author: Hooker, C. J.

text:
    NICHOLSON v. CITY OF DETROIT.
    1. Municipal Corporations — Negligence of Officers — Governmental Functions — Liability.
    In the absence of statute, a municipality is not liable for injuries received through the negligence of its officers while acting in the capacity of governmental agents.
    2. Same.
    No exception to this rule exists merely because the neglect charged relates to the control of real property the title to' which is in the municipality.
    3. Same.
    And it is unimportant whether the statute under which the functions are exercised is permissive or mandatory, or whether it in terms confers the power or imposes the duty on the officers of the city or on the city itself.
    4. Same — Respondeat Superior.
    The rule of respondeat superior cannot be so applied as to render one liable for an act for which he would not have been liable had he himself performed it.
    5. Same — Public Health — Maintenance of Hospitals.
    2 Gomp. Laws, §§ 4444, 4448, 4459, make it the duty of city boards of health, whenever smallpox or other disease dangerous to the public health shall break out, to provide hospitals for the sick and infected, and also authorize the establishment of permanent hospitals by cities for such purpose. Defendant city, through its officers, employed plaintiff’s intestate to. tear down a building that had been used as a smallpox hospital, and to construct another building adjacent thereto for the same purpose, both being located on land owned by the city. No measures were taken to disinfect the premises, nor was the intestate warned of the danger of infection; and he contracted the smallpox and died. t Held, that the city was not liable for the negligence of its officers, as it was acting in a governmental capacity.
    Error to Wayne; Donovan, J.
    Submitted November 12, 1901.
    Decided January 7, 1902.

      Case by Ada Nicholson, administratrix of the estate of Alfred Cope, deceased, against the city of Detroit, for negligently causing the death of plaintiff’s intestate. From a judgment for defendant on demurrer to the declaration,' plaintiff brings error.
    Affirmed.

      Alfred Lucking and Hoioard B. Bloomer, for appellant.

      Timothy E. Tarsney, for appellee.
   Hooker, C. J.

The plaintiff is administratrix of one Alfred Cope, and commenced this action by declaration, under the statute, to recover, for the benefit of Cope’s widow and children, for the negligent causing of his death. The declaration is in two counts, the first of which alleges, in substance, that the city was possessed, in 1894, of a lot containing 40 acres of land, upon which was an old building that had been used by the defendant as a hospital for contagious diseases, particularly smallpox. In November, 1894, the defendant began the erection of a new building designed for a similar use, and employed the plaintiff’s intestate, who was a carpenter, to work upon the same. The new building was located in close proximity to the old one, and it is alleged that said old building and the surrounding grounds were infected with smallpox germs, making it dangerous for any person to be in of upon them. The plaintiff’s intestate was attacked by smallpox, and, after an illness of a month’s duration, died from the disease. It is alleged that the defendant was negligent in not using reasonable care to furnish him a safe place to work, and in not warning him against said dangers, and in not constructing the new building at a greater distance from the old one, and in not causing the old building and the ground to be disinfected. The second count alleges that the deceased was employed to tear down the old building, and that while so engaged he was exposed to the smallpox, and by reason thereof was seized with said disease and died. This count was otherwise similar to the first, except that it alleges that defendant assured the deceased that it was safe for him to work upon and about said building. A demurrer was interposed, which upon the hearing was sustained; and, plaintiff not having amended the declaration within the time prescribed by the order, judgment followed, and the plaintiff has brought the case to this court by writ of error. The only question presented by counsel is whether a municipality is liable for the injury or death of an employé resulting from circumstances like those alleged, and therefore it is the only one discussed.

The law imposes upon the city the duty of taking measures for the preservation of the public health, through a board of health, whose powers and duties are statutory. Sections 376-381, Detroit Charter 1893. See, also, 2 Comp. Laws 1897, §§ 4410-4467. Section 4448 makes it a duty of the board of health of the township to provide a hospital or place of reception whenever smallpox, or any other disease dangerous to the public health, shall break out in any township, and section 4444 authorizes the establishment of permanent hospitals by the townships, while section 4459 makes the law applicable to cities; and it seems to be admitted that the city acted under these statutes.

It is the well-settled rule that the State is not liable to private persons who suffer injuries through the negligence of its officers; and the rule extends to townships and cities, while in the performance of State functions, imposed upon them by law. This subject is fully discussed in City of Detroit v. Blackeby, 21 Mich. 84 (4 Am. Rep. 450). It was there held that cities are governmental agencies, and that their officers “are in no such sense municipal agents that their negligence is the neglect of the municipality; nor will their misconduct be chargeable against them, unless the act complained of be either authorized or ratified.” And in a large number of cases it has been held that there is no such liability on the part of such governmental agency unless it has been imposed by statute, and in such case it is necessarily limited by the statute. Commissioners of Highways of Niles v. Martin, 4 Mich. 557 (69 Am. Dec. 333); Township of Leoni v. Taylor, 20 Mich. 148; Larkin v. County of Saginaw, 11 Mich. 88 (82 Am. Dec. 63); Fowle v. Common Council of Alexandria, 3 Pet. 398; Black v. City of Columbia, 19 S. C. 412 (45 Am. Rep. 785); Gilboy v. City of Detroit, 115 Mich. 121 (73 N. W. 128); Maxmilian v. Mayor, etc., of New York, 62 N. Y. 160 (20 Am. Rep. 468); Webb v. Detroit Board of Health, 116 Mich. 516 (74 N. W. 734, 72 Am. St. Rep. 541); Carrington v. City of St. Louis, 89 Mo. 209 (1 S. W. 240, 58 Am. Rep. 108); Eastman v. Meredith, 36 N. H. 298 (72 Am. Dec. 302).

Counsel for the plaintiff seem to admit the general rule that a municipality is not liable for- injuries received through the negligence of its officers while acting in the capacity of governmental agents. They allege, however, that the city owned the premises, and contracted with the -deceased, and owed the duty of -warning him against hidden dangers; that the city is subject to the same responsibility to warn those upon its land against pitfalls that other landowners are subject to; and that the obligation under its contract for constructing a house upon its land entitles its employes to a safe place to work, as a contract between private persons does. There is some plausibility in the suggestion, but we think it fallacious. In a moral sense, those acting for the State owe the same duty towards persons employed upon its behalf as that due from the citizen. They should also be as careful to provide safe appliances and a safe place for employes as a private person should. But if they do not, the sufferer is remediless, as against the State, for the reason that it has provided no remedy, although the State itself own the land when the injury occurs, and make the contract of •employment. It is an open question how far it is wise or just to subject citizens to taxation to pay for injuries caused by the negligence of public officers. Such officers are usually the representatives of the injured person as well as of other taxpayers. It is as much his duty to select careful and prudent officers as it is that of the taxpayer who is called upon to. help pay for his hurt, who, perhaps, may be a woman or child, and has had no voice in the selection of the negligent officer, and therefore no duty in the premises. The rule of public liability in such cases offers such opportunities and inducements for abuse that there is some ground for doubting the expediency of relieving individuals at public expense in any such case; and, as has been said, it is only in cases where the legislature has authorized it that the obligation can be enforced against the public, instead of the individual to whose misconduct the injury is due, and who should, in justice, be primarily liable in all cases. As said by Mr. Justice Campbell in O’Leary v. Board of Fire & Water Com’rs of Marquette, 79 Mich. 286 (44 N. W. 610, 7 L. R. A. 172, 19 Am. St. Rep. 173):

“It is for the legislature to determine how far, if at all,, a body whose negligence, if it is so called, is imputed, and in no sense actual, shall be made subject to suit for the misconduct of its employes. There are many cases where such liability does not exist, except against the immediate individual wrongdoer. The person injured is not harmed any more where there are several persons liable than where there is only one. Imputed negligence is purely a question of public policy, and subject to legislative regulation. No one can be bound by this record except the immediate parties to it, and it would be improper to go beyond it.”

The action of the city in obtaining and owning the land and erecting the hospital is as much an act of a governmental agent as the transportation of a patient thereto and his treatment therein would be. It is land owned for governmental purposes, by governmental authority, by a governmental agency, it is true, but not for the private purposes of the municipality as such, and for purposes in which the State has no interest. The title to the land is in the city, but so it would be were the interest merely a leasehold for the shortest practicable period. It is inconceivable that changes made upon premises owned by the city under this statute would stand upon any other footing than premises rented for a month by the city for a similar purpose. In either instance it might be necessary to adapt the premises to the purposes contemplated by law, and in both instances it might be necessary to employ men for the purpose. In either case, if done by the board of health, this would be done in the performance of an imposed duty, and the city would be acting solely in the capacity of governmental agent. Therefore the doctrine of respondeat superior would have no application. It was said by Chief Justice Montgomery in Murray v. Village of Grass Lake, 125 Mich. 2 (83 N. W. 995):

“The next section authorizes the council to appoint a board of health. It would appear that that was done in this case. It also appears that the action taken by the council was taken on the recommendation of the board of health. The action of the council was doubtless taken under authority of the section quoted. The fact that the wrong was committed by the officers of the village does not fix the responsibility upon the municipality, if the wrongful act was done under authority of a general statute, in the attempt to perform a public service not distinctively local or corporate. 2 Dill. Mun. Corp. (4th Ed.) § 974. It is apparently the established rule that local health officers, acting under a general statute of the State conferring their powers, are not performing corporate functions, but are representatives of the State, and that the municipality is not liable for the acts of such boards, either of misfeasance or nonfeasance.”

