text:
    WILLIAMS v. FLINT & PERE MARQUETTE RAILROAD CO.
    1. Railroads — Abandonment of Track — Claims of Contributors — Statutes.
    Prior to the passage of Act No. 135, Pub. Acts 1891, those who contributed to the construction of a railroad had no right of action against the company for abandoning and taking up its track. That act makes the taking up of the track unlawful, unless by virtue of proceedings in court, where decree is to be granted only upon condition that the company pay back all moneys received as a bonus. It is further provided that no decree or order for a proposed abandonment shall take effébt, or be of any force, until all awards of contributors be first legally and fully settled and paid. The act designates no method for ascertaining who are claimants, or for bringing them before the court if they do not voluntarily appear. Held, that the act does not give to contributors a right to have their claims heard and allowed at anytime, but conteníX>lates an expeditious adjudication of their rights in the proceeding instituted by the company for leave to take up its track.
    3. Same — Waiver.
    Where, therefore,' after apxilication made by the company for leave to abandon, a contributor files a petition, ux>on behalf of himself and such others as may choose to avail themselves of the proceeding, for the appointment of a time and place at which all parties who have contributed to the road may be notified to appear and xirove the amount of their several contributions, and an order is entered thereon that all contributors shall prove their claims before a commissioner upon a certain day, which order is published, as directed by the court, in a county paper, contributors who fail to appear and make proof of their claims will be deemed to have waived their right to reimbursement.
    8. Same — Notice—Substituted Service.
    Substituted service %f a notice to contributors to the construction of a railroad to appear and submit their claims on abandonment of the road under Act No. 135, Pub. Acts 1891, is permissible.

      4. Same.
    The fact that an. order for the presentation of claims for contributions against a railroad company which has filed its petition under Act No. 125, Pub. Acts 1891, for permission to abandon its tracks, is issued at the instance of a contributor instead of at the instance of the company, does not render it the less binding upon contributors who fail to comply with its provisions.
    Appeal from St. Clair; Eldredge, J., presiding.
    Submitted February 5, 1898.
    Decided March 22, 1898.
    In the matter of the application of the Flint & Pere Marquette Eailroad Company to abandon and take up its track between Yale and Zion stations, and to abandon the intermediate stations of Fargo and Hartsuff: Petition of William Williams and others for a refunding of contributions. From a decree dismissing the petition, petitioners appeal.
    Affirmed.

      N. E. Thomas (H. W. Stevens and J. A. Rapley, of counsel), for petitioners.

      Benton Hanchett, for defendant:
    Personal service is not required where the object of the suit or proceedings is to furnish opportunity to parties to assert and prove claims which they may have against other parties, or against the property of other parties. United States Trust Co. v. United States Fire Ins. Co., 18 N. Y. 199, 214; Happy v. Mosher, 48 N. Y. 313; Mason v. Messenger, 17 Iowa, 261, 266; Hahn v. Kelly, 34 Cal. 391, 417; Bickerdike v. Allen, 157 Ill. 95; Board of Directors v. Collins, 46 Neb. 411; Bardwell v. Collins, 44 Minn. 97, 101; Town of Hinckley v. Railroad Co., 70 Minn. 105; Nations v. Johnson, 24 How. 195, 205; Pennoyer v. Neff, 95 U. S. 714, 727; Arndt v. Griggs, 134 U. S. 316, 320; Lent v. Tillson, 140 U. S. 316, 327; Hamilton v. Brown, 161 U. S. 256, 268, 275.
   Hooker, J.

In the year 1890, the Flint & Pere Marquette Eailroad Company filed its petition, under Act No. 275 of the Public Acts of 1887, for an order permitting it to abandon and take up that portion of its track between the stations of Yale and Zion. Notice of the proceedings was published, and a contest made, and upon the hearing the circuit court dismissed the petition. Upon review in this court, by an opinion filed in 1892, the decree of the circuit court was reversed, and the cause remanded for further proceedings. See Flint, etc., R. Co. v. Rich, 91 Mich. 293. Meantime the statute was amended by Act No. 125 of the Public Acts of 1891. This act made the repayment of bonuses to those from whom they had been received, etc., a condition of such decree. After the cause was remanded to the circuit court, one Charles Eves filed a petition upon behalf of himself and such others as might choose to avail themselves of the proceedings, asking that the circuit court “appoint a time and place at which all parties who have so contributed to said road may be notified to appear and prove the amount of their several contributions, and that this court may direct in what manner such notice to such contributors shall be given.” This was contested by the railroad company, but the court made an order as prayed, said order containing, among others, the provision:

