text:
    WENZEL v. KIERUJ.
    1. Appeal and Error — Law of Case — Parties—Judgment.
    Where plaintiff brought an action upon a contract to install a heating plant in a church, and although it appeared that the church and its pastor were parties to the contract, the pastor was made sole defendant in the action, and where it was agreed in open court by defendant’s counsel that he was the proper party, and on appeal the court determined that the same was conceded, defendant could not repudiate the concession of his counsel at the second trial of the case, but was foreclosed by the previous ruling of the court.

    2. Contracts — Building Contracts — Question for Jury.
    Where plaintiff agreed in his contract to install heating apparatus in a church under a guaranty to heat the church to 70 degrees, Fahrenheit, when the outside temperature should be 10 degrees below zero, and at the trial of his claim for extras defendant insisted that the guaranty could not be complied with unless the pipes were covered with asbestos, where there was testimony to support the claim and plaintiff’s contention to the contrary, the court properly submitted the question as one of fact.
    3. Same — Architect—Extras—Intent.
    Under the provisions of the building contract for the installation of heating apparatus in a church, the general specifications providing that no claim for extra work should be allowed unless the price was agreed upon between owner, architect, and contractor before it was done, and there was evidence that the architect ordered the covering of the steam pipes as an extra without reducing the arrangement to writing, and that plaintiff claimed that his bid was not made with reference to the general specifications of the contract but upon specifications for heating only, the court did not err in submitting to the jury the contention whether the plaintiff made his bid with reference to the general spdbifications or not.

      4. Same — Extras—Waiver.
    Evidence was admissible to show that defendant bad waived tbe provision of tbe construction contract stipulating that claims for extras should be made in writing, by reason of the fact that the architect ordered other extras than those in question and did not insist upon any writing.
    Error to Wayne; Hosmer, J.
    Submitted April 29, 1914.
    (Docket No. 162.)
    Decided March 17, 1915.
    Assumpsit by Paul Wenzel against Felix F. Kieruj for the recovery of the value of labor and materials supplied to the defendant. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Thomas Hislop, for appellant.

      May & Dingeman, for appellee.

       For the law of the case on second appeal, see note in 34 L. R. A. 321.

   Bird, J.

Plaintiff had the contract for installing a steam heating plant in St. Francis Church, in the city of Detroit. It is his claim that the contract did not require him to cover certain pipes in the basement with asbestos felt, but that he did cover them in pursuance of an order of and an agreement with the architect, and he now claims compensation therefor as an extra. In the trial court, he recovered his full claim. Several defenses were made to the claim.

The material questions which are raised in this court by the several assignments of error are:

(1) Was Felix F. Kieruj properly made a party defendant?

(2) Was the covering of the pipes included in the contract ?

(3) Even if the covering of the pipes were an extra, has plaintiff complied with the provisions of the contract with reference to making a claim for extras ?

(1) The contract named “St. Francis Church” and “Rev. Felix Kieruj, pastor” as the second parties. Felix F, Kieruj was made sole defendant. Some question appears to have arisen upon the first trial as to whether he was the proper party, and it was then agreed in open court by counsel that he was the proper party defendant. On the first writ of error in this court, the matter was referred to in the opinion in the following manner:

“If there is liability, it was conceded that the defendant was the proper party to be sued.” Wenzel v. Kieruj, 168 Mich. 92 (133 N. W. 921).

Upon the second trial, the concession was repudiated by Felix F. Kieruj, on the ground that his attorney had no authority to make it, and the point was again raised and urged. Whatever merit there may be in the question, we must hold that it is foreclosed by the former holding of this court.

(2) Was the work of covering the pipes included in the contract? When the case was first before this court, the contract was construed with reference to this question, and it was held that there was no express language in the contract which obliged the plaintiff to cover the pipes under the church. Upon the second trial, the court instructed the jury in accordance with this construction, and this is complained of as error. The argument made in support of this claim is that on the first trial the written contract was missing, and that only fragments of it were before the court, but that upon the last trial, the written contract was produced, and therefore the first holding of the court is not now binding. If the record in the second trial was materially altered by the written contract from that upon which this court based its construction, counsel’s contention would probably be true (White v. Campbell, 25 Mich. 463), but the written contract does not materially alter the facts upon which the construction was based, therefore the trial court was right in holding that the construction of this court was the law of the case. But it is argued that if the contract did not in express words require plaintiff to cover the pipes, his guaranty that the system installed should have the capacity to heat the church to 70 degrees Fahrenheit when the outside temperature was 10 degrees below zero, would require them to be covered. It was insisted by the defendant that unless the pipes were covered, this guaranty could not be complied with. The contention of the plaintiff was directly opposed to this. This raised a disputed question of fact which the trial court submitted to the jury, and we think properly so.

(3) It is strenuously urged that if the covering of the pipes were an extra, plaintiff could not recover because of section 5 of the general specifications, which in part reads:

“No claim for extra work shall be considered unless the price for the same shall have been agreed upon in writing between the owner, contractor and the architects, prior to the commencement of the same.”

It is conceded by the plaintiff that this provision was not complied with, but it was shown that the architect ordered the work to be done, and arranged with him orally to do it. It is further contended by the defendant, that the architect’s decision as to whether the contract included the covering of the pipes was final under the eighth section of the general specifications, which provided that:

“Should any misunderstanding or dispute arise as to the meaning of the drawings or specifications, the same shall be referred to the architects, whose decision thereon shall be final and conclusive on all parties.”

The answer of plaintiff to these contentions is that the provisions quoted were included in the general specifications, which were never delivered to him, and of which he had no knowledge; that his bid was made and the contract was based upon the “special heating specifications” only. The parties being at variance upon this question, the trial court submitted this question as one of fact to the jury, with the instruction that if they found that the general specifications were delivered to plaintiff prior to the making of the contract, the plaintiff could not recover. We. are of the opinion that this was a proper disposition of the question.

Testimony of other extras arranged for orally by the architect was admitted for the purpose of showing a waiver of that portion of the contract which provided that all claims for extras should be made in writing within 10 days from the beginning of the work. The testimony was competent for that purpose. If the architect had arranged with plaintiff for other extras, and had not insisted upon the written notice being given, it was some evidence that he did not intend to insist upon a compliance with that provision of the contract.

There being no errors which call for a reversal of the case, the judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    WELLS v. GRAND RAPIDS & INDIANA RAILWAY CO.
    1. Railroads — Negligence — Master and Servant — Employee of Distinct Corporation.
    Decedent was employed by a paper company to unload cars of coal at its plant. The cars were emptied by releasing pockets beneath them, and while decedent was attempting to open a pocket under a gondola car over a coal pit, and was beneath the car in the performance of his duty, the switching crew of defendant railway company backed several cars against the one under which decedent was working and killed him. Plaintiff brought an action against the railroad company, charging the employees thereof with failure to notify decedent of the proposed movement of the train. By the book of rules of the defendant, a switching crew was required, before moving a car at any factory, to pass along the cars and notify men working in or around them that they were to be moved. Defendant claimed that its switchman in fact walked along the car and failed to see any one around or beneath it. There was a conflict of evidence whether decedent was in a place where he could have been seen or not. Held, that defendant’s negligence was properly submitted as a question of fact.
    2. Same •— Dangerous Place ■— Switching Cars — Personal Injuries — Death.
    Where decedent, who was injured in opening the pockets under a coal car, had taken a position in the ordinary way on a rail beneath the car, being the only way in which the work could be done, he was not guilty of contributory negligence in assuming such position; and was not chargeable with contributory negligence as a matter of law for failing to notify the switching crew of the fact that he was going under the car, testimony being offered to show that the switching crew had not been working in the vicinity. Decedent had a right to rely upon the alleged custom, if one was found to exist, of notifying men working around cars before moving them.
    3. Same — Safe Place — Inspection of Cars.
    Notwithstanding that decedent’s employer might have provided a safer and more convenient means of dumping coal, where the employees of the defendant railway knew the circumstances and methods of work of decedent’s employer and failed to discover and notify deceased of their intention to move the car under which he was working, defendant was not released from liability by any alleged neglect in this particular on the part of the master of plaintiff’s intestate.
    4. Same — Trial — Personal Injury — Action—Special Questions —Verdict.
    The trial court was not in error in refusing to submit two special interrogatories to the jury (1) whether defendant’s switchman, before the car under which decedent was working was moved, when he attempted to inspect the car standing upon the track at the coal pit, knew that some person might be under the car' upon the track, and (2) whether said employee had ever known of a person being beneath a car upon the east rail of the track. Neither question was controlling of the issue. The question whether defendant’s switchman exercised reasonable diligence in attempting to discover the employee in the vicinity of the car would not be concluded by a negative answer to either question.
    Error to Kent; Brown, J.
    Submitted April 15, 1914.
    (Docket No. 40.)
    Decided March 17, 1915.
    Case by William Wells as administrator of the estate of Peter Jenison, deceased, against the Grand Rapids & Indiana Railway Company for the unlawful killing of said intestate. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      James H. Campbell, for appellant.

