text:
    BOISEN v. COBBS & MITCHELL.
    Carriers — Passengers—Personal Injuries — Private Carriers —Agency or Conductor — Risks Assumed by Passenger.
    A manufacturing corporation operating a logging railroad, which does not solicit passengers, has no passenger cars, and maintains no train schedules, and which has instructed its conductors not to carry passengers elsewhere than in the caboose, and is not aware of violations of its rule, owes mo duty to a passenger to provide for his safety while riding on a flat car, though he takes his position by direction of the conductor to finish his journey after having contracted to be carried in the caboose to his destination.
    Error to Charlevoix; Mayne, J.
    Submitted October 11, 1906.
    (Docket No. 61.)
    Decided March 12, 1907.
    Case by Neis Boisen against Cobbs & Mitchell for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Crane & Norris, for appellant.

      J. M. Harris, for appellee.
   Blair, J.

Defendant corporation is organized for ‘ the purchase, manufacture, and sale of all kinds of forest products and the utilization of the waste thereof, the manufacture and sale of salt and the buying and selling of all kinds of merchandise.” As an incident to its business, it operates a logging railroad, upon the main line of which it authorizes the conductors of its trains to receive passengers for hire, and furnishes them with tickets or slips to be given to passengers upon payment of fare. Defendant has no passenger cars, and its instructions are that passengers must ride in the caboose, and not elsewhere. It does not solicit passenger traffic, has no train schedule, and the movement of its trains is governed solely by the demands of its private business. The conductors are expressly instructed not to accept passengers for points on the branches from the main line running into the lumber camps.

On September 13, 1904, plaintiff entered the caboose to take passage to Camp 29 on defendant’s Petoskey branch to deliver some clothing to its employés there. The train was composed of a locomotive, a caboose, a trailer, and four flat bark cars. The conductor collected plaintiff’s fare.

“ I asked him if he was going to Camp 29. He said he was going right over there. He said that the caboose was going over. I gave him $1 and he gave me 75 cents back.”

About half a mile from Camp 29 the' caboose was switched in onto another track, and plaintiff was informed by the conductor that, if he wanted to proceed to Camp 29, he would have to ride on a certain flat car, which the conductor pointed out to him. Plaintiff got upon the car indicated, which was the farthest car from the engine which was pushing the train, but was the first car of the train in the direction of Camp 29. The conductor sat upon the same car with the plaintiff, and near to him. Near the switch where the caboose was left, there is a rising grade for a short distance, and the grade then descends towards Camp 29. After the train had reached the top of the grade, and was just descending, the train broke in two, the car upon which plaintiff was riding collided with a box car standing on the track, and he was seriously injured. The train was running at the rate of about four miles an hour. The conductor jumped and shouted, and motioned to plaintiff to jump. Plaintiff did not understand the conductor, and did not realize the danger he was in till too late to save himself. Immédiately after the accident the draught iron of one of the flat cars was found on the track near where the train broke in two. The key which goes through a slot in the end of the draught iron and the ring which is inserted in a hole in the lower end of the key for the purpose of holding the draught iron in place were not found. About a month before the accident plaintiff and a companion had ridden over this Petoskey branch on a flat car with the same conductor from Camp 23, on the mainline, to Camp 29 and back again, andhad paid lOcentseach for fare. Excursions are run from time to time over this road. On Saturdays the company carries men free who desire to trade at its store in Springvale. Conductors were required to account to the office at the end of the month for money collected from fares. They kept such money in a place by itself, but kept no record of it at all. The conductors turn the money that they collect into the office at Boyne Falls, and from there it goes to Cadillac. There is an account kept of it by the company.

The court submitted the case to the jury under the second count of the declaration, alleging that it was the duty of the defendant—

“ To furnish plaintiff with a reasonably safe car on which to ride, and to reasonably equip and operate its said train so that it might and would be safe for plaintiff to ride thereon, * * * yet the said defendant negligently and carelessly disregarding its said duties, did not then and there furnish the plaintiff with a safe place to ride, and did not then and there carefully and prudently and safely furnish, equip, and operate its said train, but, on the contrary, by its said officers and agents, proceeded to and did carelessly and negligently undertake to carry said plaintiff upon a train with faulty and imperfect couplings between the cars composing said train, and which would and did uncouple by the operation of said train,” etc.

By motions to direct a verdict and for a new trial, and by exceptions and proper assignments of errors, defendant raises questions stated by its counsel as follows:

“1. Was the plaintiff a passenger at the time of the accident ?
“2. Was there any evidence of negligence on the part of the defendant ?
“3. Was the risk of injury assumed by the plaintiff?
“ 4. Was the plaintiff guilty of contributory negligence ?
“5. Was it the duty of the defendant to safely carry the plaintiff on its branch road to Camp 29 ?
“6. Was it error to exclude the evidence offered by the defendant ?
“7. Was the argument of plaintiff’s counsel reversible error ?
“8. Should the motion for new trial have been granted ? ”

We are of the opinion that a verdict should háve been directed for the defendant. Under the circumstances of this case the defendant owed no duty to the plaintiff to provide for his safety when riding elsewhere than in the caboose, and he must be held to have assumed the risk of any injury which occurred to him in consequence of his riding on the flat car. It is conceded that defendant was not a .common carrier of passengers, and the court so instructed the jury. Defendant was under no obligation to receive and carry any particular person as a passenger, or to carry passengers at all. If it chose to carry passengers, it had a right to determine where they should ride. It had determined in this case that passengers should be carried in the caboose alone, and not elsewhere, and had so instructed its conductors. The case is barren of evidence that defendant knew that its instructions were disobeyed, and that passengers were, even occasionally, carried on flat cars. That there was actual notice to defendant is not claimed, and the fact that plaintiff and a companion had once ridden upon a flat car falls far short of charging the defendant with notice of such a practice. The fact that the company received from its conductors money, a portion of which had been paid by persons riding on flat cars, was no evidence of notice to the company in the absence of some evidence to indicate its improper source. There is no such evidence in the record.

The plaintiff’s contract, as stated by himself, was that he was to be carried in the caboose to his destination. It might well be held that this contract was within the scope of the conductor’s agency, since he was authorized to and did carry passengers in the caboose on defendant’s railroad, and limitations of his authority to particular parts of the road were not known to plaintiff. But the conductor’s direction to plaintiff to finish his journey upon the fiat car was not within the scope of his agency. He was expressly prohibited from allowing passengers to ride upon the flat cars. The defendant did not permit passengers to ride upon its flat cars upon any part of its road. The flat cars were not designed for or adapted to the carriage of passengers, but for hauling logs, bark, and other products of defendant’s principal business. They were, in themselves, notice to all who saw them that they were not intended for the carriage of passengers, and the act of the conductor in directing the plaintiff to ride upon the flat car was obviously outside of the apparent, as well as the actual, scope of his agency. The case of Greenfield v. Railway Co., 133 Mich. 557, is distinguishable from the present case, in that the defendant was a common carrier of passengers, and there was evidence that defendant had waived its rule forbidding the carrying of passengers on freight trains without a permit. The judgment in the present case can only be sustained by holding that the agent had authority to bind his principal because the act was within the scope of his employment.

We are also of the opinion that, if the plaintiff had otherwise made a case, there was not sufficient evidence of negligence on the part of the defendant to authorize the submission of that question to the jury. Defendant put in testimony tending to show an inspection in the morning of the day in question of the car whose draught iron pulled out, and that the draught iron apparatus was in proper condition. The cross-examination of the inspector tended to discredit his testimony that he made an inspection. Assuming that the jury would be warranted in discarding his testimony, there would be no direct evidence in the case as to the condition of the draught iron apparatus at the time plaintiff entered upon his iournev. Neither was there any circumstantial evidence as to the condition of the apparatus at that time, unless the fact that the key and ring were missing was such evidence. It is conceded that the key must have been in its place up to the time that the caboose was switched out and left, since, otherwise, the car in question would not have followed the engine. It is contended, however, that it does not follow that the ring was in its place, and that there was no proof of any unusual concussion to account for breaking the key. As stated by plaintiff’s counsel:

“There was no jerk, no rapid running to break the key, and the key was not found by any of the witnesses, and was not produced upon the trial, although the roadbed was ‘ clear as the carpet ’ on the floor. If the key had been in there and secured, as it was designed to be, it could not have come out. There was no extra jerk or pull; in fact, no pull, but a slight one, to break it. The ordinary mind, from these circumstances, can conclude but one of two things: Either the key was not in its place and secure, or, if there, it was so worn or split as not to have strength enough to haul-these three empty flat cars, and an ordinarily careful inspection would have shown this.”

The only evidence as to a search for the key and ring limits the search to the track between the point of collision and the top of the hill, and the fact that no trace of them was found there indicates that the key must either have pulled out from lack of a ring to hold it in place, or have been broken between the top of the hill and the switch where the caboose was left. The engineer testified that he set the brake on his engine before pushing the cars up the grade from the switch.

