text:
    DAVIS v. BUSS MACHINE WORKS.
    1. Master and Servant — Assumption op Risk.
    At common law a servant employed as a nightwatchman would assume the risk of using a ladder or stairway having no concealed defects or peculiarities, constructed without a handrail.
    8. Same — Statutes.
    But under Act No. 285, Pub. Acts 1909, requiring manufacturing establishments to provide stairways with substantial handrails, plaintiff did not assume the risk of defendant’s failure to comply with the requirement.
    3. Words and Phrases — Ladder—Stairway.
    A ladder is a tool, usually portable, consisting of sides and cross steps or rungs, and is distinguishable from a stairway in that a ladder has treads but no risers, while a stairway pertains to architecture, and has risers, treads, nosings, fliers, and winders, and is stationary.
    Certiorari to Ottawa; Padgham, J.
    Submitted January 16, 1912.
    (Docket No. 73.)
    Decided March 29, 1912.
    Case by Banajah M. Davis against the Buss Machine Works for personal injuries. An order overruling a demurrer to plaintiff’s declaration is reviewed by defendant on writ of error.
    Affirmed.

      Diekema & Kollen, fdr appellant.

      Fred T. Miles and Corie G. Coburn, for appellee.
   Steere, J.

This case comes before us on a writ of certiorari to review an order of the circuit court overruling defendant’s demurrer to the plaintiff’s declaration. The action is brought to recover damages for personal injuries alleged to have been sustained by the plaintiff from falling down stairs in defendant’s factory while making his rounds as nightwatchman in its employ. The declaration is in legal and logical form, and the demurrer is to its substance rather than its form. The actionable negligence alleged is a failure to make the stairway down which plaintiff fell reasonably safe and provide it with a substantial handrailing, as required by section 14 of Act No. 285, Pub. Acts 1909.

Defendant, which is a corporation, owned and operated a machine shop in the city of Holland, Mich., and was engaged in the manufacture of certain kinds of machinery—

“ In a one and two story building, * * * which said building was and is a one story brick veneered building having a second story or cupola on a portion of the same near the middle part of said building, and which said second story was and is connected to the first story by a very narrow stairway, which is, in fact, only a ladder leading from the first floor to the second floor, the steps of said ladder being about two feet long and four inches wide, of wood, and unprotected by any material to prevent one slipping on the same, the said stairway or ladder itself being very steep, and about 14 feet in length, and having a jog or break about 6 feet from the floor, and being situated back of the boiler in the boiler room; said stairway not having any handrail on either side, or being protected in any manner to insure the safety of any one having occasion to use the same.”

The declaration alleges in proper form the duty of the defendant to provide a reasonably safe stairway, and keep the same in safe condition, and equip it with substantial handrailings as required by the statute, and alleges breach of duty in that particular. It further alleges that plaintiff was receiving wages of $9 per week, and had been in defendant’s employ as nightwatchman for more than three months, when, on the night of November 5, 1909, while engaged in his duties as nightwatchman, going his rounds through the building, as directed by his employer, and ascending to said cupola in the line of his duty, then exercising due care on his part, he slipped and fell backwards a distance of nine or ten feet, thereby breaking two ribs, and being otherwise injured, “solely because of the unsafe condition of said stairway and of the defendant’s neglect to provide a proper and reasonably safe stairway with a handrailing to which he could cling.”

The demurrer avers that no cause of action is stated; that plaintiff assumed the risk of all obvious dangers incident to his employment; that the danger stated was an obvious one, and that no latent or hidden dangers are stated in the declaration; that the ladder complained of is not shown to have been—

“Defective or made of improper material, or that it was unsafe, nor does the declaration show that the defendant was negligent in furnishing plaintiff a safe place to work; and the declaration shows that plaintiff had been using this ladder for more than three months, knew its condition and therefore he assumed the risk, if any there was, in connection with its use, and shows, further, that the injury sustained was either the result of negligence on the part of the plaintiff or otherwise purely accidental without defendant’s fault.”

It is not alleged that this stairway or ladder was unsound or had any peculiarities or defects that were latent or concealed, or that anything gave way or broke. It has long since been recognized that falling downstairs, where the mishap was not imputed to unknown or concealed defects, belongs to that class of ordinary accidents which ought to be imputed to the carelessness or misfortune of the sufferer. [ Wilkinson v. Fairrié] 1 Hurl. & Colt. 633; Sweet v. Coal Co. (1890), 78 Wis. 127 (47 N. W. 182, 9 L. R. A. 861). In the absence of the statute, we think it clear there could be no recovery for the event stated in the declaration. The provisions of the statute under which recovery is sought are in part as follows:

“Stairways with substantial handrails shall b9 provided in manufacturing establishments, and where in the opinion of the factory inspector it be necessary the steps of such stairs in all such establishments shall be substantially covered with rubber securely fastened thereon for the better safety of persons employed in said establishments.”

Counsel for plaintiff, having designated the means of ascent and descent complained of both as a stairway and a ladder, say “they must provide a stairway. If they provide simply a ladder, of course, they violate the statute.” The statute does not specify when or in what cases stairways shall be provided. It would be absurd to apply the statute to a manufacturing establishment of only one story where there was no occasion for the employés to go up and down in the usual course of their employment. It would be unreasonable to apply it to every means of ascent to unfrequented parts of the building where the construction of a stairway was impracticable, and, though not regularly frequented by the employés, nevertheless means of access were desirable on rare occasions, as in the case of fire or some special or unusual circumstance. We think it was the legislative intent to require stairways, with the safeguards specified, in all cases where means of ascent and descent are needed or desired, and are used by employés at their work in the line of their employment.

The declaration is somewhat confusing in the particular that it designates the same things by conflicting names. It describes the building as “a one and two story building,” and—

“A one-story brick veneer building having a second story, or cupola, on a portion of the same near the middle part, which was connected to the first story by the stairway in question * * * which is in fact only a ladder.”

A stairway is not a ladder, nor a ladder a stairway. A stairway appertains to architecture. It has various technical parts consisting of risers, treads, nosings, fliers, and winders. It is stationary. A ladder is in the nature of a tool, is a frame, usually portable, of wood, metal, or rope, used for ascent or descent, consisting only of two parts, the sides and the cross-steps, or rounds, or rungs, which form the steps. One- distinguishing feature between a stairway and a ladder is that a ladder has treads but no risers. A cupola is not a story of a building. It is the top of a structure, usually a cup-shaped spherical roof, though the terms also apply to any smaller structure rising above the roof, whatever may be its shape. The declaration does not inform us what, if any, useful purpose the cupola and ladder, or second story and stairway, served in the business conducted in the building, or who, if any one besides the watchman, used them.

Nevertheless, it is stated in the declaration that plaintiff was employed in a manufacturing establishment; that there was a second story connected with the first story of this building by a narrow stairway, not having any handrail on either side; that, under his instructions, it became the duty of the plaintiff to pass up and down said stairway, and while so doing, in the performance of his duties in the line of his employment, he was hurt, owing to the absence of such protection, and while exercising due care and caution on his part.

These allegations state a violation of a statutory duty which defendant could not legally contract to violate. Plaintiff did not assume the risk of such violation. It is alleged he was using the stairway in a manufacturing establishment under orders of his employers, in the line of his duties, was guilty of no fault or negligence which contributed to the accident, but fell and was injured owing to the statutory negligence stated. We think the declaration, taken as a whole, stated a cause of action.

The judgment of the circuit court in overruling defendant’s demurrer to the same is affirmed.

Moore, C. J., andMcALVAY, Brooke, Bdair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    ROBINSON v. WESTERN UNION TELEGRAPH CO.
    1. Contracts — Offer and Acceptance — Telegraphs and Telephones — Negligence.
    Where plaintiff negotiated orally with an engraving concern to enter its employ, and later wrote that he would enter its employ at $37.50 a week for six months, and $40 thereafter, which offer the company accepted after certain further negotiations, saying that if plaintiff made good after six months they would give him the increase, and that he would be required to work eight or nine hours a day, and at a stated rate overtime; plaintiff replying that the acceptance was satisfactory if his employment was to be steady, and defendant further answering favorably, there was a completed contract, though the employer expressed a wish to have him report by September 20th, and he notified the company by letter that he could not arrive before September 27th; that arrangement being afterwards acquiesced in by the employer.
    2. Same — Statute of Frauds — Term of Employment — Master and Servant.
    The oontraot was valid. It was not a contract for a year’s employment to commence at a later time; although plaintiff had declared in oral negotiations that he would not accept employment for less than a year. And the correspondence contained the completed agreement.
    3. Same.
    Where it is possible that a contract may be completed within a year, it is not within the statute,
    4. Telegraph and Telephones — Negligence—Contracts,
    Defendant, a telegraph corporation, was liable to plaintiff for negligence in transmitting a message to a concern with whom he had entered into a contract of employment and who broke off the agreement on receiving a reply to their telegram asking if he would arrive on the 27th, notifying them that he would wire on the 27th; plaintiff having in fact offered for transmission a message replying that he would arrive on the 27th,
    5. Same — Breach—Wrongful Termination of Contract.
    Any act of a servant which injures or tends to injure his master’s business justifies a dismissal.

