author: Grant, J.

text:
    BAEHR v. DOWNEY.
    1. Trover — Parties—Right of Possession — Agency.
    The owner of property, by intrusting its possession temporarily to an agent, does not preclude himself from maintaining an action against a third person for its conversion. So held where a partnership consigned goods to a member of the firm acting as its traveling salesman, and it was contended that the latter alone could sue.
    2. Innkeepers — Property of Guest — Forwarding — Contract —Consideration.
    The benefit accruing to an innkeeper from his observance of the custom of forwarding letters and packages to departed guests constitutes a sufficient consideration for his agreement to comply with such custom in a given case.
    3. Same — Authority of Clerk.
    The clerk of an inn has authority to bind the innkeeper by an agreement with a departing guest to forward packages received for the latter after his departure.
    4. Same — Extent of Liability.
    Where an innkeeper agreed to forward a package which was expected to arrive for a guest after his departure, and the package was delivered to the innkeeper after the departure of the guest, and was never returned or forwarded, the innkeeper was liable as an ordinary bailee.
    5. Same — Contributory Negligence.
    In such case, the value of the package (i. e., §300) not being such as to require extraordinary precautions, a failure to mark such value on the package, or to notify the innkeeper thereof, was not such contributory negligence as would relieve the latter from liability.
    6. Bailments — Liability of Bailee — Burden of Proof.
    The liability of a bailee is established prima facie by proof of his receipt of the property, and failure to return it on demand; he then having the burden of showing his freedom from negligence.
    Case made from Ingham; Wiest, J.
    Submitted January 13, 1903.
    (Docket No. 34.)
    Decided May 12, 1903.
    Trover by Herman Baehr and Marcus Loew, copartners as Herman Baehr & Company, against Charles P. Downey and Oscar J. Downey, copartners as H. J. Downey’s Sons. There was a judgment for defendants, and plaintiffs assign error.
    Reversed.
    Plaintiffs brought suit to recover the value of certain goods claimed to have been lost at the hotel of the defendants. The case was tried before the court without a jury, and the following are the material facts as found by the court:
    The plaintiffs as partners, on the 17th day of October, 1900, were-manufacturers of furs in New York City, and the defendants were the proprietors of the Hotel Downey, in the city of Lansing. Marcus Loew, one of the plaintiffs, was traveling salesman for the firm, and on the 17th and 18th days of October, 1900, he was a guest at the hotel of defendants. He arrived at the hotel October 17th, .and paid his bill and left after lunch on October 18th. At the time of his departure from the hotel, he requested the clerk in the office of the hotel, to whom he paid his-bill, to forward any letters or packages that might come for him that day to the Hibbard House, Jackson, Mich., and any letters or packages that might come to him after the day of his departure to him at the Palmer House, Chicago, 111. The clerk stated to Mr. Loew that he would attend to the forwarding of any mail or packages in accordance wdth the direction given him. It is a general custom for proprietors of hotels of the class of defendants’ to forward mail and packages addressed to those who have been their guests, upon request, to the place designated by such departing guest, and it is a practice for the hotel proprietors to keep a record book in which the directions for forwarding are recorded, and defendants kept such a record.
    .October 17, 1900, at plaintiffs’ place of business in New York City, thirteen cross sable mink scarfs of the value of $117, eight Baum marten scarfs of the value of $168, and one skunk scarf of the value of $5.50, were packed in a strong pasteboard box, wrapped in thick paper, and securely tied with string, and were shipped by plaintiffs by the National Express Company to Mr. Loew, Hotel Downey, Lansing, Mich., express charges prepaid. October 19, 1900, the National Express Company delivered this package at the Hotel Downey, and it was duly receipted for by an employé of defendants. Mr. Loew or the plaintiffs have never received the package so delivered at the hotel of defendants; it has not been received at the Hibbard House, Jackson, or the Palmer House, Chicago; and was never forwarded from defendants’ hotel. Plaintiffs made their first demand for said goods on December 12, 1900, and the defendants, on December 18th, acknowledged their inability to find the goods or to produce them. Defendants had no personal knowledge of the request of Mr. Loew that the package be forwarded to him, or of its-receipt at their hotel, or of what subsequently became of it. No proof of any assignment of any right of action from Mr. Loew to plaintiffs was made. Mr. Loew registered at defendants’ hotel as “M. Loew.” No valuation was given to the express company when the package was. delivered.

      Thomas, Cummins & Nichols, for appellants.

      Montgomery & Clark, for appellees.
   Grant, J.

(after stating the facts). 1. The stringent liability of innkeepers for the property of their guests is conceded. The learned circuit judge held that the contract to forward the package was one growing out of and based upon the relation of innkeeper and guest; that the practice of fowarding letters and packages to departed guests induces travelers to stop at a hotel following the custom, and inures to the benefit of. the hotel proprietor, and was a sufficient consideration for the defendants’ undertaking to forward the parcel. He, however, entered a judgment for the defendants, for the reason that the plaintiffs had parted with their right of possession when they shipped the goods to Mr. Loew, their agent; that Mr. Loew was the one deprived of possession, and not the plaintiffs; and that they could not maintain trover because they had not a conjoint right of possession. In this we think he was in error. It is a matter of common knowledge that traveling salesmen are usually agents, and not principals; that they do not represent themselves, but others; and that the goods they carry with them or receive from their houses are not their goods, but the goods of those they represent. In this case, however, one of the principals was the traveling agent of the firm. The possession of the agent inures to the benefit of the principal,, and, whenever that possession is wrongfully interfered with by a third party, it is damage to the principal, and not to the agent. Even were the principals undisclosed, and the defendants dealt with the agent as a principal, this would not prevent the real parties in interest from bringing suit in their own names to recover their property, or the damage done to it, or the value when lost. A party is not deprived of the right to pursue his own property although he has temporarily intrusted the possession of it to an agent. The wrong-doer is not in position to defend his own wrongful acts against the rightful owner by saying, “You intrusted the possession to your agent, and I am responsible to him, and not to you.” Plaintiffs had made a proper demand for the goods, and, upon the failure of the defendants to produce them, their right of action became complete.

2. The next point urged to defeat recovery is: (1). That the plaintiffs cannot maintain'this action, because the contract made with the clerk was not binding upon the defendants ; and (2) that the relation of guest and innkeeper had ceased, and that defendants were only gratuitous bailees. The clerk was the authorized agent of the defendants, and his acts towards, and conduct with, guests, bound them, in so far as they were within the duties and liabilities of innkeeper. Mr. Loew had not ceased to be a guest of the hotel when the agreement to forward his letters and packages was made. It was simultaneous with the payment of his bill and notification that he was to leave. Even if the goods had been at the hotel, Mr. Loew would have had a reasonable time to remove them, and the innkeeper’s extraordinary liability would remain until the expiration of such reasonable time, which would vary according to circumstances. Wandell, Inns, 102; Murray v. Marshall, 9 Colo. 482 (13 Pac. 589, 59 Am. Rep. 152); Maxwell v. Gerard, 84 Hun, 537 (32 N. Y. Supp. 849); Adams v. Clem, 41 Ga. 65 (5 Am. Rep. 524).

Counsel for the defendants cite several cases holding that innkeepers are not liable after the relation of guest and innkeeper has ceased and the guest has left. Such is the case of O’Brien v. Vaill, 22 Fla. 627 (1 South. 137, 1 Am. St. Rep. 219), where the guest paid his bill and left his baggage, saying he would be gone for a few days. So, in Glenn v. Jackson, 93 Ala. 342 (9 South. 259, 12 L. R. A. 382), the guest had paid his bill and intrusted his baggage to a servant not authorized to receive it. Similar facts and the same holding are- found in Gelley v. Clerk, Cro. Jac. 188; Hays v. Turner, 23 Iowa, 214; and many other cases.

None of those cases are like this'in facts or in principle. Innkeepers and travelers recognize the fact that it is essential to the proper conduct of business that letters and packages to business and traveling men be forwarded. It is a universal practice. Innkeepers keep books in which to enter such directions. The defendants kept a book for that purpose. The language in Murray v. Marshall, supra, recognizes “the increased demand for more extended accommodations in this respect.” See, also, Giles v. Fauntleroy, 13 Md. 126, 136. As the circuit judge held, such contracts are for a valuable consideration. An innkeeper who would not do it would soon be left without custom. The contract is one made with a guest, and not with one who has ceased to be a guest. In Maxwell v. Gerard, supra, the guest, upon leaving the hotel to go on board a yacht for a cruise, arranged with the clerk to deliver his trunk to an expressman for transportation to his residence. It was held that the defendant’s liability as innkeeper continued until he delivered the package to the expressman. That case is nearer, in its facts and in the rule enunciated, to this, than any other case cited, and than any we have been able to find. It is no hardship to hold innkeepers to this liability. The defendants, upon the receipt of the package, could at once have returned it to the express office for forwarding. Proper protection for the property of agents and their pi'incipals demands that this common-law liability attach until the innkeeper has complied with his contract for forwarding. The contract was within the scope of the clei'k’s authority. The burden of proof was upon the defendants to show facts which would relieve them of their strict liability. They failed to do so.

3. It is next urged that plaintiffs were guilty of contributory negligence in not having the value of the package marked upon it. and in failing to notify the defendants of the contents of the expected package, and that plaintiffs permitted nearly two months to elapse before notifying defendants of the loss. The duty of the defendants was the same, no matter what the value of the package was. It was not of such great value as to require extraordinary precaution in this respect on the part of the plaintiffs. The defendants could at once have relieved themselves of liability by complying with their contract. ¥e need not be understood as holding that there may not be circumstances which require extraordinary precautions on the part of the guest, under the principle recognized in Smith v. Express Co., 108 Mich. 572, 578 (66 N. W. 479).

To the other point it is sufficient to say that the record does not disclose that the plaintiffs waited nearly two months. Plaintiffs proved the delivery of the property, the demand, and value, and rested. There is nothing to show that the demand was the first notice that defendants had of the loss of the property.

