author: Brooke, J.

text:
    WEILAND v. HOGAN.
    1. Corporations — Stock and Stockholders — Estoppel—By-Laws —Validity.
    Stockholders who have participated in the enactment of a by-law which requires them to offer their stock to other stockholders of the corporation and to the corporation before selling the same, and providing for a period of six months in which the offer might be accepted, are estopped from questioning the validity of the by-law.
    2. Same — Specific Performance — Decree.
    Where the by-laws of a corporation provided that no transfer of stock certificates should be made by any stockholder without first making a written offer of sale of such stock to the corporation and its stockholders, by affidavit, etc., and, if the company refuse to purchase, the stockholders to have six months in which to accept or reject the offer, a decree in injunction proceedings requiring the defendants to sell to complainants all the stock included in a prospective sale or at their election such part as the complainant stockholders offered to take as their pro rata share, was just and equitable.
    Appeal from Wayne; Codd, J.
    Submitted January 18, 1913.
    (Docket No. 96.)
    Decided November 4, 1913.
    Bill by Frank Weiland and others against Morris P. Hogan and others for an injunction and other relief. From a decree for complainants, defendants appeal.
    Affirmed.

      Pfentis & Mulford, for complainants.

      Navin, Sheahan & Kennary (Arthur C. O’-Connor, of counsel), for defendants.
    Complainants and defendants together constitute all the stockholders in a corporation known as the Monarch Foundry Company. The corporation was formed in 1907.
    At the first meeting of the stockholders, the following by-law was unanimously adopted:
    “No transfer of stock certificates on sale shall be made until an offer of sale to the company shall first be made in writing, and the company shall then have six months from date of said notice to accept or reject same, at appraised value, by appraisers appointed by company and seller.”
    And printed upon each stock certificate was the following :
    “This.certificate of stock is transferable only when the conditions of. article 9 of this company’s by-laws have been complied with.”
    Several transfers of stock were made in accordance with this by-law.
    On August 28, 1911, when all the parties to this cause, together with Frank Walker and Frank Rivard, were stockholders, the following by-law, which superseded the one above quoted, was unanimously adopted:
    “No transfer of stock certificates, of the company by virtue of sale shall be made by any stockholder without first making written offer of sale of such certificate to the company and stockholders, by an affidavit alleging a bona fide offer of purchase of said certificate and the amount offered therefor and the company, or if the company refuses to purchase, the stockholders shall have six months from date of notice to accept or reject same. Said stock to be equally distributed amongst the stockholders desiring the same, said transfer to be made and recorded within two months thereafter.”
    On October 28, 1911, Walker made an affidavit in compliance with the foregoing by-law, relative to an offer for his stock, and upon November 7, 1911, Rivard made a similar affidavit. Later, and prior to November 16, 1911, defendant Aman purchased Walker’s 10 shares for $1,200, and Rivard’s 15 shares for $2,000.
    On November 16, 1911, a special meeting of the stockholders was held which was attended by all the parties to this cause. An extract from the minutes of the meeting shows that:
    “The chairman announced that the purposé of the meeting was to take action on the purchase of the stock of Messrs. Rivard and Walker, and the election of a director to fill the vacancy caused by the resignation of Mr. Rivard. The secretary then read the affidavits of Messrs. Rivard and Walker, copies of which are attached to and made a part of the minutes of this meeting. The secretary notified the stockholders that the stock would not be transferred on the books of the company until 60 days had elapsed from the date of the notice. Mr. Aman then notified the company that he had purchased all of the stock of Messrs. Rivard and Walker, and that he was holding same in trust, and that he would assign his interest therein to those desiring same, to the extent that they were entitled to purchase.”
    On December 26, 1911, complainants gave notice to the corporation that they would take and pay for their proportionate share of the Walker and Rivard stock. On January 10, 1912, a special meeting of the stockholders was held. All stockholders were present, either personally or by proxy. At this meeting a certified check for $1,200 was tendered Aman for the Walker stock, which was refused. Another tender of $1,016 was made for 67/182 of the Rivard stock. Both tenders were refused by Aman, who assigned as his ground for such refusal the alleged fact that the 60-day limit had expired and no tender had previously been made.
    Frank Walker, who sold his 10 shares to Aman, testified:
    “The by-laws were accepted; they were the bylaws, and the company had always done business under them. When Mr. Aman would not turn over to the other stockholders their pro rata, I authorized Mr. Robertson, as my agent, to tender $1,200 and interest for the return of my 10 shares of stock. I then considered that I had not sold my stock, because I considered the by-laws created a lien upon it, and that in case the stock was not divided among the stockholders, I could not, and had not, made any sale of it.”
    Being unable to secure their proportionate share of the stock in question, complainants filed their bil1 of complaint. They pray for the following relief:
    “(2) That a temporary injunction be issued from this court restraining the said defendants Aman, Hogan, and Brown from transferring the said stock, namely, the 25 shares purchased from Walker and Rivard, or from voting the said 25 shares purchased from said Walker and Rivard, or any portion thereof, at any stockholders’ meeting of said company; that the said defendant company and its officers be enjoined and restrained from allowing the said 25 shares formerly owned by said Walker and Rivard to be voted at any meeting of the stockholders or to be counted in making a quorum.
    “(3) That the defendants Aman, Hogan, and Brown be restrained from transferring said stock, namely 25 shares purchased from said Walker and Rivard, or any portion thereof.
    “(4) That the said defendant may be enjoined and restrained from voting said stock, namely, 25 shares purchased from said Walker and Rivard, or any portion thereof.
    “(5) That the defendants Aman, Hogan, and Brown be required to permit each of the complainants to purchase from them, at the price paid by them on the purchase thereof, their pro rata share of said stock, formerly owned by said Walker and Rivard for cash.
    “(6) That the defendant company and its officers be enjoined and restrained from allowing the said 25 shares formerly owned by said Walker and said Rivard, or any portion thereof, to be voted at any meeting of the stockholders, or to be counted in making a quorum.”
    A decree was entered as follows:

      “(1) That the sale and purchase of said Walker stock and said Rivard stock shall each be treated as a distinct and separate transaction, for the purpose of carrying out the terms of this decree.
    “(2) That within five (5) days from the date of this order, each of said complainants, and each of said defendants, by means of a written communication addressed to the Monarch Foundry Company, shall designate the proportion or pro rata of stock he desires to purchase of the stock so as aforesaid sold by said Walker and by said Rivard. Noncompliance with said notice to be construed as a desire not to purchase any of said stock.
    “(3) That in case any or all of said defendants do not within said five (5) days signify their intention of taking their pro rata proportion of said stock, in accordance with said by-law, then said complainants must, within 10 days thereafter, purchase the balance or all of said Walker and Rivard stock, in accordance with the terms of the sales heretofore made, under and by virtue of said by-law.
    “(4) That in case said complainants shall not, within said fifteen days, so purchase their pro rata share of all of said stock, as required of them, by the notifications to be given by said defendants, then said defendants shall have the right to retain, as and for their own, all of said stock, so as aforesaid heretofore purchased in trust by said defendant Aman.
    “(5) That each of said complainants, in purchasing stock, shall pay interest at the rate of five (5) per cent, per annum, upon the amount paid by him; said interest to be computed from the 28th day of October, 1911, in the purchase of said Walker stock, and from the 7th day of November, 1911, in the purchase of said Rivard stock.
    “(6) That complainants shall be entitled to costs, to be taxed by them in this cause.”
    Defendants appeal.
   Brooke, J.