      6. Same.
    The master was justified in terminating his contraot of employment on receiving the reply, which tended to cast suspicion on the integrity and trustworthiness of the servant.
    7. Same.
    Whether the discharge under such circumstances was reasonable was a question of fact.
    8. Same — Evidence—Conclusion.
    Testimony of the employer was admissible to show that the effect of the error was to arouse his suspicion of the employé, and that, if the message had been received as plaintiff wrote it, plaintiff’s contract would not have been terminated.
    9. Same — Damages—Evidence—Burden oe Proof — Wrongful Discharge.
    In view of the rule that the burden rests on the master to show that the servant by reasonable diligence might have obtained other employment, a judgment for the amount lost by plaintiff was, in the absenoe of such evidence, rightly rendered.
    Error to Kent; McDonald, J.
    Submitted January 17, 1912.
    (Docket No. 96.)
    Decided March 29, 1912.
    Case by Walter O. Robinson against the Western Union Telegraph Company for the negligent transmission of a message. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Bundy, Travis & Merrick (George H. Fearons, of counsel), for appellant.

      Harrington & Warner, for appellee.
   Stone, J.

This is an action on the case to recover damages for alleged negligence in erroneously transmitting a telegram filed by the plaintiff with defendant, by means of which the plaintiff alleges that he was deprived of the benefit of a contract of employment. The case was tried before the circuit judge, without a jury, and, after filing written findings of fact and conclusions of law, a judgment was rendered thereon in favor of the plaintiff for $508 damages, whereupon certain amendments were proposed by the defendant to such preliminary findings of fact and conclusions of law, and the circuit judge thereupon settled and perfected $he findings of fact and conclusions of law, and the same were amended to read as follows :

“Findings of Fact.
“ (1) The plaintiff was the proprietor of an engraving business in the city of Grand Rapids, Mich. In the summer of 1909 he entered into oral negotiations with S. C. Toof & Co., of Memphis, Tenn., with a view of entering its employ as an engraver; the plaintiff being an expert in that trade. At the time of the original negotiations the plaintiff informed S. C. Toof & Co.’s representative that he would not contract to enter their employ for less than one year. These negotiations were temporarily abandoned, but later in the same year were reopened by correspondence between the plaintiff and S. C. Toof & Co., which correspondence consists of the plaintiff’s exhibits A to G, inclusive, here following:
“Exhibit A:
“ ‘Grand Rapids, Mich., Aug. 24, 1909.
" ‘ S. C. Tooe & Company,
“ ‘Memphis, Tenn.
“ ‘ Gentlemen:
“‘Your announcement received, and think it very cleverly gotten up throughout.
“ ‘ You are going after the business with the spirit of success, which will come just as sure as your lithograph work came. Progress and quality harmonizing will build up an immense business along this branch in Memphis same as it has in other cities.
“ ‘ Now, Mr. Zahn, to make this letter brief and to the point, my prospective buyer has decided to remain in Chicago with the same firm he now is with, for the present at least. Therefore, I am, you might say, at the starting point of several weeks ago; but Mrs. Robinson and I have talked the matter over between ourselves and I have decided that if you can see your way clear to pay me $37.50 per week, with an increase of $2.50 per week at the end of six months, I will be at your service.
“ * I have been at my trade 13 years and am familiar with both steel die and copper plate engraving, and do sunken dies as welí. However, you have some samples of my work and should you wish to see them again, I will gladly mail some to you upon request. Of course, our samples hafto speak as to we engravers’ ability, same as the grade of work your firm turns out speaks as to skill of the workmen you employ.
“ ‘ Of course, if I were to come with you, my two presses would be for sale, which we bought new one year ago next month, and are today in perfect working order. The hand press is a King No. 4. The plate press a Kelton, 12 in', bed.
“ ‘ Hoping to be favored with an early reply,
“ ‘Very truly yours,
“ ‘ W. O. Robinson.’
“ Exhibit B:
‘“Memphis, Tenn., Aug. 28, 1909.
“ ‘Mr. W. O. Robinson,
“ ‘ Grand Rapids, Mich.
“ ‘ Dear Sir:
‘“Tours of the 24th to hand and contents carefully noted. We will thank you to again mail us samples of your work on both the copper plate as well as the steel die line, so that we can talk the matter over here. The time has arrived when we want to push this branch, and we request you to let us hear promptly to this so that we may close with you, if so decided, after receiving your answur.
“ ‘As to the presses. Tou understand the minute a press has been in use, it is considered a second-hand machine. Of the King No. 4 we can make no possible use, that size work being done on our power press. . The Kelton we may arrange to take over. What value do you put on it?
“ ‘ Kindly let us hear from you.
“ ‘Yours truly,
“ ‘ S. O. Toof & Co.
“ ‘Diet. Zahn.’
“ Exhibit C:
“ ‘ Grand Rapids, Mich., Aug. 30, 1909.
" ‘ S. C. Toof & Company,
“ ‘Memphis, Tenn.
“ ‘ Gentlemen:
“ ‘Replying to your favor of the 28th inst. requesting samples of my work, I have forwarded under separate cover a very liberal supply of the different branches of the engraving I do and trust that the same will meet with your approval. And will ask that they be returned to me as soon as you have criticised them carefully.
“ ‘As to the presses, I do not care to sacrifice a great deal on them, as I can easily get rid of them at a good figure even later on, as there is a good demand for them. However, should you want the Kelton, I would not feel that I could sell it under $110.00 f. o. b. Grand Rapids.
‘“I have enclosed rough idea of our calendar plate I have been working on at idle times. Think, however, you can see the idea I have carried out.
“ * Kindly let me hear from you as. soon as possible with return of samples.
“ ‘Yours truly,
“ ‘W. O. Robinson.’
“ Exhibit D:
“ ‘Memphis, Tenn., Sept. 4, 1909
“ ‘Mr. W. O. Robinson,
“ ‘ Grand Rapids, Mich.
‘Dear Sir:’
“ ‘ Yours of Aug. 30th, also the samples, to hand, and as per your request we return them herewith.
“‘We accept your proposition to enter our employment for $37.50 per week for a period of six months. If at the end of that time you are making good, your salary is to be increased to $40.00 per week. This is to be a flat rate for either 8 or 9 hours per day, whatever number of hours we may work. Should it any time become necessary for you to work over 9 hours at engraving, then you will put your time in at the same rate per hour, based on the 8-hour working day, viz.: with your salary at $37.50, it shall be 78 cents per hour; when it is $40.00, 83 cents per hour. We never work on Sundays.
“ ‘As to the Kelton 12-in. press, you may ship it by freight for $110.00, f. o. b. Grand Rapids, with the understanding that you come with us.
“ ‘If all this is satisfactory, kindly inform us when you will come.
“ ‘Yours truly,
“ ‘S. C. Tooe & Co.
“ * Otto Zahn, Gen. Manager.
“ ‘ Diet. Zahn.’
“Exhibit E:
“ ‘Gband Rapids, Mich., Sept. 8, 1909.
“ ‘ S. O. Toop & Company,
“ ‘Memphis, Tenn.
“ ‘ Gentlemen:
“ ‘ Your letter of the 4th inst. at hand (also samples).
“ ‘ Terms stated in your letter of the above date mentioned are satisfactory providing it is understood and agreed to that my employment during the term of this contract shall be steady. No broken time or lay off. But as to the presses, I have made different arrangements for them.
“ * I am not in any doubt as to my giving you satisfaction with my work. My little affairs will require until about Sept. 18th to arrange and I will try and report on or about Sept. 20th.
“ ‘ Kindly let me hear at an early date.
“ ‘ Very truly yours,
“ ‘W. C. Robinson.’
“ Exhibit F:
“ ‘Memphis, Tenn., Sept. 11, 1909.
“ ‘Mr. W. O. Robinson,
“ ‘ Grand Rapids, Mich.
“ ‘ Dear Sir:
“ ‘ Your favor of recent date is to hand.
“ ‘It is our intention to give you unbroken employment without any lay-off on our part, excepting on holidays.
“ ‘ Should you lose any time on our account, excepting holidays, then we will be perfectly willing to pay you for same.
“ ‘ On the other hand, we will not pay for time you may lose on your own account, whatever may be the cause.
“ ‘ Hoping this will be satisfactory, and that we may see you here by Sept. 20th, we are.
“ ‘ Yours truly,
“ ‘S. C. Toop & Co.
“ ‘Otto Zahn,
“ ‘ Gen. Manager.
“ ‘Diet. Zahn.’
“ Exhibit G:
“‘Grand Rapids, Mich., Sept. 15, 1909.
“‘S. C. Took & Company,
“‘Memphis, Term.
“ ‘ Gentlemen:
“ ‘Your letter of the 11th inst. is satisfactory as to the unbroken employment, lay-off and holidays, and I am trying my best to get everything in readiness here.
“ ‘ But I do not see how I can possibly be in Memphis on the 20th. But I will be there no later than the 27th, and will try my best to be there before the 27th. Trust, however, this will not put you out any. I will write you very soon again and let you know just what date I can leave here.
“ ‘Yours very truly,
“ ‘ W. O. Robinson.’
“(2) On September 24, 1909, S. C. Toof & Co. telegraphed from Memphis to the plaintiff in Grand Rapids as follows: ‘Will you be here Monday? Answer.’ (Plaintiff’s Exhibit H.) This telegram was an inquiry as to whether the plaintiff would arrive in Memphis on September 27, 1909, to enter the employment in accordance with the terms of the correspondence comprising the plaintiff’s exhibits A to G.
“ (3) Almost immediately, and on the same day, the plaintiff delivered to the defendant at its branch office in the Gunn building in Grand Rapids, the following message for transmission:
“‘S. C. Toof & Co.,
“ ‘Memphis, Tenn.
“ ‘ Will arrive Tuesday morning. Advance transportation by wire.
“ ‘W. O. Robinson.’
“ (Plaintiff’s Exhibit J.)
“ The plaintiff at the time of delivering this message for transmission explained to one Cudahy, who was an agent of the defendant and in charge of their branch office, the circumstances surrounding the sending of the message, and that it was a notification to S. O. Toof & Co. that he would arrive in Memphis on Tuesday morning to enter their employ. Prior to the sending of this telegram by the plaintiff, there had been no talk or correspondence whatever between him and S. C. Toof & Co. with reference to their advancing his transportation, either by wire or otherwise.
“(4) The defendant accepted said message for transmission, and undertook the transmission of the same, but prior to its delivery to S. C. Toof & Co., in Memphis, some agent of the defendant changed it, and it was delivered to S. C. Toof & Co. by the defendant as follows: S“S. C. Toof&Co.,
“ ‘ Memphis, Tenn.
“c Will wire Tuesday morning. Advance transportation by wire.
“‘W. O. Robinson.’
“(Plaintiff’s Exhibit I.)
“There is no evidence in the case explaining how this error in transmission occurred or tending to show that the defendant was not negligent in erroneously transmitting the message, except the plaintiff’s testimony that the manager of the defendant’s Grand Rapids office had stated to him that the mistake occurred in the defendant’s Chicago office.
“(5) Acting in good faith upon the wording of this message as received, and believing that the plaintiff had sent the message as it was delivered, and that his intention was not to arrive on the following Tuesday morning, but to wire or telegraph on that day, S. C. Toof & Co. immediately, and on September 24, 1909, sent the following message to the plaintiff:
“*W. C. Robinson,
“‘Grand Rapids, Mich.
“‘Consider trade off — have made other arrangements.
“ ‘S. C. Toof & Co.’
“(Plaintiff’s Exhibit J to deposition of witness Zahn.)
“Asa matter of fact, S. C. Toof & Co., notwithstanding the sending of the above message, would have employed the plaintiff as contemplated if he had reported for duty on Monday, September 27th. The reason that Mr. Zahn, S. O. Toof & Co’s manager, sent this message, was that Robinson, the plaintiff, seemed to him to be shiftless in his mind, and seemed to be unable to tell when he would come until the following Tuesday — four days later. The plaintiff did not know for several days that his” message had been incorrectly transmitted. He did not advise S. C. Toof & Co. that he would waive his demand that they advance transportation by wire, nor did he advise them that he would arrive Monday, if necessary, but he immediately proceeded to cancel his arrangement for a man from Chicago to take care of his Grand Rapids business and continued to run it himself until August, 1910, when he closed out the said business, and went to Chicago, and there accepted a position as engraver at $30 per week.
“(6) The error was not discovered until some time later and the plaintiff was prevented from entering the employ of S. C. Toof & Co. solely by reason of the error in the transmission of said message.
“(7) By reason of the error in the transmission of this telegram, the plaintiff was prevented from earning the sum of $37.50 per week from S. C. Toof & Co., for a period of six months, or 26 weeks.
“(8) There is no evidence in the case tending to show that the plaintiff earned any sums during the period of the contract with S. C. Toof & Co.
“(9) The plaintiff, if he had removed to Memphis and entered the said employment, would have been obliged to remove a portion of his household goods from Grand Rapids to that city, and to pay the expenses of moving such goods. He would also have incurred the expense of removing himself, his wife and child under the age of six years to Memphis. The expense thus incurred would have amounted to about $77. The plaintiff had also engaged a man from Chicago to takecharge of his business in Grand Rapids during the term of his contract with S. C. Toof & Co., and would have been obliged to pay this man a salary of $15 a week during the period of the contract with S. C. Toof & Co. He was not subjected to this expense because he arranged with this man not to come to work when he discovered he (plaintiff) would be prevented from entering the employment of S. C. Toof & Co.
“ (10) There is some conflict in the testimony as to whether or not there is a custom of the engravers’ trade by which when an employé takes a position in a distant city his employer shall, if requested, advance the employe’s transportation to the place of work. Both the plaintiff and S. C. Toof & Co. regard such custom as existing, but this was not material because the plaintiff was not prevented from entering the employment of S. C. Toof & Co. by reason of the words in the erroneously transmitted telegram ‘Advance transportation by wire.’
“ (11) Had the plaintiff arrived in Memphis on Monday afternoon, September 27th, he could not have entered said employment until Tuesday morning, and by arriving in Memphis on Tuesday morning he could have entered said employment the same morning.
“(12) The plaintiff had been engaged in engraving between 13 and 14 years, and was familiar with all branches of that trade. He was 33 years old, and had worked at the business continuously ever since he was about 20. He had worked in Red Oak, Iowa, Newark, N. J., Galveston, Tex., Chicago, 111., and Grand Rapids, Mich. He was familiar with and experienced in all the necessary branches of the engraver’s art, and was a thoroughly competent man, and his services were fairly worth what S. C. Toof & Co. were going to pay him. For about a year prior to September, 1909, he had been in the engraving business for himself in Grand Rapids. Before that he had worked in Chicago at $35 per week, and before that for Dickinson Bros, in Grand Rapids, receiving a salary of $30 per week. After he closed out his business in Grand Rapids and went to Chicago, he was employed from August, 1910, to the trial of this case, at $30 per week. The plaintiff would, and could, ordinarily earn in Grand Rapids, Mich., not less than $30 per week working at his trade. His services were in ordinary demand and he had been able to get good positions.”
“Conclusions of Law.
“ (1) The oral negotiations between the plaintiff and S. C. Toof & Co.’s representative in the summer of 1909 did not constitute a contract, but a formal written offer was later made by S. C. Toof & Co. and accepted by the plaintiff by which the latter was to be employed for a certain period of six months at $37.50 per week, and thereafter for an indefinite period at $40 per week. This offer and acceptance are contained in Plaintiff’s Exhibits A, B, C, D, E, and F, which constituted a valid binding contract for six months’ employment at $37.50 per week under which the plaintiff was to report for work within a reasonable time after September 20, 1909.
“ (2) The plaintiff’s telegram of September 24th in reply to S. C. Toof & Co.’s telegram of the same day (Plaintiff’s Exhibit H), as delivered to the defendant for transmission, constituted a substantial compliance with the contract of employment.
“(3) This telegram, as delivered to S. C. Toof & Co. by the defendant, with the word ‘ arrive ’ therein changed to * wire,’ did not constitute a compliance with said contract of employment.
“(4) As between himself and S. C. Toof & Co., the plaintiff was bound by the message as received by S. C. Toof & Co., and the latter had a right to assume that the message received by it was the message sent by the plaintiff.
“(5) Upon receipt of the said telegram the plaintiff was justifiably discharged by S. C. Toof & Co.
“(6) There being no evidence to rebut the presumption arising upon proof of an error in transmission of this telegram, and the defendant having actual notice of the importance of the message and the damages likely to result from an erroneous transmission thereof, the defendant is liable for all the damages which naturally flowed from this erroneous transmission.
“ (7) The measure of damages is the difference between what the plaintiff would have earned under his said contract with S. C. Toof & Co. and what he did or might, by reasonable diligence, have earned in similar employment during the term of the contract, and the plaintiff is entitled to recover the salary which he would have earned for 26 weeks or $975, less $15 per week for 26 weeks, or $390, which he would have been obliged to pay an assistant for taking charge of his business in Grand Rapids if the plaintiff had been allowed to complete his said contract, and less the amount of expense he would have been put to in removing himself, his family, and household goods from Grand Rapids to Memphis, or $77. The total amount which the plaintiff has been damaged and which he is entitled to recover is $508.”

