text:
    GUEST v. EDISON ILLUMINATING CO.
    Master and Servant — Personal Injuries — Safe Place to Work — Electric Fixtures — Fellow-Servants — Foreman — Agreement Creating Liability.
    After complaint by plaintiff that defendant’s electric fixtures upon which plaintiff was working were unsafe, defendant’s foreman put in a switch box in accordance with plaintiff’s instructions and agreed with plaintiff that he would see that during the time plaintiff was at work upon the fixtures the switch was kept open. While plaintiff was at work and in the absence of the foreman the switch was closed by some person unknown and injury to plaintiff followed. Held, that the foreman had no authority to bind the defendant by his agreement to keep the switch open, and that his failure to keep it open was the negligence of a fellow-servant for which defendant was not liable.
    Error to Wayne; Murphy, J.
    Submitted November 13, 1907.
    (Docket No. 126.)
    Decided December 10, 1907..
    Case by Jarvis Guest against the Edison Illuminating Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Samuel W. Burroughs, for appellant.

      Keena, Lightner & Oxtohy, for appellee.
   Blair, J.

Plaintiff brought this action to recover damages for injuries received through the negligent closing of an electric switch, whereby a current of electricity was conducted into certain wires upon which plaintiff was working, within the line of his duty. The defendant, the Edison Illuminating Company, was constructing and had nearly completed a plant at Delray, in Wayne. county. The general manager of the company was Alexander Dow. Immediately under Mr. Dow, and having supervision of the operation of the plant at Delray, was George W. Cato. Under Mr. Gato was Hiram Ford, who was superintendent of interior construction. Frank Davis, foreman of defendant, and the other electricians and wiremen worked under the general direction of Mr. Ford. Plaintiff testified:

“ I was injured there September 26, 1904. I was working at that time under Mr. Davis. His position was foreman of the electricians of the plant which I have been ' speaking about.”

At the time of his injury, plaintiff was doing certain work on top of the boilers, putting in conduits, wires, sockets and lamps for lighting above certain boilers in the boiler room, some 21 feet above the floor, for the purpose of lighting the water gauges. On the day before his injury, plaintiff had complained to the foreman that the plant was in a dangerous condition, and, to obviate the danger complained of, a switch box was put in in accordance with plaintiff’s instructions. Plaintiff testified:

“It was my duty to inspect that box before going to work. . I did inspect it. That was in accordance with the rules of electricians. In connection with the inspection I found the box to be perfectly safe. * * *
“ Mr. Davis told me if I would go up to work there he would see that that swich box was kept open all the time I was up there. He would see. He would be in a position to do it. I relied upon my inspection first and Mr. Davis’ agreement with me, what he said. When I had' this conversation with him he was at the switch box in this plant where it was situated. In the presence of Mr. Davis, for the purpose of making it safe, I threw the switch open. I turned it down. I opened it. I nailed the lid on the box, in that shape (illustrating). My purpose of nailing the lid on the box was so that no person would put their hand in there and throw the lever up. I put a written notice on that box for no person to throw the switch in or some words to that effect. That notice consisted of an official card of the company. That was in the line of my duty to do that. * * * He said he he would see the switch was kept open every moment I was up there. * * *
While working on one of the sockets, “the electricity came on me and held me there. I could not get off and it grounded me there. My weight carried me off to the floor below. * * * I fell from there to the floor. * * * I account for that — some person threw in the switch. * * * After I fell I saw Mr. Davis, the foreman, about two or three minutes after. * * * He says, ' I forgot that you were up there.’ * * * This man Davis was the foreman of that company. He had charge of all the electricians. It was under him that I was working. * * *
“Q. What was the duty of this foreman under the rules of the company, if you know, with reference to seeing after it that the electricians were safely guarded while you are at work ?
“A. To take due care of all the men that were in the plant engaged in electric work, meaning by that to see that the machinery was so protected that electricity could not pass to the electrician who was at work.
<lQ. When you went above just after you had made the inspection and closed the switch box and had had the talk with Mr. Davis, was that switch box perfectly safe?
“A. It was, it was open. If the switch had been kept open under the observation and guardianship of Mr. Davis, this injury could not have occurred to me as a result of my fall. * * * Davis was subject to Mr. Cato’s orders, I think. Mr. Ford was down there over all the plant. * * ’ *
“Q. Mr. Ford — if you know about this, answer it— had charge of the construction work for the Edison Illuminating Company ?
“A. I think he had some charge. I know he did the hiring out there and put me under Mr. Davis. I went to Mr. Cato and he told me to go to Mr. Ford and Mr. Ford hired me and put me in charge of Mr. Davis. Mr. Ford is one of the officials of the company. I think Mr. Ford’s work was to attend to the construction work in this company. He had charge over all but he was not there at all times. When he was not there, it was Mr. Davis had to see to it. * * * I could not tell how many other men than myself and the helper were at work under Davis’ direction there. There might have been more than 10 or 15, I don’t know how many men. I was working :alone in that business. * * * During this time I was •at work there Mr. Davis and his men, including my helper, were at work at other parts of the building. I was the only-one in the electrical department at work in this boiler room. * * * When I came down at noon I guess Mr. Davis had gone to dinner.
“Q. When you came back where was Mr. Davis ?
“A. He was not there but I inspected the switch. Mr. O’Hara was there and I went and looked at the switch. * * * The switch was all right then. It had the cover on it. It was nailed on. There was a notice across the front. It said no person should throw in the switch, or words to that effect. I wrote that myself and put it on, on the card. * * * It was the rule of the company that any man who was at work on any line which needed protection should put up a notice. The purpose of that was to prevent anybody from going and turning on the switch and hurting the men. I knew those rules. In pursuance of that rule, I put the notice on under Mr. Davis’ agreement when I went to work. * * * And unless somebody had violated that notice and turned on the ;switch, I would not have been hurt. * * *
“Q. But do you know who it was turned on that ^switch ?
“A. I don’t, because I was out of sight of the switch "box when it was turned on. * * * When Mr. Ford hired me and put me to work it was some time in July. This was preceding the September that I was hurt. Mr. Ford instructed me to go to work under Mr. Davis. I worked from about 9 to 2:30.”

Mr. Davis testified:

“I worked under the direction of Mr. Ford. His general authority or business was that he superintended the general construction of the work. Mr. Cato was supertendent of all the departments. I do not know who turned that switch.”

He also testified:

“I was watching the general work of the plant, overseeing it, and that was my duty to do that as foreman over these wire workers and electricians and that is what I was doing on that day.”

After the close of the testimony the court, upon motion of defendant’s counsel, directed a Verdict for defendant upon the ground that the foreman Davis was a fellow-servant of the plaintiff and the defendant company was not responsible for his negligence nor bound by his agreement to watch the switch box and see that the switch was not closed. Plaintiff brings the record to this court by writ of error upon various assignments of error, the principal of which, and the only one which we think it necessary to consider, is that the court erred in holding that Davis was a fellow-servant of plaintiff, plaintiff contending that he was a vice-principal.

Unless the foreman’s failure to perform his agreement to watch the switch box and see that it was not interfered with was a failure to discharge a duty which the corporation owed to plaintiff, no negligence was proved on its part. On the contrary, the plaintiff’s evidence conclusively demonstrates that, except for the alleged new duty arising from the agreement, the defendant discharged its full duty to plaintiff. Independent of the agreement, there was certainly no rule of law which made the defendant an insurer of the plaintiff’s safety. If the agreement acquired binding force against the defendant, it was not because authority had been impliedly delegated to the foreman to make it, in discharge of an absolute duty of the defendant, but because his position as foreman authorized him to bind the defendant to the performance of an absolute duty which theretofore had not existed and which was in derogation of its rules. Whether any officer of a corporation, however high his grade, would be acting within the scope of his authority in making such an agreement for the corporation, it is unnecessary to determine. We are satisfied .that the foreman Davis possessed no such authority, and that in making the agreement he did not represent the defendant.

The defendant was not liable for the negligence of the foreman, and the court did not err in directing a verdict. Wellihan v. Wheel Co., 128 Mich. 1; Mikolojczak v. Chemical Co., 129 Mich. 80; Page v. Food Co., 142 Mich. 17.

The judgment is affirmed.

McAlvay, C. J., and Carpenter, Grant, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Bbair, J.

license: Public Domain

text:
    PEOPLE v. EVANS.
    1. Burglary — Prosecution—Trial—Instructions—Sufficiency of Evidence.
    Where, in a prosecution for burglary, the, evidence is undisputed that doors were unfastened and opened, the only contest being whether the acts were done under a claim of right, there is no error in charging that, under the evidence, there was a breaking by some one, where, from the remainder of the charge, it is apparent that all the court meant to have the jury understand was that the opening of doors constituted an actual breaking.
    2. Same — Intent—Breaking Under Claim of Right.
    One who has charge of buildings and personal property on a farm in the absence of the owner and the right to enter the buildings does not commit burglary in entering them, nor does one who assists him in removing property commit either burglary or larceny in so doing under a reasonable bona fide belief of such right. .
    3. Criminal Law — Evidence—Contents of Letter — Admissibility.
    There is 'no error in refusing to permit witnesses, who have turned State’s evidence, to state the contents of a letter written by one of them to the prosecuting witness while in jailf there being nothing to indicate that the letter had any reference to the offense on trial, and it being counsel’s duty to develop its relevancy by preliminary questions if he desires to use it as impeaching evidence.
    4. Burglary — Intent—Breaking Under Claim of Right.
    Where the evidence is in conflict whether the person whom respondent assisted to carry away corn and chickens from a farm was the agent of the owner and had authority to enter the premises, whence the offense of burglary could not be committed, the question was one for the jury, and the court did not err in refusing an instruction for acquittal on that ground.
    Error to Berrien; Coolidge, J.
    Submitted November 15, 1907.
    (Docket No. 173.)
    Decided December 10, 1907.
    Charles Evans was convicted of burglary and sentenced to imprisonment for not less than three nor more than five years in the State prison at Jackson.
    Affirmed.

