text:
    David Stanley v. The Chicago & West Michigan Railway Company.

      Railroad companies — Negligence — Proximate cause-Fellow-servants.

    1. It is the established rule in this State that employes at work on freight trains are fellow-servants.
    2. Where an applicant for employment as a brakeman on a regular freight train, in order to obtain the position, falsely states to the agent of the railroad company to whom the application is made, and to the conductor to whose train he is assigned under such employment, that he has had experience in the line of work mentioned, the company has a right to believe that he is familiar with the work, and to govern itself, as to instructions regarding the manner of its performance, accordingly.
    3. A conductor of a freight train desired to leave two box cars on a siding, and directed a brakeman to get upon an empty flat car next to the tender, and assist in making a running switch. The brakeman mounted the flat car, and kneeled down at the rear end. The conductor climbed upon the first box car, which was attached to the flat car, and took his station at the rear, to apply the brake, in which position he was out of sight of the brakeman. The brakeman pulled, the pin at the proper time, and, just as he was reaching over the end of the flat car to lay it on the bumper of the detached box car, the engine suddenly started ahead, and he was thrown onto the track, and his leg so injured as to render amputation necessary. Neither the conductor nor the brakeman gave the engineer any signal to go ahead when, the pin was drawn. And it is held that the engineer should not have started up his engine until notified; that the sudden starting of the engine and flat car was the proximate cause of the accident, for which the engineer alone was responsible; and, being a fellow-servant of the brakeman, the railroad company was not liable for the consequent injury to the brakeman.
    Error to Newaygo. (Palmer, J.)
    Submitted on briefs June 7, 1894.
    Decided June 16, 1894.
    Negligence case. „ Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      W. D. Fuller and A. F. Tibbitts, for appellant, contended :
    1. The right of plaintiff to recover is based upon .the proposition that it was the duty of the defendant to secure to its employes the right to perform their work in a manner reasonably safe, and that, in recognition of this duty, it adopted the rule forbidding the making of running switches, which duty and rule it violated, through the conductor it had placed in charge of said train, by ordering the plaintiff to assist in making such a switch; and that it thereby became liable to him for the injury he received in consequence of obeying said order, in ignorance of said rule. The circuit judge recognized this proposition, but sought to avoid its force by holding that the proximate cause of the injury was the sudden forward movement of the engine after the coupling pin had been removed, caused by the action of the engineer, who was plaintiff’s fellow-servant, for whose negligence the defendant was not liable. The fallacy of this reasoning is apparent, in view of the fact that the order could not have been obeyed without such forward movement of the engine, it being an essential part of a running switch. Plaintiff does not complain of the manner in which the order was obeyed, nor claim that a perfect running switch was not made, but the negligence charged is the giving of the order, obedience to which resulted so disastrously to the plaintiff.
    The making of running switches is dangerous under ordinary circumstances, and, in this case, the danger to the plaintiff was increased by reason of the surrounding darkness and the fact of there being but the one empty flat car to withstand the sudden 'forward movement of the engine after the box cars were released. All of these facts would have been important, if the jury had been left to pass upon the question whether this manner of switching was “ securing to the plaintiff the right to do his work in a manner reasonably safe,” and they are equally important as an answer to the ruling of ihe court that the sudden forward movement of the engine was the proximate cause of the injury to the plaintiff, inasmuch as such forward movement was necessarily called for by the order of the conductor to make such a switch.
    See, as to proximate cause, Lewis v. Railway Co., 54 Mich. 55, where the question is discussed at some length by Chief Justice Cooley, and the authorities reviewed; also LaDuke v. Township of Exeter, 97 Mich. 450, holding that, where the owner of a horse is injured by the struggles of the animal in attempting to extricate itself from a hole in a township bridge into which it has stepped, the negligence of the township in failing to keep the bridge in repair is the proximate cause of the injury.
    2. How. Stat. §. 3369, makes it the duty of every railroad corporation in this State to furnish to each of its employés, of every grade, a printed or written'copy of its rules and regulation^ relating to their respective duties, and provides that any conductor, engineer, servant, or other employé of such railroad corporation, who shall knowingly violate any of the printed or written rules or regulations of such company, shall be subject to á fine of not less than $25 nor more than $100, or to imprisonment in the county jail not more than three months, or to both such fine and imprisonment, in the discretion of the court. The circuit judge practically nullified this statute, as far as this case is concerned, by holding that the duty of a railroad company is performed when it promulgates and publishes its rules; that it is just as much the duty of an employé to inform himself regarding such rules and regulations as of the company to inform him in that regard; that every contract is made subject to such rules; that, if the employé is an inexperienced man, it becomes the duty of .the company to inform him of the rules, but, if he is 'an experienced • man; and so states,he is bound by his statement, and, as to him, the company performs its duty when it publishes its rules and regulations, and he contracts with reference thereto. The statute makes no such distinction, but applies to all employés, of every grade, whether experienced or inexperienced. The defendant is not charged with negligence in failing to furnish the plaintiff with a copy of its rules, but that fact becomes important as an excuse for his violating the rule in question, of which he was ignorant, for, had he knowingly joined with the conductor and engineer in. its violation, he might be estopped from charging the defendant with the consequences of such disobedience.
    3. If the proximate cause of the injury was the negligence of the defendant in ordering plaintiff to assist in making said running switch, it would seem that the question whether the conductor and plaintiff were or were not fellow-servants while associated together in carrying out the order, as held by the circuit judge, is unimportant, for certainly the conductor, in giving the order, occupied a different relation to the plaintiff. He testified that he received from the defendant the rules and regulations for the government of employés, among which was the one in question; that,he had control of the entire train and of the men, and that they were obliged to obey his orders. It is true that he testified that he had no authority to discharge a man, even temporarily, for disobedience to his orders, but it is apparent from his testimony that a refusal to obey his orders would be equivalent to a discharge. Can it be held that the defendant could delegate to this conductor such control over the plaintiff, and yet escape liability for his violation of a rule, made for the plaintiff’s protection, and which it was defendant’s duty, under the statute cited, to have furnished to the plaintiff as well as the conductor, and which provided that the conductor should be held personally responsible if he violated its provisions?
    In Palmer v. Railroad Co., 87 Mich. 281, 290, the Court, after stating that “it is a well-established rule that the employer must furnish a safe place for his employés to work, and safe appliances or tools with which to do the work,” say that “it is as well the master's duty to provide that the manner in which the work is being done shall be also safe, and, in all cases where the danger can be readily guarded against, the employer is in duty bound t® protect the employe at his peril.” A railroad company, in the performance of this duty, must act through its agents, and this necessarily involves the making of general rules for the government of its business. In recognition of this fact, the Legislature, by the act cited, not only makes it the duty of every such corporation to furnish its employés with such rules, but punishes the employés for their violation by fine or imprisonment, or both. Among the rules adopted by the defendant was the one forbidding the making of running switches, when practicable to do the work without. This rule, unlike the statute, makes the conductors and enginemen alone1 personally responsible for its violation, thus plainly showing that they were placed, in this regard, upon a different footing than the brakemen who might be called upon to assist in making such a switch. Some one must decide the question of practicability, and thus construe the rule for the particular occasion. This duty naturally devolved upon the conductor, who was in control of the train, and directing its movements, and in its performance, which included the giving of the necessary orders, he represented the defendant, and it is liable for his negligence in giving the unlawful order.
    It is not necessary to inquire whether an employé who obeyed such orders with knowledge of the rule could recover for consequent injuries, for it is conceded that the plaintiff possessed no such knowledge, not having been furnished with a copy of the rules, as required by the statute; and, under all of the authorities, he was justified in obeying the order given him by the conductor. See, as to the latter proposition, Railway Co. v. Bayfield, 37 Mich. 205.
    In Ashman v. Railroad Co., 90 Mich. 567, the plaintiff was employed as a switchman in defendant’s yard, and was injured by reason of catching his foot in an unblocked frog while attempting to uncouple cars in a moving train. And it is held that the duty of keeping the frogs in its yards filled or blocked is one that a railroad company cannot delegate to any of its employés, so as to relieve itself from the obligation imposed by the statute, under which it is required to keep its yards reasonably safe-in this respect, which duty is of such a character that the person or persons to whom it is intrusted stand in the place of the railroad company, and their neglect is its neglect. This statute, which was passed in opposition to the wishes of the railroad companies of the State, was designed to* make the place where their employés were called upon to work safe, and the rule, voluntarily adopted by the defendant, was designed to sqpure to its employés greater safety in performing certain kinds of work, and a like duty arises in both cases, on the part 'of the companies, namely, to see to it that the statute and the rule are obeyed; and the defendant could no more delegate the performance of this duty, so as to escape liability for its breach, in the one case than in the other.

      Smiley, Smith & Stevens, for defendant, contended for the doctrine of the opinion.
   Grant, J.

