text:
    BALL v. AUDITOR GENERAL.
    Taxation — Void Sale — Refunding—Construction of Statute.
    Under section 111 of the tax law of 1891 (Act No. 200, Pub. Acts 1891), repealing the law of 1889 (Act No. 195, Pub. Acts 1889), but saving all existing rights, and providing that lands then delinquent should he sold under the earlier act, subject to the proviso that lands bid to the State under such provision should thereafter be subject to the provisions of the act of 1891, — where lands bid to the State under the act of 1889 were afterwards sold as State tax lands at county treasurer’s sale held pursuant to the act of 1891, the sale was under the latter act, and, as that act contained no provision for repayment of the purchase price in case the title should be declared void, the purchaser was remediless in such contingency.

      Mandamus by James E. Ball to compel Perry F. Powers, auditor general, to refund the purchase price of certain State tax lands.
    Submitted May 12, 1903.
    (Calendar No. 19,915.)
    Writ denied June 23, 1903.
    Relator became the purchaser at the annual tax sale on May 1, 1893, of the lands described in his petition. These lands were held by the State upon sales for taxes of 1888 and 1889. Relator received his deeds, but never recorded them. He first applied to the auditor general to cancel them and refund the money paid therefor, on the ground .of the invalidity of the sales under certain decisions of this court. The respondent refused. Thereupon relator applied to the circuit court, in chancery, for the county of Marquette, for the cancellation of, said deeds, and for a direction to the auditor general to refund the money paid therefor. The court, in chancery, granted the prayer, setting the deeds aside as irregular and void, but refused his prayer to direct the auditor general to refund the money. He now applies to this court for the writ of mandamus to compel the respondent to refund him said money.

      James E. Ball, in pro. per.

      Charles A. Blair, Attorney General (Charles W. McGill, of counsel), for respondent.
   Grant, J.

(after stating the facts). Relator did not purchase these lands at the sales for the delinquent taxes for the years 1888 and 1889. He purchased them under Act No. 200, Pub. Acts 1891. Acts prior to 1891 had provided for repayment to the tax purchaser where the tax deed had been held void; but Act No. 200 of 1891 contained no such provision, and the auditor general has no power to make such repayments except when authorized by statute. In the absence of such provision for' repayment, the purchaser buys at his risk, and takes only such title as the State had. Crane v. Reeder, 25 Mich. 320; People, ex rel. Rice, v. Auditor General, 30 Mich. 12.

Relator claims that the repealing clause of Act No. 200 (section 111) entitles him to the relief sought. The proviso of the repealing clause reads as follows:

“Provided, that all lands heretofore returned delinquent that have not been offered for sale shall be offered for sale by the auditor general under Act [number] 195 of the laws of 1889, and all proceedings relative to the sale of such lands, and the redemption thereof, and the issuing of deeds therefor, shall be conducted according to the provisions of said Act 195 of 1889 by the auditor general: And provided further, that any lands offered under the above proviso, and not sold, or that shall be bid off for the State, shall, after such offer or sale to the State, be subject to the other provisions of this act.”

It appears by the second proviso that the sale in this case was made, not under the law of 1889, but under the law of 1891. The language is susceptible of but one construction. The sales under the prior law had taken effect, and the title was in the State. The law of 1891 authorized another sale, and expressly provided that that sale should be made under the provisions of that act, and not under former acts. The relator is remediless, except through an act of the legislature.

The writ is denied.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    VICBORN v. POLLOCK.
    1. Judgments — Collateral Attack — Name of Defendant— Initials.
    A judgment cannot be attacked collaterally on the ground that defendant was described by his initials only, instead of his full Christian name; the record containing nothing to show that he was known by any other name than that given.
    2. Replevin — Execution—Evidence—Harmless Error.
    In replevin for property seized on execution against plaintiff’s husband, defendant was not prejudiced by the exclusion of the writ under which he claimed, where the court charged the jury that plaintiff could recover only such property as she had shown belonged to her.
    3. Same — Judgment.
    Where, in replevin for property seized on execution against plaintiff’s husband, in’operty belonging to the husband, and not covered by the replevin, was included in that turned over to plaintiff, defendant was entitled to a judgment- for the return thereof, or its value.
    Error to Cass; Carr, J.
    Submitted May 14, 1903.
    (Docket No. 79.)
    Decided June 23, 1903.
    Replevin by Florence E. Yicborn against Arthur L. Pollock. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Modified.

      Coy W. Hendryx and James H. Kinnane, for appellant.

      C. M. Lyle and Harsen D. Smith, for appellee.
   Grant, J.

One Burgette L. Dewey recovered a judgment against one H. P. Yicbórn in justice’s court for $26.65. Vicborn was a married man. He was about to leave Dowagiac, where he lived, to move to another part of the State. His goods were packed in a car ready for shipment by rail. The constable to whom the writ of execution was issued levied upon all these goods. While the inventory was being taken, plaintiff, the wife of H. P. Vicborn, caused a writ of replevin to be issued out of a justice’s court, describing certain of these goods, which she alleged were her property. The officer seized the goods by virtue of this writ. He found the goods in the basement of a store. The entire lot was taken, placed by a drayman on board the cars, and shipped. Property was taken not covered by the writ of replevin. The court directed a verdict for the plaintiff for such of the property as was shown to be hers, but refused to direct a verdict for the defendant for the property taken upon the writ which belonged to her husband. He also directed a verdict for plaintiff for nominal damages of six cents.

In the suit of Dewey v. Vicborn, the defendant was named H. P. Vicborn. There was no appearance by him. It nowhere appeared upon the record that he was known by any other name. The court excluded the record of that suit, and the execution and levy thereunder, as void, because the Christian name of defendant was not given. In this the court was in error. The judgment was valid under Hinkle v. Collins, 113 Mich. 105 (71 N. W. 481), and Stever v. Brown, 119 Mich. 196 (77 N. W. 704), and authorities there cited, and cannot be collaterally attacked. But this erroneous ruling was without prejudice, because the judge expressly charged the jury that plaintiff could recover only such things as she had proven to bé her property.

Whether plaintiff was responsible for taking goods not described in the writ does not appear. They were taken by the officer, who, by her direction, employed a drayman to convey them to the car for shipment. The officer delivered all the property to her. The court held that the right to the property belonging to her husband must be determined in another suit. We think the court in error. The officer took all the property, both that belonging to the wife and that of the husband, under the writ, evidently supposing that it was all covered by his writ. He delivered the same to the plaintiff. It was her duty to return to the defendant that which the jury found belonged to the husband, and that not described in the writ, as the defendant had a lawful right to levy upon it by virtue of his execution.

The judgment must be so modified as to direct a return or the value of the property which the jury found belonged to the husband. The case will be remanded, with instruction to the court below to enter such a judgment. Defendant will recover costs.

The other Justices concurred.


author: Hooker, C. J.

text:
    MOORE v. MUTUAL RESERVE FUND LIFE ASSOCIATION.
    1. Life Insurance — Application—Breach of Warranty— Waiver.
    Where a life-insurance company, on being informed that an applicant for a policy had been rejected by another company, and had taken the gold cure, contrary to the representations in his application, brought the matter to the attention of the applicant, who explained that he had not been rejected, but had withdrawn his application, and had not taken the gold cure, but had merely gone to the institution to influence a friend to go, and the company issued the policy in reliance on such explanations, it could insist on the original warranties in case the explanations were untrue, but not otherwise.
    2. Same.
    A life-insurance company,-by issuing a policy with knowledge of the falsity of certain warranties in the application therefor, waives the right to rely on those warranties, but not on others, of the falsity of which it has no knowledge. So held, where an applicant stated that he had never been rejected by any company, though he had in fact been rejected by six or seven, and also falsely represented that he had never been attended by a physician, or been an inmate of any infirmary or institute, that he had policies in two other companies, and that no physician had ever given an unfavorable opinion as to his insurability, and the company applied to issued a policy after being informed that he had been rejected by two companies, and had taken the gold cure.
    8. Same — Garnishment.
    The fact that a life-insurance company, on being garnished by a creditor of a beneficiary, merely filed a disclosui'e denying any indebtedness, and answered the special interrogatories, without setting up certain breaches of warranty on which it sought to rely until several months afterwards, when it obtained leave of court to file further answers, is insufficient to show a waiver of its right to rely on such warranties.
    4. Same — Burden of Proof.
    In an action founded on a life policy, the fact that the defendant insurance company was given the opening and rebutting in the introduction of testimony, because it had the burden of proving an alleged breach of warranty, did not affect the rule that plaintiff had the burden of proving a waiver of the breach by defendant.
    Error toWayne; Frazer, J.
    Submitted October 11, 1901.
    (Docket No. 47.)
    Reargued May 15, 1903.
    (Docket No. 80.)
    Decided June 23, 1903.
    Garnishment proceedings by George F. Moore and others, copartners as Edson, Moore & Co., and others, against the Mutual Reserve Fund "Life Association, as garnishee of Eva Winans. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      Elliott G. Stevenson, John D. Conely, and Leo M. Butzel, for appellants.

      Dickinson, Warren & Warren (Charles B. Warren, of counsel), for appellee.
   Hooker, C. J.

William N. Winans, the husband of Eva Winans, applied to the defendant on October 15, 1895, for a policy of insurance for $10,000 upon his life, payable to his wife. The application contained the usual questions, to which he made answer, and the provision that these answers should be warranties, and avoid the policy if they were not in all respects true. There was some delay in the acceptance of this risk by the company, but the policy was finally issued upon January 15, 1896, and sent to its agent, with direction to deliver upon the execution by the applicant of a certificate of good health, which, when executed, contained a reaffirmance that his statements in the application were true and should constitute warranties. The policy was delivered on January 18, 1896.

