source: Caselaw Access Project

author: Ostrander, J. Brooke, J.

license: Public Domain

text:
    SCHENK v. CITY OF ANN ARBOR.
    1. Waters and Water Courses — Percolating Waters — Right of Landowner — Legal Rights — Equitable Rights.
    Although, the owner of land has a legal right to sink wells thereon and use the water therefrom supplied hy percolation in any way he chooses to use it and to allow it to flow away, even though he thereby diminishes the water in his neighbor’s wells or dries them entirely, yet such right is qualified in equity and he is equitably entitled to only a reasonable use of such water under all existing conditions.

    2. Same — Municipal Corporations.
    Although the owner of land is a city seeking to supply its inhabitants with water it is not entitled to greater rights to the use of water on such land supplied by percolation than a private party owning land would have.
    3. Municipal Corporations — Diversion of Percolating Waters— Damages to Adjoining Owners — Remedy. v
    Where the owner of land brought an action against a city to recover damages for injury to the water supply of wells on his land due to wells on lands in the vicinity owned by the city from which- the city pumped large quantities of water and on which it was preparing to erect waterworks for supplying the city, located three miles away on other lands, with large quantities of water from the land in question, and to enjoin such proposed waterworks, a decree allowing plaintiff damages for injuries sustained and refusing an injunction, was proper, but should be modified to permit plaintiff to apply for further relief for future injuries. Kuhn, C. J., and Steere and Brooke, JJ., dissenting.
    Appeal from Washtenaw; Kinne, J.
    Submitted October 12, 1916.
    (Docket No. 137.)
    Decided May 31, 1917.
    Bill by Gustave A. Schenk against the city of Ann Arbor for an injunction restraining defendant from taking water from property adjoining plaintiff’s lands. From the decree entered, both parties appeal.
    Modified, and affirmed.

      Arthur Brown, for plaintiff.

      Frank P. Devine (A. F. Freeman and John P. Kirk, of counsel), for defendant.

       0n correlative rights in percolating water, see notes in 64 L. R. A. 236; 17 L. R. A. (N. S.) 465; 23 L. R. A. (N. S.) 331; 25 L. R. A. (N. S.) 465; 37 L. R. A. (N. S.) 193.

   Ostrander, J.

The demand of the inhabitants of the city of Ann Arbor for water for domestic and other purposes exceeds 3,000,000 gallons daily. The municipality owns and operates the water plant supplying water to the inhabitants. Its present used sources of supply are wells, some springs, and the Huron river, which flows through the city. It is dissatisfied with the quantity and the quality of water thus available for the use of the city and its citizens. The charter of the city in terms grants the power to purchase, erect, and maintain grounds and buildings, within or not exceeding three miles outside of the limits of the city, for waterworks. Act No. 331, Local Acts of 1889, as amended by Act No. 658, Local Acts of 1907. South, and some three miles distant from the city, is a considerable tract of marsh land, underlying which is a large bed of water-bearing gravel, within easy reach of the surface of the ground, and there are also two other beds of gravel lower down, one 80 and the other 140 feet below the surface, each of them containing water. Underlying this region, the formations are so distributed, to use the language of a witness:

“That there is a slope for the underground water from the western part of Washtenaw towards Lake Erie, and what is true of this region is true all the way from Hillsdale county northerly to the headwaters of the Huron river up in Oakland county, so that the area that lies between the western part of Washtenaw county and the Steere farm has a slope to the southeast, a general slope to the southeast, and a general drainage to the southeast, and a general underground flowage to the southeast. This is the natural result of the conditions prior to the deposition of the glacial deposits. * * * The gravel deposits are very homogeneous. There is a great deal of fine marl, with clay in it. Traversing this are beds of gravel and sand that we find exposed, and these are found at various levels. These gravel deposits are in the neighborhood of 200 feet thick; in Lodi township they exceed 250 feet; and in the vicinity of the Steere farm they exceed 1,350 feet. Because of the great thickness of the gravel deposits there are running through these deposits at various levels various channels, so that in sinking wells it is not a difficult matter in this region to obtain a considerable supply of water, so that there are hardly any farmers in this neighborhood, I gather, who were unsuccessful in obtaining water; if not within a few feet of the surface, they could by going deeper. * * * The contributing area would come in through these western townships of the county — from Dexter, Lima, and Freedom townships, and part of Sylvan and the townships to the west. They would contribute to this underground water, the natural flow of this area in this way, and this is demonstrable from the records of the wells I have obtained through the intervening area.”

As early as the year 1910 attention was directed to this possible source of. a water supply for the city, and in the year 1912 and thereafter tests were made to determine the quantity of water procurable. There were a number of small wells upon the marsh from which water was flowing. Other wells were driven, five 8-inch wells, and later another 8-inch and a 12-inch well, being, put down by the city, to an average depth of about 30 feet. As many as 715,000 gallons of water flowed freely from the first five 8-inch wells, and from seven wells the daily flow was 866,200 gallons, a quantity which was materially increased by the use of a pump. In the year 1915 the city constructed upon the land a well 16 feet in diameter, from which it pumped water from May 1.2th until July 5th, the pumping being fairly continuous, day and night, although for various reasons, pumping was for short periods of time interrupted. The result was from 3,700,000 to 3,800,000 gallons of water daily. The pumping lowered the water in the well from a point above the level of the ground to within three feet of the bottom of the well. At some time, before or after the tests were begun, the city bought and owns 130 acres of the land, including that upon which the test wells were constructed. Upon this land it desires to erect a costly pumping station, pump the water therefrom, force it to the city, and distribute it to the inhabitants.

It is the theory of the city, which its testimony, and especially its opinion evidence, tends to support, that it' can for an indefinite period take from the wells upon this land a quantity of water, approximating 4,000,000 gallons daily, without lowering the head of the underground water, or the water table, more than it was lowered during the tests it has conducted. It is its theory, also supported by its opinion evidence, that the water in the water-bearing gravel reached by its wells does not, by its presence in the earth, by sepage or percolation, affect agriculture upon or over or near to the particular tract of land; that it is from rains, and not from percolation or seepage from the subterranean body of water, that agriculture is supplied with required moisture.

The plaintiff, and, it appears, other land-owners, upon the marsh and on higher land, contend, and offer testimony to support the contention, that as a result of the pumping operations wells in the vicinity have gone dry, flowing wells upon the marsh have ceased to flow or flow a diminished quantity of water, and that the agricultural productiveness and value of land for a half mile in every direction from the large well of the city will be unfavorably affected by continued pumping of water from the city’s property. The testimony for the plaintiff tends to prove that, when the city be-; gan to pump water from the large well, the water in, plaintiff’s well, 200 rods north and west from the city well, was 4 feet deep, and lowered at the rate of about a foot a week during the first two weeks, and thereafter an inch a day for a week, and then one-half inch a day, until there was no water left in the well. When the pumping ceased, the water returned at the rate of oné-half inch a day, and at the time of the hearing there were 40 inches of water in the well. While the pumping was continued, plaintiff was obliged to get water from a neighbor and to draw water in a tank from the county ditch for his stock. Upon another farm of 284 acres, east and across the road from the plaintiff’s, farm, were two wells, one dug at the house and one at| the barn, and two flowing wells in the fields for the use of stock. The well at the house had been dug more than 50 years, and had always furnished sufficient^ water for domestic use. The water in this well was lowered during the pumping, so that no water could be pumped from it, and after the pumping ceased the water in the well did not return. The well at the barn was affected in a similar way. The flowing wells upon this farm were about three-quarters of a mile north and west of the large well put down by the city. From| one of them the water ceased to flow at all, and from the other only a small quantity ran away, and at the. time of the hearing the flow of water had returned, in one well not at all and in the other only in reduced quantity. Upon another farm south of plaintiff’s land, and west of the land owned by the city, was a flowing well, a mile from the large well owned by the city. It was a 8-inch well, and before the pumping began had flowed a stream of water two-thirds the size of the¡ pipe. The flow was almost entirely cut off while the, pumping was carried on, and after it ceased about one-half of the original flow returned.

In various directions, and at various distances from the test wells, wells and property, it is claimed, were affected by the pumping operations, and a number of the owners of property began actions against the city, seeking to restrain the further taking of water from the wells, charging various resulting injury, temporary and permanent, to the land, occasioned by the taking of this large quantity of water from the earth. One of these cases was heard in the court below on demurrer to the bill of complaint, and from the decree which was entered an appeal was taken. Osborn v. City of Ann Arbor, 189 Mich. 96 (155 N. W. 1102). We declined to determine, upon demurrer, the questions which were presented. In the case at bar the plaintiff dug his well deeper, and secured a supply of water. The learned trial judge concluded that an injunction ought not to be continued, and that plaintiff should be satisfied with a decree for such damages as had resulted from his apparent ascertainable injury. From a decree granting such relief, both parties have appealed.

If the court might accept as final what the parties decline to so accept and act upon, the opinions of gentlemen having special extra knowledge of the subject that the taking of 3,000,000 gallons and more of water from the city wells for an indefinite period will produce no other or greater injury to other owners of land than was produced by the tests which were made, the question whether such use was a reasonable use would be, perhaps, presented for decision. It is obvious, however, that no judicial guarantee can be given that experience will sustain the contentions of either party respecting the results of continued pumping of the water. Under the circumstances, the important question which is involved, namely, whether the court will enjoin the city from further contemplated use of the water, can be answered only by considering what are the rights of the parties. There are some ascertainable controlling facts, and upon them and applicable rules of law a conclusion must be based.