There are 12 exceptions to the findings.

The defendant has brought the case here for review, and there are 30 assignments of error, sufficiently raising the questions argued.

We shall consider the questions argued in appellant’s brief in the order in which they are presented.

It is urged:

(1) That the plaintiff’s right to prevail depends upon the existence of a valid contract of employment with S. C. Toof & Co., and such a contract did not exist. The trial court found that there was a contract for six months’ employment. The defendant denies the existence of a valid contract upon two grounds: First, because of want of mutual assent; and, second, because the alleged contract was void under the statute of frauds.

(a) Was mutual assent lacking ?

Calling attention to the correspondence set forth in the findings, it will be noted that on September 4th Toof & Co. accepted the proposition contained in Exhibit A, and in accepting made the terms and duration of the contract definite when they say :•

“We accept your proposition to enter our employ for #37.50 per week for a period of six months.”

We agree with plaintiff’s counsel that it would be difficult to conceive a more definite and certain way of stating the duration of the employment than this. It is true that, in a new sentence they added a conditional clause for employment after the six months period had expired, saying:

“If at the end of that time you are making good, your salary is to be increased to $40 per week.”

The first sentence is definite and certain as to the period of employment and rate of wages. The second is entirely conditional, and binds no one. Letters Exhibits E and E substantially bring the minds of the parties together. The fact that Toof & Co.’s acceptance was not, in technical strictness of construction, identical with plaintiff’s offer, does not destroy the mutuality of assent. Western Union Tel. Co. v. Valentine, 18 Ill. App. 57.

“If an offer is accepted as made, the acceptance is not conditional, and does not vary from the offer because of inquiries whether the offerer will change his terms, or as to future acts, or the expression of a hope, or suggestions,” etc., 9 Cyc. p. 269, citing many cases, including Culton v. Gilchrist, 92 Iowa, 718 (61 N. W. 384).

If there were any doubt of the correctness of the finding, it would seem to be without prejudice, for the reason that in Exhibit G- the plaintiff acquiesced in every term of the offer, and the minds of the parties met, unless it be claimed that because the plaintiff notified Toof & Co. that he would not arrive upon the 20th, but would come not later than the 27th, was a departure from his previous offer. But, it will be noted that he had not contracted to report on September 20th, but that he would be there not later than the 27th, which the circuit judge construed as meaning a reasonable time after September 20th. Then, considering the telegram of September 24th, it must be held that the minds of the parties were together upon every essential term of the contract.