Winans was accidentally drowned on August 24, 1896, and upon August 25, 1896, a writ of garnishment was sued out in behalf of Edson, Moore & Co. against the defendant insurance company. A disclosure in writing was filed October 9, 1896, denying that, at the time of service, it was in any manner indebted to Eva Winans. It also stated that it had been previously served with similar process at the suit of two other alleged creditors of Eva Winans. On October 19, 1896, interrogatories were filed and served, and, October 26th, the time for answering was extended by stipulation to November 10, 1896, when the answers were filed, admitting the issuance of a policy to Winans for $10,000, payable to Eva Winans, that the last premium was paid August 1, 1896, that it had received papers purporting to be proofs of loss, and that it had no knowledge whether Winans was dead or not. Plaintiffs afterwards demanded a trial of the statutory issue in garnishment. The date of this is not stated.

On July 1, 1897, a motion was made and leave granted to file further answers, which set up in detail the alleged breaches of warranty upon which defendant relied at the subsequent trial, in which it was stated that, at the time when the former answers were made, it was not in a position to set out the breaches of warranty on which it relied. The cause was consolidated with three others of like character, and upon the trial a verdict for the defendant was rendered, by direction of the court, upon the ground that there were “warranties in this application that have been shown to be false, that were never brought to the knowledge of the company, and they never directly or by inference waived. Such is the warranty that he never had been treated by any other physician. Such is the warranty in regard to his temperate habits. Such is. the warranty in regard to his insurance in other companies. ” In his charge the learned circuit judge said further:

“It is also claimed that, at the time the proofs of loss were furnished, these facts were known; that is, that the giving of the proofs of loss, handing out this blank, allowing the party to make his proofs, is a waiver of any defenses that they now have or might have had at the time. I do not find under the evidence, as I look at it, that there was any such knowledge at the time these proofs of loss were furnished. Neither do I find that, under the law, the mere giving out of this blank is a waiver of anything.
“Another proposition is that the pleadings in this case prevented the defendant from setting up this defense. The pleadings recited the answers to the interrogatories. I believe now, as I did at the time I admitted those amendedinterrogatories, that they are part of the pleadings in this case. I see no evidence that they were not made the issue as soon as the company was informed of them.”'

The plaintiffs have brought error.

Upon the trial the court held that the burden of proof was upon the defendant to show the breach of warranties contained in the contract, and it was made to appear that the application contained the following:

“ It is hereby agreed that the answers and statements in this application (parts 1 and 2), whether written by the applicant or not, are warranted to be full, complete, and true, and that this agreement and the constitution or bylaws of the association, with the amendments thereto, together with this application, are hereby made part of any policy that may be issued hereon; that if any of the answers or statements made are not' full, complete, and true, or if any condition or agreement shall not be fulfilled as required herein or by such policy, then the policy issued hereon shall be null and void, and all money paid thereon shall be forfeited to said association; that the person soliciting or taking this application, and also the medical examiner, shall be the agents of the applicant as to all statements and answers in this application, and no statements or answers made or received by any person, or to the association, shall be binding on the association, unless such statements or answers be reduced to writing and contained in this application. ”

It also contained the following questions and answers:

“9. Has the applicant now any insurance on his life? If so, where, when taken, for what amounts,' and what kinds of policies ? Company or Association: Ætna, New York Life, National Union, A. O. U. W., Equitable of Iowa. Date issued: 1893, 1893, 1893, 1894. Amount: $2,000, $10,000, $3,000, $2,000, $20,000.
10. Has any proposal to insure the life of the applicant ever been postponed or declined? If so, by what company or association, and for what reason ? No.
“11. Has any proposal or application to insure the life of the applicant or for membership ever been made to any company, association, or agent upon which a policy or certificate of membership has not been received by you in person for the full amount and kind and at the rate applied for? No.
“12. Have you any insurance on your life or membership in any company or association not mentioned in answer to above question No. 9 ? No.
“13. Has any physician given an unfavorable opinion upon the life of the applicant with reference to life insurance or otherwise ? If so, state particulars. No.
“14. Has the applicant ever had any illness, local disease, injury, mental or nervous disease or infirmity ? If yes, state nature, date, duration, and severity of attack. Never sick in bed a day in my life.
. “15. A. How long since you consulted or were attended by a physician? Give date. B. State- name and address of such physician. C. For what disease or ailment ? D. Give name and address of each physician who has prescribed for or attended you within the past five years, and for what diseases and ailments, and date. E. Have you had any illness, disease, or medical attendance not stated above? A. None. B. Name, none. Address, -. O. None. D. Name, none. Address, -. E. No.
16. Have you used externally or internally any patent, proprietary,- or other medicines of any kind within the past two years ? If so, what medicines, and for what ? No.
“17. Has the applicant been an inmate of any infirmary, sanitarium, institute, asylum, or hospital? If so, where ? When ? Duration ? For -what cause ? State expressly each and every case. No.”

The testimony shows that his policy in the .¿Etna Company was canceled, for cause, five months before he made the application in this case. He had no policy in the New York Life-Insurance Company. He had a policy in the Independent Order of Foresters for $5,000. He had been rejected by the Home Life-Insurance Company of New York, the Mutual Life Company of New York, the Equitable Life Company of New York, the Mutual Benefit Company of Newark,. N. J., the New York Life-Insurance Company, and the .¿Etna Life Company of Hartford. He had also been rejected by the Berkshire Life-Insurance Company after the application to defendant was first made, but before its reaffirmance. Several physicians of life-insurance companies had given unfavorable opinions and reports. He had been treated by a physician in 1891 for chronic alcoholism, and by the physician in charge of the Neeley institute, at Northville, from April 29 to May 20, 1892, and by Dr. Brady, in Detroit, in 1894. He had been an inmate of the Neeley Institute for treatment for nearly a month.

These false statements were sufficient to invalidate the policy, unless a waiver or estoppel can be found. Rhode v. Insurance Co., 129 Mich. 112 (88 N. W. 400). There was testimony showing that the defendant had some information indicating the falsity of some of these statements before it issued the policy; e. g., it had ascertained that the Equitable Company had rejected him for some reason unknown to defendant’s officers, and that he had been rejected by the Home Life-Insurance Company for the reason that it was informed that he occasionally drank to excess; also that he was insured in the Michigan Mutual Life; also that he had taken the gold cure. There was testimony (undisputed) tending to show that the defendant had no information that other warranties were untrue, and it was shown that, when Winans’ attention was called to those mentioned, he explained them by saying that he was not rejected by the Equitable and Home Companies, but, becoming annoyed at their delay, withdrew the applications, and he denied taking the gold cure, but explained that he did go to the institute with a friend, solely to influence the friend to go.

It is contended that, by issuing its policy under these circumstances, the company waived not only its right to rely upon the warranties mentioned, but all of the others. If the explanations above stated were true, the warranties to which they apply could not now be insisted upon, but, if untrue, they would be available, and, in any event, the waiver of these would not constitute a waiver of others. The courts have manifested a reluctance to enforce forfeitures in actions upon life-insurance policies, and have-applied the doctrines of estoppel and waiver with much strictness against companies seeking to enforce them; but there can be no waiver nor estoppel which does not involve the knowledge by the company of the facts upon which the waiver or estoppel rests. The defendant cannot in this case insist upon a forfeiture based on the fact that Winans was insured in the Mutual Life, because it had notice of the fact, and chose -to issue its policy with that understanding. The same would be said regarding its information in relation to the rejections and the gold .cure, but for Winans’ denial and plausible explanation, upon which the defendant’s officers had a right to and apparently did rely.

But, aside from these, there are several other warranties which its officers believed when the policy issued, and these are sufficient to justify a forfeiture, unless subsequently waived either by acceptance of premiums or the failure to seasonably rely upon them in their defense. Finch v. Modern Woodmen of America, 113 Mich. 646 71 N. W. 1104); Ferris v. Assurance Co., 118 Mich. 485 (76 N. W. 1041); Brown v. Insurance Co., 65 Mich. 306 (32 N. W. 610, 8 Am. St. Rep. 894); Ketcham v. Accident Ass’n, 117 Mich. 521 (76 N. W. 5); Bennecke v. Insurance Co., 105 U. S. 359; Robertson v. Insurance Co., 88 N. Y. 541; Weed v. Insurance Co., 116 N. Y. 106 (22 N. E. 229); United States Ins. Co. v. Moriarty, (Tex. Civ. App.) 36 S. W. 943; Dover Glass Works Co. v. Insurance Co., 1 Marv. (Del.) 32 (29 Atl. 1039, 65 Am. St. Rep. 264); Equitable Life-Assur. Soc. v. McElroy, 83 Fed. 631, 28 C. C. A. 365.

The false statements were numerous. He was not insured in two companies that he claimed to have policies from. He had been rejected by four or five companies, though he said he had been rejected by none. Unfavorable reports had been made by physicians in several instances, though he stated no such report had been made. He had been attended by two physicians, contrary to his statement. That these representations were warranties, and maybe relied on as such, is beyond controversy. See Hubbard v. Mutual Res. Fund Life Ass’n, 100 Fed. 719 40 C. C. A. 665, and cases cited.