      Lombard, Hext & Washburn, for appellee.
   Bird, J.

Plaintiff’s intestate, Peter Jenison, was employed by the King Paper Company of Kalamazoo to unload coal at its plant. This company had constructed, with walls of cement, a coal pit 216 feet long, 52 feet wide, and 19 feet deep, just north of its factory building. A railway track had been constructed over the coal pit on cement piers and girders, so that cars could be run over the pit and unloaded. The cars were cleaned by opening the pockets underneath the gondola cars, and allowing the coal to drop into the pit. While Jenison was attempting to open one of these pockets under a gondola car, which was standing over the pit, the switching crew of defendant backed several ears onto the one under which he was working, and injured him so seriously that he lived only an hour thereafter. The negligence complained of was the failure of the switching crew to notify him that the cars were about to be moved. Judgment having passed for the plaintiff, the defendant assigns error in this court. The questions raised by defendant’s assignments are:

(1) That the trial court should have directed a verdict in favor of the defendant, on the ground that the evidence did not establish negligence on the part of the defendant railway company.

_ (2) And on the further ground that the deceased himself was guilty of negligence in going under the car without any notice or warning to defendant’s employees who were doing the switching of cars upon the track.

(3) That the duty of furnishing the deceased with a safe place to work rested upon the King Paper Company, and not upon the railway company and that such failure of the King Paper Company was the proximate cause of the accident.

(4) The refusal of the trial court to submit to the jury two special questions.

It is conceded by the defendant that its book of rules required the switching crew, before moving cars at factories, to go alongside of them and notify the men working in and around them that they were to be moved, and it is conceded that this rule was generally observed, but it is contended by the defendant that there was. a reasonable compliance with this rule; that Switchman McClish walked back on top of the west wall eight feet away from the track, and, seeing no one around the four cars on the pit track, he gave the engineer the signal to back up. It appears that at that moment Jenison, the deceased, was astride of the east rail, attempting to open the pocket under the rear car for the purpose of cleaning it, and that the failure of McClish to see him was due to the fact that he was on the opposite side of the car. The question therefore narrows down to whether McClish exercised reasonable care in his inspection before giving the signal to back up. He gives, as a reason for not discovering Jenison, that the work of opening the pockets was usually done on the west side of the car, and that he could not see him on the east side of the car without stooping down and looking under it. Both of these statements are disputed by the plaintiff. It is claimed the testimony shows that the pockets were opened on the east side as well as the west side, and that McClish, standing on the wall 12 feet away from the east rail, could see a person on the east rail without stooping to look under the car. There was much testimony taken bearing on this question, and, as a further aid, the jury were given a view of the premises. We think the circumstances were such that it presented a question of fact for the jury.

Was the deceased guilty of contributory negligence? It is asserted that he was negligent in going under the car and sitting on the east rail while doing the' work of opening the pocket. It is asserted, and it appears to be uncontradicted, that he was doing the work of opening the pockets in the customary way, and the only way in which it could be done, considering the nature of the structure. It is further contended that, before going under the car, he should have notified the switching crew, who were then working in the vicinity. Plaintiff’s counsel contends the switching crew had not been switching in that vicinity. Whatever the record may show about this dispute, if it were the custom to inspect and notify the men around the cars before moving them, and the deceased knew of this custom, he had a right to rely upon its being done in this instance. The trial court left the question with the jury, and that was as favorable a view as the defendant had the right to demand.

The point is made that the duty rested upon the King Paper Company, and not upon the defendant, to furnish plaintiff with a safe place, and in this connection it is urged that if the King Paper Company had constructed a walk alongside of the track over the pit, on which plaintiff could have stood while opening the pockets, the accident would not have occurred, and that the failure to do this was the proximate cause of the accident. It is perhaps true that the King Paper Company might have made conditions safer and more convenient for its employees in doing such work, but the conditions such as they were, and the methods of doing the work were well understood by the switching crew, and the important question is: Did the crew, in view of these circumstances, do its duty in its attempt to discover and notify the deceased? If Mc-Clish had discovered the deceased and notified him, as it is claimed he ought to have done, it is obvious that no harm would have come to him.

The submission of the following special questions were requested by the defendant:

(1) “Did McClish, at the time he went down along the wall to inspect the cars on the coal pit track, know that any one might be under a car on the east rail of the track?”

(2) “Had McClish before that time ever known of any one being under a car on the east rail of the track?”

If these questions were answered in the negative, the question would still be an open one as to whether McClish was as diligent as he ought to have been in discovering the presence of the deceased on the east rail. It is therefore apparent that the answers would not be controlling, and the court fell into no error in refusing to submit them.

The judgment of the trial court is affirmed.

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


text:
    GREAT LAKES LAUNDRY CO. v. ÆTNA LIFE INSURANCE CO.
    1. Indemnity —• Insurance — Master and Servant — Compromise and Settlement.
    Where the defendant was insurer of plaintiff’s employees in the conduct of its laundry business, and the insured compromised a claim hy one of the employees who was injured working at a mangle, and who claimed that her injury was due to a defect in the feeder of the machine, the question whether the machinery was so dangerous to life and limh as to come within the provisions of Act No. 285, §11, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §4019), forbidding females under the age of twenty-one years from being placed in employment dangerous to life and limb, and the point was properly submitted to the jury, in an action on the indemnity policy.
    2. Same — Trial—Minors.

      Held, also, that it was not erroneous to admit the report, prepared by defendant’s inspector, of the accident soon after the same, stating that there was no especially dangerous work connected with the business; that there were no dangerous points about the machinery left unprotected; and that the law relating to employment of minors was observed in plaintiff’s factory.

      3. Same — Trial—Charge.
    And held, that while defendant’s requests to charge were not submitted in their language, and it is objected that the points so presented were not given sufficient prominence by the court in his charge, the general charge was sufficient in this particular, fairly covered the case, and gave reasonable prominence to the issue.
    Error to Chippewa; Fead, J.
    Submitted April 30, 1914.
    (Docket No. 105.)
    Decided March 17, 1915.
    Assumpsit by the Great Lakes Laundry Company against the ¿Etna Life Insurance Company upon a policy of indemnity insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Warner & Sullivan, for appellant.

      John W. Shine, for appellee.
   Bird, J.

In July, 1911, while Bertha Roddy, a young girl 16% years of age, was employed in plaintiff’s laundry, feeding a mangle, her left hand was drawn against or under the first ironing roll and burned and permanently injured. As plaintiff was indemnified by defendant against- losses on account of accidents to its employees, it was duly notified of the mishap. After making an investigation, the defendant refused to pay the damage, and denied all liability under its policy, on the ground that Bertha had been employed in violation of law, but it tendered the services of its attorneys to plaintiff to assist in making an adjustment of the claim. A settlement was effected for $1,623. To recover this sum from defendant, this suit was begun and successfully prosecuted in the trial court.

The assignment upon which defendant principally relies is based upon the refusal of the trial court to instruct the jury, “as a matter of law, that the operation of the flat work ironer or mangle is an operation considered dangerous to life and limb.” This request is based upon section 11 of Act No. 285, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 4019), which provides, that no female under the age of 21 years shall be engaged in any employment “which may be considered dangerous to their lives or limbs.” Bertha Roddy was engaged, when injured, in feeding flat goods into the mangle. Between her and the automatic feeder was a wire feeding basket about a foot wide. An automatic feeder was provided which made it unnecessary for her to feed the clothes to the first ironing roll. In front of the first ironing roll was a guard roll to protect the hands from coming in contact with the hot roll. In the event that she permitted her hands to follow the automatic feed too far, the guard roll would warn her. Her duty was to smooth out the goods on the automatic feed table, and they were then automatically carried into the ironing rolls. She claimed her injury was due to some defect in the automatic feeder. It was shown that the machine had been installed ten years, and that this accident was the first one which had occurred. Witnesses who were familiar, with such machinery expressed the opinion upon cross-examination that mangles like the one in question, equipped with like safety devices, were not dangerous machinery.