“ And, when I set the brake there, the slack ran out, and the recoil from the springs, of course, they came back again, so that everything was in complete working order at that time.
Q. What was your idea in setting the brake on that occasion ?
“ A. Why, of course, to stop my train and to see that my brake was working all right before I went up that hill. * * *
Q. Now, in the operation of the train with this key through the end of the pin, as it would be when in proper position, any force applied to the train to separate the drawhead from the car — drawhead ar.i pin from the cars by cutting off of the key or the breaking out of the hole in the pin — whether or not it would cause such a jar or pull upon the train as to make the motion perceptible on the engine ?
“A. Why, I have seen these keys break before now when you would take a hard pull on them, and they would, apparently, be all right with you, the least little jerk would break them. In the course of time they will crystallize, the same as other iron will crystallize, and it is liable to snap right off. Then, again, it will wear a long time. It crystallizes the same as any shaft in the mill will crystallize in a box and break.
“Q. How long, in your judgment, will a key, or piece of iron used as a key in the end of a draw pin, continue in that position at the ordinary work and usage that it receives — remain before this crystallization that you speak of takes place ?
“A. That is a very hard question to answer.
Q. Well, there is a minimum length of time and a maximum ?
“A. Well, not that I really know, sir; but I have had experience with different pieces of steel and I have seen them crystallize in a very short time; then, again, they would run for years before they would crystallize.
Q. When this crystallization takes place, is it apparent to a person of experience in the handling of steel or iron ?
“A. No; it is not. There can’t any one tell when it crystallizes, unless it opens a break. Then it shows in a certain way that it is crystallized.
“ Q. Could that be tested by taking it and pounding it —testing it with a hammer ?.
“A. Well, that might be all right if they would take it out and test it.
“ Q. When you say you have seen it break in a very short time, what would you call a short time ?
“A. Oh, three or four months.”

The plaintiff’s declaration does not allege a negligent failure to perform the duty of inspection, but charges negligence in undertaking to carry plaintiff upon a train with faulty and imperfect couplings between the cars, which would uncouple by the operation of the train. But failure to inspect would not render the defendant liable, unless there was proof of some defect which such inspection would have disclosed. Whether the key pulled out because there was no ring in it when the trip commenced; whether the ring spread or broke on the trip, so that the key could work out; whether the key was worn and weak or the metal crystallized, and it broke when the engineer set his brake and afterwards worked out — are questions for speculation, but questions to which the testimony presents no definite answer. We do not think the testimony justifies a reasonable inference that the couplings were defective in any specific particular which defendant ought to have discovered. The circumstances show that the absence of the key and ring may have occurred consistently with the performance of duty, and negligence cannot be inferred from such absence. Perry v. Railroad Co., 108 Mich. 130; Robinson v. Charles Wright & Co., 94 Mich. 283; Hall v. Murdock, 114 Mich. 233; Hennig v. Foundry Co., 112 Mich. 616; Griffen v. Manice, 166 N. Y. 188 (52 L. R. A. 922); Kincaid v. Railway Co., 22 Or. 35.

The judgment is reversed, and a new trial granted.

Grant, J., concurred with Blair, J. Montgomery, Ostrander, and Hooker, JJ., concurred in reversal on the first point discussed.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    VINCENT v. PORT HURON SAVINGS BANK.
    Banks and Banking — Savings Banks — Deposit—Payment—Producing Pass Book — Necessity.
    In this case, involving the right of a savings bank to require an administrator to give an indemnity bond as a condition of its paying a deposit belonging to his intestate, the pass book not being produced, a judgment for plaintiff is affirmed by a divided court; Mr. Justice Ostrander, with whom concur Chief Justice McAlvay and Justices Blair and Moore, writing for affirmance on the ground that section 6107, 2 Comp. Laws, is penal, and that “ good cause” for the nonproduction of the book was shown; and Mr. Justice Hooker, with whom concur Justices Carpenter, Grant, and Montgomery, writing for reversal on the ground that the statute and the rules of the bank created the contract between the depositor and the bank and that the bank had a right to insist on assurances satisfactory to itself before paying the deposit.
    Error to St. Clair; Tappan, J.
    Submitted October 12, 1906.
    (Docket No. 81.)
    Decided March 12, 1907.
    Assumpsit by Edward L. Vincent, administrator of the estate of Fannie Slater, deceased, against the Port Huron Savings Bank to recover the amount of a deposit. There was judgment for plaintiff, and defendant brings error.
    Affirmed by a divided court.

      Stevens, Graham & Stevens (William T. Mitchell, of counsel), for appellant.

      Carl A. Wagner, for appellee.
   Hooker, J.

The defendant, having a savings deposit standing on its boobs in the name of Fannie Slater, to whom it had issued a pass book, in conformity to the custom of the bank, refused to pay the amount in its hands to her administrator, unless he should produce the pass boob, or give the bank a bond securing it against loss from such payment. Thereupon the administrator commenced this action to recover the amount. The cause was tried without a jury, and a judgment was rendered in favor of the plaintiff. The case is here on error at the instance of the defendant.

Counsel’s brief does not point out the assignments of error relied on, as required by Supreme Court Rule No. 40. Its discussion is confined to the question:

“ Whether, under the circumstances, the cashier was justified in requiring security against loss to the bank before paying the money to the plaintiff.”

To determine this question we must look to the findings of fact to ascertain the circumstances. According to the findings, Fanny Slater became a depositor in the defendant’s bank on August 20, 1883, receiving a pass book from the savings department, and continued a depositor to the time of her death, on June 6,1905. Her balance on deposit on February 6, 1906, was $530.75. The last deposit of principal made by her was November 15, 1887. The last withdrawal of cash was December 30, 1903. Immediately after her death her friends took charge of her home and made search for valuables. Repeated searches have failed to find the bank book. Vincent was appointed administrator of her estate on August 25, 1905. After demand of the balance he showed defendant’s officers a certified copy of his letters of administration, and tendered a properly executed check, signed by him as administrator, for the balance. Defendant’s officers acknowledged that the bank had the deposit, but refused to pay over the balance unless plaintiff should execute and deliver to the bank a bond to indemnify the bank against loss and expense on account of any demand that might thereafter be made by a claimant who should produce the book. The defendant claims that its by-laws and the statute under which it was organized justify the refusal, and preclude plaintiff’s recovery in this action.

The statute (sections 6115 to 6133, 3 Comp. Laws) provides: That savings banks shall pay their depositors, when required, at such times and with such interest, and under such regulations, as the board of directors may prescribe, which regulations shall be printed, etc. Section 6115.

That a pass book shall be issued containing the rules and regulations, and no payment or check against the savings deposit shall be made, unless accompanied by, and entered upon, the pass book, except for good cause, and on assurances satisfactory to the officers of the hank. Section 6117.

The following rules were in force and printed on the pass book:

“Rule 8. It shall be the duty of the cashier to receive all deposits and payments of money to the bank and to pay out all sums of money properly drawn by depositors and enter the same in the books of the bank and for such purpose he shall see that proper receipts are given to the bank for all payments and that each depositor’s name is properly signed in the signature book of the bank.
“He shall deliver to each depositor a pass book, in which the sum paid or received by him shall be entered, and which shall be his or her voucher and the evidence of his or her property in the institution.
“Rule 13. On making the first deposit, the depositor shall be required to subscribe his or her name in the signature book of the institution, thereby signifying his or her assent to the regulations and by-laws of the bank.
“Rule 17. * * * Money shall only be drawn out by the depositor, or some person legally authorized by said depositor; but no person shall receive any part of his or her principal or interest without producing the original book, that such payment may be entered therein.
“ Rule 19. On the decease of any depositor the amount standing to the credit of the deceased shall be paid to his or her legal representatives when legally demanded.
“Rule 31. The cashier will endeavor to prevent frauds, but all payments made to persons producing a deposit book or duplicates thereof shall be deemed good and valid payments to the depositors respectively.”

Counsel for the appellant contend that rule'17 is authorized by 2 Comp. Laws, § 6117, and that under that rule there is no obligation to pay until indemnity satisfactory to the bank shall be furnished. That a depositor is bound by the by-laws of the bank is settled by many cases. They are a part of the contract. See 2 Morse on Banks & Banking (4th Ed.), § 620, and cases cited; Allen v. Savings Bank, 69 N. Y. 317; 24 Am. & Eng. Enc. Law (2d Ed.), p. 1255. If we give the least possible effect to the statute, we must say that it gives to the bank a right to l’efuse payment until it receives reasonable assurances that it may safely pay, while the by-law amounts to a contract with the depositor that it need not pay without the production of the pass book, if the depositor may make such a contract, and we see no reason why he may not. When we construe rule 17 in connection with the statute (section 6117, 2 Comp. Laws), in the light of the rule that a forfeiture is not to be favored, we must conclude that the parties contracted that the bank should not be asked to pay without the production of the pass book, except in cases where a good excuse could be shown for its nonproduction, and then only upon satisfactory assurances. But we may omit the by-law from consideration, and the statute remains which permits, if it does not require, that the bank shall withhold a payment demanded without production of the pass book that entry may be made, in the absence, first, of a good cause for the nonproduction, and second, reasonable assurance of safety in making payment. The question here is not whether a bank may demand a bond, in all such cases, but whether, under the proofs, the bank was bound to be satisfied by the ex parte representation made about a matter of the truth of which it could have no means of knowledge. The bank has,not refused to be satisfied, and its suggestion of a bond is consistent with a bona fide effort to relieve the administrator from an embarrassment, rather than an intention to take advantage of the situation to retain money not belonging to it.

The case of Mahon v. Savings Institution, 175 N. Y. 69, turned upon by-laws alone, which differed from the by-laws of this bank, and furthermore it involved no such statute as this case does. Had the statute not contained the provision as to assurances, there would be more opportunity for the claim that the bank must pay upon demand accompanied by a reasonable excuse for the nonpresentation of the book; but that provision appears to contemplate, not only a good reason, but something by way of assurance to the bank. We construe that to mean assurances that should satisfy the bank, and that means something more than ex parte prima facie evidence that the person has a right to demand and receive the money. This statute is not complied with by the presentation of assurances which are unsatisfactory to the bank, so long as the bank acts reasonably and in good faith. In this case it is claimed that the bank is in doubt whether the administrator is lawfully entitled to this deposit, and it asked indemnity against loss through claims by others. No clear evidence appears that Fannie Slater owned this deposit when she died, and the book was not found. Under the circumstances the plaintiff failed to prove a cause of action against the bank. While it may be inferable that the proof showed a prima facie case of ownership by Fannie Slater at her death, and that the judge must have so found, or he would not have rendered a judgment for the plaintiff, that is not sufficient to justify such judgment. Were Fannie Slater alive, making claim to the money, she would not only be required to excuse the nonproduction of the book, but she would also be required to comply with the other provision of the statute. The administrator is in no better position. Yet he has made no effort to discharge that obligation, by giving a bond of indemnity, or any other satisfactory assurance. We cannot dispose of this case on the ground that it may be difficult for depositors to comply with these rules. Courts can neither make contracts nor relieve parties from the hardships of their valid agreements..

