text:
    BLOCH v. DETROIT UNITED RAILWAY.
    1. Street Railways — Negligence — Death — Pedestrians — Evidence — Question for Jury.
    In an action against a street railway company for the negligent death of plaintiff’s decedent, who was struck by defendant’s street car while attempting to get his push cart off the track, but was hindered by a ridge of snow and ice on the side of the track, testimony by defendant’s motorman that he was driving at from 12 to 15 miles per hour, that when he first saw deceased he was a little over half a block away, and supposed he was crossing the street, that when he saw deceased was staying on the track he put on the air, but the car skidded and struck deceased, held, to present a question of fact for the jury as to defendant’s negligence.
    2. Same — Contributory Negligence — Evidence — Question for. Jury.
    As to whether deceased was guilty of contributory negligence in failing to leave his cart and step out of danger, when he found the obstruction interfered with his progress, held, a question of fact for the jury.
    3. Same — Highways and Streets — Snow and Ice — Notice.
    While deceased was entitled to use that part of the street occupied by defendant’s track, he was chargeable with knowledge of the fact that the ridge of snow and ice had been formed outside of the rail, which might render it difficult for him to quickly remove his cart therefrom.
    4. Same — Contributory Negligence — Question for Jury.
    • Whether it was prudent for deceased, in view of the condition in which the track was, and the presence of the ridge of snow and ice near the rail, to use the track on the particular night in question, held, a question of fact for the jury.
    5. Same — Trial—Instructions—Requests to Charge — Assumptions in Request Not Warranted by Evidence.
    The trial court properly refused a requested instruction which assumed that the car was run at such reckless
    On right of motorman to assume that person on track will get out of way, see note in 21 L. R. A. (N. S.) 880. Tate of speed that it could not be stopped within the motorman’s range of vision where there was testimony that the speed was not more than 15 miles per hour and the motorman expected deceased to step off the track when he heard the gong.
    6. Same — Negligence—Duty op Motorman — Instructions.
    An instruction by the trial court that “If you believe that the motorman did all that a reasonably prudent motorman would have done under similar circumstances, that the car skidded and on that account he was not able to stop it, I charge you on this account that the defendant would not be negligent,” held, correct.
    7. Same.
    The trial court properly instructed the jury that it was not incumbent upon- the motorman to stop his car or take measures so to do until he saw that the deceased was not going to get off the track, or was in such a position . that he could not get off the track in time to avoid being struck, since the motorman was not bound to anticipate that a pedestrian would not step off, or be prepared for a contingency so unlikely to happen.
    8. Same — Requests to Charge — Charge as Whole.
    While some of plaintiff’s requests to charge might well have been given, there was no error in refusing same where the charge as a whole fairly presented the claims of the parties and the law applicable thereto.
    9. New Trial — Conflicting Testimony — Weight of Evidence.
    Although there was much conflict in the testimony, it cannot be said, as a matter of law, that the verdict for defendant was so contrary to the weight of the evidence as to warrant this court in setting it aside
    Error to Wayne; Mandell (Henry A.), J.
    Submitted June 16, 1920.
    (Docket No. 35.)
    Decided July 20, 1920.
    Case by Stanley Bloch, administrator de bonis non of the estate of Kaspar Dziwak, deceased, against the Detroit United Railway for the alleged negligent killing of plaintiff’s decedent. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Benedict H. Lee, for appellant.

      Frederic T. Harward and Corliss, Leete & Moody, for appellee.
   Sharpe, J.

Kaspar Dziwak, the deceased, formerly lived on Holbrook avenue in the city of Detroit. In January, 1918, he moved to Belmont avenue. He had left some coal at his former home and on the evening of January 31, 1918, he was removing some of this coal to his Belmont avenue home, using a two-wheel push cart therefor. Much snow had fallen during the month of January, nine inches being on the ground on the 31st, as shown by the records of the weather bureau. The defendant operated a double line of track on Joseph Campau avenue, and by the use of snow plows and scrapers had swept much of the snow off its tracks, thus creating a pile or ridge of snow and ice outside the east rail of its track on which north-bound cars passed. The deceased, going north on this avenue, apparently because of the condition of the rest of the pavement, was pushing his cart between the rails of the north-bound track. After passing Norwalk street, his attention was attracted to the approach of a car going north. He turned his cart to the right and attempted to push it off the track, but it stuck in the ridge of snow. As he gave it a last violent push to get it off the track, the street car struck him, throwing him a distance of 85 or 40 feet, fracturing his skull and causing other injuries, from which he died about five hours later. The plaintiff as administrator brought suit, alleging several grounds of negligence on the part of defendant’s motorman.

At the conclusion of the plaintiff’s proofs, the defendant moved for a directed verdict on the ground that the deceased was guilty of contributory negligence in not leaving the cart and getting himself out of danger. This the court denied. When both parties had rested, the plaintiff requested the court to direct the jury to return a verdict in his favor, claiming that under the proofs the defendant was. guilty of negligence and the plaintiff free from contributory negligence, as matters of law. The court submitted both questions to the jury, who found in favor of the defendant. He also overruled plaintiff’s motion for a new trial, in which was included his claim that the verdict was contrary to the weight of the evidence, and entered a judgment for defendant from which plaintiff appeals

Negligence of Defendant. Plaintiff’s counsel insists that defendant’s motorman was negligent in not seeing deceased until within 114 feet of him, in driving the car at its. maximum speed, in neglecting to have it so under control that it could have been stopped within his range of vision, and in failing to make an effort to stop until so close to deceased that it was impossible to do so. He insists that he was entitled to have the jury so instructed under the rule laid down in Wingert v. Railway, 177 Mich. 199. We' think such an instruction would have been erroneous in view of the testimony of the defendant’s witnesses. The motorman testified that he was driving at from 12 to 15 miles per hour, that when he first saw deceased he was “a little over half a block” away, that he supposed he was crossing the street, that he rang the gong and when he saw deceased was staying on the track and had something ahead of him he “put the air on and the car skidded.” That when a car starts to skid-“it gains speed.” That the cart was practically off the track when deceased was struck. We are of the opinion that an issue of fact for the jury to pass upon was thus presented.

Contributory negligence of Deceased. Defendant’s counsel urge that under the proofs the deceased was guilty of contributory negligence as a matter of law, while plaintiff’s counsel insists that the jury should have been instructed to the contrary. It is apparent that deceased could have gotten into a place of safety with his cart were it not for the obstruction caused by the ridge of ice or snow. He had sufficient time to do so after he heard the gong of the approaching car had he turned to the left where no such obstruction existed. Whether or not, when he found the obstruction interfered with his pushing his cart off the track, it was his duty under the circumstances to himself step' out of danger, clearly raised a question of fact for the jury, if it did not entitle defendant to the instruction asked for. See Levy v. Railway Co., 164 Mich. 572; Redson v. Railroad Co., 120 Mich. 671; Frost v. Railroad Co., 96 Mich. 470; Lyons v. Railway Co., 115 Mich. 114.

Charge of the Court. Many errors are assigned on the refusal of the court to give plaintiff’s requests. There were 29 of them presented. They cover more than 8 pages of the printed record. When applicable to the proofs submitted, it was the duty of the trial court to give them or to so instruct the jury in substance in his own language in order to inform them of the law which they must apply to the facts as they should find them. Many of these requests are quotations from opinions of this court and text-book writers and correctly state propositions of law governing this class of cases. But it is, we believe, the practice of most trial judges to examine the requests and to state the substance of those which he thinks should be given in his own language. Such practice has been approved by this court. Miller v. Sharp, 65 Mich. 21.

It therefore becomes necessary to examine the charge as a whole to ascertain whether the claims of the plaintiff were fairly presented to the jury. As preliminary it may be said that while the deceased was entitled to use that part of the street occupied by defendant’s track, he was chargeable with knowledge of the fact that the ridge of snow and ice had been formed outside the east rail which might render it difficult for him to quickly remove his cart therefrom. We do not feel justified in quoting all of the requests or the entire charge, but will refer to those on which plaintiff’s counsel apparently most strongly relies. The 5th request reads:

“I charge you that street railway companies do not possess an exclusive right to that portion of the high-, way covered by their tracks, but the ordinary traveler has a right to use every portion of the highway, including the space between the rails, until it becomes necessary for him to yield the track to the cars.”

This language is a quotation from the opinion in Ablard v. Railway, 139 Mich. 248. The sentence following reads:

“In using the track of the street railway company, however, it is the duty of the traveler to keep in mind the fact that cars will be likely to follow and overtake him, and to maintain such a reasonable watchfulness for the approach of a car as, under the circumstances of the particular case, an ordinarily prudent man would.”

In charging as to the duty of the deceased, the court, after stating the facts, said:

“All that is required is that he should act as an ordinarily prudent man would under those circumstances. * * * In order to determine that you must consider the character of the night, the temperature, the character of the pavement, the necessity of the work he was engaged in, and why he was there generally. The evidence shows that he was out getting coal from a house that he had occupied, with the purpose of carrying that coal to the house that he was about to occupy; and the evidence shows you something in regard to the character of the pavement and what the weather had done to that pavement; the necessities of the case and those things. You can take into consideration all those things in showing whether or not, when he was moving along upon the railroad track, pushing this hand cart, on this particular night, with conditions as they were, whether he was acting the part of an ordinarily prudent man or otherwise.”

