author: McAlvay, J. Ostrander, J.

text:
    PANELA v. CASTILE MINING CO.
    1. Appeal and Error — Directed Verdict — Evidence.
    In passing on the correctness of the trial court’s action in directing a verdict for defendant, the evidence presented by plaintiff must be considered in the light most favorable to him.
    2. Master and Servant — Mines and Mining — Defective Signaling Apparatus — Negligence.
    Testimony tending to show that the electric signaling apparatus and bell used in connection with the hoist in defendant’s mine were defective and the bell gave unreliable or uncertain signals, that, when plaintiff’s fellow-servant attempted to signal the operator to draw the miners up out of danger of a blast that they had lighted, the bell did not register the signal which should have been transmitted, and that no one but the hoisting engineer who knew nothing about such apparatus inspected it, and then only when something went wrong, that the miner who gave the signal attempted to give the correct one, but the bell did not sound the proper number of strokes, presented a question of fact relative to the defective condition of the apparatus.
    3. Same — Evidence.

      Held, also, that there was evidence tending to prove that defendant was negligent in failing to maintain its hoisting apparatus in suitable condition to perform the service of removing employees promptly from the vicinity of an explosion or blast.
    4. Same.
    And held, that plaintiff’s evidence tended to establish his claim that defendant had failed to warn plaintiff of latent danger arising from dynamite which had been left near the place of work by another crew.
    Error to Gogebic; Cooper, J.
    Submitted January 23, 1913.
    (Docket No. 63.)
    Decided December 20, 1913.

      Case by Jacob Panela against the Castile Mining Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      O’Brien & Le Gendre and George O. Driscoll, for appellant.

      Belmont Waples and William F. Shea, for appellee.
   McAlvay, J.

Plaintiff brought suit for damages for personal injuries received while he was employed by defendant company as a miner in the Eureka mine, operated by it. The result of the trial was a verdict instructed by the court at the close of plaintiff’s ease in favor of the defendant, upon which a judgment was entered. Plaintiff seeks a reversal of this judgment upon the ground that the trial court was in error in directing a verdict against him.

The case has already been before this court, brought here by defendant to review an order overruling a demurrer to the first count of plaintiff’s declaration, when this court affirmed the judgment sustaining the declaration. Panela v. Mining Co., 165 Mich. 329 (130 N. W. 686). An examination of the opinion of the court rendered at that time will be helpful in the consideration of the instant case.

The facts in the case cannot be stated briefly in order to give the information necessary to its proper consideration, and for that reason the statement of facts presented by the appellant is adopted. This statement is accepted by the appellee for the most part as correct. Reference will be made to its objections later in this opinion.

“Statement of Facts.

“On and before September 17, 1909, defendant was operating the Eureka mine, working the seventh and other levels, and extending No. 3 shaft, which was a steeply inclined 3-compartment shaft, 12x9 feet in size, over 1,200 feet deep, and braced with metal sets to a point about 5 feet below the twelfth level and 14 feet above the bottom. There were 12 levels, about 100 feet apart, numbered 1 to 12 from surface downward. The twelfth level was about 10 feet high and 20 feet long. In the west compartment of the shaft, between surface and the seventh level, was a skipway upon which was operated a skip by means of an engine, drum, and cable, in response to signals transmitted by a separate signaling apparatus from that hereinafter mentioned.

“Three crews of miners, each consisting of 5 men and a foreman, and who worked 8-hour shifts, commencing at 7 a. m., 3 p. m., and 11 p. m. each day, were engaged in extending the shaft under a contract with defendant by which they were paid $25 per foot for sinking, and were required to use dynamite, and defendant was to furnish the necessary tools and materials to do the work and convey the miners to and from the bottom of the shaft, and provide them with signaling apparatus, to give signals to be hoisted by the hoisting apparatus. These men relied upon defendant to promptly and safely hoist them by means of the truck and bucket hereinafter mentioned when they signaled from below to move the truck and bucket, especially when explosions were about to take place, and expected that the signaling apparatus would be in such shape that the signal would be promptly and properly transmitted by it,' and the hoisting apparatus would be in such shape that it could be promptly operated. They had no voice in the selection of a foreman or the fixing of his wages, and, when one of them quit or was discharged, defendant hired another without consulting the miners. Defendant figured out what each man had coming and paid him at its office.

“The outgoing and incoming crews generally met at the seventh level. The twelfth level was an unsafe place to stay while blasting was going on. None of the members of the several crews would know what had been done in the bottom of the shaft by any other crew unless specially warned by some one else of it. Dynamite might be scattered around there, owing to missed holes or its being left there by other crews, and, in either case, would be dangerous to everybody in the shaft and easily concealed by the dirt so as to be difficult to discover. Those who load and fire the blasts can tell, by varying the lengths of the fuses and counting the holes that are loaded and lighted and that go off, whether or not there are any missed holes, and, if so, how many, or at least can tell if less go off than are loaded and lighted. The men went to the seventh level when a blast was set off to count the shots as they went off. The foreman was supposed to keep track of the shots and tell the foreman of the next shift if there were any missed holes. The dirt would be pressed and tamped into the holes, and the holes concealed by the workmen. The workmen were not supposed to be always on the lookout for missed holes. Sometimes there would be none for a couple of weeks or longer, and again they would occur once a week. If a workman is notified that there is one, he is on the lookout for it and can better protect himself from any powder which may be scattered around the shaft. Any missed holes or holes which blasted without breaking were reloaded and blasted. The miners expected defendant to keep track of the powder and missed holes that were left in there by the different shifts and to warn the members of each crew of any left in there by any crew other than their own, and, by doing this, the danger to the miners would be reduced. It was necessary for their safety and protection that they should be so warned. The duty of so warning them was imposed by defendant on the foreman of each crew. It was customary to so give such warning where there were several crews working at the same place. The foreman got more pay than the others. He and the captain planned the work, and he looked after everything, gave orders how to do the work, and, if anything was needed, got it for the men.

“In the middle compartment of the shaft was a track, upon which was operated a truck (6 feet long, with a frame and pulley) and the bucket (2% feet in diameter and height), by means of a puffer engine, drum, and cable. The puffer and drum were in the same building in which the skip engine was; there being only a partition between the two engines. This building was 115 feet from the shaft house. The cable ran from the drum to a sheave in the frame of the truck and to the bail of the bucket. A pole placed across the shaft at the last set prevented the truck from going farther down than that. By this arrangement, the bucket was kept upright, and, when the truck stopped, the bucket would continue to the bottom and then, when it would rise, the bail would catch onto the truck and both would go up together.

“There was a ladderway in the shaft above the top of the twelfth level, but below the seventh level it was in a poor, broken condition, especially near the bottom. A person who climbed through the shaft would have to climb part of the way on the sets, and that was dangerous. There was but one way provided for men to get into and out of the bottom of the shaft, and that was by means of the truck and bucket. The only ladder down there was a poor, short one, which only reached to where the truck stopped.

“The signaling apparatus used in connection with the truck and bucket consisted of an electric bell having an 8-inch gong, which was worked with a magnet, was operated by dry cell batteries, and was attached to the wall of the engine house near the puffer, where there was considerable vibration. Two separately insulated wires ran from it down through the shaft and were attached to the shaft down to a point about 40 feet from the bottom. They were loose from there down. About 3 inches of the insulation was removed from the bottom end of each of the wires. The bell was supposed to ring in the engine house each time the two bare ends of the wires were touched or rubbed together; a long bell was given by holding them together. At blasting times the wires were rolled and carried up the shaft 30 or 40 feet and signals were given from there, and the wires left there to prevent their injury by the blasts. The miners had no opportunity to see the apparatus in the engine house.

“The dirt was loosened in the shaft by drilling holes 7 or 8 feet deep and 2% inches in diameter, with air drills, loading them with dynamite, and blasting them by means of caps and fuse. The dirt was hoisted to the seventh level. Each crew worked in sets of two. One set worked in the middle and one in each end of the shaft. Each set was supposed to attend to their own sections and pay no attention to the sections of the others. Defendant kept its dynamite, fuse, and caps on the surface. A missed hole is where there has been dynamite loaded in the hole which did not explode. An exploder is a stick of dynamite with fuse and cap attached to it. The fuses were cut about 12 feet long and would burn about one foot a minute. Fuses do not readily take fire, and for that reason the ends are split to expose the train of powder inside. If fire was set to the side of the fuse, it would take about one minute for the fire to reach the train of powder, if the fuse was wet, and about half a minute if it was dry.

