author: Grant, C. J.

text:
    SHALL v. DETROIT & MACKINAC RAILWAY CO.

    1. Railroads — Negligence — Person Working About Cars — Death — Contributory Negligence.
    Plaintiff’s intestate, one of 100 laborers engaged in dismantling and tearing down a sugar factory, was killed while working between two railroad cars upon a track within the building, in consequence of other cars being backed against them by defendant railroad company’s locomotive. The laborers in the building were making considerable noise and there was nothing to warn deceased and his companions of the approach' of the train, other than the noise of the train itself. There was evidence that the train was backing faster than usual, and that it did not stop as was customary just outside the building before backing in. Held, that it could not be said, as a matter of law, that deceased was guilty of contributory negligence.
    2. Same — Assumption oe Risk — Evidence—Admissibility.
    Evidence that the conductor was in the habit of stopping the train outside the building and warning those within of its approach was competent to show, in the absence of express instructions as to warning, the manner in which the work had been conducted, as justifying deceased’s reliance upon the custom and negativing his assumption of the risk.
    3. Death — Damages—Character oe Deceased — Evidence—Admissibility.
    In an action for death deceased’s habits of industry may be shown as proper evidence of damages. MeQuisten v. Railway Go., 150 Mich. 332, distinguished.
    4. Railroads — Contributory Negligence — Knowledge oe Danger.
    Evidence that deceased knew the engine was coming soon to take out the loaded cars is not conclusive that he knew the train was then approaching so as to charge him with contributory negligence.
    5. Master and Servant — Negligence oe Servant — Injuries to Third Persons — Liability oe Master.
    A railroad company is liable for the death of a servant of a . contractor engaged in dismantling a factory, caused by the negligence of train operatives while switching cars in the dismantled building, the contractor’s superintendent and foreman having no control over the train operatives further than to inform them of what work they wanted done.
    6. Same — Warning—Waiver.
    The' act of the contractor’s foreman in telling the trainmen to come on was not a waiver of the customary warning or of the customary stop before entering the" building.
    Error to Iosco; Connine, J.
    Submitted February 20, 1908.
    (Docket No. 70.)
    Decided May 1, 1908.
    Case by Sophia Shall, administratrix of the estate of Alexander Shall, deceased, against the Detroit & Mackinac Railway Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Charles B. Henry (James McNamara, of counsel), for appellant.

      De Vere Hall {N. C. Hartingh, of counsel), for appellee.
    The following statement of the case is taken from the defendant’s brief and is conceded by counsel for the plaintiff to be substantially correct:
    “On the 17th day of April, 1906, Alexander Shall, while employed by the Kilby Manufacturing Co., at East Tawas, Michigan, in assisting in tearing down and dismantling the factory belonging to the Tawas Sugar Company, met death in the following manner:
    “ The structure and material of which the Tawas Sugar Factory was made, and the machinery therein, was being taken down and apart, and loaded on cars, for the purpose of shipping the same out of the State, and the Kilby Manufacturing Co. had been employed by the Tawas Sugar Company to do the work. For the convenience of the Kilby Manufacturing Co. in so removing said material, two temporary railroad tracks were laid inside of the building being removed, one known as the north track and the other as the south track; both tracks leading out of the building to a common spur connected with the main track of the Detroit & Mackinac Railway Company.
    “ Prior to April 17, 1906, the Detroit & Mackinac Railway Company had repeatedly operated its engines and cars on and over the tracks so constructed in said building, and was daily in the habit of taking out loaded cars, shifting cars partly loaded and otherwise, and leaving, where required, empty cars to be loaded, and had taken out and carried away on its main track to its destination, many cars loaded with the material of said factory so being removed.
    “Robert Grisdale was foreman, and had general charge of the work in moving said material for the Kilby Manufacturing Co., and cars were placed in said building and moved from place to place and taken out under his direction. Sometimes, however, Mr. Shepard, general superintendent of the Kilby Manufacturing Co., would direct that a car be moved from one track to another.
    ‘ ‘ The employés of the railway company had no information or direction as to what they were to do around the premises of the sugar factory until they arrived at the premises and then took their instructions and directions from Mr. Grisdale, the foreman, or Mr. Shepard, the general superintendent.
    “As the two tracks referred to were constructed to the building, there was a sharp little pitch, or up grade, of about two or three feet, just before the tracks entered the factory, on each track, and a curve in the south track to the north, at a place where it diverged from the north track. The building itself was 66 feet wide and 258 feet long, and on the day in question, the walls of the south side were torn down, but a pile of brick and mortar lay through the entire length of the building. In tearing the building down they had used a battering ram to knock down the brick and mortar walls, and this loose material was strewn throughout the building and outside of the building, along , by the tracks where they entered the building. The floor of the building was unevenly covered with debris of the dismantled building; on the north side of the south track this debris was two and one-half feet high, running from the north rail of the south track to the top of the pile of debris. There was all kinds of stuff, three or four feet deep in places, and uneven. They had a kind of path alongside of the rail.
    “On the morning referred to Joseph Flint and Joseph Stepanski, as train crew, and Charles Dimmick and Charles Bigelow as engine crew, left the car shops of the Detroit & Mackinac Railway Company, at East Tawas, with engine, tender and some empty cars, for the sugar factory, with instructions from the railway company to deliver them to the Kilby Company to be loaded. They were instructed to leave the cars where the Kilby Company should direct, and to bring back such loaded cars as should be ready for shipment. Whereupon, the train crew so made up and instructed, proceeded to the sugar factory, a short distance, to execute its orders. The several members of the crew were experienced train men. On arriving at the factory, Mr. Flint, who had charge of the train, was told by the foreman, Mr. Grisdale, not to go in on the south track first, but to go over on the north track and take out two cars and put in an empty car. This was done, after which the crew returned to the south track. There were two loaded cars on the outside of the building on the south track; these they disposed of and hooked onto an empty gondola which was on the south switch. This switching on the south track, before attempting to go into the building, took about ten minutes. Mr. Flint then inquired of Mr. Grisdale, ‘ If everything was ready on the south track,’ .to which Grisdale, the foreman of the Kilby. Manufacturing Co,., replied: ‘Yes, sir; come right in.’ Mr. Shepard, superintendent of the Kilby Co., stood there at the time, and said: ‘ Come on,’ and made a motion with his hand. Mr. Grisdale’s testimony as to what was said is as follows:
    ‘“The conductor [Flint] hollered to me if we were all ready. The answer I gave him was, “Yes; I think we are. Come on.”’

    “At this time the train consisted of the engine, two loaded box cars and one empty gondola car, the last-named car being at the end farthest from the engine. At this time the train crew could see no one working on or being near the south track in the building where they were about to go. Grisdale was in a position where hie could look down the track and see if it was clear. When the train crew started in to do the switching from the south track, there were two cars in the building; one loaded standing at the west end of the south track, and the other partly loaded, just east of it, and ‘tight up against the loaded car.’ The loaded car to the west had in the bottom beams, girders and columns, on top of which was a sugar pan 10 or 12 feet in diameter, with a circular top, with a dome about six feet high, extending about 14 feet above the floor. This dome extended above and about two or three feet to the east of a girder forming part of' the structure of the second floor. Knowing that the impact of the coupling to take out these cars would likely drive the loaded car against the girder and flo some damage, an effort was made to move the partly loaded car, to the east, away from the loaded car. This they attempted in two ways: First, they endeavored to move the car with pinch bars, but not being able to do so, they employed.the use of a steam derrick which was in operation in the building, and while so moving it about five feet, Alexander Shall was between the cars, assisting with his pinch bar. Associated with Shall in attempting to move the car was Otto- Zolweg and their immediate foreman, Reddy McFarland. While Shall and Zolweg were between the cars, Shall holding his pinch bar, and Zolweg a rope and pinch bar connected with the derrick, with their foreman standing by the side of the track near them, directing their work, the train backed in (with the brakeman on the rear car to make the coupling) and struck the partly loaded .car, thereby driving it back against the loaded car, Alexander Shall being between "the two cars (the loaded car and the partially loaded car) was caught between the dead heads and killed. At the time Shall was struck between the cars, he was not operating his pinch bar. Shall and Zolweg had been informed that the engine was coming in to take out the loaded car, and they knew that in order to take that out, they would have to take both cars out. The purpose of their work between the cars was to enable the moving of the cars by the train crew. Zolweg excuses their conduct in being between the cars at the time of the impact, by saying:
    “ ‘ I thought Reddy would tell us if the train came closer, to get out. Reddy is McFarland. We depended on him to give notice when the train came. He gave us notice, but it was too late.”
    “ There were about one hundred men working about the building. There was nothing to apprise any one connected with the operation of the train, that Alexander Shall, or any one else, was between the cars.
    “The accident, which resulted in the death of Alexander Shall, happened in the morning of the 17th day of April, 1906. The deceased was a laboring man, 35 years of age, and the line of his work in dismantling the factory was in connection with the loading of cars.
    “On the following August, Sophia Shall, widow and administratrix, brought suit against the Detroit & Mackinac Railway Company by declaration, alleging:
    “ ‘ On the 17th day of April, 1906, at said city of East Tawas, and while said intestate was in the exercise of due and reasonable care, and without fault or negligence on his part, was engaged in loading one of said cars so placed, and employed in and about said car, without giving notice or warning to intestate, or such employés so engaged in loading such car, defendant carelessly, negligently and wrongfully did cause its locomotive engine to run down upon said spur track and against the car so being loaded with such material by said intestate and such other employés, and about which he then was so employed, causing other cars to back against said car, striking it and other such cars with great force, causing the same to move suddenly and violently backward against intestate, and catching and crushing intestate between the ends of two of said cars, about which he was so employed,’ etc.
    “The sole element of negligence complained of in the declaration was the failure on the part of the defendant to give to Alexander Shall £ notice ór warning ’ of the approach of the train. The speed of the train is not complained of, and the circuit judge, in his charge to the jury, in referring to the negligence at issue, said:
    “ ‘Now, the particular negligence relied upon in this case, and set up, is the backing in of this train, into this building, without giving warning or signals of the approach of the train. Now, if the plaintiff recovers, she can only recover by proving that negligence ; she can only recover upon the negligence alleged and set up, and cannot recover upon any other.
    “ ‘ The excessive speed of the train, if it was excessive, is not set up as a ground of recovery;. it is not set up as negligence in this case, and it would not in this case alone constitute negligence,’ ” etc.
    Yerdict and judgment for plaintiff.
    Counsel for plaintiff suggest one correction to the above statement, and to that correction we think they are entitled. Counsel for defendants state:
    “ Grisdale was in a position where he could look down the track and see if it was clear.”

