text:
    A. E. WOOD & CO. v. MICHIGAN CENTRAL RAILROAD CO.
    1. Carriers — Freight—Delivery—Negligence.
    Where the defendant carrier received a shipment of merchandise to be delivered to plaintiff in the city of Detroit and the property contained in the shipment was marked . improperly “shoes” and “estray freight,” and where the consignee, after examining the box, declined to accept it, and in fact the package contained velvet goods which the defendant company delivered to plaintiff about two months after the date of shipment, but the kind of velvet ordered by it was no longer marketable and plaintiff was obliged to sell the same at a loss which it brought suit to recover, claiming that the box originally tendered was not the one which contained the velvet, the conflicting evidence in support of the respective claims of the parties was properly submitted to the jury.
    2. Same — Motion for New Trial — Diligence—Newly Discovered Evidence.
    A motion for a new' trial on the ground of newly discovered evidence which had a tendency to establish the fact as claimed by defendant that it had tendered to plaintiff certain freight, which plaintiff claimed was a different package or box than the one which was finally received by it, in an action for loss occasioned by delay, was properly denied by the circuit court on the ground that sufficient diligence had not been exercised to procure evidence in time for trial and that it would not necessarily effect a different result on a second trial.
    Error to Wayne; Mandell, J.
    Submitted June 4, 1914.
    (Docket No. 25.)
    Decided March 18, 1915.
    Assumpsit in justice’s court by A. E. Wood & Company against the Michigan Central Railroad Company for negligent delay in delivering freight. From a judgment for defendant, plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      John A. Boyne (J. WoMer Dohany, Frank E. Robson, and Henry Russell, of counsel), for appellant.

      Campbell & Dewey, for appellee.
   McAlvay, J.

The plaintiff, a Michigan corporation, was engaged in the millinery business in the city .of1 Detroit. It purchased from Chaney Bros., of New York City, a bill of goods consisting of velvet, the purchase price of which was $191.76. These goods were shipped by Merchants’ Despatch on June 30, 1910, from South Manchester, Conn., at which place Chaney Bros.’ factory was located. A box claimed by defendant to be the one which contained these goods arrived in Detroit over the defendant railroad and was received into the warehouse of defendant on July 6, 1910. It was addressed: “E. A. Wood & Co., Detroit, Michigan. Merchants’ Despatch.” For some reason, which is not explained in the record, the box arrived in Detroit as “estray freight,” and the box was marked “shoes,” and bore no other marks, except the address given above. It was tendered to A. E. Wood & Co. July 12th, who, after examining the box, refused to accept it, and it was returned to defendant’s warehouse.

Several notices were sent by defendant to A. E. Wood & Co., all of which described the shipment as “one case shoes.” The box containing the velvet goods was not delivered to plaintiff until August 30th, at which time it was claimed .by plaintiff it was too late for the market for which that particular kind of velvet was ordered, and plaintiff was obliged to and did sell it at a loss of $148.37, for which amount it brought suit and recovered judgment. Plaintiff brought suit in justice’s court. From the result in that court an appeal was taken to the circuit court, which resulted in a verdict and judgment for plaintiff for the amount claimed and costs. Defendant removes the case to this court, and asks for reversal upon errors duly assigned.

It appears to have been the claim of defendant in the trial court that on July 12, 1910, it tendered the box in question to the plaintiff under the impression that it contained shoes; that the plaintiff examined the box and refused to accept it. On the part of plaintiff it was claimed that the box tendered on that date was not the box containing the shipment of velvet, which was afterwards delivered to plaintiff, and which was correctly addressed, giving the name of the consignor and describing the contents as dry goods.

Upon the trial plaintiff introduced in evidence the box which it claimed had contained the shipment in question. The evidence as to defendant’s negligence in failing to make the delivery in due season, and the questions of plaintiff’s alleged negligence in refusing to accept the box which defendant claimed contained the shipment in question, raised disputed questions of fact, which were submitted to the jury by the trial court under proper instructions.

Two notices' of the receipt of the goods seem to have been sent to plaintiff, under the impression on the part of defendant that the box in question contained shoes, and these notices so specified, describing it as “estray freight” and naming no consignor. Inasmuch as plaintiff was engaged in the millinery business, and not in the shoe business, we think it may be excused for failure to pay attention to these notices. In any event, the question of plaintiff’s negligence was, as before stated, submitted to the jury under proper instructions.

Defendant, after verdict, made a motion for a new trial, principally upon the ground of newly discovered evidence. Its tendency was to establish the fact that the box introduced in evidence by the plaintiff as the box in which the delayed shipment was received was in fact one which had contained a later shipment.

The motion for a new trial was denied by the circuit court for the reasons, among others, that the defendant had not exercised reasonable care to secure the evidence tendered upon the motion, and for the further reason that the admission of such evidence would not result in a different verdict upon another trial. We agree with the conclusions of the learned trial judge in denying this motion.

The judgment of the circuit court is affirmed.

Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    SABELA v. NEWPORT MINING COMPANY.
    1. Master and Servant — Minks and Mining — Proximate Cause.
    When, a particular consequence results from a wrong it may be said that the wrong was the proximate cause of that consequence unless there intervenes between the wrong and its consequence something which may properly be denominated a cause, when it may be held that the alleged wrong was too remote, becoming in such a case a condition and not a cause.
    2. Same.
    Accordingly, in an action by a trammer in a mine who was injured by the negligence of a fellow-servant in putting back upon the track one of the cars which had been derailed by the defective condition of the track and who was injured while he was raising the car by the negligence of his fellow-servant in twisting it around, straining and otherwise injuring him, the trial court was not in error in holding that the proximate cause of the injury was the carelessness of his fellow-servant, rather than the defective track.

    3. Same — Incompetency—Evidence.
    Testimony of the boss of one of defendant’s employees that he was a poor worker, and other evidence showing that he was addicted to the habit of smoking cigarettes and at the time of plaintiff’s injury he paid no attention to plaintiff, was not such evidence as warranted the trial court in submitting to the jury the question of the incompetency of the fellow-workman.
    Error to Gogebic; Cooper, J.
    Submitted November 16, 1914.
    (Docket No. 56.)
    Decided March 18, 1915.
    Case by George Sabela against the Newport Mining Company for personal injuries. Judgment for defendant upon a directed verdict. Plaintiff brings error.
    Affirmed.

      Le Gendre & Driscoll, for appellant.

      C. W. Westerman (C. F. Fawsett, of counsel), for appellee.

       Upon the relation of proximate cause doctrine to the master’s liability for injuries to a servant from combined negligence of himself and fellow-servant, see note in 16 L. R. A. 819.

   Kuhn, J.

The plaintiff was a trammer in the defendant’s mine, and his duties, as claimed by him, were shoveling ore into four-wheeled steel cars, called “buggies,” and pushing (or tramming) the buggies to and from chutes where they were dumped. It appears that trammers work in pairs, and the plaintiff had been the partner of one Steve Levendosky several weeks. On the day of the accident, according to the plaintiff’s testimony, he protested to the trammer boss about the defective condition of the buggy and track which caused the buggy to fall between the rails occasionally, and was promised by him that the track and buggy would be fixed. A little later the plaintiff spoke of the same thing to the shift boss, the supervising head of the mine, and also asked a change of partners on the ground that Levendosky was inattentive and unsuited to the work, and it is claimed that the shift boss promised to have the defects corrected and the partner changed as soon as he could. About an hour later the accident complained of occurred, in the following manner: A loaded buggy fell between the rails, and one end was replaced on the track. Plaintiff attempted to replace the other end by the use of a piece of lagging, but while he was raising the car it is claimed Levendosky twisted it and it fell between the rails again, and the lagging caught the plaintiff, pulled him down on the car, and strained and otherwise injured him.

On the trial the plaintiff testified:

“If my partner had not swung the car the way he did swing it, nothing would have happened to me.”

The trial judge held that this made the case rest solely upon the incompetence of Levendosky and the promise to change the partner, and directed a verdict for the defendant on the ground that there was no proof of incompetence in Levendosky. The plaintiff contends that the court’s action was error, for the following reasons:

(1) The defective condition of the buggy and track was, concurrently with the carelessness of Levendosky, a proximate cause of the injury.

(2) There was evidence of incompetence in Levendosky.

(3) Even were there no evidence of incompetence, the defendant assumed the risk of plaintiff’s injury in consequence either of Levendosky’s conduct or defects in the buggy and track by its promises to make changes, for the plaintiff was induced by these promises to continue to work.

(4) Certain rulings upon the admission of testimony were erroneous.

The plaintiff in his testimony suggests that the cause of the accident was the negligence of his fellow-servant in swinging the car as he did. But conceding this to be true, it is claimed that this was only one cause of the accident, which would not have happened if it had not been for the other cause, the defective cars and track, and that these causes must be held to be concurring and both be said to be proximately the cause of the injury.

