author: Moore, J.

text:
    WITHEY v. BLOEM.
    1. Constitutional Law — Freedom of Contract — Personal Liberty-Regulating Employment of Women — Polios Power.
    Act No. 285, Pub. Acts 1909, providing that no female shall be employed in any factory, mill, store, shop, or warehouse more than 10 hours in any day, or 54 hours a week, is a valid exercise of the police power, and does not violate the fourteenth amendment of the Constitution of the United States, by improperly restricting the right to contract.

    2. Same — Class Legislation — Female Labor.
    That women, employed in establishments where perishable products are preserved, are excepted from the operation of the statute, does not invalidate it, as class legislation; the exception being reasonable and founded on a substantial distinction.
    Appeal from Barry; Smith, J.
    Submitted June 27, 1910.
    ( Docket No. 94.)
    Decided December 7, 1910.
    Bill by Hattie Withey and others against Isaac Bloem, deputy factory inspector, and Richard H. Fletcher, commissioner of labor, to enjoin the enforcement of Act No. 285, Pub. Acts 1909. Prom a decree for complainants, defendants appeal.
    Reversed.
    Beaumont, Smith & Harris and Colgrove & Potter, for complainants.

      Franz G. Kuhn, Attorney General, and Charles W. ■McGill, Assistant Attorney General, for defendants.

       As to limitation of hours of labor by statute or ordinance, see note to People v. Orange County Road Construction Co. (N. Y.), 65 L. R. A. 33; and note to People v. Williams (N. Y.), 12 L. R. A. (N. S.) 1130.

   Moore, J.

The International Seal & Lock Company is a corporation engaged in manufacturing large quantities of seals which are used by railroad companies and shippers of freight for the purpose of locking the doors of freight cars. Aben E. Johnson is an assistant to the general manager of the factory of the said corporation, and the other complainants are women employed by said corporation in its factory. The legislature of 1909 passed an act 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.” Act No. 285, Pub. Acts 1909. •

Section 9 of said act provides, in part, that:

“No female shall be employed in any factory, mill, warehouse, workshop, clothing, dressmaking or millinery establishment, or any place where the manufacture of any kind of goods is carried on, or where any goods are prepared for manufacturing, or in any laundry, store, shop or any other mercantile establishment, for a period longer than an average of nine hours in a day or fifty-four hours in any week nor more than ten hours in any one day: Provided, however, That the provisions of this section in relation to the hours of employment shall not apply to nor affect any person engaged in. preserving perishable goods in fruit and vegetable canning establishments.”

The complainants filed a bill of complaint in chancery asking to have the provisions of section 9 and section 54 of said act held unconstitutional. The defendants filed a demurrer to the bill of complaint. The demurrer was overruled by the trial court for the reason that the proviso in section 9 was class legislation. The defendants have appealed to this court.

It is not claimed the act is contrary to the provisions of the Constitution of this State because section 29 of article 5 of the revised Constitution of the State of Michigan reads as follows:

“ The legislature shall have power to enact laws relative to the hours and conditions under which women and children may be employed.”

It is claimed as follows (we quote from the brief of counsel) :

“(a) The law violates the fourteenth amendment to the Constitution of the United States, unless it can be defined as a ‘health’ law.
“(b) The law does not purport to be a ‘ health ’ law, or to be passed to meet [an emergency and to protect the health of women.
“(c) The law, therefore, if sustained at all, must be sustained on the theory that labor at any employment by women for more than an average of nine hours is harmful, and that a law so restricting female labor is a reasonable exercise of the police power.
‘(d) The law is, however, void as class legislation, since it discriminates between the various classes of female labor.”

Counsel subdivide each of these heads and argue them at length, citing many authorities which they claim apply.

It must be conceded at the outset that the courts have differed about the questions involved. The most marked difference, however, is between the earlier decisions and the later ones. In Bierly on Police Power, p. 9, it is said:

“ The police power has been defined to be devoted to the protection of the lives, health, and property of citizens and the maintenance of good order. It is the power of the State to make all manner of reasonable laws for the welfare of the commonwealth and the good people thereof.”

In Russell on Police Power, at page 28, it is said, that—

“The range of legislation with respect to subjects of governmental control in the exercise of the police power has been much extended within the last quarter of a century. The reason of this is obvious. Modern social life has called into being many agencies not heretofore existing.”

The learned author then gives many instances of its exercise, among them being the prevention of diseases, the public health, and concerning hours of labor, and forbidding or regulating contracts for the labor of women and children. The author expresses the opinion that—

“With reference to many of the matters above named, there has been a progressive development of governmental functions, and this development is likely to continue with the increased application of science to the business of life.”

From what we have quoted from the brief of counsel, it is evident that two important questions are presented:

First. Is the legislation in violation of the fourteenth amendment to the Constitution of the United States because it interferes with the right to labor and to make contracts in relation thereto ?
Second. Is it class legislation ?

In support of the first proposition, counsel cite a number of authorities, one of which (Lochner v. New York, 198 U. S. 45 [25 Sup. Ct. 539]) they regard of so much importance that they quote from it at great length in the brief. An examination of the opinion shows that the labor law which was before the court was not legislation in the interest of women or of minors, but applied to all employes of bakeries. The court said of the legislation which was then before it that the limit of the police power was reached and passed, and that the case differs widely from Holden v. Hardy, 169 U. S. 366 (18 Sup. Ct. 383), and Jacobson v. Massachusetts, 197 U. S. 11 (25 Sup. Ct. 358). In the course of the opinion, Justice Peckham, speaking for the court, used the following language:

“ The general right to make a contract in relation to his business is part of the liberty of the individual protected by the fourteenth amendment of the Federal Constitution. Allgeyer v. Louisiana, 165 U. S. 578 (17 Sup. Ct. 427). Under that provision no State can deprive any person of life, liberty, or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right. There are, however, certain powers, existing in the sovereignty of each State in the Union, somewhat vaguely termed ‘police powers,’ the exact description and limitation of which have mot been attempted by the courts. Those powers, broadly stated, and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals, and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the State in the exercise of those powers, and with such conditions the fourteenth amendment was not designed to interfere. Mugler v. Kansas, 123 U. S. 623 (8 Sup. Ct. 273); In re Kemmler, 136 U. S. 436 (10 Sup. Ct. 930); Crowley v. Christensen, 137 U. S. 86 (11 Sup. Ct. 13); In re Converse, 137 U. S. 624 (11 Sup. Ct. 191). The State therefore has power to prevent the individual from making certain kinds of contracts, and in regard to them the Federal Constitution offers no protection. If the contract be one which the State, in the legitimate exercise of its police power, has the right to prohibit, it is not prevented from prohibiting it by the fourteenth amendment.”

In Muller v. Oregon, 208 U. S. 412 (28 Sup. Ct. 324), which involved the construction of a statute relating to the hours of labor of women employed in laundries, Justice Brewer, who wrote the opinion, referred to the case of Lochner v. New York, supra, as follows:

“ We held, in Lochner v. New York, 198 U. S. 45 (25 Sup. Ct. 539), that a law providing that no laborer shall be required or permitted to work in a bakery more than 60 hours in a week or 10 hours in a day was not as to men a legitimate exercise of the police power of the State, but an unreasonable, unnecessary, and arbitrary interference with the right and liberty of the individual to contract in relation to his labor, and as such was in conflict with, and void under, the Federal Constitution. That decision is invoked by plaintiff in error as decisive of the question before us. But this assumes that the difference between the sexes does not justify a different rule respecting a restriction of the hours of labor.”

He also referred to a copious collection of data as to the course of legislation and expressions in relation to the restrictions imposed upon the labor of women, and proceeds as follows:

“While there have been but few decisions bearing-directly upon the question, the following sustain the constitutionality of such legislation: Commonwealth v. Manufacturing Co., 120 Mass. 383; Wenham v. State, 65 Neb. 394, 400, 406 (91 N. W. 421, 58 L. R. A. 825); State v. Buchanan, 29 Wash. 602 (70 Pac. 52, 59 L. R. A. 342, 92 Am. St. Rep. 930); Commonwealth v. Beatty, 15 Pa. Super. Ct. 5, 17. Against them is the case of Ritchie v. People, 155 Ill. 98 (40 N. E. 454, 29 L. R. A. 79, 46 Am. St. Rep. 315).
“The legislation and opinions referred to in the margin may not be, technically speaking, authorities, and in them is little or no discussion of the constitutional question presented to us for determination, yet they are significant of a widespread belief that woman’s physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions, under which she should be permitted to toil. Constitutional questions, it is true, are not settled by even a consensus of present public opinion, for it is the peculiar value of a written constitution that it places in unchanging form limitations upon legislative action, and thus gives a permanence and stability to popular government which otherwise would be lacking. At the same time, when a question of fact is debated and debatable, and the extent to which a special constitutional limitation goes is affected by the truth in respect to that fact, a widespread and long-continued belief concerning it is worthy of consideration. We take judicial cognizance of all matters of general knowledge.
“ It is undoubtedly true, as more than once declared by this court, that the general right to contract in relation to one’s business is part of the liberty of the individual, protected by the fourteenth amendment to the Federal Constitution ; yet it is equally well settled that this liberty is not absolute and extending to all contracts, and that a State may, without conflicting with the provisions of the fourteenth amendment, restrict in many respects the individual’s power of contract. Without stopping to discuss at length the extent to which a State may act in this respect, we refer to the following cases in which the question has been considered: Allgeyer v. Louisiana, 165 U. S. 578 (17 Sup. Ct. 427); Holden v. Hardy, 169 U. S. 366 (18 Sup. Ct. 383); Lochner v. New York, 198 U. S. 45 (25 Sup. Ct. 539).
“ That woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence, is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity, continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and, as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.
“ Still again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength, and this control in various forms, with diminishing intensity, has continued to the present. As minors, though not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved. Education was long denied her, and while now the doors of the schoolroom are opened and her opportunities for acquiring knowledge are great, yet, even with that and the consequent increase of capacity for business affairs, it is still true that in the struggle for subsistence she is not an equal competitor with her brother. Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right. Doubtless there are individual exceptions, and there are many respects in which she has an advantage over him; but, looking at it from the viewpoint of the effort to maintain an independent position in life, she is not upon an equality. Differentiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men and could not be sustained. It is impossible to close one’s eyes to the fact that she still looks to her brother and depends upon him. Even though all restrictions on political, personal, and contractual rights were taken "away, and she stood, so far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection; that her physical structure and a proper discharge of her maternal functions —having in view not merely her own health, but the well-being of the race — justify legislation to protect her from the greed as well as the passion of man. The limitations which this statute places upon her contractual powers, upon her. right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all. Many words cannot make this plainer. The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done standing, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation and upholds that which is designed to compensate for some of the burdens which rest upon her.”