The purpose of a charge is to state the rules of law which the jury should apply to the facts as they may find them, and may always have in view the claims of the parties. From abstract propositions they get little benefit. It is apparent, and the trial court so states in his reasons for denying the motion for a new trial, that no question of the right of the deceased to push his cart along between the rails of defendant’s track was raised by the defendant. Hei said:

“It must be assumed that where there is no denial of the right of a pedestrian to walk in and upon the track of the street railway company, and it is argued to them vigorously by the counsel for plaintiff that he has such a right, that the jury need no further information on that point.”

While he had the abstract right to use the tracks, whether or not, in view of the condition in which the track was and the presence of the ridge of snow and ice near the rail, it was prudent for him to do so, was a question for the jury. Several of the other requests embodied the same rule of law, but were couched in somewhat different language.

Plaintiff’s 9th request reads:

“I charge you that Mr. Dziwak was not bound to take into consideration that the car which struck him might be run at such reckless rate of speed that it could not be stopped within the motorman’s range of vision.”

There was a sharp conflict in the testimony as to the rate of speed at which the car was traveling. The motorman and conductor both testified that it was not running more than 15 miles per hour. This request infers that the rate of speed was reckless. It also loses sight of the fact that the reason assigned by the motorman why he did not sooner make an effort to' stop- was because he did not know deceased was pushing a cart and expected him to step off when he heard the sound of the gong. The jury were instructed:

“If you believe that the motorman did all that a reasonably prudent motorman would have done under similar circumstances, that the car skidded and on that account he was not able to stop it, I charge you on this account that the defendant would not be negligent.”

We think such instruction a correct statement of the law applicable to the proofs and that the request was properly refused. What has been said also applies to plaintiff’s 8th and 11th requests.

Error is assigned on the following portion of the charge:

“There was no duty incumbent upon the motorman to stop his car, or take measures so to do until he saw that the plaintiff was not going to get off the track, or was in such a position that he could not get off the track in time to avoid being struck.”

Counsel fails to distinguish between a team and wagon on the track and a pedestrian. It takes time to remove the former, but the latter by a step or two can place himself in a position of safety. Were motormen required to prepare to stop every time a man appeared on the track, cars would make little progress and there would be no such thing as rapid transit. They are not bound to anticipate that a pedestrian will not step off or to be prepared for a contingency so unlikely to happen. See Griewski v. Light Co., 209 Mich. 10, and cases therein cited.

While some of plaintiff’s requests might well have been given, we are called on to determine whether, taking the charge as a whole, the claims of the parties and the law applicable thereto were fairly presented to the jury. The trial judge hears the arguments of counsel. He is thus advised as to the questions really in dispute and on which the rights of the parties depend. After a careful reading of the entire record, which fully discloses the claims of the respective parties, and the evidence in support thereof, we feel constrained to hold that the jury were properly instructed on the issues material to their decision of the facts in dispute.

Motion for a New Trial. We think the trial judge was justified in denying this motion. As has been said, there was much conflict in the testimony on several of the issues presented. We cannot conclude as a matter of law that the verdict was so contrary to the weight of the evidence as to warrant this court in setting it aside.

Finding no reversible error in the record, the judgment is affirmed.

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


source: Caselaw Access Project

author: Sharpe, J.

license: Public Domain

text:
    CURTIS v. HAYES WHEEL CO.
    1. Master and Servant — Workmen’s Compensation Act — Loss op Foot — Specific Award — Employee Not Entitled to Additional Award for Disability.
    Where an employee suffered the loss of a loot and was awarded the specific compensation therefor under the . workmen’s compensation act (2 Comp. Laws 1915, § -5440),
    On amount recoverable by incapacitated employee under workmen’s compensation acts, see notes in L. R. A. 1916A, 136, 254;. L. R. A. 1917D, 167.
    On construction and effect of workmen’s compensation acts, •generally, see comprehensive notes in L. R. A. 1916A, 23; L. R. A. 1917D, 89. i in the absence of a showing of any disability other than that resulting from the amputation he was not entitled to an additional award for total disability, although he had not fully recovered from the' disability caused by the loss of the foot at the expiration of the period, since the specific compensation allowed by the act for such loss is the limit of the employer’s liability.
    2. Same — Compensation Allowable fob Pebiod Between Acra
    DENT AND AMPUTATION.
    Plaintiff was properly allowed compensation for total disability from the date of the accident to the date of the amputation, in addition to the specific award for the loss of the foot.
    Certiorari to Industrial Accident Board.
    Submitted June 11, 1920.
    (Docket No. 63.)
    Decided July 20, 1920.
    Alonzo Curtis presented his claim for compensation against the Hayes Wheel Company for injuries received in defendant’s employ. From an order granting a petition to reopen an award for permanent disability, defendant and the Michigan Mutual Liability Company, insurer, bring certiorari.
    Reversed, in part, and remanded.

      Beaumont, Smith & Harris (Hal. H. Smith and Albert E. Meder, of counsel), for appellants.

      Charles J. DeLand, for appellee.
   Sharpe, J.

On September 7, 1916, while employed by the Hayes Wheel Company at its Jackson plant as a floor sweeper, the applicant, Alonzo Curtis, then 54 years of age, fell about 6 feet from a runway while pushing a load of sawdust. A fracture of his left leg near the ankle resulted, necessitating the amputation of his left foot between 4 and 5 inches below the knee joint, on October 20, 1916.

A compensation agreement, approved by the board, was entered into, providing for the payment of $6.49 per week for 125 weeks. It recited that the result of the accident was “fracture of right leg above ankle, foot amputated.” Pursuant to said agreement, defendants paid applicant compensation for 125 weeks. In January, 1920, applicant filed a petition with the board alleging that as—

“a result of said injury and the improper care and medical attention given him by respondents * * * he is now and always has been since the time of said accident unable to do manual labor * * * and he believes the fact to be that he * * * always will be unable to perform manual labor of any kind, * * * that since said accident his health has been such that he has not worked a single day and is in fact a helpless invalid and sick man.”

The board was asked to take such matter under consideration and adjudge him such further compensation as he was “in justice and in law entitled to.” The defendants filed an answer denying any further liability. Depositions of the applicant and two physicians were taken and the matter submitted to the board. On March 20,1920, it found the facts as above stated and also—

“(c) That as a result of the operation for the amputation mentioned said applicant has suffered a contraction of the muscles behind the left knee, as well as a shock to his nervous system, and that because of this condition, which is the proximate result of the accident of September 7,1916, said applicant has been totally incapacitated for work in the employment in which he was engaged when injured, viz.: that of a common laborer, such total incapacity dating from the time of the accident, September 7, 1916, and being-present on January 22, 1920, upon which date testimony was taken in the case;
“(d) That in addition to the compensation which he has already received, as for the loss of his left foot, viz.: 125 weeks, $6.49 per week, said applicant should receive compensation computed as follows:
For total disability from tbe date of accident to tbe date of amputation of left foot, October 20,
1918, a period of 6 weeks, at $6.49 per week.. $38.94
And for total disability from March 14, 1919, the end of the period covered by the 125 weeks above mentioned, to January 22, 1920, a period of 44 5/6 weeks, at -$6.49 per week.......... 290.07
Making a total of............................. $329.01
—and that subsequent to January 22, 1920, during the period his condition, as a result of the accident, remains as it was on said date, said applicant should continue to receive compensation as for total disability, and as for partial disability, should hé become legally entitled to compensation as for partial disability, all in accordance with the provisions of the workmen’s compensation act,”

—and awarded applicant compensation in accordance with such finding.

There was no proof supporting the claim of improper care and medical attention, except such inference as might be drawn from the present condition of the limb, and no finding relative thereto was made by the board.

The claim of the defendants is thus stated:

“That portion of the board’s order granting compensation subsequent to the expiration of 125 weeks is illegal, because,
“1. The agreement of October 26, 1916, is final and binding.
“2. The act itself in this case allows only 125 weeks’ compensation, plus the period from the accident to the date of amputation.”

We will consider these claims in the inverse order in which they are stated.

Broadly speaking, the claim of the applicant is that the amputation resulted in “a contraction of the muscles behind the left knee,” that such condition is the proximate result of the accident of September 7th, that it wholly incapacitates him from work and that the allowance by the board as for total incapacity is warranted. This leads to a careful consideration of the several provisions of sections 9 and 10, part 2, of the act (2 Comp. Laws 1915, §'§ 5439, 5440, as amended by Act No. 64, Pub. Acts 1919). Section 9 provides for compensation in cases where the incapacity for ‘work is total. Applicant is entitled to recover under it until the time 'when his foot was amputated. Thereafter his claim comes under the provisions of section 10 which specifically allows “For the loss of a foot, sixty per centum of average weekly wages during one hundred and twenty-five weeks.” As soon as the amputation was performed, he became disabled by the loss of his foot. He suffered no other injury than that which resulted in the amputation. As the act provides specific compensation for the loss of a foot, we are of the opinion that all liability of defendants ceased when payment was made for the full term of 125 weeks. These specific items of compensation fixed by the act must control when no other disability than such as. results from the removal of the member exists. To hold otherwise would, so far as the employer is concerned, render this provision nugatory and of no effect. Should the employee recover from the effects of the amputation in a few weeks and be able to resume his employment, the payments secured to him on account thereof are in no way affected but continue during the term fixed. To hold that when his recovery is not fully completed at the expiration of the stated term he may present a claim for further compensation under section 9, would give him an advantage no]; contemplated in the act. As before stated, the applicant is entitled to recover for total disability up to the time when his foot was removed and, there being no claim of disablement other than that incident to such removal, payment for 125 weeks thereafter.