(6) Was the alleged contract void under' the statute of frauds ?

We are unable to agree with counsel for the defendant that this was a contract for one year, and made some days before the period of employment was to commence. Although there had been talk of a year’s employment, it was not agreed to. After the six-month period had expired, any further term was at the will of the employer, who might have discharged the plaintiff if he were not “making good.” This court has held that .where it is possible that the contract may be performed within the year, although it may run over the year, it is not within the statute of frauds. Barton v. Gray, 57 Mich. 622 (24 N. W. 638); Carr v. McCarthy, 70 Mich. 258 (38 N. W. 241); Herron v. Raupp, 156 Mich. 162 (120 N. W. 584); Hand v. Osgood, 107 Mich. 55 (64 N. W. 867, 30 L. R. A. 379, 61 Am. St. Rep. 312). We state in passing that in our opinion there was evidence to support the finding of a custom of advancing transportation.

Thus far we have considered the case as though a completed contract was necessary to the validity of the judgment. It is the claim of the defendant that, if there was not a completed contract between plaintiff and Toof & Co., there can be no recovery, because it is said the declaration was limited to an action for causing the breach of an existing contract. We think that this is too narrow a view of the pleadings to be accepted. The declaration also claimed damages for preventing the plaintiff from entering the employment, and from earning a salary of $37.50 per week, and the circuit judge found that the plaintiff was prevented from entering the employ of Toof & Co. solely by reason of the error in transmission of the message, and by that error was prevented from earning $37.50 per week for 26 weeks. If, without a technically completed contract, plaintiff was entitled to recover the damages caused by reason of being prevented from completing a contract, and entering the employment, and earning a salary, might not the judgment have been rendered upon the other findings, thus reaching the same conclusion ?

But it is the claim of defendant that the judgment cannot be sustained upon this ground because the sixth and seventh findings of fact, upon which plaintiff must rely in this view of the case, are not supported by any properly admissible evidence. We shall speak of the admissibility of the testimony upon this point later.

(2) It is urged by defendant that, even if the plaintiff had a valid contract of employment, the defendant is not liable for the disruption of that contract by Toof & Co.:

(a) Because upon the undisputed facts the plaintiff’s dismissal was wrongful, and his remedy is against Toof & Co. (6) The defendant’s error in transmission was not the proximate cause of the damage to the plaintiff.

Upon the first point urged by defendant under this head, many cases are cited, and the only question is as to their applicability to the instant case.

We are of the opinion that the rule contended for does not prevail in contracts of employment, but dismissal is warranted by any act of the servant which is prejudicial, or likely to be prejudicial, to the interests of the employer. 20 Am. & Eng. Enc. Law (2d Ed.), p. 27. A master or employer is justified in discharging his servant or employe for any breach of the express or implied conditions of the contract of employment. 26 Oye. p. 989, and cases cited. The message of the plaintiff as delivered to Toof & Co. expressed an intention to delay his arrival at Memphis for an indefinite period beyond September 27th, and left entirely uncertain when he would arrive, if at all. We think that the finding was justified by the evidence that the plaintiff’s message as delivered to the defendant for transmission indicated his intention of substantially complying with the terms of the contract, but a delay of several days, coupled with the indefiniteness as-announced in the message as delivered, amounted to an unreasonable delay and departure from the contract, which justified Toof & Co. in terminating the contract. As delivered, the message showed an indifference and unfaithfulness to the interests and business of Toof & Co., and might well be said to cast a serious suspicion upon the integrity and trustworthiness of the plaintiff, and upon his intention of ever performing his contract at all.

“Whatever would be a good reason for discharging a servant would be an equally good reason for refusing to take him into one’s service after having engaged to do so.” 26 Cyc. p. 977.

See, also, Smith on Master & Servant, p. 183.

“As a general proposition any act of a servant which injures or has á tendency to injure his master’s business interests, or reputation will justify his dismissal. Actual loss is, however, unnecessary, but it is sufficient if from the circumstances it appears that the master has been or is likely to be damaged by the act complained of.” 26 Cyc. p. 988, and cases cited.

The reasonableness of the conduct of the plaintiff, as indicated by the message received at Memphis, was a question of fact. Shaver v. Ingham, 58 Mich. 649 (26 N. W. 162, 55 Am. Rep. 712); Child v. Manufacturing Co., 72 Mich. 623 (40 N. W. 916); Degen v. Railway Co., 113 Mich. 66 (71 N. W. 459); Schaub v. Arc Welding Co., 123 Mich. 487 (82 N. W. 235); Schaub v. Welded-Barrel Co., 125 Mich. 591 (84 N. W. 1095). Many other cases might be cited from other States to the same effect.

(6) It is next contended by defendant that its error in transmission was not the proximate cause of the damage to the plaintiff. We have already indicated that the act of Toof & Co. was not a wrongful act. Was there competent evidence that the negligence of the defendant was the proximate cause of the damage? The circuit judge found that plaintiff was prevented from entering the employment solely by reason of the negligent act of the defendant. There was evidence warranting this conclusion if it was admissible. It is contended by the defendant that the court erred in admitting in evidence the answers of the witness Zahn, the vice president of Toof & Co., to the following questions:

“Did you consider the telegram from Mr. Robinson of the 24th a compliance with the correspondence that you had had with him regarding the time when he should arrive to go to work ? ”
“ Now, Mr. Zahn, if the telegram from Mr. Robinson had been definite, and had stated that he would arrive on Tuesday, you would not have sent him the telegram Which you did calling the trade off, would you ?”
“Did the request of Mr. Robinson to advance him transportation have anything to do with your calling the trade off ? ”
“Did you consider the fact that he was to arrive on Tuesday morning, instead of Monday afternoon, a material variance with the contract, and was that the reason you wired him to. consider the trade off ? ”

Was testimony of this nature, showing the state of mind, and the construction of the contract by the party, competent and material, as bearing upon the probabilities of the conduct of the party, in connection with the other circumstances of the case ? We have examined the many cases cited by counsel upon this subject, and are satisfied that they cannot all be reconciled. Those tending to support the position of the plaintiff that the state of mind or intent is a fact which may be testified to are the following: In Barker v. Telegraph Co., 134 Wis. 147 (114 N. W. 439, 14 L. R. A. [N. S.] 533, 126 Am. St. Rep. 1017), a patient sent a telegram summoning the plaintiff, a physician. The telegram was not delivered. The plaintiff lost an opportunity to make a professional visit and obtain a fee. The defense was that there was no certainty that a contract would have resulted. The court said:

“ The concrete question with which we are confronted, therefore, is whether under the allegations of this complaint it is conceivable that evidence may be given that might satisfy a jury, not by conjecture, but by reasonable inferences from established facts according to the known course of nature and human nature, that plaintiff would have made pecuniary gains if he had received the telegram, and was prevented from so doing solely by its nondelivery without any intervening independent cause. We may concede that he cannot establish this by his testimony directly that he would have done one thing or another, because that would be merely expressing his opinion upon the very question of inference which the jury must answer if it is capable of answer at all. Hill v. Surety Co., 107 Wis. 19, 29 (81 N. W. 1024 [82 N. W. 691]). But might not facts consistent with the allegations of the complaint be established so that the jury might legitimately infer a probable course of conduct? The law is full of illustrations based upon inferences as to future conduct, some so plain that they may be drawn without evidence by application of mere common knowledge of human and natural tendencies, others needing the aid of evidence as to custom, interest, or formed intent, and the like. Allison v. Chandler, 11 Mich. 542, 555. Thus in Hill v. Surety Co. the inference as to what insurance companies would have done but for the negligence which denied them the opportunity was sustained by' the proof of their custom under similar circumstances. Loss of earnings resulting from tortious injury can be established only by inference that the injured person would work. Sedgwick, Dam. (8th Ed.) § 180. Loss of profits can be established by inference from previous course of business. Sedgwick, Dam. (8th Ed.) § 182. In Derry v. Flitner, 118 Mass. 131, defendant wrongfully occupied a place of shelter to which plaintiff’s vessels were entitled. Two of the latter were exposed to and sunk by storm. The court sustained inference that but for defendant’s wrong they would have been in the place of safety. Damages for sales induced by tort are allowed merely on proof that sales could have been made at higher prices; the inference being drawn without evir dence that plaintiff would have so sold. * * * Such illustrations of the drawing of inferences as to what would have happened but for wrongful prevention might be multiplied without limit. No good reason is apparent why the same principle of reasonable probability may not be shown against a telegraph company which wrongfully withholds information as well as in the ordinary run of cases. * * * The plaintiff here is entitled to damages the same as if he were intercepted after he had received this telegram by an assault, or other tort which disabled him from acting in response thereto. The complaint alleges him to have been building up a practice in Chicago. That is a fact, of course, if it can be proved. He was invited to come to Chicago to see a man professionally. Is it beyond the realm of reasonable inference that he would have responded to this call ? Again, it is alleged that the patient in Chicago had fully determined to take treatment with him. Such an intent already formed is a fact just as much as any other physical fact. Jones, Ev. § 167; Bowe v. Gage, 127 Wis. 245 (106 N. W. 1074 [15 Am. St. Rep. 1010]). Nothing is better established in the law than that, when a settled design is proved to exist, it is legitimate inference that it will be persisted in and acted upon unless it appear that there is some supervening obstacle. 1 Wigmore, Ev. §§ 102-112.”

See, also, Western Union Tel. Co. v. Love Banks Co., 73 Ark. 205 (83 S. W. 949, 3 Am. & Eng. Ann. Cas. 712); Western Union Tel. Co. v. Carver, 15 Tex. Civ. App. 547 (39 S. W. 1021).

