text:
    STATE SECURITY & REALTY CO. v. BADGER.
    1. Trial — Fraud—Conflicting Evidence — Question for Jury— Judgment Non Obstante Veredicto.
    In an action for fraud in the sale of lots, where the evidence was conflicting, the issue was properly for the jury, and the court below was in error in entering judgment non obstante veredicto•.

    2. Fraud — Sales—Material Statement of Fact.
    In an action for fraud in the sale of lots, a statement by the vendor that the “improvements had all been' paid for except the paving” was, a material statement of fact, which, if relied upon by plaintiff and untrue, entitled it to a verdict.
    '• 3. Same — Evidence—Weight of Evidence.
    Where the representation of fraud relied upon by plaintiff was testified to by its president, the president’s son, and the broker who made the sale, and was denied by defendant only, a verdict for plaintiff cannot be said to be against the weight of the evidence.
    4. Trial — Fraud—Proofs—Instructions.
    Where there was sufficient evidence of fraud to carry the question to the jury, an instruction by the court that the fraud should be established by clear proof, and that if there was such proof in this case that satisfied them that plaintiff was defrauded in the manner alleged, the plaintiff should be given a verdict, but if not so satisfied the defendant would be entitled to a verdict, held, as favorable to defendant as he was entitled to-.
    5. Amendments — Pleading—Variance—Gist of Action.
    Where the declaration alleged that the fraudulent representations relied upon were made at the lots, while the proofs disclosed that they were made in plaintiff’s office, plaintiff’s motion to amend the declaration to correspond with the proofs should have been allowed; the variance being unimportant to the gist of the fraud.
    .Error to Wayne; Mandell, J.
    Submitted October 18, 1917.
    (Docket No. 89.)
    Decided March 27, 1918.
    Assumpsit by the State Security & Realty Company against Albert E. Badger for money obtained by fraud and deceit. Judgment non obstante veredicto for defendant. Plaintiff brings error.
    Reversed, and judgment entered on the verdict.

      Wilkinson, Routier & Hinkley, for appellant.

      John C. Shields, for appellee.
   Bird, J.

Through the efforts .of William J. Stan-field, a real estate broker, defendant sold to plaintiff on land contract five lots on Pennsylvania avenue in the city of Detroit. Subsequently the abstracts were examined by plaintiff’s counsel, and, being found satisfactory, warranty deeds were made and delivered to plaintiff on the 30th day of December, 1911. On February 25, 1913, plaintiff learned that the city of Detroit had certain charges against the lots for the construction of sidewalks adjacent thereto, which had become liens thereon since they were purchased by it. Plaintiff paid the assessments and demanded reimbursement from defendant. Defendant declined to make payment on the ground that the charges were not liens at the time the conveyances were made. Plaintiff, to enforce his demand, commenced this action. The declaration charged that plaintiff was induced to enter into said contract by reason of defendant’s false and fraudulent representations “that the improvements were all in and paid for except the paving,” and that it relied upon said representations when in truth and in fact they were false. Defendant denied having made these representations, or any representations save those contained in the contract. The issue as to whether the representations were made was submitted to the jury and they found for the plaintiff in the sum of $799.74, the same being the amount of the assessments'plus the interest. The trial court, having reserved the right under the statute to control the verdict, subsequently, and upon motion, entered a verdict for the defendant on the ground that the testimony was not sufficient to raise an issue of fact as to the fraud charged. The principal question raised is whether the court was in error in so doing.

1. Plaintiff, in support of its charge of fraud in the declaration, offered the testimony of Mr. Franklin Bushman, its president, who testified that:

“Mr. Badger made the same representations that the lots laid so and so, and he showed them to us on the plat, and that they had all the improvements except the pavement paid for, free and clear of any incumbrance.”

Mr. Frank Bushman, the son, was present in plaintiff’s office when the talk was had. He testified that:

“He (defendant) stated that these lots — that they were — he said they had all the improvements in and they were paid for except the paving.”

Mr. Stanfield, the broker who negotiated the deal, admitted that he made such representations on behalf of his principal to Mr. Bushman and afterward was present when the defendant made like representations to Mr. Bushman.

Mr. Badger, the defendant, denied that he made such representations. This, therefore, raised a question of veracity between the Bushmans and Stanfield on the one hand, and Badger on the other. This issue was one of fact and the trial court submitted it to the jury, instructing them, in substance, that if they believed the testimony of plaintiff they should give it a verdict for the amount of the assessment plus the interest; that if they believed the defendant’s version then they should render a verdict of no cause of action.

We think the trial court was right in submitting the issue to the jury, but we think he was in error in subsequently directing a verdict for defendant. The statement that the “improvements had all been paid for except the paving” was a material statement of fact and if plaintiff relied upon the statement in making the purchase and.it was untrue, it was entitled to the verdict which the jury returned. We are also of the opinion that the verdict was not against the weight of the evidence, if plaintiff’s version is to be accepted, as it evidently was by the jury.

2. Some discussion is indulged in in the briefs concerning the quantum of evidence necessary to make an issue of fact in a case where fraud is alleged. We see no occasion to discuss this question as the issue Was clean-cut, and the testimony was sufficient to carry it to the jury. Either the defendant Badger did or did not make the misrepresentations, and whether he did. was a question of fact for the jury and not for the court. The trial court did instruct the jury that:

“Where fraud is used as a basis of an action, tlxe fraud should be established by clear proof before a verdict is returned against one charged with such fraud, and if there is such proof in this case that satisfies you that plaintiff was defrauded in the manner alleged in the declaration, then give the plaintiff a verdict for the. sum of $799.74. If you are not so satisfied, the defendant would be entitled to a verdict of no cause for action.”

This was fully as favorable to defendant as he was entitled to have given. See Sweeney v. Devens, 72 Mich. 301; Walsh v. Taitt, 142 Mich. 127.

3. The point was made on the trial by the defendant that there was a fatal variance between the pleadings and proofs. In the declaration it was alleged that the defendant “took plaintiff’s president, Mr. Bushman, to the lots and pointed out the fact that the sidewalks were laid, and stated to him that said sidewalks were laid and paid for.” The proofs disclosed that at the time the statements were made the • defendant, Mr. Badger, was at Mr. Bushman’s office and not at the lots. After the variance was called to the attention of the court plaintiff asked permission to amend the declaration to make it correspond with the proofs. This application was denied. We think it should have been allowed. Sec. 6, chap. 16, Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1915, § 12483); Charlet v. Teakle, 197 Mich. 426.

The gist of the fraud was the statement that the “improvements were all paid for except the paving.” That was the statement defendant came to the trial to combat, and the fact that defendant was one place rather than another at the time he made the representations was not very important.

The judgment entered by the court must be set aside and one entered upon the verdict of the jury, with costs of this court to plaintiff.

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


source: Caselaw Access Project

author: BIRD; J.

license: Public Domain

text:
    ALBERT A. ALBRECHT CO. v. WHITEHEAD & KALES IRON WORKS.
    1. Master and Servant — Negligence oe Third Party — Personal Injuries — Remedy.
    An employee, injured through the negligence of a third party, may pursue his common law remedy against said third party or demand compensation from his employer under the provisions of the workmen’s compensation law. Section 15, part 3, Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5468).
    2. Same — Election-or Remedies — Waiver — Extinguishment— Assignments.
    The election of the injured employee to take under the1 workmen’s compensation law rather than pursue his remedy against said third party, amounted to a waiver extinguishing his common law remedy, and an assignment ■ of it to the employer would not furnish the basis for a suit to recover compensation paid by him to the employee under said act.
    3. Same — Workmen’s Compensation Law — Liability of Thied Party — Construction—Intent.
    In an action by an employer to enforce the liability of a third party for compensation paid by the employer to an injured employee under the provisions of the workmen’s compensation law, section 15, part 3, of said act creating said liability construed, and held, to be the intent that the employer may enforce the liability of such other person to the extent that he has paid compensation to the injured party, and no farther.