Our attention is called to the following language in the report of the commission appointed under Act No. 245 of the Public Acts of 1911 to investigate and report a plan recommending legislative action to provide for compensation in such cases:

“Certainty in the amount of the compensation is of the greatest importance because any uncertainty whatever will multiply litigation. A defect of the British insurance act much criticized in Great Britain is that it does not in the end reduce litigation but rather increases it because of the uncertainty of the amounts that are to be received under its schedules by the workman.”

In so far as it seemed possible, the act makes the allowance certain. The degree and duration of the disability and the weekly earnings of the injured party must be determined as matters of fact by the board. When the disability is due to the lack of a member, the act relieves the.board of determining its extent and specifically fixes the s period for which compensation shall be paid. Should the injured party be unable to resume his employment at the expiration of such period, he is but in the same condition as one who has received an allowance for total disability, after the maximum amount provided therefor has been paid.

The conclusion reached is but that stated by Mr. Justice Steere in Addison v. W. E. Wood Co., 207 Mich. 319. We might have contented ourselves with a reference to that decision, but the question here presented was not therein directly involved. The case of Limron v. Blair, 181 Mich. 76, relied on by counsel for applicant, is distinguished in the Addison Case. If it can be said to state a rule of construction at variance with the views herein expressed, it is to that extent overruled.

The conclusion reached renders it unnecessary to consider the other questions presented as to the binding character of the agreement.

The order of the industrial accident board allowing compensation for total disability from the date of the accident to the date of the amputation ($38.94) is affirmed. The order providing for an allowance after the expiration of the 125 weeks is reversed. The case is remanded for such further proceedings as may be necessary.

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


text:
    PEOPLE v. STRZEMPKOWSKI.
    1. Criminal Law — Intoxicating Liquors — Trial—Instructions —Coercion on Jury.
    In a prosecution for the illegal possession of intoxicating liquors, where the jury were unahle to agree, it was error for the trial court to instruct them, in effect, that if they did not agree upon a verdict they would be discharged from further service during the term.
    2. Evidence — Judicial Notice — Coercion op Jury — Criminal Law ■ — Instructions.
    The Supreme Court will take judicial notice of the fact that the discharge of a jury from further service during the term, by the trial judge, because they were unable to agree upon a verdict in a criminal prosecution for the illegal possession of liquor would cause them humiliation.
    Exceptions before judgment from Bay; Houghton (Samuel G.), J.
    Submitted June 17, 1920.
    (Docket No. 84.)
    Decided July 20, 1920.

      Thomas Strzempkowski was convicted of violating the liquor law.
    Beversed.

      Hitchcock & Allison, for appellant.

      William A. Collins, Prosecuting Attorney, for the people.
   Sharpe, J.

The defendant appeals before sentence from a conviction of unlawfully having in his possession a certain quantity of spirituous and intoxicating liquors. But one error is assigned.

The jury were confined during the night and on being brought into court in the morning the following occurred:

“The Clerk: Gentlemen of the jury, have you agreed -upon a verdict?
“A Juror: We are unable to agree.
“The Court: Is your difficulty to agree because it is a case under the prohibition law, or because you have difficulty in deciding certain parts of the case. I would like to have any of you answer that question.
“A Juror: It seems to be a pronounced difference of opinion.
_ “The Court: We have more cases under the prohibition law, and this is a plain case, involving one simple question of fact, and if this jury cannot decide the case why then it will be necessary to dismiss this jury for the term and get another jury. These cases are just alike, and the business of the court is to determine the question one way or the other. If there is an honest disbelief in the facts you are not to blame for it, but here is a question, this case that you consider involves a very plain question of fact for you to_ determine. Now, if this jury is unable to determine such a case, I think it is the duty of the court to dismiss the jury and call another jury, in trying the rest of these cases. These cases must be tried. Now, I am going to give you an opportunity to do some more work on this case. I cannot discharge you this morning. You may retire to the room and consider this case further.”

As the trial was otherwise fair and impartial, we feel much reluctance in reversing this case for the error complained of. The instruction, in effect, informed the jury that if they did not agree upon a verdict they would be discharged from further service during the term. We may take judicial notice that such a procedure would eause humiliation to the members of the jury panel. While impressed from a reading of the record, as was'the circuit judge, that the duty of the jury, under the proofs submitted, was plain, nevertheless a question of fact was presented for them to determine and it was their right to determine it without undue influence on the part of the trial court. There were no such admissions made by the defendant as justified the direction of a verdict nor did the court so charge. Should we affirm this conviction, we must say that such an instruction would be without reversible error in every case in which a jury had deliberated for a considerable time without reaching an agreement.

The rule as stated .in 38 Cyc. p. 1762, is, we think, the only safe one to follow:

“The court may impress upon the jury the propriety and importance of coming to an agreement, and harmonizing their views, state the reasons therefor and tell them it is their duty to try to agree; but should not give instructions having a tendency to coerce the jury into agreeing on a verdict. While the court may reasonably urge an agreement, its discretion does not extend to the limit of coercion.”

See, also, Pierce v. Pierce, 38 Mich. 412; People v. Engle, 118 Mich. 287; People v. De Meaux, 194 Mich. 18.

The verdict must be set aside and a new trial granted.

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


author: Clark, J.

text:
    SALLIOTTE v. DOLLARHITE.
    1. Principal and Agent — Fraud—Fiduciary Relation.
    Where defendant occupied the position of agent and trusted adviser, it was his duty, that his conduct might be reconciled with good faith and honesty, to lay before his principal every fact and inducement connected with or bearing upon a proposed sale of her land, in which he was to profit to the extent of $2,500. ■
    2. Same — Fraud—Intent—Evidence.
    Defendant’s failure to lay before his principal every fact and inducement connected with the sale of her land, in which he profited, held, prima facie evidence of an intent to defraud his principal.
    3. Same — Gift—Fraud.
    Where defendant failed to lay before his principal the fact that he was to profit to the extent of $2,500 in the sale of her land, a gift of $1,000 by her to him in connection therewith, field, fraudulent.
    4. Same — Fraud—Accounting—Fiduciary Relation.
    Where, before his appointment as agent and confidential adviser, defendant purchased of his principal, who was mentally competent, land on which he made a profit of $2,000, the court below was in error in requiring defendant to account for same, since his relation at the time was not fiducial.
    Appeal from Wayne; Perkins (Willis B.), J., presiding.
    Submitted June 11, 1920.
    (Docket No. 57.)
    Decided July 20, 1920.
    Bill by Ignatius J. Salliotte, guardian of Catherine C. Salliotte, against Alexander H. Dollarhite and others for an accounting. From a decree for plaintiff, defendant Dollarhite appeals.
    Modified and affirmed.

      Thomas J. Bresnahan, for plaintiff.

      Welsh, Bebout & Kahn, for appellant.
   Clark, J.

This case is here upon the appeal of the defendant Alexander H. Dollarhite. In March, 1918, appellant contracted to purchase from Catherine C. Salliotte, then a widow of about 65 years, three acres ■of land in Wayne county, the purchase price being $4,500. Six weeks later, at the request of appellant, Mrs. Salliotte conveyed the land to one Cahalan from whom Dollarhite received $6,500, thus making a gain of $2,000. In November, 1913, Mrs. Salliotte gave to appellant a power of attorney to which we shall later allude, and in March, 1914, a second and like written authority was given. Under both writings appellant was to receive $10 per month for his services. On April 28, 1914, Mrs. Salliotte with appellant executed a contract by which appellant was given “the exclusive right to buy from her or her heirs or to sell for her the piece of land owned by her in Ecorse township, Wayne county, Michigan, containing 43 acres, * * * for the price of nine hundred and fifty dollars per acre.” On or about April 30, 1914, appellant contracted to sell the 43 acres to one Russell at a price of $1,050 per acre and at appellant’s direction Mrs. Salliotte conveyed this land to Russell, and from this transaction appellant received, after certain expense items were paid, $2,500. Later appellant received from Mrs. Salliotte of the proceeds of this sale the further sum of $1,000 which appellant claims was given him in return for certain kindness and service, and of which the court said:

“* * * gum 0f one thousand ($1,000.00) dollars appropriated by the said Alexander H. Dollarhite from cashier’s check, dated July 29th, 1914, in the sum of two thousand ($2,000.00) dollars, payable to John A. Russell and indorsed by him to Catherine C. Salliotte, and indorsed by the said Catherine' C. Salliotte to the said Alexander H. Dollarhite, the said Catherine C. Salliotte having received a promissory note of John A. Russell, payable to Alexander H. Dollarhite, of one thousand ($1,000) dollars on account of said check.”

In October, 1914, Mrs. Salliotte was adjudged mentally incompetent -by the probate court of Wayne county and plaintiff, Ignatius J. Salliotte, was appointed her guardian, who later caused the bill of complaint to be filed alleging that at the time of the aforesaid transactions Mrs. Salliotte was mentally weak and incompetent and unable to know and understand the extent and value of her property, that at such time appellant was her agent and adviser, that his relation to her was that of a fiduciary; and that appellant fraudulently took advantage of his position and of the mental incompetency with the result as above set forth.

Accounting, injunction and other relief were prayed. After answer and hearing the trial court found:

“* * * that the material facts charged in said bill of complaint are true and that the plaintiff is entitled to the relief therein prayed. And this court does further find that at the time of the transaction stated in said bill of complaint, the said Catherine C. Salliotte was mentally incompetent and that the said defendant, Alexander H. Dollarhite, while acting as attorney in fact and in a fiduciary capacity towards the said Catherine C. Salliotte, took undue advantage of her situation and appropriated moneys belonging to the said Catherine C. Salliotte to his own use and profit.”