The question of what is the proximate cause of an injury, it must be conceded, is oftentimes perplexing, and it has been found difficult to lay down definite rules which may be applied to a given state of facts. The most recent discussion by this court of this question is found in the case of Stoll v. Laubengayer, 174 Mich. 701 (140 N. W. 532), where various definitions of “proximate cause” have been collected by Justice Brooke, who wrote the opinion. A statement of the rule which is applicable here is there found taken from the case of Iamurri v. Gas Co., 148 Mich. 27 (111 N. W. 884):

“When a particular consequence results from a wrong, it may be said that the wrong is the proximate cause of that consequence, unless there intervenes between the wrong and said consequence something which may properly be denominated a cause. If such cause intervenes, it may be said that the wrong of the defendant is too remote to be made the basis of an action. ■ It is in such case a condition and not a cause.” 174 Mich, page 706 (140 N. W. page 534).

In the instant case, the failure to repair the cars and tracks cannot be said to be the proximate cause of the injury. The jumping of the car from the track in itself did not cause any injury to the plaintiff. The operation of putting the buggy back on the track was not dangerous if properly conducted, and was an operation distinct in itself. In attempting this, a new and distinct cause of the accident intervened, viz., the negligence of a fellow-servant, which it must be said was the only cause which proximately caused the injury complained of.

In Labatt on Master and Servant, § 1576, it is said:

“The general rule applied in this class of cases is simply that the existence of abnormally dangerous conditions arising from the negligence of the master or his representative will not entitle an injured servant to recover, where his injury was the result, not of those conditions, but of the negligence of a coservant in respect to the manner of performing the work; that is to say, where the direct promoting cause of the injury was the negligence of a fellow-servant.”

See, also, Seccombe v. Railway, 133 Mich. 170, and cases cited on page 173 (94 N. W. 747).

The testimony in support of the claim of the incompetence of Levendosky, in substance, was that the shift boss stated that he was a poor worker, and the plaintiff’s statement that “he did not take to the work very well,” and that he was addicted to the habit of smoking cigarettes, and also that at the time of the accident Levendosky paid no attention to the plaintiff and compelled him to lift the car himself. Levendosky was engaged in the work of ordinary hard labor, and while it may be said that he was an unwilling worker, in that he “did not take to his work too well,” in our opinion, considering the kind of work that he was engaged in, this cannot be said to be proof of incompetence. And while it may be claimed that smoking cigarettes is harmful, it does not follow that because a man smokes cigarettes he is necessarily an incompetent workman. As was said in Jackson v. Schillinger Bros. Co., 182 Mich. 504 (148 N. W. 735):

“Many good workmen laugh and joke. Undoubtedly, some good workmen even smoke cigarettes, but we have never before heard either act urged as a ground for claiming that a man who indulges in them is incompetent to perform hard labor.”

The trial court properly said to the jury that this was not such evidence as would warrant them in finding Levendosky incompetent.

As the defective condition of the buggy and tracks was not the proximate cause of the injury, and as there was no evidence of Levendosky’s incompetence, it cannot be said that defendant assumed the risk of plaintiff’s injury after he made complaint, as in those cases where it has been held that a defendant did assume the risk and was liable because of failure to make repairs after notice when the defective condition was the proximate cause of the injury.

In view of this conclusion, it is unnecessary to discuss the other points raised by counsel.

Judgment is affirmed.

Brooke, C. J., and McAlvay, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    CITY OF SAULT STE. MARIE v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY CO.
    1. Appeal and Error —Plea in Abatement — -Pinal Judgment — Writ oe Error — Statutes.
    Upon the entry of an order overruling a plea in abatement to plaintiff’s declaration, the proper practice is not to review the judgment by writ of error but by the more expeditious method provided by Act No. 310, Pub. Acts 1905 (5 How. Stat. [2d Ed.] §12737 et seq.).

    2. Taxation — Special Assessment — Sewer Tax — Cities—Validity.
    Where the defendant had filed a bill of complaint to avoid certain special assessments for a sewer and the final decree in a court of chancery determined that the tax was invalid on the ground that the city attorney acted as a member of the board of review without legal authority, and where the court entered a decree determining that the tax was invalid in so far as it affected the land of defendant railway company, the decree determining that the equities were with complainant upon part of the allegations of the bill, and that the several proceedings to assess the tax were invalid, was not1 res judicata as to the right of the city to recover the special assessment; and the final decree did not determine that the several resolutions of the council constituting a part of the proceedings were necessarily invalid.
    3. Same.

      Held, that the words “several proceedings” employed in the decree referred to the validity of the entire proceeding and not to the preliminary resolutions in the council initiating the public improvement.
    4. Same — Charter Provisions — Special Assessments — Sewer Tax — Public Necessities.
    Under the language of the charter of the city of Sault Ste. Marie providing that the council shall construct sewers which it may deem advisable, it was not essential that the council declare in its initial resolution that the sewer was a public necessity: the resolution was valid if it followed the language of the charter. If the declaration of necessity is required hy the charter or hy statute, the failure to conform to the enactment would avoid the proceedings.
    Error to Chippewa; Fead, J.
    Submitted January 15, 1915.
    (Docket No. 101.)
    Decided March 18, 1915.
    Assumpsit by the city of Sault Ste. Marie against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company for a special sewer tax. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      E. S. B. Sutton {John L. Erdall, of counsel), for appellant.

      F. T. McDonald, for appellee.
   Kuhn, J.

This is an action in assumpsit, brought to recover payment for certain special taxes levied by the plaintiff against the defendant, arising out of the construction of a sewer known as the “Meridian Street Sewer System,” which sewer was adjacent to some of the right of way of the property of the defendant company.

In the year 1909 the plaintiff city, in accordance with the provisions of its charter, proceeded to take steps to levy a special assessment for the construction of this sewer system. Two-thirds of the cost of construction thereof was to be paid by the property owners to be benefited thereby, and was to be levied in five equal annual installments, and the city was to pay the remaining one-third of the cost.

After certain proceedings were had under the charter, and the sewer was constructed and the special assessment levied and placed in the hands of the city treasurer for collection, and some of the taxes had been paid, the defendant company filed a bill in chancery against the city, asserting that the special assessment was void, and praying the court to grant a perpetual injunction restraining the collection of the assessment. This cause was brought to an issue, and upon a hearing on the 12th day of March. 1910, the chancellor who heard the case decreed:

“That the said tax assessed against the said parcel of land belonging to the said complainant, * * * and the said special assessment roll, and the several proceedings to assess the same, are invalid and void.”

To the bill of complaint filed by the complainant in that cause there were attached three exhibits, known as Exhibits A, B, and C — Exhibit A, dated June 7, 1909, being the first or initial resolution, to initiate the proceedings; Exhibit B, dated June 28, 1909, being the second resolution, the report of the board of public works on the sewer; and Exhibit C, dated July 12, 1909, the third resolution, which fixed the districts, etc. It also appears that on August 23, 1909, a resolution was adopted by the council appointing a board of review. Other proceedings were had which need not be referred to, and the assessment roll was placed in the hands of the city treasurer, who proceeded to collect, and did collect, some of the taxes, as before stated.

After the rendition of the decree in the chancery court, the common council on April 18, 1910, passed a resolution rescinding the resolution adopted by the council on August 23, 1909, appointing a board of review, and all subsequent proceedings in connection with the levy of the special assessment roll, which roll was declared inoperative and void by this rescinding resolution, and the assessments paid were ordered refunded. Thereupon other proceedings were had, and finally a new roll was made, under date of April 29, 1910, by the city assessor, as the charter required, and turned over to the city treasurer for the collection of taxes assessed. Defendant having refused payment, the city thereupon instituted suit against it for four of.the five installments of taxes which had accrued thereunder.

To the plaintiffs declaration, the defendant interposed a plea in abatement, upon which issue was joined and a trial had before the court without a jury. The plea in abatement being overruled, the cause was brought here by a writ of error. At the argument of this cause, the question was raised as to whether or not the order overruling the plea in abatement in the instant case was such a final judgment or determination as to justify removal of this cause to this court by a writ of error under section 10484, 1 Comp. Laws (section 14099, 5 How. Stat. [2d Ed.]).

The attention of the court was called to the case of Paccalona v. Bark & Lumber Co., 171 Mich. 605 (137 N. W. 518), where this practice seems to have been followed, although it does not appear from the opinion therein filed that any question was raised with reference to it,. In the more recent case of Wanner v. Martin, 173 Mich. 503 (139 N. W. 249), the practice here resorted to, however, is condemned, as a more expeditious method of reviewing such rulings is created by Act No. 310, Pub. Acts 1905 (5 How. Stat. [2d Ed.] § 12737). However, as the cause has been argued on its merits, it will in this instance be so considered.

It is the contention of the appellant that the first three resolutions of the common council, which were the initial proceedings in the levying of this special assessment, are of no force and effect, and cannot be used as a part of the proceedings to assess the tax in question, because of the expression in the chancery decree, “the several proceedings to assess the same are invalid and void;” and the plea herein interposed asserts, therefore, that these matters are res adjudieata.