In the recent case of Ritchie & Co. v. Wayman, 244 Ill. 509 (91 N. E. 695, 27 L. R. A. [N. S.] 994), the court said:

“The right of the individual to contract with reference to labor is held inviolable under the constitution on the ground that the privilege of contracting with reference to labor is a property right, within the purview of the constitution. Frorer v. People, 141 Ill. 171 (31 N. E. 395, 16 L. R. A. 492). There inhere in the State, however, certain sovereign powers, among which powers is that characterized as the police power, which, when broadly stated, is that power of the State which relates to the conservation of the health, morals, and general welfare of the public, and the property rights of the citizen are always held and enjoyed subject to the reasonable exercise of the police power by the State. If this statute can be sustained, it must be sustained, we think, as an exercise of the police power. In City of Chicago v. Dairy Co., 234 Ill. 294, 297 (84 N. E. 913, 914, 17 L. R. A. [N. S.] 684, 123 Am. St. Rep. 100), it was said:
“ ‘The police power is said to be an attribute of sovereignty, and to exist without any reservation in the constitution, and to be founded upon the duty of the State to protect its citizens and to provide for the safety and good order of society.’
“In McPherson v. Village of Chebanse, 114 Ill. 46 (28 N. E. 454, 55 Am. Rep. 857), an ordinance prohibiting persons from keeping open their places of business in a city or village for the purpose of vending goods, wares, and merchandise on Sunday was sustained as a proper exercise of the police power. In Booth v. People, 186 Ill. 43 (57 N. E. 798, 50 L. R. A. 762, 78 Am. St. Rep. 229), section 130 of the Criminal Code, which declares grain option contracts to be gambling contracts, was held to be a valid police regulation. In City of Chicago v. Gunning System, 214 Ill. 628, on page 635 (73 N. E. 1035, 70 L. R. A. 230), it was said:
“ ‘The police power of the State is that inherent or plenary power which enables the State to prohibit all things hurtful to the comfort, safety, and welfare of society, and may be termed “the law of overruling necessity.” Town of Lake View v. Cemetery Co.; 70 Ill. 191 (22 Am. Rep. 71); Wabash, etc., Ry. Co. v. People, 105 Ill. 236. Anything which is hurtful to the public interest is subject to the police power and may be restrained or prohibited in the exercise of that power. Dunne v. People, 94 Ill. 120 (34 Am. Rep. 213) ; Cole v. Hall, 103 Ill. 30; Harmon v. City of Chicago, 110 Ill. 400 (51 Am. Rep. 698). All rights, whether tenable or untenable, are held subject to this police power. Northwestern Fertilizing Co. v. Village of Hyde Park, 70 Ill. 634.
“In City of Chicago v. Dairy Co., supra, it was held tbe regulation of the sale of milk and cream in bottles and glass jars by a city was a proper exercise of the police power, and in City of Chicago v. Schmidinger, 243 Ill. 167 (90 N. E. 369), that the bread ordinances of the city of Chicago, which fixed the size of loaves and regulated the sale of bread, were a valid exercise of -the police power.
“From the examples above referred to, found in adjudicated cases, it will be seen that the police power is a very broad power, and may be applied to the regulation of every property right so far as it may be reasonably necessary for the State to exercise suoh power to guard the health, morals, and general welfare of the public. It is known to all men (and what we know as men we cannot profess to be ignorant of as judges) that woman’s physical structure and the performance of maternal functions place her at a great disadvantage in the battle of life; that, while a man can work for more than 10 hours a day without injury to himself, a woman, especially when the burdens of motherhood are upon her, cannot; that, while a man can work standing upon his feet for more than 10 hours a day, day after day, without injury to himself, a woman cannot; and that to require a woman to stand upon her feet for more than 10 hours in any one day and perform severe manual labor while thus standing, day after day, has the effect to impair her health; and that, as weakly and sickly women cannot be the mothers of vigorous children, it is of the greatest importance to the public that the State take such measures as may be necessary to protect its women from the consequences induced by long continuous manual labor in those occupations which tend to break them down physically. It would therefore seem obvious that legislation which limits the number of hours which women shall be permitted to work to 10 hours in a single day in such employments as are carried on in mechanical establishments, factories, and laundries would tend to preserve the health of women and insure the production of vigorous offspring by them, and would directly conduce to the health, morals, and general welfare of the public, and that such legislation would fall clearly within the police power of the State. Legislation limiting the number of hours which women shall work in establishments similar to those enumerated in the statute now under consideration to a period of not more than 10 hours in any one day has been sustained in Muller v. Oregon, 208 U. S. 412 (28 Sup. Ct. 324); State v. Muller, 48 Or. 252 (85 Pac. 855, 120 Am. St. Rep. 805); Wenham v. State, 65 Neb. 394 (91 N. W. 421, 58 L. R. A. 825); Commonwealth v. Manufacturing Co., 120 Mass. 383; and State v. Buchanan, 29 Wash. 602 (70 Pac. 52, 59 L. R. A 342, 92 Am. St. Rep. 930).”

The case of Muller v. Oregon, supra, from which we have quoted at such length, was cited with approval by this court in People v. Case, 153 Mich. 98 (116 N. W. 558, 18 L. R. A. [N. S.] 657). For an interesting discussion of one phase of the police power, see People v. Smith, 108 Mich. 527 (66 N. W. 382, 32 L. R. A. 853, 62 Ana. St. Rep. 715).

We think it clear that, according to the great weight of modern authority, the, provisions of the law are not unconstitutional.

Second. Is the law class legislation ? Counsel contend (we quote from the brief):

“ Section 9 of the act in question provides, among other things, as follows:
“‘Provided, however, that the provisions of this section in relation to the hours of employment shall not apply to nor affect any person engaged in preserving perishable goods in fruit and vegetable canning establishments.’
“It is our contention that this exception makes the entire section of the act unconstitutional and void, and is class legislation. Under this exception women may engage their services any number of hours in preserving perishable goods, fruits, vegetables, and may work in canning establishments, 10, 13, or as many hours as they see fit to contract their services for. Solicitors for defendants contend that this bill, and especially section 9, is a health regulation. That by virtue of the police power the legislature has the right to pass such laws as in their judgment are calculated to preserve the health of the women of the State. This exception of the statute entirely abrogates this theory. The legislature, by injecting such an exception into the statute, satisfy us that they were not looking to the health of the women, but rather the preservation of fruits and vegetables. It is purely the spirit of commercialism, without any thought of the health of the women or the number of hours that they shall be employed; in other words, the provision means simply this: that, in order to protect the commercial interests of that class of citizens who are engaged in preserving perishable goods and who invested their money in canning establishments, they may work women any number of hours in order that their profits may be increased and their business not interfered with. If this is not class legislation, we can scarcely conceive what class legislation means.”

In the seventh edition of Cooley on Constitutional Limitations, p. 554, the following language is used:

“Laws public in their objects may, unless express constitutional provision forbids, be either general or local in their application; they may embrace many subjects or one, and they may extend to all citizens, or be confined to particular classes, as minors or married women, bankers or traders, and the like. The authority that legislates for the State at large must determine whether particular rules shall extend to the whole State and all its citizens, or, on the other hand, to a subdivision of the State or a single class of its citizens only. . The circumstances of a particular locality, or the prevailing public sentiment in that section of the State, may require or make acceptable different police regulations from those demanded in another, or call for different taxation, and a different application of the public moneys. The legislature may therefore prescribe or authorize different laws of police, allow the right of eminent domain to be exercised in different cases and through different agencies, and prescribe peculiar restrictions upon taxation in each distinct municipality, provided the State Constitution does not forbid. These discriminations are made constantly; and the fact that the laws are of local or special operation only is not supposed to render them obnoxious in principle. The legislature may also deem it desirable to prescribe peculiar rules for the several occupations, and to establish distinctions in the rights, obligations, duties, and capacities of citizens. The business of common carriers, for instance, or of bankers, may require special statutory regulations for the general benefit, and it may be matter of public policy to give laborers in one business a specific lien for their wages, when it would be impracticable or impolitic to do the same for. persons engaged in some other employments. If the laws be otherwise unobjectionable, all that can be required in these cases is that they be general in their application to the class or locality to which they apply; and they are then public in character, and of their propriety and policy the legislature must judge.”

In Spurr v. Travis, 145 Mich. 721 (108 N. W. 1090, 116 Am. St. Rep. 330), the “sales in bulk act,”so called, was attacked upon the ground of being class legislation, and it was there held that it was not class legislation, though its operation was limited to merchants and to those merchants who owe debts.

The case of Mt. Vernon Woodberry Cotton Duck Co. v. Insurance Co., 111 Md. 561 (75 Atl. 105), is directly in point. In this case the statute forbids the employment of children under 12 years of age in the mills and factories of the State “ other than the establishments for manufacturing canned goods.” It was held that the legislation was not class legislation.

