author: Stone, J. Fellows, J.

text:
    TACKLES v. BRYANT & DETWILER CO.
    1. Master and Servant — Workmen’s Compensation Act — Personal Injuries — Accidental Injury.
    Before an employee is entitled to recover compensation, under the workmen’s compensation law, he must establish the fact that he received an accidental injury which arose out of, and in the course of, his employment.
    2. Same — Accidental Injury — Hernia.
    Where plaintiff, while performing his usual duties as a civil engineer, helped another employee to lift a heavy block of timber weighing about 200 pounds, as he was accustomed to do whenever necessary, and he did not slip or fall, nor did the timber which he was lifting strike him, and nothing out of the ordinary happened, but, while lifting, he felt a severe burning pain in his right groin, and he continued with his usual duties for a period of about ten days, when he noticed a large swelling at or about the place where he had felt the burning pain, and, on calling a physician, learned that he was suffering from an inguinal hernia, held, that plaintiff did not receive an accidental injury within the meaning of the workmen’s compensation law.

      Certiorari to Industrial Accident Board.
    Submitted January 8, 1918.
    (Docket No. 3.)
    Decided March 27, 1918.
    Charles E. Tackles presented his claim for compensation against the Bryant & Detwiler Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Zurich General Accident & Liability Insurance Company, Limited, insurer, bring certiorari.
    Reversed.

      Ivin E. Kerr, for appellants.

      E. D. Alexander, for appellee.
   Stone, J.

Certiorari from an order of the industrial accident board awarding compensation to the claimant as follows:

“The sum of one-half the difference between his average weekly wages before the injury, and his average weekly wages which he is able to earn thereafter, during entire period of disability fixed by the statute, and the amount that said claimant is entitled to receive and recover shall be determined by the industrial accident board from time to time, if the parties hereto are unable to agree upon the amount.”

The facts in the case are not in dispute, and are in accordance with a stipulation of the parties as f ollows:

“Whereas, application for adjustment of claim was duly filed by above named applicant and the case brought on for hearing before a committee of arbitration, under date of October 21, 1915, at the Wayne county building, city of Detroit, county of Wayne, State of Michigan, and,
“Whereas, stenographer who took the testimony^ is unable to furnish the industrial accident board with the transcript of same because her notes have been either lost or destroyed.
“Now, therefore, it is hereby stipulated and agreed by and between the parties in above entitled cause, by their present respective attorneys, that the following constitute the facts as given in evidence before the arbitration committee heretofore mentioned:
1. “That on or about the 2d day of December, 1914, one Charles E. Tackles, applicant herein, was an employee of the Bryant & Detwiler Company, a corporation which has become subject to the terms of the workmen’s compensation law, so-called, and at that time both the parties hereto, were subject to said law.
2. “That on said day, about 2 o’clock p. m., while said applicant herein was performing his usual duties connected with his employment as a civil engineer, it became and was. necessary for him, with the assistance of another, to lift a heavy block of timber, weighing approximately two hundred (200) pounds.
3. “That at the time of lifting said timber the applicant herein felt a sharp burning pain in his right groin; that he continued with his usual duties, for a period of about ten days, when he first noticed a large swelling at or about the place where he had felt the burning pain; that thereupon he called upon one Dr. George Palmerlee, a physician duly licensed to practice in the State of Michigan, and ascertained from him that he the applicant herein, was suffering from a right inguinal hernia.
4. “That thereupon within three weeks subsequent to the accident, the applicant herein called upon one Mr. Mason, the claim adjuster for the Zurich Insurance Company, who were at that time carrying the compensation risk for the said Bryant & Detwiler Company, and during the course of the conversation the applicant herein mentioned the fact that he had been advised by this physician that his hernia could only be cured by an operation, and that while said Mason made no specific promise to bear the expenses of the operation, the applicant herein requested that he be allowed to continue with his work before submitting to an operation, the request being on the ground that the Bryant & Detwiler Company were badly in need of his servces at that time.
5. “That the applicant thereafter made repeated demands on said Mason that the Bryant & Detwiler Company pay the expense of the operation and compensation for such period as. he might be disabled as a re-suit of said operation, but that said Mason refused to do so upon the grounds that there was no liability.
6. “That said applicant herein had never, previous to the said second day of December, 1914, suffered from any pain or hernia in or about the right groin or inguinal canal and had not sustained any accident since this 2d day of December, 1914, affecting said right groin or right inguinal canal.
7. “That at the time the applicant herein felt the severe pain in his side, when lifting said heavy weight, he did not slip or fall, nor did the timber which he was lifting strike him; as a matter of fact, nothing out of the ordinary happened, except that the injured man was lifting unusual heavy timber and that he had lifted such timbers before, when other help was not available. Injured man has remained at work continuously since said accident.
8. “That at the time of said accident he was earning twenty-two dollars and fifty cents ($22.50) per week, and on April 5 he received an increase in salary to twenty-six dollars ($26.00) per week.”

Appellant’s first assignment of error is to the effect thát the board erred in holding that claimant received an accidental injury arising out of, and in the course of, his employment, which would entitle him to compensation under the terms.and provisions of the compensation law.

It is urged by appellants that the said order was wholly unauthorized, because the record conclusively shows that claimant’s alleged injury was not the result of an accident.

It is well settled by our decisions that, before an employee is entitled to recover compensation, he must establish the fact that he received an accidental injury, which arose out of, and in the course of, his employment. Adams v. Color Works, 182 Mich. 157.

The facts which are material for the determination of this question, in the instant case, are found in paragraphs 2, 3, and 7 of the stipulation.

It will be noted that while claimant was performing his usual duties, connected with his employment as a civil engineer, it became necessary, with the assistance of another, to lift a heavy block of timber weighing approximately 200 pounds; also that he felt a severe pain in his right groin while lifting, that he did not slip or fall, nor did the timber which he was lifting strike him. Nothing out of the ordinary happened, because he had lifted such timbers before, when such action was necessary in the performance of his duties; and down to the time of the hearing he had remained at work continuously. It seems to us that these facts conclusively show that claimant did not receive an accidental injury within the meaning of the act. We are of the opinion that the question here at issue was squarely determined in the case of Kutschmar v. Manufacturing Co., 197 Mich. 146.

In that case the injury complained of was, also, a hernia. There the claimant testified:

“I lifted this beam often, ab'out 90 or 100 times a day. This time I say I was hurt, I did not fall or stumble when I lifted the beam. I picked it right up, and something snapped in my side. I did not fall or stumble. There was nothing unusual about it. The beam was about 1% inches thick, 3 feet long and weighs about 90 pounds.”

In that case Mr. Justice Brooke said:

“In the case at bar it conclusively appears from the claimant’s own testimony that he received no accidental injury. He was engaged at the moment of his injury in his usual and ordinary employment, and in the usual and ordinary way. In the course of such employment- it was his duty to lift the iron bar once in about every 15 minutes, about 90 or 100 times a day. We are of opinion that an employee who receives an injury in the nature of a hernia, while engaged in his usual and ordinary employment, without the intervention of any untoward or accidental happening, is not within the provisions of the compensation act, which as we have held provides compensation for accidental injury only.”

See, also, Van Gorder v. Motorcar Co., 195 Mich. 588; Stombaugh v. Fence Co., 198 Mich. 445; Johnson v. Mining Co., 199 Mich. 218.

The instant case is readily distinguished from Schroetke v. Jackson-Church Co., 193 Mich. 616, and like cases. It is not necessary to consider the other question presented. , -

The award must be set aside and the case reversed.

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

Fellows, J.

I am persuaded that upon principle this case does not differ in any way from that of Roach v. Wheel Co., ante, 299. In that case a maj'ority of my Brethren agreed that there was no liability} For this reason I acquiesce in the reversal of the award in this case.

Moore, J., concurred with Fellows, J.


source: Caselaw Access Project

license: Public Domain

text:
    GUTHRIE v. DETROIT SHIPBUILDING CO.
    Master and Servant — Workmen’s Compensation Act — Accidental Death — Evidence.
    On certiorari to review an award of cgmpensation by tbe industrial accident board, under tbe workmen’s compensation act, where the autopsy showed that death resulted from mitral regurgitation, and there was no evidence that anything unusual or fortuitous occurred, and no competent testimony upon which to base the conclusion that the death of plaintiff’s decedent was the result of an accident within the meaning of the act, the award of the board will be reversed.

      Certiorari to Industrial Accident Board.
    Submitted January 25, 1918.
    (Docket No. 69.)
    Decided March 27, 1918.
    Ada A. Guthrie presented her claim for compensation against the Detroit Shipbuilding Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed.

      Douglas, Eaman & Barbour, for appellant.

      Frederick T. Witmire, for appellee.
   Stone, J.

This case is here on certiorari to review the action of the industrial accident board in reversing an order of the committee on arbitration, and ordering compensation to be made to claimant.

If compensation should be awarded in this case at all, it would be in the sum of $10 per week for a period of 300 weeks. The sole question is whether any award should be made to the claimant.