      Error to Wayne; Collingwood, J., presiding.
    Submitted October 22, 1917.
    (Docket No. 70.)
    Decided March 27, 1918.
    Case by Albert A. Albrecht & Company against the Whitehead & Kales Iron Works to recover damages paid under the workmen’s compensation act to an employee injured by reason of defendant’s negligence. Judgment for plaintiff. Defendant brings error.
    Affirmed, conditionally.

      Goodeno%gh & Long (Albert M. Kales, of counsel), for appellant.

      Keena, Lightner, Oxtoby & Hanley, for appellee.
   BIRD; J.

Both parties to this suit are building contractors and both assisted in the construction of the Morgan & Wright building in Detroit in the year 1913. Plaintiff had the contract to construct the masonry, and defendant had the contract to erect the structural steel. During the progress of the work one John Debinski, a servant of plaintiff, was injured by what is claimed to have been negligent acts of defendant’s servants. Debinski demanded compensation of plaintiff, who was subject to the provisions of the workmen’s compensation act, and was paid a total of $1,-408.33 up to the commencement of this suit. This sum was increased to $2,215 at the time of trial. Plaintiff was permitted by the trial court to recover the sum which Debinski would have been permitted to recover had he elected to pursue his common law remedy. The jury returned a verdict for plaintiff of $10,000. Defendant contends that a recovery on this basis was wrong; that the recovery should have been limited to the sum paid to Debinski in discharge of plaintiff’s obligations imposed by the compensation act. In other words, that the question is one of indemnity only.

1. A solution of this question depends upon the construction to be given to section 15, part 8, of the compensation law (Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5468):

“Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the employee may at his option proceed either at law against that person to recover damages, or against the employer for compensation under this act, but not against both, and if compensation be paid under this act the employer may enforce for his benefit or for that of the insurance company carrying such risk, or the commissioner of insurance, as the case may be, the liability of such other person.”

After Debinski was injured he had his choice of two remedies. He could pursue his common law remedy against the company, whose negligent acts caused his injuries, or he could demand compensation from his employer through the industrial accident board. He chose the latter and received an award of $10 per week for 400 weeks. This election by him under the terms of thé act would amount to a waiver upon hi% part of his common law remedy (section 15, supra). The common law action having been extinguished by Debinski’s election, an assignment of it could not furnish a basis for this suit, and we do not understand it is now so claimed, although one count of the declaration counted upon an assignment of the cause of action. We, therefore, conclude that the basis for this suit must be found in the act itself, if at all. The latter part of the section provides that:

“If compensation be paid under this act the employer may enforce for his benefit, or for that of the insurance company for carrying such risk, or the commissioner of insurance, as the case may be, the liability of such other person.”

This clearly authorizes the present suit' by the employer. It, in express terms, gives him the right to recover, but how much may he recover? Plaintiff answers: The sum that Debinski could have recovered had he elected to bring the action himself. Defendant answers: The sum plaintiff has been obliged to pay by reason of the action of the • compensation board. The question, therefore, must finally turn on the construction of the last six words of the section heretofore quoted. Considering the language used we think it indicates that the legislature intended to provide for indemnity only.- It says to the employer in substance: “If you have paid compensation you may recover from the party in fault.” The inference is very persuasive that it was intended that the employer’s recovery should be measured by the amount of compensation paid, and it is still more persuasive when we consider that the cardinal purpose of the act was compensation and not speculation. To hold that the employer might recover the same amount the injured party might have recovered would permit the employer to speculate on the misfortunes of his employees. But counsel reply to this that a trust should be impressed on the excess recovered in favor of the injured party. If this were so, would not the injured party then have two remedies when the statute says he shall have but one? If the injured party is willing to waive the excess by accepting the more certain award of the compensation board, why should the act permit a disinterested person to recover it? We are persuaded that the language should be construed to mean that the employer may enforce the liability of such other person to the extent that he has paid compensation to the injured party, and no farther. This construction is not only consistent with the letter of the law but is in accord with the spirit of it.

This view is strengthened by the holding in Grand Rapids Lumber Co. v. Blair, 190 Mich. 518. This question was not therein directly involved but this section of the law was being considered. It was there said:

“This case involves a relation of indemnitee and indemnitor in which a liability over is1 placed upon the original tort-feasor whose negligence caused the injury, a relation which may be created by contract or legislation for protection of the party, who, though not actively guilty of the tort, may, by law, be liable therefor to the injured party.”

2. If the question be one of indemnity the further question is raised, when may the amount allowed by the compensation board be recovered by the employer? We think a cause of action would accrue to the employer whenever he has made a payment in pursuance of the order of the commission (22 Cyc. p. 98), and this would be true whether the payment was a weekly payment or of the entire award. Any other rule would likely result in more or less confusion by reason of the right of the commission to revoke its orders, to reduce the number and amount of payments and to discontinue them altogether. In accordance with request of counsel, the case may be remanded to the trial court where the amount paid by plaintiff will be ascertained, and when ascertained a judgment for that amount will be affirmed. The subsequent payments may be sued for and recovered as they become due and payable under the orders of the industrial accident board. In default of the amount being ascertained and entry of judgment thereon within thirty days from the date of filing this opinion, the judgment of the trial court will be reversed and a new trial ordered, with costs to the defendant in either event.

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


author: Stone, J.

text:
    EDISON ILLUMINATING CO. v. MISCH.
    1. Highways' and Streets — Alleys—Use by Public Service Corporation — Municipal Corporations.
    Under section 28, art. 8, Const. 1909, the right is reserved to all cities, villages and townships to the reasonable control of their streets, alleys, and public places.
    2. Same — Municipal Corporations — Title to .Street — Public Purposes.
    The title of a municipality in streets and alleys is such as to enable the public authorities to devote them to public purposes.
    3. Same — -Rights of Abutting Owner — Reverter—Fee.
    While the abutting owner of a public alley has the right of ingress and egress to and from his lot, and a possibility of reverter, the fee is in the municipality in trust for the public. Section 3351, 1 Comp. Laws 1915.
    4. Same — Use of Street — Public Purposes.
    A street or alley is not for the purposes of passage and travel merely, but for all the uses to which they are usually devoted, as the wants or conveniences of the public may render necessary or important.
    5. Same — Public Service Corporations — Rights in Alley.
    A contractor who, in excavating for the erection of a building on a lot abutting on a public alley, excavates into the alley and damages the mains and conduits of a public service corporation, placed therein under its franchise granted by a city ordinance, does so at his peril; its rights in said occupancy being entitled to protection by him.
    6. Same — Notice—Evidence—Question for Jury.
    Evidence of the existence of manholes in the alley in the vicinity of the excavation belonging to plaintiff and other corporations, indicating the existence of the underground structures, held, sufficient at least to warrant the submission to the jury of the question of sufficiency to put defendant upon notice of their presence.
    7. Same — Municipal Corporations — Waiver—Defenses.
    While a city might waive a provision in the franchise of a public service corporation, placed therein for the protection of the city, requiring it to obtain a permit from the proper city authorities before placing its mains or conduits in a public street or alley, the failure of the corporation to obtain such permit is no defense to an action by it for damages to them by a private contractor while excavating in an alley preparatory to erecting a building.
    8. Same — easements—Public Service Corporations — Franchise.
    The right of a public service corporation, under its franchise, to lay mains and conduits in a public alley, constituted a continuing easement with which defendant had no right to interfere.
    9. Appeal and Error — Harmless Error — Review.
    Assignments of error relating to the introduction of evidence, which, even if inadmissible, was harmless, will not be reviewed by the Supreme Court.
    Case-made from Wayne; Van Zile, J.
    Submitted October 8, 1917.
    (Docket No. 55.)
    Decided March 27, 1918.
    Case by the Edison Illuminating Company against Otto Misch for damages to its mains and conduits. Judgment for plaintiff. Defendant appeals.
    Affirmed.

