text:
    BECKER v. DETROIT CITIZENS’ STREET RAILWAY CO.
    1. Street Railways — Crossings—Collision of Cars — Injury to Motorman — Contributory Negligence.
    Where a street-railway ordinance required electric cars to come to a full stop 20 feet from the crossing of another line, a motorman who, having made the stop, saw a car from ISO to 200 feet distant on the intersecting line, was not guilty, as a matter of law, of contributory negligence, precluding a recovery for injuries received in a collision with such other car, in assuming that the car would be stopped in compliance with the ordinance, and running in ahead of it upon the crossing.
    2. Contributory Negligence — Conflicting Evidence — Question for Jury.
    The question of contributory negligence should be submitted to the jury when the testimony is conflicting, or where the case is not free from doubt upon the facts, or where candid and intelligent men might reach different conclusions thereon.
    3. Street Railways — Crossings—Right of Precedence.
    2 Comp. Laws 1897, § 6463, which provides that at all crossings of the tracks of two street railways, when a car on each road approaches such crossing at “substantially the same time,” the car on the traok first laid shall be entitled to the right of way, does not give precedence to a car on the older line which is from 150 to 200 feet distant when the car on the newer line comes to a stop in compliance with an ordinance requiring all cars to be stopped 20 feet from such crossings.
    4. Same — Ordinance Requiring Full Stop.
    The fact that the company operating the older of two intersecting street-railway lines is by the general statute (2 Comp. Laws 1897, § 6468) given precedence when its car approaches a crossing at substantially the same time as a car on the other line will not warrant it in ignoring an ordinance requiring all cars to come to a full stop at such crossings, and it does not have the right of way until it has stopped its car in compliance therewith
    Error to Wayne; Hosmer, J.
    Submitted October 3, 1899.
    Decided October 24, 1899.
    Case by Alonzo Becker against the Detroit Citizens’ Street Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Brennan, Donnelly & Van De Mark, for appellant.

      Lehman Bros, and F. J. Biggs, for appellee.
   Moore, J.

Woodward avenue, in the city of Detroit, runs north and south. Fprest avenue runs east and west, crossing the first-named avenue at right angles. The plaintiff was a motorman upon an electric car upon Forest avenue. His car was going west. Before reaching the east street-crossing of Woodward avenue, his car was stopped. Upon receiving the signal from the conductor to go forward, he started his car across the street. It was struck by a north-bound car on the Woodward-avenue track, which did not make a stop before reaching the Forest-avenue track. The motorman on the Woodward-avenue car claimed he did not make the stop because his brakes did not work, and the track was wet, causing the wheels to slip. The plaintiff received injurie's. He claimed he was without negligence, and that his injuries were caused by the negligence of the motorman on the defendant’s car. He sued the defendant, and from a judgment in his favor defendant has brought the case here upon writ of error.

The court was requested to direct a verdict in favor of the defendant because the plaintiff was guilty of contributory negligence. Its refusal to do so is assigned as error. Exception was also taken to the charge given by the court, and to its failure to give certain of the defendant’s requests.

The street-railway ordinance of Detroit requires the motorman of any car approaching the crossing of any other street railway to cause the car to come to a full stop before reaching the crossing, and at least 20 feet therefrom. Section 6463, 2 Comp. Laws 1897, provides that:

‘ ‘At all crossings of the tracks of two street railways, when a car on each road approaches such crossing at substantially the same time, the car on the track first laid shall have precedence and be entitled to the right of way: Provided, no car shall be stopped on such crossing.”

It is claimed by the defendant that plaintiff had not discharged his full duty by simply stopping his car, but was bound to ascertain whether it was safe for him to proceed before doing so. Counsel argue in their brief:

‘ ‘ Begardless of any ordinance requiring cars to stop at intersection of street-railway crossings, we think the law imposes the same duty upon motormen in charge of such cars as is imposed upon the public generally in crossing the tracks of a steam railway, viz., to stop, and observe whether ’or not the crossing can be made with safety. The application of electricity to street-car propulsion in cities makes possible, and indeed the public demands, a high rate of speed in these cars, which makes a corresponding increase in the space required to stop them; and where, upon intersecting lines, cars are traveling at intervals of a very- few moments, with the chances very great that two cars will often approach such intersection simultaneously, any other rule would be absolutely dangerous to the traveling public. * * * If it is necessary for a person to stop, look, and listen before crossing a railroad track, or to look just before entering upon a street-railway track, as held in the McGee Case, how much more necessary is it, from the standpoint of public safety, for a motorman, who finds himself in a place of safety, to assure himself that the way is safe, before attempting to make the crossing. In the McGee Case it was held not sufficient to look when at a distance of 14 feet from the track, because one might easily mistake the distance of the car, if in sight. And if one does look, and then proceeds to cross, and is struck by a car, it is idle to say that his own negligence did not contribute to his injuries. So, in the case of a motorman who has brought his car to a standstill 20 or 40 feet from the crossing of another street railway, and where his view is unobstructed for a considerable distance, it is idle to say that he takes the precautions the law requires of him when he starts up, and loses control of his car, and collides with another car on an intersecting track, which, from very necessity, must have been in dangerous proximity to the crossing at the time of his starting, and which other car he knew, by custom and under an ordinance, had a right to proceed to within 20 feet of the crossing before being brought to a standstill. * * * Were this the case of an ordinary pedestrian undertaking to cross the track of a street railway, the question would be at once disposed of by the rule laid down in the McGee Case, 102 Mich. 112 (26 L. R. A. 300, 47 Am. St. Rep. 507), and others. There it was held that it was not sufficient to look when 14 feet from the track, but that one must look immediately before entering upon it. In that case plaintiff claimed that when he looked, 14 feet away, the track was clear. Can the rule be different where a person in charge of a heavy car full of passengers looks when 40 or 45 feet away, and observes a car approaching at full speed, waits a period of time, and then proceeds on his way, without looking to see that there is no danger of collision, until it is too late to stop in case there is danger ? The duty of a person in charge of a heavy car, with the safety of perhaps a score of persons on his hands, ought certainly to be of no lower degree than that of a pedestrian, who can stop almost instantly, or, if necessary, retrace his steps,” — -citing, also, Pratt v. Railway Co., 38 Minn. 455; Birmingham Mineral R. Co. v. Jacobs, 101 Ala. 149; Chicago, etc., R. Co. v. Rockford, etc., R. Co., 72 Ill. 34; Kelly v. Railway Co., 92 Mich. 19.

Counsel insist that, if the rule contended for by them is applied to the facts of this case, plaintiff cannot recover. These cases are not directly in point. All of them, except McGee v. Railway Co., 102 Mich. 112 (26 L. R. A. 300, 47 Am. St. Rep. 507), are cases where steam roads were involved. The rule established by most of them is substantially that, “ although an engineer on an engine of a railroad having the older right of way can presume, when approaching a crossing, that the employes of a train on the intersecting road will stop their train as required by law, it is his duty to keep a lookout for approaching trains, and if, in the face of facts reasonably indicating that the approaching train on the intersecting line is not going to stop at said crossing, the engineer attempts to cross; he is chargeable with negligence.” The Illinois, the Minnesota, and the Alabama cases all hold that the question of negligence is one for the jury; while the Alabama case holds that the engineer had a right to presume that the employes on the intersecting road would stop within the distance required by law. The case of Kelly v. Railway Co., 92 Mich. 19, was one where the view of the crossing was obstructed, and where both the engineers are said by the court to have been reckless. In Birmingham Mineral R. Co. v. Jacobs, 101 Ala. 149, it was said:

‘ ‘ The plaintiff’s intestate had a right to rely upon the performance by those on the defendant’s train, in charge of it, of every act imposed by law on them, when approaching the crossing. The presumption was that they would stop within 100 feet of the crossing, as the statute required them to do. It cannot be imputed as negligence to him that he did not anticipate culpable negligence on the part of the employés of defendant.”

The cqurt was requested by plaintiff to charge the jury that the plaintiff had a right to presume that the motorman in charge of the Woodward-avenue car would stop his car before crossing the Forest-avenue track. The court declined to give this request in that language, but modified it, and instructed the jury:

“ I am asked to charge you that it was the duty of the plaintiff, upon stopping his car at the easterly side of Woodward avenue, to use his eyes, and ascertain whether or not the track was clear, before he attempted to make the crossing. He could not proceed upon the theory that, because an ordinance required the defendant’s motorman to stop, he could proceed with impunity across the track, regardless of the nearness of the other car. The fact that he stopped the car at the place directed by the ordinance did not relieve him from the duty of keeping his car under control, so that it could have been stopped in time to avoid a collision. It was the duty of each of these motormen, in the performance of their obligations to the employer, to see that the way was clear before attempting to make the crossing. I think, gentlemen of the jury, in giving that request, I would give it with the modification that I have suggested before, — that the distance that the man was away from the crossing, the rate of speed that he was coming, and various other matters of that description, might determine, as you may find them, — would determine, — whether "ifche plaintiff in this case had a right to believe that the motorman was going to comply with the ordinance, and stop before the crossing. Now, if it appeared in this case that he was a sufficient distance away, 'and it appeared to Mr. Becker, exercising that reasonable degree of prudence which you would expect of a man under those circumstances, that the other car was going to stop before it reached the crossing, — and what I said about a mistake of judgment on the part of Mr. Fillmore would apply equally well to Mr. Becker in that regard, — I say, if it appeared to him, exercising that reasonable degree of prudence, that the other car was going to stop before it reached the crossing, then, and under those circumstances, he was not guilty of negligence in starting his-car to go ahead; if it did not, undoubtedly he would be.
“ I am asked to charge you that if, at the time plaintiff stopped his car 20 or 30 feet east of the sidewalk crossing, he saw the Woodward-avenue car 300 or 400 feet south of the crossing, and if the plaintiff remained with his car at -a standstill for a sufficient length of time to allow a passenger to alight, I charge you that, under those'circumstances, it was his duty, before the starting of the car, to observe the whereabouts of the other car, and whether or not it was safe for him to cross; and if he neglected this duty, and ran 25 or 30 feet without looking for the other car, and then, for the first time, observed that the other car was in dangerous proximity to the crossing, and he himself and his car were going too fast to stop at the point of' collision, he is guilty of contributory negligence, and cannot recover. That is undoubtedly so, gentlemen.”

