text:
    CARR v. GRAND TRUNK RAILWAY COMPANY OF CANADA.
    1. Master and Servant — Railroads — Injury to Brakeman — Unsafe Construction — Structure Near Track — Assumption of Risk..
    A railroad brakeman who ought, in the exercise of reasonable diligence, to know of the location of a cattle chute near the track, assumes the risk of injury from such structure, whether he knows its exact distance from the track or not.
    2. Same — Duty of Servant.
    A railroad company has a right to rely upon its brakeman using due diligence to familiarize himself with the location of all permanent structures along a siding upon which his duties require him to worli.

      3. Same — Assumption oe Risk — Evidence—Sueeioienoy.
    In an action by a railroad brakeman for injuries resulting from coming in contact with a cattle chute built too near a side track, evidence examined, and held, conclusive that if plaintiff had exercised due diligence he must have discovered the location of the chute, and that therefore he assumed the risk of injury therefrom.
    4. Same — Structures Near Tracks — Custom—Evidence.
    In an action by a railroad brakeman for injuries resulting from coming in contact with a cattle chute near a side track, evidence examined, and held, not to show a custom on the part of defendants and other railway companies to locate their cattle chutes at a safe distance” from side tracks such that plaintiff would be justified in relying upon that custom.
    Error to Shiawassee; Miner, J.
    Submitted February 20, 1908.
    (Docket No. 129.)
    Decided March 31, 1908.
    Case by George P. Carr against the Grand Trunk Railway Company of Canada and the Cincinnati, Saginaw & Mackinaw Railroad Company for personal injuries. There was judgment for plaintiff, and defendants bring error.
    Reversed.

      H.. Geer, for appellants.

      Watson & Chapman, for appellee.
   Blair, J.

Plaintiff brings this action to recover damages for the loss of his left hand, which was severed in consequence of an accident at Flushing, on the Cincinnati, Saginaw & Mackinaw Railway, between 6 and 8 o’clock on the evening of December 20, 1902. Plaintiff was a brakeman in the employ of the defendant, and at the time of the accident was in the performance of his duty, riding on the side of a car, when he came in contact with a cattle 'chute located 3 feet 11 inches from the nearest rail of the side track upon which he was riding. This cattle chute was 16.65 feet from the west rail of the main track and had been in the same location for some 16 years. .

The main" track of this road passes through Flushing in practically a northerly and southerly direction. West of this track and extending practically parallel with it for a distance of 1,713 feet was the long siding, so-called. Five hundred feet north of the south switch, which connects this siding with the main line, is the cattle chute; 450 feet north of that, the freight warehouse; and 175 feet south of the north switch of the siding, a bean warehouse. These structures are, as usual, placed near the outer rail of the siding. A side or spur track leads from the long siding in a northwesterly direction for 358 feet to a warehouse used as a storage place for hay and like products. The point at which it leads from the long siding is between the freight house and the cattle chute. East of the main line, and at a point 699 feet north of the south switch above mentioned, is another side track extending approximately 600 feet in a northeasterly direction to within a short distance of the southeast corner of the station building. No structures are placed along this track.

Plaintiff testified:

“The night that I received my injury we pulled over the switch [ the south switch] I swung it, and I saw that my draw-bar on the car that we had hold of was open before stepping back, then stepped across onto the main line to let this train back down this side track. I stepped onto the main line so that I could see my fellow-brakeman. As I turned back along the side I walked down the main line. I was about even, perhaps, with the rear car of the train. The first coupling, as I remember it, was just inside of the switch; that is, so that the car would clear a train passing along the main line. I made the coupling. The next one made was down towards — down towards this way (indicating on map). I do not think that I coupled any car that night at or near the stock chute. I could not say how near it was. It might have been a car and a half or two cars from the chute. The next coupling must have been further from the chute for I was still further away from those cars.

“When the train started to pull out of this switch I should judge there were 13 or 15 cars attached to the engine. I arrived at this conclusion by looking ahead at the lights of the engine and fixing the distance in that maimer. That was the only way that I could judge. I never at any time rode cars in this siding past the chute or set them at the chute. All of these cars between where I was and the engine were box cars.

“ I knew there was a station at Flushing and also on which side of the track it was located.' I also knew there was a siding at Flushing before I received my injury. I knew there was — I did not know what side it was on but I knew where the switch was south of the' station. I could not say how early I learned the fact that this switch was there. I could not say that it was ever since I commenced working on the road. I do no,t remember whether or not I ever threw a switch before that night in all the work I did there. I knew that the side track led from the main track north of the depot. I could not say whether or not I ever did throw that switch before the time of the accident. I knew there was a freight house there. I did not know there was a warehouse at that point. * * * While on the side track I did the signaling from the east side, getting my signals from Dunham. These were back-up signals and easy signals. I know now that when I went to get off these cars and went to the south end for the purpose of putting them on the siding I passed a cattle chute. * * * When Stewart and I were working on the C., S. & M. we frequently switched on the north end of the yard. I generally unloaded freight.”

Plaintiff, prior to receiving his injury, had worked for the Grand Rapids & Indiana, the Pere Marquette, the Ann Arbor, and the defendants’ railways, either as fireman or brakeman. He was first employed by the defendants on the 28th of March, 1902, and remained with them until June 12th of that year, the majority of his work being done on the Detroit, Grand Haven & Milwaukee Railway. Plaintiff made trips over the Cincinnati, Saginaw & Mackinaw daily between Durand and West Bay City and return, as a brakeman, from April 21st to April 25th, 1902, inclusive; from May 16th to May 18th, inclusive; and June 12th. Plaintiff left defendants’ employ in June and went with the Pere Marquette, as a brakeman, where he remained until the 16th of December, when he re-entered defendants’ employ as a brakeman. From that date he made round trios on the..local freight between Durand and West Bay City daily until he received the injury complained of.

The train was scheduled to leave Durand northbound at 6:30 a. m., as No. 79, and was due to arrive at Flushing at 7:30 a. m. It was scheduled to leave West Bay City southbound, as No. 80, at one o’clock in the afternoon. Flushing was an important station on the line and more or less work was done there daily by the train crew.

Plaintiff testified that the cattle chute at Flushing was nearer than such structures are upon the Pere Marquette, the Michigan Central, the main line of the Grand Trunk, and the Ann Arbor.

“I have made measurements upon those lines and the cattle chute on the Michigan Central at Owosso is 5 feet 3 inches from the track, and at Ann Arbor it is 5 feet 4 inches; at Laingsburg it is 5 feet 4 inches; at Bath, 5 feet; at Lansing, 5 feet. The cattle chute at Gaines, on the Detroit, Grand Haven & Milwaukee, is 4 feet 4 inches from the track; at Fenton it is 4 feet 5k inches. The cattle chute at Vernon, on the Ann Arbor, is 4 feet 11 inches; at Cohoctah, it is 4 feet 4 inches. The cattle chute at Holly on the Pere Marquette is 4 feet 10 inches; at Belford it is 5 feet; at Grand Blanc, 5 feet; at Flint, 4 feet 11 inches. The cattle chute at Flint on the Grand Trunk is 4 feet 4 inches. The cattle chute on the C., S. & M. at Lennon is 4 feet 11 inches; at Brent Creek, 5 feet 3 inches; at Mount Rose, 4 feet 6 inches. The chute at Flushing I said was 3 feet 11 inches from the track.”

Plaintiff’s brother, Frank Carr, testified that he was a conductor, had been a brakeman and had had 10 years’ experience in railroading on the Ann Arbor railroad.

“ I am familiar with the distance cattle chutes usually are constructed from side tracks in good railroading.

“Q. How far are they usually from the side track? * * *

“A. 4£ to 5 feet. I have not made special investigation or special measurements on the Ann Arbor. I have made measurements on the M. C. The cattle chute at Owosso was 4k feet from the track; at Ann Arbor, I think it was 5 feet 11 inches, if I am not mistaken. I measured the C., S. & M. at Flushing and the cattle chute is 3 feet 11 inches from the track. These are the only measurements I have made.”

One Cavanaugh corroborated plaintiff’s testimony as to the measurements made. Martin and Ehrke, witnesses for the defendants, testified:

“The elevator at Lennon is 4 feet 8 in. from the rail; the stock chute, 5 ft. 3 in.; the coal bin 3 ft. 3 in. from the rail. The stock chute at Flushing is 3 ft. 11 in. from the rail; the freight house platform is 4 ft. 6 in. high and 3 ft. 4£ in. from the rail; the hay barn is 3 ft. 4 in. The next station north of Flushing is Brent Creek. The fence is 3 ft. from the rail; the hay barn 3 ft. 6 in.; the stock chutes 5 ft. 6 in. The bean factory at Mount Rose is 3 ft. 4 in.; the stock chute 4 ft. 9 in. The stock chute at Burt is 3 ft. in. West Bay City was the next station at which I found any structures along the side track. The stock chute at that point was 3 ft. 5i in.; the freight house platform 2 ft. 8 in. These are the structures that I observed on the C., S. &' M. between Durand and Bay City. All of them were located on side tracks.