      Charles R. Robertson, for appellant.

      Oxtoby & Wilkinson, for appellee.
   Stone, J.

This case was brought here by the defendant upon a case-made after judgment. It is an action on the case by the plaintiff, in its own right, and as assignee of the Central Heating Company, public service corporations, operating in the city of Detroit, against the defendant to recover damages for injuries to the underground conduits and cables of the plaintiff, and a steam heating main of the Central Heating Company, caused by a cave-in on the night of June 11, 1918, of an excavation made by defendant, extending out into an alley in the rear of premises known as No. 5 ' Center street. Said premises belonged to C. H. Werner & Sons, and extended from said street to the alley in the rear. Desiring to erect' a building thereon, said owners, in March, 1913, made a contract with M. E. Ryan & Son for excavating the basement; and said contract had been completed and was of a depth of about 9 feet and extended to the alley in the rear. On May 16, 1913, the owners made a contract with the defendant for the mason work. The main excavation by Ryan & Son had been completed about '30 days before defendant entered upon the premises to perform his contract. In order to put the footings under the rear, wall, defendant, some days prior to June 11, 1913, extended the excavation out into the alley and beyond the lot line for a distance of about 18 inches covering the entire width of the proposed structure, and carried the excavation down an additional 5 feet, making the rear wall of the excavation, a wall of earth about 14 feet in height and extending the entire width of the proposed building. On or about June li, 1913, the alley wall of clay caved in, carrying with it the mains of the Central Heating Company and the conduits of the Edison Illuminating Company.

Plaintiff had, for a period of about six years prior to June 11, 1913, maintained conduits in this alley, for the purpose of carrying electric wires used in its business of generating and distributing electric current within the city, under a franchise granted to it by a city ordinance approved July 13, 1886, being chapter 258, Compiled Ordinances 1912, and ordinances amendatory thereof. Before excavating in the alley for the purpose of installing its conduits, plaintiff had obtained a permit from the department of public works.

Plaintiff’s assignor, the Central Heating Company, had for a considerable time prior to June 11, 1913, constructed and maintained beneath the surface of this alley, a heating main for use in its business of gen eiating and distributing steam for heating purposes, under a franchise granted to it by an ordinance of the city, approved August 5, 1903, being chapter 265 of the Compiled Ordinances of 1912. Section 4 of the said ordinance contained the following provision:

“The said company shall, in laying its mains, occupy such parts of the streets, alleys, avenues or public places as the commissioner of public works of the city shall designate in writing, which designation shall be made without unnecessary delay, and within ten days after request in writing so to do.”

Preliminary to making the necessary excavation in the alley to lay the steam main in question, the Central Heating Company had not obtained from the department of public works, any permit, running to itself by name. There was, however, produced from its files, and introduced in evidence, upon the trial, over the objection of the defendant, a permit issued by the department of public works to the Murphy Heating Company, authorizing the making of an excavation in this alley for the laying of the steam main in question.' There were also introduced in evidence bills rendered by the city of Detroit to, and paid by, the Central Heating Company, for the fees of the city for inspecting the pavement of the alley, and the work of relaying it, after its steam main had been laid, and the excavation filled up. For the purpose of showing that the permit produced from the files of the Central Heating Company was made out in the name of the Murphy Heating Company by a clerical error on the part of the clerk in the department of public works who issued the permit, the franchise of the Murphy Heating Company was received in evidence, over the objection of defendant; which franchise showed that the Murphy Heating Company had no franchise to lay any steam pipes in that part of the city in which the alley in question is located.

While there were no writings, memoranda or drawings on file in the office of the board of public works which showed the exact location of plaintiff’s conduits, or of the steam main of plaintiff’s assignor, the record shows that about 60 feet from the excavation there was a manhole of the Edison Illuminating Company, upon the iron cover of which, the date “1906,” was cast, showing the time that the manhole had been constructed; that at either end of the alley were manholes of the Central Heating Company, and at the north end of the alley, beyond the property line, and within the sidewalk line, was a manhole of the Detroit Telephone Company; that 29 and 36 feet, respectively, north of the excavation was a Home Telephone manhole, and a public lighting commission manhole, and south of the excavation, and in the center of the alley, was a manhole of the public sewer. On cross-examination it was shown that the said covering to the man•hole was laid in the alley pavement,’ and subject to being covered up by any dirt or litter that might be in said alley. Plaintiff claimed that all of these objects amounted to physical evidence of the existence of underground structures beneath the pavement of the alley, of which defendant was bound to take notice. On the other hand, defendant claimed that it was the duty of plaintiff and its assignor to comply with all the requirements of the charter, and to see that permits were properly granted; and that it was their duty to see that proper records were made, if they desired the advantage of any notice to the public.

It appeared that in laying the mains and conduits a trench was dug about five feet deep and two feet wide, which was partially filled with crushed stone, so as to allow the water to seep away; the steam mains were laid on the crushed stone, also crushed stone put about them, and the whole covered with earth; the tile conduits were placed above the steam mains and' below the iron tube..

Defendant, before carrying his excavation out into the alley, did not make any inquiry of plaintiff, or its assignor, as to whether they owned and maintained any structures beneath the surface of the alley. Defendant offered to show that no notice was served, either by plaintiff, or its assignor, upon the defendant advising him of the existence, beneath the surface of the alley, of the mains and conduits in question, of the existence of which he was ignorant; which offer was overruled by the court, and defendant excepted to such ruling.

Plaintiff and its assignor expended the sum of $395.69 to repair the damages to their conduits and mains caused by the alley caving in on June 11th.

Practically the only disputed question of fact presented by the testimony, was whether or not defendant had used reasonable care in shoring or bracing up the alley wall, to prevent the caving in of the soil of-the alley. The testimony of an inspector in the employ of the police department of the city was to the effect that several previous warnings had been given defendant’s employees, that the alley wall of earth was in a dangerous condition, and that it, had not been shored or braced up, as late as 4 o’clock in the afternoon of June 11th.

The defendant offered testimony ,of a number of men who were engaged in the work of making the excavation, tending to show that in compliance with instructions and suggestions given by the inspectors from the police department, the rear wall of this excavation had been shored up with planks and timbers. This question was submitted to the jury by the trial court. The trial resulted in a verdict and judgment for the plaintiff in the sum of $444.05 damages, and costs of suit.

By his assignments of error, and in his brief, counsel for defendant claims:

1. That as a contractor with the owners in fee of the lot where the excavation was made, defendant was a licensee, and entitled to all the rights of the owners of the fee in the premises, and that the fee extended to the center of the alley.