      John J. Sterling, for appellant.

      Charles E. White, Prosecuting Attorney, for the people.
   Bbair, J.

Respondent was charged with and convicted of the offense of burglary. The alleged crime was committed on the night of December 31, 1906, by breaking and entering a corncrib and chicken house upon the farm of one Morris Scofield, who was the complaining witness. The door of the corncrib was fastened with a strap hasp and staple. The door on the chicken coop was fastened by a stick braced against it on the outside. In accordance with his custom, Mr. Scofield was not living in his dwelling house on the farm at the time in question, but was living in the city of Benton Harbor, where he resided during the winter months. He went to the farm nearly every day to feed the stock and take care of it, but Mred one Groves to feed- and take care of the stock on Christmas Day, 1906, and New Years Day, 1907. Groves and his wife lived in a tenant house upon this.same farm, some 20 or 25 rods from Scofield’s dwelling house, and had worked for Scofield by the day during the fall of 1906, but quit working for him regularly when he moved into town, about November 25th.

“After that he helped me a day or two or three, hauling in corn fodder. After he quit working he did not work for me at all except occasionally he did my chores, I think, once or twice. On New Years Day and Christmas I did not go to the farm and Groves did my chores on those two days. I hired him to do it. * * * I authorized Groves to feed the chickens and horses and cows on the farm on New Years and also Christmas but I never told him to feed them any other time, only on these two days. Groves paid no rent for the tenement house and I paid Groves money for doing the chores on Christmas and New Years. I went out to the farm every day except New Years and Christmas.”

Groves pleaded guilty to the offense of burglary and testified in behalf of the people. Among other things he testified:

“ I was in Scofield’s employ at the time. After the fall work was done he wanted me to do chores for him and I did so. I would take care of his stock. * * * I was authorized by Mr. Scofield to supervise things in general when he was not there. I looked after the stock, horses and chickens. At that time I was his hired man and lived in the tenant house.”

On the night of December Blst, respondent went to the house of Groves with a team and wagon, and he, Groves, and two other men went to the corncrib; some one of the four unfastened and opened the door, and a quantity of corn was taken and afterwards carried to Benton Harbor and disposed of. The next day respondent returned to the place and certain chickens were taken from the chicken coop.

Respondent was sworn and testified in his own behalf that he had nothing to do with the actual taking of the corn and chickens other than transporting them in his wagon and that what he did was at the request of Groves, believing in good faith that Groves had a lawful right to take and dispose of the property 3 that the corn was sold by Groves, who took the money and gave respondent $2 for the use of his team and services; that the chickens were sold by respondent for $4.88, which money he gave to Groves. He also testified that Groves told him that he had charge of the premises and was Scofield’s hired man.

In the course of the cross-examination of Groves the following occurred:

“ I have talked with Scofield since I have been in jail about this matter. I wrote him a letter.
“Mr. Sterling: We serve notice to produce^ that letter. That was the first I knew of it. We want that letter.
“Mr. White: You won’t get it.
“ Gilbert Mitchell did the writing; I dictated it to him. I had seen Mr. Scofield before I wrote that letter. Mr. Scofield came afterward and saw me on Sunday.
“ Q. What was in that letter ?
“Mr. White: We object to that; no showing it is relevant and material.
“Mr. Sterling: It is relevant and material because it shows possibly why this man turned State’s evidence to get out of the crime himself. The letter was written about the 9th or 10th of March.
The Court: Objection sustained; to which ruling of the court respondent, by his counsel, excepted.”

The assignments of error argued in the brief of respondent’s counsel are:

That the court erred in charging that “under the evidence in this case, there was a breaking, that is, by some one, some of the four parties who are named.”

It is contended that—

“Since breaking is the essential element of the offense, it must be left with the jury to say from the evidence whether the people have proven this essential element beyond all reasonable doubt and to a moral certainty. It is a question of fact for the jury; not a question of law for the court.”

The entire paragraph, in which the expression complained of is, is as follows:

“ The word ‘ breaking,’ too, has a technical meaning in the law. It does not necessarily mean to break a lock. Unfastening anything which has been fastened will constitute a breaking under the law. Where' anything is shown to be shut up, no matter how, or fastened, if it is opened by another person or unfastened, that constitutes a breaking within the meaning of the law, and so, under1 the evidence in this case, there was a breaking, that is, by some one, some of the four parties who are named.”

While it is true that the breaking which constitutes an essential element of the offense of burglary must have been with a felonious intent, we think the jury must be presumed to have understood from this paragraph of the charge, taken in connection with the remainder of the charge, that all that the court meant to have them understand as having been proved in the case was that the opening of the doors, which was undisputed, was sufficient to constitute an actual breaking, and, so understood, the charge is not subject to criticism.

The contentions of the respondent were fairly submitted to the jury, and they were instructed that if Mr. Groves had the oversight and charge of the premises, and had a right to enter the corncrib and chicken coop, there was no burglary committed in the case, and, further, if they should find that respondent had good reason to believe that Groves had charge of the property, and could dispose of it as he pleased, in that event respondent would not be guilty of burglary nor larceny either.

That the court erred in refusing to permit respondent’s counsel to have an answer to his question as to the contents of the letter written by Mitchell, one of the four who took the property, and dictated to him by Groves, and also in refusing to permit an answer to practically the same question put to Mitchell when also on the witness stand as a witness for the people.. At the time this question was asked, there was nothing to indicate to the court that the letter in question had any reference whatever to the alleged offense for which respondent was on trial, and the ruling was therefore correct. If respondent’s counsel desired to introduce this letter as an impeachment of the witness Groves, he should have developed its relevancy by preliminary questions.

The court erred in not instructing the jury that “Groves was the agent of Scofield, having authority to enter the premises, and therefore the offense of burglary could not be committed.” It is true that the testimony of Groves fully supports this contention, but the testimony of Scofield presented an issue of fact as to the right of Groves to enter the chicken coop and corncrib on the night in question, which was properly submitted to the jury.

The judgment is affirmed.

McAlvay, C. J., and Carpenter, Grant, and Moore, JJ., concurred.


author: Grant, J.

text:
    PEOPLE v. WYCOFF.
    1. Burglary — Character or Premises — Shop—Factory—Workshop.
    A manufactory which the witnesses speak of as a “ shop” may he alleged to he a shop in an information under section 11547, 3 Comp. Laws, defining burglary of any office, shop, etc., irrespective of whether it is technically a shop or a factory, and it is not error to instruct the jury that that question is of no interest to them.

      2. Same — Evidence—Admissibility—Corrective Ruling.
    Error of the court in refusing to permit a witness to state that when he took the property he had no intention to deprive the owner of it is immaterial where he immediately reversed the ruling, allowed the answer, and followed it with an instruction correctly stating the intent essential to the crime.
    3. Criminal Law — Prinoipals and Accessories — Abolition or Distinction.
    Section 11930, 3 Comp. Laws, abrogated the distinctions between principals and accessories, and between principals in the first and second degrees, and he who aids and abets is now a principal and punishable as such.
    Error to Calhoun; North, J.
    Submitted November la, 1907.
    (Docket No. 172.)
    Decided December 10, 1907.
    Burton Wycoff was convicted of burglary and sentenced to imprisonment for not less than 7$ nor more than 15 years in the State prison at Jackson.
    Affirmed.

      E. J. Dennison, for appellant.

      Louis E. Stewart, Prosecuting Attorney, for the people.
    Defendant was convicted of the crime of burglary from the shop of the Lambert Food & Machine Company, a corporation, in the city of Marshall. The evidence on the part of the people was that one Quinn, a machinist in the employ of that company, and defendant, met at the time fixed in the information in a saloon in the night-time and agreed to go to the shop of the company, break into it, and get some tools; that they both went to the shop; that Quinn reached in through a broken pane of glass, unfastened the window, raised it, went in through it, and got a lot of tools called taps and drills while the defendant waited on the outside; that the two went together into the city, there separated; Quinn took the tools to the second-hand store of one Parker, sold them, joined defendant in the saloon, and there the two spent the money for liquor; that on the following day defendant went to a hardware store and sold some taps and drills which he secured from Parker on an order purporting to have been signed by Quinn, but which defendant in fact forged. Quinn had stolen tools before from his employer and sold or pawned them to Parker.
   Grant, J.

{after stating the facts). The court instructed the jury that the building where the burglary was committed was a shop, within the meaning of the statute, which reads :

“Every person who shall break and enter, in the nighttime, any office, shop, * * * or factory, * * * with intent to commit * * * larceny, shall be punished,” etc. 3 Comp. Laws, § llSf?.

The instruction was clearly correct. The witnesses spoke of it as “the shop.” It was a shop within “the common and approved usage of the language” (1 Comp. Laws, § 50), and the court very properly told the jury that whether it was technically a shop, or technically a factory, was of no interest to them.

Error is alleged upon the ruling of the court in refusing to permit Quinn to answer this question: “I suppose when you took these taps and drills from the shop you intended to return them?” We can hardly understand why counsel should make this point, for the record shows that immediately thereafter the court reversed the ruling and permitted the witness to testify that he had no intention to deprive the company of the property and that he so told defendant. The court followed this by correctly instructing the jury on the question of the intent essential to prove the crime.

Defendant was present aiding and abetting the crime, and was therefore an accomplice. He was, under the statute of this State (3 Comp. Laws, § 11930), a principal. The statute has abrogated all distinctions between principals and accessories, and between principals in the first and second degrees. He who aids and abets is now a principal.