The controlling ascertainable facts may be briefly stated. The parties do not occupy the position of riparian owners. If there was (I think there is not) occasion to aid the testimony by presumption, the presumption necessarily employed would be that the waters in the particular gravel deposit are percolating waters, and not subterranean waters flowing in a defined channel, or contained in an underground lake or pond. Defendant city does not propose to use only the volume of water flowing naturally from its wells; it has augmented, and proposes to augment, that flow by artificial means, by pumps, by which means it will draw to its lands waters out of the surrounding lands, lowering over a considerable area the head of water naturally carried in the gravel. Existing flowing wells, the waters from which are used for the irrigation of crops suitable to be grown in the marsh, will cease to flow, and agriculture be thus, to some extent, directly affected. It proposes to use none, or at most only an inconsiderable, part of the water upon, or for the benefit of, the land from which it takes it, or for its own benefit as landowner; on the contrary, its purpose is to pipe the water away from the land, to sell some of it, to use some of it for municipal purposes, not to return any of it to the land. It cannot be now ascertained whether in time agriculture — surface conditions of land in the vicinity of the well or wells — will be affected injuriously by the continued drawing off of the underground water.

Under such circumstances, the right of the landowner, to the injury or detriment of other landowners, to take from his own land such percolating waters as he may thus be able to collect, is not an unqualified, but is a qualified, right. The letter of the law, as it has been expounded in many cases in England and America, affirms the right of the owner of land to sink wells thereon, and use the water therefrom, supplied by percolation, in any way he chooses to use it, to allow it to flow away, even though he thereby diminishes the water in his neighbor’s wells or dries them entirely, and even though in so doing he is actuated by malice. Such a right has been held a property right, which cannot be taken away or impaired by legislation, unless by the exercise of the right of eminent domain or the police power. Huber v. Merkel, 117 Wis. 355 (94 N. W. 354, 62 L. R. A. 589, 98 Am. St. Rep. 933). See Acton v. Blundell, 12 Mees. & W. 324; Chasemore v. Richards, 7 H. L. Cas. 349; Houston & Texas Cent. R. Co. v. East, 98 Tex. 146 (81 S. W. 279, 66 L. R. A. 738, 107 Am. St. Rep. 620, 4 Am. & Eng. Ann. Cas. 827); Frazier v. Brown, 12 Ohio St. 294. In Pixley v. Clark, 35 N. Y. 520 (91 Am. Dec. 72), the commón-law doctrine was accepted in this language:

"An owner of the soil may divert percolating water, consume or cut it off, with impunity. It is the same as land, and cannot be distinguished in law from land. So the owner of the land is the absolute owner of the soil and of percolating water, which is a part of, and not different from, the soil. No action lies against the owner for interfering with or destroying percolating or circulating water under the earth’s.surface.”

While this is the rule applied, and to be applied, in respect to most of the ordinary uses of land, and the ordinary operations carried on upon and in land, there is other doctrine, apparently, but not strictly, a modification of the early common-law doctrine referred to, which is sometimes-called the doctrine of reasonable user, and which was introduced by equity to the law. The distinction between the rules and the reasoning upon which each is based is stated, very much to my own satisfaction, by Chancellor Pitney in Meeker v. City of East Orange, 77 N. J. Law, 623 (74 Atl. 379, 25 L. R. A. [N. S.] 465, 134 Am. St. Rep. 798), in an opinion approved by each of the members of the court of errors, from which opinion I take the following:

“The English rule seems to be rested at bottom upon the maxim, ‘Cujus est solum, ejus est usque ad ccelum et ad inferos.’ Thus, in Acton v. Blundell, 12 Mees. & W. 354, Chief Justice Tindal said that the case fell within ‘that principle which gives to the owner of the soil all that lies beneath his surface; that the land immediately below is his property, whether it is solid rock, or porous ground, or venous earth, or part soil, part water; that the person who owns the surface may dig therein, and apply all that is there found to his own purposes at his free will and pleasure.’ Here the impracticability of applying the rule of absolute ownership to the fluid, water, which- by reason of its nature is incapable of being subjected to such ownership, is apparently overlooked. If the owner of Whiteacre is the absolute proprietor of all the percolating water found beneath the soil, the owner of the neighboring Blackacre must, by the same rule, have the like proprietorship in his own percolating water. How, then, can it be consistent with the declared principle to allow the owner of Whiteacre to withdraw, by pumping or otherwise, not only all the percolating water that is normally subjacent to his own soil, but also, and at the same time, the whole or a part of that which is normally subjacent to Blackacre? Where percolating water exists in a state of nature generally throughout a tract of land, whose parcels are held in several ownership by different proprietors, it is, in the nature of things, impossible to accord to each of these proprietors the absolute right to withdraw ad libitum all percolating water which may be reached by a well or pump upon any one of the several lots, for such withdrawal by one owner necessarily interferes to some extent with the enjoyment of the like privilege and opportunity by the other owners. Again, .the denial of the applicability to underground waters of the general principles of law that obtain with respect to waters upon the surface of the earth is in part placed upon the mere difficulty of proving the facts respecting water that is concealed from view. But experience has demonstrated in a multitude of cases that this difficulty is often readily solved. When it is solved in a given case, by the production of satisfactory proof, this reason for the rule at once vanishes. * * * Upon the whole we are convinced, not only that the authority of the English cases is greatly weakened by the trend of modem decisions in this country, but that the reasoning upon which the doctrine of ‘reasonable user’ rests is better supported upon general principles of law and more in consonance with natural justice and equity. We therefore adopt the latter doctrine. This does not prevent the proper user by any landowner of the percolating waters subjacent to his soil in agriculture, manufacturing, irrigation, or otherwise, nor does it prevent any reasonable development of his land by mining or the like, although the underground water of neighboring proprietors may thus be interfered with or diverted; but it does, prevent the withdrawal of underground waters for distribution or sale for uses not connected with any beneficial ownership or enjoyment of the land whence they are taken, if it results therefrom that the owner of adjacent or neighboring land is interfered with in his right to the reasonable user of subsurface water upon his land, or if his wells, springs, or streams are thereby materially diminished in flow, or his land is rendered so arid as to be less valuable for agriculture, pasturage, or other legitimate uses.”

The earlier cases in New York repeatedly approved the rule laid down in Acton v. Blundell and Chasemore v. Richards, but in Smith v. City of Brooklyn, 32 App. Div. 257 (52 N. Y. Supp. 983), affirmed in 160 N. Y. 357 (54 N. E. 787, 45 L. R. A. 664), it was held that, whatever may be the rule with respect to the right of a landowner to use the water percolating through the earth, and thereby to affect the sources of wells or springs upon his neighbor’s land, he may not divert and diminish the natural flow of a surface stream by preventing its usual and natural supply, thereby causing, through suction or other methods, a subsidence of its waters. In that case, the action was brought to recover damages for the draining of a stream and pond upon plaintiff’s premises. For many years the plaintiff had, by means of a dam, made a pond, and made use of it in connection with his farming operations, for the collection and sale of ice; and for boat-building purposes. The defendant, at a distance of some 2,400 feet from the pond, had constructed an aqueduct for the purpose of conducting water for its municipal purposes, which it did by wells and pumps upon its own land. The complaint was that the defendant drained the plaintiff’s water course and pond, and evidence was offered tending to prove that the direct cause of the stream running dry was the draining of the territory by defendant’s construction of its system of conduits, wells, and pumps, and the use of suction. The verdict of the jury sustained the contention of the plaintiff, and a judgemnt upon the verdict was sustained, upon the ground that the water of a natural surface stream is for the benefit of all the riparian owners, and that to divert or to diminish its flow in any way is an interference. with a natural right, which gives rise to an action for the injury.

In Forbell v. City of New York, 164 N. Y. 522 (58 N. E. 644, 51 L. R. A. 695, 79 Am. St. Rep. 666), determined in November, 1900, a perpetual injunction was granted restraining the city of New York from operating its engines, driven wells, and pumping stations, known as the “Spring Creek pumping station,” in the borough of Queens, and awarded past damages to the plaintiff in the sum of $6,000. The plaintiff was the lessee of certain farm lands situated near Spring creek, and he used a portion of the lands for the purpose of growing celery and water cresses. The city of Brooklyn constructed a pumping station in the place in question in 1885, and in 1894 sunk additional wells and made an additional pumping station. The effect of pumping at this station was to lower the underground water table on this land, and thus made it unfit for the cultivation of celery and water cresses, and the crops failed for several years prior to the commencement of the action. In affirming the judgment, the.court of appeals said:

“It may be conceded that the letter of the law, as expounded in many cases in this State, denies liability [citing numerous cases]. The earlier cases followed the law as stated in Acton v. Blundell, 12 Mees. & W. 324, and Greenleaf v. Francis, 18 Pick. [Mass.] 117. So far as the extraction or diversion of underground water upon the land of one proprietor affects no surface stream or pond upon the neighboring land, but simply the underground water therein, the rule is still adhered to.”

But, in argument, after stating the reason for the English rule, the court used the following language:

“In the cases in which the lawfulness of interference with percolating waters has been upheld, either the reasonableness of the acts resulting in the interference, or the unreasonableness of imposing an unnecessary restriction upon the owner’s dominion of his own land, has been recognized.”