It was decreed that defendant, Alexander H. Dollarhite, pay to plaintiff the sum of $2,000 received from the sale of the 3-acre tract, the sum of $2,500 received from the sale of the 43-acre tract and the sum of $1,000 claimed to have been donated by Mrs. Salliotte, in all $5,500.

The record contains nearly 200 pages of testimony relating largely to the claimed mental incoinpetency, fiducial relation and fraud. Mrs. Salliotte was sworn and testified at length. No one will be helped by a discussion of the merits. We have read the record carefully and agree with the trial court that in receiving the $2,500 item and the $1,000 item the appellant violated his duty as a fiduciary and took advantage of a confidence inspired by his position. The authority given to this agent, Dollarhite, by his principal, Mrs. Salliotte, as stated in the first power of attorney was:

“* * * to receive funds of all personal property, to execute leases generally, to purchase or lease for business, to manage real estate, to transact and defend suits, to compromise claims, to compromise or extend the time of payment of debts, to collect rents or eject tenants, to sign and indorse bills, to sell goods and collect proceeds, and indorse checks, bills and notes. Deposit money and draw checks in the principal's name, to act generally.”

The language of the second power of attorney is substantially the same. Authority to sell real estate is not set forth in the writings but the real estate was a subject-matter of the agency. Appellant was to manage the real estate, lease the same, collect rents, eject tenants, execute leases and to act generally. The* relation was fiducial. The evidence shows that appellant was the trusted adviser of Mrs. Salliotte. It was his duty, that his conduct might be reconciled with good faith and honesty, to lay before his principal every fact and inducement connected with or bearing upon the proposed sale of the 43-acre tract. This he did not do. Prima, facie this transaction is indicative of an intent to defraud Mrs. Salliotte, his principal. Moore v. Mandlebaum, 8 Mich., at page 442; Beedle v. Crane, 91 Mich. 429; 31 Cyc. p. 1442; and this is also true of the transaction respecting the $1,000 claimed as a gift. See 31 Cyc. p. 1442. The trial court was right in requiring defendant Dollarhite to account to plaintiff for the items of $2,500 and $1,000.

We do not find that at the time of the sale of the 3-acre tract, the $2,000 item, appellant was the agent of Mrs. Salliotte. The relation was not then fiducial. Nor do we agree with the trial court that at the time of making of the land contracts with appellant and the deeds to Cahalan and Russell Mrs. Salliotte was mentally incompetent. We think she was competent. But suppose that she was mentally incompetent as counsel so earnestly contends. On that ground alone could plaintiff have decree that appellant Dollarhite . account for the sum of $2,000 and the further sum of $2,500 which he received because Mrs. Salliotte went through the form of executing contracts and deeds? It is unnecessary to decide this question and we do not decide it, but we suggest to counsel that, stripped to its essentials, the bill of complaint in this cause which has been heard seeks a decree for money, a money judgment, as commonly said; that the deed of a mentally incompetent person is not void but voidable ; and that it may be ratified by such person when restored to competency and by his heirs and representatives after his death. By a suit for damages or a money decree, involving an affirmance or ratification of voidable deeds, may the guardian ratify such deeds? Is not this question answered by the following?

“Under our statutes, the guardian can only dispose of the real estate of his incompetent ward through proceedings in, and authority granted by, the probate court. To hold that the guardian may ratify a conveyance by a suit based upon the theory that title had passed to the grantee who was liable to. respond in damages because of the inadequacy of consideration, would result in permitting the guardian to do indirectly what he could not do directly and would open up an easy way for disposing of the real estate of incompetent persons. We are satisfied that the guardian has no authority to ratify the conveyances of his ward, either directly or indirectly.” King v. Sipley, 166 Mich. 262 (34 L. R. A. [N. S.] 1058, Ann. Cas. 1912D, 702). See, also, 22 Cyc. p. 1174.

It follows that the provisions of the decree for recovery of the item of $2,000 will be eliminated and the amount of recovery reduced to $3,500. As modified, the decree is. affirmed. Said defendant will recover costs of this court.

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


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    BLACK v. PARKE, DAVIS & CO.
    1. Negligence — Contributory Negligence — Personal Injuries— Excessive Speed — Evidence—Question for Jury.
    In an action for personal injuries to plaintiff, an errand boy 15 years of age, who while riding a bicycle south on the west side of a city street was struck at a street intersection by defendant’s truck as it turned to go west, the court properly refused to instruct the jury that plaintiff was guilty of contributory negligence as a matter of law, for riding at an excessive rate of speed, where there was testimony that defendant’s truck had come from a point about 50 feet south of the street intersection and had crossed the street and made the turn to the point of collision while plaintiff had come from a point 50 feet north of the intersecting street.
    2. Same — Law of Road — Automobiles.
    It was not the duty of plaintiff to anticipate that the driver
    On liability of municipal corporation for collision of automobile and bicycle, see note in 28 L. R. A. (N. S.) 944.
    On reciprocal duty of driver of automobile and child riding bicycle in street, see note in L. R. A. 1918A, 255. of the truck would cut across the corner and drive on the wrong side of the street. '
    3. Same — Violation of Law of Road — Duty of Drives — Presumptions.
    One who violates the “law of the road” by driving on the wrong side assumes the risk of such an experiment and is required to use greater care than if he had kept on the right side, and if a collision takes place the presumption is against him.
    4. Same — Trial—Instructions.
    The trial court was not in error in instructing the jury that plaintiff’s age, intelligence, and experience were to he considered.
    5. Appeal and Error — Instructions in General Charge — Refusal of Requested Instruction. j
    Where the trial judge, in the charge as á whole, correctly instructed the jury regarding plaintiff’s duty, under the circumstances of the case, it was not error to instruct them that plaintiff had a right to assume that the defendant would obey the law of the road without also instructing them that this would not relieve him from exercising care in crossing a street intersection.
    Error to Wayne; Webster (Arthur), J.
    Submitted June 11, 1920.
    (Docket No. 71.)
    Decided July 20, 1920.
    Case by Charles H. Black, guardian of George A. Stafford, an infant, against Parke, Davis & Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Charles M. Woodruff (George J. Haines, of counsel), for appellant.
    S. Homer Ferguson (Frank B. Ferguson, of counsel) , for appellee.
   Clark, J.

Plaintiff, an errand boy 15 years of age, riding a bicycle in the daytime, was going south on the west side of Clifford street in Detroit. Going north on the opposite side of the street an employee of defendant was driving one of its trucks, who, reaching the intersection of Clifford street and Adams avenue, guided the truck to the left to go west on Adams and collided with plaintiff. Plaintiff was injured and the suit he brought resulted in verdict and judgment in his favor.

Defendant here urges that the trial court was in error in refusing to instruct the jury that plaintiff was guilty of contributory negligence as a matter of law. Plaintiff and the driver of the truck were the only witnesses sworn. Defendant’s negligence as claimed by plaintiff in his testimony consisted principally in driving the truck while turning into Adams avenue at an excessive and unlawful speed, and in driving on the wrong side of the street in making the turn, and it was also said that defendant as to turning gave no warning or signal. The statute in force at the time (Act No. 818, Pub. Acts 1909,' § 7) as to motor vehicles provided that—

“* * * within the corporate limits of all cities and villages, the rate of speed shall not be more than ten miles an hour in the business portion of any such city, or village, and not greater than 15 miles an hour in other portions thereof, subject, however, to the other provisions of this act. Upon approaching an intersecting highway, a bridge, dam, sharp curve or steep descent, and also in traversing such intersecting highways, bridge, dam, curve or descent, a person operating a motor vehicle shall have it under control and operate it at such a speed as is reasonable and proper, having regard to the traffic then on such highway and the safety of the public.”

An ordinance of the city provided:

“No vehicle shall cross a main thoroughfare or street upon which there is a street car track, or make a turn thereon, at a rate of speed exceeding one-half the legal speed limit,” and
“Drivers or operators of vehicles before turning shall make sure that such movement can be made in safety, and give a plain, visible signal to others upon the street by extending the hand or otherwise.”

There were street car tracks on Clifford street. It is not shown that there were such tracks on Adams avenue. Whether the character of that portion of the city was such that it was subject to the statutory 10-mile limit or to' the 15-mile limit was a . question of fact submitted to the jury.

Defendant’s driver did not see plaintiff before the collision. Plaintiff first saw the truck when he was about 50 feet north of Adams avenue and when the truck was about. 50 feet south of said street intersection.

Plaintiff’s claimed negligence is that he exceeded a reasonable and lawful rate of speed and failed before crossing Adams avenue to observe more closely defendant’s truck.

We think it unnecessary to discuss the question raised by counsel as to whether the plaintiff riding a bicycle was subject to the city ordinance respecting motor vehicles or vehicles. Plaintiff testified that he was going “under ten miles an hour” and “not over eight mile an hour.” The driver of the truck testified that in turning over the car tracks and across Clifford street into the intersecting Adams avenue his rate of speed did not exceed five miles per hour and there was testimony that the truck had come from a point about 50 feet south of the street intersection, and had crossed Clifford street and made the turn to the point of collision, said to be the center of Adams avenue, while plaintiff had come south from a point 50 feet north of Adams avenue. In this regard, under all of the evidence herein reviewed, the question of plaintiff’s contributory negligence was properly submitted to the jury. See recent opinion written by Justice Sharpe, Ward v. De Young, 210 Mich. 67.

After first seeing the truck plaintiff testified that he did not again observe it until he was hit and he said: ‘T seen him out of the corner of my eye. I did not have a chance to-get away.” Explaining the accident, plaintiff said:

“Well, he came up the street, and instead of going up to the center of the street and turning across, if he had went up to the center of the street, I would •have been past the place where he hit me, I would have been on the opposite side of the street.”