2. That it was the duty of the Central Heating Company and the Edison Illuminating Company, to fully comply with all the terms and conditions of the franchises under which they operated, that is, to obtain proper permits, and file the necessary memoranda of drawings with the department of public works. That the purpose of the conditions of the franchises was, that the public and the propérty owners might have notice of where steam mains and electrical conduits were laid.

3. That by reason of having dug a trench and filled it with crushed stone to permit the water to seep through, the nature of the soil was changed, and plaintiff and its assignor were not entitled to lateral support- from the defendant, or his licensor.

4. That the court erred in permitting plaintiff to introduce in evidence the franchise of the Murphy Heating Company.

5. That the court erred in permitting plaintiff to show that defendant had not notified it of his intention to excavate into the alley.

6. That the court erred in refusing to permit defendant to show that he had received no notice from plaintiff or its assignor, of the existence of their steam mains and conduits in the alley.

1. It is urged by appellant that the alley is a part of the adjacent lot which belonged to Werner & Sons, whose title extended to the center of the alley;- that the alley was set aside for the use, accommodation and benefit of the owners of the property abutting thereon, subject to certain'limited rights therein for municipal purposes, and the grievance, if any, arising from the wrongful use of the alley is one accruing to the other abutting property owners; that it was not a wrongful use of the alley to shear, off eighteen inches; that it was a matter of convenience to the defendant who was a licensee of the title holder; that the act was no injury to abutting property owners, and that the plaintiff and its assignor were not such owners, and had merely a naked right to place and keep their pipes and conduits somewhere in the alley. On the other hand, the plaintiff claims that it is -immaterial who defendant was, whether contractor, abutting property owner, or a third party; that even an abutting property owner has no right to excavate into an. alley and damage property rightfully therein, whether public utility conduits, mains, city pavements, sewers or other structures; and that the damage here complained of did not arise from a wrongful use of the alley, but rather from its partial destruction by the defendant.

In Paul v. City of Detroit, 32 Mich. 108, Justice Campbell said:

“An alley is no more than a way subject to a modified supervision, and liable to be used for drainage and other urban services, under municipal regulation.”

See 2 C. J. p.-1151, title “Alley.”

While alleys are not referred to in either the Con-stitution of 1835 or 1850, they are specifically referred to in our present Constitution and the right of public utilities to use alleys, as well as streets,'with proper municipal consent, is expressly recognized. The last clause of section 28 of article 8 reads as follows:

“The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships.”

The present statute relating to town plats (chapter 74, 1 Comp. Laws. 1915, § 3351) vests the fee of streets and alleys in the city or village within the corporate limits, of which the land platted is included, or, if not included within the limits of any incorporated village or city, then in the township within the limits of which it is included, in trust to and for the uses and purposes therein designated. The former statute vested the fee of streets and alleys in the county.

It has been held by this court that whatever the nature of the title of the municipality in streets and alleys (whether a fee simple or only a conditional fee, or a perpetual easement), it is such as to enable the public authorities to devote them to public purposes. County of Wayne v. Miller, 31 Mich. 447.

Upon the vacation of a street or alley the title reverts to the abutting owners (section 3355, 1 Comp. Laws 1915); Scudder v. City of Detroit, 117 Mich. 77; Michigan Cent. R. Co. v. Miller, 172 Mich. 201

We are dealing here with an existing public alley. Before the vacating of an alley, what the interest of the abutting owner may be, whether more than that of a possibility of reverter, we need not decide. He has the right of ingress and egress to and from his lot. Manifestly, the fee is in the municipality in trust for the public. Bay County v. Bradley, 39 Mich. 166.

The dedication must be understood as made and accepted with the expectation that the street or alley may be required for other purposes than those of passage'and travel merely, and that under the direction and control of the public authorities it is subject to be appropriated to all the uses to which city streets or alleys are usually devoted, as the wants or conveniences of the public may render necessary or important, Warren v. City of Grand Haven, 30 Mich. 24, 28; Griswold v. Bay City, 35 Mich. 455; Face v. City of Ionia, 90 Mich. 104.

In Village of Manchester v. Clarkson, 195 Mich. 354, Justice Steere said:

“That public alleys involve easements in the nature of ways for the installation of water pipes, sewers and other urban services for the general welfare, under municipal regulation, is well settled.”

We are clearly of the opinion that the defendant had no right to interfere with any structures rightfully in the alley. That the mains and conduits in question had been lawfully and properly placed in the alley by authority of the city is, we think, too clear for controversy. The defendant made excavation into the alley at his peril. If he did not have from the surrounding objects and monuments sufficient to put him upon notice of the presence of the mains and conduits in the alley, there was at least sufficient evidence to warrant the submission of that question to the jury, which was done by the trial court. The plaintiff and its assignor were, by their mains and conduits, rightfully first in the alley, and their rights were entitled to protection by defendant in such occupancy. New York Steam Co. v. Foundation Co., 195 N. Y. 43 (21 L. R. A. [N. S.] 470).

We think that the evidence is uncontradicted that the excavation into the alley by the defendant was the proximate cause of the injury. The original excavation by Ryan & Son had existed for more than 30 days, and it was not until the invasion by the defendant, that the cave-in occurred. We think that the defendant cannot justly complain of the manner in which the question was submitted to the jury by the trial court.

2. Referring to the claim of the defendant relating to the failure of the Central Heating Company to obtain the express permit mentioned in section 4 of its franchise, we are of the opinion that this provision was one for the protection of the city, and was for the purpose of advising the city to whom it should look for the restoration of the street or alley to a condition as good as before it was disturbed, in placing mains, etc. The granting of the permit seems to be mandatory upon the city. The right of the company to lay and maintain its steam pipes in streets and alleys is granted by section 1 of the franchise, and its right extends to all of the streets and alleys in the city. There was evidence that the city rendered its bills to the Central Heating Company for inspecting the pavement of the alley, after the heating mains had been installed. We think that the city might, waive the requirement, and that it was a matter that did not concern the defendant, and he cannot raise the objection. International Harvester Co. v. Eaton Circuit Judge, 163 Mich. 55; Union Telephone Co. v. Ingersoll, 178 Mich. 187.

3. Upon this point it is sufficient to say that there was no evidence that the method or manner of laying the mains and conduits by the plaintiff and its assignor, had been improper, or other than the usual and customary method. Both companies were engaged in furnishing a public service. Their rights under their respective franchises were in the nature of continuing easements, prior to the rights of the defendant in the alley. He had no right to make any use of the alley which would interfere with existing proper public uses thereof. We are not concerned here with the doctrine of lateral support, and shall not discuss that question.

We shall not discuss at length the other points urged by appellant. If there was any error in the rulings relating to the introduction of evidence, we are satis7 fied that it was harmless error. For instance, we are unable to see, in view of what we have already said, that the putting in evidence of the franchise of the Murphy Heating Company in any way injured the defendant or affected the result. We find no reversible error in the record, and the judgment of the circuit court is affirmed.