(after stating'the facts). The contention is made on behalf of appellants that this by-law is void for various enumerated reasons. The authorities upon this point are not uniform, and though the question is one of interest, we have found it unnecessary to pass upon it in this case, for the reason that, whether valid or void, considered strictly as a by-law, it can be sustained as an agreement entered into between all the parties in interest. It should be noted that we are not called upon here to determine the effect of such a by-law upon a stockholder who had not given his assent to its adoption, or upon a transferee of stock, who in good faith, for value, and without notice, had become an owner of shares in the corporation. We are now dealing only with stockholders who themselves, voluntarily and for their own benefit and protection, enacted the by-law.

A review of the authorities is unnecessary, but attention is directed to the following: New England Trust Col v. Abbott, 162 Mass. 148 (38 N. E. 432, 27 L. R. A. 271); Barrett v. King, 181 Mass. 476 (63 N. E. 934); Nicholson v. Brewing Co., 82 Ohio St. 94 (91 N. E. 991, 137 Am. St. Rep. 764, 19 Am. & Eng. Ann. Cas. 699); Carter v. Oil Co., 182 Pa. 551 (38 Atl. 571, 39 L. R. A. 100); In re Lindsay’s Estate, 210 Pa. 224 (59 Atl. 1074); Garrett v. Lawn Mower Co., 39 Pa. Super. Ct. 78. For further authorities upon the subject, see 26 Am. & Eng. Enc. Law (2d Ed.), p. 855, and notes; 10 Cyc. p. 358, and cases cited; Id., p. 579; 3 Clark & Marshall on Private Corporations, p. 1728 et seq.

Of the appellants in this case -it may be said as was said in the case of Clark v. Machine Co., 151 Mich. 416 (115 N. W. 416):

“The stockholders are not in position to complain, for they were all willing parties to the transaction and are therefore estopped to deny its validity” (citing cases).

We are of the opinion that the decree is not open to criticism. By its terms appellants are required only to sell to complainants their proportionate share of the Walker and Rivard stock, but may at their option dispose of it all. If they so elect and complainants decline to take it all, they may keep it all. We can perceive nothing unfair in these terms.

The judgment is therefore affirmed, with costs.

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


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    BALTIC MINING CO. v. HOUGHTON CIRCUIT JUDGE.
    1. Injunction — Mandamus—Restraining Violence — Strikes.
    Before applying for the writ of mandamus to require the circuit court to reinstate an injunction against unlawful acts, dissolved upon motion of defendant members of a miners’ union, who were engaged jin a strike, it was proper practice to apply to the court by motion and by affidavits in support thereof, showing concerted acts of violence and intimidation and praying for a restraining order against the same, where, on dissolution of the interlocutory injunction, the court had expressly reserved the right to issue a restraining order with or without notice.
    2. Same — Equity.
    Upon the refusal of the circuit court to issue a restraining order as prayed, based on the alleged ground that it had no power to do so because the bill was deficient, and exercising no discretion upon the showing made, the question for the Supreme Court in mandamus proceedings was one of law.
    3. Same — Affidavits—Conspiracy.
    The bill for an injunction against strikers to restrain existing and threatened violence, intimidation and conspiracy, supported and accompanied by affidavits, must be taken as true on a motion to dissolve, in the absence of answers or affidavits denying the averred facts.
    4. Same — Demurrer—Strikes—Mines and Mining.
    An injunction bill filed by the owners of several copper mines against the Western Federation of Miners, averring that defendants inaugurated a general strike of its members during the preceding summer, that upward of 4,000 employees of the defendants had refused to participate in the strike and tried to continue their employment but defendants had interfered with them, by force, threats and intimidation, causing them to stop work at the pumps, the mines to partly fill up with water and forcing suspension of work, further setting up the existence of lawlessness, violence, and conspiracy, accompanied by acts of intimidation, and further threatened violent unlawful acts, set forth in detail, and the sending of State troops to restore order, and failure to effect that result, was not demurrable and sustained a preliminary injunction issued upon the showing.
    5. Same — Verification—Affidavit—Equity Practice.
    There was also no ground for the. objection that the bill was not properly verified, where seven affiants swore to the facts of their own knowledge “except as to matters therein stated upon information and belief” and the material, essential averments were stated positively.
    6. Same — Insufficiency-—Bill of Complaint.
    General certainty is all that is required in a bill of complaint; it is not necessary to relate all the details.
    7. Same.
    In order to justify the issuance of a preliminary injunction, the court need not find that the complainant’s rights have been clearly established, or that complainant is entitled to prevail at the hearing; if a substantial question exists, cognizable in equity, and in order to prevent irremediable injury to the complainant it appears to be necessary to prohibit any change in the conditions and relations of the subject-matter or parties, an injunction is warranted.
    8. Same — Conspiracy—Violence—Restraining Unlawful Acts.
    Courts of equity have authority to restrain conspiring labor organizations from molesting by violence, threats and intimidation those engaged in any lawful employment and those who employ them.

      9. Same — Parading.
    Peaceable meetings or parades permitted under an injunction restraining violence and threats do not include parades near the premises of the working miners so timed as to impede or intimidate them in going to or returning from work, or loitering near tbe premises of the mines or bornes of the laborers, intended to intimidate the men.
    Mandamus by the Baltic Mining Company and others against Patrick H. O’Brien, circuit judge for the county of Houghton; to compel respondent to vacate an order dissolving a preliminary injunction.
    Submitted November 18, 1913.
    (Calendar No. 25,905.)
    Writ granted December 10, 1913.

      Rees, Robinson & Pet.ermann (Hanchette & Law-ton and Otto Kirchner, of counsel), for relators.

      A. W. Kerr, Le Genrde & Driscoll, and E. A. Mc-Nally, for respondent.
   Per Curiam.

On October 7, 1913, relators filed in this court their petition for a mandamus to the circuit judge of Houghton county directing him to set aside and vacate an order made September 29, 1913, dissolving a preliminary writ of injunction previously granted by him and issued from his court restraining certain acts of violence and intimidation charged in the bill of complaint; also asking in said petition that pending these proceedings this, court suspend such order of dissolution and continue said injunction in force. On October 8, 1913, an order to show cause why a writ of mandamus should not issue was granted, returnable November 4th ensuing, and the order of the lower court dissolving said injunction was stayed and suspended pendente lite, with the provision that peaceable meeting and parading be not restrained.

The bill of complaint, pursuant to which the temporary injunction in question issued, was filed by relators in Houghton county against the Western Federation of Miners, a voluntary, unincorporated society known as a labor union, its district and local unions, their officers and members. Said bill, after stating the organization and situation of the parties and averring that a general strike was called and inaugurated by defendants in the copper mining district of Lake Superior, on July 23, 1913; that upward of 4,000 miners in complainants’ employ not allied with defendants refused to participate in the strike, and endeavored to continue at work; that defendants by threats and violence interfered with and .drove them from their work, stopped the pumps at the mines, causing the latter to partially fill with water, and thus forcing, suspension of work in many places; that a condition of violence and lawlessness developed in the district where the strike prevailed beyond the power of the civil authorities to control, resulting in the governor of the State sending there the entire military force of the Commonwealth to preserve order, and protect persons and property, but, nevertheless, the acts of violence, disorder, and intimidation of those desirous of work continued — further charges, amongst other things—

