text:
    HILLS v. OVAL WOOD DISH CO.
    Master and Servant — Workmen’s Compensation Law — Period of Disability — Pre-existing Disease.
    Where the disability of the employee is the result of ✓injuries received in the course of his employment, the consequences extend through the entire period of disability, p,nd the employer will not be relieved from paying the compensation, provided by Act lío. 10, Extra Session 1912, even when the period of disability is prolonged by preexisting disease.
    Certiorari to the Industrial Accident Board.
    Submitted January 5, 1916.
    (Docket No. 22.)
    Decided June 1, 1916.
    Petition by the Oval Wood Dish Company and Michigan Workmen’s Compensation Mutual Insurance Company to be relieved from further payments to Asaph Hills under an agreement to pay compensation during the period of disability. From an order denying the petition petitioners bring certiorari.
    Affirmed.

      Beaumont, Smith & Harris, for appellants.

      Tkrner & Turner and R. R. Gale, for appellee.
   Person, J.

While claimant was employed in the sawmill of the Oval Wood Dish Company, at Traverse City, he met with an accident by which his right arm was injured above the elbow. As found by the Industrial Accident Board, “the flesh was bruised and torn, and the front part of the arm denuded of its skin, exposing the blood vessels and muscles underneath.” An agreement for compensation was reached and approved, and payments were made in compliance therewith for a period of 19 weeks. At the end of that period the payments were discontinued, and presently the respondents filed with the Industrial Accident Board a petition asking that they be relieved from making further payments upon the ground that claimant’s continued disability was due to a venereal disease, viz., syphilis, which retarded the healing of the injury. The claimant filed an answer to this petition in which he denied that he had ever contracted such disease, or been afflicted with it; and we do not understand it to be claimed that he was suffering from syphilis in any active stage. As found by the Industrial Accident Board:

“The evidence in this case does not suggest any active disease in applicant’s body prior to the injury, nor does it disclose any substantial evidence of the existence of a bodily disease, except the fact that the wound did not readily heal and that symptoms led the physicians to suspect syphilis in the blood, together with some evidence that a Wasserman test of the blood was had and that such test showed the presence of syphilis. In this connection, it should be said that the essential part of the evidence as to the Wasserman test is hearsay, as it consisted merely of an unsworn report sent by mail from the Lincoln-Gardner Laboratories in Chicago, where a sample of applicant’s blood had been sent to be tested.”

Under this state of facts, it is urged that an order should have been made by the board relieving the respondents from payment of further compensation, and the argument in support of such contention is stated in the brief of their counsel, as follows:

“The compensation act does not assume to pay for any period of disability beyond that which is traceable to the injury, either directly or indirectly. The case is to be distinguished from the cases where the accident has aggravated or accelerated a pre-existing disease. It has been held, under the English act, that where the injury aggravates a disease, the increased impetus given to that disease being a result of the injury, the disability caused thereby must be compensated for. But upon the record in this case there is no question of the acceleration of the syphilitic condition. Syhpilis from its very nature is not accelerated by a cut or a bruise, but its presence on the other hand retards the healing of the cut. We may assume that upon an accident the employer is bound to compensate for the results of the injury and must be assumed to have accepted the employee in Whom is a constitutional disease, the ravages of which are increased by the injury. But this does not go to the extent of saying that when the disease prevents the healing of the injury, or in other words this new cause supervenes the injury as a cause of the disability, the industry that contracted. only to pay for the disability resulting from injury should pay this additional compensation.
“We think it is clear, without further argument, that if the line can be drawn between the period of disability caused by the accident and that caused by the disease, no question would be made but that compensation would only extend over the period caused by the accident. * * * But even if this period cannot be absolutely segregated, still we contend that the proper rule that should be applied is that compensation ‘should be allowed only for the period for which the injury complained of would disable a person of average condition not suffering’ from the disease.”

The board made no definite and specific finding as to whether, as a matter of fact, the period of claimant’s disability was or was not being extended by the presence and action of the disease, but declined to relieve the respondent from further payments, for the following reason stated in the written opinion which it filed:

“The legal question presented by the petition is an important one. If the correct rule for determining the length of time compensation for disability should be paid in case of an injury of this general character is found to be the one contended for by respondents, the result will be far-reaching. The question then to be determined in cases of continuing disability would be whether the injury should have healed, or whether it should have healed more quickly than it did, instead of the actual resulting disability. Instead of the plain question of fact as to the nature and duration of the disability which the injured man actually suffered, it would present for decision the question as to how much he should have suffered, and how soon he should have recovered, upon the theory that only a part of the disability was due to the injury and the remaining part due to disease. In the opinion of the board, the respondents’ contention must fail. The compensation law does not fix any standard of physical health, nor does it make any exceptions for cases of injuries to men whose health is impaired, or below the normal standard. Neither does it except from the benefits of the law the man who carries in his body a latent disease which, in case of injury, may retard or prevent recovery. The law by its expressed- terms applies to every man who suffers disability from injury. It does not exclude the weak nor the less fortunate physically, but was intended for the working men of the State generally, taken as they are.
“The authorities seem to be strongly against respondents’ contention. Boyd’s Workmen’s Compensation, § 463; Bradbury’s Workmen’s Compensation (2d Ed.), pp. 385, 386; Willoughby v. Railway Co., 6 W. C. C. 28; Ystradowen Colliery Co., Ltd., v. Griffiths, 2 B. W. C. C. 359. This is not a case where the workman was suffering from some active disease or injury at the time of the accident, as applicant was apparently in good health in every respect up to the time he received the injury. The difficulties of proving the reasonable duration of disability which should result from an accident is discussed to some extent in the English cases above cited, pointing out the fact that Ward v. Railway Co., 3 W. C. C. 193, which attempted to make such determination, is no longer regarded as authority. They further suggest the danger of attempting to fix the duration of disability on medical prognosis and opinion evidence, when it is conceded by the medical profession itself that it has yet much to learn in such matters.”

We agree with the Industrial Accident Board that, under the circumstances of this case, the act does not contemplate any such apportionment of the period of disability as respondents ask for. Assuming that such disability is being prolonged by the disease, there is yet no point at which the consequences of the injury cease to operate. It is the theory of respondents, not that the consequences of the injury cease, but that they are prolonged and extended. There is no part of the period of disability that would have happened, or would have continued, except for the injury. The consequences of the injury extend through the entire period, and so long as the incapacity of. the employee for work results from the injury, it comes within the statute, even when prolonged by pre-existing disease.

The order of the Industrial Accident Board is affirmed.

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


source: Caselaw Access Project

author: PERSON, J.

license: Public Domain

text:
    STRETCH v. STRETCH.
    1. Evidence — Handwriting — Qualification of Witness — Lost Note — Estates of Decedents.
    Where the administrator of a father’s estate brought suit against a son on a lost note, the making of which was denied by defendant, it was not improper to allow a witness, who claimed to have seen the note, to testify to defendant’s signature and indorsement on the note, where he testified that he had read a great many letters written by defendant and was able to identify his handwriting.
    2. Same — Cross-Examination—Estates of Decedents.
    Where the note was claimed to bear even date with a deed from the father to defendant, which deed recited that $3,500 was the purchase price, and $2,000 was the son’s share of the father’s estate, it was not improper, on cross-examination of defendant, to attempt to show that the balance above the $2,000 was an indebtedness for which the note was probably given; it was not objectionable on the ground that it tended to show an indebtedness distinct from the note.
    3. Trial — Bills and Notes — Burden of Proof — Estates of Decedents — Payment—Settlement.
    Where the defendant claimed a settlement with the heirs, instruction by the court that, if the jury found the note and indorsements had been made as claimed, the burden of showing payment was on defendant, was not erroneous, although the language of tLe court might have,been more applicable to the matter of settlement than it was.
    4. Limitation of Actions — Indorsements — Inferences — Payment.
    An actual payment on a note, so as to bar the running of the statute of limitations, may be inferred from proof of an indorsement in the handwriting of the maker; the provisions of section 12335, 3 Comp. Laws 1915, relating only to indorsements made by or on behalf of the party to whom the payment shall be made.
    5. Appeal and Error — Compromise Verdict.
    Where the plaintiff was entitled to a judgment for the full amount of principal and interest, and the jury returned a verdict for the principal only, the defendant cannot object that the verdict is too small, if it actually expresses the judgment of the jurors.
    6. Trial — Compromise Verdict.
    A compromise verdict should be set aside, not because it is too large or too small, but because it does not express the real judgment of the jurors.
    7. Same.
    And where there was evidence that the payee had the income for a considerable time from defendant’s farm, which was' to be applied upon the indebtedness, and which the jury might have applied against the interest, it was not so clearly a compromise verdict as to warrant the court in setting it aside.
    Error to Cass; Des Voignes, J.
    Submitted January 4, 1916.
    (Docket No. 4.)
    Decided June 1 1916.
    Assumpsit by William H. Stretch, as administrator of the estate of John Stretch, deceased, against Isaac Stretch upon a promissory note. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      E. Bruce Laing and Wilber N. Burns, for appellant.

      Hendryx & Hosier, for appellee.