Whether or not the village owned the land upon which the dam was built at the outlet of the lake, whereby the level of the lake was raised, does not appear. Presumably, it did, or acquired the right to use land for the purpose upon some terms. As in this case, something had to be done upon the land owned or controlled by the city or village to accomplish the duty imposed. Had some one been injured in the construction of the dam, through negligence, the case would have been parallel to the present case. In such a case, would it be proper to hold that the city was not liable for injuries resulting to one from the raising of the lake, and liable to another for injuries arising from the act of obstructing the water whereby the lake was raised ? Could it be said that either was not the act of a governmental agent in the performance of a public duty ?

In 2 Dill. Mun. Corp. (4th Ed.) § 977, the subject of the liability of municipal corporations for injuries resulting from maladministration of the health laws is discussed, and numerous cases cited. It has been held that a city was not liable to a nonpaying patient for injuries resulting from the neglect or misconduct of hospital officers or servants (Murtaugh v. City of St. Louis, 44 Mo. 479), or for the unskillful treatment of a resident physician (Sherbourne v. Yuba Co., 21 Cal. 113 [81 Am. Dec. 151]); or for failure to take proper precautions to prevent the spread of the smallpox, or to notify the plaintiff, who was required to assist in the removal of the corpse of a person who had died of this disease, of the dangerous nature of the service required (Ogg v. City of Lansing, 35 Iowa, 495 [14 Am. Rep. 499]); or where a person caught the smallpox from a nurse who was permitted to leave the hospital without being properly disinfected (Brown v. Inhabitants of Vinalhaven, 65 Me. 402 [20 Am. Rep. 709]); or for carrying a well person to a smallpox hospital, where he contracted the disease (Barbour v. City of Ellsworth, 67 Me. 294); or for illegally ordering a ship to leave the city (Rudolphe v. City of New Orleans, 11 La. Ann. 242); or for illegally taking possession of a vessel (Mitchell v. City of Rockland, 41 Me. 363 [66 Am. Dec. 252]; Id., 45 Me. 496; Id., 52 Me. 118; Harrison v. Mayor, etc., of Baltimore, 1 Gill, 264); or for negligence of a servant of the board of health in removing garbage (Condict v. Mayor, etc., of Jersey City, 46 N. J. Law, 157). See, also, Tied. Mun. Corp. § 332.

We have been referred to a case which seems to go far towards sustaining the contention of plaintiff’s counsel. It is Briegel v. City of Philadelphia, 135 Pa. St. 451 (19 Atl. 1038, 20 Am. St. Rep. 885). The decision is not replete with adjudicated cases. The opinion states that the question was before the court for the first time, but that Mr. Justice Sharswood had expressly decided it in Shuter v. City of Philadelphia, 3 Phila. 228. But while the language used in that case was broad, the question arose over the contamination of a well by a leaky gas-holder owned by the city, and used for furnishing gas to its inhabitants. Thus it is apparent that the question was not before that court.

Under the title of “Liability in the Capacity of Property Owner,” Mr. Dillon discusses this question, and recognizes a liability when the property is owned and used for ■private corporate purposes. The language is somewhat broad, but the text, and the cases cited in support of it, seem to imply the importance of the nature of the uses for which the property is owned. See 2 Dill. Mun. Corp. (4th Ed.) § 985, and note 1. In the same connection attention is called to the fact that, by the decisions, the distinction between acts done by a city in discharge of a public duty, and acts done for what is called, by way of distinction, its “private advantage or emolument,” is clearly made. Most of the cases cited turn on private ownership for corporate purposes.

Eastman v. Meredith, 36 N. H. 296 (72 Am. Dec. 302), was a case where a town-house floor had given way, injuring one lawfully there for the purpose of voting. It was held that the town was not liable. In the discussion of this case there is general language relating to premises owned by municipalities for certain purposes. It is said that for private injuries caused by the improper management of their property, as such, they have been held to the general liability of private persons who own and manage the same kind of property. It is not to be presumed that the township did not own its town hall, or at least have a temporary title, if nothing more than a right of possession. So in the case cited in support of the above language,' viz., Bailey v. Mayor, etc., of New York, 3 Hill, 541 (38 Am. Dec. 669), there was no dispute but that the city of New York owned the dam; but in neither case did the question turn upon the ownership of the property, but, rather, upon the nature of tenure and duty. Why discuss whether the city was performing a public duty imposed by law, if the fact that it held title alone could make it liable ? And how justify the holding that a township was not liable for a defective floor, where it owned the building, if mere ownership in all cases creates liability? So we see that, notwithstanding the use of broad language, the logic of these decisions supports the distinction indicated by the text of Dillon quoted, and the tests of municipal liability in such cases would seem to be two: (1) Is the act one in which the city has a private interest, instead of' a public duty ? (2) If not, then does the statute give redress against the municipality, either expressly or by necessary implication ?

This statute provides for a board of health, all of the members of which are chosen directly or indirectly by the city authorities; but, as to the duties, prescribed by' law, they do not represent the city, but the State. The statute contemplates that a hospital may be provided in every township, and that, when provided, it will be practically under the control and regulation of the board of health. In one contingency the board of health is charged with the duty of providing it, and in doing that it would be acting for the State, not the city. But the statute provides that the town or city may establish such a hospital without waiting until an emergency arises. Whether that provision is mandatory, and requires the establishment of such hospital in every township or city, or is merely permissive, we need not inquire. In either case the city acts as a governmental agency in performing such duty, just as it acts in such capacity in selecting officers who are charged with such duties, and in providing and collecting from its inhabitants the necessary funds to pay the expenses, or in providing a police force for the preservation of the peace, or a fire department, and prescribing regulations for the same.

It has been intimated that an officer, though a representative of the State instead of a city, is liable for his own ■misfeasance or nonfeasance. Many cases so hold, and ■we know of none to the contrary, except where judicial ■functions are involved. It may be claimed that, if it be ■conceded that the city is made the agent of. the State, it is liable for its misfeasance and that of its subagents. From the language of this statute it may be said that some ■duties are imposed directly upon the city, and not upon the board of health, and that the establishment of a hospital, when there is no emergency, is one of them. Cases can be found which suggest a .distinction between a duty imposed on a city directly and one imposed on an officer of the city. It may possibly be urged that in such case -the city is responsible for the performance of such duty, ■and liable for a failure to perform it. And a few courts may so hold. It may also be urged that, being an agent to build a hospital for the State, it is liable for its neglect or misconduct, as an agent ordinarily is, though the principal is usually the sufferer.

It is manifest that one cannot be held liable under an application of the rule of respondeat superior where he would not be liable for the same act of negligence if done by himself, and notwithstanding his agent may be liable personally. Thus in Forbes v. Board of Health, 27 Fla. 189 (9 South. 862, 13 L. R. A. 549, 26 Am. St. Rep. 63), the board was held not liable, although a corporation subject to being sued, for the reason that it was performing a public duty. In Iowa a statute gave to the city of Lansing power to establish a board of health, and to invest it with power and duties necessary to secure the people of the city against contagious and dangerous diseases. It was held that the city was not liable for negligence of its board of health. Ogg v. City of Lansing, 35 Iowa, 495 (14 Am. Rep. 499). City of Richmond v. Long’s Adm’rs, 17 Grat. 375 (94 Am. Dec. 461), is a similar case. In Nebraska a statute provided that cities should have authority to provide protection from fires. A driver of the fire department injured a pedestrian, and it was héld that the city was not liable, upon the ground that the city had no private interest in the service. Gillespie v. City of Lincoln, 35 Neb. 34 (52 N. W. 811, 16 L. R. A. 349). See, also, Hayes v. City of Oshkosh, 33 Wis. 314 (14 Am. Rep. 760); Wilcox v. City of Chicago, 107 Ill. 334 (47 Am. Rep. 434); Fisher v. City of Boston, 104 Mass. 94 (6 Am. Rep. 196); Hafford v. City of New Bedford, 16 Gray, 297; Jewett v. City of New Haven, 38 Conn. 368 (9 Am. Rep. 382). See, also, many other cases cited in Gillespie v. City of Lincoln, supra. See, also, note to Barron v. City of Detroit, 19 L. R. A. 452 (s. c., 94 Mich. 601, 54 N. W. 273, 34 Am. St. Rep. 366); O’Rourke v. City of Sioux Falls, 4 S. Dak. 47 (54 N. W. 1044, 19 L. R. A. 789, 46 Am. St. Rep. 760); Williamson v. Industrial School, 95 Ky. 251 (24 S. W. 1065, 23 L. R. A. 200, 44 Am. St. Rep. 243); Springfield Fire & Marine Ins. Co. v. Village of Keeseville, 148 N. Y. 46 (42 N. E. 405, 30 L. R. A. 660, 51 Am. St. Rep. 667); Fuchs v. City of St. Louis, 133 Mo. 168 (31 S. W. 115, 34 S. W. 508, 34 L. R. A. 118); Hughes v. County of Monroe, 147 N. Y. 49 (41 N. E. 407, 39 L. R. A. 33); Webster v. County of Hillsdale, 99 Mich. 259, 260 (58 N. W. 317); Gilboy v. City of Detroit, 115 Mich. 121 (73 N. W. 128); Webb v. Detroit Board of Health, 116 Mich. 516 (74 N. W. 734, 72 Am. St. Rep. 541).

This distinction is hinted at in a note to Sheldon v. Village of Kalamazoo, 24 Mich. 383, though it is in the nature of a negative assertion of the proposition, through the medium of an implied exception. It is there said:

“But such corporation is not liable for the negligence or malfeasance of officers or public boards acting in obedience to the mandates of the legislature, and for the public good, rather than for the peculiar benefit of the corporation, when in the performance of a duty imposed upon such officer or board instead of upon the corporation.”