In Hathorn v. Gas Co., 194 N. Y. 326 (87 N. E. 504, 23 L. R. A. [N. S.] 436, 128 Am. St. Rep. 555, 16 Am. & Eng. Ann. Cas. 989), the object of the suit was to restrain the appellant, the gas company, from using pumps and other apparatus for the purpose of accelerating and increasing the flow of subterranean percolating water and gas through deep wells which it had sunk upon its premises in the town of Saratoga Springs; the plaintiffs contending that in their complaint they set forth a cause of action both at common law and under the provisions of the statute of New York for the protection of the natural mineral springs of the State and to prevent waste and impairment of its natural mineral waters. It was heard and determined upon demurrer to the complaint. From the prevailing opinion delivered by Hiscock, J., I take the following:

‘T shall endeavor first to apply to the pleading thus attacked the test of common-law principles, and the question whether measured by them it does set forth a cause of action may be stated in a more concrete form applicable to the specific facts involved in this action. Thus stated, it will be whether a landowner has the right by the use of pumps and other apparatus greatly to accelerate and increase the natural flow of subterranean percolating mineral waters and gas through deep wells bored into a widely extended common supply of such substances, not for any purpose connected with the enjoyment of his lands, but for the purpose of procuring from the waters a supply of gas to be marketed throughout the country, and with the result of wasting great quantities of mineral waters, and of destroying or impairing the natural .flow of such waters and gas in and through the springs of other landowners throughout a large area, and of destroying or impairing the valuable character of such waters for the purposes for which they have been habitually used.
“The earlier decisions in this and other States laid down the general rule that a landowner might not be enjoined from doing an act on his own premises which resulted in diverting or even wholly destroying the flow of percolating waters from or upon his neighbor’s lands. Ellis v. Duncan, 21 Barb. [N. Y.] 230; Pixley v. Clark, 35 N. Y. 520 [91 Am.. Dec. 72]; Trustees of Village of Delhi v. Youmans, 45 N. Y. 362 [6 Am. Rep. 100]; Bloodgood v. Ayres, 108 N. Y. 400 [15 N. E. 433, 2 Am. St. Rep. 443]; Haldeman v. Bruckhart, 45 Pa. 514 [84 Am. Dec. 511]; Greenleaf v. Francis, 18 Pick. [Mass.] 117; Frazier v. Brown, 12 Ohio St. 294.
“In thus holding they but followed the rule laid down in the leading ease of Acton v. Blundell, 12 M. & W. 324, 354, wherein was approved the principle ‘which, gives to the owner of the soil all that lies beneath his surface; * * * that the person who owns the surface may dig therein, and apply all that is there found to his own purposes at his free will and pleasure; and that if, in the exercise of such right, he intercepts or drains off the water collected from underground springs in his neighbor’s well, this inconvenience to his neighbor falls within the description of damnum absque injuria, which cannot become the ground of an action.’
“It will hardly be profitable to consider all of the different reasons which led the courts to adopt these principles, but it is important to bear in mind that they were invariably applying them to cases in each of which the party complained of had interfered with the enjoyment by another of percolating waters by some act which was directly and naturally connected with the improvement or enjoyment of his own land. Thus, in the Acton Case, the act which resulted in the interference complained of consisted in mining operations on a man’s own land. In the case of Ellis v. Duncan, the person intercepting the flow of percolating waters on his neighbor’s land had done so by digging a trench or ditch and opening a quarry on his premises. No question was presented in these cases of a landowner depleting or exhausting a common supply of underground waters by artificial methods for purposes not in any way connected with the enjoyment or use of his own lands.
“But with the increased demands upon natural resources, such as water, this question did begin to arise. It seems to have been first suggested in England in. the case of Chasemore v. Richards, 7 H. L. Cas. 349. There the question arose whether the flow of percolating waters on another’s land might be diverted or destroyed by pumping for purposes of supplying a municipality with water, and while it was finally held that this might be done, it was only after the right had been seriously questioned.
“In this State it was first discussed, though not actually involved, in Smith v. City of Brooklyn, 18 App. Div. 340 [46 N. Y. Supp. 141], and it was there stated by Judge Hatch that the right in this State had never ‘been upheld in the owner of land to destroy a stream, a spring, or well upon his neighbor’s land, by cutting off the source of its supply, except it was done in the exercise of a legal right to improve the land, or make some use of the same in connection with the enjoyment of the land itself, for purposes of domestic use, agriculture, or mining, or by structures for business carried on upon the premises.’
“Finally, in the case of Forbell v. City of New York, 164 N. Y. 522, 526 [58 N. E. 644, 51 L. R. A. 695, 79 Am. St. Rep. 666], the question reached this court, and the necessity was recognized, not for an alteration of the rules which had been applied by earlier cases to the facts then presented, but, rather for an enlargement and extension of such rules, so that they would be applicable to new conditions. That case for the first time in this State at least laid down the rule of the reasonable use of percolating waters which I think is applicable to and controlling of the facts in this case. There the city of New York tapped waters, percolating under some lands purchased by it, and which were part of a connected system or supply extending over a large area, and then by powerful apparatus so forced the flow of this water as to exhaust the supply which had formerly supplied plaintiff’s land, and this was done for the purpose of furnishing a supply of water for the defendant. The court, reviewing many earlier cases passing upon the right of a landowner to enjoy the subsurface waters under his premises said:
‘“In the cases in which the lawfulness of interference with percolating waters has been upheld, either the reasonableness of the acts resulting in the interference, or the unreasonableness of imposing an unnecessary restriction upon the owner’s dominion of his own land, has been recognized.
“ ‘In the absence of contract or enactment, whatever it is reasonable for the owner to do with his subsurface water, regard being had to the definite rights of others, he may do. He may make the most of it that he reasonably can. It is not unreasonable, so far as it is now apparent to us, that he should dig wells and take therefrom all the water that he needs in order to the fullest enjoyment and usefulness of this land as land, either for purposes of pleasure, abode, productiveness of soil, trade, manufacture, or for whatever else the land as land may serve.' He may consume it, but must not discharge it to the injury of others. But to fit it up with wells and pumps of such pervasive and potential reach that from their base the defendant can tap the water stored in the plaintiff’s land, and in all the region thereabout, and lead it to his own land, and by merchandising it prevent its return, is, however reasonable it may appear to the defendant and its customers, unreasonable as to the plaintiff and the others whose lands are thus clandestinely sapped, and their value impaired.’
“The principles thus adopted in the Forbell Case have been fairly upheld in the courts of other States. Gagnon v. French Lick Springs Hotel Co., 168 Ind. 687 [72 N. E. 849, 68 L. R. A. 175]; Richmond Nat. Gas Co. v. Enterprise Nat. Gas Co., 31 Ind. App. 222 [66 N. E. 782]; Willis v. City of Perry, 92 Iowa, 297 [60 N. W. 727, 26 L. R. A. 124]; Katz v. Walkinshaw, 141 Cal. 116 [70 Pac. 663, 74 Pac. 766, 64 L. R. A. 236, 99 Am. St. Rep. 35].
“The situation described by the complaint in this action is relatively of the same general character as that with which the court dealt in the case cited.
“One proprietor by artificial and unusual methods has so increased the flow of percolating waters and gas upon its lands that it is obtaining a greatly increased proportion of a common supply at the expense of its neighbors, and it is doing this in order to supply a public market for a portion of these products while the others are wasted. The only important feature distinguishing the cases is the element of waste present in this one and absent in the earlier one.
“If these facts, resting now merely on the allegations of a pleading, shall be established by evidence, the trial court will in my opinion be fully authorized to draw the conclusion that they disclose a case of unreasonable and improper conduct by the appellant in the premises, and make out in favor of respondents a sufficient cause for appeal to and relief by a court of equity.”

See, also, People v. Gas Co., 196 N. Y. 421 (90 N. E. 441).

In Katz v. Walkinshaw, 141 Cal. 116 (70 Pac. 663, 74 Pac. 766, 64 L. R. A. 236, 99 Am. St. Rep. 35), the maxim, “Sic utere tuo ut alienum non Isedas,” is held applicable as between adjoining users of percolating waters whenever justice requires its application; a headnote which fairly states the conclusion arrived at by the court being:

“Each owner of soil lying in a belt which becomes saturated with percolating water is entitled to a reasonable use thereof on his own land, notwithstanding such reasonable use may interfere with water percolation in his neighbors’ soil; but he has no right to injure his neighbors by an unreasonable diversion of the water percolating in the belt for the purpose of sale or carriage to distant lands.”

One reason given by the court, it is true, for the ruling, is that the common-law rule that percolating water belongs unqualifiedly to the owner of the soil, and that he has the absolute right to extract and sell it, is not applicable to the conditions existing in a State where artificial irrigation is essential to agriculture, and artesián wells in percolating belts are necessarily used for that purpose. Upon the general subject, see 30 Am. & Eng. Enc. Law (2d Ed.), p. 308 et seq. See, also, Hart v. Aqueduct Corporation, 133 Mass. 488; Bassett v. Manufacturing Co., 43 N. H. 569 (82 Am. Dec. 179); Swett v. Cutts, 50 N. H. 439 (9 Am. Rep. 276).

I have said that, in view of the circumstances, the right of defendant to make use of the water is a qualified right. It is qualified by this rule of reasonable user, a rule quite in harmony with the provisions of Act No. 190, Pub. Acts 1889, and Act No. 107, Pub. Acts 1905. There is no apparent reason for saying that, because defendant is a municipal corporation, seeking water for the inhabitants of the city, it may therefore do what a private owner of the land may not do. The city is a private owner of this land, and the furnishing of water to its inhabitants is its private business. It is imperative that the people of the city have water; it is not imperative that they secure it at the expense of those owning lands adjoining lands owned by the city.

It does not follow that the city may not reasonably make use, for the purpose intended, of a large volume of water from this land. I have stated the rule by which the rights of the city and other landowners must be determined. Manifestly the city must take the chances, of experience. The decree will not be reversed, and an injunction granted to plaintiff, although it should be so modified as to permit plaintiff hereafter to apply to the court, upon the footing of the decree and upon new matter, for equitable relief. The court cannot know what action the defendant city will take in the premises. It is not now harming the plaintiff, and the decree secures to him compensation for such actual injury as he is shown to have suffered.

The decree, modified as indicated, will be affirmed, and no costs of this appeal will be awarded to either party.

Stone, Bird, and Moore, JJ., concurred with Ostrander, J.

Brooke, J.

(dissenting). I am unable to agree with the conclusion reached by my Brother Ostrander in this case. ' The final paragraph of his opinion leaves the door open to the defendant, the city of Ann Arbor, to proceed with the erection upon its property of an expensive pumping plant, use of which may thereafter at any time be enjoined by the court upon a showing that continuing damage results to plaintiff through such use. I think that the defendant should either be permanently enjoined from proceeding with the contemplated enterprise, at this time and upon the testimony in this record, or that injunctive relief should be denied, and the decree of the court below affirmed, by the terms of which plaintiff was awarded damages for such, injury as has already occurred and his right to recover for future damages preserved.