It was the claim of the plaintiff, and he offered proof to sustain the claim, that, when his car was stopped, he looked to the south, and saw the Woodward-avenue car 300 or 400-feet away; that, after he got the signal to start, his car moved forward 15 or 20 feet, to the east crossing, when he looked, and saw the car 150 or 200 feet away, and supposed it would stop before it reached Forest avenue, as the ordinance required it to do, and that he had ample time to-cross in safety. We do not think it can be said, as a matter of law, that where a motorman, who has already made the stop required by ordinance, attempts to cross another road with his car when the approaching car is 150' or 200 feet away, and is required by ordinance to stop-before reaching the crossing, he is guilty of contributory negligence. If he must wait before he can go forward until he knows that the approaching car will stop, he will fail to meet the demands of modern street-railway traffic. The rule is well settled that the question of plaintiff’s contributory negligence should be submitted to the jury when the testimony is conflicting, or where the case is not free from doubt upon the facts, or where candid and intelligent men might reach different conclusions upon, the facts. Swoboda v. Ward, 40 Mich. 420; Teipel v. Hilsendegen, 44 Mich. 461; Chicago, etc., R. Co. v. Miller, 46 Mich. 532; Lewis v. Railway Co., 54 Mich. 55 (52 Am. Rep. 790); Palmer v. Railroad Co., 56 Mich. 1; Staal v. Railroad Co., 57 Mich. 239; Luke v. Mining Co., 71 Mich. 364; Dundas v. City of Lansing, 75 Mich. 499 (5 L. R. A. 143, 13 Am. St. Rep. 457); Adams v. Iron Cliffs Co., 78 Mich. 271 (18 Am. St. Rep. 441); Brezee v. Powers, 80 Mich. 172; Underhill v. Railway Co., 81 Mich. 43; Cuta v. Railway Co. Id. 291; Engel v. Smith, 82 Mich. 1 (21 Am. St. Rep. 549); Roux v. Lumber Co., 85 Mich. 519 (13 L. R. A. 728, 24 Am. St. Rep. 102); Craves v. City of Battle Creek, 95 Mich. 266 (19 L. R. A. 641, 35 Am. St. Rep. 561).

Defendant insists plaintiff cannot recover because, under the statute, the defendant’s car had the right of way. We think this contention cannot be sustained, under the proofs in the case. The Forest-avenue car had made its stop, and started on its way, when the Woodward-avenue car was at least 150 or 200 feet away; so that it cannot be said the cars approached the intersection at substantially' the same time. The statute does not authorize a street-railway company in a city to ignore the provisions of an ordinance requiring a car to come to a full stop before making a street-railway crossing, and the car did not have the right of way until it made the stop.

The case was carefully tried, and the defendant is not in a condition to complain of the manner in which the case was submitted to the jury.

Judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, C. J.

license: Public Domain

text:
    WALLACE v. ANN ARBOR & YPSILANTI ELECTRIC RAILWAY CO.
    1. Railroads — Passes—Covenants Running with Land.
    A railroad company’s agreement to supply a landowner with an annual pass in consideration of right of way does not run with the land, and is not binding upon a new company purchasing the franchises of the old without assuming its obligations.
    2. Same — Consolidation—Evidence—Prima Facie Case.
    Evidence that the vice-president of a railroad company told ■ complainant, a pass-holder, that a transaction whereby the company’s franchises were sold to a new company was nothing more than a consolidation of the companies, and his testimony that the purchase was subject to all the conditions attached to the old company, establish a prima facie case of consolidation, under which the new company succeeds to the obligations of the old, where the bill of sale itself contains nothing inconsistent therewith. .
    3. Same — Connecting Lines — Honoring Pass.
    The fact that a pass over one line of road, on account of right of way, is honored for years over a connecting line, does not bind a consolidated company, which buys both roads, to recognize the pass beyond the limits prescribed.
    4. Same — Remedies—Speoieio Performance.
    Whether a bill for specific performance will lie against a railroad company, which acquired its rights by purchase from another company, to compel it to issue a pass in compliance with a contract of the former company, — qucere.
    Appeal from Washtenaw; Kinne, J.
    Submitted October 5, 1899.
    Decided October 24, 1899.
    Bill by Sarah L. Wallace' against the Ann Arbor & Ypsilanti Electric Railway Company to enforce an agree ment for passes over defendant’s road. From a decree for complainant, defendant appeals.
    Modified and affirmed.

      Complainant owns a farm situated on the highway between Ann Arbor and Ypsilanti. At the time that the Ann Arbor & ¡Ypsilanti Street-Railway Company constructed its roadbed along this highway, she was not living there. Soon after its construction she found, on returning to the place, that the roadbed encroached upon her land, or at least she claimed that it did. She immediately made complaint to the vice-president of the road. It was finally agreed that in consideration that the company might use the land for its track, as it then was, while she owned the farm, the company should issue to her and the members of her family passes over the road, good till the farm was transferred. The agreement rested in parol, except that the company issued passes as agreed, and all alike, except as to the name. Complainant’s reads as follows:
    “Ann Arbor & Ypsilanti Street-Railway Company.
    “Pass Mrs. J. L. Wallace on account of right of way until farm is transferred. No. 41.
    , “H. P. Glover, Vice-President.”
    In 1896 that company transferred all its property, including rights of way, easements, leasehold interests, etc., to the defendant, which refused to carry complainant and the other members of her family on the passes. She thereupon filed the bill in this cause to enforce the contract, and to restrain defendant from using the track over her land without compliance with the contract. Proofs were taken in open court, and decree entered for complainant.

      Lee N. Brown (M. J. Lehman, of counsel), for complainant.

      D. G. Griffen, for defendant.
   Grant, C. J.

(after stating the facts). 1. Counsel cites several authorities to the effect that such an agreement does not run with the land, and is not binding upon the purchaser of the rights, franchises, etc., of the old company, in the absence of a statute or contract making such purchaser liable. That is undoubtedly the rule. Dickey v. Railway Co., 122 Mo. 223; Martin v. Railroad Co., 36 N. J. Eq. 109; Helton v. Railway Co., 25 Mo. App. 322; Hoard v. Railway, 123 U. S. 222; Eddy v. Hinnant, 82 Tex. 354. Did the defendant assume this liability ? The record is very meager and unsatisfactory upon this point. The only evidence is a bill of sale attached to the bill of complaint, and admitted by the answer and the testimony of the vice-president of the old company. The bill of sale contains nothing which is conclusive upon the point, or inconsistent with the assumption by the new company of contracts for the rights of way. The vice-president testified that “when these franchises, rights, leases, and leaseholds and interests were purchased by the electric company, * * * they were bought subject to all the conditions attached to the old company.” He further told Mrs. Wallace that the transaction was nothing more than a consolidation of the old and new companies. We think this made out a prima facie case of consolidation, under which the consolidated company succeeds to all the rights and obligations of the old company.

2. The old company’s line extended only to the limits of the city of Ann Arbor. Another company owned the railway line in the city. The two connected. ' Eor several years the street-railway company of Ann Arbor passed complainant over its road into the city. The decree compelled the defendant to carry complainant over the road in the city, the defendant having also purchased the property and franchises of that company. The decree in this respect was wrong. The railway which issued to complainant her pass had no control over the road in the city. The fact that for several years complainant had traveled over that road on her pass does not bind the defendant. The contract was unambiguous, and by its plain terms gave her the right of travel only over the road of the old company. Pennsylvania Co. v. Erie & Pittsburgh Co., 108 Pa. St. 621.

3. We doubt whether a suit in chancery is the proper Temedy to enforce complainant’s rights. While the court below evidently treated the bill as one for specific performance of a contract, it is not framed upon that basis. There are authorities which hold that this is not the proper remedy. Ruddick v. Railway Co., 116 Mo. 26 (38 Am. St. Rep. 570); Martin v. Railroad Co., 36 N. J. Eq. 109; Helton v. Railway Co., 25 Mo. App. 322; Eddy v. Hinnant, 82 Tes. 354; Cook v. Railway Co., 36 Wis. 45. But inasmuch as the question is not raised, and the defendant has seen fit to meet the question upon its merits, we do not decide the question. We mention it simply ■that it may not be understood by the profession that we Tecognize this as the proper remedy.

The decree will be modified in accordance with this «opinion. Neither party will he allowed costs in this court.

The other Justices concurred.


author: Hooker, J.

text:
    CLAWSON v. CITIZENS’ MUTUAL FIRE INSURANCE CO.
    IFire Insurance — Application —Title—Conditions—Waiver-Estate by Entirety.
    Where one having an interest in land as tenant by. the entirety procured a building thereon to be insured upon an application wherein, without intent to misrepresent or fraudulently conceal the facts, he replied to the question, “What is your title?” by the word “Deed,” and received a policy conditioned that it should be void “if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple,” he can recover on the theory — but, in view of the broken condition, only on the theory — that the application was sufficient to put the company on inquiry as to the nature of his title, and that, by issuing the policy without such inquiry, it waived the right to insist upon such condition; an estate by entirety being in fact an insurable interest in the whole premises.

      Error to Jackson; Peck, J.
    Submitted October 6, 1899.
    Decided October 24, 1899.