It appears that onp of the reasons assigned in the bill in the chancery case for voiding the first roll is that the city attorney could not sit on the board of review, and it is conceded that he did so act without authority in the city charter, which charter specifically provides who should act on such boards. The decree of the chancery court also declared:

“It appears to the court that the equities are with the complainant as to some of the allegations in said bill contained.”

So that it follows that the chancery court confined the invalid proceedings to some and not all of the allegations of the bill. The decree in terms holds no more than that the tax roll and the proceedings to assess the tax are invalid, in so far as they affect the defendant’s land as it appears on the assessment roll.

We are of the opinion that the language of the decree is not subject to the interpretation given thereto by-counsel for the appellant, who contends that the resolutions of June 7th, 28th, and 29th, especially the primary resolution of June 7th, were directly involved in the injunction suit, and that the language of the decree expressly held that they were void and of no effect. In our opinion the language of the decree, “the several proceedings to assess the same,” must be held to refer to those proceedings undertaken by those charged with the performance of assessing the tax. This court has defined the word “assess” to mean “to set, fix, or charge a certain sum to each taxpayer.” Seymour v. Peters, 67 Mich. 415, 418 (35 N. W. 62, 65). It is clear that under this definition the proceedings to assess would be such proceedings as are taken by the assessor and board of review in accordance with the provisions of the charter. Sections 4 and 6, chap. 21, Act No. 418, Local Acts 1903. The common council, under this charter, did not assess or value the property or have anything to do with the proceedings to assess the tax, as these acts were performed by the other charter officers whose duties are pointed out in the provisions above referred to. It follows, therefore, that the “several proceedings,” which are declared invalid and void in the decree, are not the three resolutions of the council here in question. These proceedings could be regular and valid, and still the proceedings to assess might be invalid and void.

It is said, however, that the initial proceeding was invalid, inasmuch as the initial resolution of June 7, 1909, was void for the reason that it did not declare that the improvement sought to be made was a “public necessity,” but followed the language of the charter of the city and the statute, stating simply that the council “deemed advisable” this sewer; and it is contended that the failure to so declare deprives the council of jurisdiction to proceed, by virtue of the ruling of this court in Hoyt v. City of East Saginaw, 19 Mich. 39 (2 Am. Rep. 76). In that case, however, the charter granted to the city by the legislature of the State required from the common council an express preliminary declaration that they deemed the improvement necessary. Where such a declaration of necessity is required by charter or statute, unquestionably a failure to so declare would make void any proceedings based thereon, as it is jurisdictional. 28 Cyc. p. 978; 25 Am. & Eng. Enc. of Law (2d Ed.), p. 1212. But in the case before us the charter of the city does not require any such declaration, and simply provides that the resolution shall be passed if the council deem it advisable, and it is a general rule of law that it is not requisite that the resolution state that the improvement is necessary, unless the charter or statute expressly provides it, for the reason that, such resolution or ordinance having been enacted by the officers whose duty it is to determine the necessity, it is in itself deemed a sufficient declaration of the fact. See 25 Am. & Eng. Enc. of Law (2d Ed.), p. 1212; Page and Jones on Taxation and Assessment, § 832, and cases cited.

In the case of Bay City Traction Co. v. City of Bay City, 155 Mich. 393, at page 402 (119 N. W. 440), the language of the charter provision involved required simply that the aldermen shall by resolution declare that the improvement is expedient. In the case of Crawford v. City of Detroit, 169 Mich. 293 (135 N. W. 314), it is held that the failure of the council to pass a resolution declaring its determination to construct the sewer, in accordance with sections 2795, 2833,1 Comp. Laws, is a jurisdictional defect, and cannot be cured by a subsequent resolution of the council. The cases of Hoyt v. City of East Saginaw, supra, and Bay City Traction Co. v. City of Bay City, supra, are cited with approval.

The proceedings to assess the defendant’s property in the instant case were in accordance with the requirements of the plaintiff’s charter, and therefore the cases above cited do not govern.

Being satisfied that the trial court was correct in its conclusion that it does not appear from the decree that the resolutions here involved were passed on adversely to the plaintiff in the former suit, and that consequently they are not res adjudicata, we are of the opinion that the order overruling the plea in abatement should be affirmed.

Brooke, C. J., and McAlvay, Stone, Ostrander, Bird, and Moore, JJ., concurred. Steere, J., did not sit.


author: Brooke, C. J.

text:
    BOARD OF HEALTH OF THE CITY OF GRAND RAPIDS v. VINK.
    1. Municipal Corporations — Injunction — Equity—Ordinance— Enforcement — Garbage Collection.
    Under an ordinance of the city of Grand Rapids providing for the collection of garbage and authorizing the board of health to direct the manner of removal and regulate the collection of substances of such nature and providing that any person entering into a contract with the municipality for the collection and removal of garbage, offal, etc., shall obtain a license and give a bond with sufficient sureties for an amount required by the board of health, also prohibiting any others from engaging in the work of collecting and conveying garbage through the streets of said city under penalty of a fine of not more than $25, a bill in equity for an injunction might be maintained by a municipal corporation to prohibit an unlicensed individual from attempting to remove garbage, where the city had entered into a contract for the disposal of the garbage whereby the municipality was to collect and deliver the same at fifty cents per ton.
    2. Same — Garbage Collection — Constitutional Law.
    The right of a city in exercising its police power to regulate by ordinance the disposal of garbage is beyond question in this State.

    3. Same — Criminal Provisions — Equity—Injunction.
    The existence of a penal provision in the ordinance did not have the effect of ousting the chancery court of jurisdiction, although in many instances courts of equity will not interfere to enjoin the breach of a penal ordinance.
    4. Same.
    Provisions of a municipal ordinance for the removal of garbage and for the payment of a stated amount to the persons so removing the garbage vested in the city a financial interest which warranted its action in filing a bill of complaint: nor could prosecution under the penal provisions of such ordinance be said to afford an adequate remedy to the municipality.
    Appeal from the superior court of Grand Rapids; Stuart, J.
    Submitted January 14, 1915.
    (Docket No. 86.)
    Decided March 18, 1915.
    Appeal by the board of health of the city of Grand 'Rapids against Benjamin Vink to restrain the defendant from removing and disposing of garbage under an ordinance of the city of Grand Rapids. From a decree for the complainant, defendant appeals.
    Affirmed.

      Hatch, McAllister & Raymond, for appellant.

      R. M. Ferguson, for appellee.

       Upon the power of a municipal corporation to grant the exclusive right or create a monopoly for the removal of garbage, see note in 21 L. R. A. (N. S.) 830.

   Brooke, C. J.

The bill of complaint in this case is filed by the board of health of the city of Grand Rapids against Benjamin Vink for the purpose of enjoining said Vink from engaging in the business of a scavenger in the city of Grand Rapids and—

“from the removing of garbage, and such garbage as is described herein in this bill of complaint and from in any manner violating the said ordinances or amendments .thereof.”

It appears that the city of Grand Rapids, on the 18th day of July, 1898, passed an ordinance, which was amended on April 28, 1904, relative to the regulation, collection, removal, and cremation of garbage, etc. This ordinance authorized the board of health to enter into a contract with a suitable person—

“for the purpose of furnishing proper vessels or tanks for the reception of garbage, offal and all other unsanitary matter, and for furnishing the necessary vehicles for collecting and removing the same in the manner directed by said board, or the said city of Grand Rapids, or said board of health under the rules and regulations of said board may collect the garbage, offal and all other unsanitary matter, or collect and dispose of such substances. Such board of health shall have the power to make such rules, regulations and requirements as said board may from time to time deem for the best interests of the city; and said board may also divide said city into garbage districts, and shall have power to regulate the gathering of night soil and the collecting and conveying of dead animals, garbage, slop and offal to the crematory or other place or places as may be directed by the said board. The person entering into a contract for the collection of and removal of such garbage, offal, dead animals and other unsanitary matter, as hereinbefore stated, shall, upon the recommendation of the said board of health, receive a license for that purpose, issued by the mayor of said city and no license shall be issued to any other person, firm or corporation for the gathering of such garbage; such person so licensed shall give a bond to the city of Grand Rapids, with sufficient sureties and in such amount as may be required by said board of health. * * * No person, firm or corporation excepting the city of Grand Rapids, shall collect or convey through the streets of said city any garbage, offal, dead animals or other unsanitary matter, unless he, they or it shall have first received a license therefor issued by said city and execute a bond as required by this ordinance.”

Section 7 of said ordinance provides that upon the conviction of, and failure to comply with, the conditions of the ordinance, the offending person may be—

“subject to a fine of not less than $1.00 nor more than $25.00 and costs of prosecution, or by imprisonment at hard labor in the common jail of the county of Kent, or in any penitentiary, jail, workhouse or house of correction of said city, in the discretion of the court or magistrate before whom a conviction may be had, for a period of not less than five days nor more than ninety days.”