It was not the duty of plaintiff to anticipate that the driver of the truck would cut across the comer and drive on the wrong side of the street. Winckowski v. Dodge, 183 Mich. 303. And in the above case Justice Steere for the court said:

“One who violates the ‘law of the road’ by driving on the wrong side assumes, the risk of such an experiment and is required to use greater care than if he had kept on the right side, * * * and if a collision takes place in such circumstances, the presumption is against the party who is on the wrong side.”

The trial court was right in declining to say that plaintiff was guilty of contributory negligence as a matter of law.

In passing upon the question of plaintiff’s contributory negligence the jury was instructed that his age, intelligence, and experience were to be considered. Of this defendant complains. This was not erroneous. See Harris v. Crawley, 170 Mich., at pages 385, 386, where cases and authorities are reviewed by Justice Stone.

It is said that the court erred in instructing the jury that the plaintiff had a right to assume that the defendant would obey the law of the road without also instructing that this would not relieve plaintiff from exercising care in crossing a street intersection. In the charge as a whole the jury was instructed suffieiently regarding plaintiffs duty under the circumstances of the case.

We have considered the questions raised. The judgment is affirmed.

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


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    KEYS v. KEYS.
    1. Divorce — Custody of Child.
    In proceedings for a divorce granted to .plaintiff husband, the conclusion of the court below that the best interests of the child will be subserved by awarding his custody to plaintiff, held, sustained by the record.
    2. Same — Modification of Decree — Jurisdiction—Statutes.
    Under the provisions of 3 Comp. Laws 1915, § 11408, the court below had. the right to entertain a motion for a rehearing, which was, in effect, a petition to revise and alter a decree respecting the care, custody, and maintenance of a minor child.
    3. Same — Evidence—Decree Justified by Record.
    That the child, nearly 13 years of age, was examined by the court without being sworn, is insufficient to reverse a decree awarding the custody of said child to the father, where the decree is justified by the record.
    Appeal from Wayne; Codd. (George P.), J.
    Submitted June 9, 1920.
    (Docket No. 13.)
    Decided July 20, 1920.
    Bill by A. Russel Keys against Katherine G. Keys for a divorce. There was a decree for plaintiff and the custody of a child was given him. Defendant afterwards petitioned for the partial custody of the child, and the decree was so modified. From an order rescinding such modification on petition for rehearing, defendant appeals.
    Affirmed.

      Frederic T. Harward, for plaintiff.

      Warren, Cady, Ladd & Hill (Justin R. Whiting, of counsel), for defendant.
   Clark, J.

In October, 1910, in the Wayn.e circuit, plaintiff, A. Russel Keys, was granted a divorce from defendant, Katherine G. Keys.' The decree states that the property rights of the parties were settled by agreement and that the bill was taken as confessed by the defendant. The plaintiff was given the custody of the child, John Godfrey Keys, then nearly 4 years of age, until he should reach the age of 21 years, or until the further order of the court. The decree also provided for defendant’s seeing the child from time to time as the parties might agree. Since the entry of the decree defendant has been a resident of Georgia. She married again in 1912, her name now being Katherine G. Strachan. In the interval between the entry of the decree and defendant’s second marriage plaintiff twice permitted the child to visit defendant in Georgia, the plaintiff claiming that this was upon the assurance of an aunt of defendant, residing in Georgia, that the child would have proper care and attention. After defendant’s second marriage no further trips to Georgia were made by the child. Several years later plaintiff also married. In June, 1918, defendant filed in said court and cause a petition to modify the decree by providing that defendant have the right to have the child visit her at her home in Georgia, or at such other place as the court may determine, for two months in each year. Upon hearing the decree was modified as prayed. Plaintiff then filed a motion for rehearing praying that the order modifying the decree be set aside. Another hearing was had. Testimony was taken. The child, then nearly 13 years of age, seemingly not sworn, examined by the court, stated that he preferred to stay with his father and did not want to go with his mother.

The prayer of plaintiff’s petition was granted. The order modifying the decree was set aside and the decree, as originally entered, allowed to stand. Defendant has appealed. We have examined the record with care, and concludé, as did the trial court, that the best interests of the child will be subserved by awarding his custody to the father. We are of the opinion that no good would follow a reiteration of the testimony in the case and therefore omit a discussion of the merits.

Complaint is made that the court was wrong in granting the motion for a rehearing. The motion was in effect a petition to revise and alter the decree respecting the care, custody and maintenance of the child which the court had a right to entertain under the provisions of 3 Comp. Laws 1915, § 11408.

Complaint is also made of the examination of the child by the court and of the reversal of the order made upon the first hearing. Language used in Stone v. Stone, 161 Mich., at page 566, is applicable here:

“There is abundance of testimony to warrant the finding of the trial judge, that is neither hearsay nor incompetent. Neither the fact that he examined the children unsworn, nor the fact that he was influenced by the conduct of the complainant in or out of court, nor his preliminary order as to custody of the children, will justify the reversal of a decree or order which is plainly right as shown by the record alone, .and this is such a case.”

The order appealed from is affirmed. No costs will follow.

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


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    STEWART v. WOODMERE CEMETERY ASS’N.
    1. Negligence — Personal Injuries — Defective Premises — Duty of Owner.
    In an action for personal injuries by the owner of a lot in defendant’s cemetery caused by an alleged defective cover over a concrete drain inlet in a roadway, testimony by plaintiff that the cover was of improper and defective construction, not suited to the purpose, easily removed from place, likely to be displaced by travelers, and that the roadway was used for travel, held, to make the question of defendant’s negligence one of fact for the jury, since defendant owed to persons lawfully upon the premises the duty to have such parts thereof as were used for travel in a reasonably safe condition.
    2. Same — Contributory Negligence — Question for Jury.
    The fact that plaintiff went across lots to reach her lot would not render her guilty of contributory negligence, as a matter of law.
    3. Same — Defective Premises — Defect in Construction — Notice.
    it was not necessary, in order to recover, for plaintiff to show that defendant had notice, either actual or constructive, of the claimed defective condition of the roadway, since the rule requiring notice is not applicable where the defect is one in construction, as distinguished from a mere condition of repair.
    4. Evidence — Subsequent Condition of Defective Roadway — ■ Admissibility.
    Testimony of the condition of a drain inlet and cover as found by witness nearly a year after the accident sued upon, where there was testimony by other witnesses, although somewhat indefinite, that there had been no change in the condition, held, admissible.
    Error to Wayne; Webster (Clyde I.), J.
    Submitted June 16, 1920.
    (Docket No. 23.)
    Decided July 20, 1920.
    Case by Anna B. Stewart against the Woodmere Cemetery Association for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Sibley, Armstrong, McNair & Mead, for appellant.

      John G. Cross, for appellee.
   Clark, J.

Plaintiff owned a lot in defendant’s cemetery. Throughout the cemetery roadways were provided by which the lots might be reached. To reach her lot the plaintiff, instead of following the roadway, went across lots. Very largely if not wholly within the roadway was a concrete drain inlet, 20 inches by 20 inches inside measurement and about three feet in depth. Over this inlet was a board cover held together by cleats on the under side. The cover was not fastened. The top of the inlet was level with the roadway. In her journey plaintiff stepped on this board, drain cover which tipped and she fell into the inlet and was injured. Plaintiff had verdict and judgment.

Defendant here relies upon three grounds of error, principally:

1. That a verdict for defendant should have been directed, it being free -from negligence and the plaintiff being guilty of contributory negligence as a matter of law. Defendant offered no evidence. Plaintiff had testimony that the board cover was of improper and defective construction, not suited to the purpose, easily removed from place, likely to be displaced by travelers using the roadway, and that the roadway was used for travel. Defendant owed to persons lawfully upon the premises the duty to have such parts thereof as were used for travel in a reasonably safe condition, therefore the testimony offered by plaintiff made the question of defendant’s negligence one of fact for the jury. The plaintiff claimed that the accident happened in the roadway where and when the defendant owed to her the duty aforesaid and that as to the injury suffered by her while on the roadway she wa-s free from negligence. Defendant claimed that the plaintiff was guilty of contributory negligence as a matter of law in leaving the roadway and going across lots. The trial court submitted to the jury the question of plaintiff’s contributory negligence. Of this defendant may not complain.

2. That it was not shown that defendant had notice, either actual or constructive, of the claimed defective condition of the roadway. The rule requiring notice is not applied where the defect is one in construction as distinguished from a mere condition of repair. See 28 Cyc. p. 1386; 13 R. C. L. p. 339.

3. That there was error in the admission of testimony. A witness for plaintiff- was permitted to testify of the condition of the drain inlet and cover as-found by him nearly a year after the accident upon assurance of counsel for plaintiff that by other witnesses it would be shown that in the meantime there-had been no change in the condition. The testimony of such witnesses was taken, and while somewhat indefinite, we think, as did the trial court, that it was sufficient to make admissible the testimony • complained of.

Other questions briefly referred to by counsel have been considered. No reversible error appearing, the judgment is affirmed.