“That from the day of the inception of the said strike the said defendants * * * did unlawfully combine and conspire together * * * with the illegal intent and unlawful purpose and by illegal and unlawful means, to prevent the employees of your orators, and of each of them from working at the mines and other operations of your orators, * * * and to force the cessation of all operations of your orators,” * * • * and * * * “the said defendants, members of said federation, at the several mines and premises of your orators and in the vicinity or neighborhood thereof, have assaulted and beaten many of the employees of your orators in cases far too numerous to mention or set forth, and that such assaults and beatings, threats of bodily harm, intimidations, violence, and riotous conduct continue daily to the time of the filing of this bill” * * * and that members of the said federation “have systematically and do now systematically, unlawfully by threats, intimidations, force, violence, assaults, picketing, threatening parades, riotous and threatening gatherings in large numbers, and by other unlawful means, interfere with and molest and disturb, without authority of law, the mechanics and laborers who are employees of your orators in the quiet and peaceable pursuit of their respective lawful avocations, contrary to the statute in such case made and provided;” * * * and “that in such furtherance of said unlawful combination and conspiracy, the said defendants * * * from day to day, with great force and violence, do attack various of the employees of your orators and do throw rocks and stonés and other missiles at them, and do gather in threatening numbers, and with threats of violence and of injury to the persons of said employees and their families, about the dwellings and residences of said employees, and do threaten violence and injury to said employees and their families and destruction of their homes, unless they, the said employees, refrain and desist from working for your orators. And they, the said defendants, members of said federation, with their wives and others conspiring with them, do gather in numbers on and along the highways and other ways by which said employees pass to and from their work, and do threaten and attempt to intimidate the said employees, and in instances too numerous to mention or specifically set forth, have attacked, assaulted, and beaten the employees of your orators and endeavored from day to day to forcibly and by violence and by threats and intimidations to prevent the employees of your orators from going to their work;” * * * “have in large numbers picketed the localities of the homes and residences of the said employees of your orators, and also the highways and other ways by which they pass to and from their work, and in many instances too numerous to mention, have done this with their wives and other women of their families, and have attacked and assaulted the said employees with brooms dipped in filth of the worst description, and have thrown such filth at the said employees, and thereby, and by other means of violence, have from day to day and continuously endeavored forcibly to prevent the said employees from working for your orators; * * * that the said illegal acts and doings of the said defendants still continue from day to day, and that the said defendants threaten and intend to continue the same, whereby your orators aver that they and each of them are from day to day subject to the same and to the great and irreparable damage to their respective properties and business, as well as to the great financial losses resulting therefrom, and that the said defendants are wholly financially irresponsible, and could not in any degree respond' to your orators or either or any of them in damages.”

In conclusión, an injunction to restrain such alleged unlawful acts is asked for in a proper prayer for relief.

The bill is sworn to by seven officers and employees of complainants who depose and say that they are authorized to sign and verify said bill; that they know the contents thereof, and that the same and the several allegations thereof are true of their own knowledge, “except as to matters therein stated on information and belief, and as to such matters they believe them to be true.” In that connection it is to be noted that the charges just quoted from the bill, and others of like import, are stated positively, without qualification, and not upon information and belief.

Defendants, through counsel, entered their appearance in said suit, and were served with a copy of the bill. They filed no answer, but moved the court to dissolve the injunction as improvidently issued because the allegations in complainants’ bill are too general in their nature, not properly verified, and not supported by any showing on which a temporary injunction should or could have been granted. No contrary showing was made. The motion was stated to be “based upon the alleged insufficiency of the bill,” under which it was urged and argued that the court had no power to grant an injunction. The court adopted this view and dissolved the injunction in toto, giving complainants leave to make further application supported by affidavits on not less than 10 days’ notice to defendants, saying in his opinion;

"This court will protect the right of every man who wants to work not to be interfered with by violence, intimidation, or threats; * * * this court will stretch out its arms to protect both sides in those rights.”

During the hearing of the motion, on September 29, 1913, counsel for complainants, on intimation from the court that the injunction previously granted was "too broad and sweeping,” requested the granting of a modified order restraining specified acts of violence and intimidation, certain of which the court stated were "unquestionably not debatable,” and “the courts practically unanimous in preventing” them, but, after discussion, this was refused, the court saying:

“I will deny the restraining order and leave you to whatever course you want to take. I am satisfied from Mr. K — ’s argument that I have no power to issue it.”

After further discussion, being asked to reserve the right to issue a restraining order in case of future developments which might make it seem necessary, the court said:

"Well, I do reserve that right to issue a restraining order, without notice, upon showing made by affidavits, with or without notice.”

On October 4, 1913, relators presented to respondent an application for a restraining order, accompanied by many affidavits disclosing that a situation had developed immediately upon the dissolution of the injunction which clearly made it the duty of the court to stretch out its arm and exercise that right.

The affidavits, 84 in number, are freighted with narratives of rioting, acts of violence, threats, insults, and intimidation of men, women, and children too numerous to attempt to repeat here, fully substantiating and showing continuation of the unlawful conduct by defendants alleged in complainants’ bill. The affiants testify positively from personal experience and observation. The affidavits are not only made by employees of complainants and their families, but by others, officials and private citizens, in many walks of life. They tell of the strikers, members of the defendant federation, and their sympathizers parading with noise and insults and threats, attacking, assaulting, and driving back peaceable workmen going to their employment, * of men irregularly grouped together in bands of from ten to a dozen to mobs of six and seven hundred at various times both day and night, with threatening demonstrations and words, of their lying in wait for and attacking employees of complainants as they went to and from their work, assaulting them with clubs and rocks, snatching from them their dinner pails and trampling them upon the streets, applying to them vile and vulgar epithets, threatening violence not only to themselves, but to their families, to kill, to dynamite, and to blow up their houses. They tell of peaceable citizens of long residence in those communities, with their established homes and families there and whose only offense was an attempt to continue work where and as they had been employed for many years, being assaulted on the highways, mobbed, their clothing torn from them, spit upon, coal ashes and slops thrown on them, bottles and rocks hurled at thém often inflicting serious injuries, even in sight of their wives watching from their homes, of boarding houses and homes of nonunion men being surrounded and stoned, with taunts and insulting threáts, of women and girls struck with missiles and injured on such occasions, of mobbing trains, defying the civil authorities, resisting and assaulting officers, of resort to firearms in which employees of complainants and others were wounded, and other overt acts of lawlessness, disorder, and violence clearly substantiating the allegations in complainants' bill, and fairly indicating concerted action on the part of defendants to promote the strike by an aggressive policy of force and intimidation. Upon such showing the trial court again refused to grant any relief, and this application for a mandamus followed. Touching the last application respondent in his answer says:

“Respondent is unable to ascertain from a reading of the petition for a mandamus, and the order to show cause thereon, what relation the second application of petitioners for a temporary writ, which second application was accompanied by the affidavits in question, has in the consideration of the questions before respondent on the motion to dissolve.”

This application and the showing then made were in connection with the bill of complaint in support of it, and manifestly based on the right retained by the court on dissolving the injunction to later issue a restraining order, with or without notice, upon showing made by affidavits. In view of this and the assertion of the court that he would protect every man who wanted to work, from violence or intimidation, it was proper, and the duty of relators to again apply to that court for relief before appealing elsewhere.

Briefly stated, respondent’s answer is that, though disposed to grant a restraining order, he had no power to do so because of the insufficiency of the bill. Upon that proposition the answer states:

“Respondent was disposed at said time to issue some form of restraining order, but that his final determination was that under the bill as filed, respondent had no power or authority to issue such restraining order, and thereupon respondent signed and caused to be filed the order dissolving the writ of injunction issued in said proceedings; * * *” and alleges that “after a full and fair consideration of the matter at the time of the hearing on the motion to dissolve, respondent then concluded and now is satisfied, that in the form in which said bill is filed, respondent then had no authority to issue a temporary injunction upon such a showing, and that he is now satisfied that his act in issuing or granting said temporary injunction was improvident and was not justified under the rules and practice obtaining in this State relative to the issuance of temporary restraining orders by chancellors.”

The question before us, therefore, is, primarily, one of law. The return shows respondent exercised no discretion as to the injunction, holding, as a matter of law, that he had no power to do so.