We find no error in the charge of the court.

The conviction is affirmed.

McAlvay, C. J., and Carpenter, Blair, and Moore, JJ., concurred.


author: McAlvay, C. J.

text:
    ELLIS v. BOER.
    1. Statutes — Construction — Legislative Intent — Ascertainment.
    From the act under consideration and the legislative journals the legislative intent must be ascertained.

      2. Primary Elections — City Primaries — Grand Rapids — Amendment of Statute.
    The legislature of 1907, in amending section 1, Act No. 326, Local Acts 1903, providing for primary elections in Kent county and the city of Grand Rapids, and leaving out of the amended section the provision for a city primary, repealed the provision for a city primary and leaves the law as to city nominations the same as it was before the enactment of the law of 1903.
    3. Same — Statute—Amendment—Effect.
    That the unamended sections of the act of 1903 contain provisions relative to the machinery provided for holding city primaries which are not directly repealed is unimportant, since such provisions are merely the superstructure built upon the foundation laid in section 1 providing for such primaries, which,being repealed,repealed all provisions of the act resting upon it.
    4. Same — Nominations—Power to Make.
    The fact that the Kent county primary law no longer provides for the nomination of officers for the city cannot deprive the political organizations of the city of Grand Rapids from using p the ordinary party machinery for making nominations, the provision of section 2 of the act (Act No. 326, Local Acts 1903 ) that the primaries for all parties shall be held upon the same day having reference only to the primary elections included within the act.
    Certiorari to superior court of Grand Rapids; Stuart, J.
    Submitted November 26, 1907.
    (Calendar No 22,586.)
    Decided December 10, 1907.
    Mandamus by George E. Ellis to compel John L. Boer, city clerk of Grand Rapids, to receive and file a petition under the primary election law. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      Moses Taggart, for relator.

      Earl B. Stezvart, for respondent.
   McAlvay, C. J.

Relator filed his petition for a writ of mandamus against John L. Boer, clerk of the city of Grand Rapids, to require said clerk to receive and file in his office relator’s petition, and cause relator’s name to be placed upon the ballot as a republican candidate for mayor at the primary election, to be held on the third Tuesday prior to the next general municipal election. The city clerk answered relator’s petition, and upon the hearing the writ was denied. The petition referred to, as to its form, the number of qualified signers, and the time of its presentation, complied with the provisions of law before its amendment by the legislature of 1907.

The clerk’s reason for the refusal to accept the petition and act upon it was that under his construction of the present law such action was not authorized. This proceeding involves the construction of Act No. 326, Local Acts 1903, as amended. This act was entitled: “An act to provide for the nomination of candidates for election by popular vote and relating to primary elections in Kent county.” By its terms it became operative when a majority of the electors within Kent county, voting upon the question, favored its adoption. At the election held for that purpose it was adopted and became operative. The act as it was originally passed provided all the necessary details for primary elections for the nomination of candidates for certain offices within the county of Kent, including the city of Grand Rapids, and also for the nomination of all elective officers for said city, except elective members of the school board.

As the question before us arises on account of certain amendments to section 1 of the act, it will be unnecessary to set forth the whole act, or to refer to other provisions of it except as it may be claimed that certain portions may aid our construction in arriving at the legislative intent.

Section 1 of Act No. 326, Local Acts 1903, before any amendments* read as follows:

‘ ‘Section 1. On the eighth Tuesday preceding any election at which members of the State legislature or officers of the county of Kent are to be elected, a primary election shall be held in the several townships of said county and wards of the city of Grand Rapids, and at said primary election the candidates for all elective county officers, judges, representatives and senators in the State legislature, and all other elective officers (excepting members of the school boards, and county commissioners of schools and all township officers) who are to be voted for at the ensuing election, shall be chosen by popular vote as hereinafter provided.
“On the third Tuesday preceding any charter or special election, a primary election shall be held for the nomination, by direct vote of the people, of all elective officers for the city of Grand Rapids, except the elective members of the school board.”

This section was first amended by Act No. 597, Local Acts 1905, by inserting a proviso relative to the election of county commissioner of schools, and in no other respect.

The legislature of 1907 amended this section by passing Act No. 728, Local Acts 1907, which reads as follows:

“An act to amend section one of act number three hundred twenty-six of the local acts of nineteen hundred three, entitled ‘An act to provide for the nomination of candidates for election by popular vote and relating to primary elections in Kent county.’
The People of the State of Michigan enact: Section 1. Section one of act number three hundred twenty-six of the local acts of nineteen hundred three, entitled ‘An act to provide for the nomination of candidates for election by popular vote and relating to primary elections in Kent county, is hereby amended to read as follows:
“ Section 1. On the first Tuesday in September preceding any election at which members of the State legislature or officers of the county of Kent are to be elected, a primary election shall be held in the several townships of said county and wards of the city of Grand Rapids and at said primary election the candidates for all elective county officers, judges, representatives and senators in the State legislature, and all other elective officers, excepting members of the school boards and county commissioners of schools and all township officers who are to be voted for at the ensuing election shall be chosen by popular vote as hereinafter provided.”

■ By this amendment the paragraph of the section which provided for a primary election for the nomination by direct vote of all elective officers for the city of Grand Rapids was not re-enacted.

From the act itself and from the legislative journals the legislative intent must be ascertained. Hart v. McElroy, 72 Mich. 446 (2 L.R.A. 609); Attorney General v. Rice, 64 Mich. 385. It is clear from reading the act — and there is nothing whatever claimed to be contained in the legislative journals to the contrary — that the legislative intent was not to re-enact the provisions of the section relative to primary elections of elective city officers in the city of Grand Rapids. It is a distinct and direct amendment of the section by an orderly and constitutional legislative enactment, substituting the section as amended for the section as it stood in the law before this amendment.

The provision not re-enacted was the only one in the entire act which authorized and fixed a primary election of city officers in Grand Rapids. It is not the province of the court to inquire why the legislature struck such provision out of the law. It is the province of the court to construe the legislative enactment. There is now no provision in this law for holding such primaries. The action of the council in fixing a day for holding such primary, election was therefore without authority and of no force or effect.

Our attention is called to other provisions of the act of 1903 relative to the machinery provided for holding primary elections of city elective officers, and it is urged that not having been directly repealed they still remain in effect and are the only means whereby elective municipal officers can be nominated. These provisions were the superstructure built upon the foundation laid in section 1 providing for such primary elections. The legislature removed this foundation and by implication repealed all provisions of the act resting upon it. The act originally provided for primary elections for the nomination of two classes of elective officers within Kent county. One class included all elective county officers, judges, representatives, and senators in the State legislature, and all other elective officers (excepting members of school boards and county commissioners of schools and all township officers) who were to be voted for at the ensuing election. The other class included all elective officers of the city of Grand Rapids (except the elective members of the school board) who were to be voted for at any charter or special election. The second class has been eliminated by the legislature. None of the provisions of the law as to the first class have been changed in any manner.

The fact that this law no longer provides for the nomination of city officers cannot deprive the political organizations of the city of Grand Rapids from using the ordinary party machinery for making nominations by conventions or other lawful means. The provisions of the act (Act No. 326, Local Acts 1903, § 2) that “the pri-' mary elections of all political parties shall be held at the same time and place and in the manner provided for in this act, and not otherwise,” are provisions for primary elections for the nomination only of those elective officers included within the act.

The judgment of the court in denying the writ is affirmed.

Carpenter, Grant, Blair, and Montgomery, JJ., concurred.


author: Moore, J.

text:
    QUAY v. CHEBOYGAN CIRCUIT JUDGE.
    Intoxicating Liquors — Regulation of Traffic — Bonds—Statute — Validity.
    Act No. 507, Local Acts 1907, giving the village council of Tower authority to accept liquor dealers’ bonds with a surety company as surety, but not requiring them to do so, leaving it to their discretion to either accept or reject such bonds, is not unconstitutional in that it empowers the council to discriminate between dealers by rejecting the bonds of some and accepting others.
    Mandamus by Homer H. Quay, prosecuting attorney, to compel Frank Shepherd, circuit judge of Cheboygan county, to vacate an order denying an order to show cause.
    Submitted October 33, 1907.
    (Calendar No. 33,519.)
    Writ denied December 10, 1907.

      Homer H. Quay, in pro. per.

      Frost & Sprague, for respondent.
   Moore, J.

Prior to July 34, 1907, one Walter Down was engaged in the retail liquor business in Cheboygan county. A complaint was made against him and presented to David H. Crowley, a justice of the peace, who declined to issue a warrant, for the reason that Mr. Down had filed a liquor bond with a surety company as surety, duly approved, according to the provisions of an act, entitled “An act relative to regulation of the liquor traffic,” etc., approved May 1, 1907. (Act No. 507, Local Acts 1907.)

It was the claim of the prosecuting attorney that said act was unconstitutional, and he applied to the judge of the circuit court for Cheboygan county for a mandamus to compel the issuance of said warrant. The circuit judge declined to issue a mandamus, and this proceeding is brought to review his refusal to do so.

It is claimed on the part of the prosecuting attorney that because of the proviso in section 3 of said act which reads as follows, “Provided, that nothing herein contained shall be construed as compelling either the township board of the township of Forest, or the village council of the village of Tower, Cheboygan county, to accept surety bonds, as required in this section, on any liquor bonds that may be presented,” that said act is unconstitutional, inasmuch as it gives the council the right to accept or reject any bond in their discretion, and permits them to unjustly discriminate against one and deprive him of the right to engage in the liquor business without a hearing.