      This is an action of assumpsit brought by plaintiff, as administrator of the estate of John Stretch, his father, against the defendant, who is also a son of John Stretch. The purpose of the action is to recover the amount alleged to be due and unpaid upon a promissory note which the plaintiff claims was given by the defendant to the father on June 5, 1879, for $600, with interest at 6 per cent. The note was nbt produced at the trial, and is claimed to have been lost or destroyed. John Stretch, the father, died in April, 1892, and no proceedings were had in the probate court until April, 1910, when the plaintiff was appointed administrator of his estate. This action was brought in April, 1912, and within two years after the granting of letters of administration. Both William Stretch, the plaintiff, and Ira Stretch, another brother, testified on the trial that they made an examination of their father’s papers in August after his death, and that among the papers they found the note in question. They claim, also, that Ira, at the time, made a memoranda of the note, showing the date, amount, and rate of interest, together with an indorsement on the back reading as follows: “Credit on note $50.00, November 5, 1890.” Both the plaintiff and Ira testified that the note was in the handwriting of their father, but that the indorsement thereon, as well as the signature thereto, was in the handwriting of their brother, the defendant. When the administrator was appointed the note could not be found. The defendant denies that he ever made such a note, and denies that his father held any note of any kind against him at the time of his deaths This, of course, includes a denial of both the signature and the indorsement. A computation was made and testified to, showing that the interest upon the note would amount to $1,199.91, which, with the principal of $550, would make a total of $1,749.91 at the time of the trial. The jury rendered a verdict in favor of the plaintiff for $550, and the defendant brings the case to this court by writ of error.
   PERSON, J.

(after stating the facts). There are a number of assignments of error in the record, and they will be considered in the order in which they are argued in the brief for defendant.

1. It is claimed that William Stretch, the plaintiff, should not have been permitted to testify that the signature to the alleged note, and the indorsement thereon, were in the handwriting of the defendant, inasmuch as it was apparent, the defendant says, from William’s testimony, that he did not have sufficient knowledge of defendant’s handwriting to qualify him as a witness in that behalf. But, as was held in Vinton v. Peck, 14 Mich. 287:

“Any one who has had the proper facilities, and who can swear to a knowledge of the handwriting in question, has always been admitted.”

And, while it might be drawn from the examination of the witness in chief that he was not very familiar with the handwriting of the defendant, yet he seems to have cleared this up somewhat on cross-examination,' where he swears definitely that he had read a great many letters written by him and was able to identify his handwriting. We cannot say that his testimony was improperly admitted. It may also be remarked that Ira Stretch testified positively that the signature to the note, and the indorsement thereon, were both in the handwriting of the defendant; and Ira’s qualifications to testify to the handwriting were not questioned.

2. It will be remembered that the alleged note to the father, John Stretch, upon which this action is brought, is claimed by the plaintiff and Ira Stretch to have borne date June 5, 1879. A deed from the father to the defendant, bearing the same date, and conveying 80 acres of land, was placed in evidence. This deed, which was also signed by the mother, recited a consideration of $3,500, and contained the following clause: 1

“Two thousand dollars ($2,000.00) of the above consideration is understood to be as a portion of Isaac J. Stretch’s share of the estate of the parties of the first part at and after their decease.”

On the cross-examination of defendant by counsel for the plaintiff, various questions were asked him in an attempt to show that the balance of the purchase price above the $2,000 was considered at the time as •an indebtedness from the defendant to his father. 'These questions were objected to by counsel for the •defendant upon the ground that they tended to show an indebtedness distinct from that manifested by the note. We understand that the questions were asked for the purpose of showing, not another indebtedness, but a contemporaneous indebtedness, for which the note might have been, and probably was, given. For this purpose we think the questions were competent.

3. The court, in charging the jury, used, at one place, the following language:

“Now, gentlemen, if you find such , a note was given as the plaintiff claims, and the indorsements made thereon as claimed by the plaintiff, if those two first propositions you resolve in favor of the plaintiff, then the burden of showing payment of this note is on the defendant to satisfy you by a preponderance of the evidence of that fact, payment of the note, if you find it was in existence and was a legal obligation as against him. Payment is always a matter of defense and must be shown, as, for instance, if the note was here and the indorsements were on the back of it as claimed by the plaintiff, the plaintiff might rest his case after showing and producing that note and the indorsements, and then , he would have made under the law what is known as a prima facie case; and then it would devolve upon the defendant to show that payment has been made, or some other defense that he might put • 79

Complaint is made that these instructions tended to confuse the jury by a question of payment, when, in fact, no payment was claimed. But these instructions were given with relation to a request made by counsel for defendant regarding a settlement of the estate by the heirs before proceedings were taken in the probate court, and, while the language of the court regarding payment was not as applicable to the matter of settlement as some other language might have been, yet the burden of proof in showing such settlement was as much upon defendant as proof of payment would have been. Indeed, the cancellation of the note by á settlement would have been in the nature of payment. We do not see how the defendant could have been injured by these instructions. It is also claimed by counsel for the defendant that the court was in error in telling the jury that plaintiff made out a prima facie case by proving the existence of the note, the signature to it, and the indorsement thereon in defendant’s handwriting. This brings us to defendant’s fourth contention.

4. Defendant insists that, even if there was such a note as is claimed, it can be relieved of the bar of the statute of limitations only by proof of actual part payment, and that proof of the indorsement alone was not enough. Defendant is correct in his idea that it is the part payment, and not the indorsement, that takes the case out of the statute. But it must be remembered that proof of an indorsement in the handwriting of the defendant himself is proof from which an actual payment may be inferred. Chandler v. Lawrence, 3 Mich. 261; Blanchard v. Blanchard, 122 Mass. 558 (23 Am. Rep. 397); Wheeler v. Robinson, 50 N. H. 303; Noble v. Edes, 51 Me. 34; 25 Cyc. p. 1378. The statute (3 Comp. Laws, § 9744 ; 5 How. Stat. [2d Ed.] § 14151 [3 Comp. Laws 1915, § 12335]) relates only to indorsements made by or on behalf of the party to whom the payment shall be made, and not to the party making the payment. If the existence of the note was established to the satisfaction of the jury, then an indorsement thereon in the handwriting of defendant, if they believed it was in his handwriting, was prima, facie evidence of actual payment sufficient to prevent the operation of the statute of limitations.

5. It must be conceded, as a matter of law, that the plaintiff was entitled to a judgment for the full amount of principal and interest, if for anything; that is, to a judgment for $1,749.91. The jury, however, awarded a judgment for only $550, the amount of the principal. This, the defendant claims, clearly shows 'that it was a compromise verdict. If it was a compromise verdict, it ought undoubtedly to be set aside. The wrong, however, in such a verdict, rests in the fact that it does not express the real judgment of the jurors, and not alone that it is too large or too small. A defendant cannot object that a verdict is too small if it is actually the expression of the judgment of the jurors. Nor will a court set aside a verdict as being the result of a compromise unless it clearly appears that it actually was such a result, and that does not necessarily appear in this case. Here evidence was given on behalf of defendant himself tending to show that the father had the income of the whole or of a portion of defendant’s farm for a considerable period of time, and with the understanding that such income should be applied upon defendant’s indebtedness to the father. It is true that the value of the use of the farm was not shown, and that there was really no data from which the jury were authorized to make an allowance as against the note; but, if they did make such an allowance as the honest expression of their judgment, the result was not a compromise. It was the opinion of the circuit judge that the jury applied what they believed to be a fair allowance for the use of the farm in cancellation of the interest upon the note. The probability that the verdict should be thus accounted for is so great that we do not feel authorized to set it aside as growing out of a compromise.

No sufficient error having been pointed out, the judgment is affirmed.

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


author: Ostrander, J.

text:
    BAYER v. BAYER.
    1. Insurance — Indemnity—Liability Policy — Accidents Arising Out oe or in Course of Employment — Death.
    Under a policy of liability insurance affecting accidents to servants of tbe insured espressly restricting tbe liability to tbe contracting operations of tbe master, be could not recover of tbe insurance company by reason of tbe death of bis servant in tbe work of moving materials for a third party for bis accommodation under instructions of tbe employer so insured.

    2. Same — Arising Out of Employment.
    Under Act No. 10, Extra Session 1912, it is essential, that tbe death or injury arise, not only out of, but in tbe course of tbe employment in which tbe decedent was engaged,, in order to create a liability for compensation.
    Certiorari to Industrial Accident Board.
    Submitted January 12, 1916.
    (Docket No. 103.)
    Decided June 1, 1916.

      Mary Bayer presented her claim for compensation against Charles F. Bayer for the death of her husband in respondent’s employ. From an order awarding compensation respondent and the Union Casualty Insurance Company, his insurer, bring certiorari.
    Order vacated as to respondent insurance company.

      Walters & Hicks, for appellants.