The motion to dissolve the injunction being without answer or opposing affidavits, the allegations in the bill are to be taken as true. Schwarz v. Sears, Har. Ch. (Mich.) 440. The facts stated in the bill, showing conspiracy, illegal acts of violence and intimidation, committed and continuing, are to be treated as confessed and admitted, if properly pleaded.

The bill is certainly not demurrable. It states a case with sufficient averments and general allegations of facts which, if sustained by proof on final hearing, would entitle complainants to the relief asked.

The contention that the bill of complaint is not properly verified is untenable. As before stated, it is sworn to positively by seven affiants of their own knowledge, with the usual reservation found in the form of such jurats, “except as to matters therein stated upon information and belief,” and the material allegations in the bill essential to entitle complainants to relief if proven are stated without qualification.

■ The chief charge of insufficiency against the bill is that its averments are too general, more in the nature of conclusions than distinct statements of facts, and state no specific acts of particular individuals, with time, place, and attending circumstances such as good pleading demands. While it is permissible, and sometimes requisite, to set forth the facts and acts relied on fully and with particularity in a bill, as a rule general certainty is sufficient in a pleading in equity. It is not required to relate the details:

“It is not necessary to charge minutely all the circumstances, which may conduce to prove the general charge; for these circumstances are properly matters of evidence, which need not be charged- in order to let them in as proofs.” Story’s Equity Pleadings, section 28.

As a pleading this bill contains a sufficient, though general, statement of the essential ultimate facts involved in the controversy, which, taken as true, confer on the court authority to grant permanent relief by injunction, and if necessity is shown, temporary relief until final hearing. We find here that the court did in the first instance grant this temporary relief by injunction, on September 20th, in apparent exercise of his discretion, and, on September 29th, withdrew such relief by dissolution of the same, because convinced by argument of counsel that he had no discretion in the matter. The effect of this action, under the circumstances disclosed in the record, is a matter of which it is no violence to say there might be some judicial notice and foresight. When the probable results were suggested by counsel, with an application for some kind of restraining order to guard against the same, the court indicated a desire to grant the relief, and apparently only refrained on the ground that he had no power under the bill. When later, on October 4th, further application was made, supported by a large number of affidavits disclosing fully the condition which had developed, as was previously feared, the court again refused for the same reason. We are impelled to hold that the respondent misconstrued the law and his official duty, under the showing made.

When such an application is made for preliminary-protection, the questions to be passed upon and determined from the showing are only the necessary factors in granting or denying a temporary restraining order.

“It is not necessary that the complainant’s rights be clearly established, or that the court find complainant is entitled to prevail on the final hearing. It is sufficient if it appears that there is.a real and substantial question between the parties, to be investigated in a court of equity, and, in order to prevent irremedial injury to the complainant, before his claims can be investigated, it is necessary to prohibit any change in the conditions and relations of the property and of the parties during the litigation.” Goldfield, etc., Mines Co. v. Miners’ Union (C. C.), 159 Fed. 511.

And this is especially true when not only the safety of property but the peace of a community and the choice of action and even the lives of peaceable citizens and their families, when in the pursuit of their lawful avocations, are menaced by disorder, threats, and violence.

The power and duty of courts of equity to restrain, on proper application, conspiring labor organizations and their members, as well as others in the conspiracy, from molesting by violence, threats, and intimidation, or any other unlawful interference with, those engaged in any lawful employment and those employing them, is too well established and too thoroughly reviewed by our own authorities to call for citations from other States or discussion here. Beck v. Protective Union, 118 Mich. 497 (77 N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 421); United States Heater Co. v. Molders’ Union, 129 Mich. 354 (88 N. W. 889); Ideal Manfg. Co. v. Ludwig, 149 Mich. 133 (112 N. W. 723, 119 Am. St. Rep. 656); Id., 149 Mich. 699 (113 N. W. 20); Enterprise Foundry Co. v. Iron Molders’ Union, 149 Mich. 31 (112 N. W. 685, 13 L. R. A. [N. S.] 598); Escanaba Manfg. Co. v. Labor Council, 160 Mich. 656 (125 N. W. 709); Baldwin v. Liquor Dealers’ Ass’n, 165 Mich. 98 (130 N. W. 214); Ideal Manfg. Co. v. Wayne Circuit Judge, 139 Mich. 92 (102 N. W. 372).

In the latter case, as in this, the respondent failed to exercise the discretion which the law required of him under the circumstances, and declined to issue an injunction, through an apparent misconception of the law, and this court directed a mandamus requiring him to issue a restraining order.

We are constrained to hold that the writ prayed for must issue herein, directing respondent to vacate his order, setting aside and dissolving the temporary injunction theretofore granted by him and continue the same as indicated in the order to show cause issued by this court, until final hearing of said injunction suit, or until changed conditions shown to the court render the same no longer necessary. On the oral argument of this application learned counsel for the Quincy Mining Company said:

“The backbone of the strike was about broken when this court modified the former injunction, and the strikers have taken occasion to take a different meaning to it in its present form than, perhaps, the court meant in modifying its terms.”

We find difficulty in reconciling this statement with the conditions existing at the time referred to, as represented to us by the verified emergency application and accompanying affidavits presented by relators. At that time there was no injunction in force from any court, and it was represented that the strike had gathered such strength, developed in magnitude, and sprung into such lawless activity that the property of complainants and the lives of their employees were in imminent jeopardy, demanding immediate action, without time for notice, to save them from irreparable injury. We advert to this only because of the alleged misunderstanding as to our order and the fact that counsel has filed a brief along those lines. This court, as such, is not concerned with strikes or their continuance, as such. Courts do not grant injunctions to restrain strikes lawfully conducted. They are only concerned with them when lawlessness and acts of violence and intimidation develop from them.

To avoid any misapprehension, let it be understood, and, if necessary, further provided, that parades directed to and loitering at and around the premises of complainants or the homes of their employees, and so timed and conducted as to meet and obstruct such employees going to and from their work during morning and evening, changes of shift, and any and all meeting and parading accompanied by acts of violence, threats, insults, or hostile demonstrations towards complainants or their employees either by act or word are in no sense “peaceable meeting and parading,” but directly to the contrary, and all such conduct must be regarded as strictly within that provision of the injunction prohibiting defendants “from impeding, obstructing, molesting, or disturbing the employees of the said complainants or any of them by threats, violence, insults, gatherings, parades, or any form of intimidation whatsoever or by any acts of any kind calculated or intended as or for intimidation of the said employees or any of them.”

Let a writ of mandamus be issued as above indicated.

Stone and Ostrander, JJ., did not sit.


author: McÁliVAY, J. Bird, J. Ostrander, J.

text:
    BUCK v. WESTERN CONCRETE BRIDGE CO.
    Master and Servant — Fellow-Servants — Scaffolds — Duty to Select Suitable Material — Negligence.
    Where defendant’s superintendent and manager in charge of bridge construction ordered one of the workmen to change a scaffold that was used in the work by nailing one end of a supporting plank to an old horizontal timber which was defective and insufficient to support the scaffold, as an inspection would have disclosed, and the workman, in performing the work, concluded it would not be secure and so advised the superintendent, who ordered him to proceed, saying that it was safe, the act of the superintendent was that of the employer in negligently selecting unsuitable material, and plaintiff’s right to recover was not barred by the fellow-servant rule.
    Ostrander, J., dissenting.
    Error to Ingham; Wiest, J.
    Submitted April 11, 1912.
    (Docket No. 65.)
    Decided December 20, 1913.
    Case by John Buck against the Western Concrete Bridge Company for personal injuries. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Reversed.

      Frank L. Dodge, for appellant.

      Kleinhans & Knappen (Cummins & Nichols, of counsel), for appellee.
   McÁliVAY, J.

