author: Bird, J. Ostrander, J.

text:
    DRAKE v. INDUSTRIAL WORKS.
    1. Master and Servant — Emery Wheels — Blowers—Safeguards for Machinery — Statutes.
    Under Act No. 285, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 4035), providing for the installation of fans or blowers in workshops using wheels partly of emery, or buffing wheels, or emery belts, amending Act No. Ill, Pub. Acts 1893, and Act No. 202, Pub. Acts 1899, emery wheels, solid or “of any description” are included within the terms of the statute. MoAlvay, Brooke, and Ostrander, JJ., dissenting.
    2. Statutory Construction — Relative Words and Phrases.
    Relative and qualifying words and phrases, where no indication to the contrary appears, refer solely to the last antecedent, in the interpretation and construction of statutes.
    3. Master and Servant — Contributory Negligence — Tool Grinding.
    An employé, who had only worked a few days at chipping and smoothing up rough castings, and whose eye was injured while grinding his tools on an emery wheel, was not chargeable with contributory negligence, as matter of law, for failing to wear goggles that were furnished on request by the master, when it appeared that the person who instructed plaintiff in the operation of the wheel, did not advise him to wear goggles, and that a sign posted in the factory warning employés to wear that means of protection was so covered with dust as to be difficult to read, and that plaintiff had not seen it: other employés working without goggles.
    4. Same — Extent of Injuries — Evidence—Defect in Uninjured Eye.
    Plaintiff, being entitled to recover for direct and natural consequences of his injuries, should have been allowed to show that his uninjured eye was defective, and that the injury practically destroyed liis vision.

      Error to Bay; Collins, J.
    Submitted June 13, 1911.
    (Docket No. 41.)
    Decided April 8, 1913.
    Case by Herbert B. Drake against the Industrial Works for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Hall, De Foe & Henry, for appellant.

      Gillett & Clark, for appellee.

      On the question what is comprehended in expression “machinery of every description,” in statutes imposing duty on master as to placing guards, see note in 80 L. R. A. (N. S.) 36. And for common practice as the measure of master’s duty to guard machinery, see note in 16 L. R. A. (N. S.) 140.

   Bird, J.

The defendant is a manufacturer of locomotive cranes in Bay City, and on the 26th day of July, 1909, the plaintiff was in its employ, working as a chipper. His work was that of smoothing up the rough castings with a chisel. While grinding one of his chisels on an emery wheel, a particle of dust or steel was thrown off and into his left eye, resulting in a permanent injury.

The negligence counted upon by the plaintiff was the failure of the defendant to provide and equip the emery wheel with a fan or blower to carry away the dust or particles which might be thrown therefrom, in compliance with Act No. 285 of the Public Acts of 1909.

When the testimony was completed, the trial court was of the opinion that solid emery wheels, such as the one in question, did not come within the provisions of the act, and therefore directed the jury to return a verdict for the defendant. This action upon the part of the trial court is alleged as error by the plaintiff.

The legislation involved in this case first made its appearance in the legislative session of 1887, under the title “ An act to provide for blowers in establishments where emery wheels or emery belts are used.” Section 1 provided, in part, as follows:

“Section 1. That all factories and workshops where emery wheels or emery belts, of any description, are used, either solid emery, leather, leather-covered, felt, canvas, paper, or wheels rolled in emery or corundum, shall be provided with blowers,” etc. Act No. 136, Pub. Aets 1887.

Section 1 was amended in 1893, under the same title, to read:

“ Section 1. That all persons, companies, or corporations operating any factory or workshop, where emery wheels or emery belts of any description are used, either solid .emery, leather, leather covered, felt, canvas, linen, paper, cotton, or wheels or belts rolled or coated with emery or corundum, or cotton wheels used as buffs, shall provide the same with blowers,” etc. Act No. Ill, Pub. Acts 1893.

Both the title and section 1 were re-enacted in 1899 in the following form:

“ An act to provide fans or blowers in all workshops or establishments where wheels composed partly of emery or buffing wheels or emery belts are used.
“Section 1. That all persons, companies or corporations, operating any factory or workshop, where wheels or emery belts of any description are in general use, either leather, leathei-covered, felt, canvas, paper, cotton, or wheels or belts rolled or coated with emery or corundum, or cotton wheels used as buffs, shall provide the same with fans or blowers, or similar apparatus, when ordered by the commissioner of labor, which shall be placed in such a position or manner as to protect the person or persons using the same from the particles of dust produced and caused thereby, and to carry away the dust arising from, or thrown off by, such wheels or belts, while in operation, directly to the outside of the building or to some other receptacle placed so as to receive and confine such dust, and the same shall be placed in such factory or workshop within three months after this act shall take effect, in the manner and according to the directions and specifications as herein, in this act set forth: Provided, that grinding machines upon which water is used at the point of grinding contact shall be exempt from the conditions of this act: And provided further, that this act shall not apply to solid emery wheels used in saw-mills or planing-mills or other wood-working establishments.” Act No. 202, Pub. Acts 1899.

In 1909 the labor laws of the State were consolidated, and the foregoing section, with others of the 1899 law, were included therein, without material change. Act No. 285, Pub. Acts 1909. See 2 How. Stat. [2d Ed.] § 4035.

It is contended by the defendant that the omission of the word “emery” before the word “wheel” and the omission of the words “solid emery” after the word “ either,” in the act of 1899 were made for the deliberate purpose of eliminating solid emery wheels from the provisions of the act.

In construing the act the purpose of it may be considered. The idea behind the legislation was the protection, external as well as internal, of the employe, from the injurious effects of the dust thrown from such apparatus, as is mentioned in the statute. If this be the reason for it, no good reason suggests itself why solid emery wheels should be exempted from the act, as the dust therefrom is quite as injurious as that thrown from the other apparatus specifically enumerated.

Another fact which makes against the defendant’s construction is the last proviso of section 1, which was added by the legislature of 1899, the one which, it is claimed, purposely omitted “emery wheels” from the act. This proviso reads—

“That this act shall not apply to solid emery wheels used in sawmills or planing-mills, or other wood-working establishments. ”

If the legislature of 1899 intended to eliminate “emery wheels” from the provisions of the act, it is extremely difficult to explain why it inserted this proviso. The proviso can be accounted for only on the theory that the legislature supposed solid emery wheels were included within the general words of the act.

The question as to whether the phrase “of any description ” refers to emery belts alone, or to both wheels and emery belts, is one which is not altogether clear. If the general rule were followed, it would modify emery belts only. Sutherland, in his work on Statutory Construction, lays down the rule in such cases as follows:

“ Relative and qualifying words and phrases, grammatically and legally, where no contrary intention appears, refer solely to the last antecedent.” Section 420.

We are of the opinion that a contrary intention does appear in this act, when its history, purpose, and context are considered, and that the phrase “of any description” refers to wheels as well as to emery belts. In view of these conclusions, we think the act should be construed so as to include solid emery wheels within its provisions.

The trial court was requested to direct a verdict for the defendant for other reasons than the one we have been considering, and, among them, the question of the contributory negligence of the plaintiff is raised. It is said that he should have worn goggles while grinding the chisels; that a sign posted in the shop informed the employes where the goggles could be obtained. The plaintiff’s testimony shows that he never saw the sign; that other employés did not wear them when grinding chisels; and that when he was instructed by the foreman how to do the work nothing was said by him about goggles. It further appeared that the sign was dust-covered to the extent that it was difficult to read. This showing by plaintiff, together with the fact that he had been employed at this work only a few days, made the question of his contributory negligence one for the jury.

The other questions raised in justification of the directed verdict have been examined, but we are of the opinion that they are without merit.

Error is assigned because of the refusal of the trial court to receive the following testimony:

“Plaintiff offers to prove the following several facts separately: That since birth he has been troubled with a congenital defect of his right eye, under which he has never had any power of vision therefrom, and that in consequence of the injury to his left eye sued for, and the impairment of vision of that eye, his total sight has been practically destroyed. This offer of proof is made for the sole purpose of showing the damages sustained by him by reason of the injury to his left eye, no claim being made for an injury to his right eye; it being the contention of plaintiff that this proof should be received under instructions which will confine a right of recovery to the damages springing from the injury to his left eye.”