That all parties having claims against said railroad for contributions given in aid of the construction of said road, as aforesaid, shall file said claims in ivriting in the office of the clerk of the circuit court for the county of St. Clair on or before the 1st day of September, 1892j that the railroad company shall, on or before the 10th day of September, 1892, file in writing in said clerk’s office a notice of contest and of objections to all such claims as the railroad company intends to contest; that the claims be referred to Dennis P. Sullivan, a commissioner of said court, to take proofs thereon, and report said proofs, with his opinion, to the court.
“ It is further ordered that all parties presenting or representing said claims be notified, by publication as hereinafter provided, to appear at the office of said commissioner in the city of Port Huron, in said county, on Monday, the 26th day of September, 1892, at 10 o’clock in the forenoon of said day, for the purpose of proving the amount of their said claims, and that said proofs be heard, taken, and continued from day to day by said commissioner in behalf of each party until all of said proofs are taken on behalf of said claims, and in opposition thereto.
“It is further ordered that a copy of this order be printed once in each week for three weeks in succession, before the time appointed for filing said claims, in the Sunday Herald, a newspaper printed, published, and circulating in said county, the first publication to be on or before the 6th day of August, 1892; and that a copy of this order be served upon William L. Webber and upon Messrs. Atkinson & Wolcott, solicitors for said railroad company, Within 10 days from the date hereof.”

The publication of the order mentioned was followed by the presentation of several claims, some of which were ultimately allowed and others disallowed, by a decree dated May ?, 1894, on which day a decree was also entered granting the prayer of the railroad company as to the abandonment of the road in controversy. In this decree it was adjudged that “all persons who did not so file their claims, and all who failed to appear and make proof of their claims pending the proceedings before said commissioner, pursuant to the order of this court of the 25th day of July, 1892, must be deemed to have waived their right to be reimbursed their contributions.” This proceeding was reviewed by this court upon appeals taken by the railroad company and persons whose claims were not allowed, and the decree was affirmed (In re Flint, etc., R. Co., 105 Mich. 289), except as to the appealing claimants, who had contributed to the portion of the road abandoned, whose claims were allowed by this court. Thereupon the claims allowed were paid by the company. Subsequently this petition was filed in the cause, and by it other persons who claim to have contributed to the building of some portion of the defendant’s road ask to be reimbursed under this statute of 1891, claiming that they were not before the court, and that their rights under the statute have not been divested.

Previous to the act of 1891, those who contributed to the construction of a railroad, had no right of action against the railroad company for abandoning and taking up its track. See Ayres v. Dutton, 87 Mich. 528 (13 L. R. A. 698). That act made the taking up of the track by a railroad company unlawful, unless by virtue of proceedings in a court of justice, which was given authority to grant a decree permitting it. It was provided, however, by section 1 of the act, that no such decree should be made “except upon condition that such company first pay back to each individual, private or public corporation, or to the heirs, executors, administrators, successors, or assigns of such, all moneys received by such railroad company from such individual or corporation as a bonus,” etc. The second section provides that “no decree or or. der for a proposed abandonment shall take effect, or be of any force, until all awards of such contributors be first legally and fully settled and paid.” Under these provisions, according to the letter of the statute, the company has no right to abandon its road without first paying the claims allowed. It designates no method for ascertaining who are claimants, or bringing them before the court if they do not appear voluntarily, unless it is to be inferred that the proceeding is to follow the general rule of chancery practice. It is contended by the petitioners that this act gives them rights of action against the company of which they cannot be deprived except by due process of law, and that the court acquired no jurisdiction over them through the publication of the order mentioned, and that •they were entitled to have their claims heard and allowed whenever they should see fit to move the court therefor.