Plaintiff was a brakeman in defendant’s employ. The train crew consisted of the conductor, engineer, fireman, and two brakemen. The train was composed of about 25 freight cars. An empty flat car was next the tender, the remainder being box cars. It was necessary to leave two box cars at a station known as “ Linderman Siding.” The conductor communicated this information to plaintiff. The train had' stopped about-four er five car lengths from the switch. Plaintiff started to go between the cars to uncouple them. He testified that the conductor said:

“No, no; get up on that flat car, and do not pull the pin until tfye train is running. We are going to make a flying switch.”

The way such switches are. made is as follows: The train is started slowly towards the switch, slack is then given, the pin is pulled while the train is in motion, the engine then starts up, and goes past the switch, and one brakeman then turns the switch, letting the disconnected cars pass upon the siding. To accomplish this, plaintiff got upon the rear of the flat car, got on his knees, supported himself on one hand', there being no brake at. that end, pulled the pin, and, just as he was reaching over to lay it down on the bumper of the box car, the engine started ahead, throwing him to the ground, and his leg was injured so that amputation became necessary. He testified that he gave no signal to the engineer to go ahead. Before the train started for the switch the conductor had climbed upon the first box car, and taken his station at the rear, to apply the brake, in which position he was out of sight of the plaintiff. Neither could plaintiff be seen by the engineer, on account of the tender. Plaintiff had had no experience in braking upon regular freight trains, but had some time previously had a little experience on a logging railroad hauling logs onto the main track, and sometimes did switching onto the main track; and for about five months in 1889 he was brakeman on a logging railroad, 12 or 13 miles long, in the Upper Peninsula. In order to obtain the position on the defendant’s road he falsely stated to its agent who employed him that he had done braking on the Minneapolis road from Minneapolis to Sault Ste. Marie, and to the conductor that he had been railroading on the St. Paul & St. Louis road. The court directed a verdict for the defendant upon the ground that the proximate cause of the accident was the sudden forward movement of the engine, and that the conductor and engineer were both fellow-servants of the plaintiff.

It is the established rule in this State that employes of freight trains are fellow-servants. There is no evidence of any delegation of authority by the company to the conductor which made him a vice-principal. Plaintiff’s counsel seek to avoid this rule by contending that it was the duty of the defendant to secure to its employes the right to perform their work in a manner reasonably safe, and that in recognition of this duty it adopted a rule' forbidding running switches when it is practicable to do the work without, and that plaintiff had no knowledge of this rule. The witnesses do not agree as to whether this was a running switch, but for the purposes of this case it must be assumed that it was. The conductor gave no signal to the engineer to go faster when the pin was drawn. The plaintiff testified he gave no signal. The conductor testified that the plaintiff cried out, “All right.” It is too clear to require discussion that the sudden starting of the engine and flat car was^ the proximate cause of the accident, and for this, according to plaintiff’s evidence, the engineer alone was responsible. He should not have started up his engine until notified. If it was the customary way to uncouple the cars for a brakeman on his knees to lean over the opening for that purpose, certainly it was the duty of the engineer to wait for the signal which would indicate that the brakeman was out of danger. But it seems pretty clearly established by the evidence that the usual way is for the brakeman to lie flat upon the car, in which position there would be no danger. The testimony is uncontradicted that the work done in this manner is not as dangerous as coupling cars. Had the plaintiff notified either the agent or the conductor, as he should have done, of his inexperience, probably he would either not have been employed, or, if employed, would have been given instruction as to how to do the work. But under his representation defendant had the right to believe that he was familiar with the work for which he applied. We think the direction of the court below was correct. •

Judgment affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    Calvin R. Mower v. Jannetje Verplanke and Johannes Verplanke.

      Probate of foreign will — Petition—Jurisdiction.
    A petition for the probate of a foreign will, which, fails to set forth a duly-authenticated copy of the foreign probate thereof, confers no jurisdiction upon the probate court.

      Error to Ottawa. (Padgham, J.)
    Argued June 8, 1894.
    Decided June 16, 1894.
    Ejectment. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      W. I. Lillie, for appellant.

      Farr é Soule, for defendants.

       For cases bearing upon the construction of and practice under How. Stat. § 5806, which provides that when a copy of a foreign will and the probate thereof, duly authenticated, shall be produced. by the executor, or other person interested in such will, to the probate court, such court shall appoint a time and place of hearing, and notice shall be given in the same manner as in the case of an original will presented for probate, see:
      1. Pope v. Cutler, 84 Mich. 150, holding that the statute makes it a prerequisite that the paper to be acted on as a foreign will shall comprise, not only a copy of the testamentary instrument ás left by the testator, but also the foreign probate and due authentication, all of which form together one instrument or subject-matter, and are made essential to call the probate court into action, and authorize it to exercise jurisdiction.
      2. Besancon v. Brownson, 39 Mich. 888, holding that the statute authorizes no one except the executor or other person interested in a foreign will to bring it in for probate; that this is a necessary and jurisdictional condition, and should appear in the record.
      3. Clow v. Plummer, 85 Mich. 550, holding that the provision of the statute requiring the production of a copy of the will and the probate thereof, duly authenticated, by the “executor or other person interested in the will,” is conrplied with where the petitioner who produces the will states in the petition that he is authorized by the representatives of the estate to make the petition in their behalf and interest.

   Grant, J.

Plaintiff brought ejectment for a life estate in certain land. In making his claim of title, it became necessary to introduce a foreign will. For this purpose he offered in evidence the exemplification from the record of the probate court of the county of Ottawa, in this State. This was excluded, upon the ground that the record showed no jurisdiction in that court. The petition contained the following allegation:

“ That said deceased departed this life in the state of New York, leaving a last will and testament, bearing date the 17th day of March, A. D. 1875, a certified copy of which is herewith deposited and filed in said court; that said will is in writing, and signed by said testator, and is attested and subscribed by three witnesses, and is executed according to the laws of the state of New York.
“Your petitioner further shows that said will was duly proved and. allowed by the probate court of the county of New York, in the state of New York, according to the laws of the state of New York, on the 24th day of June, A. D. 1878; that authenticated copies of said will have been produced and filed in this court.”

How. Stat. § 5806, is as follows:

“When a copy of such will and the probate thereof, duly authenticated, shall be produced by the executor, or other person interested in such will, to the probate court, such court shall appoint a time and place of hearing, and notice shall be given in the same manner as in the case of an original will presented for probate.”

The record does not contain the copies from the probate court of the county of New York. We must assume that they correspond with the petition filed with the probate court of the county of Ottawa. The petition is defective, in that it does not set forth a copy of the foreign probate. Pope v. Cutler, 34 Mich. 150.

Judgment affirmed.

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


author: Long, J.

text:
    Stanley W. Turner, Auditor General, v. Clement Smith, Circuit Judge of Calhoun County.

      Inquest — Coroner’s fees and expenses — Payment "by State — Allowance by circuit court.

    1. The provisions of 3 How. Stat. § 9593, for the allowance by the circuit court of the expenses of an inquisition upon the dead body of a stranger, not belonging to this State, prior to their payment by the State, is authorized by article 8, § 4, of the Constitution, which provides for the examination and adjustment by the Board of State Auditors of all claims against the State not otherwise provided for by general law.
    S. Where notice of an application for the allowance of the account of a coroner for the expenses incident to an inquisition on the dead body of a stranger, not belonging to this State, is given to the prosecuting attorney, and he appears on behalf of the State, it cannot be said that the State was not represented, even if the court was not authorized to allow the account without the State being heard.
    3. 3 How. Stat. § 9593, has clothed the circuit court with power to allow the account of a coroner in such a case; and, unless some illegal claim has been allowed, the finding of the court cannot be disturbed.
    4. Where the return to a writ of certiorari issued to review the order of the circuit court allowing such an account, which includes a charge for money paid to a stenographer, shows that the stenographer was employed at the request of the prosecuting attorney, and that his services were necessary to assist the officers in getting at the facts and circumstances, it cannot be said that the allowance of that item of the account was illegal.

      Certiorari to Calhoun. (Smith, J.)
    Argued April 25, 1894.
    Decided June 16, 1894.

      Certiorari to review an order of the circuit court allowing an account for services as coroner.
    Affirmed.
    The facts are stated in the opinion.

      A. A. Ellis, Attorney General, for petitioner.

      O. S. Clark, for respondent.

       The question when a coroner’s inquest is necessary or proper is examined, with a review of the decisions and statutes on the subject, in a note to Lancaster Co. v. Holyoke (Neb.), 21 L. R. A. 394.

   Long, J.

This is a proceeding by certiorari to review the action and decision of the circuit court in allowing the account of L. M. Gillette, one of the coroners of Calhoun county, against the State, for services, under 3 How. Stat. § 9593, for holding an inquest upon the dead body of a stranger. This section provides that when the inquisition is upon the dead body of a stranger, not belonging to this State, the fees of the coroner, and all the expenses of the inquisition, shall be paid by the State, “ the account of such expenses and fees being first allowed by the circuit court for the county.”