The judgment should be reversed, and a new trial ordered.

Carpenter, Grant, and Montgomery, JJ.., concurred with Hooker, J.

Ostrander, J. I think the judgment should be affirmed. Section 611?, 2 Comp. Laws, is a part of a statute regulating the business carried on by banks organized under the laws of this State. The statute is penal (section 610?), and the provisions here in question require banks receiving savings deposits to refuse to pay them, even to the owner, unless the pass book is produced, except for good cause and on assurances satisfactory to the officers of the hank. The reason for this legislation is not, perhaps, important here, although it must be assumed that the reason was not mere convenience of the bank. A bank, like any other debtor, can discharge its debt by paying it to the creditor or to some person by his order. It will not be required to pay the debt a second time simply because it violated the statute at the time of making the first payment. If the bank is charged with violation of the statute in paying a deposit without having the pass book presented, its defense — excuse—must be accepted or rejected in view of all the circumstances disclosed. “Good cause” and “satisfactory assurance” must be determined, not by the officers of the bank, but by judicial triers. So, when it asserts, as reason for nonpayment- of a deposit, the nonproduction of the pass book, the insufficiency of the cause shown and of the assurances offered, the question is one for judicial triers. The facts that the depositor is dead, that the demand is made by a duly qualified administrator of the depositor’s estate, that the pass book is not negotiable, that no other demand is made, that several months have intervened the death and the demand, and, last but not least, that, so far as discharging the debt is concerned, payment to the depositor, with no notice of an assignment of the debt, would protect the bank, are all of them-facts to be used in testing the sufficiency of the excuse made. • Assuming that the bank may set up the statutory regulation, in such a case as this, I am of opinion that the evidence warranted the finding that good cause for not producing the pass book was shown, and that the facts furnish the satisfactory assurances necessary to defeat a prosecution for violation of the statute, and to defeat a recovery by any person who may hereafter apply for the money.

Rules of a bank are usually adopted for the convenience of the bank: Undoubtedly, the rules of the defendant bank are evidence of the contract between the depositor and the bank. Rule 17, if literally enforced, would deprive a depositor of his money, if he could not produce his pass book. The case of a lost or misplaced book is not provided for in the rules. No one will assert that, if a pass book is produced, no duty rests upon the bank to use some care to ascertain that it is produced by a person having the right to the deposit. So that, notwithstanding the rule, mere production of the pass book will not require the bank to pay to the holder. An assignee of the debt — of the deposit — must, in any case, produce evidence of the assignment to himself. If rule 17, treated as a part of a contract between bank and depositor, is unreasonable as applied to the case of a lost, or apparently lost, pass book, no assignee of the fund, with notice of the rule, has the right to rely upon it absolutely, and to say he purchased the debt and took the book assuming that no one but the holder of the book could obtain the deposit. See Ackenhausen v. Savings Bank, 110 Mich. 175 (33 L. R. A. 408); Mahon v. Savings Institution, 175 N. Y. 69. If he has not this right, he is relegated to the position of the assignee of a chose in action which the debtor pays, before notice of the assignment, to the creditor. At most, such a position is bettered, if at all, by the statute requirement, and, as I have already stated, good cause has been shown, and the facts amount to reasonable assurances within the meaning of the statute.

McAlvay, C. J., and Blair and Moore, JJ., concurred with Ostrander, J.


author: Blair, J.

text:
    PEOPLE v. THOMPSON.
    1. Intoxicating Liquors — Local Option — Criminal Prosecution — Evidence—Admissibility.
    On the prosecution of a registered pharmacist for keeping a drug store for the unlawful sale of liquor in violation of the local option law, it appearing that he sold liquors to persons who stated they wanted it for medicinal use, testimony by such persons as to the use made by them of the liquors so purchased, as to which respondent had no knowledge,is inadmissible. Grant and Moore, JJ , dissenting.
    2. Same — Sales by Druggists — Beports—Failure to Make— Effect.
    Failure of a druggist, keeping a drug store in a local option county, to comply with section 25, Act No. 183, Pub. Acts 1899, requiring reports to the prosecuting attorney of sales of liquor, does not render a sale otherwise lawful, unlawful, though failure to comply with such statute, together with other evidence, would be some evidence of the illegality of the sale.
    3. Same — Beport—Beoord—Distinction.
    Failure of the report of a druggist to the prosecuting attorney, required by section 25, Act No. 183, Pub. Acts 1899, to comply strictly with the law, is not evidence that the record required by section 5381, 2 Comp. Laws, was not jiroperly kept.
    4. Same — Instructions—Good Faith.
    An instruction requiring that a druggist act in “perfect good faith ” in selling liquor to persons who state to him that they require it for a purpose not prohibited, creates a standard of good faith greater than the law requires.
    Error to Van Burén; Des Voignes, J.
    Submitted October 18, 1906.
    (Docket No. 166.)
    Decided March 12, 1907.
    John F. Thompson was convicted of violating the local option law, and sentenced to pay a fine of $200 or in default thereof to imprisonment in the county jail not ex ceeding 60 days.
    Reversed.

      Cook & Chandler ( T. J. Cavanaugh, of counsel), for appellant.

      Bussell M. Chase, Prosecuting Attorney, for the people.
   Blair, J.

The respondent, Thompson, was prosecuted for and convicted of keeping a drug store in the village of Covert, in Yan Burén county, for the unlawful sale of liquors in contravention of the local option law in force in said county. The respondent was a registered pharmacist and had complied with the provisions of the law authorizing sales of liquors by druggists. The people, to maintain their case, offered in evidence reports of respondent to the prosecuting attorney, made and filed under section 25, Act No. 183,of the Public Acts of 1899, covering the period from January 2d to the 1st of October, 1905, showing various sales of whisky and beer to various persons. In many instances the names of the purchasers were given by initials and not in full, as required by the statute, and in some instances, the quantity of liquor was not specified. In all instances, the purpose of the sale was stated to be for medicine. The people also called several of the witnesses named in the reports, who gave evidence tending to show that they purchased the whisky or beer of respondent at different times within the period of the reports, and the use to which the liquor was put. These reports, against respondent’s objection, were all delivered to the jury for their consideration, although as to many of them no specific evidence was given. Respondent brings the record to this court upon writ of error, assigning 62 errors, upon all of which he relies. Many of the errors assigned are covered by previous decisions of this court and we do not deem it necessary to consider them. It is also contended by respondent that the court erred in permitting testimony to be given by purchasers of whisky or beer of the use made thereof after they had left respondent’s premises, and, so far as this record discloses, without any knowledge on his part of such use. This testimony should not have been permitted. The witnesses in question, who were called by the people, testified that they stated to the respondent that they wished to use the liquor purchased for medicine, and if the respondent sold the liquor, relying in good faith upon the statement of the purchaser, it was immaterial what purpose the purchaser put the liquor to after he had secured it.

Error is also assigned upon the following instructions:

“Now, I have read to you the statute wherein it appears that it is the duty of the druggist to record the full name of the purchaser, and if you find the fact to be that the druggist did not record the full name of the purchaser, as required by the law, I instruct you that such sales would be illegal sales, and that such record would not have been kept or made in compliance with the law.
“In construing this statute, gentlemen, I charge you, as a matter of law, that the full name means just what the statute implies; that is, if the full name of a Mr. Spivey is John Y. Spivey and it should be written J. Y. Spivey, that would not be his full name and would not be a compliance with the statute. This is true of each and every sale where you find the full name of the purchaser was not recorded. If you find such to be the fact, and in each and every instance where such full name of the purchaser was not recorded such sale would be an illegal sale, and if the jury find that there were any material number of such illegal sales, then I instruct you that the respondent would be guilty as charged in the indictment, with keeping a place in violation of law.”

Although this portion of the charge apparently refers to the record required to be kept by druggists by section 5381, 2 Comp. Laws, such records were not introduced in evidence, and the statute read by the court was section 25 of Act No. 183 of the Public Acts of 1899, which reads as follows:

“Sec. 25. Every druggist keeping a drug store in any county adopting prohibition under this act shall make, and swear to or cause to be made and sworn to, a true written or printed statement signed and duly sworn to, by himself or his clerk, on Monday of each and every week, giving the full name and residence of every person procuring liquor at his drug store during the last week, the kind and quantity of liquor procured, and the date of procuring the same and the object for which each purchase was made, and on such Mondays shall deliver or mail, prepaying the postage thereon, the same to the prosecuting attorney of the county where such store is situated, who shall preserve the same in his office, and all such statements shall be open to inspection to all citizens.”

Inasmuch as the reports did show a material number of sales reported by initials to the prosecuting attorney, this instruction was, in effect, a direction to find the respondent guilty. Whatever may be said of the record required to be. kept by section 5381, 2 Comp. Laws, we think it clear that a failure to comply with the provisions of section 25 referred to by the court does not of itself make the sale illegal. This report is not made contemporaneously, is not required to be a copy of the record kept by the druggist, but is an independent report of sales made to the prosecuting attorney, for the apparent purpose of furnishing a public record from which all persons interested can ascertain whether the provisions of the law regulating sales by druggists are being observed. While a violation of the provisions of this section would subject the offender to punishment therefor, it would not of itself render a sale which was theretofore legal unlawful. We do not intend to intimate that a failure to comply with the provisions of section 25 would not be some evidence, in connection with other evidence, tending to show the illegality of a sale, but we do hold that such violation is not conclusive of the illegality of such sale. No evidence was introduced of the record kept by the druggist, and we cannot say from this record that the entries on the druggist’s book were not kept as required by law. Section 5381, 2 Comp. Laws, does not require, in express terms, as does section 25 of Act No.. 183 of the Public Acts of 1899, that the full names of persons applying for liquor shall be recorded, and. it may be, although we do not decide this point, that the recording of the name by initials would be sufficient under said section 5381.