It seems to us that all the rights to redress by reimbursement which the petitioners have in this proceeding are derived from the statute, and must be obtained in the proceeding instituted by the railroad company for the purpose of obtaining a decree to take up a nortion of its track. We have seen that its decree cannot become operative until all awards are paid, and a law-abiding railroad company may be expected to make such payment before abandoning its road. Again, there is no express provision in the act compelling such payment if, after' ascertaining the amount awarded, the company shall elect not to abandon its track; and it is possible that it has a right to elect not to do so. Unless there is some way by which the company can compel the expeditious adjudication of outstanding claims of this nature, and if, as counsel’s contention implies, every contributor to any portion of the road may take his own time to appear and submit his claim unless brought in by personal service of process, it might be a long time before a decree would become operative if taken, or the railroad company could safely determine whether or not it could afford to take up its track to any portion, though it be insignificant.

We are of the opinion that a fair construction of this act is that the legislature intended to provide a procedure through which the railroad might safely abandon and take up portions of its tracks when its interests require it, and those of the State permit, and at the same time, and in the same proceeding, permit the contributors — to such portion of the road, at least — to obtain reimbursement. It is not to be supposed that such persons can be cut off without an opportunity to be heard as to their claims, and we must, therefore, consider the question of the sufficiency of the notice given. As a general rule, personal notice is requisite to a personal judgment. There are many cases, however, where this is impracticable, and substituted service is a common thing, even where judgment is sought to bind the property of another, provided such property is within the jurisdiction of the court. In a large class of cases it is also common practice to resort to a substituted service to compel the assertion and prosecution of claims. This course is especially adapted to and adopted in cases where the proceeding is instituted to ascertain the rights of those upon whose behalf the proceeding is instituted in specific property by proceedings in rem, or in the nature of proceedings in rem. Such, as counsel suggest, are attachments, the administration of estates, claims against ships and against the levy and collection of taxes, the impounding of animals, and proceedings in bankruptcy. Especially is this true where it is impossible or difficult to ascertain with certainty the ownership of claims or interests in the property. Numerous authorities supporting this rule will be found in the briefs of counsel. Happy v. Mosher, 48 N. Y. 313; Mason v. Messenger, 17 Iowa, 261. This is a case of that kind. It has for its object the ascertainment of the rights of parties in the piece of railroad in question. There can be no presumption that the railroad company would know, or could readily ascertain, the ownership of the claims, or whether the owners were within the jurisdiction of the court. It seems to us closely analogous to the settlement of an estate, where those having claims must present the same seasonably for adjudication, or be forever barred, and publication is the only notice to which they are by law entitled.

It is contended that this notice was not given or order made at the instance of the railroad company, being made upon the petition of Eves, a claimant; but we think that is immaterial. The court, by its decree, provided for notice, and that notice was given. Some availed themselves of it. These claimants did not, though counsel asserts — and we do not discover a denial — that it is not shown that they had not knowledge of the notice and pendency of the proceedings in time to have seasonably filed their claims; a fact that is perhaps unimportant, except as it goes to the question of an intentional waiver.

We consider a discussion of other questions unnecessary. The decree dismissing the petition is affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, C. J.

license: Public Domain

text:
    LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO. v. BRANCH CIRCUIT JUDGE.
    Mandamus — Bill of Exceptions — Settlement.

      Mandarrms will not issue to compel the circuit judge to settle a bill of exceptions after the expiration of the time provided for by Circuit Court Rule No. 47, in the absence of a stipulation extending the time.

      Mandamus by the Lake Shore & Michigan Southern Railway Company to compel George L. Yaple, circuit judge of Branch county, to settle a bill of exceptions.
    Submitted March 1, 1898.
    Writ denied March 22, 1898.
    On March 19, 1897, verdict and judgment were entered against the relator. On March 20th an ex parte order was made granting relator until July 1st to settle a bill of exceptions. On June 26th relator entered a motion for a new trial, which was denied September 7th. On July 1st, September 9th, and October 4th ex parte orders were made extending the time to settle the bill, the last order ■extending it to November 1st. On September 9th a copy of the proposed bill was served upon the plaintiff’s attorneys. On October 6th proposed amendments were served. During October and November several letters passed between the respective parties in Tegard to the matter. On October 25th the attorneys for plaintiff wrote the attorney for the relator, stating that they had heard nothing from the proposed amendments, and they were anxious to get the .case settled and heard at the next term of court, and said, “We shall feel like opposing any extension of time whereby the settlement is to be delayed.” On November 23d one of the attorneys for plaintiff wrote relator’s attorney, refusing to take any further steps towards settling fhe bill of exceptions. On December 2d notice was given to settle the bill before the respondent on December 6th. December 13th relator made a special motion to extend the time to settle the bill. This was heard December 20th and denied January 31st. The relator now asks for the writ of mandamus to compel respondent to settle the bill.