My Brethren do not agree with me that the strict liability of innkeeper attached to the defendants. They are of the opinion that that relation ceased to exist, and that the defendants were ordinary bailees of the property. Under these circumstances, plaintiffs made out a prima facie case by showing the property in the defendants’ possession, and refusal or neglect to return on demand. The onus of exoneration was then upon the defendants. 3 Am. & Eng. Enc. Law (2d Ed.), 750. The rule as there stated is that, when the chattels are not returned at all, the law presumes negligence, and casts upon the bailee the onus of showing he was not negligent. This, undoubtedly, is the more modern and reasonable rule. See, also, Knights v. Piella, 111 Mich. 9, 14 (69 N. W. 92, 66 Am. St. Rep. 375); Donlin v. McQuade, 61 Mich. 275 (28 N. W. 114). Inasmuch as defendants made no showing upon this point, the judgment must be reversed, and entered here for plaintiffs. Upon all tbe other points my Brethren agree with me.

Judgment reversed, and entered in this court for plaintiffs, with costs of both courts.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, C. J.

license: Public Domain

text:
    SECCOMBE v. DETROIT ELECTRIC RAILWAY.
    1. Street Railways — Injury to Employé —Collision—Proximate Cause.
    Where plaintiff, a street-railway motonnan, -was injured by a collision with a car which was being backed on the same track on which his car was being operated, for the purpose of obtaining relief for a car which had been derailed by reason of a defect in the track some distance ahead, the defect in the track was not the proximate cause of the injury.
    2. Same — Backing Cars — Rules—Sufficiency.
    Where a street-railway company had promulgated a rule that cars should not be started backward until the motonnan should receive three bells from the conductor, who should remain on the rear platform while the car was moving backward, the failure of the company to adopt other rules regulating the running of cars backward was not negligence justifying a recovery for injuries to a motorman in collision with a backing car; it not appearing that other or different rules were in use on other roads, regulating such operation of cars.
    3. Same — Assumption of Risk.
    Where a street-railway motorman knew that cars were operated backward, on some occasions, without red lanterns being carried on the rear thereof, and that the company had nob established telephone connections to warn following cars of .a car being operated backward, he assumed the risk of the operation of such cars without such precautions.
    4. Same — Negligence of Conductor.
    Negligence cannot be predicated upon the act of the conductor of an electric car in jumping therefrom to escape an impending collision, after he has signaled the motorman to stop, and done all that he can to avert the accident.
    5. Master and Servant — Injury to Employé — Incompetent Servants — Burden of Proof.
    Before a master can be held liable for injuries to an employé on the ground that he had in his employ an incompetent servant, it must appear that he had been negligent either in employing or retaining such servant, and the burden of proof is upon the plaintiff.
    6. Same — Street Railways — Incompetenoy of Conductor — Evidence.
    In an action against a street-railway company for injuries to an employé, alleged to have been due to the incompetency of a conductor in its employ, witnesses testified that the conductor was slow in ringing bells, and was liable to get excited and give wrong signals; that his reputation for competency was “not the best;” that he was short, and had to stand on tiptoe to reach the bell cord, which made him slow in emergencies ; but none of the witnesses had ever heard of his having an accident, or reported him as incompetent to the company or the “union.” Held, insufficient to raise a presumption that defendant knew or ought to have known of his alleged incompetency, or to show that it should have removed him had it known all the facts testified to.
    Error to Wayne; Donovan, J.
    Submitted December 3, 1902.
    (Docket No. 140.)
    Decided May 12, 1903.
    Cas.e by Frederick W. Seccombe against the Detroit Electric Railway for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Thomas Kissane and Lehmann & Biggs, for appellant.

      Corliss, Anclrus, Leele & Joslyn, for appellee.
   Hooker, C. J.

The plaintiff was a motorman on defendant’s railroad. He was injured by reason of his car coming into collision with another car which was backing up. At the point of collision there were two tracks, and cars were not expected to run both ways upon either. It is claimed that the reason for it on this occasion was the derailment of a third^car at a point about a mile or more distant from the place of the collision, where there was a switch, and a worn rail, which had on two or more previous occasions caused the defendant’s cars to leave the track. The court directed a verdict for the defendant, and the plaintiff has appealed.

The negligence alleged and relied upon appears to be:

1. That Drouillard, the conductor, and the motorman of the car which was being run backward were incompetent.
2. That the track was in bad condition, and therefore caused cars to be derailed at the switch, thus making it necessary to back the next car to another switch.
3. That defendant neglected to provide and furnish rules by which its servants could operate its cars with safety when backing up.

At defendant’s car barn there was a switch, by means of which a car might pass from one track to the other. The next such switch was a mile or more distant, and it was at the last-mentioned switch that the car was derailed. Plaintiff says that this derailment was due to a worn rail, and that such derailments had occurred there before, and' on such occasions the next car would have to back up to the car barn before it could be switched upon the return track. On two or three occasions the plaintiff had known of the cars being backed to the barn, and he had done so with his car. On this occasion he passed the barn at 8 o’clock in the evening, and the collision occurred a little later, when he met the preceding car backing up. The trolley wires were supported by posts set between the tracks, and defendant’s counsel contend that, had not the two cars been upon the same track, these poles would have intercepted plaintiff’s line of vision to the other car, not otherwise, and that this should have been notice to him the failure to observe and heed which was contributory negligence in him. No testimony was introduced by the defendant.

On the night of the accident, the car second in advance of plaintiff’s oar ran off the track, and made an obstruction. The next car to arrive was in charge of Drouillard, as conductor, and Clixby, as motorman; and they were asked to carry word to the barn, a distance of a mile and a half, to send relief. There was no way to do this but to back the car to that place, which they proceeded to do. The alleged defect was that there was a worn rail or point of a switch at the Y, which on some occasions had derailed the cars. The worn rail was not the proximate cause of the injury, if it was a remote one. New York, etc., R. Co. v. Perriguey, 138 Ind. 416 (34 N. E. 233, 37 N. E. 976); Jackson v. Railway, 13 Lea, 492 (49 Am. Rep. 663); Fawcett v. Railway Co., 24 W. Va. 760; De Camp v. Sioux City, 74 Iowa, 392 (37 N. W. 971); Kistner v. City of Indianapolis, 100 Ind. 211; Lewis v. Railway Co., 54 Mich. 55 (19 N. W. 744, 52 Am. Rep. 790); Selleck v. Railway Co., 58 Mich. 199 (24 N. W. 774). See, also, cases cited in opinion in case of Noe v. Railway Co., ante, 162 (94 N. W. 747).

We are asked to hold that it should have been left to the jury to say'whether this accident was not due to the want of some reasonable and necessary rule for the backing of cars. The record shows that a printed rule required that “motormen must not start their cars until receiving either two bells or the word `Right ’ from the conductor, nor start the car backward before receiving three bells from the conductor, who must remain on rear platform while car is moving backward.” We are not advised that any other or different rule is in use on any street railway in the country. Counsel .suggest that the company should have established telephone connection with the Y, or should have required red lights on the rear of cars.

It requires more than the production of authorities asserting that it is the duty of railroads to promulgate reasonable rules for the running of trains to establish the fact that a defendant has been negligent in that respect. In Niles v. Railroad Co., 43 N. Y. Supp. 751, it was said:

“The doctrine imposing liability upon railroad companies, for failure to adopt particular rules, the necessity for which was not apparent to them, should not be unduly or unreasonably extended. And since the company has a paramount interest in protecting its property from injury or destruction, and also in avoiding all liability for damages to employés and passengers, * * * these considerations must have some weight in determining whether the omission to promulgate a particular rule constitutes a neglect of duty in not being able to foresee certain contingencies. ”

And in the case of Berrigan v. Railroad Co., 131 N. Y. 582 (30 N. E. 57), it was said:

“ There is no proof in the case that rules for such a case had ever been promulgated by any other railroad company, or that it was reasonable or practicable to provide against the occurrence of such an accident by a rule. The learned trial judge submitted to the jury the question whether the defendant was at fault in omitting to make and publish such a rule. This opened to the jury a wide field for speculation and conjecture. In. the absence of some proof on the part of the plaintiff that such a rule was in operation by other roads, or of persons possessing peculiar skill and experience in the management and operation of railroads to the effect that such a rule was necessary or practicable under the circumstances, or unless the necessity and propriety of making and promulgating such a rule was so obvious as to make the question one of common experience and knowledge, the court is not warranted in submitting such a question to the jury. Besides, it affirmatively appeared that the rules in use by the defendant provided in a reasonable way against the occurrence of such an accident, so far as such casualties can be prevented by rules. ”

The following comment in Morgan v. Iron Co., 133 N. Y. 666 (31 N. E. 234), is apropos:

“The recovery was based entirely on the absence of rules. It was not suggested at the trial, nor is it on this appeal, what particular rule the defendant could have adopted that would have been likely to prevent the accident. No evidence was given that any rule is in use in business of a similar character by other corporations of the same class carrying on like operations, nor was there any evidence by experts or other witnesses to show that any rule was necessary or practicable in such cases. It was left to the jury to say whether or not it was a case for rules, and, if so, what particular rule should have been adopted. We know nothing with respect to the views entertained by the jury on these questions, except so far as they are indicated by their verdict for the plaintiff. It is not probable that they concluded that any definite rule should have been promulgated, but were content to 'hold that, as the plaintiff was injured, the defendant ought in some way to have prevented it, or, in case it did not, respond to him in, damages. Almost every conceivable injury that a servant receives in the course of his employment may in this way be submitted to a jury, and with the same result.”