Plaintiff brought this suit against defendant, an Illinois corporation, for the purpose of recovering damages for personal injuries received by him, charged to have been caused by the negligence of defendant, in whose employ plaintiff was engaged as a common laborer at the time of his injury. There is very little dispute upon the facts in the case, but, as a verdict was directed against plaintiff, we will state as established the case presented by him, which tended to prove the following facts:

Defendant, under contract with the city of Lansing, was at the time of plaintiff’s injury engaged in constructing two bridges within said city. In charge of this work, as representing defendant, was G. M. Chandler, manager, who superintended the construction of both bridges. He hired and discharged all of the workmen and was the only representative of defendant continually present during the construction. He opened an account in a local bank in defendant’s name, in which he made deposits, and from which he drew moneys to pay all expenses for labor, etc., upon defendant’s checks signed by him. Mr. Chandler was authorized by defendant to secure these contracts and was represented by the president of the defendant corporation, who executed the contract for the defendant corporation, as its manager, by signing Mr. Chandler’s name, as such manager, upon the blank, required by the city. Mr. Chandler also executed a modification of such contract, signing the name of defendant, by George M. Chandler, manager. His duties, so far as this record shows, were those of superintendence only. He in no instance performed any work with the men. Mr. Chandler testified that he had general charge of the work of construction of these bridges under written orders of the president of the defendant corporation. There were several men employed on these bridges by Mr. Chandler, including Mr. Dora, foreman. He also testified that he was a civil engineer by education and profession, employed by defendant.

The accident to plaintiff occurred during the construction of the bridge over Sycamore river, on Mt. Hope avenue. This bridge was replacing an old wooden bridge which had been partially taken down during this construction, leaving some piles standing, with a 12x12 inch timber or bridge cap on top of them which extended out from the bank about 12 feet on the north side of the bridge at the east end. On the day of the injury to plaintiff, excavation had already been made along the bank of this stream to receive the concrete of which the abutments were to be constructed, and the concrete had been filled in at the south end. For the purpose of - providing means for getting the concrete from the bank, where it was mixed, and dumping it into the excavation, it was necessary to build from the bank a scaffold upon which it was to be wheeled by the workmen. The scaffold was being erected on the day in question and was completed except the north end. The workman in charge, named Lettimore, discovered that the scaffold at the north end was being built too far away from the bridge to dump the concrete into the trench, and the pieces of timber put up to support the north end of the scaffold were taken down in order to move them nearer the bridge. While this was being done, Mr. Chandler, who was present, standing on this old bridge timber, ordered Lettimore to nail the top crosspiece, which was to support that end of the scaffold planks, to the end of the 12x12 inch bridge cap timber, above described. This workman examined the old timber and told Mr. Chandler that he did not think it safe. Mr. Chandler again ordered him to nail it on there, saying that it was safe. He obeyed Mr. Chandler’s instructions, and with the assistance of another workman nailed the end of the plank which was to support the scaffold to the end of the 12x12 inch timber with several 60d. spikes, and then went to the shed for an iron spike 8 or 10 inches long, which he also drove through the plank into the end of this 12x12 inch to make it doubly secure. He says he changed his construction because of Mr. Chandler’s orders. .The scaffold planks were then put on and plaintiff was ordered to wheel cement onto the scaffold and dump it into the trench. He started with the first load, which is estimated to have weighed 500 pounds, and wheeled it to the north end, when the scaffold gave way where it was nailed to this old timber and let him down, with his wheelbarrow and load to the ground below, a distance of about 15 feet, causing him severe injuries. Plaintiff was not present and took no part in constructing this scaffold. At the argument exhibits were used consisting of photographs and the piece of 12x12 inch timber which was selected by Mr. Chandler. This appeared to be absolutely unfit for the purpose of supporting a scaffold, as was easily discoverable upon the slightest examination.

Both sides introduced testimony in the case, and at its close defendant moved the court to direct a verdict in its behalf “for the reason that the injury, if any, resulting to the plaintiff was because of the fault or negligence of a fellow-servant.” The court accepted this view of the case and granted this motion. The case is before this court on writ of error. The assignments of error involve but one principal question, and that is whether the man Chandler was the vice principal of defendant and acting in that capacity at the time he ordered the scaffold to be nailed to the timber in question. The learned circuit judge held that Chandler was the vice principal of defendant in its employ in and about the construction of these bridges, but that in this matter he was performing a delegable duty, and his negligence in such case was the negligence of a fellow-servant, and therefore plaintiff could not recover.

Under the ruling of the court in deciding the motion for a directed verdict, it will not be necessary to discuss at any length the question as to whether Mr. Chandler was a vice principal. Defendant in the instant case concedes that Mr. Chandler’s relations to it and to plaintiff were such that for some purposes he might in law be regarded as a vice principal, but that in the performance of the particular act he was acting in the capacity of a fellow-servant. This was the exact contention in the case of Shumway v. Manufacturing Co., 98 Mich. 411, 414 (57 N. W. 251, 252). Mr. Justice Montgomery, speaking for the court, said:

“ * * * And the contention is that the question of whether the act was that of the master or a fellow-servant depends for its solution rather upon the nature of the act, than upon the general scope or extent of the superior servant’s authority. The contention, precisely as made, is undoubtedly supported by eminent authority, but we are constrained to hold that the previous holdings of this Court have not so limited the liability of the master. See Slater v. Chapman, 67 Mich. 523 [35 N. W. 106, 11 Am. St. Rep. 593], * * * The decisions of this Court have extended the rule so that it may be said that when the master delegates to a superintendent full power to manage a business, and employ and discharge servants, without interference, such superior servant, in whatever he does in furtherance of the business and operations he has in charge, stands in place of the master, and the negligence of such superior servant is the negligence of the master.”

Counsel for defendant contend that the instant case is controlled by the decision of this court in Schroder v. Railroad Co., 103 Mich. 213 (61 N. W. 663, 29 L. R. A. 321, 50 Am. St. Rep. 354), and similar cases which followed that decision. In our opinion this' case is distinguishable from these cases.

Mr. Chandler, as vice principal, gave this order to change the manner of the construction of the scaffold, and his act in so doing was the act of the defendant corporation. The question to be determined here is not whether this was a delegable duty but whether the order of Mr. Chandler was the act of the defendant. Shumway v. Manufacturing Co., supra. If it may be said that this duty had been delegated, the order of the vice principal revoked such delegation.

It is contended on the part of defendant that no question of proper material not having been furnished is in this case. It is difficult to see how the selection by the vice principal of the bridge cap timber was not a selection and furnishing of material for use in the construction of this scaffold. It was used for the exact purpose for which a workman had a piece of timber at hand ready to use, and by this order that piece was discarded and this timber selected, and, as far as the facts show, it was clearly not fit for the use for which it was intended.

In another respect this case also differs from the cases relied upon by defendant, and that is that Mr. Chandler at no time assisted in the work of construction on these bridges. He was a superintendent and performed only duties belonging to such position. He was more than that; he was held out by the defendant company as it manager.

Other matters discussed do not require determination. The facts presented by plaintiff entitled him to have his case passed upon by a jury. The trial court was in error in directing a verdict for defendant. The judgment of the circuit court is reversed, and a new trial ordered.

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

Bird, J.

(concurring). I agree with Mr. Justice McAlvay that the case should be reversed, but I think the reversal should be placed upon the ground that Superintendent Chandler furnished or used defective and unsuitable material in the erection of the scaffold. As to this act, to wit, of furnishing materials to make a reasonably safe place for plaintiff, he was acting for the master with respect to a nondelegable duty. Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572). In the work of constructing the scaffold, had proper and suitable materials been furnished, his act was that of a fellow-servant. Beesley v. F. W. Wheeler & Co., 108 Mich. 196 (61 N. W. 658, 27 L. R. A. 266). The defendant made no showing that other and more suitable materials were furnished which might have been used for the support of the stringer in place of the decayed 12x12. In the absence of such showing on the part of the defendant, the presumption is that the materials used were the materials furnished, and the failure in this regard was the failure of the master.