“ Turning to the D., G. H. & M. and commencing at Gaines, the first station east of Durand, I found that the stock chute was 4 ft. from the rail and the hay barn 4 ft. 5 in. The stock chute at Linden was 3 ft. 9 in.; the freight house platform 3 ft. 1 in.; the east elevator 4 ft. 6 in.; and the west elevator 3 ft. 5 in. At Fenton, the next station, the egg and poultry plant is 3 ft. 5 in., the freight house platform 3 ft. in. from the rail, and the stock chute 3 ft. 10 in.- At Holly, the next station, the freight house platform was 3 ft. 10 in.; the stock chute' was 3 ft. 9£ in. At Davisburg, the stock chute was 3 ft. lli in.; the freight house platform 3 ft. 9 in. At Clarkston, the stock chute is 3 ft. 7 in.; the freight house platform 3 ft.; and the stock chute at Waterford is 3 ft. 7 in. At Pontiac, the coal shed is 2 ft. 10£ in.; the stock chute at Birmingham is 3 ft. 3 in., and at Royal Oak 3 ft. 8 in. All of these buildings and structures which I have described are along the side tracks. * * *

“The first station north of Durand on the O., S. & M. is Lennon. I found the elevator was 4 ft. 6 in. from the nearest rail, the stock chute 4 ft. 7-J- in., and the coal shed 3 ft. 7 in. At Flushing, the next station, the stock chute was 3 ft. lli in,; the freight house platform 4£ ft. high and was 3 ft. 6 in. from the rail. I did not measure the hay barn at the time, as that track leading there had been changed a little. I measured the hay barn, which was 8 ft. 3 in. from the closest rail, and the stock chute, which was 4 ft. Zi in. at Brent Creek; also a fence which was 3 ft. 5 in. high, the end of which joins the hay barn. At Mount Rose the stock chute was 4 ft. 2 in. from the nearest rail. I measured the stock chute at Burt, which was 3 ft. 6 in. This chute has been there as long as I have known the road. These are the measurements I took on the C., S. & M.

“The first measurements I made along the D., G. H. & M. were at Gaines, which is the first station east of Durand. I found the stock chute 4 ft. 1 in. and the hay barn 4 ft. 5 in. from the nearest rail. Linden is the next station. I found the stock chute 3 ft. 10 in. from the nearest rail; the freight house platform 3 ft. 3 in.; the east elevator 4 ft. 5 in. and the west elevator 4 ft. 6 in. from the nearest rail. Fenton is the next station. I found the egg and poultry building 3 ft. 4 in.; the freight house platform 4 ft. 6 in. high and 3 ft. 9 in. from the nearest rail, and the stock chute 4 ft. 2 in. I measured at Holly the freight house platform, which was 3 ft. high; the stoek chute was 3 ft. 9£in. The stock chute at Da visburg, the next station, was 3 ft. lli in- and the freight house platform, 3 ft. 10 in.

“ I took no measurements at Clarkston because the depot had been burned and the stock chute had been rebuilt. I went from there to Waterford and measured the stock chute, which was 3 ft. &i in. from the rail. There was no stock chute at Drayton Plains. I measured the coal shed at Pontiac, which was 4 ft. 11 in. from the rail. The stock chute was on the Michigan Air Line. I did not make any measurements there. It had been rebuilt.

“ The stock chute at Birmingham was 3 ft. 7\ in. from the closest rail and at Royal Oak 3 ft. 9 in. I did not go west of Durand at that time.

“When I got off the train this morning I made the measurement here at both the Grand Trunk and Ann Arbor depots. The D., G. H. & M. freight house platform at this village is 2 ft. 10 in. from the rail and the stock chute is 3 ft. 8 in. The' stock chute of the Ann Arbor is 3 ft. 8 in. from the rail, and at the east end of Green’s elevator it is 3 ft. 4 in. to the nearest rail. There were also some coal bins along the Ann Arbor which were 8 ft. 1 in. from the rail. All the structures and buildings which I measured were on side tracks. This was true at all stations.”

Plaintiff further testified:

“I was acquainted with the manner in which these cattle chutes were placed along the road, also freight houses and coal bins. They were placed along the side tracks. * * *

“I have never seen stock chutes along the mainline.

* * *

‘ ‘ I did not know the chute was there until after the accident happened. * * *

“-When we came to Flushing, the conductor said, ‘ Hurry up, do quick work. We will get out of here ahead of that passenger.’ I did not hurry my work. That is not the reason I was not paying attention. I did not care whether I got out ahead of that passenger or not. I was not going to take my life to satisfy the conductor or take any chances of running against one of those cattle chutes by being in a hurry. The fact that the conductor told us to hurry up did not make any difference with my conduct. I took my time. * * *

“ I familiarized myself with the coal bins, cattle chutes, and warehouses, also barns along the side tracks. I never thought that they would be close to the track. I saw one close to the track. It was at Flushing. This is the only structure I ever saw near the track. I have seen freight houses near the track, where you load and unload freight. They were always on side tracks. I knew this from what I had seen on other roads. I have looked and found out that it was clear between these structures and that you could get on a car while going past them. I generally rode either on the side or the top, wherever it was convenient. During the two years that I was engaged in railroading I kept my eyes open and watched for these side tracks, as much as I could. I knew that was my duty. * . * *

“Q. Mr. Carr, you told Mr. Geer you were always on the lookout to see the surroundings and the different things along the track. You may tell the jury whether or not you had ever before observed a cattle chute as near the track as this one ?

“Jfr. Geer: I object to that unless he has made measurements. We were yesterday advised as to the only ones he ever did make. It would be wholesale for him to say that he never saw one as near as that. We expect to show a good many of them that are nearer. Objection overruled. Exception for defense.

“A. I never did. * * * I went upon this track at the south end. I should judge the track is about one-third of a mile in length, maybe longer. I never observed the cattle chute before. I had never been down there before.”

'íhat such work as he had done at this siding had always been done at the north end.

The station agent at Flushing testified:

“ I have a record showing the arrival and departure at our station of trains Nos. 79 and 80 commencing on the 21st day of April, 1902. * * * The entry of April 21st, 1902, is in my handwriting. I can state from this entry that No. 79 arrived at Flushing at 7:40 a. m. and departed at 8:20 a. m. No. 80 arrived at Flushing at 4:30 p. m. and departed at 5:00 p. m. I cannot swear distinctly that any switching was done here on that day. We kept a car record showing the cars taken up by and put off of that train. I have not the car record of April 21st. The first one I have here is dated April 24th.. * * *

“Q. Take April 22d, and tell the jury what time the train arrived there that day and what time it departed.

“Mr. Watson: Objected to, unless it is in his own handwriting. Objection sustained.

“A. Train No. 80 is in my own writing, but 79 is the clerk’s. * * * No. 80 arrived at 6:25 p. m. and departed at 7:22 p. m. I will say from the general custom of business transacted at that station during the month of April that cars must have been left and picked up by Nos. 79 and 80 that day. . The entries of April 23d are in my handwriting and show the arrival and departure of Nos. 79 and 80. No. 79 arrived at 7:40 a. m. and departed at 8:30 a. m. and No. 80 arrived at 6:05 p. m. and departed at 6:25 p. m. I have no record as to what work they did on that day, but from my knowledge of the general custom of the business transacted by those trains at this station, I would say .cars must have been left off and picked up. The entry of April 24th as to No. 79 is in my handwriting. It arrived at 7:40 a. m. and departed at 8:45 a. m. No. 80 is in the handwriting of my clerk. * * * I see from my record of April 24th that a car of merchandise was left at our station. * * *

“The entry in the car register of the 25th is in my handwriting and I can state by referring to it that eight cars were left off by No. 79 the morning of that day, four cars of merchandise, and four empty box cars. These empties were afterward loaded with hay, according to the record. Turning to May 16th, the record of the arrival and departure of 79 and 80 is in my handwriting. It arrived at 8:45 a. m. and left at 9:35 a. m. and No. 80 arrived at 9:16 and departed at 9:45 p. m. I could not state exactly what work was done by this train at our station that day. I does not appear to have picked up any by the record that morning when going north. The record is not clear as to whether any cars were left there. There were a number of car's left but I cannot swear that they were left by them. There was an extra train that day, which arrived from the south at 6:30 and departed at 6:50. * * *

‘ ‘ I should say the record of the arrival and departure of No. 79 on the morning of May 17, 1902, is in my own handwriting. This train arrived at 8:35 and departed at 10:40 a. m. It picked up a car of cattle and took them to Saginaw. When No. 80 went south that day they picked up three car loads of stock from the long siding. This car stood at the chute or just north of it. A car of merchandise was also picked up for Durand and a car of flour for New York. I could not say positively what track this car was taken from. It might possibly have been from the mill. I think the arrival and departure of 79 on the morning of May 19th is in my handwriting. It arrived at 7:30 a. m. and left at 9:30. It set off five cars, three loaded with merchandise and two empties. Turning to the record of June 12, 1902, I find that 79 arrived at 7:30 a. m. and departed at 10:15 a. m. and that No. 80 arrived at 8:10 p. m. and departed at 9 o’clock p. m. No. 79 set off three cars of merchandise that morning, as it appears from the car register, and No. 80 picked up an empty box car for Durand, three cars of wool and one car of hay for Boston, and also a car of merchandise for Durand. December 20th No. 79 set off four stock cars. The record shows that No. 80 took away these four cars and three others that night, one car loaded with beans, one with merchandise, and one with hay. No. 79 arrived at 8 a. m. and departed at 8:42 a. m. No. 80 arrived at 5:48 p. m.