This accident occurred on a street railroad, where cars are expected to be under such control as to be stopped when the exigencies of public travel require it, and are incident to many delays that are not common upon steam roads. They are started and stopped at any and all points where occasion demands, and not in obedience to telegraph or telephone commands. As said by Chief Justice Montgomery, with the approval of the entire bench, in Mertz v. Detroit Electric Railway, 125 Mich. 15 (83 N. W. 1036):

“The distinction between steam railways and street railways has been often pointed out. It is a fact that must be assumed to be within the knowledge of all persons sui juris that a steam-railway train cannot be brought under control within a short distance, while it is equally known that street cars in cities can be kept within control sufficiently to prevent collison with vehicles lawfully on the track.”

See cases there cited.

We think the learned judge did not err in declining to submit this question to the jury.

There is another .'reason why plaintiff’s contention should not prevail. He was not a passenger, but an employe, who was familiar with defendant’s methods and rules; he knew that cars had been backed on this piece of road, and that it was likely to happen again; he knew that the cars did not carry red lanterns upon the rear, as is customary upon steam roads, and he knew what, if any, means there-were of determining whether a car was approaching or going away from him; and, under such circumstances, he may be said to have assumed the risk of such methods. Lang v. Transportation Line, 119 Mich. 85 (77 N. W. 633).

The plaintiff would have had the trial court permit the-jury to find that the responsibility for this collision rested upon Drouillard and Clixby, the conductor and motorman of the car that was backing up. Our attention is not called to any evidence that tends to show that it was due to any negligence of Clixby. Hence it is unimportant whether he was competent or not.

The testimony regarding Drouillard’s negligence consists in the statement that he did not stand on the back platform all of the time that his car was backing up, it being shown that he took up a fare or two from a witness who got on at Twenty-Sixth street. This was the testimony of the passenger, and he said that Drouillard was in the act of taking the fare when the collision occurred. One Phelps, testified that Drouillard jumped off from the car with two others, ^pulling the bell, just before the accident. His. jumping from the car after giving the signal to stop, and when he could do no good by remaining on the car, would not be culpable nor negligent. His negligence, if any, was his absence from the platform, where the rule required him to be, and his consequent failure to stop his car earlier. It is not for us to say that the passenger’s evidence is false, or that Phelps’ is true. Taken together, this testimony raised the question of Drouillard’s negligence as a. cause of the collision, and made the question of his competency a proper one for consideration, if his incompetency, and defendant’s negligence in relation thereto, were-proved, to relieve the plaintiff from the effect of the fellow-servant rule, which is otherwise clearly applicable.

Before a master can be held liable on the ground that he has in his employ an incompetent servant, it must appear that he has been negligent either in employing or retaining him, and the burden of proof is upon the plaintiff. The presumption is that he was not negligent in either respect. Davis v. Railroad Co., 20 Mich. 105 (4 Am. Rep. 364:); Michigan Cent. R. Co. v. Dolan, 32 Mich. 509; Walkowski v. Consolidated Mines, 115 Mich. 629 (73 N. W. 895, 41 L. R. A. 33). Drouillard had worked for defendant about 10 weeks. One witness testified that, in his opinion, be was slow to act, — slow in ringing bells and stopping his car, — and could not grasp two or three ideas at a time. He did not testify to his general reputation. This witness did not inform defendant that Drouillard was not competent, although himself its employé, and he never told the union to which they both belonged. Henry Benns testified that he knew his reputation. He was then asked, “What was it, — -competent or incompetent?” He did not answer the question asked, but replied, “Well, he was not competent to run a car.” He was then asked what he had seen him do, and he said he had seen him get excited and give two bells when he ought to give one. On cross-examination he said he never reported him to the company or the union,— never told anybody; had never heard of his having any accident, except once, when this plaintiff ran into his car. Walter Smith testified that Drouillard’s reputation was “not' the best;” that “he was said not to be a good conductor, in that he was slow at times, and not quick to catch ideas;” and that it was common rumor that he had been excluded from operating certain lines of the defendant; and he also testified that he was short, and had to stand on his tiptoes to reach the bell cord, which would make a man slow in an emergency. John Hetherington said" that he knew his reputation, and, when asked what it was, replied: “Well, what I could'see, I judge he was incompetent; he was incompetent.” On cross-examination he said he never heard anybody say he was incompetent, and did not understand the court’s question to be what other people said about him;'that what he said to the court was what he saw; and that he could not ring the bell and start the cars as quick as some, because he was short. He never reported him as incompetent, and never heard of his having an accident. If it can be said that all of the foregoing raised a question as to the fact of Drouillard’s incompetency, it'failed to raise any presumption that defendant knew it or ought to have known it, or that it should have removed him if it did know’ all that these witnesses testified to.

The judgment is affirmed.

The other Justices concurred.


author: Carpenter, J.

text:
    FITCH v. BOARD OF AUDITORS OF CLAIMS AGAINST MANITOU COUNTY. KANE v. SAME.
    1. Certiorari — Parties—Townships.
    Under Joint Resolution No. 4 of the legislature of 1901 (Pub. Acts 1901, p. 382), providing for a board to audit claims against the disorganized county of Manitou, the territory of which had been divided between C. and L. counties, which claims, when allowed, were chargeable against the territory of the disorganized county, townships of the enlarged counties, although consisting df such territory in part, only, were proper petitioners for a writ of certiorari to review the action of the circuit court in awarding mandamus against such board to compel the allowance of claims.
    2. Appeal — Error in Printed Record.
    In case of a discrepancy between the original and the prjnted record on appeal, the former will control.
    3. Same — Costs.
    An error in the printed record on appeal, justifying a motion to dismiss by the appellee, will impose costs of the motion on appellant.

      4. Same — Constitutionality op Statute — Objections Not Urged Below.
    Where the constitutionality of a law is attacked, objections and arguments against its validity may be urged on appeal, though not advanced iii the court below.
    5. Constitutional Law — Auditing Claims — Judicial Power.
    Joint Resolution No. 4 of the legislature of 1901, creating a board to audit claims against the disorganized county of Manitou, with power to apportion the amount allowed against the territory formerly comprising the same, conferred judicial power on such board, in violation of article 6, § 1, of the Constitution, vesting the judicial power in the courts.
    6. Same — Right op Review.
    The fact that, by the terms of the resolution, the action of the board was reviewable by mandamus, did not save its validity.

      1. Same — Legislative Power to Allow Claims.
    Nor could it be sustained on the ground that it is a legitimate exercise of legislative power to determine what debts a municipality shall pay, and to compel their payment; as the Constitution, by article 4, § 31, prohibits the legislature from auditing accounts.
    8. Same — Cases Distinguished.
    Neither the fact that the courts have upheld the exercise of judicial power by circuit court commissioners and by commissioners on claims against the estates of decedents, nor the fact that claims are habitually audited by boards of supervisors and county auditors, as well as by various officers of townships, cities, and villages, is controlling of the present question.

      Certiorari to Charlevoix; Mayne, J.
    Submitted January 6, 1903.
    (Docket Nos. 3, 4.)
    Decided May 12, 1903.
    Separate mandamus proceedings by Dwight H. Fitch and Arthur L. Fitch, copartners as Fitch & Fitch, and by Robert W. Kane, to compel the board of auditors of claims against Manitou county to audit and allow certain claims. From orders granting the writs, the several townships interested bring certiorari.

    Reversed.

      Fitch & Fitch and B. W. Kane, in pro. per.

      A.F. Bunting and Thomas Bmurthwaite, for respond- . ent.
   Carpenter, J.

We are asked in these two proceedings, which raise the same issue, to reverse the order of the court below issuing a mandamus compelling the respondent to audit certain claims; and the main question involved relates to the constitutionality of a joint resolution passed at the last session of the legislature, and found on pages 382-385, Pub. Acts 1901.

As appears by that resolution, the county of Manitou was disorganized, and part of its territory attached to Charlevoix county and part to Leelanau county, by Act No. 362, Local Acts 1895. Sections 6 and 9 of that act provided a method for the auditing of the accounts against said county. Said accounts never were audited. Therefore this joint resolution created a board of auditors— namely, respondent — consisting of the county clerk and county treasurer of Manitou county at the date of its dissolution, six years before, and the county clerks and county treasurers of Charlevoix and Leelanau counties. This board was directed to meet at the office of the county clerk of Charlevoix county, June 4-, 1901, at 9 a. m., organize by choosing one of their number as chairman and another as clerk, and continue in session, not exceeding 20 days, until they had audited the accounts against said county of Manitou. The right was given to any person whose claim was rejected, and to any township aggrieved by the allowance of a claim, to resort to mandamus proceedings in the circuit court for the county of Charlevoix. It was made the duty of said board of auditors, after determining the amount of said claims, to apportion the same to the territory formerly comprising Manitou county, now attached to the counties of Charlevoix and Leelanau, “in the same proportion as the relative value ” of the parts of said disorganized county attached to each “bear to each other, as fixed and determined by the board of supervisors of Manitou county at its October session in the year eighteen hundred and ninety-four.” It was made the duty of each of said counties to pay its quota of said indebtedness out of funds in its treasury belonging to said disorganized county, and, in the event of the insufficiency of these funds, to raise the same by taxation on the territory which formerly comprised said disorganized county. The act contained this remarkable provision:

“No such claim shall be disallowed, if otherwise valid, solely for the reason that it is barred by the statute of limitations; the statute of limitations shall not apply to such claims.”

Relators, the owners of various alleged claims against the county of Manitou, consisting of county orders, one issued April 15, 1882, three May 11, 1895, and the others on intermediate days, presented them to respondent, who constituted the board of auditors by virtue of the resolution above referred to. These claims were disallowed. They then applied to the circuit court for the county of Charlevoix for a mandamus.

Respondent’s answer to the order to show cause stated that it refused to allow relators’ claims for the reason that they were harred by the statute of limitations; that the joint resolution is unconstitutional and void, in that it seeks to resuscitate claims already dead by the statute of limitations, and in that it destroys vested rights. The court, after listening to the argurhent of counsel, ordered the mandamus to issue.