Claimant herein is the widow of Dalyrimple Guthrie, machinist, who died on the 30th day of April, 1916, while in the employ of the defendant company. On that day deceased started work at about 7 o’clock a. m., and at 3 o’clock p. m. he had finished one job. After an intermission of two hours, and at 5 o’clock p. m., he started on the job of repairing the steering gear.'of the steamer City of Alpena, and remained there up to the time of his death at about 11 o’clock p. m.» The long working day was not unusual in his employment, as he had worked 31% hours on April 21st and 22d. This was about a week before his death. There was necessity of working rapidly on the repairing of the steering gear; and at about 11 p. m., deceased, with two others, was working on the water level deck of the steamer in a room in which the temperature was somewhere between 75 and 78 degrees. There were two portholes open and two doors open from this room leading out to the open air, and the boat was lying in the river, moored to the dock. In order to reach the gear which was to be replaced .it was necessary for the workman to work on a platform about four feet above the level of the floor. Part of the work consisted in lifting a cover of the gear box, from a position about waist high to the workmen, up over the shaft to a position about shoulder high. This cover was made of metal and weighed somewhere between 150 and 175 pounds. Deceased and two fellow workmen were lifting this cover. After completing a part of the work, deceased started to walk along the platform to change his position. After a lapse of about one or two minutes after deceased had stopped lifting, his fellow workmen heard what they described as a “thud.” At the time deceased had been working on one side of the machine, out of range of vision of the two fellow workmen. On walking around to the place where-deceased had been working, his coworkers discovered him lying on the floor with a slight bruise under his chin. There was a small quantity of blood on his lips, due, the physician testified, to laceration of the tongue. A doctor was called at once, and on his arrival, about 30 minutes later, he pronounced the man dead from heart failure or apoplexy. At about 7 o’clock the following morning a coroner’s autopsy was performed on the deceased, and the cause of death found to be mitral regurgitation.

On September 7, 1916, a committee on arbitration heard and considered the testimony and found that no compensation was due to claimant, and made an order accordingly. The decision of the arbitration committee was reversed on appeal to the full board (the depositions of two additional physicians having been taken and submitted to the board), and it entered an order awarding claimant compensation for 300 weeks at $10 per week.

It is the claim of appellant that the order and award of the industrial accident board should be reversed and compensation denied, because the death of deceased was not due to an accident arising out of his employment. The cases relied upon by appellant are: Kutschmar v. Manufacturing Co., 197 Mich. 146; Van Gorder v. Motorcar Co., 195 Mich. 588; Stombaugh v. Fence Co., 198 Mich. 445; Johnson v. Mining Co., 199 Mich. 218.

It is, as we understand it, the claim of the appellant that there was nothing about the work, or employment, that was accidental or even unexpected; that the work was proceeding in the manner intended, and that nothing fortuitous occurred while the work was proceeding.

Upon the subject of the place where the men were working, it may be said that it was not even unusual. The undisputed evidence shows that the temperature was from '75 to 78 degrees, which was about what is termed summer heat. The evidence shows that steam had been off for 20 hours, and the room in which the work was being done was ventilated by two portholes, 12 inches by 14 inches in diameter, one on each side, and two large doors, one open to the dock and the other to the river. Claimant’s physician testified that the temperature was not an excessive heat and would not have produced death from heart disease. So we repeat, that it cannot be claimed that the temperature in which claimant’s decedent was working was unusual or fortuitous.

Upon the subject of strain: Deceased was a machinist, and was employed to do any machine work that the foreman or the superintendent directed bim to do. The work that he was doing at the time of his death was ordinary work, the same class of work he was doing before, apparently no more strenuous than his other jobs. This cover that they were lifting had been lifted off the shaft by two men earlier in the day. There is no testimony in the record to warrant a finding that there was anything especially heavy about the work deceased was doing.' In fact, the testimony of the physician for claimant negatives any such inference. There was no showing in the evidence that deceased made any special effort or strain; he was merely helping to lift the cover, which was not extraordinarily heavy, and there is no testimony that he strained himself, or that the lift was heavier than ordinary. We think, therefore, it cannot be claimed that there was anything fortuitous in the lifting of the cover; and there was nothing fortuitous about the work.

Upon the subject of long hours, it cannot be said that the working day was out of the ordinary. The testimony is undisputed that deceased had worked longer hours before, having worked 3114 hours on April 21st and 22d.

The burden certainly is on claimant to show that there was an accident; and there was nothing fortuitous in the long working day. No claim is made that the place itself was unsafe or insecure. There was no .claim or evidence that the deceased slipped, and there was nothing on the platform that would cause one to slip or fall. The undisputed evidence is that they were just dry planks — not even grease spots upon them. There is nothing from which it can be inferred that the deceased slipped or stumbled. It cannot be assumed that the man made a misstep, and then again assumed that such misstep caused fright, and then again assumed that the fright caused the heart to stop. This would be not only basing an assumption upon an assumption, but would' be taking one into the realms of conjecture.

In Schroetke v. Jackson-Church Co., 193 Mich. 616, at p. 627, a'number of English cases were referred to and distinguished. Those cases were O’Hara v. Hayes, 3 B. W. C. C. 586; Kerr v. Ritchies, 6 B. W. C. C. 419; Black v. Shipping Co., 6 B. W. C. C. 720.

It seems to us that the instant case falls within the doctrine of the English cases just referred to.

It is the claim of appellee here that death was due to an accidental injury arising out of the employment of the deceased, and it is said:

“The industrial accident board having found as.a fact that the combined circumstances resulted in the death of the deceased, their finding is final and cannot be reviewed, provided, however, that there is any legal evidence produced to support such finding.”

Was there any evidence to support such finding? We think there was none. An examination of the finding of the board shows that its decision is based upon and sought to be justified by the following cases: La Veck v. Parke, Davis & Co., 190 Mich. 604; Schroetke v. Jackson-Church Co., supra; Ramlow v. Ice Co., 192 Mich. 505.

While the LaVeck Case is a borderline case, there was evidence there of overexertion and excessive heat, a condition which was clearly unusual if not fortuitous; and the Schroetke Case is clearly distinguished from the instant case. We can arrive at no other conclusion than that the claimant has failed to show, by any evidence, that the death was due to accident. The record is entirely barren of any evidence of an accident.

That an injury received by a workman while engaged in his usual work, without intervention of something unusual or fortuitous, is not an accident, is now so well established by our decisions, that the proposition needs no discussion. Van Gorder v. Motorcar Co., supra; Kutschmar v. Manufacturing Co., supra; Stombaugh v. Fence Co., supra; Johnson v. Mining Co., supra.

In all of those cases compensation was denied. They have been so often referred to, and discussed by us, that it is unnecessary here to quote from them.

In our opinion there was no evidence to support the finding of the industrial accident board, and its award and order are reversed.

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

Fellows, J.

For thé reason stated by me in Tackles v. Bryant & Detwiler Co., ante, 350, I concur in the reversal of the award in this'case.

Moore, J., concurred with Fellows, J. Kuhn, J., did not sit.


author: Stone, J.

text:
    SCHNEIDER v. C. H. LITTLE CO.
    1. 'Appeal and Error — Trial—Instructions—Review.
    Exceptions to the charge on a theory of defense which might well have been disregarded by the trial court for lack of proof, will not be reviewed by the appellate court.
    2. Trial — Retrial—Evidence—Question eor Jury — Res Judicata.
    Where, on a former appeal, the appellate court held that a verdict for defendant had been improperly directed (184 Mich. 315), and, upon a retrial, the case in no essential feature differs from the former one, although defendant advanced a theory of independent, Intervening, effective cause, which failed for lack of proof, the court below was not in error in submitting the issues to the jury, under proper instructions.

      3. Appeal and Error — Trial — Instructions — Requests to Charge.
    Where the instruction of the court on the defendant’s theory of the case was correct so far as it went, the failure of the court to give more specific instructions was not reversible error in the absence of a request therefor.
    4. Same — Trial—Instructions.
    The charge of the court should be taken as a whole; error cannot be predicated upon isolated portions.
    5. Evidence — Conclusions—Expert Testimony.
    Conclusions of a witness, even an expert, as to what an ordinarily prudent man would have seen are inadmissible.
    6. Same — Fact—Conclusions—Contributory Negligence.
    In an action for personal injuries received by plaintiff by reason of the giving way of a floor on which defendant’s agent had negligently piled a great quantity of plaster, testimony of plaintiff that the presence of the plaster on the floor did not cause him any thought of danger was admissible, it being a fact, and not a conclusion, bearing upon the contributory negligence of plaintiff, since, if there was danger which he fully appreciated, he might have been guilty of contributory negligence.
    7. Trial — Miscarriage of Justice.
    Where there is no reversible error, and, upon the entire record, it cannot be said that the trial resulted in a miscarriage of justice, the judgment of the court below will be affirmed.
    Error to Wayne; Gage, J., presiding.
    Submitted January 22, 1918.
    (Docket No. 164.)
    Decided March 27, 1918.
    Case by Charles W. Schneider against the C. H. Little Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Stevenson, Carpenter, Butzeléc Backus (Thomas G. Long and Rockwell T. Gust, of counsel), for appellant.