“The customary way of doing the work of blasting there was to first clean out the hole, then put the exploder in the bottom, then take other sticks of dynamite, slit the wrappers so they will spread out when tamped, place them on top of the exploder, and tamp them down. The holes are filled with dynamite to about 11/2 feet from the top and then fine, dirt or rock is put on top of that. A missed hole is loaded in the same way, but the dynamite sometimes comes 6 inches or closer to the top of the hole. After the dirt or rock is put on, none of the powder is exposed. Dynamite can catch fire from the spitting (sparks) of the fuse. It burns slowly, not much faster than fuse. The exploders were prepared on surface and brought down in a box, with the dynamite, in the bucket. After the holes were about ready to load, two men went to surface and got the explosives. After getting them, the two men would go down the shaft and one of them would get off at the seventh level to turn off the air and the other would go down to the last set and then roll or carry the wires up about 40 feet in the shaft and stay there. The bucket would go down to the bottom and the men there would get the dynamite and exploders, load the holes, split the fuses, and get ready to blast, and then two of the men would go up on the truck or the short ladder and pull the ladder up and put it on the sets. The six men would then be thus stationed: One at the seventh level; two in the bottom of the shaft; one 40 feet above the bottom; and two on the truck. The bucket would be in the middle of the bottom of the shaft. Santi and Latvala usually lighted the fuses on plaintiff’s shift. When they were ready to light them the fire signals would be given. They were: Three bells to hoist the bucket seven or eight feet, one bell to stop, two to lower it again, one to stop it at the bottom, and then one long bell to indicate that they were about to blast. After the fuses were lighted, a seven-bell signal bell was given to indicate that the miners wished to be hoisted to the seventh level. These signals were given by the man stationed 40 feet from the bottom, who could catch the truck as it ascended and go up with the rest. It took seven or eight seconds to give the seven-bell signal, two or three seconds to light the fuses, and about four or five minutes for the bucket to go from the bottom to the seventh level. The miners were usually at the seventh level about four or five minutes before the first blast. The bucket was usually started when the last of the. seven bells was given. • Because the signaling apparatus could not be relied on, Benny, the engineer, was instructed by defendant to hoist on any signal after the long bell, but the miners knew nothing about that. The fuses were lighted by each man taking in each hand about half the fuses he was. to light and holding them over the flame of a candle.

_ “Holm was the foreman, and plaintiff, Maki, Rusciolelli, Santi, and Latvala were the miners, in plaintiff’s crew. Plaintiff had limited experience in mining but had been working in this shaft about a year. September 17, 1909, this crew went to work at their usual time, 7 o’clock a. m., and met the outgoing crew at the seventh level. There were five missed holes left in the shaft by some preceding shift. It appears that the outgoing crew knew that, and so informed plaintiff’s foreman. When plaintiff’s crew got to the bottom they found a quantity of dirt which had been loosened by one of, but not removed by, the other shifts. It took plaintiff’s crew about an hour to remove this dirt. Plaintiff and Latvala worked in the west end, Santi and Rusciolelli in the east end, and Holm and Maki in the middle of the shaft. No new holes were drilled that morning. Plaintiff and Latvala found five holes in the west end, not missed holes, but holes which had been blasted before; Santi and Rusciolelli found only three missed holes; but they also found some other holes (Rusciolelli could not say how many) in the east end. There were no holes in the middle. Plaintiff and Latvala together examined the west end holes and found them all right to blast. Santi and Rusciolelli did the same with the holes in the east end. One of the men from each end (evidently Santi and Latvala) counted the holes and told Maki and Holm that they needed 14 exploders. There were 14 holes in all to be blasted. Maki and Holm went up to the surface for the exploders and dynamite and there prepared 14 exploders, got the necessary dynamite, and put them (in the box) in the bucket, and went down the shaft. Holm- got off at the seventh level. Maki continued down to the last set and then went up with the signal wires. The bucket continued to the bottom. Plaintiff and Latvala together charged the five holes on the west end. Santi and Rusciolelli charged those on the east end; Santi putting the exploders and dynamite in, and Rusciolelli tamping the dynamite. The holes were charged in the customary way. All of the holes in the east end were within 3 y% or 4 feet from the east end. When the holes were charged, Santi and Latvala told Rusciolelli and plaintiff that they would put the dirt on the holes, and went about doing so in the customary manner, and plaintiff and Rusciolelli went up on the truck. The ladder was then placed on the sets. At this time Santi was in the bottom in the east end, Latvala in the west end, plaintiff and Rusciolelli on the truck, Maki 40 feet up the shaft, and Holm on the seventh level.

“When Santi and Latvala were all ready to blast, they directed Maki to give the fire signals, and he did so. Santi and Latvala had their candles all ready to light the fuses. When Maki had given the fire signal he told them so. Santi and Latvala then asked each other if they were all ready, if all the fuses were split, and if they had them in their hands. They each said they were ready, and they lighted their fuses all together in the customary way; Santi lighting those in the east end and Latvala those in the west end. Santi was facing east and was right on the east side of the bucket and the holes were east of him, when he lighted the fuse. It took them two or three seconds to light the fuse. Just as soon as they lighted the fuses, they told Maki to give the signal to hoist the bucket, and he immediately started to do so. He rubbed the bare ends of the wires (which were then clean and bright) together seven times in the customary manner. At that time Santi and Latvala were getting on the bucket. The bucket was not started. Then they said to Maki, ‘What is the trouble? Ring again.’ He told them that he had rung, but would ring again, and he did then ring again. ,The bucket did not start when he rang that time either. After that Santi, who was standing on the side of the bucket, hollered, ‘Fire in the powder! Ring up quick!’ Maki answered that he had rung already, but would ring again, and he did ring again the third time, but the bucket did not start. The fire referred to by Santi was a fire about two feet square which was then burning in the east end of the shaft. It was six or seven feet from the bucket. Nothing but the fuse was burning in the west end of the shaft. Maki, when attempting to give these signals, counted that he gave the seven bells. He was sure that he did so the first and second times. It was about three minutes anyway between the time he rang the first of those three seven-bell signals and the time of the first blast.

“An explosion occurred in the bottom of the shaft about the time when Maki finished giving the third of the seven-bell signals. The bucket did not start until after the first blast, or until at least three minutes after the first of the seven-bell signals was given. There was a delay of several minutes more than usual. The truck was not hoisted until about five minutes after the first blast occurred. Benny, the engineer of the puffer at the time, testified that only two ‘dings’ of the bell in the engine house, with an intermediate quivering of the hammer, resulted from Maki’s efforts to give all those seven-bell signals. There was a conflict in his and the miners’ testimony respecting the time of starting the bucket. Benny claims that after he had raised the bucket two or three feet, he felt a jar, which he ascribed to an explosion in the shaft.

“Neither plaintiff nor Maki saw, were told, heard, or knew that there was any missed hole or holes in the bottom of the shaft that morning, and plaintiff did not know of any danger from missed holes until the time of the blast. Neither of them was over in the east side of the shaft that morning. No dynamite was left in the shaft that morning by anybody in plaintiff’s crew except what was put in the holes. Shortly after the first hole blasted, the others commenced and continued to go off; the last hole going off when Maki, who climbed up, reached the tenth level.

“Rusciolelli got into, and plaintiff was trying to get into, the twelfth level when the first blast occurred. Santi and Latvala were killed, the plaintiff was frightfully and permanently injured, Rusciolelli was nearly smothered, and Maki was injured, as a result of the explosions. The blasts occurred about 10 o’clock a. m. Holm climbed down from the seventh level to assist the men in getting out. A man came up on the skip from the seventh level to surface and reported the accident, and Benny was then at the shaft and very much discouraged.

“The testimony of defendant’s master mechanic shows: That this puffer engine was an old, secondhand one, purchased from the Chicago House Wrecking Company. In May, 1909, one of the teeth fell out of the gear and dropped in between two wheels and caused the bending of the shaft, which affected the throw of the valves, made the engine lame on one side, caused it to run in a jerky manner, and caused the friction to slip. The puffer was in bad condition all the time he was there after May, 1909. Although an attempt was made to repair it and straighten the shaft, the shaft did not stay straight, and the engine never worked well afterwards. Frequent complaints were made to him of the bad condition of the engine before September 17, 1909, and about twice a month he called the superintendent’s attention to the bad condition of the engine, and advised a new shaft and gear wheel, but nothing was ever done about it; the condition of the pipe line which carried steam to the puffer (which was 600 or 800 feet long and had 13 quarter-turns in it, when it should have been straighter and shorter) was such that water would accumulate *in the cylinder, and the engineer had to be very careful in starting, and start slowly, in order not to knock' out the cylinder head.

“Benny, although claiming otherwise at times, admitted that the puffer was not in right condition; that it would start quick at certain places; might jerk; was not in good shape; did not work as it was supposed to; was out of repair; did not run very steadily; and that he had to use more than ordinary care and time in starting it with men on it for fear of hurting them. On cross-examination by defendant’s counsel (referring to the time of the accident), he testified:

‘Q. Was the engine prevented in any way from immediately beginning to work by any condition of its boxes or bent shaft?
‘A. Yes, sir.’

“The spring and magnet of the bell used in connection with the truck and bucket were not covered with a removable cover, but were wholly uncovered. They should have been so covered. Such a bell is a complicated piece of machinery and requires constant attention and inspection to keep it in condition, and should be thoroughly inspected at least once a week and casually looked over every day to see that there is no dirt at any place where it might affect it; to see that the wires are in proper condition, that the springs are not too tight or too loose, and that there is no corrosion in the base of the clapper or elsewhere which would be liable to interfere with the working of the bell; to see that the platinum point is not burned through where the contact is, that there are no loose contacts, that the coil of the bell does not get open, and that there is no give to the springs. The coils should be sharply looked over at least once a week and kept clean by passing some sharp instrument over the ends of them. Dirt and corrosion might be in such a place, or in such a state or condition, in the bell, or so caught or accumulated in the bell, as to at any time temporarily put the bell out of order so that it would not respond for a few minutes, and afterwards would respond. That the bell rings clearly would not justify failure to test and examine it. If the bell was not carefully inspected once a week in the manner above stated and looked over every day, the chances are that the bell would fail to respond. Without a cover and this examination and inspection, the bell would be unsafe to use for the purpose for which the bell in question was used. The bell might also fail to act, when the bell itself was in good condition and proper connections were made at the bare ends of the wires, by reason of the condition of the wires in the shaft. The batteries should also have been frequently tested with a voltmeter and ammeter to get their strength and amperage. It would not be safe to operate the bell in question without the precautions hereinbefore outlined. Witness Benny was the only one to whom the duty of inspection of the signaling apparatus was intrusted. He did not know much about a bell or when or how to inspect a bell. He never examined this bell or signaling apparatus at all except when it failed to act. He did not look at the bell at all in the way of examination or inspection for at least a month before the time of the accident to plaintiff. Nobody inspected the wires in the shaft at all. Some days the bell rang weaker than others. It was bucking both before and after the accident. It was bucking, and Benny had trouble with it, four or five days before the accident. It wiggled and did not ring right. The hammer would not strike against the gong and it was not tight enough. Nobody inspected the batteries until they played out entirely. Plaintiff, before the time he was hurt, never noticed and was never warned or informed of any defect in the hoisting or signaling apparatus.”