We cannot agree with counsel in this contention. The act authorizes the village council to accept surety bonds, but it does not require them to do so, leaving it to their discretion to either accept or reject such bonds. It was permissible for the legislature to authorize them to do this. See Sherlock v. Stuart, 96 Mich. 193 (21 L. R. A. 580); Johnson v. Bessemer Common Council, 143 Mich. 313; Wells v. Torrey, 144 Mich. 690; Black on Intoxicating Liquors, § 171.

The judgment of the court below is affirmed.

McAlvay, C. J., and Carpenter, Grant, and Blair,, JJ., concurred.


author: Blair, J.-

text:
    WOOSTER v. CALHOUN CIRCUIT JUDGE.
    1. Mandamus — Propriety—Discretionary Writ — Furtherance on Justice.
    The wrib of mandamus is a discretionary writ and will not be issued when inconsistent with justice
    3. Receivers — Bonds—Premium—Payment by Creditor — Discretion.
    Where a receiver recovered judgment against relator notwithstanding her claim of set-off, and she delay ed applying for a new trial until the time for taking out a writ of error had expired, and after a new trial was granted delayed bringing it on, there was no abuse of discretion in granting the petition of the receiver for his discharge and the satisfaction of his bond unless relator should pay the premium for the extension of the bond made necessary by her delay.
    3. Mandamus — Propriety—Remedy by Appeal.
    An order discharging a receiver and satisfying his bond, if effective to deprive a creditor of an action on the bond in the event of her obtaining a judgment against the receiver, can be reviewed upon appeal, whence mandamus will not lie to have it set aside.
    Mandamus by Lizzie E. Wooster to compel Walter H. North, circuit judge of Calhoun county, to vacate an order discharging a receiver.
    Submitted July 16, 1907.
    (Calendar No. 22,350.)
    Writ denied December 10, 1907.

      R. J. Kelley, for relator.

      W. S. Powers and Jesse Arthur, for respondent.
   Blair, J.-

Relator asks for the writ of mandamus to require respondent to set aside a conditional order made upon the petition of one Irwin H. Evans, receiver of the Seventh Day Adventist Publishing Association, praying for his' discharge and the release of the sureties on his bond.

The corporation having, on March 1, 1904, applied for a voluntary dissolution, in accordance with the provisions of chapter 300 of the Compiled Laws of 1897, an order was made by the court, on July 12, 1904, dissolving the corporation and appointing said Evans receiver of its business, property, and effects for the purpose of winding up its affairs. On the 25th of November, 1904, an order was duly made, directing the receiver to sell all of the said business, property, and effects, and, in pursuance thereof, sale was so made on January 12, 1905, to the Review and Herald Publishing Association, a corporation of the District of Columbia, which sale was regularly confirmed by the court on February 13, 1905.

On the 12th day of April, 1904, the Seventh Day Adventist Publishing Association commenced an action in assumpsit against the above-named relator and later filed its declaration and a bill of particulars of its claim. Relator filed a plea of the general issue with notice of set-off and recoupment, claiming several thousand dollars in excess of the amounts claimed in plaintiff’s bill of particulars. The suit was tried on the 12th day of July, 1905, and resulted in the direction, of a verdict for plaintiff, upon which judgment was entered for $2,121.48.

On the 21st day of December, 1905, the receiver executed and delivered to the said Review and Herald Publishing Association a written assignment of the said judgment against relator, which was filed in the case on December 28, 1905. On the 11th day of June, 1906, relator filed a motion for a new trial, which was brought on for hearing before respondent on July 13, 1906. Respondent, treating said motion as an application for leave to file a motion for a new trial, entered an order granting such leave and requiring relator to give notice thereof to said Review and Herald Publishing Association. In accordance with such order, motion for a new trial was filed on July 17, 1906, and notice given as required, and, thereafter, and on December 4, 1906, an order was entered granting a new trial, upon certain conditions, all of which have been complied with.

Prior to the filing of the motion for a new trial, the receiver had disbursed and paid over to those entitled thereto all of the proceeds of the sale, except $250 retained by him to meet the expenses of his application for a discharge. On March 19, 1907, said receiver filed his petition praying for his discharge and the satisfaction of his bond. Relator filed objections to and contested the right to a discharge, and complains of that portion of the order entered by the court which requires her to pay the premium for the extension of the receiver’s bond. The order complained of contains, among other things, the following:

“Much leniency has already been shown the defendant, Lizzie Wooster, in granting a new trial of the suit at law, and she has had time since the granting of such new trial to have had the matter disposed of in court but has not done so. I am of the opinion that if she wishes the receivership continued, she should assume at least a part of the burden; and that if the expense of securing an extension of the bond is to be incurred, she should- bear the same.
“ It is, therefore, ordered that said Lizzie Wooster, within thirty days from the date of this order, pay to the receiver or to his attorney, for the purpose of extending the bond, or pay into this court for the use of the receiver for that purpose a sum of money sufficient to pay the premium on the renewal of the receiver’s bond for one year; and in event of her so doing, the prayer of the petition will be denied, otherwise, the prayer of the petition will be granted and an order entered accordingly.”

It is evident, as remarked by the circuit judge, that" much leniency has been shown the defendant. The motion for a new trial was not made until the time for taking out a writ of error had expired, and the right to make the motion at all depended upon the discretion of the court. The court regarded the necessity for paying an additional annual premium to extend the surety company bond given by the receiver as having been caused by the delay of the relator, rendering it just that relator should bear the expense occasioned by her laches. The writ of mandamus is a discretionary writ and will not be issued when inconsistent with justice. McRae v. Auditor General, 146 Mich. 594. We do not think, that the provision of the order requiring relator to pay the annual premium was such an abuse of discretion as to require the granting of the writ.

Furthermore, section 10890, 3 Comp. Laws, provides for an appeal to this court by any person “aggrieved by any decree or final order of any circuit court in chancery in any proceedings mentioned in this chapter.” If, as contended by relator, the discharge of the receiver as prayed for would prevent an action on the bond in the event of her obtaining a judgment in the suit at law, the order could be reviewed upon appeal.

The writ is denied, with costs.

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


author: Blair, J.

text:
    GAY v. PAIGE.
    Principal and Agent — Obligation oe Agent — Profits of Agency — Duty to Account.
    Where the State agent of a life-insurance company employed a superintendent of agents whose duty was to assist subagents as directed by the State agent, and in the performance of that duty assisted a subagent who paid him an agreed sum in consideration of such services, the sums so paid were a profit of the agency, to be accounted for to the State agent; but if the sums paid were not given in recognition of any obligation to pay them, but out of gratitude for assistance as voluntary gifts, out of moneys belonging to the subagent alone, in which neither the State agent nor the superintend ent had any interest, there was no such duty to aooount; and in an action at law involving such question, the evidence being in conflict, the question is one for the jury.
    Error to Wayne; Hosmer, J.
    Submitted October 25, 1907.
    (Docket No. 146.)
    Decided December 10, 1907.
    Assumpsit by Joel R. Gay against Fred O. Paige for services rendered. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Miller, Smith, Alexander & Paddock, for appellant.

      Jonathan Palmer, Jr. (Elbridge F. Bacon, of counsel), for appellee.
   Blair, J.

During the year 1900, the appellee, Gay, was employed by the appellant, Paige, who at that time was State manager of the Mutual Life-Insurance Company of New York, for the State of Michigan, as his agency director of the Grand Rapids agency, and in November in that year, they entered into a written contract, whereby appellee was appointed superintendent of agents for appellant over the southern peninsula of Michigan, upon a salary and bonus. This contract was for one year, and further provided that appellee’s work as superintendent of agents would at all times be subject to appellant’s direction. Appellee’s duties under this contract consisted in helping subagents of appellant and in doing almost anything appellant might ask him to do in promoting the business.

Under this contract, during 1901, appellee was sent about in the State by appellant, and in September, 1901, he was sent to Grand Rapids to help Gustav Myers, who was a subagent in appellant’s employ and a heavy producer, but a perfect stranger # there, while appellee was well known. As superintendent of agents, appellee could be and was of great assistance to Myers. In November, appellee wrote appellant that he had made an arrangement with Myers for joint work for the balance of the year, subject to appellant’s approval. Under this arrangement, Myers was to give appellee a commission of 10 per cent, or thereabouts, and whatever commissions Myers gave appellee were to be turned over to appellant. Appellant told appellee to go ahead on that basis. Appellee claims that when Myers learned that the commission was going to appellant, he canceled his agreement with appellee, and that he (appellee) at once telephoned appellant to that effect. Appellant denies ever having received any such notice by telephone or otherwise. Appellant says he first learned that the agreement was canceled late in December.

During the period of his contract with defendant, plaintiff admitted receiving $900 from Myers and defendant admitted that there was due to plaintiff on their contract $412.14, for which he was entitled to a verdict, unless defendant was entitled to set off this amount of $900, as by his pleadings he claimed the right to do. ’ The essence of the claim of appellant is, that any moneys received by plaintiff from Myers were, in reality, received because of services rendered Myers, which services were rendered in the performance of his regular duties. As stated by counsel for appellant:

“ The most important and, practically, the only legal question involved in this case, is founded on the well-established rule that all profits made or advantage gained by an agent in the execution of his agency, belong to his principal.”

It is the essence of plaintiff’s position that the sums given to him by Myers were not given in recognition of any obligation to pay them, but, out of gratitude for plaintiff’s assistance, as voluntary gifts by Myers to him out of moneys at the time belonging to Myers alone and in which neither plaintiff nor defendant had any interest whatever.