In Hasbrouck & McCulloch v. Telegraph Co., 107 Iowa, 160 (77 N. W. 1034, 70 Am. St. Rep. 181), Mr. Hasbrouck, a member of the plaintiff firm, was permitted to testify, as was also the other member, that, if the telegram as filed for transmission had been received, they would not have sent the message they did send. Held, that there was no error in permitting the answers, that it was a necessary fact to be shown under the issues, and it is difficult to imagine any other method of proving it, citing State Ins. Co. v. Jamison, 79 Iowa, 245 (44 N. W. 371). See Western Union Tel. Co. v. Fenton, 52 Ind. 1; Wallingford & Son v. Telegraph Co., 53 S. C. 410 (31 S. E. 275); Wallingford v. Telegraph Co., 60 S. C. 201 (38 S. E. 443, 629).

In Lathan v. Telegraph Co., 75 S. C. 129 (55 S. E. 134), the court said:

“Among the cases upon which the appellant relies to sustain the proposition that evidence as to whether the plaintiff would have accepted the offer contained in the telegram cannot be considered on the ground that it is conjectural and uncertain, is that of Beatty Lumber Co. v. Telegraph Co. [52 W. Va. 410], 44 S. E. 309, in which the authorities are reviewed. The case was well considered, and strongly supports the appellant’s contention. It is predicated uppn the theory that when there is a failure to deliver a telegram containing an offer to sell, and the market advances in price, the addressee cannot recover damages, unless it is made to appear that he would have accepted the offer, and that the testimony of the addressee that he would have accepted the offer cannot be considered in determining the company’s liability on the ground that it is conjectural and uncertain. The fallacy in the reasoning of the court in that case is in supposing that the telegraph company would not be liable, unless it was shown that the addressee would have accepted the offer. If the failure to deliver the telegram was the direct and proximate cause of the delay on the part of the plaintiff, in postponing the purchase of the meal, whereby he was compelled, when he went into the market, to pay the advanced price, he would be entitled to recover damages, although there was no testimony establishing the fact that he would have accepted the offer. Such testimony, however, is admissible for the purpose of showing the intent and motive of the plaintiff, in postponing his purchases, on the ground that it is explanatory of the delay.”

See McPeek v. Telegraph Co., 107 Iowa, 356 (78 N. W. 63, 43 L. R. A. 214, 70 Am. St. Rep. 205); Texas, etc., Tel. Co. v. McKenzie, 36 Tex. Civ. App. 178 (81 S. W. 802); Stumm v. Telegraph Co., 140 Wis. 528 (122 N. W. 1034); Herron v. Telegraph Co., 90 Iowa, 129 (57 N. W. 696); McNeil v. Telegraph-Cable Co. (Iowa), 134 N. W. 611. Many more cases might be cited to the same effect. We find no error in the holding of the court on this subject. If there was error in admitting the testimony alluded to, it was harmless error.

It is next claimed that the judgment was excessive. We think the findings upon this subject were clearly within the evidence. In view of the eighth finding of fact, and of the rule that the burden of showing, in an action for wrongful discharge, that the servant or employe by reasonable diligence might have obtained other employment, is upon the defendant, the defendant is in no position to complain of the amount of the judgment. Farrell v. School District, 98 Mich. 43 (56 N. W. 1053); Allen v. Whitlark, 99 Mich. 492 (58 N. W. 470).

We find no prejudicial error in the record, and the judgment of the circuit court is affirmed.

Moore, C. J., and Steerb, McAlvay, Brooke, Blair, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Blair, J.

text:
    MIRABILE v. SIMON J. MURPHY CO.
    1. Negligence — Elevators—Burden of Proof.
    A showing that as plaintiff was alighting from defendant’s elevator at the third floor, without negligence on plaintiff’s part, it dropped and injured her, made a prima facie case, since the circumstances justified an inference of defendant’s negligence.
    2. Same.
    Although there was no direct proof that the operator of the elevator caused it to drop, there was evidence from which the fact might be inferred.
    3. Same — Fellow-Servant—Master and Servant.
    Plaintiff, who was going to work at the time of her injury, not having reached the place where she was accustomed to don her working clothes, and not being engaged in the duties of her employment as a scrubwoman, was not a fellow-servant with the operator of the elevator.

    4. Same — Damages—Exoessiveness.
    A judgment of $4,500 for severe, painful and permanent injuries to plaintiff was not, on the record presented, excessive.
    Error to Wayne; Donovan, J.
    Submitted January 17, 1912.
    (Docket No. 116.)
    Decided March 29, 1912.
    Case by Anna Mirabile against the Simon J. Murphy Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Keena, Lightner & Oxtoby, for appellant.

      Navin, Sheahan & Kennary, for appellee.

       Liability of master for injury to employé caused by defective elevator and negligence of fellow-servant, see note in 2 L. R. A. (N. S.) 647.
      Liability for injury to elevator passenger generally, see note in 2 L. R. A. (N. S.) 744.

   Blair, J.

Plaintiff was injured on the morning of May 2, 1910, while alighting from one of the elevators in the Penobscot Building on Port street west, in Detroit, and this action was brought against the defendant and appellant, which owns and operates the office building, to secure damages for her injuries. There is practically no dispute in the testimony given by the several witnesses. They were, on behalf of plaintiff, herself, James E. Hamilton, a passenger who was in the elevator at the time, her physician, Dr. Lowrie, and on behalf of defendant, Albert Larson, who knew nothing of the accident, but, as one of the regular elevator men, understood the operation of the elevator. Plaintiff had worked as a janitress in the Penobscot Building from time to time before January 1, 1910, and from the first of the year on she was employed there steadily by the defendant company, whose office was on the twelfth floor of the building. The elevator operators and the nightwatchman, as well as the janitresses, were under the direction of Mr. Cole, who was the janitor of the building, and was also an employé of the defendant company. Both plaintiff and the other employés were paid on the 1st and 15th of the month at a stated monthly wage. There is a janitress for each floor of the building, and plaintiff thus had charge of the third floor. She was subject to be called to do work on other floors, and she did this at times. She cleaned and dusted the offices on the floor in question. She went to the building for her work both morning and evening. In the morning she got there about half past 5, and would work until about 8:30. She returned about 5 o’clock in the evening, and worked again until about half past 8. She got a pass key in the morning at the elevator, and, when she came in the evening, she would get it at the office on the twelfth floor. She would enter the building at the front door on Fort street. She cleaned some of the offices in the morning and some in the evening. After 6 o’clock in the evening there was usually only one elevator running, and in the morning when she got down there would be only one running. She always used the elevator, and never walked to the third floor.. Among the employés of the defendant were the watchmen, one named McLaehlan, and the other named Young, who (or one of whom) would be on duty at night. It was McLaehlan who operated the elevator at the time of the accident. It was a part of his duty to operate the elevator from about 10:30 at night until 6:45 in the morning. Except during these hours the elevators were operated by the regular elevator men, among whom the witness Larson was one. The watchmen used the elevator at night both to take people up and down and also to visit the several floors at intervals during the night.

On the morning in question, and at her usual time— that is, 5:30 — plaintiff, having come down town in the street car, entered the Penobscot Building, and went into the elevator, asking McLaehlan to let her off at the third floor. The witness Hamilton also entered the car on the ground floor to go to the thirteenth floor, where he was employed by the firm of Ammerman, McCall & Anderson. The elevator stopped at the third floor. Mc-Lachlan opened the door, and plaintiff started out. She had one foot in the hall and one in the elevator when the elevator dropped. The elevator platform had fully stopped when plaintiff started out of it. Plaintiff was caught above the hips, between the floor and the top of the elevator cage, and was thrown back on the top of the cage. The car went down just as it would if the operator had pulled the lever back, and between the first and second floors McLachlan pulled the lever and stopped the car within 10 or 20 feet of where the accident happened. The conductor brought the ear to a standstill, and, after it had stayed there for some little time, he asked Hamilton what to do, and Hamilton told him to run to the basement. McLachlan pulled the lever, and went down to the basement, and when the elevator got to the basement, it came to a stop. McLachlan controlled the elevator. The witness Larson ran the elevator upon which plaintiff was injured during some four months before the accident, and it ran in good working order. He never had any intimation that it was not in good working order. He learned of the accident when he came down in the morning. He ran the elevator in the afternoon, and it ran the same as before the accident. The trial of the issue before Judge Donovan and a jury resulted in a verdict for plaintiff of $4,500. A motion for a new trial was denied by the circuit judge.

Plaintiff testified:

“We drop the keys in the box in the evening, and the watchman goes up and gets them, and hangs them any place he wants in the elevator, and, when he comes in the morning, he hands them to us. I did not have my keys yet that morning.”

Mr. Hamilton testified:

“Q. Do you know that the elevator platform is there, as I understand it, generally when they come up or down, and brought to a stop. They oscillate or vibrate a little before they settle at the point ?
“A. Yes, sir. It was not any such motion as that that threw the lady. It was a drop from a standstill. The car went down just as it would if he pulled the lever back. Between the first and second floor, he pulled his lever and stopped the car between 10 and 20 feet down where the accident happened. The thing that stopped the car was the elevator conductor, by shoving the lever. He came to a standstill as he did above.”

Appellant’s brief presents for our consideration three propositions, viz.:

(1) There is no evidence of any negligence on the part of defendant which was relied on in plaintiff’s declaration.
(2) McLachlan, who was operating the elevator, and plaintiff, were fellow-servants.
(3) The damages were excessive.