This offer presents a somewhat novel question, but I am persuaded that the proffered testimony was competent, and should have been received. It is, of course, clear that no recovery could be had for the loss of the right eye; but plaintiff was entitled to recover that of which he had been deprived as the direct and natural consequence of the injury to his left eye (Huizega v. Lumber Co., 51 Mich. 272 [16 N. W. 643]), and one of the consequences was his lessened ability to labor. If, with the aid of only one eye, he was able to labor and earn a living before the injury, and he has been deprived of that ability by the wrongful act of the defendant, he is entitled to recover for such loss. To measure this loss, it is competent to compare the man before the injury with the man after the injury. If, by reason of ill health or defect, he was able to labor only half of the time before the injury, his loss would be only half of what it would be had he been well, sound, and able to work all of the time.

The point is made by defendant that—

“If such evidence were admitted the average juror would be disposed to assess damages for the loss of' two eyes instead of one.”

Plaintiff’s legal right must not be measured by our fears of what the jury will do. We must assume that the jury will do their duty and follow the instructions given them by the trial court. The fact that it would be difficult for a jury to separate the damages occasioned by defendant from those arising by reason of a natural defect, and the fear that jurors might allow their sympathies to influence their verdict, furnish no adequate reaBon for making an exception to the general rule of damages usually applied in such cases. We are of the opinion that the testimony should have been received. Baker v. Hagey, 177 Pa. 128 (35 Atl. 705, 55 Am. St. Rep. 712). See Stewart v. City of Ripon, 38 Wis. 584; Brown v. Railway Co., 54 Wis. 342 (11 N. W. 356, 911, 41 Am. Rep. 41); McNamara v. Village of Clintonville, 62 Wis. 207 (22 N. W. 472, 51 Am. Rep. 722).

The judgment is reversed and a new trial granted.

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

Ostrander, J.

(dissenting). In this case the court is called upon, as it so often is, to determine the meaning of a rather incoherent statute. Counsel have disagreed as to its meaning, and have in voluminous briefs and in oral argument elaborated their respective contentions. The trial judge, painstaking and careful, has reached a conclusion upon the subject precisely opposed to the one stated in the opinion of Mr. Justice Bird. There is a consideration to which counsel have given som® weight, one which seems to me to be of large importance, which supports the ruling of the trial court, in view of which the various provisions of the statute take on a meaning which otherwise, perhaps,, they would not have. The consideration to which I refer is this: That it is apparent from the history of the various acts which were finally consolidated and put together to make up Act No. 285 of the Public Acts of 1909 that the legislature had two distinct purposes in view. One of them was to provide, in the interest of the health of those employed in factories where emery wheels or belts were in general use, in whatever form, that the dust arising from such use should be removed from the factory, purifying the air, and protecting the head, throat, and lungs of the employés. The other was that in factories where emery wheels were not in general use, but where they were in use, and where grindstones were in use, exhaust fans should be provided for the purpose of carrying off dust, whenever the factory inspector thought it was necessary. The idea finds expression in section 16 of the act of 1909, the provisions of which were relied upon by the trial court, but are not mentioned in the opinion of my Brother Bird. The consolidation of separate acts brought these provisions into one act. I call attention to the language of the provisos at the end of section 37, and to the fact that they do not in terms qualify the matter of the section, but broadly provide for exemptions from the act and its provisions and conditions. It is matter of common knowledge that emery wheels and belts are used in metalworking and in wood-working factories for buffing and smoothing metal and for smoothing and polishing wood. In this line of work they are in general use, and they give off in use large quantities of particles of fine dust, which may be inhaled. It is matter of common knowledge that emery wheels and grindstones are employed in most establishments where tools are employed and have to be sharpened, and there may be and are factories where, though not in general use for that purpose, emery wheels and belts are in occasional use for polishing metals and wood. I do not think it was the intention of the legislature that hoods and exhaust fans should in all cases be installed in factories where emery wheels and grindstones are used simply to sharpen tools. I do think that the legislature wisely provided for the condition of occasional use, which would produce the same effect as general use, leaving it to the factory inspector to determine whether such use as was made demanded the installation of an exhaust fan to carry off the dust. I do not overlook the arguments which are made, based upon grammatical construction of the language the legislature employed. I am impressed that the consideration which I have stated makes plain language which otherwise would be ambiguous, and aids construction.

The defendant called the commissioner of labor of the State as a witness, who gave the following testimony:

“ I know what a buffing wheel is. A buffing wheel is in use continually from the time they start to work until the factory closes, and it is a polishing wheel that grinds fine dust. They polish on it any kind of metal. They make smooth polished — they first buff off the rough of the casting with a coarse wheel, and then trim it up smooth on a finer buffing wheel.
“Q. What kind of dust do they make with a buffing wheel, as to whether it is injurious to the lungs or dangerous to the eyes ?
“A. The dust from a buffing wheel is fine dust. From a grinding wheel it is coarser dust. We have to provide for a blower and suction pipe to take care of the dust from a buffing wheel.”

He was asked the following question:

“Q. I show you Exhibit 2 in this case, which is a photograph of certain emery wheels in the clutch room of the Industrial Works, where plaintiff was working when he was hurt, and plaintiff has testified that he was hurt while working upon one of those wheels. It appears in this case that those wheels were solid emery wheels, and were used to sharpen the cold chisels which the men used in chipping steel castings. The plaintiff testified that he would be about 55 minutes out of each hour engaged in chipping, and the other 5 minutes sharpening his tools on the wheel; that there was a keg of water standing by it, which appears in the photograph, into which he would dip his chisel as it became overheated. The wheel, from the testimony, was revolving, as I recall it, soma six or seven hundred revolutions a minute. I ask you what is the plan and practice of your department as to whether you have treated and applied sections 27 to 30, inclusive, of the factory act to wheels of that nature and description.”

The answer was excluded. And the following :

"Q. What do they grind such knives on in planing mills?”

The question being objected to, the court said:

“The statute specifically excepts planing mills. Is it the objéct to show that they used solid emery wheels ?”

To which counsel for defendant replied:

“That they used solid emery wheels, and used them on it and in exactly the same way they use them in this workshop, and the sparks fly in the same way, and the dangers are indentical.”

The testimony was excluded. In my opinion, the testimony of the commissioner of labor might very properly have been received. His opinion as to the proper construction .and as to the force and effect of the statute would not be controlling, but, these matters being in doubt, the practical construction of the act by the department charged with its enforcement would be, and ought to be, persuasive Of its proper construction. It became immaterial that this testimony was not received because the court reached a conclusion, along other lines, that plaintiff could not, in any event, recover — a conclusion based, however, upon an attempted interpretation and construction of the language employed by the legislature. Aided, as I think it is, by reasons which I have stated, the construction of the act adopted by the circuit judge is the correct one, and I adopt it as a part of this opinion and herewith set it out:

“On the conclusions that I have reached, I shall make a somewhat summary disposition of this case. At the close of the plaintiff’s testimony the defendant made a motion, as it is called in practice, to take the case from the jury on certain legal grounds.
“One of the grounds urged by the defendant was that the provisions of the act counted on in this case did not apply to a solid emery wheel. The argument was at some length upon that point. I heard the argument of counsel on both sides, and there were other questions argued, but at that time I inclined to the opinion that the statutory provisions sued upon did apply to solid emery wheels. As the case progressed, counsel handed up requests just before they argued the case to the jury, and I re-examined the question, and I have come to the conclusion and feel strongly convinced of the correctness of my opinion that the statutory provisions sued and relied upon by the plaintiff in this case do not apply to solid emery wheels.
“ I think, under the circumstances, it is fair to counsel and to you that I give a little explanation, in order that the grounds upon which my action is based may be understood. There is a statute in this State, passed at the last session of the legislature, being Act No. 285 of the Public Acts of 1909, entitled ‘An act to provide for the creation of a department of labor, to prescribe its powers and duties, to regulate the employment of labor, to make an appropriation for the maintenance of such department, and to prescribe penalties for the violation of this act.’ That act contained sections numbered 27 to 30, inclusive, and these sections contain the provisions which, it is contended, sustain plaintiff’s contention in this case. Section 27, which is the important provision, reads as follows:
“‘All persons, companies or corporations operating any factory or workshop, where wheels or emery belts of any description are in general use, either leather, leather-covered, felt, canvas, paper, cotton, or wheels or belts rolled or coated with emery or corundum, or cotton wheels used as buffs, shall provide the same with fans or blowers, or similar apparatus, which shall be placed in such a position or manner as to protect the person or persons using the same from the particles of dust produced and caused thereby, and to oarry the dust arising from or thrown off by such wheels or belts while in operation directly to the outside of the building or to some other receptacle placed so as to receive and confine such dust: Provided, that grinding machines upon which water is used at the point of grinding contact shall be exempt from the conditions of this act: Provided further, that this act shall not apply to solid emery wheels used in saw mills or planing mills or other wood-working establishments.’
“ Then section 28 provides, as to the same wheels, that there shall be applied a hood or hopper.
“Now, as I think, as a grammatical question, as a question of language álone, solid emery wheels are excluded from this definition of wheels. Reading the first part of section 27, which bears upon this question, where wheels or emery belts of any description are in general use, either leather, leather-covered, felt, canvas, paper, cotton, it appears to me, as a matter of grammatical construction and plain language, that the word ‘wheel’ is qualified by the words which follow, viz., ‘leather,’ ‘leather-covered,’ and ‘felt,’ etc., referring it to that class of wheels, instead of solid emery wheels. Now, this contention, if correct, is an effectual bar to the plaintiff’s recovery in this case, because the plaintiff’s recovery is based upon this provision of the statute, and the question all turns on whether or not solid emery wheels come within this provision. Looking at the language alone, it seems clear to me that the wheels referred to there exclude solid emery wheels.
“But further than that, a history of the sections in question seems to me to amount to a demonstration of the correctness of my opinion. I put it in that way, because I have reached a solid conviction of the correctness of my opinion. Of course, whether it is right or wrong is a question for the Supreme Court.
“ Now, this Act No. 285 is an act consisting of 55 sections, and brings together quite a number of different acts upon the subject of protection to laborers in their employment. It brings in the acts in respect to the protection of workmen and brings in other provisions, and it organizes a department of labor. As a legal point there may be some question as to whether or not the act is unconstitutional by reason of different provisions and purposes of the act not being included in the title. If that would be so, and I speak of that only in passing, that would still leave Act No. 202 of the Session Laws of 1899 in force, and that observation, if correct, would not change the ruling in this case.
“Now, looking at this act again, section 16 of the act says:
“ ‘Exhaust fans shall be provided for the purpose of carrying off dust from emery wheels and grindstones and dust-creating machinery, wherever deemed necessary by the factory inspector.’
“ That provision expressly mentions emery wheels, and lays down the rule under which emery wheels may be protected by the order of the factory inspector. Taking the law as a whole, it would seem that the specific provision which covers the point is the one that should govern, and comparing that section and the other section and the conviction is strengthened that solid emery wheels are not provided for in sections 27 to 30, read to you a few minutes ago.
“ But these sections 27 to 30 have a separate history, which I bring to your notice, and which I think is corroborative of the conclusion reached. We first start in the year 1887 with an act consisting of three sections, which is entitled ‘An act to provide for blowers in establishments where emery wheels or emery belts are used,’ and it provides that in all factories and workshops where either solid emery or other kinds of wheels — 5 solid emery wheels ’ are referred to, and ‘ said emery wheels ’ are referred to, showing that that statute provided and applied to solid emery wheels. That act was amended in 1893, or sections 1 and 2 were, and the words ‘ emery wheels ’ and ‘ solid emery wheels,’in connection with the other wheels, are described and referred to.
“Following this, in 1899, the legislature passed an act in which it provided for ‘ fans or blowers in all workshops or establishments where wheels composed partly of emery or buffing wheels or emery belts are used.’ The title of the act omits emery wheels, and when you come into the body of the act, which consists of six sections, we find ‘ solid emery wheels ’ are omitted. Then this act was intended to exclude emery wheels, and makes provisions for the use of fans or blowers in those cases where wheels composed partly of emery or buffing wheels or emery belts were used. Now, this act of 1899 is brought into the act of 1909, and sections 1, 2, 3, and 4 of the act of 1899 become sections 27, 28, 29, and 30 of the act of 1909.
“ Section 16 of the act of 1909 provided for the protection, whenever it may be deemed necessary by the factory inspector, of solid emery wheels, such as the wheel in this case. Sections 27 to 30 provide for the other class of wheels, burnishing wheels, and wheels or belts of leather, leather-covered, felt, canvas, paper, etc., are used. So that the conclusion reached is that in this case the wheel in question in this suit is a solid emery wheel, and it is governed in its use by provisions of section 16, under which dust protection was only to be provided when required by the commissioner of labor. The suit counts or claims on the other sections 27 to 30, which do not provide for the protection of solid emery wheels. As a matter of law, then, the plaintiff cannot recover in this case, based on the fact that the solid emery wheel in this case was not protected. There is nothing showing that the labor commissioner has acted upon it, and the provisions of sections 27 to 30 are claimed under. That leaves the plaintiff without any cause of action in court. The law disposed of the case, and leaves it so that it is my duty to instruct you to return a verdict for the defendant.”

McAlvay and Brooke, JJ., concurred with Ostrander, J.


source: Caselaw Access Project

author: Steers, C. J.

license: Public Domain

text:
    MINNIS v. NEWBRO-GALLOGLY CO.
    1. Landlord and Tenant — Lease—Words and Phrases.
    A lease is a conveyance by the owner of an estate to another of a portion of his interest for a term less than his own, for a valuable consideration, granting thereby to the lessee the possession, use, and enjoyment of the portion conveyed during the period stipulated.
    2. Same — Covenants—Statutes—Implied Covenants.
    A lease of the upper three stories of 8* building is within the provisions of 3 Comp. Laws, § 9959 (4 How. Stat. [2d Ed.] § 10821), abolishing implied covenants in conveyances, of real property; a covenant of the lessor to repair the premises after damage by fire originating in the part of the building not occupied under the lease, will not be implied.
    3. Same — Covenants.
    Accidental injury to premises by fire or other natural causes, which might interfere with the lessee’s enjoyment, does not constitute a breach of the covenant for quiet enjoyment.
    4. Same — Injunction—Restraining; Eviction.
    But equity will enjoin the landlord from evicting from such premises the lessee who has paid accrued rentals and tenders into court the sums falling due under the lease, and will restrain a threatened attempt to tear down and destroy the building leased, even if the bill does not aver that irreparable damage would result to complainant, since the threatened acts amount to a breach of the covenant for quiet enjoyment.
    Appeal from Wayne; Hally, J.
    Submitted November 11, 1912.
    (Docket No. 162.)
    Decided April 8, 1913.
    Bill by Robert P. Minnis against Newbro-Gallogly Company for an injunction against breach of a lease and other equitable relief. From an order sustaining a demurrer to the bill, complainant appeals.
    Reversed.
    McHugh, Gallagher t& McGann, for complainant.

      Henry G. Walters, for defendant.
   Steers, C. J.

This suit comes here on appeal taken from a decree of the Wayne county circuit court, in chancery, sustaining defendant’s demurrer to complainant’s bill, filed to obtain an injunction restraining defendant from attempting to evict complainant from certain premises and from tearing down or destroying the building thereon, to compel specific performance of a contract of leasing, and to recover damages for violating the same.

Defendant is the owner of a four-story building located at No. 132 Michigan avenue, in the city of Detroit, having purchased the same on the 2d day of June, 1911, from its previous owners, who had, on the 18th day of August, 1908, leased the second, third, and fourth stories of said building to one William H. Allen for the term of nine years, at a fixed monthly rental. This lease was assigned by said Allen, on May 1, 1909, to complainant, who took possession of and has since occupied the said three stories so leased.