      Edward S. Grece, for appellee.
    There was testimony to support the finding that claimant’s decedent and husband was employed by respondent Charles F. Bayer and upon his business when he was killed. Whether the risk was one-assumed by respondent Union Casualty Company is the debatable question. Respondent Union Casualty Company issued to respondent Charles F. Bayer its policy of insurance. Upon the policy is a rider which reads:
    “The policy to which this indorsement is attached is extended to cover, and the undersigned company does hereby agree to assume and perform each and every obligation imposed upon the assured by Act No. 10, Extra Session 1912, State of Michigan, and the election of the assured thereunder that is required of the assured to do and perform on account of personal injuries (including death resulting therefrom), sustained by any employee or employees of the assured while this policy is in force, and arising out of and in the course of his or their employment by said assured, in the operation of and in connection with the business herein stated.”
    The business of the insured is stated in the policy as follows:
    “Place where the work is to be done: State of Michigan. Kind of work to be done: Contractors, buildings, wooden, or frame private residences, flats, apartments, flats with stores underneath, one story stores and stores with offices above, private stables and private garages, exclusively, and buildings not mercantile or factory; all not exceeding three stories and basement in height, including jobbing work connected therewith; no blasting. This classification does not include the erection of churches, theaters, or buildings intended for city and county or municipal use, such as court houses, city halls or capitol buildings.”
    The policy is not returned, and we have no further information about its terms. It is contended that claimant’s decedent was not killed while performing any duty in connection with the said business. The facts may be briefly related. Claimant’s decedent was the father of Charles F. Bayer; was employed by him, and by no one else. Sometimes he was employed in and about the business described in the policy of insurance. Charles F. Bayer owned a horse and wagon, and this, his father driving the horse, was sometimes employed in the said business. Charles F. Bayer had a brother, William, a painter. This brother was not his partner, nor, except upon contract relations, employed by Charles F. Bayer. He did business upon his own account, working for others as well as for his brother. They had separate shops. By an arrangement between the brothers William was to pay one-half the expense of feeding the horse belonging to Charles, and Charles, in consideration thereof, was to move, with the horse and wagon, material and apparatus of William, used in his business, from place to place, as required by William. From time to time, depending upon the jobs secured by William, and upon William’s request, the horse and wagon and claimant’s decedent were so employed. A job of painting had been completed by William at Lakeside. Charles had no interest in it, had not constructed or repaired the building, but upon request of William sent his father and the horse and wagon to Lakeside to draw into Detroit, to his brother’s shop, the ladders, etc., belonging to William. It was while returning to Detroit with William’s material'and apparatus upon the wagon that claimant’s decedent was killed, upon the tracks of an electric railroad, by a car. The chairman of the arbitration committee said, in the course of the hearing:
    “It doesn’t matter whether he was hauling for a grocery store, as far as this case is concerned. If he was under this man’s control and selected by him and paid by him, that is the particular point.”
    Two of the arbitrators awarded claimant $6 a week for 300 weeks. The third arbitrator refused to concur. Upon appeal, the Industrial Accident Board modified the action of the arbitrators, and awarded $5.50 per week for a like period.

       For authorities on tbe question of what injuries are within tbe provisions of tbe workmen’s compensation act, see comprehensive note in L. R. A. 1916A, 289.

   Ostrander, J.

(after stating the facts). It is obvious that the policy of insurance, or of indemnity, is not an undertaking of the insurer to respond in all cases for injuries to, or death of, any employee of the assured, in ány employment. The purpose plainly is to limit liability to cases of employment “in the operation of and in connection with the business herein stated.” If there is any connection between the carpenter contracting business and the business of draying or hauling personal property for third persons, neither the property nor its owner being in any way connected with the business, it is not pointed out, and I am unable to discover it. Whether the assured hauled the property of his brother for a consideration (as he did), or gratuitously, his agent and employee engaged in the hauling was not employed by the assured in the operation of, or in connection with, the business stated in the policy.

Counsel for claimant makes an argument based in part upon the assumption, and assertion, that the statute (Act No. 10, Extra Session 1912) does not contain the words “arising out of and in the course of his employment,” but, unlike the statutes of many States, omits the words “arising out of,” and includes only the words “in the course of his employment.” This assumption is unwarranted. Part 2, § 1 (2 Comp. Laws 1915, § 5431).

It is not contended that the contract of the insurance company is not controlling according to its terms. It is conceivable that a man may be engaged in more than one business, and as to one or more may elect to come under the terms of the act, and as to another or others elect not to be governed by the act. The declaration of the assured employer is not before us.

Upon this record, and considering only the points presented, it must be held that the order of the Industrial Accident Board, as affecting the respondent insurance company, is invalid. It is vacated.

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


text:
    TOWNSHIP OF HART v. NORET.
    1. AIunioipal Corporations — Contribution—Negligence—Bridges --Defective Railing — Joint Tort-Feasor — Mutual Liability.
    Where a township was compelled to pay damages to a pedestrian who- was precipitated into a mill race from a bridge which defendant had rendered unsafe by removing a safe railing and substituting one which was weak or defective, it was entitled to contribution from the wrongdoer whose wrongful act created the dangerous condition.

      2. Same.
    If the wrongful act of one person results in a liability-being imposed on another, the latter may have indemnity from the person who was actually guilty of the wrong, but between actual tort-feasors the law will not enforce contribution or indemnity.
    Error to Oceana; Sullivan, J.
    Submitted January 6, 1916.
    (Docket No. 49.)
    Decided June 1, 1916.
    Case by the township of Hart against Edwin A. Noret to enforce contribution for the wrongful act of defendant resulting in plaintiff paying a judgment for personal injuries. From an order sustaining the demurrer of the defendant, plaintiff brings error.
    Reversed.

      Dunham & Dunham and Hall & Greene, for appellant.

      F. E. Wetmore, for appellee.
    This action grows out of a suit begun by William R. McRae as plaintiff against the township of Hart, the plaintiff in this action, and others, the owners of a mill. In that suit the plaintiff recovered a judgment against the defendants for personal injuries sustained by him when the railing of a certain highway bridge over a millrace gave way. See McRae v. Township of Hart, 179 Mich. 325 (146 N. W. 121). After the McRae action had been begun, and before it was tried, the township entered upon its records and caused to be served upon the defendant in the case at bar a notice, which, after reciting „the title of the McRae Case, continued as follows:
    “Please take notice that the above-entitled cause is now pending in the circuit court for the said county of Oceana and will be reached for trial in due time.
    “This action is brought by said plaintiff to recover damages for alleged personal injuries sustained by the plaintiff on or about July 18, 1912, while crossing a bridge over the millrace of the Gurney Milling Company, where said millrace crosses State street in the village of Hart, and is alleged to have been caused by the breaking or giving away of the railing on the west side of said bridge and precipitating the plaintiff to the water and stones in the bottom of said millrace, a distance, as alleged in his declaration, of about 20 feet, thereby causing permanent injury to the plaintiff, for which he claims damages in the sum of $25,-000. Plaintiff claims that railing was a railing placed on said bridge by you, said Edwin A. Noret, and that the same was weak, flimsy, springy, and slimpsy, and* not a substantial railing as required by law, and thatj the same was only a trap, and that such weak, flimsy,1 springy and slimpsy condition of said railing caused the same to be insufficient to hold the plaintiff when he leaned slightly against it, and that same gave way and caused the plaintiff to be precipitated into the race, and was the cause of his alleged injuries as claimed in said declaration.
    “You will further take notice that the defendant, the township of Hart, claims that, under the law you are liable to the said defendant for any damages which, the said township of Hart may sustain by reason of the successful prosecution of the said suit by the said plaintiff and the said defendant, the township of Hart, will hold you, the said Edwin A. Noret, liable for any judgments which may be rendered against the said defendant, the township of Hart, .by reason of the cause of action upon which said suit is brought and for the costs and expenses of the trial of said cause.
    “And you are hereby notified to appear and defend said suit, and hold the said defendant, the township of Hart, harmless in the premises.
    “Dated this 24th day of February, 1913.
    “The Township op Hart,
    “By J. N. Cotton,
    “Supervisor of the Township of Hart. “By McFarland,
    “Township Clerk.”
    The said Noret did not appear and defend the said suit. The township paid to McRae the judgment recovered by him, and brings this action to recover from Noret indemnity. It is alleged in the declaration that defendant wrongfully and without authority removed and took away the substantial railings upon the bridge, that the bridge thereafter was without railings for a period of some 14 days, when defendant placed upon the bridge railings, unsubstantial and insufficient in respect to the material used and the method of erection, which remained for a period of some three months, and until a day certain when said McRae — .
    “while lawfully passing over said bridge, and without any fault on his part, and while acting in a careful and prudent manner, came in contact with said defective, inefficient, and unsubstantial railing, so erected as aforesaid by said defendant, and solely by reason of the unlawful and wrongful act of said defendant in having taken down the good railings, as aforesaid, and having wrongfully and unlawfully, carelessly and negligently, erected said defective, inefficient,- and unsubstantial railings, said McRae was thrown and precipitated from the west side of said bridge down to the bottom of the millrace aforesaid, and thereby sustained serious and permanent injuries.”
    By proper and unchallenged allegations the declaration sets out the recovery of judgment by McRae, its amount, and the amount of costs allowed him, the payment of the judgment by the township, the payment by the township of other fees and expenses of the litigation and of attorney’s fees. The declaration contains two counts, and there is some variation of allegation, but for the purposes of decision the foregoing statement is sufficient. The defendant demurred to the declaration, the grounds of demurrer being, in substance and effect, that the declaration does not state a duty owed by defendant in the premises to McRae or any one else, and does show a joint tort of the township and its codefendants, the sole and proximate cause of the injury to McRae; that this is a suit by one tortfeasor against another, claimed to be a joint tortfeasor, for contribution. The demurrer was sustained, and it seems upon the ground that it is a suit by one joint tort-feasor to compel contribution from another joint tort-feasor. In the opinion of the trial court it is said, among other things:
    “That the township did not give Mr. Noret any permission, either to take down the old barriers or to put up the unsubstantial ones in their place, to my mind does not affect this case. The township had notice of their condition long before the injury to Mr. McRae occurred. In this case the Gurneys were held liable for negligence arising out of failure to observe a common-law duty. It is said Noret, the defendant, is liable from failure to observe a common-law duty, but it must be conceded that the taking down of the railings did not directly cause the accident, neither did the putting up of the flimsy ones directly cause the injury, so neither of these acts can be called gross negligence. If, when the flimsy barriers had been put up, either Mr. Gurney or the township had erected good barriers, the injury to Mr. McRae would not have occurred. So then, the most that can be said is that Mr. Noret, the Gurneys, and the township failed in their duty to put and keep the highway in repair. The negligence of each was the same, viz., a failure to repair the bridge, and that negligence was concurrent on all three parties. Can it be contended that the township may sue and recover indemnity against the Gurneys now because it paid the joint judgment? If not, then with what more reason can it sue and recover against Noret, who was not more bound by the notice served on him than were the Gurneys by the-judgment to indemnify to the township, or to share with it in paying the judgment.”
   Ostrander, J.