' It appears that on October 20, 1893, a most disastrous wreck occurred on the Chicago & Grand Trunk Railway, at Battle Creek. Many persons were killed, and many more injured. Among those killed was one Mrs. C. W. Van Dusen, of Sprout Brook, N. Y. An inquest was held upon her body for the purpose of ascertaining the cause of her death, and to place the blame, if any there was, upon the proper parties. A bill for this inquest was presented to the circuit court, as provided by this statute, and allowed. After its allowance, it was forwarded, with the proper certificate, to the Auditor General, for his warrant. After examining the account, the Auditor General was not satisfied with many of the charges, or the action of the court thereon. He sued out a writ of certiorari from this Court, claiming—

1. That the court below did not acquire any jurisdiction to pass upon the account, for the reason that no notice was given to any one authorized to appear for the State, and that a notice to the prosecuting attorney of the county was not sufficient, as his interests were antagonistic to the State.

2. That certain items enumerated in the affidavit for the writ are no part of the expenses of the inquisition, and the court below had no power to allow them.

3. That certain items were greatly in excess of the amount authorized by the statute.

4. That a great majority of the witnesses charged for were not subpoenaed for the purposes of the inquisition, but were present merely for the purpose of identification of persons other than Mrs. Yan Dusen.

5. That the stenographer’s fees charged for are not authorized by the statute, and, if one was employed, he should be paid by the county, and not by the State.

6. That certain fees for serving subpoenas were duplicated, service being claimed by the sheriff and by the coroner, and that the item for expense in shipping the body of a Mrs. Aldrich home, when she was a resident of this State, was unauthorized.

Article 8, § 4, of the Constitution, provides that—

“The Secretary of State, State Treasurer, and Commissioner of the State Land Office shall constitute a Board of State Auditors, to examine and adjust all claims against the State not otherwise provided for by general law.”

Under this provision of the Constitution, the Legislature has the power to provide by general law some other tribunal to adjust this class of claims against the State.

The statute under which this inquest was held is chapter 336, How. Stat. It is provided in that chapter that justices of the peace shall take inquests upon the view of the dead bodies of such persons as shall have come to their death suddenly, or by violence. The justice is authorized to summon a jury to inquire, in behalf of the people of this State, when, in what manner, and by what means the person came to his death, and to make a true inquest thereof. He may issue subpoenas, and enforce the attendance of witnesses. He may subpoena a competent physician or surgeon for the purpose of making a post mortem examination, and to testify to the result of such examination. And, in all cases where murder or manslaughter is supposed to have been committed, the testimony of all witnesses examined shall be reduced to writing by the justice, and subscribed by the witnesses. The jury, upon inspection of the body, and after hearing the witnesses and making all needful inquiry, are to draw up, and deliver to the justice, their inquisition, in which they shall find and certify when, in what manner, and by what, means, the deceased came to his death; and, if it appears: that he came to his death by unlawful means, the jurors, shall forthwith state who was guilty, either as principal or accessory, or was in any manner the cause of his death, if known. If the jury find that a murder, manslaughter, or assault has been committed upon the deceased, the justice shall bind over such witnesses as he thinks necessary to appear and testify at the next court to be held in the same county, and return into court the inquisition, written evidence, recognizances, and examinations by him. taken, and may commit to jail any witness who shall refuse to recognize in such manner as he shall direct. The justice may also issue a warrant for the apprehension of the accused person. By the last section of the act, it. is provided that when he shall take an inquest upon the dead body of a stranger, or, being called for that purpose, shall not think it necessary that an inquest be taken, he shall cause the body to be decently buried. The next succeeding sections (being sections 9594 and 9595, How. Stat.) provide that all provisions of law relating to holding inquests by justices of the peace are made applicable to inquests held and to be held by coroners, and that all powers by the general laws of the State conferred upon justices of the peace, relative to such inquests, are conferred upon the coroners of the several counties.

Acting under these provisions of the statute, the coroner, Mr. Gillette, proceeded to hold the inquest. By the return of the circuit judge, it appears that he fully and thoroughly investigated the account, and learned the particulars in relation to the items thereof, before certifying to the same. From this return, it not only also appears that the court below carefully examined the testimony taken at the inquest, but on the trial before him of Mr. Scott, for manslaughter, growing out of the wreck, many of the facts were then shown. The court also visited the scene of the wreck, and learned many of the facts about the matters from which the account is made up. On the hearing of the account the prosecuting attorney of the county appeared for the State, and, as the court understood it, to protect the interests of the State. From the wreck, 24 bodies were taken, —some nearly consumed, and all burned beyond recognition. The court below says of this that the work of identification by the coroner and his assistants, by the fragmentary articles of clothing, ornaments, etc., must have been an undertaking that would have disheartened most people; that, in connection with this, all of these were strangers, and with the numerous telegrams from, and personal inquiries of, friends and relatives,’ the classification and numbering of bodies and the effects found on or near each, the court was convinced of the correctness of the account. All the dead, with one excejrtion, were strangers, and non-residents of the State. In relation to the charge of the stenographer, the court certifies that one was employed at the request of the prosecuting attorney, and his services were necessary to assist the officers in getting at the facts and circumstances. It is denied by the court that witnesses were subpoenaed to identify other bodies, or for any other purpose than the legitimate purposes of the inquisition; and he denies that any charges were duplicated, or in excess of the allowance permitted by statute.

Section 551, How. Stat., provides that—

“The prosecuting attorneys shall, in their respective counties, appear for the State or county, and prosecute .or defend in all the courts of the county all prosecutions, suits, applications, and motions, whether civil or criminal, in which the State or county may be a party, or interested.-”

The statute authorizing the circuit court to allow the account does not in terms. provide for notice of the application for the allowance of the same to any one authorized to appear for the State, but in this case notice was given to the prosecuting attorney, and he did appear. It cannot be said that the State was not represented, even if the court below was not authorized to allow the account without the State being heard.

We need not go into the various items of the account. The statute has clothed the circuit court with power to allow such accounts; and, unless there has been some illegal claim allowed, his finding cannot be disturbed. The matter of stenographer’s fees seems to have been incurred under the direction of the prosecuting attorney, and it cannot now be said that the allowance of this item was illegal. Everything seems to have been properly done by the coroner, and the court below, after a full investigation, allowed the claim. We cannot now set up our judgment against that of the circuit judge. That is the tribunal fixed by the Legislature before whom such accounts are 'to be brought, and the action there taken does not seem to be outside the discretion given by law. Lachance v. Auditor General, 77 Mich. 567.

The finding of the court below will be affirmed.

The other Justices concurred.


author: McGrath, C. J.

text:
    Lowell Countryman v. James Bunker.

      Evidence — Books of account.

    1. Where a plaintiff is allowed to refresh his memory from a memorandum book, which he has kept in pencil, and on cross-examination his attention is called to a certain page, and he is asked if it has not been rubbed some with a pencil, which he denies, and the page is then offered in evidence, he is Entitled to have the whole book before the jury, as a comparison of the page in question with the other pages would disclose whether there was anything peculiar in the appearance of that page.

      2. In order to entitle books of account to be received as evidence, it must appear that the party keeping and producing them is usually precise and punctilious respecting the entries therein, and that they are designed at least to embrace all the items of the account which are proper subjects of entry.

    So held where, in a suit brought to recover a balance due for wages and a sum claimed to have been loaned to the defendant, the defendant offered in evidence a memorandum book in which certain entries were made by his wife, who knew nothing about the details of the business, and only made such memoranda as defendant requested her to make. The book did not contain an accurate statement of all the items of account between the parties, but simply memoranda of when plaintiff commenced work, the rate of wages, and amount of money paid. It contained no account of lost time; and the wife admitted that her husband received $30 from plaintiff, which she placed in the safe, and that no memorandum was made in the book of its receipt. The book was excluded by the court, and the ruling is sustained.
    Error to Shiawassee. (Newton, J.)
    Submitted on briefs April o, 1894.
    Decided June 16, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Watson & Chapman, for appellant.

      John T. McCurdy, for plaintiff.

       See note at end of opinion.