Before considering the question of the constitutionality of the resolution, it is necessary to dispose of a motion made in each of the cases now under consideration to dismiss the writ of certiorari issued by this court. In the first of these cases — namely, that in which Fitch & Fitch are relators — the motion is based upon the ground that the petitioners for said writ of certiorari who have not entered a disclaimer are certain townships in the county of Leelanau, each of which is composed in part of territory never forming a part of said county of Manitou. Inasmuch as a part of the taxpayers of each of said townships are liable to be taxed to pay the award in controversy, and this tax is to be collected by said township officers, we think they are proper petitioners, and this motion should therefore be denied.

The motion in the other case — that in which Robert W. Kane is relator — is based upon the assumption that the only petitioners for said writ of certiorari who had not entered a disclaimer were certain former townships of the' county of Manitou, which had been disorganized, and therefore had no corporate existence when said petition was made. This assumption was justified by the printed record served upon said relator. It was, however, erroneous, as is proved by an examination of the original record. It is quite clear that, notwithstanding the error in printing, this court must be governed by the original record, and therefore must deny the motion. We must, however,, hold said petitioners responsible for the error which induced the making of this application, and therefore award costs of this motion to relator, to be paid by such of them as have filed no disclaimer.

Is the joint resolution unconstitutional? Respondent’s counsel, both in their brief and a.rgument in this court, contend that the joint resolution is unconstitutional, not only for the reasons urged in the court below, but because, contrary to the provisions of the Constitution, it attempts-to confer judicial power upon respondent. Relators contend that this court should consider no other objection to-the constitutionality of said joint l’esolution than was urged in the court below. This contention is based upon the-principle, often asserted, that the jurisdiction of this court is limited to a review of such rulings of the circuit court upon questions of law as were distinctly presented and passed upon. See Chatterton v. Parrott, 46 Mich. 432 (9 N. W. 482). This principle has no application to this-case. If this law is unconstitutional in attempting toconfer judicial power upon respondent, the court below had no rightful jurisdiction to issue the mandamus complained of, and it is difficult to understand how even the consent of the respondent could have so conferred jurisdiction as-to make the order complained of effectual for any practical purpose. But respondent did not consent. It objected, and objected, too, on the ground that the law was unconstitutional. In support of this objection certain reasons were advanced, certain arguments urged. It would be a monstrous proposition to say that other reasons may not be advanced in this court, and stronger arguments, if discovered, urged, against the action proposed to be taken. We do not think that this court should decline to hear and be influenced by these arguments, though it may be that if they had been brought to the attention of the trial judge his decision would have been different. It is generally true that the arguments in a case in this court, being made after counsel has had an opportunity to more thoroughly understand his case and examine the authorities, are different and better than they were in the court below. Nevertheless these arguments are not only heard, but they are welcomed. If this constitutional objection now under consideration is well taken, it would not be to relators’ advantage to overlook it because it was not urged in the court below. If respondent has no constitutional power to make such a determination of these claims as to be legally binding upon the taxpayers in interest, these taxpayers will be heard to make that claim at some other time, if not now. If these proceedings amount to nothing, and must come to naught, it is wiser and better for every interest concerned that they be arrested at this juncture.

Is this resolution unconstitutional because it confers judicial powers upon respondent? The board of auditors created by this act are authorized to determine the validity and amount of claims presented to them, and to so apportion that amount that the property or taypayers of said disorganized county must pay it. In other words, they not only make a binding determination, which is equivalent to a judgment, but they make an apportionment against the property or taxpayers, without the sanction of a court, which is equivalent to an execution. This board of auditors does, in other words, all that a court can do in the premises. The Constitution of Michigan, article 6, § 1, having vested judicial power in one Supreme Court, in the circuit courts, in probate courts,' and in justices of the peace, clearly does not authorize the legislature to vest judicial power in tribunals of this character. See Chandler v. Nash, 5 Mich., at page 417; Risser v. Hoyt, 53 Mich., at page 192 (18 N. W. 615) et seq.; People v. Colleton, 59 Mich. 573 (26 N. W. 771).

Says the supreme court of Wisconsin in a similar case (see State v. Tappan, 29 Wis., at page 684 [9 Am. Rep. 622]):

“ The power to decide whether the town is under any legal obligation to pay the same or any portion thereof is vested by the constitution exclusively in the courts. The constitutional provision in that behalf, by necessary implication, excludes the legislative or executive branches of the State government from the exercise of judicial powers. These powers must be exercised by the courts alone, and any act which by its terms confers them upon any officer or person or other tribunal is absolutely void.”.

Nor can the constitutionality of this resolution be maintained on the ground that the judicial power conferred on the auditors is subject to a review by a court. See Bissell v. Heath, 98 Mich. 477 (57 N. W. 585). The provision for review in this case is altogether inadequate to preserve the constitutionality of the law. If an aggrieved party, by appealing, had an opportunity to retry his case in a constitutional tribunal, there would be less merit in the complaint that the trial, in the first instance, took place before an unconstitutional tribunal. But the resolution under consideration neither gives nor recognizes any such right of retrial. The only method of review open to an aggrieved party is a proceeding by mandamus. The issue in the mandamus proceeding is not what judgment should be entered,- after judicial consideration of all proper evidence, but it is whether or not the lower tribunal erred in deciding some vital question in the case on the evidence submitted to it. In short, the decisions of the board of auditors, under this act, are no more subject to review than are those of the circuit court. Nor is it by any means clear that the return of this body, acting in a judicial capacity, will not, under the rules of practice applicable to mandamus proceedings, be accepted as true.

Nor do the decisions of this court that circuit court commissioners (see Streeter v. Paton, 7 Mich. 341), and commissioners on claims against the estates of deceased persons (see Shurbun v. Hooper, 40 Mich. 503), may exercise judicial powers, affect our conclusion. The constitutionality of the legislation there assailed was maintained because it was older than the Constitution, and its validity had been recognized ever since the Constitution was adopted. It is to be remarked, too, that the party aggrieved by the decision of a circuit court commissioner or commissioners -on claims'-may have — as we have shown he cannot by the resolution under consideration — a retrial, which is a new trial, by appealing to the circuit court.

The fact that boards of supervisors, and in Wayne county the county auditors, audit claims against the county, has no relevancy to the question under discussion. The Constitution (see section 10, art. 10) gives these bodies that authority, and it does not give the board of auditors created by this act, who are not even officers of the parties in interest, power to exercise the authority conferred upon them.

Neither is there any force in the possible suggestion that respondent has the same power to audit these claims as is possessed and exercised by officers of municipalities other than counties. Officers of townships, cities, and villages do audit claims against their municipalities, and thereby make them valid and binding claims. In doing this they exercise no judicial power. They act as agents of the municipalities, their principals. If they reject those claims, they have made no adjudication which prevents the claimant securing redress in the courts. They are the agents, trusted and appointed by the corporation, and empowered to do that act. The members of the respondent board occupy no such relation to the taxpayers in interest. None of them are their officers or agents. Four of them never were, and two, though they were once, have not been for over six years.

Nor can this objection to the constitutionality of the resolution be answered by saying that it is a legitimate exercise of legislative power to determine what debts a municipality shall pay, and to compel their payment. It is true that decisions may be cited (see Town of Guilford v. Cornell, 18 Barb. 615; Town of Guilford v. Board of Sup’rs of Chenango Co., 13 N. Y. 143; Sinton v. Ashbury, 41 Cal., at page 530; Burrough of Dunmore’s Appeal, 52 Pa. St. 374; Layton v. City of New Orleans, 12 La. Ann. 515; People v. Power, 25 Ill. 187; Town of Waterville v. Kennebec County Commissioners, 59 Me. 80) which uphold this power of the legislature. Conceding the soundness of these decisions (and they have been criticised by eminent authority—see Cooley, Const. Lim. [6th Ed.] p. 283, and State v. Tappan, 29 Wis. 664 [9 Am. Rep. 622], heretofore quoted in this opinion), they have no application to the legislature of this State. Whatever power may be exercised by the legislatures of other States, the Constitution of Michigan, -by expressly denying the legislature the power to audit an account (see section 31 of article 4 of the Constitution), prohibits its exercising the authority in question. See People v. Supervisor of Onondaga, 16 Mich. 254; Bristol v. Johnson, 34 Mich. 123.

It results from this opinion that the order complained of must be reversed, and the proceedings dismissed.

The other Justices concurred.


author: Moore, J.

text:
    STAPLETON v. GRAND TRUNK RAILWAY CO.
    1. Carriers of Goods — Liability—Removal by Consignee.
    Where a consignee of goods shipped by rail receipted for them on their arrival at their destination, removed a part of them, and himself placed the remainder in one of the railroad company’s buildings, although he could have removed them also, the railroad company was not liable for the goods on their destruction by fire, without its fault, on the afternoon of the following day.
    2. Same — Delivery to Carrier.
    When a consignor of goods delivers them to the railroad company, relinquishing all control over them, the company becomes immediately liable as a common carrier; but if the goods are merely placed in the company’s depot for the consignor’s convenience, and are not ready for shipment until he has done something further to them, the company is not so liable.
    Error to Wayne; Donovan, J.
    Submitted February 3, 1903.
    (Docket No. 63.)
    Decided May 12, 1903.

      Assumpsit by William J. Stapleton against the Grand Trunk Railway Company for tbe value of goods destroyed by fire in defendant’s freigbtbouse. From a judgment for plaintiff, defendant brings error.
    Reversed.

      E. W. Meddaugh (L. G. Stanley, of counsel), for appellant.

      Warner & Godd, for appellee.
   Moore, J.