On the 22d day of January, 1912, a fire originated on the ground floor of said building, which was not occupied by complainant nor included in his lease, and from there communicated to the portion of the building covered by the lease and occupied by him. It is charged in complainant’s bill that said fire “caused much and serious damage thereto and rendered the same untenantable;” that the rent was payable monthly, and on the next rent day after the fire defendant demanded its rent, which was paid by complainant, since which time complainant has always not only been ready and willing to pay his rent as it fell due, but has, in fact, regularly tendered and paid to defendant all sums falling due under said contract of lease, which have been accepted from complainant by defendant — complainant also offering to bring and to pay into court any sums which may fall due from time to time under the lease and deposit the same with the register of the court, to be paid defendant on performance of the contract of lease on its part. The bill states further:

“Thereafter demand was made upon said defendant by your orator that said premises be restored to a tenant-able condition. Such demand the said defendant has utterly refused and failed to comply with, and, on the contrary, said defendant has expressly declined soto do.”

That complainant also requested defendant to repair the damage caused by said fire and by the wear and tear upon the building, which was refused. That defendant thereupon threatened to declare complainant’s tenancy terminated, eject complainant from the premises, and tear down the same. The prayer for relief asks that defendant be compelled to make the repairs rendered necessary by said fire and by reasonable wear and tear of said building; that an injunction be issued restraining defendant from ejecting complainant and terminating his tenancy and from tearing down said building; and that it be decreed to pay complainant damages by reason of its failure to perform said contract of lease on its part.

Defendant demurred to complainant’s bill, on the grounds, briefly stated, that the lease, a copy of which is attached to and made a part of said bill, imposes no obligation on defendant to repair the premises, under the facts alleged in the bill; that under the facts alleged no obligation rested on defendant, either to repair said premises, or place them in tenantable condition; that the bill does not allege that complainant would suffer irreparable injury if defendant should carry out its alleged threat to tear down and destroy the property described in said lease; that under the allegations in the bill complainant is not entitled to relief by injunction as prayed; that complainant’s bill does not set forth facts which constitute a ground for equitable jurisdiction; that under the allegations complainant is not entitled to any damages in a court of equity, and has not stated facts in said bill which entitle him to any relief. This demurrer was sustained, upon the ground that section 8959, 3 Comp. Laws (4 How. ' Stat. [2d Ed.] § 10821), construed in the light of Lieberthal v. Montgomery, 121 Mich. 369 (80 N. W. 115), is controlling.

The lease in question extended to August, 1917, and, as already stated, only covered the second, third, and fourth stories of the building in question. The total rental was $7,300, payable $60 monthly in advance for the first four years, and $75 monthly in advance for the last five years. By its terms the lessee contracted, during the life of his lease—

“To keep said premises and every part thereof in as good repair and, at the expiration of the term, yield and deliver up the same in like condition as when taken, reasonable use and wear thereof and damage by the elements excepted.”

The instrument concluded with the usual covenant for peaceable and quiet enjoyment during the term for which it runs, in case the lessee complies with its requirements, but contains no express, covenants by the lessor to repair or rebuild, in case of partial or total destruction by fire or otherwise.

The questions involved in this contention are: First, Does this contract of lease, covering only the second, third, and fourth stories of a four-story building, operate to convey any interest in “real estate” as contemplated by the terms of said section 8959 ? Second, If it does not convey an interest in real estate, does such a contract by its terms obligate the lessor to repair damage occasioned by accidental fire not originating in the stories covered by it, and for which the lessee is in no way responsible ? Third, Does the bill of complaint in this case by its allegations make out a proper case for injunction ?

Section 8959, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 10821), provides:

“No covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not.”

Subdivision 9 of section 50, 1 Comp. Laws, relative to construction of statutes of this State, says:

“The word ‘land’ or ‘lands’ and the words ‘real estate ’ shall be construed to include lands, tenements and real estate, and all rights thereto and interests therein.”

The instrument under consideration, by express language, does “lease” described “premises” in consideration of “rents,” etc. It establishes the relation of landlord and tenant, and is a lease of premises. A lease is a conveyance by the owner of an estate to another of a portion of his interest therein for a term less than his own for a valuable consideration, granting thereby to the lessee the possession, use and enjoyment of the portion conveyed during the period stipulated.

It is the claim of the complainant that this lease is not within the statute prohibiting implied covenants, because it only covers the three upper stories of the building, would have terminated had those stories been totally destroyed by fire (Shawmut Nat. Bank v. City of Boston, 118 Mass. 125), and conveyed no interest in real estate. That an implied covenant to rebuild or repair in case of destruction or impairment by fire, or other unusual or extraordinary causes beyond those naturally inferable from the lessee’s agreement to keep in good repair, is manifest from the instrument, taken as a whole, and enforceable in a bill for specific performance.

We think the conclusion unavoidable that this lease conveyed to the lessee “rights ” and an interest in “tenements,” which the words “real estate” must be considered to include under the terms of the statute. Many definitions are given to “tenement.” It is a word of varied meaning. Counsel for complainant contends that it applies only to some interest in the land itself, and not to an interest in a portion of a building, quoting from Field v. Higgins, 35 Me. 339:

“Tenement, in its legal sense, means an estate in land, or some estate or interest connected with, pertaining to,, or growing out of the realty, of which the owner might be disseised.”

The b,ujlding of which complainant held a lease of a portion was connected with, pertained to, and was a part of, the real estate on which it stood. It was a tenement— property held by a tenant.

“This term, in its vulgar acceptation, is only applied to houses and other buildings, but in its original, proper and legal sense it signifies everything that may be holden, provided it be of a permanent nature, * * * is applicable not only to lands and other solid objects, but also to offices, rents, commons, advowsons, franchises, peerages, etc., * * * is a word of greater extent than‘land,5 including not only land, but rents, commons, and several other rights and interests issuing out of or concerning land.” Black’s Law Dictionary.

In Lieberthal v. Montgomery, supra, plaintiff had leased the south storeroom on the ground floor of a two-story building, to be occupied for a general store. A fire, without fault of either party, damaged the building, and the room occupied by plaintiff was rendered thereby untenantable. There was no covenant in the lease on the part of the landlord to repair. It was there said:

“ The general rule is well settled that when the tenant covenants to pay rent, and does not provide against liability in case of destruction of the premises by fire or other casualty, he is bound, in the absence of statutory provisions or covenant on the part of the landlord to rebuild, to pay the rent ” — citing numerous cases.

The bill does not charge in this case that the building was totally destroyed by fire, but that serious damage was done to it, rendering it untenantable. In Bowen v. Clemens, 161 Mich. 493 (126 N. W. 639, 137 Am. St. Rep. 521), it is held that accidental injury to premises by fire dr other natural causes which may seriously interfere with the lessee’s enjoyment of the same do not constitute a breach of covenant for quiet enjoyment.

There being no express covenant in this lease, on the part of defendant, to repair the premises, and the statute referred to precluding, in our opinion, any inquiry as to whether or not a proper construction of the instrument might imply one, it follows that no relief in damages for breach or for specific performance could be granted, under the allegations and averments in complainant’s bill.

Defendant’s counsel contend that no relief by injunction can be granted complainant, for the reasons that the bill does not specifically allege irreparable injury, nor state facts from which the same can be inferred, and equity has no jurisdiction to enjoin proceedings to eject a tenant from leased premises.

It is alleged in the bill that complainant has complied with the terms of the lease which he holds, that he has paid all rent demanded by defendant, and he tenders to the court such sum or sums as may henceforth fall due for rent under said lease. At the time of rendering the decree appealed from, the court found and stated: “The complainant has paid the rental due into court.” The bill charges in positive language that defendant has threatened to tear down and utterly destroy the building, eject complainant, and terminate the tenancy, and complainant fears such threats will be executed, unless restrained by the court. The demurrer, from its character as a pleading, necessarily admits these facts to be true.

The bill does not, in hcee verba, state irreparable injury would result. A bare assertion of the opinion or fears of complainant would add little to the pleading. If alleged specifically a court would not act on the same without a statement of facts to support them. Irreparable injury means that the injury would be a material one, in its nature serious and grievous, and such that it is extremely difficult or impossible to definitely ascertain the resulting damages and adequately make just reparation. Should defendant, as it is alleged it has threatened to do, tear down and utterly destroy the building, dispossess complainant, and eject him from the premises, such acts, even with those unlearned in the law, would naturally give rise to an impression, approximating a conviction, that defendant’s covenant of quiet and peaceable enjoyment had been violated to the material injury of complainant.