We are not of the opinion that this machinery was so obviously dangerous to life and limb that we should declare it so, as a matter of law. The question as to whether machinery was dangerous, within the meaning of this statute, has usually been held by this court to be one of fact. Sterling v. Carbide Co., 142 Mich. 284 (105 N. W. 755); Braasch v. Stove Co., 147 Mich. 676 (111 N. W. 197); Braasch v. Stove Co., 153 Mich. 652 (118 N. W. 366, 20 L. R. A. [N. S.] 500; Syneszewski v. Schmidt, 153 Mich. 438 (116 N. W. 1107); Tabinski v. Manufacturing Co., 168 Mich. 392 (134 N. W. 653); Radic v. Jackson & Co., 178 Mich. 618 (146 N. W. 136). The conditions disclosed by this record are not so radically different from those involved in the foregoing cases as to justify us in disposing of the question as one of law.

The defendant, after assuming the risk, made annual inspections of the laundry, and furnished plaintiff with a copy of the record. The last inspection previous to the accident was in March, 1910. The report of this inspection showed, among other things, the following:

“Q. Is there any specially dangerous work connected with the business?

“A. No.

“Q. Are there dangerous points about machinery which are not protected?

“A. No.

“Q. Is the law respecting the employment of minors observed?

“A. Yes.”

This report was offered and received in evidence over defendant’s objection, but it neither appears in the record nor in the briefs what specific objection was made to it. The character of the argument made in opposition thereto would indicate that it was placed upon the ground of incompetency. But, whatever may have been the ground of objection if defendant made a defense which was inconsistent with its previous declarations and admissions, it was proper to show it.

Error is assigned upon the manner in which the court gave defendant’s requests Nos. II, IV, V, VI, and VII. Requests IV and V asked for an instruction directing a verdict because of the unlawful employment. As this question has already been disposed of, no further comment is necessary. Requests II, VI, and VII were fairly covered by the general charge. It is not argued that they were not so covered, but it is argued that the points raised by the requests were not given the prominence that their importance demanded. A careful examination, of the charge with reference to these requests does not so convince us. We think that all three requests were fairly covered by the general charge, and one of them was given more prominence and placed before the jury more pointedly than was suggested by the instruction.

We find no error in the record which calls for a reversal of the case. The judgment of the trial court is affirmed.

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


text:
    HAWLEY v. DIBBLE.
    1. Judgment — Res Adjudicata — Husband and Wife — Descent and Distribution — Pbobate Court.
    In a suit to quiet title to real property the complainant, who claimed title through the widow of the father of defendants, who had been married twice and who, defendants contended, had not been divorced from his first wife, was not barred from recovery by an order of the probate court in proceedings to determine the heirs, finding that the defendant children of decedent were the owners of real estate. 2 Comp. Laws, §§ 9469-9471 (4 How. Stat. [2d Ed.] §§ 11180-11182).
    2. Same.
    The order determining the heirs of deceased was not conclusive under sections 9469-9471 (4 How. Stat. [2d Ed.] §§ 11180-11182), which merely provides that a finding by the probate court shall be prima facie evidence of the facts so found; orders made pursuant to this section do not affect vested rights.
    3. Deeds — Estate in Common — Joint Tenancy — Estoppel—Parol Evidence Rule.
    Proof by parol that decedent and his joint grantee under a deed which conveyed property to two as husband and wife were not in fact legally married, was inadmissible in behalf of the heirs of the husband claiming under it and charging that the deeds in fact conveyed an estate in common instead of a tenancy by the entirety.
    4. Evidence — Parol Evidence Rule — Deeds—Marriage.
    By the principles of the common law the legal' effect of unambiguous words of a deed could not be contradicted by parties or their privies in any collateral matter by parol evidence and the rule is applicable to language in a deed whereby the grantees are described as husband and wife.
    Appeal from Ionia; Davis, J.
    Submitted June 11, 1914.
    (Docket No. 62.)
    Decided March 17, 1915.
    Bill by Royal A. Hawley against Grace Dibble and others to quiet title to certain real property. Decree for defendants. Complainant appeals.
    Reversed.

      R. A. Hawley, in pro. per., for complainant.

      Ellis & Ellis, for defendants.
   Bird, J.

By this proceeding complainant is attempting to quiet title to lots Nos. 4 and 13 of Mercer’s addition to the village of Saranac. In 1901 William Fitzgibbons was the owner thereof in fee, and in April of that year he conveyed the lots by warranty deed to Bernice Budway for a nominal consideration, and on the same day she made a conveyance of the same for a like consideration to “William and Sarah Fitzgibbons, husband and wife,” and both deeds were duly recorded. In November, 1904, William Fitzgibbons died, leaving him surviving a widow and a daughter, Madeline, and also three children by a former marriage. In April, 1907, the widow, Sarah J. Fitzgibbons, conveyed an undivided half interest in the lots.to one Nathan F. Gould, and in November of the following year she conveyed the remaining undivided half to complainant.

It is the claim of complainant that the conveyance to William and Sarah Fitzgibbons, husband and wife, created an estate by the entirety, and that upon the death of William the entire interest passed to and vested in the survivor, Sarah J.

The position taken by the defendants, children of the first wife, is that at the time their father was married to Sarah J. he had not been divorced from his first wife, and that she was then living in the State of New York, and that, as a matter of fact, Sarah J. was not his wife when the deeds.were made, and by reason thereof they took as tenants in common, and not by entirety, and upon the death of their father his undivided half of the estate descended to them. The chancellor who heard the case took the defendants’ view of the case, and complainant has appealed.

The questions raised by the issues are:

(1) Is the question as to the ownership of the estate res adjudieata?

(2) What was the nature of the estate created by the deeds?

Defendants’ claim of res adjudieata rests upon the fact that, after the death of William Fitzgibbons, they filed a petition in probate court to determine who were his heirs. The hearing thereon was followed by an order adjudging the three children by the former wife the legal heirs. It also found that William Fitzgibbons was the owner of the real property now in dispute, and determined that the three heirs were entitled to it in equal shares. The order also determined other issues which were afterwards passed upon by the circuit court, and later by this court (162 Mich. 416, 127 N. W. 313, 139 Am. St. Rep. 570), but with which we need not concern ourselves in this case.

We are unable to agree with defendants that complainant is foreclosed in this suit by the probate order referred to. The power of the probate court to determine the heirs of a deceased person is derived from 3 Comp. Laws, §§ 9469-9471 (4 How. Stat. [2d Ed.] §§ 11180-11182). These provisions provide that:

Probate courts may in certain cases “find and adjudge who are? or were, the heirs, minor heirs, or legal representatives of the deceased, and entitled by the laws of this State to inherit the real estate of the deceased, or to take title to the lands conveyed or granted to the heirs, minor heirs, or legal representatives of said deceased, which finding and adjudication shall be entered on the journal of said court, and which entry, or a duly certified copy thereof, shall be prima facie evidence of the facts therein found.”

It will be observed that an order made under this statute is not conclusive. It merely provides that such a finding by the probate court shall be “prima facie evidence of the facts found therein.” It has been held by this court that orders made in pursuance of this authority do not affect vested rights (Miller v. Davis, 106 Mich. 300 (64 N. W. 338), and that they are not appealable (Lorimer v. Wayne Circuit Judge, 116 Mich. 682 (75 N. W. 133). In the latter case Mr. Justice Long said, in reply to the argument that such orders were appealable under the general statute regulating appeals from probate courts, that:

“The act under which the proceedings were instituted does not purport to make the proceedings of the probate court conclusive upon anybody. They are not binding even upon the relator. The petitioner, or other persons interested, if not satisfied with the findings, might, in any judicial proceeding, resort to original evidence, and wholly ignore the action of the probate court. The proceeding simply makes evidence, and any common-law jury could overturn it in any other proceeding.”

We are therefore of the opinion that the claim of the defendants that the question is res adjudicator is without merit.