      C. JB. Weaver, for relator.

      Lockerby & Lockerby and Campbell & Johnson, for respondent.
   Grant, C. J.

(after stating the facts). Cir. Ct. Rule 47 gives a party absolutely 20 days in which to settle a bill of exceptions, and the right to further time, not exceeding 60 days; but no further time shall be granted except for good cause shown by affidavit on special motion after notice, or on the written stipulation of the parties. There was no written stipulation, and the circuit judge, who had all the facts before him, refused to settle the bill. The correspondence did not amount to a stipulation extending the time, and there was no order made by the court extending the time after November 1st. We cannot set aside the ruling of the circuit judge without virtually abrogating Rule 47.

The writ is denied.

The other Justices concurred.


author: Long, J.

text:
    GRISWOLD v. CITY OF LUDINGTON.
    1. Municipal Corporations —Claim for Personal Injuries — Yerifioation.
    Although, a statement of claim for personal injuries against a city of the fourth class is duly filed within 60 days after the injury occurs, as required by section 1 of chapter 32 of the general charter (Act No. 215, Pub. Acts 1895), the city cannot be held liable therefor where claimant fails to verify the same, or to have it certified by an officer of the city, as required by section 20 of chapter 8, which provides for the certification or verification of claims, and makes it a sufficient defense to any action for the collection of any demand or claim against a city, “for personal injuries or otherwise,” that it has never been certified or verified as therein provided.
    2. Same.
    The certificate or affidavit, by the terms of section 20 of chapter 8, must “accompany” the statement of the claim or account; and therefore the filing of a separate verification after the expiration of the 60 days does not meet the requirements of the statute.
    3. Same — Waiver—Evidence.
    But the failure to verify is a defect which may be waived by the common council; and evidence that it received an unverified claim without objection, and kept the same under advisement, carrying on negotiations with claimant, until after the time for filing a verified claim had elapsed, tends to show such a waiver.
    4. Same — Defective Sidewalks — Absence of Light.
    A declaration Averring that the defendant city permitted a dangerous hole to exist in a sidewalk, and that, the walk being unlighted, plaintiff was injured, states a cause of action.
    Error to Mason; McMahon, J.
    Submitted January 5, 1898.
    Decided March 29, 1898.

      Case by A. Linley Griswold against the city of Ludington for personal injuries. From a judgment for defendant on verdict directed by tbe court, plaintiff brings error.
    Reversed.

      Culcheon & Sivarthout (A. A. Reiser, of counsel), for appellant.

      H. G-. Reek (77. N. Fitch, of counsel), for appellee.
   Long, J.

This suit is brought to recover for personal injuries claimed to have been received by plaintiff from falling through a hole in a sidewalk 'in the city of Ludington, October 19, 1896. Defendant is a city of the fourth class.

The declaration contains four counts. The first alleges the injuries to plaintiff from falling through an open hole in the sidewalk, about eight inches by four feet in dimensions, at a point where the sidewalk was raised four feet above the level of the ground, and- supported upon posts and blocks, in the manner of a bridge or trestle. The second count, while embracing all the substance of the first, relies especially upon the defective construction of the walk, it being raised about four feet above the ground,in the manner of a bridge or trestle, and having no supports between the stringers, which were four feet apart, and being constructed of improper, unsound, and weak material. The third count is upon a weak, defective, and broken plank in the sidewalk, and does not differ materially from the first, count. The fourth count embraces all the features of the first and second as to the existence of the hole, and the construction and defective condition of the walk, and then alleges that:

‘ ‘ Also, in view of the peculiar construction of the said sidewalk, so raised above the ground in the manner of a bridge or trestle, and of the manner in which it was supported upon posts and blocks, and of the fact that the said sidewalk was constructed in a negligent and careless manner, and of unsound, inferior, and improper materials, and in view of the danger to persons passing over the same, and that the said sidewalk had become old, decayed, and weakened, and that some of the planks in said sidewalk had become loosened, weak, and dangerous, especially at night, when it was impossible to see or to avoid holes and defective places or weak or loosened planks in said sidewalk, it became and was the duty of the said defendant to cause the said street and the said sidewalk to be suitably lighted by night, especially in the early hours of the evening, when said street and sidewalk was frequented by many persons going to the railroad station to take the outgoing trains'; and plaintiff avers that the said sidewalk was not in a condition reasonably safe and fit for public travel without being lighted; but that defendant, well knowing the dangerous and unfit condition of the said sidewalk, negligently and wrongfully turned off the lights upon said street and sidewalk, so as to leave the same in darkness, and render it impossible for passers to perceive and avoid the dangerous places therein.”

To this declaration defendant demurred. Upon the hearing, the court sustained the declaration as to the first three counts, and sustained the demurrer to the fourth, holding that it stated no cause of action. The defendant demanded a bill of particulars of the plaintiff’s claim, which plaintiff furnished. Defendant thereupon pleaded the general issue, and gave notice of special matter of defense, under the charter, that plaintiff’s claim had not been presented to the common council of said city, verified or certified as required by the charter.

The cause came on to be heard before a jury on June 29, 1897. Plaintiff introduced testimony tending to show the defective condition of the sidewalk, the existence of a hole at the place averred, and of the dimensions claimed; that the hole had existed there in the same condition for about four months, and had been observed by various witnesses in July, August, September, and October, 1896. Plaintiff testified that upon the 19th day of October, 1896, in the evening, it being very dark and stormy, and slush covering the sidewalk, while going to the railroad station, he suddenly and unavoidably fell into said hole; that he went down the entire length of his leg, causing severe injuries, etc.; that on December 17th he served upon the city clerk a notice in writing as follows:

“The Common Council of the City of Ludington, Mich.
Gentlemen: You are hereby notified that on the 19th day of October, 1896, at about the hour of 7 o’clock in the evening, I was seriously and permanently injured and disabled by falling into and through a hole or opening in the sidewalk on the south side of Foster street, near the intersection of Charles street, in the said city of Ludington, at a point in front of the building owned by August Tiedemann and William C. Ungers, and about 43 feet west of the point where the south line of Foster street intersects with the west line of Charles street; that said injury and disability were caused by a defect in the sidewalk on said street, at the point designated, produced by a broken plank; that the manner of said injury was as follows: I was passing along said street, upon said sidewalk, with all due care and caution, and without any negligence on my part, the night being very dark and stormy, and I being almost a stranger in the city, and, without any fault on my part, I unavoidably stepped with my right foot into said opening or hole in the sidewalk, and fell heavily upon and along the said sidewalk; and, the sidewalk at the point aforesaid being raised considerably above the natural surface of the ground, my foot went down the entire length of my right leg, and, the sidewalk being wet and slippery, my left foot slipped and slid upon the sidewalk, so that I fell with my whole weight upon the parts of my body between the legs, very greatly bruising and injuring the testicles, scrotum, spermatic cord, and the parts adjacent to the rectum, and also greatly bruising, straining, and contusing the hips and the lower parts of the spine. The injury to the genital and urinary organs was such that I have been subject to great pain and distress ever since, and have been unable to stand upon my feet without supporting the said parts by means of a suspensory bandage; and the muscles, nerves, and ligaments of the rectum were so bruised, strained, and injured that it has been difficult, and at times impossible, to control the action of the bowels; and the hips and spine have been so strained, shocked, bruised, and contused that, in consequence of the said various injuries, I was confined to my bed, and under the charge and care of physicians, for a period of three weeks, and am still able to walk only with difficulty and much pain, and by the aid of crutches.
“There were no other witnesses present at the time of said injuries.
“By reason of said injuries so received through the said defective sidewalk, I have been put to great cost and expense for doctor’s bills, for nurses and attendance, for medicine and suspensory bandages, crutches, and other appliances, and for other large outlays; and have been disabled from performing my professional work as a minister of the gospel at the village of Custer, where I reside; and have been caused to suffer very great pain and distress of body, and also great pain, anxiety, and distress of mind, and have been permanently and seriously injured and disabled thereby; on account of all which injuries, bruises, wounds, and disabilities, costs, expenses, charges, loss of time and services, pains, sufferings, and permanent injuries, I claim damage from the said city of Ludington to the amount of $5,000.
“You are further notified that I have appointed Messrs. Cutcheon & Swarthout, 831 Michigan Trust Company Building, Grand Rapids, Mich., to represent me and to act for me as my attorneys in all matters pertaining to this claim.
“ Yery respectfully,
“A. Linley Griswold.
“Dated December 17, 1896.”