Among other things, the trial judge instructed the jury as follows:

“ If you find in this case that Mr. Gay went to Grand Rapids — he performed these services in the line of his duty, because all these services were in the line of his duty, and that he did make a contract with Myers, and that Myers afterwards abrogated it and there was no expectation on the part of Mr. Gay at that time — I say expectation — -that there was no expectation, based on anything that was stated between himself and Myers, that he was to receive a reward for what he did, but that thereafter — after the services were performed — as a mere voluntary offering of good will, Myers paid him this sum of $900, then and under those circumstances, and under those circumstances alone, would the plaintiff be entitled to recover. Under those circumstances he would be entitled to recover the amount which he has claimed, viz., the sum of $412.14.
“ If, on the other hand, as I said before, you should find from this case that what took place between Myers and Gay was actually really an evasion of the contract which was first entered into between them for a percentage of Myers’ commissions in consideration of Gay’s work, then unquestionably the defendant would be entitled to a verdict at your hands in the sum of $500.
“Now, it is true, gentlemen of the jury, there is no testimony in this case except the testimony of these two, showing what actually did take place between them. There is no direct testimony and, in the nature of things, there could not be any direct testimony, but, gentlemen of the jury, in a case of this description, which has some things which you may believe are improbable in it, you are not compelled to believe the testimony of either one of them when it is said to be a voluntary gift, yo.u may, from all the testimony, which has some things which may appear improbable to you, stamp the transaction as an evasion and a fraud, if, in your good judgment, you see fit so to do. Now, I have nothing further to say on that subject.”

The claims of opposing counsel were fully and impartially submitted to the jury and they were, in our opinion, correctly instructed as to the law of the case. Mechem on Agency, § 472; Ætna Ins. Co. v. Church, 21 Ohio St. 492; Lewis v. Loper, 54 Fed. 237, 246, 247.

Judgment affirmed.

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


author: Ostrander, J.

text:
    HAAPA v. METROPOLITAN LIFE-INSURANCE CO.
    1.. Life Insurance — Action on Policy — Evidence — Proofs of Death — Admissibility.
    In an action on a life-insurance policy the proofs of death, be ing in the nature of admissions, are competent evidence.
    2. Same — Warranty—Breach—Waiver—Knowledge of Agent.
    A life-insurance company is not bound, as to its knowledge that assured’s health is not in the condition stated in the application, by communications made, to a soliciting agent who was under no duty to discover the facts, and whose authority in fact and as disclosed by his acts did not extend to receiving the application or any communication upon the subject.
    S. Same — Warranty—Breach—Waiver — Estoppel to Assert.
    A husband who procured insurance on the life of his wife with full knowledge that she was subject to heart disease and would die suddenly from ft, cannot urge that the insurer, which in fact did not know the condition of the insured, is estopped to assert a breach of the warranty in the application with respect to the assured’s health, by reason of communications made by him to the insurer’s agent.
    4. Same — Cause of Death — Evidence—Harmless Error.
    Permitting the attending physician to testify to the cause of assured’s death is harmless error where the fact was admitted and otherwise abundantly proved.
    5. Same — Direction of Verdict — Propriety.
    Testimony raising a conflict as to whether certain questions in the application were in fact asked assured by the medical examiner as stated does not render the direction of a verdict for defendant erroneous where it is undisputed that other questions, equally controlling on the rights of the parties, were put to assured, and both the policy and the application contained a provision that no liability should be incurred by the company unless the policy was delivered while the assured was in good health.
    Error to Houghton; Streeter, J.
    Submitted June 4, 1907.
    (Docket No. 2.)
    Decided December 30, 1907.
    Assumpsit by Arthur Haapa against the Metropolitan Life-Insurance Company on a policy of insurance. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      P. H. O'Brien, for appellant.

      Chadbourne & Bees, for appellee.
   Ostrander, J.

For more than a year before securing the policy of insurance, the insured had an incurable disease of the heart, of which fact and that she, on account of the disease, was liable to die suddenly, her husband, the beneficiary, was informed by the physician whom he had employed to treat her. She had been treated for this trouble in March and in October, 1904. The policy was issued in April, 1905, upon an application made therefor during the same month, and the application was made a part of the policy and a copy of it attached thereto. This disease resulted in her death in July, 1905. The beneficiary states, in the proofs of death, that the cause of death was heart disease, the physician certifies to the same fact and, also, that he attended her for the trouble in March and October, 1904, and in May, 1905, and that she had another physician in April, 1905, the month in which the policy was issued. The company denied liability upon the ground that the proofs of death showed that the policy was issued upon misrepresentations. The proofs of death, being in the nature of admissions, were competent evidence (John Hancock Mut. Life Ins. Co. v. Dick, 117 Mich. 518 [44 L. R. A. 846]; Wasey v. Insurance Co., 126 Mich. 119; Krapp v. Insurance Co., 143 Mich. 369), and the facts recited are uncontradicted. The policy was not issued by the resident agent and solicitor of defendant, and was issued at the home office upon the application made by the insured, by the terms of which the deceased warranted that she had' never had disease of the heart, that she was in sound health, that she had not within two years been under the care of a physician. The application contains an express limitation of the powers of the agent. In the policy itself is the provision:

“No obligation is assumed by the company * * * unless, upon the delivery of this policy,the insured is alive and in sound health.”

To meet the condition existing after the application and the proofs of death had been admitted in evidence, plaintiff was recalled and asked the following questions, answers to which were excluded:

Q. Now, state to the court and jury, whether you had any conversation with Mr. Warrala [the agent of defendant who solicited the insurance] relative to your wife becoming insured in this company prior to her becoming insured. * * * '
“Mr. O’Brien: This is material, if your honor please, for the purpose of showing that before this insurance was taken up Mr. Warrala was informed and well knew the physical condition of Mrs. Haapa and that at the time that this application was made he was a witness to the application and the agent of the company that presided over the making of the application for the policy and the agent who solicited the insurance, and that he wrote down whatever answers were made; that Mrs. Haapa did not talk English, and did not read or write English, and that she signed whatever he put on the paper at his solicitation. * * *
Q. State whether you have had any conversation about your wife’s physical condition with Warrala just before this application was taken. * * *
Q. Did you have any talk with Mr. Warrala in which it was stated to him by yourself that you didn’t feel that your wife’s physical condition was such that she could get insurance and that he knew it F * * *
“Q. Now, on the day that the insurance was taken or at any time before within two or three days, the day the application was made or any day within two or three days before, did you talk with Mr. Warrala about your wife becoming insured in this company ? * * *
Q. Before this application was made state whether Warrala talked with you about insuring your wife. # * *
“The Court: The ruling of the court is broad enough to exclude all conversations between the agent of the Metropolitan Life-Insurance Company, and the witness prior to the date when the application was made, and you will have an exception, so you need not take up any more time asking particular questions. That covers the whole case.”

It is said in the brief that the object of the testimony sought to be elicited was to show—

“That the agent of the defendant who solicited the insurance knew the physical condition of the assured, in order to show that the defendant waived the right to rely on the warranties as to her physical condition, and as to the nonexistence of heart disease.”

And, again:

“The purpose of this testimony was not to vary the contract, but simply to show that with full knowledge of the physical condition of the insured, the defendant decided to issue the policy.”

The theory of counsel, as indicated by these statements and by the authorities cited, is not supported by the facts. The undisputed facts are that on April 10, 1905, the insured signed a paper, reading:

“ I intend to make application to the Metropolitan Life-Insurance Company upon the following blank form, and do hereby sign my name in the presence of the company’s agent, who will make report to the company upon the proposed risk, so that my signature to the application may be identified.
“ Emma S. Ha apa,
“ Signature of Proposed Applicant.
“ J. E. Warrala,
“Signature of Witnessing Agent.”

She, at this time, made and signed no other paper. The agent made a report which contains nothing material here. It contains the full name of the applicant, the name and relationship of the proposed beneficiary, the amount of the indemnity, of the semi-annual premiums, the sex, color, date and place of birth, age, post-office address, etc., of the applicant. The deceased was asked to make and made no representations whatever concerning her health or physical condition. The single question relating to this subject is addressed to the agent and is: “ Does the person appear to be a good risk in every respect and do you recommend that a policy be issued ? ” This was answered, “Yes.” This report was filed in the local office, and later, on April 14th, the exarñining physician visited the applicant, and on that day the application to the defendant company was made'and signed by the insured. It was upon the “ blank form ” referred to in the paper which the insured had already signed. In it are the warranties, breaches of which are relied upon. There was but one application relied upon by the company. It was made April 14, 1905, and the solicitor, Warrala, was not present. It was the physician who filled in the application. According to his testimony, all of the questions contained in the application were put to the insured, an interpreter who spoke the language of the insured being employed for that purpose. The insured afterwards signed it. No one claims that the husband and beneficiary had ever told the examining physician that his wife had heart disease. The question presented is, then, whether the fact, if it is a fact, that the solicitor, Warrala, who had nothing whatever to do with making the application, was told by the husband and beneficiary that his wife had heart disease, requires that his knowledge so obtained should be, for any purpose, imputed to the defendant. It is clear that the defendant did not, in fact, know of any representations concerning the health of the assured except those contained in the application. Those representations were, admittedly, false. They were material; so much so that it may be assumed that if the truth had been told no policy would have been issued.

The rule of North American Fire-Ins. Co. v. Throop, 22 Mich. 146, is that,—

“ If there has been no fraud and no concealment, but a full and frank statement of all the facts, and the insurer has framed the papers to suit himself, in view of all the circumstances, the law would justly be subject to the reproach of favoring deception and fraud, if the insurer was allowed to retain the premium, and at the same time repudiate the contract, for his own failure to make its recitals correspond exactly with the facts.”