      Assumpsit by Mark Clawson against the Citizens’1 Mutual Fire Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      George 8. Wilson {Charles A. Blair, of counsel), for appellant.

      Garry C. Fox, for appellee.
   Hooker, J.

The plaintiff procured a policy of insurance from the defendant company. The application was made upon a printed blank furnished by the defendant’s agent, who wrote the answers to the questions contained thereon, as given by the plaintiff. To the sixth question, “What is your title?” the plaintiff answered, and the agent wrote, “Deed.” The application concluded with the following clause:

“In consideration of the protection afforded by the company, it is hereby agreed on the part of the applicant that he will abide by the regulations of the company as contained in their policy, and pay his equitable proportion of the rate necessary to pay losses and expenses, not exceeding the sum specified in this application, during the life of the policy.”

The application was sent to the home office, which issued and forwarded the policy, which was the Michigan standard form. It contained the following provision:

“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; * * * or if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple.”

On February 18, 1898, the property insured, including a building, was destroyed by fire. On March 8th, proof of loss was made ón a blank furnished by an agent of the defendant, when it appeared that the plaintiff and his wife held title to the premises under a deed which made them tenants by the entirety. Thereupon the defendant-refused to pay the loss, and this action was brought.

Two points are raised in the brief of the appellant:

1. That the application misrepresented the plaintiff’s title.

2. That the policy is void under the provisions quoted.

The cause was tried by the court, and written findings were filed. The court found that there was neither fraudulent misrepresentation nor concealment of the plaintiff’s title, and held that the provisions of the policy were waived. The defendant has appealed.

It* is contended that the statement that the title was held by deed was equivalent to a representation that plaintiff held title in fee, whereas he had no inheritable title, being neither a tenant in common nor an ordinary joint tenant, as his. wife had a right of survivorship of which he could not devest her, and might become sole owner in fee at his death. The conditions of the policy are valid, and there is nothing in the findings to excuse the plaintiff from not knowing that they were in the policy. It is also true that the plaintiff’s title did not meet the requirements of such conditions, and that he should not have been permitted to recover, unless the conditions were waived. The policy indicates that risks upon property, the sole, absolute, and unconditional title to which is not in the insured, are not desired, and, if taken at all, will be confined to cases where it is expressly so provided. In such cases these conditions are waived, and wherever the writings which constitute the contract show an express waiver, or facts which may be said to put the company upon inquiry in relation to the title, it is not unreasonable to say that there is such waiver. A contract of insurance is executed by the insured by payment of the premium, while it is ex-ecutory by the company. If, after a fire, it turns out to be void, there is little, if any, loss to the company, for, at most, it must refund the premium; but to the insured the loss is greater. Holding a policy void in a case of this kind is akin to enforcing a forfeiture, and there is no hardship in holding the company to the utmost good faith. The application asked the plaintiff to state by what title he held this property, which neither the application nor policy described as “his.” His reply was, ■“Deed.” This did not convey any information upon the question of his sole and absolute ownership in fee, for his deed might be any kind of a deed, and it might purport to convey any of the numerous estates less than a fee simple that may be conveyed by deed. It was a representation that he had a deed of the entire parcel, but the estate sought to be conveyed by the deed was not intimated. The agent knew that, and the home office knew it when the policy was issued, and we think it no injustice to hold that the company intended to insure whatever insurable interest he had in the entire premises.

We do not mean to be understood that the company was not justified in believing that his deed covered the ■entire premises. Had it covered but the south one-fourth, •or the undivided one-fourth, or any other aliquot part, we might say that it was a misrepresentation, and that the olear implication was that the plaintiff had title by deed to the property that he was insuring, upon which the •company had the right to rely. The case of Miotke v. Insurance Co., 113 Mich. 166, discusses a similar question, although the circumstances under which the policy was taken were different. The plaintiff had an estate well known to the law in the entire parcel. It was not an .-absolute estate in fee, but it might ripen into one. The «character of his holding was discussed by Mr. Justice Moore in the recent case of Dickey v. Converse, 117 Mich. 449. This was an insurable interest in the whole, ■and one which the defendant was bound to know might be ■conveyed by deed. We think this point covered by the «case of Miotke v. Insurance Co., supra.

The judgment is affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    McDONALD v. BORN.
    Equity Practice — Denial op Rehearing — Appeal.
    The Supreme Court will not consider an appeal from an order denying a rehearing in a chancery case, where the application was based on appellant’s inability, through adverse circumstances, to be present and testify at the hearing, and the testimony at the hearing is not returned.
    Appeal from Houghton; Haire, J., presiding.
    Submitted October 6, 1899.
    Decided October 24, 1899.
    Bill by Frankie McDonald against Louis Born for the specific performance of a land contract. There was a decree'for defendant, and complainant petitioned for a rehearing.
    From an order denying the petition she appeals. Dismissed.

      JR. Skiff Shelden, for petitioner.

      J. F. Hambitzer, for defendant.
   Per Curiam.

This is an appeal from an order denying a rehearing. The application was based upon a showing that the complainant was prevented by adverse circumstances from being present to testify upon the hearing in open court. As the testimony before the court upon the hearing is not before us, we cannot pass upon the question. The appeal is dismissed, with costs.


author: Moore, J.

text:
    COYLE v. O’CONNOR.
    Tax Sales — Decree—Jurisdiction—Nonservioe op Subpoena.
    A decree of sale in a tax proceeding under the law of 1889 is void where no subpoena was issued to the person to whom the land was assessed, and a subpoena addressed to the person owning the land at the time the proceeding was taken was returned unserved by the sheriff of the county where the land was situated, without having been transmitted for service to the county of which such owner was a resident.
    Appeal from Bay; Maxwell, J.
    Submitted October 4, 1899.
    Decided October 24, 1899.
    Petition by William Coyle against William O’Connor and Roscoe D. Dix, auditor general, to set aside a tax sale. From a decree for petitioner, defendant O’Connor appeals.
    Affirmed.

      James Donnelly (DeVere Hall, of counsel), for petitioner.

      T. A. E. & J. O. Weadock, for appellant.
   Moore, J.

This is an appeal from a decree vacating a decree for the sale of lands owned by the petitioner for taxes of 1889, and canceling a tax deed owned by defendant O’Connor. The record shows that in April, 1889, Thomas Lee was the owner of the W. -J- of the S. W. ^ of section 12, in township 13 N., range 5 E., Bay county, which land was assessed to him for the year 1889, and the taxes were extended against the entire 80 acres. October 7, 1889, Mr. Lee sold the south half of said land to the petitioner, who was a resident of Gilchrist, Mackinac county, Mich., and who was so described in the deed given to him, which deed was, on the same day, duly recorded. Mr. Coyle arranged to have his tenant pay the taxes, but lie failed to do so, and the land was returned, and after-wards sold by the auditor general for the taxes, and defendant O’Connor is now the owner of the tax title.

No subpoena was issued, containing the description of land, and served upon Mr. Lee. A subpoena was issued, and directed to the sheriff of Bay county, addressed to the petitioner, containing a description of the land, which was returned personally served. It was made to appear upon the hearing that this return was a mistake, and that no service in fact was made. It is now claimed by the solicitors for respondent that a second subpoena was issued to the sheriff of Bay county, addressed to the petitioner, which subpoena was returned by the officer unserved, for the reason that Mr. Coyle could not be found. While there is mention made in the pleadings of the last-named subpoena, no reference is made to it in the case as settled by the circuit judge, and it do is not appear it was offered in evidence. Even though it be considered as properly here, it does not supply the necessary evidence to give the court jurisdiction.

It is urged by the petitioner that a subpoena should have been issued addressed to and served upon Mr. Lee, to whom the land was assessed. It is claimed by the respondent that the attempted service upon Mr. Coyle, who was the owner of the land, supplemented by the published notice, was sufficient to give the court jurisdiction. The record discloses that, when the subpoenas were issued, Mr. Coyle was a resident of this State. The deed, which he recorded in Bay county, described him as a resident of Mackinac county. If he was the person upon whom the subpoena should be served, being a resident of the State, he was entitled, under the law as it then existed, to service of process. When process could not be served upon him in the county where the land was situated, the sheriff should have transmitted the subpoena to the officer living nearest to him; and, if service could not be made, the return of the officer should state why it could not be made. No subpoena addressed to Mr. Coyle was placed for service in the hands of any officer except a Bay county officer, and no attempt was made to serve Mr. Coyle with process in the county where he lived. As already stated, no subpoena was served upon Mr. Lee, to whom the land was assessed. Taking any view of the case, it is clear the court did not get jurisdiction of Mr. Coyle, and was not authorized to enter the decree for the sale of the lands. Fowler v. Campbell, 100 Mich. 398; Taylor v. Deveaux, Id. 581.

The decree is affirmed, with costs of this court'

The other Justices concurred.


text:
    SIRR v. MILLER.
    Homestead — Conveyance in Trust for Wife and Children — Si UN ATURE OF WIFE.
    A deed of a homestead by a husband in trust for his wife and children, providing for the use of the premises by them or for their benefit, and for an ultimate division of the land and its proceeds among the survivors of them, is void without the signature of the wife, and the children can take no title thereunder, — at least jin the absence of proof of acquiescence on the part of the wife.
    Appeal from Chippewa; Steere, J.
    Submitted October 5, 1899.
    Decided October 24, 1899.
    Petition by William Sirr, as next friend of Eveline Jane and Emma Goodreau, infants, against David Miller, to set aside a tax sale. From an order dismissing the petition, petitioner appeals.
    Affirmed.

      M. F. McDonald, for petitioner.

      Warner & Sullivan, for defendant.
   Hooker, J.