In the case of Ritchie & Co. v. Wayman, 244 Ill. 509 (91 N. E. 695, 27 L. R. A. [N. S.] 994), from which we have already quoted, it was argued that the statute was class legislation. The court decided it was not open to that objection. Some of the language used in the opinion, is as follows:

“ It is next contended that the act in question is special legislation in this: First, that it singles out the business of those persons who are conducting mechanical establishments or factories or laundries and prohibits the employment of females in those establishments for a longer time than 10 hours in any one day, while other establishments engaged in substantially the same business are permitted to employ females any number of hours in one day; second, that it has the effect to divide men and women into classes; and, third, that, after women have been set aside as a class, to then divide women into two classes — that is, that women who work in mechanical establishments or factories or laundries are only permitted to work 10 hours in any one day, and that women who are not employed in mechanical establishments, factories, or laundries are permitted to work any number of hours in any one day— is special and class legislation, and unconstitutional and void.
‘ ‘ The business places which are enumerated by the statute —that is, mechanical establishments, factories, and laun_dries — form a class by themselves, and differ from mercantile establishments, hotels, restaurants, etc., in this: that the product of those establishments enumerated in the statute is largely produced by machinery, or the employés of such establishments work with machinery, or the pace at which the employés work in such establishments is set by other employés who work with machinery. It would seem, therefore, that the legislature has not arbitrarily carved out a class of establishments in which women whose time of employment is limited to 10 hours a day are to work, but that the line of demarcation between the establishments to which the 10-hour limit applies, and those to which it does not apply, is clearly defined. In Hawthorn v. People, 109 Ill. 302, 311 (50 Am. Rep. 610), the court said:
“ ‘It (the statute) embraces all persons in the State similarly engaged. If all laws were held unconstitutional because they did not embrace all persons, few would stand the test. * * * a law is general, not because it embraces all of the governed, but that it may, from its terms, when many are embraced in its provisions, and all others may be when they occupy the position of those who are embraced.’
“ In Gundling v. City of Chicago, 176 Ill. 340 (52 N. E. 44, 48 L. R. A. 230), it was held that the city might regulate the sale of cigarettes, and that the law was not special legislation by reason of the fact that it did not require a license of all persons who sold tobacco in the city. In City of Chicago v. Dairy Co., supra, it was held that the city might regulate the sale of milk and cream in bottles or glass jars without the ordinance being subject to the objection of being special legislation because all persons who sold milk or cream in the city did not fall within the terms of the ordinance. We do not think the statute objectionable on the ground that it amounts to special legislation. * * *
“As to the third objection, that women by the act are divided into two classes — that is, those whose service is limited to a 10-hour day and those whose service is not limited — we have also already suggested the answer to this contention, namely, that those women whose service is limited to a 10-hour day work in establishments whose product is produced by machinery, or whose employés work with machinery, or the pace at which such employés work, is set by other employés who work with machinery. We think that women thus situated, while at work, are under a pressure and spur which is much more likely to drive them to overexertion when exhausted by a long-continued effort, and thereby to impair their health, than are their more favored sisters likely to be driven, who are engaged in an employment which is not forced at all times up to the limit of production by the agencies of steam, electricity, or other motor power when applied to machinery. There is, therefore, we think, an obvious and clear distinction between the two classes of women when working in the class of employment covered by the statute and in other vocations of life, by reason of their environment when at work. It is well settled that legislation which applies only to a certain class of citizens is not, under all circumstances, class legislation. A law that is made applicable to only one class of citizens, however, must be based upon some substantial difference between the situation of that class and other individuals to which it does not apply. Here we think that substantial difference exists. Harding v. People, 160 Ill. 459 (43 N. E. 624, 32 L. R. A. 445, 52 Am. St. Rep. 344); Gillespie v. People, 188 Ill. 176 (58 N. E. 1007, 52 L. R. A. 283, 80 Am. St. Rep. 176); Horwich v. Laboratory Co., 205 Ill. 497 (68 N. E. 938, 98 Am. St. Rep. 254); Starne v. People, 222 Ill. 189 (78 N. E. 61, 113 Am. St. Rep. 389); Jones v. Railway Co., 231 Ill. 302 (83 N. E. 215, 121 Am. St. Rep. 313). We therefore conclude the act now under consideration is not subject to the objection that it is class legislation because it does not apply to all women who perform manual labor.”

See, also, 9 Mich. Law Review, p. 44.

If legislation which applies to one calling only, pursued by women, is not class legislation, it is difficult to see how legislation which applies to many callings pursued by women can be said to be class legislation because it does not apply to all callings pursued by her. We conclude the legislation is not unconstitutional, and that it is not class legislation.

The decree of the lower court is reversed, and one may be entered here dismissing the bill of complaint, with costs of both courts.

Ostrander, McAlvay, Brooke, and Blair, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    JAMES B. CLOW & SONS v. DOWAGIAC GAS CO.
    Corporations — Contracts—Consolidation—Authority or President.
    Liability of dófendant company for merchandise furnished by plaintiff to its predecessor corporation, is established by evidence that defendant’s president negotiated the transfer of corporate assets to the defendant from its predecessor under an arrangement to pay plaintiff’s claim; that defendant accepted the benefit of the president’s agreement and purchased the plant and property of its predecessor, including the property furnished by plaintiff; that the president of defendant later promised to pay the obligation to plaintiff, who accepted his proposition.
    Error to Cass; Des Yoignes, J.
    Submitted June 29, 1910.
    ( Docket No. 12.)
    Decided December 7, 1910.
    Assumpsit by James B. Clow & Sons, a corporation, against the Dowagiac Gas Company, a Michigan corporation, for goods sold and delivered. Judgment for plaintiff and defendant brings error.
    Affirmed.

      Coy W. Hendryx, for appellant.

      Charles E. Sweet, for appellee.
   Blair, J.

This cause was tried by the court without a jury, and from the finding of facts and the correspondence referred to therein, it appears that the plaintiff is an Illinois corporation doing business in Michigan, selling gas pipe and gas fittings. The defendant is a Michigan corporation with its principal office now at Indianapolis, Ind., and its place of business at Dowagiac, Mich. The defendant company, some time in the year 1907, was organized, and at the time of its organization the stockholders appear to have been, A. Quinn, Indianapolis, 498 shares, N. L. Clawson, Indianapolis, one share, and Eoster G. Shirley, one share. Afterwards, when negotiations were had with the Dowagiac Gas & Fuel Company, the stockholders appear to have been the said Quinn, Claw-son, Shirley, Russell B. Harrison, M. Lafollette, Frank W. Lyle, and C. T. Amsden, the number of shares being 1,000, of which Russell B. Harrison had 800, Chas. T.' Amsden, 30, and Frank W. Lyle, 40. In the spring of 1907, negotiations were had between Russell B. Harrison, president of the defendant company, and Frank W. Lyle, president of the Dowagiac Gas & Fuel Company, whereby the Dowagiac Gas & Fuel Company sold out and transferred its property to the defendant company, the transfer to be made as soon as certain formalities were gone through with. While the trade was pending between the two presidents, the invoice of pipe and fittings which is the subject-matter of this suit was purchased by the old company, Dowagiac Gas & Fuel Company, from the plaintiff, and on May 1, 1907, John F. Griffin, superintendent, sent a check for $1,104.92 to the plaintiff, drawn on the account of the Dowagiac Gas & Fuel Company. This check was protested for nonpayment, with reference to which Mr. Lyle wrote the following letter:

“ Dowagiac Gas and F uel Company.
“Dowagiac, Mich., May 4, 1907.
“Jas. B. Clow & Son,
“ Chicago.
Gentlemen:
“ Referring to the check of this company for $1,104.92, which was returned today, we beg to explain: This company is under contract to sell its plant and business, and your bill is to be paid by the new company. I so instructed the new superintendent, but he forgot my instructions and sent you a check signed by the old company. Please return the check to us, and the new company will forward you a check including the protest fee, if any.
Regretting the mistake, we are,
“Yours truly,
“Dowagiac Gas & Fuel Company.
“ F. W. Lyle, Pt.”

Under date of September 26th, a letter was written by Mr. Harrison to Mr. Wyeth, credit man of plaintiff, in which he said:

“ In view of the extension from thirty to sixty days, as agreed upon by Messrs. Clow & Sons, I have agreed to look after and arrange for the payment of the indebtedness on the part of the new company just as soon as this possibly can be arranged after the transfer of the property to the Dowagiac Gas Company.”

Afterwards on October 4, 190?, Mr. Harrison wrote to plaintiff, on the letterhead of the Dowagiac Gas Company, signed, “Dowagiac Gas Company, by Russel B. Harrison, President,” as follows:

“When the sale of property of the Dowagiac Gas & Fuel Company to the Dowagiac Gas Company is completed the indebtedness of the Dowagiac Gas & Fuel Company to your firm, amounting to about $1,100 will be assumed and taken care of in the manner agreed upon at the recent conference of the writer and Mr. J. C. Clow.”

Again, on December 16th, on the letterhead of the defendant, signed, “Russel B. Harrison, President,” Mr. Harrison wrote plaintiff:

“I write to say that I have written the general manager at Dowagiac, requesting him to send .check for all the funds that can be spared for the purpose of applying same on your account. This check will be in your hands before the end of the week.”

Following these conferences and these two letters, with others, Mr. Wyeth called on the defendant at Dowagiac, where he interviewed Mr. Griffin, superintendent, and Mr. Lyle, director, who both insisted upon his talking over the telephone with Mr. Harrison, and, after this talk, the check for $150, signed by the defendant company, was given to Mr. Wyeth; and on December 23d Mr. Harrison wrote to Mr. Wyeth, referring to this conference by telephone and the payment of the check for $150. On January 9, 1908, Mr. Harrison wrote to J. C. Clow, secretary of plaintiff, as follows:

“ In view of your suggestion that you do not wish to work any hardship to the company, I suggest the following plan, and, if accepted, will insist upon its being carried out, a payment of $150 between the 10th and 15th of each month until the indebtedness is entirely paid. The first payment to be made upon the acceptance of this proposition, interest at the rate of 6 per cent, to be paid on account.”