Maxmilian v. Mayor, etc., of New York, 62 N. Y. 160 (20 Am. Rep. 468), is a leading case. The negligence complained of was that of a driver of an ambulance, who ran over a pedestrian. He was at the time in the service of the commissioners of public charities in New York, and it was held that the city was not liable. In the course of the opinion it was said:

“If the act of the officer, or the subordinate of the officer, thus appointed, is done in the attempted performance of a duty laid by the law upon him, and not upon the municipality, then the municipality is not liable for his negligence therein.”

This language was descriptive of the case, rather than a limitation upon the city’s immunity. It, however, furnishes a convenient peg to hang a limitation upon, and too many lawyers and courts accept such expressions as authority of greater or less weight. As the case shows, it turned on the general proposition that the act was in the performance of a public, not a private, duty, and that, therefore, there was no liability.

In New York, etc., Lumber Co. v. City of Brooklyn, 71 N. Y. 580 (a similar case in principle), it was said:

“It is clear, therefore, that, unless the legislature has devolved the duty of rebuilding the docks upon the corporation, it is not liable for any neglect or omission to perform it.”

It is seen that this case is not a positive authority.

There is a broad distinction between an agent (i. e., an officer) of the government, and a municipal corporation performing delegated functions pertaining to government. The latter becomes vested with a portion of the political power. As said by Mr. Justice Gray in Springfield Fire & Marine Ins. Co. v. Village of Keeseville, supra:

“In such a case — and I speak, of course, of legislative acts which are general in their nature and scope — the assumption by the municipal corporation is of a further function of self or local government; and such a power is discretionary in its exercise, and carries with it no consequent liability for nonuser or misuser. In the legislature reside the power and force of government, confided to it by the people under constitutional restrictions. In the creation of municipal corporations, subordinate commonwealths are made, upon which certain limited and prescribed political powers are conferred, and which enjoy the benefits of local self-government. People v. Common Council of Detroit, 28 Mich. 228 (15 Am. Rep. 202). When, in addition to those general powers which are prescribed upon the creation of a municipal corporation, general statutes permit the assumption of further powers as a means of benefiting the portion of the public in the particular locality, they invest the corporation availing itself of the permission with just so much more governmental power. Just as the general powers deposited with the various municipalities are exercised by them in a quasi sovereign capacity, so would any added powers designed for the general public good, though optional with the corporation as to their assumption, and in their exercise and performance local, be exercised.”

The true theory is that the township or city represents the State in causing these things to be done, and, like the State, it enjoys immunity from responsibility in case of injury to individuals, leaving liability for such injuries to rest upon the persons whose misconduct or negligence is the immediate cause of the damage. The township and city must always act through officers. If it builds or repairs a road, constructs a bridge, collects a State or county tax, erects a town house, provides for the poor or the infirm, preserves the public peace, or provides a smallpox hospital, it must do it through persons selected for the purpose; and whether the law broadly directs that it shall do these things, or shall select officers whose duties are prescribed by law, its obligation is the same. The State relieves itself from the burden of multitudinous detail by delegating to and imposing upon aliquot parts of the body politic the power, and perhaps the duty, of doing for the State what it would otherwise have to supervise for itself. These powers are frequently legislative as well as ministerial. In this sense the township or city is a political agency, and the persons selected to perform the details whereby the result is accomplished are no more agents of the city or township, and no less the agents of the State, than as though the legislature had been more definite in prescribing tbe duties of the officers, and merely left their selection to the municipality. In imparting a portion of its powers, the State also imparts its own immunity. Cities are upon the same footing as quasi corporations, when acting in a purely governmental capacity. If this were not so, the township which should erect a town hall would be liable for injuries to persons using it who should be injured by falling through a defective floor, yet it was held otherwise in Eastman v. Meredith, 36 N. H. 284 (72 Am. Dec. 302), as already shown; and, were the plaintiff’s action to be sustained, it would overturn the principle upon which nearly all of the cases cited rest.

It was a cruel thing to permit the decedent to enter the valley of the shadow of death unwarned, if those who sent him knew of the danger. A case involving a stronger .appeal to the sympathy of a tribunal can hardly be imagined. But we feel constrained to say that, if there is culpable negligence here, the plaintiff’s remedy is limited to the persons to whose negligence the deplorable event is due, if there be a remedy. It is not a case where the doctrines of imputed negligence' and respondeat superior can be applied.

The judgment is affirmed.

. Moore, Grant, and Montgomery, JJ., concurred? Long, J., did not sit.


source: Caselaw Access Project

license: Public Domain

text:
    KOONS v. VAUCONSANT.
    1. Statute oe Limitations — Joint Debtors — Renewal Note.
    The giving of a renewal note by' a joint maker will not keep the debt alive as to the co-maker.
    2. Same — Fraud.
    And the fact that the former also signed the latter’s name to> the renewal note, thereby misleading the payee, can make no-difference, if such signing was without authority, and there-is nothing on which to base an estoppel.
    3. Same — New Promise — Consideration—Moral Obligation.
    The moral obligation to pay a debt barred by the statute is a. sufficient consideration for a new promise to pay it.
    4. Mortgages — Consideration—Compounding Felony.
    A mortgage executed'for the purpose of preventing a prosecution of the mortgagor’s son for a felony is invalid for illegality of consideration.
    5. Same.
    Such a mortgage cannot be rendered valid by showing that the son was in fact innocent, so that there was no felony to-be compounded.
    6. Same — Evidence.
    And the fact that the mortgagor was morally obligated to-the mortgagee in the amount secured by the mortgage, and. that no direct threat of arrest or express promise,of immunity was made, does not conclusively answer the claim that the mortgage was given for the purpose above stated.
    Appeal from Clinton; Stone, J.
    Submitted November 13, 1901.
    Decided January 7, 1902.
    Bill by Solomon D. Koons and Catherine E. Koonsagainst Justina Vauconsant to obtain the discharge of a. mortgage alleged to have been given under duress. From a decree for complainants, defendant appeals.
    Affirmed.

      Henry E. Walbridge and Edwin H. Lyon, for complainants.

      Spaulding, Norton & Looting, for defendant.
   Hooker, C. J.

The complainants pray a decree discharging a mortgage given by them under alleged duress. Their claim is that on January 2, 1900, defendant’s son and his lawyer called at the home of the complainants, and presented a note, which purported to bear the signature of their son, E. S. Koons, and his father, Solomon D. Koons, ■one of the complainants, which note bore date November '27,- 1896. Solomon stated to them that they had made •such a note in 1892, but that he had not made a second note; that his signature was not upon the note presented, nor had he ever authorized any one to sign his name to it. It is claimed that the lawyer said that their son, E. S. Koons, must have signed it, and that, unless complainants gave a mortgage upon their farm to secure defendant, their son would be arrested. Complainants requested a little time to investigate, but this was denied, and the mortgage was made. A day or two later this bill was filed. The defendant’s counsel question the accuracy of this statement, but do not deny that the first note was given, being dated in 1892, in payment for an interest in a stock of goods bought by the younger Koons from one Sullivan, who was payee in that note. It is not disputed that an interview was had and the mortgage made at the time and place alleged, but it is denied that it was obtained by threats of arrest or duress of any character.

We are convinced that the $1,000 note originally given was never renewed by the complainant S. H. Koons, and that action upon it was barred by the statute of limitations before the mortgage in controversy was given. The note defendant’s Exhibit A was the last of several consecutive renewals of that note, but complainant’s name was written upon it by his son, without his authority. While this took the debt out of the statute as to the son, it could not have that effect upon the complainant, because he was not a party to the fraud upon the payee. He has done nothing that should estop him from pleading the statute, although his principal may have done so. Tate v. Stevenson, 55 Mich. 320 (21 N. W. 348); Rogers v. Ander son, 40 Mich. 290; Sweet v. Ellis, 109 Mich. 460 (67 N. W. 535); Home Life Ins. Co. v. Elwell, 111 Mich. 689 (70 N. W. 334); 19 Am. & Eng. Enc. Law (3d Ed.), p. 309, and note 2; Id. (as to fraud of agent) p. 249, and note 4; Stevenson v. Robinson, 39 Mich. 160. Undoubtedly, a new promise'made by the complainant would be valid, so far as consideration is concerned, because of his-moral obligation, notwithstanding the lapse of more than six years. But he was under no legal obligation to renew his note, and certainly he was under no legal duty to secure it. The moral obligation did not enter into the contract. He refused to recognize that, and denied his liability ; and the proof is convincing that he and his wife were moved to execute the mortgage reluctantly, and through, the fear of danger to their son, and hope to prevent his prosecution for the criminal offense of forgery. The defendant’s agent and attorney called upon complainants for the purpose of getting security. During that interview— it matters not how — the subject of the forgery was introduced, and the complainants’ fears became ax’oused. Defendant’s witnesses say they were not responsible for that, for they made no threats of arrest nor promises of immunity, and that S. D. Koons himself suggested that the note was a forgery, and that the person who perpetrated it ought to be prosecuted. Counsel say that they did not suggest that this was a forgery, 'for they entertained a different theory about the note. If this be conceded, the fact remains that they availed themselves of the persuasive influence of the fear of prosecution of the son felt by his parents. They refused to give an opportunity for the complainants to investigate and ascertain the truth about the matter, and we do not doubt that it was intended that they should understand that the giving of security would prevent prosecution, and that it was the only way that it could ■ be prevented. The arrangement, then, was to all intents and purposes an agreement to compound an alleged felony. It may be said that they thought there was no forgery, and perhaps there was none, and that, therefore, no felony was really compounded; but one cannot obtain a promise upon a threat to accuse of a felony, and afterwards avoid the consequences and make the consideration legal by showing that there was no felony committed as a matter of fact. If the minds of these parties met upon the consideration, it was that there should be no prosecution for a crime which both understood defendant’s representatives to assert. There is some confusion on the subject of duress, and it may be due in part to the unnecessary attempt to invalidate such contracts as this upon the ground of duress. It is evident that there are few husbands, wives, parents, or children who would not make a heavy sacrifice to avert punishment to their immediate relatives, and this is so natural that few blame them. Yet the law punishes those who compound a felony. As a consideration for an undertaking, a promise not to prosecute a felony is illegal and void. No other consideration appears here. The'moral obligation would, perhaps, support a promise, if it entered into the transaction. There is not only no evidence that it did, but the clearest evidence that it did not. It is right that men should pay their debts, and not culpable for creditors to collect by legitimate means and methods; but making merchandise of the criminal law is not a lawful method.

