the effect was to lead him to believe that he was signing a mere receipt, and call his attention away from the fact that he was signing so important a paper as an agreement for a release of defendant from liability, the result would be the same — he was deceived as to the true character of the paper he was signing. He testifies that he did not know that he was signing, and did not intend to sign, an agreement to release defendant from liability arising from its negligence.”

Plaintiff admits that he signed this release in the presence of his wife and the other witnesses, and received the amount there stated in payment for damages resulting to him from his injuries. He is presumed to have signed it .understanding^, and prima facie it must be taken as truly stating their agreement. The burden of proof is upon him not only to show by a preponderance of evidence that it is not true, but that he was fraudulently deceived and misled by what was done and said into believing that he was signing a mere receipt for the money paid under a contract different from that stated in it. If the contract was as he claims, and which he does not repudiate but affirms, we see no obligation resting upon him to return the money paid in settlement of it, as would be the case where a party seeking to repudiate a contract admittedly made claims he was fraudulently induced to so agree. Failing to prove by a preponderance of evidence that the contract was not as plaintiff’s witnesses testify and the paper he signed shows, he of course could not recover.

Plaintiff’s counsel urge that it was the duty of defendant at its peril to provide him with a reasonably safe place in which to work, and that its negligence is also shown by the fact that it had actual notice of the defect which made the place particularly dangerous, but disregarded it. Defendant contends that as plaintiff was engaged in constructing a scaffold to facilitate his work on an unfinished building, when injured, he assumed the risk, and the doctrine of safe place does not apply under the ruling in Hoar v. Merritt, 62 Mich. 386 (29 N. W. 15) ; Dewey v. Parke, Davis & Co., 76 Mich. 631 (43 N. W. 644), and other so-called scaffold eases in which it is held that the rule of safe place is not applicable.

It is to be noted that plaintiff and his fellow workmen had no part in constructing the steel frame of the building on which they were laying the plank for the floor, or so-called scaffold, from which to do the wood work above. The steel construction they were starting to use had been finished some time before by an independent contractor, as Butler testified. For the purpose of beginning the wood work in the roof defendant had accepted that steel work as done and ordered its carpenters upon it. While the rule of safe place as generally understood cannot be applied as the controlling principle in this case where plaintiff’s employment was in the erection of a new building, or construction work which in its progress necessarily undergoes frequent changes and involves extra risks which he is presumed to assume, yet the fact that he was directed to begin his work upon the top of this steel structure after it had been finished by an independent contractor with whom he had nothing to do does have a bearing on the question of his contributory negligence and the duty of his employer when ordering him to begin work at such a place.

So far as the record discloses Butler was the only representative of defendant on the premises in- authority. He was in charge of and superintending the work it was doing; notice could only be given to this corporation by notice to its authorized representative or agent in the line of that to which the notice related. The testimony tends to show that his position was such that notice to him of this defect in the steel work was notice to defendant. There is evidence that he was notified of it and disregarded the notice. There is no evidence on which to base a claim of negligence because defendant engaged inexperienced or incompetent contractors, either for the steel construction or masonry. We need not discuss the question of duty to inspect before use of the work or material of a reputable, independent contractor of experience, for inspection is but a means towards an end, and plaintiff contends that defendant’s authorized representative had direct notice. Upon that issue there was evidence to carry the case to the jury. If defendant in fact had knowledge or notice of the defect which caused the accident, and neglected to take proper precautions to protect its employees, it would be responsible to them for any resulting injuries. Devlin v. Smith, 89 N. Y. 470 (42 Am. Rep. 311); Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185 (36 Am. Rep. 662).

Upon that branch of the case defendant’s counsel requested the court to charge the jury that:

“If competent men were employed to replace the angle iron that had been removed and afterwards fell, and the Cadillac Motor Car Company had no notice that this work had been improperly performed, your verdict should be no cause of action.”

This the court refused and, after giving a general definition of negligence, charged the jury in part as follows:

“You are instructed that it is the duty of the employer to furnish its employees a reasonably safe place to work. A failure to do so would be negligence.
“If you find by a preponderance of the evidence that the cause of the scaffold falling was the failure to properly replace the channel irons, then you may find that the defendant was guilty of negligence.”

This was, in effect, direction of a verdict in favor of plaintiff upon the question of negligence, as the cause of the accident was not controverted nor denied by defendant.

At conclusion of the court’s charge counsel for plaintiff suggested to the court that if the jury “should find for the plaintiff that they assess plaintiff at whatever amount barring the amount he has already received from the defendant; I think that will be the proper verdict.” To which the court replied, “Yes; it should be deducted from any amount.” Plaintiff’s counsel then said, “The clerk can do that.” This is charged by defendant as prejudicial error. It was at least confusing. Apparently there was no question as to. the amount which had been paid plaintiff. He testified that at the end of a year from the time he receipted for $2,500 defendant began to pay him $45 per month and continued the same for nine months, which, it is urged was in recognition of the contract of partial settlement he claims was made and his right to further compensation. If his version of the agreement and significance of the subsequent payments made to him prevailed, those payments with interest at 5 per cent, per annum should be deducted in case the damages found by the jury exceeded the total amount previously paid him. Not only were the jury uninstructed upon that subject, but the payments were liquidated amounts apparently conceded, and involved no issue of fact for the jury.. To leave this matter to the jury with general instructions involving figuring interest was confusing and prejudicial to a fair determination of the issues of fact proper for the jury to pass upon.

For the foregoing reasons the judgment is reversed and a new trial granted, with costs.

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