In a few instances counsel for appellee in their brief have questioned the accuracy of certain portions of this statement and have referred the court to pages of the record claimed to support their objections. The witness Benny, the engineer, whose duty it was to operate this hoisting apparatus in response to signals on the electric bell in his room, given to him by the miners working at the bottom of the shaft, was an employee of defendant company. He was called by plaintiff for cross-examination under the statute. A careful reading of his testimony discloses that the portions of the statement of facts of plaintiff, objected to, which refer to him are supported by his testimony, and that as to the other portions objected to, which would require too much space for extended comment, they are all fairly supported by the testimony.

In the examination of this record the fact must be kept constantly in view that a verdict was directed by the court against plaintiff, and the rule that the evidence presented on the part of plaintiff must be considered in the light most favorable to him must be applied.

The question to be determined by this court is not as to to the weight of the evidence produced on the part of plaintiff but whether there was evidence which should have been submitted to the jury for consideration.

In the opinion handed down in this case when it . was here upon demurrer, as cited, supra, where the construction of the first count of the declaration was under consideration and the issue presented by the pleading was stated, Chief Justice OSTRANDER, speaking for the court, said:

“With regard to the hoisting apparatus the declaration appears upon analysis to be sufficient to warrant the introduction of testimony and to support a recovery in accordance with the following construction which we place upon the language employed. The defendant had furnished a single method of conveying men to and from the seventh level [bottom of the. shaft] of the mine. A part of the apparatus and machinery was the one for signaling, by the use of which men in the mine might convey to others on the surface notice of a desire to be taken from the mine or from the particular level. It was the duty of defendant to maintain all of this apparatus and machinery in a condition suitable to prompt action and service, and a duty to promptly respond to signals indicating that the men on the seventh level [bottom of that shaft] desired to leave that level [place]. Proper signals were given, or were attempted to be given, by means of the apparatus provided, upon the occasion in question, by plaintiff or by some of the men with whom he was employed. They were not responded to. The failure to respond contributed to plaintiff's injury, because he was thereby prevented from avoiding or escaping the results of an explosion. The failure to respond was due to some fault, defect in, or some failure of the machinery and apparatus described. We think plaintiff is not required to point out the particular fault, defect, or cause of failure. He could not be reasonably expected to know whether the signals were received at the surface — whether the apparatus for signaling failed, or whether an employee disregarded them if received, or whether in attempting to send the cage, or car, for the men, in answer to the signals, some part of the other machinery or apparatus was found to be defective or otherwise at fault. * * * All crews used explosives. It was the duty of defendant to notify plaintiff if the members of another crew left explosives in the shaft, because, if such notification was not given, there would exist an unknown, and perhaps undiscoverable, hazard to which plaintiff should not be exposed: This is the reasonable meaning.”

The opinion further stated:

“But this construction is the one to which plaintiff should be limited in the introduction of testimony, and indicates the issue presented by the pleading to which plaintiff is restricted.”

No question has ever been raised as to the sufficiency of the second count, which in substance avers the defendant’s duty to furnish plaintiff reasonably safe means of egress from the shaft at all necessary times and to convey plaintiff to a place of safety at any time of danger from explosions, and that it undertook to perform this duty by providing hoisting and signaling apparatus and devices. A failure to perform each of these duties was duly assigned. No questions now arise upon the pleadings.

It will be unnecessary to'quote at length the reasons given by the court in directing a verdict against plaintiff, nor will it be necessary to discuss at length all of such reasons. If the court was in error in any of its conclusions, plaintiff is entitled to a reversal.

We will first consider plaintiff’s contention that there was evidence in the case to submit to the jury upon the question of negligence charged against defendant in failing to maintain the signaling apparatas in a condition suitable to prompt action and service, and the relation of such negligence to plaintiff’s injury. The accuracy of the portion of the statement of facts which covers the condition of the signaling apparatus and its operation, and what was done by the workman Maki in making the signals, is only questioned by counsel for defendant as to the following sentence:

“Because the signaling apparatus could not be relied on, Benny, the engineer, was instructed by defendant to hoist on any signal after the long bell.”

These objections have all been considered generally, but this is a very important matter bearing upon the unreliable condition of the signaling apparatus known to defendant and requires specific consideration. We find in Benny’s testimony, referring to these instructions, which he at times speaks of as an agreement, the following:

“Q. Then why did you make this agreement to hoist on any other signal?
“A. It was an agreement that perhaps it would not ring right sometimes.
“Q. You could not rely on the bell?
“A. Sometimes on the bell, sometimes perhaps it was the ring.
“Q. You could not rely on the bell?
“A. I could not rely on the ringing either.
“Q. You could not rely on the bell or.the ringing?
“A. No, sir. * * * We made this agreement to hoist upon any bell after that long, long bell before I started to work. Those were my instructions before I started to work.”

Whatever modification he may have made as to any of' his testimony is of no importance in determining whether there was evidence to support plaintiff’s contention.

The portion of the statement of facts, objected to above, gives, we think, a fair inference to be drawn from this testimony. Upon the question of the condition of this signaling apparatus, there was testi- • mony of this witness tending to show that during the time before this accident, while he operated this puffer engine to hoist the men who were doing blasting at the bottom of the shaft, upon signals given from below, the bell was more or less uncertain and unreliable in its operation, and at the time of the accident that after the long signal the three seven-bell signals testified to as given from the bottom of the shaft were not transmitted. Benny testified that one bell came, and then the clapper quivered, and then the second “ding.” His words are:

“It just went ‘ding’ and then the hammer of the bell trembled and did not make any sound, didn’t strike the bell, and after a pause it struck hard enough to make another ‘ding.’ There were two ‘dings.’ ”

There is evidence that an electric bell should be covered to keep out the dust, and that it should be inspected frequently to ascertain its condition; that the screws will jar loose and it will not answer signals. There is evidence in this record tending to show a lack of proper inspection. It tends to show that Benny, who knew nothing about such apparatus, who was the one who ordinarily inspected the bell, never paid attention to it unless something went wrong.

The testimony relative to giving the required signals from 40 feet above the bottom of the shaft- is not disputed and tends to show that the uncovered ends of the copper wire were bright and that all of the signals were attempted to be accurately transmitted. Therefore it cannot be said, in our opinion, that there was no evidence to submit to the consideration of the jury upon the question of the imperfect condition of the signaling apparatus.

We will next consider the claimed negligence of defendant in not maintaining the hoisting machinery-in a suitable condition for prompt action and service to protect these miners from injury when blasts were being fired. That such a duty rested upon defendant is not disputed, but it is contended on the part of defendant that there is no evidence in the case tending to show that the hoisting apparatus was in an unsuitable condition, or that, if it was, such condition contributed to plaintiff’s injury. It is admitted, and was so found by the trial court, that the puffer engine which operated the hoisting apparatus was a secondhand engine, “that it was old, and that the company had had warning that it was somewhat out of repair; in fact, the company made some repairs on it, at least one defect, the bent shaft, having been repaired.” The contention on the part of plaintiff is that there is evidence in the record tending to show that it would not operate quickly because, by reason of the bent shaft, it was “lame” on one side; that one of the valves was slow, and that it required to be started slowly; that by reason of its defects the parts connected with the shaft must be in a certain position or it could be started only with difficulty; that at the time of this accident there was a delay of about three minutes before the engine started after the first seven-bell signal, which delay was recognized on the trial by counsel for defendant in a request to direct a verdict against plaintiff for contributory negligence in remaining in a place of obvious danger for a period of three minutes. In our opinion this contention is sustained by the record, and there was evidence upon the question of the condition of the hoisting apparatus to be submitted to the jury.

The record shows without dispute that the foreman of each shift was required to give warning to the succeeding foreman if missed holes had been left in the shaft. It is contended by plaintiff, and the record supports the claim, that there was evidence tending to show that plaintiff’s crew left no explosives in the shaft after the blast which caused the injury had been prepared for firing, and that there was evidence tending to show that, after the fuses were fired for this blast, explosives in the bottom of the shaft took fire and are claimed to have contributed to plaintiff’s injury by prematurely exploding the blast. This was relevant to the question of a safe place and the presence of latent danger not disclosed to plaintiff and his crew. It should have been submitted to the jury.

It is contended by plaintiff that the negligence of the foreman of the preceding crew and of plaintiff’s crew, to whom was delegated the duty to warn plaintiff and other members of the crew of explosives left in the bottom of the shaft, and also the negligence of the operator of the hoisting apparatus, was the negligence of defendant; that the duty to warn and the duty to promptly operate the hoisting apparatus when signaled were nondelegable duties, and the persons empowered to perform such duties were vice principals and not fellow-servants of the plaintiff.