We concur with the learned circuit judge in his disposal of the case.

The decree is affirmed, with costs.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    MICHIGAN CENTRAL RAILROAD CO. v. CITY OF BAY CITY.
    1. Streets — Offer, to Dedicate — Withdrawal—Acceptance.
    F. made and recorded what purported to -be a plat of land owned by him, showing First street', among others, extending , across the plat. He subsequently quitclaimed to a railroad company a right of way across the tract of which the land platted was a part, the same to correspond with the line of the road as afterwards established. The railroad company had already made provision for occupying First street, the council having authorized it to occupy “any street in the city,” and F. had sold Several lots fronting on the street, including the fee to the center thereof. Held, to indicate an intention of the parties that the right of way conveyed by the deed should be confined to the unplatted portion of the tract, and that First street should be occupied by virtue of the resolution of the council; and hence that the deed did not operate as a withdrawal of the offer to dedicate, even if such offer had not been accepted.

      2. Same.
    A resolution of the common council authorizing the construction of a railroad through land dedicated to the city as a street is effective as an acceptance by the city of the offer to dedicate.
    Appeal from Bay; Shepard, J.
    Submitted November 21, 1901.
    Decided January 7, 1902.
    Bill by the Michigan Central Railroad Company against the city of Bay City to quiet title. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      E. A. Cooley (Henry Russel and Ashley Pond, of counsel), for complainant.

      James E. Duffy (A. McDonell, of counsel), for defendant.
   Hooker, C. J.

One Fitzhugh, being owner of a large tract of land contiguous to or within the limits of Bay City, made and caused to be recorded on March 22, 1869, a paper, purporting to be a plat of a portion of the tract, as an addition to the city. This plat is bounded on the easterly side by Park avenue, also mentioned in the record as the “Carney Road,” and upon the westerly side by Trumbull street, both admitted to be public highways at the time complainant’s railroad was constructed. Extending from east to west and across the addition, intersecting both Park avenue and Trumbull street, the map shows seven streets; viz., Nebobish avenue, upon the northern boundary of the plat; next, North street; and then, at regular intervals, streets numbered from first ■ to fifth. The lots averaged about an acre in area, and fronted streets at both ends.

Upon December 18, 1871, a corporation known as the Detroit & Bay City Railroad Company obtained permission from the common council of Bay City to locate its line of railroad through any street in the city that it might elect to use for the purpose, by a resolution reading as follows:

11 Resolved, that, in the opinion of this council, it is for the best interests of the city to grant the right of way to the Detroit & Bay City Railroad through any street in the city that they may select, and that we do hereby grant the same, subject to the ordinances now in force, or may be hereafter adopted.”

It is claimed that there is testimony tending to prove that it was understood by all that First street would be occupied under this resolution, if it should be adopted.

As already stated, Fitzhugh owned much land contiguous to this addition, and on June 29, 1872, he made a deed of a right of way to the railroad company mentioned of land “ 50 feet in width, being 25 feet on the east and 25 feet on the west side of its line which should be thereafter established across sections 22, 23, 26, and 27, in township 14 N., range 5 east.” This addition was upon a part of the land described. In the summer of 1873 the railroad company acknowledged and recorded its map, showing the location of the route of its road, upon which its line was shown as located in First street, between the Carney road and Trumbull street; and during the same summer the iron was laid and the road was operated, and it has been continuously since, though it has changed hands, and now is operated by the complainant under a lease for a long term. Fences have been constructed and maintained by the railroad company upon each side of the track 25 feet from the center line, and across the strip upon the confines of Trumbull street and the Carney road. Cattle-guards were also maintained at the crossings of these streets.

Previous to the location of the railroad, Fitzhugh had contracted a number of lots fronting upon First street, and most of them were subsequently deeded by him. Under these contracts and conveyances the fee was granted to the center of the street. At the time the railroad was built there had been one house erected upon one of the lots, and others were built afterwards. The date of the erection of the fences built by the railroad company is in dispute; some witnesses for the company testifying that they were erected about the time the road was built, while many witnesses think it was done at a much later date, in which they seem to be corroborated by the fact that manj’of the lot owners erected and maintained fences upon the street line, which was some five feet outside of the railroad fence when constructed. These private fences had small gates opening upon the street, and some bars permitted ingress and egress in one or more instances. When the railroad fence was built, we understand that there is evidence that in some cases small gates were left to correspond with those theretofore existing in the private fences, and that in one instance a gate or pair of bars was left. Also a pair of bars was made in the fence running from the cattle-guard to the line fence, and was continued for a time, and at all times the alleged street was commonly used by the inhabitants of the locality to walk on; and there is evidence that teams occasionally traversed a portion of it to reach adjoining premises, though, as the street was never improved, it was not in a condition to invite much use by vehicles.

It seems evident to us that the persons owning adjoining premises were desirous of having the street opened, and in June, 1890, they induced the common council to take action, and the following notice was served upon the railroad company:

“Bay City, Mich., July 7, 1890. “Michigan Central Railroad Co.,
“W. J. Martin, Esq., D. Superintendent.
“Near Sir: I am instructed by the common council to notify you to remove the fence on the east side of First street between Johnson and Park avenue, where the same crosses the street. The city desires to grade the same so as to enable the people residing on either side to get in and out.- In case you are at á loss to understand just what is wanted, I would be pleased to confer with you at any time. Yours, etc.,
“John C. Weadock,
“City Attorney.”

Mr. Weadock testified upon the trial that he knew that the notice reached the officers of the company, and that he was informed that the company would comply, and, soon after, it removed the cattle-guards and end fences. A few months later they were replaced, and this brought on a conflict between the railroad and city authorities, which culminated in the filing of this bill by the former to restrain the interference with its fences and to quiet its title. None of the adjoining proprietors were made parties. The learned circuit judge dismissed the bill, and t‘he complainant has appealed.

The railroad company claims title under its deed from Fitzhugh to a strip of land 50 feet wide through the center of First street, and, to prevail, it must prove such title. It is possible that the description in the deed is broad enough to include a right of way over platted lands belonging to Fitzhugh upon either of the sections mentioned, in the absence of any circumstances indicating a contrary intent; but it cannot be supposed that Fitzhugh intended to grant a right of way over lands which he had sold, or in highways which he had dedicated. Furthermore, the deed was a quitclaim deed, and the title conveyed was only what Fitzhugh had. Again, the fact that the railroad company had already made provision for getting through First street, which the resolution of the council was broad enough to cover, and the fact that several persons owned lots, including a right to the fee to the center of First street, so that such deed would not convey any valuable right to such portion, beget a strong presumption that neither party understood that Fitzhugh intended to convey title by this deed across the platted ground, and to allow the railroad company to cut a series of lots in two by building its road across them, and that he did not intend to convey lots already sold, but that all understood that the right of way conveyed by the deed was confined to the acreage property, and that the street should be occupied under the resolution already passed.

It is urged that the street was not dedicated by the plat because of defective acknowledgment, and that a common-law dedication was not effected, because the offer to dedicate (which is patent enough) was not accepted by the city, and must be treated as withdrawn. There is nothing to indicate a withdrawal by Fitzhugh, unless it be the deed of the right of way or the bare lapse of time, and we have already indicated that we think that deed was not intended to have such effect. There is evidence, uncontradicted, that the council understood, when its resolution was passed, that First street was to be used. If that is so, its action was significant upon the question of acceptance. Indeed, to provide for the construction of a railroad through land dedicated would be as effective a way for the public to make use of the land as a highway as to do a little grading upon it. This testimony is supplemented by the railroad map, from which it appears that the company understood that First street was accepted, and that its line was to occupy a portion of it. There is no broad equity which demands the conclusion that Fitzhugh withdrew his offer. On the contrary, he owed a plain duty to every man to whom he had sold not to do it, because he was under contract obligations with them to maintain a street if the public did not. He lost the power to withdraw his dedication as to such of the lands as he sold to others. The city plainly declared its intent in 1890, and, without holding that the railroad company recognized the dedication, or lost any rights by taking down the fence when required, we are satisfied that it never took a title superior to the rights of contiguous owners in the fee, nor was it ever in a situation to deny the rights of the public in the street. Some claim is made of title by adverse possession, but we think it clearly disproved.

The decree of the circuit court is affirmed, with costs.

Moore, Grant, and Montgomery, JJ., concurred, Long, J., did not sit.


text:
    LAUZON v. BOARD OF SUPERVISORS OF CHIPPEWA COUNTY.
    Mandamus — Demurrer—Final Order — Certiorari.
    Conceding the propriety of demurring to a petition for mandamus, where such demurrer is made and overruled, the cause is not reviewable on certiorari until a final order is made.

      Certiorari to Chippewa; Steere, J.
    Submitted December 10, 1901.
    Decided January 7, 1902.

      Mandamus by Marie Lauzon to compel the board of supervisors of-Chippewa county to audit and pay a claim. From an order overruling a demurrer to the petition, respondent brings certiorari.

    Writ dismissed.