On February 10, 1913, the city of Grand Rapids entered into a contract with the Grand Rapids Garbage Holding Company, of Grand Rapids, Mich., by the terms of which the city undertook the task of the collection of all the garbage and the delivery of the same upon cars at a point certain within the city of Grand Rapids. The cars were to be furnished by the city, but were to be kept in repair by the Garbage Holding Company. It was further provided that the delivery of the garbage should be made by and under the management of the board of health of the city of Grand Rapids or such branch of the city government as may be provided by charter. The contract further provided that the Garbage Holding Company should receive and dispose of the garbage in a certain specified manner, and—

“in consideration of the delivery of such substances by the said party of the first part to said second party, said second party hereby agrees to pay to said party of the first part fifty (50) cents per ton, payable monthly, during the time that this contract shall be in force.”

Further:

“Said first party hereby agrees to diligently prosecute all persons unlawfully collecting or removing garbage within said city of Grand Rapids at any and all times, and particularly upon thirty days’ notice by said second party to said first party, in writing, or any person unlawfully collecting or removing garbage within said city.”

Further:

“Said first party hereby agrees that if the quality or quantity of garbage within said city, is at any time during the life of this contract, materially reduced by unlawful collection or removal, to proportionately reduce the price per ton of said garbage to be paid by said second party to said first party hereunder, while said reduction in quality or quantity continues.”

The bill sets out the ordinance and contract, and avers that the defendant, without license, proceeded upon a day certain to collect garbage from certain hotels, boarding houses, and other places contrary to the provisions of said ordinance. It describes the character of the refuse, and states:

“That the material being placed in said vessels and barrel consisted of tomatoes, bread, cooked meat,, lemon and grapefruit peels, onions, clamshells, celery, beans (cooked), eggshells, cabbage, etc., all in a mushy and wet condition; that it was refuse and waste matter such as comes from tables and a kitchen; that it was of the nature of swill; that it had in part undergone process of fermentation and gave forth an odor very strong and disagreeable and injurious to the public health. * * * And your orator further shows and states the fact to be that the removal of garbage in this manner is a violation of the city ordinance, and that the removal of garbage of this character is injurious and dangerous to the public health, and should be restrained by the injunction and order of the courts; that the continuation of such removal of garbage in vessels of this character violates and sets at naught the costly methods of removal of garbage by city officials and endangers the public health and is a standing menace to the best efforts of the city, constituting damage not only in hundreds of dollars, but probably thousands of dollars, that cannot well be measured.”

To this bill of complaint the defendant filed an answer admitting the fact that he had collected the garbage without a license, but denied that the matter collected had in part, or at all, begun fermentation, or that it gave forth a bad or disagreeable odor, or that it was in any way injurious to the public health. He further averred that the method employed by him for the removal of said material was more sanitary and more satisfactory to the owners of said material than the method employed by the city.

The cause was heard in open court, and evidence introduced on behalf of the complainant tending to show that upon the day in question the defendant was engaged in collecting garbage in said city. Upon the particular occasion in question the defendant had upon his wagon some eight or nine cans and one barrel, filled or partially filled with garbage. The substance was described by one witness “as soft and mushy like.”

“Q. Whether any of those cans or the barrel was tightly closed with tight covers?

“A. I don’t think there was one of them had á lid on that morning.

“Q. Whether or not you are positive that there were some cans, or the barrel, that had garbage in it as you have described it that did not have a tight cover?

“A. Yes, sir.

“Q. You are positive of that, are you?

“A. Yes, sir.

“Q. What have you to say in reference to the cleanliness of this barrel and cans; whether or not there was any odor?

“A. Well, there was some odor from them.

“Q. Was it a good odor?

“A. Pretty fair.

“Q. What have you to say in reference to the odor?

“A. There was a bad smell to it — sour.

“Q. Disagreeable, was it?

“A. A sour, disagreeable smell to it; yes.

■ “QWhat have you to say in reference to the cleanliness of the barrel and cans?

“A. They were not very clean — more or less greasy.

“Q. On the outside?

“A. The outside and inside, too.

“Q. Greasy and dirty from the garbage that had been thrown upon them?

“A. Grease and dust had settled on them.”

A decree passed as prayed for by the complainant perpetually enjoining the defendant from engaging in the business of a scavenger and from the removing of garbage and of such garbage as is described, and from in any manner violating the ordinances of the city of Grand Rapids with reference to garbage or removal thereof.

The right of a city, in the reasonable exercise of its police power, to enact an ordinance' covering the collection and disposal of garbage is not, as we understand it, questioned by counsel for appellant. Indeed, in view of the decisions of this and other courts, such right could not well be questioned. People v. Gardner, 136 Mich. 693 (100 N. W. 126); Id., 143 Mich. 104 (106 N. W. 541); Gardner v. Michigan, 199 U. S. 325, 26 Sup. Ct. 106.

On behalf of appellant, however, it is strenuously contended that a court of equity is without jurisdiction to entertain the bill in this case for the purpose of enjoining a breach of a municipal ordinance. Many cases are cited in support of this position, and, among them, the following: Village of St. Johns v. McFarlan, 33 Mich. 72 (20 Am. Rep. 671); City of Grand Rapids v. De Vries, 123 Mich. 570 (82 N. W. 269); Micks v. Mason, 145 Mich. 212 (108 N. W. 707, 11 L. R. A. [N. S.] 653, 9 Am. & Eng. Ann. Cas. 291); Dequeen v. Fenton, 98 Ark. 521; Lyric Theater v. State, 98 Ark. 437 (136 S. W. 174, 33 L. R. A. [N. S.] 325); Mayor v. Thorne, 7 Paige (N. Y.), 261; Davis v. American Society, etc., 75 N. Y. 362; Village of New Rochelle v. Lang, 75 Hun (N. Y.), 608 (27 N. Y. Supp. 600); Mayor v. Smyth, 64 N. H. 380 (10 Atl. 700); Rochester v. Walters, 27 Ind. App. 194 (60 N. E. 1101); Waupun v. Moore, 34 Wis. 450 (17 Am. Rep. 446); and Houlton v. Titcomb, 102 Me. 272 (66 Atl. 733, 10 L. R. A. [N. S.] 580, 120 Am. St. Rep. 492). Many other cases are cited, but the foregoing will be found sufficient to demonstrate the fact that usually courts of equity will not interfere ‘ and enjoin the breach of a penal ordinance. Most of the cases cited, however, will be found on examination to refer to ordinances prohibiting the erection of buildings of a certain character within certain prescribed fire limits. The fact is emphasized in many of the decisions that the erection of such a structure is not in itself a nuisance, and, as was said in the case of Mayor v. Thorne, supra:

“It is no part of the business of this court [chancery] to enforce the penal laws of the State, or the by-laws of a corporation, by injunction, unless the act sought to be restrained is a nuisance.”

Counsel for appellant cite and rely on the case of Micks v. Mason, 145 Mich. 212 (108 N. W. 707, 11 L. R. A. [N. S.] 653, 9 Am. & Eng. Ann. Cas. 291). In that case the complainants sought to restrain the municipal authorities from razing a building said to have been erected by complainants in defiance of a municipal ordinance, which declared that a building erected in defiance of its terms should be deemed a nuisance. The bill was dismissed. We are unable to see how the conclusion reached in that case has any bearing upon the question presented in the case at bar, where the bill is filed by the municipality itself, or one of its boards, to enjoin a course of conduct on the part of the defendant which it is charged not only resulted in a public nuisance, but entailed upon the city considerable financial loss through its failure to secure, deliver, and receive pay for the garbage so unlawfully collected by the appellant.

In the case of Detroit Realty Co. v. Barnett, 156 Mich. 385 (120 N. W. 804, 21 L. R. A. [N. S.] 585), this court held that equity has jurisdiction to abate a saloon, if a private nuisance, although the nuisance is also a breach of the criminal law, citing cases. Very lately, in the case of Detroit Building Commission v. Kunin, 181 Mich. 604 (148 N. W. 207), the equitable jurisdiction of the court was invoked to enjoin a threatened violation of a municipal ordinance relating to the erection of a building. We there held that, though the ordinance did not in terms declare a building erected in violation of its provisions a nuisance, by virtue of the provision in the ordinance providing for injunctive relief, the court would exercise equity jurisdiction.

A case upon its facts very much like the case at bar is that of California Reduction Company v. Sanitary Works, 199 U. S. 306, 26 Sup. Ct. 100. In that case the board of supervisors of the city and county of San Francisco had adopted an ordinance by the terms of which they had given to the assignor of the complainant company an exclusive right for 50 years to collect, cremate, and destroy within that city all garbage. A part of that ordinance consisted in a penal clause declaring any violation thereof punishable by a fine of not exceeding $250, or by imprisonment for a term not exceeding 100 days. The bill was filed by the complainant for the purpose of obtaining a decree restraining the defendants by injunction from removing from said city any of the garbage or other material specified in the ordinance. The circuit court, Judge Morrow presiding, passed a decree giving the relief asked. 94 Fed. 693. That decree was affirmed in the circuit court of appeals, Judge Hawley delivering the opinion of the court. 126 Fed. 29, 61 C. C. A. 91. It was removed to the Supreme Court of the United States, and the opinion, which reviews all the authorities extending up to 1905, when it was written by Mr. Justice Harlan, affirms the decree of the lower court.