Plaintiff was then asked by his counsel to state what further was done between himself and the council of the city after this notice was served, and answered, “There was a conference had between a council committee and myself.” He was then asked, “Who were present?” and stated that he could not name all the members of the committee. The inquiry was objected to and sustained, the court stating that there was no showing that any committee was authorized by the common council to treat with the plaintiff; that the showing was that some people met whose names could not be specified, and assumed to act as such committee. No further proof was then offered upon that point, and no showing made that this committee was authorized by the common council to act, or who composed the committee. Plaintiff then introduced a letter from the city clerk to his attorneys, dated January ¿0, 1897, as follows:

Gentlemen: At a meeting of the common council
held Monday evening last I was instructed to notify you, as attorneys for Rev. Griswold, that no damages would be offered him for the alleged injuries received last October. Yours very truly,
“U. S. Grant, City Clerk.” '

Plaintiff then offered in evidence the record of the common council, which read:

“ On motion of Alderman Smith, the city clerk was instructed to notify the attorneys of Rev. Griswold that no damages would be offered him for alleged injuries incurred on October last.”

Plaintiff then gave evidence of the extent of his injuries, the employment of a physician, etc. Plaintiff was then asked “ whether, at your interview on that day with the mayor of the city, or with the clerk of the city, or with the supposed committee that you had the conference with, or with anybody else connected with the defendant city, any objection was made upon the ground that your claim had not been sworn to.” This was objected to, and the objection sustained. Plaintiff was then asked ‘ ‘ whether or not at any time since, by the city attorney or by any official connected with the city, any objection has, until the plea was filed, ever come to you in any way in regard to your claim not being sworn to or otherwise,” and answered, “Never.”

Mr. O. J. Wangen, a member of the city council, was called, and testified that he knew of the claim being filed by the plaintiff, and was asked:

“ Were you present at the council ipeeting on the night of December 7th last ?
Counsel for defendant: Do you propose to prove what occurred at the council meeting by oral testimony, independent of the record ?
“Counsel for plaintiff: I propose to prove something that took place in connection with the council meeting.
“The Court: Do you propose to prove an action by the council?
Counsel for plaintiff: Not a formal action. We want- to show that there was a meeting of the common council; that this claim was then presented to the council; and that, in order to avoid the taking of a formal action, after the council had formally adjourned they were requested by the mayor to remain, and did all remain, and that this matter was brought up, and a committee was appointed, and that Mr. Wangen was on that committee, and chairman of it, to consider the claim of Mr. Griswold, and that they did consider it, and that that committee met with the counsel and Mr. Griswold, and that this matter was gone into, and that, in consequence of this conference on the night of the 8th of December, that letter which has been once offered in evidence was written by Mr. Smith.
Counsel for defendant: The record of that meeting is here. If it was an informal meeting, we have nothing to do with it.
Counsel for plaintiff: It was the council; and that this proceeding was taken in this matter for the express purpose of keeping it off the records. Our impression is that this whole matter is a deliberate plan to defeat the putting of this claim upon the record.
The Court: Can you prove that ?
Counsel for plaintiff: That is what we want to prove.
Counsel for plaintiff: I will ask you whether you were present at that, meeting of December 8th last ?
(‘A. I was, if the record shows that. I don’t remember the date.
Q. December 7th, it appears to be here.
“A. Yes, sir; I was present at that meeting if my name is on there.
“ Q. What was done at the close of the council meeting in regard to the council remaining ?
Counsel for defendant: I object to that for the reason that, after the council closed a session, whatever was done afterwards was done as citizens, and not as representatives of the city, and could not bind them.
“The Court: As preliminary, I will receive it, and note.an exception.
“A. Well I don’t remember what was done in particular, who called the meeting, or anything of that kind. I don’t remember anybody in particular calling the meeting.
Q. I refer to the time when Mr. Griswold’s claim was brought up and talked over. Do you remember that occasion when a committee was appointed, of which you were a member, to confer with Mr. Griswold’s attorney?
A. There was no committee appointed during the session of the council, to my memory.
“ Q. But was there an informal committee appointed?
Counsel for defendant: We object to that.
“The Court: I sustain the objection. I think, without any showing of fraud or anything else, you must take the action of the council at its public meeting, lield according to the charter, as a body.
Counsel for plaintiff: Note an exception.”
Witness further testified that this informal committee never reported to the council, to his knowledge.
Dr. McConnell testified in behalf of plaintiff that he went voluntarily before the council, and made a statement of plaintiff’s claim. The following letter was also put in evidence:
“Grand Rapids, Mich., March 10, 1897 “U. S. Grant, Esq., City Clerk,
“Ludington, Mich.
“Dear Sir: We hand you herewith verification on oath of the claim of A. Linley Griswold against the city of Ludington for injuries received by him through defective sidewalk in said city, and for which his claim was duly filed with you on the 17th day of December last; also sworn statement of the items of his claim, and the particulars of his injuries, so far as it is possible for him to itemize the same. You will please file these papers with his claim formerly filed, as hereinbefore stated, and return to us the inclosed receipt for the same. We are,
“Yours truly,
“CUTCHEON & SWARTHOUT, “Attorneys for said Griswold.”