Under the facts stated, we think such an injury, continuing and spread over the life of the lease as it must be, is so serious and grievous in its nature, so difficult of ascertaining justly the resulting damages and adequately making reparation therefor, as to come within the purview of irreparable injury and confer upon the court of chancery jurisdiction to enjoin the same.

While counsel’s contention that equity has no jurisdiction to begin proceedings to eject a tenant from leased premises is supported by authority as a general proposition applicable to the usual remedies provided for landlords to collect rent and recover possession of premises in case of nonpayment or other alleged violations of the tenancy, wherein the nature of the proceedings is such that adequate opportunity is open to the tenant to make defense, yet, where fraud, mistake, irreparable or continuing injury, or other special conditions, are alleged, wherein the proceedings at law, on account of their universality, or for other equitable reasons, are deficient to give prompt and full relief, equity may and does take jurisdiction and grant relief.

We think complainant has stated such a case in his bill as, if sustained at the hearing, entitles him to equitable relief by injunction. In this view of the case it follows that the demurrer to complainant’s bill, as an entirety, must be overruled.

The decree.of the circuit court sustaining said demurrer and dismissing complainant’s bill is reversed, with costs to complainant.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


text:
    PEARLL v. CITY OF BAY CITY.
    1. Municipal Corporations — Claims—Notice.
    The charter provision of the city of Bay City (section 204) requiring claims for injuries sustained by reason of negligence, of the municipality to be presented within 30 days after the accident by a notice and affidavit of the claimant, setting up all the facts, names and addresses of witnesses, etc., was substantially complied with by a claimant who filed an affidavit and statement of claim in distinct papers, referring to each other and attached together, the facts as to the nature and extent of plaintiff’s injuries appearing in the statement annexed to the affidavit.

    2. Same — Negligence.
    The court favors a liberal construction of statutes requiring notice of claims to be presented to municipal corporations, and a substantial compliance with this requirement is sufficient.
    3. Same — Place oe Accident — Street—Names.
    In giving the name of the street on which plaintiff’s injury occurred, plaintiff’s notice was sufficient and proper in designating it by the-name which was generally employed in the neighborhood and by the local authorities, or given in the directory of the city, even though it was sometimes called by another name and had been previously or originally known by a third one.
    4. Same — Evidence—Bay City Charter.
    Charter provisions requiring plaintiff to state in the notice the names of her witnesses were not so strict as to exclude the testimony of witnesses not known at the time of presenting the notice; the court had a discretionary authority in the premises to admit the evidence of witnesses afterwards discovered.
    5. Trial — Argument.
    In a personal injury case against a city for negligence as to sidewalks, it was not reversible error on the argument for plaintiff’s counsel to refer to the effects of her injury including the loss of a child with which she was pregnant; on objection being made, plaintiff’s attorney disclaiming any damages for the loss of the infant.
    6. Same — Contributory Negligence.
    Plaintiff’s testimony that she was going along the walk not thinking of anything, having no knowledge or notice of the existence of any defect, did not bar her recovery on the ground of contributory negligence when the accident took, place at night and the defect was not obvious.

    7. Same — Damages—Medical Care — Evidence.
    Testimony of a physician that he charged plaintiff, a married woman, “probably §50 or §80,” but could not give the amount of his bill, supported neither by any books of account, nor by testimony of plaintiff that she employed the physician, was insufficient to sustain a verdict for that amount for medical services: and plaintiff is, for the error in admitting the testimony, required to remit §60 or submit to a new trial.
    Error to Bay; Collins, J.
    Submitted November 12, 1912.
    (Docket No. 63.)
    Decided April 8, 1913.
    Case by Alberta P. Pearll against the city of Bay City for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reduced and affirmed.

      Edward E. Anneke (3. G. Houghton, of counsel), for appellant.

      Hall & De Foe, for appellee.

      On the question of notice of olaim and cause of injury as condition of municipal liability for defect in highway, generally, see note in 20 L. R._ A. ( N. S.) 757. And as to the validity of requirement of notice of injury as a condition of municipal liability, see note in 36 L. S. A. (N. S.) 1136.

       The authorities on the question of contributory negligence as affecting liability of municipal corporations for defects and obstructions in streets are gathered in an elaborate note in 31 L. R. A. (N. S.) 614.

   Steers, C. J.

This action was brought by plaintiff, a young married woman, to recover damages for personal injuries sustained in falling upon a defective sidewalk in a street of the defendant municipality. . The case came to trial in the circuit court of Bay county on January 14, 1910, before a jury, resulting in a verdict and judgment for plaintiff for the sum of $800. A motion by defendant for a new trial was denied, and after certain delays and rejudgments, with interest added, which are unimportant here, the case was regularly removed to this court for review upon a writ of error sued out by defendant.

The principal questions raised by the numerous assignments of error and now urged as ground for reversal are: Sufficiency of the notice and claim for damages served by plaintiff on the city council as a prerequisite to bringing suit, as required by the city charter, which involves also the admissibility of certain testimony allowed by the court against defendant’s objections; whether the sufficiency of such notice was a question for the jury or for the court; variance between the proofs and the allegations in plaintiff’s notice and declaration; permitting certain witnesses, whose names and addresses were not given in the preliminary notice to the city, to testify at the trial; lack of due care and contributory negligence on the part of plaintiff; certain instructions by the court to the jury as to the measure of damages; refusal of the court to give certain of defendant’s requests relative to conditions precedent to liability, and certain alleged prejudicial argument to the jury on the part of plaintiff’s counsel.

The testimony is practically undisputed that plaintiff, a married woman about 21 years of age, residing in Bay City, going from her home on an errand to a nearby store, on April 21, 1909, at about 7:45 in the evening, while walking westerly on the wooden sidewalk along the north side of a certain street, situated between Thirty-Ninth and Forty-First streets, tripped and fell heavily, sustaining injuries, and suffered a miscarriage three days later. On May 10, 1909, she, through her attorney, filed with the common council of Bay City her statement of claim for damages in the sum of #5,050, with her affidavit attached, in which is stated, amongst other things, the time, which is not in question, and alleging that the injuries for which claim is made were—

“Received through being tripped, thrown, and falling on a rotten, broken down, and defective sidewalk situate on the north side of Fortieth street about 141 feet east of the outside walk, on the east side of Ingraham street, in ■ said city.”

The names and addresses of nine witnesses, besides herself, are given. The affidavit also states that claimant is—

“Still under the care of her physicians and surgeons named above, and that she is unable to state what the amount of loss and damage will be in the future more definitely than contained in the account hereto annexed.”

In her statement of damages attached, she alleges that they arose through injuries received from being tripped and falling on a defective sidewalk—

“Resulting in a miscarriage from pregnancy, bruises and injuries to the left knee and hip, and concussion of the spine, and injury to the back and head.”

Section 304 of the city charter of defendant provides, amongst other things, that no action for injuries arising from negligence of the city can be maintained against it unless the party injured shall, within 30 days after the accident, serve on the common council a written notice of claims, setting forth substantially the time when, and place where, the injury occurred, and the extent of the injury so far as then known; also stating, in an affidavit made by the claimant, all facts relating to such personal injury, the names and addresses of all claimant’s witnesses, the name of the attending physician, amount of money expended for medical attendance, loss of time and value thereof, and fully describing the nature and extent of the injuries received.