This letter was followed by one from Mr. Harrison on January 13, 1908, in which he said:

“I write to make inquiry if my proposition is satisfactory. I am led to this inquiry as I have received from the Dowagiac Gas Co. a check for $150 which I desire to forward to you promptly, if the proposition is satisfactory. If as you say, you desire to work no hardship to the Dowagiac Gas Co., all you have to do is to accept the proposition and payments will start immediately.”

To this, reply was made by Mr. Clow on behalf of the plaintiff, accepting the proposition, and on January 15th, two days later, Mr. Harrison wrote the plaintiff a letter which contained these words:

“As we appear to have reached a complete and thoroughly satisfactory understanding in this matter, I hasten to place in your hands, on behalf of the company, check No. 9 of the Dowagiac Gas Co. on the City Bank of Dowagiac, payable to the order of James B. Clow & Sons for $150. Kindly acknowledge receipt.”

This payment of $150 was received by the plaintiff, since which time no further payments have been made. The balance unpaid, with interest from May 10, 1907, at 6 per cent., amounts to $894.36. It is undisputed that Russell B. Harrison, who was the owner of four-fifths of the capital stock of the defendant company, was president of the defendant company, and managed its affairs during all the time the letters and conferences between the parties to this suit, as well as between the two gas companies, were had; and that the business of the Dowagiac Gas Company, the defendant, was managed by Russell B. Harrison, its president; and that Russell B. Harrison, during negotiations for the purchase of the plant of the old company, agreed with Mr. Lyle, president of the old company, to pay plaintiff the bill for which this suit is brought. Precisely when the transfer between the gas companies was completed, by turning over the pipe in question and other property, does not appear, but the correspondence shows that it was, at least, later than October 4, 1907. The trial court found that plaintiff was entitled to recover, and defendant has brought the record to this court for review.

We are of the opinion that the court did not err in his conclusion of law. The defendant company, having accepted the fruits of the agreement negotiated on its behalf by its president to purchase the plant of its predecessor, including the pipe, became bound by the president’s agreement that defendant would pay for it and assumed the indebtedness as its own obligation in consideration of the delivery of the pipe. The defendant having assumed this obligation, its president was authorized to make the agreement in question with plaintiff, and plaintiff, having accepted defendant’s obligation in place of the obligation of its predecessor, was entitled to maintain this action against defendant. 2 Thompson on Corporations (2d Ed.), § 2020; Gould v. Gould & Co., 134 Mich. 515 (96 N. W. 576, 104 Am. St. Rep. 624).

The judgment is affirmed.

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


author: Hooker, J.

text:
    DILLIE v. LONGWELL.
    1. Adverse Possession — Permissive User — Recognition of Proprietor’s Rights.
    Title does not pass by adverse possession, when the occupation is by consent of the owner, and his rights are recognized by a conveyance of adjacent premises to a purchaser by the adverse claimant, without including the premises to which title is asserted, and which, it is contended by the claimant, were, in fact, transferred by the conveyance.
    ■2. Reformation of Instruments — Mistake—Evidence Required.
    While a deed may be reformed when it is satisfactorily proven that a mutual mistake has been made, such fact must be clearly made to appear.
    3. Same.
    And evidence of the grantee that a parcel was to be included in the deed, contradicted by the grantor, and not satisfactorily supported by other proofs, is insufficient to warrant a decree reforming the instrument so as to include the omitted parcel, on the ground of mistake.
    Appeal from Van Burén; Des Voignes, J.
    Submitted October 5, 1910.
    (Docket No. 3.)
    Decided December 7, 1910.
    Bill by Nathaniel E. Dillie and Mary E. Dillie against Edgar B. Longwell, Jessie Longwell, Thomas Welch and Rowena Welch to reform a deed and enjoin an action of ejectment. From a decree for complainants, defendants appeal.
    Reversed.

      Thomas J. Gavanaugh and A. Lynn Free, for complainants.

      David Anderson and Glenn F. Warner, for defendants.
   Hooker, J.

The complainant is in possession of certain’lands'upoif which he entered under a deed from one Gleason. They consist of two 40-acre parcels, a 3-acre parcel, and a piece of about 4 acres. His grantor had the legal title to all except the latter. He had no paper title to that. The situation will be more easily understood by an examination of the annexed map:

Parcels marked “1,” “2,” “3,” and “4” are the parcels mentioned. That marked “4” only is in dispute. It consists for the most part, of . low marsh ground along the Paw Paw river. At the time Gleason’s deed was made by Mrs. Welch, she owned all four parcels, and also other lands east of the river in the S. E. £ of the N. W. £ of the section. Complainant asks that her deed to Gleason (his grantor ), be reformed and made to include parcel 4, upon the ground that, when Gleason bought, it was understood by both parties to the negotiation that parcel 4 was a part of the land sold and purchased, and that it was omitted through inadvertence and mistake. To establish his case he endeavored to prove:

First. That one Clapp was the owner by deed of th© N. W. ¿ and S. W. I- of the N. W. ¿ of Sec. 12, being 80 acres, as well as other lands on the section west of 12; that he took possession as early as 1865, and from that time until 1891 he occupied and used for pasture and cutting marsh grass parcel 4, to which he had no paper title, and the complainant makes the claim that he (Clapp) thereby acquired title by adverse possession.
Second. That on April 2, 1891, he sold and deeded to-Welch the two 40-acre parcels.
Third. That Welch or his wife, at . that time, owned parcel 8, which he had bought from Harrison, but did not own parcel 4, which Harrison had the paper title to, and attempted to convey to him by the same deed, but failed through uncertainty in the description.
Fourth. That Welch deeded all of these lands to his wife.
Fifth. That in March, 1893, Welch negotiated a sale of what he called the Clapp farm to Gleason, expressly stating that the portion on the S. W. J- of the N. W. £ of the section, extended to the river, and that on March 24, 1893, in accordance with their arrangement, he caused his wife to make a deed of the land conveyed which included parcels 1 and 2, which had belonged to the Clapp farm, and parcel 3 which had not. Parcel 4 was not included.
Sixth. That Gleason entered and occupied parcel 4, and he and Dillie have continued to do so, though both Welch and Longwell have disputed Dillie’s right.
Seventh. That Mrs. Welch deeded parcel 4 to Long-well, by warranty deed, on October 15, 1897, and that he has brought ejectment against complainant.
Eighth. Complainant contends that Longwell took deed with notice of his rights.
Ninth. That since the making of these deeds, the village of Paw Paw has acquired, by purchase from Dillie, flowage rights upon parcel 4, and have now an artificial lake or pond upon the same.

The learned circuit judge in stating his conclusions found: That Clapp acquired title to parcel 4 by adverse possession. That the description in the Welch deed to Gleason recognized Clapp’s former ownership of parcel 4. That the conduct of the Welches after the sale.to Gleason in not questioning his and Dillie’s title tended to strengthen the claim that the omission of parcel 4 from the deed to Gleason was a mistake.

We have endeavored to give these conclusions full weight, but we cannot agree with them. First. The claim that Clapp acquired title by adverse possession is not clear. Grant that he occupied the premises in dispute, there is an absence of proof that the occupation was adverse or even hostile, and, in denial of the owner’s right, Harrison owned and sold and Welch bought it during Clapp’s occupancy, and there is testimony indicating that the occupation was by consent of Harrison and therefore not hostile. Clapp did not convey it to Welch when he sold to him, which indicates that he (Clapp) was not claiming title against him at that time. Moreover, if he had acquired a title, not having sold it to Welch, it is in Clapp yet, for he did not convey to Welch, and Welch would have no title in it, being lost through Clapp’s adverse possession, and the reformation of the deed would be useless, for it would convey no title. That finding would be fatal to complainant’s case.

Our own conclusion is that Clapp has never divested the title to parcel 4 from Harrison or Welch, through adverse possession, and when he sold the 80 acres did not claim title to parcel 4, and that it belonged to Welch. We think there is no force in the claim that Welch treated it as a part of the Clapp farm, which it clearly was not.

First. Because the deed did not include it.

Second. Because he and his wife soon gave a warranty deed of it to Longwell, which negatives the thought that they acquiesced in the claim of Gleason and Dillie.

Third. Because West flatly denies the intention and understanding that it was to be included, and disputes the testimony of ^Gleason as to their negotiations.

Again we may state, though it is of little importance, that the description in Harrison’s deed to Welch is a perfect description, and includes parcel 4.

The relief prayed in the bill involves the equivalent of adding to a deed of conveyance, thereby increasing the amount of land conveyed by it, by virture of parol testimony. A deed is a solemn instrument, usually made with deliberation, and, while it may be reformed when it is satisfactorily proven that a mutual mistake has been made, such fact must be made to appear clearly. In the case of Youell v. Allen, 18 Mich. 109, Cooley, C. J., said:

“The question whether a material error in a written contract for the conveyance of lands can be corrected on parol evidence, in a suit for the specific performance of the contract, and performance decreed according to the understanding as found upon such evidence, is one of no little difficulty, and upon which the authorities are irreconcilably at variance. If it can be, the evidence of the mistake upon which the court should give relief ought to be so clear as to establish that fact beyond cavil.”

The same language was repeated by the same judge in Vary v. Shea, 36 Mich. 398. In Burns v. Caskey, 100 Mich. 100 (58 N. W. 644), Mr. Justice Long said:

“ That such mistake must be proved by clear and entirely satisfactory evidence, and that a mere preponderance of evidence is not sufficient, and that the mistake must be mutual and common to both parties to the instrument.”

It is undeniable that, at the time Gleason took his deed, Mrs. Welch was the owner in fee of all these parcels, unless Clapp still owned parcel 4. Admitting that he did not, she did. She deeded to Gleason parcels 1, 2, and 3 only.