(after stating the facts). It is the! general rule that whenever the wrongful act of one person results • in liability being imposed on another, the latter may have indemnity from the person actually guilty of the wrong. The exception to the rule is that as between actual tort-feasors the law will not enforce contribution or indemnity. The rule of the exception, one of public policy, has not generally been extended by courts. Public policy demands that two or more j wrongdoers shall be left as to each other where their! joint offense leaves them. It does not require that con-1 sequences of the wrong of one person shall be visited, without indemnity, upon others, not particeps criminis,\ or in pari delicto. In his work on Torts (1st Ed.), pp. 144, 145, Judge Cooley, in stating the same principle, says:

“As under the rules already laid down the party wronged may, at his election, compel any one of the parties chargeable with the act, or any number less than the whole, to compensate him for the injury, it becomes a consideration of the highest importance to the person or persons, thus singled out, and compelled to bear the loss, whether the others who were equally liable may be compelled to contribute for his relief. On this subject there is a general rule, and there are also some very important exceptions. The general rule may be found expressed in the maxim that no man can make his own misconduct the ground for an action in his own favor. If he suffers because of Ips own wrong-doing, the law will not relieve him. The law cannot recognize equities as springing from a wrong in favor of one concerned in committing it. But there are some exceptions to the general rule which rest upon reasons at least as forcible as those which support the rule itself. They are of cases where, although the law holds all the parties liable as wrongdoers to the injured party, yet as between themselves some of them may not be wrongdoers at all, and their equity to require the others to respond for all the damages may be complete. There are many such cases where the wrongs are unintentional, or where the party, by reason of some relation, is made chargeable with the conduct of others.”

The rule has been many times, and almost universally, applied in favor of municipal corporations called upon on account of some violation of the statutory duty to keep highways fit for travel to pay persons injured upon the highways, by excavations, obstructions, traps, and nuisances placed therein by third persons. In such cases, usually, the liability of the municipality to the injured person is predicated of omission to remedy a defective condition, and of the actual wrongdoer to the municipality of his actual wrongdoing. Thus in Inhabitants of Woburn v. Railroad Corporation, 109 Mass. 283, the defendant, to allow a person to move a building over the street, took down one of the posts supporting its warning sign, leaving a considerable hole in the highway, which remained during the period, some three weeks, that was required to move the building in sections. A traveler on the highway fell into the hole and was injured. He recovered a judgment against the municipality, which paid it and sued the railroad company for indemnity. See, also, City of Boston v. Coon, 175 Mass. 283 (56 N. E. 287); City of Holyoke v. Hadley Co., 174 Mass. 424 (54 N. E. 889); City of Lowell v. Glidden, 159 Mass. 317 (34 N. E. 459); Inhabitants of Swansey v. Chace, 16 Gray (Mass.), 303; Inhabitants of Lowell v. Railroad Corporation, 23 Pick. (Mass.) 24 (34 Am. Dec. 33) ; Mooney v. Light Co., 185 Mass. 547 (70 N. E. 933); Trustees of Canandaigua v. Foster, 156 N. Y. 354 (50 N. E. 971, 41 L. R. A. 554, 66 Am. St. Rep. 575); Baltimore, etc., R. Co. v. Howard County, 113 Md. 404 (77 Atl. 930) ; City of Seattle v. Improvement Co., 47 Wash. 22 (91 Pac. 255, 125 Am. St. Rep. 884, 14 Am. & Eng. Ann. Cas. 1045), s. c., with notes, 12 L. R. A. (N. S.) 949; City of Wabasha v. Southworth, 54 Minn. 79 (55 N. W. 818); Robertson v. City of Paducah, 146 Ky. 188 (142 S. W. 370); s. c., with notes, 40 L. R. A. (N. S.) 1153; Gridley v. City of Bloomington, 68 Ill. 47; Durant v. Palmer, 29 N. J. Law, 544; City of Chicago v. Robbins, 2 Black (67 U. S.), 418; Bailey v. Bussing, 28 Conn. 455; 3 Dillon, Municipal Corporations, § 1035, and notes; Catterlin v. City of Frankfort, 79 Ind. 547 (41 Am. Rep. 627); McNaughton v. City of Elkhart, 85 Ind. 384; Brown v. Town of Louisburg, 126 N. C. 701 (36 S. E. 166, 78 Am. St. Rep. 677); City of Raleigh v. Railroad Co., 129 N. C. 265 (40 S. E. 2) ; City of Grand Forks v. Paulsness, 19 N. D. 293 (123 N. W. 878), s. c., with notes, 40 L. R. A. (N. S.) 1158; City of San Antonio v. Smith, 94 Tex. 266 (59 S. W. 1109).

It is evident, I think, that the learned trial judge, called upon to apply a rule, considered only the relations of the several parties, involved as defendants in the two actions, to the injured man, and did not consider their relations to each other. And he may have been misled by the concluding portion of the opinion rendered in McRae v. Township of Hart, in which the right to recover against all defendants in that action is affirmed. The injured man, McRae, might havel brought his action against either the township, the| Gurneys, who owned the mill and maintained the race] and bridge, or Noret. Each of them owed him a duty.| He joined as defendants the Gurneys and the township. As between the Gurneys and the township, the latter had the right, under the statute, to repair the bridge and charge the cost to the Gurneys. But the act of Noret in removing the bridge railings and substituting others, creating a nuisance in the highway, was what involved the township and the Gurneys, who omitted, it seems, to repair a condition created by Noret.

The declaration fairly states a case of unlawful and unwarranted interference by defendant with a lawful and safe structure — a bridge — in the highway, and what resulted therefrom. It is not legally infirm for any of the reasons set out in the demurrer. The defenses open to defendant are indicated in City of Lan sing v. Railroad Co., 129 Mich. 403 (89 N. W. 54), Grant v. Maslen, 151 Mich. 466 (115 N. W. 472, 16 L. R. A. [N. S.] 910), and Grand Rapids Lumber Co. v. Blair, 190 Mich. 518 (157 N. W. 29).

The judgment is reversed, with costs to plaintiff in error.

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


author: MOORE, J.

text:
    BRAY v. MICHIGAN UNITED TRACTION CO.
    Street Railways — Negligence—Animals — Contributory Negligence.
    Plaintiff, whose horse was injured by defendant’s street car in the daytime in crossing the track at a street intersection, but who did not look a second time for an approaching car after he passed a place 60 or 70 feet away from the track, was not entitled to recover because of his contributory negligence, the testimony showing, that he was familiar with the crossing and with the dangers thereof, and knew about the frequency of the passage of cars.

    Error to Ingham; Collingwood, J.
    Submitted April 4, 1916.
    (Docket No. 12.)
    Decided June 1, 1916.
    Case by Mahlon Bray against the Michigan United Traction Company for injuries to plaintiff’s horse. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Warner, Raudabaugh & Person, for appellant.

      Sanford W. Ladd (Warren, Cady, Ladd ■& Hill, of counsel), for appellee.

       As to liability of street railway company for injuries by street car collisions with vehicles or horses, see comprehensive note in 25 L. R. A. 508, 49 L. R. A. (N, S.) 505. And for cases discussing the duty of a person traveling upon a street to look and listen before crossing the tracks of an electric road, see notes in 15 L. R. A. (N. S.) 254, 23 L. R. A. (N. S.) 1224.

   MOORE, J.

The plaintiff is a farmer living about six miles from the city of Lansing. In going to the city of Lansing he frequently traveled what is known as the River Drive road, through the Michigan Agricultural College grounds, which runs in a southeasterly and northwesterly direction. This road intersects Michigan avenue, which is the street running from Lansing to East Lansing, at an acute angle. The defendant operates an electric railway on Michigan avenue. Its track-is on the south side of the highway where the River Drive crosses the track.

The plaintiff was driving a heavy team of horses hitched to a lumber wagon. The plaintiff was riding on the hounds of the wagon. The team he was driving was traveling at the rate of 3 to 3% miles per hour. When the horses reached the track he heard the car whistle, at which time the car was about 40 to 50 feet from him. He quickly turned his horses to the left. His off horse was struck in the hip, and was so badly hurt she had to be killed.

At the close of the evidence for the plaintiff the court directed a verdict for the defendant on the ground that the plaintiff was guilty of contributory negligence. The question for our consideration is whether plaintiff made a case which should have been submitted to the jury.