The undivided half of the premises involved in this litigation was sold for delinquent taxes for the year 1891 to one David Miller. Eveline Jane and Emma Goodreau, by William Sirr, their next friend, filed the petition in this cause, asking that the deed to Miller be canceled, under the provisions of section 69 of Act No. 206 of the Public Acts of 1893, which provides:

“In case of the sale of lands belonging to any infant, idiots, minor heirs, insane or incompetent persons, if it shall appear to any court that it is necessary, to protect the rights of such incompetent person, to order any sale canceled or deferred, it may so order, and in such case all proceedings may be stopped, sale canceled, or action stayed until the proper proceedings can be had to protect the rights and property of such incompetent person or persons.”

The record shows the following facts: Theophile Goodreaii was the owner of the premises on October 4, 1886, and occupied them as a homestead. On that day he made a deed of the premises to John A. Colwell as trustee for his wife (Eliza Jane), Elizabeth, Eveline Jane, and Emma. The wife did not execute this deed. On November 26, 1888, while the family still occupied the premises as a homestead, Mrs. Goodreau filed a bill for divorce, decree passing in her favor on June 1, 1881). The parties had separated prior to filing the bill, Goodreau having left. In the fall of 1890 Mrs. Goodreau married Duncan McDonald, after which they resided on the premises until February, 1892, when Mrs. McDonald executed a written lease of a portion of the property for five years to one Campbell. On November 25, 1895, Campbell assigned the lease to Miller. In August, 1894, Mrs. McDonald leased the remainder of the premises, and with her husband and family removed to Canada, where they resided until April 1, 1897, when they returned, and moved into a house which Campbell had erected upon the site of the former dwelling under the terms of his lease. They entered without Miller’s knowledge or consent, but with the knowledge and consent of his ténant. Miller obtained the tax deed on January 26, 1895, and on May 2é, 189?, he obtained a quitclaim deed of the premises from Theophile Goodreau for a consideration of $25. The following day he began an ejectment suit against McDonald and wife for the portion of the lot occupied by them, and on September 10, 189?, obtained judgment for an undivided half of the same.

The theory of the defendant (Miller) is that the deed to Colwell in trust is void, for the reason that the land was at the time a homestead, and could not be conveyed by a conveyance in which the wife did not join, and that subsequently the homestead was abandoned, and the quitclaim deed from Theophile Goodreau conveyed to Miller a title, subject, at the most, to an inchoate right of dower. Counsel agree that the only question in the case is whether the infants acquired any title under the trust deed. The counsel for the defendant contend that the infants are not owners of the land, for, if the deed is valid, it belongs to the trustee, and, if not valid, it certainly does not belong to them.

A deed of a homestead without the signature of the wife is admittedly void. The petitioner contends, however, that such a deed to a wife is valid, and that a deed to another in trust for the wife can be treated as valid to the extent of conveying the title for her benefit. If this be so (and we find it unnecessary to decide the question), it would not follow that a deed of a homestead in trust for children would be valid without the wife’s signature. This deed provided for the use óf the premises by or for the benefit of the wife and children, and an ultimate division of the land and its proceeds among the survivors of them. To hold that the land belonged to these infants is to say that the husband may cut off the homestead rights of his wife by a deed without her signature.

This record is silent upon the question of the wife’s acquiescence, and we have therefore no occasion to discuss it. We mention it, not to indicate an opinion that it would make the deed valid, but merely to show that the question is not in the case, and therefore not decided.

The deed being void, there is no vestige of title, legal or equitable, in the petitioners, and the learned circuit judge properly dismissed the petition. His decree is affirmed, with costs.

The other Justices concurred.


text:
    WINEMAN v. WAYNE CIRCUIT JUDGE.
    Appeals from Justice’s Court — Appeal Bond — Sufficiency— Labor Debts — Preferences.
    Upon an appeal from a justice’s judgment declaring plaintiff’s claim against an insolvent defendant to be one entitled to preference as a labor debt under 3 How. Stat. § 8749m et seq., an appeal bond conditioned, not for the payment of any judgment rendered against appellant, as required by the general statute (3 How. Stat. § 7000), but merely for the payment of the judgment if the preference is sustained in the circuit, is insufficient ; the statute making no special provision for appeals on the question of preference.

      Mandamus by Hugo A. Wineman to compel Joseph W. Donovan, circuit judge of Wayne county, to dismiss an appeal from justice’s court.
    Submitted October 24, 1899.
    Writ granted, conditionally, November 2, 1899.

      William Stacey, for relator.

      George W. Bates, for respondent.
   Per Curiam.

Kelator brought an action of assumpsit for work and labor in justice’s court against the Fisher Electrical Manufacturing Company, and recovered a judgment for $251.16. Tbe amount of the judgment does not appear to have been contested. The sole controversy was whether the claim was entitled'to preference under Act No. 94 of the Public Acts of 1887 (3 How. Stat. § 8749m et seq.). The justice, holding that it was, so certi fied in his judgment. The defendant appealed the case to the circuit court, and executed a bond in the sum of $510, the condition thereof being that “said Fisher Electrical Manufacturing Company shall prosecute its appeal, * * * and, if a judgment be rendered against it under Act No. 94 of the Public Acts of 1887 in the said circuit court, shall pay the amount of such judgment.” Plaintiff moved to dismiss the appeal for a defective bond. This was refused. Relator asks for the writ of mandamus to compel the court below to dismiss the appeal.

Act No. 94 provides simply for a preference for labor debts in the case of an involvent person or corporation, and requires the court to specify in the judgment the part, portion, or amount of the claim which is preferred. Thereupon execution may issue requiring that the amount of such preferred claim be first made out of the goods and chattels, and, for want thereof, then of the lands and tenements, of the defendant. The suit was commenced by the usual summons, with a declaration upon the common counts and a plea* of the general issue. By the terms of this bond the obligors are only required to pay if the preference is sustained. If the preference is not sustained, then they are not obliged to pay the judgment, although it is a valid one against the defendant. Is this a bond contemplated by the statute ? Appeals are purely statutory. Act No. 94 makes no provision for an appeal on the question of preferences. We must therefore look to the general statute authorizing appeals from justice’s courts. That statute (3 How. Stat. § 7000) provides for a bond to pay the judgment rendered in the circuit court in favor of the appellee. There is no provision for an appeal from a part of the judgment. It follows that the bond is not such as the statute requires, and the writ will issue directing the dismissal of the appeal, unless a valid bond be filed under the rules and practice of the court.


author: Moobe, J.

text:
      In re MAINS.
    Attorneys — Charges Against Judge — Disbarment.
    For an attorney-at-law to spread upon the records of the court, in support of a motion that the judge of another circuit be brought in to preside in a case against him, an affidavit containing charges of conspiracy and corruption on the part of the circuit judge and the attorneys for the plaintiff, for which Charges there is no foundation whatever in the facts, is just ground for his disbarment.
    Petition by Clement Smith, circuit judge of Calhoun county, to have the name of Charles E. Mains stricken from the roll of attorneys.
    Submitted, on testimony taken in open court, October 18, 1899.
    Order of disbarment entered November 2, 1899.

      Horace M. Oren, Attorney General, Wanty & Knappen, and Philip T. Oolgrove, for petitioner.

      Charles B. Mains (Allen B. Morse, of counsel), in pro. per.

   Moobe, J.

This is a proceeding brought to have the name of respondent striken from the roll of attorneys because of his having made upon the records and files of the circuit court of Calhoun county charges of corruption and conspiracy on the part of the circuit judge, which charges were well calculated to bring the court into disrepute. The case has been tried here in open court, where every opportunity has been given to the respondent to show the truthfulness of his charges, and to show why he should not be disbarred. The papers filed in the proceedings and the testimony are too voluminous to make it practicable to do more than state enough of what is shown to give a proper understanding of the situation. The proceedings show that the respondent is an attorney-at-law, and a member of the firm of Mains & Cavanagh. He was also one of the defendants in a suit at law in the case of the Consolidated Steel & Iron Company against John Mains and others, in which case the plaintiff claimed that the defendants were indebted to it in the sum of upwards of $3,000. The firm of Hulbert & Mechem were the attorneys for the plaintiff. Upon the trial of that cause before Judge Smith, the respondent swore that he had paid the amount of upwards of $3,000 to Mr. Hulbert, and produced a stipulation which recited that the money had been paid, and provided for a discontinuance of the suit. This stipulation purported to be signed by Hulbert & Mechem. Mr. Hulbert denied that any money had been paid to him, and claimed that the signature of Hulbert & Mechem was a forgery, and that the production of the paper and the testimony of the defendant were a surprise to him., The plaintiff was not prepared then to meet the situation, and submitted to a nonsuit, with leave to move to set the same aside. During the session of the court, but just after it adjourned, while Judge Smith was yet upon the bench, Mr. Nichols — a friend of long standing — stepped up in front of the bench, and had a brief conversation with the judge. The judge on this hearing testified that Mr. Nichols did not refer to Mr. Mains or his litigation. Later a motion to set aside the nonsuit was entered, when Mr. Mains sent to the circuit judge this remarkable letter:

“Battle Creek, Mich., 2/26/98. “Hon. Clement Smith,
“Sir: You are undoubtedly aware of the fact that a motion to set aside the nonsuit in the case of the Consolidated Steel & Iron Co. v. John Mains et al. has been entered, and will be heard before the circuit court of this county. We are preparing evidence or showing to be made against this motion, and in relation to this showing we address you, as evidently, from the statements We already have and affidavits we are getting, it will be necessary to have your affidavit on the following points: (1) What was the date that you were first apprised by the plaintiff or its attorneys, or any one of them, that a non-
“Hastings, Mich. suit was to be submitted to, and by whom suggested, and in whose presence, and at what place? (2) Upon what subject was the Hon. E. C. Nichols interviewing you in the court-room, alone, after adjournment, in the evening, a day or two before the case was disposed of ? Kindly be specific, as this matter is a proper subject of inquiry, and one we want to know. (3) Is it true that before the trial of this case commenced, or about the day of the opening of the trial, that you sent word through Loren Palmer, or any other person, to Mr. J. M. Powers, that you hoped he wouldn’t take part in this case until he was fully satisfied that he was right, or anything in substance to that effect? If so, state your explanation in regard to the matter fully. (4) Is it true that you have in any way given assurance to O. S. Clark, or to Hulbert & Mechem, or any of them, or any one for them, that, if they could extort a confession out of the witness Mrs. Gifford, that she would be protected from prosecution, — that you would so protect her, — or have you given any one so to understand ?
“We hope you can outlay this information, so we can prepare, and forward to you for your signature, an affidavit covering the points fully, and hope to have your reply by return mail.
“Yours truly,
“Mains & Cavanagh.”