* Ostrander, C. J., and Bird, Steere, Brooke, and Fellows, JJ., concurred with Stone, J. Moore and Kuhn, JJ., concurred in the result.


author: Brooke, J.

text:
    BILAKOS v. KELLEY.
    1. Negligence — Personal Injuries — Question eor Jury.
    In an action for personal injuries alleged, to have been caused by the negligent starting of a bread mixing machine by defendants’ agent while plaintiff was working thereon, held, that the issue raised by plaintiff’s testimony was properly one for the jury.
    2. New Trial — Cumulative Evidence — Newly Discovered Evidence.
    A motion for a new trial on the ground of newly discovered evidence was properly denied where the evidence was merely cumulative, was upon a question not seriously disputed and not' of very great force in the case, and, if admitted, there was no reason to expect a different verdict.
    3. Trial — Instructions—Directed Verdict,
    Where the evidence as to defendants’ negligence and plaintiff’s contributory negligence was sufficient to present a question of fact for the jury, requests to charge, which, if given, would- have amounted to the direction of a verdict for defendant, were properly refused.
    4. Same — Evidence—Instructions.
    A request to charge that the jury were not to take into consideration the financial condition of the plaintiff or the defendants was properly refused, in the absence of any evidence upon the question.
    5. Evidence — Mortality Tables — Permanent Injuries — Damages.
    Mortality tables were admissible in evidence, in a personal injury case, where plaintiff was permanently injured by the loss of two fingers, impairing his earning capacity.
    6. Appeal and Error — Review.
    Assignments of error not argued in the Supreme Court will not be considered.
    7. Evidence — City Directory.
    City directories were not competent to prove who constituted defendant copartnership at the time plaintiff received his injury, several years before the trial.
    8. Negligence — Evidence—Parties—Trial—Directed Verdict.
    Where there was no competent evidence tending to show that, at the time plaintiff received his injury, one of the defendants was a member of the copartnership, but, on the contrary, the evidence is most convincing that he did not acquire his interest therein until more than a year thereafter, the trial court should have directed a verdict-in his favor.
    Error to Wayne; Lamb, J., presiding.
    Submitted October 22, 1917.
    (Docket No. 26.)
    Decided March 27, 1918.
    Case by Christ Bilakos against William Kelley and others, copartners as the Olympia Baking Company and Kelley Bros., for personal injuries. Judgment for plaintiff. Defendants bring error.
    Reversed as to William Kelley and affirmed as to other defendants.
    C. Walter Healy, for appellants.

      Scott & Stafford (John H. Engel, of counsel), for appellee.
    Plaintiff filed his declaration in a plea of trespass on the case against:'
    “Socrates Kelley, William Kelley and D. Caramanos, copartners doing business as the Olympia Baking Company and as Kelley Bros.”
    From the facts set out in the declaration, proof of which was tendered by plaintiff at the trial, it appears that plaintiff was, on the 3d day of May, 1913, an expert electrician. A day or two prior to said 3d day of May, defendant Socrates Kelley brought plaintiff into the room occupied by the Olympia Baking Company in which was located a bread mixing machine, which was in need of repair. Plaintiff was interrogated as to his ability to repair it and announced that he could make the necessary repairs When the machine was not in use. He was thereupon advised that the machine would not be in use the following Saturday afternoon which was the 3d day of May. Plaintiffs testimony tends to indicate that he reached the premises in which the machine in question was located about one o’clock on the afternoon of said day; that the machine was not in operation and that he commenced his work; that the difficulty appeared to be that the gearing, by means of which the machine was operated, had slipped out of place so that the cog wheels did not properly mesh. While at work a man in working clothes, described by plaintiff as an employee of Kelley Bros., came to him and asked if he might operate the machine for the purpose of getting some material out of the mixer. Plaintiff advised this man that in a few minutes he could operate the machine for the purpose named. Soon thereafter this person started the machine by closing an electric switch located upon the wall near the machine and proceeded to remove the contents of the mixer; plaintiff in the meantime sitting on some flour bags in front of the machine. As soon as the contents of the machine had been removed it was stopped by a release of the switch and plaintiff resumed his work upon the gears. It is his claim that when he was so occupied, and with one of his hands holding the gears in place, the machine was suddenly started without warning by the man who had a short time before been operating it. As a result of the alleged unwarranted and tortious act of defendants’ servant, the first and second fingers of plaintiff’s hand were mutilated and later amputated by the surgeon. The wound became infected and plaintiff was obliged to and did lose considerable time, and introduced testimony tending to prove that his earning capacity, by reason of the loss of his fingers, has been reduced. Upon the merits of the case defendants produced three eyewitnesses who gave testimony tending to show that plaintiff worked upon the machine while it was in motion and that immediately after the accident he asserted that it was his own fault.
    As bearing upon the right of plaintiff to recover against the defendant William Kelley, evidencé was introduced tending to show that while William Kelley was the partner of Socrates Kelley in the firm known as “Kelley Bros.,” and while at the time of trial he was likewise a partner with his brother in the “Olympia Baking Co.,” he acquired his interest in the latter copartnership at a date later than the 3d day of May, 1913. Upon direct examination he testified:
    “I g;ot my knowledge of the existence of the Olympia Báking Co. in 1913 through the contract on file, through knowing the partners and from the city directory.”
    Upon cross-examination he was asked:

      “Q. I believe you said you got your information from the city directory?

      “A. I have from the same people and from the city directory and from the books there, because I was the bookkeeper and I said what they did — who was the partners.”
    Thereupon the plaintiff offered the city directories for 1911, 1912 and 1913. The entries therein in the issues of 1912 and 1913 being as follows:
    “Olympia Baking Company, Kelley Brothers proprietors, wholesale bakers and grocers, 149-151 Monroe avenue.”
    These exhibits were received over the objection of • defendants, and exception followed. At the close of the evidence a motion was made on behalf of defendants for a directed verdict:

      First. On the ground that no negligence on the part of either defendant had been shown.

      Second. For a directed verdict in behalf of the defendant William Kelley, upon the ground that there was no testimony that William Kelley was a partner in the Olympia Baking Company at the time of the alleged injury.

      Third. Upon the ground that plaintiff had not shown himself free from contributory negligence.
    These requests were denied and the court submitted the case to the jury.

      First. Upon the question as to whether there was evidence of negligence on the part of the defendants or their agents.

      Second. Whether such negligence was the proximate cause of the plaintiff’s injury, and-

      Third. Whether plaintiff himself was free from contributory negligence.
    A verdict was rendered in favor of the plaintiff for $1,200. Thereupon defendants made a motion for a new trial upon various grounds, among them that of newly discovered evidence. This motion was denied and the case is now in this court for review.
   Brooke, J.

(after stating the facts). The assignments of error are ten in number.

1. The first is based upon alleged error of the court in denying defendants’ motion for a directed verdict. We are of opinion that this motion was properly denied and that the issue raised by plaintiff’s testimony upon the controlling facts was properly one for the determination of the jury.

2. Error is assigned upon the denial of the motion for a new trial. With reference to this the court said:

“The proposed newly discovered evidence is simply and solely cumulative and is upon a question that is not seriously disputed and is not of any great force in the case. With the testimony in, there is not any reason why the verdict should be any different.”

With this conclusion we agree.

3. 4, 5. These assignments are based upon the refusal of the court to give the first, second and third requests to charge preferred by the defendants. Each request if given would have amounted to the direction of a verdict for defendant and as we have seen they were all properly refused.

6. Error is assigned upon the court’s refusal to give defendants’ eighth request:

‘T further charge you that you are (not) to take into consideration the financial condition of the plaintiff, or the financial condition of the .defendants, William Kelley and Socrates Kelley, during your deliberations or in arriving at your verdict.”

This request was properly refused for the reason, inter alia, that the record is absolutely barren of any evidence upon the question.