      Warner & Sullivan, for relator.

      John P. Conriclc (M. F. McDonald, of counsel), for respondent.
   Hooker, C. J.

The relator filed her petition in the cir-

cuit court for the county of Chippewa to compel the board of supervisors to audit and pay a sum allowed her by the board of health, for damages occasioned by a quarantine of her hotel, established and maintained by said board. An order to show cause was made by the circuit court, and, upon the return of said order, the respondent filed a demurrer to the petition. The court overruled the demurrer, and ordered that “the respondent have until the first day of the following term to plead over, or take such further steps as it may be advised.” Thereupon the cause was brought to this court by certiorari.

Practice in the circuit court upon mandamus is regulated by Circuit Court Rule No. 46, which indicates an intention that the proceeding shall be summary. It requires an answer, and provides that matters alleged and not answered shall be taken as admitted, and that the cause shall stand for hearing on the return day without notice, and can only be postponed on cause shown. It may be doubted whether dilatory pleadings are competent under this rule, but, as the question has not been argued, we do not decide it. Supreme Court Rule No. 12 prescribes the practice on appeal, which in terms covers only cases where the writ is allowed or denied. If it be competent to demur to a petition for mandamus, the cause is not reviewable here, upon certiorari, until a final order is made. In this case the circuit judge has held the petition sufficient, and, by analogy to other cases at law, th,e respondent must either answer (which ordinarily is no great hardship), or stand upon its legal right to have a technically accurate petition. If it choose the. latter, it must let the order for the writ be made, and then resort to its remedy by certiorari.

The writ is dismissed, with costs, and the cause remanded for further proceedings in the circuit court.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    ERNST v. FREEMAN’S ESTATE.
    1. Estates of Decedents — Distribution—Collateral Heirs.
    Under 3 Comp. Laws, § 9322, providing that the personal property of a decedent, undisposed of by will, shall, in the absence of parents and issue, after specified deductions and allowances, be distributed, “one-half to the widow, and the other half to the * * * brothers and sisters, and the issue of any deceased brother or sister, in equal proportions, share and share alike,” the issue of a deceased brother or sister take per stirpes, and not per capita.

    2. Same — Protection of Administrator — Appeal.
    Where distribution of an estate has been ordered by the probate court, and no stay has been granted or appeal taken, and the administrator proceeds under such order in good faith, he will be protected therein, though the time for appeal has not expired.
    Error to Branch; Yaple, J.
    Submitted December 10, 1901.
    Decided January 7, 1902.
    In the matter of the estate of Cornelius Freeman, deceased. Harriet Ernst, a distributee, appealed from an order of distribution by the probate court. From a judgment allowing the administrator’s account after distribution, said Ernst brings error.
    Affirmed.

      John A. Loranger, for appellant.

      Reynolds & Reynolds (H. H. Barlow, of counsel), for appellee.
   Hooker, C. J.

Cornelius Freeman died intestate in 1897, leaving no parents and no issue. The persons-entitled to share his estate were: His widow, Henrietta Freeman; two sisters, Jane Bundy and Harriet Ernst;, two children of his deceased sister Hannah; two children of his sister Nancy; two children of his brother John; three children of his sister Sally; three children of his sister Betsy; two grandchildren of his sister Hannah; two-grandchildren of his brother John. The intestate died seised of both real and personal property, the former having been divided satisfactorily to the parties. The estate was administered, and on May 21, 1898, after due notice, an order of distribution was made. No complaint is made regarding the- share awarded to the widow. The remainder was directed to be distributed per capita among the sisters and the children and grandchildren of other brothers and sisters. Immediately after the order was made, and on the same day, the administrator, in good faith, proceeded to pay the distributees the seyeral amounts due them according to the terms of the order. On the day of the hearing, $85 was paid on the share of the plaintiff, Harriet Ernst, -intestate’s sister, upon her written order. Some of the distributees were nonresidents, and the shares of such were deposited in bank, and receipts-forwarded, with notice that, upon return of the receipts properly signed, the respective amounts would be forwarded.

On or before July 16, 1898, the administrator paid all of the distributees except Harriet Ernst, who did not send her receipt. On that day he filed the receipts. Up to-that time he had no notice that any person intended to appeal. On July 18, 1898, Harriet Ernst appealed to the circuit court, claiming that the order should have provided for a distribution per stirpes, and not per capita, which would give her a much larger share of the estate than she was given by the order. There was in the hands of the administrator on April 26, 1900, only $251.91, which was made up of a balance due Harriet Ernst under the order, and interest which had accumulated thereon. The learned circuit judge found that Harriet Ernst was right in her contention, and that the distribution should have been per stirpes, and not per capita, but that, having in good faith made payment under the order of the probate court, he was protected by it, and allowed the account of the administrator as presented. Harriet Ernst has again appealed.

There are two clearly cut questions before us:

1. Was the order of the probate judge correct ? If so, there is no occasion to consider the other.
2. If wrong, was the administrator legally bound to anticipate an appeal, and withhold distribution during the statutory period within which the parties might appeal ?

The first question is decided in the case of Hascall v. Cox, 49 Mich. 439 (13 N. W. 807). 3 Comp. Laws, § 9322, provides that, in the absence of parents and issue, the personal property shall be distributed as follows:

“One-half to the widow, and the other half to the * * * brothers and sisters, and the issue of any deceased brother or sister, in equal proportions, share and share alike.”

The issue of a deceased brother, whether one or many, would take by representation an equal share with a living brother or sister. It follows that the order of the probate court was erroneous.

The proceeding was in rem, and there is much reason for requiring an administrator to defer payment under an order of distribution until aggrieved parties have an opportunity to appeal, especially where, as is claimed in this case, the distributee is impecunious, and cannot be compelled to return the excess that has been received. But we are aware of no rule which precludes the administrator from complying with the valid order of the probate court, where it is done in good faith. All appeals are statutory, and, until appealed from, judgments may be enforced. Even an appeal does not always operate as a supersedeas, though it does, in cases like this, by statute. There is nothing in the statute, however, that indicates that performance of such an order shall be deferred until after the prescribed period shall have expired without an appeal being taken. The case is upon the same footing as those arising upon other orders. There is no provision limiting their operation while the right to appeal exists, and such a rule would be not only unnecessary in many of these instances, but burdensome as well, for it would tend to delay the settlement of estates unnecessarily. Such a provision in relation to orders of distribution appears not to have been found necessary until the present case. We cannot question the good faith of the payment upon this record, but it is unfortunate that the administrator should have complied with the order until he ascertained whether the same was satisfactory to the parties interested. Unless we are to make the judgments of probate courts exceptional, we cannot sustain appellant’s contention. Judgments of justices of the peace are suspended to give an opportunity for appeal, but this is by statute; while in all other cases it is at least necessary to take an appeal, or get an order staying proceedings, to preclude the payment or enforcement of a final judgment. Cases arising upon probate orders are not wanting, as appears from the briefs of counsel. Freem. Judgm. §§ 482, 104b; 1 Black, Judgm. §§ 170, 355; Fraser’s Fx’r v. Page, 82 Ky. 73; Chat. Prob. Law, §§ 2211, 1524, 1525; Young v. Thrasher, 48 Mo. App. 327; Loring v. Steineman, 1 Metc. (Mass.) 204; Woerner, Adm’n, §§ 543, 548, 561; Palmer v. Whitney, 166 Mass. 306 (44 N. E. 229); Vandergrift’s Adm’r v. Cone, (Ky.) 37 S. W. 60; In re Wolfe’s Estate, 15 N. Y. Supp. 539; Lamson v. Knowles, 170 Mass. 295 (49 N. E. 440); Cathaway v. Bowles, 136 Mass. 54; Pierce v. Prescott, 128 Mass. 140; Kelly v. West, 80 N. Y. 139, In re Pritchett’s Estate, 51 Cal. 568; Merrick v. Kennedy, 46 Neb. 264 (64 N. W. 989); 3 Comp. Laws, § 10300; People v. Clerk of Bay Circuit Court, 14 Mich. 169.

We are constrained to affirm the order of the circuit court.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


author: Montgomery, J.

text:
    GILMORE v. LICHTENBERG.
    1. Justices of the Peace — Certiorari —Sufficiency of Affidavit.
    An affidavit for certiorari to review a justice’s judgment, which sets up the docket entries, showing numerous adjournments, and alleges, among other things, that the justice was without jurisdiction to enter judgment, is not sufficiently specific to raise the point that the judgment is void because the docket fails, to show the place to which the cause was adjourned.
    2. Same — Unauthorized Adjournment — Jurisdiction—Appearance.
    “While a justice loses jurisdiction by adjourning the cause more than three months beyond the return day without the written consent of the parties (1 Comp. Laws, § 791), a subsequent general appearance will reinstate the case.
    Error to Wayne; Donovan, J.
    Submitted December 10, 1901.
    Decided January. 7, 1902.

      Assumpsit by Robert G. Gilmore against F. William Licbtenberg and another for goods sold and delivered. From a judgment for defendants, plaintiff brings error.
    Reversed.

      Sloman & Groesbeck (A. C. Patterson, of counsel), for appellant.

      Bowen, Douglas & Whiting, for appellees.
   Montgomery, J.

This is error to review a decision of the circuit court reversing on certiorari a judgment of a justice of the peace. The affidavit recites the commencement of suit on the 18th of January, 1899, and sets out the docket entries showing numerous adjournments by consent up to a final adjournment to July 31st, at which time defendants did not appear, and judgment was rendered for the plaintiff. The affidavit then proceeds as follows:

‘ ‘ Deponent further states that several of the last adjournments had in the above cause, which appear to have been by consent, were had without the consent of the defendants, the defendants not being present in court at the time, or having anything to do with said adjournments. Therefore, by reason of the premises, the defendants feel that the judgment should be reversed for the following reasons:
1. The justice erred in rendering judgment, as he did, on July 31, 1899.'
“2. The justice had no jurisdiction upon that day to render judgment.
“3. The justice lost jurisdiction of said case April 24, 1899, and the subsequent proceedings are null and void.
“And further deponent saith not.”