Q. After it arrived there, do you know of its picking up these cars or going out to do it ?

Mr. Chapman: Does this appear in his own writing ? I object to it and ask to have it stricken out unless it is in his own writing.

Q. Is that 5:48 in your own writing ?

“A. It is not.

“Mr. Chapman: I move to strike it out.

The Court: It may he stricken out unless he knows.

* * *

“ I am speaking of standard time in giving the arrival and departure of this train. This is the only time we use-in railroading. The record which I am testifying from as to the number of cars picked up there on the morning of December 20th is in my handwriting. Also as to taking away cars at night. I got the information from which I made this record by checking the yard myself. I always did this. I could not say that I checked this yard on December 20th after the train had departéd that night. It is checked ■ each morning after the day’s business. There would be no occasion for me going over .there and. checking up the cars on the evening of December 20th. * * * Sometimes they put these cars in one end of the. siding and sometimes at the other. I do not know at which end the cars were put in, in April, May and June, or on December 20th. I did not pretend to say to the jury which way they did it.”

The negligence relied upon by plaintiff, as stated in the-brief of his counsel, is as follows:

“We contend in this case that the negligence of defendant consists in the construction of a side track with a curve so great thereon that it necessitated the work being done on the inside of the curve and then placing a cattle chute so dangerously close to the siding that it would strike a. brakeman doing his work in the ordinary manner, when the evidence shows that there was no necessity for building it in that dangerous manner. And that the record further shows that it is not customary in good railroading to have cattle chutes so close and, particularly, that it was. not the custom on this particular line of road.”

It is further contended by plaintiff’s counsel that, since several of the measurements made by defendants’ witnesses show less distances between the cattle chutes and. the nearest rail than those given by plaintiff and Cavanaugh, the jury would be warranted in finding all of their measurements inaccurate; and if the jury so found, plain? tiff’s proofs would authorize a finding that the stock chute at Mushing was closer to the rail than it was customary for railroads, in accordance with good railroading, to place them; that there was no custom known to plaintiff, or actually existing, to place cattle chutes so near to the rail as the one at Mushing, and it was unnecessary to place it so close, for which reasons the case is ruled by Potter v. Railway Co., 122 Mich. 179, and Bradburn v. Railroad Co., 134 Mich. 575.

The trial court adopted the plaintiff’s theory and submitted the case to the jury, who found a verdict for plaintiff. Defendants bring the case to this court for review, contending that the defendants were entitled to an instructed verdict, upon the grounds:

That the defendants were not guilty of any negligence.

That the plaintiff assumed the risk of the injuries received.

That the plaintiff was guilty of contributory negligence.

The jury have credited the plaintiff’s testimony that he was ignorant of the existence of the cattle chute, and the important question for consideration, in the absence of the custom relied upon, is, whether such ignorance was excusable, since, if the plaintiff ought, in the exercise of reasonable diligence, to have known of the location of the cattle chute, he must be held to have assumed the risk of such location, whether he knew its exact distance from the side track or not. Pahlan v. Railway Co., 122 Mich. 232; Bradburn v. Railroad Co., 134 Mich. 575; Wilson v. Railway Co., 145 Mich. 509.

It conclusively appears from the testimony that plaintiff’s train had passed this chute some ten or twelve different times, in the daytime, when there was nothing to interfere with his seeing it if he looked in its direction; that he had done work on the siding at different times, and, on the morning of the accident, the train had set off four stock cars, which they picked up on their return at night; that he understood that it was his duty to familiarize himself with the location of permanent structures on side tracks; that plaintiff knew such structures were located on the outside of the side track, and that if he had endeavored at any time to ascertain what structures were located along this siding he could easily have ascertained the location of this cattle chute. The defendants had a right to rely on plaintiff’s using due diligence to familiarize himself with the location of all of the permanent structures along this siding, and, in our opinion, the evidence is conclusive that, if he had used such diligence, he must have discovered the cattle chute and its location upon a curve.

Was there sufficient evidence of a custom on the part of these defendants and other railway companies to locate their cattle chutes at a safe distance from side tracks, so that plaintiff would be justified in relying upon such custom ? If we consider all of the testimony as to measurements, it appears that many cattle chutes are placed as close to the rail as the one in question, and that there is no uniformity as to their distance from the rail. If we disregard the measurements of defendants’ witnesses, it appears that there was no custom to place the chutes at any uniform distance from the side tracks, but that such distances ranged from 3 feet 11 inches at Flushing to 5 feet 4 inches at Ann Arbor. It appears from the testimony that there are numerous other stations on the roads where plaintiff made measurements, where cattle chutes were located, whose distances from the side tracks he did not measure. The few measurements presented by plaintiff of varying distances greater than at Flushing were not sufficient to warrant the jury in finding a general custom to place the chutes at a safe distance from side tracks, against the uncontradicted measurements testified to by defendants’ witnesses, even though they found that the witnesses who testified to such measurements were not entitled to credence.

In our opinion, this case is not distinguishable in principle from Pahlan v. Railway Co., supra. The judg-. ment is reversed, and a new trial granted.

Grant, C. J., and Montgomery, Ostrander, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    DUFORD v. PARLIAMENT OF THE PRUDENT PATRICIANS OF POMPEII.

    1. Beneficial Associations — Officers—Powers—Employment of Promoters — Compensation.
    Where an officer of a beneficial association has authority to employ promoters it is within the apparent geope of his authority to agree upon their compensation.
    2. Same — Contracts—Action—Instructions.
    In an action against a beneficial association for services rendered, an instruction that if the jury find that the contraot •was as testified to by plaintiff’s witnesses they should find a verdict for plaintiff, was not objectionable as failing to state that the terms of the contract would make any difference in the verdict, since that was clearly implied.
    3. Same — Misleading Instructions.
    Where the instructions stated defendant’s claim fully and fairly, an instruction that there w.as no material difference between defendant’s claim as stated by one of its witnesses and by plaintiff’s was held not misleading.
    4 Same — Evidence—Admissions—Report of Membership.
    Under plaintiff’s claim to a certain percentage of the per capita tax levied upon members, defendant’s official report of membership was admissible' in evidence as an admission, though it did not indicate how many were honorary members, exempt from payment of the tax, defendant having means of ascertaining the number and being entitled to show it if it desired.
    5. Same — Question for Jury.
    Plaintiff’s claim being that he was entitled to commissions on the membership of defendant at the close of the year and upon June SOth, the court properly left to the jury the question, How many members were there in good standing on January 1st, and how many joined between that time and the time plaintiff stopped work under the contract ?
    Error to Bay; Collins, J.
    Submitted February 24, 1908.
    (Docket No. 25.)
    Decided March 31, 1908.
    Assumpsit by David Duford against the Parliament of the Prudent Patricians of Pompeii for services rendered. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      W. J. Lamson, for appellant.

      De Vere Hall, for appellee.

       Rehearing pending.

   Hooker, J.

The defendant has appealed from an adverse verdict ’and judgment in an action of assumpsit. The action was brought to recover a balance alleged to be due upon a contract by which the defendant is charged with having become obligated to pay to the plaintiff and three others salaries and certain commissions for promoting the interests of defendant in this State. That there was a contract and that it involved both salaries and commissions is admitted, but the defendant denies that it promised to pay commissions, and it also denies that defendant’s agent, by whom the contract was made, had authority to make a contract to pay said commission.

The defendant is a fraternal society organised under the laws of the District of Columbia. It has subordinate State bodies called “phalanxes,” which in turn establish local bodies called “primaries,” though these may be established by the defendant without the intervention of a phalanx.

Among the dues to be paid by primaries is the per capita tax of $1 per year to be annually disbursed for management expenses as follows: Fifty cents to the phalanx of the jurisdiction, when one exists; but if none exist, it is to be placed in the general fund of the association; fifteen cents to the premier of the parliament for personal service; five cents to the prefect of the parliament for personal service; fifteen cents to the pronotary of the parliament for personal service; five cents to the proctor of the parliament for personal service; five cents to the purser of the parliament for personal service; and five cents to be divided in per liem for personal service for the balance of the proceres of the parliament, the provers and the patricians of the placitum.”