Complaint is also made of the following instructions:

“If he sells intoxicating liquors indiscriminately and for a beverage, he is liable under the law, and under this indictment. A druggist is not necessarily excused from liability because the purchaser states to him that the liquor is for medicinal, sacramental, mechanical, or scientific purposes. It is his duty to make such sales in perfect good faith — mark the language; not good faith, but perfect good faith.”

We think the court went too far in this instruction. All that is required of a druggist is good faith, and there are no degrees of good faith. If the court had not emphasized the requirement of perfection of good faith as shown by the language quoted, but had confined himself to saying that perfect good faith was required, a different question might be presented; but by expressly making the distinction, the tendency was to create in the minds of the jury a standard for determining the good faith of respondent’s sales which was greater than the law required.

We have examined with care the other assignments of error, but we do not think them well founded. With the exception of the errors which we have pointed out, we think the case was properly tried and submitted.

The judgment is reversed, and a new trial granted.

McAlvay, C. J., Carpenter, Montgomery, Ostrander, and Hooker, JJ., concurred with Blair, J.

Grant, J. Respondent kept a drug store in the township of Covert, in the county of Van Burén. He was indicted by the grand jury of that county for keeping a place, to wit, a drug store, where intoxicating liquors were sold in violation of the local option law which was in force in that county. The time covered by the indictment was from the 2d day of January to the 1st,day of October, 1905. No specific acts of sale were alleged in the indictment.

In view of the questions raised, a fairly full statement of the evidence on the part of the people is essential. The defendant offered no testimony in his own behalf, except that of one witness, as hereinafter stated. The evidence on the part of the people showed repeated and continuous sales, day after day, to certain persons in considerable quantities. In some instances the sales were several times a day to the same person. The weekly reports required by law to be made by the druggist to the prosecuting attorney were introduced in evidence and submitted to the consideration of the jury. One excerpt from the evidence will serve to show the character of these sales. The reported sales were to one Rodney Holston, and were as follows:

“June 1st, one quart of whisky. June 5 th, 3 quarts beer. Again, June 5th, 3 quarts of beer. June 9th, 2 quarts of beer. June 10th, 3 quarts of beer. June 10th again, 6 ounces whisky. June 14th, 3 quarts beer. June 16th, 1 quart beer. June 16th again, 2 quarts beer. June 19th, 16 ounces whisky. June 20th, 3 quarts beer. June 20th again, 3 quarts beer. June 22nd, 3 quarts — no designation as to what it was. June 23d, 3 quarts beer. June 24th, 1 quart beer. June 26th, 12 ounces whisky. June 26th again, 8 ounces whisky. June 28th, 1 quart beer. June 30th, 3 quarts beer.”

In a number of the sales the name of the purchaser was not stated in full as the law requires. In some instances the quantity of liquor sold was not stated.

The prosecution proved beyond doubt from several purchasers that the liquor was not purchased for any of the purposes permitted by the statute. One witness testified as follows:

Q. Did you purchase three quarts of beer on June 14, 1905?
“A. Well, I bought beer there different times, a good many times, but I couldn’t tell you the dates.
Q. About how frequently were you in the habit of buying beer there ?
“A. Ob, I have been in there once or twice a day.
Q. Once or twice a day ?
“A. Yes.
Q- You may state whether or not you bought that for medicinal purposes.
“A. Yes,sir.
Q. That is, I mean what you represented to him ?
“A. Yes, sir.
Q. What did you do with that beer ?
“A. Why, I drank what I wanted. I took a drink of it when I wanted it. * * *
Q. When you switch off from whisky to beer, about how much beer do you think as a general thing you require ?
“A. Not over a bottle of beer at a time.
Q. Well, about how many times a day do you require that bottle ?
“ A. Three or four.”

Another witness testified that he purchased both whisky and beer — purchased whisky most.

“ Q. When you made these purchases will you state what the purchases were for ?
A. Why, for medicine principally.
Q. Well, now, will you explain what you mean by principally ?
“A. I used a little around the barn for different purposes.
Q. Well, now, I want to ask you this question: Are you troubled with any disease or difficulty which requires the use of liquor ?
“A. Nothing more than my appetite. * * *
Q. About how long would three quarts of beer last you as a rule for medicinal purposes ?
“ A. Oh, I might drink that in the forenoon. If I had a lunch at dinner time I sometimes drank beer with my lunch.”

Another witness, a hotel keeper, testified that he made purchases of intoxicating liquors for medicinal purposes.

“Purchases were made partly for guests at the hotel, who might have need of it. * * *
Q. What difficulty was you suffering with that required the use of this amount of beer for medicinal purposes ?
“A. Why, nothing particularly. I suppose to get up an appetite. I bought it and drank it because I liked it.”

Respondent called but one witness in his defense, and he was examined solely upon the “ reputation of the store being a quiet, orderly, well and lawfully conducted store.” Respondent made no explanation of these sales, or the unquestioned violations of the law in making his reports to the prosecuting attorney. The record contains all the evidence produced in the case.

Was it competent to show that the liquors sold were in fact bought by the purchasers and used by them as a beverage after they had taken them away from the respondent’s drug store ? Counsel cite no authorities upon this question. After a somewhat careful search I have been unable to find any. There are cases where the use to which the liquor was put after the purchase was shown, but no objection was made to its admission. The secret intent of the purchaser is of course immaterial. The question always is: Did the vendor act in good faith? This question must be answered from the surrounding circumstances and the facts of each case. There will be cases where the question becomes one of law, and the trial court will be required to determine whether there is any evidence to show lack of good faith. In State v. Blair, 72 Iowa, 591, it is said:

“There was evidence tending to prove that many of the sales proven were made by defendant upon the naked statement of the purchasers that they desired the liquor for mechanical purposes. Now, when a man states that he desires a bottle of beer, or a quart of whisky or blackberry wine, for mechanical purposes, as was frequently t'he case here, a question may arise fairly as to whether he is telling the truth as to the use to which he intends to put it. At all events it was for the jury to say whether defendant did exercise reasonable diligence to ascertain whether the liquor was in fact intended for that use when he made the sales upon that naked statement.”

In Haynie v. State, 32 Miss. 400, it was held that the mere declaration of the vendee that he wanted the liquor for medicinal purposes was not sufficient to protect the druggist in the sale. The same rule was held in State v. Knowles, 57 Iowa, 669. In Heintz v. Le Page, 100 Me. 542, it was held that knowledge of the purpose for which the liquors were sold clearly appeared from the size of the invoices. In some jurisdictions where the sale is made under the privilege granted to a druggist by the law, it is held that thé burden is upon him to show that he has sold within the privilege. Black on Intoxicating Liquors, § 210. If the druggist openly sells the liquor as a beverage, the fact that it is afterwards used as a medicine does not relieve him from his criminal liability, and its use after the sale is immaterial. But does that rule hold where the charge is that the liquor is sold ostensibly as medicine, but in fact as a beverage, and where the charge is that the respondent keeps a place for the sale of intoxicating liquors as a beverage ? I think not.

It was necessary in this case for the jury to find that the respondent sold the liquor knowing, or having good reason to believe, that the purchasers did not desire it or buy it for medicinal purposes. The circumstances, as hereinafter shown, should certainly have put a reasonably prudent man upon further inquiry. I think it was competent to show that the liquor sold was used for illegitimate purposes. It would certainly have been competent for the respondent to show that the liquor was in fact used for medicinal purposes. He could have shown that a physician prescribed its use as a medicine for the various applicants. If, in addition to such evidence, the respondent himself had testified that he acted in good faith and in the belief that he was selling the liquors for medicinal purposes, he would have been entitled to an acquittal. The charge is not that of making an individual sale, it is of keeping a place for sale as a beverage. I think it was competent to show the use made of the liquors after sale. The court should instruct the jury what consideration, under the circumstances of each case, should be given to such testimony. Under the undisputed facts, the same men, day after day and sometimes two or three times a day, purchased intoxicating liquors upon the bare statement that the purchaser desired them for medicinal purposes. No other inquiry was made; no questions asked of the proposed purchaser; in short, no effort made on the part of the respondent to inform himself. When these witnesses were questioned in court they readily testified that they did not buy the liquors for medicinal purposes. An inquiry by the respondent would probably have elicited the same facts that the witnesses testified to in court. Probably no jury of honest men would, under such a state of facts, have acquitted the respondent. To do so would virtually render the statute of no effect, and permit the existence of saloons under the guise of drug stores.

While the distinction between good faith — the perfect good faith — is somewhat shadowy, yet inasmuch as the authorities seem to have settled that good faith is all that the law requires, and that that good faith requires the druggist to take reasonable measures to ascertain the character of the proposed sale, I am inclined to concur with my Brother Blair that the court unduly emphasized the good faith with which the respondent was required to act.

I think the plain inference from the charge is that the presiding judge read to the jury not section 5381, 2 Comp. Laws, of the liquor law, but that he read section 25 of Act No, 183 of the Public Acts of 1899, which requires weekly reports to the prosecuting attorney, and that all his comments were based upon the latter statute. He prefaced the reading of the statute with the following:

The statute requires the druggist each week to make a report to the prosecuting attorney, stating the details of the sales of liquors by him during the preceding week. The language of that statute is as follows.”