Instead of doing as most judges would, Judge Smith sent a kindly and courteous reply to each of the questions contained in the letter, and said, as the motion must be heard before him, it would not be in good taste for him to make an affidavit. Not content with the statement of the circuit judge, Mr. Mains sent him another letter, in which he insisted that another judge should preside in the case. Among other things stated in the letter is the following:

“ The suggestions here offered are based upon the fact that the writer of this letter considers that the proceedings thus far in this case are but a beginning of what will follow, and that bitterness and ill-will will result from the trial of the cases growing out of it is just as natural and inevitable as that the case will be tried; and this litigation, in the form in which it is now getting, is reaching that stage where others are going to be affected by it, and a good case — it seems to us a very proper case — for the judge located right in our circuit to let some one else try. I am not in a position to explain to you more fully the reasons for the suggestions offered, nor do I expect you would care to have me, — in fact, I have reasons that I wouldn’t explain to any one; and one can hear almost all kinds of rumors on the streets of Battle Creek; and most all kinds of proceedings are being undertaken at the present time to make a defense in this case,' — proceedings that, unless great caution is exercised, will certainly involve others, and we shouldn’t want it to involve any one that shouldn’t be involved; and we say to you frankly that we don’t want you to hear this motion on the question of setting aside this nonsuit.”

Growing out of his testimony in relation to the stipulation already referred to, Mr. Mains was later charged with the crime of perjury. Later he was charged with an attempt to abduct and murder Mr. Hulbert. The examining magistrate required him to give bail in the sum of $10,000 in the perjury case, and $20,000 in the other case. An application was made to Judge Smith to- reduce the amount of bail in these cases, and he declined to do so. Later, Mr. Mains made a motion that another judge be brought in to try the perjury case. In support of this motion, he filed, without the knowledge and approval of his attorneys, a brief and affidavit made by himself, consisting of upwards of 30 pages of closely typewritten matter, charging the judge with acts which, if true, ought to put him behind prison bars. He charged him, among other things, with unjust prejudice, with unfair rulings, and mentions what his defense in the case was, and says that, in order to defeat him, one of his witnesses (Mrs. Gifford) was bribed:

“That the same man who backed up, with his money and his promises, two separate, independent attempts to bribe said Mrs. Gifford, made two, if not more, secret visits to the judge of this court during the pendency of said trial, and this defendant will insist and urge before, the jury in this case that said visits were for a corrupt purpose, and the purpose was accomplished, and the cause of the accomplishment of said purpose is the reason for the outrageous, persistent, continued illegal and unlawful rulings and actions made by the said Clement Smith, and persisted in by him; and affiant alleges that he believes that he can establish in part the truth of this charge by letters written by said Clement Smith himself. * * * Affiant further says that on the trial of this cause he will introduce evidence and show that said Clement Smith has either expressly or impliedly promised said Hulbert, O. ■Scott Clark, and others assisting him, that he (Smith), by virtue of his position as circuit judge, would protect from criminal prosecution any witness that had then testified for Mains who would change his or her testimony ■against him, and this whether it was true or false.”

He states that a plot was formed to have him falsely charged with an attempt to commit murder, and that—

“Said diabolical plot was a malicious, vindictive, corrupt concoction by Steven S. Hulbert, aided and assisted in by Andrew W. Lockton and William G. Howard and others; and the details of said plot involved the breaking into the office of this defendant for the purpose of stealing and carrying away the stipulation and check that make most convincing and condemning proof against said Hulbert in the perjury case, and to get said defendant in jail, in order to get control of his witnesses, and by fear and threats and bribery, if necessary, get said witnesses to change their evidence and swear for said Hulbert, and crush and ruin and convict the defendant; and the details of said scheme involved the arrest of this defendant, and the placing of him under bonds so high that he couldn’t reach them, and to secure — this defendant says that they did secure — the assistance and co-operation of Harry P. Lewis and Clement Smith, by unlawful and corrupt means, to accomplish that very end, as he will attempt to show on the trial.”

His affidavit also contained this statement:

“Affiant further says that affidavits to support the allegations of this affiant could be gotten, with considerable expense, and requiring a great deal of time; but this defendant alleges that for him to be required to come in this court on such an application, and present to the people by whom he would éstablish each of these facts, would be greatly to the prejudice and detriment of the defendant in any case, and especially in this casé, owing to the fact that by the express consent of the prosecution, we believe, backed up by the circuit judge of this court, as soon as it is known that a witness intends to testify for this affiant, a concerted, deliberate attempt is made to either bribe, force, bulldoze, or drive said witness out of making any statement, or put him in such fear that he won’t make a statement.” 0

Not only was there no testimony tending to show that Judge Smith was corrupt, or that he had been a party to a conspiracy, or had indulged in any improper practice in connection with this litigation, but the record discloses a degree of patience and forbearance upon his part towards Mr. Mains, such as no judge ought to be required to exercise towards any attorney. His actions can all be explained upon the theory that he was attempting, without fear and without partiality, to intelligently meet and discharge his duty, under a combination of circumstances which made it exceedingly unpleasant for him to do so. No act of his is shown which ought to or would have excited even a suspicion of improper conduct in a morally healthy mind. It very clearly appears from the conduct of Mr. Mains, from his letters to the judge, containing unjust insinuations and covert threats, and from his brief and affidavits filed in the records of the court, that he has incorrect ideas of the relation existing between an attorney and the court, and is wholly without that moral sense which enables him to properly appreciate the duties and responsibilities, not only to the court, but to the public, growing out of that relation.

Fortunately, the conduct of attorneys is generally of such an excellent character that applications for disbarment are very infrequent. While the cases are not numerous, the right of the court, when it becomes satisfied an attorney is no longer a fit person to practice the honorable profession of the law, to strike his name from the rolls, is well established. It is important to an attorney that his right to continue his profession should not be taken from him, but, on the other hand, he has no right to so conduct himself as to dishonor his profession or bring the courts into disrepute. Weeks, Attys. § 80, states the law to be as follows:

“As an attorney-at-law is an officer of the court, the latter may exercise its summary jurisdiction over him to the extent of depriving him of his office and striking his name from the rolls. This the court may do in cases of malpractice, though the offense be not indictable. Attorneys may forfeit their professionable franchise by abusing it, and a power to exact the forfeiture must be lodged somewhere. Such a power is indispensable, to protect the court, the administration of justice, and themselves. Abuses must necessarily creep in, and attorneys themselves are vitally concerned in preventing the vocation from being sullied by the misconduct of unworthy members. The court, too, has this power on the ground of self-protection, outside of the common law, and outside of the statutory doctrine of contempt, in cases where an attorney has shown himself unfit to be one of its officers; and such unfitness may be displayed, not only by moral delinquency, but by acts calculated and intended to injure the court.”

See, also, 1 Am. & Eng. Enc. Law, 944; In re Gates, (Pa. Sup.) 2 Atl. 214; In re Eldridge, 82 N. Y. 161 (37 Am. Rep. 558); In re Wool, 36 Mich. 299; In re Shepard, 109 Mich. 631.

Such conduct as that of Mr. Mains, if overlooked, would soon bring the bench and the bar of the State into disrepute, and confidence in the impartial administration of justice would be destroyed. The duties and powers confided to attorneys-at-law are of exceeding importance. They are officers of the court, and upon their competency and honor depends, in a large measure, the administration of justice. A disbarment proceeding is not simply for the purpose of punishing the offending attorney, but it is to aid in securing a proper administration of the law. As was said by Mr. Justice Hooker in Re\Shepard, supra:

“This is not a proceeding by way of punishment, though the deprivation of the privileges of an attorney may be a matter of serious importance to a practitioner. It is a measure necessary to the protection of the public, who have a right to expect that courts will be vigilant in withholding, and, if already given, withdrawing, their certificates of oualification and character upon which the public rely.”

An attorney ought not to be disbarred unless the duty of the court is very clear. We are not unmindful of the fact that an attorney is privileged to go great lengths in the defense of himself or his client in proceedings in court, without being held responsible out of court for what he has said or done in court; but this privilege does not carry with it the right to charge fellow attorneys and the presiding judge with conspiracy and corruption, when there is no adequate basis for such a charge. The law is tersely stated in People v. Green, 9 Colo. 506 :

“ Neither the letter nor the spirit of the attorney’s privilege permits him to enter our courts and spread upon judicial records charges of a shocking and felonious character against brother attorneys, and against judges engaged in the administration of justice, upon mere rumors coupled with facts which should of themselves create no suspicion of official corruption in a just and fair mind. And although, in actions of libel and slander, it has been thought wise to exempt them from liability for defamatory words published or spoken in the course of judicial proceedings, provided such words are material, in a disbarment proceeding the recognition of such a privilege could neither secure justice nor advance the independence of the bar. On the contrary, its inevitable tendency would be to destroy the respect due to the profession as well as to the bench, and cripple the influence and usefulness of both.”