It is intimated that premiums were received with knowledge of the falsity of the warranties; but we find no evidence of this, nor does it appear that there was a fatal failure to disclose defendant’s claim. The disclosure unqualifiedly stated that the defendant was not indebted at the time of service to Eva Winans in any way or manner. It also prudently mentioned the service of earlier writs. The answers filed were responsive to the interrogatories. Before the cause was in readiness for trial, a most ■complete statement of the breaches relied upon was filed by leave of the court, upon the showing under oath that when the interrogatories were first answered, the defendant was unable to answer fully, as it was then engaged in investigating the subject. In this statement several grounds of defense were stated, some of which were consistent with a primary liability upon its policy, but that fact did not 'constitute a waiver of others which were stated.

Counsel for the plaintiffs assert that the defendant failed to show that the right to assert a forfeiture was not waived, because it failed to prove that it had no knowledge of these breaches when it filed its disclosure or first answers to interrogatories, insisting that there was no-proof upon the subject. It appears from the answer filed by leave of court, and the evidence in the case indicates,, that the policy was issued in reliance upon the application. There is no presumption of waiver, except when it is. based upon facts which tend to imply it, and there are-none here. Counsel build up an argument upon the fact that the court gave to the defendant the opening and rebutting in the introduction of .evidence, upon the theory that the burden was upon it to prove the breach of warranty. Undoubtedly the burden was upon the defendant to prove this affirmative defense, and in turn the burden' fell upon the plaintiffs to prove the waiver or estoppel, and this rule was not affected by the order in which the proofs. were made.

These are the main questions raised by the record, which justifies the conclusion reached by the trial judge-in directing a verdict for the defendant.

The judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    NORTHWESTERN COOPERAGE & LUMBER CO. v. BYERS.
    Contracts — Assignability.
    Defendants entered into a contract with a corporation, . whereby the latter agreed to erect a stave factory at a certain place, to operate it as long as the timber supply might warrant, not to buy or pay for its timber through any one merchant, and not to pwn or be in any way connected with a store or boarding house. Defendants were to furnish and lease free a site for the factory for the period of 10 years, to save the corporation harmless from all taxes assessed against the site, factory, and products during said period, and to. deliver free, within a short time, a certain quantity of timber. • In case the corporation should not operate its factory for 12 months, it was to pay all taxes assessed against its property during the time the factory was not in operation; and the lease was renewable at the option of the corporation, “its successors or assigns.” Held, that the contract was assignable by the corporation.
    Error to Iron; Stone, J.
    Submitted June 2, 1903.
    (Docket No. 2.)
    Decided June 23, 1903.

      Assumpsit by the Northwestern Cooperage &. Lumber Company against Isaac W. Byers and others on a contract of indemnity against taxation. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Cook & Pelham, for appellants.

      F. D. Mead (B. C. Flannigan, of counsel), for appellee.
   Moore, J.

This suit was commenced by declaration, to which the defendants demurred. The circuit judge overruled the demurrer, and entered a judgment in favor of the plaintiff. The defendants bring the case here by writ of error.

August 26, 1897, the defendants entered into an agreement with the Buckeye Stave Company. The first part of the agreement provided for the erection of a stave mill at or near Iron River, Mich., to be operated as long as the supply of timber lasts. The portipns of the contract material to this issue read as follows:

“ That in consideration of the obligations of the Buckeye Stave Company, as above set forth, the undersigned business men, farmers, taxpayers, and residents of Iron River township, Iron county, Michigan, agree that they will furnish and lease the said Buckeye Stave Company the site.free already selected.by them of from twelve to fourteen acres, level and graded suitable for yard and mill purposes, for their said factory, landing of logs, piling of products, and offices of said factory, for the period of ten years from the date hereof, with the privilege of renewing the lease at the expiration of the said ten years for a period of years as long thereafter as said Buckeye Stave Company, their successors or assigns, may use the said mill site for manufacturing purposes, on the same terms and conditions, except that said Buckeye Stave Company, their successors or assigns, shall pay all the taxes assessed against said mill site and property thereon; and further agree' that they will save free and harmless said Buckeye Stave Company from all taxes, ordinary and extraordinary, which may be assessed against the factory, buildings, machinery, logs, and manufactured products, and the mill site of said Buckeye Stave Company in the township of Iron River, Iron county, Michigan, during the ten years next ensuing from the date of this agreement; and they further agree that they will deliver free on or before the first day of April, A. D. 1898, at the factory aforesaid of said company, one hundred and fifty thousand feet of merchantable elm logs or their equivalent.”

On the 18th of December, 1898, the Buckeye Stave Company assigned this contract to the plaintiff, which last-named company did what the Buckeye Stave Company had agreed in the contract to do. The defendants did not pay the taxes of 1900. Property of the plaintiff was levied upon to satisfy said tax, when plaintiff paid it under protest, and this suit is brought to recover the amount thereof.

The questions involved are so clearly stated by the trial judge in a written opinion filed by him, that we quote therefrom:

“The ground of the demurrer is, ‘For the reason that the contract set forth in said count is personal in its nature, and not assignable, and that the pretended assignment thereof to said plaintiff could not confer any rights whatever upon said plaintiff.’
“ I have carefully examined the contract, as well as the authorities cited upon the hearing and in the plaintiff’s brief, most of which are referred to in 2 Am. & Eng. Enc. Law (2d Ed.), pp. 1034-1037, an.d notes. I am unable to agree with defendants’ position, and am of the opinion that the demurrer should be overruled. Whether the instrument is treated as a lease, an agreement for a lease, or a simple executory contract, the conclusion must, it seems to me, be the same. The rule is well stated in Bishop, Cont. § 1182:
‘“Not every sort of contract is in its nature assignable. For example, an agreement involving a personal trust in the party, or to be carried out by his personal skill, cannot be so assigned as to compel the other party to accept performance by the assignee, and pay him therefor. A familiar illustration whereof is that a master cannot validly assign over his apprentice. But the right to perform an agreement, and receive the money to be earned thereby, is, when not within this principle of personal confidence, assignable. Devlin v. Mayor, etc., of New York, 63 N. Y. 8; Tugman v. Steamship Co., 76 N. Y. 207. Of this a common illustration is a building contract. And, in general terms, a perfected claim to anything, whether money or goods, may be so assigned as to vest in the assignee the equitable interest, or, in some of the States, the legal.’
“To the same effect, 1 Pars. Cont. *p. 223 et seq., and notes.
“In this case the Buckeye Stave Company agreed with the defendants that it would, on or before the 1st day of January, 1898, erect, or have in process of erection, in or near Iron River, Michigan, and operate thereafter so long as the supply of timber may warrant, a stave and heading factory. It further agreed that it would not buy, or pay therefor, the logs or timber necessary to supply said factory, through any one merchant or business man in the township or village of Iron River; that it would not own, operate, control, or be in any way connected with, a store or boarding house in or near Iron River; and that it would, in case it did not operate the - said factory for 12 months, pay all taxes which might be assessed against it on its property during the time in which said factory was not in operation.
“As was said in Devlin v. Mayor, etc., of New York, supra, the contract was not purely personal, in the sense that the company was to perform in person. The things which the company agreed to do or have done were all to be done before the parties of the other part were to pay or save harmless the taxes. In this respect it might be said that its undertakings were conditions precedent to any expenditure by the other party. The company’s failure to perform in advance would be a good defense for the other party, and the same may be said of its assignee, the plaintiff. The taxes, in the sense of the authorities, were to be earned before there was any obligation on the part of the defendants to pay or indemnify; The principle, it seems-to me, is the same as though goods were to be paid for on delivery. I cannot see that the question of the responsibility or solvency of the Buckeye Stave Company was involved. Nor can it be said that the personal performance-by the Buckeye Stave Company could have been contemplated by the parties at the time this contract was made. It was a corporation, and must work through its agents, servants, and officers. The work, of necessity, required the labor and attention of a number of men; and it does not appear that, because of the company’s knowledge, experience, or pecuniary ability, or for any other reason, it was especially fitted to carry it on. There was nothing of a personal nature about it, and a personal performance by it was not the inducement nor the essence of the contract. Galey v. Mellon, 172 Pa. St. 443 (33 Atl. 560).
“If the contract be personal, and the performance of the party himself be the essence thereof, it neither devolves-upon his representatives, nor can it be assigned. Had the Buckeye Stave Company been a natural person, is there-any doubt that, in case of death, the contract would have devolved upon the representative ? I think not. I think that the true doctrine is that where an executory contract is not necessarily personal in its character, and can, consistent with the rights and interests of the adverse party, be fairly and sufficiently executed as well by an assignee as by the original contractor, and when the latter has not disqualified himself from a performance of the contract, it is assignable.
“It seems to me that the case of Arkansas Valley Smelting Co. v. Belden Min. Co., 127 U. S. 379 (8 Sup. Ct. 1308), can be readily distinguished from the case at bar. That case was one for the delivery of ore to the-assignor of the plaintiff. The price was not fixed by the-contract, nor payable upon the delivery of the ore. The vendee selected the sample and made the assay, and, during the time between which the ore was delivered and the-ascertainment and the payment of the price, the vendor had no security for its payment, except in the character and solvency of the vendee. The court held that the defendant could not, therefore, be compelled to accept the liability of any other person or corporation as. a substitute for the liability of those with whom it had contracted. But the courts uniformly hold that where goods are to be sold and delivered, and paid for on delivery, the vendee may assign the contract, where nothing remains to be done by him but the payment of money. Delaware County Com’rs v. Diebold Safe & Lock Co., 133 U. S. 473 (10 Sup. Ct. 399).”