        BOOKS OF ACCOUNT AS EVIDENCE AT COMMON LAW AND UNDER THE STATUTE.
      For cases bearing upon the question of the admissibility of books of account as evidence under common-law rules, and under 3 How. Stat. § 7526, which provides that in all trials, etc., books of accounts, containing charges or entries for money paid, laid out, furnished, or lent, shall be received and admitted as evidence, and deemed to be evidence of such charges and entries, and that such moneys were so paid, laid out, furnished, or lent as are in such books charged or entered, and of the liability of the person charged therefor, in the same manner and to the same extent as books of account containing charges for goods, wares, or merchandise sold and delivered are received and admitted as evidence of sale and delivery of such goods and merchandise, and of the liability of the person charged therefor; but which exempts from its operation persons acting or having acted as commission merchants or agents for the sale of produce, grain, or other property on commission, except as to the amount' charged as commitsions for selling or buying such produce, grain, or other property, unless accompanied by a voucher or receipt for the money so claimed to be laid out, lent, or furnished, — see:
      1. People v. Bank, 1 Doug. 282, where the act under which the defendant claimed to be incorporated declared that, unless the sum of $15,000 in specie was paid into the bank within two years after the passage of the act, the same should be void and of no effect, and the only evidence upon this point was an entry in defendant’s books showing that the money was paid in, followed by entries tending to show that it was soon afterwards drawn from the bank. And in quo warranto proceedings against the defendant, based in part upon the alleged failure to make such payment, it was held that the first entry, if considered separately, would be regarded as
        prima facie evidence that this part of the act had been complied with; that, while the succeeding entries were of a suspicious character, this circumstance would not warrant the Court in permitting a mere suspicion of unfairness, or even fraud, to overthrow a fact legally and properly proved by the books themselves.
      2. Jackson v. Evans, 8 Mich. 476, holding:
      a — That a party’s own entries on his books of account cannot be admitted as evidence in his behalf, unless a foundation be first laid by proving that he had no clerk; that some of the articles charged had been delivered; that the books produced are the account-books of the party, containing original entries; and, by further proof by those who have dealt and settled accounts with him, that he keeps fair and honest accounts.
      b — That the servant of a man dealing in brick, who keeps a tally-book or slate upon which he makes memoranda of sales during the day, reporting them to his employer at night, who enters the amounts upon his regular account-books, is not a clerk within the meaning of this rule, and such regular account-books are to be considered the books of original entries.
      c — That where, in charging the brick, there was entered opposite each charge the name of the teamster who hauled the load, these teamsters should all be called to verify the charges, or their absence accounted' for, before the books are received in evidence.
      d — That it is not competent, in order to dispense with the necessity of calling the teamsters, to prove by others that, if called, it would not be possible for them to testify, from recollection, to the quantity hauled; that the main fact to be established is that the articles have been delivered, and it is only on failure to prove the delivery, or the quantity, by the teamsters when called, that the books are received as the next best evidence.
      e — That the account-books kept by a party are evidence of so slight a character that no extension of the rule which admits them, beyond the apparent necessity of the case, should be allowed; that both the servant who delivered, and the teamsters who hauled, the brick, in such a case, should be called to testify to their recollection, and the books are only received as evidence upon the presumption that no proof exists which has not been adduced.
      / — That the witnesses to prove that the party keeps honest books should be able to identify the books, and to testify to settlements made from the entries on such books; that it is not sufficient that they testify to having made settlements with the party, from bills presented, which they found honest, without being able to testify whether such bills were from the account-books or not.
      3. Page v. Stephens, 23 Mich. 857, where the complainant, as receiver of an insolvent firm which had made an assignment for the benefit of creditors, filed a bill to foreclose a mortgage transferred to the assignee as collateral security to a note given in payment for a stock of goods purchased from him, which note the purchaser claimed to have paid to the assignee in goods furnished and money paid to him at intervals from before the sale till' shortly after complainant’s appointment as receiver. On the hearing ie appeared that the assignor of the mortgage had an account current against the assignee, reaching back a considerable time before he bought the stock of goods, and that, besides goods, there were more or less cash items in it. The only witnesses whose testimony tended to prove any part of the defense in a tangible shape could not testify as to any considerable number of items of their own knowledge, and depended entirely upon the charges alleged to have been made, and one of them, who professed to swear from the accounts, could not give the exact dates. None of the books were produced. And it was held that the Court were not informed, therefore, by anything that would be reliable, whether the items all occurred in the same set of accounts; nor whether they were charged individually, or in the assignee’s account; nor whether they were set down at their respective dates, and in proper order; nor whether there was any credit side to the account; and that, where so much depended on the fullness and accuracy of the entries, it would be altogether improper and dangerous to dispense with their scrutiny, and that every presumption must be made against them, when withheld.
      4. Peters v. Gallagher, 87 Mich. 407, holding that, in an action on an implied assumpsit for services in breaking a rollway, the entries made in plaintiff’s time-book by his foreman, as to the number of days’ work done by him, is admissible in connection with the testimony of the plaintiff as to his knowledge of the correctness of the entries.
      5. Howard v. Patrick, 38 Mich. 795, where, on the trial of an appeal from the rejection of a claim filed by the administratrix of one estate against another estate, the defendant, after introducing evidence tending to prove that a copartnership existed between the decedents, and that the decedent against whose estate the claim was presented kept the accounts relating to the copartnership business, offered, in evidence a certain book of accounts in the handwriting of said decedent, which purported to relate to the partnership business, some of the entries in which had been made in the presence of the other decedent. And it was held that, in connection with the evidence given relating to the copartnership matters, the book was properly admitted, as tending to prove, not only a partnership in fact, but the condition of the copartnership accounts.
      6. Hulbert v. Hammond, 41 Mich. 343, where, in a suit upon a running account, it was stipulated that, according to the accounts kept by the plaintiff, the defendant was indebted to him at a specified date in the sum of §71.50, and that said account was correct unless, before that time, the defendant had paid the plaintiff the sum of §30, which was not credited in the account, and the payment of which was denied by the plaintiff. On the trial the •defendant, having thus conceded a prima facie case to the plaintiff, called on him to produce for examination the books containing said accounts, which the plaintiff refused to do, and the justice held that he need not do so until the defendant had given evidence of the time when the disputed payment was made. Subsequently the defendant was permitted to put the books in evidence, after which the plaintiff testified on his own behalf that the disputed payment.had never been made to him, and that, if it had been made, it would have been credited on the books. The ■defendant thereupon offered to impeach the books by showing by witnesses who had dealt with the plaintiff, and settled by his books, that they found their accoimts there kept to be incorrect, And the justice excluded the evidence. And it was held:
      a — That the justice appeared to have assumed that defendant wanted to have a view of the books in order that he might shape .his own testimony so as to avoid any inferences against his case that might arise from the credits on the books; that he ought not to have made any such assumption, and should have permitted the defendant to put the books in evidence if he saw fit to trust his interests to such disclosure as they might make; but, as the ■defendant was subsequently permitted to introduce the books in evidence, and had the opportunity to make such explanations as he saw fit respecting them, it could not be supposed that he was injured by the ruling.
      b — That the justice did not err in excluding the impeaching ■evidence; that the defendant himself had put the books in evidence, and, if they were impeached, the effect would only be to ■cause the rejection of some of his own proofs; that the bare allusion by the plaintiff to the account did not make it a part of his case, and the object of the defendant in attacking the books obviously was not to get rid of the books themselves as untrustworthy, but, by showing the unreliability of this part of his own proofs, to raise an inference against the oral testimony of the plaintiff.
      7. Lambert v. Griffith, 44 Mich. 65, where the matters in dispute related to the allowance and disallowance of certain items in the settlement of the accounts of the complainant with the firm of which he and the defendants had been members, and of the books and finances of which firm complainant, for a time at least, had had charge. The settlement was made pursuant to an agreement which provided, among other things, for an examination of the books of the firm, in order to ascertain the moneys received and not accounted for by the complainant. The complainant excepted-to the disallowance by the commissioner of an item of $1,000, deposited in the bani to the credit of the firm, which was charged to the complainant because, though appearing on the firm books, it was not accounted for on the cash book kept by complainant. It appeared, however, that the money was all paid out by the bank upon the checks of the firm. And it was held that, in view of the fact that said sum had gone to the credit and use of the firm, the complainant could not be charged therewith, whether appearing upon the cash book of the firm or not.
      8. Manufacturing Co. v. Stimson, 48 Mich. 213, where the plaintiff and defendant joined in driving a quantity of logs, a portion of which were owned by each, out of a branch of a river into the main stream, and each was to furnish a share of the required labor, implements, and provisions proportionate to the quantity of logs to be run for each. Plaintiff, claiming to have furnished more than its share of such labor, etc., sued to recover the excess, and on the trial one of its witnesses was allowed to use its private account-books to support its bill of particulars, and was then permitted, on testifying, to make use of the bill of particulars as competent and trustworthy for the purpose of charging the defendant for labor and articles claimed to have been furnished by it in carrying out the contract for running the logs. And it was held that these entries in the books, not being shown as against the defendant to be rightly there, were purely self-made testimony, and wholly ineffectual to help the bill of particulars, and that it was an attempt to prop up one broken reed with another.