7. Error is assigned with reference to the charge of the court upon the weight to be given to the mortality table which had been introduced by plaintiff. Upon this point it is urged that the mortality tables Were inadmissible in the case for any purpose. There can be no question that the loss of two fingers amounts to a permanent injury; in some measure, at least, impairing plaintiff’s earning capacity. In such cases the tables, are admissible. Mott v. Railway Co., 120 Mich. 127; Sax v. Railway Co., 125 Mich. 252; Foster v. Village of Bellaire, 127 Mich. 13.

8. 9. These assignments of error are based upon alleged improper admission of testimony. They are not argued and will therefore receive no consideration.

10. The admission of exhibits 5, 6 and 7, the Detroit city directories for 1911, 1912, and 1913, is assigned as reversible error. We are of the opinion that these directories were not competent to prove who constituted the copartnership known as the Olympia Baking Company, in May, 1913, when plaintiff received his injury. Tichenor v. Newman, 186 Ill. 264; Whiton v. Insurance Co., 109 Mass. 24; Spalding v. Hodges, 2 Pa. St. 240. We have examined this record with care and can find no testimony (if said exhibits are excepted) tending to show that William Kelley was interested in the copartnership owning and operating the Olympia Baking Company at the time of the accident. On the contrary, the evidence of both defendants, Socrates Kelley and William Kelley, as well as the bill of sale introduced in evidence, proves most convincingly that William Kelley did not acquire his interest in the partnership, Olympia Baking Company, until October 31, 1914. Under these circumstances, the learned trial judge should have directed a verdict, in favor of defendant William Kelley, as he was requested to do at the close of the testimony.

The judgment is reversed as to defendant William Kelley, who will recover his costs against plaintiff, and affirmed as to the other defendants, against whom plaintiff will recover costs.

Osteandee, C. J., and Bied, Moore, Steeee, Fellows, Stone, and Kuhn, JJ., concurred.


author: Moore, J.

text:
    HOLNAGLE v. LANSING FUEL & GAS CO.
    Master and Servant — "Workmen's Compensation Law — Appear and Error — Evidence.
    Ori certiorari to review an award of compensation by tbe industrial accident board, under the workmen’s compensation act, where there is competent testimony upon which to base its conclusion, the award of the board will not be disturbed.
    Certiorari to Industrial Accident Board.
    Submitted October 23, 1917.
    (Docket No. 46.)
    Decided March 27, 1918.
    Nellie Holnagle presented her claim for compensation against the Lansing Fuel & Gas Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Fidelity & Casualty Company, insurer, bring certiorari.
    Affirmed.

      Guy W. Moore and Hal P. Wilson, for appellants.

      Rhoads & Reynolds, for appellee.
   Moore, J.

Claimant’s decedent, on January 16, 1917, was discovered unconscious, if not dead, lying on the ground near and partly upon a small box in which was a stopcock from which illuminating gas was escaping. He did not regain consciousness and was pronounced dead. The premises belonged to the Lansing Fuel & Gas Company, whose employee claimant’s decedent was. A process in the manufacture of illuminating gas is washing it with water, and when delivered into the purifying tank the water • which collects at the bottom of the tank is drained through a pipe leading to the outside, having its opening controlled by the stopcock referred to, in the little wooden box. The stopcock was manipulated with a monkey wrench or Stillson wrench, and it was the daily duty of claimant’s decedent to open it and drain the tank of water. The quantity of water varied from day to day, and so the time required to drain the tank varied. On the particular occasion, a fellow employee had, at the request of claimant’s decedent, opened the stopcock at about 9 o’clock in the forenoon. The same man had also, a few moments later and a few moments before the body was found, given the deceased man the wrench, upon his request therefor. When the body was found the water had been drained away and the force of escaping gas was blowing the water in the form of vapor several feet into the air.

Illuminating gas contains carbon monoxide and marsh gas (methane), in considerable quantities — of carbon monoxide 30 per cent, and more. These are poisonous gases, and, inhaled, may cause sudden death.

Claimant contends a committee of arbitration and the industrial accident board found that her husband, the deceased, accidentally inhaled enough gas to kill him. Defendants contend there is no evidence supporting this conclusion and none from which the necessary inference may reasonably be drawn. They contend, further, that the evidence quite as well, and better, sustains the conclusion that deceased died from chronic gas poisoning, an occupational disease, or from other disease.

After the body of deceased had been embalmed, in the evening of the day of his death, an autopsy was held, at which six physicians, all .of whom gave testimony, attended. The most of a very large record consists of the testimony of these physicians. At the autopsy an examination was made of the organs of the chest and abdomen and of the brain. It was a gross examination — examination by inspection — as distinguished from a microscopic examination. The valves of the heart were somewhat hardened.

We will not attempt to recite the evidence in detail.

Dr. Crissey’s testimony is very long. In it appears the following:

“A. Illuminating gas contains carbon monoxide.
“Q. That is true; we are working upon the theory from your statements, that there is carbon monoxide and marsh gas in illuminating gas?
“A. Yes, sir.
“Q. And that illuminating gas does not break up of its own accord into its several parts?
“A. Yes, sir.
"Q. Now is it your opinion that one breath of illuminating gas—
“A. Yes, sir.
“Q. —will cause instant death such as occurred in the case of Mr. Holnagle?
“A. Why, certainly.
“Q. Will you explain your reason for that?
“A. You take a certain volume of carbon monoxide gas and a certain volume, of marsh gas, or methane, and mix them and put them in a box or put them in a condenser and let a man breathe that in a certain concentration, it will kill him immediately, just the same as a man going down a well; a man goes down a well and he is found dead clinched to the ladder. What killed him? It is the marsh gas, methane, of which we find something like thirty per cent, in ordinary illuminating gas, from 20 to 30 per cent.”

Dr. Davey took part in the autopsy. In his testimony appears the following:

“Q. From your examination, doctor, state whether or not there was any indication of anything being abnormal about any of the organs that you examined?
“A. There was not.
“Q. Did you examine the heart?
“A. Yes, sir.
“Q. Was there any indication of anything abnormal about the heart?
“A. Not that I could find or see. .
“Q. From your examination of the organs, are you able to say whether there was any indication of anything that would cause death, anything being wrong with them?
“A. No.
“Q. What conclusions did you come to as to the cause of death, from your examination?
“A. The only conclusions were those of the history of the case. * * *
“Q. What were your conclusions?
“A, Conclusions were that the man had inhaled a sufficient amount of gas that could be the cause of his death.
“Q. There was no indication, from your examination, of any other cause of death? •
“A. No, sir.”

If the owner of an automobile was found unconscious in his closed garage with the engine to his car running, would not one familiar with like situations at once say he had been overcome by inhaling the exhaust from the engine. The inferences to be drawn from the circumstances in the instant case are of like kind to that drawn in the suppositious case, though perhaps differing in degree.

We have so often held, as to not require the citation of authorities, that, if there is competent testimony Upon which to base the conclusion of the industrial accident board, we will not disturb it. In the instant case there was such testimony.

The award is affirmed, with costs.