It is contended on behalf of defendant that the notice in this case gave an incorrect and misleading statement as to the place of the accident, the evidence showing it to have been on McGraw avenue and not Fortieth street, as given, and did not sufficiently state the nature and effect of claimant’s injuries in the affidavit, as required by the charter. The latter contention is based chiefly on the claim that the statute requires such facts to be set forth fully in the affidavit, and the only description of the alleged injuries, showing their nature and extent, appears in the statement of damages attached to the affidavit. The affidavit and statement of claim were attached together and each referred to the other. They were in effect a single instrument, together constituted the completed notice, and should be read and construed together. The purpose of the charter provision is to furnish the municipal authorities promptly with notice that a claim' for damages is made, and advise them of the time, place, nature, and result of the alleged accident, and a sufficient statement of the main facts, together with names of witnesses, to direct them to the sources of information that they conveniently may make an investigation. It is said our courts are inclined to favor a liberal construction of these requirements so long as they tend in that direction and are not misleading. In Ridgeway v. City of Escanaba, 154 Mich. 68 (117 N. W. 550), this court said:

“We have been inclined to favor a liberal construction of statutes requiring notice of claims, and have not denied relief when by any reasonable interpretation the notice could be said to be in substantial compliance with the statute, or where the defect had been waived by the council.”

See, also, Brown v. City of Owosso, 126 Mich. 91 (85 N. W. 256); Oesterreich v. City of Detroit, 137 Mich. 415 (100 N. W. 593). We regard the contention of defendant in this particular as demanding a more technical construction than is requisite or reasonable under the authorities in this State, and think the notice, taken as a whole, sufficiently complied with the requirements in informing defendant as to the extent and nature of complainant’s injuries, so far as then known, and was in substantial harmony wjth the subsequent testimony in that respect.

Plaintiff testified in detail as to the accident and its results. Of the accident she testifies:

“There was a stringer loose and broken, and in stepping on that my foot slipped down and the other end of the board came up and caught my foot and threw me.”

Of the fall and its consequences she testified that she fell heavily, striking the edge of the walk; that the end of her spine and arm struck the hardest; that her arm, back, and hips were hurt and bruised; that she could not rise and lay there for a time calling for help; that she was taken up by others, and carried to a nearby house and later to her home, where a miscarriage followed, and she was confined to her house until June. There was abundant testimony as to the place where she fell, the defective condition of the walk, and the extent of her injuries and suffering for the jury to consider, much of it undisputed.

The defendant’s contention that the notice is defective in failing properly to designate the place of the accident is based on the claim that the street where plaintiff’s testimony locates it was wrongly named in the notice, being stated as Fortieth street; the correct name being McGraw avenue. Defendant introduced testimony that, after receiving notice of plaintiff’s claim, the city attorney and street commissioner went to examine the place of the alleged accident and then learned that it occurred on Mc-Graw avenue, and that the street is so designated on certain maps of that part of the city, made years ago, and in former city directories. The street commissioner testified that he had been connected with the street department 13 or 14 years and knew the street, the fifth south of Cass, “commonly called McGraw avenue or Fortieth street.” It was also shown to have been called the Bullock road. The evidence indicates that it has at times been known by each of those three names, but is abundant and convincing that at the time of the accident it was generally known and recognized as Fortieth street, both officially and privately. The city directory of 1909 so designated it. It was so named on the signs, at corners where other streets intersected it, erected and maintained by the city. The nearest corner to where the accident occurred reads “Fortieth street” and “ Ingraham street.” Mr. Jersey, a witness whose attention was attracted to the accident by hearing plaintiff calling, and looking out of his window saw her lying where she had fallen, and who first carried her to his own house, testified that he then lived at 404 Fortieth street; that—

“This street where the accident occurred, and where I described the sidewalk, I have heard some of the old-timers' say they used to call it McGraw avenue there. * * * People nowadays speak of it, when speaking of it do not call it that. * * * The city has two signs on the corner post; that is Fortieth street.”

Numerous witnesses living on the street testified that it was Fortieth street, so known and named and their homes so numbered; their mail addressed to their proper numbers on Fortieth street being regularly delivered to them. An employe of the city, testifying to visiting the sidewalk in question to “block it up,” apparently unconscious of the import of his designation, called it “Fortieth street.”

We regard the evidence overwhelming and convincing that the name of the street given in the notice was that which it generally bore, by which it was generally known, and by which it had been marked and recognized by the municipal authorities, and that it was properly designated in the notice. Had it been otherwise named, as Bullock road or McGraw avenue, defendant could have contended with much more force that the notice was obscure and insufficient. The court, in view of the testimony offered by the defendant as to the street being otherwise named, left to the jury to determine, as a question of fact, the correctness and sufficiency of the notice in that particular. His so doing is alleged as error; it being urged that it was for the court to construe and determine the legal effect of the notice and not for the jury. We find that the court did construe the instrument and instructed the jury what its legal effect would be if certain facts were or were not shown. But whether it was a question for the court or for the jury becomes unimportant in this case, for the jury decided it as the court should have decided it, if we concede the duty devolved on him.

One of the requirements of the sworn notice which the city charter provides must be served on the common council within 30 days after the accident is that “such affidavit shall also state the names and addresses of all claimant’s witnesses.” Three witnesses whose names were not stated in plaintiff’s affidavit were permitted, against objection, to be sworn and testify. This is assigned as error. Plaintiff made a showing under oath that, at the time of serving her notice upon the city, the nine witnesses, whose names were given, were the only ones known to her; that the three witnesses had been away from the city and she learned of them, as witnesses, “just recently.” It appeared from the testimony of those witnesses that they resided on the street of the accident, which they called Fortieth street, at the time it occurred, but subsequently removed from the city. Their testimony was cumulative, relating to the name of the street and condition of the walk where plaintiff fell. Counsel for defendant urge that the provision as to giving names of the witnesses is a plain, valid, statutory requirement incident to plaintiff’s right of action; that advising the city who her witnesses are is important information to which the city is entitled, and to allow witnesses whose names are not given to be sworn is a clear violation of the statute, and error; and, even if it might seem the provision is unreasonable, that is a question for the legislature and not for the court— citing Moulter v. City of Grand Rapids, 155 Mich. 165 (118 N. W. 919).

To require the names of all witnesses then known to plaintiff, or those representing her, to be given, seems a fair, practical, and reasonable provision. If it is distinctly manifest the legislature intended that no witnesses subsequently ascertained could testify at the trial, no matter when ascertained or how important their testimony might be, the courts are not at liberty to ignore the provision, however unreasonable it may appear. In criminal prosecufions, involving felonious charges, and in which,, as a rule, the statutory requirements are more strictly construed than in civil cases, the known names of the people’s witnesses are, by statute, required to be indorsed on the information or indictment, when filed, to advise the accused of who will be produced to testify against him. This is held to be an important and substantial right of the prisoner; but it has been construed as allowing the names of additional witnesses, subsequently ascertained, to be indorsed on a proper showing; further time being given to the accused to prepare his defense, if he so requests, and makes a reasonable showing that he is in fairness entitled to it. It can well be questioned if a stricter construction should be put upon a somewhat similar provision in a civil action. The city charter, while it requires the names of the witnesses to be given in the notice, does not declare, unless by implication, that no witnesses shall be sworn upon the trial in plaintiff’s behalf unless their names are given. In view of other provisions in the same section, we do not think such a construction is imperative as applied to all conditions. It is required that the claimant shall, in such notice, frankly tell, in a general way, all material things then known, but does not preclude him or her from using subsequently acquired information. It requires the claimant to—

“Set forth substantially the time when, and the place where, such accident or injury occurred, and the manner in which it occurred, and the extent of such injury, as far as the same has become known.”

There is no question of bad faith here nor claim that plaintiff did not disclose the names of all her witnesses, so far as the same had become known at the time of filing her claim, which she was required to do within 30 days after the accident. We think it within the discretion of the trial court, on a proper showing, to allow subsequently ascertained witnesses, whose names are not stated in the notice, to testify, giving defendant, if requested, reasonable further time to prepare to meet their testimony, if taken by surprise. We find no abuse of such discretion in this case.

Counsel for plaintiff, in his argument to the jury, said:

“ But the fact remains, gentlemen of the jury, that the evidence in this case was undisputed, that Mrs. Pear 11, since that time, has suffered the effects of this injury to her nervous system, headache, nervous disability, and the loss of her child.”

To this defendant’s counsel excepted as follows:

“ I take exception to that remark about the loss of her child.”

Following which plaintiff’s counsel said:

“ I do not claim, gentlemen of the jury, that Mrs. Pearll is entitled to any damage because she lost that.”