      9. Larson v. Jensen, 53 Mich. 427, holding that the fact that goods are charged on the books of the seller to the person to whom they were delivered is not conclusive that they were sold upon his credit; and Loranger v. Foley, 79 Mich. 244, holding that a charge upon a vendor’s books is not conclusive as to whom the sale was made and credit given, but may be explained and shown to be a mistake, and that the sale was really made and credit given to a third party.
      10. Van Ness v. Nadsell, 54 Mich. 560, where a county treasurer sued his predecessor for an alleged balance of $800, for which plaintiff claimed to have accounted as received from the defendant, when in fact such sum was not turned over to him. And, in affirming a judgment in favor of the plaintiff for the $800, it was held:
      a — That there was no force in the argument that, because plaintiff, in his accounting, charged himself in favor of the county with, this money, he was estopped from claiming that defendant had not actually paid it to him.
      b — That the defendant’s entries on his official books were evidence against him to the extent of their admissions, and the burden was on him to show that he paid over to plaintiff the balance appearing there; that the books were admissible under any circumstances, and, if it was claimed they had been altered, that could not be presumed to have been done at all, unless manifest, nor presumed to have been done wrongfully.
      e — That it was proper for the court to suggest to the defendant, when it appeared that his books showed a receipt of money from a township, which he desired to dispute and claimed to have been a changed entry, that he should resort to the township treasurer to show that it was not paid to him.
      11. Grant v. Masterton, 55 Mich. 161, where the plaintiff shipped to a firm, of which the defendants and one Watson were members, certain produce, which was received by Watson, and sold by him. Watson had been the manager of the firm, and the defendants purchased his interest upon the strength of his statement of the condition of the firm, business, which statement did not disclose the transaction in question. The plaintiff sued the defendants, who had assumed the payment of the firm debts, for the price of the produce, and on the trial one of the defendants, being on the stand as a witness, was asked whether the plaintiff’s account on the firm books showed a credit to him of the amount of his claim. This evidence, as also said books, which were called for by the plaintiff to be used as evidence in regard to his account, was excluded. And it was held that this was error; that the proposed evidence of the defendant would evidently have had some bearing upon the question whether the transaction was or was not a partnership one, and might have been very forcible evidence; that, if what was done by Watson was beyond the scope of the partnership business, it might nevertheless have been accepted by the partnership as done in its behalf, and proof that it was entered on the firms books would be a step towards proving such acceptance; that whether an inference would arise from the entry that the other partners knew of and assented to it might depend upon the circumstances, but these were for the consideration of the Wiy-
      12. In re Estate of McClintock, 58 Mich. 152, holding that where account-books are received in evidence, as they may be in some cases, it is only where the entries are apparently made of items as they arise, and as contemporaneous res gestae; but an entry not of particular payments or advances, nor even of any aggregate, but of what remains due as a balance after allowing set-offs and counter-claims, does not come within any known rule of evidence.
      18. McCausland v. King, 60 Mich. 70, where plaintiffs sued a married woman for a bill of repairs to a house which they testified she said was hers, but for which they had before sued her husband, and recovered judgment. Counsel for defendant, in cross-examining one of the plaintiffs concerning his testimony in the former suit, and as to how plaintiffs’ books showed the account to have been charged, was met by the objection that the witness was not obliged to produce his books unless defendant called him as her own witness, and issued a subpoena duces tecum, and was not allowed to pursue the inquiry. And it was held that, as the suit was brought on an account shown to have been charged in the books, the defendant was entitled to a full cross-examination upon all that the books would show, and was not bound to make the plaintiff her witness, and that plaintiff should have produced the books.
      14. Richards v. Burroughs, 62 Mich. 117, where plaintiff sued to recover the price of wood, alleged to have been sold and delivered to the defendant at an agreed price per cord. The defendant denied that he contracted to buy the wood, and claimed that the arrangement was that he should sell it for the plaintiff on commission, and pay him the agreed price for what he might sell. The defendant sought to introduce his books of account in evidence for the purpose of showing that the keeping of the heading of plaintiff’s account was in corroboration of his claim. And it was held that the books were properly excluded; that there was no necessity, apparent or alleged, of reference to the account as memoranda to refresh defendant’s recollection; and, further, that the defendant did not place himself within the proviso of the statute, which makes it inapplicable to commission merchants, except as to the amount charged as commissions, unless the evidence is accompanied by a voucher or receipt for the money claimed to have been laid out, lent, or furnished, and that, under said statute, the books could not be used to prove the manner of the entry of the heading of the account against the plaintiff as a corroboration of defendant’s theory as to the contract between them.
      15. Brown v. Weightman, 63 Mich. 557, holding that it may be a query as to the nature and amount of proof required as precedent to the admission, of books of account since parties have been made competent witnesses in their own behalf; but, whether or not the old rule in force when the testimony of the parties was excluded is to be continued, it is due the trial court that the reasons for an objection to the admission of the books should be stated, if advantage of the same is to be taken in the appellate court.
      16. Wright v. Towle, 67 Mich. 255, where, in replevin for chattel-mortgaged goods seized on execution as the property of the mortgagors, the contention of the defendants was that the mortgage was fraudulent as to creditors, and that the plaintiff gave no consideration therefor. The plaintiff testified that, the year before the mortgage was given, she loaned the mortgagors $100, and that her mother-in-law loaned them,$600, and that she took the mortgage in her name to secure both amounts, and gave her mother-in-law her note for her claim, which was transferred to plaintiff. On her cross-examination plaintiff was interrogated as to what she gave for the $600 claim, and as to what moneys she had paid upon the note given therefor, the amount thereof, and dates, and the moneys she had received, and from whom; and on her redirect examination her counsel sought to introduce her bank-book for the puipose of showing the receipt of the money, and the dates, and also the book containing a statement of the amount of money she had paid to her mother-in-law before said levy, both of which books were excluded by the circuit court. And it was held that the cross-examination of the plaintiff upon this subject was evidently made with a view to discredit her testimony, and on the re-examination she should have been permitted to give such facts in evidence as would tend to support her statements, and remove any impressions in that direction which the cross-examination may' have made; that what the plaintiff paid, and promised to pay, her mother-in-law, constituted the consideration she paid for the mortgage, and which the defendants sought to impeach by showing no consideration; and that both books were admissible for the purpose for which they were offered,, and should have been received.
      17. Montague v. Dougan, 68 Mich. 98, where plaintiff sued for the price of goods obtained by the defendant, and charged to him, but delivered by his order to a third person, the plaintiff claiming that the credit was given to the defendant. And it was held:
      a — That, since the statute has made the parties to a suit competent witnesses, they can testify as well to the correctness of their books as to any other fact; and proof by third parties of their having settled according to such books, and that they were correctly kept, is not essential to their introduction in evidence.
      b — That, under the facts in the case, the plaintiff’s books were properly admitted to show to whom the goods were charged, and to whom the credit was given.
      18. Hurley v. Watson, 68 Mich. 531, holding that a person is presumed to be cognizant of the contents of his books of account, but the probative force of such presumption may be strong or weak, as the circumstances may show that the party made the original entries,' or that they were made by a clerk or book-keeper, and may be entirely overcome and disproved by the positive uncontradicted testimony of the party that the accounts were kept and entries made by such agents, and had never been examined by him, and that he had no knowledge thereof.
      19. In re Estate of Mabel Ward, 73 Mich. 220, where, on the settlement of a guardian’s account, some stress was laid upon an entry in one of the books of the administrator of the estate of the ward’s father to the effect that he had turned over to her mother certain stock to a stated amount in full of her share in the estate of her deceased husband. It was admitted that the mother had the stock, but that she received it on any such terms as stated in the entry was denied. And it was held that the entry could not prove anything more than the charge of such an amount to the mother, if it proved that, and that the further entry, as to its being in full settlement of her interest in the estate, could have no weight as proof of such settlement.
      20. Doolittle v. Gavagan, 74 Mich. 11, holding that where, in a suit by a surviving.partner, the defendant claims to have paid the account sued upon to the deceased partner, and is allowed in support of such claim to make proof of the purchase of a draft by such partner, at about the time of such payment, in the city where defendant resided, payable to the firm, the book from which such partner reported his collections to the firm on his return from his trip, and which did not show the receipt of said payment from the defendant,, should be received in evidence on rebuttal.
      21. Mooney v. Davis, 75 Mich. 188, holding that statements made by an accountant from account-books, in evidence without objection, showing, as claimed, the condition of the owner’s business at a given date, are admissible in evidence in connection with said books.
      22. Ganther v. Jenks & Co., 76 Mich. 510, holding that the books of a corporation, when properly kept by the proper officers or agents of the corporation, are competent testimony to prove the payment to an employé of the amounts charged to him therein.
      23. Macomb v. Wilkinson, 83 Mich. 486, holding that an entry in the handwriting of a deceased party, made in a day-book kept by him in his lifetime in the regular course of business, is competent evidence.
      24. Lester v. Thompson, 91 Mich. 245, holding that books of account containing charges for money paid, laid out, furnished, or lent are admissible in evidence under How. Stat. § 7526; and the rights of the opposite party are properly guarded by instructing the jury that they are memoranda from which the party offering them may refresh his recollection, and testify in regard to the transactions themselves; citing Montague v. Dougan, 68 Mich. 98.