Counsel for defendants, in support of the claim that this contract was not assignable, cite Globe & Rutgers Fire-Ins. Co. v. Jones, 129 Mich. 664 (89 N. W. 580). We think that case is not in point. The question involved there was whether an employé could be compelled to perform services for a different employer than the one with whom he made his contract, and it was held he could not. See 2 Am. & Eng. Enc. Law (2d Ed.), p. 1037, notes, and cases cited therein. The learned circuit judge- so clearly stated the principles of law involved that we content ourselves by citing Himrod Furnace Co. v. Railroad Co., 22 Ohio St. 451, and by suggesting that the contract itself contemplated it might be assigned, by providing for a renewal of the lease ‘ ‘ for a period of years as long thereafter as said Buckeye Stave Company, their successors or assigns, may use the said mill site,” etc.

Judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    VINING v. DETROIT, YPSILANTI, ANN ARBOR & JACKSON RAILWAY.
    Street Railways — Franchise—Rate of Fare.
    A street-railway company, operating its road through a village under a franchise therefrom prescribing the rate of fare per mile for travel over any portion of its line, is bound by such rate, as to passengers to’ or from such village, irrespective of the conflicting provisions of franchises granted by other municipalities.

      Error to Wayne; Carpenter, J.
    Submitted June 2, 1903.
    (Docket No. 3.)
    Decided June 23, 1903.
    Case by Edward M. Vining against the Detroit, Ypsilanti, Ann Arbor & Jackson Railway for an unlawful ejection from defendant’s car. From a judgment for-plaintiff, defendant brings error.
    Affirmed.

      Corliss, Andrus, Leete <& Joslyn (Bay B. Morgan, of counsel), for appellant.

      Thomas Kissane, for appellee.
   Montgomery, J.

This suit was commenced in the justice court to recover damages for an alleged unlawful ejection from defendant’s car. Plaintiff had judgment, and an appeal was taken to the circuit court, where a Verdict was rendered by a jury for the sum of $75, and, upon a motion being made by defendant to set aside such verdict as unwarranted by the evidence, judgment was entered for the sum of $40.

. Defendant is a street-railway company operating cars between the cities of Detroit and Jackson, through numerous townships, villages, and cities, among others the village of Wayne, situated in the township of Nankin. On the day in question, the plaintiff, a lawyer residing in Wayne, boarded a west-bound car, and tendered six cents as his fare to a point in Canton township called Artley’s Corners, about 3-2- miles west of Wayne. In order to ride this distance, plaintiff must pass through parts of the village of Wayne and of the townships of Nankin and Canton. The conductor demanded ten cents as fare, — five cents as fare through Nankin and five cents as fare through Canton. Plaintiff refused to pay more than six cents, and the conductor returned one cent, and retained five as fare to the Nankin-Canton town line, where plaintiff was ejected from the car.

The only question for consideration here is the amount of fare to which defendant was entitled. The controversy arises over the apparently conflicting provisions relative to fare in the franchises of the townships and villages. Plaintiff claimed the right to ride through portions of the townships of Nankin and Canton upon the payment of fare at the rate of 1% cents per mile by virtue of the franchise of the village of Wayne, which provides that the company “ shall be entitled to charge at the rate of one and one-half cents per mile * * * between any two points on its line between the city of Detroit and the city of Ann Arbof.” On the other hand, defendant claimed the right to charge five cents for the ride in Nankin township, and five cents for the ride in Canton township, basing its claim upon the provisions of the franchises of these townships, which are identical as far as they relate to fare. The Nankin franchise provides that “the rate of fare for any distance on the line of said railway within the said township of Nan-kin shall not exceed five cents, and the rate of fare for any distance on the line of said railway outside of the said township of Nankin shall not exceed two cents per mile.”

It is contended by defendant that to permit the plaintiff to rely upon the franchise of the village of Wayne is to give to that franchise extraterritorial effect, and that this cannot be done, and that such construction ought not to be given as to extend the force of the ordinance or franchise beyond the limits of the village. It would seem that we have been unsuccessful in the effort to express ourselves with sufficient clearness in the various judgments rendered against this defendant, although the language employed in our decisions has not been obscure. In the case of Rice v. Detroit, Ypsilanti & Ann Arbor Ry., 122 Mich. 677 (81 N. W. 927, 48 L. R. A. 84), we had under consideration a franchise granted by the village of Dearborn, which provided the rates of fare which the defendant company might charge from any point in the village of Dear-born to Woodward avenue in the city of Detroit, and providing that tickets should be kept for sale upon each car operated by the company. We said in that case:

“The franchise is in the nature of a contract, and imposes obligations upon the company which those having occasion to ride from Dearborn to Detroit have a right to enforce.”

It was further said in ’that case:

“ The plaintiff’s right under this franchise is not different than it would have been had the franchise in Spring-wells been silent on the subject of fares. The defendant saw fit to contract with the village of Dearborn for a rate outside the limits of the village, and to agree that tickets should be sold on its cars. This contract it cannot repudiate. ”

Applying that language to the present case, it would seem to decide the case for the plaintiff. To the same effect was the holding in Coy v. Detroit, Ypsilanti & Ann Arbor Ry., 125 Mich. 616 (85 N. W. 6). That the defendant has obligated itself to accept, .as compensation from any passenger to or from the village of Wayne to or from any point on its road, the rate of 1½ cents per mile, is too clear for argument, and, moreover, has been ruled by the foregoing cases.

Judgment is affirmed, with costs.

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


text:
    FLINT LAND CO. v. AUDITOR GENERAL.
    Tax Deeds — Certificate oe Error — Authority oe Auditor General.
    Under section 98, subd. 1, of tlie tax law of 1893 (1 Comp. Laws, § 3921), authorizing the auditor general to issue a certificate of error against a tax deed in case the land was not subject to taxation at the date of the assessment of the taxes for which it was sold, the auditor has no power to issue such certificate solely on the ground that the assessment erroneously included reassessed taxes for a former year.

      Certiorari by tbe Flint Land Company, Limited, to review the action of Perry F. Powers, auditor general, in issuing a certificate of error against a tax deed.
    Submitted June 3, 1903.
    (Docket No. 9.)
    Certificate vacated June 23, 1903.

      McFarlan & Wilson, for plaintiff.

      George W. Bridgman, for defendant.
   Montgomery, J.

This is certiorari to review the ■action of the auditor general in issuing a certificate of error - against a tax deed issued to relator on a sale of the land involved for taxes, pursuant to a decree of the circuit court for Berrien county, in chancery.

On April 18, 1901, a deed was made by the auditor general to the Flint Land Company, Limited, of land in the city of St. Joseph described as commencing 44 feet east of the northwest corner of lot 192, and running thence east on Ship street 22 feet; thence southerly, at right angles with Ship street, 66 feet; thence westerly, parallel with Ship street, 22 feet; thence northerly to place of beginning, — for taxes assessed thereon in the year 1895; and at the same time a certificate of purchase was issued for taxes assessed thereon in 1896, and the taxes for the year 1898 were paid; making the total consideration for said land $563.39. It now appears that the sale for the-taxes of 1895 also included certain taxes for thp year 1893, which were assessed in the year 1893 against property described as “22 ft. by 66 ft., west of east 66 ft. by 66 ft. of lot 192, •city of St. Joseph.” These taxes assessed in 1893 had been charged to the county by the auditor general for the reason that-the description was indefinite. In like manner the sale for the taxes of 1896 contained taxes for 1889 and 189-2 that had been assessed against an indefinite description, but undoubtedly the same land purchased by the plaintiff.

Application was made to the auditor general for a certificate of error against said deed, and several reasons were alleged in favor of granting such certificate; one being that the land was not subject to taxation at the date of the assessment of the taxes for which it was sold, for certain sums included with the taxes which were returned for 1895 and 1896, and that, said sale being made for a total sum for taxes of 1895 and 1896, and for each of said years that were included in the return, in excess of authority, such sale was in contravention of the provisions of the general tax law, and is for that reason void. Objection was also made that the 1896 tax included some few cents interest on a reassessed tax. Objection was also made that a certain tax is mentioned as “R. R. J. Tax.” Also objection is made that certain taxes originally assessed as bridge tax are reassessed as viaduct tax. Another objection is made that in the published list for 1895 the reassessed taxes of 1893 and the regular tax of 1895 were included together, and advertised under the head “ 1895 Taxes;” that is, the publication did not specify that a part of the 1895 tax was a reassessed tax of 1893.

The auditor general issued a certificate of error against the deed upon payment of $277.87, on the ground that the land was not subject to taxation, and presumably the balance of the $563.39 was charged to the county; and this action is brought to review his decision. The Flint Land Company, Limited, having served the statutory notice upon G. Hilton Scribner, of Yonkers, N. Y., owner of the property, and as the six months would expire before a final decision could be arrived at by this court, it has been stipulated that the owner shall have the right to pay the statutory amount at any time within 30 days after the final determination of the case.