Upon the issue as to whether an estate by the entirety or an estate in common was created by the conveyances, the complainant insists that an estate by the entirety was thereby created, but he argues, whether it was or not, it so purported to be upon its face, and that parol evidence was not admissible to «contradict it by showing that Sarah J. was not, in fact, the wife of William at the time the deeds were made. He supports this contention by a citation of several cases, but the one particularly relied upon is Jacobs v. Miller, 50 Mich. 119 (15 N. W. 42). We have examined this case with care, and are unable to distinguish it from the one under consideration. Upon the question as to whether parol proof was admissible to show that the parties were not in fact husband and wife, the court said in part:

“By the principles of the common law the legal effect due to the plain words of a deed cannot be contradicted by the parties or privies in any collateral matter by parol evidence. The terms must stand and receive their just legal significance. 2 Whart. Ev. 1050, 1054, and cases; Jackson v. Foster, 12 Johns. [N. Y.] 488; Jackson v. Robert’s Ex’rs, 11 Wend. [N. Y.] 422. The name of the grantee is part of the deed (2 Rolle’s Abr. 43), and,' where a deed is made to several individuals without designating in what proportions they shall hold, they will take in equal proportions precisely as though it had been detailed at length in the deed (Campau v. Campau, 44 Mich. 31 [5 N. W. 1062]; Treadwell v. Bulkley, 4 Day [Conn.], 395 [4 Am. Dec. 225]), and no parol proof can be admitted to give the deed a different effect than such as the words in it legitimately import. Treadwell v. Bulkley, supra; Morse v. Shattuck, 4 N. H. 229 (17 Am. Dec. 419); Gully v. Grubbs, 1 J. J. Marsh. (Ky.) 388, 389, 390; 1 Cowen & Hill’s notes, 217, 1428 et seq., 1442, 1444. The case before us is governed by the same principle.”

The cases of Dowling v. Salliotte, 83 Mich. 131 (47 N. W. 225), and Auditor General v. Fisher, 84 Mich. 128 (47 N. W. 574), are cited in support of the proposition that oral evidence is admissible for the purpose of showing that the parties were, as a matter of fact, husband and wife, in order to show that the estate is one by the entirety. Those are cases in which the deeds were silent as to whether the parties were husband and wife. In such event the rule against contradicting the terms of a written instrument by parol evidence would not be infringed; whereas, if the deed stated the parties were husband and wife, and it should be shown by parol evidence that they were not, the rule would be violated.

In the Jacobs case another reason is given why defendants should not be permitted to contradict the recited fact in the deed that the parties were husband and wife. It is that:

“One who claims under a deed confirms all its provisions, and cannot establish his claim by adopting those provisions, only, which are in his favor, while he repudiates or contradicts others that are repugnant thereto.”

In the instant case the defendants, who are trying to contradict the terms of the deed in this respect, are claiming an undivided half interest in the lots by force of the same deed. They do not accept the instrument as a whole. They accept what is favorable to them, and attempt to reject what is unfavorable. This is just what the Jacobs case holds they ought not to be permitted to do.

The decree of the trial court will be reversed, and one will be entered in conformity herewith, with costs of both courts to complainant.

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


author: OSTEANDEE, J.

text:
    BLAIR v. SEITNER DRY GOODS CO.
    1. Negligence — Elevators — Personal Injuries — Storekeepers— Duty to Customers.
    Where plaintiff claimed that she was injured in attempting to step into defendant’s elevator in his store and fell because it was dark at the entrance to the elevator and she was unable to observe that the floor of the same was below the level of the floor from which she was entering it and it was not clear whether she did or did not exercise sufficient care in entering it under the circumstances, the trial court did not err in submitting the question as one of fact to the jury.
    2. Same — Evidence — Extent oe Injuries — Expert Testimony— Medical Experts.
    In an action for personal injuries, the question of the extent of the injuries, depending upon the- testimony of expert medical witnesses, must be established by a preponderance of the evidence; it is insufficient to show by the opinions of physicians that the injuries which plaintiff sustained might have caused the condition of which she complained or that they might have resulted from previous troubles or ill health. The recovery ought not to depend upon the jury attributing to a particular cause conditions which might as well be attributed to others.

      3. Same — Husband and Wife — Consortium.
    The right of consortium, defined as the right to conjugal fellowship of the wife and' of her co-operation and aid in every conjugal relation, is the right which arises out of the marital relation and at common law was an element for which plaintiff might recover damages if he was able to show that he had been deprived thereof.

    4. Same — Damages.
    At common law when a married woman was injured in her person she was joined with her husband in an action for the injury and nothing was recoverable for loss of her services or for expenses to which he had been put or for the loss of ability to earn wages, render services and of being helpful to others; such element of damages belonged to the husband who was entitled to the labor and services earned by the wife.
    5. Same — Statutes—Damages.
    In relieving the wife of common law disability, the legislature has denied to her husband the right to her earnings and the profits of any business which she might attempt to carry on but has not put her domestic duties in and about the home upon a pecuniary basis so as to entitle her to recover damages for the loss of ability to perform them.
    6. - Same — Marriage.
    For loss of consortium neither husband or wife is entitled to recover under the law of this State.
    Error to Bay; Collins, J.
    Submitted October 6, 1914.
    (Docket No. 6.)
    Decided March 17, 1915.
    Case by Edmund Blair against the Seitner Dry Goods Company for personal injuries sustained by his wife. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Stoddart & McMillan, for appellant.

      De Foe, Hall & Converse, for appellee.

      It is the claim of plaintiff that because of the negligence of defendant his wife sustained personal injuries. He sued to recover damages for his resulting injury. In his declaration he describes her injuries as—
    “Injuries to her back, spine, digestive organs, intestines, kidneys, and bladder and to her uterus and its organs, resulting in appendicitis and a displacement of such uterus and its said organs, all occasioning nervousness, sleeplessness, loss of consciousness, and sexual power, dizziness, and fainting spells.”
    As a result, he says:
    “Plaintiff has been compelled to lay out and expend large sums of money for medical and surgical care and attention, medicine, care, and nursing in an endeavor to cure her of such injuries, hindrance, and incapacity and to restore such sexual power and consortium, and it will always continue to be necessary for him to expend large sums of money for medical and surgical treatment, care, and nursing that would have been wholly unnecessary to expend had she not received said injuries and been hindered and incapacitated ,as aforesaid, and by reason of such injuries he has lost the value of her earning capacity, services, and consortium and the large sums which she otherwise would have been able to earn for and save to him in and about her duties as such housekeeper, and in and about similar labor, and in the future he will continue to lose large sums from her said earning capacity being so impaired and by reason thereof and the several losses so sustained by him, including the value of such services and consortium.”
    Testimony introduced on the part of plaintiff tended to prove that upon an occasion in April, 1912, when his wife, accompanied by two daughters, was shopping in defendant’s store, they undertook to use the elevator, in stepping into which, at the invitation of an employee, she fell because the floor of the elevator was below the level of the floor of the store, a condition of things which on account of semi-darkness in the elevator and the invitation aforesaid she did not discover. Issues of fact were raised by the testimony about the negligence of defendant, the negligence of the wife, the nature and effects of the injuries she sustained and, connected with the last, her previous physical condition. These issues, and others concerning the result to plaintiff, were submitted to a jury, and a verdict for $1,550.40 was returned. Judgment was entered on the verdict, and a new trial was refused.
    Over objection that it did not tend to establish a basis for estimating plaintiff’s damages, the plaintiff’s wife was permitted to testify as follows:

      “Q. Prior to your injury what was your relation with your husband with reference to the relation be-' tween a wife and husband on occasions?

      “A. I was perfectly well on that occasion.

      “Q. Had there ever been anything that interfered physically with the acts of intercourse between a wife and husband?

      “A. No, sir.”
    A physician was permitted over objection to answer this question:

      “Q. During that time what was her capacity as to discharging the functions of a wife so far as intercourse with a husband is concerned?

      “A. I would not think that would be possible.”
    Other medical testimony upon the subject was admitted, and the plaintiff on direct examination gave the following:

      “Q. Is the companionability, the sociability in your home the same now that it was before her injury?

      “A. No, sir, it is not. It is less.”
    On cross-examination, he testified:

      “Q. What do you mean by less? Your wife is there all the time as before?

      “A. She is there, yes.

      “Q. Then why is her companionship less than it was before if she is there with you as much as ever; you can talk and visit with her and associate with her just as well now as before, can you not?

      “A. Sometimes, not all the time. The woman is in pain all the time, and when a person is in pain they don’t feel much like talking and laughing and joking, nor anything of that kind. They feel more like going and hiding themselves sometimes.