        25. Hyde v. Shank, 93 Mich. 535, where, in a suit involving the question whether a chattel mortgage was or was not paid, the plaintiffs testified from recollection to the amount due on the mortgage, and produced their books, showing, as they claimed, the. true state of the mortgagor’s account with them, and, without formally offering the books in evidence, tendered, them to the counsel for the defendant for examination. And it was held that the testimony was competent, and if the defendant questioned it, and believed that the books would show the contrary, it was his duty to examine the books, and put them in evidence if he desired.
      26. Publishing Association v. Fisher, 95 Mich. 274, holding:
      a — That proof that books of account have been correctly and accurately kept is sufficient to mlet the claim that there is no evidence tending to show their fairness, raised under an objection that they are irrelevant, immaterial, and incompetent as evidence.
      b — That it is not necessary, in order to lay a foundation for the introduction of books of account in evidence, for the owner io call as witnesses third parties who have settled by the books.

   McGrath, C. J.

Suit is brought to recover a small balance of wages, and the sum of $60, claimed to have been loaned to defendant.

Plaintiff was allowed to refresh his memory from a pocket memorandum, book, which had been kept in pencil. On the cross-examination of plaintiff, counsel for defendant called attention to a certain page, and asked if it had not been “rubbed some with a pencil.” Plaintiff responded that it had not. Defendant’s counsel then offered that page in evidence. The court ruled that the plaintiff was entitled to have the whole book before the jury. The ruling was correct. The point made was that the page referred to indicated that it had been rubbed. A comparison of that with other pages of a pencil-kept book would have disclosed whether there was anything peculiar in the appearance of that page.

Defendant offered in evidence a memorandum book in which certain entries were made by his wife, and the court excluded it. The ruling was correct. The wife knew nothing about the details of the business, and only made such memoranda as her husband requested her to make. It was not claimed that the book contained an accurate statement of all the items of account between the parties. It contained simply memoranda of when plaintiff commenced work, the rate of wages, and of moneys paid to plaintiff. It contained no account of lost time, and it was claimed that moneys were paid to plaintiff which were not entered upon the book. The wife admitted that her husband received $30 from plaintiff, which she received and placed in the safe, and that no memorandum was made in the book of its receipt. In order to entitle books of account to reception as evidence, it must appear that the party keeping and producing them is usually precise and punctilious respecting the entries therein, and that they are designed at least to embrace all the items of the account which are proper subjects of entry.

The other assignments relate to the court’s instructions to the jury. . Some parts of the charge are open to the criticism that they are argumentative, but we are not able to say that defendant was prejudiced.

The judgment is therefore affirmed.

The other Justices concurred.


text:
    Cephas M. Glover v. Harriet Tousley.

      Contract — Construction.
    Plaintiff and his uncle each owned an undivided one-quarter interest in a grist-mill, and in the lease of the land upon which the mill stood. The remaining interest was owned by two daughters of the defendant as heirs at law of their deceased father, who was a non-resident of this State at the time of his death, subject to the rights of the defendant in said property as his widow. After plaintiff had operated the mill for about two years under an agreement to pay to said heirs a specific sum as rental, the husband of one of the daughters, who were both non-residents, called upon the plaintiff, and, after expressing a desire to dispose of the mill property, and in answer to plaintiff’s statement that he would not continue to operate the mill for its earnings, and was ready to step down and out, stated that he did not wish to close up the mill, as it stood on leased ground, and must be kept in operation; that he wished plaintiff to continue to run it, and do the best he could, and, when a sale was made, the heirs would do what was right by plaintiff for keeping the mill running. About 16 months after this interview, during which time plaintiff had continued to operate the mill, the attorney for the heirs wrote him regarding the rent, which was in arrear, and plaintiff, in his reply, referred to the interview with the husband, and stated that he said that he did not wish to take advantage of plaintiff in any way, but wished that he could sell the mill, so as to straighten up the affair. Further correspondence, i-elating to endeavors by both parties to dispose of the property, followed, in which plaintiff was pressed for the rent, ánd a suit for its collection suggested, and in which he made no mention of any counter-claim or claim for services. After operating the mill for over three years in reliance, as he claimed, upon said conversation, the plaintiff brought this suit to recover a per diem of $1.25, less the earnings of the mill during that time, as compensation for his services. And it is held that the promise relied upon was nothing more than a promise of indulgence respecting the rent of the half interest owned by the heirs, and cannot be tortured into a promise on their part to pay to the owners of the remaining one-half, or to plaintiff, the entire expense of the care of the mill for the period claimed for, during all of which time no claim for such payment was made or hinted at by him.
    Error to Berrien. (O’Hara, J.)
    Submitted on briefs. April 10, 1894.
    Decided June 26, 1894.

      Assumpsit. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      Edward Bacon, for appellant.

      Alex. Emery and George 8. Glapp, for plaintiff.
   McGrath, C. J.

On the 15th of October, 1877, one Blakeslee leased to Andrew J. Glover & Son, for an indefinite period, a certain parcel of land for a grist-mill site. Glover & Son built the mill, and constructed the dam on lands owned by Hiramos. Tousley. On the 24th of August, 1878, the Glovers conveyed to Hiram S. Tousley an undivided half interest in said grist-mill and lease, •the Glovers agreeing to pay and discharge a certain mortgage upon said property. The Glovers continued to operate said mill, paying to Tousley an annual rental for the undivided half owned by Tousley. Tousley died in February, 1884, leaving a widow and two daughters, Ella J. Wood and Frances Matson. At the time of his death, neither Tousley nor his wife nor daughters resided in the State of Michigan, nor had any of them ever resided in the State. The Glovers were notified of the death of Tousley, and continued to pay rent at the same rate to Byron A. Wood, the husband of one of the heirs, who resided out of the State, and who had carried on the correspondence with the Glovers. In March, 1884, after the death of Hiram S. Tousley, Byron A. Wood came to Michigan, and had a-conference with Andrew J. Glover, who testifies that he-brought with him a letter signed by Harriet Tousley; that-said letter was lost; that the substance of the letter was as-follows:

“The bearer, Mr. Byron A. Wood, is my son-in-law. He has come to confer with you in regard to the rent of' the mill; also in regard to the sale of a piece of land I was selling for them. Any money paid him would be duly credited by me.”

Andrew J. Glover further testifies that no other arrangements were made at that time with reference to the payment of rent, nor does it appear that the lease or terms of occupancy or payment of rent was at that time referred to.

In January, 1885, Wood,, as agent for Harriet Tousley and the other heirs, wrote Glover, saying:

“Nothing having been said to the contrary, I assume that you are to take the mill this year on same terms as last, viz., you to have the use of one-half of the mill, and pay us therefor $325 in quarterly payments, we paying half of the taxes and half of the necessary repairs.”

In November, 1885, the Glovers being in arrear for rent, one Prickett called upon them in behalf of the heirs, and they executed mortgages upon their interest in the mill to secure the accumulated rent. These mortgages were taken in the name of Harriet Tousley, for convenience in collection. Within a few days after the execution of said mortgages, Andrew J. Glover, Jr., conveyed his one-quarter interest in the mill to plaintiff, and Andrew .J. Glover, Sr., conveyed his interest to his brother James Glover. The mill was afterwards operated by plaintiff. It does not appear whether James Glover occupied or operated the mill jointly with plaintiff or not. The further correspondence was carried on by plaintiff, who paid one of the notes secured by the mortgages aforesaid. Further correspondence was had relative to improvements upon the mill and the payment of the rent.

In August, 1887, Wood came to Michigan, and called upon plaintiff, and plaintiff swears that at that time both he and Wood expressed a desire to dispose of the property; that Wood said that, “rather than lose a sale of the mill, I would be willing to take $1,500 for their interest.”

Plaintiff further testifies:

“I told Mr. Wood, if they couldn’t make some arrangement to put in new machinery some way or other, that I wouldn’t continue to stay there and take charge of the property for the earnings of the mill, for the earnings of the mill were so small I couldn’t stand it to live on, and I would not take charge of it any longer. For my part, I was ready to step down and out. He says: ‘I don’t want you to close the mill up. It will not do to close it up, because it stands on a piece of leased ground, and it must be kept in operation.’ * * * He wanted me to continue on and do the best I could with it. When they made a sale of the mill, they would do what was right by me for so doing. And I continued on.”

Relying upon this conversation, plaintiff claims to have continued to operáte and care for the mill from August 8, 1887, to October 34, 1890, — 1,002 days, — at $1.25 per day, making a total of $1,252.50, and sues Harriet Tousley to recover that sum, less the earnings from mill and. pasturage for the same period, — $597.37.