This question was raised by the fifth request to charge, as follows:

“(5) The only allegations of negligence contained in plaintiff’s declaration are (1) in not providing safe and suitable machinery in connection with the elevator; (2) in not having the same properly installed; and (3 ) in not having a competent elevator conductor. There is no testimony in the case tending to support any one of the allegations of negligence contained in plaintiff’s declaration, and therefore your verdict will be for the defendant.”

That portion of the declaration averring the duty of defendant in the premises and its violation thereof is as follows:

“And thereupon it became and was the duty of the said defendant through its agents, servants, and representatives to„use due and proper care to provide and maintain safe and suitable machinery and appliances for the operation of said elevator, to have the same properly installed, and capable of running without dangerous and sudden jerks and falls, to place the same in charge of a skillful, competent, and careful conductor, and to operate the same so that all who might use said elevator, and plaintiff particularly, could enter and alight therefrom in safety. Yet the said defendant, disregarding its said duty in the premises, did not use due and proper eare to provide safe and suitable machinery and appliances for the operation of said elevator, and did not properly install machinery suitable and necessary to enable said elevator to move in an upward and downward direction at a safe and moderate rate of speed, and without sudden jerks, and long dangerous drops, and did not place the same in charge of a skilled, competent, and careful conductor, as a result whereof, without any negligence or fault whatsoever upon plaintiff’s part, said elevator when it had reached the third floor stopped at plaintiff’s request to enable her to alight, and when the operator had opened the door thereof, to permit her to alight, and while she was in the act of stepping from the elevator to the floor of the hall on the third floor of said building, and before she had an opportunity to step from said car info said hall, said elevator was dropped with a sudden and violent jerk, and without any warning whatsoever to her.”

The duty to operate the elevator so that the plaintiff could “ alight therefrom in safety ” is alleged, but the negligent failure to so operate it is not charged, unless such charge is implied in the averment that, before plaintiff hadan opportunity to step from the elevator, “said elevator was dropped,” etc., implying that somebody dropped it, and not that it dropped without human agency. Doubtless, if the attention of counsel for plaintiff had been called to the particular question, he would have asked leave to amend the declaration, which would have been granted. But counsel for plaintiff was proceeding upon the theory stated in the brief as follows:

“ The plaintiff was not obliged to show what the fault or negligence was that caused the elevator to drop. When the plaintiff proved that the elevator dropped while she was alighting therefrom, her negligence in no way contributing thereto, she made out a prima facie case, establishing the negligence of the appellant. The burden was then thrown upon the appellant to show that it was not guilty of negligence, for which it could be charged.”

The weight of authority seems to be in favor of this proposition. Edwards v. Building Co., 27 R. I. 248 (61 Atl. 646, 2 L. R. A. [N. S.] 744, and cases cited in note at page 748, subd. 3; 114 Am. St. Rep. 37; 8 Am. & Eng. Ann. Cas. 974). But such is not the rule in this State. Sewell v. Railway, 158 Mich. 407 (123 N. W. 2); Niedzinski v. Electric Co., 160 Mich. 517 (125 N. W. 409); Felske v. Railway, 166 Mich. 367 (130 N. W. 676). Where, however, the facts and circumstances surrounding an injury are such as to justify an inference of negligence, no further proof of negligence is required. Cases last cited and Schoepper v. Chemical Co., 113 Mich. 582 (71 N. W. 1081).

We agree with counsel for defendant that:

“ There is no direct evidence that McLachlan, who was operating the elevator, shoved the lever at the time plaintiff was injured, but the only reasonable inference upon this record as to how the accident happened is that Mc-Lachlan pulled the lever and caused the elevator to go down.”

There was, therefore, evidence of defendant’s negligence.

Was McLachlan a fellow-servant with plaintiff? Defendant’s- counsel contend that the plaintiff was a fellowrservant of McLachlan from the time she entered the building for the purpose of doing her work there as an employe of the defendant company.

Plaintiff’s counsel contend:

“The proofs in this case show conclusively that plaintiff at the time of the accident was not engaged in the work for which she was hired, but, on the contrary, was on her way to work, and had not as yet reached the place where she changed her street clothes for her working clothes. The plaintiff was not a servant of the defendant until she reached the place where her work commenced. That is the same place where she changed her street clothes for her working clothes.”

Of the Michigan cases cited by counsel for defendant, the nearest in principle are: Walkowski v. Consolidated Mines, 115 Mich. 629 (73 N. W. 895, 41 L. R. A. 33); Noe v. Railway Co., 133 Mich. 152 (94 N. W. 743). See, also, Moyer v. Railroad Co., 159 Mich. 645 (124 N. W. 542) Howcroft v. Railway, 163 Mich. 608 (128 N. W. 779). In Walkowski v. Consolidated Mines, 115 Mich. 629 (73 N. W. 895, 41 L. R. A. 33), plaintiff was injured while being taken down to work in the defendant’s mine, some 500 feet or more, in a cage operated as an elevator. He was injured because the brakeman (that is, the elevator operator) turned the screw which controlled the cage in the wrong direction. As in this case, plaintiff failed to prove the allegation in his declaration, namely, that the brakeman was incompetent. On page 634 we find the following reference to the relation between the brakeman and plaintiff:

“It is admitted that Ryan and plaintiff were fellow-servants, and that the defendant is not liable for the negligent act of a competent fellow-servant.”

In Noe v. Rapid Railway Co., 133 Mich. 152 (94 N. W. 743), it was claimed by defendant (and the briefs show that it was conceded by plaintiff) that an employé of the defendant railway company while returning from work on one of its cars was a fellow-servant of the motorman. At page 155 of the prevailing opinion (133 Mich. [94 N. W. 744]), it is said:

“ It is contended that the plaintiff was a fellow-servant of the motorman. If this be conceded, the result is not necessarily non-liability. True, the plaintiff would in such case be held to have assumed the risk of negligence of coemployés but, according to plaintiff’s theory, and upon the proofs, it cannot be said that the motorman’s negligence was the cause of the injury. The fault, if any, was in not providing a safe system in running the cars, as the motorman was quite within his orders in running the train at full speed in disregard of this switch. The fault, then, if there was a fault, was the fault of the master, the company.”

In neither of these cases was the point determined or considered by the court. In the Moyer Case, plaintiff, a section hand, engaged in clearing away a wreck, was ordered by his section boss to get on an engine and go to Mesick for his dinner, and to bring the dinners of the other section hands back to them. It was held—

“ That travel to and from the wreck for the purpose of bringing food for those engaged in its removal is likewise necessarily an incident of such employment.”

In this case, the plaintiff had begun his work and was in the performance of part, of his duties under orders of his foreman when injured. In the Howcroft Case, plaintiff, a motorman, was returning from dinner to resume work upon his car.

“His car, in charge of a motorman, whom he was to relieve, and of a conductor, was standing, or came to a stand — having come from the north — on the north side of Waterloo street. Its course there was to the south arm of the Y, then on that arm, backing in on the Y on Waterloo street preparatory to running out again on the north arm of the Y to Mt. Elliott avenue, and north on that avenue. The ride which plaintiff proposed to take was across Waterloo street and on the Y to a point, where he, assuming charge of the car, could run it out on the north arm of the Y. He attempted to enter the front vestibule of the car. The car was started, and, while he retained his hold upon the car, he was seriously injured.”

It is said in the opinion:

“It is asserted, in the brief, that plaintiff occupied the position of a stranger attempting to enter a car. We are of opinion that the testimony conclusively establishes the fact that he occupied no such position. To infer that he proposed to become a passenger to ride across Waterloo street and upon the Y, or that any one connected with the service so supposed, would be unreasonable. To infer that he attempted to enter the car for some purpose connected with his employment is reasonable.”

The car was the very place where his work was to be done, and a stranger or passenger would be required to pay for his ride.

In the case at bar the plaintiff’s work was to be performed in the rooms on the third floor, and the elevator was a public conveyance in which any one might ride without charge. The plaintiff was not actually performing any service for defendant. She would not begin her work until she had reached the third floor, and changed her clothes. Until that time she ought not to be held subject to the fellow-servant rule. The rule as it has developed since it was called into being by the courts has become in many instances a harsh and oppressive one and out of harmony with the enormous expansion of business operations and the spirit of the times, as evidenced by its abolition in certain hazardous employments by the legislatures of this and other States. We feel inclined, therefore, to limit rather than to extend the rule, where our own decisions do not precisely cover the point in issue. We do not regard this as such a case.

The judgment in our opinion was not excessive, and is affirmed.

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


author: Moore, O. J.

text:
      In re NORTON’S ESTATE.

      1. Wills — Executors and Administrators — Repairs.
    Testator devised to his wife the use of part of his property including a farm with buildings, during her life, with directions to the executor to dispose of the real estate after her death. The will empowered the executor to rent the farm. In order to secure a better rental and to improve the barn, which was in need of repairs, the administrator de bonis non caused the roof to be raised, the floor to be oemented, and other repairs made at a total cost of slightly over one thous- and dollars. Held, that under 3 Comp. Laws, § 9354, the administrator having obtained the consent of all the heirs but one and the approval of the probate judge, was authorized to make the improvement and pay for the same out of the estate.
    2. Same-Estates of Decedents — Claims—Expenses of Administration.
    Purchasers of land from heirs before the estate is closed take subject to the debts and expenses of administration.
    3. Trial — Evidence.
    In reopening a case for the purpose of taking testimony on a single subject, the oourt may exclude evidence not relating thereto.
    Error to Oakland; Smith, J.
    Submitted January 26, 1912.
    (Docket No. 78.)
    Decided March 29, 1912.
    The final account of Harvey J. Taylor, administrator de bonis non with the will annexed of the estate of John M. Norton, deceased, was presented to the probate court and the account allowed. On appeal of John H. Stevens to the circuit court the order was affirmed. Appellant brings error.
    Affirmed.