At the time that the alleged contract was made there was no phalanx in Michigan, and at that time W. S. Linton and David Swinton, both of Saginaw, were respectively premier and pronotary, i. e., secretary. They arranged an interview at Grand Rapids with the plaintiff and three other gentlemen, viz., Gillett, Withrow, and Fuller, and at that interview the contract was made. It was oral and provided for the employment of all four as promoters, whose duty was to procure members to the order, and, we assume, establish primaries in their respective districts in this State. As compensation they were to receive $75 per month and one-fourth of one-half of the per capita tax, each. So far there seems to be no dispute, but the defendant claims that the further engagement wa3 that a phalanx should be organized, of which the four should be officers and to which they should look for payment of their shares of the per capita tax. There is evidence that the parties met at Saginaw, and took some, if not all, steps necessary to organize the phalanx, and that stationery procured by defendant with their respective names and official titles was sent to them by Linton. It is claimed by the plaintiff that this attempt to organize a phalanx came to naught, that the phalanx never met and never received any money from any source, and that whatever per capita taxes have been paid were paid to defendant, and this fact seems undisputed. If these things are true, there would seem to be no obstacle to the disbursement of its share of this fund by the defendant, as defendant’s testimony shows that where there is no phalanx such money goes into the general fund of the supreme body. W e are of the opinion that defendant had authority to make a contract to pay commissions from this source and that if the pronotary had not authority from the pandects to make a contract he might receive such authority, or his contracts might be ratified by the defendant, and we think that there was evidence in the record that would justify an inference that the contract, whatever it was, met the approval of the defendant. It is argued that if plaintiff’s version is true, it was known only to the pronotary that the commission was to be paid by defendant, and that without such knowledge by other officers of the defendant there could be no ratification, but we think that this does not necessarily follow, for there is evidence that he was allowed broad powers of management, which might reasonably be found to include authority to make such a contract. There is abundant reason for saying that Swinton was authorized to employ promoters. Linton, the premier, who has express authority to do so, in the pandects, knew that Swinton made a contract with plaintiff and others, and participated in the proceedings at Saginaw. Having authority to employ a promoter, it was within the apparent scope of Swinton’s authority to agree upon his compensation. We have seen that in the absence of a phalanx that portion of the per capita tax which would ordinarily go to the phalanx, would become a part of the general fund of the defendant and there is no apparent reason why this fund might not be drawn upon to pay for services, whether salaries or commissions.

The court instructed the jury that if they found a contract made at Grand Rapids, and that work was done under it, it was binding on the defendant because not repudiated, although Swinton had not authority to make it. We need not discuss this question for we have already intimated that whichever way the contract was made it was within the scope of Swinton’s authority under the undisputed facts.

It is said that under this charge the jurors were not given to understand that the terms of the contract should make any difference with their verdict. We think it is clearly implied. The judge said, in substance: If you find that the contract consummated at Grand Rapids was as testified to by plaintiff’s witnesses, then you may find in plaintiff’s favor.

Complaint- is made of the charge wherein it states that “there is no material difference between the claim of defendant as stated by said Puller and of plaintiff, said Gillett and Withrow, as stated by them, as to the amount due on the membership of defendant as of June 30, 1905.” The witness Puller states the difference in the following language:

“ The only difference between me and these gentlemen is that I say it was on a basis of the members added during October, November and December, 1904, while they say it was on the basis of the whole membership of December 31, 1904. That is all the difference I see. And as to the membership added July, 1905, there is no difference between us.”

As the court truly said, there was no material difference between those witnesses as to the June list. Counsel says:

‘ ‘ The error consists in stating that the defendant’s claim is as stated by Mr. Puller, which is not a fact. Also stating to the jury: ‘ There was no material difference between the claim of defendant and plaintiff as stated by Puller as to the amount due June 30, 1905.’

“First. Because Fuller stated the money was to be paid to the phalanx and by the phalanx to them, and,

“Second. Because the defendant in no way claimed that if the contract was as they claimed, they would be entitled to per capita paid July 1st, 1905, as they resigned in June, 1905, and the per capita paid July 1st or due June 30th, as they call it, would pay to January 1st, 1906.

“Third. The defendant at all times claimed that the per capita tax was to be paid to the phalanx as its laws required, and not to plaintiff and associates as individuals.”

We are of the opinion that this statement should have misled no one. It was followed by a paragraph which set forth defendant’s claim more fully, and the jury could not have understood that Fuller’s testimony was a statement of defendant’s claim in the case. It meant that according to Fuller’s testimony defendant who called him was claiming that only members joining after October 15th were to be included in the January list. There is nothing to indicate that the judge meant that defendant’s claim as to the contract was in accord with the testimony of plaintiff, Gillett and Withrow or even that of Fuller.

Counsel concede that the salaries were paid by defendant, — the amount of the commission is in dispute. The plaintiff is the assignee of Withrow and Fuller, and therefore claims to be entitled to three-eighths of the per capita tax.

Upon the theory of the plaintiff it was competent to admit defendant’s official report of membership as furnishing some evidence of membership, although it might not indicate how many were honorary members said to be not chargeable with per capita tax. It was in the nature of an admission, and the defendant had the means of ascertaining how many were not chargeable with dues and could have shown the number, had it desired to do so, failing to do which it cannot complain if the jury did infer that few if any were exempt. It is true that there was evidence of the amount of per capita tax received, but we cannot say that defendant’s liability was limited to taxes actually received. That depends on what the terms of the contract were, and that question was for the jury.

There was testimony that the commission “ was to be paid upon the total membership in good standing at the close of the year and upon the 30th of June.” Upon the strength of this the court left to the jury the question, How many members there were in good standing on January 1st, and how many joined between that time and the time plaintiff and his associates stopped work under the-contract ? We cannot say that there was no evidence on this subject for there was a statement that indicated it to be about 3,900 on June 30th.

We find no difficulty in understanding the instructions relating to the amount plaintiff might recover, and while apparently the jury gave a larger verdict than the charge contemplated, it was no fault of the learned circuit judge, who made his directions upon this subject very plain. The charge was as favorable in this respect as the defendant had a right to expect, and if the verdict was too large (which we do not say), we see no opportunity for correcting it on this record.

The judgment is affirmed.

Grant, C. J., and Moore, Carpenter, and McAlVAV, JJ., concurred.


text:
    MAY v. HILL.
    1. Negligence — Injuries to Child — Milk Wagon — Negligence of Driver — Question for Jury.
    In an action by a child against the alleged owner of a milk wagon for injuries resulting from being knocked down by the team in the street, evidence examined, and held, to present a question for the jury whether the driver was negligent in failing to see the child.
    2. Same — Ownership of Wagon — Evidence—Sufficiency.
    In an action against a father for a tort committed by his minor son in charge of a milk wagon, evidence relative to the ownership of the milk route and the father’s interest therein examined, and held, that a verdict against the father was so clearly against the weight of the evidence that defendant’s motion for a new trial should have been granted.
    Error to Kent; Perkins, J.
    Submitted February 24, 1908.
    (Docket No. 139.)
    Decided March 31, 1908.
    Case by Ruth E. May, by next friend, against David Hill for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      E. J. Doyle (John J. McKenna, of counsel), for appellant.

      Emil B. Q-ansser (Cornelius Hoffius, of counsel), for appellee.
   Hooker, J.

The plaintiff, a child, was injured while crossing a city street by being struck, thrown down, and stepped on by one of a span of horses being driven before a milk wagon by one Grover Hill, a minor son of the defendant. She recovered a judgment of $400 in an action for negligence, and the defendant has appealed. The declaration alleges that defendant was the sole owner of the milk rig and business, and that in driving the team Grover Hill was the defendant’s agent. The defendant claimed upon the trial that he had no share in the milk rig or business, and that Grover Hill was not his agent in driving the team. The important question is whether the circuit judge erred in refusing to direct a verdict for the defendant, which counsel claim that he should have done upon two grounds, viz.: First. There was no proof that Grover Hill was negligent. Second. There was no proof that he was defendant’s agent.

Negligence. The wagon was inclosed with windows in front. One witness testified to seeing the accident. He stated that the girl was starting to cross the street, and Hill crossed the street from the other side, and drove right up against the gutter on a kind of fast trot. She started to run back to the walk and when in the gutter she was struck by the knee of the near horse and knocked down. The horse stepped over the girl and afterwards in prancing about stepped on her hand. Grover Hill testified that his team was walking and that he did not see the child because she was so small, that she ran from the sidewalk in front of the wheels and he did not see her until the horse knocked her. down and that she was too small to be seen in front of the horses. He said that he was paying particular attention to his team and stopped them quick, that they swung to the side to avoid hitting her, which must have been toward the gutter as the team was going north on the east side of the street, and she was struck by the near horse. The surrounding conditions and the details were given more fully than as stated, but we have given sufficient to indicate that there was a question for the jury to determine, i. e., whether Hill was negligent in failing to see the child. We are of the opinion that the court did not err in refusing to take that question from the jury if there was testimony charging the defendant with this negligence.

Defendant’s responsibility. To prove defendant’s liability counsel for the plaintiff called two witnesses. Emerson Scott was a constable who served the declaration on the defendant. He testified that at that time he ‘ ‘ asked defendant if he owned the milk route, and that he said no, he didn’t own it, hut he was interested in it, he said him and the hoy owned it together.” On cross-examination he said:

“Mr. Gansser went with me, I started the conversation and Mr. Gansser then told him who he was, and he had quite a lengthy conversation with him after that.

itQ. He told him that he didn’t own the milk route?

“A. He said, ‘ Well, I don’t own it, hut I am interested in it.’ I believe these are just the remarks he made.

“Q. Those are the words he used?

“A. I think so, as near as I can rememher. He said the hoy and I together own it.”

He said further:

“ I don’t remember how I came to ask him those questions. Mr. Gansser may have told me to ask him those questions.

“Q. Then he told you the questions to ask him ?

“A. Yes, but he didn’t say that he wanted him to admit anything. I don’t know what his object was, I done as he told me, I was under his orders.

Q. You say you asked Mr. Hill that day you went out there to serve the papers if he had an interest, if he owned this milk route ?

“A. Yes.

“Q. And he told you that he did not?

“A. Yes, that was the word he said.

“Q. That he had an interest in it?

“A. Yes.”