He then read the statute, not section 5381, but section 25 of Act No. 183, Pub. Acts 1899. The use of the word “ record,” in his subsequent instruction, was, in my judg ment, used in reference to the reports to the prosecuting attorney, and not to the record which the other law required him to keep in his store. The error, if any, in this part of the instruction, is that wherein he instructed the jury that:

“If the jury find that there were any material number of such illegal sales [i. e., sales without entering the full names in the reports], then I instruct you that the respondent would be guilty as charged in the indictment with beeping a place in violation of law.”

There were several sales in which the purchasers reported to the prosecuting attorney by initials instead of the full name. Under the instruction the jury may have found the respondent guilty on this ground alone. I agree with my Brother Blair in holding that the report by initials, made perhaps a weeb after the sale, does not render a sale, otherwise in compliance with the statute, illegal.

"Moore, J., concurred with Grant, J.


text:
    SWICK v. ÆTNA PORTLAND CEMENT CO.
    1. Master and Servant — Scope of Employment — Evidence.
    An “oiler, sweeper and grinder in the wet end” oí a cement factory, whose testimony shows that he was expected to do whatever he should be directed to do about the place, held, not ordered to do work -not within the scope of his employment when ordered to open a cock in an air pipe with a wrench, a duty he had performed before, and with which he was familiar. Per Hooker and Carpenter, JJ.
    2. Same — Safeguarding Dangerous Places — Duty of Master —Statute—Factory Inspector.
    Section 5349, 2 Comp. Laws, makes it the employer’s duty to safeguard all gearing and belting in his factory, irrespective of whether such safeguards have been ordered by the factory inspector. Per Hooker and Carpenter, JJ.

      3. Same — Personal Injury — Proximate Cause — Unguarded Belt.
    In an action by a servant for injuries caused by his slipping while applying a wrench to a cock in a pipe, and falling upon an unguarded belt, evidence examined, and held, that it could not be said that the slipping of the wrench or other cause than the absence of the guard was the proximate cause of the injury. Per Hooker and Carpenter, JJ.
    4. Same — Assumption of Risk — Statutory Duty.
    As the assumption of risk is the result of a contract of employment, and the master cannot legally contract to violate a statute, the servant does not assume the risk due to an omission of a statutory duty on the part of the master. Per Hooker and Carpenter, JJ.
    5. Same — Contributory Negligence.
    The rule that deprives the employer of the defense of assumption of risk, in cases where he has omitted a statutory duty with respect to safeguarding dangerous places to work, does not extend to the defense of contributory negligence, since assumption of risk may be a defense in cases where there is no contributory negligence. Per Hooker and Carpenter, JJ.
    6. Same — Question for Jury.
    In an action by a servant for injuries caused by his slipping into an unguarded belt, evidence examined, and held, that whether he was guilty of contributory negligence in falling into the belt was a question for the jury. Per Hooker and Carpenter, JJ.
    Error to Genesee; Wisner, J.
    Submitted November 14, 1906.
    (Docket No. 134.)
    Decided March 12, 1907.
    Case by Andrew D. Swick against the ¿Etna Portland Cement Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Fred L. Vandeveer, for appellant.

      W. E. Scott and Brown & Farley, for appellee.
   Hooker, J.

The defendant appealed from a judgment in favor of the plaintiff. The error alleged is the refusal to direct a verdict for the defendant.

The plaintiff was a workman in defendant’s cement factory. Beneath the floor were vats, the contents of which required agitation. This was effected by the introduction of compressed air conducted to the several vats through iron pipes laid upon the floor, cocks in the pipes being used to cut off the air. On the occasion of the accident the plaintiff was directed to get a wrench and open the cock in the pipe leading to one of the vats. He attempted this, sitting down upon his feet with his back to a large belt running upon pulleys, three and four feet in diameter, respectively. The cock was not easily turned, and in the effort made by the plaintiff to open it, his feet slipped on the greasy floor, or the wrench slipped off and from the cock, or he lost his balance in some other way, and fell across the belt between the pulleys, and was carried by the belt to one of the pulleys and injured. This belt, 10 inches wide, ran upon pulleys located near the floor. A guard over the belt, consisting of a sort of cage made of scantling and boards, had been used, but was temporarily taken away a day or two before the accident to permit the removal of a motor, and was not in place on this occasion, and there was testimony tending to show that the plaintiff did not know of or notice its absence.. The negligence claimed was:

(1) That plaintiff was ordered by the defendant’s foreman to do work not within the scope of his employment, the hazards of which were unknown and were not disclosed to him; (2) that the accident was due to defendant’s violation of the law requiring that the belt be guarded; (3) that a reasonably safe place to work was not furnished the plaintiff.

The following are the grounds relied upon, in support of defendant's motion to direct a verdict:

“First, because the plaintiff was not required to perform services outside of the scope of his employment; second, that the risk to the plaintiff was assumed; third, that the plaintiff was guilty of negligence to such an extent as to bar and preclude a recovery; fourth, that the negligence, if any, was that of a fellow-servant, which would bar a recovery; fifth, that the accident was one unprecedented in the knowledge of the defendant, and, therefore, there was no negligence in failing to provide guards for such an emergency; and, sixth, that the proximate cause of the plaintiff’s injury was the slipping of the wrench, permitting him to lose his balance and fall between the belt and pulley, rather than the allegations set forth in the declaration.”

Scope of Plaintiff’s Employment.

The plaintiff testified that he was employed as an “ oiler, sweeper, and grinder in the wet end.” The wet end was that portion of the factory devoted to the vats, and was where the accident happened. While in one place in his testimony he used language implying that opening this cock was not expected of him when he was employed, his whole testimony shows beyond cavil that he was expected to do whatever he should be directed to do about the place, and that he so understood his employment and acted accordingly. He had been called upon to open these air cocks before and did so. He knew the greasy character of the floor about the vats, and was entirely familiar with the machinery pulleys and belt, oiling the machinery and shafting, and sweeping and cleaning up the place often. We think it conclusively shown that he was acting within the scope of his employment, and that he was not called to do work that he was not familiar with, and the ordinary dangers of which he did not understand.

Violation of Law.

It is contended that the defendant violated the law in that it neglected to cover or guard the belt and pulleys as provided by 2 Comp. Laws, § 5849, and therefore that it cannot assert the assumption of risk by plaintiff as a defense :

" It shall also be the duty of the owner of such factory, or his agent, superintendent, or other person in charge of the same, to furnish or supply, or caused to be furnished and supplied, in the discretion of the factory inspector, where machinery is in use, proper shifters or other mechanical contrivances for the purpose of throwing belts on or off pulleys. All gearing or belting shall be provided with proper safeguards, and wherever possible, machinery shall be provided with loose pulleys. All vats, saws, pans, planers, cogs, set screws, gearing and machinery of every description shall be properly guarded, when deemed necessary by the factory inspector.”

The defendant insists that this is not so, inasmuch as a guard had not been ordered by the factory inspector, while plaintiff’s counsel urge that the requirement to safeguard pulleys and belts is not limited to cases where ordered by the factory inspector. The cases of Borck v. Nut Works, 111 Mich. 130, and Monforton v. Brick Co., 113 Mich. 43, are cited by defendant’s counsel as sustaining their contention. We are of the opinion that they cannot be held to be controlling for the reason that neither case deals with this statute. The former case turned upon two sections of 3 How. Stat., viz., sections 1997c6 and 1997c7. They read as follows:

“1997c6. Sec. 5. It shall be the duty of the owner of such factory, mercantile industry or manufacturing establishment, or his agent, superintendent or other person in charge of the same, to furnish and supply, or cause to be furnished and supplied, in the discretion of the inspector, where dangerous machinery is in use, automatic shifters, or other mechanical contrivances, of throwing on or off belts or on pulleys; and no minor under fourteen years of age shall be allowed to clean machinery while in motion. All gearing and belting shall be provided with proper safeguards.
“1997c7. Sec. 6. That if the heating, lighting, ventilation or sanitary arrangement of any shop or factory is such as to be injurious to the health of persons employed therein, or that the means of egress in case of fire or other disaster is not sufficient or in accordance with all the requirements of law, or that the belting, shafting, gearing, elevators, drums and machinery in the shops and factories are located so as to be dangerous to employes, and not sufficiently guarded, or that the vats, pans or structures filled with molten metal or hot liquid are not surrounded with proper safeguards for preventing accident or injury to those employed at or near them, after due notice of such defect, said proprietors or agents shall be deemed guilty of violating the provisions of this act.”

They were a portion of an act passed in 1889 (Act No. 265, Pub. Acts 1889) under the title—

“An act to regulate the employment and provide for the safety of women and children in mercantile industries and manufacturing establishments, and to provide for the enforcing of the same, and other acts providing for the safety and regulating the employment of said persons.”

This act is now found in 2 Comp. Laws, §§ 5365 to 5372, inclusive; sections 5369 and 5370 corresponding with sections 1997c6 and 1997c7.

The case of Monforton v. Brick Co., supra, involved another statute; i. e., Act No. 126, Pub Acts 1893. Sections 11 and 12 were the ones relied upon. They read as follows:

“ Sec. 11. It shall also be the duty of the owner of such factory, or his agent, superintendent or other person in charge of the same, to furnish and supply, or cause to be furnished and supplied, in the discretion of the inspector, where machinery is in use, automatic shifters or other mechanical contrivances for the purpose of throwing belts on or.off pulleys. All gearing and belting shall be provided with proper safeguard.
“ Sec. 12. It shall also be the duty of the owner of any manufacturing establishment, or his agent, superintendent or other person in charge of the same, to furnish and supply, or cause to be furnished and supplied, in the discretion of the inspector, where machinery is in use, belt shifters or other safe mechanical contrivances, for the purpose of throwing belts on or off pulleys; and wherever possible machinery shall be provided with loose pulleys; all vats, pans, saws, planers, cogs, gearing and machinery of every description shall be properly guarded. Exhaust fans shall he provided for the purpose of carrying off dust from emery wheels and grindstones, and dust creating machinery, whenever deemed necessary by the factory inspector. No female under the age of twenty - one years, and no male under eighteen years of age shall be allowed to clean machinery while in motion: Pro vided, That the exhaust fans aforesaid need not be provided in any manufacturing establishment before the end of six months from and after this act shall take effect.”