      “Q. Then does it simmer down to this, that she is not at times in as cheerful a mood or condition now as she used to be?

      “A. No, sir.

      “Q. Is that what you complain of?

      “A. Yes, sir.

      “Q. Is there anything else in that connection that you complain of?

      “A. No, not in particular.”
    The jury was instructed:
    “By consortium as used by me is meant the right of plaintiff as husband to the fellowship of his wife, to her company, co-operation, and aid in every marriage relationship that ordinarily arises and exists as between husband and wife, including the care of his home, attention to household affairs, and such.other reasonable discharge of ordinary domestic duties as she was accustomed to render him as his wife, and as is usual as between husband and wife situate as they were.”
    Also, in stating for what injuries plaintiff’s damages should be determined:
    “Third, for any and all loss sustained by plaintiff, if any, by the impairment 'of her ability and power to render such domestic services and perform such work as she, as his wife, was accustomed to render to plaintiff in his household prior to such injuries, including such loss of consortium as I have explained, and such of said services as she would have continued to render but for these injuries, and in determining the amount which you will allow plaintiff, if any, under this third subdivision you will deduct therefrom such sum as you may allow the plaintiff, if any, for any and all expenditures for help in his home for which you may have made him an allowance under the second subdivision last above.”
    ' The contributory negligence of plaintiffs wife is established, it is claimed, as matter of law, for which reason the court should have directed a verdict and, failing this, should have granted a new trial. The results of the injury to plaintiffs wife claimed by the plaintiff are not, it is said, made out; they are plainly conjectural.
    In plaintiff’s bill of the particulars of his damages is an .item for—
    “Expenses in connection with medical and surgical care and attention, medicine, care, and nursing of Louise Blair, wife of plaintiff, heretofore incurred and to be hereafter incurred, $500,” and one for “loss of consortium of Louise Blair, as wife, heretofore incurred and to be hereafter incurred $2,000.”
    These, with a claim of $2,500' for loss of her earning capacity and services as wife, make up the $5,000 demand, to recover which the suit is brought.
    The testimony of the plaintiff tended to prove that as she stepped into the elevator she fell, striking with the lower part of her abdomen a stool which was in the elevator, causing a displacement of the uterus and a condition which developed appendicitis. A surgical operation was resorted to some 2^ months after the injury was received, the cost of which is an item of plaintiff’s demand. Whether this operation was made necessary by the injuries received, by plaintiff’s wife in defendant’s store, or whether her condition, relieved or attempted to be relieved by the surgical operation, was of long standing and due to other causes, was a subject which received considerable attention at the trial. Upon this subject the defendant preferred the following request, which was refused:
    “There is no evidence tending to show that there was anything wrong with any of Mrs. Blair’s organs excepting the appendix and uterus, and there is no evidence tending to show that her appendix and uterus were injured by the fall which it is claimed in this case she sustained in defendant’s elevator, and there is no evidence tending to show that the surgical operation performed by Dr. Ballard became necessary because of any injury sustained by her in the accident complained of, and therefore the plaintiff is not entitled to recover, and I charge you to render a verdict in favor of the defendant.”
    Defendant offered in evidence the files and records in the suit of Louise Blair (plaintiff’s wife) against this defendant, in which she recovered $1,000 damages for the injury in question here, which judgment was paid. They were excluded. They show that in that suit she alleged as damages expenses for medical and surgical care, medicine, and nursing already incurred and to be incurred, and loss of earning capacity, and large sums which she would have been able to earn as housekeeper, etc. The right of the husband in a case of this nature to recover damages for the loss of the services of his wife was and is questioned.

       On the question of the right of a husband to recover for loss of consortium through personal injury to his wife, see note in 33 L. it. A. (N. S.) 1042.

   OSTEANDEE, J.

(after stating the facts). In the brief for appellant argument is addressed to the alleged positive character of the evidence establishing the negligence of plaintiff’s wife, the uncertainty of the evidence to establish the injuries claimed to have been received by her, the rulings of the court and the charge upon the subject of plaintiff’s loss of consortium, the alleged excessive recovery, and the verdict of the jury which is, it is claimed, opposed to the weight of evidence. These are the subjects of principal discussion and will be considered.

It is not clear whether plaintiff’s wife did or did not exercise a proper degree of care in entering the elevator under the circumstances she says existed there. The question was for the jury.

The nature and extent of the injuries sustained by plaintiff’s wife are uncertain. The opinions of the medical men go no further than' this: that her condition at the time of the operation and before and after it is not in doubt and, with certain exceptions, might have been the result of the injury. These witnesses relate also other causes for such a condition as existed, and it is plaintiff’s claim that by his testimony he has eliminated these other possible causes from consideration, for which reason the proximate cause of her condition is not conjectural. On the other hand, it is the contention of defendant that the testimony is equally convincing that her troubles, relieved by the surgeons, were of long standing. It is very doubtful whether, exercising themselves wholly outside the domain of conjecture and wholly within that of proper and reasonable deduction from such testimony as they believed, the jury could have reached either material conclusion. As was true in Farrell v. Haze, 157 Mich. 374, 391, 392 (122 N. W. 197), a final condition of the patient was made certain by expert testimony. In the Farrell Case it was admitted that the cause of the condition was matter for expert determination. In the case at bar the accident (in the Farrell Case the treatment) might have produced the Known condition. But in this, as in that case, the testimony seems to fall short of showing that it is more probable the conditions, relieved by the surgical operation, were caused by the accident. So much plaintiff was bound to prove. Otherwise recovery depends upon attributing to a particular cause an injury which may as well be attributed to another cause.

Consortium has been defined as the person’s affection, society, or aid; the right to the conjugal fellowship of the wife, to her company, co-operation, and aid in every conjugal relation. 8 Cyc. p. 614. See Jacobsen v. Siddal, 12 Ore. 284 (7 Pac. 108, 53 Am. Rep. 360) ; 21 Cyc. p. 1525; Bouvier’s Law Diet, p. 402.

“The right of consortium is a right growing out of the marital relation, which the husband and wife have, respectively, to enjoy the society and companionship and affection of each other in their life together.” Feneff v. Railroad, 203 Mass. 278 (89 N. E. 436).

“Per quod consortium, amisit” (by which he has lost the companionship) was the phrase used when at the common law plaintiff declared for any bodily injury done to his wife by a third person. 3 Blackstone Commentaries, p. 140. Appellant says:

“We insist that for loss or diminution of his wife’s ‘marriage fellowship,’ of her ‘company and co-operation,’ that even if her society and companionship is less satisfactory than formerly, that in his association and intercourse with her he finds less comfort, pleasure, or happiness, all of which are matters of sentiment affecting the mind and heart and not the pocket, he cannot recover damages therefor. In this case no evil motive or wilful misconduct on the part of the defendant is claimed. * * * This is unlike an action on the case for seduction, or alienation of the wife’s affections, which stand upon peculiar reasons.”

At common law when a married woman was injured in her person she was joined with her husband in an action for the injury, and in such action nothing could be recovered for loss of her services or for the expenses to which the husband had been put in taking care of and curing her. There was no allowance for her loss of ability to earn wages, render services and be helpful to others, because these elements of damage, so far as recoverable at all, belonged to the husband. For such loss of services and such expenses the husband alone could sue. ' 1 Chitty, PL p. 84. The common law gave the husband the right to the labor, services, and earnings of his wife.

It is not now an answer to the wife’s suit to recover damages for injuries to her person that her husband is not joined as plaintiff. The legislature has relieved her of certain disabilities so called and has denied to her husband the right to her earnings and the profits of any business she may carry on. It has not, however, put her domestic duties and labor, performed in and about her home for her family, upon a pecuniary basis, nor meant to classify such duties as services, nor to permit her to recover damages for loss of ability to perform them. Gregory v. Motor Car Co., 181 Mich. 101 (147 N. W. 614). Where there is no intentional wrong, the ordinary rule of damages in every case goes no further than to allow pecuniary compensation for the impairment or injury directly done. If a husband is injured and recovers his damages, his wife cannot usually recover damages. The husband has usually, as a result of his action, been compensated for his pain and suffering, past and future, for loss of time, for diminution of capacity to earn money. The minor children of an injured father and those of an injured mother may suffer on account of the injury, but it has never been considered that they had an action therefor. The negligent defendant is supposed to have made full pecuniary compensation to the injured parent. Their loss is regarded not as direct, but consequential and remote.