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


text:
    ST. CLAIR v. A. H. MEYER MUSIC HOUSE.
    1. Master and Servant — Workmen’s Compensation Act — Personal Injuries — Industrial Accident Board Trier oe Pacts.
    On certiorari to review an award of the industrial accident board, under the workmen’s compensation act, if there is any evidence to support its finding the award must be affirmed, since the board is the trier of the facts.
    2. Same — Predisposed by Disease Immaterial — Accidental Injuries.
    That plaintiff was predisposed, because of disease, to the form of attack (cerebral hemorrhage) suffered by him, is immaterial, and has nothing to do with the question whether what befell him is to be regarded as an accident or not.
    3. Same — Cerebral Hemorrhage — Accidental Injuries.
    Where plaintiff suffered a cerebral hemorrhage resulting in partial paralysis while he was engaged in heavy and unusual lifting because of insufficient help in delivering a piano upstairs, in the course of his employment, evidence, held, to justify a finding of the industrial accident board that plaintiff’s condition was due tq an accident within the meaning of the act. Steere and Brooke, JJ„ dissenting.
    Certiorari to Industrial Accident Board;
    submitted June 15, 1920.
    (Docket No. 7.)
    Decided July 20, 1920.
    Clayton St. Clair presented his claim for compensation against the A. H. Meyer Music House for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Travelers Insurance Company, insurer, bring certiorari.
    Affirmed.

      Vandeveer & Foster, for appellants.

      Fred T. Miles, for appellee.
    As to what is an accident and personal injury within the meaning of workmen’s compensation acts, see notes in L. R. A. 1916A, 29, 227; L. R. A. 1917D, 103; L. R. A. 1918F, 867.
    On conclusiveness of findings of commission as to what is an accident or personal injury under workmen’s compensation acts, see note in L. R. A. 1918F, 877. '
   Clark, J.

The defendant A. H. Meyer Music House, a corporation, was engaged in the business of selling and delivering pianos and other musical instruments. Applicant, having 35 years’ experience in that business, was in its employ and he and one other employee, Frank G. Swift, were directed to deliver a piano to a customer of said defendant. The piano was to be delivered to the second floor of a building reached by a steep, narrow stairway of about 20 steps. The truck upon which the piano was carried was backed to the front, of the building, the piano being upon a piano skid, which resembles a sled, the runners being polished to slide easily. To the front end of the skid a rope was attached which looped from the front end of the right runner to the front end of the left runner. The rope was used in lifting. In going up the stairs applicant was in front of the piano and Mr. Swift behind. Applicant was assisted by a lady who “was not very strong,” and a man who “was very weak,” both inexperienced in that work. A minister and a lady of the neighborhood, likewise inexperienced, attempted to assist Mr. Swift. With such assistance as they had, applicant lifting in front and Mr. Swift pushing behind, the piano was taken up the stairs step by step. "When the last step was reached the piano was pulled and pushed forward until its center was over the last stair riser, when it was “broken over” to rest flat on the floor. Applicant testified that the last pull was the hardest, that the piano weighed about 900 pounds, and that just as he was making the last pull he felt something give way in his head. He immediately became ill. A physician was called who found a rupture of a blood vessel, an artery, of the brain — cerebral hemorrhage — causing and resulting in paralysis of the left side. The physician testified that the rupture of the blood vessel was due to high blood pressure caused by the unusual exertion, the lift, sudden straining, and that applicant’s arteries were weakened by disease, arterio sclerosis. There was an award in favor of applicant, and it is here the sole contention of defendants, plaintiffs in certiorari, that there was no evidence of accidental injury arising out of and in the course of applicant’s employment.

The fact that applicant was predisposed because of disease to this form of attack is immaterial and has nothing to do with the question whether what befell him is to be regarded as an accident or not. See La Veck v. Parke, Davis & Co., 190 Mich., at page 607.

Justice Stone, speaking for the court in Guthrie v. Shipbuilding Co., 200 Mich., at page 360, said:

“That an injury received by a workman while engaged in his usual work, without intervention of something unusual or fortuitous, is not an accident, is now so well established by our decisions, that the proposition needs no discussion.”

See, also, Schroetke v. Jackson-Church Co., 193 Mich., at page 622 (L. R. A. 1917D, 64):

Bringing this case, within the rule as above stated the board found unusual and fortuitous circumstances:

“This applicant was lifting at a disadvantage. He was doing unusual work; in fact, two men were practically attempting to do the work which ordinarily required the efforts of four or five. They were working under unusual apprehension on account of the lack of help and the inexperience of the women and men who were endeavoring to assist them. The injury occurred at a point where it was necessary to put forth the greatest effort and at a time when apprehension of danger was evidently the greatest. * * * The applicant was. called upon at this particular point to put forth unusual effort under unusual and fortuitous circumstances and the unusual happened.”

The board is the trier of the facts. If there is evidence supporting the finding of unusual and fortuitous circumstances above quoted the award must be affirmed.

Mr. Swift testified:
“Q. When you ordinarily deliver a piano upstairs, whether or not it is customary to take more than two experienced men to deliver the piano?
“A. Why, we usually do, yes.
“Q. How many do you usually have?
“A. We generally have four good strong men.
“Q. Experienced?
“A. Four or five, yes, that know what to do.
“Q. And so far as, you know Mr. St. Clair didn’t know either that the piano was to be delivered upstairs ?
“A. Well, I don’t know that he did; we might have talked it over when we got near there. I think he mentioned something about, when we got there, near there, he thought it would have to go upstairs.
“Q. What did you do when you got there?
“A. Well, when we first got there we run the truck in as near as we could to the place; I think I backed up to the stoop, and we went to see the lady, Mrs. Blok, told her we had her piano for her and wanted to deliver it, and then we commenced to investigate to see about getting some help, it was quite a job, so she said she knew of some people that would help us, there was a lady there named Mrs. Strick, she got her husband over there, then she says, T will go and call the dominie’ of the Reformed 'church I think, and so we got him too. Finally we got started upstairs.
“Q. At the time you got started did you have sufficient help? •
“A. Why, no, I don’t believe we did have sufficient help as we should have to get the piano up.
“Q. Why not?
“A. Well, Mr. Strick, the gentleman who helped in front with Mrs. Blok, he is a very weak man, he wasn’t strong, and I didn’t know that so much then as I did after we got up there.
“Q. Then you started to move the piano upstairs?
“A. Yes. When we started the first step we have , to lift that on and when you get that some ways up you shove it up until about an inch or so of the step, then they give it another raise and when you raise it you give it another push until you get it so it is on the incline of the stairway, get it level with the stairway.
“Q. Ordinarily you have more than one man working at the front end of the piano?
“A. Oh, yes, usually three.
“Q. And usually three?
“A. Three men.
“Q. And at that time you had practically Mr. St. Clair doing the work?
“A. Mr. St. Clair had to do the heft of the business, because there was one lady that wasn’t very strong. Mrs. Blok did what she could do but couldn’t do much and Mr. Strick wasn’t a strong man.
“Q. And Mr. St. Clair took and handled both ropes?
“A. Yes, sir, and they were doing as much as they could.
“Q. And they would have to stand back of Mr. St. Clair, wouldn’t they?
“A. Yes.
“Q. Because there wasn’t any room there?
"A. You see when you would lift, it was narrow; the stairway wasn’t wide enough to get to the sides, and you couldn’t get in there, you had to stand in front of the piano and then you got hold of the ropes and lifted.
“Q. All right, let us get to the top of the steps.
‘■‘A. When we got to the top step we pushed you see, then we pushed it, then we would have to be careful to get within an inch of the other so when we raised it again it” wouldn’t catch under the stairway.
“Q. Well, practically, Mr. St. Clair was doing all that alone because the other people were standing back of him because there wasn’t room enough?
“A. They were doing what they could but couldn’t get in, but they did what they could.
“Q. Whether or not this condition was usual or whether all this time Mr. St. Clair had to exert himself more than he ordinarily did?
“A. I think he had the hardest job than he had for a long time while he worked with me, that is my candid opinion; it was the hottest time of the day.
“Q. Tell just what happened when you got to the top step.
“A. Well, when we got to the top step we shoved the piano into the room.
“Q. Before you shoved the piano into the room.
“A. Oh, you mean over the break? When you get to the last break where you go over you got to get all the strength you got and hang to it to raise it over; it is a heavy thing to do, and anyone who ever handled them knows that, and it is the same in front, you have to lift in front to get it over after you get it started and get on to the end of the skid, then they help below, then they shove a little further and then all get up, that is the way we went, I know that. Hard job.
“Q. Now, on'this particular occasion was it a harder job than usual?
“A. Well, yes.
“Q. To get it over the top and make the break?
“A. Well, I tell you it was a good big job, because we didn’t have the help we should have.”

Applicant testified:

“Q. Well, was there anything out of the ordinary, unusual, about that particular lift, anything different from any of the others?
“A. Well, I will tell you; no, nothing only in one ’ way there is, another way there isn’t; you never draw one up a stairway but every minute you are uneasy about it until you get it to the landing, you are uneasy, afraid it is. going to get away from you. * * ^
“Q. Why was the last lift any different than the others then?
“A. Well, it is always a hard lift when you go up', a stairway, the last step is hard one; you see when you make the last raise, then you are lifting, in a way you are lifting really the whole weight of the piano, simply because here in the piano, the back end is on the stairway, you have got to lift harder, really the whole thing, to make the last raise.
“Q. Weil, was it any harder lift than the others?
“A. I think it is, I think it always is.”