In the case of In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, injunctive relief was given. The following head-notes indicate the holding of the opinion:

“A court of equity has power to interfere by injunction in cases of public nuisance.

“The jurisdiction of a court of equity to enjoin interferences with property rights is not destroyed by the fact that they are accompanied by or are violations of the criminal law.”

In the case at bar the averments of the bill, without using the word “nuisance,” set out facts which, if proven, would be sufficient upon which to predicate a finding that the method of collection adopted by the appellant was in itself such as to constitute a public nuisance. The evidence as to that method is quoted sufra. It is claimed on behalf of appellant that his method was quite as sanitary and free from objection as that adopted by the city. We think, however, that even if this be true, it is no answer to the charge that appellant was creating a nuisance. All authorities agree in holding that garbage in and of itself is a nuisance, and all agree that, in the exercise of the police power, a municipality may control the manner of its collection and disposition. It is obviously for the interests of the whole public that such offensive offal should be collected by persons under the immediate control of the municipal authorities, and this control the ordinance in question seeks to preserve.

The record discloses the fact that, besides defendant and appellant, several others in the city of Grand Rapids were engaged in an enterprise similar to his own. The difficulty of maintaining a constant surveillance over unlicensed and irresponsible collectors must be obvious to all. It is perhaps, however, not necessary to base determination upon this phase of the case. The bill avers, and the evidence shows, that the city had a direct' financial interest in the garbage in question. Its right to compel delivery thereof to its own collectors and to receive pay therefor from the Garbage Holding Company cannot be questioned. The activity of the appellant and others in collecting the garbage prevented the city from receiving the agreed price for so much thereof as appellant and the other unlicensed collectors secured. It is easy to believe that the continued collection of garbage by appellant and others might so reduce the amount collected by the city and delivered to the Garbage Holding Company under its contract as to render it impossible for the contract to receive practical performance. Nor can it be said that a prosecution under the penal clause of the ordinance would afford the city an adequate remedy. The offending party is entitled to appeal after conviction from court to court and thus cause delay. In the meantime the city is subjected to the loss of the material which, though not property in an ordinary sense, has under the contract between the city and the Garbage Holding Company, a certain fixed value determined by that contract.

For both reasons stated, we are of opinion that the decree of the court below perpetually enjoining defendant from collecting garbage within the city of Grand Rapids should be, and it is, affirmed.

McAlvay, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    SCHWIER v. HURLBURT.
    1. Fraud — Sales'—Deceit—Equity—Setting Aside Sale.
    Where complainant’s bill averred, and testimony tended to show, that the defendants, in making the sale to complainant of a garage and automobile repair business, in order to induce complainant to buy, represented that the revenue from the business was eight hundred dollars a month for the storage of cars, and that the total earnings exceeded twelve hundred dollars a month, when in fact the business was a losing venture and not profitable as represented, also that the accounts payable were several times the amount stated by the defendants, and the accounts receivable less than stated by defendants, the court of equity was warranted in holding that the sale was void for fraud and in setting aside the transaction for the alleged false representations.
    2. Partnership — Estoppel—Representations as to Existence of Partnership.
    Where two parties held themselves out as partners in the conduct of an automobile garage and storage business, purchasers of the property, who dealt with the partnership as such, were entitled to rely upon the existence of the relation upon the ground of estoppel.
    3. Same — Dissolution.
    While a partnership may be dissolved by a valid sale of the assets and business, the effect of a voidable sale, which the purchaser rescinds on the ground of fraud, is not to work a dissolution of the firm: the assets remaining the property of the firm upon the rescission or attempt of the purchaser to rescind by tendering back the business and property.
    Appeal from Wayne; Hosmer, J.
    Submitted January 18, 1915.
    (Docket No. 68.)
    Decided March 18, 1915.
    Bill by Henry F. Schwier against Howard C. Hurlburt and Henry C. Houghten and others, to set aside a purchase of a business property. From a decree for complainant, defendants appeal.
    Affirmed.

      Edmund J. Stafford and Harry J. Dingeman, for complainant.

      Ralph B. Wilkinson, for defendants.
   Brooke, C. J.

The bill of complaint in this case is filed for the purpose of securing a decree setting aside a sale of a certain business, known as the Riverview Auto Garage, together with some personal property and an interest in certain real estate, made by defendants to complainant on January 18, 1912, upon the .grounds of fraud and misrepresentation. Complainant sought, not alone the setting aside of the transaction, but a return to him of the consideration paid.

It appears that some months prior to said 18th day of January, 1912, the two defendants Houghten and Hurlburt had engaged in the enterprise in question. Such money as was invested therein seems to have been contributed by defendant Houghten, while defendant Hurlburt seems to have been in the active management of the business. It is the claim of the complainant that these two men were partners in the business, and that both are bound by whatever representations were made by either. We have carefully examined this record, and are of opinion that, at the time the contract in question was made, the two defendants were, through representations made to the world, partners, at any rate as to third persons, including the complainant. Most of the alleged false representations were said to have been made by defendant Hurlburt, though some of those of a material character are likewise said to have been made by defendant Houghten. Complainant claims that the false representations consisted in the following:

“(a) That said business was a very large and profitable one; that the gross earnings were between $1,200 and $1,400 per month; that the actual revenue to said business from the storage of automobiles was $800 per month derived'from the storage of 30 gasoline cars at $15 per month and 10 electric cars at $32.50 per month, the transient storage bringing the total for storage up to $800, and the difference being made up from the sale of gasoline and rentals from taxicabs.

“(b) That the accounts payable of said business were $1,646.17, plus $789 due on a furnace contract.

“(c) That the accounts receivable were $1,314.88.”

It was averred in the bill and shown on the trial that, relying upon these representations, the complainant purchased the business in question, taking a bill of sale of the personal property, assignment of the contract for the purchase of the real estate, and paid therefor in cash the sum of $448, and executed and delivered promissory notes to the total amount of $7,500, and further assigned land contracts to the defendant of a total value of $2,310, making in all a consideration of approximately $10,000.

The bill avers, and the testimony tends to prove, that the representations as to the revenue were false in that, instead of receiving a total revenue of $800 a month from the storage of cars, there was received but $392.50 upon that account, and that the business, instead of being a large and profitable one, was and had been a losing venture. It was also claimed and proven on behalf of complainant that the accounts payable of said business were upwards of $5,000 instead of $1,646.17, as represented by defendants, and that the accounts receivable were $72.78 less than represented.

Complainant seems to have gone into possession of the business on January 19, 1912. He discovered the discrepancies between the actual earnings of the business and the earnings as represented by the defendants to him immediately after going into possession, and testified of a conversation with defendant Houghten on January 21st as follows:

“After I discovered these differences I talked with Mr. Houghten in the garage one day; January 21st, I believe it was. I told him that Mr. Hurlburt had represented to me that they had $800 in storage, and that I found that they had $392.50. I told him I could not handle it under these conditions, and that I wanted to get back what I gave. I also told him that he owed $5,000 instead of $1,600, as he represented. He said he knew he owed $5,000 there, and that he had agreed to pay anything over $1,600. There had been no such talk. He did not tell me at the time he made the deal that he knew he owed more than that. If I had known of the difference of $2,400 or $2,600,1 would not have made the deal. At the time I turned back the business, Mr. Houghten was out of town, and I turned it back to Mr. Hurlburt and executed a bill of sale to them. Mr. Hurlburt took the business, and he said, T am glad to get it back, and I only wish I had what you gave Mr. Houghten to give you back.’ He says, ‘We handed you something.’ I conducted the business nine days, and during that time paid one pay roll, amounting to $113, and $25 for additional help. I spent $158 during the time I ran the business. I do not know how much the receipts were I took in. I left the money in the cash drawer.”

It appears that, very shortly after the consummation of the deal, the defendant Houghten left the city for a time, and, at the time the complainant retransferred the business to Hurlburt, he was still absent.

On behalf of defendants and appellants, it is claimed that no partnership in fact existed between the defendants Houghten and Hurlburt. We are of opinion that, whatever their relations as between themselves may have been, they are estopped from denying that as to third parties they were partners.

The further claim is made that, even if they were partners, the sale of the business, which included all of the assets of the partnership of defendants, worked a dissolution of such partnership, citing Potter v. Tolbert, 113 Mich. 486 (71 N. W. 849). Based upon this decision, the defendants claim that neither party had power to bind the other party by any new contract, acceptances, payments, or any other matters which rely upon the existence of a partnership for the binding effect thereof after said dissolution, citing Goodspeed v. Plow Co., 45 Mich. 322 (7 N. W. 902); Johnson v. Emerick, 70 Mich. 215 (38 N. W. 223); and Potter v. Tolbert, 113 Mich. 486 (71 N. W. 849).

It must, we think, be obvious that this argument is based upon the assumption that the business was in fact sold by the defendants to the complainant. Complainant’s bill proceeds upon the theory that by reason of the fraud and misrepresentation of defendants, although a sale in form was made, in contemplation of law there was only a voidable sale. This was the conclusion reached by the learned trial judge who heard the case, and in that conclusion we must agree. It is therefore apparent that, at the time the tender of the business back to the defendants, was made by the complainant to the defendant Hurlburt, Houghten and Hurlburt were, as to this business and as to the complainant, still partners, in contemplation of law.