This is an action to recover for the value of goods destroyed in a fire which burned the freighthouse of the defendant at Mt. Clemens, on Monday, the 30th day of April, 1900, at 3 o’clock in the afternoon. The plaintiff is the surviving partner of George Norris & Co., of Detroit, manufacturers and dealers in bottled drinks. This concern had been doing business in Mt. Clemens for some 20 years, and in the course of business, on the 27th day of April, 1900, had shipped a quantity of goods to their agent, Patrick Bogue, at Mt. Clemens. A part of these goods reached there on Friday, April 27th,- and a part on Saturday, April 28th. Immediately thereafter the plaintiff’s agent receipted for the goods, and took some of them away. The rest he put into what was called the “jail,” where he had previously put goods by the permission of his son, who was in the employ of the defendant company. He took one load away Friday, a load on Saturday, and two more on Monday. A fire occurred at 3 o’clock Monday afternoon, and goods to the value of $144.92, as testified by plaintiff, were destroyed. There were also destroyed in this fire a number of empty bottles and cases belonging to the plaintiff, which the plaintiff claimed were of the value of $379.35. The jury rendered a verdict in favor of the plaintiff for both lots of goods. The case is brought here by writ of error. There is no claim the fire was due to the negligence of the defendant.

In relation to the goods shipped from Detroit, the trial judge charged the jury, in part, as follows:

“The consignee (that is, the receiver) has a reasonable time after the arrival of goods at their destination to remove the same. Pending their removal within such reasonable time, the liability of the railroad company is that of a common carrier, and not of a warehouseman. This reasonable time is to be judged by all the circumstances connected with the transaction, — former dealings between the parties, and the ability of the consignee to remove these goods; and, if the jury find'that the consignee used all reasonable diligence in removing the goods, the defendant is liable in this case, as a common carrier, for the value of the goods sent out, and your verdict should be for the plaintiff. That depends upon the testimony,— which side jmu believe.”

We think this an incorrect statement of the law. In Hutch. Carr. (2d Ed.) p. 440 (§ 374), it is said:

“In New York the law upon this subject is stated to be that, if the consignee is present upon the arrival of the goods, he must take them without unreasonable delay; if he is not present, but lives at or in the immediate vicinity of the place of delivery, the carrier must notify him of the arrival of the goods, and then he must have a reasonable time to remove them; if he is absent, unknown, or cannot be found, the carrier may store them; and if, after notice of the arrival of the goods, the consignee has. had a reasonable opportunity to remove them, and does not, he cannot hold the carrier longer as an insurer. This view of the subject has also been taken by the courts of Minnesota and Michigan.”

See cases cited in note.

In the same authority, at page 445 (§§ 376, 377), it is said:

“What length of time will be considered reasonable for the removal of the goods, at the expiration of which the carrier will be regarded as holding them as warehouseman, when such reasonable time is allowed the consignee, it is said, cannot be determined by any fixed or definite rule, but must depend in a great measure upon the circumstances' of each case. When the facts are agreed upon or undisputed, it becomes a question to be determined by the court as one of law, but, where they are disputed and unsettled, the question must be submitted to a jury.
“It is said, however, that no indulgence will be given to the consignee by reason of the circumstances of his condition or situation, which may make delay in the removal of the goods unavoidable on his part; nor will the distance at which he may reside or have his place of business from the place of their deposit be taken into consideration, but he will be required to remove them with the same expedition as though he lived in the vicinity of the warehouse. In other words, the time within which the consignee is required to remove the goods will not be made to vary with his distance, convenience, or necessities, but only such time will be allowed as would enable him, if living in the vicinity of the place of delivery, to remove them in the oi’dinary course and in the usual hours of business. He must, moreover, proceed to remove the goods with diligence after he is informed of their arrival, and must provide himself with ample means for doing so. In Hedges v. Railroad Co., 49 N. Y. 223, goods arrived for the plaintiffs early in the morning. They received notice of the fact an hour or two later on the same day, and gave directions to their carman to go for and bring them from the depot. The carman brought away one load, but during the balance of the day carted for the plaintiffs to other places or remained idle. No other directions were given, and no further effort was made to remove the goods. During the following night the goods were burned without the fault of the defendant. It was held that the loss must be borne by the plaintiffs, the defendant’s relation to the goods having become changed before they were burned by the delay of the plaintiffs in removing them.
“ ‘The plaintiffs seek to hold the defendant,’ say the court, ‘to a strict liability as insurer of the goods. Asking that so rigid a rule be applied to the defendant, it is just that the plaintiffs in turn be held to prompt and diligent action. A consignee cannot, after he, has notice of the arrival for him of property, defer taking it away while he attends to his other affairs. He may not thus prolong the time during which the carrier shall remain liable as an insurer. That would be to make the carrier a mere convenience for the consignee, without consideration of any kind to the carrier, and yet resting under a great risk. So much time as the consignee, after notice, gives to his other business, to the neglect of taking charge of his property and removing it from the custody of the carrier, cannot be allowed to him in estimating what is a reasonable time for him in which, after notice of arrival, to take delivery of his goods. He is not to be compelled to leave all other business to take his goods from the hands of the carrier; he may attend first to whatsoever demand of his business he deems the most urgent or the most profitable; but he cannot do this at the hazard and expense of the carrier. It is the duty of the carrier to give notice of arrival. It is the duty of the consignee, at once and with diligence, to act upon this notice, and to seek delivery, and to continue until delivery is complete. Either may neglect this, his duty, but then the consequence of the neglect must be borne by him.’ ”

This was not a large consignment of goods. Part of them arrived on Friday, and part on Saturday. The agent of plaintiff seems to have preferred to leave the goods where he did until it suited his convenience to remove them, instead of acting promptly. He had receipted for them, and himself placed them under lock and key. He had an abundance of time to remove them, but did not do so. Under the proofs, the circuit judge should have directed a verdict, as to these goods, in favor of defendant. See Hasse v. Express Co., 94 Mich. 133 (53 N. W. 918, 34 Am. St. Rep. 328); Moses v. Railroad, 32 N. H., at page 541 (64 Am. Dec. 381).

The other branch of the case is more difficult. Mr. Bogue was in the habit of gathering up empty bottles from plaintiff’s customers, and sending them back to Detroit in shipping cases. The bottles and cases in controversy had been deposited by him on one of the outside platforms of the freighthouse, preparatory to their shipment to Detroit. It was the claim of plaintiff that these goods were ready for shipment, and that the agent of defendant had been notified to ship them as soon as the company was ready. It was the claim of defendant that plaintiff was in the habit of bringing the bottles and cases to the platform and sorting them there, sometimes leaving them there for days, until he got tñem ready for shipment, and that when they were ready he notified the agent, and a bill of lading was made out for them; but that, upon this occasion, defendant had no notice the goods were ready for shipment, and that they were not in its possession as a common carrier. This raised a question of fact for the jury, under proper instructions. In Hutch. Carr. (2d Ed.) § 94, it is said:

“The entire responsibility for the safety of the goods being shifted from the owner to the common carrier as soon as the delivery is made, it frequently becomes a question of the greatest importance and of great nicety to determine at what instant of time such delivery becomes complete; for, as we have seen, until the entire and exclusive custody of them has been given to the carrier, no responsibility rests upon him in that character. The most that'can be said generally upon this subject is that, a tender of the goods being made to the carrier, his liability for their safety as carrier arises eo inslanti with his acceptance of them. * * * To effect a delivery to the carrier, there must be, either actually or in legal effect, a complete surrender to him of possession and custody, and, as a consequence, all control over the goods must be abandoned by the owner until the purpose of the bailment has been accomplished; and, until this has been done, it cannot be said that the carrier has assumed any responsibility for them as carrier.”

See, also, Id. § 96; Meloche v. Railway Co., 116 Mich. 69 (74 N. W. 301).

If in this case Mr. Bogue had done all he intended to do to the goods before the goods were shipped, and had notified the agent of the defendant they were ready for immediate shipment, and the agent agreed to forward them, that would be sufficient to make the company liable as a common carrier. 5 Am. & Eng. Enc. Law (2d Ed.), 180. If this had not been done, it would not have been so liable.

Judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    LA BARRE v. GRAND TRUNK WESTERN RAILWAY CO.
    1. Railroads — Injury to Section Hand — Loading Rails — Moving Cars — Negligence.
    Where, in an action for injuries to a section hand while loading rails on moving cars, there was no proof to rebut evidence that rails were ordinarily loaded on cars while in motion, the adoption of suoh method did not constitute negligence.
    2. Same — Warning of Danger — Question for Jury.
    Whether it was the duty' of the railroad company to have instructed such employé as to the manner of doing the work, and to have warned him against the danger of a rail falling from a car after it had been thrown thereon, was for the jury.
    3. Same — Fellow-Servants—Vice-Principal—Instructions to Jury.
    Plaintiff in such action claimed that the injury was occasioned by undue haste in moving the train, which was at the time in charge of an assistant roadmaster, the conductor being absent; but such roadmaster testified that the speed of the train was entirely controlled .by the engineer. Held:

      (1) That whether the injury was due to the roadmaster’s • negligence was a question for the jury.
    (2) That, if' it was so due, defendant was liable, as the roadmaster was not plaintiff’s fellow-servant, but a vice-principal.
    (3) That, if the.negligence of the engineer alone caused the accident, there could be no recovery, as the engineer ivas such fellow-servant.
    (4) That it was error not to give the last-mentioned proposition in instruction to the jury; a general charge that plaintiff could not recover if his injury was due to the negligence of a fellow-servant being insufficient.
    Error to Cass; Carr, J.
    Submitted December 5, 1902.
    (Docket No. 149.)
    Decided May 12, 1903.
    Case by Frank La Barre against the Grand Trunk Western Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      JE. W. Mecldaugh ( Geer & Williams, of counsel), for appellant.

      W. O. Jones and M. L. Howell, for appellee.
   Hooker, C. J.

The defendant has brought error on a judgment for $4,000, recovered by the plaintiff for personal injuries received while loading rails upon a moving train. The negligence relied upon is:

.1- That he was inexperienced in such work, and was given no instructions how; to do it, nor any warnings against the danger of a rail falling off after it was thrown upon the moving car.
2. That the work was done in such haste as to make it unnecessarily dangerous.