Ostrander, J.

(dissenting). In my opinion the testimony does not show that defendant had delegated to Mr. Chandler full power to manage its business, even in the particular locality, and therefore the case does not fall within the rule of Shumway v. Manufacturing Co., 98 Mich. 411 (57 N. W. 251). I cannot distinguish this case and Corey v. Iron Co., 151 Mich. 558 (115 N. W. 737). Justices Hooker and Montgomery, who took part in the earlier decision, also approved the later one; Justice Hooker writing the opinion. See, also, Peters v. Railroad Co., 165 Mich. 217 (130 N. W. 602).

The judgment should be affirmed.


author: McAlvay, J.

text:
    CLARK v. GOLDIE.
    1. Evidence — Master and Servant — Negligence—Admissions.
    Evidence that defendant’s superintendent stated before the coroner’s jury at an inquest that defendant had intended to replace the pulley which burst and killed plaintiff’s intestate, but thought they would let it run awhile, was not admissible as substantive proof of his knowledge that the machinery was defective.
    2. Master and Servant — Negligence ■— Fellow-Servants — Defective Machinery — Death.
    In an action for the wrongful death of defendant’s servant,, testimony that a fellow-servant pried on and strained a pulley, weakening it, was not a proper basis of liability* since it was the act of a fellow-servant not shown to have been brought to defendant’s notice.
    3. Same — Incompetency of Employee — Fellow-Servants.
    And it was not evidence of the incompetency of defendant’s foreman that he had never observed the peculiar sound emitted by a cracked iron pulley, which certain witnesses testified was always recognizable when a defective pulley was running.

    Error to Bay; Collins, J.
    Submitted June 11, 1912.
    (Docket No. 30.)
    Decided December 20, 1913.
    Case by Charles Clark, administrator of the estate of William F. Clark, deceased, against William Goldie and William Goldie, Jr., copartners, for the unlawful killing of deceased. Judgment for plaintiff, and defendants bring error.
    Reversed; new trial denied.

      Cooley & Hewitt, for appellants.

      Hall, De Foe & Henry, for appellee.

       On the question of the master’s constructive knowledge as to capacity of servants as element of liability to injured servant, see note in 41 L. R. A. 46, 53.

   McAlvay, J.

This case is before this court for the review of a judgment obtained by plaintiff against defendants upon the second trial had after its reversal in this court. The case is reported in 146 Mich., at page 303 (109 N. W. 1044). That opinion, to which reference is had, contains a full statement of the facts in the case, which need not be repeated. The case was reversed because the evidence, in the opinion of the court, was not sufficient to show that defendants had knowledge of a defective condition of the pulley and insufficient to show that they were negligent in failing to inspect the pulley in question more frequently than the record shows. Appellants contend that the present record presents no other or different case than that examined and passed upon when the case was first before this court. The record of the testimony upon the former trial was contained in about 100 pages. In the present record there are over 300 pages. The nature of the case presented when first before this court was of a character which required an analysis of all the evidence and the determination whether it was sufficient to show liability on the part of defendants, and in discussing and analyzing such evidence it clearly appears from the opinion wherein the court considered that no liability on account of negligence on the part of defendants had been shown. It is evident from the record now presented to the court that such critical consideration of the evidence in the case then made has since that time been given first consideration by plaintiff. This is frankly acknowledged in his present brief, which states, “The present record meets and overcomes each point and suggestion of the opinion.” And following such statement says that in this record will be found the following evidence:

“(1) That defendants, or their conceded alter ego, Kennedy, the superintendent, prior to the bursting of the pulley, had notice and knowledge that it was defective and should not have been used.
“(2) That the pulley was on the shaft at the time Drake examined it the morning following the accident when he saw the sledge marks on the hub, and had not been removed as inferred by the court in the opinion.
“(3) That the pulley as employed was not only exposed to great strain, but was frequently subjected to undue risk of cracking and checking, both in its rim and spokes, by the practice of employees placing one end of a plank 12 feet long, 6 inches wide, and 1% inches thick under the surface of the rim of the pulley and by means of a fulcrum beneath the plank exerting a force equivalent to three tons upon the pulley to force it up so that it could be made to carry and maintain the under part of the belt in line with the lower of the two corner pulleys around which it passed.
“(4) That inspection of such pulleys is had not alone for the purpose of keeping them in good working order, but as well to keep and maintain them in a condition reasonably fit and safe for use.
“(5) That the pulley was not an idle one placed underneath the belt merely to keep it from sagging and to idle it along, but in fact was a work pulley, exposed to great strain, and in consequence of the manner in which it was forced and maintained in place and the office which it filled, one that called for oversight and inspection, not merely to keep it in good working order but to determine whether the strain of such exposure and manner of use weakened it and rendered it unfit to perform its office.
“The foregoing cover all subjects contained in the former opinion, and they will each be considered in the order most conformable to the brief of defendants.”

Appellants in presenting their contentions discuss first the proposition that the present record does not disclose evidence of defendants’ negligence, and urge that under the undisputed testimony—

“The pulley in question was suitable for the work required and was sound when placed in the sash frame by Drake before the mill commenced operation January 28, 1903, and was in like condition two or three weeks later when placed upon the smaller shaft ,* the iron boxes or bearings at each end of which being bolted to stationary upright posts. It was thoroughly examined and tested on each occasion.”

They also contend that the record shows it was examined by Mr. Drake not long before the accident.

The first claim on the part of plaintiff wherein this record differs from the former is that defendants, or their superintendent, Kennedy, had notice and knowledge prior to the accident that the pulley was defective and not fit for use. The testimony upon which this claim is founded was allowed over the objection of defendants, first, upon cross-examination of Mr. Kennedy relative to a statement made by him after the accident at the time of the coroner’s inquest in presence of some of the jury, which statement he positively denied, and, later, the admission, over like objection, of the testimony of Mr. Morrow, one of the jury, as to what was said by Mr. Kennedy.

The objections of defendants’ counsel to receiving this testimony covered the grounds both as to the question of collateral impeachment and that it could not be used as affirmative proof of his knowledge or the knowledge of defendants. There is a dispute between counsel as to the ground upon which this testimony was received and what position counsel and court on the trial and counsel upon hearing in this court have taken in regard to its use. Counsel for plaintiff contend that it was only received as impeaching testimony. Counsel for defendants urge that both on the trial and in this court it was and is used as affirmative proof of the fact. This was the only testimony admitted in the case which indicates, or from which it is claimed, Superintendent Kennedy had any knowledge before the accident that this pulley was defective. The contention of defendants’ counsel upon this proposition is entirely supported by the record and plaintiffs brief. In the brief, in plaintiff’s amended statement of facts, appears the following:

“On the present trial there was evidence that the superintendent, one Kennedy, had notice or knowledge of the defective condition prior to the injury.”

Later in the brief, in the argument supporting plaintiff’s contention, appears the following:

“(5) There was evidence that Superintendent Kennedy had notice and knowledge prior to the accident that the pulley was not a suitable one for use.”

The trial court in his charge to the jury said:

“ * * * And if you find that defendants were negligent in that regard and did in fact employ a pulley which was so defective, and they, or their superintendent, Mr. Kennedy, knew of such defect, or it had been continued such a length of time before said injuries that in the ordinary oversight and supervision of the mill they should have discovered it. * * # 99

And again later in the charge, as follows:

“The defendants are charged with all knowledge that their superintendent, Kennedy, intrusted with the duty of oversight and supervision had, if any, of the condition of the pulley which exploded, prior to the time thereof.”