      It clearly appears from Grisdale’s testimony that he was not in a position to see the deceased behind the car. He testified:
    “I could not see from where I stood that he was between the two cars, and I do not think it could have been seen by the train crew.”
    Grisdale went to the switch which was some distance outside the building. That was his custom. He told them in reply to a question by the conductor that “they were all right, and to come on.” The train then backed in. Grisdale testified:
    “I started back with the train; I had my hand on it,— on the truss rods of the box car. I went back with the train until we struck the main building. The track was obstructed there by bricks and stuff, and I could not go any farther. I saw that the train was going pretty rapid, and I signaled them to stop. They did not stop until after they hit the other cars.”

       Rehearing denied June 27, 1908. -

   Grant, C. J.

(after stating the facts). Under the above statement, it is clear that there was evidence that Mr. Shall was' working between the two cars and could not be seen by either Grisdale or any of the crew on the train. Some one owed a duty to warn him Of the approach of the train, unless (1) he knew or should have known that the train was approaching on account of the noise that it made; or (2) that it was the custom to back trains in without any warning, and that therefore he assumed the risk.

There was evidence that the deceased and Zolweg were engaged in customary and necessary work, and that they expected notice to be given to them of the approach of the train. Zolweg testified that he expected McFarland, a subforeman of the Kilby Manufacturing Company, to give them warning, and that he did.give warning, but too late for Shall to step into a place of safety. It does not appear that McFarland had ever before given warning, or that he had been instructed to give it. He would naturally give warning when he saw danger impending, and undoubtedly did in this case as soon as he saw it. He was directing and assisting in the work in which Shall and Zolweg were engaged. It was essential to give warning to him so that he might communicate it to the others. But there is no evidence that he. was notified, or that any one cried out, as it was the custom, that the train was approaching. There is evidence on the part of the plaintiff showing that McFarland stood three or four feet from the car track on some debris; that he was in position where he could have seen the train coming if he had been looking, but that he was looking at Shall and Zolweg doing the work.

One witness testified:

“When I last saw McFarland before the accident he stood with his face about half turned, * * * was looking at his men at the work.”

Another witness on the part of the plaintiff testified that McFarland was part of the time between the cars and part of the time close by directing the work when the accident happened. This witness testified that he was the first that said anything, and that when he saw the train within 25 or 30 feet of the car behind which Shall was, “I hollered, ‘ For God’s sake, boys, get out of there!’ and when I hollered I thought all three were in a bunch, —McFarland, Otto and Aleck.”

There were 100 workmen in the building. Evidently they were making considerable noise. It appears there was nothing to warn Shall and Zolweg of the approach of the train aside from the noise of the train itself. There was evidence that the train was backing in faster than usual, and that it did not stop as was customary just outside the building before backing in. Under these circumstances it cannot be said as a matter of law that the deceased was guilty of contributory negligence.

Whether Shall assumed the risk depends upon the manner in which trains had been operated for the three months previous. There was evidence tending to show that the conductor (Mr. Flint) was in the habit of stopping the train outside the building, walking down either on the track or on the outside, and “generally hollering to the boys, and saying ‘Look out, boys, the train is coming in, and I am going to take these cars out.’ ” This testimony does not appear to have been offered, or permitted to be used, as evidence of the negligent act of the train crew at the time of the accident. It was competent to show, in the absence of express instructions as to warning, the manner in which the work had been conducted. If it had been customary for the conductor to stop .his train and to give a warning of its approach, those at work in the building had the right to rely upon such customary warning. They had as much right to expect a warning under these circumstances as they would if express instructions had been given to warn them. The admission of the testimony for the purpose to which it was confined was not error. It was competent evidence that Shall did not assume the risk.

Complaint is made of the introduction of evidence as to the deceased’s habits of industry. It is contended that this had no legitimate bearing upon the question of damages. Among the facts and circumstances laid down by text writers and numerous authorities as proper evidence of damages, are the deceased’s habits of industry, sobriety, etc. 1 Joyce on Damages, § 563; 6 Thompson on Law of Negligence, § 7129; 4 Sutherland on Damages (3d Ed.), § 1268; Spaulding v. Railway Co., 98 Iowa, 205; Hunn v. Railroad Co., 78 Mich. 513, 527 (7 L. R. A. 500).

Counsel for the defendant cite and rely upon McQuisten v. Railway Co., 150 Mich. 332. The question there objected to was, “ What do you know, if anything, about his (plaintiff’s) being a-careful, prudent man?” The testimony was evidently introduced for the purpose of affecting the question of contributory negligence. I have examined the briefs and record in that case and find that there is no suggestion in the plaintiff’s brief that the testimony was admissible as affecting tbe question of damages. There is nothing in the record to show that such claim was made on the trial. The suggestion must have been made in the oral argument, as it does not appear in the brief. The entire argument in the brief of counsel for plaintiff upon this point was to show that the testimony was harmless and unprejudicial, while the entire argument on the part of the defendant was to show that it was incompetent as bearing upon the question of contributory negligence. The court in its charge to the jury made no reference whatever to the habits of the deceased as a measure of damages. What we there said as to its being admissible upon the question of damages is dictum.

It is urged that the deceased had been informed that the train was approaching. If this was so, then the deceased was clearly guilty of contributory negligence. This claim is based upon the testimony of Mr. Zolweg. His testimony is as follows:

“While I was doing that work, Mr. Shall and me, both of us had been informed that the engine was coming in to take that car out, that loaded car; we knew that in order to take out that loaded car they would have to take out the car that was partly loaded, they would have to take them both out.”

It does not follow from this testimony that Zolweg and deceased understood that the train was then approaching. It is entirely consistent with the idea that they knew it was coming in soon to take out the cars, for whose removal they were making preparations. We cannot on this testimony say that it was conclusively shown that Shall had been informed of the approaching train and the immediate danger consequent thereon.

Counsel for defendant strenuously urge that the Kilby Manufacturing Company is the negligent party if there is any negligence. As above stated, there is evidence of a custom on the part of the defendant to give warning, and that it was not the custom of the Kilby Manufacturing Co. to give warning. The manager of the Kilby Manufacturing Co. notified'tbe conductor of tbe defendant’s trains of tbe work be wanted done. Tbe conductor himself testified that after getting such information from tbe foreman of the manufacturing company, be controlled the movement of tbe cars. We cannot say under this evidence as a matter of law .that the warning of Grisdale, foreman of tbe manufacturing company, to tbe engineer to come on, was a waiver of the customary warning Or of tbe customary stop before entering tbe building. This case is very similar to Fitzpatrick v. Railroad Co., 149 Mich. 194, and we think is controlled by that case.

Judgment affirmed.

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


source: Caselaw Access Project

author: Grant, O. J.

license: Public Domain

text:
    GORTON v. HARMON.
    1. Railroads — Operation of Trains — Headlights—Negligence
    It was negligence for a railroad company to run its train at night through the country and across highways at the rate of 30 miles an hour without any headlight and with only a red light hung on the rear of the tender of the locomotive, which was running backwards.
    2. Same —Highway Crossings — Injuries to Travelers —Contributory Negligence.
    It is not negligent for travelers on the highway to fail to stop - and listen for a train when approaching a railway crossing, where the circumstances are such that the train may be seen in ample time to stop.
    3. Same — Contributory Negligence — Question for Jury.
    In an action against a railroad company for damages for the death of plaintiff’s wife at a highway crossing, evidence ex- - amined, and held, that whether plaintiff was negligent in attempting to cross the track without stopping to listen was a question for the jury.
    4. Pleading — Negligence—Variance.
    A declaration alleging a case of gross and wanton negligence will support a verdict based upon ordinary negligence.
    5. Death — Damages—Death oe Wiee — Cost oe Maintenance.
    The measure of damages for the death of a wife is the value of her services lost to the plaintiff, less the cost of her maintenance.
    Erroi to Genesee; Wisner, J.
    Submitted February 21,, 1908.
    (Docket No. 128.)
    Decided May 1, 1908.
    Case by George T. Gorton, administrator of the estato of Matie Gorton, deceased, against Judson Harmon, receiver of the Pere Marquette Railroad Company, for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Stevens, McPherson & Bills (Carton & Bray, of counsel), for appellant.