Since the action taken by the auditor general in this ease, our decision in Cole v. Auditor General, 132 Mich. 262 (93 N. W. 890), has been handed down. It will be apparent from a reading of that decision .that the action of the auditor general had in this case cannot be sustained, Unless it be under the authority conferred by the first subdivision of section 98 of the tax law (1 Comp. Laws, § 3921) to vacate a sale in case “the land so sold was not subject to taxation at the date of the assessment of the taxes for which it was sold.” It is argued that as the assessment of 1895 included an item for reassessed taxes of 1893, and as it appears that there was no jurisdiction to assess the tax of 1893 against this land at that time (i. e., in 1895), the land was not, as to those taxes, subject to their assessment, and the auditor general has authority-under this section to set aside the proceeding. We cannot assent to this view. The taxes were in fact assessed against the property in question in 1895. At that time the land in question was subject to assessment. If we were to hold that the decree of the chancery court might be vacated by the auditor because there was included this item of taxes, it is difficult to conceive why the auditor general may not in any case review a decision of the court, and determine whether an item is included which the authorities had not the authority in the first instance to assess against the property in question. Such a view leaves out of account the binding force of the decree of the chancery court. Notice that a decree is asked for an aggregate amount is given. On the day of hearing, it is incumbent on the taxpayer to appear and assert any defense that may be open to him, and the defense in this case would have been that there was included in this aggregate an item which was included in the amount without authority of law. No such defense was attempted. This decree the auditor general cannot disturb.

The provisions of section 98 of the general tax law were first enacted by Act No. 136, Laws 1863. That statute was construed by this court as early as 1874, in the case of People, ex rel. Rice, v. Auditor General, 30 Mich. 12. It appeared in that case that certain ditch taxes, which made up the larger part of the tax for which the land was sold, were illegally assessed. It was sought to compel the refunding of the tax. The court, in construing this provision, said, “If the land was subject to assessment, and if taxes had been actually assessed, whether legally or illegally, and no attempt had been made to ascertain and pay them, no provision was made for refunding.” This authoritative construction should be read with section 98 of our present tax law, and would be decisive if the question were more doubtful.

The action of the auditor general must be vacated and held for naught. As the question involved is one of public interest, no costs will be awarded.

The other Justices concurred.


text:
    TOWNSHIP OF DECATUR v. COPLEY.
    1. Taxes — Suit for Collection — 'Tax Roll — Prima Paoie Evidence.
    The provision of 1 Comp..Laws, § 3870, that, in a suit for the collection of a tax, the tax roll shall- be prima facie evidence of the debt sought to be recovered, does not conflict with a taxpayer’s constitutional-rights.

      2. Same — Authority of Supervisor.
    Under 1 Comp. Laws, § 3870, providing for the collection of taxes by the township treasurer, by virtue of the warrant issued by the supervisor, by distress and sale, and authorizing him, if otherwise unable to collect a tax on personal property, to bring suit therefor, the authority of the treasurer, during the lifetime of his warrant, is exclusive, and suit cannot, within that period, be brought by the supervisor, under 1 Comp. Laws, §§ 2336, 3863, for the collection of a tax covered by the warrant.
    Error to Van Burén; Carr, J.
    Submitted June 5, 1903.
    (Docket No. 58.)
    Decided June 23, 1903.

      Assumpsit by the township of Decatur against Edwin B. Copley for taxes. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      A. L. Moulton and David Anderson, for appellant.

      T. J. Cavanaugh and L. A. Tabor, for appellee.
   Montgomery, J.

This action was brought to recover for taxes assessed against the defendant in the plaintiff township in the year 1901. While the tax warrant was still in the hands, of the township treasurer, and before the day fixed by law for its return to the county treasurer, this suit was commenced by authority of the supervisor, and without authority of the township treasurer. The circuit judge held that the suit could not be instituted by the supervisor while the warrant still remained in the hands of the township treasurer, and before the time fixed for the return; that during this period the law commits to the treasurer the duty of collecting the tax, and the supervisor has no duty to perform in connection therewith, and no authority to act in the premises. The court also held that the burden of proof rested upon the plaintiff to show that ‘the defendant was a resident of Decatur township at the time the assessment was made. The two questions indicated by the holding above stated are those presented for our consideration.

The statute (1 Comp. Laws, § 3870) makes the tax roll prima facie evidence of the debt sought to be recovered, and this provision is not in conflict with defendant’s constitutional rights. Wattles v. City of Lapeer, 40 Mich. 626; State Tax-Law Cases, 54 Mich. 385 (20 N. W. 493); City of Muskegon v. S. K. Martin Lumber Co., 86 Mich. 629 (49 N. W. 489).

The important question is whether the supervisor was entitled to bring this action while the tax roll was still in the hands of the township treasurer. We have held that inasmuch as section 3863, 1 Comp. Laws, provides that taxes, when assessed, shall become at once a debt to the township, the supervisor, being authorized by section 2336, 1 Comp. Laws, to bring suits on behalf of the township, may sue for this debt in the name of the township. Township of Bangor v. Transportation Co., 112 Mich. 601 (71 N. W. 143); Township of Deerfield v. Harper, 115 Mich. 678 (74 N. W. 207). In each of these cases, however, the suit was brought after the period fixed by law for the township treasurer to collect the tax. While we held in these cases that the failure of the township treasurer to make a return such as would justify the issuing of a new warrant did not discharge the debt, the question presented by the present record as to whether, during the period fixed by law for the collection by the township treasurer, his control of the tax roll, combined with authority to bring suit in certain cases, is exclusive of a similar right in the supervisor, was not discussed or presented.

Under a prior tax law, it was held in numerous cases that the warrant of the collector must be exhausted before suit could be brought. Staley v. Township of Columbus, 36 Mich. 38; McCallum v. Township of Bethany, 42 Mich. 457 (4 N. W. 164); Putman v. Township of Fife Lake, 45 Mich. 125 (7 N. W. 699); City of Detroit v. Jepp, 52 Mich. 458 (18 N. W. 217). It was said in Staley v. Township of Columbus that the tax roll is itself as complete and adequate as an execution on a judgment would be, if there be goods and chattels within the treasurer’s jurisdiction. And in McCallum v. Township of Bethany it was said that the warrant is in the nature of an execution for the collection of the taxes, and the remedy for their collection under it must be exhausted, and the taxes returned unpaid, before suit can be brought to recover them.

Plaintiffs counsel say that these authorities should not be held to apply, for the reason that section 1049, 1 How. Stat., is not embodied in our present tax law, and that it was this section which placed the limitation upon the right to sue. There is some force in this contention, but we understand the general rule to be that the usual process for collecting taxes is by the tax warrant, and that the courts will not ordinarily allow their process to be used for that purpose when the statute provides other remedies. 21 Am. & Eng. Enc. Pl. & Pr. p. 380. This is especially true where, at the time of the remedy sought to be invoked, the statute has prescribed a proper mode of procedure. Under our present statutes it is provided that a warrant shall issue to the township treasurer for the collection of the tax; and section 3870 provides for the seizure and sale bf the property of the taxpayer upon his failure to make payment within the time prescribed, and also provides that the township treasurer, if otherwise unable to collect a tax on personal property, may sue the person to whom it is assessed, in the name of the township, village, or city, .and garnishee any debtor or debtors of such person. In other words, the law providing for the collection of taxes commits for a certain period of time the collection of these taxes to the township treasurer, and prescribes the ways and means for collecting them; and while it is true that under the authority of Township of Deerfield v. Harper and Township of Bangor v. Transportation Co., supra, the debt may be collected by means of a suit instituted by the supervisor upon a failure of the township treasurer, within the life of his warrant, to accomplish that result, we see no reason for holding that the legislature intended a double remedy, or that the taxpayer should be harassed by two suits or two proceedings at one and the same time. We think that, during the period fixed by section 3870, the authority of the township treasurer must be held exclusive,'and that suit cannot be instituted during this time by the supervisor.

It follows that the judgment will be affirmed, with <costs.

The other Justices concurred.


text:
    PEOPLE v. MORGAN.
    1. Criminal Law — Grand Jury — Validity on Indictment.
    Though the statute (3 Comp. Laws, § 11885) contemplates that a grand jury will complete its work during the term to which it is summoned, yet, when it is continued into the next term, and is recognized by the court as a valid jury in receiving its indictments, it is a de facto grand jury, and its indictments are not void.
    2. Same — Motion to Quash — Challenge to Array.
    An indictment of a defacto grand jury, not being void, cannot be set aside on motion to quash or by challenge to the array. 3 Comp. Laws, § 11882.
    Exceptions before judgment from Berrien; Coolidge, J.
    Submitted June 12, 1903.
    (Docket No. 155.)
    Decided June 23, 1903.
    Orlando Morgan was convicted of violating the liquor law.
    Affirmed.

      O’Hara & O’Hara, for appellant.

      Charles A. Blair, Attorney General, and I. W~.. Biford, Prosecuting Attorney, for the people.
   Montgomery, J.

The sole question presented in this-case is whether an indictment returned by a grand jury which was summoned for and sworn at one term of court, and continued its work into the next, and was recognized by the court as a valid jury in receiving the indictment in question, should be vacated and set aside on the ground that the grand jury is functus officio at the end of the term for which it is chosen.

That the statute contemplates that the work of the grand jury will be done during the term to which it is summoned is apparent. 3 Comp. Laws, § 11885. Does it follow that, when the jury has in fact been continued into the next term, its proceedings are void ? This question was considered by the supreme court of Wisconsin in State v. Noyes, 87 Wis. 340 (58 N. W. 386, 27 L. R. A. 776, 41 Am. St. Rep. 45), and the conclusion reached that the de facto doctrine applies to the acts of a grand jury, and it was so applied in a case precisely analogous to the present. We quote from the language of Chief Justice Orton:

“It is contended that this body became functus officio as a grand jury on and after the last day of the September term. It was recognized by the court as a lawful grand jury, and the court received the indictments found by it, and finally discharged it from further service and ordered the payment of its fees.' The legal grand jury of the September term simply held over its term. There cannot be a more appropriate application of the de facto doctrine than to such a body as a grand jury de facto while thus holding over and doing business in the October term of the court.”