The accident happened in the forenoon during broad daylight. Plaintiff was familiar with the crossing, the railway track, and the frequency with which defendant ran its cars at the place of the accident. He testified. We quote:

“Q. Before driving to the track of the Michigan United Traction Company * * * did you look and listen to see whether you could see and hear a car coming or not?
“A. About halfway down the hill there is an opening, and the evergreens are not as thick, and shade trees. I could see no car. I came down the hill until I got within 60 or 70 feet. There is practically nothing. Then I looked and I saw no car, and I came on, but as I struck the track I heard the whistle. My horses’ both forward feet were on the track, and I glanced, and I saw the car. I whirled them as soon as possible, but I was too late.
“Q. How close were you to the track here, that is, the highway, when you looked last to see if you could see the car?
“A. The River Drive intersects Michigan avenue in this shape; looking across these corners, I was probably 50 feet, looking across to the track, but I had between 60 and 70 feet to drive to cross the track.
“Q. How far could you see east on the track at that time ?
“A. I counted the poles, and I think they are 100 ,feet apart. If they are 100 feet apart, it is about 600 feet that you see to the east.
“Q. And then what was there in the track?
“A. No car in sight.
“Q. Well, looking east, is there any hill?
“A. Yes, sir; looking east, there is a hill and down grade going towards the west and the hill that slopes to the east the other way. I could see the apex of the hill.
“Q. Was there any car oetween the apex of this hill and your place at that time?
“A. No, sir; none when I looked. I then had between 60 and 70 feet to travel to get across the track.
“Q. At about what rate of speed was your team traveling at that time?
“A. At the time they came on the track they were on a walk. * * * I should judge they would walk from 3 to Zy% miles an hour.
“Q. You went forward after looking to the east and seeing no car?
“A. Yes, sir.
“Q. Did you not after that stop or hesitate?
“A. No, sir.
“Q. Did not stop after you made this last look to observe to the east the track; did not stop before you got on the track?
“A. No, sir.”

On his cross-examination he made it even more apparent that he looked but once, and that, if he had looked just before going upon the track, when there was an opportunity to do so, he could have seen his danger in time to avoid it.

Under the version given by the plaintiff of the occurrence we think the trial court was justified in directing a verdict for the reason given by the following authorities: Stevenson v. Railway, 167 Mich. 45 (132 N. W. 451); Manos v. Railway, 168 Mich. 155 (130 N. W. 664), and the many cases cited therein; Puffer v. Lighting Co., 173 Mich. 193 (139 N. W. 19) ; and Champaign v. Railway, 181 Mich. 672, at page 681 (148 N. W. 201), and the many cases cited therein.

Judgment is affirmed.

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


author: Moore, J.

text:
    PETERSON v. BISBEE.
    Escrow — Conveyances—Delivery—Time—Revocation.
    .A deed delivered in escrow to be turned over to the grantee after the decease of the grantor, remaining in the hands of the depositary for upwards of nine years, when the grantor attempted to revoke it and destroyed the instrument, nevertheless passed title, as it was not subject to revocation.

    Appeal from Huron; Beach, J.
    Submitted April 20, 1916.
    (Docket No. 49.)
    Decided June 1, 1916.
    Bill by Fremont Peterson against Clark J. Bisbee and others for specific performance. From a decree for complainant, defendants appeal.
    Affirmed.

      George M. Clark, for defendants.

       The general rule as to delivery of deed to third person to be delivered to grantee after grantor’s death is discussed in a note in 54 h. R. A. 867. As to right of grantor to revoke deed delivered to stranger to be delivered by him to grantee after grantor’s death, see notes in 4 L. R. A. (N. S.) 816, 9 L. R. A. (N. S.) 317.

   Moore, J.

This is an appeal from a decree which, omitting the formal parts, reads as follows:

“After hearing the testimony of the witnesses and the arguments of the counsel, the court, being fully advised in the premises, finds that said complainant, Fremont Peterson, made and entered into a contract with said Fannie M. Clough, now deceased, in her lifetime, for the land described in said bill of complaint as the S. E. *4 of the N. E. % of section 28, town 17 north, range 15 east, Mich., being 40 acres more or less in the township of Rubicon, in said county; that said complainant has fully performed his part of said contract; that in compliance with said contract and agreement, said Fannie M. Clough in her lifetime made and executed a deed of said land, conveying same to said complainant, and placed same in the hands of a third party for delivery to said complainant at her decease; that said deed was destroyed without the knowledge or consent of said complainant; and that said complainant is the owner of said land.
“It is therefore ordered, adjudged, and decreed that complainant’s contract with said Fannie M. Clough be specifically performed, and said complainant’s said title to said land be confirmed in him and quieted as against the defendants herein, and that said complainant, Fremont Peterson, be, and he is, deemed to be the owner of said land, and that said complainant have his costs of this suit to be taxed as against said defendants.”

Fannie M. Clough died April 27, 1913, aged 84 years. By a former marriage she was the mother of the complainant and of all the defendants, except Mr. Bisbee, administrator of her estate.

It is the claim of complainant that he was to take possession of and do certain things on the farm for his mother, and do other service for her, and that he was to have the farm; that, acting upon that agreement, he took possession of the farm and his mother visited a conveyancer and made a deed of the farm to him and left it with the conveyancer to be delivered to complainant on her death. It is his further claim that he performed all things he was to do, and that the defendants persuaded the mother, shortly before her death, to procure the deed from the conveyancer, and they destroyed it without her consent. It is the claim of defendants that complainant was working the farm on shares, and that the deed was destroyed by the direction of the mother. We quote from the brief of ■ the solicitor for appellants: ,

“There are two questions presented by appellant which, for the purpos'e of argument, may be treated separately: First, the claimed delivery of a deed as an escrow; second, the claim of an oral agreement to convey.”

Aa to the first of these claims it is urged that the mother never supposed she was alienating the title beyond recall. As to the oral agreement, it is claimed that there is an. utter failure to establish it. If we omit the testimony of the complainant entirely, it is clearly shown that he went into the possession of the farm under some arrangement in March, 1904, and that at the same time his mother made a deed of the farm, naming him as grantee, and left it with the scrivener to be delivered to him on her death. The testimony as to the obtaining of the deed from the scrivener and its destruction is not very clear. The scrivener testified in part:

“I drew a deed for her. * * * I don’t know just how many years ago. The deed was in favor of her son Fremont Peterson.' In her last illness, a month or two before she died, she sent for me, and told me to bring all the papers of hers I had in my possession. I brought the deed and some other papers. When I gave her the deed she was in bed. There wasn’t any one else in the room. She wanted to know why I hadn’t sent them down. I told her T wouldn’t give them to any one but her, and I gave them to her. Her husband was in the house, and I think there were people walking around there. At the time she drew the deed and signed it and left it with me she told me to give it to Fremont after her death. She said Fremont was a good boy, and she was fixing it up that way.”

Cross-examination:

“Mrs. Clough signed the paper at my office quite a number of years ago — I don’t know exactly. Fremont wasn’t there. She told me to keep the deed and deliver it to him after her death. I wrote the deed. There was a provision in the deed that John was to be paid $100. She kept her papers with me. I think I did most of her business. She never talked with me from the time she left the deed with me until I returned the deed to hpr. I considered she had a right to take the deed back if she wanted to. I gave it to her anyway.”

The husband of Mrs. Clough, who was much younger than she, testified:

“She signed the deed to Fremont 7 or 8 years ago. I don’t know where she signed it, but she told me it was in Johnny Brennan’s Bank. She left it in his care for Fremont Peterson, to be delivered to him after she was dead. I saw the deed when Johnny Brennan brought it home and handed her the deed.
“Q. What did she say?
“A. She didn’t say anything. Johnny Brennan says, ‘Here are the papers, Mrs. Clough.’ ‘Of course; that’s all right, Mr. Brennan. I thank you for bringing them.’ John and Fred Peterson were in the house at the same time. Fremont wasn’t there. He didn’t know she had the deed. Mr. Brennan stayed about half an hour. She was sick in bed at this time; didn’t know one paper from another. All she wanted was to have the papers in- her possession. This was about three weeks before her death. I took Mr. Brennan home. When I got back she was asleep. Fred and John Peterson were the only people in the house. Fred came up and told me that they had burned the deed to Fremont. Fremont didn’t know then it was burned; he wasn’t there at that time. * * * She told me that Fremont carried out his part of the agreement, and she was satisfied with what he had done. After the deed was burned, she called me in, and said the boys didn’t care anything about her, all they cared about her was what little she had. She didn’t know the deed was burned. She couldn’t read and write; she signed her name by mark. She intended to give-the deed to Fremont.”

One of the defendants testified:

“Two or three days after the deed was burned she told me they were quarreling over papers, and that she had destroyed them. I told her she had done a wrong thing. She didn’t say who was quarreling about it.”

One of the defendants testified:

“I was there the day Mr. Brennan came down with the papers; guess Fred and Clough were also there. My mother told me-she had sent Clough after her papers to Brennan. * * * He (Mr. Brennan) came to the house and delivered the papers to my mother. She asked Brennan why he didn’t give the papers to Levi Clough when she sent for them, and he said- he would rather deliver them himself. I don’t know whether the papers were in a large envelope or packed together. Fred came in while Brennan was there, Clough did not come in; he was out in the yard. She kept the papers in her possession some little time. She had the papers in her hand, and Fred was sitting close to her, and she asked him to burn the bunch of papers that she had. So Fred took the bunch of papers and went to burn them, and I said to Fred: ‘Like you ought to look those papers over a little and see what is in there; there might be something in there she wouldn’t want to have burned.’ Fred came back. We looked at the papers, and found an abstract, and I says, ‘That might be some good.’ So he looked the paper all through, and put them together and passed them to her, and she asked me to burn them up, which I did. Clough came in a little later. I didn’t look the papers over in my hands at all, I looked on while he looked at the papers. Fred sat close to the bed. He didn’t say anything about what was there.”

On cross-examination:

“By Mr. Murphy: She had the papers in her possession before they were burned. I think Fred quoted over the different papers in looking them over. He called out an abstract, and that was the only paper I had my hands on. I don’t remember him calling out a deed or a will. •* * * I didn’t know that she made a deed to Fremont. I didn’t know that the deed was burned by me; it was all those papers in that bundle that was burned. I didn’t hear Fred say anything about a deed or a will in those papers; he was looking them over and quoting them to my mother and I wasn’t paying strict attention to what he said.”