In that case, it appeared that,—

‘ ‘ The plaintiff claims that he gave the agent full information on the subject [of incumbrances], and insists that if there was any failure to mention it in the application, it was for reasons operating exclusively upon the mind of the agent, and not affecting his own action. We think evidence of these facts was competent. Its purpose was, not to vary or contradict the contract of the parties, but to preclude the party who had framed it from relying upon incorrect recitals to defeat it, when he himself had drafted those recitals, and was morally responsible for their truthfulness. ”

It is pointed out in the opinion that,-

‘ ‘ Where the particular fact called for by an interrogatory is unimportant, or nearly so, under the circumstances of the particular case, it is very easy for the assured to be led to suppose that such interrogatory, which he knows was prepared generally and for the purpose of meeting the cases in which it would be of practical importance, was not to be relied upon in his own case, and if the insurer himself, or his agent, drafts an answer to such interrogatory, in which he treats it as immaterial and does not observe strict accuracy in his statement of facts, the assured might well suppose he would be thought captious and hypercritical if he should insist upon answers exactly correct, when the party seeking the information, and who alone was interested in it, was satisfied with statements less accurate, and which, with full knowledge of the facts, he had written out to suit himself.”

In Brown v. Insurance Co., 65 Mich. 306, the rule followed, so far as it is material here, is that whether or not the applicant made the answers to the agent as written in the application was a question for the jury. If she made them, their truth or falsity should have been inquired into. If she did not make them or any of them and they were filled in after she signed the application, without her knowledge or consent, as to answers so inserted the company was precluded from relying upon their falsity. In the following cases and others, the knowledge of the agent who took the application, of facts untruthfully stated in the application, is the point considered: Perry v. Insurance Co., 143 Mich. 290, 147 Mich. 645; Van Houten v. Insurance Co., 110 Mich. 682; Temmink v. Insurance Co., 72 Mich. 388; Beebe v. Insurance Co., 93 Mich. 514 (18 L. R. A. 481). In O’Brien v. Insurance Co., 52 Mich. 131, there was an alleged failure to inform the agent of an incumbrance upon the insured property. There was no written application and no preliminary examination of the applicant by the agent. It is said:

“ If an insurer is apparently indifferent whether a property is unincumbered and is content to insure without in any way suggesting an interest in the question, the bare silence of the applicant upon it cannot be deemed a misrepresentation. If the applicant is guilty of no misleading conduct, the insurer in such a case must be taken to assume the risk incident to the undisclosed incumbrance. It must not bé intended that the principle would hold in regard to incidents obviously implying unusual risks, and not likely to be discerned or contemplated by the insurer. The case requires no observations on that subject. It is sufficient to suggest the distinction.”

It is said, further, in Ketcham v. Accident Ass’n, 117 Mich. 521, 523:

“ The courts have always been anxious to take care of the rights of the assured when the applicant has relied upon the agent informing the company what had been truthfully told to him about the character of the risk; but the courts never have said the company is bound by statements contained in an application, when not only the agent, but the assured, knows they are untrue, and calculated to deceive, and the application is to be forwarded to the company as the basis of its action. To so hold would put these organizations completely at the mercy of dishonest and unscrupulous agents.”

The decisions of this court are not conflicting and must be read and considered together for the purpose of discovering and following the rule of law applicable to the question under consideration. Assuming that the testimony sought to be elicited would have tended to prove that the husband had informed the soliciting agent, Warrala, that his wife had heart disease and was liable to die suddenly on account thereof, there are two sufficient reasons why such testimony should not have been received. In the first place, the disclosure claimed to have been made was not made to the agent of defendant whose duty it was to discover the facts, but to one whose authority as disclose'd by his acts, and whose authority in fact, did not extend to receiving the application or any communication upon the subject. Mere silence on the part of such an agent cannot be held to estop the defendant where after-wards the person insured represented to another agent, charged with the duty of receiving the application for insurance, facts upon which the defendant acted in issuing the policy. In the second place, the plaintiff who urges the estoppel or waiver does so from a position which for that purpose the law will not permit him to occupy. He sought indemnity for the death of his wife. The physician had told him, “she would have those spells off and on and that she would die suddenly some time.”

He owed some duty to know that the defendant did not, in ignorance of that fact, sell him the indemnity. The contract of indemnity was itself notice to him that the defendant did not possess such notice or knowledge and would be defrauded if required to pay. The cases of Gristock v. Insurance Co., 87 Mich. 428, and Hartford Steam Boiler Inspection & Insurance Co. v. Cartier, 89 Mich. 41, have no application.

The ruling upon the question asked the witness Dr. Yarrington wasnot prejudicial error. He was the attending physician, who made the certificate which was a part of the proofs- of death. He was asked: “What was the matter with her, what was the cause of her death ? ” Over objection, he was permitted to answer: “Heart failure, from failure of compensation causing mitral insufficiency. That would come within the general disease called disease of the heart or heart failure.” This fact was and is admitted. It was already proven.

A witness, a neighbor, who claimed to have been present when the examining physician took the application, testified that the assured was not asked whether she had been attended by a physician within two years, or whether she had heart disease. It is contended that in view of this testimony, which is disputed, it was error to direct a verdict for defendant. This upon the theory that a question of fact was presented upon the subject of the knowledge of the assured that she had made, in signing the application, any warranties concerning either of those subjects. But the testimony is not disputed that other questions contained in the application were put to her, in her own language. One affirmation is, “I am now in sound health.” Another, “ I have never met with any serious personal injury, nor ever been seriously ill, except as stated below.” Another, “ The following is the name of the physician who last attended me, the date of the attendance, and the name of the complaint for which he attended me.” And the application, like the policy, contains the provision (agreed to in the application) that no liability shall be incurred by the company unless the policy is delivered while the assured is in good health. Beyond this, the examination which was made apprised her of its purpose — of the knowledge sought. And her physician had informed her of her ailment. In my opinion, a finding that these specific questions were not asked her and that she could not read the application which she signed would not, in view of the other testimony and of the knowledge which the nature of the examination conveyed, support a recovery. It follows that, upon the whole record, the trial court committed no error in directing a verdict for defendant.

The judgment is affirmed.

Carpenter, Grant, Blair, and Montgomery, JJ., concurred.


author: Carpenter, J. Grant, J.

text:
    DUNN v. DUNN.
    1. Divorce — Grounds—Cruelty — Compelling Abortion — Evidence — Sufficiency.
    On a bill for divorce on the ground of extreme cruelty in compelling complainant to submit to successive abortions, evidence examined, and held, sufficient to establish the charge set forth in the bill. Grant, Blair, and Ostrander, JJ., dissenting.
    2. Same.
    For a husband to insist upon his wife submitting to successive abortions, resulting in her leaving home rather than submit, is extreme cruelty entitling the wife to a divorce.
    3. Same — Defenses—Removal of 'Cause — Promises—Effect.
    A promise by the husband to waive his objections to her bearing children if she would resume her wifely relations comes too late after she has for a long time submitted to his wrongful conduct and she has left him a second time in consequence of his breach of a similar promise. Grant, Blair, and Ostrander, JJ., dissenting.
    Appeal from Ingham; Wiest, J.
    Submitted June 14, 1907.
    (Docket No. 97.)
    Decided December 30, 1907.
    Bill by Julia Dunn against Samuel Albert Dunn for a divorce. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Jason JEJ. Nichols, for complainant.

      Thomas, Cummins & Nichols (Lawton T. Hemans, of counsel), for defendant.
   Carpenter, J.

Complainant, the wife of defendant, seeks a divorce. She charges that defendant insisted, as a condition of the continuance of the marital relations, that she should bear no children, and that in consequence of this insistence she submitted to two abortions, and fin-. ally left her home rather than submit to a third. The trial judge — presumably because he did not believe the charge established — decided the case in defendant’s favor and dismissed complainant’s bill. We are compelled to differ with him. In our judgment the testimony establishes the charge substantially as above set forth. We have given some of the reasons for the foregoing conclusion in a memorandum opinion — not intended for publication — filed herewith. It is unnecessary to cite authorities in support of the proposition that defendant’s conduct constitutes such extreme cruelty as to entitle complainant to a divorce. His conduct was in violation of the laws of God and of man. It tended to defeat the object of the marital relations.

It is urged that the divorce should not be granted because, after complainant had left him, defendant promised to waive his objections to her hearing children if she would resume her wifely relations. This promise came too late. It came after complainant had for a long time submitted to defendant’s wrongful conduct and after a similar promise had been broken. Under these circumstances she had a right to decline to again give him her trust and confidence. Complainant is entitled to a decree. She is also entitled to an allowance for alimony and expenses of suit. This record does not contain all that is necessary to enable the court to make such an allowance. It may, therefore, be made a subject of a future application if the parties themselves cannot — and it is to he hoped they can — arrange it by mutual agreement.

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

Grant, J.

I think the decree should be sustained. The judge evidently placed no confidence in the truthfulness of complainant. Neither can I. Her right to divorce depends almost exclusively upon her own evidence. I think this is clearly a case where the trial judge was in better position to determine the credibility of the witnesses than are we. She charged a physician and her husband with a heinous crime. Both deny it. I think the evidence conclusively establishes the fact that she married the defendant under an agreement to avoid bearing children on account of his having once been insane and confined in an asylum. Such a woman is entitled to little consideration in a court of equity. I have stated my views of the testimony in a memorandum opinion, as has my Brother Carpenter. It is unnecessary to publish the disgusting details disclosed by the record.