A pathetic appeal has been made to us by Mr. Mains to spare him because of his wife and his boys. We deeply sympathize with them, but such a plea ought not to have weight in a court of justice. Wife and children should be an incentive to an honorable career, but they ought never to be used as a shield to protect a man from the natural consequences of his own acts.

The action of Mr.'Mains is entirely inexcusable. We think he has shown himself devoid of that sense of honor which is essential to the proper discharge of the duties of an attorney and counselor at law and solicitor and counselor in chancery. It is ordered that his name be stricken from the rolls, and that he be disbarred from practicing in any of the courts of this State.

The other Justices concurred.


text:
    ELLIOTT v. CITY OF DETROIT.
    (Two Cases.)
    Constitutional Law — Municipal Corporations — Referendum.
    Act No. 452, Local Acts 1899, providing for amendments to the charter of the city of Detroit by vote of the electors, is void as an unauthorized delegation of legislative power.

      Certiorari to Wayne; full bench.
    Submitted November 2, 1899. Decided on the hearing.

      Mandamus by William H. Elliott and others to compel the city of Detroit, its common council and clerk, to refrain from further action looking to the submission to the electors of said city, under Act No. 452, Local Acts 1899, of certain proposed amendments to the city charter, one relating to municipal franchises in general, and the other providing for the creation of a street-railway commission.
    The writs were granted in the circuit court, and respondents removed the causes to this court by certiorari, where the decision and opinion of the lower court were affirmed.

      H. H. Hatch, for relators.

      Charles Flowers (Isaac N. Payne, of counsel), for respondents.
   The opinion in the court below was written by Judge Frazer, and was concurred in by all of his associates except Judge Hosmer, who concurred in the result reached. The opinion reads as follows:

* “Petitions in these two cases were filed, asking the court to issue a writ of mandamus commanding the said city of Detroit, and the common council of said city, and the city clerk of said city, to desist and refrain from proceeding further to publish certain notices mentioned in said petitions, and from incurring any expense in the publication thereof, and from paying any expense heretofore incurred in connection with the publication thereof, and also from preparing any ballots in respect to such propositions or proposed amendments to the city charter for use by the electors at the election to be held in November next, and from incurring any expense in connection therewith, and from incurring any expense whatever in connection with the said proposed amendments or propositions. These two petitions are based upon the claim that under an act of the legislature entitled ‘An act to provide for public notice of proposed charter changes, and the method by which the city of Detroit may alter or amend its charter, ’ the said respondents are proceeding to hold an election in accordance with the provisions of the same.
“Section 1 provides that:
“ ‘The charter of the city of Detroit shall be amended, altered, or repealed in the manner herein provided.’
“ Section 2 of said act provides that:
“ ‘ Upon the recommendation of the mayor of the city of Detroit, and by resolution approved by a three-fourths vote of the common council elect of said city, or by petition of five thousand qualified electors, said common council shall prepare in proper form and by title, and submit to the electors of said city, propositions to effect any amendment or amendments to the charter of said city. Such propositions shall be presented only in the month of November of any year.’
“Section 3 provides that:
!‘ ‘Any one and all such propositions shall be published by title and in full at least once a week for eight successive weeks during the months of September and October following the month of petition, in at least four newspapers published in the city of Detroit, and at least sis half-sheet poster notices displayed conspicuously in each precinct of the city; and all such notices shall distinctly set forth the fact, in addition, that contemplated charter amendments are to be voted on at the approaching November election.’
“ It is contended on the part of the respondents that the court has no jurisdiction in the matter by way of mandamus, that mandamus is not the proper remedy, and that the petitions in these cases are filed by private individuals, without the intervention of the attorney general. The court allowed the counsel to proceed to the argument on the petitions, not only upon the question of jurisdiction, but also upon the merits of the controversy; in which argument it appeared that there were no disputed facts, but that all the questions were questions of law. It is clear to us that if this same question had been presented to the court upon a bill in chancery, asking for an injunction to restrain the respondents from doing what they are claimed to be doing, as set forth in the petition, an injunction would be granted. It is also apparent to the court that the petitioners are interested as taxpayers in the manner in which the public moneys are expended, and, if expended illegally, they have such a personal interest, and the intervention of the attorney general is not essential, as in cases purely of a public nature. It is also apparent to the court that if application had been made to the attorney general to allow these cases to proceed, and he had declined, the court would compel him to intervene. And it is also apparent that the matter now before the court is of such immediate and pressing importance, the time intervening between now and the November election being so short, that it would be practically impossible to review the questions presented by * these petitions in any other way than by mandamus. These conclusions compel the court to determine the issue. Nothing could be gained, as no legal right has been violated by allowing this matter to be heard upon the present petitions asking for a mandamus as prayed for.
“The question to be determined in this matter comes up on demurrer to the petitions. The main question, as we understand it, is whether the law known as the ‘ Eikhoff Law,’ being the act which has already been designated by its title in this opinion, is a valid act, and within the power of the legislature to pass. As we understand the matter, all legislative authority, under the Constitution, is placed in the legislature, and it has no power to delegate that authority to any one, unless in a constitutional way and by authority of law. It was contended upon the argument that there are numerous authorities holding that the legislature has authority to delegate legislative powers to municipalities, such as a city government; but, while this proposition may be true, it is only true as restricted by the law. The legislature has power to delegate certain legislative functions to the legislative branch of a municipal government, and the legislature might empower the common council of the city of Detroit to make by-laws or ordinances in the nature of legislative enactments; but in delegating this authority it must point out specifically the powers delegated, and the extent of those powers. The act under consideration goes further than this, and practically abandons all legislative functions on the question of amending or repealing the city charter; and it transfers that authority, or delegates that authority, not to the legislative branch of the city government, but to the mayor, the executive head of the municipality. He, and he alone, under a certain provision in section 2 of the act, can recommend such amendments to the city charter as he may desire; or he may recommend the repeal of the entire charter if he sees fit, and, if approved by a three-fourths vote of the common council, it must be submitted to the electors of the city for their approval or rejection. The other provision of the law permits 5,000 qualified electors to present a petition to the common council proposing such amendments of the city charter as they may see fit, or even asking for a repeal of the same, and, upon the presentation of such peti-. tion, the common council has no alternative but to submit the question to the people for adoption or rejection. The legislative power, under these provisions of the law, which, under our system of government, rests with the legislature of the State, has been practically transferred to the mayor of the city of Detroit, or to any 5,000 electors who see fit to petition, on the subject of amendment or repeal of the charter. As far as the general people are concerned, they have nothing whatever to do with the matter, except the privilege of voting for or against any given proposition submitted to them; the framing of the proposition, the consideration of it previous to its being presented to the electors, being entirely beyond their power, as we construe this act. Any attempt upon the part of the legislature to delegate wholesale, unqualified, and undefined authority, either to the mayor or any 5,000 citizens who may see fit to present a petition, is, in our opinion, contrary to the Constitution and laws of this State.
“If it be urged that by this act legislative power is delegated, not to the mayor or to 5,000 electors, but to the electors residing within the territorial limits of the city of Detroit, it is equally clear that the act is unconstitutional. Section 38 of article 4 of the Constitution provides:
“‘The legislature may confer upon organized townships, incorporated cities and villages, and upon the board of supervisors of the several counties, such powers of a local legislative and administrative character as they may deem proper.’
“This, at most, clearly means that the legislature shall, in its discretion, determine what legislative and administrative powers a municipality shall have. By this act, under respondents’ contention, the municipality shall have such legislative and administrative powers as the electors residing in the municipality determine. In other words, the legislature has delegated the power, which the Constitution says it shall exercise, to another body. This cannot be done, according to all principles of constitutional law.
“ Other questions were presented for the consideration of the court, in regard to the manner in which the authority conferred by this law has been exercised by the common council; but, as we view the case, this is not essential for the consideration of the court in order to determine the issue, because, if the legislature had no authority to pass this law, all proceedings under it would be void.
“The demurrers in these cases are overruled, and a mandamus ordered to issue as prayed for.”


text:
    TURNER v. ST. CLAIR TUNNEL CO.

    Injury to Employé — Liability op Master — Law of Canada.
    Plaintiff was injured, while working in a tunnel on the Canadian side of the St. Clair river, by reason of the high pressure of air maintained. The court instructed the jury that it was defendant’s duty to adopt a proper system for maintaining the air pressure, and to use proper valves on the machinery, or to give plaintiff warning of the danger. Held, that such instruction was improper, as the law of Canada governing the case was that defendant had performed its duty when it employed competent persons to control the work, and authorized them to purchase suitable machinery and appliances.
    Error to St. Clair; Yance, J.
    Submitted April 21, 1899.
    Decided November 7, 1899.
    Case by David Turner against the St. Clair Tunnel Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      E. W. Meddcmgh (G-eer & Williams, of counsel), for appellant.

      Chadwick & Mcllwain, for appellee.

       Rehearing denied December 21, 1899.

   Grant, C. J.

The facts and circumstances of plaintiff’s claim are sufficiently stated in the former opinion. Ill Mich. 578 (36 L. R. A. 134, 66 Am. St. Rep. 397). The case was retried, submitted to the jury upon the theory that the law of Canada sustained the plaintiff’s claim, and the jury rendered a verdict in his favor. The sole -question now submitted for our determination is, What is the law of Canada, as found in the decisions of the courts of Canada and England? The learned circuit judge summed up his instructions to the jury as follows:

“Now, there are certain things which I have referred to before, which I want to repeat here, in connection with that rule: That, before this plaintiff can recover, he must satisfy you, by a fair preponderance of evidence: First, that the use of compressed air, as used on the Canadian side of this tunnel, was a dangerous agency; second, that the dangers connected with its use and with working in it were concealed and hidden, and were not open to the observation of ordinary men; third, that the plaintiff, Turner, did not know of that concealed and hidden danger at the time he went to work in it; and, fourth, that the defendant did not afford, either by the system which it adopted there or the valve which it used on that lock, or by adopting proper rules and giving proper warnings,— had not given him any knowledge or warning of the danger he was about to encounter. ”

The first three propositions are not involved in the question before us. The fourth proposition is the one whose correctness is challenged according to the law of England.