He testified further:

“Q. Now are those the words he used ?

“A. I think those are the exact words, as near as I remember them. I believe Mr. Hill and Mr. Gansser went into the house to look up the record to see how old the hoy was. Hill told Gansser he thought he was of age, and then to prove it I think they went into the house together to look up some records. I have told substantially all the conversation had with Mr. Hill. We were there about ten minutes altogether. I didn’t get out of the buggy; Gansser got out, they didn’t stand at the buggy and talk, they went into the house, I didn’t hear the conversation between Gansser and Hill, only just a few words before he got out of the buggy.

Q. What part of the conversation did you hear between Gansser and Hill ?

“A. Well, I don’t just remember, it was in regard to the boy’s age, and some little talk whether he owned the route, or whether, he didn’t, but I didn’t pay any attention to it, I don’t think I could remember what it was.

Q. Did Hill say there is a milk route here, but the boy owns it ?

“A. He didn’t tell me, I think he-*told Mr. Gansser that the boy bought all his milk to run the route or something like that, I didn’t hear who he bought it of. That was all practically I heard. He was talking to Gansser, they talked there before they went into the house maybe five minutes. * * *

‘ ‘ Q. All he said in your hearing was, Do you own the milk route ?

“A. I said that.

Q. And he said no ?

“A. He made those remarks, he finished the sentence; he said ‘no, I don’t own it, but I am interested in it.’

Q. That is all you heard during five minutes’ talk there ?

“A. Practically all I could swear to, I heard them talking, but I didn’t understand what it was.”

Redirect examination:

“I heard something about the boy’s age, about whether he was of age or not. He said they had it in the Bible, I heard that, yes.”

Gansser (who was plaintiff’s attorney) testified that he was present when Scott served the declaration, and continued as follows:

Q. At that time was there any conversation- between yourself and Mr. Hill there, or between Scott and Mr. Hill as to the ownership of the milk route ?

“A. Well, I think that Mr. Scott asked him, in fact, I know he asked him, if he owned the milk route, and he said at first no, but I have an interest in it, he said I have an interest in it with the boy, that was what he said.

Q. Anything further on that line ?

A. Why, not a thing that I know of; he said the boy got some part of his milk from him, and that he purchased it from different neighbors around there, I think he said the boy made his home with him. The boy is the son of David by a former wife, he is the one that drives the milk route around the city of Grand Rapids, he is npt married, but stayed at home with his father at that time.”

Cross-examination:

“ Mr. Scott asked Mr. Hill the question in my presence if he owned that milk route. I could not say as to whether it was at my request, he didn’t say I don’t, but he said, ‘no, I am interested in it with the boy,’ that was what he said.”

The record shows that Grover Hill obtained some, perhaps all, the money that was paid for the milk route' and other' property from his father; that he lived at his father’s, who furnished hay, but not grain, for the team. This testimony was contradicted except as to the furnishing of money, which defendant said had been repaid as far as he wanted it.

The only testimony which tends fairly to show that defendant was an owner or part owner of the milk route, or was conducting the business, was the statement that he was a part owner in the testimony of Scott, that he and the boy owned it together, and Gansser’s testimony that he said he was interested in the milk route with the boy. In order to sustain this verdict we must say that the statement: “No, I don’t own it, but I am interested in it; the boy and I together own it,” must make a prima facie case. When we consider the fact that this defendant was evidently aiding his son in establishing himself in business, that he had advanced money to purchase it, and had allowed him to use his team, helped him to purchase a second horse, for which the son is clearly shown to have been indebted to him, what he said to plaintiff’s lawyer, and the officer, is as consistent with defendant’s claim that he was not an owner or part owner in the business as that he was. He was not asked about the conduct of the business, but only whether he owned the milk route, which, if he did, would not prove that his son was acting as his agent or partner in running it. A man who aids his son to start in life for himself by allowing him to use a team and milk route for his own benefit, though owned by the father and not by the son, does not thereby necessarily make his son his agent, nor is there in such case any such presumption, and he may truthfully say that he is interested in it, or if the son owns one horse and the father another, he may say that they own it together, without thereby justifying the claim that he is liable for the torts of the son in conducting the business or the contracts that he may make in connection with it.

While it is true that these statements of the defendant must be construed in the light of the surrounding circumstances and there maybe a difference-of opinion as to whether the question should have gone to the jury, the verdict is so clearly against the weight of the evidence and unjust that a new trial should have been granted on defendant’s motion.

The judgment is reversed, and a new trial ordered.

Grant, C. J., and Moore, Carpenter, and McAlvat, JJ., concurred.


author: Moore, J.

text:
    FRED MACEY CO. v. MACEY.
    , Cancellation of Instruments — Contracts — Corporations — Promoters — Evidence—Sufficiency.
    On a bill by a corporation to cancel a contract entered into by its promoters without the knowledge of new subscribers to the stock, evidence examined, and held, to preponderate in favor of the allegations of the bill and authorize a decree for complainant.
    Appeal from Kent; Wolcott, J.
    Submitted February-25, 1908.
    (Docket No. 131.)
    Decided March 31, 1908.
    Bill by the Fred Macey Company, Limited, against Frank Macey to obtain the cancellation of an agreement for the payment of royalties. From a decree for complainant, defendant appeals.
    Affirmed.

      Taggart, Denison & Wilson, for complainant.

      Crane & Norris, for defendant.
   Moore, J.

This case has been before this court on demurrer to the bill of complaint. The demurrer was overruled; the case is reported in 143 Mich. 138. After the demurrer was overruled the defendant answered and proofs were taken in open court before Honorable Alfred Wolcott, circuit judge, who-rendered a decree in favor of the complainant. Defendant has again appealed to this court.

A reference to the opinion wnen the case was here before will show a full statement of the allegations of the bill of complaint, and will make it unnecessary to restate them here. Judge Wolcott, before whom the case was tried, prepared a written opinion which is as follows:

“Without reviewing the case at length, I am of the opinion that sufficient of the material facts alleged in the bill of complaint have been established by the evidence to entitle the complainant to the relief prayed for in the bill. The royalty contract, called Exhibit D, was not originally a contract with The Fred Macey Company, Limited. It seemed to contemplate an obligation to be assumed by that company, but the company was not a party to it, and could only become bound by it by adoption or ratification, or acceptance of benefits under it, with knowledge of its existence and obligation. The evidence sufficiently shows that the existence of this contract was not known to the new stockholders, nor to the managers of the company, excepting to the three who signed it, until about a year after the company was organized and doing business. The company, through its managers, on. learning of the existence of the contract, or soon thereafter, protested against being bound by it, and sought by negotiation with defendant to be relieved of it. Failing in this, and in October, 1903, it passed a resolution distinctly declaring that it was not liable thereunder.

“Under all the evidence in the case, I think it is apparent that the defendant’s connection.with the organization of the new company was such that he, as well as Fred Macey and Charles W. Matheson, held a fiduciary relation to the new stockholders and the new company that would not permit the defendant' to profit by a secret contract of which the new stockholders had no knowledge. It was a contract which the defendant claims contemplated a large and increasing liability and burden upon the profits of the new company. The prospectus to which the defendant’s name was attached, contained no reference to this contract, but was so framed as to lead a prospective purchaser of stock to believe that the new company was to acquire all the property without debts or liability. The fact that the defendant did not exhibit the prospectus, so far as the evidence shows, and took no active part in securing subscriptions, but left that portion of the work to his associates, gives him no better right to take advantage of the contract.

“ I do not find from the evidence anything that can be considered an acceptance or ratification of the contract on the part of the complainant after it had knowledge of the contract and its terms. ’ The evidence does not show with any certainty the value to the complainant of the use of the patents formerly owned by the defendant, nor of. the value of the foreign patents lost by failure to pay renewal fees. It does not appear that it exceeds the amount drawn by the defendant on the royalty contract.

“In the negotiations prior to bringing suit looking to an adjustment of the matter in dispute, it was recognized by the complainant that the defendant had served in its employ at a less salary than he would have done had it not been for this contract. The evidence furnishes no very certain basis on which to adjust the rights of the parties as to the moneys drawn by the defendant on the contract, the use by complainant of the patents and'the loss of foreign patents. I think it may be considered that the amount drawn by the defendant on the contract is a fair equivalent of the benefit to complainant of the use of his patents and the value of his services above the salary he received, and the loss to him of such foreign patents as have been forfeited.

“It is the opinion of the court that the complainant should have a decree that the contract in question did not become the contract of the complainant, and created no liability against it, that the complainant reassign or return to the defendant the patents now held by it which belong to the defendant, that the defendant’s cross-bill be dismissed, and that the complainant recover costs.”

The law of the case was fully discussed and clearly settled when the case was here before. The questions involved now are purely questions of fact. The record is a very long one. We have careful briefs prepared by eminent counsel. An extension of time was granted for the oral argument. It would profit no one to set out in detail the evidence tending to show the conflicting claims of the parties. The complainant is of course bound to show by a preponderance of the evidence the truth of the allegations made in its bill of complaint. We think it has fully done so.

The decree is affirmed.