Fred testified the papers were burned by the direction of his mother.

There is no one who disputes the scrivener when he testified:

“At the time she drew the deed and signed it and left it with me, she told me to give it to Fremont after her death.”

It was not until 9 years later that it was destroyed. There is no pretense that Fremont was consulted about its destruction, or consented thereto. The effect of making a deed and leaving it with a third party, with instructions to deliver it to the grantee upon the death of the grantor, was the subject of discussion in Hosley v. Holmes, 27 Mich. 416; Wallace v. Harris, 32 Mich. 380; Thatcher v. St. Andrews Church, 37 Mich. 264; Latham v. Udell, 38 Mich. 238; Taft v. Taft, 59 Mich. 185 (26 N. W. 426, 60 Am. Rep. 291) ; Jenkinson v. Brooks, 119 Mich. 108 (77 N. W. 640) ; Fulton v. Priddy, 123 Mich. 298 (82 N. W. 65, 81 Am. St. Rep. 201) ; Meech v. Wilder, 130 Mich. 29 (89 N. W. 556).

We think the deed was made and delivered, and should be restored.

The decree is affirmed, with costs.

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


author: Moore, J. Ostrander,’J.

text:
    BEAUDRY v. WATKINS.
    Master and Servant — Workmen's Compensation — Death—Accident Arising Out of and in Course of Employment — Wilful Injury.
    Claimant’s son was employed by a laundry as a delivery or errand boy, and, on returning from luncb at home, at noon, on bis bicycle, caught on a motor truck and by ■reason of a sudden turn was thrown and run over by a following vehicle. He bad received permission from one of bis employers to go home to bis luncb on this occasion, getting a package on the way and returning with it after-wards. Held, that the accident arose out of and in the course of bis employment and that the injury did not result from the wilful or intentional misconduct of the servant. Ostrander, Brooke, and Steere, JJ., dissenting.

    Certiorari to Industrial Accident Board.
    Submitted April 19, 1916.
    (Docket No. 41.)
    Decided June 1, 1916.
    Charles E. Beaudry presented'his claim for compensation for the death of Gordon Beaudry while in the employ of William H. Watkins and Byron D. Rad-cliff, copartners. From an order awarding compensation, defendants bring certiorari.
    Affirmed.

      Ivin E. Kerr, for appellants.

      McHugh, Gallagher, O’Neil & McGann. for appellee.

       Authorities on the question of workmen’s compensation acts, generally, are discussed in a comprehensive note in L. R. A. 1916A, 23 et seq.

   Moore, J.

The facts are not complicated. On April 29, 1914, and prior thereto, Gordon Beaudry, nearly 15 years of age, was employed by Watkins & Radcliffe as a delivery boy, and he was furnished a bicycle with which to do his work. On that date he was to make a delivery on Cass avenue. Permission was given him to get his luncheon at home, No. 997 Theodore street, and he was then to call for a package and return to the store. One of his employers testified he—

“asked my permission to go. home to lunch from Theodore street, or whatever the call back might be. I reluctantly gave him permission to make that trip that way on the ground that he would hurry up and come back. I think it was about 20 minutes to 11 when I gave him this order, and he argued that he could go to Cass avenue first; that he could go and make the pick-up and get his lunch and get back early.
“Q. Making this pick-up and making this delivery were in the course of his employment?
“A. Oh, yes.
“Q. He was employed to do this very thing, Mr. Watkins?
“A. He was.”

The boy called at his home at about 11:30 o’clock, and took 10 minutes for lunch. He told his mother he had another delivery to make and was in a hurry. As he was proceeding in a westerly direction on Can-field Avenue East, he caught on the right rear end of a motor truck, proceeding in the same direction. This truck overtook and passed another truck, also proceeding in a westerly direction. The boy was still hanging on the right rear end of the truck, which turned suddenly to the right. As a result of the truck making this sudden turn, the boy was thrown to the pavement a few feet in advance of the rear truck, and, before the driver in charge could stop, the left front wheel passed over the boy’s body. Death resulted soon. Deceased at the time of his death was earning $6 a week, which he gave to his mother each week for use in the family. Deceased was an expert bicyclist.

We quote from the brief:

“It is the claim of respondent: (1) Gordon Beaudry, deceased, did not receive a personal injury arising out of and in the course of his employment. (2) He was injured by reason of his intentional and wilful misconduct.”

Sections 1, 2, pt. 2, Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, §§ 5431, 5432), are quoted. Under the first grouping it is argued — we again quote:

“After it is shown that the accident happened within the time during which he is employed, and at the place where he may reasonably be during that time, that is, within the period and the scope of the employment, the workman must also know [show] that it was a risk incident to the employment; that it arose because of something he was doing in the course of his employment, or because he was exposed by reason of the peculiar nature of his employment to the particular hazard which caused the injury”

— and that as the accident happened in the instant case because of decedent taking hold of the truck, there could be no liability. Counsel cite many authorities which it is claimed support his contention. Under the second heading it is argued:

“If the court should hold that in order to constitute intentional and wilful misconduct, it should appear that the workman intended or expected to injure himself, it would be interpolating into the statute a limitation upon the clause which cannot be gathered from a plain and obvious meaning of the word.”

The authorities cited are chiefly those of foreign jurisdictions. This court had occasion to consider the language used in sections 1 ajid 2, pt. 2, of the act (2 Comp. Laws 1915, §§ 5431, 5432) in Clem v. Motor Co., 178 Mich. 340 (144 N. W. 848, L. R. A. 1916A, 352), and in Rayner v. Furniture Co., 180 Mich. 168 (146 N. W. 665, L. R. A. 1916A, 22; Am. & Eng. Ann. Cas. 1916A, 386). A construction of section 2 was involved in Gignac v. Studebaker Corporation, 186 Mich. 574 (152 N. W. 1037). While the instant case is not on all fours with any one of those cases, we think it must be said that the reasoning used in deciding them justified the ruling of the Industrial Accident Board.

The judgment is affirmed, .with costs.

Stone, C. J., and Kuhn and Person, JJ., concurred with Moore, J.

Ostrander,’J.

In my opinion, the risk assumed by the boy, though the cause of the injury, was not a risk incident to his employment.

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

Bird, J., did not sit.


text:
    KOPHAL v. WEISENBERGER.
    Replevin — Demand—Lawfulness of Possession — Title.
    Plaintiff was entitled to maintain replevin, without a demand, for an automobile which he had his daughter buy- for the benefit or use of plaintiff’s grandson, but without any intention to part with the title, and where she had a bill of sale executed in the name of her husband, without plaintiff’s consent, and the husband put it in defendant’s garage for storage.
    Error to Wayne; Mandell, J.
    Submitted April 12, 1916.
    (Docket No. 122.)
    Decided June 1, 1916.
    Replevin by Charles Kophal against Joseph E. Weisenberger and August Fengler for the possession of an automobile. Judgment for defendants on a verdict directed by the court. Plaintiff brings error.
    Reversed.

      John H. Dohrman, for appellant.

      Wilkinson, Routier & Hinkley, for appellee Fengler.
   Moore, J.

This is an action of replevin brought to recover an automobile or its value, which plaintiff claims belonged to him. After the plaintiff rested his case the trial judge directed a verdict in favor of August Fengler, the other defendant not appearing in the case. The case is brought here by writ of error.

The plaintiff bases his appeal upon two grounds:

(1) That no demand was necessary.

(2) That the demand made upon defendant Joseph E. Weisenberger was a sufficient demand.

We think it necessary to consider only the first ground. It is said the plaintiff was upwards of 80 years old at the time of the trial. It was his claim that prior to June 27, 1914, he sold one of two properties he owned on Jay street, Detroit, and followed his wife to the home of their daughter, Mrs. August Fengler. That he gave Mrs. Fengler $50 and paid for the board of himself and wife. That he and his wife concluded to buy an automobile. “I said I would buy it, but they were to pay the oil, license and gas.” His grandson George and his mother saw the agent who demonstrated the machine.

“I showed him the money and said when you bring the automobile you get the money, so he got the automobile and I had the money, but gave it to my wife to look it over, and my wife handed it over to the oldest daughter. They handed it to the agent then. I told him my name was Charlie Kophal. I got no receipt. * * * My wife and I * * * went back to our cottage on Jay street and she died there. When I moved I went there to get the automobile out of the barn. * * * I got a man to drive it, but it was gone.”

At the time the money was paid Mrs. Fengler signed a written order for the machine in the name of her husband, August Fengler, and the bill of sale was made out to him. It is the claim of the plaintiff that he did not authorize this to be done and knew nothing of it. On his cross-examination he said:

“The property on Jay street that we sold in the name of myself and wife. After we sold that property my wife wanted an automobile so we could drive around and get some fresh air.
“Q. You wanted your daughter to have it, so your son could have it to drive around?
“A. Yes; the boy.
“Q. Your grandson?
“A. Yes, sir.
“Q. Your boy is your grandson?
“A. Yes, sir.
“Q. For that purpose you gave the money to Mrs. Fengler to buy the machine?
“A. Yes, sir. They took us out two times; they did not take out my wife alone at all; the third time they would not take us any more.”