The defendant contends that the court should have said to the jury:

1. That the method of loading the rails was not negligent.
2. That the plaintiff assumed the risks of the employment.
3. That the plaintiff’s injury was caused by his own negligence.
4. That, if any other persons were guilty of negligence which contributed to cause the accident, they were fellow-servants of plaintiff, for whose negligence the defendant is not liable.

There is much testimony tending to show that the general method adopted of loading these rails — i. e., upon moving cars, with gangs of men taken from section gangs — was the ordinary method of doing such work, where the rails have been obtained from taking up an old track. We think there is no proof to the contrary, and therefore, so far as defendant’s general method, adopted in this instance, is concerned, it was not shown to be negligent. We do not overlook the case of Palmer v. Railroad Co., 87 Mich. 281 (49 N. W. 613), which is said to be on all fours with this case. We think that case does not hold that in all cases a court must leave to the jury the reasonableness of this method of loading rails, — i. e., loading them upon moving cars, — and that a jury in any and every case may award damages to persons injured if the train is not stopped for the loading of each individual rail. If it could be said that such was the holding, it was at best under the proofs in that case. In another the undisputed proof might show the contrary.

But we think the inference is not warranted. Many more things than the general method are involved in that case. For instance, every one must admit that there is a limit to the ability of men to keep up with*a train, and there is a limit to human endurance, and, should this be passed through the fault of the master, we are not prepared to say that there might not be circumstances under which he should be held liable for the consequences. In the case before us, if it is true that the men were forced beyond their powers of endurance, or ability to keep up or to avoid injury, and the-plaintiff was injured in consequence, the fault was that of some one or more of the defendant’s servants.

The plaintiff claims that the defendant’s train and men were in charge of an assistant roadmaster, who had general supervision of all. If it can be said that the alleged haste was due to him, and that he was not a fellow-servant, the master must be held responsible for- the haste. There was testimony, also, that this man was not instructed, and that he was not warned. We cannot say that it was necessary that he should be, and, while we are impressed that this was much like common labor, and that the sectionman who is in the habit of handling rails can hardly need information as to the way in which they should be handled, even in loading a moving car with them, we cannot say, as matter of law, that the defendant did not owe him the duty claimed. In the Palmer Case this was held to be a question for the jury. This being so, the duty was that of the master, and the failure to give it was the negligence, of the master, if it was negligence.

The assistant roadmaster testified that he merely happened to go with the train that day to check up the'rails; that the train was in charge of a conductor, and the gang of a foreman. It goes without saying that whoever was in charge of that work owed it to the men to see that they were not overworked through undue haste; but whether the master is accountable of not must depend upon whether such person is to be held a fellow-servant or not. It is claimed that the assistant roadmaster was the vice-principal, and such was the holding in the Case of Palmer, supra, and the company was held liable under the facts in that cáse. Exhaustion, and danger from undue haste in running the train, might be due to the negligence of the engineer or conductor, or it might be due to negligence in the management of the enterprise by a foreman in charge of the job, without any negligence of a vice-principal, if one were present; and, if so, as all were engaged in the common enterprise, the plaintiff could not recover for such negligence, because it would be that of a fellow-servant, which is an assumed risk. Upon this branch the case is resolved into two questions: (1) Was the negligence of the assistant roadmaster the cause of the injury? (2) If so, does the fellow-servant rule apply ? The first question is one of fact, and properly belongs to a jury. The second is one that has caused most courts trouble.

The general rule established in this State is that the-question of whether or not one is a fellow-servant is to be-settled by the nature of the act, rather than the rank of the respective servants. When that rule can b'e applied, it furnishes a comparatively safe guide. Counsel for defendant contend for its application here. On the part of the plaintiff it is contended that there is a class of servants for whose negligence the master is liable, although, if it were the negligence of one belonging to another class of servants, he would not be. This is upon the theory that one who represents the master in the way of general control of the business, as his representative, is his vice-principal, and binds him. It is manifest that this is, in a sense, antagonistic to the former rule, for in a way many servants represent the master, and have, in the division of labor, control, more or less general, in their respective departments, who are called “fellow-servants.” Yet the doctrine exists, and there is much to be said in favor of its application in proper cases. The necessary consequence, however, is a constant struggle for its extension by servants, and a corresponding effort for its restriction by masters, which serves to illustrate the necessity for a consistent rule, which shall make the line of demarkation plain and reasonable, instead of uncertain and arbitrary. But it is not easy to suggest a test which can be safely said to be an infallible one.

In Quincy Mining Co. v. Kitts, 42 Mich. 34 (3 N. W. 240), there is an intimation of the rule contended for by the plaintiff, but it is held that a timberman in a mine does not come within it. It is hinted at in Smith v. Potter, 46 Mich. 265 (9 N. W. 273, 41 Am. Rep. 161), but held that an inspector of cars has not a duty of management or general supervision, and is not within such rule. It was announced in Ryan v. Bagaley, 50 Mich. 179 (15 N. W. 72, 45 Am. Rep. 35), and applied to a mining captain, who had exclusive and complete control of the physical part of the master’s business. In that case the rule was carefully limited.

The case of Hunn v. Railroad Co., 78 Mich. 513 (44 N. W. 502, 7 L. R. A. 500), extended the rule to one who did not have exclusive and full control of defendant’s business, and applied it to a train dispatcher, who had supervision over the running of trains. Presumably, he did not determine what trains should be sent out, and the case, while well supported by authority in some States, is at variance with decisions in others, and is said to be within the principle of Ryan v. Bagaley, supra, because the train dispatcher is “ given supreme controland it is also, said that “his act is the act of the master.”

In Harrison v. Railroad Co., 79 Mich. 409 (44 N. W. 1034, 7 L. R. A. 623, 19 Am. St. Rep. 180), an assistant roadmaster took a train to move telegraph poles for some construction or repair work. He personally gave directions to a member of the working gang, who was injured in consequence. It was held that they were not fellow-servants, and it was left to the jury to say whether the injury was the result of his negligence or that of the engineer, upon which liability was made to depend. Id., 79 Mich. 416. The discussion from page 421 to 428 apparently indicates the view that the assistant road-master represented the master.

The case of Palmer v. Railroad Co., 87 Mich. 281 (49 N. W. 613), Id., 93 Mich. 366 (53 N. W. 397, 17 L. R. A. 636, 32 Am. St. Rep. 507), closely resembles the present case.

In Erickson v. Railway Co., 93 Mich. 414 (53 N. W. 393), the doctrine was applied to the foreman of a gravel train. The question was passed over without much discussion, and was said to have been ruled by the Harrison Case. It is difficult to distinguish this case from one involving the negligence of the conductor of any train.

In Gavigan v. Railway Co., 110 Mich. 71 (67 N. W. 1097), a section foreman was held to be a fellow-servant of his men.

In Morch v. Railway Co., 113 Mich. 154 (71 N. W. 464), a foreman sent in place of a roadmaster was held not to be the alter ego. This case and the Schroeder Case, infra, are distinguishable from most of the others, as the foremen had no general authority or control of a branch of the road or business. They were simply in charge of their respective gangs.

The embarrassment from these decisions was foreseen and indicated in Beesley v. F. W. Wheeler & Co., 103 Mich. 203 (61 N. W. 658, 27 L. R. A. 266), where the question was reserved, and Schroeder v. Railroad Co., 103 Mich. 213 (61 N. W. 663, 29 L. R. A. 321, 50 Am. St. Rep. 354), where the authorities are discussed. In the latter case a foreman was held not to be the alter ego.

It will be seen from this review that the assistant road-master is within the rule contended for by the plaintiff, and, if the negligence was his, the master was liable. The jury so found, and it was not error on the part of the learned circuit judge to submit the question.

We cannot say that the undisputed proof shows plaintiff to have been guilty of contributory negligence, and no authority is cited to the proposition that, “if any fellow-servant was guilty of any negligence which contributed to the accident, defendant is not liable.” Hunn v. Railroad Co., 78 Mich. 513 (44 N. W. 502, 7 L. R. A. 500). We are not certain that counsel intended to be understood that a plaintiff is affected by contributory negligence of a fellow-servant. If not, their contention is probably satisfactorily disposed of by our holding that, if the negligence-of the engineer alone caused the accident, without fault on the part of the assistant roadmaster, the plaintiff could not recover. See Harrison v. Railroad Co., 79 Mich. 416 (44 N. W. 1034, 7 L. R. A. 623, 19 Am. St. Rep. 180).

There is no reason to question the general rule that an employe assumes the risk of the dangers incident to the business in which he engages, so far as they are understood or apparent. The plaintiff did so in this case; but he cannot be said to have assumed the risk of the negligent acts of the master himself, or one who is his alter ego, within the cases cited. The plaintiff’s injury is, according to his claim, due to one or both of two causes: (1) Ignorance of a danger; (2) unreasonable haste in doing the work. Unless we can say as matter of law, from the undisputed evidence, that this work was such that one ordinarily employed, and who had experience, as a sectionman, should have understood the danger, there was a duty of instruction and warning, and this duty was that of the master, who could not avoid the responsibility by imposing it upon a servant.

Again, while the general method of loading rails on moving cars may not be negligent, there may be circumstances under which, and times when, it is not prudent, and when to keep the train in motion might be negligence on the part of the person responsible therefor. In such case the master might or might not be liable, depending upon whether the negligence was that of a fellow-servant or not. A jury should not be given to understand that a master is liable when he is only made so by treating as a part of the general method adopted by the company all of the departures from prudence by those charged with the work. In this case the defendant had a right to send a train to move these rails, in charge of a competent man, without explicitly pointing out the exact method, whether by loading upon moving or stationary cars or prescribing a rate of speed. The management might be negligent or not, according -to what should be done.