Grant, C. J., and Hooker, Carpenter, and Mc-Alvay, JJ., concurred.


author: Blair, J.

text:
    BRESLER v. WAYNE PROBATE JUDGE.
    1. Executors and Administrators — Claims Against Estates— Commission on Claims — Revival—Order—Appealability.
    An order of the judge of probate reviving a commission on claims for the purpose of considering the claim of a creditor who has once before secured such an order for the consideration of a different claim is not appealable.
    2. Same — Revived Commission — Statutory Provisions.
    It is the policy of the statute (section 9373, 3 Comp. Laws) to permit a creditor of an estate to present to a revived commission on claims any claim not theretofore presented, so long as the estate remains open.
    Certiorari to Wayne; Rohnert, J.
    Submitted February 25, 1908.
    (Calendar No. 22,665.)
    Decided March 31, 1908.
    Mandamus by Eva C. Bresler and William E. Metzger, administrators, with the will annexed, of the estate of Joseph M. Bresler, deceased, to compel Edgar O. Durfee, probate judge of Wayne county, to approve a bond on an appeal from an order reviving a commission on claims. There was an order denying the writ, and relators bring certiorari.
    Affirmed.

      Beaumont, Smith & Harris, for relators.

      Dickinson, Stevenson, Cullen, Warren & Butzel, for respondent.
   Blair, J.

On May 21, 1907, the respondent made an order reviving, for the second time and for the same claimant, the commission on claims in the Joseph M. Bresler estate. This was nearly seven years after letters of administration were issued to relators, but the estate has not been closed. Relators duly filed their notice of appeal from this order, together with a sufficient bond on appeal. The respondent, admitting the bond to be sufficient, refused to approve it upon the sole ground that the order made was not appealable.

Relators petitioned the Wayne circuit court for a mandamus to require the respondent to approve the bond. The mandamus was denied November 25, 1907. Thereupon, relators applied to this court, under Supreme Court Rule 12, for certiorari to review the proceedings below. Writ was granted January 6, 1908. Return was made January 18, 1908. The hearing is upon this return.

The sole question for our consideration is, whether an order of the judge of probate reviving the commission on claims for the purpose of considering the claim of a creditor who has once before secured such an order for the consideration of a different claim is an appealable order. That an order based upon a creditor’s first application is not appealable was, in effect, determined by this court in Heavenrich v. Nichols’ Estate, 113 Mich. 508.

In Hart v. Shiawassee Circuit Judge, 56 Mich. 592, it was held that a creditor who had not presented his entire claim to commissioners might, upon discovering the fact after the allowance by the commissioners, have the commission revived for the presentation of the balance of his claim, as a matter of right.

‘ ‘ The right of the creditor who has failed to present his claim in such case, and have it heard before a revived commission or before the judge of probate, any time before the estate is closed, is given by the statute, and the probate court has no discretionary power to deprive him of it.”

There is no distinction in principle between an application to revive a commission to hear a part of a claim, which might, if known, have been presented to the original commissioners, and an application for a second revival to hear a part of a claim, or a distinct claim, which might, if known, have been presented to the commissioners upon the first.revival of the commission.

We think it is the policy of the statute (3 Comp. Laws, § 9373), as indicated by the decisions cited, to permit a creditor to present to a revived commission any claim not theretofore presented, so long as the estate remains open. Since the order reviving the commission is a matter of right which may be made ex parte and without notice, no valid defense will be cut off by such order.

The orders of the circuit and probate courts are affirmed, with costs.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Carpenter, J.

text:
    WILLIAMS v. CITY OF LANSING.
    1. Municipal Corporations — Defective Sidewalk — Personal Injury — Notice of Claim — Designation of Place — Sufficiency.
    .A notice of claim for injury upon a defective sidewalk which describes the place of the injury as a hole or loose plank upon the north side of S. street at a point, to wit, 125 feet west of W. avenue, adjacent to lots 5 and 6 of a certain block, is sufficient, it appearing that the injury occurred in front of one ■ of such lots, though at a point 93 feet west of W. avenue.
    2. Same — Declaration—Variance.
    In a,n action against a city for injuries upon a defective sidewalk, a declaration describing the place of injury as a hole or loose plank upon the north side of S; street at a point, to wit, 125 feet west of W. avenue, adjacent to lots 5 and 6 of a certain block, is not variant from proof that the injury occurred as stated in front of one of the lots at a point 93 feet west of . W. avenue.
    3. Same — Pleading—Amendment—Matters of Form.
    Where, in an action for personal injuries on a defective sidewalk, the declaration inaccurately estimated the distance from a certain street to the place of injury, but defendant’s testimony met plaintiff’s case as completely as if the distance had been correctly estimated, the most that could be asked was that the declaration be amended to correctly state the distance, an amendment the failure to make which was a mere matter of form not entitling defendant to reversal. Section 10270, S Comp. Laws.
    4 Same —Evidence —Experts —Condition op Walk —Subsequent Observations.
    A witness of long experience with timber was properly permitted to testify that he examined the sidewalk in question when it was taken up about six months after the injury complained of, and that the stringers were badly rotted and had not been suitable to hold a nail for a year or more.
    5. Same — Subsequent Observations — Admissibility.
    A witness was properly allowed to point out other defects in the walk in the immediate vicinity, observed by him within a week or two after plaintiff’s injury, as bearing on the question of proper inspection by the city, it appearing that no change had been made between the time of the injury and the witness’ observations.
    6. Same — Condition op Walk.
    The owner of the premises in front of which the injury occurred having testified that he repaired the walk in front of his premises before the date of the injury, it was proper to show by him that at the time and before he made the repairs the walk was in bad condition between his house and a point beyond where the injury occurred, the jury not being obliged to find from his testimony that he properly repaired the walk.
    7. Same— Evidence — Simulation op Lameness — Admissibility.
    Evidence that plaintiff in a personal injury case simulated lameness is immaterial where there is no claim that the injury produced lameness.
    8. Saving Questions por Review — Admissibility op Evidence —Ground not Advanced Below.
    Whether certain stricken testimony should have been allowed to stand because bearing upon plaintiff’s credibility will not be decided where the proposition is not obvious and was not made before nor apprehended by the trial court.
    9. Trial — Instructions—Requests—Propriety op Giving.
    A trial judge may properly decline to give a requested charge which includes an erroneous proposition, and does not commit error in failing to rewrite the request in proper language.

      10. Municipal Corporations — Defective Sidewalks — Personal Injuries — Instructions.
    Where there is nothing in the record justifying the inference that the sidewalk upon which an injury occurred was seldom used or that it was in an unfrequented part of the city, a requested instruction directing, the jury to consider whether it was so situatedin determining whether it was reasonably safe and fit for travel was properly refused.
    Error to Ingham; Wiest, J.
    Submitted February 25, .1908.
    (Docket No. 62.)
    Decided March 31, 1908.
    . Case by Flora M. Williams against the city of Lansing for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    0. J. Hood (L. B. Gardner, of counsel), for appellant.

      Frank L. Dodge {Black, Beasoner & Hayden, of counsel), for appellee.
   Carpenter, J.

It is the claim of plaintiff that while walking on the north side of Saginaw street in front of the third lot west of Wisconsin avenue on the evening of February 24, 1906, she was injured because the sidewalk at that point was out of repair through the negligence of defendant. She brought this suit to recover compensation. It was tried in the lower court before a jury and she there recovered a verdict and judgment. Defendant seeks a reversal of this judgment upon many grounds, which we proceed to discuss.

Place of plaintiff’s injury. In the preliminary notice served by plaintiff upon defendant she states she was injured—

“While passing over the sidewalk on the north side of Saginaw street west * * * when she was at a point, to wit, 125 feet west of Wisconsin avenue, * * * and while passing over that part of the sidewalk adjacent to * * * lot 5 and 6, Englewood Park addition to the city of Lansing, * * * and while in the exercise of due care * * * stepped into a hole or tripped on a loose plank in said walk and fell; that said walk, including especially that portion of said walk adjacent to the premises above described, was badly out of repair; certain boards therein were loose and broken, and the walk was uneven and the stringers thereunder more or less rotted out and broken off.”

' Substantially the same statement is made in the third count of plaintiff’s declaration. The suit was tried twice in the circuit court. It appears that on the first trial, as well as on this trial, the place of the injury was located by plaintiff’s testimony about 15 feet east of the house of one John E. Fields, who resides on lot 6 above mentioned. No objection was made to the introduction of this testimony. But after plaintiff had rested defendant introduced testimony tending to prove that the point where the injury occurred instead of being 125 feet west of Wisconsin avenue was in fact 93 feet. It appears that this distance was not measured by defendant until after the most of plaintiff’s testimony had been introduced on this trial. At the conclusion of the trial defendant insisted that this variance between the proof and the statement in the notice and declaration was fatal. It is not to be inferred from the notice and declaration that the place of injury was precisely 125 feet west of Wisconsin avenue. The notice was not so understood by defendant’s officers. After its receipt they made a careful examination and that examination covered all the sidewalk from Wisconsin avenue to a point more than 125 feet distant therefrom. The notice properly construed means that at a place on said walk where this hole or loose plank was found, somewhere in front of lot 5 or 6 at a distance estimated to be 125 feet west of Wisconsin avenue, plaintiff was injured. Her injury did occur at that place. It transpires however that its distance from Wisconsin avenue was 93 feet instead of 125 feet. This estimated distance, as above stated, was not intended to be precise. It did not mislead. The notice was sufficient, under repeated decisions of this court. See Brown v. City of Owosso, 126 Mich. 91; Wheeler v. City of Detroit, 127 Mich. 329; Tattan v. City of Detroit, 128 Mich. 650; and Barribeau v. City of Detroit, 147 Mich. 119. The contention that there was a variance between the declaration and the testimony is also untenable. The description of the location' of the place of injury in the declaration — especially in the third count of the declaration — is open to the same construction as that above given to the description and the notice. So construed, there is no variance between the declaration and the testimony. Moreover, it should be said that defendant was not in any way prejudiced by the inaccurate estimate of the distance. Its testimony met plaintiff’s case as completely as if the declaration had estimated the distance to be 93 feet instead of 125 feet. Under these circumstances, the most that could be asked was that the declaration be amended by correctly stating the distance. We can say of this as we said in Miller v. Supply Co., 150 Mich. 292:

“ The failure to make that amendment was a mere matter of form which, under section 10270, 3 Comp. Laws, does not entitle defendant to a reversal of the judgment.”