The fundamental principle that it is the duty of the master to furnish a safe place for the servant in which to work is thoroughly settled, as is also his duty to continue to keep the place safe, and—

“That this duty is one which cannot be delegated by the master so that the employee engaged to do the work of making the premises safe is to be treated as a fellow-servant of those who are employed and engaged in the general work for which the premises are intended.’ Beesley v. F. W. Wheeler & Co., 103 Mich. 211 (61 N. W. 658, 27 L. R. A. 266).

Numerous decisions of this court to the same effect might be cited. See, also Orso v. Engineering Co., 164 Mich. 568 (129 N. W. 673), and cases cited.

The other proposition is that the engineer, whose duty it was to operate and control this hoisting apparatus, upon which these miners were required to be lifted from their working place to escape imminent danger, was a vice principal and not a fellow-servant. These miners, including plaintiff, were working under contract at $25 per foot. As appears in the statement of facts, which is not disputed, each shift was provided with a shift boss, chosen, paid, and discharged by the employer without consultation with them, and each shift boss was required to warn and notify the boss of the succeeding shift as to explosives left by his shift. Under the circumstances of this case, therefore, the relation of plaintiff to such engineer and shift boss was not that of a fellow-servant. The engineer and the shift boss performed for the master the nondelegable duty of keeping safe the place where the work was performed. Courtois v. Paper Co., 172 Mich. 305 (137 N. W. 699), and cases cited. The nondelegable duty of the shift boss was to prevent plaintiff from being kept in ignorance of and exposed to an unknown hazard. The engineer’s nondelegable duty related to the prompt operation of the hoisting apparatus and to obey his instructions relative to signals. The signaling apparatus, the engineer, and the hoisting apparatus were the instrumentalities provided by the defendant, under its contract, in maintaining a safe place for plaintiff to work and removing him from imminent peril necessarily incident to the employment when plaintiff so required.

It is apparent that under the contract of employment the duty of the defendant to the plaintiff to continuously provide him a safe place in which to perform his work could only be fulfilled by the performance of such duty by means of signaling ■ apparatus, the engineer, and the hoisting apparatus, and a failure in any respect in such performance, for any reason, by any of these instrumentalities, would of necessity be a failure in the performance of an absolute duty imposed upon the employer. It is not disputed that these instrumentalities were absolutely necessary for the safety of the plaintiff in the prosecution of his work. They were the only instrumentalities provided by defendant for that purpose, and their prompt and efficient operation was included in the contract of hiring. This court has frequently affirmed the principle here involved.

In the case of Kaukola v. Mining Co., 159 Mich. 689, at page 699 (124 N. W. 591), Mr. Justice Stone, speaking for the court, said:

“The lighting of this passageway or thoroughfare of the mine, far distant from the working place of those who passed through them — it being always dark in the mine — was just as necessary for the safety of the men as it was to have the walls and floors in a proper condition. It was one of the 'instrumentalities’ which it was necessary to provide to enable the men to do their * * * work safely. It was a thing which it was necessary to keep permanently in condition. Unlike the case of Livingstone v. Plate Glass Co., 146 Mich. 236 [109 N. W. 431], here the place furnished was a permanent place of work, and not one where the conditions were constantly changing. Here, in our opinion, the rule of a safe place to be furnished by the master applies. In Cristanelli v. Mining Co., 154 Mich. 423 [117 N. W. 910], it was held that the engineer of a mining hoist, in so far as it is his duty to keep the place safe, is not the fellow-servant of an employee engaged in loading machinery upon the skip at the collar of the shaft.”

There is evidence in . the case on the part of plaintiff tending to show the negligence of the engineer, who operated this hoisting apparatus, in not acting promptly on receiving the first stroke of the bell he was waiting for, both in his own testimony and the testimony of the miners at the bottom of the shaft. The engineer’s negligence was a question of fact and, if established, was the negligence of a vice principal to be imputed to the defendant. This question should also have been submitted to the jury.

For the reasons stated, the trial court was in error in directing a verdict in favor of defendant.

The judgment of the circuit court is reversed, and a new trial ordered.

. Steere, C. J., and Moore and Kuhn, JJ., concurred with McAlvay, J.

Ostrander, J.

I agree with my Brother McAlvay that there was sufficient testimony relating to the condition of the signaling apparatus and the hoisting machinery to carry the case to the jury. There was some testimony also favorable to plaintiff upon the subject of a latent danger arising from the fact that dynamite was left in the chamber by a crew of men which plaintiff’s crew followed in their work. For these reasons I concur in reversing the judgment and granting a new trial. But that any doctrine of the law of safe place is involved in this case, or that the engineer hired by the defendant was its vice principal, who in managing the hoisting machinery was performing a nondelegable duty, are propositions advanced by Brother McAlvay which, in my opinion, cannot' be sustained. It is not alleged in the declaration that the engineer was an unskillful or incompetent servant. It is not alleged that, having the right to be furnished a safe place in which to work, the men were furnished an unsafe place. On the contrary, it is the theory of the plaintiff that, being set to work in a place which by his labors and those of his fellow workmen was from time to time made unsafe, a place to flee from, it was the duty of the defendant to provide a certain and speedy means of leaving the place. It is alleged that apparatus for this purpose was provided, but that it was infirm and in the particular instance was operated so tardily that the means of self-destruction, which plaintiff and his fellows had set in motion, anticipated the operation of the apparatus intended for their escape. The fault charged to the engineer in this case is not the failure to inspect or to install suitable apparatus or to keep that installed in repair. So far as his conduct is concerned, the case would be the same if it appeared or was admitted that the apparatus provided by defendant to take the men away from danger was perfect and in perfect order and he a competent man, who tardily, so tardily as to indicate negligence on his part, obeyed the signal. Unless upon a finding of these facts defendant’s negligence would be held to be made out, the negligence of the engineer is not a ground for recovery. The work he performed, and should perhaps have performed more promptly, was the work of operating the mine. Suppose that, instead of hoisting these miners in a cage, defendant had provided a track and cars and a locomotive which, in the charge of a competent crew, stood near the chamber in which the blasting was done and to which the men, after lighting the fuses, repaired and were drawn away from danger. If upon an occasion the engineer so tardily responded to signals to move the train that some of the men were injured by the blast, would it be held that his negligence could be imputed to the master; that the duty in the premises was nondelegable; that in performing it he was a vice principal? I grant that in this case the necessity for prompt action on the part of the engineer existed; that the agreed signal was a notice of peril; and that the duty of the engineer was a most important one. Not less important was the duty of each miner to properly light his fuse and of one of them to give the necessary signal to the engineer. The defendant is not held as an insurer that none of those employed in the operation would act in a negligent manner. If defendant used suitable apparatus, kept it in order, and employed in its operation a trustworthy, competent engineer, it had performed its duty.

In Layzell v. Coal Co., 156 Mich. 268 (117 N. W. 179, 120 N. W. 996), in considering the duty imposed upon owners of' coal mines by a statute which required “that only a competent and trustworthy engineer shall be permitted to operate the cages and hoisting devices in all coal mines in this State,” in which plaintiff claimed to have been injured by the negligence of one performing the indicated duty, the court declined to go farther than I have herein indicated. See, also, Walkowski v. Consolidated Mines, 115 Mich. 629 (73 N. W. 895, 41 L. R. A. 33).

Brooke, Stone, and Bird, JJ., concurred with Ostrander, J.


source: Caselaw Access Project

author: Steere, C. J.

license: Public Domain

text:
    MORONEN v. McDONNELL.
    1. Master and Servant — Personal Injuries — Negligence — Mines.
    The relation of master and servant had ceased to exist, as between his employer and plaintiff, who had been working as a laborer in a quarry and had stopped at noon to eat and rest, seating himself on the ground beside a public highway, knowing that blasting was being done near by, and who was struck by a piece of rock thrown by a blast; the .fellow-servant rule and doctrines of safe place and duty to instruct were not applicable.

      2. Same — Trespassers—Duty to Warn.
    Plaintiff not being a loiterer or idle intruder, it was defendant’s duty to give timely or reasonable warning of tbe firing of blasts.
    3. Same — Explosives.
    In blasting out rock for use in a stone crusher, defendant was chargeable with the requirement of “reasonable care, commensurate with the attendant dangers, and with the duty to” cover or protect the blasts or give persons near by timely warning of the explosion.

    4. Explosives — Duty to Cover Blast.
    Reasonable • precaution did not demand that defendant should cover a blast occurring 500 feet from any house, if sufficient warning was given to any persons in the immediate vicinity.
    5. Master and Servant — Warning—Performance of Duty to Notify Servant of Explosion.
    Where blasting had been carried on for three seasons without injury to person or property under the system adopted by defendant, and he employed competent men to perform the work, who gave notice by repeated calls of setting off explosions or blasts, who, in the instance in question, went both ways down the highway, one of them going within 50 feet of plaintiff and the other workmen resting in a place that they considered safe from the expected blast, defendant was not negligent; nor was the situation materially affected by the fact that plaintiff relied on the judgment of his fellow workmen in choosing the place, not having had so much experience as they.
    6. Same.
    And where plaintiff had warning of one blast without taking any precautions, or attempting to avoid it, an omission to repeat the warning in the case of a second blast, not inducing plaintiff to remain or to incur additional peril, was not such negligence as to raise an issue for the jury.
    Error to Gogebic; Cooper, J.
    Submitted April 24, 1913.
    (Docket No. 40.)
    Decided September 30, 1913.
    Rehearing denied June 4, 1914.