There is no evidence that she personally ever had an intention to convey more, but conceding that she was bound by her husband’s intent and understanding, when he negotiated the sale, and caused the deed to be written, we have a conflict of the testimony between Gleason and Welch. The only important corroborating fact in support of Gleason is the fact that the deed to him mentions the southern boundary of parcel 3 as being land “formerly owned by Clapp” when in fact it was this parcel 4. Welch said that the scrivener made that description and that it was a mistake. It was not an unnatural inference on the part of the scrivener who doubtless knew that Clapp had occupied it. That does not throw much light on the question of the intention; certainly it was not clear and satisfactory proof, justifying the taking a parcel of land from Mrs. Welch and giving it to Dillie.

We are constrained to reverse the decree and dismiss the bill, with costs of both courts. It is so ordered.

Bird, C. J., and Ostrander, Moore, and McAlvay, JJ., concurred.


author: Osteandeb, J.

text:
    CITY OF DETROIT v. C. H. LITTLE CO.
    Municipal Corporations — Licenses — Use of Streets — Ordinance — Detroit Charter.
    An ordinance of the city of Detroit, forbidding any person from engaging in the business of using vehicles to draw earth and other materials (chapter 54, Compiled Ordinances of Detroit, § 2), without first procuring a license, is authorized by paragraph 186 of the charter of the city of Detroit, regulating the use of vehicles for hire, and does not prohibit a firm, engaged in the business of furnishing building and paving supplies, from delivering its commodities, by its private wagons, without a license; since the ordinance effects a regulation of a business, rather than of the use of streets under the power conferred by paragraph 170 of the charter.
    Certiorari to the recorder’s court of the city of Detroit; Connolly, J.
    Submitted October 10, 1910.
    ( Docket No. 28.)
    Decided December 7, 1910.
    The C. H. Little Company and Joseph Conant were convicted of violating a municipal ordinance. The said company brings certiorari.
    Reversed and no new trial ordered.

      P. J. M. Hally and Thomas Penniman, for the people.

      Willard E. Warner, for defendant.
   Osteandeb, J.

Section 2 of chapter 54 of the Compiled Ordinances of the city of Detroit for the year 1904, as amended and approved January 2, 1907, is as follows:

‘ ‘ The mayor is hereby authorized to grant a license good for one year, or until the second Tuesday in March then next ensuing, to any person of good character, to drive, use, or cause to be driven or used, any vehicle for carting or hauling earth, chips, stone, bricks, ice, mortar, dirt, ashes, shavings, hay, straw, manure, filth, or rubbish of any description on his paying into the city treasury the sum of fifty cents, and executing a bond to the city of Detroit in the penal sum of one hundred dollars, with one or more sufficient sureties, conditioned that the licensee will faithfully observe the charter and ordinance of the city of Detroit, and indemnify said city against any loss or damage which it may sustain, or expense to which it may be put, by the unlawful dumping of contents of said licensee’s vehicle upon any public street, alley, park or place within said city.
“No person shall engage in said business without a license from the mayor as herein provided.”

The cause was submitted in the recorder’s court upon the following stipulated facts:

“The C. H. Little Company is a body corporate organized and existing under the laws of the State of Michigan, and transacts business in and about the city of Detroit and elsewhere. It has seven yards in and about the said city at which it receives cement, sand, wall plaster, crushed stone, lime, sewer pipe, firebrick, metal lath, wall ties, wall plugs, stanchions, paints, stains, furnishings and other building and paving supplies, in boat load, car load and train load lots and quantities for storage, and from which said yards it delivers the same in the usual and ordinary course of business to its patrons, either by teams, wagons and vehicles of its own, or to its patrons’ teams, wagons and vehicles, at such yards. Said yards are located as follows: One at 340 Atwater St. east; one at John R. St. and Lake Shore Ry.; one at Michigan and Hubbard Aves.; one at Woodward Ave. and Terminal Belt Line Ry.; one at Jefferson Ave. and Terminal Belt Line Ry.; one at foot of West End Ave., Delray; one at Bellevue and Berlin Aves. And its main office is at Nos. 34-40 Peninsular Savings Bank Bldg, in said city. During the ordinary season in which such materials are sold and delivered, it employs upon an average of 237 men, by the month, and others from time to time as its necessities require. It manufactures some of its commodities and buys others in car load, train load and boat load quantities, distributing the same to its several yards by railway cars, as required at such yards. It pays its annual city and State and county taxes upon its stock of commodities upon hand and upon its teams, wagons, harnesses, vehicles and all other utilities used in the conduct of its business, and such special assessments, if any, as may be assessed against it, a large part of which city taxes are used by said city in the construction and maintenance of its highways, over which the respondent and its patrons haul such portions as are delivered by wagon loads.
“For the deliveries of such materials to its patrons, it owns, keeps and maintains 147 horses, 69 double wagons and 9 single wagons, upon each side of which double and single wagons it attaches a board about six inches wide by four feet long upon which is painted, upon a yellow background in letters of black and five inches high, its name, ‘The C. H. Little Co.,’ following which in equally large characters is a ‘No.-,’ specifying its own number of such wagon, which letters, words and figures may be read for a distance of several hundred feet by any casual observer, and by which the identity and ownership of such teams and wagons may, at all times, be known. Its teams and wagons are used only for the deliveries of its own materials and commodities, and they are never rented out, for hire, to other parties as a drayman, carman, truckman, porter, runner, driver of coupes, hackney coaches, omnibuses, carriages, sleighs, express vehicles or vehicles of any description used and employed for hire, but are owned and maintained only as a necessary adjunct to the conduct of its own business and for making deliveries to its own patrons of its commodities kept by it for sale and delivery. On or about April 28, 1909, and prior thereto, it had in its employ one Joseph Conant, to whom it paid regular weekly wages, and as its teamster in driving one of its teams and wagons loaded with a quantity of its product through the streets of Detroit, and upon each side of which said wagon was a board with its name and number as aforesaid, in plain sight and readily discernible as above stated. That at the time complained of the said wagon, team and driver were engaged in delivering its own material and product to one of its customers in said city in accordance with an order therefor. That at said time this respondent had not secured from the mayor of said city, nor any other representative thereof,, any license nor number for such wagon, nor had it filed with said city a bond in the sum of $100 or any other amount as claimed to be required by an ordinance of said city, upon which the complaint herein is based. At the time aforesaid, the said Joseph Conant had no interest nor title whatever in and to said team and wagon, nor the contents thereof, but the same belonged solely to this respondent, who employed said Conant to drive the same. That, at the time complained of herein, the said team, wagon and driver were upon one of the public streets or highways within the limits of said city, and were stopped by a member of the police force of said city, who took the said driver’s name, respondent’s name and made the complaint herein on said April 28, 1909.”

The C. H. Little Company was convicted of a violation of the ordinance and a fine of $25 was imposed. It sued out a writ of certiorari to review the judgment. The errors specified are based upon exceptions to the written findings and the conclusion of the recorder, and the point presented for decision is whether the ordinance has any application to the vehicles employed by the C. H. Little Company in carrying on its business. It is the contention on the part of the city, which contention the recorder sustained, that the ordinance was made in the exercise of power conferred by paragraph 170 of the charter, “to control, prescribe, and regulate the manner in which the highways, streets, avenues, lanes, alleys, and public grounds and spaces within said city shall be used and enjoyed,” and that the case is ruled in principle by People v. Schneider, 139 Mich. 673 (103 N. W. 172, 69 L. R. A. 345). It is said in the brief for the city:

“We take the position that the power to pass and enforce section 2 of chapter 54 of the Compiled Ordinances •of 1904, is derived solely and alone from said section 170, ¡and in no wise do we claim that the common council was ¡authorized to license vehicles which come within the description therein, under section 186, which gives the common council power to regulate and license vehicles of every description used and employed for hire and to fix and regulate the amounts and rates of compensation.”

On the other hand, the contention of plaintiff in certiorari is that the ordinance is clearly the exercise of power granted by paragraph 186 of the charter:

“ To license and regulate the keepers of hotels, * * * also solicitors of passengers, * * * also draymen, carmen, truckmen, porters, runners, drivers of coupes, hackney coaches, omnibuses, carriages, sleighs, express vehicles, and vehicles of every description used and employed for hire, and to fix and regulate the amounts and rates of compensation.”

The ordinance, the provisions and validity of which were considered in People v. Schneider, was one limiting the speed of automobiles and other motor vehicles, and it required each owner of such a vehicle to register his name ■and residence and a description of his vehicle and to pro■cure and display on the vehicle a number, to be purchased for a fixed sum from the city, before operating the vehicle in the streets of the city.' The question involved was whether the common council had power to pass the ordinance. The power was found in paragraph 170 of the charter.

There is no question here of the power of the council to pass the ordinance which is sought to be enforced. It seems to be supposed by the city attorney that its construction and application may be broadened or narrowed, as power to pass it is referred to paragraph 170 or to paragraph 186, of the charter. The power conferred in paragraph 170 of the charter is, in a sense, more general — less restricted — than that conferred in paragraph 186. The particular ordinance is clearly intended, not as a regulation of the use of the highways of the city, but as a regulation of business. It agrees, in its terms, with the power delegated to the city in paragraph 186 of the charter, for which reason, if for no other, we regard the ordinance as passed in the exercise of the power thus conferred. The use of the streets by plaintiff in certiorari is not different in kind from the use made of them by any merchant who delivers goods to customers. The stipulated facts show that its business is not one which the ordinance was designed to regulate.

The judgment of the recorder’s court is reversed, the conviction set aside, and no new trial granted.

Bird, C. J., and Brooke, Blair, and Stone JJ., concurred.


author: Ostrander, J.

text:
    KNIGHTS OF THE MODERN MACCABEES v. SHARP.
    1. Insurance — Contracts—Evidence.
    Evidence held not to show that deceased and his wife, who each took out a policy in a fraternal benefit society, payable to the other, agreed that, after the death of either, their children should become beneficiaries under the’policy then remaining in force, and that no change in beneficiary should be made by the surviving parent.