It is truly said by respondent’s counsel that the question there arose collaterally, but it will be noted that the court deemed it necessary to determine whether the acts of such a body were valid, and decided that question in the affirmative. In that opinion we concur, and have so announced in People v. Reigel, 120 Mich. 78 (78 N. W. 1017).

The acts of this jury not being void, may they be set aside on a motion to quash, or by challenge to the array ? This question is answered in the negative by 3 Comp. Laws, § 11882, and the prior decisions of this court. See cases collated in People v. Reigel, supra; and see, also, People v. Thompson, 122 Mich. 415 (81 N. W. 344).

The conviction is affirmed, and the circuit court directed to proceed to judgment.

The other Justices concurred.


author: Carpenter, J.

text:
    McINTYRE v. PFAUDLER VACUUM FERMENTATION CO.
    1. Negligence — Dangerous Premises — Platform Scales — Defects — Invitation to Use — Liability.
    Plaintiff, an employe of a cartage company, while engaged in hauling steel to defendant, drove upon a platform scale on its premises, for the purpose of weighing his load, and was injured by the platform’s giving way. The platform was adjacent to the premises of another corporation, the beam of the scales being in its office; and the scales were used in common by it and defendant. The actual ownership of the scales seemed to be in some doubt. Held, that defendant’s liability did not depend on its ownership of the scales, but, having impliedly invited plaintiff to use them, it was responsible for defects which, by the exercise of due diligence, it could have remedied.
    3. Same — Evidence—Question for Jury.
    In an action for injuries caused by the giving way of a platform scale, alleged to have been due to the rotten condition of the supporting timbers, evidence examined, and held not to show conclusively that the timbers were renewed within the time claimed by defendant; making the question of its negligence, in not discovering and remedying the defect, one for the jury.
    3. Same — Contributory Negligence.
    Whether plaintiff was guilty of contributory negligence in overloading the scales, or in not properly distributing his load, was also for the jury.
    4. Same — Instructions.
    Where all of the testimony in such action tended to show that timbers of the character of those in question might reasonably be expected to last at least five years, an instruction authorizing the jury to find defendant negligent “if ordinary experience ought to have advised a reasonably prudent man that the timbers would not remain sound for a period of a little more than four years ” was erroneous.
    Error to "Wayne; Brooke, J.
    Submitted April 8, 1903.
    (Docket No. 9.)
    Decided June 23, 1903.

      Case by John McIntyre against the Pfaudler Vacuum Fermentation Company, impleaded with the Detroit Safe Company, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Orla B. Taylor and Gray & Gray, for appellant.

      Hayes & Lawson and Tarsney & Fitzpatrick, for appellee.
   Carpenter, J.

This is the second time this case has been before this court. The facts will be found fully stated in the former opinion, reported in 129 Mich. 385 (89 N. W. 39). On the second trial a verdict was directed in favor of the Detroit Safe Company, and the plaintiff obtained a verdict and judgment against the Pfaudler Company. The latter company asks this court to reverse that judgment, for several reasons. It is claimed that the trial court should have directed a verdict in its favor on several grounds, viz.: First, the obligation to keep the scales in repair rested, not upon it, but upon the Detroit Safe Company; second, the undisputed testimony conclusively proved that the defective timber which caused the injury was put in new in 1893, that it was then sound, and that no rule of diligence required its inspection before plaintiff was injured; third, it is claimed on this record, as on the former record, that plaintiff’s load was too heavy for the scales, and not properly distributed, and that this was the occasion of plaintiff’s injury; fourth, it is claimed that the court erred in instructing the jury in the particular hereafter mentioned in this opinion.

1. Did the obligation to keep the scales in order rest upon the Pfaudler Company, or upon the Detroit Safe Company ? The platform of the scales was in a private alley, about 12 feet wide, situated between the building occupied by the Pfaudler Company, on the east, and that occupied by the Detroit Safe Company, on the west. The beam of the scales was in the office of the Detroit Safe Company. The scales were originally the property of the Detroit Safe Company, and it put these scales in the alley in 1890, while it had possession of the same under a lease from the Wesson estate. March 1, 1895, the safe company assigned this lease to James Sargeant, and on April 10, 1895, Sargeant assigned the same to the Pfaudler Company. At the time the lease was transferred to Sargeant, the safe company also delivered a bill of sale to him of “all of the property known as the tank department of the Detroit Safe Company, including all tools and machinery and materials belonging to said department.” To this bill of sale were annexed schedules and inventories of the property conveyed. These did not mention the scales. After the transfer, the scales were looked after and controlled by the safe company, though both the safe company and the Pfaudler Company used the same, without asking the permission of either. It is claimed by defendant, and its manager testified, that the scales remained the property of the Detroit Safe Company.

In our judgment, the liability of the Pfaudler Company does not depend on its ownership of the scales. At the time of the injury, plaintiff was an employé of the Shed-den Cartage Company, engaged in conveying a load of steel to the Pfaudler Company. He was on -the premises of the Pfaudler Company, using the scales, to fulfill a contract in which said company and himself each had an interest. Under these circumstances, defendant owed to plaintiff the obligation which an occupier of premises owes to one doing business with him on those premises by his invitation. The law which determines this obligation seems to have been settled in the case of Indermaur v. Dames, L. R. 1 C. P. 274, L. R. 2 C. P. 311. Plaintiff in that case was injured on defendant’s premises, while there “on lawful business, in the course of fulfilling a contract in which both the plaintiff and the defendant had an interest.” Said the court:

“We are to consider what is the law as to the duty óf the occupier of a building with reference to persons resorting thereto in the course of business, upon his invitation, express or implied. The common case is that of a customer in a shop; but it is obvious that this is only one of a class. * * * The class to which the customer belongs includes persons who go not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation, express or implied. And with respect to such a visitor, at least, we consider it settled law that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall, on his part, use reasonable care to prevent damage from unusual danger which he knows or ought to know, and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as matter of fact. * * * There was no absolute duty to prevent danger, but only a duty to make the place as little dangerous as such a place could reasonably be, having regard to the contrivances necessarily used in carrying on the business.”

It is true that in the foregoing case the occupier knew of the alleged defect. But the principle of the decision would hold him responsible for defects not known to him, if due diligence on his part would have discovered and remedied them. Cooley, Torts, p. 605; Campbell v. Sugar Co., 62 Me. 552 (16 Am. Rep. 503); Henkel v. Murr, 31 Hun, 28; Pittsburgh City v. Grier, 22 Pa. St. 54 (60 Am. Dec. 65).

2. Did the evidence warrant the jury in finding that due diligence would have discovered and remedied the defec-' tive timber before plaintiff’s injury? Defendant claims that the testimony conclusively proves that the scales were thoroughly overhauled, and new timbers put in, in October, 1893, and that the testimony conclusively proves that, according to experience, these timbers would not decay as early as January, 1898, the date of plaintiff’s injury, and therefore that defendant was entitled to a verdict. It is true that one Adolph Marschner, an expert scalemaker, does testify that these scales were rebuilt of new timber in 1893. But he also testifies that Mr. Paige, the manager of the safe company, was around at that time. Mr. Paige testifies that he does not know whether or not the timbers were taken out, and new ones put in, and that he supposes these timbers were put in in 1890. The bill presented by Mr. Marschner’s employer, for his services, was for “taking out, repairing, putting in, and repairing wagon scale.” An account was introduced in evidence, containing a charge against the safe company for lumber furnished by a lumber company for repairing these scales. That bill contains no items for timber answering to the description of what was claimed to be defective. We cannot, therefore, say that the fact that these timbers were put in in 1893 was conclusively established, We think the testimony not only failed to prove conclusively that these timbers were put in in 1893, but left the date when they were put in very uncertain. While Mr. Paige testifies that he thinks they were put in in 1890, at the time the scales were placed in the alley, he also testifies that he was away at that time, and therefore his testimony cannot be regarded as conclusive. He also testifies that “the scale ought to last five or six or seven years; it depends upon circumstances. It might last ten or fifteen years.” Whether proper diligence on the part of the defendant should have led to an examination of the timber, and discovery of the defect, therefore, was, in our judgment, properly submitted to the jury.

3. Whether or not plaintiff’s load was too heavy or improperly distributed was, according to the decision on the former hearing, a question for the jury. We do not think any such different question is presented by this record as to demand a different decision.

4. The court charged the jury:

“If you find either that the sticks were not put in new in 1893, or that ordinary experience ought to have advised a reasonably prudent man that sticks of timber of that character, situated as they were, would not remain sound for a period a little more than four years, then the negligence of the defendant the Pfaudler Company will have been established, provided you determine that the accident occurred by reason of the rotten character of the stringer.”

All the testimony in the case tended to prove that such timber would last at least five years. There was no testimony which would warrant the jury in finding that ‘ ‘ ordinary experience ought to have advised a reasonably prudent man that sticks of timber, of that character, situated as they were, would not remain sound for a period a little more than four years.” It is not true, as contended by plaintiff’s counsel, that the fact, if it was a fact, that these timbers decayed in four years and three months, would afford “evidence that common experience had shown that they would not last as' long or longer than that.” A single instance is no evidence of common experience. The jury were therefore invited by this charge to base their verdict upon facts or information not contained in the sworn testimony, and the charge was therefore erroneous.