In December, 1888, the attorney for the Tousley heirs again wrote to plaintiff respecting the rent for the mill. In reply plaintiff writes to the attorney, saying:

"Mr. Wood was here to the mill the 9th of August, 18’87, and saw that the mill was not doing but very little business, and he said .that he did not wish to take advantage of me in any way, but wished he could sell the mill, so as to straighten up the affair. He has tried to sell their interest. * * * If it be a fair question, I would like to know what papers he has sent for collection.”

The correspondence continued up to the early part of 1889, and relates to endeavors of both parties to dispose of the mill property. In this correspondence, plaintiff is being pressed for the rent, and suit is being suggested as a means of enforcing collection from him; yet no mention is made of any counter-claim or claim for services. It appears that the property was sold on the foreclosure of the original mortgage given to Blakeslee, referred to in the conveyance from the Glovers to Hiram S. Tousley.

Plaintiff owned one-quarter interest in the mill; his uncle owned another quarter; and ihe Tousley heirs an undivided one-half interest. Plaintiff had been operating the mill under an agreement to pay to the Tousley heirs a specific sum as rental. He now sets up a claim against Harriet Tousley, based solely upon the conversation which he claims to have had with Wood on August 8, 1887, for his services for three years, for the entire care of said mill property.

It can hardly be contended that Wood’s promise, if made as alleged, was anything more than a promise of indulgence respecting the rent of the half interest. ,It cannot be tortured into a promise on the part of the heirs, who had but a half interest in the <• mill, to pay to the owners of the other half, or to the owner of a quarter interest, the entire expense of the care of the mill for three years, during all of which time no claim was made or hinted at. Plaintiff’s letter of December, 1888, — the only one in which the interview with Wood is referred to, —clearly indicates that the promise made by Wood was one of indulgence merely.

The judgment is reversed, and a new trial granted.

The other Justices concurred.

       Plaintiff declared specially, “ for that, whereas, defendant, for three years and more before the commencement of this suit, employed this plaintiff to work and labor for her in her mill at Galien, and to keep the possession for her and her heirs, and to keep the business of said mill .going, and to pay him therefor what his services rendered were reasonably worth, and that, for his services and labor so rendered to the defendant, there is justly due to the plaintiff from said defendant, by reason of the premises, the sum of $10,000.” The common counts were added, with a bill of particulars setting forth the items stated in the opinion.


author: Hooker, J.

text:
    Margaret McCullough v. The Minneapolis, St. Paul & Sault Ste. Marie Railway Company.

      Negligence — Accident at railroad crossing — Evidence—Contributory negligence — Question for jury.

    1. Where, in a personal injury case against a railroad company, based upon the failure to give the statutory signals before reaching the crossing near which the accident occurred, the plaintiff and her husband testify that it was a calm day, that they had brought their horse to a walk, and were listening for the signals, and heard none, and one of plaintiff's witnesses, who was a passenger on the train, testifies positively that the signals were not given, while the defendant’s witnesses aver that such signals were given, the testimony is conflicting, and the question should be submitted to the jury.

      2. While it has been held in many cases that, before venturing upon a railroad track at a point where the view of an approaching train is cut off, the traveler should stop and listen, the doctrine has never been applied to a case where the driver is at a distance from the track at the time of the accident, and the injury results from the horse taking fright at the train, and running away.
    3. The testimony of' bystanders that they did not hear the statutory signals which a railroad company claims to have given before making a crossing is negative evidence, and without weight, unless there is something in the surrounding circumstances tending to show a probability that the witnesses would have heard the signals if given.
    4 Where in a suit against a railroad company for injuries sustained by being thrown from a cutter, which was overturned by reason of the horse running away, it having become frightened at an approaching train, the evidence clearly shows the cause of the fright of the horse, the admission of the testimony of the driver that the horse was frightened by the train, if inadmissible, works no injury to the defendant.
    5. Where, in a personal injury case against a railroad company, one of the plaintiff’s witnesses testifies positively that the statutory signals were not given before reaching the crossing near which the accident occurred, but does not testify that he was listening for the whistle, and, being a passenger, could not have been looking for the train, and none of plaintiff’s remaining witnesses, though several of them were within hearing distance, are allowed to testify that they could and would have heard the signals if given, it is reversible error to instruct the jury that some of plaintiff’s witnesses have testified that they were looking and listening for approaching trains, and that if the signals had been given they would have heard them.
    6. Plaintiff was injured by being thrown from a cutter, in which she and her husband were riding, by reason of the horse taking fright at one of defendant’s trains, and running away. The train was several hours late. The highway ran for about three-quarters of a mile nearly parallel with the railroad track, varying in distance therefrom from 35 to 200 feet, and finally crossed the track, near the place where the accident occurred, at an angle of about 45 degrees. All view of trains approaching the crossing from the opposite direction was cut off, until within 35 feet of the track, by a hill, around which the road passed on a sharp curve. Plaintiff’s husband, who was driving, testified that he waited in a neighboring village for two hours to make sure that the train had passed, and on his way home was informed that it had passed, which information he believed to be true; that he was approaching the crossing, and, just as he reached the line of the right of way, the train came into view, distant less than 300 feet from the crossing, and that his horse turned about and ran away, upsetting the cutter, and injuring the plaintiff. Plaintiff and her husband both testified that they were listening, the horse having been brought to a walk, and that they heard no signals. And it is held that it was for the jury to say whether or not the plaintiff’s husband was negligent in driving within 35 feet of the track without stopping to listen for a train.
    Error to Schoolcraft. (Steere, J.)
    Argued April 11, 1894.
    Decided June 26, 1894.
    Negligence case. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      M C. Chapin (A. H. Bright, of counsel), for appellant.
    ■ Carey & White, for plaintiff.
   Hooker, J.

Defendant appeals from a judgment obtained at the circuit for an injury sustained near defendant’s railway, at its crossing of a highway.

Plaintiff was riding in a cutter with her husband, upon a highway that was nearly parallel with defendant’s track for about three-fourths of a mile, varying in distance from the track from 35 to 200 feet. This highway finally crossed the track, near the place of the accident, at an angle of about 45 degrees. To the east of this crossing was a sharp curve around a hill which lay to the eastward of the highway, rendering it impossible to see the train approaching from the east, from any point upon the highway, until the line of the right of way was crossed. Plaintiff was approaching this crossing, and just at the line of the right of way the train came into view something less than 300 feet distant from the crossing. The horse turned about, and ran away, upsetting the cutter, and injuring the plaintiff. The negligence relied on was a failure to give the statutory signals.

The counsel for defendant contend that the court should have directed a verdict against the plaintiff, for two reasons:

1. Because the testimony conclusively showed that the signals were given.

2. Because the plaintiff and her husband did not stop and listen before reaching the point where the accident occurred.

Were we to pass upon the question of fact, we should say that the giving of the signals was established by a preponderance of the evidence, but we cannot say that there was no evidence to the contrary. Plaintiff and her husband both testify that they were listening, — the horse having been brought to a walk, — and that they heard none, and that it was a calm day. William Howard, who was on the train, testified positively that they were not given. In the light of this testimony, we think it plainly a question for the jury.

Should the judge have held that, under the facts shown, it was the duty of plaintiff’s husband to stop and listen before getting so near the railway crossing that his horse might be frightened at the approach of the train? The husband testified that he waited two hours to make sure that the train had passed; that he inquired, and was told that it had, and so believed. This testimony indicates that he did not like to meet the train upon the parallel road, though he testifies that he had done so without accident, and would not have expected an accident had he met it on this occasion. On the other hand, it shows some effort to avoid accident. It has been held in many cases that, before venturing upon a track where the view of an approaching train is cut off, the traveler should stop and listen, but we are cited to no case where the doctrine is applied when the driver is at a distance from the track, and the injury results from the fright of the horse. There is a difference between the risks attendant upon the upsetting of a vehicle and those involved in a railway collision. The latter always occurs if the traveler is on the track at the right time, and the results are so uniformly disastrous to those who venture as to leave no room for a difference of opinion about the propriety of taking any chances. In the other case there is more room for a difference of opinion. 'First, the consequences are not usually so serious. Much depends on the disposition and character of the horse and the proficiency of the driver, while the width and condition of the highway are* matters to be considered. It is said that the plaintiff would have been no better off had she been at any other point upon the highway for a distance of three-fourths of a mile. Had he seen the train or heard the signals in time, the driver might have turned his horse around, or taken him by the head, or driven him up to a fence, or taken some other means for the personal safety of himself and wife. We do not feel warranted in saying that it was negligent for the plaintiff’s husband to drive within 35 feet of this track without stopping to listen, lest he take the chances of being upset. On the other hand, we have no occasion to say that it was not. The question was for the jury to apply the test of what an ordinarily prudent and careful man would do under just such circumstances as these, and determine whether the conduct of the plaintiff and her husband was negligent or not.