This act is not found in the Compiled Laws of 1897, leading to the inference that it may have been considered repealed. It has no importance in this discussion, except as it shows that the Monforton Case arose under a different statute than the one applicable to the present case, and one which clearly limits the statutory duty to cases where the factory inspector has determined the necessity of the safeguard.

In 1896, the act under which the present case is presented was passed. See Act No. 184, Pub. Acts 1895, and this is found in chapter 137, 2 Comp. Laws, though repealed and re-enacted in Act No. 113, Pub. Acts 1901, §§ 8, 18. The sections relied upon are 5349 and,5358. The ease turns upon the construction of section 5349. In Borck v. Nut Works, supra, section 1997c6 (2, Comp. Laws, § 5369) was held to be qualified by section 1997c7 (2 Comp. Laws, § 5370). In the statute which we are required to pass upon there is no section corresponding to 5370, which may be said to limit section 5349, and if we are to hold that the statutory duty depends upon action by the factory inspector, it must be upon a construction of section 5349, unaided by a section similar to 5370. The language of the section indicates a design to make the safeguarding of all gearing or belting, and the provision of loose pulleys where possible, a duty, without reference to the factory inspector, although a preceding sentence in the same section makes the duty of furnishing shifters, etc., dependent upon action by the inspector requiring it. The same may be said of the last sentence in the section, and perhaps this may have been intended to qualify the preceding sentence upon the subject of gearing. We need not pass upon that question. The last sentence is not inconsistent with the former sentence upon the subject of safeguarding belts.

We find it unnecessary to pass upon the question whether all belts wherever situate must be provided with safeguards or whether that question and the sufficiency of safeguards are questions which should usually be submitted to a jury, for the reason that under the uncontradicted proof this was a belt which was so situated as to require safeguards if any belt would require it, and there being no guards whatever, no question arises upon their sufficiency.

Proximate Cause.

We should not hold that the unguarded belt was not the proximate cause of the accident. Were we able to say that the guard consisted of two boards nailed to uprights, one below the level of the lower belt, and the other above the upper belt, we would be justified in saying that it conclusively appeared that the guard would have been no preventive of an accident of this kind had it been in its usual place, for it would be apparent that the plaintiff would then have fallen upon the belt between the boards, and would have been as certain to do so and to be carried to the pulley as he was in the absence of the guard; but the testimony was that the witness thought that “the guard was made out of scantlings, that is two pieces, and then I think there was a board running along the side, and a board over the top, and something around the bottom or part way down.” In his direct examination the witness said that he thought “one board was near the belt, within two or three inches of it.” Furthermore, some photographs were introduced, and while this particular guard was not shown in them, several guards over the gearing were shown. Their construction was similar to that described, and it is a significant fact that these had three strips on a side, one at the top, one at the floor, and another midway between them. This fact, taken in connection with the obvious inefficiency of a guard with no board opposite or between the upper and lower portions of the belt, and the improbability that so useless a cover was provided, justify an inference by the jury that this guard was similar to those shown in the photograph.

Nor should it be said that the slipping of the wrench and not the unguarded belt was the proximate cause of the injury. Manifestly, if this man had not fallen or slipped, or if something out of the ordinary had not happened, he would not have come in contact with the belt; but that is always the case where one is hurt by machinery, something happens which causes him to get against or into it, and this case is not distinguishable, in that respect, from Swoboda v. Ward, 40 Mich. 420, where a plaintiff stepped into some unguarded cogwheels. See, also, Ross v. Township of Ionia, 104 Mich. 324; Simons v. Township of Casco, 105 Mich. 588; White v. Township of Riley, 113 Mich. 295; Shaw v. Township of Saline, 113 Mich. 342.

Safe Place, Warning, and Assumption of Risk.

Plaintiff’s contention is that by reason of the absence of a guard over the belt the place where he was set at work was not a reasonably safe one. Ordinarily the burden of proving this is upon the plaintiff. See 4 Thompson on Negligence (2d Ed.), §§ 3864, 3865, 3866. He must show that the master has not exercised reasonable care and skill, to the end that the place where he requires his servant to perform labor shall be reasonably safe in view of the situation, circumstances, and use intended. 4 Thompson on Negligence (2d Ed.), §§ 3758, 3774, 3789. If we assume that the removal of the guard rendered the place not reasonably safe we must consider the question: Did the plaintiff accept the risk of the unguarded belt ? Counsel contend that the removal of the guard made it the duty of the defendant to warn him of its absence before directing him “ to get a wrench and open the cock in the pipe.” This duty of warning does not exist where the condition or danger is known, and, as said in 4 Thompson on Negligence (2d Ed.), § 4061:

“The master, owes no such legal duty to the servant in respect to dangers which are open, visible, and obvious to the comprehension of the servant, considering his years, experience, and understanding. In the case of an adult servant of sound mind, the rule is understood to be that when the dangers of the employment are visible, so that any man of ordinary intelligence, though not an expert, could not fail to see and comprehend them, an employer is under no legal obligation to warn the servant of their existence.”

Again:

“ If the master make changes * * * of which the servant is not aware, it is his duty to instruct the servant as to the character of new risks to be run, unless they are open and visible, or such as by the exercise of ordinary care the servant will see.” Section 4066.

A long list of authorities will be found cited in the sections referred to, and they sustain the rule that:

“ Where the employe is not placed by his employer in a position of undisclosed danger, but he is a mature man doing ordinary work, he assumes such risks as are obvious, and negligence cannot be imputed to an employer for an accident therefrom.” Citing Kohn v. McNulta, 147 U. S. 241. 4 Thompson on Negligence (2d Ed.), § 4609.

The employer’s immunity by these authorities is not made to turn upon the fact that the employe did or did not take heed of the situation. The question is whether the changed condition or danger was obvious. See authorities cited.

Our own decisions are in harmony with .the above doctrine. Thus, in Schroeder v. Car Co., 56 Mich. 132, where a workman’s sleeve was caught in cogwheels, Chief Justice Cooley said, with the approval of his associates:

“ But a controlling fact in this case is that the plaintiff understood perfectly the exposure to which he was subjected, and needed to observe only ordinary care to avoid it.”

This case did not turn on the point of contributory negligence, but on the assumption of the risk of obvious and known dangers.

In Smith v. Car Works, 60 Mich. 501, where a laborer was killed by molten iron coming in contact with ice in a foundry, and the negligence charged was that a passage through which it was carried was so narrow as to be unsafe, the court said, on page 505:

‘ ‘ Of course, this rule would not require the employer to become responsible * * * for injuries * * * resulting from those dangers * * * which can be readily seen by common observation. ■ Such risks and the danger therefrom are always assumed by the servant when he engages in the service.”

In Kean v. Rolling Mills, 66 Mich. 277, where an employe was ordered to wipe the rolls of a machine on the wrong side, and he was injured, the court said:

“ There is no dispute as to the danger, * * * and it is difficult to understand * * * how he could have been ignorant of it. * * * The plaintiff when he entered the service of the defendant assumed, not only the usual and ordinary risks and perils of the service, but also such other risks as become apparent by ordinary observation.”

Many authorities are cited.

In Balle v. Leather Co., 73 Mich. 158, it was said:

“ It is well settled that a servant is held to assume the ordinary risks of the business upon which he enters, so far as those risks at the time of his entering upon the business are known to him,' or should be readily discernible by a person of his age and capacity, in the exercise of ordinary care. 1 Shearman & Redfield on Negligence, § 94. The same doctrine is laid down by this court in Swoboda v. Ward, 40 Mich. 423, and is too well settled to need further discussion.”

Mr. Justice Champlin used similar language in Fisher v. Railway, 77 Mich. 549. See, also, Toomey v. Steel Works, 89 Mich. 252; Wheeler v. Berry, 95 Mich. 250.

In Ragon v. Railway Co., 97 Mich. 265, we said:

“ The master has a right to expect him [the servant] to be alert to inform himself of existing conditions, and he cannot attack the master from the shelter of unjustifiable ignorance. * * * Actual ignorance will not alone suffice to charge a master; the ignorance must also be excusable.”

In the same case, Montgomery, J., said:

“It was further his duty to use reasonable carein examining his surroundings before attempting to uncouple the car.”

The same duty existed in this case. In Mackin v. Refrigerator Co., 100 Mich. 276, where a boy got his hand in knives of a machine, we said:

“ It does not appear from the evidence that there was a necessity for giving directions about the method of doing the .work, and the- most that could have been said to the boy was that he must keep his hands away from the knives, or he would get injured — a fact so patent that a much younger boy should know it.”

In Lamotte v. Boyce, 105 Mich. 545, we said:

“ The conduct of the business, including the exigency of the fire, made it necessary for the plaintiff to go upon the boiler. He did so without comment, when directed' by the watchman, apparently knowing just how to get there. Had the master himself been there, there would have been no occasion for him to caution the plaintiff that the post was short, for it was obvious, and the most ordinary familiarity with his surroundings could have apprised him of it. It was not the case of a latent or hidden danger, but one which was apparent to the casual observer, and therefore one which the employer had every reason to believe was" known by the plaintiff; and the accident was one for which the defendant should not be held liable.”