This charge was given after the following request to charge had been presented on behalf of defendants and denied:

“I charge you that the testimony of witness Morrow regarding certain statements made by Mr. Kennedy, subsequent to the accident, concerning Mr. Kennedy’s knowledge of the prior condition of the pulley, are struck from the record, and you are not to consider said statements in reaching your verdict.”

Errors are assigned on the part of defendants upon the admission of the testimony of the statements of Mr. Kennedy after the accident, and upon the portions of the charge quoted.

The weight of the authorities is against the proposition that testimony of the character of that we are discussing can be received as substantive evidence. This is admitted by counsel for plaintiff in their brief, where it is also contended, notwithstanding the evidence of the record to the contrary, as already pointed out from the brief and the charge of the court, that this testimony was offered and received for the sole purpose of impeachment. As already stated, it was received by the court and allowed to be considered by the jury as substantive evidence of the knowledge of Superintendent Kennedy. In a case cited by plaintiff, this court, where the question was considered at length, in stating that such testimony is allowable, "being in the nature of collateral impeachment,” said:

"It could not be used for any other purpose, and was no evidence of the negligence of the defendant.” Lepard v. Railroad Co., 166 Mich. 873, at page 382 (130 N. W. 668, 40 L. R. A. 1105).

The court erred in allowing this testimony to be considered by the jury as substantive evidence of the knowledge of Kennedy.

The next contention óf plaintiff is that the hub of the pulley was on the shaft at the time witness Drake examined it when he saw the hammer marks on it. In the former record, witness Drake, the millwright who installed the machinery in this mill, including this pulley, testified that after the accident he went to examine it to ascertain why it flew to pieces; that it had been taken off from the shaft upon which it was when he installed it; and that there were fresh hammer marks on the hub. The court inferred from his testimony that the hub was not on the shaft when he examined it. As a witness in the present record, he states that his impression is that the hub was on the shaft. This record shows that after Drake left defendants’ employment, some time in January, 1903, this pulley and shaft was taken out of the movable sash or frame in which he installed it. The pulley was then taken off from the old shaft and put on to another shaft somewhat smaller, upon which it was babbited fast and then was hung between two solid posts at the proper height with five-inch boxes at each end of the shaft countersunk into the posts, where it remained until March 6th following, the date of the ■accident. The only evidence as to the removal of this pulley from the old shaft is given by one of the men who assisted, who testified that it came off easily without hammering. The evidence is clear that it went onto the new shaft readily, because it was smaller, and there is no evidence in the case tending to show that before the accident there were any hammer marks upon this hub. Therefore it follows that, as far as the hammer marks are concerned, the present record shows affirmatively that none were upon the hub before the accident.

Defendants upon this question requested the court to charge as follows:

“There is no competent testimony in this case which tends to prove that the so-called sledge or hammer ■ marks on the hub of the pulley were made before the accident, and I charge you not to consider such marks as a cause of the bursting of the pulley.”

The court was in error in refusing to give this request.

The plaintiff further contends that the present record differs from the former in showing that the pulley was exposed to great strain and subjected to undue risk of cracking by the employees putting under its rim a heavy 12-foot plank and by means of a fulcrum under the lower end putting a strain of three tons under it to force it up to carry the belt and maintain the under part of it in line with the lower one of the corner pulleys around which it passed; that this was not an idler pulley; but that it was a tightener. The record is undisputed that this pulley was installed but for one purpose, and that was to keep the belt which ran over it upon a line with the lower corner pulley. It was formerly set in a frame which would work up and down. Later, it was changed and put upon a rigid shaft set in countersunk boxes on upright posts, where it continued until the accident. A witness testified on the last trial that on several occasions, the last time the night before the accident, he, with two other employees, strained this pulley up higher with the heavy plank under its rim.

It is apparent to one at all acquainted with mills and machinery of this character, and from the evidence as to how this pulley and its shaft were affixed to the posts at the time of the accident, that this witness was testifying to a physical impossibility. However, taking this testimony as true, whatever was done was the act of a fellow-servant in no way brought to the knowledge of the defendants and for whose negligence they would not be liable. It was one of the risks assumed by the plaintiff’s decedent.

This pulley was called by some of the witnesses a “tightener.” It carried the belt for the purpose of keeping it running on the corner pulley. This belt simply ran over the pulley in question, and whatever strain there was upon it came from this belt. It was a rubber belt which drove two saws, and which on account of stretching was occasionally cut and laced to take out the slack. The record does not show that this pulley was carrying what is known as a “load.” There is a great deal of testimony introduced in the case which is claimed on the part of plaintiff to bear upon the question of the strain upon this pulley which, when carefully considered, refers to the load upon the drive pulley which operated the saws and the kind and weight of belts best adapted for such purposes, tending to show that a belt similar in width to the one in question (the thickness and character of which was not identified) would slip in attempting to do such work; in other words, that this belt was overtaxed.

The negligence charged in the declaration is that defendants negligently used and operated a cracked and defective pulley without due and proper inspection by competent and skilled employees to see that it was reasonably safe and proper for use for the purpose for which it was designed, and there is no allegation of negligence that the accident was caused by an overtaxed belt. The evidence relative to overtaxing this belt tends to show that the 'heavier it was loaded the more slack it would give, and consequently less pressure upon the pulley in question.

It is urged that this record shows that the foreman in the shop was incompetent for the reason that he had never observed the peculiar noise given out by a cracked iron pulley, which several witnesses testified was always recognizable when such a defective pulley was running. This man had never heard such a noise, which seems to be the foundation of the argument upon which his incompetency is claimed. All of the witnesses on both sides, including the foreman, who testified upon this subject and who were employed in this mill at the time and before the accident, say that they never heard it give forth the sound which comes from a defective and cracked pulley, even up to the time of the accident, and all of them, except the foreman, say that that is one of the best methods of detecting such defects in a pulley, all of which tends to show that defendants had no notice of the defective condition of this pulley, if such existed, before its collapse, and does not tend to show the incompetency of the foreman, but by a fair inference that he had never been employed in a mill where cracked pulleys were operated.

Careful examination has been given to this entire record, particularly wherein it is claimed to differ from the former one, and while it is three times as bulky as when the case was formerly considered, we do not find in it more frequent inspections are customarily made by ordinarily prudent employers and we agree with the appellants that, upon the questions which are determinative of the case, this record presents no other or different case for consideration than when formerly considered, except as herein otherwise expressed upon the admission of evidence and the charge of the court. The former decision is therefore followed. Hall v. Murdock, 119 Mich. 389 (78 N. W. 329).

The judgment of the circuit court is reversed, and in view of the fact that there have already been three trials, and there is no probability that any other or different case can be presented, we are constrained to hold that no new trial will be granted.