      Black & Boherts (De Vere Hall, of counsel), for appellee.
    Defendant’s railroad runs northwesterly and southeasterly. A highway known as “Atherton road,” running east and west, crosses the railroad at an angle of 35 degrees. Plaintiff and his wife and a Mr. Allen and his wife, on the night of January 5,1906, at about 10 o’clock, drove with a team of horses and a surrey from the east to the west over the Atherton road. While crossing the-railroad track the hind wheels of the surrey were struck by the tender of an engine attached to a passenger train and both women were killed. Plaintiff brought this suit to recover damages for the loss of the services of his wife.
    The train, a passenger train, left Detroit at 5:30. When near Milford, about 30 miles from the place of the accident, the engine was disabled. A southbound freight. train was near the place of the accident. The defendant ordered the engine of the freight train to take the passenger train through to Flint. There was no turntable or Y near the place of the accident, so the engine was coupled to the passenger train, with its headlight towards the coaches. A red lantern was hung on the back end of the tender. There was nothing but the red lantern, except the whistle when blown, the bell when rung, and the light from the passenger coaches to indicate the presence of a train. The engineer’s vision was obscured by-flurries of snow and flying coal dust from the tender. The train was running 30 miles an hour, with an automatic bell ringing. A strong wind was blowing from the northwest. The ladies were sitting upon the backseat; plaintiff was driving, and sat upon the right side of the front seat. They had driven from the north on the north and south road which crossed' Atherton road 80 rods from the railroad crossing. The ground was frozen and the horses were shod. After turning west upon the Atherton road they drove at a slow trot or “shack” until they were struck. Both Mr. Gorton and Mr. Allen testified that, as they approached the track, with which both were familiar, they looked for a train. One of them saw some red lights, but saw nothing to indicate that they were on an approaching train. Mr. Allen testified that he thought once he heard a whistle, and he looked for a train. They did not see the train until just as the horses were about to step upon the track. Allen saw it first, Gorton an instant later. Allen testified that Gorton “went to try to stop but couldn’t.” Mr. Gorton testified:
    “When I saw it was a train I knew I could not stop, but I thought there was plenty of time to get across.”
    The train consisted of four coaches, all lighted. The engineer did not see the vehicle nor feel the engine strike it. He saw the team running west down the highway.
    Plaintiff’s intestate, 35 years old, left surviving her her husband, a son, and daughter, aged respectively 37,15, and 13 years old. Plaintiff recovered verdict and judgment for $4,880.
   Grant, O. J.

(after stating the facts). Counsel for the defendant do not deny that it was negligence in the defendant to run its train through the country and across highways at the rate of 30 miles an hour without any headlight. Whether such an act is gross negligence we need not determine. We may rightfully say it was negligence without excuse. The sole defense upon this branch of the case is that the defendant and Mr. Allen were guilty of contributory negligence. Their negligence is alleged to consist in that they did not stop when nearing the track and listen for a train. Had it been daylight there would clearly have been no obligation to stop, for they could have seen in ample time to stop their team. For hundreds of feet the train was in plain sight to the traveler by daylight.

To run a train across the country and public highways without any headlight is a most unusual thing. It is a matter of common knowledge that trains almost universally have headlights which throw a powerful light ahead of the train, and that this light can be seen, where there are no obstructions, for a great distance. Travelers, in the absence of any other warning, have a right to assume that the engines of trains are provided with such lights. The red light on the end of the tender was no notice of the approaching train. If the travelers saw the red light it does not follow that they could see it move towards them, for it would seem nearly stationary as they looked at it. Red lights on the rear of trains are indication of danger to those in the rear. They have not been used upon the front of trains as a warning to travelers.

It is also suggested that these travelers could have seen the lights shining from the windows of the cars. There is evidence that the interior lights were shining from the passenger cars. Whether the cars were supplied with shades and whether some of them were down does not appear. It does appear, however, that the wind was blowing the dust from the coal in the tender and the smoke from the engine directly between the travelers and the cars behind the engine. It cannot therefore be said as a matter of law that these lighted cars could have been seen by the travelers. For the same reason, although the bell was ringing automatically, and although the whistle may have been blown at the proper place, it does not follow that the travelers should or would have heard it even if they had stopped, for the wind was carrying the sound from them.

It must be conceded that the charge of the court was very favorable to the defendant, unless it should have directed a verdict. We may, however, with propriety give one excerpt from the charge, as follows :

“I further instruct you that if as the plaintiff approached the railway crossing, he could by stopping, looking and listening and at a safe distance, have determined whether or not the train was in dangerous proximity, and by so doing could have averted the accident, it was his duty so to do, and failing to do so he cannot recover in this case, * * * unless you find from the evidence that the conduct of defendant was such as to induce him to believe that it was not necessary for him to stop and look and listen in order to ascertain whether a train was approaching the crossing in such proximity as to make it unsafe to cross the track.”

We think the question of contributory negligence belonged, and was properly submitted, to the jury.

It is urged that the declaration alleges a case of gross and wanton negligence, and, under the instruction of the court, the jury were allowed to find a verdict based on ordinary negligence. The greater includes the less. Under a charge of murder the defendant may be found guilty of crimes of lesser degree. It would certainly reflect upon the wisdom of the law that would permit parties to be found guilty of lesser .crimes though not specifically charged therewith, — but would not permit recovery in a civil action where a greater degree of negligence is charged but which includes the less. This point, however, is ruled against the defendant by Keating v. Railroad Co., 104 Mich. 418; Richter v. Harper, 95 Mich. 225.

The court instructed the jury that the measure of damages was the value of the services lost to the plaintiff, and that they should not deduct the cost of her maintenance. It is the well-settled rule under this and similar statutes, that compensation is limited to the pecuniary loss sustained. Walker v. Railway Co., 111 Mich. 518, and authorities there cited. This question has not before been presented to this court. Counsel for the plaintiff cite Bowdle v. Railway Co., 103 Mich. 272, and quote from the syllabus as follows:

‘£ And it is held that the plaintiff was properly limited in his recovery to the value of such services as the wife would have been likely to render in the discharge of her ■domestic duties.”

While the syllabus is a correct statement of the law, the question was not discussed in the majority opinion, and the language of the syllabus is quoted from the dissenting opinion.

Counsel for plaintiff cite several cases and text-book authorities holding that a husband is entitled to recover the reasonable value of the time and services lost to him, but none of them discuss the question now before us. It is as much the duty of the husband to provide suitable clothing and maintenance for his wife as it is for his son. He is entitled to the value of the services of both. It is the universal rule that in case of a son or daughter the cost of maintenance must be deducted from the value of his services. Snyder v. Railway Co., 131 Mich. 418; McDonald v. Steel Co., 140 Mich. 401. There can be no distinction between the case of a son and that of a wife. The pecuniary loss in each case is the value of the services less the cost of maintenance. See Gulf, etc., R. Co. v. Southwick (Tex. Civ. App.), 30 S. W. 592; Denver, etc., R. Co. v. Gunning, 33 Colo. 280; 13 Cyc. p. 370.

It follows that the instruction of the court in this regard was erroneous.

Other questions are raised, but, as they may not arise upon a new trial, we refrain from discussing them.

Judgment reversed, and new trial ordered.

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


text:
    BAUMGARTH v. FIREMEN’S FUND INSURANCE CO.

    1. Fire Insurance — Action on Policy — Appraisal—Necessity.
    No right of action on the part of one insured against loss by fire exists until an appraisal provided for in the policy has been made.
    2. Same — Appraisers—Umpire—Selection—Necessity.
    Where appraisers appointed under the terms of a fire insurance policy agreed upon an umpire, who agreed to act if his physician would let him, there was no occasion for any further action until satisfactory assurance was had that the person chosen could not act; and the action of the insured thereafter in selecting an umpire, appraising the loss, and bringing suit upon the policy was premature.
    Error to Arenac; Sharpe, J.
    Submitted February 24, 1908.
    /(Docket No. 124.)
    Decided May 1, 1908.
    Assumpsit by Morris C. Baumgarth and Rudolph Baumgarth, copartners as Baumgarth Bros., against the Firemen’s Fund Insurance Company on a policy of insurance. There was judgment for plaintiffs, and defendant brings error.
    Reversed.

      Alfred Lucking (George B. Yerkes and Benjamin Henderson, of counsel), for appellant.

      Weadock & Duffy, for appellees.
    This suit is brought upon an insurance policy to recover the amount of a loss by fire. The property insured was a stock of goods. The policy, a standard policy provided by the law, contained the following provision:
    “ In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall be prima facie evidence of the amount of such loss; the parties thereto shall pay the appraisers respectively selected by them, and shall bear equally the expense of the appraisal and umpire.”
    The policy further provided that no suit should be sustainable upon it until this requirement was complied with. After the fire the defendant was notified of the loss. It sent its adjuster to make an examination. An agreement of the amount of the loss was found impossible, whereupon the parties signed a non-waiver agreement to the effect that proceedings under the appraisement should not waive any of the rights of either party. The plaintiffs selected one Dickson as its appraiser and the defendant one Thomas. Dickson resided in Detroit, and Thomas in Chicago. They met at Standish, the home of the plaintiffs, and commenced negotiations for the appointment of an umpire, or third party. Those proposed by each appraiser were rejected by the other. Finally one Weaver, a merchant of Standish, was agreed upon. Both of the appraisers interviewed him. Mr. Weaver consented conditionally. He was not very well;. was going to Detroit to consult a physician and informed them that if the doctor would allow him to come back he would come back and act. This conditional agreement was evidently made by Mr. Weaver on the day before, Mr. Dickson, assuming that Mr. Thomas had refused to proceed further with attempts to procure a third appraiser, broke off further negotiations and by the advice of plaintiffs and their attorney procured another appraiser to act with him and proceeded the next morning to appraise the damage. This was evidently on October 2d, and on that day' Mr. Weaver went to Detroit.
    Mr. Dickson testified on direct examination:
    “ Q. What was there to Newton B. Weaver ?
    “A. Mr. Weaver wouldn’t act.
    “ Q. Was he proposed ?
    “A. Yes, sir.
    “ Q. Accepted ?
    “A. Yes, sir.
    “ Q. And what did he do with reference to acting ?
    “A. Refused to act.”
    Mr. Dickson further testified that on the 3d he and Mr. Thomas had a conversation which he details as follows:
    “I says, ‘Mr. Thomas, Mr. Weaver shan’t act, he won’t act.’
    “ Q. I didn’t get that.
    “A. I said Mr. Weaver claims that he won’t act.
    “ Q. You told Mr. Thomas he said he wouldn’t act ?
    “ A. Yes, Mr. Thomas was satisfied that he would act. I had been informed that he wouldn’t under any circumstances. I asked if he had any more names to propose. No. He wouldn’t take any more, because he had his third man, Mr. Weaver. Mr. Weaver went down to Detroit. And I finally to satisfy myself telegraphed, or at least had Mr. Baumgarth to telegraph to Mr. Weaver and Mr. Weaver returned a message as follows:
    “ ‘ Detroit, Miohigan, Oct. 3, 1906.
    “ ‘ Baumgarth Brothers,
    “‘Standish, Michigan.
    “ ‘ Unable to say when can go home.
    “ ‘N. B. Weaver.’ ”