In Sakol v. Rickel, 113 Mich. 476, we applied the same rule, or that of contributory negligence, and it matters not which, to one who failed to notice so small a thing as a set screw, it appearing that he had opportunity, See, also, Peppett v. Railroad Co., 119 Mich. 640; Juchatz v. Alkali Co., 120 Mich. 654. In these cases it was the duty of the employer to keep the machines in safe condition ; but it was held that the defects were obvious to the plaintiffs with ordinary care, and therefore that they could not complain. See Middaugh v. Mitchell, 120 Mich. 581; Rohrabacher v. Woodard, 124 Mich. 125; Bauer v. Foundry Co., 132 Mich. 537; McDonald v. Steel Co., 140 Mich. 401.

In Welch v. Brainard, 108 Mich. 38, a case where a farm laborer was injured through undermining a stack of ensilage, we said:

“Every adult of ordinary experience must be held to know that ensilage, or any similar article, is to be expected to fall under such circumstances, and a farmer who hires a laborer to do farm work has a right to sup-, pose he knows and understands the law of gravitation. * * * Employer and employe understand that this practice is attended with more or less danger, and the latter assumes the risk, as one incident to the employment, when he consents to do such work in the face of an apparent danger. The defendant had no reason to suppose that plaintiff would be careless. The law does not impose upon the master the burden of this accident, and the court should have directed a verdict for the defendant, as requested.”

See, also, Hathaway v. Milling Co., 139 Mich. 708. Many cases of injuries from exposed machinery where this rule is applied will be found cited in 4 Thompson on Negligence (2d Ed.), § 4704. See Kelly v. Asphalt Co., 93 Ky. 367.

It is strenuously urged that this case differs from others because the guard had been removed without the plaintiff’s knowledge. In short it is claimed that the plaintiff’s right to recover rests on the proposition that he was so inattentive to his surroundings as not to notice that a belt 10 inches wide, running on pulleys 3 feet or thereabouts in diameter and from 10 to 14 feet apart, was not guarded, although he walked directly up to it, and turning around sat down so near it that when his wrench or feet slipped he .fell upon it, and that the master ought to expect and warn against such inattention. We need not speculate upon the question whether he really did fail to observe the belt. It is enough that under the authorities cited the defendant had a right to expect that he would see it, as it was obvious to the most casual observer, unless it be for the statute. We have said this much upon the general subject of safe place and duty of warning an employé because of plaintiff’s claim that, aside from any question arising upon the statute, his recovery can stand upon these grounds. We have no hesitation in saying that, under the proofs, the only reason for sustaining this judgment must rest on the statute.

Having reached the conclusion, however, that the defendant neglected the statutory duty of safeguarding this belt, we cannot hold that the plaintiff assumed the risks attendant upon the absence of the guard. This .question was passed in the case of Sipes v. Starch Co., 137 Mich. 258, where it was said by Mr. Justice Montgomery, following the case of Narramore v. Railway Co., 96 Fed. 298 (48 L. R. A. 68), that, as the assumption of risk is the result of a contract of employment, and as the master could not legally contract to violate a statute, he is not in a position to assert, as against the servant, the doctrine of assumption of risk, even in case the omission of the statutory duty is known to the servant. So in this case it must be said that the absence of this guard, under the circumstances shown, was a breach of the defendant’s statutory duty, and that the plaintiff did not assume the risk attendant upon its absence, for the reason that he could not lawfully contract with his master for the disobedience by the latter of a penal law', and we must therefore say that the plaintiff did not assume the risks that attended the absence of the guard, regardless of the master’s negligence, and although the plaintiff was free from any negligence contributing to the accident. It follows that at the least there was evidence tending to show that it was not a safe place upon which the jury might so find, as there was no evidence which would warrant the conclusion that the belt, unguarded as it was, would not be dangerous, if that would make any difference. If it be conceded, however, that the failure to comply with the statute was sufficient evidence of negligence (and it is the only evidence tending to show it), and that the plaintiff did not assume the risk attendant upon that negligence, we have still the question of contributory negligence to consider.

Contributory Negligence.

There are two classes of accidents which accompany negligent conditions. One is where'the injured employé is free from negligence; the other where he is not,- and where it can be said that, but for his own negligence, the negligence of the master might have caused him no injury. The law is generally understood to be settled to the effect that in the former class of cases the master is liable for the injury, and in the latter not. Manifestly, if it were the rule that there was assumption of risk only in cases where the employé had been shown to have negligently contributed to the injury, there would be no occasion for any doctrine of assumption of risk. Assumption of risk may be a defense in cases where there is no contributory negligence, and where more than ordinary care has been exercised by the employé, and where there may have been negligence by the master, as where he has an unsafe place or defective machinery. In such cases the immunity of the master has nothing else to rest upon except that the employé has contracted to assume the risk of those dangers, and therefore as to those, and to him, the employer is not negligent.

It is suggested in this case that inasmuch as it can be said that the plaintiff did not and could not assume the risk of the absence of these guards, we must go further, and say that this inability excludes the doctrine of contributory negligence. In other words, that, when the master neglects a statutory duty, he at once becomes practically an insurer against inj ury to which the neglect of statutory duty may have contributed. If this is upon the theory that to hold otherwise would be to deprive the employé of all benefits from the relief from the assumption of risk doctrine, it seems fallacious, and apparently has no better foundation than that as the master’s neglect of a statutory duty forbids him the benefit of claiming a contract that the employ é assumed the risk, the latter therefore has a right to assume that the duty has been performed, and owes no duty of care. There seems to be no better reason for saying this in a case where the duty neglected is statutory, than in one where a common-law duty to furnish a safe place or machinery, or to exercise ordinary care, has been omitted. It is to say that because the master and servant cannot lawfully contract for the assumption of the risk of a violation of a statutory duty the corresponding duty of care which the law imposes upon employés may be disregarded, and the right of the employé to rely upon it is forfeited by his neglect of the statutory duty. We know of no authorities supporting this claim. That the rule does not extend so far is shown by the opinion of Mr. Justice Taft in Narramore v. Railway Co., supra. That was a case where a brakeman was injured through an unblocked frog in defendant’s track. The court held that the statute relieved the plaintiff from the assumption of risk, but very clearly indicated that it did not follow that he was relieved from the duty of care or the consequences of contributory negligence.

In Knisley v. Pratt, 148 N. Y. 372 (32 L. R. A. 367), the court of appeals held-expressly that a servant, by continuing in the employment of a master who is violating the statute passed to protect the servant, does assume the risk of danger from such violation, and cannot make it the ground of recovery.

Mr. Justice Taft disagrees with the legal proposition, but recognizes the correctness of the conclusion, and suggests that it should have been based on contributory negligence. He says:

“ The Knisley Case which, in our judgment, was wrongly decided, and many others in which a right conclusion was reached, seem to us to confuse an agreement to assume the risk of an employment, as it is known to be to the servant, and his contributory negligence. That, under certain circumstances, the one sometimes comes very near the other, and cannot easily be distinguished from the other, may be conceded; but, in most case, there is a broad line of distinction, and it is so in this case. For years employés worked in railroad yards in which blocks were not used, and yet no one would charge them with negligence in so doing. The switches and rails were mere perils of the employment. Assumption of risk is in such cases the acquiescence of an ordinarily prudent man in a known danger, the risk of which he assumes by contract. Contributory negligence in such cases is that action or nonaction in disregard of personal safety by one who, treating the known danger as a condition, acts with respect to it without due care of its consequences. The distinction has been recognized by the Supreme Court of the United States. In Union Pacific R. Co. v. O’Brien, 161 U. S. 441, the court said:
“ 1 The second instruction was properly refused because it confused two distinct propositions — that relating to the risks assumed by an employé in entering a given service, and that relating to the amount of vigilance that should be exercised under given circumstances.’”

In Hesse v. Railroad Co., 58 Ohio St. 167, it was said:

“Acquiescence with knowledge is not’ synonymous with contributory negligence. One having full knowledge of defects in machinery with which he is employed may use the utmost care to avert the dangers which they threaten.”

Mr. Justice Taft, in discussing the case of Cleveland, etc., R. Co. v. Baker, 91 Fed. 224, said:

“There the action was for damages against a railroad company for injury sustained by reason of a breach of a Federal statute requiring the company to furnish grab irons. The statute, out of abundant caution, expressly provides that the continued service of the employé with knowledge of the breach of statutory duty by the company should not be regarded as an assumption of the risk. The court held that this proviso did not prevent the company from successfully maintaining the defense of contributory negligence. Assumption of risk and contributory negligence approximate where the danger is so obvious and imminent that no ordinarily prudent man would assume the risk of injury therefrom. But where the danger, though present and appreciated, is one which many men are in the habit of assuming, and which prudent men who must earn a living are willing to assume for extra compensation, one who assumes the risk cannot be said to be guilty of contributory negligence if, having in view the risk of danger assumed, he uses care reasonably commensurate with the risk to avoid injurious consequences. One who does not use such care, and who, by reason thereof, suffers injury, is guilty of contributory negligence, and cannot recover, because he, and not the master, causes the injury, or because they jointly cause it. Many authorities hold that contributory negligence is a defense to an action founded on a violation of statutory duty, and this undoubtedly is the proper view.”

He cites many such cases. See, also, Grand v. Railroad Co., 83 Mich. 564 (11 L. R. A. 402), and cases cited.