It is claimed this indicates that he bought the machine for his daughter. The old man caused inquiries to be made and traced the machine to the garage of defendant Weisenberger, where it had been left by the son of August Fengler, payment being made for its storage. The plaintiff authorized his son to look up and get the machine. The son had an interview with Mr. Weisenberger. It is not very clear just what was said. Mr. Weisenberger's version is:

“Q. You are one of the defendants served with process in this cause, are you not?
“A. Yes, sir.
“Q. I call your attention to — stand up Mr. Robert Kophal — I call your attention to the gentleman in the second seat, do you recognize him?
“A. íes. * ■ * * Witness (continuing): The car was left in my garage by the young man, Mr. Fengler, who is not the defendant in this cause, August Fengler, but his son George and a grandson of plaintiff. He did not say to whom the car belonged; he just brought it and paid the storage on it.
“Q. Was there a demand made upon you for this car by any one else?
“A. There was a couple of days before by a gentleman, by Robert Kophal.
“Q. State whether that was before you were served with a writ of replevin by the sheriff?
“A. Just before.
“Q. How long before?
“A. Perhaps two days; I could not say for sure.
“Q. In response or in answer to that demand by Robert Kophal, for the car, what did you say to. him?
“A. I could not say much because, the car was not— because it belonged to Fengler and it could not go out to any one else but him.
“Q. Did you as a matter of fact refuse to give him the car?
“A. Refused it and always had to.
“Q. You say you refused?
"A. Yes, sir.”

Cross-examination by Mr. Wilkinson:

“Q. What did Robert Kophal say when he asked you for the car?
“A. He said that the car belonged to him and made-some statement, I can’t just kemember the whole lot of talk.
“Q. Robert Kophal said the car belonged to him?
“A. He said it in a way; yes.
“Q. Then so far as you rémember the conversation was that Robert Kophal came in there and said this car belonged to me?
“A. Yes; he said it belonged to him and a dirty deal had been done, that is all; I did not pay any particular attention.
“Q. That is the demand made, that the car belonged to him?
“A. Yes; and he was going to get it.
“Q. Those are the words he used, the car belongs to me and I am going to get it?
“A. Yes, sir.”

By Mr. Dohrman:

“Q. Do you remember enough of the circumstances to recollect now whether he said the ear belongs to me or belonged to his father?
“A. I don’t remember that part. I don’t remember whether he Said it belonged to him or to his father.”

There was much more testimony than we have quoted, including the testimony of the agent who sold the machine to the plaintiff and received his money, but who took the order and gave the receipt as before stated, but why it was so done he does not know. After Eobert Kophal saw the garage man this suit was instituted. Defendant Fengler gave to the sheriff the statutory bond and the automobile was delivered to him. He caused his appearance to be entered and has interposed the only defense made.

Counsel for defendant say that the possession of August Fengler was lawful, and that a demand should be made upon him before replevin would lie, citing Darling v. Tegler, 80 Mich. 54; Becker v. Vandercook, 54 Mich. 114 (19 N. W. 771); Campbell v. Quackenbush, 33 Mich. 287; New Home Sewing Machine Co. v. Bothane, 70 Mich. 443 (38 N. W. 326), and other cases.

A reference to those cases will show them unliké the instant case. It is the claim here that plaintiff bought and paid for the machine intending to. take the title in himself. While it is claimed that his cross-examination gives rise to the inference that he intended to give the automobile to his daughter, when this cross-examination is taken in connection with the rest of the testimony the inference is not conclusive. There is not a suggestion in the record that plaintiff knew the title was put in August Fengler. Defendant Fengler was not present when the sale was made or when the order and receipt were given. If the Fenglers were acting in good faith it is difficult to account for the disappearance at the time the plaintiff moved, of the automobile from where it was ordinarily kept, and its 'being placed in storage in a garage.

The case is within Whitney v. McConnell, 29 Mich. 12; Carl v. McGonigal, 58 Mich. 567 (25 N. W. 516); Breitenwischer v. Clough, 111 Mich. 6 (69 N. W. 88, 66 Am. St. Rep. 372) ; Congdon v. Bailey, 121 Mich. 570 (80 N. W. 369) ; Schoolcraft v. Simpson, 123 Mich. 215 (81 N. W. 1076).

Judgment is reversed, with costs to appellant, and a new trial ordered.

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


author: Moore, J. Ostrander, J.

text:
    WHITMAN v. COOK.
    Equity — Prayer—Appeal and Error.
    A prayer for affirmative relief is essential to a decree ■ awarding the defendant equitable remedies, and on appeal a decree granting relief, in the absence of such prayer, will be modified by ordering the bill dismissed. Stone, C. J., and Moore and Person, JJ., dissenting.
    Appeal from Genesee; Withey, J., presiding.
    Submitted April 14, 1916.
    (Docket No. 137.)
    Decided June 1, 1916.

      Bill by Anstice Whitman against Miles P. Cook and others for an injunction restraining defendants from opening up a private right of way across complainant’s land. From a decree for defendants, complainant appeals.
    Modified and affirmed.

      'Clarence Tinker (George F. MacNeal, of counsel), for complainant.

      Farley & Selby, for defendants.
   Moore, J.

This is an injunction bill filed to restrain defendants from opening a private right of way across complainant’s lands, from the Fenton road, so called, to land on the shore of Long Lake, purchased by the defendants from the complainant. From a decree dismissing the bill of complaint and establishing the private way, the case is brought here by appeal.

Omitting the formal parts of the bill of complaint, it avers the making of a deed between the parties containing the words:

“Also conveying the right of way from the Fenton road to the grove back of Fred J. Pierson’s property; thence north along the east line of said grove to the north line of said farm.”

We quote from the bill of complaint:

“Your oratrix, further complaining, says that about one year ago said grantees in said deed demanded a road, according to said paragraph in said deed contained, and proceeded to open and construct the road; that the Fenton road, so-called, runs in a northerly and southerly direction on. the east side of complainant’s farm, and that there is and has been a road,running from the so-called Fenton road running in a westerly direction to Long Lake, situated west of said property; that said defendants started about 80 rods west of the so-called Fenton road without the consent of your oratrix, and tore down her fences between the lands of said Pierson and your oratrix, and constructed a road running northerly between the land of said Pierson and your oratrix as. far as they desired, and constructed the same, taking for the construction of said highway a portion of the land of your oratrix to which they had no title; that for the purpose of avoiding litigation she did not interfere in the construction of said highway or road, and that said defendants have used and occupied said lands as a highway from the time they constructed it up to the present time, and they have, as this complainant alleges, a complete highway to their premises, and have full egress and ingress to their premises, and said highway was built and constructed, is at the present timé open and used by them and the public, as they may desire, giving them full access for ingress and egress to their premises and compares in every respect to the paragraph in said deed hereinbefore set forth.”

The bill proceeds to say that defendants are about to open another right of way from the Fenton road to their lands through her farm, to her great injury and without right, and prays that they may be enjoined from doing so.

The answer is at length, but the substance of it is that the opening of the way mentioned in the bill of complaint was a temporary expedient to avoid destroying the crops of complainant’s tenant, and it was so understood when it was opened. The answer is accompanied by the affidavits of the two men who opened the right of way, which affidavits sustain the averments of the answer. It is further averred that the defendants have a right to open a private way where they purpose to open it by virtue of a deed from complainant to them wherein 20 acres of land and a private way is granted for a consideration of $5,000. The answer prayed that the bill of complaint might be dismissed; but it did not ask for affirmative relief.

The accompanying plat will help to explain the situation : -

The initials F. J. P. indicate the location of the Pier-son land.

The complainant’s contention is that she granted a right of way as now constructed from A to D to C, and having agreed on the location thereof and the width thereof, and the defendants having constructed and fenced a permanent road in this place, they cannot now change the location against her wishes and over her objection.

The defendants’ contention is that the deed conveys a right of way from the point C to the Fenton road, and therefore from C to B, and it cannot be otherwise because she had no right to give a right of way from A to D: First, because that right of way had been deeded by her to the Woodhull Land Park Company, Limited, and others, and that this right of way to the defendants would be increased servitude; second, that the right of way to the Woodhull Land Park Company, Limited, and others, from A to D was exclusive; third, that if the right of way from A to D was a public highway, as claimed by complainant, she had no right to deed it to defendants; and, fourth, that the opening of the right of way from C to D was a temporary expedient, and was not intended to be permanent, but it was intended that the right of way conveyed was from B to C and then north.

Before the replication was put in a motion was made to dissolve the injunction, when the trial judge decided to hear the case upon its merits. With the exception of one witness who was sworn out of the usual order of proofs that he might attend a funeral, no testimony was put in on the part of the defendants.

The three deeds which had been made by complainant were introduced in evidence, and witnesses were sworn in her behalf. Two deeds besides the one given by complainant to defendants were given to other parties. One of them was executed in July, 1898, and is a conveyance from the complainant to William A. Paterson and William R. Hubbard of certain land on Long Lake, and contains the following provision:

“Together with the right of way from Fenton road, as now so called, to the above-described property; said right of way to be of sufficient width to be used as a wagon road.”

The other is a conveyance made in 1900 from complainant to the Woodhull Park Land Company, Limited, conveying to it certain property on Long Lake with the following provision;

“First party also conveys a right of way of suitable width for driving with carriages from the Fenton road, so-called, to above-described premises, said right of way to be perpetual and to belong to the parties of the second part, their heirs and assigns.. It is hereby understood and agreed that the first party conveys the above-described, land to second party, and, first party having heretofore sold five lots, the roadway to said lots and the ingress and egress to said lots sold are to be and remain as at the present time, unless said second party make other and different arrangements with the parties to whom said lots were sold, and this deed does not convey or cut off any right of the parties who have heretofore purchased lots on said premises.”