Rulings relative to the admission of testimony.

a. A witness for the plaintiff having had a long experience with timber observed the walk in question when it was taken up about six months after plaintiff’s injury. He was permitted to testify that the stringers were badly rotted and to express his opinion that “they were not suitable to hold a nail for a year or more.” It is contended that this testimony should not have been received;. that because the timber was rotted at the time it was observed by the witness it may not be inferred that it was in bad condition at the time of plaintiff’s injury six months earlier. To this we do not agree. From the opinion testimony of the witness that the stringers had not been suitable to hold a nail for a year or more (and it was proper for him to testify to that opinion, Blank v. Township of Livonia, 79 Mich. 1), that inference could be drawn. The testimony was therefore properly admitted.

b. One Peter J. O’Malley, a witness for plaintiff, was permitted to point out defects in the walk at the place where plaintiff was injured, and in that immediate vicinity, observed by him a week or two after plaintiff’s injury. The trial court stated:

“This testimony is admitted upon the understanding that it will be shown to your satisfaction that there was no change made in the walk; no repairs made in the walk from the time of the accident on the 24th day of February until the time witness is now saying he made the examination, and this testimony * * * being directed to another place than where it is claimed the plaintiff fell is only admitted for the purpose * * * of showing that if the city had inspected its walks within a reasonable time, it would have discovered that condition.”

The testimony warrants the inference, if it does not conclusively prove, that no change had been made in the walk from the time of plaintiff’s injury to the time of the observation of the witness, and the testimony was properly admitted for the reasons above stated. The objection that the witness was permitted to describe other defects than the one which occasioned plaintiff’s injury is answered by Campbell v. City of Kalamazoo, 80 Mich. 655. The objection that the observation was made after the injury is answered by Langworthy v. Township of Green, 88 Mich. 207.

c. John E. Fields, the owner of the property adjacent to which plaintiff was injured, was a witness for the defendant. He testified to repairing the walk in question in front of his premises the latter part of November or the first of December, 1905. On cross-examination plaintiff was permitted to prove by him that at the time and before the time he made the repairs the walk was in bad condition between his hpuse and Wisconsin avenue. It is now contended that this testimony was improperly admitted. The contention rests in part upon grounds already discussed and disapproved. It also rests in part upon the assumption that the jury were bound to find from Mr. Fields’ testimony that at the time testified to by him he properly repaired the walk in question. This assumption is erroneous. Notwithstanding Mr. Fields’ testimony, the jury might have found from all the testimony in this case that he never properly repaired the walk in question. There was therefore no error in the ruling under consideration.

d. Complaint is made because the trial court struck out certain testimony introduced by defendant tending to prove that plaintiff before the last trial simulated lameness. This ruling rested upon the ground that no claim had been made on the part of the plaintiff at either of the trials in the circuit court that the injury complained of occasioned any lameness. This ruling was made after listening to the argument of defendant’s counsel. The ground upon which he contended the testimony to be admissible was that there was in effect a claim on the part of plaintiff that the injury did occasion her lameness. In this we are bound to say he was in error, and the trial court was right. It is now contended that even if there was no claim that the injury occasioned lameness, the testimony was none the less admissible; that it had a tendency to affect plaintiff’s credibility, the same as if she had endeavored to induce witnesses to stay away from court. - Whether this argument is sound or not we shall not undertake to decide. For that involves the determination of a proposition that is by no means obvious, and one that was not made before nor apprehended by the trial court. It is now too late to raise the point. Rogers v. Detroit Savings Bank, 146 Mich. 639.

Many other rulings admitting and excluding testimony are complained of. They have been carefully examined and considered. Some of the rulings complained of were apparently made in its favor. Of the others it may be said either that they were clearly non-prejudicial or that they were correct and in accordance with elementary principles of evidence. None of them merit discussion.

Requests to charge. Defendant alleges error because the trial court did not charge the jury as requested:

“In determining whether such walk was reasonably safe and fit for travel, you have a right to consider the location of the walk; whether in a greatly frequented part of the city or a less traveled place.”

The language above quoted was part of a request proffered by defendant which in effect stated to the jury that plaintiff could not recover unless the alleged injury happened “substantially 125 feet west of Wisconsin avenue.” This latter part of the request was, as stated in the former part of our opinion, erroneous, and, therefore, the trial court could not give the request under. consideration. Nor has the defendant a right to assign error because the trial judge did not rewrite the request in proper language. Moreover, it may be said that defendant was not prejudiced by the refusal to give a request of this nature. It is not to be inferred from the record that this sidewalk was seldom used or that it was in an unfrequented part of the city.

New trial. The verdict and judgment was for the amount of $1,500. It is contended that this verdict was opposed to the weight of the testimony and is excessive. We content ourselves with saying that we think otherwise.

The judgment is affirmed.

Grant, O. J., and Hooker, Moore, and McAlvay, JJ., concurred.


text:
    SMITH v. WERKHEISER.
    1. Fraud — Misrepresentations— Reliance — Diligence — Party Defrauded.
    Where the seller of a newspaper made fraudulent misrepresentations concerning its circulation which were relied upon, the fact that the buyer undertook to verify the statements from the books of the paper, which contained a true statement of the circulation, did not deprive him of his remedy, since a defrauded party does not owe to the party who defrauds him an obligation to use diligence to discover the' fraud.
    2. Same — Damages—Measure.
    The measure of damages for fraud in misrepresenting the circulation and receipts for advertising of a newspaper sold is the difference between the actual value of the paper and the value it would have had had the facts been as represented; and where in such a case one of the sellers testifies that the cash receipts for the year preceding the sale affords a proper measure of the worth of a newspaper and that the buyer was informed of the rule before he purchased, the measure of damages sufficiently appears.
    3. Same — Remedies — Action at Law — Recoupment in Action for Price.
    Where personal property is sold by means of fraudulent misrepresentations, the purchaser may recover his damages in an action at law against the seller, or he may recoup when sued at law for unpaid purchase money whether the suit be brought by the seller or by his assignee, unless such assignee stands in the attitude of a good-faith purchaser of negotiable paper.
    4. Same — Equity—Defenses Available.
    It is a general rule that a party defendant in a suit in equity •may avail himself of every legal defense not inequitable in its nature, and the defense of fraudulent misrepresentations in the sale of personal property is not inequitable.
    5. Same — Remedy in Equity — Cancellation.
    A bill will lie against a purchaser with notice to cancel notes and a chattel mortgage upon which foreclosure is threatened where the notes represent the unpaid portion of the purchase price of goods sold by means of fraudulent misrepresentations and the damages for the fraud equal the amount of the notes, the remedy at law being inadequate.
    Appeal from Genesee; Wiest, J., presiding.
    Submitted February 26, 1908.
    (Docket No. 26.)
    Decided March 31, 1908.
    Bill by William V. Smith and J. Frank Woods against Keturah 0. Werkheiser and others to enjoin the foreclosure of a mortgage, and to set the same aside on the ground of fraud. Defendant Keturah 0. Werkheiser filed an answer in the nature of a cross-bill for the foreclosure of said mortgage. From a decree dismissing the bill, and granting the prayer of the cross-bill, complainants appeal.
    Reversed, and decree entered for complainants.

      Black & Roberts and Brennan & Cook, for complainants.

      Lee & Parker and Brown & Farley, for defendants.
   Carpenter, J.

Defendant Keturah C. Werkheiser is the wife of her co-defendant, William H. Werkheiser, and the mother of the other two defendants, Frank F. Werkheiser and George Werkheiser. In the year 1905 the defendants William EL, Frank F., and George Werkheiser, constituting a partnership under the name of W. EL Werkheiser & Sons, owned and published the Flint Daily News and the Genesee Democrat. November 16, 1905, they sold the same to complainants for the agreed consideration of $13,500. All the consideration except $4,261 was paid in cash. For that amount complainants gave their promissory notes secured by a mortgage on the plant. The mortgage authorized the mortgagee to take possession of the mortgaged property if any part of the same should be sold, assigned, or disposed of. Subsequently, this mortgage was transferred to the first named defendant, Keturah C. Werkheiser. For the purpose of inducing complainants to make said purchase, certain false representations were made by Frank F. Werkheiser. One of those representations was that the paper had a circulation of 4,000, when in fact the circulation was not in excess of 2,500. Another of those false representations related to the amount of advertising done by the paper. Notwithstanding these false representations, complainants chose to keep the property purchased by them, and subsequently sold the same to another purchaser. Shortly after this second sale defendant Keturah threatened to seize said property on her chattel mortgage. Thereupon this suit in equity was instituted whereby complainants sought and obtained a temporary injunction restraining the threatened seizure, and wherein they prayed for a decree canceling said mortgage upon the ground of fraud. Defendant Keturah filed an answer in the nature of a cross-bill praying a decree of foreclosure. The case was heard on pleadings and testimony taken in open court and a decree entered dismissing complainants’ bill and granting defendant relief on her cross-bill.' From that decree an appeal is taken to this court.