      He further testified that he informed Mr. Thomas, after receiving this telegram, that Weaver could not be there, and that Mr. Thomas was satisfied that he would attend as he said Mr. Weaver promised that he would. Outside of the telegram which Mr. Dickson received from Mr. Weaver, the only information he had was from Mr. Weaver’s son who he said assured him (Dickson) that his father could not serve. Mr. Thomas then saw Mr. Chamberlain, defendant’s local agent, and Mr. Chamberlain telegraphed to Mr. Weaver as follows:
    “You are the only one we can agree upon for umpire. Wire yes or no. Please accept.”
    Mr. Weaver received that telegram in the evening. He did not wire an answer, but wrote to his son to tell Mr. Chamberlain that he wouldn’t be able to act. The telegram which Mr. Weaver sent to Mr. Dickson reads as follows:
    “ Unable to say when can go home.”
    On the morning of October 4th, learning that Dickson and another man were proceeding to appraise the damages, he wrote to Mr. Dickson the following letter :
    “Referring to appraisal of Baumgarth Bros., beg to say that inasmuch as we have agreed upon Mr. N. B. Weaver as umpire, I am ready to sign appraisal papers on him at once, in order to preclude any further delay and proceed at once with our duties. If we fail to agree upon any item, or items, we can let same stand until such time as Mr. Weaver can pass upon them. If this is not satisfactory, I will renew my proposition to accept for umpire any person whom the circuit judge of this circuit will name. I do this for the .purpose of expediting matters and to get this matter disposed of at once. If either of these propositions are not satisfactory to you, I will meet you in any city in Michigan that you may suggest for the purpose of selecting a competent and disinterested umpire. My address for today is Hotel Ryland, Standish, Michigan. After today, No. 6420 Greenwood ave., Chicago, Illinois.
    “Awaiting your early advices, I am,” etc.

      . This létter closed the negotiations between Dickson and Thomas for an appraisal.

       Rehearing denied June 27, 1908.

   Grant, C. J.

(after stating the facts). It is the established rule in this State that no right of action on the part of an insured exists until an appraisal provided for in the policy has been made. Chippewa Lumber Co. v. Insurance Co., 80 Mich. 116; Morley v. Insurance Co., 85 Mich. 212; Kersey v. Insurance Co., 135 Mich. 10.

The parties to this suit recognized this rule and each selected an appraiser in accordance with its terms, — Mr. Dickson for the plaintiffs, and Mr. Thomas for the defendant. They met. Each proposed several names, none, of which was satisfactory to the other. They finally agreed upon Mr. Weaver. He agreed to return and act if his physician would permit. Neither was obliged to take any further action until he had satisfactory assurance that Mr. Weaver would not act. Mr. Dickson assumed to act upon information received from Mr. Weaver’s son. He was not justified in relying upon this and could not place Mr. Thomas or the defendant in the wrong until Mr. Thomas knew of Mr. Weaver’s refusal. Dickson did not rely upon the assurance received from Weaver’s son, for he telegraphed to Mr. Weaver at Detroit, and received not a refusal but a telegram saying:

“ Unable to say when can go home.”

Under Dickson’s own testimony Mr. Thomas, in the conversation of the 3d of October, informed him that he was satisfied Mr. Weaver would act. Thomas testified that about 4 o’clock on the afternoon of the 3d, Dickson informed him that he was going to take an ex parte appraisal. I do not find this statement contradicted by Mr. Dickson.

No one knew of Weaver’s refusal until the letter received by his son sometime bn the 4th of October. Mr. Dickson had no information upon which the law required him to act until the 4th of October. At that time, Mr. Dickson, acting under the instruction of the plaintiffs and their attorney, had commenced an ex parte appraisal, at nine o’clock on the morning of the 4th. As soon as Mr. Thomas knew this he wrote the letter above quoted offering to continue negotiations. To this letter plaintiffs paid no attention. Mr. Dickson claims that he acted in good faith in proposing persons for umpire, though he mentioned some persons who were relatives of the plaintiffs and another who was in the employ of a relative. Mr. Dickson objected to the persons proposed by Thomas, none of whom it appears was in any manner connected with the defendant or its business. The refusal on the part of Thomas to approve the persons named by Mr.. Dickson is not of itself any evidence of bad faith under the reasons given by him. The plaintiffs through Dickson were in the wrong in refusing to make further attempts to select an umpire, after they had learned that Mr. Weaver could not act. There is no occasion to enter into a discussion of the charge of bad faith on the part of Mr. Dickson. I can find no evidence of bad faith on' the part of Mr. Thomas. If it were the fact that both arbitrators acted unreasonably and had concluded that they could not agree, there being no bad faith on the part of the defendant, the plaintiffs had not fully performed their legal duty under their contract. It was their duty to continue further negotiations to secure an appraisal.

In Vernon Ins. Co. v. Maitlen, 158 Ind. 393, the facts were very similar to those in this case. Each chose his arbitrator. One insisted that the umpire should be a resident of the immediate vicinity of the place where the property was situated, the other that he should be taken from some point not in the immediate vicinity. The court say:

“ The appraisers seem to have been equally honest, and equally unreasonable in their views concerning the proper qualifications of an umpire. Those views proved to be irreconcilable. It cannot be said that one of the parties, more than the other was responsible for the failure to agree upon an umpire. We cannot attribute bad faith or perversity to either. We must ascribe their failure to agree, rather, to the peculiarities of the two' appraisers. Oth'er appraisers, if chosen, may easily decide the amount of the loss, or, in case of a difference of opinion on this point, may promptly select an umpire.” .

It was held that the condition of arbitration was still binding upon the parties, that they should have appointed new arbitrators, and that the insured could not maintain a suit. Under similar circumstances the supreme court of Iowa made the same ruling. Westenhaver v. Insurance Co., 113 Iowa, 726; Altman v. Altman, 5 Daly (N. Y.), 436; Davenport v. Insurance Co., 10 Daly (N. Y.), 535.

It follows that plaintiffs Were not in position to maintain this suit, and the trial court should have so instructed the jury.

There was an incumbrance upon a portion of this stock of goods claimed to constitute a chattel mortgage and to vitiate the policy. Under the above disposal of the case, it is unnecessary to determine that question.

Judgment reversed, and new trial ordered.

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


author: Montgomery, J.

text:
    WELTON v. TOWNSHIP OF CRYSTAL.
    1. Appeal, and Error — Review—Directed Yerdiot — Question Not Raised Below. .
    On error to review a judgment for defendant upon a directed verdict, the propriety of the direction will be determined upon the facts assumed by the circuit judge, without regard to a defect in the proofs not called to his attention at the trial, the supplementing of which it would have been his duty to permit.
    2. Townships — Highways — Sidewalks — Nuisances — Abatement-Power of Township Authorities.
    Township'authorities have the right to do whatever is necessary to be done in order to convert the highways over which they have control into safe, convenient roads adapted to the travel to which they are subjected, even to their entire width, and, as incident to this authority, have the right to prevent the maintenance by an abutting owner of a sidewalk in such a state of repair that it constitutes a nuisance and a menace to the safety of travelers upon the highway. Sections 3441 et seq., 1 Comp. Laws, and 4202 et seq., 2 Comp. Laws.
    3. Same — Personal Injuries — Defective Sidewalks — Liability of Townships.
    Where a township has authorized expenditures and has expended public funds for the repair of sidewalks built by abutting owners in an unincorporated village in the township, which sidewalks are almost an essential to the use of the highways along which they are built, the township is liable for injuries to a traveler caused by defects in one of such walks (section 3441 et seq., 1 Comp. Laws), though the sidewalk has never been established by the township authorities under Act No. 60, Pub. Acts 1883 (sections 4203 et seq., 2 Comp. Laws).
    Error to Montcalm; Davis, J.
    Submitted February 19, 1908.
    (Docket No. 113.)
    Decided May 1, 1908.
    Case by Dora Welton against the township of Crystal for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      J. C. Youdan (N. 0. Griswold and Kelley 8. 8earl, of counsel), for appellant.

      Morse & Loche (B. A. & W. E. Hawley, of counsel), for appellee.
   Montgomery, J.