Questions were submitted to the jury, and answers thereto made, as follows:

“ 1. Did the defendant negligently provide unsuitable appliances for regulating and controlling the air in the locks ?
“A. Yes.
2. Did the defendant negligently maintain or sanction a defective or dangerous system for workmen remaining in and locking out from the compressed air chamber for inexperienced men ?
“A. Yes.
“3. In the. absence of Mr. Hobson, did the defendant provide for such actual superintendence of its use of compressed air as part of its system as its character and peculiar danger to workmen reasonably required ?
“A. No.
“4. Were the plaintiff’s injuries solely the result of the defendant’s negligence ?
“A. Yes.”

The court instructed the jury that there was no evidence to show that Hobson, the general manager,' or Eames and Murphy, were incompetent. Up.on this point the court instructed the jury as follows:

“Now, it is a matter of common knowledge and common sense that a man may be a competent man in a work, and yet he may not use good judgment in adopting the system. There is nothing to impeach the competency of these men, even though you may be of the opinion that the system that they adopted was not the best system that could have been adopted. So far, then, as the competency of Mr. Hobson, Mr. Eames, or Mr. Murphy is concerned, I must ask you to accept that as a question of-law from me, that there is„no evidence here that would warrant you in finding that either one of those men was incompetent for the position which he held during the construction of that tunnel.”

The third special finding is of no consequence. Mr, Hobson was not present to superintend the work all the time. He received daily reports from those in charge. His only knowledge of the use of compressed air was obtained from study, reading, and consultation with others ' of experience. He had had no actual experience in its use. He was a civil engineer of 40 years’ experience. The tunnel was planned and constructed under his supervision. Mr. Murphy, a thoroughly competent man, was selected because of his skill, knowledge, and experience of many years in the use of compressed air. He had the entire charge of its use in the construction of the tunnel. Under this record, therefore, the defendant company had performed its full duty in the employment of competent men.

Mr. Hobson purchased the machinery for the air locks, and “the primary consideration was to get the best.” The sole defect alleged in the, machinery is that the valves used in letting out the compressed air were too large, allowing it to escape too fast. The defects claimed in the system are the failure to provide a competent person in charge of the locks, and in permitting the inexperienced workmen to lock themselves in and out. The question may be stated thus: Did the defendant, under the law of England, discharge its duty towards its employes by appointing competent superintendents and workmen, and authorizing them to procure all necessary machinery and appliances, or was it the absolute insurer of the safety of its machinery and appliances and of the system adopted? The use of compressed air for the purpose of construction is not attacked. It had been in use for similar purposes many years. The defendant, through its directors and president, had intrusted the entire work, including the purchase of machinery, to competent and experienced men. The directors presumably were not men of experience in these matters. It is not claimed that they were. They did as men must alwaj-s do under the like circumstances. Having no practical experience or knowledge themselves, they did all that could be done if the work was to be performed at all, viz., they selected men of experience to perform it. It would be great negligence for inexperienced men to attempt to supervise such work, and determine what system and what machinery should be used. It has always been, and always must be, that those who build buildings, large and small, construct machinery, or engage in the construction of extensive works like the present, are unskilled themselves in the strength of materials, the soundness of machinery, the proper methods of construction, or the proper system for conducting the construction. Of necessity, therefore, they must act through others, and rely upon the judgment of others. All intelligent men, workmen as well as others, are familiar with this fact. I have examined all the authorities cited by counsel, and also some others. I have found some difficulty in reaching a conclusion. Both in England and America are many decisions whose facts bring them so near the dividing line that it is often difficult to determine exactly when they are within and when without the rule, or, stated differently, when the rule applies to the facts of the case: It is also true that courts in England, as well as America, sometimes use language not necessary to the decision of the case, and this has enhanced the difficulty. I have found no case exactly in point, and no one the parallel of this in its facts. We must therefore determine what the law is by analogy from a careful analysis of the reported eases relied upon.

In Tarrant v. Webb, 18 C. B. 797, decided in 1856, defendant was the contractor to decorate a club-house. He erected a scaffold 30 feet high. It was insecurely constructed, and broke, precipitating plaintiff to the pavement. The negligence charged was the erection of an improper scaffold, by which plaintiff was exposed to unreasonable risk. Two theories were submitted to the jury: (1) That the scaffold was erected under the personal direction of the defendant; and (2) that the person employed to erect it was incompetent. No scienter was alleged. Plaintiff recovered. In reversing the case the court say:

“ The master may be responsible where he is personally guilty of negligence, but certainly not where he does his best to get competent persons. He is not bound to warrant their competency. The jury might have been of opinion that the defendant used every possible care to employ a competent person, * * * and yet that he was liable because it turned out that Martin was incompetent.”

A similar case to this was Wigmore v. Jay, 5 Exch. 354, decided in 1850.

In Gallagher v. Piper, 16 C. B. (N. S.) 669, decided in 1864, the negligence charged was the failure to supply sufficient material for the erection of a scaffold. Defendant had selected a general agent, whose duty it was to supply these materials. The agent was notified of the insufficiency of the supply, in consequence of which plaintiff was injured. Held, that defendant had performed his legal duty in providing sufficient materials and a competent man. That case cited with approval Wigmore v. Jay.

What difference in principle is there between constructing a scaffold and constructing a tunnel? If Webb, in Tarrant v. Webb, was relieved from liability by employing a competent person to erect a scaffold, how can defendant, under the same rule, be liable when it has employed competent men to construct a tunnel ? If Piper, in Gallagher v. Piper, was relieved from liability by the selection and appointment of a general manager, whose duty it was to supply these materials, why is not the defendant relieved ?

In Feltham v. England, L. R. 2 Q. B. 83, decided in 1866, a traveling crane was moving on a tramway resting on beams of wood supported by piers of brick. While plaintiff was at work upon a locomotive, which was being hoisted, the piers gave way, and he was injured. Two grounds of liability were claimed: (1) That the manager was the alter ego of the master, and guilty of negligence in not ascertaining the sufficiency of the piers; and. (2) that defendant might or ought to have known that the piers were not sufficient. Both contentions were decided against the plaintiff, the court saying:

“There was nothing to show that he [defendant] had employed unskillful or incompetent persons to build the piers, or that he did know, or ought to have known, that they were insufficient for the use to which they were applied. He was a maker of engines, and therefore, in that sense, an engineer, but not in the sense that he possessed special knowledge as to the strength or sufficiency of brickwork. We cannot, in the absence of such evidence, say there was any case fit to be submitted to the jury as to this ground of liability.”

What difference in principle between the construction of these piers and the defendant’s tunnel ? The piers had just been completed when the accident occurred. If some workman engaged in the construction of the piers had been injured, would not the rule be the same ?

In Lovegrove v. Railway Co., 16 C. B. (N. S.) 669, decided in 1864, the negligence charged consisted in the improper laying of temporary rails, which were laid for the purpose of conveying trucks loaded with ballast. Sufficient sleepers were not placed under the rails. The company had no knowledge of the defective manner in which they were laid, and had used due care in the selection of persons to perform that duty.. Held, that the company was not liable.

In Smith v. Howard, 22 Law T. (N. S.) 130, decided in 1870, the accident arose through the incompetency of a boy employed to assist the plaintiff. Defendant had delegated to one M., his foreman, the authority to engage and discharge employés. Plaintiff complained to M. of the incompetency of the boy. Held, that defendant was not liable, because he had lawfully delegated this authority, and had received no actual notice of the boy’s incompetency. What difference in principle between delegating the authority to employ workmen and delegating the authority to employ or purchase machineiy and appliances ?

In Howells v. Steel Co., L. R. 10 Q. B. 62, decided in 1874, the accident arose through the negligence of defendant’s manager, appointed in accordance with an act of parliament. Held, that the authority of the manager was the same as though he had been appointed outside the act. Judge Blackburn said:

“It is a rule of law that the master who employs a servant, not an agent, is responsible for the negligence of that servant in matters in which he is employed; but there is this exception, which has been established by a series of decisions: That with regard to a fellow-servant the master is held not so l’esponsible, because this negligence is to be taken as one of the ordinary risks which the servant contemplates and undertakes when entering into his employment. When the master personally interferes, he is liable for his personal negligence, just as the individual servant would be.”

In Wilson v. Merry, L. R. 1 H. L. Sc. 326, decided in 1868, plaintiff’s son was killed by the explosion of fire damp, which was the result of the faulty construction of a platform which interrupted the free current or circulation of air in the pit. In disposing of the case, Lord Cairns, the chancellor, said:

“ The master is not, and cannot be, liable to his servant, unless there be negligence on the part of the master in that in which he (the master) has contracted or undertaken with his servant to do. The master has not contracted or undertaken to execute in person the work connected with his business. The result of an obligation on the master personally to execute the work connected with his business, in place of being beneficial, might be disastrous, to his servants, for the master might be incompetent pei'sonally to perform the work. At all events, a servant may choose for himself between serving a master who does and a master who does not attend in person to his business. But what the master is, in my opinion, bound to his servant to do, in the event of his not personally superintending and directing the work, is to select proper and competent persons to do so, and to furnish them with adequate materials and resources for the work. When he has done this, he has, in. my opinion, done all that he is bound to do; and, if the persons so selected are guilty of negligence, this is not the negligence of the master. * * * Negligence cannot exist if the master does his best to employ competent persons. He cannot warrant the competency of his servants.”