Defendant complains that the plaintiff’s husband was permitted to testify that the horse was frightened by the train, upon the ground that the question was for the jury, and that the evidence involved a conclusion. In Geveke v. Railroad Co., 57 Mich. 589, such evidence was held competent, where the horses were immediately in front of a locomotive when the engineer allowed steam to escape from its cylinders; and in this case the other evidence clearly shows the cause of the fright of the horse, and the opinion of the witness, if inadmissible, worked no injury to the defendant.

In the course of his charge the court said:

Some of plaintiff’s witnesses have testified that they were looking and listening for approaching trains, and that if the whistle had been blown, and the bell had been rung, as 'required by law, they could and would have heard them."

This is said to be error, for the reason that no witness so testified, and, furthermore, such testimony had been excluded upon the ground that it was opinion evidence, and the question one for the jury, and not for the witness.

It is not uncommon for trains to pass, giving signals, without notice on the part of bystanders. It is, in such cases, a matter of inattention; and, if one does not notice them, abont all that can ordinarily be said is that he did not notice or hear them. Such evidence is negative testimony, unless there be something in the circumstances tending to show a probability that they would have been heard if given. No witness who was looking and listening for the train testified, that he could and would have heard these signals had they been given. The witness Howard, who swears positively that the signals were not given, did not say that he was listening for the whistle, ■and manifestly he was not looking for the train upon which he was riding. No witness was allowed to say that he could and would have heard them, though several were evidently within hearing distance. Whether their testimony was more than negative testimony or not, it was certainly allowed to go to the jury as positive evidence when they were told that the witnesses had testified that they were looking and listening for the train, and could and would have heard the signals had they been given. We think counsel owed it to the court to call attention to this misstatement, which was doubtless inadvertent, at the time it was made. But the statute abolishing the salutary rule requiring exceptions to be taken to the charge before verdict, while the court has an opportunity to correct any errors that he may have made, permits error to be assigned' after verdict; and, as this was clearly prejudicial, we feel constrained to reverse the judgment, and order a new trial.

The other Justices concurred.

       In answer to a special question, the jury found that the signals were not given.

       See Sanborn v. Railroad Co., 99 Mich. 1, and note.


author: McG-rath, C. J.

text:
    Frederick J. Simmons v. Zenas N. Robinson and Manfred Hill.

      Replevin — Affidavit—Description of property — Assessment of damages — Action on bond — Defenses.
    1. The reason for the rule that where, in an action of replevin, judgment has been rendered, on a waiver of a return, for the value of the property, all proper questions must be litigated . on the assessment of damages, is that How. Stat. § 8358, makes-the amount of the judgment in such a case the measure of the recovery in a suit upon the replevin bond.
    2. A description of property in an affidavit of replevin as “ a quantity of wheat, rye, and oats, being one-half of the grain grown on the Simmons farm in the year 1892,” is sufficient.

    3. The agent of a widow, to whom her husband had devised the use of his farm during her natural life, leased the farm on shares. The tenant harvested the grain growing at the time of the widow’s death, and delivered her share to her son, to whom a second life estate had been devised, to take effect after the widow’s death The agent replevied the grain in justice’s court, and recovered judgment, which was reversed on special appeal, and a judgment rendered in favor of the son for a return of the property, with damages for its detention, and costs. On the assessment of damages the property was adjudged to belong to the son, and his damages were assessed at the difference between the market value of the grain at the time of the taking under the writ and at the time of the assessment. An execution was issued, and returned satisfied as to damages and costs, but unsatisfied as to the property, which the officer returned was not in the plaintiff’s possession. In a suit upon the replevin bond, the defendants sought to show as a defense that, after the commencement of the replevin suit, an administrator of the widow’s estate was appointed, to whom the agent delivered the property. And it is held that if the property belonged to the estate, and was delivered to the administrator, as claimed, the defendant in replevin cannot be said to have been damaged, as he would have been bound to make such delivery had the property been returned to him, and that the proposed defense was therefore available.
    Error to Kalamazoo. (Buck, J.)
    Argued April 11, 1894.
    Decided June 26, 1894.
    Debt. Defendants bring error.
    Keversed.
    The facts are stated in the opinion.

      Jesse R. Cropsey (A. J. Mills, of counsel), for appellants.

      Alfred S. Frost, for plaintiff.

       3 How. Stat. § 7621b.

       For cases bearing upon the question of the sufficiency of the description of property in an action of replevin, see Dillon v. Howe, 98 Mich. 168, and note.

   McG-rath, C. J.

Defendant Bobinson commenced suit in replevin before a justice of the peace. The property was described in the affidavit as “a quantity of wheat, rye, and. oats, being one-half of the grain grown on the Simmons farm in the year 1892,” and, in the writ, as “a quantity of wheat, rye, and oats, now in the possession of Frederick J. Simmons.” Simmons appeared specially, and moved to quash the writ, for the reason that no proper description of the grain was given in the writ. The motion was denied, and plaintiff had judgment. Simmons took a special appeal to the circuit, where the judgment was reversed, and he had judgment for the return of the property, his damages to be assessed, and costs. Damages were afterwards assessed, and an execution issued, upon which the sheriff returned that he had collected the costs and damages, but that the property was not in Robinson's possession. „

This is a suit upon the bond. The testimony tended to show that the grain in question was grown upon a farm of which Frederick J. Simmons, the father of plaintiff, died possessed; that, by the will, the use and possession of the farm was given to Delilah Simmons, widow of said Frederick J., for her life, then to plaintiff for his life, and then to the heirs of plaintiff in fee; that during the life of Delilah Simmons, and up to the time of her death, Robinson acted as her agent; that the farm had been leased through Robinson to one Moyer, who was to turn over one-half of the crops to Delilah Simmons; that upon the death of said Delilah, which was in June, 1892, the grain in question was growing upon the farm; that said grain was subsequently harvested by Moyer, and taken possession of by plaintiff; that after the replevin suit was commenced, upon Robinson's petition, an administrator of the estate of Delilah Simmons was appointed, and the grain in question was turned over to said administrator. The trial court held that, inasmuch as, on the assessment of damages, the property was adjudged to be the property of the defendant in the replevin suit, and plaintiff here was allowed to recover the difference between the market value of the grain at the time of the taking under the writ and at the time of the assessment, defendants here could not avail themselves of the defense that the property belonged to the estate of Delilah Simmons.

It has been frequently held that where a judgment has been rendered, on waiver of a return, for the value of the property, all proper questions must be litigated on the assessment of damages, and are not afterwards open. Williams v. Vail, 9 Mich. 162; Ryan v. Akeley, 42 Id. 516; Pearl v. Garlock, 61 Id. 419. But the reason for the rule is that the statute (How. Stat. § 8353) makes the amount of the judgment in such case the measure of the recovery in a suit upon the replevin bond. Ryan v. Aheley, supra. The damages and costs in the replevin suit, in case judgment is taken for a return, are, by the same section, to be added to the value, as found in the suit upon the bond. The fact, therefore, that damages had been assessed merely for the detention, does not conclude the sureties upon the replevin bond.

It was held in Steere v. Vanderberg, 90 Mich. 187, and Whitney v. Hyde, 91 Id. 13, that a plaintiff in replevin, who was shown to be a stranger to the title, could not complain of the entry of a judgment for the value of the property in favor of the defendant in that suit, who was in lawful possession at the time of its seizure. Those cases follow First National Bank v. Crowley, 24 Mich. 492, where it was held that a sheriff was entitled to recover the full value of the property taken, although in excess of the executions in his hands, as he had the right of possession of the whole under the executions, and was accountable to the vendors for the excess beyond the executions and costs. But in the present case Robinson was the agent of Delilah Simmons in her lifetime, and, after obtaining possession, turned the property over to the administrator of the estate of Delilah Simmons. If the property belonged to that estate, and was delivered over to the administrator by Robinson, plaintiff here cannot be said to have been damaged. Robinson did simply what plaintiff here would have been bound to do had the property been returned to him. We think, therefore, that this defence was available in the suit upon the bond.

It is next urged that the court was without jurisdiction in the replevin case to award a return of the property and the assessment of damages, and Parsell v. Circuit Judge, 39 Mich. 542, is cited. That was a case, however, commenced in the circuit, where the writ contained no description whatever of the property. The present case was commenced before a justice of the peace. The affidavit contained a description, the sufficiency of which does not appear to have been attacked, and it is the affidavit which gives the court jurisdiction. A similar description was held good in Humphrey v. Bayn, 45 Mich. 565.

In reply to the objection that the execution issued in the replevin suit was returned by the sheriff one day before the return-day, plaintiff- urges that defendants had put it out of their power to return the property. If so, it was by the delivery thereof to the administrator of Delilah Simmons; and, if the estate of Delilah Simmons was the rightful owner of the property, such delivery is a complete defense.

The judgment is reversed, and new trial ordered.

The other Justices concurred.