The plaintiff claims that the negligence consisted in not warning the plaintiff, and in overtaxing the men by undue speed, for which the person who set plaintiff at work and the assistant roadmaster were to blame. . There was testimony that the train was in charge of a conductor, who controlled the speed by signaling the engineer, and a foreman, who supervised the work of the men by directing them when to throw the' rails, though it is admitted in defendant’s brief that this accident occurred when the conductor was absent, and while the assistant roadmaster was acting as conductor, and that he directed that the train be moved at the rate of one mile pér hour. He testified, however, that he gave no orders, and had nothing to do with the control of the train, and that he merely happened to be there that day, and that the engineer controlled the speed. Again, he said':

“That day I was simply on the train keeping tab on my car numbers and the number of rails loaded, so I could make my report. I was busy until they were through loading. I was simply right there with the train, keeping check of my rails and cars. The train didn’t move under my orders. I told the engineer and the conductor that the rails would be loaded while the car was moving. I think I told the engineer to go about a mile an hour.”

This testimony made it possible for the jury to find that the accident was no't due to the assistant roadmaster’s negigence, and that it was ascribable to the engineer. Harrison v. Railroad Co., supra. The charge recognized no such possibility, and left the jury nothing to do but to find a verdict of guilty if the jurors found that an injury resulted from undue speed or an improper method of loading. It is true that the judge told the jury that the plaintiff could not recover if the plaintiff or his fellow-servants were guilty of negligence contributing to the injury, but they were not told who his fellow-servants were, and they may have understood the term to have application to members of his work gang only. There was not a hint that the engineer or foreman was a fellow-servant, yet there is proof that the foreman gave the word to throw when plain, tiff was hurt. In view of these facts, instruction that “the master was represented by James Hamilton, the assistant roadmaster,” and that “the defendant is responsible for the management of the work, and the negligence of management is the defendant’s negligence,” was too broad. This was apparently a request to charge of the plaintiff’s counsel, and, while requests to charge are frequently efficient aids to the trial judge, they are apt to be, as in this case, misleading, when they are given to the jury as such. It is preferable and safer to give a connected and logical charge, in which so much of the various requests as can be properly and profitably used is included without reference to the fact that they are requests of either party.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


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    WETTLAUFER v. AMES.
    1. Dower — Merger—Presumptions.
    Where all of the heirs of a deceased landowner quitclaimed to the widow, who afterwards reconveyed to the heirs, reserving her dower right, held, that such right remained in the widow, an intention that it should not merge by the deed to her being presumed as in accordance with her interest.
    2. Same — Assignment—Partition—Appeal.
    While, under 3 Comp. Laws, § 11016, dower may be set off in an ordinary partition suit, the court’s refusal to do so, on the ground that the right had become extinguished, can be complained of only by the claimant.
    3. Easements — Merger—Revival.
    Where the owner of a lot entitled to an easement over an adjoining lot acquired the fee in the servient estate, and later, and while the easement was being used, deeded the two lots to different parties, the easement, which had been merged in the fee, was revived.
    4. Partition — Mortgage Sale — Redemption.
    Under 3 Comp. Laws, § 11020 et seq., § 11050 et seq., a tenant in common can maintain a partition suit against his co-tenant, though the latter has redeemed the property from a foreclosure sale, and the former has neither paid nor tendered his share of the cost thereof.

      5. Tenancy in Common — Accounting—Rent.
    A tenant in common may, on an accounting with his co-tenants, be charged with rent for his occupancy of the premises, if in accordance with the understanding of the parties.
    6. Same — Redemption—Interest.
    A tenant in common who redeems from a mortgage foreclosure is entitled to interest on the amount paid, as against his co-tenants, at the legal rate, rather than at the rate borne by the mortgage.
    Cross-appeals from Wayne; Donovan, J.
    Submitted January 7, 1903.
    (Docket No. 10.)
    Decided May 12, 1903.
    Bill by John C. Wettlaufer and Henry Wettlaufer against Annie C. Ames,.August F. Wettlaufer, Mary Berringer, and Mary Wettlaufer for a partition. From the decree rendered, complainants, and defendants Ames and August F. Wettlaufer, appeal.
    Affirmed.

      Walker & Spalding, for complainants.

      Charles W. Casgrain, for appealing defendants.
   Hooker, C. J.

Previous to his death, Frederick Wettlaufer was the owner in fee of a parcel of land and two-story brick building thereon, at the corner of St. Antoine and Mullett streets, in the city of Detroit, which, for convenience, we will call “Lot A.” Adjoining it on the north was an elbow-shaped lot, fronting on St. Antoine street and Gratiot avenue, described as lot 7. The accompanying plat will serve to show the situation of' the premises.

Lot 7 was owned jointly by Frederick Wettlaufer and his wife, Mary. Lot A was wholly covered by a brick building, the dotted lines on the plat showing wooden partitions, by which the building was divided into three store rooms. At the north end there was a passageway six feet wide, with a door near the west end of the north wall of the building, opening upon, and giving access to, the adjoining lot 7, which was covered by a brick dwelling fronting St. Antoine street, and a brick store fronting Gratiot avenue. The passageway furnished the only means of access to the back rooms of these buildings, except through the buildings themselves, from their respective front entrances. The sewer drain for all of the buildings was underneath the passageway mentioned.

After the death of Frederick Wettlaufer, his widow, Mary, deeded lot 7 to the complainants, John and Henry Wettlaufer, her sons, and lot A was deeded to her by all of the heirs of Frederick, viz., all of the parties to this

suit except herself. They were all sons and daughters of Frederick and herself. Subsequently some dissatisfaction arose over the appropriation of the rents received from lot A, and Mrs. Wettlaufer deeded lot A to the five sons and daughters, reserving her right of dower, and on the same day, though later, deeded her interest in lot A to the complainants, who thereupon made a claim of ownership. They afterwards filed the bill in this case, asking an accounting for the rents and profits and a partition of the lot A. The bill alleges that Mary Wettlaufer is entitled to her dower interest therein. The bill was taken as confessed by Mary Berringer and Mary Wettlaufer, the widow. August F. Wettlaufer and Annie C. Ames answered.

At the time Frederick died, there was a mortgage upon lot A. The premises were afterwards redeemed after foreclosure by August F. Wettlaufer and Annie C. Ames. Annie and her husband afterwards occupied a portion of the premises upon an agreement of the husband to pay rent, which he did. After his death she continued to occupy the premises, and part of the time, at least, paid some rent, under an agreement with August, to whom she paid it.

The complainants ask the benefit of an accounting of the rents and income received from, and the disbursements and liabilities incurred on behalf of, the property by all of the parties, and that the amounts found due to and from the respective parties be decreed to be liens on the respective debtors; that Mary Wettlaufer’s dower be ad-measured, and that the decree direct the manner in which the same shall be satisfied and discharged; and that partition be had of the property, and, if division of the same cannot be made without great prejudice to the owners, a sale may be had, and the proceeds divided as the interests of the respective parties may be found.

Upon a hearing of the cause the trial court decreed that each of the parties, except the widow, had an undivided one-fifth interest in the premises, subject to certain deductions, which constituted liens; that Mary Wettlaufer had no interest in the premises. An account was taken, in which each party was credited with his or her disbursements, and charged with a share of the mortgage debt paid by Annie C. Ames and August F. Wettlaufer. Such parties as had received rents were charged with them, and Annie C. Ames was charged with rent for the premises occupied by her, while such as had made disbursements were credited with them. The premises were found to be so situated that a partition would be prejudicial to the owners, and it was decreed that they be sold, and the proceeds divided, such sale to be subject to an easement in favor of the complainants, their heirs and assigns, for their access to lot 7. A solicitor’s fee of $150 was allowed to the complainants, in addition to the taxable costs and expenses of the suit and sale, to be paid out of the fund.

The defendants August F. Wettlaufer and Annie C. Ames and the complainants have appealed. The complainants urge:

1. That dower should be set off to the widow.
2. That the property should be partitioned, or, at least, that the north store should be set off to them, which portion should include the six-foot passage mentioned. They were indifferent as to the sale of the other part of the premises.

The defendants contend:

1. That, inasmuch as the complainants have neither paid nor tendered their share of the cost of redemption of the premises, they cannot have a partition.
2. That, if this is not so, no allowance for dower should be made.
3. That Mrs. Ames should not have been charged with rent, because, as a tenant in common, she had a right to occupy the premies without charge.
4. The property should not have been sold subject to the easement.
5. Interest upon the money paid for redemption should have been at the rate of 8 per cent., that being the rate fixed by the mortgage; citing 2 Comp. Laws, § 4865.
6. The solicitor’s fee of $150 was excessive.

The defendants say that the right to dower was extinguished by merger when they united in a quitclaim of the premises to their mother. We are of the opinion that a different intention may reasonably be deduced from the circumstances. The rule that a merger will not be found, in the absence of expressed intention, if a continuance of the lesser interest is beneficial to the owner, applies. That is the rule as to cases where a mortgage is purchased by the owner of the fee. See 20 Am. & Eng. Enc. Law (2d Ed.), 1064. Among the many cases cited in support of this are the following Michigan cases: Bassett v. Hathaway, 9 Mich. 28; Powell v. Smith, 30 Mich. 451; Ann Arbor Sav. Bank v. Webb, 56 Mich. 377 (23 N. W. 51); Cook v. Foster, 96 Mich. 613 (55 N. W. 1019); Burt v. Gamble, 98 Mich. 409 (57 N. W. 261), and cases cited; Ten Eyck v. Railroad Co., 114 Mich. 499 (72 N. W. 362); Quick v. Raymond, 116 Mich. 15 (74 N. W. 189). Many cases hold that merger will never be allowed in equity, unless for special reasons, and that, at the least, it is a matter of intent, which will be presumed in accordance with the interest of the owner. See 20 Am. & Eng. Enc. Law (2d Ed.), 590, 591, and notes. We have no difficulty, under such a rule, in holding that there was no merger. The dower -interest remained in the widow, unless it was devested by her quitclaim deed to John and Henry, it having been reserved in her earlier deed to the five children; and as John and Henry do not claim it, but admit that it is still in the widow, and ask that it be set off to her, we need not discuss its whereabouts further, but only the question whether it should be set off to her in these proceedings. That it might have been is settled by 3 Comp. Laws, § 11016; but the widow has not appealed, and the complainants cannot complain of the decree so far as her interests are concerned.