      Monaghcm, Monaghan, O’Brien & Crowley, for appellee.
   Stone, J.

This- case has already been before this court and is reported in 184 Mich. 315. On the former trial a verdict was directed for the defendant at the close of plaintiff’s case. For the facts before this court upon the former appeal, reference is made to the very full statement contained in that opinion.

On the second trial the defendant introduced testimony regarding the custom prevailing in the city of Detroit among contractors and materialmen, as to the delivery of construction material. Otto Misch, a witness for plaintiff, testified, on cross-examination, as follows:

“Q. As I understand you to say, it is customary to put it where the buyer wants it?-
“A. Yes.
“Q. My question is, after the material is placed in the building, if the buyer does not have complete charge of it?
“A. He has, yes.”

Regarding the relative rights of the architect and contractor, he testified:

“Q. In the ordinary course of business-a man to whom the material was delivered, or his agent, tells the teamster or driver where to put it, is that right?
“A. Yes.
“Q. And he customarily directs him to put it in the most convenient place, that is a matter which he decides for himself?
“A. Yes.
“Q. I mean that is a matter which the buyer decides, is that right?
“A. Absolutely, the most convenient for the contractor.”

Mr. Wetzel, the architect on the building where the injury was sustained, and a witness for the plaintiff, testified:

“As far as I remember, this was the only time on this ' job that I told the teamster where to put material.”

On the issue of contributory negligence, the former record was silent as to whether the plaintiff saw the plaster as it was piled in sacks, after delivery. On cross-examination, at the second trial, he testified as follows:

“Q. You saw the plaster in there after it was all done, after the man had gone away?
“A. Yes.”

At the second trial the defendant introduced the testimony of Willard Wunsch, a plasterer in the employ of Mr. Johnke. He testified that he and another plasterer, together with two helpers, were working in the house on all of the day in question, using plaster.

Plaintiff’s witnesses, Otto Williams and George DuBois, denied that these employees of Mr. Johnke were working on that day. It further appeared that Gustav Johnke, the plastering contractor, was not present at the building on the day of the accident. Mr. Wunsch testified that Mr. Johnke did not have a foreman on the building on the day of the accident. It is true that Wunsch calls himself the “senior plasterer” in the employ of Mr. Johnke. His testimony was to the effect that he was not on the ground floor of the building when the plaster was delivered; that he was upstairs all day working. He did not know how long it took the defendant’s driver to deliver the material, nor did he know the time when it .was delivered. The helper was not on the ground floor of the building at the time of the accident; nor. was it shown that he was on the ground floor of the building when the material was delivered. No talk was had with' the defendant’s driver by Wunsch or his helper, if they were there. They were both busily engaged during the entire day doing the plastering work in the upstairs rooms. .

The plaintiff’s testimony is uncontradicted to the effect that he saw no one there, except his coworkers in the tile setting business, and their helpers.

Mr. Wetzel, upon the last trial, testified first, that on the day in question the plastering contractor had four men there, and later on he testified that he was not sure of it. He said: ST would not want to swear that they were there on the day of the accident, or whether it was the following day.” This is practically all the new testimony on this phase of the case.

The following facts should likewise be added as bearing on the claimed negligence of the plaintiff: He testified that as a tile setter he had not become acquainted with the construction of buildings. He said “I do not know anything at all about the construction of buildings.” On the day in question he was working on the porch of this building; his work required him to be in a kneeling position; and he had no warning of anything being defective. He testified that he did not know of any danger in continuing to work on the porch, and the fact that bags of plaster were piled in the bay window, within the building, did not cause him to feel that he was in any danger out there on the porch, where he was working.

Upon the cross-examination of the witness Wetzel, the following occurred:

“Q. It would be perfectly obvious to anybody, wouldn’t it?
“A. Yes. •
“Q. That would be a dangerous situation, which any ordinary man would undoubtedly see?”

This question was objected to by plaintiff’s counsel and the objection sustained, and a motion to strike out the preceding question and answer was granted.

Upon direct examination of the plaintiff, he was asked the following question:

“Q- I will ask you whether or not the fact, after putting 100 to 110 bags of plaster in the bay window, would it at the time, or did it at the time, spell to your mind any thought of there being any danger?
“A. No, sir.”

This question and answer were objected to, and motion to strike out was made by defendant’s counsel, which objection and motion were overruled.

At the conclusion of the proofs, both parties having rested, the defendant moved the court (which motion was denied) to direct a verdict for the defendant for the following reasons:

"First. The employees of the plastering contractor who were doing the plastering of the house in question were on the premises, engaged in the work of plastering, all the day on which the plaster was delivered and piled in the manner complained of, and it was their duty to take such care of the plaster delivered as to prevent injury to the others through the plaster remaining in one place for several hours.
"Second. The plaster was delivered and piled in the room in which the persons by whom the same was to be used were at work with their mortar box mixing plaster, and under such circumstances it became their duty to so conduct their work and to so care for the plaster delivered to them as to prevent a dangerous condition arising.
"Third. The delivery of the plaster in the room in which the persons by whom the same was to be used were at work with their mortar box mixing plaster, was such an acceptance of the plaster and of the delivery thereof by those persons as to impose upon them all responsibility therefor from that time forth, and defendant was wholly relieved of any liability or duty in the premises.
"Fourth. The plaintiff was guilty of contributory negligence in continuing to remain, for the length of time which he did, in such close proximity to the alleged dangerous condition created by the servant of the defendant.
"Fifth. The plaintiff was guilty of contributory negligence in going upon and working upon that part of the porch in question and adding to the alleged overloading of the floor thereof his own weight and the weight of the tile laid by him and of the wet cement in which the same was laid.
"Sixth. If the issue herein were submitted to the jury, and the jury should, find that the piling of the plaster in the place and in the manner in which it was piled would convey to the mind of an ordinarily prudent person notice that a dangerous condition had been created, then the plaintiff was guilty of contributory negligence in continuing to remain in the immediate presence of such conditions; or, if the jury should not find that the piling of the plaster in the place and in the manner in which it was piled would convey to the mind of an ordinarily prudent person notice that a dangerous condition had been created, then defendant is not liable, as its servant has not been guilty of any negligence.”

The defendant also requested the court to charge the jury as follows:

“1. I charge you, gentlemen of the jury, that if you find from the testimony of this case that the employees of the plastering contractor who were doing the plastering of the house in question were on the premises engaged in the work of plastering all the day on which the plaster was delivered and piled in the manner complained of, then I charge you, as a matter of law, that it was their duty to take such care of the plaster delivered as to prevent injury to the plaintiff by reason of the plaster remaining in one place for several hours, and you must find a verdict for the defendant of no cause of action.
“2. I charge you that if you find from the evidence that the plaster was delivered and piled in the room in which the person or persons by whom the same was to be used were working with their mortar box mixing plaster, then I charge you that, under the circumstances, it became their duty to so conduct their work and to so care for the plaster delivered to them as to prevent a dangerous condition arising and you must find a verdict for defendant of no cause of action.
“3. I charge you that if you find that the plaster in question was delivered in the room in which the person or persons by whom the same was to be used, were at work with their mortar box mixing plaster, then I charge you that these facts constitute such an acceptance of the plaster and of the delivery thereof by those persons as to impose upon them, as a matter of law, all responsibility therefor from that time forth, and, as a matter of law, defendant was by reason thereof wholly relieved from any liability or duty in the premises and you must find a verdict of no cause of action.”

None of the above requests were given.

The trial court submitted the case to the jury in a lengthy charge, in the course of which it used the following language:

(“Defendant claims that they are not responsible for this injury, that this plaster — they admit that they sent that to the building to be delivered, but they claim it was not through, their fault that this accident occurred, if the man placed - it there, nor do they assume that they were responsible.) * * *
. “Now, some statement has been made in regard to an action against the principal for the failure of his agent to exercise this degree of care and caution, that is necessary under the circumstances. I say to you that the agent or servant of the person, the fact that he was an agent or servant, makes a person just as responsible as he would be if it was himself. It is his duty to employ people to do the work that is for him to perform in such a manner as not to injure other people by the negligence of his servants, and if they do (if the servants or agents of corporations or,, persons fail to exercise such a degree of care or caution, as I have stated to you, then, the principal is guilty of negligence. He may not be morally guilty, yet he is in one way, yet it is his duty to employ such people as will avoid injuring other people by their negligence). . * * *
“I instruct you if you believe from the evidence in the case that the defendant company through negligence on its part created a situation, causing injury to the plaintiff and was the proximate cause of said injury, and that the plaintiff was free from negligence on his part, then you will return a verdict in favor of the plaintiff.
(“I charge you that negligence and carelessness as applied in this case, means the failure to exercise ordinary care, that is, such care as ought to be expected of a reasonable prudent person under similar circumstances. I charge you that if from the evidence in the case, you find that under the circumstances the defendant company’s servant was guilty of negligence in piling the quantity of plaster in one place without regard to the safety of others working in the same building, and that said negligence was the proximate cause of the injury, you will return a verdict for the plaintiff.)
(“Now, as to what is the proximate cause I will instruct you as well as I can. The proximate cause is either the ordinary, common or probable circumstances causing the negligent act of the defendant. Proximate cause is one which is a natural consequence, which is the natural sequence undisturbed by any incident causes this result complained of. To be proximate, the cause must be one without which the accident or injury would not have occurred.) * * *
(“I instruct you that if from the evidence in the case you find that the servant of the defendant company was warned by other workmen about the premises that to continue hauling the plaster, such as he was doing, might result in the collapse of portions of the building and injury of those working about the same, and in view of such warning a reasonable and prudent man would not have continued to pile the sacks in one place, the defendant was guilty of negligence.)
(“I instruct you that if you find from the evidence in the case, that the defendant company, through its servant delivered the sacks of plaster in a dangerous ' manner and that as a result of such dangerous delivery, and that such delivery was the proximate cause of the collapse of the walls, and the injury to the plaintiff, the defendant company has been guilty of negligence in law, and that would in no manner excuse and undo the negligence of the defendant, C. H. Little Company.)
(“In other words, the fact that somebody else was negligent, if this company was first negligent in regard to this matter, then the proximate cause would be because this company was negligent in placing that material in that bay window.)
(“Where delivery is undertaken by the seller, and he is advised that the disposition of the goods in a certain way at the place of delivery is dangerous to the structure in which they are placed, and another disposition is safe, his duty to prevent harm is clear, and the obligation would rest upon any person, having knowledge of the unsafe condition created and the probable consequences, to prevent the injury.)
(“That is to say, if any of these other employees saw where it was an unsafe condition, and knew the fact that this material was delivered in this unsafe way, then it was their duty also to prevent the injury, but the proximate cause is the action of the man who delivered that plaster in the way in which he was instructed not to, if a reasonably prudent person would not have done so under all the circumstances of the case.)
(“The fact that the plastering contractor has received the goods which had been placed at his disposal did not affect or relieve the defendant of the duty to exercise reasonable care, nor excuse his original misfeasance in the absence of evidence that the contractor should undertake to do the plastering, knew about the condition which was created or had reasonable grounds for apprehension would be created.”)

The jury returned a verdict for plaintiff in the sum of $8,500 damages, and judgment was entered thereon. The defendant brings the case here upon writ of error, and error is assigned upon the refusal of the court to give defendant’s requests to charge above set forth, and each of them; in refusing to direct a verdict for the defendant upon the several grounds specified in defendant’s motion therefor, in those-parts of the charge in parentheses above quoted, and in the rulings with reference to the reception of evidence in the instances above set forth.

'On the former appeal this court held that a verdict had been improperly directed by the trial court.

Counsel for appellant, in their brief, discuss the matter of independent, intervening, effective cause. They do not seriously contend that the appellant was free from negligence. The contention seems to be that, although the appellant was originally guilty of negligence in piling the material in such a manner as to cause the floor to fall, there intervened a subsequent agency which was likewise negligent, and that the intervention of this agency excused the appellant.

Upon a careful reading of the opinion and the record upon the appeal, as well as the record upon the second trial — now before us — we are of opinion that in no essential way is the case to be distinguished from the one presented in the previous record. In our opinion the essential features of it are the same. The only witness introduced by the defendant was Willard Wunsch. His testimony showed that he was at the building at the time of the accident; that he was an employee of Johnke, the plastering contractor; that he had a laborer assisting him, and that there was no foreman for Johnke on the job. The duties of this witness were those of a plasterer; he was, during the entire day, working on the second floor of the building. There is no claim that he signed a receipt for the material delivered, or saw it; and it does not appear that he even had charge of the work. He did not speak to the driver who delivered the material, nor did he claim to have, or exercise, any control over it during the day. It appears distinctly that the only persons with whom the driver had any conversation on that day were the plaintiff and Wetzel, the architect. That conversation appears in the original statement of the case.

When the case was before this court upon the former appeal, Mr. Justice Ostrander, in the opinion, said, on page 321:

“The facts support the conclusion that for some five or six hours before the porch collapsed the plaster was completely and unconditionally at the disposal of Johnke, the buyer.”

And on page 325:

“It does not appear that contractor Johnke knew anything, about the condition which was created, or had reason to apprehend that it would be created. Appellee has not made out a case within the governing principle it relies upon. Whether plaintiff was himself -negligent is a. question not determined by the trial court.”

It is conceded that Johnke was not at the building when the material arrived, nor was he present at the building between that time and the time of the accident; nor was there a superintendent or foreman of Johnke’s in charge. The only person present (if we are to accept Wunsch’s testimony) was a, plasterer and his laborer. The plasterer was at work on the second story of the building; his helper was mixing plaster. There is no claim that the driver who delivered the material spoke to the plasterer or informed him where he was placing the material.

Giving the strongest probative force to the testimony of the witness Wunsch, the case in no essential differs from the one upon the previous appeal. Neither Johnke nor any one with authority from him “knew of the condition which was created, or had reason to apprehend that it would be created.”

Upon the subject of contributory negligence, which was urged by appellant in its motion to direct a verdict, we do not think the court erred in submitting that question to the jury. There is no criticism of the charge of the court upon the subject of contributory negligence, if that were a proper question to submit to the jury.

It is claimed that certain knowledge of the plaintiff was shown upon the second trial which did not appear upon the first trial. There is no doubt that the presence of the plaster in the sacks or bags was obvious, but it does not follow that the plaintiff was guilty, as matter of law, of contributory negligence. The evidence is very clear that the plaintiff had no knowledge with reference to the strength of the structure, he having distinctly testified — that testimony being uncontradicted — as follows:

“I had no knowledge of the construction of that porch, and no knowledge of the construction in general of buildings.” ' .

He was working out upon the porch. In our opinion the questions, both of the negligence of the defendant and the negligence of the plaintiff, were questions of fact for the jury, and the court did not err in so treating them.

There are many assignments pf error and much criticism of counsel, upon the charge of the court. It having appeared, as we have already indicated, that the contractor, Johnke, knew nothing about the condition which was created, and had no reason to apprehend that it would be created, and that he had no agent or person authorized to act for him in receiving the material or directing its disposition, we think there was no error in the refusal of the court to give defendant’s requests to charge. If, as we think, the defendant, upon the last trial, did not bring itself within the rule which it invoked, then there was no independent, intervening, effective cause, and what the court said to the jury in that portion of the charge which is excepted to with reference to proximate cause, might well have been omitted by the court. The theory failed and might well have been disregarded in the charge. In other words, the elimination of Johnke as an active, intervening cause of the accident (aside from the negligence of the plaintiff) left but one question, i. e., the negligence of defendant. This court has often held that a theory, unsupported by proof, is not a proper matter for a jury’s consideration. Lee v. Longwell, 136 Mich. 458; Woods v. Palmer, 151 Mich. 30; Charette v. Village of L’Anse, 154 Mich. 304; Saros v. Avenue Theatre Co., 172 Mich. 243.

As was said in Lewis v. Brick Co., 164 Mich. 489, 501: “Affirmance of the judgment does not imply approval * * * of all that was said to the jury.”

It is also complained that the court did not state the defendant’s theory of the case; and that it failed to give a sufficiently comprehensive statement of its claim; but no request was made for more specific instructions upon this point. The instruction seems to have been correct so far as it went, and this court has frequently held, that the failure to give more specific instructions is not erroneous, in the absence of a request therefor. Hammond v. Porter, 150 Mich. 328; Spray v. Ayotte, 161 Mich. 593; Lewis v. Brick Co., supra; Totten v. Totten, 172 Mich. 565; Hartwig v. Kell, 199 Mich. 603, 611.

The charge is criticised where the court said: “He might not be morally guilty, yet he is in one way,” etc., above quoted. The comment of the court here given was at the conclusion of the statement, that an employer was responsible for the acts of his servant. Taken in connection with the language with which it was used, we do not think there was reversible error. The instruction of the court should be considered as a whole, and not by isolated portions. This doctrine has frequently been referred to, and it is hardly necessary to cite cases.

Certain rulings of the court upon the introduction of testimony are presented by the assignments of error, which questions appear herein. We do not think it was error for the court to decline to permit the architect to answer the question: “That would be a dangerous situation which any ordinarily prudent man would undoubtedly see?” The question clearly called for a conclusion. While it is claimed that the witness was an expert, it can hardly be said that he was an expert on what an ordinarily prudent man would have seen. That was a question for the jury.

The court also refused to strike from the testimony the answer of the plaintiff, that the presence of the plaster did not cause him any thought of danger. This was a fact and not a conclusion. It was a step bearing upon the question of the contributory negligence of the plaintiff, for if there was danger which he fully appreciated, he might have been guilty of contributory negligence. It was therefore a fact which it was competent for him to testify to, which, it is true, might not have been controlling of the whole question; but the jury were instructed to consider what an ordinarily prudent man would have done under the whole circumstances.