While it is true in that case that the defect was not one of original construction, and the chancellor said, “The system of ventilation in the pit before the scaffold was placed there was of the usual kind, — by downcast and upcast, — and it is not suggested that, before the platform was erected, the system of ventilation was defective in any particular,” yet the platform was erected in carrying on the work of the defeodants, whose servant, to whom they intrusted the responsibility of building it, had, in his judgment, made proper arrangements for the escape of the fire damp. What difference in principle between delegating the authority to construct platforms, scaffolds, etc., necessary in carrying on mining operations after the construction of the plant, and delegating the authority to build, purchase, and use those things essential to the original construction? The lord chancellor not only states the rule, but gives the reasons on which it is founded.

The same principle was involved in Balleny v. Cree, 11 Sess. Cas. (3d S.) 626, decided in 1873. It is true that the defect arose after the machine was furnished, but the rule seems to cover all cases. Lord Cowan said:

“As he [defendant] himself was unacquainted with machinery, he intrusted the charge of his work to a properly qualified and skilled mechanic, and to a superintendent, and manager.”

Lord Benholme said:

“He [defendant] himself was not a skilled machinist, and he cannot be made responsible for the defect in the machinery.”

See, also, McFarlane v. Gilmour, (1884) 5 Ont. 302; Wilson v. Hume, (1880) 30 U. C. C. P. 542.

Matthews v. Powder Co., 14 Ont. App. 261, decided in 1887, is similar to McFarlane v. Gilmour. The language of Lord Cairns in Wilson v. Merry, and of Huddleston, B., in Allen v. Gas Co., 1 Excb. Div. 251, is cited with approval. Hagarty, C. J., said:

“ If the principal be aware of defects in machinery, and with that knowledge permit, or passively allow, the work to proceed, I can understand holding him liable. But that is very different from at once, on acquiring the knowledge, directing the necessary repairs, and the cessation of work until that be completed. If there be no interference whatever, and no knowledge of defects, trusting to a competent manager, it would seem from the cases that the principal is not liable for injury to a workman, the result of the negligence of his fellow-servant, the manager. ”

In speaking of the liability of the master for personal interference, he says: “I have not found any authority specially defining the measure of permitted interference.” He then cites several authorities, and remarks that “there is a marked difference between English and American laws on the fellow-servant question.”

These cases, in my judgment, logically lead to the conclusion that, under the law of England, the master is not liable where he does not personally superintend the work, and has intrusted to competent, skilled, and experienced agents the adoption of a system and the purchase of machinery.

The learned counsel for plaintiff cite, as supporting their contention, the following authorities: Paterson v. Wallace & Co., 1 Macq. 748; Brydon v. Stewart, 2 Macq. 30; Sword v. Cameron, 1 Sess. Cas. (2d S.) 493; Bartonshill Coal Co. v. Reid, 3 Macq. 266; Bartonshill Coal Co. v. McGuire, Id. 300; Weems v. Mathieson, 4 Macq. 215; Smith v. Baker, [1891] App. Gas. 325; Allen v. Gas Co., 1 Exch. Div. 251; Cook v. Stark, 14 Sess. Cas. (4th S.) 1; Webster v. Foley, 21 Can. Sup. Ct. 580; Faimoeather v. Quarry Co., 26 Ont. 604; O’Connor v. Bridge Co., 25 Ont. 12; 1 Beven, Neg. 738, 740; Smith, Mast. & S. 261.

In Paterson v. Wallace & Co., 1 Macq. 748, decided in 1854, the negligence charged was the careless leaving of a stone in the roof of a mine. The question now before us was not discussed. The lord chancellor used this language:

“ It is very true that if a master employ several servants in the same operation,— as in building a house or in working a mine, — the persons engaged being competent persons, should an accident happen to one of them owing to the neglect of another, the nlaster is not, by the law of England, held responsible.”

He states the question as follows:

“Now, the plaintiffs were to make out — First, that the stone had been negligently suffered to remain too long without being removed; and, second, they were to make out that Paterson lost his life, not by his own rashness m passing under that stone before its removal, but by reason of the negligence of the master, or the negligence of Snedden, his underground manager.”

If that case is to be construed as holding that the negligence of Snedden, the underground manager, was attributable to the master, it has since been overruled by repeated decisions of the same court. The same statement applies to Brydon v. Stewart, (1855) 2 Macq. 30. The question in that case was this: “Was the deceased at the time fairly and really engaged in the work of the respondent?” In. Sword v. Cameron, 1 Sess. Cas. (2d S.) 493, decided in 1839, in blasting, sufficient notice was not given to enable defendant’s employé to reach a place of safety. The liability in this case was based upon the fact that the system or custom of doing the work was known to, and sanctioned by, the defendant. Lord Cranworth, in Bartonshill Coal Co. v. Reid, 3 Macq. 266, thus interprets tbe decision. In Bartonshill Coal Co. v. Reid, (1856) 3 Macq. 266, and in Bartonshill Coal Co. v. McGuire, Id. 300, it was held that plaintiffs could not recover for the neglect of the engineer in the management of the machine. In Smith v. Baker, [1891] App. Cas. 325, it appears to be conceded that the effect of the delegation of authority by a master was not involved. The sole question there was the application of the maxim, “ Volenti non fit injuriad’ Counsel seem to rely largely upon this case, and quote from Lord Watson, who said:

“It does not appear to me to admit of dispute that at common law a master who employs a servant in work of a dangerous character is bound to take all reasonable precautions for the workman’s safety. The rule has been so often laid down in this house by Lord Cranworth and other noble and learned lords that it is needless to quote authorities in support of it. But, as I understand the law, it was also held by this house, long before the passing of the employer’s liability act, that a master is no less responsible to his workmen for personal injuries occasioned by a defective system of using machinery than for injuries caused by a defect in the machinery itself.”

What is said by the learned lords was obiter dicta, but, assuming it to be intended as an authoritative statement, it does not touch the point here in controversy. It does not determine what the reasonable precautions are which the employer must take in securing the safety of his workmen by providing against a defective system of using machinery, and defects in the machinery itself. That case was founded upon the employer’s liability act, of which Lord Watson said:

“ The main, although not the sole, object of the act of 1880, was to place masters who do not upon the same footing of responsibility with those who do personally superintend their works and workmen, by making them answerable for the negligence of those persons to whom they Intrust the duty of superintendence as if it were their own.”

See criticism of this case by Mr. Beven in 8 Law Quart. Rev. 202.

In Webster v. Foley, 21 Can. Sup. Ct. 580, decided in 1892, one of the defendants was the manager of the work. Of course, his knowledge was the knowledge of his partner.

In Fairweather v. Quarry Co., (1895) 26 Ont. 604, the plant and machinery were bought and furnished by the directors themselves. Sabiston, the manager, was also a director. It was there said:

44 So far as this action rests upon liability to the company through their manager or superintendent, Sabiston, I think the point must be considered as settled by the case of Howells v. Steel Co., L. R. 10 Q. B. 62. That is to say, in cases where the action is at common law for negligence, and not under the employer’s liability act, the doctrine of manager or vice-principal, which was put forward in Murphy v. Smith, 19 C. B. (N. S.) 361, is now exploded, and the negligent directions or conduct of a fellow-servant, however much he may be higher in grade or responsibility than the one injured, cannot be reckoned as negligence 'of the common master. That branch of this case which rests upon negligence of the company because proper appliances were not furnished for the quarrying operations does not seem to have been fully tried out or submitted to the jury.”

In discussing tne duty of the master in regard to machinery and appliances, the court said:

4 4 The employer may be made liable who is blameworthy in respect of not having provided proper machinery and appliances for the work; or, as put in Bartonshill Coal Co. v. Reid, 3 Macq. 266, where a master employs his servant in a work of danger, he is bound to exercise due care in order to have his tackle and machinery in a safe and proper condition, so as to protect the servant against unnecessary risks.”

This case goes no further than to hold the master to the exercise of due care in providing machinery and appliances. It does not discuss the liability of the master where, from the very necessity of the case, he must, as in the present case, delegate authority, and where he has done all that he could do to adopt a proper system and proper machinery. That case cites, as sustaining its text, Rex v. Medley, 6 Car. & P. 292. That was a criminal case, in which the respondents, the directors of the Equitable Gas Company, and persons employed by them, were indicted for carrying on their works as a nuisance, the charge being the pollution of the river and destruction of the fish. The question of the delegation of authority as affecting employés was not in the case. I fail to see that Rex v. Medley has any bearing upon the question involved in Fairweather v. Quarry Co., or in the case now before us.

In Allen v. Gas Co., (1876) 1 Exch. Div. 251, certain gates were safe when open and wedged up, but liable to fall when closed. One fell upon the plaintiff, and injured him. It was there said:

“The authorities referred to establish the principle that, in the event of the master not personally superintending and directing the work, his sole duty is to select proper and competent persons to do so, and to furnish them-with adequate materials and suitable means and resources for accomplishing the work.”

The question of the delegation of authority in a case of construction was not involved.

The text in Beven on Negligence and Smith on Master and Servant is based upon the same authorities which counsel have cited and to which I have referred, and goes no further than to hold the master to the exercise of due care in furnishing machinery and appliances, and in adopting a system,— a rule the soundness of which is not disputed, and which prevails in both England and the United States.

I cannot concur in the conclusion that these authorities cited by the plaintiff’s counsel settle the law of Canada in accordance with their contention. They go no further than to say, even in the cases where the question was not involved, that it is the duty of the employer to take reasonable precautions to establish a proper system and to furnish proper machinery; but they do not hold, as must be held in this case if the liability of the defendant is sustained, that an employer is the absolute insurer of the safety and soundness of his machinery and his system. I am of the opinion that the learned circuit judge erred in instructing the jury as to the law of Canada, and that the judgment should be reversed, and a new trial ordered. 1

The other Justices concurred.