Probably all would agree that if the evidence conclusively showed that the plaintiff knew that the guard had been removed, the question of contributory negligence would be in the case. Yet it could not be if the effect of the statute is to make the defense of contributory negligence fall with that of assumption of risk. In some cases either of these defenses could be relied on under the proofs; i. e., a man may not only have assumed the risk of danger, but the proofs may also show that he has been negligent. That question — i. e., contributory negligence — is, as a legal proposition, open in this case. Whether it is practically depends upon the proof. Plaintiff’s counsel say that it is not, because the plaintiff did not know that the guard was gone. If his conclusion would be right (which we need not say), the premise is begged, for there is testimony tending to show, and from which the jury might well have found, that he did know it, even if it could be said that he was not negligent in not knowing it — a question we leave undetermined. Much of the discussion herein relating to safe place, etc., is applicable here as bearing upon the question of what constitutes contributory negligence. If there is force in the suggestion that the visibleness of danger, from which an assumption of risk may be inferred, may be such as to prove contributory negligence to the full satisfaction of court or jury, it is unnecessary to express an opinion upon the question.

From the foregoing, it seems to ns to follow that if the question of contributory negligence is in the case, it may be decided by the court, if it is conclusively established. If it could not be, a disputable question of fact under the evidence could not be sent to the jury. In either case it would be an immaterial question, for the reason that it would have been eliminated with the question of assumption of risk. Plaintiff’s testimony in the case contains an unequivocal statement that he was unaware of and did not notice the absence of the guard. The manner in which the accident happened is not entirely clear. There may be some difference of opinion as to how plaintiff approached the belt, and it is perhaps probable that plaintiff gave no thought to his surroundings or the dangers to be apprehended therefrom. Taking all into consideration, we conclude that the court did not err in allowing the case to go to the jury.

The judgment is affirmed.

Carpenter, J., concurred with Hooker, J. Montgomery, Ostrander, and Moore, JJ., concurred in the result.


author: Montgomery, J.

text:
    PHILIP v. HERATY.
    Constitutional Law — Retroactive Legislation — Creating Cause op Action — Validity.
    Act No. 280, Pub. Acts 1905, extending the right of action for wrongful death to the person in good faith sustaining the marriage relation to the person killed, notwithstanding a legal impediment to a valid marriage, attempts, in so far as it affects cases in which the death occurred before its enactment, to create a cause of action out of a past transaction, and is, as applied to such cases, invalid.
    Error to Bay; Collins, J.
    Submitted November 15, 1906.
    (Docket No. 94.)
    Decided March 12, 1907.
    Case by Nellie M. Philip, administratrix of the estate of George Philip, deceased, against Michael P. Heraty and John C. Weadock, receivers of the Bay Cities Consolidated Railway Company, for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendants bring error.
    Reversed.

      T. A. E. & J. G. Weadock (L. J. Weadock, of counsel), for appellants.

      F. L. Edinborough (De Vere Hall, of counsel), for appellee.
   Montgomery, J.

This action was brought to recover damages for the negligent act of defendants causing the death of George Philip, plaintiff’s intestate. The plaintiff claimed to be the lawful widow of George Philip and was appointed administratrix. The case was once considered by us. See 135 Mich. 446. It was there held that it was open to defendants to prove, on the trial of this action, that plaintiff was not in fact the lawful wife of George Philip at the date • of his death. That the statute (3 Comp. Laws, § 10438) limits the recovery of damáges to the pecuniary injury suffered by persons entitled to distributive shares in the estate of the deceased; and that, if plaintiff was not in fact the widow of George Philip, she was not entitled to recover damages. After the decision by this court, and in June, 1905, Act No. 280, Pub. Acts 1905, was enacted. Section 1 reads as follows:

In any action tried for damages heretofore or hereafter sustained by either party to a marriage relation or the issue thereof, arising from the negligent act or omission of another, causing death or injury, it shall be no bar to such action that legal impediment existed to the lawful marriage of either such party at the time the marriage relation was assumed, but a right of action shall exist in favor of such issue and the party to such relation entering the same in good faith and such issue and party shall be entitled to the same damages as though such impediment had not existed.”

The case has been retried, and plaintiff has again recovered judgment. Defendants bring error.

Obviously the question of first importance in the case relates'to the validity of the act in question, as it affects the present case; for, if the defendants’ contention prevails, the objection goes to the whole case. There can be no doubt that the statute of 1905 is broad enough in its terms to cover the present case. Defendants’ counsel contend, however, that this statute is unconstitutional, for the reason that it constitutes an attempt to create a cause of action where none before existed.

Plaintiff’s counsel contend, on the other hand, that the statute in question relates to the remedy, and that it is entirely competent for the legislature to alter, enlarge, modify, or confer a remedy for existing legal rights, and also that the legislature may establish new rules of- evidence to be applied in the trial of existing causes of action. Wethink both contentions well supported. Judd v. Judd, 125 Mich. 228; Coosa River Steamboat Co. v. Barclay, 30 Ala. 120. So, too, the legislature may enact a statute which shall, acting retrospectively, cure informalities in the execution of a contract, and shall effectuate the intent and purpose of the two contracting parties. Coosa River Steamboat Co. v. Barclay, supra; Wistar v. Foster, 46 Minn. 484; Mechanics’, etc., Sav. Bank v. Allen, 28 Conn. 97. It is also held by the Supreme Court of the United States that a statute reviving a cause of action barred by an existing statute of limitations is valid. Campbell v. Holt, 115 U. S. 620. The decision in this case was by a divided court and is not accepted in all jurisdictions. See Danforth v. Groton Water Co., 178 Mass. 476; 6 Am. & Eng. Enc. Law (2d Ed.), p. 946. It is also held that, where the property of another has been enhanced by an adverse claimant in possession, a statute having retroactive effect may provide compensation for betterments. Lay v. Sheppard, 112 Ga. 111.

It is doubtless true that some courts have gone to still greater length, and have, as stated by Chief Justice Holmes, in Danforth v. Groton Water Co., supra:

‘ ‘ Recognized the power of the legislature to call a liability into being where there was none before, if the circumstances were such as to appeal with some strength to the prevailing views of justice, and if the obstacle in the way of the creation seemed small.”

The same learned justice further says:

“ In some such cases there has been at an earlier time an enforceable obligation, in others there never has been one; but in both classes the courts have laid hold of a distinction between the remedy and the substantive right, or have said that a party has no vested right in a defense based upon an informality not affecting his substantial equities, or that there is no such thing as a vested right to do wrong.”

The courts have not avowed a purpose to hold that the legislature may create a cause of action where none before existed. This power has been denied. 8 Cyc. p. 910; Coosa River Steamboat Co. v. Barclay, supra; City of Grand Rapids v. Railway Co., 130 Mich. 238.

Dealing with the question in the abstract, it is difficult to find plausible reasons for sustaining the power of the. legislature to create a new cause of action out of a past transaction. It is clear that an attempt to enforce a penalty for an act previously committed would be within the mischief provided against by the constitutional provision inhibiting ex post facto laws. Cooley on Constitutional Limitations (7th Ed.), p. 375. Did the statute of 1905 create a new cause of action ? By our former decision it was determined that, if George Philip had a lawful wife living when he was married to the plaintiff, no right of action existed in favor of the latter. The act in question in effect says that from and after its passage a cause of action shall exist if the jury find plaintiff was acting in good faith. When it is considered that the right of action depended upon two concurring facts, death of the intestate by defendants’ wrongful act, and damages to a lawful spouse of decedent, one of which facts was obviously wanting when the act was committed, it is manifest that a statute dispensing with the necessity of proof of that fact is an attempt to create a cause of action when none existed before. We think this statute cannot be sustained in so far as it applies to this case.

Judgment reversed.

Carpenter, Ostrander, Hooker, and Moore, JJ., concurred.


text:
      In re DOWNS.
    Criminal Law — Sentence — Maximum Term — Indeterminate Sentence Law.
    A person convicted of attempt to commit burglary, and sentenced to imprisonment in the State prison for a period not less than one year, is not entitled to his discharge at the end of the year, on the ground that no maximum term was fixed by the court; since section 11784, 8 Comp. Laws, fixing the punishment for attempts to commit crime, when read in connection with the indeterminate sentence law, fixes the maximum term at not more than three years.
    Habeas corpus proceedings by George Downs to obtain his release from imprisonment in the State prison at Jackson.
    Submitted November 13, 1906.
    (Calendar No. 21,966.)
    Petitioner remanded March 12, 1907.

      George Downs, in pro. per.

      John E. Bird, Attorney General (George 8. Law, of counsel), for respondent warden. N
   Blair, J.

Upon his conviction, in the recorder’s court of the city of Detroit, of the crime of attempt to commit burglary, petitioner, on the 31st day of May, 1905, was sentenced to the Michigan State prison at Jackson “for the period of not less than one year ” from and including the said 31st day of May. No maximum term of imprisonment was fixed by the court. > The minimum term of one year, fixed by the court, having expired, petitioner now demands his release from further imprisonment, alleging that he was sentenced for a period of one year only, and, that period having expired, the warden has no further authority to detain him. He also contends that the indeterminate sentence law is unconstitutional for various reasons.

Section 11781 of the Compiled Laws of 1897, prescribing the punishment for attempts to commit crime, provides:

“ If the offense so attempted to be committed is punishable by imprisonment in the State prison for life or for five years or more, the person convicted of such attempt shall be punished by imprisonment in the State prison not more than three years or in the county jail not more than one year.”

Under this provision of the statute, no minimum term being fixed by statute, the court was authorized and required to fix the same and did fix such minimum as a period of not less than one year. It was not necessary that the court should fix the maximum punishment, that being determined by the statute itself. In re Campbell, 138 Mich. 597; In re Duff, 141 Mich. 623.

The questions raised by the petitioner relative to the constitutionality of the indeterminate sentence laws have recently been passed upon and are covered by the decisions of this court in the case of In re Manaca, 116 Mich. 697, and People v. Cook, ante, 127.

It results that the prisoner is not entitled to his discharge, and he is therefore remanded.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.