It was competent to show, under the pleadings, the nature and result of her injuries and the miscarriage as bearing on her physical suffering; and, with the explanation given by counsel to the jury in that connection, there was no reversible error in the argument.

It is claimed plaintiff is shown to have been guilty of contributory negligence by the following question and answer:

“ Q. Did you exercise any care in going along the sidewalk that night F
“Ac Well, no, I was just going along, not thinking of anything; was going to the store. I did not have any notice or knowledge that the walk was out of repair.”

We do not think the answer, taken in connection with the facts and circumstances proven, shows negligence. It was at night.; she did not know of the defect in the walk; it was not noticeable to any one passing along in the usual manner. She was on a public walk, which she had a right to presume was reasonably safe to walk along, with no knowledge of the necessity for unusual precaution, and frankly said that she was just going along to the store not thinking of anything. The court fully and correctly charged the jury on the question of contributory negligence; and, if there was any evidence of plaintiff’s negligence, it was a question of fact for the jury.

While instructing the jury as to the measure of damages, the court said:

“Should you find the plaintiff entitled to recover, she will be entitled to recover as damages such amount as is shown by the evidence to have been expended by her for medical attendance, care, and nursing either charged to her or which has been paid by her. A bill charged to her husband would not come within that rule. Before she can recover for that, she must herself be liable for it, or have paid for it.”

Error is assigned on this portion of the charge on the ground that plaintiff was a married woman, and there is no evidence in the case that she paid any sum for medical attendance, etc., or that she had authorized any charge to be made against her personally for such services. This exception to the charge is well founded. The record fails to disclose that plaintiff employed the physicians or agreed to pay them, or that she paid or incurred any expenses for care and nursing. Her testimony is to the effect that she did not. In answer to the inquiry of her counsel on that subject, she denied any knowledge, stating that she did not know whether the doctors charged their bills to her or her husband. One of the physicians testified that he charged his bill to her husband. The only testimony claimed to justify the instruction is that of the other physician, Dr. Swantek, who, in reply to the inquiry by plaintiff’s counsel, “ To whom did you charge your services as a physician in this case ?” answered, against objections, “To Mrs. Julian Pearll.” He did not produce his books, stated he did not have the figures with him, and could not give the amount of his bill; that it was “probably $50 or $60”; that he would get the figures and give the information later, but failed to do so; and nothing further was shown on the subject. This falls far short of making a prima facie case that plaintiff employed him and agreed to pay him. But his randon statement of a bill against her for “probably $50 or $60 ” was before the jury, against objection, by a ruling of the court, with an instruction, in effect, that, if charged to her, she could recover it. It can well be contended that a part or all of it is included in the verdict. We find no other reversible error in the case.

The most that the jury could possibly have included in their verdict, under any theory, for medical attendance would be $60. This can be remitted by plaintiff. Gilson v. City of Cadillac, 134 Mich. 189 (95 N. W. 1084).

In case plaintiff remits this amount within 30 days the ease will stand affirmed as to the balance; otherwise the judgment is reversed, and a new trial granted.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Mooee, J.

text:
    GOOSEN v. PACKARD MOTOR CAR CO.
    1. Negligence — Streets—Evidence—Automobiles.
    Plaintiff’s testimony that he fell from a bicycle which he was
    . riding, about 100 feet in advance of defendant’s motor truck, that he signaled by waving his arm, but the driver did not observe him. and ran over plaintiff as he lay helpless on the pavement, although contradicted by defendant’s witnesses, was sufficient to require the submission of the case to the Jury.
    2. Evidence — Negligence—Motor Vehicles.
    The report made by a patrolman concerning a personal injury accident which he did not witness, being incompetent, was correctly excluded.

      Error to Wayne; Codd, J.
    Submitted November 30, 1913.
    (Docket No. 101.)
    Decided April 8, 1913.
    Case by James Goosen by his next friend against the Packard Motor Car Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Keena, Lightner,, Oxtoby & Oxtoby, for appellant.

      Cullen, Casgrain & Hanley, for appellee.
   Mooee, J.

This is an action to recover damages for personal inj uries. The plaintiff, at the time of his injury, a lad of 13 years of age, was riding a bicycle in the easterly direction upon Jefferson avenue, in the city of Detroit. He was accompanied by a companion some three years older than himself. When near McDougall avenue, the boys overtook a motor truck belonging to defendant. The truck likewise was proceeding easterly upon Jefferson avenue. It was a heavy service truck weighing about three tons, and capable of carrying a load of equal weight, and was running at a speed of from 8 to 10 miles per hour. It was in charge of one Heberling, an experienced driver, who was accompanied by one Long. Both these men were employes of defendant, and were at the time of the accident returning to the Packard factory with a load of freight. Having overtaken-the truck, the plaintiff and his companion determined to pass it. In doing this plaintiff turned out to the left, while his companion turned out to the right. After passing the truck, the plaintiff in some manner fell in front of the truck, and the left front wheel passed over his legs causing very serious and permanent injuries. The truck, which had a wheel base of 135 inches, was stopped by Heberling before the rear wheel passed over the plaintiff. The accident occurred upon a wide street paved with asphalt, at about 8:30 o’clock in the morning. It had been raining prior to the time of the accident and the pavement was still wet. Plaintiff was an experienced rider of a bicycle. In running over plaintiff the truck did not swerve from the straight course upon which it was proceeding. These facts are all undisputed upon the record.

The plaintiff alone was sworn in his own behalf as to the manner in which the accident occurred. He testified that in passing the truck he traveled between the southerly street car track and the truck, about three feet south of the car track; that while going ahead upon a straight course and when approximately 100 feet ahead of the truck his wheel slipped and he fell, his feet being toward the truck and his head toward the street car track. He further testified:

l‘Q. Did you become entangled with the bicycle?
“A. Yes, my leg got tangled in the wheel; there was a little cut there.
“Q. What did yon see the motor truck do at the time ?
“A. I was looking towards it and saw it coming when the fellow on the left side had his head down like that and the other fellow driving was looking towards the river.
“Q. Did you try to get out of the way?
“A. Yes, but I could not, though.
“Q. Why not?
“A. Because my leg hurt and I was caught by the wheel and could not.
“Q. Were you right in line with the truck?
“A. Yes.
“Q. Did the truck turn around away from you or stop?
“A. No, sir.
ftQ. What happened?
UA. It went right over me.
“Q. Did you do anything after it run over you?
“A. No, sir.”

Upon cross-examination:

“Q. Do you recollect that September, this last September, the 21st of September in room No. 1, Judge Mandell tried this case ?
“A. Yes.
“Q. The trial was there then ?
“A. Yes.
“Q. And Charlie was there ?
“A. Yes.
“Q. And you were there ?
"A. Yes.
“Q. And you were both in the room when the other spoke ?
“A. Yes.
Jimmie, do you recollect that at that time — don’t look at Mr. Hanley now — don’t you recollect at that time, Jimmie, that you told us that after you got ahead of the truck you started to go into the curb, and when you were on a slant that your bicycle slipped ?
''A. Maybe I did, I forget now.
“Q. Is that true?
.“A. I cannot say.
“Q. You ask whether or not, whether that statement is true, that you turned into the curb ?
“A. No, sir; it was not true; I was not turning in; I was going straight.
“Q. You now say that you were going straight ahead from the time you were alongside of the truck and that you did not turn either way ?
UA. Yes.
“Q. That is what it is now ?
“A. Yes, sir.
“Q. And that is true ?
“A. Yes.
“ Q. But back in Judge Mandell’s room you told us that you had turned to go into the curb to join Charlie Schneider ?
“A. I don’t know.
tcQ. Now, of course, at that time, Jimmie, Mr. Hanley asked you questions first just as he did here ?
“A. Yes.
“Q. Is that true — I call your attention to his transcript, and I ask you whether Mr. Hanley did not ask you this:
Q. After you got ahead of the truck what happened to you and your bicycle ? A. I was about 100 feet ahead of the truck, over 100 feet and my wheel slid when I was slanting across to the curb.’
“A. Yes, I guess so; I don’t know if I did or not.
“Q. Don’t you know that is it ?
“A. I says that — let us see it. Yes, that is it there.
“Q. Now, afterwards, after Mr. Hanley was through, did I ask you some questions ?
“A. Yes.
“Q. I. ask you, Jimmie, whether at the time, when I was asking you questions before Judge Mandell, if I did not ask you, I asked you about the truck keeping straight ahead ?
“A. Yes.
“Q. The truck kept straight ahead ?
“A. Yes.
“ Q. Did I ask you this question: ‘Q. If that is so, that the truck kept straight ahead and you kept straight ahead and you passed the truck, don’t you know that the truck would not hit you ? A. When I turned in a slanting-wise towards the curb, when I got ahead.’ Did you answer like that ?
“A. I think so.
eQ. After you got ahead you turned in slanting ? A. Yes, sir.’
“A. I don’t know.
“Q. Didn’t I ask you then: 6What did you turn in for? A. I was going towards the curb, going slow and waiting for Buddie.’ Is not that right, is that what you said there ?
“A. I can’t remember. * * *
Now at all events after you had got some 100 feet ahead of the truck, your bicycle, or the bicycle gave way, or did you fall over ?
“A. I don’t know how it was; it went over and I fell down, and it fell on top of me.
“Q. Do you recollect whether the wheel broke before you fell ?
“A. No, sir; the wheel did not break before I fell.
“Q. Did the tire burst before you fell ?
“A. No, sir.
“Q. Well, then, you just tumbled off?
“A. I don’t know if I did or not.
eeQ. You tumbled off towards the curb ?
“A. Yes, that is the way I fell.
“Q. Your head towards the railroad track, towards the track ?
“A. Yes, towards the track, and my feet towards the curb, slanting like this.
“Q. Since you were last on the stand, you did not think of anything that made you fall ?
“A. No, sir.
“Q. Didn’t it strike you that your first story in Judge Mandell’s room that you started to cross towards the curb is the best explanation you can have of it ? Is that right ?
“A. Yes.
“Q. You now say you were not cutting across ?
“A. No, sir.
“Q. Did you see anybody around there at the time ?
“A. All I seen was the wagon in front, way up in front
on the same side, the same side I was on away up in front.
“Q. Further out ?
“A. Yes, going the same way we was.
“Q. That was further up than you ?
“A. Yes.
. “Q. Between you and the truck with the men on it, there was not anything ?
“A. No, sir.
“Q. It was bright daylight ?
“A. Yes. Nothing on the road that I could see.
“Q. Nothing on the road ?
“A. No, sir.
“Q. Now, after you fell over towards the car track, where did you hit ?
“A. I hit on my head.
“Q. The back of your head ?
“A. Yes.
“Q. Did it hit hard ?
“A. Yes.
“Q. Did you have any injuries on your head ?
“A. Yes.
“Q. Is that right?
“A. Yes.
e‘Q. "Well, the wheel did not run over your head ?
“A. No, sir.
t(Q. The wheel ran over your legs ?
“A. Yes.
“Q. The injury you had to your head came from your hitting the asphalt ?
“A. Yes.
“Q. You hit the paving when you fell so hard that you had cuts on your head for spme time afterwards, didn’t you?
“A. Only one.
“O. You told the jury that you had pain in your head ? “A. Yes.
“Q. Did you say you had pain in your eyes ?
“A. Yes. * * *
“Q. We agree that the truck did not run over your head ?
“A. Yes.
“Q. Now, then, how long were you, after you fell that way, Jimmie, were you dazed before you moved ?
“A. I was not dazed. I was stunned, but I could see everything. It hurt my head, but I was not dazed or unconscious. I could see, but it hurt.
(lQ. Why didn’t you get up out of the way ?
“A. I could not; I was tangled in the wheel or the pedal; it caught me in the leg right here.
“Q. Where were you tangled in the wheel ?
“A. Underneath it.
“Q. Why didn’t you climb out ?
“A. My leg was in the wheel and I could not pull it out. My head hurt me and my leg too.
“Q. That is the reason you did not get out ?
“A. Yes, the wheel was lying right on me.
“Q. But the wheel was light; you had fallen towards the north. How long was it before you were able to look around ?
“A. That is the way I fell, was looking that way when I fell, my face was that way. My face was towards the automobile.
“Q. How long before you looked around ?
“A. Right away I could see it coming.
“Q. What did you first see when you looked ?
“A. The automobile.
“Q. That is, this motor car?
"A. Yes.
“Q. What did you do then ?
“A. I tried to pull myself out of the way. I was waving like that, but the fellow didn’t pay any attention to me.
“Q. You were waving your hand like that ?
“A. Yes.
“Q. That is, at the time they were — you say they were a hundred away ?
“A. I can’t say whether it was 100 then or not.
Q. Well, that is the distance you were speaking about ?
“A. I can’t say; it was coming up more and more all the time.
(SQ. Did you keep on until they run over you waving your hand?
“A. No, sir; I kept waving, and I tried to holler; I hollered as loud as I could. I saw Charlie Schneider come up alongside of the car, I went like that, and saw him facing towards the other fellow.
“Q. What did Charlie do ?
“2. He was talking to the other fellow, waving his hand to the other fellow.
“Q. He was on his bicycle ?
“A. Yes.
“Q. Don’t you remember before Judge Mandell that you said Charlie jumped off ?
“A. He did afterwards.
“Q. Before he waved ?
“A. No, sir.
“Q. When you were waving your hand, don’t you remember that ?
“A. No, sir.
“Q. Did the motor car keep coming straight on right along until it ran over you ?
“A. Yes.
“Q. You say that you tried to get out of the way but could not ?
,(A. Yes.
“Q. The only reason you could not was your bicycle had fallen on top of you and had hit your head and hurt your leg?
“A. Yes.
“Q. You would not know anything that happened after you were run over ?
“A. No, sir; I don’t remember.
“Q. Do you say you did not testify in the other trial that Charles Schneider got off of his bicycle 10 feet in front of the motor truck and waved to the man ?
“A. I said I did not remember.
“ Q. You heard Charlie Schneider talk there, is not that what he said ?
“A. I don’t remember what he said.”

We have quoted thus at large from plaintiff’s testimony because it is claimed it is contradictory and bears upon the duty of the trial judge to grant a new trial. Two juries have failed to agree upon a verdict in his favor, but in this trial he recovered. As against the plaintiff’s evidence there stands the evidence of Heberling, Long, and Blauvelt. Heberling testified that he was looking straight ahead and driving at about 8 or 9 miles per hour, and that he did not see plaintiff until he was under the wheel; indeed, that he did not see him then, but knew something was under the wheel, and that he made an emergency stop. Long testified that he saw plaintiff come up from behind, and:

“He tried to get ahead of the motor car, and, as he tried to turn on his bicycle, his bicycle skidded and threw him under the front wheel.”

Blauvelt testified:

“He appeared to be going alongside the car like that; he put his hand like that and kinder went under the car.”

All three of these witnesses testify positively that plaintiff at no time prior to the accident was lying upon the pavement 100 feet in front of the truck.

A motion for a new trial was made upon the ground (among others) that the verdict was against the weight of the evidence. In disposing of the motion for a new trial the court said, among other things:

“ This is the third trial of this cause in this circuit, and presumably all the testimony which» counsel desired to offer has been presented to the jury for consideration. From this testimony the jury found, as a matter of fact, under the instructions as given by the court, that the defendant company was liable for the injury. This finding I am not disposed to interfere with. The question is now presented in the record for a final determination as to defendant’s liability.”

This case was carefully tried. The claimed discrepancies in the testimony of the plaintiff given on the several trials presented questions for argument to the jury. There was a very sharp conflict in the testimony presenting a case peculiarly for the jury. We do not think it can be said that the court erred in declining to grant a new trial.

As to defendant’s assignment of error relative to the exclusion of a report made by a patrolman who was sent by his superior officer to the scene of the accident after it had happened, the report was properly excluded. Sterling v. City of Detroit, 134 Mich. 22 (95 N. W. 986).

We do not discuss the other errors assigned, but content ourselves with saying we do not deem them well taken.

Judgment is affirmed.

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