On the hearing in the circuit the plaintiffs in error contended that the justice lost jurisdiction by adjourning the case beyond three months from the return day, without the consent of the parties, and that he also lost jurisdiction because the docket failed to show the place to which the case was adjourned.

It has often been held by this court that if a party, instead of appealing a case, and thus affording' his adversary an opportunity to try his case on the merits, resorts to certiorari, he must make his allegations of error specific. See Matthews v. Forslund, 113 Mich. 416 (71 N. W. 854). If one seeks to avoid a judgment on technical ground, he ought not to complain if technical rules are applied to him. We think no one reading this affidavit would conceive that any point was intended to be made upon the failure of the docket to show the place to which the cause was adjourned, and we do not, therefore, consider whether, in view of the justices’ act relating to Detroit, this omission would be fatal to the judgment. The circuit judge appears not to have considéred this question, but considered the averments of the affidavit sufficient to apprise the defendant in error of the reliance of plaintiffs in error on the point that the justice lost jurisdiction by the adjournments, and reversed the case, holding that the justice did lose jurisdiction.

The record shows that the defendants appeared generally on 12 different occasions after the three months fixed by statute. 1 Comp. Laws, § 791. It is true that, under this statute, the oral consent to an adjournment beyond the three months would not, in the first instance, bind defendants. But it is undoubted that a general appearance will operate to waive defects in process or service. Dailey v. Kennedy, 64 Mich. 208 (31 N. W. 125); Lane v. Leech, 44 Mich. 163 (6 N. W. 228). We see no reason why such an appearance should not be held to reinstate a case which, by irregular action, has resulted in a loss of jurisdiction by the justice. The case of Lane v. Leech is, as we read it, such a case, and the irregularity was held waived by subsequent participation in the proceeding before the justice. See, also, 4 Enc. PI. & Prac. p. 898.

The judgment of the circuit court will be reversed, and that of the justice affirmed, with costs of all the courts.

, Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit.


author: Moore, J.

text:
    BARR v. GUELPH PATENT CASK CO.
    1. Trial — Credibility op Witnesses — Directing Verdict.
    The doctrine that the uncontradicted testimony of a witness will not warrant the direction of a verdict where it is manifestly improbable in character, or is likely to have been prompted ,by self-interest, is referred to approvingly.
    2. Injury to Employé — Duties—Evidence—Question por Jury.
    In an action for the death of an employé who was killed while oiling certain machinery, a superior servant testified that he showed decedent, in the first instance, just what machinery he was to oil, that deceased was not the general oiler, and that he was not required to oil the machinery at the place where he. was killed. The witness also testified, however, that decedent was the only person who did any oiling in the day-time, and that it was his duty to oil any machinery that should need oiling, or to npf if y witness; while the engineer of the mill testified that it was the duty of a person in decedent's position to oil all machinery that should require it. Held, that the question whether decedent was in the performance of his duty when killed was for the jury.
    3. Same — Negligence—Revolving Set-Screw.
    Whether defendant was liable for the death of a servant who, while in the discharge of his duty, was caught by a set-screw projecting from] a rapidly-revolving shaft, the servant being ignorant of its existence, and the place where it was maintained being dimly lighted, should have been submitted to the jury.-
    Error to Benzie; Chittenden, J.
    Submitted December 10, 1901.
    Decided January 7, 1902.
    Case by Emma Barr, administratrix of the estate of Daniel Barr, deceased, against the Guelph Patent Cask Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Charles A. Withey (D. G. F. Warner, of counsel), for appellant.

      Brennan, Donnelly & Van De Mark and Henry L. Lyster, for appellee.
   Moore, J.

The plaintiff is the widow and administratrix of the estate of Daniel Barr, who was killed while at work for the defendant in the basement of its sawmill. The negligence counted upon in the declaration is:

“(a) Failing to provide a place reasonably light and safe for deceased to work in, and to safely and properly place its machinery.
“(b) Taking deceased from his work piling lumber in defendant’s yard (he being, to the knowledge of the defendant, wholly inexperienced in the use and care of machinery) without warning him of the dangers incident to the new duties assigned to him.
“(c) Especially in not warning deceased of the dangerous character of the place in question, and of the projecting set-screw.
(d) In neglecting to remove or readjust said set-screw so that it would not dangerously project.
“ (e) In neglecting to warn deceased or point out to him any other or better way (if there was any) to reach the bearings south of the place where the set-screw was than to go over and upon the timber next which it revolved.
“ (/) In not telling the deceased of the fact or custom (if it was a fact or custom) that it was not necessary or customary to oil the said bearings south of the said setscrew when the mill was in motion.
“ (g) That defendant was guilty of gross carelessness and wanton neglect of duty and the safety of others in not covering said set-screw and bearings.”

Mr. Barr was upwards of 30 years of age, and a man of fair intelligence. It is the claim of plaintiff that, before the injury, Mr. Barr had not been engaged in the use of machinery of any kind, and had never oiled any machinery until one to four days before his death; that-he was set to work in the basement of a mill more than 100 feet square, not well lighted; that his duties were to wheel the refuse and sawdust coming from the trimmer saws to the furnace room, and to oil such machinery as should need oiling. In the basement of the mill was a shaft about seven feet long, which was raised about two feet four inches above the floor. The ends of this shaft ran in boxes which were fastened to the upper side of timbers which were eight inches square. On the west end of the shaft, next the timber, was a thirteen-inch pulley. Nearly three feet east of that pulley was another, four feet in diameter, which carried a belt running to the south. About twenty inches east of the larger pulley, and next to the east timber, which carried the box in which the end of the shaft ran, there was a collar on the shaft, which was held in place by a setscrew, which projected about two inches, according to the evidence of the plaintiff. Directly north of this shaft, and two or three inches from the outer rim of the large pulley, there was a plank three inches thick and ten inches wide, fastened to the top of the two timbers which carried the collars in which the shaft ran. About four feet south of the collar with the set-screw, there was another shaft rlmning parallel with the one already described. On the end of this shaft, directly south of the set-screw, was a twenty-four inch pulley, called a “clutch pulley.” The west end of this shaft ran in a box near the clutch pulley. This box rested on a timber eight inches square. East of the set-screw three or four feet there was also machinery. The shaft carrying the collar and set-screw made 150 revolutions a minute; and it is claimed by plaintiff that the set-screw could not be observed when the shaft was revolving, and that Mr. Barr had no knowledge of its existence, and while in the discharge of his duty to oil the machinery his clothing caught in the set-screw, was nearly all torn from his body, and Mr. Barr was found, when they searched for him, under the shaft, dead. The plaintiff introduced testimony to establish the case stated in the declaration. She then called a witness by the name of Elliott, who was a filer, and the millwright who put into the mill the shaft with the collar and set-screw. It may be well to state here that the shaft with the set-screw and collar had been run only 11 days when the accident occurred. Mr. Elliott, among other things, testified as follows:

“Q. Could you see it [the set-screw] when it was running?
“At. Yes, sir.
“Q. -How much did it project from the shoulder?
“JÍ. I do not know; it might have projected two inches or an inch and a half.
“Q. Now, it was Barr’s duty to do all the oiling 'under the mill, all that was necessary to be done, was'it ?
“A. No; the night-watch did the general oiling once a day, and he oiled this fast-running machinery that had to be oiled oftener.
“Q. Did you show him just what he had to oil?
“A. Yes; I showed him just what he had to do.
“Q. Did you call his attention to this shaft and setscrew ?
“A. No, sir; I did not show him anything only what he had to do.
“Q. When did you inform him as to what machinery to oil ?
“A. The first morning he was sent there.
“Q. He was the general oiler under there ?
“A. No, sir. * * * I never at any time instructed him to oil this machinery in the rear of this large pulley, or to oil the bearing of this large pulley itself. * * * I went with him and saw that he did it properly; saw him do it several times; I refer to the machinery I told him to oil.”

It is claimed the machinery which Mr. Elliott told_ him to oil was not nearer than 31,- feet from the set-screw.

The judge was asked by the defendant to take the case from the jury. The court expressed himself as follows:

“The plaintiff placed Mr. James Elliott on the stand, and, while the plaintiff’s attorney had intimated that his testimony might not be truthful, yet there is nothing before the court to cause it to doubt his testimony. He was the man that gave the deceased his instructions to do his work. These were the only instructions that he had. He was told how to do and what to do. The theory of the plaintiff is that he went round'and climbed up on this three by ten plank, and this eight by eight, and leaned over to oil this shaft or bearing. This was contrary to his instructions and outside of his duty. Therefore the deceased was negligent, and, if he was negligent in that regard, the plaintiff cannot recover. It would not be reasonable in this case to say that Mr. Elliott ought to have told him that he must not climb over the piston rod when he went to oil the engine, because it was no part of his duty. There is no testimony here as to the duties of this man, except the testimony of Mr. Elliott. It was assumed by the plaintiff, when they started in with the trial of this case, that Mr. Barr was the oiler in the mill. That was simply an assumption; but, as far as the proofs go, the only person who testified to the duties of this man was Mr. Elliott, and he testifies that he told him.to oil certain boxes and told him how to do it, and that he could do it safely, and that there was no danger in doing it. Now, if the deceased, Mr. Barr, wished to climb round the mill in different places, and assume dangers contrary to the orders of his master, he assumed such risks himself, and the defendant is not liable. I don’t think it is the duty of the court to allow cases to go to the jury where, in his judgment, there are no facts to be passed upon by a jury. I might go all through the testimony in the case. But, upon that one point alone, the case should be taken from the jury, and the motion of the defendant’s attorney is granted.”