Inasmuch as the right of the public to an adequate supply of pure drinking water is paramount to private property rights, I am of opinion that the law in this State should be clearly enunciated as follows: That any municipality, requiring water for domestic or municipal purposes, may, under the authority granted by the legislature, procure such water from lands acquired by it for that purpose and that the resulting damage, if any, to adjacent landowners, must be borne by such municipality; such damages to be ascertained in gross and in a single action at law by the injured landowner. These views are not out of harmony with those expressed by the writer in the case of Loranger v. City of Flint, 185 Mich. 454 (152 N. W. 251), where the municipality was taking its water from a navigable stream upon which it was a riparian owner.

The decree of the court below should be amended to provide for the bringing of a single action at law against defendant by plaintiff for the recovery of his damages in gross.

Kuhn, C. J., and Steere, J., concurred with Brooke, J. Person, J., did not sit.


author: Moore, J. Ostrander, J.

text:
    RADFORD v. GAUKLER.
    1. Bills and Notes — Fraud—Question fob Juey.
    In an action by an attorney against his client to recover upon certain notes given for legal services, wherein defendant claimed fraud on the part of plaintiff in inducing her to sign the notes by false representations that she was free and clear of a certain claim as to which a portion of such services was rendered, held that a question of fact for the jury was presented.
    2, Same — Fraud—Evidence—Sufficiency.
    Evidence held insufficient to sustain a finding that plaintiff had fraudulently procured the execution by defendant of the notes sued on, where the testimony of defendant and her son as to such fraud was contradicted on cross-examination and by averments conclusively showing the true state of facts contained in her answer to a certain bill. Moore, J., dissenting.
    Error to Wayne; Chester, J., presiding.
    Submitted October 11, 1916.
    (Docket No. 124.)
    Decided May 31, 1917.
    Rehearing denied September 28, 1917.
    Assumpsit by George W. Radford against Josephine Gaukler, survivor of herself and Arthur H. Gaukler, deceased, upon two promissory notes. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Harrison Geer, for appellant.

      Bailey & Bradley (Otto Kirchner, of counsel), for appellee.
   Moore, J.

(dissenting). Plaintiff brought suit on two promissory notes for $5,000 each made by Josephine Gaukler and Arthur H. Gaukler, dated October 21, 1911, and due October 1, 1912. The defendant, in the notice attached to her plea of the general issue, set up several defenses. At the close of the evidence each of the parties moved for a directed verdict. The court denied both of the motions, and submitted one question only to the jury, namely: Were the notes procured by fraud ? The verdict of the jury was for the defendant. The plaintiff moved for judgment in his favor non obstante veredicto, pursuant to Act No. 217, Pub. Acts 1915 (3 Comp. Laws 1915, § 14568 et seq.). This motion was denied, and judgment of no cause of action was entered. Later plaintiff moved for a new trial, which motion was also denied. The case is before this court on assignments of error.

The plaintiff, an attorney, was retained by the defendant and her son, Arthur H. Gaukler, to look after legal difficulties growing out of their connection with the Electric Park Amusement Company and its successor, the Electric City Amusement Company, as stockholders, bondholders, and indorsers of the commercial paper of said companies. Some of this litigation is found in Electric Park Amusement Co. v. Wayne Circuit Judge, 155 Mich. 640 (119 N. W. 1095), Schmidt v. Gaukler, 156 Mich. 243 (120 N. W. 746); Union Trust Co. v. Amusement Co., 163 Mich. 687 (130 N. W. 306); Commercial National Bank v. Gaukler, 164 Mich. 215 (129 N. W. 195); Kelly v. Gaukler, 164 Mich. 519 (129 N. W. 703); Commercial National Bank v. Gaukler, 165 Mich. 403 (130 N. W. 655); Union Trust Co. v. Amusement Co., 168 Mich. 574 (135 N. W. 115). In 1908 the Restrick Lumber Company was pressing a large claim against the Electric City Amusement Company, which was practically owned by Mrs. Gaukler and her son, and an arrangement was made by which Mrs. Gaukler turned over to them notes of her brother and entered into a written contract containing the following among other provisions:

“Whereas, for a valuable consideration, the receipt of which is hereby acknowledged, said C. W. Restrick Lumber Company hereby transfers to Josephine Gaukler all its claims as creditor of the Electric City Amusement Company; and in part consideration thereof the said Josephine Gaukler hereby agrees to have issued to said C. W. Restrick Lumber Company twenty thousand seven hundred dollars out of the stock of the said proposed new company, when organized, which may be allocated to said Josephine Gaukler.”

In July, 1910, an order was entered in the Wayne circuit court disbarring the plaintiff. That proceeding was removed to this court by certiorari, and was pending here until February 12, 1912, when the order of the lower court was confirmed. The plaintiff sought to get a settlement and payment from the Gauklers for the services rendered by him. His claim found its way into the hands of Mr. Stellwagen, an attorney, and to him was sent the following:

“Detroit, Oct. 19, 1911.
“Mr. A. C. Stellwagen,
“City.
“Dear Sir: As a tribute to Mr. Radford’s legal genius and in gratitude for the noble services he so ably rendered during the past 4% years, we will be glad to accept his suggestion of $45,000 as a proper amount to be paid for legal services for all the Gauklers in their various capacities, subject, however, to conditions hereinafter following: $25,000.00 we will pay cash today; $12,500.00 we will pay on or before Oct. 1, 1912; $7,500.00 has already been paid; $45,-000.00 is the total. This is to cover all services, whether rendered by Mr. Radford and counsel, past and future, already performed or yet to be rendered, in the Electric Park foreclosure case now pending in the Supreme Court. Also filing of bill and all services therewith necessary to the procurement of decree to clear cloud from title to certain land in Lake township, Michigan, recently purchased by me from William and Barney Allor; the court costs, however, to be paid by me. Also all other services as may be required up to January 1, 1912. Also all services in connection with the formation of any corporations already organized and yet to be organized by us before Jan. 1, 1912. If the conditions herein named are acceptable, we will be glad to pay the $25,000 item in cash before the closing of the banks to-day.
“Respectfully yours,
“Josephine Gaukler.”

The offer contained in this letter was not accepted. The record contains the following:

“ ‘Article of agreement entered into on this 21st day of October, 1911. Whereas, George W. Radford has been counsel for Josephine Gaukler and Arthur H. Gaukler since July 15, 1907, in various matters; and whereas, it is agreed by and between the respective parties hereto that the total amount for all services rendered or to be rendered to January 1, 1912, as stated below to be received by said George W. Radford shall be forty-five thousand dollars; and whereas, George W. Radford has already received on account of said services the sum of seven thousand five hundred dollars, leaving a balance of thirty-seven thousand five hundred dollars; and whereas, it is mutually agreed that this $37,500.00 shall be paid as follows: Twenty-five thousand dollars in cash, and twelve thousand five hundred dollars in three notes, signed by Josephine Gaukler and Arthur H. Gaukler, payable on or before October 1st, 1912, as follows: One for $2,500.00; one for $5,000.00; one for $5,000.00:
“‘Now, therefore, it is mutually agreed that the services included in this agreement cover the work required to be done in the Supreme Court for completion of the foreclosure case with reference to Electric Park, now pending in the Supreme Court of this. State; also the services of counsel; also the filing and completion of a bill to clear cloud from title to land in Lake township recently purchased by Josephine Gaukler from Barney and William Allor; and also all services in connection with the completion of the Detroit Racing Railway corporation organization and a corporation to manage and hold the Gaukler lands to be organized by us before January 1, 1912. Said George W. Radford hereby acknowledges receipt of twenty-five thousand dollars. The notes for the twelve thousand five hundred dollars are to be delivered on October 21,1911.
“ ‘Witness our hands and seals on the day and year first above written at Detroit. Michigan.
“ ‘Josephine Gaukler.
“ ‘Arthur H. Gaukler.
“ ‘George W. Radford.’
“Mr. Kirchner: Will you admit that the notes sued on are the notes mentioned in this agreement^
“Mr. Geer: Yes.”

As before stated, each of the parties at the close of the evidence asked for a directed verdict. It was the claim of the defendant that some of the provisions of the agreement which we have quoted, and which was given at the time the notes were made, were illegal, because the plaintiff, at the time the agreement was made, had been disbarred, and, as the notes were given in part consideration of said agreement, they are void. It was also claimed the notes were obtained by reason of false statements as to the status of the claim of the Restrick Lumber Company. The trial court was of the opinion that there was no such illegality in the agreement entered into by the plaintiff as to void the notes, but left the question of fraud to the jury as follows:

“Defendant claims that this contract, made in 1908, was left in Mr. Radford’s hands, and that she had no further knowledge or information regarding it, excepting the representations which she claims. Radford made to her regarding it, and which she claims, were fraudulent representations, until after October 21, 1911; that is, she claims she has no further knowledge regarding it until October 21, 1911, excepting the representations which Mr. Radford made to her regarding it.
“Defendant claims that, prior to making the contract and notes on October 21, 1911, Mr. Radford, for the purpose of getting her to sign the contract and deliver the notes in question, falsely and fraudulently represented to her that the Restrick Lumber Company claim was all taken care of, and that she was free and clear from any obligations to the Restrick Lumber Company, and that she was not in any way indebted to the Restrick Lumber Company; and she claims she believed these statements to be true, and that she relied on them as true, and was induced by such statements to make the contract and give the notes in question. She further claims that the statements were false, and by reason of these false statements she has been defrauded and deceived in the giving of these notes and the entering into of the contract of October 21, 1911, and that, if these representations had not been made to her, she would not have given the notes involved in this suit. * * *
“On the part of the plaintiff, Mr. Radford, he denies that he ever represented to the defendant, Mrs. Gaukler, or any one, that the Restrick Lumber Company claim was all taken care of, or that she was free and clear from any obligations to the Restrick Lumber Company, or that she was not in any way indebted to the Restrick Lumber Company; and plaintiff, Mr. Radford, insists that the negotiations between him and defendant which led to the making of the notes sued upon were not commenced until the middle of October or thereabouts, and that from at least two weeks before the time of the commencement of such negotiations they were conducted through Mr. Stellwagen and Arthur H. Gaukler until long after this contract was signed. Plaintiff claims that the defendant never saw him in regard to these matters, and that the offer contained in the letter of October, 1911, was made by her, irrespective of any alleged representations made by him, and that she could not have relied upon any such representations in making the offer. Plaintiff claims that defendant signed Exhibit J, which was the Restrick contract, bearing date March 4, 1908, and that she knew the contents of that contract, and knew that it was her duty to allot to or turn over to the Restrick Lumber Company the stock of the new company which was to be organized, and plaintiff insists that she all the time knew that the Restrick matter had not been closed up. ■
“Now, in a general way, gentlemen, as I understand, this is the claim on the part of the plaintiff.
“Gentlemen, there is but one important question for you to solve; that is, were those notes and the contract of October 21, 1911, made by defendant because of false and fraudulent representations made by Radford to her under the instructions I shall give you? * * * I charge you that the contract between George W. Radford, Josephine Gaukler, and Arthur H. Gaukler, bearing date October 21, 1911, whereby the parties thereto agreed upon the amount to be paid to plaintiff for his. services rendered to defendant and her son, was a valid contract and enforceable, unless defendant is relieved because of plaintiff’s fraud. You are also instructed that no question has been raised by the defendant as to the services being worth the amount contracted by her to be paid to the plaintiff for them, providing you find that he did render the services which he represented to her he had performed, and it is not for you to say whether the amount agreed upon is more than you think it ought to be or not; the amount of fees is not for your determination,
“You understand, from this statement I have given you of this case, that defendant claims that she is relieved from the payment of these notes because of the claim of fraud practiced on her by plaintiff. Fraud is defined as a false statement or statements, which statements must be material and well calculated to influence the person or persons to whom they are made, and that such statements are made for the purpose of inducing another to part with money or other valuable things. And to establish the claim of fraud it must be shown by defendant, by a preponderance of evidence, first, that plaintiff made a material representation and that it was false; second, that the person to whom such false statements are made must believe them to be true; third, that the person to whom they are made must rely on them as true, and, fourth, must be induced by them to part with his or her property (in this case to enter into the contract and make and deliver the notes in question); fifth, such false representations must actually deceive the persons to whom they are made and the person must have been defrauded thereby. Fraud cannot be presumed, but must be established by a preponderance of the evidence, and each of these elements of fraud must be established by a preponderance of the evidence; and if defendant fails in any of them then she has failed to establish the claim of fraud, and if she fails to establish the claim of fraud then your verdict is for the plaintiff.”

The court practically repeated this statement again in the charge, but it is not necessary to quote further.

The important question, then is: Was there testimony that justified the submission of this question to the jury? Mrs. Gaukler testified in part as follows:

“Q. What did Mr. Radford say to you, if anything, before you signed that agreement and that note?
“A. Why, he told me he cleared everything away, all trouble; especially he mentioned the Restrick affair, that he saved us $20,000 on the Restrick and everything else — that everything was clear.
“Q. What do you mean by everything else was clear?
“A. All our obligations with anything and everything.
“Q. What, if anything, did he say about debts being clear ?
“A. Well, he said he saved us over $20,000 on the Restrick affair.
“Q. What, if anything, did he say about the Restrick affair being settled?
“A. He said he settled everything. * * *
UQ. Answer this question ‘Yes’ or ‘No,’ Mrs. Gaukler: Did Mr. Radford say anything, immediately before the signing of the note and the contract, that induced you to sign the notes and the contract; ‘yes’ or ‘no,’ did he say anything?
“A. Yes, sir. * * *
“Q. Now, what did he say?
“A. He said that he cleared everything for us; that we were free and clear of all debts and everything. And on that we accepted the contract.
“Q. Now, then, what did he say about the Restrick contract, if anything — obligation to Restrick?
“A. He said he saved us $20,000 on the Restrick deal.
“Q. Well, if anything, what did he say — that was settled or not?
“A. Not a word.
Q. What is it?
“A. He said it was. dear; that it was all settled.
“Q. Now, did you believe what Mr. Radford said?
“A. I did.
“Q. If he hadn’t told you those things—
"A. I wouldn’t have signed that contract.
“Q. You wouldn’t have signed the contract; would you have signed the notes?
“A. No, sir.”
A son of Mrs. Gaukler testified in part as follows:
“Q. What, if any, representations did Mr. Radford make to your mother touching her freedom or liability from debt.
“A. He told my mother that he had settled the second mortgage bonds. He said he had considerable work, which we knew was so. He said that ‘I saved you, when the Restrick settlement was made for $5,000, I saved you over $20,000;’ and he said, T ought to have credit for that, and that is. why I am asking $75,000.’ And mother says, ‘That is exorbitant;’ and he says, ‘Well,’ he says, T settled everything, and saved you everything you have got, and I am entitled to this money;’ and he says, ‘Mrs. Gaukler, you are just as free from debt and legal entanglements as a new-born babe/ Those are his exact words; he says, ‘Mrs. Gaukler, I canAt express it any other way, except that way, as a new-born babe;’ and he repeated it several times and he has repeated it since.
“Q. Well, now. will you state on what occasion he repeated it since, and what led up to his doing so?
“A. I think it was the fore part of April; I am not sure. I think it was at the date of the signing of the lease of the Detroit Racing Railway Company; we had been in Mr. Radford’s office a number of times, and it was right after the death of my brother, and she was tired, and I guess heartsick, and she had asked Mr. Radford, after he had read the lease- — it was quite long, I guess three or four pages — and she said to Mr. Radford, ‘Is there anything else?’ and he said, ‘No, not anything; you may go home and rest easy; nothing to worry you whatever;’ and he repeated on that particular day that she was just as free from debt and cares as a new-born babe.”

This testimony was contradicted by the plaintiff, and it is the claim of his counsel that it is shown to be untrue by the cross-examination of the witnesses, and that Mrs. Gaukler is contradicted by the averments of an answer filed by Mrs. Gaukler to a bill of complaint filed by the Restrick Lumber Company to enforce the contract made in 1908. It is also claimed Mrs. Gaukler, having signed the contract of 1908, knew she had not complied with its terms, and is so discredited that she ought not to be believed.

As we have seen, the testimony was very contradictory. The circuit judge, who saw and heard the witnesses, in overruling the motion for a new trial expressed himself as of the opinion that the verdict was not against the evidence, nor against the weight of the evidence. We think there was a question of fact, which was properly submitted to the jury. See Gardiner v. Courtright, 165 Mich. 54 (130 N. W. 322); People v. Sartori, 168 Mich. 308 (134 N. W. 200); Reed v. McCready, 170 Mich. 532 (136 N. W. 488); Eesley Light, etc., Co. v. Power Co., 172 Mich. 78 (137 N. W. 663); Pike v. Railroad Co., 174 Mich. 167 (140 N. W. 592); Druck v. Lime Co., 177 Mich. 364 (143 N. W. 59); McGary v. Motor Co., 182 Mich. 345 (148 N. W. 722); Darling v. Railway Co., 184 Mich. 607 (151 N. W. 701); Silverstone v. Assurance Co., 187 Mich. 333 (153 N. W. 802); Simmer v. Cutter’s Estate, 194 Mich. 34 (160 N. W. 605).

Because of the finding of the jury upon the question of fraud, it is unnecessary to discuss the other assignments of error.

Judgment should be affirmed, with costs to defendants.

Ostrander, J.

Examination of the record has convinced me that the testimony of Mrs. Gaukler and of her son, a portion of which is set out in the opinion of Mr. Justice Moore, which relates to certain alleged representations made by Mr. Radford, is so contradicted by cross-examination and by averments conclusively showing the true state of facts, contained in the answer of Mrs. Gaukler to the bill of the Restrick Lumber Company, that, if it can be said the issue was for the jury, the verdict, nevertheless, should have been set aside upon motion, as opposed to the weight of evidence. A new trial should be granted.

Stone, Bird, Steere, and Brooke, JJ., concurred with Ostrander, J. Kuhn, C. J., and Person, J., did not sit.


author: Steere, J.

text:
    NOSA v. MUNISING, MARQUETTE & SOUTHEASTERN RAILWAY CO.
    Appeal and Error — Review—Denial of New Trial — Misconduct of Counsel — Abuse of Discretion of Trial Court.
    The refusal of the trial court to grant a new trial on the ground of prejudicial conduct of counsel peculiarly involves an exercise of judgment upon facts by that court in a discretionary matter, to disturb which it should affirmatively appear to the appellate court from the record that there was a palpable abuse of discretion beyond excuse or reasonable justification.
    Error to Alger; Fead, J.
    Submitted October 18, 1916.
    (Docket No. 80.)
    Decided May 31, 1917.
    Case by Frank Nosa against the Munising, Marquette & Southeastern Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Clarence B. Randall and William P. Belden, for appellant.

      R. W. Nebel and Le Cendre & Driscoll, for appellee.
   Steere, J.

Plaintiff recovered a verdict and judgment in the circuit court of Alger county against defendant for personal injuries, resulting from being struck by a gasoline car, driven by defendant’s foreman, as he was walking along its track on Sunday evening, June 29, 1913. Plaintiff is an Austrian by birth, at the time of his injury about 60 years of age, had been employed for 27 or more years as a woodsman, and was at this time working “at Frank Double-jack’s camp,” on the east branch of defendant’s line. Defendant is a corporation engaged in the business of a common carrier steam railway company in Alger county and elsewhere.

The fact that plaintiff was seriously injured in some manner while walking along defendant’s line to the camp where he worked does not appear to be questioned. The reasons urged for reversal are concisely stated in defendant’s brief as follows:

“This case presents but a single question. It is not claimed on the part of the defendant that the evidence did not present a question of fact to be submitted to the jury. No claim is made that there was error in the charge of the court submitting the case to the jury, or in his rulings upon the admissibility of evidence at the trial. The case is brought here for review upon the questions raised by defendant’s motion for a new trial, dealing with matters concerning the conduct of counsel for plaintiff during the trial.”