Viewing the entire case upon this record, we are of opinion that it cannot be said that the trial resulted in a miscarriage of justice, and we find no reversible' error in the record, and the judgment of the lower court is therefore affirmed.

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


text:
    CUTTER v. POWERS.
    1. Principal and Agent — Evidence—Special Question — Finding oe Jury.
    In an action for money alleged to have been paid to defendant by plaintiff’s decedent to be applied to tbe payment of a specific debt, evidence Jield, to sustain tbe finding of tbe jury, in answer to a special question, that defendant was not acting as agent of a third party in receiving the money.
    2. Same — Special Agent.
    "When defendant accepted the money with instructions to pay a specific debt, he was acting as the agent of plaintiff’s decedent.
    3. Same — Agent oe Both Parties
    It is permissible for the agent of one party to be appointed by the adverse party as his agent for certain purposes, and each party will then stand in the relation of principal to the agent as to the matters entrusted to the agent,' and as to those alone.
    4. Same — Special Agent — Liability of Agent.
    Where a principal places money in the hands of an agent to ¿ay a debt when ordered, and the agent refuses to obey such orders, he becomes liable to the principal, whether the instructions are violated through mistake or design.
    5. Witnesses — Matters Equally Within Knowledge of Deceased — Opposite Party.
    Although the third party, for whom defendant claimed to be acting as agent, was not a party to the record, he had a pecuniary interest in the subject-matter of the litigation, and was an opposite party within the statute barring his testimony as to transactions with plaintiff’s .decedent.
    6. Evidence — Hearsay—Relevancy—Admissibility.
    The third party not being present when the money in question was paid to defendant, and what occurred then and there being the crucial and vital question in the case, the court might have excluded his testimony as irrelevant and immaterial.
    7. Damages — Duty to Minimize.
    Where there was no question that decedent owed the debt for the payment of which the money was paid to defendant, when decedent ascertained that the debt had not been paid, it was his duty, instead of entering into litigation to avoid its payment, to pay it, and thus make his damages as small as practicable, and the judgment in his favor should have been limited to the amount paid, with interest.
    Error to Kent; Perkins, J.
    Submitted January 30, 1918.
    (Docket No. 178.)
    Decided March 27, 1918.

      Assumpsit by Linnie Cutter against Frank J. Powers for money had and received. Judgment for plaintiff. Defendant brings error.
    Affirmed conditionally.

      P. H. Walsh (Frank J. Powers, of counsel), for appellant.

      Grant Sims, for appellee. .
   Stone, J.

This suit originated in justice’s court. The declaration wás in assumpsit and consisted of a single special count stating the claim of the plaintiff, in substance, as follows:

That whereas, in the month of July, 1914, Charles Cutter was indebted to the Holland Furnace Company, a corporation, in the sum of $145 for the price and value of a furnace sold and delivered by said company to said Charles Cutter, and for certain work and labor performed by it in installing the furnace in the said Cutter’s house; and the said Cutter desiring and intending to pay to the said company the said sum of money, did, in the said month of July, deliver over to the custody and possession of the defendant and intrusted him with the sum of $145 for the sole purpose of, and with instructions to said defendant, to immediatély pay over and deliver said money to the said furnace company in payment of the said defjt, and for no other purpose; which moneys and funds said defendant then and there so had and received, and agreed to pay over and deliver the same accordingly to said company in payment and satisfaction of said debt; and that he took upon himself the execution of said trust. But notwithstanding said agreement upon the part of said defendant, he has since then committed the following breach of said trust, that is to say, he after-wards, and in violation of said trust which he had so assumed and agreed to execute and perform, did neglect and refuse to pay and deliver said sum of money and funds, or any part thereof, to said company in payment of said debt; and, upon demand, also refused to deliver the said money and funds, or any part thereof, to this plaintiff. That the said company thereafter sued said Charles Cutter in the circuit court for the sum of $145 and interest to recover the debt aforesaid which was the sum that the said defendant’was to deliver in money and funds to said company in payment thereof; that said Charles Cutter died testate on or about December 18, 1914, while said suit was pending, and his estate was duly probated in the probate court for the county of Kent; that after the death of said Charles Cutter said action was revived and continued against the said Charles Cutter’s estate; and the executrix of the said will, under the advice of her counsel, appeared' in and defended the said action; that after a trial in the circuit court aforesaid, judgment was rendered against the estate for the said $145 and costs and interest, amounting in all to $207 or thereabouts, which judgment, including the costs and interest, the said estate has paid to the furnace company. That the plaintiff was the heir at law and sole legatee of said Charles Cutter, now deceased, and entitled to all the assets of said estate; that by an order of said probate court in the due administration of said estate, the residue thereof was duly assigned to the plaintiff, among other assets being the said claim for the said moneys so had and received by said defendant, as herein alleged; and also for the claim of said estate for the costs and interest sustained by it in defending said claim of the said company, which damages, costs and interest were suffered and occasioned by negligence, breach and default of the said defendant in the execution of the trust as aforesaid; that plaintiff now owns said claim, is entitled to receive the same from the said defendant, and any and all damages in the premises accruing by reason of said breach of said trust.

Plaintiff by said declaration demanded judgment for compensation and damages for said breach of trust covering said sum of $145, with interest and costs of said litigation. The plea was the general issue.

Upon the trial of the case in the circuit court (to which the plaintiff had appealed from an adverse judgment in justice’s court), it appeared that on or about May 1, 1914, Cutter sold to one Egan his interest in a land contract in a certain hotel property at Berlin, Michigan; that the title to this hotel property was owned in fee by one Greiner. In making said sale and transfer Charles G. Turner acted as the attorney for said Cutter, and the defendant acted as attorney for Egan.

There were certain debts owing by said Cutter, supposed to be about $700. It was claimed that it was represented by said Cutter to Egan that all payments on the land contract, which was assigned by Cutter to Egan, of interest and instalments of principal had been paid up to May 1, 1914. The defendant further claimed that about the middle of May, 1914, Greiner informed Egan that the April payment on the land contract amounting to $85.83 and the last six months’ interest on said contract, amounting to $75, making in all $160.83 up to May 1, 1914, had not been paid by Cutter. It also appeared that there was an outstanding note and indebtedness of about $145 due the Holland Furnace Company from Cutter, and there was evidence that this fact was brought to the attention of the defendant; that the defendant, in the interest of his client, Egan, approached Mr. Turner, the attorney for Mr. Cutter, and called his attention to said furnace company’s claim, which was represented by a note retaining title in the furnace. It, in substance, was testified to by Mr. Turner that he called Cutter’s attention to this furnace debt, and that one day soon thereafter, Cutter brought to him $145 to pay said furnace company’s indebtedness; that he, Turner, handed this money, consisting in part of a check and in part in currency, over to the defendant, and said to him:

“Mr. Powers here is the money for that furnace, that Holland furnace, and you take it and settle the matter up. * * * I told him here is the money to pay the Holland Furnace Company for the furnace that Mr. Cutter had not completed payments on. You take it and pay the Holland Furnace Company”;

and that defendant took the money.

Some time after this it came to the attention of Mr. Turner that the Holland Furnace Company claim had not been settled. Whereupon, according to Mr. Turner’s testimony, he had a conversation with the defendant and said: “What about that money that I paid you for' the Holland Furnace Company, that $145.00that the defendant avoided the matter and claimed to be very busy, but that in another conversation, the same day, the defendant finally admitted that he had received the money. The testimony of Mr. Turner was corroborated by that of a young lady, a stenographer in his office, who testified that she was present and heard the conversation, and saw the money paid over to defendant.

The claim of the furnace company not having been paid, it instituted a suit against Mr. Cutter for the amount due it upon the furnace. Pending that suit Mr. Cutter died. It was revived in the name of his executrix and finally went to judgment. The amount of the judgment was $158.45, and costs taxed at $61.15. The claim was finally satisfied by the plaintiff paying the sum of $210.90* in full settlement of the judgment.

It was the claim of the plaintiff upon the trial of the instant case that Mr. Cutter, acting through Mr. Turner as his attorney, made the defendant his agent for the payment of the $145 to the Holland Furnace Company. The defendant testified that the money which he received was for another and entirely different purpose ; that nothing was said to him about the' furnace indebtedness, but that when it came to his attention from Mr. Egan that the interest and installment of principal had not been paid by Cutter to Greiner covering all amounts due up to May 1, 1914, the following occurred:

“The next time'that I had any relation to this matter was some time in the first part of June. I had heard from Egan some time in June about the contract, and a short time after I heard from Egan, and I think in the month of June, Miss Mellema, Turner’s stenographer, came to my office and paid thé $145 in the form of a certificate of deposit. She said to me: "Here is this $145 to pay Egan on what Cutter owed Egan for the April payment, and the last six months’ interest on the contract.’ She asked me if I knew about it. I told her I knew about it as Egan called me up about it. She laughed. I said to.her I thought Cutter had paid everything up to the first of May. She said evidently he did not. I said yes, evidently he did not. And she gave me the $145 certificate of deposit and said also that Egan and Cutter had made a deal, and she told me that Cutter owed $160.83 to Egan, that this $145 and the buggy, which Egan accepted, paid up Cutter’s debt. I turned the $145 certificate of deposit over to Egan and did not charge either one anything for it.”