      Case by John Moronen against Patrick McDonnell for personal injuries. Judgment for defendant upon a directed verdict. Plaintiff brings error.
    Affirmed.

      O’Brien & Le Gendre and George O. Driscoll, for appellant.

      James A. O’Neill, for appellee.

       The .question of injury to servant on master’s premises before, after, or between hours of work is .treated in notes in 12 L. R. A. (N. S.) 853 and 23 L. R. A. (N. S.) 954. And for effect upon master’s liability for breach of statutory duty of fact that employee was resting at the time of injury, see note in 22 L. R. A. (N. S.) 309.

       As to liability for injury to person or property from concussion caused by blasting, generally, see notes in 12 L. R. A. (N. S.) 389 and 27 L. R. A. (N. S.) 425.

   Steere, C. J.

This is an action of trespass on the case instituted in the circuit court of Gogebic county January 24, 1911, to recover damages of defendant for personal injuries resulting to plaintiff from being struck on July 22, 1910, by a piece of rock thrown from a blast of dynamite at a quarry where defendant was getting out and crushing stone for road construction. At the conclusion of plaintiff’s testimony in the trial court, a verdict was directed for defendant, chiefly on the ground that plaintiff, by his own evidence, was shown to have assumed the risk, having himself selected the place where he was injured and stopped there to dine and rest, knowing blasts were being discharged near by. He has now removed the case to this court upon a writ of error to review such ruling.

Defendant was a contractor engaged in paving in the city of Ironwood, and also operated a stone crusher some distance north of the city, on the south side of a hill, where suitable rock for his work was found and convenient to a county road running north from the city. The stone crusher stood near the bottom of the hill on its south side near to a rock face, or bluff, from which rock was blasted for crushing. The blasting was done by two experienced miners who had been especially employed for, and put in charge of, that work. A crew of laborers, of mixed nationality, varying from 18 .to 26 in number, was employed in tramming, stripping, drilling, and other work necessary to carry on the undertaking. The rock was moved from the place of blasting to the crusher by tram cars, run on tracks laid for that purpose, as occasion required. At the time of the accident in question the place of excavation was about 180 feet north from the crusher and about 175 feet west from the highway, which ran, curving past the hill, to the north. Plaintiff began work there the morning of the day he was injured, having previously been employed on the contract in the city. During the forenoon he was engaged in stripping or removing the overburden of earth upon the rock, preparatory for blasting, and worked near the men who were drilling holes in the rock for that purpose.

Owing to the distance from their places of residence, the men working there carried their dinners with them. The blasting was done, by the men in special charge of that work, twice a day, once during the noon hour, while the other laborers were away eating their dinners, and again after quitting time in the evening. The men worked from 7 a. m^ to noon and from 1 to 5:80 p. m.

Plaintiff is a native of Finland and was 49 years of age when injured. He had been in America about two years and spoke little, if any, English. Several of his countrymen worked in the crew, with whom he could and did converse.

During the nodn hour the men were released from their work as usual and went where they pleased to eat their dinners. At 12 o’clock dinner was called, and at the same time a warning was given by a cry of “fire,” the customary call when blasts are about to be set off. Thereupon all the men, except those in charge of the blasting, being at liberty until 1 o?clock, took their dinner pails and went some distance away for safety, and wherever they chose, to eat their dinners. Plaintiff took his dinner pail and went with the rest. They went around to the north side of the hill, about 350 feet from the place of blasting, and stopped at a spot where the men regularly ate their dinners, beside the highway on a little path, used as a short-cut at a turn in the road, where were some bushes and small trees. This was a favorite and customary place where many of the men had regularly eaten their dinners under like circumstances, without accident, not only during that season but for two previous seasons while the work was in progress there.

An intelligent witness of plaintiff’s, a fellow countryman, who worked on the crusher, testified, among other things, that there were about ten Finns in the crew; that most of the men ate their dinners at that place, while the blasting was done during the noon hour, saying:

“It was about the same place where the boss ate his dinner, but the Finns was in a certain place and the boss with some English-speaking workmen was eating a little ways from there. * * * Taking from the place of the crusher the boss and the men was exactly the same distance from it.”

This witness also testified that he had handled dynamite in the old country and was familiar with its use, knew it was dangerous to be .right by when they were blasting, and in such case the men—

“Go away to a place where they think they are safe and then they stay there and eat their dinner; they want to go to a safe place. * * * I thought it was safe all the time I was there. * * * If I thought it was not safe I would have gone further. * * * I have known Moronen about three years next June. * * * We both went to dinner together. He went where the rest of the Finns went and he thought he would be- safe where the rest of them were safe. * * * He didn’t say anything, but when he saw the rest run he ran after, and then when he got over there he asked if that was the place to take dinner. * * * I am a man of experience, * * * but in this certain place I didn’t know to be afraid because there never was any rocks flying before.”

The foregoing quite clearly discloses the circumstances under which, and reason why, plaintiff selected the place where he was injured to eat his dinner. He knew he was at liberty to go where he pleased during the noon hour, and he knew there was to be blasting. He inquired of his more experienced countrymen and selected that place in order to be with them, evidently depending more or less on their judgment. He testifies :

“When they hollored ‘fire’ I knew what that meant; the fellows told me they was going to blast. * * * When we started for dinner they blasted, and after we was through with our dinner they blasted. * * * I was sitting down with the dinner pail between my legs when the first blast went off. * * * I just wanted to get away from the flying rocks and I went to eat my dinner with the other fellows. I went away because I wanted to get away from the flying rocks. Yes, I could have gone as far as I wanted to —as far as I thought it necessary to go to be safe. If the other fellows went farther out I would have gone, but I did not know rocks would fly that far. I just went where I did because somebody else went.”

His inexperience apparently put him to no disadvantage compared with those who had previously worked there. That was the third season the men had eaten their dinners at that place while blasting was going on, without injury, and they thought it safe. In this instance they were manifestly in error, for, though several blasts had been fired while they were sitting there that day, a blast fired between 12:30 and 12:45, as plaintiff sat in a reclining position, after concluding his meal, threw a piece of rock “bigger than a strong man’s fist,” so. that it struck him on his right- leg, inflicting a serious wound, which necessitated a surgical operation and permanently crippled that member. .

Plaintiffs declaration contains two counts; the first alleging and based upon the relation of master and servant, charging negligence and failure of duty in not providing plaintiff a safe place in which to work and eat his dinner, failure to instruct and give warning, and failure to properly protect the blasts. The second count is apparently based on the theory that such relation was suspended during the noon hour, but that defendant was negligent in firing dynamite in that locality, with workmen in the vicinity, without guarding and covering the blasts, and in not giving proper notice and warning such as—

“Defendant would have been reasonably bound to have used and exercised for the safety, protection, and benefit of any third person (not in defendant’s employ) who was or might be engaged in eating his dinner and reposing at the place where plaintiff was eating his dinner and reposing at the time plaintiff was injured.”

During the noon hour, from 12 to 1 o’clock, plaintiff and all the other employees, except those in charge of the blasting, were not on duty, were at liberty, free to go wherever and do whatever they pleased. Plaintiff fully understood this. They were, for that time, dismissed from service. They were not at defendant’s plant, nor in charge of any of his property, nor under his orders, nor on his premises, but on the highway, at a location they had selected some distance away from their employment. We think, in the light of the following authorities as applied to the circumstances of this case, plaintiff was neither' at the time of the accident, engaged in a common employment with the other workmen so as to be a fellow-servant with them nor did the relation of master and servant exist between him and defendant, in the strict sense requisite to make applicable the fellow-servant rule or the doctrine of safe place and duty to instruct due from master to servant. Dickinson v. Railway Co., 177 Mass. 365 (59 N. E. 60, 52 L. R. A. 326, 83 Am. St. Rep. 284); Mirabile v. Murphy Co., 169 Mich. 522 (135 N. W. 299); Broderick v. Depot Co., 56 Mich. 261 (22 N. W. 802, 56 Am. Rep. 382); Baldwin on Personal Injuries (2d Ed.), § 374.

Plaintiff’s relations with defendant, however, required him to be in the vicinity of the place of his employment, conveniently near to resume his labors when the noon hour expired. He was not a loiterer nor idle intruder in that locality. Defendant was presumed to know plaintiff and the other workmen were near by, and it was defendant’s duty to give reasonable and timely warning of the blasts to those who might be upon the adjacent highway and to the workmen whose employment had brought and detained them in that vicinity. He had a right also to assume that, being at liberty to go where they pleased, they would, on receipt of timely notice and warning, seek a place of safety and avoid the danger.

When using high explosives in carrying on his work, it was the duty of defendant to exercise reasonable care commensurate with the attendant dangers, and either by some proper method, cover and protect the blasts to prevent them from so throwing fragments of broken rock as to imperil the safety of persons near by, or to give them adequate and timely warning of expected explosions in order that they might take proper precautions to avoid injury. St. Peter v. Denison, 58 N. Y. 416 (17 Am. Rep. 258); Gates v. Latta, 117 N. C. 189 (23 S. E. 173, 53 Am. St. Rep. 584); Wright v. Compton, 53 Ind. 337.