      Patterson & Patterson, for appellant.

      Perry & Lynch, and William T. Hosner, for appellee.
   Moore, O. J.

We quote from the brief of counsel for appellant as follows:

“ This action is an appeal by John H. Stevens, grantee of one of the heirs at law and legatees of John M. Norton, deceased, from an order of the probate court for the county of Oakland allowing the final account of Harvey J. Taylor, administrator de bonis non with will annexed of the estate of John M. Norton, deceased; and the only controversy in the case is with reference to one item in said account, amounting to $1,087.56, paid from the corpus of the principal of the estate for the rebuilding of a barn on the real estate of the late John M. Norton, deceased, which item was credited to the administrator in his final account. * * * The contention of the appellant in this case relates to this item of $1,087.56 for the rebuilding of the barn. The situation is peculiar, for the reason that appellant, Stevens, transferred his interest in the real estate to John T. Norton in February, 1907, retaining his interest in the personal estate, which, at that time, had been kept intact, as shown by the reports to the probate court. After the sale of his interest in the real estate in February, 1907, and in the summer of 1907, this barn was rebuilt, and the amount was credited in the account filed April 13, 1908. The appellant complains of the finding of law of the circuit judge upon the finding of facts by him, and we urge that the circuit judge erred in his conclusion of law on those facts. The solution of the question involves the construction of the will of John M. Norton with reference to the interest he conveyed to Nancy Norton, his widow, by said will, and also involves the right to make permanent improvements out of the corpus of the estate. We contend that Nancy Norton was no more than a life tenant of this farm, and that she could not use' the principal for her support and maintenance, unless the income was insufficient for that purpose. There is no dispute, and can be none, that the income was sufficient, and that none of the principal or corpus of the estate was used for her maintenance and support. The corpus of the estate, to the extent of $1,087.56, was used in the making of a permanent improvement on the farm in the rebuilding of the barn.”

The argument then follows to the effect that Mrs. Norton was a life tenant, and that she could not charge the remaindermen for improvements made during the continuance of her estate.

It is apparent that an. examination of the provisions of the will and of the character of the improvements made is important. We quote from the will:

Second. I give, devise and bequeath unto my beloved and faithful wife Nancy Norton if she shall survive me the full use of the interest and income of all my estate, both real and personal, except eighty acres of land hereafter mentioned going to my son Grant Norton and his heirs, during the full term of her natural life, and if at any time the interest, use and income thereof shall not be sufficient to maintain her in sickness and in health in as comfortable a manner as she has been accustomed to live, then I give her such further additional sum or sums as from time to time shall be deemed necessary by my executor or by the probate court to be expended by her for that purpose from the principal sum of my estate. No power is given her however to transfer or encumber the principal sum of the estate except as deemed necessary by my executor or the probate court for her support and maintenance as above set forth.”
Sixth. The disposition of my real estate as above provided for in the said section five is not to take place until after the death of my beloved wife Nancy Norton in case .she shall survive me.”

In a codicil, it is provided as follows:

i! Second. I have rented my farm to my son Grant O. Norton for the past three years, and I have this day made a lease to him for a longer time, and it is my earnest wish and request that my wife, and the executors of my will, shall extend said lease during the lifetime of my wife, ■ from year to year, and that my son work said farm during the time his mother shall live — and it is my opinion this arrangement will be the best for all parties interested. I do not however make this a condition of my will, as I realize many changes occur, and I do not wish to embarrass my estate by making a binding provision in regard thereto, but I trust and expect that my executors will find it expedient and best to carry out my ideas in this regard as hereinabove mentioned, and I give them full power and authority so to do.
“ Third. I authorize and empower my executor or the survivor, at the death of my wife, in case she survives me, to sell at either private or public sale, the real estate of which I may die seized, except of course the eighty acres willed to Grant, and to give good and sufficient deed or deeds therefor without the order of the court for that purpose.”

It is clear from these provisions that Mr. Norton intended to provided for his wife by giving her the income of his estate and more, if necessary, and that bis estate should not be settled until after the death of his wife, and that in the meantime the executor or executors of the estate should have charge thereof, and upon her death it was their duty to sell the real estate.

It was during the lifetime of Mrs. Norton, and after consulting her, the other heirs, and the judge of probate, and having their approval, that the expenditure was made. Mr. Stevens claims that when he bought out one of the heirs, and before the expenditure was made, that he notified the executor. The latter recalls the notice, but not the time of the notice. It is also the claim of Mr. Stevens that he was not consulted about and did not consent to the expenditures.

The following testimony relates to the need of repairs. Mr. Taylor, the executor, testified:

“The barn was repaired in 1907. Mr. Arft was then the tenant, and was paying $425 a year for the 128 acres, and I think $175 per year for the 80 acres. I was up there in 1907 frequently. The large or main barn on the farm at this time was 100 feet long by 34 feet wide. The sills rested upon the corner stones. There never had been any wall under the barn, but stones around under the posts. It was a very old barn. Its condition in the spring of 1907 was very bad. The roof leaked so much that when I was down there one morning when it had rained the water was running out of the door sill an inch deep. The roof was bad, and the stable where the cows were stabled was at the south end of the barn. There were three or four inches of water, perhaps, that the cows were standing in. The frame of the barn, the sills, had been rotted away; and it became in such condition that the bottom of the barn had spread, and the tenons were pulled out of their beams. The year before Mr. Rundell was on the farm, and was filling it with corn fodder, and they sent for me to come down there; they were afraid the barn was going to collapse. I did not go. I saw it afterwards; and it was braced up with the posts put under the beams, under the cross-beams, in the barn. That was done in the fall of 1906. The tenons were separated out of the center of the posts; and it had been filled until it got so near the beams that there was no room to get under to fill in any higher. It was filled with stones and gravel, and the filling was up to the level of the sills. The cows were standing in the water, and the tenant complained that something would have to be done. The tenant said that he was willing, if we put the barn in better condition, to pay 50 dollars a year more rent. He already had a lease of three years for the place. I saw that the condition of the barn was very bad, and I went and talked with Mrs. Norton; told her I could not see any way, except to give it a general overhauling in a judicious way, raise it up, and put new sills under it, and a new roof, and in that case I thought the most expedient and best way would be to put new posts, perline plates, and a hip roof, and make some room in the loft. She agreed with me, and was very desirous of having it done.
“Q. Now, did you have any talk with the judge of probate on the matter ?
“A. I did. (Objected to and moved to strike answer out.)
“The Court: It goes to good faith.
“Mr. Lynch: That is the only purpose for which it is offered. (Exception.) Judge Stockwell was judge of probate, and he asked what about the money; if there was plenty of money on hand to bear the expense. I told him there was, and he said, ‘Well, on the general principles, I can’t see any impropriety in your going on and fixing the barn.’ That is about all there was said about it. I employed a man by the name of Smith as foreman, and he told me he would do the work for $2 a day, and would furnish a good helper at $1.50. He was able to do the carpenter and cement work also. We went on and stripped the barn in the first place and raised it up. There was an old barn that was built as a sheep shed, and they had not kept any sheep on the farm in a long time, and it had not been used to any extent for several years, and the timbers were fairly good in there, and we tore that down and used the old timbers in making up the sills for the ones where the sills had rotted out under the big barn, for the perline posts and plates, etc.; so we had very little timber to buy in repairing the barn. We raised it up and put a cement wall, stone and cement wall, under it. I did not change the size of the barn; but, in regard to the roof, instead of using the original slant roof, we built a hip gambrel roof. The roof was very flat, quarter pitch, and we put on what we call a hip gambrel roof. I think it makes nearly as much again room, with very little more expense. They used the old barn that we tore down, and took the siding off the barn we were repairing, for roof boards for the inside, the cow stable, mangers, milkroom, and all that, as far as it would go, and new shingles. We used every piece of the old barn that could be utilized; and the work was done as economically as possible. I think it was a proper and necessary thing to do. The amount of money expended on the building was $1,087.56, and was paid for material and labor. We did not put any new floors in the barn. We put in cement floors for the cows; we built the barn up for dairy purposes, and put a cement floor in the stable. This was what we called the main barn on the farm. It was a stock barn, and there was a separate barn from this. I don’t think the tenant had room for all the hay and grain, and he had to stack some, and he paid the increased rent.”

The tenant and the two sons of John M. Norton testified to substantially the same thing

Testimony was offered on the part of the appellant, including his own testimony, as to the necessity of repairs, and the need of some repairs was clearly shown. We quote from Mr. Stevens’ testimony:

“In my judgment, to obviate the objection they have testified to about leakage, the roof no doubt would need shingling or patching, piecing might have done for some years, and some other repairs that would have made it in good shape. I could not say what it would cost without some figuring. The roof boards were good, but just needed shingling.”

Cross-examination:

“The roof boards would do for shingling.again. I never made any examination of the building with the idea of figuring how much it would cost to put it in good repair. I should think patching of the roof would have done for a while. I do not know how long.”

The testimony in the case was all closed. Later the circuit judge— •

“ Notified counsel for the parties that he wished some testimony offered to determine whether or not the said Norton farm had been changed from a hay and grain farm to a dairy farm after the death of the said John M. Norton, and that he would reopen the case for the purpose of permitting the parties to introduce testimony upon that subject, and no other.”