I think the decree should be sustained for another reason. It is not the policy of the law to grant divorces where there is a fair prospect that the conjugal trouble can and will be removed, and where the offending party, acknowledges his error, repents, and promises that there shall be no repetition of the trouble. Defendant repeatedly promised, both by his letters and his conversations with others, that there should be no occasion for complaint in the future, and that if she desired she might have children. This would remove the only obstacle to their conjugal happiness. I think there is no reasonable apprehension that he will continue those acts which she characterizes as cruelty. A proper regard, therefore, for the stability of the marriage relation should require its continuance and a further attempt on her part to test his sincerity. English v. English, 27 N. J. Eq. 579. In that case the wife testified that the husband struck her with his fist under very aggravating circumstances. She also testified to other acts of cruelty. There as here the testimony of the husband and wife was in direct conflict. The defendant in that case, after his wife had left, wrote letters promising that “every trouble so far as it depended upon him should be removed.” The court was satisfied that the wife would not be unsafe in his hands and dismissed her bill. The principle, which, in my judgment, should control in these cases, is there so well stated that I quote it:

“ The point for determination is not whether the husband, in his rudeness, has injured his wife without sufficient thought or care of her physical health, while doing an act which, in ordinary cases, is not unlawful, injurious or dangerous, for it must be conceded, under the facts of this case, that he has thus abused his marital rights; but the true inquiry is whether the conduct of the husband has been such as to raise a reasonable apprehension that further acts of the same abuse will be committed if the wife should return to him. The court must be satisfied that the wife is in danger of bodily harm if she go back to him, or, to use the language in Close v. Close, 25 N. J. Eq. 529, that he has done and will continue to do such acts as will endanger her health, or render her life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife. It is not the question whether she will live more comfortably at her father’s house, with a liberal allowance for alimony, but whether she is released from her duty as a wife by the extreme cruelty of her husband, and the reasonable apprehension that it will continue. The principle which must decide this case does not affect these parties alone; it is of the utmost importance to all, that these bonds should not be lightly severed.”
“ Courts do not interfere in these cases so much to punish an offense already committed, as to relieve the complaining party from an apprehended danger.” Morris v. Morris, 14 Cal. 76.

The maintenance of the sacred relation of marriage is so essential to the public welfare, to public morals, and the morals and the proper education of children, that courts should only dissolve it when cruelty is the basis for relief — upon clear proof of extreme cruelty and after the court is convinced that there is no reasonable ground to believe that the offending party has repented and will thereafter remove all cause of complaint.

I think complainant has no reasonable ground to apprehend the continuance of the trouble, or to doubt the sincerity of her husband’s promise to remove this, the only obstacle, to their happiness. I think it the clear duty of the court to refuse her a decree.

Blair and Ostrander, JJ., concurred with Grant, J.


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    JUDD v. TOWNSHIP OF CALEDONIA.
    1. Highways and Streets — Defective Highways — Personal Injuries — Contributory Negligence — Unmanageable Horse— Diverted Attention.
    Where a township without erecting any barriers removed the planking from a highway culvert at a point where its condition could not be discovered by travelers until within three rods from the culvert, and at the same time left close to the roadway bags of cement covered with canvas, which were well calculated to frighten gentle horses and did frighten plaintiff’s horse so that in urging him past the cement he momentarily got beyond control, resulting in an accident at the culvert, the question of plaintiff’s contributory negligence in attempting to drive his horse past the bags of cement was a question for the jury.
    2. Same — Proximate Cause op Injury — Frightened Horse.
    The horse’s fright was not the proximate cause of the injury though he was momentarily beyond control, so far as stopping him was concerned.
    3. Evidence — Expert Evidence — Physician Called to Make Testimony.
    Testimony from a physician called to consult with the attending physician with respect to the treatment of the case is not inadmissible under the rule of O’Dea v. Railroad Co., 142 Mich. 265, excluding statements made to witnesses called to make testimony.
    4. Same — Nature op Injuries — Opinions.
    Error in permitting plaintiff’s medical, witness to state on redirect that in his opinion plaintiff was not malingering is harmless where defendant in his cross-examination of the same witness brought out substantially the same statement.
    Error to Shiawassee; Miner, J.
    Submitted October 9, 1907.
    (Docket No. 8.)
    Decided December 30, 1907.
    Case by Edward Judd against the township of Caledonia for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      John T. McCurdy, for appellant.

      A. L. Chandler, for appellee.
   Blair, J.

Plaintiff brought this action to recover damages for injuries claimed to have been suffered by him in consequence of the negligence of the defendant in removing the planking of a culvert under the highway,in consequence of which plaintiff’s buggy in which he was riding was overturned. The planking was removed after noon of the 7th day of September, 1905. No barriers or warning signs were erected to prevent people using the road across the culvert, and the negligence of the defendant seems to be conceded..

At the time of the accident, plaintiff was driving a gentle horse, and his wife and niece were riding with him. Three rods from the culvert crossing, an east and west highway crosses the north and south highway upon which, plaintiff was traveling. About at this point, plaintiff’s horse became excited and frightened at some bags of cement covered over with white canvas, which were well calculated to frighten horses, and had been placed near the bridge by the highway commissioner. Plaintiff, having theretofore driven his horse past piles of cement, and, thinking that he could do so in the present instance, spoke to her and urged her forward. When about two rods from the opening of the culvert, the horse suddenly leaped forward.

“ I continued urging the horse forward and when about two rods from the pile she commenced going faster, then broke into a run. I,lost control of her so far as stopping her was concerned.”

Carrie Failing, plaintiff’s niece, who was riding with him, testified:

“When I was going north sitting in the buggy, I looked up the road ahead of me beyond the cement; I saw nothing but the hole there. That is all I see.
Q. When was it you saw the hole ?
“A. Not until we got right up to it.
“Q. I am asking before you got up to it. While you were driving along from the corners up to the hole, what was there before you that you could see to hinder you from going north in any way.
“A. Not anything. * * *
iCQ. How near were you to the bridge when you saw the bridge was out, as near as you .could tell ?
“A. I couldn’t tell; we was right up close to it. * * * You couldn’t see it until you got right up to it.
“Q. Did you look? Isn’t it a matter of fact that you were all looking at the cement pile ?
“A. Yes, sir, I looked at that.
“Q. Did you see that big temporary bridge that was right there to the east of the ditch ?
“A. No, sir,
Q. You didn’t look at that, did you ?
l‘A. No, sir, I didn’t notice it.
“Q. Did you see the signboard that said upon it, ‘ Bridge out? ’
“A. No, sir. There was none there. If there was such a sign I should have thought I would have seen it if it had been there. I didn’t see it.”

She also testified to seeing or to noticing some dirt extending across a portion of the highway where the bridge had been taken up, a foot or a foot and a half high.

UQ. That was across the highway as you remember it?
“A. Yes, sir; I could see there wasn’t some of the broken planks and debris out of the old bridge thrown up on that pile of dirt. I know there was none there. I am positive about that.
“Q. Describe to the jury what you mean by that little dirt or grade just before you come to the bridge.
“A. Why, it was a little up like that, before you come to the bridge, is- the reason that you couldn’t see the bridge until you come right up to it.”

Other witnesses testified the pile of dirt was eight or ten inches high. This pile of dirt was rather to the east of the wrought portion of the north and south road as one came up from the south and drove up to the bridge. Defendant’s witness, Stuart, testified as follows:

“Q. At what point tell the jury where it was possible for you to see looking forward to the north and in the highway the excavation or opening that had been caused by taking off the stringers from tíie old culvert.
“A. I could three rods south. I couldn’t look down into the culvert but I could see the farther edge. I could see down perhaps a foot into the culvert on the north bank. I was sitting on the load of gravel. It was plainly and distinctly discernible to me. I didn’t say that I could readily discern the opening farther than three rods south but I could’see that there were obstructions in the road.”

The trial court submitted the case to the jury, who rendered a verdict in favor of the plaintiff for $500, and defendant brings the record to this court for review upon writ of error. The errors upon which defendant relies for a reversal are:

First. Plaintiff was guilty of contributory negligence as a matter of law.

Second. Testimony of physicians was allowed, who were called with the intention of using them as witnesses.

Third. The court permitted a medical witness to answer the following question against defendant’s objection:

“Q. There has been much said about malingering. In these examinations that you made of Mr. Judd, in any one of them, did you see anything from his conduct that led you to believe that he was malingering in any way ?
“Mr. McCurdy: I object to that as incompetent, irrelevant, immaterial and inadmissible.
“The Court: He may answer. Defendant excepted.
“A. No, I saw nothing to lead me to think he was malingering.”

First. We do not think that it can be said that the evidence conclusively showed that plaintiff was guilty of contributory negligence, although the case is a very close one. • The defendant was responsible for the situation presented to the plaintiff, bags of cement and all. The evidence tended to show that these bags of cement,covered over with white canvas as they were, were likely to frighten gentle horses, and defendant is, therefore,chargeable with placing the bags of cement near the bridge or culvert with knowledge that any horse being driven towards the culvert would probably be frightened thereby. It follows, as a matter of course, that if the horse became frightened at the cement, it would become necessary for the driver to devote his attention largely to the management of the animal and thereby to distract his attention •' from the condition of the roadway. The evidence tended to show that the opening in the highway, either by reason of the grading up of the dirt or for some other unexplained reason, was not visible to the occupants of the buggy until they .were within three rods of the opening. The placing of the cement in the highway and the removing of the planking were concurrent causes of the injury, and it was for the jury to say whether, in view of all the circumstances, it was negligent for plaintiff to attempt to drive the horse past the cement; whether, in view of the conduct of the horse diverting the attention of the driver and occupants of the carriage from the road, they were negligent in not discovering the absence of the planking, and whether the horse had entirely escaped from plaintiff’s control or only momentarily. It cannot be held, as a matter of law, that plaintiff was guilty of negligence because he attempted to drive the horse past an object of which she was evidently afraid, nor that the horse’s fright was the proximate cause of the injury because she was momentarily beyond plaintiff’s control, so far as stopping her was concerned. Herring v. City of St. Joseph, 137 Mich. 480; Langworthy v. Township of Green, 95 Mich. 93; Gage v. Railroad Co., 105 Mich. 335; Harris v. Township of Clinton, 64 Mich. 447.