There have been three jury trials of this issue. The first terminated by plaintiff submitting to a voluntary nonsuit; in the second the jury disagreed; and the trial here for review resulted in a verdict and judg-' ment for $5,000.

The east branch of defendant’s railway in the section where the accident occurred is exclusively a logging road, unfenced and running mostly through timber, with but one train a day, except Sundays. It starts from the main line at Stillman, in Alger county, and extends easterly a distance of 20 miles, with stations or camps at intervals known as Doty, Van Mere, and Haggins, terminating at Cusino. Plaintiff was injured between Van Mere and Haggins, which are about 31/2 miles apart. Defendant had a section gang, under a foreman named John Edgar, who lived at Van Mere, caring for that portion of the east branch extending from Doty to Cusino, including two spurs, or short branches, extending northerly, on one of which Frank Double jack’s camp, where plaintiff worked, was located. He had been working but a few days, having gone there with his “partner” but a short time before without their tools, which they had left at a place called Shingleton, about six miles south of Van Mere, where they had previously worked. On the day of the accident, which was Sunday, they went to Shingleton to get their tools, and plaintiff was injured while returning in the afternoon, how and at what time being matters in dispute.

There were several camps, with quite extensive logging operations, on and tributary to the east line, and a number of gasoline and hand cars were used upon it by various parties. There was a worn footpath along the track, running inside or outside the rails according to convenience of footing, which men employed in that section, and others were accustomed to use, and plaintiff was following it that afternoon. This custom was well known to defendant and its employees. Edgar, the section foreman, had and used both a hand and gasoline car. He passed north with his gasoline car that evening between 7 and 8 o’clock, accompanied by others, and came up to plaintiff at the place from which he soon thereafter was carried, suffering from several injuries, the most serious of which, as stated by the physician who was called to attend him, being a multiplied fracture of the thigh, a broken clavicle, and a large wound in the head. The diametrically opposed testimony of the respective parties as to what then occurred furnishes the issue of this litigation.

In outline it is claimed for plaintiff that in returning home he had, because of a physical necessity, fallen behind his partner, who had gone on, and was again walking along the track alone, carrying his tools, exercising proper precautions by listening and looking back from time to time, when suddenly Edgar’s car came upon him from behind, quietly coasting down a grade without light, noise, or other warning, and struck him as he turned, before he could get out of the way, inflicting the serious and permanent injuries from which he suffered; while it is claimed in behalf of defendant that the car was not running fast, that it made considerable noise, that plaintiff was not walking along the track, but lying close beside it, that in the gathering twilight, when first seen, those on the car thought the dark object they saw ahead was a pile of cinders thrown beside the track from an engine, and when on near approach it was discovered to be a man, the car, which only pushed his head from the rail, was quickly stopped, and it was found on investigation that he ha'd evidently been injured in some previous accident, was unconscious, had apparently laid there for some time, as he was covered with dried blood, and steps were taken to have him properly cared for, with medical attendance.

Defendant’s charge of prejudicial conduct of counsel, on which reversal is asked, is directed to alleged unwarranted attacks on the credibility of witnesses, with unfounded impeaching questions, not followed up by affirmative proof; wilful persistence in asking and repeating on cross-examination improper questions, after the court had ruled against them, and including in questions on cross-examination derogatory insinuations, not founded on evidence, relating to the conduct, sincerity, veracity, and motives of defendant’s witnesses. These matters were presented to the circuit court in a motion for a new trial, which was denied, without discussing them.

It was undisputed plaintiff was alone when Edgar’s car came up to him, and defendant’s testimony showed there were two men, two women, and a boy riding on the car with Edgar. If their story was true, plaintiff’s was not, and vice versa. For its bearing upon this evidence was introduced as to what was said and done by the parties before and after the event, and what others saw and heard. The ample record discloses that the trial spread over a wide range of inquiry, and counsel made protracted u^e in cross-examination of testimony taken on former trials of the case. Defendant charged, with claimed supporting evidence, that plaintiff was intoxicated on that afternoon, which he denied, and plaintiff’s counsel sought to show, by cross-examination and statements claimed to have been made at other times, that the same was true of defendant’s chief witnesses. In a case of this character, where the all-important question was the veracity of witnesses, who could not honestly be mistaken as to vital facts upon which they were at variance, a thorough cross-examination was permissible and proper. Frequently the trial court may not be able to foresee, and in fairness ought not to compel counsel to disclose, the purpose of questions asked, and may to a degree assume that apparently immaterial or incompetent questions are asked in good faith and will be justified later.

That plaintiffs counsel at times sought to improperly avail themselves of such situation, and to an extent did so by irritating and reiterated questions embodying their views, or asserting facts not proven, is too plain on this record for successful denial. To what extent this was prejudicial to a fair determination of the controversy on its merits is the more serious question. Many of the questions asked and repeated are not unfamiliar, though now less often resorted to or tolerated than formerly. On one page of the record counsel seven times asked a witness, of answers to previous questions, if he was sure about it, or positive of it, or “just as sure about that as about everything else you are testifying here,” adorned with the histrionic request, “Please look at me, instead of looking at your counsel.” Out of the long cross-examination of Edgar, the following is selected from various pages of the record as prejudicial, because insinuating and assuming facts not proved:

“Q. And you knew that you were to blame for it, didn’t you?
“A. I did not.
“Q. And that is the reason why you did not go out to see him, and didn’t want to look at him, is because you knew he was badly hurt, and that you were to blame for it?
“A. No, sir; it was not. * * *
“Q. You never turned a hand — you never helped Nosa at all?
“A: I couldn’t.
“Q. Because you thought he was badly injured, and you were to blame for it?
“A. No; that was not my belief at all. * * *
“Q. Didn’t you say that there were trees there at the side, and that they were 45 feet high?
“A. Yes; at the edge of the marsh.
“Q. For the purpose of supporting your claim that there was dew upon the rails, so as to make the rails slippery at that time?
“A. Yes; there was.
“Q. That is the reason you so testified?
“A. Well, the trees were there; that is the reason I testified to it. * * *
“Q. Were you drinking that day?
“A. No, sir; I was not.
“Q. Didn’t you drink out of the bottle that Cosky had?
“A. No, sir; I did not. * * *
“Q. Now, you said that, when you went back and looked at Nosa, after having struck him, his face was covered with mosquitoes and flies. (Objected to.)
“The Court: That is sustained, as assuming a fact not sworn to by the witness. * * *
“Q. You didn’t try to telephone and see if you could call a doctor for him, after you had promised to call a doctor ?
“Mr. B.: I object to that statement. There is no evidence here that he promised to call a doctor. (Objection sustained.) * * *
“Q. And although you were too tender-hearted to look at an injured man, you didn’t offer him a bed? (Objected to as argumentative. Objection sustained.) # * *
“Q. And then there would be two other phantom cars that you mentioned would be seven?
“Mr. B.: I object to the word ‘phantom/
“The Court: Objection sustained.
“Q. Well, those cars that ran by like the ship in the night, I mean.
“Mr. B.: I object to that as being unauthorized, and an unfounded expression.
“Mr. D.: Well, I withdraw it.”

On cross-examination of a witness for defendant named Sinclair, counsel for plaintiff, after asking the witness if he had not stated it was defendant’s fault, and if called as a witness would testify to what he knew of the facts, referred to some business dealing with counsel, to which objection was made, and asked:

“Q. And you have said that you would perjure yourself, if necessary, in order to square up accounts with me, didn’t you?”

Objection was made to this, but afterwards withdrawn or withheld, “to let the witness protect himself,” and the witness answered:

“No, sir.
“Q. You deny that you said it?
“A. Yes, sir.
“Q. To any one?
“A. Yes, sir.”

Although the counsel who asked these questions took the stand and testified as a witness in plaintiff’s behalf, no attempt was made to sustain the assumed facts in the impeaching question asked. Under such a state of facts, we are unable to conclude that, if any prejudice resulted, it would, as between examiner and witness, fall upon the latter.

Another instance complained of, in which counsel for plaintiff intruded his personality by interrogation, arose while laying the foundation for impeachment of Edgar by asking him in reference to a designated conversation:

“And when you said that, that clears me, didn’t George Losheck say to you, ‘Did you knock him down?’ And did you not answer, ‘Yes, the s — n of a b — h ought to be killed?’ ”

This was denied, and counsel then asked:

“Did you not, at the time you struck, or immediately after you struck, the plaintiff, and while he was lying down there in the track, and when he asked you to take him some place — put him on the car and take him some place — say to him, ‘You Polack s — n of a h — h, I wish I had killed you?’ ”

This was also denied. Plaintiff subsequently introduced testimony which, if believed, established the fact stated in the questions and denied by the witness; but, following the above questions, counsel proceeded to interrogate Edgar at length, as to the frequency with which he used that epithet, and finally asked:

“Now, the last October term of court, while I was arguing this case to the jury, you used that term as to me, did you not?
“A. I don’t know whether I did or not.
“Objected to as irrelevant.
“The Court: Objection sustained.”

Other lines of interrogation of similar nature are referred to and complained of by counsel, but those quoted illustrate fairly their tenor.

Counsel for plaintiff seek in their brief to justify by arguing the merits of the case, and pointing out, as they claim, that the witnesses so examined by them as complained of are shown by the record to have been partisan, hostile, evasive, and contradictory, as indicated both by their inconsistent and irresponsive answers to questions then asked, and by evidence of contradictory statements made at other times and places. While it may be conceded there is some foundation for the latter claim, which would justify a rigid cross-examination, their briefs avoid any direct discussion of the specific delinquencies complained of and are of scant aid.