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


author: Fellows, J.

text:
    THEISEN v. DETROIT TAXICAB & TRANSFER CO.
    1. Evidence — Conversation by Telephone — Admissibility.
    A telephone conversation is admissible in evidence, where the identity of the person communicated with by telephone is established.
    2. Same — Judicial Notice — Telephones—Necessity.
    The court will take judicial notice of the fact that a modern invention, such as the telephone, is a necessity in the conduct of business especially in the large cities.
    3. Telegraphs and Telephones — Invitation to Use — Presumptions — Identity.
    A business man who installs a telephone in his office invites the public to transact business with him by its use with knowledge of existing presumptions and inferences in the business world that usually the person answering the telephone is the person called for and is the person whom he represents himself to be.
    4. Evidence — Telephone Conversation — Admissibility—Identity.
    Where two parties are subscribers to the same telephone exchange, and one party, using the telephone directory to ascertain the number of the other party, calls for such other party, and is connected by central with such other party, and a conversation ensues in which the party called responds and informs the party calling that he is the party called, held, sufficient to .raise a rebuttable presumption or inference to make a prima facie case of identity.
    5. Same — Automobiles—Principal and Agent — Identity.
    In an action for damages to plaintiff’s automobile caused by a collision with a taxicab, evidence of a telephone conversation by plaintiff’s son with a person in defendant’s office, who said he was its manager, that the taxicab belonged to defendant, and that the driver had reported the accident, held, admissible for the purpose of identifying the owner of the taxicab.
    6. Principal and Agent — Holding Out by Principal — Name of Agent on Letter-Heads.
    Agency may be inferred from the fact that circulars and letter-heads of the 'defendant described one as its agent.

      Error to Wayne; Perkins, J.,' presiding.
    Submitted January 10, 1918.
    (Docket No. 40.)
    Decided March 27, 1918.
    Case in justice’s court by John W. Theisen against the Detroit Taxicab & Transfer Company for damages to plaintiffs automobile. From a judgment for defendant, plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Clarence E. Lehr, for appellant.

      Julms J. Lechner and William R. McCredie, for appellee.
    Plaintiff’s automobile was damaged in a collision with a taxicab at the intersection of 16th street and Michigan avenue, in the city of Detroit, and he brought this suit in justice’s court to recover for such damages. Upon appeal, he recovered a judgment for $66.30. Upon the trial in the circuit court plaintiff; introduced evidence of the collision of his automobile with a taxicab under such circumstances as would render the owner of the taxicab liable, proved the amount of his damages, and rested without introducing evidence connecting defendant with the ownership of the taxicab. Defendant thereupon moved for a directed verdict on this ground. The court, without deciding the motion, allowed plaintiff to reopen his case and put in further testimony. One of plaintiff’s attorneys testified that he wrote defendant with reference to .the accident and that shortly thereafter a man called upon him, said he was the driver of the taxicab which injured plaintiff’s car and that he was driving the taxicab for the defendant. On motion this testimony was stricken out as' hearsay. Plaintiff assigns error upon this, although he appears to have acquiesced in the ruling. Plaintiff also prodliced Ms son as a witness and he testified that he called up the defendant by telephone, using the telephone directory, and asked for the manager, that he got hold of Mr. Paige, who said he was the manager and discussed with him the accident to his father’s car; that Mr. Paige said their driver had reported the accident and witness informed him it was his father’s car; that Mr. Paige said the taxicab belonged to defendant and that they would send the driver out to see witness. Witness also stated that the driver came out to see him the next day, but as he was not there this statement must be treated as hearsay. Defendant developed, on cross-examination of this witness, that he had never talked with Mr. Paige before, and that he based his testimony that it was Mr. Paige on the statement over the phone that it was Mr. Paige, and defendant then asked to have the testimony of this witness stricken out, which moiiioa was overruled. Defendant further developed, on the cross-examination of this witness, that he had seen bills of defendant and upon them it appeared that Mr. Paige was the president of defendant’s company. Plaintiff again rested and the court then refused to direct a verdict for defendant. No testimony was offered by defendant and the case was submitted to the jury with a charge upon which no error is assigned. No claim is made that there is more than one telephone company in Detroit, of that there are any special circumstances in the case which render the telephone conversation here testified to inadmissible if such conversations are admissible without identifying the voice of the party called.
   Fellows, J.

(after stating' the facts). The important questions presented on this record are the admissibility of the telephone conversation and its effect. Upon these questions the authorities are not in harmony. This court has already held that a telephone conversation is admissible where the identity of the persons communicated with by telephone is established. Harrison Granite Co. v. Railroad Co., 145 Mich. 712. The contention here goes further, and we are now called upon to determine the admissibility and effect of a telephone conversation conducted in the usual manner in the business world, by ascertaining through the directory the number of the subscriber and then being connected with that subscriber through “central” and conducting such conversation.

Courts must take judicial knowledge of modern discoveries and inventions that have become of general and almost universal use in our commercial life. The telephone is no longer a luxury or even a mere convenience, but is a necessity in the conduct of business, especially in our large cities. We cannot close our eyes to the fact that a very large and considerable portion of the business of the country is transacted over it and by its use, nor that mistakes in connections are infrequent and when they occur the party calling is at once informed of the mistake by the party at the other end of the line. We cannot close our eyes to the fact that business transactions of large moment and private affairs daily depend upon the presumption and inference that, by the use of the telephone, parties have conversed with the actual party called, and that the party answering was, in the absence of a mistaken connection, the person called for and was the person whom he represented himself to be. The business man who installs a telephone in his office invites the public to transact business with him by its use, and he extends such invitation with the knowledge that such presumptions and inferences exist in the business world.

We have stated that the authorities are not in harmony, but we are persuaded that those cases, holding such conversations admissible are by far the better reasoned, and that the weight of authority sustains the admissibility of such proof. Most of the cases to the contrary pass the question with but little discussion, and some of them are earlier cases before telephones became so thoroughly tested and entrenched in business life. None of the cases sustaining the admissibility of such conversations, so far as we can ascertain, lose sight of the rule that agency may not be proved by statements of the agent, nor the rule that the authority of the agent must be established to bind the principal by his acts, but proceed upon the theory, based upon business experience, that when one in the usual manner obtains the office of another on the telephone a presumption or inference arises sufficient to make a prima facie case that the person who is in fact summoned to the telephone, and who conducts the negotiations, is authorized so to do, rather than to assume, until the contrary is proved, that he is an officious intermeddler with the affairs of others.

Mr. Wigmore, in his work on Evidence (Vol. 3, § 2155), written in 1904, says:

“In proving the receipt of a communication by telephone, any one of several distinct, principles of evidence may be involved and give rise to distinct objections, whose validity may rest on different considerations.
“(1) B asserts that certain words (assumed to be receivable as admissions or the like) were uttered to him by A over the telephone; how can B testify that the antiphonal speaker was A? This involves genuinely the principle of authentication; and three situations are to be distinguished:
“(a) It is generally conceded that a person may be recognized and identified by his voice, if the hearer is acquainted with the speaker’s voice. Assuming, then, that B is thus acquainted with A’s voice, and that voices can sometimes be distinguished on the telephone, and that B did in this instance distinguish A’s voice, then B’s belief that A was the speaker is founded on sufficient evidence. This much seems to be generally accepted.
“(b) But if there is no recognition of voice, what can supply sufficient evidence to authenticate the antiphonal speaker? In a given case, no doubt, sundry circumstances (including other admissions, and the like) may suffice. But,' apart from special circumstances, can any rule be laid down? No one has ever contended that if the person first calling up is the very one to be identified, his mere purporting to be A is sufficient, any more than the mere purporting signature of A to a letter would be sufficient. The only case practically presented therefore is that of B’s calling up A and being answered by a person purporting to be A. There is much to be said for the circumstantial trustworthiness of mercantile custom, by which, in average experience, the numbers in the telephone-directory do correspond to the stated names and addresses, and the operators do call up the correct number, and the person called does in fact answer. These circumstances suffice for some reliance in mercantile affairs; and it would seem safe enough to treat them in law as at least sufficient evidence to go to_ the jury, just as testimony based on prices-current is received. This view has received some judicial support.
“(c) An additional element enters where the antiphonal speaker does not purport to be a particular person, but merely some member of the office-staff authorized to make a contract or an admission. Here the question is. whether there is sufficient evidence that he was really a person acting in the opponent’s office and authorized for such transactions, or was a mere intruder, or bystander, or unauthorized clerk. On the principle above suggested (though not with the same force) mercantile experience may well suffice, by which customarily the person who is in fact' summoned to the telephone and proceeds, to conduct the negotiation is prima facie a person authorized to do so, precisely as a pérson receiving money at the cashier’s desk is presumably authorized to do so. Upon this point there is little judicial inclination to take the liberal view.
“In any event, particular additional circumstances may always suffice to complete the gap.”