We are satisfied that the learned circuit judge was justified in requiring all of lot A to be sold, rather than to set off a portion of it to the complainants, and that he did not err in directing that it be sold subject to an easement appurtenant to lot 7. The record indicates that, previous to the time that Frederick Wettlaufer became the owner of these premises, a strip of land about six feet wide extended along the short side of lot 7, and in the rear of lots 1, 2, 3, 4, 5, and 6, and there was and still is a sewer there, which we infer to be still in use by the owners of lots A and 7, and perhaps other lots, through which it extends. Apparently a hallway for common use extended through the various buildings built over this strip, for the testimony shows that, when Frederick Wettlaufer bought lot A, he made an arrangement with the property owners to discontinue this hall on the other property. Upon the death of Frederick, his wife became sole owner of lot 7 bysurvivorship, and a month later she acquired a full title to lot A. The effect of this was to merge the easement in her more complete title. The building was then erected on lot A, in which this hallway was preserved, and from the northwest corner a door opened into a hall in the rear of the brick dwelling, through which access was had to the brick block on Gratiot avenue. Some four years later she deeded this lot A to her five children, reserving her dower rights, as already stated. On the same day she conveyed lot 7 to the complainants, after deeding lot A, as aforesaid. At this time the hall was plainly in use as an appurtenance to lot 7. The defendants must have known it, as well as the fact that the sewer was in use, and that the drainage from the roof of the buildings on lot 7 ran into it. Under these circumstances, we think the old easement was revived. Mary Wettlaufer clearly manifested her intention that the hall should be used as appurtenant to lot 7. Had she sold lot 7 to a stranger and retained lot A, an easement would have passed with the property. The defendants, who took title to lot A in common with the complainants, should be held to have taken the land subject to the easement. Kieffer v. Imhoff, 26 Pa. St. 443; Phillips v. Phillips, 48 Pa. St. 178 (86 Am. Dec. 577); McCarty v. Kitchenman, 47 Pa. St. 241 (86 Am. Dec. 538); Pennsylvania R. Co. v. Jones, 50 Pa. St. 424; Overdeer’s Adm’r v. Updegraff, 69 Pa. St. 119; McTavish v. Carroll, 7 Md. 360 (61 Am. Dec. 353); Brakely v. Sharp, 9 N. J. Eq. 14; Dennis v. Wilson, 107 Mass. 591.

In Vermont and Massachusetts it has been held that one is not entitled to partition against his co-tenant holding under a valid tax title, or one who has redeemed from a foreclosure sale. See Hurley v. Hurley, 148 Mass. 444 (19 N. E. 545, 2 L. R. A. 172); Wilmot v. Lathrop, 67 Vt. 671 (32 Atl. 861). It is said that the case of Reed v. Reed, 122 Mich. 77 (80 N. W. 996, 80 Am. St. Rep. 541), has committed this court to the same doctrine; but we think otherwise. A different question was involved in that case. In Vermont and Massachusetts a mortgagee takes the legal title in the land mortgaged. That is not so in Michigan; therefore it cannot be said that co-tenants, have no rights of possession against a mortgagee or his. assignee, whose redemption inures to the benefit of his co-tenants. But, whether or not this distinction is a sufficient reason for not following these cases, our statutes seem to contemplate that persons holding mortgages and other liens may be made parties, and their interests adjusted, in partition proceedings instituted by owners of the land. 3 Comp. Laws, § 11020 et seq., § 11050 et seq.

We are of the opinion that Mrs. Ames was rightfully charged with rent, taking into consideration the nature of her occupancy and the understanding of all of the parties, at the sum fixed by the decree.

We think that the rate of interest was correctly fixed by the learned circuit judge, and that we should not interfere with his discretion in the matter of costs.

The decree is affirmed, without costs to either party.

The other Justices concurred.


text:
    SUNLIN v. SKUTT.
    1. Partnership — Tort op One Partner — Liability op Copartner.
    Where property of a third person is unlawfully taken by one of two partners, and is employed in the partnership business,the other partner is liable for its use, though supposing it to belong to his copartner.
    2. Joint Trespassers — Discharge.
    . The release of one joint trespasser is the release of all, irrespective of the intention of the parties.

      3. Same — Pleading—General Issue.
    The defense to an action of trespass to personal property, that plaintiff settled with defendant’s co-trespasser, is inadmissible under the general issue, even in justice’s court.
    Error to Kent; Wolcott, J.
    Submitted February 18, 1903.
    (Docket No. 103.)
    Decided May 12, 1903.
    Trespass de bonis by Louis F. Sunlin against Henry Skutt. From a judgment for defendant, plaintiff brings error.
    Reversed.
    This case originated in justice’s court, was appealed to the circuit court, and there tried without a jury. It is an action of trespass to personal property. The written findings are as follows:
    “ 1. That, in the spring of 1900, plaintiff was the owner of a steam pump, which was at that time situate in his stone quarry at No. 500 N. Front street in the city of Grand Rapids; that he left the city in the month of April, 1900, and did not return until the month of May, 1901; and that the plaintiff operated his stone quarry at 500 N. Front street in the year 1895, and in the year 1898 it was operated by one Daniel Davis.
    “2. And I further find that in September, 1900, Eaton & Williams were running a stone quarry in Grand river, in the city of Grand Rapids, on property belonging to the Comstock estate, operating their pump and drills by hand; that the said Daniel Davis, who was working for them drawing stone, told them that he owned a steam pump which they could use; that Eaton and Williams accompanied Mr- Davis to what afterwards proved to be Mr. Sunlin’s quarry, and removed the pump to the said quarry of Eaton & Williams, where it was set up and used by them about a week in operating their quarry, when Eaton & Williams sold out their interest in the quarry to the defendant, Henry Skutt, who entered into an agreement with said Daniel Davis to operate said quarry, said Davis to furnish his own labor, together with his team, wagon, and a steam pump, as against the labor of said Skutt, together with his team, wagon, and steam drill.
    “3. That said quarry was operated by said Skutt and Davis under said agreement (barring times when it was shut down on account of storms and when the dam was out) up to January 3, 1901, a total of 88 days, when the quarry was closed up, and Skutt bought out the interest of Davis in the stone then on the bank of the river, and Skutt took away the drill, and the steam pump was taken down at the direction of Mr. Davis, and left at the edge of the quarry by the bank of the river.
    “4. I further find that the defendant, Henry Skutt, never knew the pump was the property of the plaintiff, Sunlin, until the spring of 1901, after it had been returned to Mr. Sunlin by Mr. Davis, but believed the same was the property of Mr. Davis.
    “5. I further find that in 1901, before this suit was brought, the plaintiff accepted $40 of Mr. Davis for the use of said pump,
    “6. I further find that the defendant, Skutt, never had any knowledge of, concurred in, or ratified the taking of plaintiff’s pump by said Daniel Davis, and never received the benefit of said taking; it being the duty of said Davis, under the agreement by which the quarry was being operated, to furnish his own labor, a team, wagon, and steam pump, as against the labor of Skutt, his team, wagon, and steam drill.
    ‘ ‘ Conclusion of Law: The pump having been taken by said Daniel Davis without the knowledge, consent, or concurrence of said defendant, it follows, as a matter of law, that the defendant is not liable, to the plaintiff in the action of trespass.”

      C. H. Gleason (Arthur Lowell, of counsel), for appellant.

      Smedley & Convin, for appellee.
   Grant, J.

(after stating the facts). We think the learned circuit judge was in error in holding that the defendant was not liable. The pump was used in the partnership business, and both of the partners received the benefit of it. That defendant acted in good faith is true; but good faith in the purchase or use of personal property is no defense as against the rightful owner. He who purchases or uses the property of another, taken unlawfully, is liable to the owner in an action of replevin without demand, or an action of trover for conversion, or, if the property is returned or retaken, for the value of the use by the innocent trespasser. Haviland v. Parker, 11 Mich. 103; Trudo v. Anderson, 10 Mich. 357 (81 Am. Dec. 795). “Absence of bad faith can never excuse a trespass.” Cubit v. O'Dett, 51 Mich. 347 (16 N. W. 679). A teamster is equally liable with a sheriff when taking property not covered by his writ. Kane v. Hutchisson, 93 Mich. 488 (53 N. W. 624). So, an auctioneer is liable in trover for the unlawful sale of goods under a chattel mortgage, though he act in good faith. Kearney v. Clutton, 101 Mich. 106 (59 N. W. 419, 45 Am. St. Rep. 394). This case does not fall within the rule invoked by the defendant, and stated in 1 Jaggard, Torts, § 99, as follows:

“In order that responsibility be attached to a partner with respect to a tort, it is necessary either — (a) that he should have authorized it, or joined in its commission, in the first instance; (b) that he should have made it his own by adoption; or (c) that it should'have been committed by his copartner in the course and as a part of his employment.”

The pump was taken by the joint action of both partners as soon as the partnership was formed and the work commenced. It was used by them while they remained in partnership. When property is thus used by a partnership, the partnership is liable to the owner, although one partner may innocently believe that the property is actually owned by the other.

After this case was tried, the case of McBride v. Scott, 132 Mich. 176 (93 N. W. 243), was decided. This court notified the attorneys to file briefs upon the question whether the settlement with one of the trespassers had not released the defendant under that decision. Briefs were furnished, showing that the defense was not made in the court below, and claiming that it was not admissible under the general issue. The objection is well taken, otherwise the judgment should be affirmed. The defense is not available under the general issue. Cir. Ct. Rule 7; section 767, 1 Comp. Laws; Hubbard v. Freiberger, ante, 139 (94 N. W. 727).

The judgment is reversed, and new trial ordered.

The other Justices concurred.