      2. Same — Competency—Change of Beneficiary.
    Children of the deceased husband, who, under the rules of the insurer, became the contract beneficiaries, after their mother, who was named as beneficiary, died, were entitled to assert the claim that the father was incompetent to afterwards change the beneficiary named in the policy, by the substitu-
    tion of his second wife.
    3. Same — Action — Parties — Equity — Enforcement of Con
    tracts by Third Parties.
    If such contract not to change beneficiaries was, in fact, made, no promise being made to any of the children in interest, no-fund being in existence nor trust created, and the policy having no paid up value, it was revocable at any time, and the children could not enforce its performance by a suit in equity.
    4. Contracts — Enforcement by Person Interested — Parties.
    A third person for whose benefit a contract is made, except in case of provisions for children under a marriage settlement, may not enforce performance in an action at law, or by suit in equity.
    Appeal from St. Clair; Law, J.
    Submitted. October 10, 1910.
    (Docket No. 14.)
    Decided December 7, 1910.
    Bill of interpleader by Knights of the Modern Maccabees against Melinda Sharp and others. From a decree against Melinda Sharp, defendant, she appeals.
    Reversed.

      John B. Mcllwain, for complainant.

      William E. Brown, for defendant Melinda Sharp.

      Frank T. Wolcott, for defendant Lena Sharp and others.
   Ostrander, J.

The issues raised by the answers to complainant’s bill of interpleader are sufficiently indicated in the opinion of the learned trial judge, as follows:

“On July 23, 1896, Asa B. Sharp and his first wife, Minnie D. Sharp, lived in the village of Yale, St. Clair county, Mich. At that time he was 30 years of age and his wife 28. They had five small children. He was a laboring man, and his family was dependent on his earnings for support. Some time prior to the above-named date, the husband and wife entered into a contract by the terms of which he agreed he would take out a policy of insurance in complainant order in which his wife should be named as beneficiary and so remain during her life and his, and, in case his wife should die before he did, that their children should always remain the beneficiaries; the wife agreed she would take out a policy of insurance in the Ladies of the Maccabees, a woman’s fraternal benefit association, in which her husband should be named as beneficiary, and so remain during his life and hers, and, in case her husband should die before she did, that their children should always remain the beneficiaries. The consideration for this agreement, on the part-nf each was the^promisfi maZebvJthe other. The object of this mutual agreement was the protection of the children. The testimony of one witness, Grace O’Dell, goes to the extent of tending to show the existence of this contract prior to the time the policies were issued to the husband and wife, as hereinafter stated, while three other witnesses testify to having heard the husband and wife, in the presence of each other, state what their contract in this regard had been after or about the time of the issuance of the policies. On July 23, 1896, a policy for $1,000 was issued by complainant association to Asa B. Sharp, in which his wife was named as beneficiary, and on the same date a policy of like amount was issued by the Ladies of the Maccabees to Minnie D. Sharp, in which her husband was named as beneficiary.
“After these policies were taken out, Asa B. Sharp was laid up for a time with sickness, and was unable to earn money to support his family and to keep up his assessments, or his wife’s assessments, on these policies of insurance. It appears from the testimony, that during this time, Minnie D. Sharp, relying on the agreement with her husband, as heretofore recited, went out washing, housecleaning, and doing other work in order to obtain money to support the family and to keep up the assessments on these policies, and it appears that she did for a time, at least, pay some of the assessments on her husband’s policy. On January 1, 1902, Minnie D. Sharp deceased, and the proceeds of her policy in the Ladies of the Maccabees was paid to her husband, Asa B. Sharp, who had remained the beneficiary in her certificate since the time it was issued.
“On August 17, 1904, Asa B. Sharp married Melinda Sharp, now his widow. At this time she was a widow with several children, living on her own farm in Lapeer county, Michigan. On April 19, 1906, Asa B. Sharp signed a paper revoking his former designation of beneficiary in his policy, and designated Melinda Sharp, his wife, as the new beneficiary. At the time he did this he was sufficiently sound in his mind to know who was his former beneficiary, to know to whom payment of benefits would be made in case of his death without any change in his certificate, to know and keep in mind his minor children, who were dependent upon him. He had been sick before this date, and had not fully recovered his physical strength, and, perhaps, not his normal mental powers, but he was sufficiently strong and sound mentally to transact and understand ordinary business affairs: Asa B. Sharp surrendered his first certificate, and on May 8, 1906, a new one was issued to him by complainant association in which claimant, Melinda Sharp, was named as beneficiary, and she remained as such designated beneficiary up to the time of her husband’s death.”

He concludes that each of said mutual promises was good consideration for the other, and that on the death of Minnie D. Sharp the agreement became fully executed on her part and the husband concluded from changing the beneficiary in his policy.

Two questions are presented, being, first,.whether the parol agreement alleged to have been made by and between Asa B. Sharp and his first wife, Minnie, was in fact made; and, second, whether, if made, Asa was thereby precluded from making a change of beneficiary.

As to the question of fact, it is to be considered that the certificates issued by complainant have no value during the life of the assured except the value of the right to keep them in force. There is no cash or other surrender value, and default in the payment of the assessments which are levied avoids the contract. An agreement by the assured that he will never change the beneficiary named in his certificate is of no value to any one, unless the assessments are paid to 'the time of his death. The evidence relied upon to prove a mutual agreement between Asa Sharp and his wife Minnie, that neither would ever change the beneficiaries named in their respective certificates, is exceedingly vague and unsatisfactory and is found in the testimony of witnesses who attempt to tell of conversations and statements made in their presence by one or both of the contracting parties. The desire of both the husband and wife to make some provision for each other and, directly or indirectly, for their children, is manifested by their becoming members of complainant, taking out the certificates, and paying assessments. The statements and conversations related by the witnesses evidence little, if anything, more than this. It is true that one or more witnesses testify to a conclusion that an agreement existed between the husband and wife that the certificate held by the survivor of them should be payable to the children. For example, a witness testified:

Mr. and Mrs. Sharp agreed before me, in my presence, that they should take out insurance in the Maccabees, his drawn to her and hers to him as long as they lived, and after her death his should run to the children, and after his death hers should run to the children, and never should be changed.”

But when they detail what was said it amounts to little more than the statement of facts already related, namely, that by the terms of the certificates, and the laws of complainant, the certificates, if in force at the death of either, would benefit either the survivor or the children, and, if the survivor, then, indirectly, the children also. This testimony gains no extended meaning from the fact that either paid assessments levied upon the other at the cost of personal labor and inconvenience. In doing so, especially during the sickness of one of them, only ordinary self-interest was served. It is a fair, if not a necessary, inference from the testimony that the husband paid the assessments upon both certificates except upon occasion or occasions when he was ill, when his wife Minnie paid them. Nor does the testimony acquire any extended or ' peculiar meaning from the fact that upon the death of Minnie, Asa received the benefit of the fund payable according to her certificate. He was the beneficiary named in the certificate. In other words, there is nothing peculiar in the facts that a husband and wife each took out a certificate payable to the other, that either paid assessments upon both certificates, and that the husband, after the death of the wife, received, what her certificate promised him, the death benefit. They are material facts here only upon the theory that they occurred in the carrying out of mutual promises, the making of which must be otherwise established.

It seems that, in the contest made before the complainant’s tribunal, the minors asserted as reason for refusing payment to the beneficiary named in the policy, that their father, the assured, was not mentally competent to make a change of beneficiaries, and they asserted no other reason. This, also, was one of the issues of fact raised by the answer. This was an issue the children could rightfully raise, since, after the death of their mother, they were, by the rules of complainant, the contract beneficiaries. Grand Lodge A. O. U. W. v. McGrath, 133 Mich. 626 (95 N. W. 739); Grand Lodge A. O. U. W. v. Frank, 133 Mich. 232 (94 N. W. 731). It is significant that both grounds for contest were not asserted before the suit was begun.

Assuming the mutual promises never to change beneficiaries to have been made as is claimed, upon what theory may the children enforce the contract ? No promise was made to them, or any of them, no consideration for the promise moved from them. The agreement related to no fund in existence. No trust was created. I find no reason for thinking that the parties were not at liberty, at any time, to revoke their promises. It is true that after the death of the mother there could be no mutual revocation, but, unless some legal interest in the performance of the promise vested in the children when the promise of the father was made, such interest never vested.

It is the general rule in England that a third person can-' not become entitled by the contract itself to demand the performance of any duty under the contract. Pollock, Principlesof Contract (7th Ed.), p. 199. The rule, contracts creating trusts aside, is the same whether such enforcement is attempted at law or in equity. Ibid, p. 213. In this State the English rule has been followed when the attempted enforcement of the contract by a third person was at law. Pipp v. Reynolds, 20 Mich. 88; Turner v. McCarty, 22 Mich. 265; Hicks v. McGarry, 38 Mich. 667; Hunt v. Strew, 39 Mich. 368; Hidden v. Chappel, 48 Mich. 527 (12 N. W. 687); Edwards v. Clement, 81 Mich. 513 (45 N. W. 1107); Linneman v. Moross’ Estate, 98 Mich. 178 (57 N. W. 103, 39 Am. St. Rep. 528).

There is a well-recognized exception to the rule in England as to the provisions contained in a settlement made upon and in consideration of marriage, for the benefit of children to be born of the marriage. Whether there is, in that jurisdiction, any other or further exception may be doubted. Tweddle v. Atkinson, 1 B. & S. 393, 30 L. J. Q. B. 265. See, also, Exchange Bank of St. Louis v. Rice, 107 Mass. 37 (9 Am. Rep. 1); Marston v. Bigelow, 150 Mass. 45 (22 N. E. 71, 5 L. R. A. 43); and, generally, Pollock, Principles of Contract (7th Ed.), chapter 5; Harriman on Contracts (2d Ed.), pp. 212-216; 9 Cyc. pp. 374-385. The contention of appellees is that the principle underlying the English exception to the rule should be extended, at least in equity, so as to support the enforcement by children of contracts made by their father or mother, with each other or with strangers, for their benefit, and Buchanan v. Tilden, 158 N Y. 109 (52 N. E. 724, 44 L. R. A. 170, 70 Am. St. Rep. 454), is cited and relied upon.