He testified that subsequently, and before any demand was made on him by the plaintiff, he paid the money over to Egan as his attorney. It will thus be seen that there was here a sharp conflict in the testimony as between Turner and the stenographer upon •one side, and the defendant upon the other.

In the course of the trial the court ruled that the testimony of Mr. Egan of matters equally within the. knowledge of Mr. Cutter could not be received under the statute. All of the offers' of testimony of Egan were upon collateral matters, and all of but little probative force. Error is assigned upon refusal of the court to receive this testimony.

At the close of the testimony the defendant moved for a directed verdict in his favor, for the following reasons:

(1) The testimony shows that the plaintiff paid the money to the defendant as agent for a third person, and the proofs show that defendant has paid the money over to said third person.

(2) For the reason that the plaintiff’s claims, and her testimony shown that the money was paid to the defendant as. an agent, and paid to the agent for a specific purpose; and the proofs show that the defendant transferred the money to said third person, his principal.

This motion was denied by the court and exception duly taken.

There were requests to charge covering the same ground; and also that, as matter of law, the jury ought to disregard the taxed bill of costs of $61.15 in determining the measure of damages.

In the course of its charge to the jury the trial court used the following language:

“There is but one question in this case, and only one for your consideration, and that is, the question of fact which you are to determine under the evidence. That question is whether the claims of the plaintiff as to the purpose for which this, money was turned over to Mr. Powers are true, or whether the claim of the defendant, Mr. Powers, is true, that it was turned over to him for his client, Mr. Egan. That the money was turned over is unquestioned; it is an undisputed fact in this case; that the transaction between Mr. Cutter and Mr. Egan took place and was completed, is undisputed in this case. That the land contract was assigned to Mr. Egan, and that upon the back of the contract was indorsed the various payments showing the amount due at the time the assignment was made, are all undisputed facts in the case. Narrowed down to its ultimate limits, the case resolves itself into a question of whether Mr. Turner and his stenographer are telling the truth, or whether Mr. Powers is telling the truth.
“(The fact that the defendant Powers was the agent and attorney for Mr. Egan in the transaction between Mr. Egan and Mr. Cutter will'not prevent him from also becoming the agent of the adverse party, Mr. Cutter. In other words, he may, under proper circumstances, act as the agent for both parties. The question, as I have said, is one of fact, whether or not the defendant accepted, this money, this $145, with the express understanding and agreement, as the plaintiff claims, that it was to be used exclusively by the defendant for the payment of the Holland Furnace Company’s claim.
“As a matter of law, and I so instruct you, the agent of one party to the transaction may be appointed by the adverse party as his agent also, for certain purposes, and each party will stand in the relation of principal and agent as to the matters thus intrusted to such agent, and to those alone. Such appointment of the agent of the adverse party must be established by a preponderance of the evidence. What was said and done by the parties and the circumstances of the case as disclosed by the evidence should be taken into consideration by the jury).”

The following special question was submitted to the jury at the -request of the defendant: “Did the plaintiff or her representatives pay the money to the defendant as Egan’s agent?” To which the jury answered: “No.”

The jury returned a verdict for $281.20 damages, and judgment was entered accordingly. There was a motion for a new trial based upon many reasons, among others: Because the court erred in its charge to the jury upon the measure of damages. This motion was denied by the court and exception duly taken. The defendant has brought the case here for review. The assignments of error raise many questions, among others: That the court erred in refusing to grant de~ fendant’s motion for a new trial on each of the grounds therein stated; that it erred in that part of the charge embraced in parentheses.

The propositions relied upon by him, and on which error is assigned, are as follows:

(1) Was the defendant acting as agent of Egan when he received the money?

(2) If he was acting as such agent when he received the money, and paid the money over to his principal, can an action be maintained against the defendant?

(3) Errors of the court in allowing certain answers to stand, and in instructing the jury that certain facts were true when said facts were in dispute. .

(4) Did the court err in not allowing Egan to testify as to transactions between himself and the plaintiff’s decedent?

(5) Was the verdict against the weight of the evidence? ,

As stated by the trial court to the jury, and as demonstrated by an examination of the record, the case presented a single material issue, and that was: Under what circumstances, and under what instructions, if any, was the money paid to the defendant by Mr. Turner, or his stenographer, as the case-may be? It was'clearly testified to by Mr. Turner and his stenographer, that the money was turned over to defendant for the express purpose of applying it upon the indebtedness to the furnace company, and thus relieving the property from any question of lien upon it by reason of that indebtedness. The defendant testified that the money so paid over by the stenographer was for an entirely different purpose. Somebody is woefully mistaken, or has sworn untruthfully in the case. That question was submitted to the jury squarely. In the course of the trial the testimony that was introduced went far afield, and brought in collateral matters in great detail of the deal between Cutter and Egan in the sale of the contract of the hotel property.

The first and second points urged by defendant may be disposed of together. An examination of this record shows that there was evidence to sustain the answer of the jury to the special question submitted by the defendant. That being so, the question seems to be settled whether the defendant was acting as the agent of Egan when he received the money. That the defendant had been acting generally as the attorney for Egan, cannot be questioned. There ought to be no dispute about the law upon this subject. If the plaintiff’s position is true, and that question seems to have been settled by the verdict of the jury, the defendant, when he accepted this money with instructions to pay it over to the furnace company, was acting as the agent of Mr. Cutter. It is permissible, and often the agent of one party to a transaction, is appointed by the adverse party as his agent for certain purposes, and each party will then stand in the relation of principal to the agent as to the matters by him entrusted to the agent, and as to those alone. 2 C. J. p. 448. This rule has been frequently asserted by this court.

In Adams Mining Co. v. Senter, 26 Mich. 73, 77, Justice Campbell, speaking for the court, said:

“The question next arises, how far the double agency of Captain Frue affected his relations to his employers and to third persons. * * * The authority of agents may, where no law is violated, be as large as their employers choose to make it. There are multitudes of cases where the same person acts under power from different principals in their mutual transactions.”

See, also, Colwell v. Iron Co., 36 Mich. 51; Michigan Slate Co. v. Railroad Co., 101 Mich. 14, 28, and cases there cited.

The doctrine is also well settled that where a principal places money in the hands of an agent to pay a debt when ordered, if the agent refuses to obey such orders he becomes liable to the principal, and this is true whether the instructions are violated through mistake or design. We think there was ample testimony to warrant the charge, upon that branch of the case.

We have examined the alleged errors of the court in allowing certain answers to stand, and the instruction to the jury complained of, and think they are without merit. The rulings, and instruction present no question of reversible error.

Coming to the fourth question argued: Did the court err in not allowing Egan to testify to transactions between himself and plaintiff’s decedent? We find no error of the court in this ruling. It is true that Egan was not a party to the record. It was the claim of the defendant, and the case was tried by him upon the theory, that he was the agent of Egan. It is well settled in this State that the opposite party does not necessarily mean a party to the record; but it means any person whose interests are, as matter of fact, antagonistic to the interests of those for whose benefit the statute was passed. Egan had as direct a pecuniary interest in the subject-matter of the litigation as though he had been a party to the record. He had a direct pecuniary interest in the result of the case. O’Neil v. Greenwood, 106 Mich. 572, and cases there cited; Laird v. Laird, 115 Mich. 352; Chaddock v. Chaddock, 134 Mich. 48; Ayres v. Short, 142 Mich. 501; Abbott v. Jones, 164 Mich. 598.

There is another reason why we think the ruling of the court would not in any event have been prejudicial error. There was no claim upon the trial that Egan was present when the money in question was paid to the defendant. What occurred then and there, was the crucial and vital question in the case. All of the matters sought to be introduced by the witness Egan were collateral matters, and the court might well have ruled them out as being irrevelant and immaterial. We are satisfied that the verdict was not against the weight of the evidence.

We think the verdict was too large, and that the measure of damages adopted by the court in its charge was erroneous. The evidence as to costs was objected to by defendant. There never appeared to be any question that Mr. Cutter owed the Holland Furnace Company for the furnace. It was his debt. It is the claim of the plaintiff, representing her deceased husband, that the defendant, as the agent of her husband, did not obey the instructions, and pay the money in question to the Holland Furnace Company. There seems to have been no question as to the merits of the claim of the furnace company. When Mr. Cutter ascertained that the money which he had given to his agent, the defendant, to be paid to the furnace company had not been so applied, it was his duty then to have paid the furnace company the amount due it, and thus have made his damages as small as practicable. Instead of that he entered into a litigation with the Holland Furnace Company, resulting in a bill of costs which the plaintiff paid. In other words, the amount of money which the defendant owes the plaintiff upon any theory of the case, cannot exceed the sum of $145 with interest thereon at five per cent, per annum from July, 1914, to May 15, 1917, the date of the judgment. That amount, which we compute to be $165.54, should have been the extent of the plaintiff’s damages, and the costs in the furnace company case should have been eliminated. We find no other error in the record. If the plaintiff shall, within 30 days after the filing of this opinion, remit that portion of this judgment for damages in excess of $165.54, the judgment as thus modified will stand affirmed, but without costs to the plaintiff in this court. If such excess is not remitted within the time above specified, the judgment will be reversed and a new trial granted, with costs to the appellant.