The jury was then brought into court.

“The Court: Gentlemen, under the ruling of the court on the question of law presented in a motion by the defendant’s attorney that the j ury be instructed to bring in a verdict of no cause of action, you are now instructed that there is nothing here for you to consider, and your verdict will be, ‘No cause of action.’
“Mr. Van I)e Mark: And the reasons, of course, your honor has embodied in your remarks just given to counsel on the motion ?
“The Court: Yes, sir.”

In making this disposition of the case the learned judge overlooked some of the important testimony in the case. Other witnesses testified that Mr. Barr was the day oiler, and that there was no other man to do any oiling in the basement during the day. Mr. Elliott himself testified:

“A. He was the only man that oiled there in the daytime.
“Q. If he should see any machinery in there that needed oiling, it was his duty to oil it, was it not ?
“A. Well, it was his duty to oil it or notify me, one or the other. He did all the oiling that was done under the mill during the day. * * *
Q. I believe you stated that any oiling that was needed in there, whatever it was, it was his duty to oil it ?
“A. If there was a box running warm, I should suppose he would put some oil on it; or notify me. I told him if anything was not right to notify me when he went in there to work.”

In Elwood v. Telegraph Co., 45 N. Y. 549 (6 Am. Rep. 140), it is said:

“It is undoubtedly the general rule that where unimpeached witnesses testify distinctly and positively to a fact, and are uncontradicted, their testimony should be credited, and have the effect of overcoming a mere presumption; * * * but this rule is subject to many qualifications. There may be such a degree of improbability in the statements themselves as to deprive them of credit, however positively made. The witnesses, though unimpeached, may have such an interest in the question at issue as to affect their credibility. * * * And, furthermore, it is often a difficult question to decide when a witness is, in a legal sense, uncontradicted. He may be contradicted by circumstances, as well as by statements of others contrary to his own. In such cases, courts and juries are not bound to refrain from exercising their judgment, and to blindly adopt the statements of the witness, for the simple reason that no other witness has denied them, and that the character of the witness is not impeached.
“Very clear and decisive evidence was required in' this case to establish that the message which came over the defendant’s wires was not communicated in the natural and ordinary manner. From the necessity of the case, such evidence as there is to that effect proceeds wholly from parties having an important interest in the question. Each of them, if guilty of the negñgent act, would have the strongest motive to deny it, as the admission would subject him or her to severe responsibility for the consequences. This is a controlling consideration in determining whether the statements of these witnesses should be taken as conclusive. Without imputing a want of truthfulness to these witnesses, we think that their relation to the subject-matter-in controversy was of itself sufficient to take from the court the right to dispose of the case upon their evidence, and to require that the jury should pass upon the weight to be given to their statements.”

See, also, Michigan Pipe Co. v. Michigan Fire & Marine Ins. Co., 92 Mich. 482 (52 N. W. 1070, 20 L. R. A. 277).

Mr. Hammond was the engineer in the mill, and had charge of the machinery in the basement the year before. He testified, in part, as follows:

“I know where Mr. Barr was killed. At that time I was attending to my work as engineer. I saw Mr. Barr when he was at work in this basement.
“Q. What were his duties ?
“A. His duties were to keep the machinery oiled underneath the mill, and empty the boxes that held the refuse from the trimmers, and wheel it into the fire-hole. That is my opinion; but that is what I saw1 him doing anyway. He had two lines of duty,- — to keep this refuse cleared and oil the machinery. * * *
“Q. To what extent had you seen Mr. Barr oiling there in the basement that spring?
“A. Oh, I had seen him working in there at different times, * * * perhaps to the extent of two, three, or four days — something like that — after this place [the shaft where he was killed] was put in here. * * *
“Q. What do you say whether or not it is the duty of a man oiling machinery like that, in that place, to give it his attention, and oil the bearings whenever they needed it?
“A. I could not answer any different than to say that, if I were the oiler, and had instructions to oil, I would oil it when I thought it was necessary.
“Q. Whose judgment governs in regard to that matter ?
“A. In my opinion, the man’s that was doing the work.”

. We think this testimony made a very plain issue of fact for the jury as to whether or not Mr. Barr was in the discharge of his duty when he was hurt. Emlaw v. Emlaw, 20 Mich. 11; Hamilton v. People, 29 Mich. 173; Klumph v. Bousfield & Co., 112 Mich. 68 (70 N. W. 317).

It is insisted by defendant that, even though the court gave a wrong reason for his decision, the case ought not to be reversed. Counsel say the plaintiff failed to show any negligence on the part of defendant; that employing a set-screw in the manner which was done here was not negligence; and the verdict was properly directed,— citing Groff v. Mill Co., 58 Minn. 333 (59 N. W. 1049); Monforton v. Brick Co., 113 Mich. 39 (71 N. W. 586); Sakol v. Rickel, 113 Mich. 476 (71 N. W. 833); and other cases. An examination of these cases will show they are easily distinguished from the case at bar. In the Minnesota case the record shows the oiler had been employed four months, and well knew the location of the various parts of the machinery which injured him. In the Sakol Case the plaintiff had charge of the machinery where he was hurt a long time. He generally used a lamp while he was oiling the machinery when it was running, because it was dangerous to oil it in the dark; but, on the occasion when he was hurt, he attempted to oil it in the dark, ■though he knew it was dangerous to approach the running machinery without a light. In the Monforton Case the young man who was hurt had been warned to keep away from the shaft, and his duties did not require him to go near it. The counsel for plaintiff do not claim the plaintiff is entitled to recover simply because a set-screw was used, but do claim it was negligence to use the set-screw where it was used when it might easilyhave been covered, and to put an inexperienced man at work where his duties would expose him to the danger of coming in contact with the dangerous machine, without calling his attention to the danger. We think, under the proofs, there was a case made upon the question of the negligence of the defendant, which should be allowed to go to the jury. The other questions have been considered, but we do not deem it necessary to discuss them.

Judgment is reversed, and new trial ordered.

Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    LEACH v. DETROIT ELECTRIC RAILWAY.
    1. Trial — Evidence—Failure to Except.
    Where plaintiff’s counsel, on an objection to a question asked by him and answered by a witness, stated that he would not insist on the question, and the defendant failed to except, an assignment of error based on the admission of such evidence will not he sustained.
    2. Same — Harmless Error.
    Where it was not disputed that a witness* for plaintiff was the conductor of the car in which plaintiff was a passenger, it was harmless error to allow him to testify that he said to a third person that he could tell him who was the conductor of the car.
    3. Same — Verdict on Former Trial.
    Where plaintiff’s counsel asked a witness if he had not stated that he had heard that plaintiff had recovered a verdict of $2,500 on a former trial, and the associate counsel, on objection made, stated that such was not the verdict, and the court directed the jury that the result of the former trial could have nothing to do with the case then being tried, the question was not prejudicial error.
    4. Same —Street Railways — Negligence—Argument oe Counsel.
    A street-car conductor, called as a witness for plaintiff in an action against the company for personal injuries, testified, on cross-examination, that he was discharged for incompetency, and defendant introduced evidence that he was discharged for not ringing up fares. Plaintiff’s counsel argued that the company was remiss in leaving an incompetent man on the car. Held, that such statement was not prejudicial error as an argument that plaintiff’s injury resulted from the general incompetency of the conductor, but was a comment on the testimony affecting his credibility.
    5. Same — Instructions.
    An instruction that there was no evidence that the conductor was incompetent, and that defendant could not be held liable for employing him, was properly refused, so long as there was evidence of such incompetency, though the declaration did not rely upon the fact.

      Error to Wayne; Brooke, J.
    Submitted December 11, 1901.
    Decided January 7, 1902.
    Case by Angeline Leach against the Detroit Electric Railway for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Thomas T. Leete, Jr., for appellant.

      Navin & Sheehan (M. J. Lehmann, of counsel), for appellee.
   Montgomery, J.

This case was before this court at the October term of 1900. A judgment for plaintiff was reversed, and a new trial directed. 125 Mich. 373 (84 N. W. 316). The case has again been tried, and plaintiff has again recovered, and the proceedings are before us for review.

Error is alleged upon the propounding of a question to plaintiff as to whether she had been able to pay her physician, and it is said that this was an effort to get before the jury the poverty of the plaintiff for the purpose of enhancing the damages. It appears that the question was asked and answered, and an objection noted, when plaintiff’s counsel stated that he would not insist upon the question, and no -exception was taken. This is a sufficient answer to the assignment of error.

The plaintiff produced as a witness one Babcock, the conductor who had charge of the car from which plaintiff fell, who gave testimony tending to-support the plaintiff’s claim. Upon cross-examination the defendant sought to show, and did show, that the report given in by the conductor to the company stated the facts differently than the witness gave them on the stand, and the defense also showed on cross-examination that the witness had been discharged by the company. On redirect examination the witness was asked whether he had seen Dr. Hawkins about the case before he was discharged, and asked to state what he told him. The answer was: “ Mr. Hawkins was telling me about the accident, — that he would like to find out who the conductor was, — and I informed him that I could tell him who the conductor was.” A motion was made to strike out this answer, and the court said, “I will let it stand, in view of your cross-examination.” Error is assigned upon this ruling. It is unnecessary to decide whether the case would come within the rule that a witness’ testimony may be supported by showing that he had made statements in line with his testimony prior to an alleged contradictory statement, within the rule in Stewart v. People, 23 Mich. 63 (9 Am. Rep. 78), as we think it apparent at a glance that all the witness stated could not, by any stretch of imagination, be deemed to have damaged the defendant. It was not a matter in dispute as to who the conductor was on this car, and the fact that the witness manifested a willingness to tell Dr. Hawkins who the conductor was in no way bore upon the question of how the accident occurred, or whether there was any responsibility for plaintiff’s injuries on the part of the company.