If the work is being done in a city or village, or in any other place where adjacent property and the presence of numerous persons render protection by warning impracticable or inadequate, covering the blast might be imperative and its omission would be negligence. In this case the blasting was in the country, with but one house near by, distant some 500 feet, and a passing highway. Under the methods of conducting the business and system of warning, which were pursued during the three seasons the blasting had been carried on, no injury to person or property was done until the day in question. Competent men of many years’ experience were doing this work. They gave ample notice by repeated calls before the firing, and one of them went each way upon the highway to notify and prevent persons from passing while the blasting was being done. One of them named Lindberg, a man of 23 years’ experience, testifies:

“Me and my partner had full charge of the dynamite. * * * We set off the powder that day at noon. We hollered ‘fire;’ both of us gave warning. That duty was put upon both of us by the defendant. * * * So that the workmen would know to get out of the way and protect themselves against injury on account of the blast. * * * We give it before we light, and then we used to holler ‘fire’ until the first hole went off. * * * If we had two shots we would say two shots and if we had more we said that. * * * I used to go north and my partner south. * * * On the day Moronen was hurt I went on the north side the same way. * * * I did not go so far as the men were. I hollered to them from 50 feet closer to the crusher. * * * I stayed there until the shots went off. * * * I worked there three summers and always did the work the same way.”

Under the circumstances of this case, we do not think negligence can be predicated on failure to cover the blast, provided proper notice and timely warning were given.

That a warning was given at the noon hour when the men were released for dinner, and that plaintiff heard it and knew, or learned at once, its import is undisputed. He testifies that he knew what it meant,. and he went away because he wanted to get away from the flying rocks; that he went as far as he thought it necessary to be safe, and if the other fellows went further he would have gone; he also says that he did not know the rocks would fly that far, and the evidence shows the others did not, and from their experience they believed they would not.

It is claimed for plaintiff that it was the duty of defendant to give an adequate and distinct warning of each blast. He, with one of his witnesses, testified that, when the later blast, which inflicted the injury, was fired, no warning of it was given, and that they did not hear any warning. This would raise an issue of fact under the evidence for the jury to decide if controlling or material. Authority is cited to the effect that such repeated warnings should be given; and this is the rule where omission to give them makes any difference in plaintiff’s conduct or leads him into greater peril; but.in this case plaintiff, with notice of the proposed blasting, had selected his place of retreat for the noon hour with his fellow workmen at an accustomed spot which they believed safe from the blasting. He had the warning which he acted on in going there, and he remained there believing it to be safe. It is difficult to conceive how a failure to repeat the warning would or could make any difference under the circumstances. We do not think a failure to submit that question to the jury was error.

There is a marked variance between the pleading and proofs, which defendant insists is fatal, in the particular that the declaration alleges plaintiff "carried his midday meal or dinner to his said working place and remained at said last-mentioned place during the noon hour, and there during said noon hour, ate his midday meal, rested and reposed,” etc., "and there received his injury,” while his evidence shows that he was 350 feet from, there on a public highway, where he had gone to avoid the blasting at said working place, presenting a different state of facts involving different questions of law. While this presents a somewhat serious technical question of pleading which might otherwise demand further consideration, we conclude that upon the vital issue of defendant’s actionable negligence he is shown to have given plaintiff notice, which was understood, of the proposed blasting, sufficient in time to make retreat to a safe place, with full freedom to go as far and where-ever he desired.

Plaintiff was a man of mature years and, apparently, average intelligence. He testified that he was warned and knew there was to be blasting at the noon hour; that he was free to go; and that he left the place where the blasting was to be done in order to get away from the danger and find a point of safety. He selected his place of dining with that in view. That he deferred, in choosing such place, to the judgment of some of his countrymen who had worked there longer and were more familiar with conditions, was natural; but it was nevertheless his selection and makes maiiifest that he was at no disadvantage in comparison with them, and assumed no greater risks than they, by reason of his inexperience. He says it was on their judgment he selected the spot where he was when injured. The defendant cannot be held responsible for their error in judgment.

Under the facts shown, the learned trial judge rightly decided that plaintiff was given sufficient warning, with abundant time and opportunity to withdraw to a place of absolute safety, and that in selecting his place of retreat he assumed the risk.

The judgment is affirmed.

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


author: Bird, J.

text:
    CHAMBERLAIN v. HUSEL.
    1. Wills — Life Estates — Use of Estate — Probate—Estates of Decedents.
    Under a will leaving testator’s entire estate to his wife for her use and benefit during her natural life, nominating her as his executrix with full power of alienation, at her death bequeathing to his next of kin the property, “or so much thereof as shall remain unexpended,” the widow obtained the right to use from the body of the estate as her necessities required.
    2. Executors and Administrators — Estates of Decedents — Bond — Statutes—Wills.
    The statutory requirement of a bond is mandatory on an executrix, so that a clause in decedent’s will dispensing with such bond in favor of his widow was without force. 3 Comp. Laws, §9311 (4 How. Stat. [2d Ed.] §11027).
    3. Same — Powers in Trust — Wills.
    Authority conferred by will to sell the estate without asking consent of the court, whether as executrix or legatee, is valid and effectual. Since the testator conferred the power to continue during her life it should be interpreted to give her authority to convey as his legatee.
    4. Same — Construction of Wills — Legacies.
    After administration the widow will' be given possession of the property to care for, sell, and convey as she chooses without asking permission from any court or without giving bond, subject only .to the limitation of acting in good faith.
    Appeal from St. Clair; Tappan, J.
    Submitted October 16, 1912.
    (Docket No. 168.)
    Decided December 20, 1918.

      Bill by Nettie Chamberlain against Alma Husel for the construction of the will of Herbert G. Chamberlain, deceased. From a decree for complainant, defendant appeals.
    Affirmed;

      Hart & Pepper, for complainant.

      Walsh & Walsh, for defendant.
   Bird, J.

The questions raised by this appeal relate to the construction which shall be placed upon the provisions of the last will and testament of Herbert G. Chamberlain, deceased. The value of the estate left by the testator is-approximately $20,000 and consists of both real and personal property. The interested parties are the widow, who is the complainant, and the sister of the testator, who is the defendant. The will is as follows:

“First. After the payment of all my just debts, I give, devise and bequeath all the property that I may possess (both real and personal) to my wife, Nettie Chamberlain, for her use and benefit during her natural life. The real estate being more particularly described as the west half (%) of section No. nineteen (19) and of the east half (%) of the southwest quarter (%) and lots three (3) and four (4) of section No. eighteen (18) both descriptions being in township No: 147 north range fifty-eight (58) west of fifth (5) principal meridian, in county of Griggs, State of North Dakota and containing four hundred eighty (480) acres (more or less) also the piece of land in the township of East China, St. Clair county, Michigan, containing about thirteen (13) acres occupied by myself as a homestead and at the death of my said wife, all of the property hereby devised or bequeathed to her as aforesaid, or so much thereof as may then remain unexpended, I give unto my next of kin as the laws of Michigan may provide.
“Second. I nominate and appoint my said wife, Nettie Chamberlain, executrix of this will and hereby give to her the full power and authority to sell and convey any and all property of which I may die possessed, without applying to any court and so far as possible I release her from the giving of any bond as executrix.”

Both sides to this controversy concede that the widow is given a life estate. The defendant contends that it is a life estate and nothing more. The complainant insists that annexed to the life estate is an absolute power of disposition and the right to consume any part of the corpus of the estate. The chancellor who heard the case concluded that the widow was entitled to a life use of the entire estate and that a life use carried with it the right “to sell such of the property, real and personal, as she may desire and to use the money thus obtained without accounting to any court therefor.”

The testator made it very plain that he intended to give to his widow a life use of his entire property after the payment of debts and expenses of administration, but whether he intended to give her anything in addition thereto is involved in more or less doubt. In her behalf it is argued that the testator intended that she should have the right to use from the corpus of the estate if she chose or her needs demanded, and this argument is made to depend mainly on the words “or so much thereof as may then remain unexpended.” The defendant meets this argument by attracting our attention to the fact that this language is made use of by testator in connection with his gift to his next of kin and not in connection with that part of the paragraph wherein he defined the interest which his widow should receive, and it is argued from this that, had he intended to give his widow anything in addition to a life estate, he would not have left it to depend on such meager and uncertain language. While we feel the force of this argument, we are inclined to agree with the chancellor that the testator intended that his widow should have the right to use from the corpus of the estate. The case of Gee v. Hasbrouck, 128 Mich. 509 (87 N. W. 621), has been a strong factor in bringing us to this conclusion. In that case Hasbrouck, the testator, gave his widow a life use of his property and provided that whatever property reverted to his estate should be divided among his children. This language was construed as giving the widow the right to use from the corpus of the estate. If the right to use from the corpus of the estate can be found in this language, it follows that a like construction should be placed upon the words “or so much thereof as may then remain unexpended.”

The attempt of the testator to relieve complainant from giving any bond in connection with her management of the estate has given rise to two questions:

(1) Should complainant be required to give a bond as executrix?
(2) Should she be required to give a bond to protect the remaindermen?

Section 9311, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11027), provides that:

“Every executor, before he shall enter upon the execution of his trust, and before letters testamentary shall issue, shall give bond to the judge of probate in such reasonable sum as he may direct, with one or more sufficient sureties, with conditions as follows:”

The language of this statute indicates that it was the legislative intent to make the giving of the bond mandatory, and we think it should be so construed. With this construction placed thereon, it follows that any attempt by a testator to relieve his executor from a compliance therewith would be of no avail.

The testator conferred upon his widow the power to sell and convey the estate without asking the consent of any court. Whether this power is conferred upon her as executrix or legatee is not made certain. In either event, however, the court will carry it into effect. Tracy v. Murray, 49 Mich. 35 (12 N. W. 900); King v. Merritt, 67 Mich. 194 (34 N. W. 689); Bates v. Leonard, 99 Mich. 296 (58 N. W. 311); Green v. Russell, 103 Mich. 638 (61 N. W. 885); Dexter v. Gordon, 136 Mich. 235 (98 N. W. 1016); Hull v. Hull, 122 Mich. 338 (81 N. W. 89).