Bird, Moore, Steere, Fellows, and Brooke, JJ., concurred. Ostrander, C. J., and Kuhn, J., did not sit.


author: Stone, J. Moore, J.

text:
    MILLER v. DETROIT UNITED RAILWAY.
    1. Street Railways — Crossing Accident — Negligence—Contributory Negligence — Directed Verdict.
    In an action against a street car company for personal injuries and also for injuries to plaintiff’s automobile, caused by a collision with defendant’s street car, wbere plaintiff’s testimony was contradictory, and tbe uncontradicted testimony of defendant’s witnesses showed that plaintiff was guilty of contributory negligence as a matter of law, tbe court below was in error in refusing defendant’s motion for a directed verdict in its favor.
    2. New Trial — Evidence—Great Weight of Evidence.
    Wbere tbe verdict was contrary to tbe great weight of tbe evidence, tbe court below should have granted defendant’s motion for a new trial.
    Error to Wayne; Mandell, J.
    Submitted January 23, 1918.
    (Docket No. 170.)
    Decided March 27, 1918.
    Case by George W. Miller against the Detroit United Railway for injuries to himself and his automobile. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      Corliss, Leete & Moody (Thomas T. Leete, Jr., of counsel), for appellant.

      Bauble & Bauble, for appellee.
   Stone, J.

Plaintiff recovered a judgment for $530.15 damages for alleged personal injuries, and also for damages to his Wood electric automobile, received in a collision with one of the street cars of the defendant on October 16, 1915. The negligence complained of was excessive speed, want of control of car, and absence of signals. The plaintiff had lived in Detroit for 17 years, had owned 7 electric cars, had been accustomed to driving them, and was well acquainted with the streets of the city, and had been in the habit of crossing railway intersections.

He was driving his automobile north on MeDougall avenue about 5:30 p. m. and approached Waterloo street, upon which defendant operates its street cars, all of which travel in an easterly direction.-

The testimony of the plaintiff, in many material particulars, was contradictory and irreconcilable as found in this record, as will appear by the following excerpts taken therefrom:

“On the 16th day of October, about 5:30, I was driving up MeDougall avenue, and as we came near the railroad track on Waterloo street, I went slower and put on the brakes, and when the car was within, say 40 feet, I looked up the track, and I saw nothing coming in the way of a street car.
“Q. How far could you see up the track?
“A. About 125 feet.
“Q. Did you hear any noise at that time of the approaching car?
‘■A. No, I heard no noise or bell.
“Q. What did you do then?
“A. I, of course, cut down my speed.
“Q. How fast were you going?
“A. Not more than ten or eleven or.twelve miles.
“Q. At the time you first looked?
“A. Yes. sir.
“Q. What was your rate of speed after that?
“A. I cut my car down probably to seven or eight miles as I approached the track. .
“Q. What did you have, or what did you do in order to do that?
“A. I put my foot on the brake.
“Q. Then what happened; you went along at the same rate of speed?
“A. I looked up and saw.
“Q. How far were you from the tracks when you looked the second time?
“A. I should say I was about 18 or 20 feet; I could not give the exact distance.
“Q. Did you notice the car?
“A. I saw a street car coming then very rapidly.
“Q. What did you notice about the car?
“A. I noticed it was coming very fast and jumped up and down pretty lively, and I saw something had to be done quick.
“Q. Could you have stopped your car?
“A. I could not stop it without getting killed.
“Q. Although going seven or eight miles an hour * * * what did you do ?
“A. I saw there was only one thing to do, turn to the right and go over the street car (track?) or be crushed.
“Q. What was immediately to your right?
“A. A telegraph pole, very large telegraph pole, * * * I had to avoid that.
“Q. Could you tell the court and jury what the distance was between the curb there, and the railroad track at your right?
“A. Ten feet from the curb to the first track — to the first rail. The telegraph pole was right on the corner. I turned with the car, the only thing that any man on earth could do to save himself, and he struck me, as near as I can explain, a sort of quartering near •the hinges, and the car was hit and I was struck on my head with glass.”

Plaintiif then testified that it was necessary to have the machine repaired at an expense of five or six hundred dollars. The bill for repairs was received in evidence, and defendant admitted it was a reasonable charge.

The injury to plaintiff’s person was inconsiderable. On cross-examination the plaintiff testified:

“That electric car has four forward speeds. * * *
“Q. After you had looked the last time, and while approaching the street car track previous to turning, at what speed were you running?
“A. When I started to turn the car, or before I turned it probably not faster than seven miles an hour.
* * $
“Q. So in what distance, under the conditions as they were at that time, to your best judgment, would you have been able to have stopped the car running at a speed of 7 or 8 miles per hour?
“A. Well, it is impossible for me to answer the question only in this way: I use both brakes; I might possibly have been able to stop the car going at that speed in 10 feet or 8 feet.
“Q. Eight feet or ten feet using both brakes?
“A. I don’t know exactly; I don’t know as I could.”

He was then asked if he could have stopped it within 10 feet or 12 feet or 16 feet or 18 feet, and he answered he could not tell.

Cross-examination' continuing:

“Q. The front of, your car was from 18 to 20 feet from the street car track when you saw the car the last time?
“A. When I saw the car the first time; I never saw it but once.
“Q. You saw it only once?
“A. I looked up and saw it when I was forty feet away.
“Q. In the neighborhood of forty feet?
“A. Yes, sir.
_ “Q. When you approached the track when away a distance of 18 or 20 feet away from the car track, you looked again and saw the car approaching again at that time?
“A. Yes, sir. I noticed that the car was approaching very rapidly. I could not give the exact distance it was away when I first saw it; it would be impossible for me to tell you.”

On re-direct examination plaintiff further testified:

“When I got within 18 or 20 feet from the track, I saw this car to my left. It is almost impossible for me to tell positively, whether or not, at the speed I was going, seven or eight miles an hour,. I could stop that car in a distance of 18 or 20 feet, when I first saw the car before reaching the track.”

Edward Voss and Edward Whitstock, two witnesses produced by the plaintiff, were driving another automobile, coming south on McDougall avenue at the time of this accident. They saw the street car coming, and stopped their car on the north side of Waterloo street, to allow the street car to pass. Voss testified, on cross-examination, that he was accustomed to operating electric automobiles:

“I have been at the Anderson electric; that is about the same thing. Four speeds. The same as Woods. I could not tell how weight compares. In size they are about alike, about the same thing. Both have batteries the same.
“Q. In that electric car, an electric car running at the speed of seven or eight miles, an hour, on a good pavement, asphalt pavement or brick pavement, in what distance could it be stopped?
“A. By using all the appliances at seven or eight miles an hour you could stop it in six feet.”

Whitstock testified:

“From where I stood, I thought Mr. Miller wanted to cross the track, but when he saw the street car, he wanted to avoid it, and turned around.- At the time he turned he was getting on the track. The street car was then about 100 feet from him. I heard no gong or bell. * * * That day that [street] car was driving at the rate of between 20 and 25 miles an hour. When I first saw the car, when the car was 100 feet off, I did not notice any checking of the rate of speed of the car. I noticed the car when it came upon Miller. When Miller’s car was struck it was knocked about 40 or 45 feet from where he started to cross the track, down Waterloo street.”

Upon the defense, the conductor and motorman operating the street car, and three disinterested eyewitnesses, all of whom were on the street car, gave testimony tending to show that the street car was being operated at about 12 miles per hour with the power shut off, as it approached the intersection of McDougall avenue; that the automobile came up the street at' the speed of at least 20 miles per hour, and did not change its- speed, but ran directly in front of the street car; and that when the street car was near the west line of McDougall avenue, the automobile was 75 feet south of the street railway track. Several of these witnesses testified to the ringing of the gong by the motorman from the time it was 100 feet away from the corner and his prompt action in attempting to stop the car. Other of defendant’s witnesses on the street car testified that they saw the automobile plainly when it was 30 feet away from Waterloo street. The crossing was considered a dangerous one, because of a building which stood near the southwest corner of the intersection. There was a conflict in the evidence as to the distance the street car ran before stopping after the collision, varying in distance from 5 to 40 feet.

Defendant requested the court to charge the jury that the plaintiff was guilty of contributory negligence and could not recover. This was refused, and the questions of the negligence of the defendant, and the contributory negligence of the plaintiff were submitted to the jury.

There was a motion for a new trial based upon several grounds, among which was this, that the verdict was contrary to the weight of the evidence. This motion was denied and exceptions were duly entered.

In this court the defendant, under proper assignments of error, claimed that a verdict should have been directed in its favor, under the testimony, on the ground of contributory negligence of the plaintiff; that no negligence on the part of the defendant was shown; and that the verdict of the jury was, in any event, contrary to the weight of evidence.