On the cross-examination of the witness Thomas the following occurred:

Q. Did you tell Mr. Mainville, after your testimony on the last trial, in the city of Detroit, words of this import: You heard the old lady got a verdict for $2,500; you did all you could to prevent it; that you did pretty well yourself ; you got $10 for coming here and swearing, and your expenses ?
“A. Not that way; no, sir.
Q. Did you make that statement, or words of that import ?
“Mr. Leete: I object to that as incompetent and immaterial.
“ The Court: Take the answer.
“Mr. Leete: Eor the further reason that it has the effect simply of bringing before this jury the result of the former trial.
The Court: The jury will pay no attention to that fact.
“Mr. Lehmann: That was not the verdict in the other case. That is simply what he said about it. It wasn’t the verdict.
‘ ‘ Mr. Navin: I have fixed the time and place for laying the foundation for the impeaching question.
“Mr. Leete: I desire to object, and I take an exception to Mr. Lehmann’s statement to your honor just now, upon the record.
‘ ‘ The Court: This jury will pay no attention whatever to what the result was on any former trial of this case. Simply try this case upon the testimony offered here, and upon nothing which occurred at any former trial. You may answer the question, witness. Mr. Leete, you may have an exception.”

It is urged by counsel that this is prejudicial, as it tended to get before the jury the result of the former trial. It will be noticed that the circuit judge very promptly informed the jury that the result of the former trial had nothing whatever to do with this trial; and, more than that, counsel for plaintiff stated at once, when the suggestion that that was the purpose was made, that the verdict on the former trial was not that stated in the question. It is very plain, therefore, that neither the purpose nor the effect was to give the jury to understand that the verdict was that stated in the question.

But it is said the most damaging error is shown in connection with a statement of plaintiff’s counsel. As before stated, when the witness Babcock was on the stand, he was cross-examined as to having been discharged by the company. He testified that he was discharged for incompetency. Defendant’s counsel sought to show by the witness that his discharge was for not ringing up fares, but the witness insisted that the charge against him was being incompetent. On the argument to the jury, plaintiff’s counsel, in the course of the argument, made the following statement:

“Now, let us see what other testimony they have got here. Why, they have got Mr. Stanley on here. What for ? Babcock told you, gentlemen, that he was tried for being incompetent. Mr. Stanley goes upon the stand to say that that was the charge against Babcock, just as Babcock said; but that he was incompetent in the matter of not ringing up as many fares as there were passengers in the car. Well, if he was incompetent, this railroad company has been very remiss in its duty to the thousands of citizens that it carries upon its cars, in leaving an incompetent man upon a street car one minute.”

It is claimed that this injected into the case a new issue, as there was no claim in the declaration that the conductor was incompetent. We do not think this language should be construed as an argument to the jury that the plaintiff’s injuries resulted from the general incompetency of the conductor, but we think it was rather in the nature of comment upon the force of the testimony as affecting the credibility of the witness produced by the plaintiff.

Complaint is also made of the refusal of the court to give the following request:

“ There is no evidence in this case that the conductor in charge of the car was incompetent, and the defendant cannot be held liable in this action for continuing him in its employment.”

The refusal to give this request was not error. It is now urged that the fault of the conductor vyas not the basis of the plaintiff’s action, as shown by the declaration. But the request was not put upon that ground, but asks' an instruction that there was no evidence showing incompetency of the conductor. There was evidence tending to show that the conductor was incompetent, and for this reason the trial judge properly refused the request.

We discover no error in the record, and the judgment will be affirmed.

Hooker, C. J., Moore and Grant, JJ., concurred.. Long, J., did not sit.


text:
    ADAMS v. DETROIT ELECTRIC RAILWAY.
    1. Trial — Impeachment op Witness.
    In an action for injuries sustained by being thrown from a street car, V., a witness for defendant, on cross-examination denied having stated to A. that plaintiff got on the foot-board of the car, but, before she could get in, the car started, and threw her off. On rebuttal, A. testified that V. told him that plaintiff was getting on the car, and was partly on, and the car started up suddenly, and threw her to the ground. Held, that there was a sufficient foundation for the admission of A.’s testimony.
    2. Same — Hearsay.
    But it was error to permit A. to testify further as to Y.’s statements concerning the narrow escape of plaintiff’s mother, and the habitual carelessness of the conductor, not only for the reason that no foundation had been laid for such testimony, and it was therefore mere hearsay, but because the matters referred to were immaterial, and not a proper subject for impeachment.
    3. Same.
    The fact that such incompetent testimony was introduced as an alleged impeachment did not render it any the less prejudicial.
    Error to Wayne; Waite, J.
    Submitted December 11, 1901.
    Decided January 7, 1902.
    Case by Marie Adams against the Detroit Electric Railway for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Thomas T. Leete, Jr., for appellant.

      Pierce & Kinnane ( Oscar M. Springer, of counsel), for appellee.
   Hooker, C. J.

The plaintiff recovered a verdict and judgment against the defendant for alleged injuries sustained by being thrown from defendant’s street car, and the defendant has. brought error. Her version of the affair is that she attempted to board a Jefferson-avenue car on the west side of the Boulevard, and was thrown upon the pavement by the sudden and unreasonable starting of the car. A police officer named Vernier, plaintiff’s mother, a Dr. Dewar, and one May Clements, a passenger, witnessed the accident, as did also the conductor and motorman, and possibly others. Vernier was called by the defendant, and testified that the car was moving when plaintiff got upon the footboard, and that after getting upon it, and seeing that her mother was not intending to follow her, she stepped off backward and fell, the car being still moving. The same evening he made a report of the accident, in the course of his duty. Upon cross-examination the following occurred:

• “ Q. Didn’t you tell this plaintiff’s brother, Mr. Adams, when he had the interview with you, that you witnessed the accident; that the car came along there, and stopped to take on passengers; that the young lady got hold of the car, and got upon the footboard, and, before she could get in, the conductor started up the car and threw her off?
“A. I did not.
Q. Did you tell him anything like that ?
“A. No, sir.
“Q. Didn’t he upon that occasion, after you made a statement of that kind to him such as I have detailed,— didn’t he ask you then and there what you meant by filing the report that you did at the police station ?
“A. No, sir.
“Mr. Leete: I object to the question as assuming that the witness said this when he denies having said it.
“The Court: He says no.
“Q. The interview that you had with the plaintiff’s brother— (To a person in the audience): Stand up. Is this the young man?
“A. Yes.
“Q. Is it not a fact that the interview that you had with him about this accident took place within 30 days from the date of the accident ?
“A. I think not.
“Q. Do you swear that it was not?
“A. I know it wasn’t.
“Q. You know that it wasn’t?
“A. To the best of my knowledge.
“Q. Did you have more than one interview with him about this accident ?
“A. That is all. Just the one.
Q. Did you make this remark on Wednesday afternoon, during the progress of this trial, in the presence or within the hearing of the gentleman who is sitting on the • end of this jury (pointing to a juryman): ‘Yes, sir; they
all turned in a good play ?’
“A. I did not. I didn’t say anything of the kind.
‘ ‘ Q. What did you say ?
“A. I did not say anything.
“Mr. Leete: I object to it as incompetent and immaterial.
The Court: Find out whether he said anything in the presence of the juror, or talked with the juror about the case. That is the only point that is material here.
Q. Did you say anything or make any remarks that any member of this jury might have heard on Wednesday afternoon, while you were in the public urinal in this building ? 1
“A. I don’t know that I did.
Q. You don’t know ?
“A. I don’t remember speaking to anybody in the urinal, or anywhere else, about the case.”

. On rebuttal, Adams was interrogated and testified as follows with reference to this alleged interview:

Q. Did you ask him about how this accident happened?
“A. Yes.
‘ ‘ Q. Did he tell you ?
“A. Yes, sir.
Q. Will you state now what he said to you upon that •occasion as to how the accident happened? (Objected to as incompetent and immaterial.)
“The Court: Take the answer. (Defendant excepts.)
A. He said that my sister was getting on the car, and was partly on, and my mother was standing right behind her, with her hand upon the handle bar; and the car started up suddenly, and threw my sister to the ground; and my mother would have been hurt, too, if he hadn’t hollered to her, ‘ Let go!’
Q. Did he say anything to you, upon that occasion, about the conductor’s action in starting the ca,r ? (Same objection. Overruled. Defendant excepts.)
“A. He said something about other accidents been happening there. He said the conductor was altogether too fast in starting cars at that point.”

The last question and answer should not have been permitted. The proper method of impeachment was not followed, but to and including the testimony that “the car, started up suddenly, and threw my sister to the ground,” the answer was admissible, as a foundation for it had been laid. It was not competent for the witness to state that his mother narrowly escaped. Neither was it proper to draw out the statement about other accidents. It was hearsay, and immaterial to the case, and could not properly have been made the subject for an impeachment. Counsel would not have attempted to show this fact in making plaintiff’s case, both because he would have known it to be hearsay, and because proof of former accidents would not have been admissible to prove the one sued upon. It is no less damaging because introduced as an alleged impeachment. See Rice v. Rice, 104 Mich. 379 (62 N. W. 833); De Armond v. Neasmith, 32 Mich. 231; People v. Thompson, 122 Mich. 411 (81 N. W. 344).

The judgment must be reversed upon this ground, and a new trial granted.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.