In view of the fact that the power is to continue during complainant’s lifetime, we construe it as a power conferred upon her as legatee. After the estate is administered, the complainant will be entitled to the possession of it to care for, sell, and convey as she chooses, without asking permission from any court and without giving any bond, and the only limitation that will be imposed upon her management will be that of “good faith.” Gadd v. Stoner, 113 Mich. 689 (71 N. W. 1111); Farlin v. Sanborn, 161 Mich. 615 (126 N. W. 634, 137 Am. St. Rep. 525).

It is urged that to prevent the estate from being wasted a bond should be given by complainant to protect the remaindermen. The answer to this argument is that, if the testator was willing to intrust the remainder of his estate after the debts were paid to her care and management without bond, no one else has any right to complain. The remaindermen took a vested interest in the estate, subject to this provision for the widow, and they have no cause for complaint nor any reason to be protected unless the complainant should, in the management of the estate, go beyond the “good-faith” limits.

The decree of the trial court will be affirmed, and the complainant will recover her costs in this court.

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


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    McEWEN v. KEARY.
    1. Vendor and Purchaser — Registration of Deed — Notice — ■ Possession.
    After executing to a contractor a deed of premises owned by complainants, who conveyed the property to enable him to procure funds for building, their possession eight days later was not notice that they held an unrecorded land contract of their contractor to reconvey the property.
    2. Same — Possession—Notice.
    Unless the vendor has remained in possession of premises for a long time after conveying them, his possession is presumed to be subordinate to the conveyance and is not notice that he claims rights inconsistent with it.
    3. Mortgages — Fraud — Notice by Possession — Registration— Vendor and Purchaser.
    Where' defendant loaned money to a person with whom complainants had entered into a contract to construct an apartment on their property, and to whom they conveyed title to enable him to raise funds, defendant, who took a mortgage on the lot to secure the loan, was not charged with notice that they held an unrecorded contract for the reconveyance of the premises, from the fact that complainants remained in possession of a cottage which they moved to the rear of the lot and continued to live in eight days subsequent to the date of the deed; and where the contractor defaulted and abandoned the work of construction defendant should not be compelled to bear part of the loss for which he was in no way responsible.
    Appeal from Wayne; Donovan, J.
    Submitted January 29, 1913.
    (Docket No. 32.)
    Decided December 20, 1913.
    Bill by John McEwen and Lillie C. McEwen against Andrew J. Keary and others to set aside a deed and for other relief. From a decree for complainants, defendant Keary appeals.
    Reversed.

      Berry & MeCredie, for complainants.

      Harvey S. Durand, for defendant Keary.
   Bird, J.

The complainants being the owners in fee of a lot on Hubbard avenue in the city of Detroit, and being desirous of erecting a four-family flat thereon, they moved the cottage in which they lived to the rear of the lot, and continued to live in it, and made a contract with defendant Durflinger to construct the flat for the consideration of $8,980. In order to secure him and enable him to raise funds with which to carry on the building operations, they conveyed the premises to him by warranty deed on the 21st day of February, 1911, subject to a mortgage to the Michigan Savings Bank of $490.10, and took back from him a land contract on which was indorsed as paid the sum of $2,020. The deed was placed of record, but the contract was not. A building contract was also made by them in which it was stipulated that defendant Durflinger might secure a loan on the property for an amount not to exceed $8,500. This done, defendant Durflinger then applied to and obtained from defendant Keary a loan of $1,150; the same to be secured by lien on the premises. Instead of taking a mortgage in form, he took a warranty deed from Durflinger and wife on the 2d day of March, 1911, and gave them a contract to repurchase upon payment of the loan. Defendant Keary paid the Michigan Savings Bank mortgage, and the balance of the loan was paid to defendant Durflinger. As soon as defendant Durflinger received the deed, he commenced building operations, and they continued until the cellar was excavated and the footings were put in to receive the walls. During this time certain building materials were delivered. At this point in the work, it stopped abruptly, due to the failure of Durflinger to make payment to his laborers and materialmen. After this, no further work was done in furtherance of the contract. Complainants then filed this bill to set aside both deeds and tendered back their contract, alleging that the same was in fraud of their rights. The hearing resulted in a decree setting aside the deeds and contracts and awarding to defendant Keary a mortgage lien on the premises for the amount only which he had paid on the Michigan Savings Bank mortgage. From this decree, defendant Keary has appealed.

The complainants rely on two propositions to sustain the decree made in their behalf: First, that the defendant Durflinger fraudulently secured the warranty deed from them by misrepresentation and fraud. Second, that the defendant Keary had notice of the possession and occupation of the premises before he made the loan, and therefore it was his duty to ascertain what the rights of the occupants were in the premises.

The proofs were sufficient to justify the court in granting complainants’ relief against the defendant Durflinger; but there is no proof, and indeed there is no claim, that defendant Keary was a party to the fraud or had any knowledge of it.

Defendant Keary, when applied to for the loan, went to the premises on March 1st, and there found defendant Durflinger. At that time, the cellar was being excavated and building materials were being delivered thereon. Keary saw the cottage in the rear and made inquiry who was living in it; Durflinger informed him that it was a tenant of his. Following this, Keary received the abstract of title, and, after his attorney had reported the record title in Durflinger subject to the Michigan Savings Bank mortgage, he paid the mortgage, and the balance of the loan was turned over to Durflinger. What Keary learned when he viewed the premises would, under the general rule, charge him with notice that the occupant had some rights therein, unless there is some exception to the general rule of constructive notice. The exception which defendant Keary relies upon is stated as follows:

“In some jurisdictions where a vendor remains in possession after conveyance, such possession, unless long continued, is presumed to be subordinate to the title conveyed, and is not notice that the grantor claims any rights inconsistent with the conveyance he has made.” 39 Cyc. p. 1753.

This jurisdiction appears to be one that has approved this exception. Bloomer v. Henderson, 8 Mich. 395 (77 Am. Dec. 453); Bennett v. Robinson, 27 Mich. 26; Abbott v. Gregory, 39 Mich. 68. In Bloomer v. Henderson, supra, where the application of the rule and its exception were considered, Mr. Justice Christiancy made the following observations:

“But the object of the law in holding such possession constructive notice, where it has been so held, is to protect the possessor from the acts of others who do not derive their title from him; not to protect him against his own acts, and especially against his own deed. If a party executes and delivers to another a solemn deed of conveyance of the land itself, and suffers that deed to go upon record, he says to all the world, ‘Whatever right I have, or may have claimed to have in this land, I have conveyed to my grantee; and though I am yet in possession, it is for a temporary purpose, without claim of right, and merely as a tenant at sufferance to my grantee.’
“This is the natural inference to be drawn from the recorded deed; and in the minds of all men, would be calculated to dispense with the necessity of further inquiry upon the point. All presumption of right or claim of right is rebutted by his own act and deed. One of the main objects of the registry law would be defeated by any other rule.”

Inasmuch as complainants had been in possession only eight days after their conveyance when defendant Keary made an inspection of the premises, we think it should be held that the exception to the general rule applies, and that the possession of complainants was no notice to Keary that they had any rights therein. But independent of this question, we are of the opinion that complainants are in no position to ask defendant Keary to bear the loss which resulted from their dealings with an irresponsible and dishonest contractor. Undoubtedly, complainants were defrauded by the contractor, but Keary had no hand in it. He was «not responsible because they employed a dishonest contractor. Neither was he responsible for their neglect and failure to have their land contract recorded; he simply loaned his money to the contractor after taking the precautions which usually precede the making of loans by prudent men, and he did this only after complainants had authorized the contractor to make loans on the premises up to the amount of $8,500. If there is any equitable principle which would require Keary, under these circumstances, to bear the loss, it has not been suggested to this court.

The decree of the trial court will be reversed. Defendant Keary under his cross-bill will be given a first lien on the premises for $1,150, with accrued interest. Defendant Keary will recover his costs in this court from the complainants.

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


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    LIEBLIEN v. HANSEN.
    1. Forcible Entry and Detainer — Circuit Court Commissioner —Summary Proceedings — Claim of Title.
    Where the complainant, in summary proceedings before a circuit court commissioner had not assented to continued occupation by the defendant, after bidding in the property under an execution levy, the defendant could not defeat the proceedings by alleging that the sale to complainant was invalid or defective, thereby raising a question of title. 3 Comp. Laws, §11164 (5 How. Stat. [2d Ed.] § 13684).
    2. Subrogation — Execution Creditor — Redemption—Equity.
    In summary proceedings to obtain possession of real property which the complainant acquired by execution levy, he could not enforce, as an additional legal title, rights secured by redeeming the premises from a prior mortgage that had been foreclosed. Although equity would protect him in the expenditure of the required amount, complainant, in the absence of any assignment of the mortgagee’s title, canceled the mortgage and avoided the deed on foreclosure by proceeding under 3 Comp. Laws, § 11143 (5 How. Stat. [2d Ed.] § 13938).
    3. Landlord and Tenant — Execution Sale — Notice to Quit.
    The owner of real property, holding over after sale of his premises on execution, is not a tenant, nor is he entitled to a notice to quit.
    4. Homestead — Execution Sale — Exemption—Appraisal.
    Whereas the primary purpose of an appraisal of a homestead to be sold under execution is to determine whether its value exceeds $1,500, it will be inferred that an appraisal by six disinterested freeholders at $4,150, and sale at $4,500, were both subject to existing prior incumbrances.
    Error to Houghton; Cooper, J., presiding.
    Submitted November 4, 1913.
    (Docket No. 66.)
    Decided December 20, 1913.