This case is purely one of fact. It was energetically tried, with some acrimony and direct charges of intentional falsehood by witnesses on each side, supported to a greater or less extent by circumstantial evidence introduced to sustain or refute the charges. There was testimony which tended to, and if believed fairly did, sustain the contention of either side. As before pointed out, control of cross-examinations must necessarily rest largely with the trial court, and it is often a difficult and delicate task for the court to guide the course of a trial within strict limits without error. When in this case objections were made to annoying, and at times improper and unfair, questions or interjections of counsel, they were sustained, and at least twice the court of its own motion interfered to stop and correct counsel. Had the court at any time approved the conduct complained of, or failed to sustain defendant’s objections when made, a radically different legal question would be presented. Aside from the conduct of counsel complained of, the case was admittedly tried without error, and fairly submitted to the jury in an impartial charge, explaining its nature and the issues which.it was for the jury to decide. It is not claimed the verdict is excessive, but that the injury was not imputable to defendant’s negligence. The only error assigned and argued is, not upon any ruling or action of the court during the progress of the trial, but upon refusal of the court after the case was over to grant a new trial on the ground of prejudicial conduct of counsel, and because the verdict was against the weight of evidence. The court had seen and heard the witnesses, watched the case as it developed, had visually before it the appearance and conduct of the parties, and in that particular was more advantageously equipped to understand the general tone and tenor of proceedings, and effect upon the jury of the testimony and conduct of parties, than one only having the printed record to consult. So circumstanced, with time and opportunity to study the testimony, the trial court was unable to find either that the verdict was against the great weight of evidence, which is not assigned as errgr here, or that'the matters complained of operated prejudicially to affect the verdict.

While it is the duty of this court to independently consider the record and pass upon errors assigned, that urged here peculiarly involves an exercise of judgment upon facts by the trial court in a discretionary matter, to disturb which it should affirmatively appear to the appellate court from the record that there was a palpable abuse of discretion, beyond excuse or reasonable justification. Detroit Tug & Wrecking Co. v. Wayne Circuit Judge, 75 Mich. 360 (42 N. W. 968). So considering this question, we are not prepared to affirmatively find that the conclusion reached by the trial court must be disturbed.

The judgment will therefore stand affirmed.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, and Brooke, JJ., concurred. Person, J., did not sit.


author: Bird, J.

text:
    SIMS v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY CO.
    1. Master and Servant — Assumption of Risk — Federal Employers’ Liability Act.
    Under the Federal employers’ liability act the defense of assumed risk remains as at common law.

    2. Same — Railroads—Duty of Car Inspectors — Negligence.
    A car repairer who is injured by a broken drawbar carrying iron, not discovered by the employer’s car inspectors and reported by them for repair, falling upon him when he went under the car to repair another defect reported by the inspectors, cannot recover for the failure of the inspectors to discover the broken drawbar carrying iron, since he can only recover for some neglect of duty which the employer or its servants owed him and such failure to discover the broken appliance was a failure of duty owed only to the employer.
    3. Same — Assumption of Risk.
    Plaintiff, a car repairer, assumed the risk where defendant’s car was placed upon a repair track for repair of a certain defect noted by defendant’s inspector for repair, and plaintiff, upon going under tbe car to repair suck defect was injured by a drawbar suddenly falling upon him by reason of broken carrying irons which, had not been discovered and reported by the inspectors, and was not known to the defendant.
    Error to Alger; Fead, 3.

    Submitted June 20, 1916.
    (Docket No. 87.)
    Decided May 31, 1917.
    Case by Joseph Sims against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      C. W. Dunton, for appellant.

      B. W. Nebel.and Le Gendre & Driscoll, for appellee.

      On constitutionality, application and effect of Federal employers’ liability act, see notes in 47 L. R. A. (N. S.) 38; L. R. A. 1915C, 47.

   Bird, J.

The plaintiff was employed as an assistant car repairer in defendant’s car shops at Glenwood, Minn. On the morning of January 31, 1913, plaintiff and his coworker, Frank Charbineau, were ordered to repair one of the defendant’s box cars, which was standing on the repair track. They looked at the bad-order tag attached to the car, and found that the defect noted was a broken drawbar spring. This involved removing the broken one and replacing it with a new one. The plaintiff crawled under the end of the car to begin the work, and just as he did so the drawbar fell' to the ground, striking his right hip and severely injuring it. At the conclusion of the proofs defendant’s counsel protested that the case ought not to be submitted to the jury because no actionable negligence had been shown on the part of the defendant. The trial court took a different view of it, however, and submitted the case to the jury under the Federal act. The questions submitted were whether defendant was negligent in failing to make a proper and reasonable inspection of the car; whether it was negligent in failing to notify plaintiff of the defect; and whether it was negligent in failing to chain up or fasten the drawbar so that it would not fall: The jury found a verdict in favor of the plaintiff, and the defendant has assigned error.

Counsel’s main contention is that the trial court was in error in denying his motion for a directed verdict. The record discloses that defendant employed inspectors, whose duty it was to search for defects in the cars, and, when discovered, to note them upon a bad-order tag and attach the same to the car for the information of the car repairers. It appears that John Brandon, the official in charge of the work of repairs, instructed the assistant repairers not to spend any time looking for defects, as other men were employed especially for that purpose. It also appears that a custom existed, when, drawbars were defective and liable to fall, to chain them up so as to prevent their falling. It further appears that the lug straps and carrying iron, which held the drawbar in place, were broken, and might have been discovered upon a reasonable inspection by the inspectors, and that plaintiff had no notice of these defects, or any opportunity to acquaint himself with them. With these things admitted defendant’s counsel insists that no case was made for the jury because:

{a) The notations on the bad-order tag were not placed there for the protection of the repair men, but for their information.
(b) That the injury was one which could not have been reasonably anticipated; that the drawbar, as a matter of fact, remained intact until the car was placed in position upon the repair track; and that defendant had no notice that it was defective and liable to fall.

The real and' important question in the case is whether plaintiff assumed the risk. Under the Federal act this defense remains as at common law. In commenting upon the effect of the act it was said in Chesapeake, etc., R. Co. v. De Atley, 241 U. S. 313, (36 Sup. Ct. 564):

“The act of congress, by making the carrier liable for an employee’s injury ‘resulting in whole or in part from the negligence of any of the officers, agents or employees’ of the carrier, abrogated the common-law rule known as the fellow-servant doctrine by placing the negligence of a coemployee upon the same basis as the negligence of the employer. At the same time, in saving the defense of assumption of risk in cases other than those where the violation 'by the- carrier of a statute enacted for the safety of employees may contribute to the injury or death of an employee (Seaboard Air Line v. Horton, 233 U. S. 492, 502 [34 Sup. Ct. 635, L. R. A. 1915C, 1 Am. & Eng. Ann. Cas. 1915B, 475]), the act placed a coemployee’s negligence, where it is the ground of the action, in the same relation as the employer’s own negligence would stand to the question whether a plaintiff is to be deemed to have assumed the risk.”

The failure of the inspectors to discover the defect was the failure of a duty which they owed to the master, and not to the repair man. Their failure to note the defect on the bad-order tag absolved the repair men from any duty to repair the defect. Further than this, it does not appear to me that the neglect of the inspectors to discover the defect was of any importance to the plaintiff. If the plaintiff is to recover in this case, it must be in consequence of some neglect of duty which the master or its servants owed to him. This phase of the case appears to be ruled by Erickson v. Manufacturing Co., 140 Mich. 434 (103 N. W. 828). In that case the plaintiff was relying on the act of the defendant in removing the hood and blowpipe from a planer as an act of negligence. The court there said in part:

“The same may be said regarding the absence of the hood and blowpipe. They were used for the purpose of removing the chips and dust, and for no other purpose ; and there is no evidence that such was ever used for the protection of operators, or that planers are ever covered for such a purpose. Furthermore, the situation was apparent, and the plaintiff assumed the risk of using the machine as it was.”

That cars with defective drawbars were usually chained up when they came into the yard there is no question, and it is shown by the testimony of plaintiff that he relied upon this custom as a means of protection. It is obvious that this practice was one of necessity. If the drawbar were broken and had dropped down or had pulled out, it would have to be chained up in order to get the car into the repair yard. There is no proof that the chaining up of the drawbar was done with any idea or intention of protection to the men who might be called upon to repair it. Neither is there any proof or any instance shown where a drawbar was chained up after it was placed on the repair track. If the accident occurred in the manner detailed by the plaintiff — and we must assume that it did — it was an extraordinary coincidence that the drawbar should be held in place until just the precise moment when plaintiff went under the car. There is no proof that the defendant knew of the defect, but if knowledge had come to it after it had been placed on the repair track, it is not made clear to us that it would have been its duty to communicate the fact to the plaintiff. When plaintiff engaged to work in defendant’s repair yard he assumed the risks naturally incident to the work, and I am of the opinion that this accident was one of the risks which he assumed.

The judgment is reversed, and no new trial ordered.

Kühn, C. J., and Stone, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


author: Bird, J. Ostrander, J.

text:
      In re KELLOGG.
    Insane Persons — Inquisition—Question for Jury.
    Where an inquisition in the prohate court to determine a party’s competency and appoint a guardian, if there is any testimony, on appeal to the circuit court, tending to support the jury’s finding of incompetency, the evidence will not be weighed by the Supreme Court, and the case will be remanded. Bird, Moore, and Brooke, JJ„ dissenting.
    Error to Kent; Perkins, J.
    Submitted October 25, 1916.
    (Docket No. 109.)
    Decided May 31, 1917.
    Petition in probate court by William Kellogg for the appointment of a guardian of the person and estate of Lafayette Kellogg, alleged incompetent. From an order granting the prayer of the petition, said defendant appealed to the circuit court. Judgment for petitioner. Defendant brings error.
    Affirmed.

      FI. Monroe Dunham and John M. Dunham, for appellant.

      Smedley & Linsey, for appellee.
   Bird, J.

(dissenting). Application was made in the probate court for the county of Kent, alleging that Lafayette Kellogg was not mentally competent to have the care and custody of his person and estate, and praying that a guardian be appointed. An appointment was made by the probate court, and the alleged incompetent appealed therefrom to the circuit court, where the matter was tried before a jury, and they returned a verdict in keeping with the conclusion of the probate court. We are now called upon to review the proceedings had. in the circuit court.