The courts of New York do not follow the English rule. In the case cited, a woman was permitted to recover, in an action at law, a sum of money which defendant had promised her husband to pay to her upon a consideration moving from the husband and others to the defendant and others. The sum of money promised to be paid to' the wife was $50,000, The trial court gave her judgment. The appellate division of the Supreme Court reversed the judgment and the court of appeals reversed the appellate division by a vote of four to three of the judges. It will be discovered from the opinion that the points involved, and concerning which the judges disagreed, were whether the promise made by the defendant to the’ third person was upon a valid consideration, and whether the promisee had a legal interest that the contract be performed in favor of the plaintiff. If these things appeared, then, under the rule laid down in Lawrence v. Fox, 20 N. Y. 268, and Durnherr v. Rau, 135 N. Y. 219 (32 N. E. 49), plaintiff was entitled to enforce the contract at law. The majority opinion concludes with the statement, that—

“The case at bar is decided upon its peculiar facts. We do not hold that the mere relation of husband and wife alone constituted a sufficient consideration to enable the plaintiff to maintain this action. We deem it unnecessary to decide that question at this time. What we> do hold is that the equities of the plaintiff ” [her interest as an adopted child who,, in conscience and equity, but not legally, was entitled to a share of the fund sought to be recovered and which was recovered by defendant with the aid of plaintiff’s husband] “were such that, when, considered in connection with the duty of her husband to provide for her future, and with that purpose in view the money was procured for the defendant to institute and pursue the necessary litigation to secure the fund to which her equities related, they, all taken together, were sufficient to sustain the plaintiff’s action.”

It cannot be said that the decision sustains ■ appellees* contention, and we are referred to none in which the general rule in force here is recognized which does sustain it. The general rule in this State is regarded as settled. I see no reason for saying that it is not the same in proceedings at law and in equity. To what extent and under what circumstances an exception to the rule should be recognized in favor of the enforcement by children of contracts (other than those creating trusts), made for their direct or indirect benefit, by persons nearly related to them or by those sustaining the duty to provide for them, is a subject which needs to be considered no further than this, /that the mutual promises of a father and mother, who' each hold the certificate of a beneficial association in which the other is named as beneficiary, never to change the beneficiaries so named, create no legal or equitable interest of the children in the fund derived on the death of the surviving parent, although, if no such change had been made, they would have been the legal beneficiaries,, and although the mutual promises of the parents contemplated that in such case they should be the legal beneficiaries^/

The case presented is ruled precisely as it would be ruled if the children, in the lifetime of the father, were seeking, specific performance of the alleged contract or an injunction to restrain a threatened change of beneficiaries. It may be added, although the suggestion relates rather to the facts than to the law, that the children, appellees, appear to have no particular claim, as against the appellant, to equitable consideration. It is not claimed that appellant knew of any arrangement between her husband and his former wife about life insurance. His relation to her is a sufficient reason for insuring his life for her benefit. If, instead of pursuing the method of substituting one beneficiary for another, he had refused to pay assessments, thus permitting the original certificate to lapse, and procured one in which appellant was named as beneficiary, it is clear that her right to any fund derived therefrom and from his death, would be unassailable.

The decree below, except as to the provision for costs to complainant, is reversed, and a decree will be entered in this court for the payment of the fund to the appellant, who will recover of the appellees the costs of both courts.

Bird, C. J., and Brooke, Blair, and Stone, JJ., concurred.


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    TAYLOR v. HOME TELEPHONE CO.
    Negligence — Contributory Negligence — Volenti Non Fit Injuria.
    In an action for negligent injuries sustained by plaintiff, a caretaker employed by an athletic association, caused by a stream of water that burst from the city water main) "and was forced into a seoond-story window, which plaintiff endeavored to close in order to protect the property, her act being voluntary, in the presence of an obvious danger, constituted such contributory negligence as to preclude any recovery for the alleged negligence of defendant in damaging the main.
    Error to Wayne; Donovan, J.
    Submitted October 12, 1910.
    (Docket No. 47.)
    Decided December 7, 1910.
    Case by Theresa Y. Taylor against the Home Telephone Company for a negligent injury. A judgment for defendant on a verdict directed by the court, is reviewed by plaintiff on writ of error.
    Affirmed.

      Wesley L. Nutten, for appellant.

      Thomas A. E. Weadock, for appellee.
    It is alleged in the declaration that on July 29, 1907, the -defendant’s employés in making an excavation in an alley in the city of Detroit negligently removed a service cock from an 8-inch city water main carrying pressure, laid 41-feet under ground, which they had uncovered. As a consequence water escaped and was forced into the second-story open window of a building into apartments occupied by a women’s athletic association. Plaintiff, who was housekeeper or caretaker of the apartments, attempted to close the window, was knocked down by the force of the stream of water, her clothing soaked with water, and as a -consequence she was chilled, became sick and disordered, was afflicted with rheumatism, etc., from which she still suffers, and has been obliged to lay out money in an effort to cure herself. The plea is the general issue, with notice of special defenses, which, because of the course pursued at the trial, need not be referred to.
    At the trial plaintiff gave testimony tending to prove the said allegations concerning her conduct and its consequences, and gave as the reason for exposing herself her desire to prevent injury to the room and its contents. Ill effects from her wetting appeared, she said, the night succeeding the occurrence. A witness, describing himself as an emergency man for the city water department, testified that he repaired the pipe, a five-eighths inch opening, from which a plug, without a thread — evidently driven in — had been expelled or removed. It does not appear that other testimony was introduced, but the following colloquy took place:

      “The Court: Have you any other testimony ?

      “Mr. Nutten: Dr. Hodge.

      “The Court: We do not want the doctor yet.

      “Mr. Weadock to Mr. Nutten: Is that all the testimony in support of your case, except the medical testimony ?

      “Mr. Nutten: No, sir; I did not subpoena them. I knew the witnesses I had here.

      “The Court: The main thing is this: Can you make the main case of the main witness, Mrs. Taylor, substantially any different from what you have now ?

      “Mr. Nutten: Yes, I think so.

      “Mr. Weadock: How can he contradict his own witness’ statement ?

      “Mr. Nutten: I do not want to do that.

      “The Court: All you can do, a.s I take it, is to give cumulative evidence. That is more of the same kind of the order already given, the water pipe was opened and that it flooded, these rooms, is that right ?

      “Mr. Nutten: I want to show what kind of a plug was in there by the water board. I want to show what the condition was. I want to show that there were certain conditions existing there that would warn this defendant that that plug was liable to come out, if not handled in proper condition.

      “The Court: That does not change the case one iota. In onr Supreme Court, in a decision by Judge Campbell, they have held that before. Where a woman went to rescue a pet horse and take it out of a burning barn and where they could see their danger, and this happened in broad daylight. The law will not recompense a known danger. People walk into danger and take their chances. I can give you a case absolutely. This woman walked into danger.

      “Mr. Nutten: This case comes under the rule I will call your attention to, found in some other Michigan cases.

      “ The Court: I will take them right now.

      “Mr. Weadock: It seems tome under the statement of counsel the case is out.

      “Mr. Nutten: No, sir.

      “Mr. Weadock: If you will state why, I think I will admit it.

      “Mr. Nutten: I will attempt to show that these people in digging around this service cock knocked it out negligently.

      “Mr. Weadock: Suppose they did?

      “ Mr. Nutten: If that is conceded.

      “Mr. Weadock: No, sir; not conceded, only I am saying,, supposing it for the sake of the argument.

      “The Court: I have the case where the woman had more reason than this; endangering her pet horse.

      “Mr. Weadock: If this woman had stayed where she was, she would have been absolutely safe.

      “Mr. Nutten: Here was an emergency that suddenly came upon this woman. She was there in the orderly performance of her duty.

      “Mr. Weadock: If that is your case, then I move to direct a verdict for the defendant, because the plaintiff’s own testimony shows she has no case. Now, it is squarely before the court.”
    After hearing counsel, the court directed a verdict for defendant, and judgment was entered on the verdict. Proper exceptions were taken to the ruling of the court, and the case presents the question whether, conceding the defendant to have been negligent as alleged, plaintiff, upon her testimony, is entitled to take the verdict of a jury.
   Ostrander, J.

(after stating the facts). The plaintiff’s act was voluntary, the wetting she got was inevitable. Did she, as defendant contends, assume all the consequences of the wetting, whatever they might be ? The principle expressed in the maxim, “Volenti non fit injuria,” is subject to qualifications, which are sometimes stated as qualifications of the rule, but are quite as often recognized as rules in determining the proximate cause of an injury and the contributory negligence of the injured person. Courts have frequently refused to so apply the principle as to deny to one who has at actual risk of injury sought to save property or a person from damage or destruction the right to recover damages.,, A valuable collection of authorities appears in the note to Fisher v. Railway Co. (Va.), 2 L. R. A. (N. S.) 954. See, also, 1 Thompson on Law of Negligence, § 185 et seq.

In Cook v. Johnston, 58 Mich. 437 (25 N. W. 388, 55 Am. Rep. 703), the plaintiff entered a burning shed to release a horse belonging to her husband and was burned. Under the circumstances, and as matter of law, the right to recover was denied. In Harris v. Township of Clinton, 64 Mich. 447, 455 (31 N. W. 425, 428, 8 Am. St. Rep. 842), it is said, citing Cook v. Johnston and other cases:

“ If the danger is known, and can be easily avoided, a peril voluntarily and unnecessarily assumed may constitute such contributory negligence as would preclude a recovery.”