This is an action brought to recover for injuries sustained by plaintiff resulting from a fall on a defective walk in the unincorporated village of Crystal Lake, situated in the defendant township. The circuit judge directed a verdict for the defendant, and plaintiff brings error. The facts, as the circuit judge stated them, and the claims of the respective parties as stated by him, were as follows:

“In this case, as the proof now stands, it appears that within the boundary line of the township of Crystal, this county, is a small village called Crystal Lake, located on the banks of Crystal Lake; the principal business conducted there is that of catering to summer resorters assembling there in the summer season.

“The plaintiff was, under the testimony as it now stands, walking on a sidewalk on the north side of Lake street, so-called, in the evening of August 11th, hurrying to her home, and by reason of a defect in the walk caused by age and decay of the same she fell and was injured.

“ It appears that along portions of this street there had been wooden sidewalks for the past 25 years; that several business places and residences had been erected along this street and sidewalks had been built along portions of the street both on the north and south side.

‘ ‘ It does not appear that the township defendant ever took any part in building, maintaining or repairing such walks, or appropriating money therefor, until 1900, when, at the annual meeting of that year, $150 was voted for streets and sidewalks of such village. After that time no money was voted by the people for such purpose, but the town board in 1904 authorized the highway commissioner to rebuild and repair sidewalks in such village, and appropriated moneys.

“ Some small amount of repair work and grading was authorized by the highway commissioner, and also by the overseer of the road district containing this part of the town, and paid for in township orders.

“This street and walk was used by a great many people in the summer season,- and by the permanent inhabitants during the balance of the year.

“ The plaintiff claims-that under all these conditions it became the duty of the township to maintain and repair such sidewalks; that because it did not do so it was negligent and should answer in damages for the alleged injury.

“The defendant claims that no duty was imposed upon the township under these conditions. .

“So the important question for the court to answer is whether it was the duty of the township to repair such walks and keep them in a reasonably safe condition.”

It is urged by the defendant in this court that the evidence fails to show specifically that the expenditures authorized by the township were made or intended to be . made upon the walk in question, and that as it was competent for the township to authorize the building of sidewalks under section 4203 et seq., 2 Comp. Laws, it may be inferred that there were authorized walks in the township upon which such funds might be expended. We do not discover that any such point was made below. On the contrary, the circuit judge seems to' have assumed that the plaintiff’s proofs related to expenditures upon the walks in question. Had the point been made, the court would doubtless have permitted the proofs to be supplemented ; it would have been his duty to do so. Findlay v. Railway Co., 106 Mich. 700, and Garn v. Lockard, 108 Mich. 196. ‘ The case will therefore be determined on the facts assumed by the circuit judge.

The trial judge stated his conclusions of the law as follows:

“ In order to be liable to plaintiff the power must have been given by law to the township to control such walks. Second, and such control must have been exercised by the township according to law. Third, or the township by its people at a general meeting have authorized a control and maintenance of such walks.

“ The statute points out the method, and no other way of acting on the part of the town board or highway commissioner would bind the people of the township. Simply voting an appropriation, as the people sometimes do to assist some portion of the township, is not assuming care and control.

In this sort of a street the abutting owner owns to the middle of the street subject to the rights of travel. These private owners had constructed these walks, and in any repairs the public officers acted in conjunction with .such private owners after such negotiations as brought about grades to suit the parties and such officers. ■ No independent action or assumption of control was ever had by such officers.

“ The statute that gives power to the township board to meddle with such walks was not followed. Had they assumed control without following the statute, without a vote of the people, their action would have bound nobody.

“ Such officers acting outside of the powers conferred by law had no authority to tear up existing walks, nor to establish a grade, nor to dictate whether a brick, plank or cement walk should be laid. They could not assess a tax against the abutting property if such owner failed to obey any command to build a walk; they could not build such walks in such road district and make it a charge against the people at large; they could not under the circumstances go beyond a certain per cent, of the tax of the road district.”

We think the error in this holding consists in the assumption that the township authorities have no right to tear up the sidewalk or to prevent its maintenance in an unsafe condition by the abutting owner. We do not understand that the township authorities are so powerless. On the contrary, whatever is necessary to be done in order to make a safe, convenient road, adapted to the travel to which it is subjected, we think the highway officers have lawful authority to do, and it has been held that this may be done even as to country highways when it involves paving or graveling the entire width of the way. In the present case, the record shows that a sidewalk is almost ’.an essential to the use of this highway, certainly during the summer season. It cannot be that the authorities are so restricted in their powers that they must sit supinely by and'permit the abutting owner to maintain a nuisance which shall subject travelers to the danger of a broken limb every time they attempt to traverse the street. See, on the subject of the control by the township of such highways, Elliott on Roads and Streets (2d Ed.), §§ 399, 400, and 403 and cases cited.

The statutes relating to the control of sidewalks in townships, stated chronologically, are as follows:

Act No. 176, Pub. Acts 1881, being compiler’s section 4202, 2 Comp. Laws, provides:

“ Overseers of highways are hereby authorized to lay out and expend such portion of the township highway funds in their hands or under their control as they shall deem reasonable for that purpose for the construction, care, and maintenance of suitable sidewalks and crosswalks in such villages.”

Act No. 60, Pub. Acts 1883, being compiler’s sections 4203 et seq., 2 Comp. Laws, provides:

“That public sidewalks may be established, opened, improved, and maintained within the boundaries, and along the highways, within this State under the provisions of this act; and the townships and unincorporated villages of this State shall possess the authority herein prescribed, for the building, repairing, and preserving the same.”

Section 2 then prescribed the kind of walk to be built, and prescribes that it may be built by the commissioners of highways of any township within any road district upon a written application of a majority of the taxpayers of any road district or of two or more contiguous road districts.

Section 6 provides:

“ The overseers of highways in each road district shall have the general care and superintendence of such sidewalks, and shall for the purpose of building and repairing the same, use, not to exceed one-tenth, of the highway labor, or money assessed, in his district.”

Act No. 264, Pub. Acts 1887, being compiler’s sections 3441 et seq., 1 Comp. Laws, in its first section, provides:

“That any person or persons sustaining bodily injury upon any of. the public highways or streets in this State, by reason of neglect to keep such public highways or streets, and all bridges, sidewalks, cross-walks and culverts on the same in reasonable repair, and in condition reasonably safe and fit for travel by the township, village, city or corporation whose corporate authority extends over such public highway, street, bridge, sidewalk, cross-walk or culvert, and whose duty it is to keep the same in reasonable repair, such township, village, city or corporation shall be liable to and shall pay to the person or persons so injured or disabled just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction.”

Section 3 of this act provides:

“It is hereby made the duty of townships, villages, cities, or corporations to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all public highways, streets, bridges, sidewalks, cross-walks and culverts that are within their jurisdiction, and under their care and control, and which are open to public travel, and when the means now provided by law are not sufficient to enable any township, village, or city to keep its public highways, streets, bridges, sidewalks, cross-walks and culverts in good repair such township, village or city is hereby authorized to levy such additional sum upon the taxable property of such township, village or city, not exceeding five mills on the dollar, in any one year, as will enable such township, village or city to keep its public highways, streets, bridges, sidewalks, crosswalks, and culverts in good repair at all times.”

It is very clear that if it can be said that this sidewalk is under the care and control of the township, the legislature has by its latest enactment provided not only for a liability for neglect to keep the same in a condition reasonably fit for travel, but has in express terms given authority for the use of the public funds requisite for that purpose, within certain limits. It is contended, however, that before this latter statute can have application, it must appear that a sidewalk has been established under the act of 1883, as it cannot be said that the township has the care and control of sidewalks not so provided. This contention is not allowed. The connection in which these words are employed, namely, “sidewalks under their care and control and which are open to public travel,” indicates the sense in which the words “ under their control” are employed. The fair sense of these words is that walks open to public travel shall be reasonably safe, and that if the municipality having authority in that regard is unable, out of its ordinary funds, to provide for maintaining or improving such walks, this necessary provision for a further appropriation of money is applicable. In any reasonable sense, the paramount right of the public in the street must be held to give the right to remove sidewalks which are in such a state of repair as to constitute a menace to the traveling public.

This question is not entirely new to this court. In Frary v. Township of Allen, 91 Mich. 666, the question arose under the same statute. It is true we were there dealing with a cross-walk, but the reasoning of the court is entirely applicable to the question here. We quote from the opinion of the court:

“ It is insisted that the section creating the duty refers only to such cross-walks, etc., as are within the jurisdiction of townships, and under their care and control, and that cross-walks are not by any other provision of law placed under their care and control.

‘ ‘ Highway commissioners, and all other officials having special charge of cross-walks, are by the act declared to be officers of, and subject to the general direction of, the municipality in the discharge of their several duties. Highways are by other statutory provisions placed under the care and supervision of township officers, and, while there is no other provision for the care or construction of cross-walks in townships by townships, yet, if constructed, and thereby the public are induced to use them, they become, for such use, parts of the traveled way, and the township must be held liable in case they are suffered to become unsafe and dangerous.”

Highways and bridges within the limits of incorporated villages are not always under the care and control of the village authorities. See Quinlan v. Village of Manis tique, 85 Mich. 22. The words “under their care and control ” must be held to have been intended to exempt municipalities so situated from liability. In the present case, care and control of this walk was in fact assumed by the township, bringing the case within Williams v. Village of Petoskey, 108 Mich. 260. But independent of this, we think that any sidewalk within the lines of a street is under the care and control of the township authorities within the meaning of. the statute. Doubtless the township could refuse to maintain such walk. It may, if it Choose, abate it as a nuisance. But if it is maintained, and the public are permitted and invited to travel over it, inasmuch as it is within the limits of a street or highway over which the authorities have control, it comes within the language of the statute of 1887.

It follows that the judgment must be reversed, and a new trial ordered.