If a husband may recover for loss of consortium resulting from physical injury to the wife occasioned by negligent conduct of the defendant, the wife may recover for loss of consortium of the husband under similar conditions. The right affected, if it may be properly called a right, is mutual. No reasoning will now support a recovery by one which will deny it to the other spouse.

“No case has been brought to our attention, and after an extended examination we have found none, in which an action for a loss of consortium alone has been maintained merely because of an injury to the person of the other spouse, for which the other has recovered, or is entitled to .recover, full compensation in his own name, when the only effect upon the plaintiff’s right of consortium is that, through the physical or mental disability of the other, the companionship is less satisfactory and valuable than before the injury.” Feneff v. Railroad, 203 Mass. 278, 280 (89 N. E. 436, 437, 24 L. R. A. [N. S.] 1024, 133 Am. St. Rep. 291).

If plaintiff has in fact, on account of his wife’s injury, lost a service • which she habitually rendered, then, as service, and according to the pecuniary value of it, he ought to be permitted to recover. Recovery should be according to the fact. For loss of consortium, of the undefined and indefinable influence of either spouse in the family relation, and the pleasure of the relationship, neither may recover. The Massachusetts decision in Kelley v. Railroad Co., 168 Mass. 308 (46 N. E. 1063, 38 L. R. A. 631, 60 Am. St. Rep. 397), relied upon in Gregory v. Motor Car Co., supra, and often cited in text-books and opinions of judges has been distinctly overruled as to the point now being considered. Feneff v. Railroad, supra; Bolger v. Railway Co., 205 Mass. 420 (91 N. E. 389). While our own former decisions do not distinctly rule the point, still Bowdle v. Railway Co., 103 Mich. 272 (61 N. W. 529, 50 Am. St. Rep. 366), is plainly not opposed to it. Nor do I think Gregory v. Motor Car Co. wrongly decided; no specific claim having been made that the damages were excessive, and the objection being that the husband could not recover at all for loss of services of his wife. As to the elements which may be considered by a jury in fixing the pecuniary loss of the husband, the charge delivered in that case was in some respects opposed to the conclusion I have reached (although to that portion of the charge no objection appears to have been made), and some of the decisions of other courts quoted with approval permit a jury to consider what I now think they should not be permitted to consider in estimating the value of the wife’s services.

The testimony referred to should not have been received, the court erred in his instructions upon the subject of loss of consortium, and, more doubtful, but nevertheless tangible, plaintiff did not fairly sustain the burden of proving that the probable cause of the wife’s injuries, relieved by a surgical operation at the cost of the husband, was the injury for which defendant was held responsible.

The judgment is reversed and a new trial granted.

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


author: Ostrander, J.

text:
    SCHNEIDER v. C. H. LITTLE CO.
    1. Negligence — Contractors — Building' Contracts — Master and Servant — Personal Injuries.
    Where plaintiff was in the employ of the contracting mason engaged in the construction of a portion of a dwelling house, and was injured by the collapse of a platform or floor upon which defendant’s servant placed, during the absence of the plastering contractor,' a large quantity of plaster, disobeying the order and direction of the architect, and it appeared that the architect was present at the building at the time the plaster was delivered and that the driver obtained directions from him where to place the sacks of material, and that it was the custom among building trades that the architect should give instructions where materials should be delivered, but the architect did not remain to see whether his instructions were obeyed, the question of the defendant’s negligence depended on whether its agent omitted to do what an ordinarily prudent man should.
    2. Same — Sales—Delivery.
    Where the plaster was placed in the building at the disposal of the plastering contractor who had purchased it, the seller had done all that was necessary to put the goods unconditionally at- the disposal of the buyer, and delivery was complete.
    3. Reasonable Care — Instructions.
    Whether the agent of defendant was guilty of negligence was a question of fact, also whether he understood or ought to have understood that by piling five tons of plaster in the unfinished structure he was creating a danger or a nuisance likely to give rise to the results which followed.
    4. Same — Sales—Delivery oe Goods.
    Where delivery is undertaken by the seller and he is advised that the disposition of the goods in a certain way at the place of delivery is dangerous to the structure in which they are placed and another disposition is safe, his duty to prevent harm is clear, and the obligation would rest upon any person, having knowledge of the unsafe condition created and the probable consequences, to prevent the injury.
    5. Same — Contractors.
    The fact that the plastering contractor had received the goods which had been placed at his disposal did not affect or relieve the defendant of the duty to exercise reasonable care, nor excuse his original misfeasance in the absence of evidence that the contractor should undertake to do the plastering, knew about the condition which was created, or had reasonable grounds for apprehension would be created, the court erred in taking the ease from the jury.
    Error to Wayne; Codd, J.
    Submitted October 15, 1914.
    (Docket No. 66.)
    Decided March 17, 1915.
    Case by Charles W. Schneider against C. H. Little Company, a Michigan corporation, for personal injuries. Judgment for defendant upon a directed verdict. Plaintiff brings error.
    Reversed.

      George F. & Peter J. Monaghan, for appellant.

      Stevenson, Carpenter, Butzel & Backus (Thomas G. Long, of counsel), for appellee.
    A statement of the facts (of what the testimony for plaintiff tended to prove) is taken from appellant’s brief, substantially as it there appears: The plaintiff is 50 years old, and has been engaged in the occupation of a tile setter for several years past. About five years before the happening of this accident, he entered the employ of C. J. Netting Company. This concern is engaged in the mantel and tile contracting business and specializes, among other things, in the laying of tile floors. At the time of the events to be ^elated, C. J. Netting Company had a contract to lay the tile floor upon the porch of a dwelling house under course of construction on Burns avenue, in Detroit. The owner had made several distinct and separate contracts for the erection of this building. Gustave Johnke was the plastering contractor. Otto Misch was the mason contractor. Other contracts were made, which are not of interest in this issue. The plans and specifications for the building were drawn by Bernard C. Wetzell, who had charge of the execution of the plans and superintended the construction of the building. The dwelling was of brick and cement construction. In front of the building a porch was designed, 9 feet in depth and 35 feet in length. The floor of the porch was constructed of reinforced concrete. The cellar was built underneath the main portion of the house, but not under the porch itself. The porch was joined directly to the main front wall of the building, excepting at that portion of the building described as the “bay window.” The bay window, a part of the living room, was designed to extend beyond the main wall and over and upon the porch itself. The inside dimensions of this bay window were 2 feet in depth and 14 feet in length. The bay window extended and projected about 2feet beyond the line of the wall-of the building and over and upon the porch, resting partly upon the wall and partly upon the porch floor. The openings in the window itself were about 20 inches above the floor of the porch. The porch floor was designed to sustain 75 pounds to the square foot.
    On the day after the plaintiff started work, namely, on the 17th of August, 1910, about 9 o’clock in the morning, a wagon belonging to C. If. Little Company drove to the front of this building with a load of plaster. This plaster was contained in bags, each weighing 100 pounds, and was being delivered by C. H. Littl.e Company upon the order of Gustave Johnke. The driver of the wagon came up to the porch where the plaintiff was working and said, “I have a load of plaster for you;” and the plaintiff replied, “It isn’t for me.” The teamster said, “What shall I do with it?” and the plaintiff said: “I don’t know. It is not for me. There is the architect over there, go and see him, and he will tell you.” The architect was present at the building and performing his work of superintendence. The driver went into the building and spoke to the architect. The driver then came from the building, drove the wagon up close to the porch, took a plank about 12 feet in length, and placed it from his wagon to the porch. He then started to carry the bags from the wagon across the porch and placed them in the- bay window in front of the building. This operation interfered with the work of the plaintiff, and he said to the driver of the wagon, “You are in my way; you are interfering with my work. You will have to find another way to get in.” Up to this time the driver had placed about 15 bags of plaster in the bay window. The driver of the wagon then changed the location of his wagon and brought the bags of plaster through the side of the building, through the rooms in the rear of the living room, and placed the remaining bags of plaster on the floor of the living room and on the floor of the bay window. While the driver was bringing the plaster through the side of the building and into the living room, and placing it in the bay window, Paul Shefskowski, an employee of Otto Misch, the mason contractor, said to him:

      “A. I told him when he was about unloaded why he should not put so much, so many bags there, that the joists might break and the floor might break and kill us all.

      “Q. What did he say?

      “A. Nothing.