It was held that the question was properly submitted to a jury. In La Duke v. Township of Exeter, 97 Mich. 450 (56 N. W. 851, 37 Am. St. Rep. 357), it appeared that plaintiff deliberately attempted to prevent the struggles of his horse, whose feet and legs were fast in a defective bridge. There was, of course, some risk of injury from the movements of the animal. How much risk depended upon many circumstances. He was injured by the horse, and the contention that the negligence of defendant was not the proximate cause of his injury was overruled.^ In Milbourne v. Power Station Co., 140 Mich. 316, 321 (103 N. W. 821, 823, 70 L. R. A. 600), it is said:

“ The fact that one takes a risk in the performance of a duty is a circumstance entitled to great weight in determining whether his conduct was negligent.”

S In these, as in ail of the cases which have been examined, there was, or was supposed to be, a chance, more or less probable, of escaping any direct consequences of defendant’s negligence. In the case at bar no such chance existed or could have been supposed to exist. May the plaintiff say that the consequences other than a mere wetting were not anticipated by her, and therefore the peril of them was not assumed, and at the same time insist that they were the direct result of defendant’s ■ negligence — of the single occurrence — and defendant must respond in damages? We are of opinion that she may not do so, ' and that the maxim referred to must be applied.

The judgment is affirmed.

’"'Bird, C. J., and Brooke, Blair, and Stone, JJ., concurred.


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    KRETTNICH v. DETROIT CHEMICAL WORKS.
    Master and Servant — Personal Injuries — Duty to Inspect.
    Testimony, in an action for injuries sustained by the breaking of a defective jar holding nitric acid, that defendant made only a visual inspection, that a latent defect existed, which would have been discoverable if defendant had inspected the jar by striking, and that it is necessary to inspect in that way, warranted the submission to the jury of defendant’s negligence.
    Error to Wayne; Mandell, J.
    Submitted October 14, 1910.
    (Docket No. 64.)
    Decided December 7, 1910.

      Case by John Krettnich against the Detroit Chemical Works for personal injuries. Judgment for plaintiff; defendant brings error.
    Affirmed. •

      Willard E. Warner, for appellant.

      Sloman & Sloman (Louis McClear, of counsel), for appellee.
   Blair, J.

This is an action to recover damages suffered while moving a nitric acid jar through the escape) of nitric acid from another jar, due, as plaintiff’s evidence tended to show, to a latent defect in the jar, but, as defendant contended, to a collision between the two jars.

Plaintiff’s declaration contains, among other averments, the following:

“ That the nitric acid so manufactured by said defendant is a dangerous chemical or article to come in contact with, and, when exposed, gives out noxious and dangerous fumes, and rapidly eats its way into objects that it; comes in contact with and renders vessels or receptacles, in which it is placed, including crocks or jars, brittle, SO' that a very slight jar or concussion thereof will cause such crock or jar to break, and release its contents of nitric acid, more especially when such vessel or receptacle is full or nearly full. That, when the acid comes in contact with the body, it burns the flesh and rapidly eats its way therein, all of which facts were then and there well known to said defendant. * * * That the acid pit, at the time of the committing of the grievances hereinafter mentioned, contained three large, heavy jars or crocks or receptacles used by said defendant for storing nitric acid, and which in height were almost level with the top of said pit and had a capacity of about 250 gallons of nitric acid each,‘and some of which were at the time aforesaid partially filled and others nearly full thereof, and which while containing acid were kept covered to prevent the noxious fumes from escaping. * * * That it then and there became and was the duty of said defendant to furnish safe and sound crocks, jars, or receptacles for the storage of nitric acid while the same were in said pit, and to exercise great caution to ascertain whether the same had not become brittle and weakened by reason of the action of the nitric acid contained therein, and to cause due inspection to be made thereof at reasonable intervals, so that defects and weakness therein due to the action of nitric acid could be discovered and thereby guard against the use of brittle, unsound, or defective crocks, jars, or receptacles of said description. * * * That on the day and year last aforesaid, pursuant to said direction and request, plaintiff entered said pit and proceeded to move one of the crocks, jars; or receptacles therein, which was nearly filled with nitric acid, from one part of said pit to another, and while engaged in so moving the same, without fault or negligence on his part, a crock, jar, or receptacle (which was then and there brittle and defective, but which defects were then and there unknown to plaintiff and were well known to the defendant, or, if not known, should have been, in the exercise of due and proper care on his part) cracked and broke, and a section thereof fell out, and released the contents of nitric acid therein, which ran in and •over the said pit, and onto, over, and against said plain-tiff,” etc.

The important question in the case, and in our opinion the only one requiring consideration, is whether there was any testimony whatever to warrant submitting to the jury whether defendant failed to properly perform its alleged duty of inspection. Three witnesses testified that the jars did not come in contact. No witness testified that they did strike except that the plaintiff, after testifying twice that they did not strike, used the following .language:

“Q. Just before the jar broke you hollered Whoa,’ to the men, and they loosened up on the ropes ?
“A. No; I guess we were moving them at the time they •struck — when that piece fell out.
“Q. When they struck you said ?
“A. No; when this piece fell out.”

The second witness, Breitenbach, who swore positively that the jars did not strike, had made several statements to defendant’s officers prior to the trial to the effect that they did strike. The third witness, Phipps, testified positively that the jars did not strike. Breitenbach and Phipps testified that they examined the jar the second day after the accident, and the break began about six inches from the bottom and was dark for about six inches from the bottom, and the rest, according to Breitenbach:

* * * was a clear break. It didn’t take much to notice it was a clear break. It was lighter than the other. Lighter the rest of the way around. * * *
“Q. What caused the darkness ?
“A. There is something I don’t know. It looked to me like an old break.
“Q. What color was it ?
“A. It was light gray.
“Q. What color was the jar ?
“A. Light, a lightish color.
“Q. A light brown ?
“A. Light brown, you would call it a light brown, a very light brown, more—
“Q. If it was dirt from the floor that had spattered around the bottom of the jar, it would make it darker than the clean part ?
“A. Well, it would not bring it that same color, I don’t believe.
“Q. It might do it?
“A. It might do it, but I don’t believe it would. I don’t think it would. I am positive it would not.”

Phipps testified:

“After the accident, they flushed the pit with water through a hose which was left running, and the pit was cleaned out. After the water was out, I helped to take the crock out. Breitenbach and I broke it up in the pit, and the pieces were thrown through the doorway. I examined the break. Breitenbach called my attention to it. It was rather dark in some places. At the bottom it was darker than at the top, and ran up a foot or eight inches. It looked like a new break on top, but at the bottom it didn’t. The discoloration was in the whitish part of the break. It did not run up as far on the north as the south side of the break. It looked like an old break.”

The testimony on the part of the defense tended to show that the jars were of the best make known, and that, if in good condition when installed, they would last indefinitely. If the jury believed the testimony of the three witnesses referred to, the jar broke without the direct application of any outside force and showed an old crack; and from these facts the jury might well have drawn the inference that a latent defect existed in the jar at the time it was installed.

Was it th¿ duty of defendant to inspect, and, if so, was that duty discharged by a visual inspection ? Plaintiff’s expert Courtiss testified:

“ I use earthenware jars and flasks for holding nitric acid. It has some effect upon earthen jars, and gradually decomposes, softens, and weakens them. The purpose of the glazing of the jars is to prevent the acid from going into the jars. If the glaze be broken off, it would naturally go into the jar, it being porous, and decompose the jar.
“ Exhibit 7 looks like a piece of earthenware jar. Acid would penetrate it, if it were without the glaze. On the inside either it was just painted, or the glaze has gone away. There are little spots of glazing on it. If nitric acid were stored in it for any length of time, it would gradually decompose the glazing, and take it away. * * * The bottom part of the jar where the acid stays would be most affected.
“Q. Can you tell whether the jar, of which Exhibits 6 and 7 are parts and which you have examined, was well manufactured ?
“A. Fairly well, certain impurities in that, indications of impurity, but it is not a perfect jar, the pieces I have seen. Nitric acid weighs about 88 pounds per cubic foot or 7.43 gallons, and 10 to 12 pounds per gallon. The means for testing a jar is by examination of it, and by the ring of it. Every jar that is perfect has a certain ring, a sound ring, by hitting it with a stick or hammer. If there were a crack in the jar, we could not locate it by the ring, unless at the bottom. It might ring on the top, and, if you went to the bottom, it would become dead. You, might ascertain a crack. It could be located only in the bottom. Such a test should be made with an empty jar, because the water would deaden the sound. It would be possible to discover it by the ring when empty, but not when full. * * * I have tested jars to see which of two, one full and the other partly full, would break if struck together, and the one partially full would break, because there is not anything behind it to prevent the concussion at the point where it struck. From my experience in handling nitric acid when stored in crocks under the circumstances described, I would think it would be necessary to inspect them. We were instructed to do it.”

All of the witnesses testified that there was no patent defect in the jar and defendant’s testimony indicates that no inspection except a visual one was ever made. As to why no other than a visual inspection was made defendant’s secretary testified:

“If these crocks had not developed a leak within 60 days from the time they were filled, they were good for 25 years.”

Defendant’s treasurer testified:

“From my experience, I would say that the life of that j ar which broke, for the purpose for which it was used, is from 25 to 50 years, in fact, interminable for the storage of nitric acid, with no wearout to it. I do not consider that any further inspection or examination of that jar from the time when it was installed in 1905 was necessary, it having been examined at that time and found in perfect condition. It had not been changed since it was installed.”

Whether there was any necessity for other than visual inspection became, under the testimony, a question of fact for the jury, which was properly submitted to them in a very fair and impartial charge which fully guarded the rights of defendant. The verdict was neither against the law nor the evidence, nor can we say that it was so clearly excessive as to justify a reversal.

The judgment is affirmed.

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