Second. We do not think the evidence in this case renders the medical testimony complained of incompetent under the rule of O’Dea v. Railroad Co., 142 Mich. 268. The testimony complained of indicates that the physician, Dr. Hume, was called to consult with the attending physician, Dr. Bailey, with regard to the treatment to be pursued in the case.

Third. Did the trial judge err in permitting the witness to answer the question, under the rule laid down in McCormick v. Railway Co., 141 Mich. 17 ? Plaintiff argues that practically the same question was asked by defendant’s counsel, who thereby opened the door for the admission of such testimony, and even if the testimony was erroneously admitted, it must have been error without prejudice. The questions and answers largely relied upon by plaintiff’s counsel as excusing the error are the following, in the cross-examination of Dr. Bailey:

“Then, Doctor, take a man with the education Mr. Judd had. One who is a reader, who says himself he hap read doctors’ books upon the subject of spinal cord, its uses, its purposes, describe the gray and white matter, the functions of .the cord, and also says he has talked with his doctors concerning that cord, would it not be easier for a man of that caliber and mentality to feign symptoms arising from the spinal cord than a man who is perfectly honest in regard to the matter and didn’t know anything about the cord or its uses ?
“N. Yes, it would be easier for such a man.
“Q. So if a man wants to appear to be hurt he has got it in his power to make up a pretty good case by malingering, hasn’t he ?
“A. Yes. Malingering means putting on, also pretending.
l‘Q. Making believe so. Instead of using the word malingering, I will say making believe here, and is in a position to make believe he has received an injury to the spinal cord if he so desires, that is true, isn’t it ?
“A. Yes. * * * I have made no examination of his urine, which is one of the best tests to determine whether or not the spinal cord is affected.
“Q. If a man was malingering and you should examine his urine and you should find an entire absence of anything that would indicate an injury to that spinal cord, that would lead you to believe that the man was deceiving you ? You would think he was malingering ?
“A. Yes. But I didn’t think it was necessary to examine it in Mr. Judd’s case. I was positive there was some injury there. I might be deceived.”

In view of the cross-examination upon the subject of malingering and the witness’ answer, “I was positive there was some injury there,” we do not think that permitting the answer complained of should be held to be prejudicial error.

Judgment affirmed.

McAlvay, C. J., and Carpenter, Grant, and Montgomery, JJ., concurred.


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    TEMPLE v. PRESTON.
    1. Taxation — Tax Sales — Decree—Entry in Vacation.
    That a decree for the sale of land for taxes was entered on the day after court adjourned until a later date in the term does not render it subject to collateral attack.
    2. Same — Treasurer’s Report of Sale — Filing in Clerk’s Office — Presumptions.
    Where a treasurer’s report of the sale of lands for taxes received in evidence bears an indorsement of filing signed by the county clerk, there is sufficient evidence that it was filed in the clerk’s office, there being a presumption that he only files papers in his own office.
    Appeal from Mackinac; Shepherd, J.
    Submitted October 15, 1907.
    (Docket No. 56.)
    Decided December 30, 1907.
    Petition by Ansel F. Temple against William P. Preston for a writ of assistance. From a decree for petitioner, defendant appeals.
    Affirmed.

      William Carpenter, for petitioner.

      Brown & Fleming, for defendant.
   Moore, J.

A petition, was filed for a writ of assistance based upon tax titles for the years 1893, 1894, 1895, 1896, 1897, 1899, and 1900. The writ of assistance was granted. No claim is made under the tax title for the sale for taxes of 1893. The sale for the taxes of 1894 was made December 7, 1896, and a deed was issued therefor April 23, 1898, Notice to redeem for the taxes of 1895, 1896, 1897, 1899, and 1900 was served upon the defendant, Preston.

The defendant claims to he a grantee of 4-15 of the land in controversy. He was also an occupant and in actual possession of said interest. Before the time had expired to redeem under the notice served upon him he deposited •with the register in chancery a sum sufficient to pay 4-15 of the amount demanded by the petitioner. The tax title holder was duly notified by the register of the deposit, who refused to receive it.

It is conceded that as the sale for the taxes of 1894 was prior to the act of 1897 no notice, was required, but it is claimed the proceedings for the sale of the taxes for that year were fatally defective. First. Because the decree was entered at a time when the court was not in session. The date fixed for the hearing of the petition was August 18, 1896. The court was in session August 18-21, on which date the court adjourned until October 5, 1896. The chancery journal shows a-decree was entered August 22, 1896. No one at any time sought to contest the proceeding. The case is within Wolverine Land Co. v. Davis, 141 Mich, 187; Goodell v. Auditor General, 143 Mich. 240; Hoffman v. Flint Land Co., 144 Mich. 564.

The second objection is, because there was no report of the county treasurer’s sale which the law provides must be made by the county treasurer and filed with the county clerk. The report of sale made by the county treasurer was received in evidence and is indorsed, “Received and filed December 26, 1896’’and signed “Michael Hoban, county clerk.” We think it a fair inference that the county clerk files papers received in his office and not those in the custody of some other office. We do not think the objection was well taken. See Hoffman v. Pack, Woods & Co., 123 Mich. 74; Burns v. Ford, 124 Mich. 274; Hoffman v. Flint Land Co., supra.

It is unnecessary to discuss the effect of the other tax deeds. The decree is affirmed, with costs.

McAlvay, C. J., and Carpenter, Ostrander, and Hooker, JJ., concurred.


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    YOUNGGREN v. I. STEPHENSON CO.
    1. Master and Servant — Personal Injuries — Fellow-Servants.
    A foreman in defendant’s sawmill and plaintiff, a laborer, were fellow-servants in moving a loaded car with car pushers along the sidetrack adjoining the mill.
    2. Same — Safe Place to Work — Known Danger — Assumption of Risk.
    Where the dangers of plaintiff’s employment were apparent, and the place to work provided by defendant, if unsafe, was one the ’unsafety of which was fully known to plaintiff if he had exercised reasonable care during the period of his employment, plaintiff cannot recover for an injury resulting from such dangers.
    Error to Delta; Stone, J.
    Submitted October 15, 1907.
    (Docket No. 66.)
    Decided December 30, 1907.
    Case by Alfred Younggren against the I. Stephenson Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Yelland & Norblad, for appellant.

      F. D. Mead, for appellee.
   Moore, J.

This is an action of trespass on the case, brought to recover damages for personal injuries of the plaintiff, caused by the alleged negligence of the defendant, while in its employ at one of its sawmills. The trial judge directed a verdict for defendant.

It is insisted on the part of the plaintiff that the court erred, first, in not submitting the case to the jury, and, second, in not permitting the introduction in evidence of an X-ray photograph. The plaintiff was an adult and at the time of the accident had worked at intervals for five or sis years in and about the mill. Outside the mill and running parallel to it and to each other were two railroad tracks. Upon these tracks open cars were placed side by .side. The car nearest the mill was reached from the upper story of the mill through a short chute. The outside car was reached by a longer chute which passed over the track nearest the mill. Inside the mill was a saw which cut the slabs and other debris inio short pieces which then passed to a chain conveyor which took them to the head of the two chutes. At the head of the chutes on the wall of the mill were slides and by changing them •the wood was thrown into one chute or the other as was desired. Only one car was filled at a time but the conveyor ran continually. The plaintiff was at work in the dust house about 10 o’clock p. m., when he was requested by the foreman to go with him and help move the loaded car on the outside track. The cars were moved with a car pusher. Lanterns were furnished the employes but none was taken at this time. The plaintiff testified:

‘ ‘ When I got to where the cars which were to be moved were, a slab came and struck me on the arm, and it also struck Charles Olson on the back. I was about four or five feet from the car when this happened. The piece of wood which struck me came from the chute from above the car, from the same chute that had loaded the car. I could hear it coming. The chunk was about four feet long, one foot wide and seven or eight inches thick; it struck me on the right arm. ”

Mr. Olson testified that in his judgment the wood did not come from the chute but as they started to move the car a piece of wood toppled, from it. It is contended on the part of the plaintiff that Mr. Olson was a foreman whose orders he was bound to obey, and that it was the duty of the defendant to furnish plaintiff a safe place in which to work, and that whether it was a safe place and whether plaintiff was guilty of negligence were questions for the jury. It is the claim of defendant that the place furnished was a safe place in which to work and was made unsafe (if it in fact was unsafe) only by the method of operation. It is further claimed that the doctrine of safe place does not apply and that Mr. Olson and the plaintiff were fellow-servants. The circuit judge adopted the theory of the defendant and, as before stated, directed a verdict. It is very clear Olson and plaintiff were both engaged in the simple employment of moving a car, each helping the other. We think it can hardly be said it was an unsafe place to work, if the operation required was properly conducted, but if it was, the only fair inference from plaintiff’s own testimony is that he understood the situation, certainly if he had exercised reasonable care during the long time he was employed in the mill — during the previous summer he was employed at the saw at the end of the conveyor — he would have known of the existing conditions. See Jones v. Railroad Co., 127 Mich. 206. We think the court was right in holding that Mr. Olson and plaintiff were fellow-servants. See Andre v. Elevator Co., 117 Mich. 560, and the cases cited therein; Livingstone v. Plate Glass Co., 146 Mich. 236, and cases cited therein.

This conclusion makes it unnecessary to discuss the other assignment of error.

Judgment is affirmed.

McAlvay, O. J., and Carpenter, and Hooker, JJ., concurred. Ostrander, J., concurred in the result.