Grant, C. J., and Blair, Ostrander, and Moore, JJ., concurred.


text:
    TROMBLEY v. McAFEE.
    1. Master and Servant — Personal Injuries — Negligence of Master — Safety of Appliances — Knowledge—Question for Jury.
    In an action by a servant for personal injuries, received while attempting to hang up a belt away from a line shaft to prevent its being burned by the motion of the shaft, plaintiff claimed that his hand was caught by the frayed ends of a rope which had been wound around the shaft to form a temporary pulley, and there was evidence tending to show that within defendants’ knowledge plaintiff was accustomed to suspend the running of his machine by removing the belt from the pulley on the main shaft and hanging it up in the manner indicated, whence defendants knew that he was exposed to such dangers as might result in coming in contact with any object unknown to him, and which they had reason to apprehend at that 'place. Held, that whether the defendants might reasonably have apprehended that the rope pulley, which for a long time before the accident was performing no office, might be expected to unwind so that its loose ends would extend a distance from the shaft when revolving, was a question for the jury.
    2. Same — Cause of Injury — Question for Jury.
    Evidence examined, and held, that whether the extended ends of the rope used for a pulley caught plaintiff’s hand, causing the injury, was a question for the jury.
    3. Same — Assumption of Risk — Violation of Statutory Duty.
    Where a servant with the knowledge of his master is accustomed and is required to suspend the operation of his machine by removing the belt connecting it with the main shaft and tying the belt up away from the shaft, and is required to adopt that means by reason of the master’s violation of the statutory duty to provide loose pulleys or other adequate means of placing the machine out of commission, it cannot be said that he assumes any risk of injury not reasonably ob. vious to him at the time.
    4. Same — Contributory Negligence.
    Contributory negligence of plaintiff may be a defense to an action against an employer for personal injuries notwithstanding a violation on his part of a statutory duty which deprives him of the defense of assumption of risk.

      Error to Wexford; Chittenden, J.
    Submitted February 21, 1908.
    (Docket No. 89.)
    Decided May 1, 1908.
    Case by Joseph L. Trombley against Andrew McAfee and George McAfee for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      De Vere Hall {D. E. McIntyre, of counsel), for appellant.

      I. C. Wheeler and Charles A. Withey, for appellee.
   Montgomery, J.

The plaintiff brings this action to recover from the defendants damages for an injury sustained by him on March 16, 1906, while in defendants’ employ in a heading mill at Mantón, the injury resulting in the loss of both his right arm and his right leg. The plaintiff, a man about 30 years of age, was employed to cut the heads of barrels in a machine called a turner. The defendants employed 30 to 35 men in the mill, the room in which plaintiff was employed being about 30 feet in length, north and south, by 20 feet in width, east and west, the ceiling being 8 feet in height. In addition to the turner, the room contained a planer, a jointer, and a buzz planer. The line shaft extended the full width of this room in the north part, about 6£ feet from the floor, and on it were four tight pulleys driving the turner, the planer, the jointer and the buzz planer respectively. The turner was located in the southeast part of the room about 20 feet from the line shaft, and connected with it by two belts, one extending from the turner to an intermediate counter-shaft, and the other from such counter-shaft to the line shaft. There was also on the counter-shaft a loose pulley at the east end. The counter-shaft was If inches in diameter and 3\ feet in length, suspended from two iron hangers about 7\ feet from the floor. The office of the loose pulley was to stop the. machine with which it was connected without stopping the other machinery in the factory. This was done by passing the belt from the pulley over which it ran to the loose pulley, and when it was desired to start the machine again, the belt was forced back from the loose pulley to the tight pulley. The loose pulley in question was designed for use in stopping the turner.

The defendant George McAfee was the superintendent, general manager and foreman of the mill, and at different times while plaintiff was employed, the defendant Andrew McAfee, his son Don and one Henry Orcut, millwright, acted as foreman and gave directions. The plaintiff’s testimony tended to show that he had no authority over any others in the mill, and that his duty was to turn out heading in the quality and quantity desired.

The testimony offered on behalf of the plaintiff tended to show that the loose pulley in question was out of order and had been for a considerable time; that it rattled so as to cause apprehension that it might fly loose from the shaft and cause injury; that plaintiff was directed to babbitt it so as to make it tighter on the shaft; that he did this a few days before the injury occurred to him. In babbitting the pulley onto the shaft, the plaintiff evidently got it too tight and the defendant George McAfee took a sledge hammer and broke it off. Another pulley with three-inch bore was tried, but that didn’t work, according to the testimony of the plaintiff, for the reason that the belt would not stay onto the loose pulley, but would come back onto the tight pulley as before. There was no belt shifter. It appears that a belt shifter serves two purposes, one to make the actual shift of the belt from the tight to the loose pulley, and the other to hold the belt in position after it is shifted.

It appeared that something like a year before the injury, a worm feed to the machine operated by plaintiff wore oüt, and a new one was sent for. In order to operate the machine until the new appliance reached them, defendants put in an independent counter-shaft over the header and drove it directly from the main line shaft by a belt running from the pulley on the counter-shaft over the machine to a pulley on the main line, made by winding a half-inch tarred rope around the shaft, this being a mere temporary contrivance not designed for permanent use. This pulley answered the purpose, and plaintiff used it until a new worm came, which was a week or more. After the worm came, the temporary device was discontinued, but the rope pulley was left on the main line shaft. Plaintiff knew of the fact that this rope pulley was there, but he testified that he did not know that it had become frayed, and that the ends hung down.

■ There was testimony from which the jury might have inferred that in the absence of a shifting device which would hold the belt to the loose pulley, and in view of the testimony of the plaintiff that the belt would not remain on the loose pulley which was on the shaft at the time, it was a proper method to throw the belt off the main line pulley and loop it up to hold it away from the shaft. There was testimony that the plaintiff had been accustomed to do this, and at first he had required the engine to slow down when he wanted to' throw the belt off the main line pulley, but that the defendants ordered the discontinuance of that practice and told plaintiff that he must throw the belt while the machinery was in motion, and that thereafter the practice was to throw it without slowing down.

On the day in question, the plaintiff had placed a barrel near the shaft, had stepped up on the head of the barrel, had thrown the belt off the main line pulley, and was in the act of fastening it up with a string to keep it from burning from the motion of the shaft, when he became involved with the shaft and was seriously injured. The declaration avers that the manner in which he became involved with this shaft was by being caught with the frayed ends of the rope which had been used in making the rope pulley, which frayed ends were hanging down, and of which plaintiff was ignorant, and which he could not see when the shaft was in motion. The plaintiff testifies that he was not aware of the fact that the frayed ends of this rope were hanging down. Other witnesses testify that they saw the ends hanging down from time to time. The circuit judge directed a verdict for the defendants upon the ground that the testimony failed to show that the plaintiff was caught by the hanging ends of the rope.

The theory of the plaintiff is that, as the statute, section 8 of Act No. 113 of the Public Acts of 1901, defining the duty of factory owners, provides that the “belting shall be provided with proper safeguards, and wherever possible machinery shall be provided with loose pulleys,” this statute required that the employer, in the exercise of the duty of providing loose pulleys, shall observe a reasonable degree of care, and shall provide one reasonably fit for use; that a failure in this regard is negligence per se; and that the employé does not assume the risk resulting from the violation by the employer of a statutory duty imposed for the employe’s protection.

It is further contended by plaintiff and appellant that, the defendants having increased the ordinary risk of doing the work, the duty rested upon them of informing the plaintiff of the increased risk, and that, the defendants having placed this rope on the shaft and left it there, plaintiff could defer to their implied assurance that no unusual danger would be occasioned thereby.

The defendants, on the other hand, assert that the plaintiff knew that there was no shifter,. and that the necessity for making use of the other method of looping up this belt was occasioned not because of the inadequacy of the loose pulley, but because of the want of a shifter ; that the pulley would have answered its purpose had there been a shifter performing the office not only of shifting the belts but of holding the belt on the loose pulley after it was placed there; and that as there is no testimony tending to show that the shifter was required by the factory inspector, negligence cannot be imputed to the defendants, as a matter of law, for failure to provide such shifter.

"We think that a general discussion of the duty owing by the defendants in this case would not be profitable, for the reason that there was testimony which tended to shoy that, with the knowledge of the defendants, plaintiff was using, and was expected to use, the method employed on the occasion in question in suspending the use of his machine; that this had been commonly done; and that defendants recognized the inadequacy of the provision made for the loose pulley; and knowing that plaintiff was accustomed to suspend the running of his machine by removing the belt from the main shaft and catching it up in the manner indicated, the defendants knew that he was exposed to such dangers as might result in coming in contact with any object unknown to him, and which they had reason to apprehend at that place. We think it was a question for the jury as to whether the defendants might reasonably have apprehended that this rope pulley, which for a long time before the accident was performing no office, might be expected to unwind so that its loose ends would extend a distance from the shaft when revolving.

The question remains as to whether there was any testimony from which the jury would have been justified in inferring that contact with the loose ends of the rope was what in fact caused the injury to the plaintiff. Plaintiff’s testimony upon this point we quote at length:

“When I got up there I intended to loop the belt off the shaft.

ilQ. And what did you do ?

“A. I reached for it and got caught by the hand.

“Q. Which hand did you reach ?

“A. My right hand.

“Q. Did you get hold of the belt ?

"A. No, sir, I didn’t.

“ Q. .How close to your hand did the belt get ?

“A. I got just about touching it, I should judge.

“Q. You say you should judge that your hand had almost reached the belt ?

“A. Yes, sir.

LiQ. Then what took place, what happened then ?

“A. I got caught by my right hand.

“Q. What caught you ?