Complainants have not disaffirmed the contract, and, therefore, they cannot seek relief upon the ground of rescission. They have affirmed the contract. They contend they were damaged by the fraud of defendants; that the amount of those damages exceed the amount represented by the mortgage in question; that defendant Keturah is not a bona fide holder of that mortgage, and that they have a right to a decree in equity canceling the same. The testimony that the firm of W. H. Werkheiser & Sons misrepresented the circulation is clear and convincing. It is insisted, however, that complainants placed no reliance upon this misrepresentation, but did rely upon an examination of the books which contained a correct statement of the circulation. It is true that complainants did undertake to verify the statements made to them by an examination of the books, but we are convinced that that examination was by no means an exhaustive one. In short, we are bound to say that their examination of the books did not lead complainants to discredit the false statements made to them. It is urged that inasmuch as the books were placed at their disposal complainants were bound to ascertain the truth and to place no reliance upon the false statements that had been made to them. This is not the law. A defrauded party does not owe to the party who defrauds him an obligation to use diligence to discover the fraud. Smith v. McDonald, 139 Mich. 225; Bristol v. Braidwood, 28 Mich. 196. We are therefore of the opinion that it must be said that complainants did rely upon the false representations and that they did therefore have a cause of action against the members of the firm of W. H. Werkheiser & Sons for the alleged fraud. We are also of the opinion that it must be said that defendant Keturah was not a bona fide holder of the mortgage in question. The evidence convinces us that she took the same with knowledge of the fraud practiced by her husband and sons, and with actual notice, too, that complainants would raise the question of fraud to resist payment of the mortgage.

' It is urged that the testimony affords no basis for measuring complainants’ damages. We think otherwise. Defendant Frank F. Werkheiser testified that the cash receipts for the year preceding the sale affords a proper measure of the worth of a newspaper, and that this rule was stated to complainants before they purchased. We know from other testimony how much greater the annual earnings of the plant would have been had the circulation been as represented. In that case (that is, if the circulation had been as represented) the annual earnings the year before the sale would have exceeded the actual earnings by an amount greater than the mortgage indebtedness. This excess of earnings under the rule testified to by Frank F. Werkheiser indicates the difference in value between the property as it was represented to be and as it actually was, and that difference is the measure of complainants’ damages. Page v. Wells, 37 Mich. 415.

Defendants present an ingenious argument in support of their proposition that complainants were not damaged by the fraudulent representations. That argument briefly stated is this. It was represented to complainants by defendants that the gross income of 'the plant for the year preceding the sale was $18,800; that it is established by the testimony that it did earn that year $18,800; that this being so, the false statement relating to the circulation was utterly immaterial and affords no ground for claiming that complainants were damnified. We are forced to reject this argument because in our judgment it is not established by the testimony that the income of the property the year before complainants purchased was $18,800. It is true that some of defendants’ witnesses testified that the income was as represented, but this was not corroborated by a production of the books covering this entire period — and we believe them to have been missing through no fault of complainants — and for that and other reasons we discredit the testimony. We are therefore compelled to reject the argument of defendants under consideration and to say that the testimony does satisfactorily prove that complainants’ damages resulting from the fraud of defendants exceeded the indebtedness secured by the mortgage.

This disposition of the facts brings us to the important legal question in this case, viz., Can complainants resort to a court of equity for relief ? There is no doubt that complainants might recover the damages caused by this fraud by bringing suit in a court of law against the defendants constituting the firm of W. H. Werkheiser & Sons. Nor is there any doubt that if complainants were sued in a court of law for the balance unpaid on the contract they might recoup the damages caused by said fraud. And this would be true whether that suit were brought in the name of the original parties to the fraud or in the name of the assignee of those parties, unless that assignee stood in the attitude of a good-faith purchaser of negotiable paper. ■ We emphasize the foregoing propositions of elementary law by declaring that if defendant Keturah C. Werkheiser had brought suit in a court of law to recover the indebtedness secured by her mortgage, the fraud established in this case would constitute a complete defense. The decree rendered by the learned circuit judge has denied that defense. In other words, complainants, by the decree of the circuit court, have been denied a defense in a court of equity which they might have successfully interposed in a court of law. I think it may be said, as a general' rule, that a party defendant in a suit in equity may avail himself of every legal defense not inequitable in its nature. Certainly the defense under consideration is not inequitable. On the contrary, it is an equitable, as well as a legal, defense, and precisely such a defense was allowed in equity in Gilchrist v. Manning, 54 Mich. 210. But I do not think that our determination of this case should rest entirely upon the proposition that complainants had a right to assert the claim of fraud in defense of the proceeding taken by defendant Keturah to foreclose her mortgage. To rest it upon that proposition alone would give complainants less than they ask, and less, in my judgment, than they are entitled to have; that is, it would not give them a decree canceling the notes and mortgage. When complainants instituted this suit defendant Keturah was threatening to seize the property mortgaged — and this she had a right to do if the mortgage was a valid and enforceable security. At that time complainants’ damages caused by the fraud exceeded the mortgage indebtedness, and therefore an application of said damages in payment of said indebtedness would entirely satisfy the mortgage. Complainants had a right to have those damages so applied. It was the duty of defendant Keturah to recognize this right to so apply said damages and to surrender the mortgage. This duty she refused to perform. But on the contrary, as heretofore stated, she insisted that the mortgage constituted a valid lien on the property described therein and threatened to seize the same. Thereupon this suit was commenced; and a temporary injunction restraining the threatened seizure was prayed for and granted. A more appropriate case for equitable relief cannot well be stated. Here is a chattel mortgage which on its face purports to be a lien on the property therein described. Complainants insist and have a right to insist that because of the fraudulent conduct of the mortgagees the mortgage is not a lien upon that property. It is idle to say that they should have resorted to a court of law for relief. Their remedy at law is entirely inadequate, for the mortgagee was about to proceed to seize the mortgaged property and thereby take a step which violated complainants’ legal and equitable rights. This could have been prevented by no process issued by a court of law. But it could be and was prevented by an injunction issued by a court of equity. The issuance of that writ clearly did not exhaust the remedial authority of the equity court. That writ was issued when the suit was commenced — when the court assumed jurisdiction. It thereupon became and was the duty of that court to adjudicate the controversy and to render a final and appropriate decree — a decree which will afford adequate protection to complainants’ rights — and that, it is clear, will be nothing less than a decree canceling the mortgage in controversy. This conclusion is in harmony with the authorities.

In Carroll v. Rice, Walk. Ch. (Mich.) p. 374, suit was brought in equity to procure the cancellation of certain securities given by complainant for the purchase of property on the ground that said purchase was induced by fraud. It was held that complainant’s delay disentitled him to relief upon the ground of rescission, but that he had a right to have his damages for the fraud determined and when determined “indorsed as so much paid on his bond for the purchase money.”

In Ranney v. Warren, 18 Hun (N. Y.), 11:

“ The plaintiff’s complaint alleged that by defendant’s fraudulent representations he was induced to purchase a farm of the defendant for the sum- of $18,000; that the farm was in fact worth not over $12,000; that if the defendant’s representations had been true, the farm would have been worth $20,000; that the plaintiff paid in cash $5,000, assumed a mortgage of $2,000, and gave a bond and mortgage for $11,000, payable in $1,000 annual installments, one of which he has since paid.”

He prayed that the bond and mortgage might be canceled, and for damages. The lower court dismissed this complaint on the ground that no damages had yet been sustained and that the facts alleged would defeat a recovery on the bond. This judgment was reversed, the court saying:

“Without discussing the correctness of the decision of the learned justice on the mere question of damages, it seems to us that he overlooked the fact that a part of the relief demanded * * * was the equitable relief of the surrender and cancellation of the bond.”

See, also, Parks v. Burbank, 58 Iowa, 707; and Badgett v. Frick & Co., 28 S. C. 176.

Defendants’ counsel cite many authorities which hold that a defrauded party in order to rescind a contract must act with diligence and that he must restore to the party who defrauded him what he received. The propositions declared by these authorities are elementary principles of law. But they have no application to this case. Complainants are not seeking to rescind their contract. They have affirmed their contract and they recognize its binding force. They obtain relief in this case not upon the ground of rescission, but upon the ground that they are entitled to have their damages — damages computed upon the assumption that the contract is affirmed — resulting from defendants’ fraud applied in payment of the •mortgage in suit.

It follows from this reasoning that the decree entered in the circuit court should be reversed and a decree entered in this court in accordance with the prayer in complainants’ bill. Complainants will recover costs of both courts.

Grant, C. J., and Hooker, Moore, and McAlvay, JJ., concurred.