      “Q. Did he put the whole wagon load in the bay window?

      “A. He did.”
    Mr. Wetzell testified:

      “A. I was standing about the middle of the building when this man came up and asked me where to put the plaster, and I told him to distribute it around the building and not to pile any more into the bay window. He said, ‘That is the most convenient place to put it.’ There were already some bags of plaster placed in the bay window.

      “Q. About how many?

      “A. Ten or 15 bags, which brought it up about the level of the window sill.

      “Q. State whether or not you said anything to him about why he should not place it in the bay window.

      “A. Not to place it in the bay window because it was dangerous to pile material all in one place; we do that in every building.”
    When the material was delivered at the building, Mr. Johnke was not present. In the absence of the contractor, it is the custom among building trades for the architect to instruct where material is to be delivered. There is. nothing in the record to indicate that Mr. Johnke had left any instructions as to the location where this plaster was to be placed, or to show that Mr. Johnke was present at the building between the time the material was furnished and the accident. The total weight of the piaster amounted to over 10,000 pounds. About 4 o’clock the porch, by reason of the excessive weight bearing upon it, collapsed. The plaintiff was then working about the center of the bay window. One of the window sills from the bay window and many of the bags of plaster piled up within the bay window fell upon the plaintiff. The stone sill of the porch and the bags of plaster pinned him down and he was unable to free himself. He suffered severe injuries, from which he has not as yet recovered.
    To this statement I add the following: The architect did not remain to see whether his instruction, or suggestion, was obeyed. A number of men were at work about the building, to some of whom, at least, the presence of the plaster was no indication of danger. They so testify. The size of the bags of plaster is given as about 2% feet long and 18 inches wide, and they were piled 4i/á to 5 feet high. There were 100, or more, of them. It does not appear that the wall of the house or the floor of the room, inside the bay window, broke or changed position^ There was a rough board floor in the room and in the bay window. The material was perishable, needing protection from the action of water.
    After the plaster was delivered, and to the time when the porch collapsed, the plaintiff added gradually, but considerably, to the weight of the porch by laying wet cement and tiles on the floor thereof. No warning, as from breaking or deteriorating material, announced or preceded the collapse of the porch.

      No testimony was introduced on the part of defendant. Verdict for defendant was directed, and judgment entered thereon. Two general propositions are presented in argument, one that:
    “The defendant company owed the duty to the plaintiff to refrain from creating a dangerous condition, and its action in placing the plaster in one position constituted actionable negligence.”
    The other that:
    “The defendant company is not entitled to immunity from the result of its negligent act because another agency did not actively intervene to render safe a condition which the defendant company had made unsafe.”
    For the defendant, appellee, it is argued that there was no actionable negligence in the piling of the plaster and that:
    “The failure of the plastering contractor to change the position of the plaster was an intervening cause and the effective legal cause of the injury.”
   Ostrander, J.

(after stating the facts). As completing a sale and delivery of personal property, it is the general rule that when, pursuant to the express or the implied agreement between seller and buyer, the seller has done everything which is necessary to be done to put the goods completely and unconditionally at the disposal of the buyer, the delivery is complete. It is a necessary inference from the facts stated that, according to an understanding or agreement of buyer and seller, the plaster was to be delivered at the building where it was delivered and placed in or about it in a place sheltered from rain. The facts support the conclusion that for some five or six hours before the porch collapsed the plaster was completely and unconditionally at the disposal of Johnke, the buyer.

It may be assumed that defendant’s agent did not intend by his conduct in delivering the plaster to cause harm. Whether he was negligent depends upon whether he omitted to do something which a reasonable man, guided by consideration which ordinarily regulate the conduct of human affairs, would do, or did something which a prudent and reasonable man would not do.

“Now, a reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. . He will order his precaution by the measure of what appears likely in the known course of things. This being the standard, it follows that, if in a particular case (not being within certain special and more stringent rules) the harm complained of is not such as a reasonable man in the defendant’s place should have foreseen as likely to happen, there is no wrong and no liability.” Webb’s Pollock on Torts, p. 45.

The case, as to the negligence of defendant’s agent, is not within special rules, as, for example, it would be if a statute duty had been violated. A jury might find that any man in the business of delivering building material ought to know that it is probably dangerous to pile five tons and more of material, as heavy as plaster, in one pile, in an unfinished dwelling, and that he should have been instructed by his employer not to do so. Defendant’s agent was advised, by one having some authority, to whom he had been referred for direction, that such a course was dangerous — told not to put any more in the bay window, but to distribute it. A jury might find that, whether the conduct of defendant’s agent was otherwise negligent, it was negligent in view of the instruction he received from the architect; that he should then have apprehended, if not before, that from what he was doing, and did, evil consequences would probably result. Whether defendant’s agent was negligent was a question for the jury. If he understood, or ought to have understood, that by piling the bags as he did he was, probably, creating a nuisance, inviting the evil results which followed, his conduct was negligent.

2. When delivery of goods is undertaken by the seller, and in delivering them he is advised that disposition of the goods in a certain way, at the place of delivery, is dangerous to the structure in which they are placed, and, impliedly, that another disposition is safe, and the delivery is thereafter completed, must the buyer, at his peril, inspect the manner of delivery and disposition of the goods at once, or in any particular time? If the buyer knows of the improper disposition, his duty to prevent harm is clear. And it would seem it would be the duty of any one having knowledge of the unsafe condition created, and the consequences to be apprehended, and who.was likely to be affected thereby, to prevent the injury. Preventive action, in view of the precedent negligent conduct of another, is a duty when the negligent conduct is known, or evil effects from known conduct are to be apprehended. As stated in the brief for appellee, from 29 Cyc. p. 502, the principle invoked is:

“Where, after the negligent act, a duty devolves on' another person in reference to such act or condition which such person fails to perform, such failure is the proximate cause of the injury resulting from the act.”

In its last analysis, the argument of appellee is this: That Johnke owed to plaintiff the duty to ascertain, within a reasonable time, whether his plaster had been bestowed in delivery in such manner as to affect the integrity, or the safety, of the structure in which it was placed and the safety of persons lawfully there; that, this duty arising, defendant’s original negligent conduct was, in law, excused. The cases cited by appellee do not go so far. In Fowles v. Briggs, 116 Mich. 425 (74 N. W. 1046, 40 L. R. A. 528, 72 Am. St. Rep. 537), the shipper of lumber which was negligently piled on a car was held not to be liable in damages to the servant of the carrier injured by the movement of the car and lumber after it became the duty of the carrier to provide for the inspection of the car. Lellis v. Railroad Co., 124 Mich. 37 (82 N. W. 828, 70 L. R. A. 598), is a case like, and is decided upon the authority of, Fowles v. Briggs. In Missouri, etc., R. Co. v. Merrill, 65 Kan. 436 (70 Pac. 358, 59 L. R. A. 711, 93 Am. St. Rep. 287), a railway company which had delivered a defective car to a connecting carrier, after which it was inspected by the receiving carrier, was held not liable in damages to an employee of the latter. In Griffin v. Light & Power Co., 128 Mich. 653 (87 N. W. 888, 55 L. R. A. 318, 92 Am. St. Rep. 496), defendant had installed an imperfectly insulated electric lamp on the premises of a customer, who knew of the defect and continued to use the lamp. A third person in using it was injured. It was held that defendant was not liable. In all of these cases, some one other than defendant had assumed a duty which, performed, would have averted the injury, or had done some act which, if properly done, would have averted it. Responsibility for proper conditions had been assumed.

The mutual duties of contractors engaged in performing distinct contracts in the erecting of a building, in receiving and disposing of material, may be somewhat peculiar. It would seem that no one of them might at any time actively disregard the safety of the others and their servants and the duty to so supervise the delivery of material as to bring about no harm to others might be clear. Whether in any case such a duty exists, and, if it may, the timé within which it should be performed, depends upon the facts of the case. In any event, each contractor would still be governed by a reasonable estimate of probabilities. It does not appear that Contractor Johnke knew anything about the condition which was created, or had reason to apprehend that it would be created. Appellee has not made out a case within the governing principle it relies upon. Whether plaintiff was himself negligent is a question not determined by the trial court.

The judgment is reversed, and a new trial granted.