“A. The rope.

Q. Well, what happened to you ?

“A. I went around the shaft. * * *

Q. Now, you say when you reached over for the belt • something caught your hand ?

“A. Yes, the rope caught my hand.

Q. How do you know it was the rope ?

“A. Because I felt it, felt something take hold of me, I felt it catch me; it jerked me quicker than I had time to jerk.

“ Q. How could you tell in that instant of time by the feeling that it was the rope that caught your hand ?

“A. Well, I felt it catch me — I knew it was the rope.

Q. Well, that was your opinion, that you got caught by the rope ?

“A. Nothing else could catch me there.

Q. That is what makes you think it ?

“A. No, I felt it grab me, whatever it was, and I know it was not the belt because I wasn’t near enough to it, and I felt it pull me and it fetched me up against the pulley and broke my ribs.

Q. But you don’t think it was the belt ?

“A. No, because I hadn’t got hold of the belt yet; I was just reaching for it.

Q. Well, had you got hold of the rope?

“A. Which rope ?

“ Q. That rope on the shaft; you say you hadn’t got hold of the belt yet, had you got hold of the rope ?

“A. No, the rope got hold of me.

Q. That is what made you think about it ?

“A. Yes, sir. I know.

Q. Did you see the rope then ?

“A. No, sir, or else I wouldn’t have put my hand there.

Q. But you knew it was there ?

“A. Yes, sir.”

This testimony, when taken in connection with the testimony of other witnesses, that the ends of the rope were at times swinging away from the shaft, we think, leaves it open to the jury to find that it was such extended end of the rope that caught the plaintiff’s hand. It is true that the word “rope” as used in this extract might have referred to the rope pulley, but it is a fair construction to say that the witness meant the rope itself, and that it caught around his hand while he was engaged in this work. We think this presented a question for the jury.

If the plaintiff, in adopting this method of tying up the belt, was required to do so because of defendants’ failure in the performance of a statutory duty, or their failure in providing other adequate means of putting his machine out of commission, and this with the knowledge of the defendants, it certainly cannot be said that he assumed any risk not reasonably obvious to him at the time. It is true that any act of contributory negligence would still constitute a bar to plaintiff’s recovery. But the question of whether he had knowledge that this rope pulley had in fact thrown out ■ these strands, or whether he should reasonably have apprehended such a condition, would be a question for the jury. Clearly, if he did know, or if as a reasonable man he should have apprehended such a condition, he would be guilty of contributory negligence in getting within reach of these while tying up the belt. If he did not, the question of whether he acted with reasonable prudence would be likewise a question for the jury.

The judgment is reversed, and a new trial ordered.

Grant, C. J., and Blair, Ostrander, and Moqre, JJ., concurred.


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    FRANKEN v. SUPREME COURT INDEPENDENT ORDER OF FORESTERS.
    1. Witnesses — Competency—Transactions With Persons Since Deceased — Life Insurance — Contest Between Beneficiaries.
    On a bill by. a widow to establish ownership of the proceeds of a mutual benefit certificate held by decedent’s mother, the designated beneficiary, complainant’s claim being based upon an alleged ante-nuptial agreement of decedent to have the certificate reissued in her favor, complainant is not competent to testify to the alleged agreement. Section 10212, 3 Comp. Laws.
    2. Life Insurance — Mutual Benefit Insurance — Chance of Beneficiary — Contract—Evidence—Sufficiency.
    On a bill by a widow to establish ownership of the proceeds of a mutual benefit certificate held by decedent’s mother, the designated beneficiary, evidence examined, and held, not sufficient to establish the alleged ante-nuptial contract between complainant and decedent by which he agreed to have the certificate reissued in her favor.
    3. Same — Chance of Beneficiary — Necessity of Contract.
    A purpose on the part of a member of a beneficial association to change the beneficiary named in his certificate will not, in the absence of contract, entitle the future possible beneficiary to lay claim to the fund.
    Appeal from Mason; Rose, J.
    Submitted February 21, 1908.
    (Docket No. 86.)
    Decided May 1, 1908.
    Bill by Alice L. Franken against the Supreme Court Independent Order of Foresters, Alexander Pelletier, administrator of the estate of Gertrude Franken, deceased, and others, to determine the title to a policy of insurance. From a decree for complainant, defendant administrator appeals.
    Reversed, and bill dismissed.

      O, N. Cranor and F. N. Fitch, for complainant.

      App. M. Smith, for appellant.
   Montgomery, J.

The real controversy in this case is between Alice L. Franken and the estate of Gertrude Franken, Gertrude Franken having died since the filing of the original bill. Theodore Franken was the husband of complainant and the son of Gertrude Franken. On the 31st of July, 1905, he became a member of the defendant association, and received a certificate which entitled his beneficiary to receive $1,000 in case of his death. Gertrude Franken was named as such beneficiary. Theodore Franken was suddenly killed on the 11th of March, 1906. Proper proof of this fact was furnished to the defendant society. No question of liability to the amount of the certificate is made, but payment was declined upon the ground that the complainant in this case claimed to be entitled to it under the certificate. Thereupon, for the purpose of testing this question, complainant filed this bill.

The bill alleges that prior to the 31st .of July, complainant, who was then an unmarried woman, assented to become the wife of Theodore Franken upon his agreeing that he would take out this policy of insurance in her favor ; that such policy was taken out before the marriage, and made payable to the defendant, for the reason that under the rules of the order complainant was not then entitled to be named as beneficiary, but upon the understanding and agreement that after the marriage a change should be made and complainant named as beneficiary in a new certificate to be issued; that this was not done because of the sudden death df Theodore Franken; and the prayer of the bill is that the money be paid to the complainant. The circuit court decreed the relief prayed, and the defendant brings the case here on appeal.

The only evidence of the alleged agreement between Theodore Franken and complainant is the testimony of complainant herself taken under objection that she was disqualified as a witness. By the circuit judge’s opinion, it appears that he accepted her version of the transaction, and based his conclusion upon her testimony. This was an erroneous view of the law. There could be no plainer case of an infraction of the spirit of the statute than the present. The certificate in this case was made out and in fact delivered to the mother of the defendant. She was a beneficiary of the assured, and as was said in Wallace v. Mystic Circle, 127 Mich. 387, “up to the time of his decease he retained the power of disposition of his policy. She tabes, therefore, by virtue of a right bestowed upon her by the deceased.” The question was before the court in Great Camp K. O. T. M. v. Savage, 135 Mich. 459, and upon full consideration, the ruling in Wallace v. Mystic Circle was sustained by a majority of the court.

If we eliminate the testimony of the complainant, there is nothing in the case to show that Theodore Franken was under any contract obligation with the complainant to cause a new certificate to be issued in her favor. There is no proof of any statement of his to this effect. It is true that statements are attributed to him by some of the witnesses showing a purpose to make such transfer. But even this testimony is not very convincing. As against the testimony tending to show such purpose, there is the testimony on behalf of the defendants of his declaration to his mother that no change would be made in the certificate during her lifetime and of the fact that the certificate was left in her care. The complainant herself called as a witness the local financial secretary of the defendant company, who stated that Theodore Franken got his policy from witness; that at the time it was delivered to him Franken and his wife came to the house to pay his dues; that the policy was turned over to him, and this was only a few days after they were married. Witness proceeds as follows:

“I said to him in a joking way, ‘Mr. Franken, you had better get this policy changed,’ and he felt embarrassed and stammered and stuttered and he said, ‘ I will, as soon as I can get it straightened up.’ I handed him the policy and he went away.”

If there had been any purpose on his part to change this policy, it is very remarkable that he did not do it at this time. But the fact that he failed to do so was explained perhaps by his agreement with his mother that it should not be changed. Had there been a real purpose on the part of decedent to change his policy, this, in the absence of contract, would not have entitled the future possible beneficiary to lay claim to the fund. Coston v. Coston, 145 Mich. 390.

The decree must be reversed, and the bill dismissed, with costs to the defendant estate.

Grant, C. J., and Blair, Ostrander, and Moore, JJ., concurred.

       Section 10213, 3 Comp. Laws.


text:
      In re McHUGH.
    1. Attorneys — Duties—Attendance Upon Trials.
    Attorneys are officers of the court, and it is their duty to be in court upon the trial of causes duly set for trial of .which they have had due notice.

      2. Contempt — Attorneys—Absence erom Court — Actions Constituting Contempt.
    Where attorneys retained to defend a man accused, of murder, after having been twice denied motions for a continuance, absented themselves from the jurisdiction .of the court upon the day set for the trial, instead of appearing, as was their duty, that the court might examine them and determine for itself whether they were in too precarious a state of health to enter upon the trial, it Was for the court to determine, in proceedings to punish them for contempt, whether their conduct amounted to contempt, and whether they had purged themselves therefrom.