Complaint is also made of remarks made by plaintiff’s counsel in his argument to the jury. These remarks were improper. As the case must be reversed for the error already pointed out, we refrain from deciding whether or not these remarks constituted reversible error.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


text:
    GREENFIELD v. DETROIT & MACKINAC RAILWAY CO.
    1. Railroads — Passengers on Freight Trains — Rules.
    Railroad companies have the right to prescribe the conditions on which passengers may ride on freight trains.
    3. Same — Violation.
    One riding upon a freight train by arrangement with the conductor, contrary to a rule of the company known to both, is not a passenger.

      3. Same — Permits to Ride — Waiver.
    A railroad company may waive a rule forbidding the carrying of passengers on freight trains without a permit, by a long-continued disregard thereof.
    4. Same — Evidence—Question for Jury.
    In an action for injuries received while riding on defendant’s log train, in which it appeared that a rule of the company required persons so riding to have permits, plaintiff testified that he frequently rode without them, and had so ridden when defendant’s train-master was aboard; that he had not obtained a permit for a long time, and had never been refused passage. Others testified that it was customary to ride without them, on the payment of fares. The fares and mileage collected were reported to the company. Held, to warrant the jury in finding that the rule had been waived.
    5. Same — Trial—Improper Remarks of Counsel.
    In an action against a railroad company for injuries to a passenger, defendant’s attorney asked plaintiff’s attorney to admit that the conductor was killed in the same accident; and plaintiff’s attorney replied that “there is no question about that, and it is a fact that the railroad company settled • with the widow.” Held, that as the trial court, on exception by defendant, immediately stated that the remark was improper, ought not to have been made, and must not be considered by the jury, the judgment would not be reversed therefor.
    6. Same — Negligent Loading of Cars — Defective Appurtenances — Questions for Jury.
    In an action for injuries to a passenger on a log train, caused ’ by the derailment of a car, evidence examined, and held to raise a question for the jury;
    (1) As to whether logs not chained were properly loaded.
    (2) As to the existence of a defect in a car wheel that a proper inspection would have disclosed.
    7. Same — Instructions.
    A refusal to instruct that “if plaintiff was a passenger on defendant’s log train, and the accident which caused his injury occurred while the train was being operated in the usual manner in which log trains are operated upon well-managed railroads, and the train was such a train as is usually run for the purpose of carrying logs on well-managed railroads, then plaintiff cannot recover,” was not prejudicial error, in view of the explicit instructions given as to the particular acts of negligence relied on.

      Error to Alpena; Emerick, J.
    Submitted June 4, 1903.
    (Docket No. 26.)
    Decided June 23, 1903.
    Case by William Greenfield against the Detroit & Mackinac Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Defendant did a large business transporting logs on its road north of Alpena. Plaintiff was a lumber scaler, and attended to the purchase and shipment of logs over the road. He had been so employed during the seasons for lumbering for about 4£ years previous to January 21, 1900, when he was injured. He testified that he was thus occupied for about 27 months, and that he then rode on these log trains on an average of 10 times per month.
    On January 21, 1900, defendant sent a train of 21 cars, with a competent crew, to Miller’s Spur, on the Cleveland branch of its road, to be loaded with logs. Some of the cars were loaded with maple logs, and others with peeled hemlock logs. Plaintiff entered the caboose for carriage to Alpena. During the run, a log fell from one of the cars in front of the caboose.' The forward end struck a stump, and the other end struck the axle of one of the wheels under the caboose, derailing it. Plaintiff immediately went on the flat car in front, which had only one tier of logs on the forward end. It was necessary to leave the end of the car next to the caboose free, in order to use the brakes there if circumstances required. When the caboose struck the switch, it was overturned, and carried the car in front with it, injuring the plaintiff.
    The defendant carried passengers, and had mixed trains for that purpose; that is, freight trains with a passenger coach attached, and running on schedule time.
    Plaintiff brought suit for damages, claiming negligence on the part of defendant. The negligence relied on to sustain the judgment is the improper loading of the logs, and a defective wheel under the caboose. The record presents three questions for determination: (1) Was plaintiff a passenger? (2) Should the judgment be reversed for the improper language used by plaintiff’s attorney upon the trial? (3) Was the defendant guilty of negligence? The facts, so far as essential, are stated in connection with each question discussed.

      Charles R. Henry and T. A. JEJ. & J. C. Weadock, for appellant.

      Dafoe & Scott and W. H. Simpson, for appellee.
   Grant, J.

(after stating the facts). The important question in the case is the first one.

1. The defendant had verbally instructed the conductors of its log trains to carry no passengers thereon without a permit, and the court so instructed the jury. The contention of the defendant is that plaintiff had knowledge of this instruction, and knew he had no right to ride upon this train as a passenger. The contention of the plaintiff is that he did not know it. It is true that plaintiff at one time knew permits were required, for 'he admits that he obtained at least 30. He, however, testified that he did not know that imperative instructions were issued to that effect; that he frequently rode without permits, and had so ridden when defendant’s train-master was aboard, sometimes paying his fare in money, and again by mileage; that others did so, and that he had not obtained a permit for a year and a half before the accident; that he had never been refused passage by any conductor; and that he entered the caboose, intending to pay his fare. There was also evidence from other witnesses that it was customary for persons to ride on these trains without permits, upon payment of fares. The fares and mileage collected were reported to the company.

There is no doubt as to the law. Railroad companies may prohibit the carriage of passengers upon their freight , trains, or prescribe the conditions upon which they may ride thereon. Thomas v. Railway Co., 72 Mich. 355 (40 N. W. 463); Randall v. Railway Co., 113 Mich. 115 (71 N. W. 450, 38 L. R. A. 666).

Plaintiff could not become a passenger by making an arrangement with the conductor to permit him to ride, contrary to a rule of the company known to both. McVeety v. Railway Co., 45 Minn. 268 (47 N. W. 809, 11 L. R. A. 174, 22 Am. St. Rep. 728).

The theory upon which this case was submitted to the jury was that the defendant had waived this rule, and that plaintiff was justified in so believing. That railroad companies may, through a long-continued, open, and notorious disregard of their rules by their employés, waive their enforcement, is well established. The instructions of the court upon this question were full and explicit, and it is not necessary to quote them. Counsel do not criticise them, their sole claim being that there was no evidence upon which to base such instructions. We think the question was properly submitted to the jury.

2. The conductor of the train was killed in the same accident. For the purpose of laying the foundation for objecting to testimony as to facts equally within the knowledge of plaintiff and the conductor, the defendant’s attorney upon the trial asked the plaintiff’s attorney to admit that the conductor was killed, to which plaintiff’s attorney replied: “There is no question about that, and it is a fact that the railroad company settled with the widow after-wards for it. ” Defendant’s counsel excepted to the remark, and the judge immediately stated that it was improper, ought not to have been made, and must not be considered by the jury. Defendant’s counsel urge this as reversible error. If the presiding j udge had not promptly and emphatically censured the plaintiff’s attorney for making the remark, and told the jury that they must not consider it, it would have been error, within many decisions of this court. Such remarks are designed to prejudice the jury, else they would not be made. My Brethren are of the opinion that, under the circumstances, the case should not be reversed for this error, and I reluctantly assent to their opinion.

3. Defendant’s counsel insist that the evidence conclusively establishes the fact that the logs were properly loaded. Experienced lumbermen, and other experienced persons in transporting logs by cars, witnesses for the ■defendant, testified that there were two methods of loading cars, — one with the use of chains, and the other without chains; that there is no difference between the two in respect to safety; and that the main object in using chains is to carry larger loads. The chains are bound over the top of the logs, and then other logs are placed loose on top of them to bind the load. They also testified that logs, when properly loaded, sometimes fell off. One of the defendant’s witnesses testified that, “if loaded properly, they should be chained.

Q. Are chains always used ?
“A. No, sir.
Q. What other way is there for loading properly ?
“A. Well, they put in stakes of proper lengths, and proper kind of wood; and then', of course, in loading with stakes, without chains, they could not be loaded so heavy.
Q. What is the purpose of using chains ?
“A. Well, to put on a bigger load.”

Defendant also introduced evidence that, at the time of the trial, chains were no longer used. The hemlock logs upon this train — at least, those on the car immediately in front of the caboose — were peeled. It is manifest that, in case of a sudden jar upon stopping or starting the train, they would slip more readily than when chained, and more readily than would logs with bark on them. In view of this fact, and the testimony above quoted, we are not prepared to hold, as an undisputed fact, that these logs were properly loaded.

4. There was testimony introduced by plaintiff tending to show that a piece of the flange, about 19 inches in length, was broken out of one of the wheels under the caboose, and that there was an old crack in the outer rim at the place .where the break occurred. One of the witnesses, who examined the wheels about 12 hours after the accident, testified:

“I noticed one wheel that was broken. It was nearest to the switch towards Onaway. It had the appearance of being the first one that went off. It came off the rear end of the way-car. The flange to it was broken off. There was about 19 inches broken off.
‘ ‘ Q. State how it was broken, and, after it was broken, how it left that part of the wheel.
“A. Well, on the flange it had about three-quarters of an inch of rust on it; looked like an old crack; and it ' struck something and knocked the rest of it.
Q. After it was broken off the wheel, how did it leave ihe wheel itself?
“A. Left the wheel so it had no flange to hold it on the rail for 19 inches.
Q. You examined the wheel, did you?
“A. Yes, sir.
Q. Could you find the flange ?
“A. No; we looked for it, but couldn’t find it.
Q- As it was broken off on the wheel, how was the break ? State how it looked.
“A. Well, it looked as though it was a crack in it, and it got rusted by the weather, or something made it rusted three-quarters of an inch deep. * * * The rest of the break was bright.”