The learned trial judge had the advantage of seeing and hearing the witnesses. In a doubtful case this fact would have weight with the appellate court. In the case at bar, however, we find it unnecessary to have recourse to that principle, for the reason that a careful reading of the record convinces us that a deliberate attempt was made by the defendants to induce the contract through the making of false and fraudulent representations.

The decree of the court below is affirmed, with costs to the complainant.

McALvay, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    WARD v. DUNNEBECKE.
    1. Principal and Aoent — Evidence — Admissions — Existence of Relation.
    Authority of one person to contract for another cannot be proved by admissions or statements of the alleged agent, whose authority must be determined from or by acts of his principal and not by his representations or doings.
    2. Sam:e — Evidence.
    Accordingly, where, the only evidence of agency was that the defendant and the agent lived side by side, and the latter directed a walk to be constructed upon the property of the defendant while defendant was ill, and where it appeared that he was able to observe part of the work but made no objection thereto, the agent testifying that he had not been authorized to order the -walk built, there was no such evidence of the existence of the relation of principal and agent as to charge the owner with the contract price for the work.
    Error to Wayne; Codd, J.
    Submitted January 14, 1915.
    (Docket No. 100.)
    Decided March 18, 1915.
    Assumpsit in justice’s court by Everett E. Ward against Margaret Dunnebecke, administratrix of the estate of Anthony Dunnebecke, deceased, for the price of certain work and materials under a special contract. From a judgment for plaintiff, defendant appealed to the circuit court where judgment was entered for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      B. S. Woodliff, for appellant.

      May & Dingeman, for appellee.
   Brooke, C. J.

This case was started in the justice’s court. The plaintiff, a contractor, was requested by one Petrie, son-in-law of Anthony Dunnebecke, deceased, to look at some work. He arrived at an agreement with Petrie for the construction of a cement walk, the contract price of which was to be $80. Plaintiff did some preliminary work, but cold weather set in, and he had to discontinue the work for a period of about three weeks. In the meantime, Petrie had the work finished by another contractor. The walks in question were constructed in front of the residence of Dunnebecke. During the time of the preliminary work the deceased was very ill at his home. Testimony was introduced, however, showing that deceased was able on a few occasions to see the work in progress. After the work was completed by the second contractor, plaintiff brought this action against the estate of Anthony Dunnebecke for the original contract price. The defendant pleaded the general issue and gave notice of set-off and recoupment for 680 feet of sidewalk amounting to $74.80. The justice of the peace rendered a judgment in favor of plaintiff for the entire sum with costs. On appeal to the circuit court, the judge directed a verdict for defendant of no cause of action, and awarded defendant costs.

The only question in this case to be determined is whether Petrie was the authorized agent of Dunnebecke in this transaction.

The evidence contained in the record shows that Dunnebecke and Petrie lived side by side. Petrie testified that he had never been authorized by the deceased to make a contract for the construction of this walk. The only point on which plaintiff can rely that the deceased authorized Petrie to have the walk constructed is that the deceased did nothing to prevent the performance thereof, and that his failure to do any act to prevent the work impliedly ratified the acts of Petrie.

It is elementary that the authority of one person to contract for another cannot be proven by the declarations or admissions of an alleged agent. Bacon v. Johnson, 56 Mich. 182 (22 N. W. 276); Ironwood Store Co. v. Harrison, 75 Mich. 197 (42 N. W. 808); Swanstrom v. Improvement Co., 91 Mich. 367 (51 N. W. 941); Fontaine, etc., Electrical Co. v. Rauch, 117 Mich. 401 (75 N. W. 1063); Coldwater National Bank v. Buggie, 117 Mich. 416 (75 N. W. 1057); and Gore v. Assurance Co., 119 Mich. 136 (77 N. W. 650).

The authority of an agent must be determined by the acts of the principal, and not by those of the agent. Wierman v. Sugar Co., 142 Mich. 422 (106 N. W. 75).

The judgment is affirmed.

McAlvay, Kuhn, Stone, Ostrander, Bird, Moore, and Stbere, JJ., concurred.


author: Moore, J.

text:
    VILLAGE OF SAND LAKE v. ALLEN.
    Waters and Watercourses — Drainage—Surface Flow — Obstruction.
    Where complainants averred that the surface water from a village street for upwards of thirty years passed over the property of the defendants and drained into a neighboring lake, and that defendants attempted to obstruct the natural flow of the water by drawing earth and building a dam one and one-half to two feet high across a ravine upon their property through which the water passed, and where defendants claimed that by the construction of certain ditches and tile drains a larger quantity of water than the natural flow passed onto their property and that the water had become polluted and unhealthful, affecting injuriously a house in which they lived, the trial court, upon conflicting evidence, was justified in granting an injunction in favor of complainant village.
    Appeal from Kent; Perkins, J.
    Submitted January 18, 1915.
    (Docket No. 79.)
    Decided March 18, 1915.
    Bill by the village of Sand Lake and others against Frank Allen and Emma Allen to enjoin an obstruction of the natural flow of a watercourse. From a decree for complainants, defendants appeal.
    Affirmed.

      Charles Rarden and Ellis & Ellis, for appellants.

      Louis T. Herman, for appellees.
   Moore, J.

The village of Sand Lake is located in Nelson township on the north line of the county of Kent; the north line of the village being the county line. The county north of the village is Montcalm county. The business street of the village runs, east and west.

It is the claim of complainants that the surface water of the north side of this street for a block west of Fourth street for more'than 30 years found its way east to Fourth street; then nearly north on Fourth street for approximately a block and a half; then east under the tracks of the Grand Rapids & Indiana Railroad; then across Third street, and across lots 5, 4, 3, 2, and 1 of block 1, which belongs to complainant Giddings; thence east across First street until it came to a small piece of land on the east side of First street belonging to defendants;. thence turning north through a ravine on this land; thence across the county line road to a tract of land owned by defendants; thence north through the lands of defendants in a ravine which extended to Round Lake. It was the further claim that it was only after a hard rain or in the spring and fall that water was found in the ravine north of the county line road.

It is the claim of the complainants that the route indicated was the route of the surface water in a state of nature, and that, as Fourth street, Third street, First street, and the county line road were opened, the ravine was first bridged, and later crock tiles were put in to permit the passage of the water, and that for the same purpose an opening was left under the railroad when it was constructed. The testimony indicates that the village of Sand Lake has not grown very much for a long time. It is also the claim that the surface water from the south side of Lake street and that part of the village south thereof found its way south and east into a county drain.

In 1907 the defendants bought a small piece of land in the village east of First street, and south and adjoining the county line road, and a much larger piece north of the county line and extending from the county line to Round Lake. In the same year they purchased the land they commenced the erection of a house on the bluff a few rods away from the lake, and it is claimed they have invested, including the value of their work, about $4,000.

Shortly before the bill of complaint in this case was filed, defendants drew 15 or 20 loads of earth and dumped it into and across the ravine on their land in the village just adjoining First street. This made a dam, variously estimated as 1% to 2% feet high. On the west part of Mr. Giddings’ land there was a low place where the water sometimes stood, and especially during the winter season, so that persons so inclined could skate thereon. This depression is called by some of the witnesses, and by counsel for defendants, Giddings pond. Just west of the railroad opposite Mr. Giddings’ land Mr. Blanchard owned land which was low, and at times water would stand there.

It was the claim of complainants that, as the result of the action of the defendants, the surface water was backed upon and across the Giddings land, upon and across Third street, upon and across the railroad right of way, upon and across Fourth street, and upon the low land of Mr. Blanchard, and became stagnant water and a menace to the health of the citizens of the village.

It was the claim of the defendants that by reason of putting in cement gutters on Lake street, the building of some new buildings, deepening ditches and putting in crock tiles that more water came to them than would naturally come, and that the water had become polluted so as to -make a stench in and about their house near Round Lake, and that the conditions were so bad that Mrs. Allen became ill, and that they were justified in doing what they did.

The complainants denied that the volume of water had increased, and denied that it had become polluted, and insist that, if there was any stench about the house of defendant, it could be accounted for in another and much more reasonable way.