Since the publication of Mr. Wigmore’s work, the supreme court of California has considered this question at some length in the case of Union Construction Co. v. Telegraph Co., 163 Cal. 298. In this case a Mr. Veeder testified that he called the central telephone office and asked to be connected with the office of defendant telegraph company; the.connection was made and some one responded, apparently at the Western Union office. He inquired if that was the Western Union Telegraph office, and received the answer “yes.” He did not recognize the voice and had no means of knowing that he was connected with defendant’s office, other than that he had made the call in the usual way. The court considers the rules we have heretofore adverted to with reference to proof of agency, and says:

“We are of the opinion, however, that there was sufficient circumstantial evidence to make a prima facie case of identity and authority.”

The court then proceeds to discuss the question, and, after considering it fully, announces the following rule:

“For these reasons we conclude that when it appeared that plaintiff and defendant each maintained a business office in the same city, that each had a telephone in such office connecting with the same city telephone system, with their respective names and numbers in the regular telephone directory, that plaintiff called on the operator at the central station, in the usual way, for a connection with defendant’s office, that a connection was thereupon made at the central station with some line, apparently in the usual manner, that some one responded at the other end of the line, and, being asked answered that the end was the office of the Western Union Telegraph Company, there was sufficient prima facie proof that the person answering was the agent of the defendant at its said office, employed there by it to receive for it such communications as should come in that manner. All of these conditions were shown to exist upon the trial of this case, either by direct evidence or by fair and reasonable inference, or as matters of judicial knowledge.”

After calling attention to the authorities on the question, the court says:

“The general rule, as gathered from the foregoing decisions, is that where it is shown that the witness called up the other party at his place of business, through the central station with which both were connected, and received a response as in the usual course of business over the telephone, this is sufficient 2?rma facie identification of the speaker at the other end of the line as the party called, or his authorized agent, and that, upon such proof, the ensuing conversation, if otherwise admissible, may be testified to by the witness. It is proper to add that the weight of such evidence depends largely upon the circumstances of each case and is always a question for the trial court or jury.”

The supreme court of Illinois has also considered this question since the publication of Mr. Wigmore’s work on Evidence, in the case of Godair v. National Bank, 225 Ill. 572. In this case a witness who was formerly cashier of the bank was permitted to testify that he called up the Godair Commission Company by telephone and asked for Mr. Godair, but was informed that he was out; later the commission company called up the bank and said the party wanted by the bank was now in, and he thereupon had the conversation in which he inquired if drafts of one Moreland upon the Godair Commission Company would be paid. The party he talked with said they would. The witness did not know Mr. Godair, did not recognize his voice, and could not say with whom he talked. It was held that the testimony was admissible and its weight was for the jury.

Among the cases to the same effect, which have been decided since the publication of Mr. Wigmore’s work on Evidence, will be found the following: Conkling v. Standard Oil Co., 138 Iowa, 596; Knickerbocker Ice Co. v. Gardiner Dairy Co., 107 Md. 556; Gilliland & Gaffney v. Railway, 85 S. C. 26; Holzhauer v. Sheeny, 127 Ky. 28; General Hospital Society v. Rendering Co., 79 Conn. 581; Barrett v. Magner, 105 Minn. 118. There are others but we cite these as supporting and sustaining Mr. Wigmore’s text.

In the case of Reed v. Railway Co., 72 Iowa, 166, the court, in considering an objection to a telephone communication, said:

“It is claimed that the testimony as to the communication by telephone should have been excluded, because it was with some unknown person, and ought not to bind the defendant. It appears that the tele-, phone was placed in the yards for the very purpose of communicating with the office. It was the means of communication provided by the defendant; and, in the absence of any testimony showing that some officious intruder had taken up quarters in the office, and assumed to transact the business of the company, it ought to be presumed that the communication was made with one' having authority to give directions as to the matter inquired about. * * *”

In Wolfe v. Railway Co., 97 Mo. 473, the court, speaking through Mr. Justice Barclay, said:

“A question arose incidentally at the trial upon the admission in evidence of a conversation held through the telephone between some one at the instrument in plaintiffs’ private office and the witness. It was adr mitted, though the witness did not identify the voice of the speaker as that of either of the plaintiffs' or their clerk. The courts, of justice do not ignore the great improvement in the means of intercommunication which the telephone has made. Its nature, operation and ordinary uses are facts of general scientific knowledge, of which the courts will take judicial notice as part of public contemporary history. When a person places himself in connection with the telephone system through an instrument in his office, he thereby invites communication, in relation to his business, through that channel. Conversations so held are as admissible in evidence as personal interviews by a. customer with an unknown clerk in charge of an ordinary shop would be in relation to the business there carried on. The fact that the voice at the telephone was not identified does not render the conversation inadmissible. The ruling here announced is intended to determine merely the admissibility of such conversations in such circumstances, but not the effect of such evidence after its admission. It may be entitled, in each instance, to much, or little weight in the estimation of the triers of fact, according to their views of its credibility, and of the other testimony in support, or in contradiction of it.”

In the case of Western Union Tel. Co. v. Rowell, 153 Ala. 295, the plaintiff testified to calling the telegraph company by telephone and having a conversation with the person who answered the phone after the connection was made. The evidence elicited by the conversation over the telephone tended to show that the telegraph company was lacking in diligence in the delivery of the message. It was held that the evidence was admissible and its weight was for the jury.

See, also, the following cases: Globe Printing Co. v. Stahl, 23 Mo. App. 451; Rock Island, etc., R. Co. v. Potter, 36 Ill. App. 590; Rogers Grain Co. v. Tanton, 136 Ill. App. 533; Guest v. Railroad Co., 77 Mo. App. 258; Oskamp v. Gadsden, 35 Neb. 7; Kansas City Star Pub. Co. v. Warehouse Co., 123 Mo. App. 13.

In the instant case it is not necessary that we go as far as the rule which has been adopted in some of the cited cases goes; it is sufficient that we hold and we do hold, that where both parties are subscribers to the same telephone exchange and one party, using the telephone directory to ascertain the number of the other party, calls for such other party, and is connected by central with such other party, and a conversation ensues in which the party called responds and informs the party calling that he is the party called, that, upon proof of such facts, a rebut-table presumption or inference arises sufficient to make a prima facie case of identity.

The testimony shows that bills, of defendant bore the name of Mr. Paige as president of the company. This court has held that agency may be inferred from the fact that circulars and letter-heads of the defendant described one as its. agent. Randall v. J. A. Fay & Egan Co., 158 Mich. 630. See, also, Austrian & Co. v. Springer, 94 Mich. 343. There was no error in receiving the telephone conversation in evidence or in refusing to direct a verdict for the defendant.

The judgment is affirmed.

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