An effort was made to go outside of the inquiry indicated by tbe judge, and he declined to perinit this. The record shows the following; Mr. Stevens being the witness:

' ‘ Q. Have you had any considerable experience in building?
“A. I have built several and repaired several.
“Q. And have you made figures and estimates, or an estimate of what a new roof on the Norton barn would cost, and putting that beam in place ?
“Mr. Hosner: I object to that as having been gone into.
The Court: I will [exclude it.
Mr. Patterson: I want the record to show that I offer proofs to show that for a sum, reasonable sum of $200, that this barn could have been placed in reasonable repair, so that it would have preserved it for a number of years, and that any expenditure outside of that was unwarranted. (Exception for appellant.) ”

We think the foregoing statement of facts is sufficient to permit an intelligent consideration of the law of the case. It is apparent that the able argument of counsel, to the effect that the life tenant cannot charge the remainderman with improvements, loses its force, because, in the instant case, the repairs were made by the executor or executors, who, by the express terms of the will, were given control of the estate until after the death of Mrs. Norton.

Section 9354, 3 Comp. Laws, reads in part as follows:

c£ The executor or administrator shall have a right to the possession of all the real as well as personal estate of the deceased, and may lease the same from year to year, and cancel or modify any existing lease or leases given by the deceased in the same manner that the deceased might have done in his lifetime, and may receive rents, issues, and profits of the real estate until the estate shall have been settled, or until delivered over by order of the probate court to the heirs or devisees; and shall keep in good tenantable repair all houses, buildings, and fences thereon, which are under his control: Provided,” etc.

No witness sworn, including the appellant himself, was willing to say that repairs were not needed. There was a difference as to whether all the repairs that were made were needed. In Armstrong v. Loomis, 97 Mich. 577 (56 N. W. 938), Grant, J., speaking for the court, said in part:

“Chapter 229, 2 How. Stat., provides the only methods by which claims against the estates of deceased persons and the expenses of administration, can be allowed and collected. If the personal estate is insufficient for those purposes, then the real estate may be sold, under the decree of the probáte court. There is no law in this State for pursuing the real estate in the hands of heirs or distributees. Showers v. Robinson, 43 Mich. 508 [5 N. W. 988]. Purchasers of land from heirs before the estate is closed take it subject to the debts and expenses of administration. Hill v. Mitchell, 40 Mich. 389; Burns v. Berry, 42 Mich. 176 [3 N. W. 924]; Winegar v. Newland, 44 Mich. 367 [6 N. W. 841]. The heirs and legatees sell and convey subject to the rights of creditors and administrators.”

Finally, it is said by counsel (we quote from the brief):

“We also submit that the circuit court erred in the exclusion of testimony competent and material to the issue at the hearing of this case, which is covered by assignments of error 1 to 11, inclusive. And we contend that the errors complained of are sufficient to entitle appellant to a reversal of the judgment.”

This testimony, so far as it was important, all related to testimony offered after the court had reopened the case for a single inquiry, and did not bear upon that inquiry. The record discloses the repairs were made in good faith by the executor; that they were reasonably necessary; and that the money was actually expended.

We think the judgment should be affirmed.

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


author: Ostrander, J.

text:
    NICHOLS v. NICHOLS.
    1. Divorce — Alimony—Separate Maintenance — Contracts.
    Without granting a divorce from bed and board or from the bonds of matrimony, the court may not decree alimony out of the estate of the husband in favor of the wife, who has a contract for separate maintenance. 3 Comp. Laws, § 8638.
    2. Cancellation op Instruments — Contracts — Setting Aside Instruments — Proceedings to Rescind — Husband and Wipe.
    In a suit by the husband for divorce on the ground of extreme cruelty, wherein he set up in his bill of complaint that they had lived separate for a number of years under a written agreement that provided for payments of alimony to the wife at stated periods, a cross-bill setting up the agreement, charging that it was unfair and unconscionable, presented matter germane to the bill, and warranted the court in setting aside the agreement.

    3. Same.
    Although the husband, whose bill was dismissed, did not appeal, and the question of a right to a divorce was not before the Supreme Court, it was competent to consider the question of the fairness of the agreement, and, if unconscionable, to cancel it, notwithstanding that the wife had never rescinded it, and had accepted money paid in pursuance of its provisions.
    4. Same.

      Held, that $7 a week for the wife was insufficient and the agreement unconscionable, where the husband had property worth upwards of $28,000 and a yearly income of more than $1,200.
    Appeal from Macomb; Tappan, J., presiding.
    Submitted January 26, 1912.
    (Docket No. 28.)
    Decided March 29, 1912.
    Bill by George H. Nichols against Elizabeth Nichols for divorce. Defendant filed a cross-bill praying that the court set aside a separation agreement existing between herself and husband. From a decree dismissing bill and cross-bill, defendant appeals.
    Modified and affirmed.

      Sloman & Sloman, for appellant.

      Lucking, Emmons & Hélfman and Erskine & Lungerhausen, for appellee.

       Validity of agreement between husband and wife renouncing marital rights, see note in 12 L. R. A. (N. S.) 848.

   Ostrander, J.

Complainant asked for a decree of divorce. Defendant, in a cross-bill, asked for a disclosure of the property and income of complainant, that a certain agreement entered into by the parties, providing for her support and that of her child, be found to be unconscionable, to have been procured by fraud and duress, and be ordered to be set aside, and that complainant be required to provide for the suitable support and maintenance of the defendant and her child. There was a prayer for other and further relief. The decree dismissed the bill. It also dismissed the cross-bill without prejudice. The litigation has been carried on at considerable expense to complainant, and the decree requires him to make further payments on account of expenses and solicitor’s fees. Defendant has appealed. Complainant has not appealed. We are concerned, therefore, only with whether any, and if any, what, relief should have been granted defendant upon her cross-bill, and with the amount of costs and expenses which complainant ought to pay.

The parties are still husband and wife. The cross-bill does not seek to disturb that relation. The relation is affected, of course, by the agreement for the separate maintenance of the wife. Since it was made, both parties have acted in accordance with its terms. They have lived apart and the husband has paid, and the wife accepted, the sums agreed upon.

A divorce from the bonds of matrimony, or one from bed and board, is necessary before the court may further decree to the wife alimony out of the personal or real estate of the husband. 3 Comp. Laws, § 8638. No divorce has been granted, and none is now sought. It is clear, therefore, that the court may not reform the agreement made by the parties, nor, if it is set aside, make any provision in lieu thereof for the separate maintenance of the wife.

Whether the court ought to set aside the agreement, as it is asked to do, depends, first, upon whether such relief is at all germane to the issue tendered by the bill of complaint and so a proper subject to be brought forward by cross-bill, and, second, upon general equities disclosed by the testimony. The subject-matter of the suit is the marital relations of the parties and whether such relations as existed should be terminated or amended or should continue. The agreement for a separation and for maintenance of the wife was not made by the court and was not for that reason one which the court might amend or set aside. But, although it was a private arrangement of the parties, it was one which the court would be bound to consider in case a divorce was granted, and was therefore a matter proper to be brought upon the record, either by the bill or by the answer. It is charged in the bill that the parties are living separate and apart from each other. It was proper to set out in the answer and cross-bill the arrangement for such separate living. While the matter is not entirely free from doubt, we hold that the court had jurisdiction to set aside the arrangement for a separation, although refusing to grant a divorce to complainant.

We come then to consider the equities. The evidence does not sustain the contention that the defendant was induced, by coercion or by duress, to make the agreement. It was a voluntary arrangement. The contract is not void. It was said in Randall v. Randall, 37 Mich. 563, 571:

“ When a separation has actually taken place, or when it has been fully decided upon, and the articles contemplate a su’table provision for the wife and children, or an equitable and suitable division of the property, the benefits of which both have enjoyed during the coverture, no principle of public policy is disturbed by them; on the contrary, if they are fair and equal, and are not the result of fraud or coercion, reasons abundant may be found for supporting them, in their tendency to put an end to controversies, to prevent litigation, and to give to the wife an independence in respect to her support which without some such arrangement she could not have, under the circumstances.”

See, also, Schmoltz v. Schmoltz, 116 Mich. 692 (75 N. W. 135); Metcalf v. Tiffany, 106 Mich. 504 (64 N. W. 479). The contract was made in April, 1909, and has been performed according to its terms. These facts furnish reasons for refusing to set aside the agreement.

It is said that the arrangement is an unconscionable one because it is unfair to the wife. The provision for her benefit secures to her the sum of $7 a week for her life and the payment of her funeral and burial expenses. The complainant’s bill was filed in October, 1909, and the cross-bill in November of the same year. Defendant, although praying that the agreement be set aside, did not rescind the agreement, since, as we understand the facts, she has since accepted the sums of money paid pursuant to the agreement. But the matter was put in issue. We think we are not precluded from considering whether the provision was a fair one. Bechtel v. Barton, 147 Mich. 318 (110 N. W. 935).

Complainant is worth, in productive and unproductive property, at least $28,620, and has a net annual income of $1,248. The provision for the wife and for the support of the son until he is 14 years of age amounts to one-half of the net income. Leaving out of consideration the provision for the child, we are all of opinion that the sum of $7 weekly is not a fair and equal provision for the support of the wife, who is no longer young. We rest our conclusion here, with no attempt to determine which of the parties is to be blamed for the condition which resulted in a separation; The agreement is set aside. The decree will provide for a release of the securities deposited pursuant to the terms of the agreement. With this modification, the decree of the court below is affirmed.

For expenses and for solicitor’s fees the complainant has already been ordered to pay to defendant $635. For the purpose of presenting in this court the only questions determinable on appeal, the record is unnecessarily long, and what is contained in it might have been greatly consolidated by eliminating questions and colloquies. Defendant will recover the costs of this appeal to be taxed, but the costs of printing the record will be limited to 300 pages. In addition to the taxable solicitor’s fee, defendant is allowed $100.

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