      3. Continuance — Criminal Case — Absence of Witness.
    The absence of an eyewitness whose name is indorsed upon an information for murder is not good ground for a continuance, moved before trial, since the people are bound to produce such a witness at the trial, failing in which, a continuance or adjournment may be granted for that purpose. '
    4. Judges — Disqualification—Opinion upon Merits.
    That the judge has criticised a jury for acquitting a person accused of murder in a case in which the defense was insanity, does not disqualify him from sitting in a subsequent case in which the defense is insanity.
    5. Contempt — Proceedings—Regularity—Waiver.
    That the acts complained of were not committed in the presence of the court, and no petition or affidavit was presented to the court as a foundation for contempt proceedings, is not-available to respondents who were not arrested upon the capias ordered by the court, but came from a foreign country into court and voluntarily submitted themselves to its jurisdiction, whereupon they werp given the same opportunity to make their defense that they would have had upon the filing-of a petition or affidavit and the issuance of an order to show-cause.
    6. Constitutional Law — Cruel and Unusual Punishment — What Constitutes.
    ' Fine and imprisonment not in excess of that prescribed by law for the offense of which respondent is convicted does not constitute that cruel and unusual punishment which is prohibited by the Constitution.
    7. Contempt — Proceedings—Review—Excessive Punishment.
    On certiorari to review contempt proceedings, this court cannot review the evidence to determine whether the sentence should have been less, it being the province of the trial court, before whom the witnesses and the conduct of the respondents are produced, to impose the amount of the sentence.
    Certiorari to the recorder’s court of Detroit; Connolly, J.
    Submitted February 28,1908.
    (Docket No. 95.)
    Decided May 1, 1908.
    Philip A. McHugh and Charles P. O’Neil were adjudged guilty of contempt, and sentenced to pay a fine of $250 each, and defendant McHugh to confinement for 30 days in the county jail.
    Affirmed.

      Philip T. Van Zile and Thomas J. Navin (Harrison Geer, of counsel), for appellants.

      Allan H. Frazer, for appellee.
    The respondents were found guilty of contempt of court and O’Neil fined $250 and McHugh fined $250 and imprisonment for 30 days. The case is now before us for review on certiorari. -
    The facts essential to here state, as appears from the return of the court, are as follows: The respondents, attorneys at law, were retained to defend one Peter Schlaf for the crime of the murder of his wife. The deed was committed January 25, 1907. Schlaf was arrested on that day, and was examined April 7th; was bound over to the recorder’s court for trial; was arraigned May 1st, and pleaded not guilty. He had been in jail from the date of his arrest to the time fixed for his trial as hereinafter stated.
    The respondents were Schlaf’s attorneys before and at the time of his arraignment. They entered their formal appearance as attorneys on June 25th.
    About two years before these proceedings the docket of the recorder’s court became in such a condition through delays made by attorneys on one pretext and another that the court made a rule not to permit the postponement of the trial of any case, particularly murder cases, except in important emergencies and in order to promote the administration of justice.
    There are six terms of the recorder’s court each year,— commencing the first Wednesday in January, March, May, July, September, and November. It had been determined to summon no jury for the July term, and at the time of the occurrence here involved it was too late to summon one for that term. On June 22d the respondents applied verbally in person to Judge Connolly for a postponement of the trial of said Schlaf. The judge called their attention to the above rule, and stated that the case must be tried at the then continuing May term, which would end July 2d,,and that a jury for the trial of said Schlaf would have to be impaneled before that day. The judge then informed them that the trial would commence June 26, 1907, and ordered and directed them to be ready to proceed on that day; that said respondents were then in good health, apparently in full possession of their physical strength, and able to proceed with the trial.
    On June 26th, the judge opened court with the jury in attendance, prepared to commence said trial. The respondents were not there; respondent O’Neil finally appeared and presented to the court and argued a motion for a continuance of the cause, which motion the court denied, and informed the respondents that he would grant a continuance until June 29th following; that the case would then proceed to trial without fail, and that if the respondents did not care to proceed they could withdraw from the case. The respondents did not withdraw from the case, but on June 29th they filed three motions, —one for a continuance, one for a change of venue, and the third a motion to disqualify the trial judge. A young attorney named Hayes presented the motion for a continuance. The basis of this motion was the absence of a witness whose name was indorsed upon the information as a witness for the people.
    A further reason for the continuance was that the prosecuting attorney had stated to the respondents that he did not intend to proceed with the trial of Schlaf at the present term. The motions for change of venue and for the disqualification of the judge' were noticed for hearing July 3d.
    On June 29th, upon the failure of the respondents to appear, Judge Connolly appointed Hon. Fred N. Aldrich, an attorney at law, to defend Schlaf. Schlaf refused to accept him, would not consult with Mr. Aldrich about his case, and, when asked where he last saw the respondents, refused to answer.
    On July 2d the court proceeded to impanel a jury, and while so engaged the respondents appeared in court and proceeded with the trial of Schlaf. Upon the failure of the respondents to appear in court June 89th, the court made an order for a capias to be issued taking the respondents into custody “to answer a charge of contempt of court for failure to appear in court this day, for the purpose of obstructing the course of justice.” Instead of appearing in court on June 89th the respondents packed their suit cases and went to Canada, returning in time to appear in court on July 8d.
    On July 3d, the respondents with their counsel voluntarily appeared in court and offered the testimony of themselves and others for the purpose of explaining their failure to appear in court on June 89th. The testimony was received and the respondents given full opportunity to explain their conduct. Upon the conclusion of the testimony and the arguments of counsel, the court found the respondents guilty as above stated.
   Grant, C. J.

(after stating the facts). Attorneys are officers of the court, and it is their duty to be in court upon the trial of causes duly set for trial of which they have had due notice.

The respondents had undertaken the defense of one charged with murder. They had applied verbally for a continuance, which was refused. Four days later they applied by written motion, supported by affidavit, for a continuance. This was refused and the case again set for trial three days later. It was their duty to be present on that day, unless prevented by circumstances entirely beyond their control. ' They were in sufficiently good health to pack their suit cases and take a trip upon the cars and ride into the country, and to return again in three days. Their duty to their client, to the court, and to the administration of justice was to appear in court themselves so that the court might examine them and determine for itself whether they were in too precarious a state of health to enter upon the trial, and whether a proper regard for the rights of the people and of the defendant required a continuance of the case for from two to three months longer, with the alleged criminal confined in the jail. Instead of so doing they presented three motions — one a motion for continuance, to be heard at the opening of court, the other, two to be heard four days later. Under the facts set forth in their affidavit for continuance, made by Mr. O’Neil, on the ground of the absence of a witness, the prosecutor would be bound to produce that witness upon the trial, for she was a witness to the killing. Failure to produce her upon the trial would have been ground for continuance, or an adjournment of the case to procure the attendance of the witness. The motion for the disqualification of the judge was without excuse. The only reason offered for such disqualification was that the judge had criticised a jury in a former trial for acquitting the respondent in that case on the ground of insanity. The respondents asserted that their defense in this case was insanity, and therefore the judge was disqualified. If this be so, then any judge, who, under the circumstances of one case, condemns the verdict óf a jury, rendered on account of insanity, is disqualified forever thereafter from trying a case where insanity may be the defense. The motion itself was little short of contempt of court. Under all the circumstances, the conduct of the respondents was reprehensible, and under the facts it was the province of the court to determine whether their conduct amounted to a contempt, and whether they had purged themselves by their evidence therefrom.

The first legal question presented is, that the acts constituting the contempt were not committed in the presence of the court, and no petition or affidavit was presented to the court as a foundation for the proceedings. Upon this point many authorities are cited by counsel for the people and for the respondents. It is unnecessary to determine this question. The respondents voluntarily appeared in court, and were given the same opportunity to make their defense that they would have had upon the filing of a petition or affidavit and the issuance of an order to show cause. They were not seized upon the capias, but came directly from a foreign country into the court and voluntarily submitted to its jurisdiction. It should require no argument to show that they had waived all irregularities in initiating the proceedings. The following authorities are directly in point: Moore’s Case, 63 N. C. 397; Hawkins v. State, 125 Ind. 573; In re Savin, 131 U. S. 267; Randall v. Brigham, 7 Wall. (U. S.) 523, 540.

In Randall v. Brigham it is said:.

“ He [the respondent] was afforded ample opportunity to explain the transaction and vindicate his conduct. He introduced testimony upon the matter, and was sworn himself. . It is not necessary that proceedings against attorneys for malpractice, or any unprofessional conduct, should be founded upon' formal allegations against them. Such proceedings are often instituted upon information developed in the progress of a cause; or from what the court learns of the conduct of the attorney from its own observation. Sometimes they are moved by third parties upon affidavit; and sometimes they are taken by the court upon its own motion. All that is requisite to their validity is that, when not taken for matters occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made, and opportunity afforded him for explanation and defense. The manner in which the proceedings shall be conducted, so that it be without oppression or unfairness, is a matter of judicial regulation.”

The court in Re Savin, supra, quoted the above language with approval, and said:

“So, in the present case, if the appellant was entitled, of right, to purge himself under oath, of the contempt, that right was not denied to him; for it appears from the proceedings in the district court, made part of the petition for habeas corpus, not only that he was informed of the nature of the charges against him by the testimony of Flores, taken down by a sworn stenographer at the preliminary examination, But that he was present at the hearing of the contempt, was represented by counsel, testified under oath in his own behalf, and had full opportunity to make his defense.

“ Our conclusionis that the district court had jurisdiction of the subject-matter, and of the person, and that irregularities, if any, occurring in the mere conduct of the case, do not affect the validity of its final order.”

If the respondents had refused to appear in court, as was the case in Re Wood, 82 Mich. 75, or if they had been arrested upon the capias and had denied the jurisdiction of the court for the reason that no affidavit or petition was presented to the court setting forth the facts, the respondents would have been in position to raise this question, but their conduct waived it. They voluntarily placed themselves in precisely the same position as they would have been if the proceeding had been such as they now contend was necessary.

It is urged that the sentences were unwarrantably severe and constitute that cruel and unusual punishment which is prohibited by the Constitution. The punishment is not in excess of that provided by law. It is not for appellate courts to determine the amount of punishment. That must be determined by the trial judge from the facts as they are placed before him. We cannot review the evidence to determine- whether the sentence should have been less. The witnesses were before the court; the conduct of the respondents was also before the court, and it was for that court, not for this, to determine and impose the amount of the sentence.

The proceedings are affirmed.

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