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


author: Moore, J. Kuhn, J.

text:
    LANNIN v. LYNN.
    Equity — Accountino — Adequate Remedy at Law — Demurrer— Partnership — Fraud—Conspiracy.
    Averments of complainant’s bill tbat be and one of tbe defendants, as partners, were engaged in tbe contracting business in tbe conduct of wbicb they agreed to construct a building for tbe other defendant at a certain percentage of tbe cost and tbat tbe owner and defendant partner conspired together to defraud complainant by secretly changing tbe agreement so as to provide for a weekly compensation instead of a percentage of the entire cost; tbat tbe defendant partner also received large sums of money for wbicb be did not account to complainant, were insufficient to sustain tbe jurisdiction of a court of equity and on demurrer tbe trial court should have held tbat complainant had an adequate remedy at law. Moobe, J., dissenting.
    Appeal from Wayne; Murphy, J.
    Submitted October 15, 1914.
    (Docket No. 104.)
    Decided March 17, 1915.
    Bill by William B. Lannin against William G. Lynn and Sarah F. Cochrane for conspiracy to defraud and for an accounting. From an order overruling a demurrer to the bill of complaint, defendants appeal.
    Reversed.

      Cornelius & Bing, for complainant.

      A. J. Groesbeck, for defendant Cochrane.

      A. W. Semplines, for defendant Lynn.
   Moore, J.

(dissenting). This is an appeal from the circuit court in chancery from an order overruling demurrers.

The substance of the bill of complaint is that comr plainant and defendant were building contractors in the city of Detroit, and that they entered into a contract with defendant Cochrane to perform the usual duties of general contractors in the building of a residence for her, which was to cost in the neighborhood of 825,000, for which services Lannin and Lynn were to receive 15 per cent, of what the residence cost, and that the services were rendered, and the percentage earned. It is averred with more detail than we shall state here that the two defendants became very intir mate friends, and that this culminated in a conspiracy to defraud complainant.

We quote from the bill of complaint:

“That some time early in the spring of 1911, while said work was in progress, the said William G. Lynn and Sarah F. Cochrane, unknown to your orator at that time, conceived a plan to defraud your orator out of his just compensation arising from said contract; and in furtherance of said plan and conspiracy, the said Sarah F. Cochrane entered into an agreement with the said William G. Lynn, whereby he, the said William G. Lynn, for and on behalf of the firm of Lannin & Lynn, agreed to accept the sum of $25 per week in full settlement and compensation for the services which would accrue to the said firm of Lannin & Lynn by reason of superintending the construction of said residence; that after said contract had been entered into by and between the said Sarah F. Cochrane and the said William G. Lynn on behalf of the firm of Lannin & Lynn, said defendant Sarah F. Cochrane began paying the firm of Lannin & Lynn the sum of $25 pursuant to such secret arrangement. * * * That the said William G. Lynn, in furtherance of said plan to defraud your orator, explained to your orator that the reason the said Sarah F. Cochrane was paying said sum was because she was somewhat short of funds at the time and would pay the balance when the building had been completed. * * *

“That pursuant to such secret agreement between the said Sarah F. Cochrane and the said William G. Lynn, codefendants, the said Sarah F. Cochrane paid to the firm of Lannin & Lynn the sum of $25 per week until the sum of $325 had been thus paid; that she then ceased paying anything on account of such services, and has not to this day paid to your orator or to the firm of Lannin & Lynn any further sum on account of such services.

“That the said Sarah F. Cochrane and William G. Lynn now stand ready to go upon the stand in a suit at law and testify that such agreement was made by and between the said William G. Lynn, on behalf of the firm of Lannin & Lynn, in full settlement for the services of such firm on account of the construction of said residence as hereinbefore set out. * * *

“By reason and because of the advantages which accrued to Sarah F. Cochrane from said secret agreement, large sums of money were paid by the said Sarah F. Cochrane to the said William G. Lynn which should have been applied to the account of Lannin & Lynn. * * *

“That since said work has been completed for the said defendant Sarah F. Cochrane your orator and the said William G. Lynn have dissolved the copartnership which formerly existed under the firm name of Lannin & Lynn, and that upon the dissolution of said partnership a general accounting was had by and between your orator and the said William G. Lynn; that at the time of such general accounting your orator was not cognizant of the fact herein alleged with reference to said secret agreement or contract, and that such transaction was not considered in the settlement by and between your orator and the said William G. Lynn; * * * and by reason of said unlawful conspiracy to defraud your orator as hereinbefore set out the said William G. Lynn refuses to join as a party plaintiff in an action to enforce the collection of such claim and disclaims any and all interest in such a claim, and is therefore made a party defendant herein.

“That there is justly due your orator for such services the sum of $2,544.50. * * *

“That the said William G. Lynn is not possessed of any assets subject to execution and is totally insolvent.”

The bill prays for an answer under oath.

“That the contract made by and between the said Sarah F. Cochrane and William G. Lynn, for and on behalf of the firm of Lannin & Lynn, whereby the said William G. Lynn, for and on behalf of the said firm, agreed to settle in full for the services of such firm in connection with such residence for the payment of $25 per week be rescinded, and annulled and canceled.

“That the said defendant Sarah F. Cochrane be required to pay to your orator the sum of $2,219.50 together with interest thereon from the 1st day of October, 1911, less payments made to William G. Lynn on account.”

It also prays for an accounting, for discovery, and concludes with a prayer for general relief.

The ground of demurrer most strongly urged is that complainant has an adequate remedy at law, counsel citing, as controlling, Mack v. Village of Frankfort, 123 Mich. 421 (82 N. W. 209); Detroit Trust Co. v. Bank, 155 Mich. 61 (118 N. W. 729), and Laubengayer v. Rohde, 167 Mich. 605 (133 N. W. 535). Without stopping to analyze these cases we think a reference to them will show they are distinguishable from the instant case.

The language of Justice Grant in Fred Macey Co. v. Macey, 143 Mich. 138 (106 N. W. 722, 5 L. R. A. (N. S.) 1036), is pertinent here:

“Courts of law are not clothed with the sole power to try issues of fact. The jurisdiction of the court of chancery in this State to try cases and grant relief from the consequences of fraud is as old as the jurisprudence of the State. In the early case of Wheeler v. Clinton Canal Bank, Har. Ch. (Mich.) 449. the court, after holding that the complainant's remedy at law was difficult and doubtful, said: ‘Courts of chancery have also concurrent jurisdiction in cases of fraud.’ See, also, Wales v. Newbould, 9 Mich. 45. The same principle runs through many cases from that time to the late case of Edwards v. Investment Co., 132 Mich. 1 [92 N. W. 491], in which many authorities are cited.

“Counsel recognize that this case is ruled by John Hancock Mut. Life Ins. Co. v. Dick, 114 Mich. 337 [72 N. W. 179] 43 L. R. A. 566, and Mactavish v. Kent Circuit Judge, 122 Mich. 242 [80 N. W. 1086], and therefore argue strenuously for the overruling of those cases. They insist that they are_ overruled by the later case of Northwestern Mut. Life Ins. Co. v. Amos, 136 Mich. 210 [98 N. W. 1018], and that the writer of that opinion failed to distinguish it from those cases. We may have failed in distinguishing them, but we were evidently of the opinion that we did distinguish them. At all events it is manifest that there was no intention to overrule the former cases, but, on the other hand, to approve them. Our attention is called to no case in which we have cast any doubt upon the correctness of those decisions.

“The concurrent jurisdiction of courts of equity and of law where relief from fraud is asked is too firmly established in the jurisprudence of this State to be now overruled.”

See, also, Sherman v. Stove Co., 85 Mich. 169 (48 N. W. 537); Warren v. Holbrook, 95 Mich. 189 (54 N. W. 712, 35 Am. St. Rep. 554); Edwards v. Investment Co., 132 Mich. 1. (92 N. W. 491); Freeman v. Specialty Co., 174 Mich. 59 (140 N. W. 572); Excelsior Wrapper Co. v. Yund, 176 Mich. 372 (142 N. W. 353).

The decree of the court below should be affirmed with costs.

Kuhn, J.

I am of the opinion that the demurrer in this case should have been sustained on the ground that the complainant has an adequate remedy at law, and I think it comes within the holding of this court in the case of Laubengayer v. Rohde, 167 Mich. 605 (133 N. W. 535), and the cases therein cited. See, also, Reis v. Applebaum, 182 Mich. 582 (148 N. W. 696); Berger v. Roe, 179 Mich. 184 (146 N. W. 200); Levitan v. Bank, 182 Mich. 30 (148 N. W. 388).

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