The case was heard in open court. After the hearing had been in progress some time, the trial judge suggested to counsel:

“Now, there is no question about the fact that at least from the point of intersection between Lake street and Fourth street the general lay of.the land is toward the northeast, and that the natural course of the water reaching that point at least would be in the direction indicated. That is not the question, though. Assuming that that is the natural lay of the land, the real question involved here is, under the answer and the claims made by the defendants, as to whether anything more than water is permitted to go down over the land of the defendants, detrimental to public health, or to the health of the defendants; in other words, whether the servient estate is bound to receive anything more from the dominant estate than nature places upon the dominant estate in the way of water.' The general rule is, as we all know, that water arising upon a dominant or upper estate can pass over the servient or lower estate, and that this right is an easement so denominated in the law. But it is also equally well settled that the dominant estate cannot add to this easement or right; that is, cannot claim a privilege additional to the natural right to have the water from the upper flow down over and across the lower estate. So the question here is as to whether the claims of the defendants, are true. Has there been anything added to this flow which does not by nature, or did not by nature, exist? If any filth or additional water from whatever source is permitted to flow into this natural course and down and upon the defendants’ land, that ends it. If all that goes from this village down onto this land is that which by nature should be permitted to go there, that also ends it. . Now, that is the issue, and the sole issue, in this case. It would be strange that any other rule could be tolerated or permitted; in fact, it is not in the law permitted. * * * I speak now because I know that you are, as well as I, anxious to complete this case, and that is the only issue involved. If the complainants can show to the court that the water which is permitted to run down over the defendants’ land is water which naturally rises upon a dominant estate, and runs down there in an unpolluted state, they can recover; they are entitled to a permanent injunction to restrain the defendant from interfering with the natural progress of the water.”
“On the other hand, if the defendant satisfies the court that the water thrown down on their estate is not in the natural state, but is polluted, and that additional water is permitted to flow down which does not arrive in a natural state, why, the defendants must prevail. Now, that is the law and all that is involved in this case.”
“Mr. Herman: The court does not expect the complainant to prove that the water was polluted?
“The Court: No; I expect you to prove it was not, and that is why I suggested the burden is upon you to show it was not.”

After this suggestion was made the hearing continued at great length, and the court granted the injunctive relief prayed for in the bill of complaint. The case comes here by appeal.

The law which should control in a dispute of this nature is not in doubt in this State. Some of the cases in which it is declared are: Fox v. Holcomb, 32 Mich. 494; Upjohn v. Richmond, 46 Mich. 542 (9 N. W. 845, 41 Am. Rep. 178); People v. Hulbert, 131 Mich. 156 (91 N. W. 211, 64 L. R. A. 265, 100 Am. St. Rep. 588); Tower v. Township of Somerset, 143 Mich. 195 (106 N. W. 874); Phillips v. Armada, 155 Mich. 260, 263 (118 N. W. 941); Smith v. Barrett, 159 Mich. 325 (123 N. W. 1091); Village of Trenton v. Rucker, 162 Mich. 19 (127 N. W. 39, 34 L. R. A. [N. S.] 569); Wyoming Township v. City of Grand Rapids, 175 Mich. 503 (141 N. W. 890).

The question involved is one of fact. Counsel for the appellant in their oral arguments, and in their printed briefs, were and are so earnest in their contention that a great injustice was done their clients by the decree in the court below, that we have read with great care all the evidence contained in the very voluminous record before us. We have not overlooked what is claimed by counsel for the analysis of three samples of water by the State bacteriologist, sent to him by the defendants. This analysis would have much more value for the defendants if the water had been taken from their premises, instead of through a hole in the ice in Giddings pond, and from a pool in Fourth street, and the so-called Blanchard pond, all of which were 40 or 50 rods away from the residence of defendants.

The following, taken from the letter accompanying the analysis, is illuminating:

“These three samples were brought to the laboratory by Mr. Henkel, who claimed that they represented wastes that the city was discharging into a lake. The question was whether or not this material would dangerously contaminate the water. We informed him that this question could not be answered without a thorough inspection of the local conditions as much would depend upon the amount of discharge and size, as well as other conditions.”

We have also given due heed to the argument of counsel about the changed conditions caused by the construction of the cement gutter on Lake street, the construction of the four-flat building, and the conditions in the meat market. A careful reading of the record does not sustain the inferences of counsel.

A large number of witnesses were sworn. Some of the testimony is in conflict. Some of it is not true. A careful reading of all of it satisfies us not only that defendants have failed to establish their defense, but that complainants have met the onus put upon them by the chancellor. In reaching this conclusion we do not need to invoke the rule that the chancellor has an advantage over this court because he sees and hears the witnesses.

The decree is affirmed, with costs.

Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.


author: Moore, J. Brooke, C. J.

text:
    BENSON v. JONES & LAUGHLIN ORE CO.
    1. Master and Servant — Safe Place — Mines — Non-Delegable Duty.
    Several miners in defendant’s employ were engaged in work upon a platform which had been constructed in a new shaft in which plaintiff claimed to have been injured, while he was employed at his work as a pumpman, by the fall of certain rock upon him. He produced evidence tending to show that he heard sounds indicating the descent or settling of part of the shaft, and that the men gave signals but could not get a response from the hoisting bucket, and that he tried to climb out by going up on a number of projecting bolts, and was hurt by a fall of material upon him, also that there was no bell or ladder in the shaft, and plaintiff claimed that it was the duty of the defendant to construct a safe platform upon which the men might work. Held, that defendant was not relieved of its duty to render the place safe because of the rule that while a new shaft is being constructed the doctrine of safe place does not apply to employees who are working together to prepare the place of work.
    2. Same — Negligence.
    The trial court did not err in instructing the jury that defendant would be guilty of negligence for failure to provide a suitable ladder whereby plaintiff and defendant’s other employees might leave the shaft, or that if they found there was negligence in the failure to provide a suitable signaling system, so that a bucket might be lowered to hoist men out of the mine promptly and safely, plaintiff could recover.
    3. Same — Assumption of Risk.

      Held, also, that the court erred in instructing the jury that plaintiff did not assume the risk of the danger unless he knew or ought to have known of the precise physical conditions from which the resulting injury might be expected to occur.
    4. Same — Contributory Negligence.
    Where defendant claimed that the plaintiff should have gone to the surface in a bucket instead of climbing the shaft, and that he was guilty of contributory negligence for adopting the method which he used in leaving the shaft, and the testimony relating to what was said between plaintiff and his fellow workman was in conflict, the trial court did not commit reversible error in leaving to the jury the issue of contributory negligence.
    5. Same.
    Plaintiff ought not to have been permitted to recover for an injury which he sustained before he attempted to climb out of the shaft by the falling of a piece of rock that struck him between the shoulders, causing an injury which was not the proximate result of the negligence relied upon in failing to provide a safe platform and proper signaling system.
    Error to Iron; O’Brien, J.
    Submitted January 11, 1915.
    (Docket No. 64.)
    Decided March 18, 1915.
    .Case by Ernest Benson against the Jones & Laughlin Ore Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      W. T. Potter, for appellant.

      T. J. Riley, and N. C. Spencer, for appellee.
   Moore, J.

In August, 1911, the defendant began to clear a location for iron ore operations. On December 7, 1911, it began to sink a perpendicular shaft to reach the ore body. It was necessary to sink the shaft to a depth of 175 feet before starting the first level. The plaintiff began work as a pumpman in the shaft about February 1, 1912. He claims to have been injured about February 14, 1912, while trying to climb out of the shaft. It is to recover damages for these injuries that he brought this suit. The plaintiff was a miner of about 14 years’ experience in Iron and Gogebic counties, and during that time had assisted in sinking about half a dozen shafts. The construction of the shaft began by laying on the earth four hanging pieces from 30 to 40 feet long, and from 2 to 2% feet square; two running at right angles with the other two, which formed an opening 10 feet by 12 feet. Under the long timbers, and close to them, are bolted one set of timbers 12 inches square. The sets were 4 feet apart in the clear. As the shaft was being sunk, as soon as. there was room a set would be put in and fastened by hanging bolts. On the back of these 12-inch timbers 2-inch strips were nailed. On these strips were placed back lath, almost 5 feet in length, which are 2-inch tamarack plank, to keep the earth from falling into the shaft, and in order to keep the back lath in place blocking and wedges were used to make the back lath as tight as possible. It was the duty of the men working in the shaft to keep constant watch of the shaft, and, when there was any indication of caving behind the back lath, to make immediate investigation and block or wedge the back lath whenever they were found to be loose. When the shaft reached the quicksand, at a depth of about 55 feet, water began to accumulate, and it was necessary to install a pump, which was placed on a platform on the east end of the shaft. The plaintiff helped install this pump. The pump was on a platform. As the shaft was sunk, the suction to the pump would become too short and the platform would be lowered. Until the bearing pieces were put in at 97 feet, there was no ladder road in the shaft. The plaintiff describes a ladder road as follows:

“It is made of wood and put in straight up and down and is fastened with staples or nails and runs from the surface down to the bottom.”

There was no bell line in the shaft, but there were means of signaling the engineer from the tube by striking three raps on the tube. The plaintiff had worked in the shaft 14 days and knew" there was no ladderway or bell line in the shaft. On February 14, 1912, the shaft was about 90 feet deep. The entire weight of the shaft at that time was upon the hanging bolts. On that day the men had blasted. Plaintiff heard a noise that indicated the shaft was settling. Water and sand were coming into the shaft from behind the timbers. A chunk of some kind fell and hit the plaintiff, and it indicated to him the shaft was settling. Two men besides the plaintiff were in the shaft. They hallooed for the hoist. They attracted no one’s attention. When the plaintiff failed to attract any one’s attention, he started to climb the hanging bolts and climbed about 18 sets.