Making what happened to applicant an accident within the meaning of the act, the testimony quoted affords a basis for a finding of unusual and fortuitous '.circumstances, viz.: That applicant and Mr. Swift, with some inexperienced help, were doing work usually done by four or five experienced men; that applicant at the front of the piano was doing nearly, if not quite, work usually done by three experienced men; that applicant’s usual anxiety or apprehension that piano might fall was aggravated and made unusual by the lack of sufficient experienced help may be inferred; and that in making the last, hard lift, breaking the piano over the top of the stairs, there was unusual lifting and straining, exertion and apprehension, resulting in the unusual — cerebral hemorrhage. This view is supported by authority. Grove v. Michigan Paper Co., 184 Mich. 449; La Veck v. Parke, Davis & Co., supra; Schroetke v. Jackson-Church Co., supra; Robbins v. Engine Co., 191 Mich. 122; Schanning v. Castings Co., 203 Mich. 612; Crosby v. Thorp, Hawley & Co., 206 Mich. 250.

The award is affirmed.

Fellows, Stone, Bird, and Sharpe, JJ., concurred with Clark, J.

Brooke, J. I can find in the record no evidence of. an accidental injury to claimant.

Steere, J., concurred with Brooke, J.

Moore, C. J., did not sit.


author: Brooke, J.

text:
    PIERSON v. SMITH.

      1. Contracts — Building Contract — Evidence — Submission of Uncontroverted Question to Jury.
    In an action for a claimed balance due on a contract for the construction of a barn, where the testimony of both parties shows that it was agreed that the proposed barn should be a duplicate, except as to proportions, of one built in the neighborhood, the trial court was in error in submitting to the jury the question as to whether such agreement was made.
    2. Trial — Instructions—Assumption Contrary to Testimony.
    Where there was testimony that plaintiff never substantially completed the building, it was error for the trial court, in his instructions to the jury, to assume that the plaintiff had substantially complied with the terms of his contract.
    3. Damages — Quantum Meruit — Breach of Contract.
    In an action on the quantum meruit for the construction of a barn which was never completed according to contract, the measure of damages is the reasonable value of the building, of which defendant took possession, not exceeding the contract price, less the reasonable cost of completing the building according to contract.
    4. Trial — Instructions—Duty of Trial Judge.
    It is the duty of the court to instruct the jury correctly upon pertinent matters of law, even when not requested so to do.
    5. Same — Abstract Questions — Instructions.
    An instruction by the court which invites the jury to formulate their verdict from abstract notions of what is right between man and man is objectionable.
    Error to Ionia; Davis (Frank D. M.), J.
    Submitted June 11, 1920.
    (Docket No. 61.)
    Decided July 20, 1920.
    Assumpsit by Rolland L. Pierson against Leroy Smith on a building contract. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Hawley & Eldred, for appellant.

      Wait & Colwell, for appellee.
    The parties to this action entered into the following contract:
    “Memorandum of an agreement, made and entered into this tenth day of January, 1916, between R. L. Pierson, of Ionia, Michigan, party of the first part, and Leroy Smith of the same place, party of the second part.
    “Witnesseth, that said R. L. Pierson agrees to build a barn for said Leroy Smith, as follows:
    “That said R. L. Pierson, party of the first part shall build, construct, finish and complete the said bam according to the plans and specifications in a satisfactory manner and ready for use.
    “And the said Leroy Smith, party of the second part, agrees to do all teamwork necessary in the constructing of the said barn and agrees to furnish all water necessary in the cement work. •
    “And the said Leroy Smith, party of the second part, further agrees to furnish certain lumber described as follows: such lumber as is now contained in old bam and shed now on the ground and also to furnish some timber now standing in the woods.
    “And the said Leroy Smith, party of the second part, agrees to pay or cause to be paid unto the said R. L. Pierson, party of the first part, the sum of three thousand ($3,000) dollars, in consideration of said barn being so built, erected and finished as hereinbefore stated, payments to be made as follows:
    “That the said Leroy Smith, party of the second part, agrees to pay unto the said R. L. Pierson, party of the first part, from time to time such sums as shall not exceed seventy-five (75) per cent, of the actual cost of materials and labor at that time expended by the said R. L. Pierson in the constructing, erecting and finishing of the said barn.

      “In witness whereof, said parties have hereunto set their hands and seals this tenth day of January, 1916.
    “R. L. Pierson (Seal)
    “Leroy Smith (Seal)”
    It will be noted that the contract is silent as to the time within which it should be performed. There is, however, evidence in the record which indicates that the parties were in- substantial agreement upon that point and that the barn was to be completed and ready to receive the hay harvested in the summer of 1916. The contract provides that the party of the first part should “finish and complete said bam according to the plans and specifications in a satisfactory manner and ready for use.” It is agreed that no plans and specifications were at any time furnished by the party of the first part. . It is, however, claimed by defendant and admitted by plaintiff that the barn contracted for was to be a duplicate of a barn near defendant’s farm, owned by one Charles Chamberlain, except as to proportions.
    The plaintiff entered upon the performance of the contract early in the month of April, but the job was not completed until some time in July. Indeed, according to the evidence offered on behalf of the defendant, it was never substantially completed by plaintiff.
    The contract is silent as to the construction of a silo. A silo was attached to the Chamberlain barn and one was built attached to the bam in question in the case at bar. It was the contention of the plaintiff that the cost of such construction was to be considered as an ‘extra,’ while the defendant claims that the cost thereof was included in the contract price of $3,000.
    Growing out of this dispute, there was a difference as to the - amount of money paid by defendant and received by, plaintiff, defendant claiming to have paid $2,703.51,'^and plaintiff admitting the receipt of $2,-456, the difference being the sum paid by defendant for material for the silo.
    It was the claim of the defendant that the plaintiff had not substantially performed the contract in many details, among them the following:
    (1) The basement walls of the barn including wing walls, side walls and silo walls were constructed with mortar in which too little cement was used and said walls are already cracked and are rotten and cracking and falling to pieces..
    (2) The posts in the basement were not set, placed and erected in a good and workmanlike manner and many of them are too short and are of no sufficient and 'adequate support to said building.
    (3) Many of the sills and cross-sills in the basement are rotten and are defective and should not have been used.
    (4) The stanchions in the steer barn were not cemented in as required by contract.
    (5) The box stalls in said barn are constructed of the poorest cull lumber for material and are not built in a good and workmanlike manner.
    (6) The plaintiff failed and refused to put in a grain spout and box into the basement as required by contract.
    (7) No braces or posts in the straw barn as required by contract.
    (8) No straw chute from the straw barn to the basement, as required by contract.
    (9) No double board or plank on the floor of the straw barn, as required by contract.
    (10) Failure to construct cement floors in the basement as required by contract, with proper and' sufficient gutters and drainage for said floors.
    (11) Failure to construct the frame work of said barn in a good and workmanlike manner, in that the pin holes in the posts in the said framework were bored too near and close to the edge of said posts, causing many of them to split out, the building to spread, and the roofs thereof to sag.'
    (12) Cutting the plate on the south side too short, and not fastening it to the framework.
    (13) Failure to put in ladders a,t each end of the bam to the peak thereof.

      (14) ' Failure to construct ladders from the barn floor to the mows, as required by contract.
    (15) Failure to properly construct the supply tank at said barn.
    (16) Failure to paint said barn or any part thereof.
    These constituted the principal defects alleged by the defendant, but there are others not enumerated.
    It was plaintiff’s claim that the building was completed in a good and workmanlike manner and that such defects as appeared were due to the fact that defendant made use of the structure before it was ready. Plaintiff claimed a balance due of $973, while the defendant, by way of set-off and recoupment, claimed that there was due him the sum of $179. The jury to whom the case was submitted awarded plaintiff a verdict in the sum of $733.4i.
    A motion for a new trial was made, based solely upon the alleged errors in instructions of the court to the jury. A year later, and before the first motion was denied, a second motion for a new trial was. filed, based upon the further grounds that, since the filing of the first motion, very serious defects had developed in the building — such defects as to render the building “absolutely worthless and valueless unless large expense is incurred in remedying the same and which will involve the demolition of said structures or material portions of the same in order to so remedy such defects.” These motions were both denied.
    The case is now reviewed in this court under some 17 assignments of error, the first 11 of which are directed to certain portions of the charge as given, and the last 6 of which are based upon the denial of a new trial and the reasons therefor given by the learned circuit judge.
   Brooke, J.

(after stating the facts). In instructing the jury, the learned circuit judge said:

“So the first thing for you to determine, gentlemen, in this case is, What was the contract? Were all of the details, in a general way, understood by the parties? What did their minds meet upon? Was it to be a barn without reference to any details, without reference to any other bam as is claimed by the plaintiff in this case, or was it to be a barn built with a silo similar to Mr. Chamberlain’s bam, varying in its width, length and proportion?”

It is the claim of the defendant with reference to this instruction that the parties were in substantial accord upon this, point and that the barn to be constructed by plaintiff for defendant was to be similar to the Chamberlain barn, varying only in proportion. We are satisfied that this contention is correct and that the agreement between the parties as to the character of the structure to be erected took the place of the “plans and specifications” mentioned in the contract, but never prepared. The question, therefore, as to whether such agreement was made between the parties should not have been submitted to the jury. We reach this conclusion largely upon the testimony of the plaintiff, who testified:

“A. The first talk we ever had I think the first day I was over there, we drove to see a barn built the year before for Chas. Chamberlain. The first thing •he said to me about a barn was he wanted me to duplicate that bam as near as I could; that he was satisfied with that job, didn’t expect to get anything better.”

Many other expressions of the plaintiff scattered through the record indicate that the minds of the parties met upon this basic question.