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


author: Bird, J.

text:
    B. MARX & SON v. KING.
    1. Contracts — Evidence—Sales.
    Evidence, in an action for the purchase price of goods, considered and held, to present a question for the jury whether plaintiffs ratified the contract for discounts made by their agent and salesman as claimed by defendant.
    2. Trial — Opening Statement — Conduct op Counsel.
    That the attorney for defendant referred in his opening statement to incompetent evidence was not ground for reversal where the court excluded certain claims made by counsel and cautioned the jury to disregard anything that the evidence to be received did not sustain.
    3. Same — Evidence—Cross-Examination.
    Although affirmative proof of dealings of similar character to those in dispute was inadmissible under a previous ruling of this court in the cause, defendant was not precluded from questioning one of the plaintiffs, on cross-examination, concerning the discounts that he allowed other purchasers.
    4. Same — Conspiracy—Good Faith — Cross-Examination.-
    And upon his cross-examination, the court properly allowed an inquiry whether the plaintiffs had ever called upon the surety company, which indemnified them against loss through wrongful acts of their servants who were claimed to have conspired together to allow unauthorized discounts, to reimburse them for the losses by such claimed fraud; the inquiry had a bearing upon plaintiffs’ good faith.
    5. Same — Witnesses.
    Nor was it error to permit defendant’s counsel to interrogate the witness with reference to their insolvency and good faith in transferring their assets to a corporation bearing the name of the insolvent partnership.
    6. Same — Argument—Appeal and Error.
    Comments made by defendant’s attorney which the court held to be improper and’duly corrected, were not ground for reversal: and as to matters not brought to the attention of the trial judge by request for a ruling, they are not subject to review on error.
    Error to Washtenaw; Kinne, J.
    Submitted October 9, 1912.
    (Docket No. 13.)
    Decided December 20, 1913.
    Assumpsit by Jacob L. Marx and Eugene H. Kopple, copartners, as B. Marx & Son, against Johanna King, executrix of the estate of Joseph King, deceased, for goods sold to decedent. Judgment for defendant. Plaintiffs bring error.
    Affirmed.

      Bernard B. Selling, for appellant.

      John P. Kirk (M. J. Cavanaugh, of counsel), for appellee.
   Bird, J.

This is a controversy between plaintiffs, who were wholesalers of leather good and furnishings in the city of Detroit, and one of their customers who carried on business in Ypsilanti. They dealt with each other for several years without serious disagreement, until the present controversy arose over the allowance of certain discounts which defendant King claimed he was entitled to under an agreement with their agent Berger, and which was subsequently ratified by Mr. Marx, one of the plaintiffs. In July, 1906, the defendant expanded his business by jobbing some goods in connection with his retail business. This change increased the size of his orders, and in consequence thereof he demanded a larger discount from Berger, the agent who sold him the goods. It is claimed Berger conceded the discounts. The invoices, however, did not show them as agreed upon, and defendant, by one of his clerks, called plaintiff Marx on the phone and made the inquiry why the discounts did not show upon the invoices. Marx replied that King and Berger had an understanding and directed him to settle with Berger, and it would be all right. Plaintiff Marx denies this conversation, and denies that Berger had authority to allow the discounts claimed, and denies that he ever ratified any arrangement made with Berger for discounts. If defendant was right in his contention, he is entitled to the verdict which was rendered. On the other hand, if the plaintiff Marx’s version of the matter is true, that he never authorized the discounts and never ratified any agreements of Berger allowing them, the plaintiffs are entitled to. recover a considerably larger sum. This question was the “storm center” around which gathered most of the testimony in the case. On a former trial, a jury found with the defendant. For errors in the admission of testimony the judgment was reversed by this court. 162 Mich. 258 (127 N. W. 341). The case has been retried with a like result, and plaintiffs again complain of errors in the trial court.

1. Plaintiffs made >a motion for a new trial, alleging, among other things, that the verdict was against the weight of the evidence. This motion was denied, and the denial of it is made the basis for an assignment of error. In the former opinion of this court, the same question was raised, and the testimony was held to present a question for the jury. It is pointed out, however, by counsel, that the plaintiffs’ case was very much strengthened on the second trial by additional testimony, and this testimony is referred to in detail. The most that can be said for the additional testimony is that it lent credence to plaintiffs’ contention that Marx had no such conversation over the phone as claimed by defendant, and at the same time made defendant’s claim less tenable. But we are of the opinion that the additions to the testimony did not so change the situation as to remove the question from the domain of fact. It was still a question for the jury, as there was conflicting testimony which, if believed, would justify the verdict. It follows from this conclusion that the court was not in error in refusing to direct a verdict for the plaintiffs, as requested.

2. Complaint is made that, in opening defendant’s case to the jury, his counsel transgressed the holding of this court in its former opinion. On the first trial, in an attempt to establish authority of the agent Berger to allow the discounts claimed by defendant, proof of similar dealings with other customers was offered and received in evidence. This court held the admission of such evidence reversible error for the reason that the dealings with other customers were unknown to defendant at the time of his dealings with plaintiffs. Defendant’s counsel, in his opening statement, made reference to some of this testimony, which was evidently inadmissible under the ruling of the court. The trial court excluded many of the statements made and cautioned the jury as follows:

“I am not disposed to abridge the opening of counsel. I only say to the jury now that the object of an opening is to advise you of the general nature of the case, and when you come to determine your verdict you will be controlled by the evidence, which may not bear out the statements of counsel; if it does not, it will be your duty to disregard the opening of counsel as far as it fails to be supported by the evidence.”

We are of the opinion that this instruction to the jury neutralized any prejudicial effect the improper statements may have had on plaintiffs’ case. In determining these matters we cannot assume that a jury of average intelligence accepted the improper statements of counsel rather than the positive instructions of the court.

8. Several objections are made to the cross-examination of plaintiff Marx. He was interrogated as to his allowing discounts to other creditors similar to those claimed by defendant. It is urged that this line of interrogation was within the prohibited ruling of this court. We think not. The ruling of this court was directed to the affirmative proof of such dealings by third parties. It does not follow from this ruling that defendant would be precluded from questioning the plaintiff himself about such dealings, as it might have an important bearing upon his credibility.

3a. Upon cross-examination the witness Marx was also directed by the court to make answer to an inquiry as to whether he had ever called upon the surety company to make good the money his firm had lost through the peculations of Berger and French. The testimony showed that the firm had lost a considerable amount of money as the result of a. conspiracy between the bookkeeper, French, and the traveling man, Berger, and that French was a bonded employee. The declaration in the case charged the defendant, King, with being in a conspiracy with French and Berger to defraud the plaintiffs by the allowance of unauthorized discounts. In view of the charge of conspiracy, the inquiry was a proper one. In answer to the inquiry, the witness admitted that no demand had been made on the surety company. This developed a situation which, unless fairly explained, would have a material bearing upon the good faith and credibility of the plaintiff in making the charge of conspiracy in this suit.

35. It appeared that since the first trial the copartnership of Marx & Son had been declared a bankrupt, and a composition had been made with their creditors, and that the assets of the firm had been transferred to a corporation bearing the same name. It further appeared that the same parties were in control of the corporation and that the corporation was the real plaintiff in the case. The witness Marx was cross-examined as to these matters, and his good faith questioned over counsel’s objection. It was clearly within the discretion of the trial court to allow the witness to be interrogated in relation to these matters, as they bore more or less upon his credibility.

4. Error is assigned on the improper argument of counsel to the jury. Upon the cross-examination of plaintiff Marx, his attention was directed to a paper for the purpose of refreshing his recollection. It failed of its purpose and was not offered in evidence. Upon the argument, defendant’s counsel began to comment on the fact that Marx did not recollect a certain fact after having his recollection refreshed by the paper. Objection was made to this line of argument, and the trial judge promptly stated that comment ought not to be made concerning a paper that was not offered in evidence. Following this ruling, defendant’s counsel endeavored to show the court that it was a proper argument; but the court again announced that it was improper argument and ordered counsel to pass it. We see nothing in the incident which should have seriously affected plaintiff’s case. Whatever harm may have resulted from the improper argument was cured by the ruling of the court.

4a. Further exception is taken to the argument of Mr. Cavanaugh, in commenting upon the veracity of the witness Nebel. An exception was taken to the argument, but no ruling appears to have been requested of or made by the trial court. Under the rule, this assignment is not in a position to be reviewed. Crane v. Ross, 168 Mich. 623 (135 N. W. 83).

Many exceptions are taken to the charge of the court. The charge of the court on the second trial was substantially the same as on the first trial, save the modifications made necessary by the holding of this court. We have examined the charge in connection with the assignments and find no reversible error in it.

The judgment of the trial court is affirmed.

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