It is claimed by defendant that Samuel Truscott, a miner, was going down in the bucket and was about 35 feet from the surface when the cave-in occurred, and as the plaintiff started to climb the hanging bolts he told him to stop and take the bucket and ride, and plaintiff answered: “No, I am going to climb the hanging bolts; I can beat you up then.” This is not admitted by the plaintiff. Truscott went to the bottom of the shaft in the bucket and brought the other two men up with him, and the plaintiff rode to the surface with him. A careful inspection of the entire shaft was made at once, and nothing wrong whatever was found, except a cave-in about 25 feet below the surface. The timber had just settled about an inch around the shaft. The plaintiff claims to have been injured by the chunk which fell and hit him before he started to climb the hanging bolts, and also by reason of climbing the hanging bolts. The extent of his injuries was in dispute. He claimed they were permanent and serious, and defendant claimed that at most they were only trivial. From a judgment in his favor, the case is brought here by writ of error.

The defendant contends it is not liable for the following reasons:

(1) That no negligence was shown on the part of the defendant, and the court should have directed a verdict for defendant.

(2) That this shaft, in course of construction, was not a permanent place so that the doctrine of safe place applied.

(3) That the plaintiff assumed the risk of the absence of a ladder road and bell line.

(4) That the plaintiff was guilty of contributory negligence.

(5) That there was no evidence tending to show lack of inspection.

The first two reasons may be discussed together. The plaintiff, who was an experienced miner, states that it was the custom in Iron and Gogebic counties to provide ladder roads where shafts are being sunk. Counsel say this evidence is too indefinite to be of any value for the reason that the plaintiff does not claim that the material through which the other shafts were sunk was similar to this one, or that any of the conditions were similar. Counsel also lays great stress upon the proposition that this shaft, in course of - construction, was not a permanent place, so that the doctrine of safe place does not apply. It is the contention of the attorney for defendant that, up to and for some time after plaintiff’s alleged injuries, all work at this location was solely construction work, and, if we understand his argument, it is that while the work is in that condition liability cannot arise.

This court has held, in Risku v. Iron Cliffs Co., 163 Mich. 523 (128 N. W. 747):

“The men constructing the new shaft, whether in excavating or timbering it, were engaged in preparing a place in which the ordinary operations of the mine would be carried on, and the use of the platform, or staging, was a mere incident to the construction of such shaft. While the shaft was in process of construction, the doctrine of safe place would not apply; after it was constructed, it would apply.”

But in that case it was held the master owed a duty to furnish suitable material to construct a safe platform upon which the men were to work. Other cases where the doctrine of safe place was considered by this court are Livingstone v. Plate Glass Co., 146 Mich. 236 (109 N. W. 431); Dunn v. Dredge & Dock Co., 161 Mich. 551 (126 N. W. 833); Kaaro v. Mining Co., 178 Mich., at page 681 (146 N. W. 149); and the cases there cited.

We dp not understand that any of them hold, because the work is construction work, that the employer would be relieved of liability for all kinds of negligence.

The trial judge eliminated the question of safe place and instructed the jury that:

“The case must be decided upon the question whether or not the defendant was negligent in failing to furnish a suitable ladder by means of which the plaintiff could get out of the shaft promptly, in case of an emergency, and also whether there was any negligence on the part of the defendant in its failure to furnish a proper and suitable signaling system from the bottom of the shaft or from points in the shaft, so that the bucket could be promptly lowered or hoisted in case of emergency where a man would be required to get out of the shaft quickly in order to be reasonably safe.
“Now, it is the claim of the plaintiff in this case that the defendant was negligent in failing to furnish such a ladder, and also in the failure to furnish such a bell system or signaling system. On the other hand, the defendant denies any liability, denies that it was guilty of any negligence, and alleges that the injury was caused to the plaintiff, if he was hurt at all, by reason of his own negligence, and also that he assumed the risk of the particular injury which he claims he suffered on the 14th day of February, 1912.”

They were instructed that unless there was negligence in that regard there could be no recovery. We think there was no error in this instruction.

3. It is claimed the plaintiff assumed the risk of the absence of a ladder road and bell line. This claim is based upon what plaintiff saw or should have seen during the days he was employed in the shaft. In this connection it must not be forgotten that plaintiff was not engaged in the actual construction work of the shaft, but that his duties were as pumpman, and that the work of sinking the shaft began two months before he began his work.

The judge charged the jury upon the subject of assumed risk in part as follows:

“I charge you that the plaintiff, in entering the employ of the defendant and engaging in the work of sinking said shaft, voluntarily assumed all the obvious risks and dangers ordinarily incident to such mining work; that it was his duty to familiarize himself with the imminence of the danger, and he is taken to have assumed all the ordinary risks which were incidental to the work of sinking the shaft which he actually knew about, and also such risks which an average man, using ordinary prudence and care in the performance of such work, would be bound to learn and know of as the result of doing such work. If you find that his injury resulted from any such obvious or usual risk or danger, then it is your duty to render a verdict for the defendant. * * *
“I charge you, gentlemen, in addition to that, first on the question of assumption of risk, that, while it is true that an employee assumes all ordinary and obvious risks of a service, he does not assume any risk except those which are either known to him or would become familiar to him in the ordinary performance of his work. If any risk arises out of an unusual situation, he will not assume that risk, unless he knows, or ought to know, the precise physical conditions from which the risk would ordinarily arise.”

There was more of the charge upon this phase of the case, but it is not claimed the rest is error, if that feature of the case was to be submitted to the jury. The doctrine of assumed risk has been frequently before this court. Two of the leading cases are Bradburn v. Railroad Co., 134 Mich. 575 (96 N. W. 929), and De Kallands v. Telephone Co., 153 Mich. 25 (116 N. W. 564, 15 Am. & Eng. Ann. Cas. 593). These cases are so recent and so accessible that we content ourselves by referring to them. The charge of the trial court in the main was a correct statement of the doctrine of assumed risk, but we think the statement, “if any risk arises out of an. unusual situation, he will not assume that risk, unless he knows, or ought to know, the precise physical conditions from which the risk would ordinarily arise,” was a modification of the doctrine not warranted by the authorities.

4. Was the plaintiff guilty of contributory negligence so that it could be said as a matter of law that he could not recover? This contention seems to be based upon the claim of what was said between the miner who was going down in the bucket, and the plaintiff. There is a disagreement about what was said, and we think this presented a question for the jury.

The court charged upon this feature of the case as follows:

“And the last remaining question would be the question of contributory negligence. The only claim there can possibly be that the plaintiff was guilty- of contributory negligence would be his failure to ride up in the bucket, if you find he had an opportunity to do so.”

It is insisted this limits the field- of inquiry too much; that, in view of what really happened to those in the bottom of the shaft, and the conditions surrounding the entire occurrence, it should have been left to the jury to say whether in climbing the shaft plaintiff did what a reasonably prudent man would do.' We think there is force in this contention. ,

It is said the court committed error in his charge in relation to the measure of damages:

“Upon that question I charge you that the plaintiff is entitled to recover the actual damages which he has suffered by reason of his injuries. It is not admitted •by the defendant that he suffered any injury at all. That will be one of the questions of fact for you to determine. If you find he was injured, you will have to determine the extent of his injuries. The plaintiff is also entitled to recover the loss of his. earnings as the result of the injury. He is entitled to recover for all the pain and suffering which he has endured as the result of the injury, if any. * * * So that matter is for you to determine. You have a right to take into account all his injuries, to consider all the evidence offered before you.”

In this connection, it must be remembered the only question of negligence submitted to the jury .by the judge was the failure to construct the ladder road and the bell line.

The plaintiff testified:

“I did not receive all my injury that night by climbing upon the hanging bolts. The first injury I got from that chunk was between my shoulders. I don’t know what it was. I didn’t see it. It struck me right between the shoulders, just under the collar bone. I couldn’t say how large a chunk it was. It made me sore. I got over it a year ago. It did not break the skin. It broke something inside. I don’t know what it was. It hit me between the shoulders, right between the main neck bone, just about two inches below the base of the neck. I had my clothing on at the time. I don’t know as there was anything else fell in there. That struck me before I started to climb up. I was standing on my knees when that struck me, working at the pump.
“Q. Was that after you had heard the noise?
“A. Yes, sir; it happened at the same time.
“Q. You heard the noise and that happened?
“A. Yes, sir.
“Q. And then you immediately started to go up?
“A. No. sir; I did no°t.
“Q. How long did you wait?
“A. Probably about three or four minutes after.
“Q. You waited there three or four minutes before you started to go up the hanging bolts?
“A. Yes, sir.”

This testimony relates to a hurt which would have been received even though the ladder road and bell line were constructed and- should have been withdrawn from the jury.

We do not think the other assignments of error call for discussion.

For the reasons stated, we are constrained to reverse the case and grant a new trial.

McAlvay, Kuhn, Stone, Bird, and Steere, JJ., concurred with Moore, J.

Brooke, C. J.

I concur in the result for the further reason that no negligence of defendant was made out.

Ostrander, J., concurred with Brooke, C. J.