The court instructed the jury that if this “was an essential element in the happening of the accident, — that it would not have happened without it, — and that it could have been observed by a proper inspection, the defendant would be negligent in that regard.” We think there was ■evidence justifying the submission of this question to the jury.

5. Complaint is made of the refusal of the court to give the following instruction:

“If the plaintiff was a passenger upon the defendant’s log train, and the accident which caused his injury occurred while the train in question was being operated in the usual manner in which log trains are operated upon well-managed railroads, and the train was such a train as is usually run for the purpose of carrying logs on well-managed-railroads, then plaintiff cannot recover.”

As a general statement of the law, the request is sound. It is subject to criticism, in that it omits any reference to the specific acts of negligence alleged and relied upon. In view of the explicit instructions of the court upon the subject of the defendant’s negligence, we think the refusal tO' give this request not prejudicial. The court distinctly instructed the jury that if the logs were properly loaded, or if they were liable to fall off when so loaded, plaintiff' could not recover. There was no question about the-equipment of the train or the method of operating it. Tim sole acts of negligence charged were the two, and to these alone the jury were specifically directed.

Judgment affirmed.

The other Justices concurred.


text:
    MILLER v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    Railroads — Injury to Employé — Side Tracks — Open Drain— Assumption op Risk.
    A brakeman, while running backward on a side track, adjusting the coupling on a car, was tripped by stepping into an open drain under a switch, run over, and killed. The drain had been there for years, and the brakeman had been in the employ of the railroad for more than a year, as a member of a switching crew which daily stopped at the siding for dinner, and put in or took out cars there four or five times a day. No complaint had ever been made by him as. to the condition of the drain. Held, that he had assumed the risk.
    Error to Wayne; Brooke, J.
    Submitted October 10, 1902.
    (Docket No. 42.)
    Decided June 30, 1903.
    Case by Christine Miller, administratrix of the estate of John Miller, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company, for negligently causing the death of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    Plaintiff’s decedent was a brakeman in the employ- of the defendant. The accident by which he met his death occurred in the defendant’s yard near Perry avenue, in the city of Detroit. At this place were two. main tracks and a siding known as “ Wilson Siding.” About 200 feet north of Perry avenue are two switches. Underneath these switches was a drain about ten inches deep and ■eight inches wide. This drain led into an open ditch by the side of the roadbed, which was from two to three feet deep. The drain was necessary in order to keep the water away from the switches and permit their free and proper use. The ground was covered with snow to the depth of ■six or eight inches. While the deceased was running backwards, in the manner hereinafter stated, he fell, was run over by the car, and killed. The negligence alleged is the maintenance of this open ditch and permitting it to be covered with snow; the claim being that the deceased stepped into this ditch and fell.
    Decedent was a man of 18 years’ experience in railroading. He had worked as a member of this switching crew for a year or so previous to the accident. As such his work extended over all the yards in Detroit. This open ■drain had existed for years, and had been cleaned out and deepened two inches in the month of November previous to the accident. The crew generally tied up at the Wilson siding for dinner. They went there every day, and sometimes four and five times a day, to put in or take out cars. On the morning of the accident the conductor informed the crew that he wanted to get a car off this Wilson siding. The train was left south of Perry avenue, and the crew ran up with the engine over the switch, and came down on the-Wilson siding, and coupled onto 13 cars. One of these was then thrown out on the main track, and the engine, with the other 12 cars, pushed back onto the siding. After the thirteenth car was thrown out onto the main track, McGar, the other brakeman, gave Miller the signal for a lost link; i. e., that it was necessary to get a link somewhere to make the coupling with the cars which they were going in on the Wilson siding to get. On receiving the signal, Miller went to the north end of the car that had been shoved out onto the main track, took the link out of that car, and then started northerly to meet the cars which were being shoved south in on the Wilson siding, walking about 200 feet before meeting them. The engine was north of the 12 cars, headed towards the city, pushing the cars in towards the cars standing on the Wilson siding, which were 400 to 500 feet distant. When he met the backing cars, he went in front of the first car, and ran backwards with it, fixing the coupling, for about 50 feet, when he slipped and fell, the car passing over him, and! killing him instantly. He might have walked back between the main track and the side track, or he might - have ridden back, — there being a step on the side of the backing car on which he could have stood, — to the place where the cars which were to be coupled onto stood. In either case he could have stopped the backing train by signaling McGar if he had walked back, or by himself signaling the engineer if he had ridden back; the engineer being subject to the signal of either. Either way would have been safe. Instead of adopting either of these ways, he walked north 200 feet, and then ran backwards in front of a car moving 5 to 6 miles an hour, in an attempt to fix the coupling. If he had not been injured, he would have had to walk or ride back 400 to 500 feet to get to the car to be coupled onto.
    The rulé of the company prohibited doing the work in the manner it was done by the deceased; but it is urged by the plaintiff that the custom of the employés to do the work in this manner was known to the company, and that such custom had abrogated the rule. The court, when, the plaintiff had rested her case, directed a verdict for the defendant. In directing a verdict the circuit judge said:
    “I do not think that any kind of testimony on behalf' of the railroad employes as to the breach of rule 34 in going between moving cars for the purpose of coupling or uncoupling would come within this case. The cars to be coupled were, at the time that he went in front of this car, at least 500 feet apart. The coupling could be made 400 feet south of where he was when he started north. There was absolutely no necessity for him to go towards that moving train. Nobody had ordered him to do it. He simply took that course entirely voluntarily and on his own motion. He could have gone south, and at a brisk walk could have been where the two cars would have come together, the 13 cars in motion being then 350 feet north of him. After he had got to the track he could have started south, or he could have remained standing where he was, and boarded the car as it passed him, and waited until the cars had slowed up nearing the other train. It is undoubted that brakemen will, as two cars coiné together, frequently step between; but it does not appear to me that any amount of testimony that it was a common practice for brakemen to go in front of cars moving 5 or 6 miles an hour, when the coupling to be made is 500 feet away, and go backwards or run sideways in front of a moving train of 13 cars, can be anything but contributory negligence under any circumstances. I do not care about the negligent construction of the track, because it seems to me he had no business to attempt such a risk.”

      Lehmann & Biggs and Brennan, Donnelly & Van De Mark, for appellant.

      E. W. Meddaugh (Geer & Williams, of counsel), for appellee.
   Grant, J.

(after stating the facts). Did the deceased assume the risk of the open drain ? A drain or depression under switches is .absolutely necessary. This is recognized in Jarvis v. Railroad Co., 128 Mich. 61 (87 N. W. 136), and also Franklin v. Railroad Co., 37 Minn. 409 (34 N. W. 898, 5 Am. St. Rep. 856). Its depth must depend upon circumstances. No complaint is made that the drain in this instance was deeper or wider than necessity required. Even on -a main line, where the employé has full knowledge of. the unsafe condition of the roadbed, it is bold that he should refuse to work until the roadbed is made safe, and that, failing to do so, he is responsible for the consequences. Little Rock, etc., R. Co. v. Leverett, 48 Ark. 333 (3 S. W. 50, 3 Am. St. Rep. 230). A railroad company is not required to keep its side tracks absolutely even and smooth between the ties. They may be used without ballast, and the company will not be liable to an employé who falls in consequence thereof, if he was familiar with the condition, and made no objection. Batterson v. Railway Co., 53 Mich. 125 (18 N. W. 584); Ragon v. Railway Co., 97 Mich. 265 (56 N. W. 612, 37 Am. St. Rep. 336). In Batterson v. Railway Co. it is said:

"It is matter of everyday experience that similar openings for ditches or other depressions are very common, End that it would not always be proper to close them.”

This ditch or drain was known to exist by those living near by, who had nothing to do with the railroad. A hotel keeper living in the vicinity testified that the ditch had been there for years. The deceased passed over it every day. The crew to which he belonged stopped at this siding for dinner every day, and put in or took out cars four or five times a day. He had been in the employ of the company, at this place, for about a year. He must, therefore, have had knowledge of it, and voluntarily worked there without objection. If he considered it unsafe, he should have called the attention of his employer to its unsafe condition, and asked to have it covered. If it was unsafe, none knew it better than he and his fellow-servants, and no one ever made complaint during the many years it had existed, and there is no claim that any other accident ever occurred there. It must be held, therefore, that the condition of this side track was one of the risks assumed by deceased.

The case of De Forest v. Jewett, 88 N. Y. 264, is a case directly in point, and was cited with approval in Ragon v. Railway Co., supra. In that case there were small, open ditches running across the track between the ties, which were in existence when the plaintiff entered the employment, and were well known to him. It was held that he assumed the risk.

Counsel for plaintiff rely upon Plank v. Railroad Co., 60 N. Y. 607. That case is commented upon in De Forest v. Jewett, supra, and held not applicable to facta like those here existing. See, also, Illinois Central R. Co. v. Neer, 26 Ill. App. 356; Wescott v. Railroad Co., 153 Mass. 460 (27 N. E. 10); Michigan Cent. R. Co. v. Smithson, 45 Mich. 212 (7 N. W. 791); Swoboda v. Ward, 40 Mich. 420; Phelps v. Railway Co., 122 Mich. 171 (81 N. W. 101, 84 N. W. 66).

Judgment affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Carpenter, J., did not sit.