Upon the measure of damages, the court instructed the jury as follows:

“If you find that the defendant is correct in his theory he was to pay for the team work and that is to be deducted from the amount you find otherwise to be due from $3,000 yet unpaid. There seems to be a difference between the two parties of some $300, one claiming $2,703.51, and the other $2,456; that it comes about from figuring on this silo. So it is a matter for you to take into consideration when you find the amount that was yet unpaid upon the contract price of $3,000, then you will, if you find in favor of the defendant, as to his theory, you should deduct from that amount what you. find it would be worth to put the barn back, or what he has expended in trying to put the barn in such shape it was contemplated it should be.
“On the theory of the defendant in this case, he claims that the barn has not been completed and asks the court to charge the jury that the plaintiff cannot recover in this case. I take another view of it. I think when he took possession of the bam he took it upon himself to go to work and repair as .he did. It was his duty to minimize the damages as much as possible, make them as light as possible, if he had reason to believe that the barn could be nut in shape to use it, he had a right to do it.
“It was contemplated, beyond dispute, in this case, by both parties that the bam would be in shape for haying time. If it was in condition- and in such shape it was safe to use, he had a right to use it. If it was not in a safe shape to hold crops contemplated it should hold, then the other party should be held responsible in such damages as defendant has suffered by reason of its not being up to what the law requires a man-should do, or what the parties had agreed upon should be done. The jury has no right to make a contract different from what the parties have made. It is your duty to ascertain what the contract and arrangements were. Consider all of the evidence and arrive at what you believe to be a reasonable conclusion as to what arrangements the parties made. If they don’t meet upon a certain proposition, then the law says what the duty of each is.
“It is the duty of the plaintiff to build in a workmanlike manner the barn, and within a reasonable time in view of all that had been talked of and in view of what was desired by the defendant and what the plaintiff understood he wanted, and unless interrupted or deterred from carrying that out within that time by something beyond his control he would have no excuse or reason to offer for not having complied with it; if he thereby left the building in such shape it became injured or weakened because of the use on the part of the defendant, then he must make it good to the defendant.
“So you have the right and it is your duty to inquire into the reas.ons of its being deferred; whether consented to on the part of the defendant; did the plaintiff exert himself, use his best endeavors to fulfill the contract that the law required he should fulfill within a reasonable time if they don’t agree upon it, which the law required him to fulfill but if they did agree upon it, that it was to be done before haying, he should have done it.
“If he left it in that condition, it became weakened by loading\hay into the barn, it becomes his duty to make it good, any defects that might exist. He was in law bound to do a workmanlike job and if he has failed to do it and put the other man to any expense or damage by reason of his not doing it, that should be deducted, whatever'that damage is you find to be, should be deducted from what otherwise might be due to him upon the contract.”

It is strongly urged on the part of the defendant that in this instruction the court was in error in that it is assumed that the plaintiff had substantially complied with the terms of his contract and that the building, if completed according to the contract, would have been worth no more than $3,000. And it is asserted that the question of substantial performance should have been submitted to the jury as a question of fact, and that the measure of damages should have been placed before them upon the theory that the defendant' was entitled to the building he had contracted for, even if such building would be worth, when completed according to the contract, much more than the contract price. The record contains testimony introduced on the part of the plaintiff that the barn could not be constructed for $3,000, but would cost about $3,800. We are constrained to aeree with the contention of the defendant upon this point. In the case of Eaton v. Gladwell, 121 Mich. 444, the rule of damages in a case similar to the one at bar is laid down as follows:

“The true rule to be applied in a case like the present, where it appears that, at the time the defendant took possession, the building could not be made to comply with the contract without its entire demolition, and was of less value than the one contracted 'for, is the value of the building as so completed, not exceeding the contract price, less the damages sustained by the defendant by reason of plaintiffs’ failure to perform their contract. These damages consist of: (1) The rental value during the time the completion was unnecessarily delayed. (2) The difference between the value of the building’ actually tendered and that contracted to be built, less the difference between the agreed price of such contracted building and the reasonable value of that which was built; or, in other words, the damages are the difference between the house contracted for, if worth more than the price agreed to be paid, and such price. This would give the defendant the benefit of his contract.”

A similar question arose in Germain v. School District, 158 Mich. 214, where it was said, in commenting upon an instruction substantially the same as the one given in this case:

“The vice of this instruction is that it assumes that all the plaintiff was bound to do was to furnish a building worth the contract price, whereas he was bound to furnish a building according to the plans and specifications, even though it were •worth many hundreds of dollars more than the contract price. Where a contract is nonapportionable, as this one is, and the plaintiff does not complete, as this plaintiff did not, his recovery must be upon the quantum meruit. His measure of damages would be the reasonable value of the building as defendant took possession of it, not exceeding the contract price and the value of the extras, less what it would reasonably cost to complete it and make it comply with the contract and specifications.”

See, also, Snider v. Building Co., 139 Minn. 413 (167 N. W. 108), where the question here involved is fully discussed.

Upon this point, it is urged by the plaintiff that no requests (except a request for direction of a verdict in his behalf) were presented by defendant. This is true; yet it is, nevertheless, the duty of the court to instruct .the jury correctly upon pertinent matters of law, even when not requested so to do. Jageriskey v. Railway, 163 Mich. 631.

Particular emphasis is placed by appellant upon the following alleged erroneous instruction:

“The most that I can say to you now in this case is take it under your consideration. It has taken some time to put in all of this testimony, but take it under your consideration and render such a verdict as you believe will be fair between these parties, one that will accord, in your judgment with the evidence in the case.
“In the first place, it is the duty of the plaintiff to satisfy you by a preponderance of evidence that his. claim is a just one, a true one, that his claim is honest and based upon the evidence in the case. If you are satisfied by a preponderance of evidence that his claim, is of that character then you can render a verdict in his favor. If the evidence is equally balanced upon that proposition, then he is not entitled to recover, but if it in the slightest degree outweighs the testimony produced by the defendant, he should recover such sum as you find to be his due.”

And it is said that by the use of this language the court invited the jury to formulate their verdict from abstract notions of what is right between man and man. We are of the opinion that the quoted paragraph is objectionable under our decisions. Roby Lumber Co. v. Gray, 73 Mich. 356; Hyde v. Shank, 77 Mich. 517.

Other errors are assigned upon portions of the' charge and upon the denial of the motion for a new trial. They require no consideration.

The judgment is reversed, with costs of both courts, and a new trial is awarded.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    DECORATORS SUPPLY CO. v. CHAUSSEE.
    Corporations — Foreign Corporations — Licenses —• Interstate Commerce.
    In an action by a foreign corporation not licensed to do business in Michigan under Act No. 310, Pub. Acts 1907, as amended, on a contract to furnish defendant certain ornamental plaster work for a school building, where the record discloses that there are concerns in Michigan furnishing ornamental plaster work, and it is apparent that there are mechanics in the State competent to erect such material, there is no such “intrinsic or peculiar quality or inherent complexity” in the article sold as would prevent its sale unless erected by the vendor, and the trial court properly held that plaintiff could not recover because it was an undomesticated foreign corporation engaged in intrastate business.
    Error to Chippewa; Fead (Louis H.), J.
    Submitted June 6, 1920.
    (Docket No. 92.)
    Decided July 20, 1920.
    Assumpsit by the Decorators Supply Company .•against Louis E. Chaussee and another on a building •contract. Judgment for defendants. Plaintiff brings •error.
    Affirmed.
    On validity of contracts made by foreign corporations which have not complied with statutory conditions of the right to do business in the State, see notes in 24 L. R. A. 315; 1 L. R. A. (N. S.) 1041.

      Davidson & Hudson, for appellant.

      John E. Tracy, for appellees.
   Brooke, J.

The plaintiff is a foreign corporation, not licensed to do business in Michigan under Act No. 310, Pub. Acts 1907 (2 Comp. Laws 1915, § 9063 et seq.), and acts amendatory thereto. It entered into a contract with the defendant, by the terms of which it agreed to furnish to defendant certain ornamental plaster work, to be used in the high school building at Sault Ste. Marie, Michigan.

By the terms of the contract, the material described was to be “furnished, delivered and set in place by us. All plain run covés by another contractor.” The contract was later modified so that, “instead of stock cornices in the entrance and vestibule these cornices were run in place; instead of a stock proscenium in the study room this cornice was run in place; instead of stock mouldings on the walls and ceilings of the museum these were run in place.” This modification of the contract was adopted after the original contract was made, but before the material was made up. The factory cost of the material used was approximately $325 and the cost of erection about $148. One local man was used to assist the factory representative in the erection of the material. The record discloses that there are concerns, in at least two or three cities in Michigan furnishing ornamental plaster work in competition with the plaintiff; and it is apparent that there are mechanics in the State entirely competent to erect such material. We think it is equally apparent that there is no such “intrinsic or peculiar quality or inherent complexity” in the article sold in the case at bar as would prevent its sale unless erected by the vendor.

The question here.involved has been before the court several times in recent years, and a rediscussion of it will serve no good purpose. Power Specialty Co. v. Michigan Power Co., 190 Mich. 699; Sturtevant Co. v. Leitelt Iron Works, 196 Mich. 552. In both of these cases the case of Browning v. City of Waycross, 233 U. S. 16 (34 Sup. Ct. Rep. 578), is cited and discussed; and. the cases were determined largely upon that authority.

Since the decision of the cases above referred to, the Supreme Court of the United States has had the question before it in two other cases, General Railway Signal Co. v. Virginia, 246 U. S. 500 (38 Sup. Ct. Rep. 360), and York Manufacturing Co. v. Colley, 247 U. S. 21 (38 Sup. Ct. Rep. 430). An examination of these later decisions convinces us that there has been no modification of the doctrine announced in the Way-cross Case.

The circuit judge was correct in holding that the plaintiff cannot succeed because it was an undomesticated foreign corporation, engaged in intrastate business.

The judgment is affirmed.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.