Several errors are alleged, but we think the important one is whether there was testimony which justified the trial court in submitting the case to the jury. The record discloses that Lafayette Kellogg owned,'Until recently, a small farm of 40 acres in the township of Byron, Kent county, and that he had resided thereon for many years with one of his brothers, keeping “bachelors.’ hall.” The testimony of the neighbors, in substance, shows that Lafayette Kellogg is 65 years of age, without much' education, not very industrious, and very untidy in his personal appearance and about his home; that at times he is moody and says little, and at other times very social when people call at his home; that he is easily influenced by sympathy extended to him, and he is afraid of thunder storms; that he is not a good business man, made some poor deals, and sold his farm for $3,000, when he could have obtained at least $500 more; that at times he is quarrelsome; and that his brother Hamilton died in the insane asylum.

We think this testimony fails to bring the case within the statute. It is possible for a man to be a poor housekeeper, an indifferent farmer, untidy about his person and home, somewhat quarrelsome at times, occasionally make a bad business deal, have moods when he is. unsocial, be subject to generous impulses when sympathized with, and still be competent to manage his own person and estate. Because he has not measured up to the standard of living possessed by his neighbors is no cause for depriving him of the control of his person and property.

It was. said in Re Guardianship of Storick, 64 Mich. 685 (31 N. W. 582), in construing the statutes under which these proceedings were instituted, that:

“It does not refer to persons who are sane, but not, perhaps, as wise or intelligent as some other persons. It applies to one whose mind is so affected as to have lost control of itself to such a degree as to deprive the person afflicted of sane and normal action. * * * Persons who can be safely trusted with taking care of themselves are seldom, if ever, liable to guardianship. One may be so sick or crippled as to be compelled to leave his affairs in the hands of servants or agents, and is no more incompetent for that reason than a very wealthy man is who cannot possibly look after the details of his business. Neither is there any legal standard of business wisdom. Men may be unwisely speculative or unwisely penurious, but this is .not insanity. A jury of merchants might very easily approve or disapprove where a jury of persons unaccustomed to commercial ventures and expenditures would think the reverse. Every man may spend or save as he chooses, so long as he does not come within the prohibitions of law. As long as he possesses a mind normally sound, he is entitled to free agency. It is as cruel and unlawful to interfere with the liberty of the old as of any one else, and the law cannot favor or permit this liberty to be diminished.”

Up to the time this application was made, Lafayette Kellogg appears to have taken care of himself and managed his own affairs with such aid as people of very limited education and business capacity usually invoke from others. He may be mentally incompetent and in need of a guardian, but he should not in my opinion be so adjudged upon this record. Dr. De Haan’s testimony comes nearer making a case for the jury than the testimony of any other witness. The doctor, who had been two years in the practice, testified that he had seen Mr. Kellogg on two occasions, one of which times he had prescribed for him, that he had not seen him for quite awhile, but the last time he saw him thought “he had passed the ordinary .stages of senile dementiaSenile dementia is generally understood to be a progressive disease. The doctor’s failure to explain what the “ordinary stages” were leaves the layman in some doubt as to his real condition. One might be passing into a stage of senile dementia, and yet be able to care for himself and attend to a limited amount of business. But whatever was meant, it is useless to speculate with opinion evidence, whether he was mentally competent to care for himself and manage his own affairs in the face of petitioner’s own testimony that he did care for himself and manage his own affairs with the assistance that such people usually receive from others. Spratt v. Spratt, 76 Mich. 384 (43 N. W. 627).

The record is rather persuasive that some of the neighbors who have been active in initiating these proceedings were desirous of buying Lafayette’s 40, and were somewhat disappointed when they learned that he had sold it to Mr. Swanson. These.proceedings were instituted a few days after the premises were sold to Mr. Swanson. It is suggested by counsel that it was the contest for the purchase of the 40 which set these proceedings in motion. What the real motive may have been is not very important, in view of the conclusion that the testimony taken as a whole did not make a case for the jury. The judgment of the circuit court should be reversed and set aside. The defendant should recover his costs against the petitioner.

Moore and Brooke, JJ., concurred with Bird, J.

Ostrander, J.

This is an inquisition. It is for the probate judge, and if, on appeal, a jury is demanded, then it is for a jury to determine the fact of competency or incompetency. The probate judge found that Mr. Kellogg was mentally incompetent to take care of himself and manage his property, and in the circuit court a jury answered in the affirmative these two questions:

Was Lafayette Kellogg on April 3, 1915, mentally incapable of taking care of himself and managing his property?

Is Lafayette Kellogg now mentally incapable of taking care of himself and managing his property?

If there was any testimony tending to support these findings of the jury, this court has nothing to do but remand the case.

“We can no more weigh the evidence in a case when a jury has determined the question than in a case where the court has determined it. We must not be understood as holding that, if there is no testimony showing mental incapacity, that question might not be reviewed in this court by writ of error from the circuit court; but in such case the court must have before it the entire testimony, from which it must conclusively appear that there was no evidence showing incapacity.” In re Phillips, 154 Mich. 139, 141 (117 N. W. 630).

There was some testimony tending to prove mental incapacity of Mr. Kellogg — some besides that which is referred to in the opinion of Mr. Justice BIRD. It is an undisputed fact that the property which Kellogg sold for $3,000 was worth from $3,800 to $4,000. Dr. De Haan testified, also, that Kellogg had the typical apathetic face of senility.

I think we are bound to say that there was some testimony to support the conclusion reached in the court below.

Kuhn, C. J., and Stone and Steere, JJ., concurred with Ostrander, J. Person, J., did not sit.


text:
    E. R. BRACKETT & CO. v. SCHIAPPACASSE.
    Principal and Agent — Existence op Relation — Sufpiciency op Evidence.
    Evidence held, insufficient to show agency in the purchase of a certain car load of fruit, where the only evidence of such agency was the broker’s telegram to defendant “offered car,” etc., and defendant’s reply “can use car,” etc.
    Error to Wayne; Searl, J., presiding.
    Submitted October 24, 1916.
    (Docket No. 39.)
    Decided May 31, 1917.
    Assumpsit in justice’s court by E. R. Brackett & Company against Louis Schiappacasse and others, doing business as L. Schiappacasse & Company, for a consignment of fruit. From a judgment for plaintiff, defendants appealed to the circuit court. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Affirmed.

      Millis, Griffin, Seely & Streeter (Charles L. Mann, of counsel), for appellant.

      Joseph T. Schiappacasse, for appellees.
   Bird, J.

Plaintiff, a wholesaler of fruits in New York City, sued defendants, wholesalers and retailers of fruits in the city of Detroit, to recover for a consignment of fruit shipped to them in November, 1913. It is the claim of plaintiff that Morando, a fruit broker in New York, represented the defendants and made the selection and purchase, and that the defendants are liable therefor, even though the fruit was not what they ordered. Defendants deny that Morando had any authority to represent them, and deny that any relation of agency existed between them, and this presents, as appellant states, the only question in the case. It therefore becomes necessary to examine the testimony bearing on that question. The following telegrams are principally relied upon by the plaintiff to show that Morando was the agent of the defendants:

On November 6, 1913, Joseph S. Morando sent the defendants the following telegram:

“Offered car sweet good color Porto Rican oranges one sixty-five market going higher.”

On November 6, 1913, the defendants replied by telegram:

“Can use car sweet good color Porto Rican oranges sizes ninety-six to two hundred. Can’t use any other size at your price of one sixty-five. Must not be green fruit or sour.”

On November 7, 1913, Morando sent to the defendants the following telegram:

“Shipping three hundred box car over Michigan Central in refrigerator car vents open sizes from one twenty-six to two hundred. This fine car well packed, good color, sweet cutting fruit at bargain price. See letter.”

On November 7, 1913, the same day, the defendants replied:

“Advise car number of oranges and number of different sizes. How about California figs? Fifty packages in box. What can you buy for?”

On November 12, 1913, the defendants wired Morando :

“Oranges arrived and inspection shows fourteen per cent, decay. Can’t use in this condition. Wire what to do.”

Upon the receipt of this telegram Morando interviewed E. R. Brackett & Co., and on November 13, 1913, sent the following telegram to the defendants:

“Sellers absolutely refuse allowance. Twenty boxes smaller sizes still here show less than five per cent, waste. Last two cargoes Porto Ricans worst this year. Market your kind fruit thirty cents higher. Am willing forego my brokerage save trouble.”

On November 13, 1913, the defendants sent the following telegram to E. R. Brackett & Co.:

“Impossible being sound New York. Examination here shows fourteen per cent, decay. Wire disposition.”

Morando followed this telegram of November 13, 1913, by a letter dated November 13, 1913, addressed to defendants, in which he explained that E. R. Brackett & Co. insisted on defendants accepting the car and paying for it.

On November 14, 1913, the defendants advised Morando that:

“Car oranges at shipper’s disposal refuse to accept fruit in this condition.”

The only testimony aside from the telegrams bearing upon the question appears in the deposition of Morando that about three months prior to the sending of these telegrams he called upon the defendant firm at Detroit, advised them who he was and the business he was in, and that he was acquainted with some member of the firm who was at the moment absent. When the fruit arrived it was neither of the kind nor quality which defendants agreed to purchase, and they refused to accept it. The fruit was afterwards sold at auction through the instructions of the plaintiff, and the amount realized was deducted from the invoice price, and defendants were sued for the balance amounting to $376. In the trial court a verdict was directed for the defendants on the ground that there was not sufficient evidence of agency to submit to the jury.

We are of the opinion that the trial court was right. in his ruling. The only proof there was that plaintiff was even informed that Morando was attempting to act in the capacity of broker were the words “Offered car,” etc., in the first telegram addressed to the defendants. There is nothing in the telegrams sent by defendants which would authorize Morando to act as their agent in the selection and purchase of the fruit. It will be noted that the defendants in the reply telegram did not authorize him. to buy, did not authorize him to act for them; they simply said, “Can use car,” etc. This testimony, without any further showing that the defendants were acquainted with Morando in a business way or that he had acted for them on prior occasions in the selection and purchase of fruit, was too meager to establish an agency between them.

We think the case was properly disposed of, and the judgment will be affirmed.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.