      Summary proceedings by Edward M. Lieblien against Hans G. Hansen and. another who appealed to the circuit court from an order of restitution entered by the commissioner. Judgment for complainant. Defendants bring error.
    Affirmed.

      Galbraith & McCormack, for complainant.

      William A. Bateman, for defendants.
   Steere, C. J.

On November 8, 1911, complainant instituted summary proceedings against defendants under section 11164, 3 Comp. Laws, before a circuit court commissioner of Houghton county, to recover possession of lots numbered 36 and 37, block 13, in Second addition to the village of Calumet, now called Laurium. From a judgment by the commissioner in complainant’s favor, appeal was taken to the circuit court of Houghton county, where on trial by jury a verdict was directed in favor of complainant and judgment rendered thereon. A motion by defendants for a new trial was denied, and the case then removed to this court for review upon a writ of error.

Complainant’s claim of right to possession of the property in question is based upon sheriff’s deeds given on mortgage foreclosure and execution sale, the validity of which is questioned by defendants. It is contended in behalf of defendants that this raised a question of title before the commissioner, which was not triable in summary proceedings, and that a motion made to dismiss complainant’s bill and direct a verdict for defendants should have been granted by the circuit court, which on appeal from the commissioner’s court had no increased jurisdiction. In this contention complainant relies on Butler v. Bertrand, 97 Mich. 59 (56 N. W. 342), and other cases to the same effect, which hold in general terms that when it appears in summary proceedings the decision must turn upon an interposed question of title, the case should be dismissed. Error is also assigned on a ruling of the court that no notice to terminate the tenancy was necessary under the claim made by complainant; it being contended defendants were entitled, in any event, to three months’ notice to quit. Subdivision third of section 11164 (5 How. Stat. [2d Ed.] § 13684), distinctly authorizes summary proceedings to recover possession, “when any person shall continue in possession of any premises sold by virtue of any mortgage or execution after the expiration of the time limited by law for redemption.” Complainant’s claim is based entirely upon a sale of the premises by virtue of both a mortgage and execution, and expiration of the time limited for redemption. In Gage v. Sanborn, 106 Mich. 269 (64 N. W. 32), it is said:

“The questions to be tried before the commissioner under this statute in a foreclosure case are: (1) The fact of the mortgage sale and its validity; (2) the holding over after expiration of the period of redemption. If these questions cannot be tried by the commissioner the statute is farcical, as jurisdiction would always be lost as soon as a plausible claim of invalidity of the sale should be raised. Hence a mortgagor is permitted to question the validity of the sale in this proceeding, and the same would be true in cases of execution sales. * * *
“The further point is made that the defendant was entitled to a three months’ notice to quit under the statute. The proceedings were begun promptly after redemption expired, and there is no room for the claim that plaintiff assented to continued occupancy, if that would make any difference. Allen v. Carpenter, 15 Mich. 25.”

This decision we think forecloses many of the questions which have been raised and argued in relation to jurisdiction and defendants’ claim of right to three months’ notice to quit under the statute.

Complainant, Lieblien, is and has been for many years a wholesale grocer located in the city of Hancock, in Houghton county. Defendant Hansen, and a son named Charles, were also for a number of years engaged in conducting a general store in the village of Red Jacket, under the firm name of Hansen & Son, and were customers of complainant. They owned some property jointly, and each owned property individually. Some time in 1908 or 1909 the firm became embarrassed, and appear to have later gone out of business under adverse circumstances. Before this time complainant had indorsed a note for the firm amounting to over $8,000, and early in 1909 they owed complainant a comparatively small balance for merchandise and a much larger sum, which he had been obliged to assume and pay on the commercial paper he had indorsed for them. The property in question belonged to defendant Hans Hansen, and his home had been located on lot 36 for several years, a barn being upon 37. On December 11, 1907, he and his wife executed a mortgage for $2,000, covering both lots, to one Bernard Holstrom. On February 4, 1909, Lieblien, for the reason that Hansen and his son were improperly disposing of their property to the prejudice of their creditors, sued out a writ of attachment, and levied upon the premises in question, with other property, in connection with an action on the note given by them for $8,000, which he, having indorsed, was obliged to pay, and upon which there was yet a balance of over $5,000 which they had not paid. On June 15, 1909, a judgment was rendered in the circuit court of Houghton county against defendant Hans G. Hansen in said attachment suit for $5,863.89, and on July 12, 1909, execution under said judgment was levied upon the property in question. On June 30, 1909, 15 days after this judgment was rendered, Hansen and wife executed a mortgage to said Bernard Holstrom, August Limpia, and Charles Kostemo for $2,000 to secure them as indorsers on certain paper. On November 11, 1909, the premises were sold by the sheriff to Lieblien under the execution levy. In the meantime the mortgage from Hansen and wife to Holstrom for $2,000, dated December 11, 1907, was foreclosed by advertisement, and bid in by Holstrom at foreclosure sale on November 7, 1910, for the sum of $2,236.75. On November 6, 1911, Lieblien redeemed the property from under the Holstrom foreclosure sale, receiving from the latter a redemption certificate dated November 14, 1911, which was duly recorded, according to law, with the register of deeds on January 11, 1912. The payment was first made to the register of deeds of Houghton county, in compliance with the statute relative to redemption, and was officially receipted for as having been paid to redeem said property from the mortgage deed to Holstrom which was described with apt reference to liber and page.

It is insisted in behalf of complainant that he can recover the property under either or both the mortgage foreclosure and execution sale, in each of which the time for redemption expired before action was taken; that' he has title by the execution deed to himself, and by subrogation under Holstrom’s mortgage foreclosure deed, having been compelled to pay that prior incumbrance to protect his interest under the attachment and execution. In the latter contention his claim is at least doubtful. He acquired no legal title. A court of equity would undoubtedly hold him protected in the expenditure by subrogation to the lien, priority, and remedies of the creditor whose claim he was obliged to pay to protect his own interests, but he did not purchase by contract HolstronTs mortgage and inchoate title to the property, and take an assignment of the same, as he might have done. He only paid off the mortgage and extinguished the debt it secured by depositing with the register of deeds the amount required for redemption. By taking this course under the statute he canceled the mortgage upon the records, and rendered the foreclosure deed to Holstrom void. Section 11143, 3 Comp. Laws (5 How. Stat. [2d Ed.] §13938). There is a marked distinction between rights acquired by a contract of assignment and those acquired in subrogation by operation of law. Frisbee v. Frisbee, 86 Me. 444 (29 Atl. 1115).

If complainant’s execution sale was in compliance with the statute, he holds title to the property, and is entitled to possession. As before intimated, there was no tenancy and no notice to quit was required. Defendants’ contention negatives a tenancy; there is no suggestion of any express contract of tenancy, and none is to be implied under the circumstances of this case because of the few months intervening between the expiration of the period of redemption and institution of proceedings. Kunzie v. Wixom, 39 Mich. 384.

The judgment pursuant to which sale was made and all proceedings leading up to the levy are not questioned. Lot 36 in question was levied upon as a homestead exceeding in value $1,500, under section 10369, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13079). The record contains copies of the various instruments filed in carrying out the statutory requirements in such cases, including the notice of levy, an appraisal of the property at $4,150 by six freeholders of the village of Laurium, notice to the owner of the homestead to redeem within 60 days, certificate of sale of the property to complainant for $4,500, he being the highest bidder at the sale, the sheriff’s deed to him, the payment of $1,500 to the sheriff for the homestead exemption, a credit for the balance of $3,000 receipted on the judgment, and a full return by the sheriff of the various steps taken in executing his writ certifying amongst other things, that the defendants in said execution had in his bailiwick no other property upon which he could levy to satisfy the judgment.

It is claimed in behalf of defendants that in appraising the homestead the mortgages upon the same were not taken into consideration, as they should have been, which deprived them of their right to be advised of the sum required to redeem the homestead from under the execution sale. The homestead was appraised by six qualified freeholders, as the statute required. Their appraisal was $4,150. It sold at execution sale for $4,500, subject, necessarily, to any prior, recorded incumbrances. The inference is that the mortgages were considered both on the appraisal and at the sale. The primary object of the appraisal which the statute requires is to determine whether the homestead exceeds $1,500 in value, before the sheriff can proceed further with the execution. Riggs v. Sterling, 60 Mich. 643 (27 N. W. 705, 1 Am. St. Rep. 554); McAllister v. Des Rochers, 132 Mich. 381 (93 N. W. 887). The sheriff’s return while it stands must be deemed conclusive upon the parties. Flynn v. Kalamazoo Circuit Judge, 136 Mich. 23 (98 N. W. 740).

The homestead is a single village lot, and no claim is made that it was capable of division. It was shown by appraisal to exceed in value $1,500. Due notice was given to the owner. It was sold at a price in excess of the appraised value. One thousand five hundred dollars exempt from execution was reserved by the sheriff for the debtor, and the balance applied upon the execution.

We conclude from this record that the proceedings under the levy were in substantial compliance with statutory requirements, and with due regard to defendants’ homestead rights. Complainant is shown to have been entitled to possession of the premises under his execution deed.

The judgment is affirmed.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.