In our opinion the uncontradicted testimony shows that the plaintiff was guilty of contributory negligence as matter of law. His own testimony was so contradictory, and irreconcilable, that it furnishes but little aid in disposing of the case. While in his declaration he claimed that when he slackened the speed of his automobile at a distance of about 25 feet from the track, he looked and saw a car coming at a “terrific speed”; at the trial he testified first, that when he was 40 feet from the track he saw no street car coming, that he then proceeded until he was about 18 or 20 feet from the track, and at that point saw the car coming rapidly. On cross-examination he distinctly testified that “I looked up and saw it when I was 40 feet away.” After testifying that he could probably have stopped the automobile in “10 feet or 8 feet,” he then gets into “doubting castle,” and does not know as he could have stopped it in 18 feet.

We are satisfied from the evidence that the car could have been stopped in from 6 to 10 feet, in the exercise of reasonable care. He testified that the car was in perfect condition, and he was accustomed to running it. The following cases, with others, are cited by appellant upon this branch of the case: Colborne v. Railway, 177 Mich. 139, 150, and .cases cited; Borschall v. Railway, 115 Mich. 473. As was said in the last cited case:

“If he saw the car coming, and then attempted to cross the track, he took, his chances of being injured and cannot complain.”

We are also of the opinion that the verdict was contrary to the great weight of the evidence.

For these reasons the judgment of the circuit court is reversed, with costs to the appellant, and no new trial will be granted.

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

Moore, J.

I concur because the verdict is against the weight of the evidence.

Bird, J., concurred with Moore, J. Kuhn, J., did not sit.


text:
    ENGEL v. SMITH.
    Process — Service—Joint Defendants — Nonresidents — Proof as Service — Jurisdiction.
    Where #uit was commenced in plaintiffs home county against joint defendants residing in another county, and service of process was had on one of the defendants in plaintiff’s home county, but no proof of service of the writ on the home defendant was made and filed with the county clerk before service was had upon the other defendants in another county, the practice was not in conformity with chapter 13, § 27, subd. 4, of the judicature act (3 Comp. Laws 1915, § 12430) and Circuit Court Rule No. 18, § 1, and therefore the court did not obtain jurisdiction, and any judgment rendered therein was void.
    Case-made from Kent; Barton, J., presiding.
    Submitted January 15, 1918.
    (Docket No. 74.)
    Decided March 27, 1918.
    Replevin by Gust Engel and another against William L. Smith for the possession of an automobile. Judgment for plaintiff. Defendant appeals.
    Affirmed.

      E. J. Bowman, for appellant.

      Smedley & Linsey, for appellee.
   Stone, J.

This is an action of replevin commenced in the Kent circuit to recover possession of one Saxon six-cylinder automobile which had been levied upon by the defendant, a deputy sheriff, of Kent county, by virtue of an execution issued out of the circuit court for the county of Montcalm upon a judgment in an-action of assumpsit wherein William H. Browne was plaintiff, and the Haynes Company of Grand Rapids, formerly Grand Rapids Saxon Company, Gust Engel, Aaron L. Mann and Junietta Mann were defendants.

The facts are not in dispute. The case is here upon a case-made after judgment for the plaintiffs, and the questions involved relate to the jurisdiction of the circuit court for the county of Montcalm to enter the judgment in the action of assumpsit.

Upon the trial of the instant case the plaintiffs introduced evidence tending to show that the automobile, which was the subject of replevin, was their joint property.

Defendant introduced evidence tending to show that he was a deputy sheriff of the county of Kent and that he came into possession of said automobile by virtue of-a levy of execution issued out of the circuit court for the county of Montcalm in said assumpsit suit. The files in the Montcalm county circuit court case, consisting of the original summons, with certificate of service indorsed thereon, declaration in assumpsit, affidavit of nonappearance of all defendants, default, and judgment against all four defendants therein, for the sum of $496.50 were introduced in evidence. The summons was the ordinary law summons for the commencement of suit, and when returned and filed carried indorsements showing service on the president of the Haynes Company of Grand Rapids in the county of Montcalm by a Montcalm county deputy sheriff on November 16,1916, and service upon the remainder of the defendants in the county of Kent by the sheriff of Kent county on the 23d and 24th days of November, Í916.

The summons with return of service, the affidavit of non-appearance, and the default in the Montcalm circuit case, were all filed on December 16, 1916, and judgment was rendered on January 2,1917;

The copy of the summons served upon the defendants in Kent county contained nothing to notify the nonresident defendants that service had been made on any defendant in Montcalm county, and nothing appeared in the clerk’s office to show that service had been made, until December 16, 1916.

The plaintiff in the Montcalm circuit case was a resident of Montcalm county, and all four defendants therein were residents of Kent county, and the Haynes Company of Grand Rapids is and was a domestic corporation with its principal office at the city,of Grand Rapids, in said county of Kent. These facts appearing upon the trial of the instant case, upon motion of counsel for plaintiffs, the court directed a verdict and judgment for plaintiffs, holding that the Montcalm circuit court judgment was void for want of jurisdiction for the reasons, viz.:

(1) The sheriff’s return of Montcalm county shows that the service was made upon the president of the Haynes Company of Grand Rapids, a corporation with principal office in Grand Rapids, which did not give the court jurisdiction because the corporation should be served in its own county.

(2) Because the sheriff’s return of service had upon one of the defendants in Montcalm county was not filed with the county clerk until the 16th day of December, 1916, at the same time that the return of the sheriff for the county of Kent was filed, showing the service on the defendants residing in Kent county, and that the original summons with the return of both sheriffs indorsed thereon, was not filed with the county, clerk of Montcalm county until the 16th day of December, 1916, and for that reason did not give the court jurisdiction to render a judgment against the defendants served in Kent county.

The second ground of the holding by the trial court was because the copy of the summons served upon the defendants in Kent county contained nothing to notify those defendants that service had been made on any defendant in Montcalm county, and nothing appeared in the clerk’s office in Montcalm county to show that service had been made until December 16, 1916. Defendant assigns error upon these rulings.

Subdivision 4 of § 27 of chapter 13 of the judicature act (3 Comp. Laws 1915, § 12430) contains the following language:

"When a personal transitory action at law is commenced in the county where the plaintiff resides, against a defendant or defendants residing without the county, service of process must be had in the county where the suit is commenced. If such service is had upon one defendant within such county, the remainder of the defendants may be served anywhere in the State.”

Referring to the second ground of the objection, the trial court seems to have held that the amendment of the statute has not made any radical change as to service upon joint defendants, and provides such a service as was contemplated prior to the time of such amendment of the former statute. (3 Comp. Laws § 10010, as amended.)

It is conceded that the plaintiff Engel (one of the defendants in the assumpsit suit) had no notice by proof of service on file in the clerk’s office or otherwise, that any defendant had been served in Montcalm county, and he had a right to believe that he was not subject to the jurisdiction of the Montcalm circuit court. In this ruling we think the trial court was correct. There is no question as to the rule of practice established by this court under the former statute. 2 Stevens Michigan Practice, p. 193; Denison v. Smith, 33 Mich. 155; Clark v. Lichtenberg, 33 Mich. 307; Baxter v. Kent Circuit Judge, 92 Mich. 291; Allison v. Washtenaw Circuit Judge, 104 Mich. 141, 146.

In the last cited case this court said:

“The rule is expressly stated that proof of service must be made before service can be had in another county. This rule was followed in Clark v. Lichtenberg, 33 Mich. 307. There was no proof of service on the defendants in Washtenaw county on file when the declaration was served on relator in Wayne county. The statute contemplates this as a condition precedent to service being made out of the county on another defendant. It was not cured by a return afterwards made showing actual service in Washtenaw county before the relator was served. * * * Evidence must exist in the clerk’s office of the due personal service in the county where the suit is commenced before any other party can be served in another county.”

See, also, Hakes v. Macklin, 170 Mich. 228, 231.

While the language of the statute has been somewhat changed by the amendment, we are satisfied that the practice should be held to remain substantially as formerly. Under our present rules the summons, instead of being directed to the sheriff, is directed to the defendants. Section 1 of Circuit Court Rule No. 18 contains the following language:

“If there be more than one defendant, the proof of service shall, at the request of the plaintiff, be made immediately after service on each defendant, and in such case the proof of service may be indorsed upon or attached to a copy of the writ, and the original retained until the return day for service on the other defendants,”

We have no doubt that the correct practice under the amended statute and rule, makes it necessary to file proof of service of the writ upon the home defendant, in the office of the clerk of that court, before the original writ is sent into and served in another county, and that this practice is contemplated by the'rule above referred to. There was no necessity for the issuing of an alias summons, but proof of service by the sheriff of Montcalm county should have been filed with the clerk of that court in the manner pointed out by the rule, before the summons was served upon the defendants in the county of Kent.

This conclusion being decisive of the case, renders it unnecessary to consider the other point presented. We are satisfied that the trial court did not err in holding that the circuit court for Montcalm county never obtained'jurisdiction over the defendant Engel in that suit; and that the judgment as to him was void.

The judgment of the circuit court therefore is affirmed.

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