At the close of defendants’ testimony the trial judge expressed himself as follows:

“The Court: I don’t care to hear from the other' side. It is impossible to escape the conclusion that the complainant has made an absolute conclusive case against herself. In the first place, she has deeded this old right of way from the Fenton road to the Woodhull Park property on two different occasions, as I have it, by a deed absolute in terms which convey to the grantors the exclusive right to use the right of way. ■ Following that the proofs on her part show that the right of way has been used as a public highway for a long time. Taking that as true, and the court is bound to take it as true, as the proofs stand in her behalf, she cannot be heard to say here that she granted any rights in that passageway. She is precluded from saying that under both theories; First, that she had previously twice conveyed it to private persons; and, finally, as she herself declares, it was a public highway, so she could not convey any interest in it.
“Now, she conveyed in clear language a right of way to property for which she received $5,000. The language of the instrument is plain- — ‘also conveying the right of way from the Fenton road, to the grove back of Fred J. Pierson’s property; thence north along the east line of said grove to the north line of said farm.’ Now, that indicates clearly and conclusively where the right of way she granted is, and it is from the Fenton road to the grove back of the Pierson land. The map which she submitted shows where the Pierson land is, and she granted the right of way from the Fenton road to the Pierson land, and that is north of the right of way which she is claiming to be public. Then she says, and that precludes herself, from thence north along the east line to the north line of the farm. There is no escape from it. She granted a right of way there in plain terms and unambiguous language. I say there is no escape; there is no escape under this bill and the issues as framed here; the only escape for her is a bill to correct alleging fraud and establishing it. The bill is dismissed.
“It isn’t right-and it isn’t necessary that she should be cut off from access to this land north of this right of way, and I have no idea' that these parties want to cut her off from that access to it, and I suggest that they draw some kind of a document giving her ready access to that land which she ought to have, and, if you will do that, it may be done before the decree is signed.
“Mr. Farley; We consent it to be inserted in the decree.
“The Court; That would do it.-
“Mr. Farley: I would like to have the decree specify the width. It seems to me that it ought to be laid out so as to let automobiles pass. We think 30 feet would be sufficient. If the court thinks that is. too much, and we can get along with less, we don’t want to take any more than is necessary.
“The Court: My impression is that 30 feét is more than is necessary. I will find out. My impression is 25 feet is enough.
“Mr. Farley: There can be no objection to having it run along the line fence.
“The Court: The deed indicates where it is to run. The bill is dismissed, with costs against the complainant for the reasons, stated, and the defendants must submit to having inserted in the decree.a provision which will give the complainant ready access to that portion of her farm which is to be cut off by this proposed highway, or right of way, which may be 20 feet wide. The decree shall provide further that the defendants shall restore that portion of the right of way which they have worked from the intersection of the old right of way north to the point where the new right of way intersects the one formerly worked by defendants, in the same condition practically that it was before the defendants took possession of it for the purpose of a passageway.”

A decree was entered in accordance with the above. Before it was entered objection was made because the answer only asked that* the bill of complaint be dismissed, and did not ask for affirmative relief.

It would profit no one to set out the provisions of the various deeds and the testimony, further than has already appeared. We are satisfied the trial judge gave to the deeds a proper construction, and, if the answer had prayed for affirmative relief, we should be satisfied with the decree.

The solicitors for the defendants say as to the affirmative relief granted defendants that it was designed as much for the protection of the complainant as for the defendants, and suggest that the trial judge followed the course pursued by this court in Moore v. White, 159 Mich. 460 (124 N. W. 62, 134 Am. St. Rep. 735). It does not appear in that case that objection was made to the course pursued.

In the instant case objection was made, and counsel did not ask to amend the answer. The objection is renewed here, and we think it has much force. We have no doubt, however, of our right to direct the pleadings to be amended so as to conform with the proofs so as to ask for affirmative relief, and we will treat the answer as so amended. But because of this we will not give costs of this court.

The decree should be affirmed as made, but without costs to either party in this court.

Stone, C. J., and Person, J., concurred with Moore, J.

Ostrander, J.

The decree should be limited to one dismissing the bill with costs. As so modified, it is affirmed.

Kuhn, Steere, and Brooke, JJ., concurred with Ostrander, J.

Bird, J., did not sit.


text:
    IVES v. EDISON.
    Easements — Deeds—Stairs—Perpetual Grant.
    A conveyance of a store, creating an easement in a flight of steps to the upper story to the purchaser, for herself and her assigns forever, with a covenant of title in fee, established a perpetual right of user. And the grantees of the subservient estate having acquired their interest with full knowledge of the deed and of the interpretation that had been placed on the grant by the court in previous litigation were not entitled to the aid of the court of equity to acquire the outstanding rights.
    Appeal from Kent; Adsit, J.
    Submitted April 11, 1916.
    (Calendar No. 18,045.)
    Decided June 1, 1916.
    Bill by Marietta Ives against George M. Edison and Abraham May to enjoin defendants from interfering with an easement. On petition of A. May & Sons to intervene and for revivor and other relief.
    Denied.

      Selling & Brand and Gustave A. Wolf, for petitioners.

      Charles E. Ward, for respondents.
   MOORE, J.

To understand this proceeding it will be helpful to read the opinions in Ives v. Edison, 124 Mich. 402 (83 N. W. 120, 50 L. R. A. 134, 83 Am. St. Rep. 329).

This is a petition to permit the petitioners to revive the case by substituting in the place of the former parties now deceased their successors in interest, to the end that the injunction in said suit may be dissolved. We will not quote the petition and answer in extenso, but refer to the important averments.

The petitioners show that Mrs. Ives died in 1912, and that her executor sold the Ives Building, including the easements, to parties who have rebuilt the Ives Building, and so connected it with the adjoining building on the south that- it is claimed they are virtually' one building, having an elevator and staircases, so that the use of' the easement is not necessary.

It is claimed that A. May & Sons have succeeded to the business of Abraham May, and that Meyer S. May is the owner of the Richmond half of the building, and the owner of a lease running for more than 100 years of the Edison part of the building, that the petitioners desiré to put up a modern building, and cannot do so if the central stairway is to remain, and that the easement is being used to extort a large sum of money from A. May & Sons and Meyer S. May.

The answer asserts that petitioners acquired their rights with full knowledge of the easements and the decree of this court, as did the owners of the Ives interest. It asserts the easement is necessary and valuable to the Ives Building, and that it was bought and paid for subsequent to the decree. It denies that the easement is held for purposes of extortion, and asserts that the executor of the Ives estate accepted an offer from Meyer S. May to sell to him the Ives property, including the easements, for a reasonable sum, that Mr. May, instead of carrying out the agreement, then entered into an arrangement with the parties who were negotiating for the property by which they would not be competitors against each other, thereby attempting to get the property, including the easements, for less than they were worth, and refused to carry out his agreement, and that then the Ives Building and easement were sold to the present owners or their grantors. The answer denies that anything has arisen to make it equitable to reopen the case.

Petitioners’ claims are as follows (we quote from the brief):

“A. May & Sons and Mr. May make two claims in their petition:
“(1) That by the very terms of the deed creating the easement and limiting its use to Calvin L. Ives, his family, friends, customers, and lessees, said easement has come to an end by reason of the death of both Mr. and Mrs. Ives and the passing of the property entirely from the Ives family, there now being no tenants of that building who were ever tenants of any member of the Ives family; and, the said Ives family, no longer conducting any business in said building and not residing therein, there is no one who, under the claim of being a friend or customer of the Ives family, may assert any rights in said alleged easement.
“(2) That because of the change in conditions the present owners, occupants, and their tenants have a full, free, convenient, and uninterrupted access to every part of the so-called Ives Building through the new staircase and new elevator installed in the new building covering the ground formerly occupied by the Ives Building and the property immediately to the south; and it is therefore grossly inequitable that petitioners should have to leave practically empty and idle, except in so far as they themselves can use the ground floor of their property in its present dilapidated condition, one of the finest corners in the growing city of Grand Rapids, upon which, if they are permitted to do so, they will erect a fine, modern, tall building of steel construction which will be a credit to the city of Grand Rapids.”

Both of these claims are denied by the respondents. As to the first of these claims there should be quoted from the deed in addition to what is quoted in the opinion in 124 Mich. 402 (83 N. W. 120, 50 L. R. A. 134, 83 Am. St. Rep. 329), the following:

“After the description of the easements the deed reads:
“‘Together with all and singular the hereditaments and appurtenances thereunto belonging, or in anywise appertaining, * * * and all the estate, right, title, interest, claim, and demand whatsoever of the said parties of the first part, either in law or equity, of, in, and to the above-bargained premises, with the tenements, easements, hereditaments, and appurtenances; to have and to hold the said premises as above described with the appurtenances unto the said party of the second part and to his heirs and assigns forever.’
“And in the covenant for title the first parties
“‘covenant, grant, bargain, and agree to and with the said party of the second part, his heirs and assigns, that at the time of the .ensealing and delivery of these presents they are well seised of the premises above described as of a good, sure, perfect, absolute, and indefeasible estate of inheritance in the law in fee simple.”

No member of the court had any doubt when the case was here before, as stated by Justice Hooker—

“Undoubtedly she [Mrs. Ives] has a legal right to have the stairs maintained until the end of time,” etc—

and we think there can be no doubt now of that fact.

As to the second contention of petitioners: The parties it is sought to make parties to the litigation now •acquired such rights as they have, not only with full knowledge of the deed conveying the easement, but with full knowledge of the construction given to the deed by this court; the consideration paid by each of them for the interest acquired undoubtedly being affected by the existence of the easements. Each party got what he bought. If one desires something the other owns, we do not see how the court can help him acquire it.

The case presented here does not differ in principle from the case as presented before. What we said then is equally true now.

The petition is denied, with costs.

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