Plaintiff also put in evidence an affidavit made by him on March 4,1897, setting forth that on December 17,1896, he served on the mayor of the city of Ludington, and upon the clerk, his claim in writing for damages, and that attached thereto was a true copy of his claim in writing. The affidavit then recites:

‘ ‘ All the allegations set forth in said claim as to his said injuries through said defective sidewalk, and as to the time, place, and manner of his injuries, and as to the extent of his said injuries, are true in manner and form as therein set forth.”

It appears that this affidavit, with a copy of his former claim in writing, was served on the city some time in March, 1897.

The defendant thereupon moved the court that the verdict be directed for the defendant, and it was so directed. The court was of the opinion that no such certified or verified statement had been served upon the defendant as entitled the plaintiff to maintain his action.

The claims made by the plaintiff are:

1. That the claim presented to the common council substantially complied with the statute, (a) in that claims for personal injuries are not required by the charter to be verified; (b) in that the time when it must be verified is not fixed by the charter, and the verification in March, 1897, was sufficient.
2. That there was some evidence to go to the jury tending to show a waiver by the council of the fact that the claim was not sufficiently verified or certified.
3. That the court erred in holding that the fourth count of the declaration did not state a cause of action.

The defendant city is operating under the general charter of fourth-class cities, being Act No. 215, Pub. Acts 1895. There are two sections in said charter which are claimed to be applicable to this case. The first is section 1, chap. 22, which is as follows:

“The council shall have supervision and control of all public highways, bridges, streets, avenues, alleys, sidewalks, and public grounds within the city, and shall cause the same to be kept in repair and free from, nuisance. No city subject to the provisions of this act shall be liable in damages sustained by any person in such city, either to his person or property, by reason of any defective street, sidewalk, cross-walk, or public highway, or by reason of any obstruction, ice, snow, or other incumbrance upon such street, sidewalk, cross-walk, or public highway, situated in such city, unless such person shall serve or cause to be served, within sixty days after such injury shall have occurred, a notice in writing upon the clerk or the deputy clerk of such city, which notice shall set forth substantially the time when and place where such injury took place, the manner in which it occurred, and the extent of such injury, as far as the same has become known, and that the person receiving such injury intends to hold such city liable for such damages as may have been sustained by him.”

Section 20, chap. 8, is as follows:

“ The council shall audit and allow all accounts chargeable against the city; but no account or claim or contract shall be received for audit or allowance unless it shall be accompanied with a certificate of an officer of the corporation, or an affidavit of the person rendering it, to the effect that he verily believes that the services therein charged have been actually performed or the property delivered for the city, that the sums charged therefor are reasonable and just, and that, to the best of his knowledge and belief, no set-off exists nor payment has been made on account thereof, except such as are indorsed or referred to in such account or claim; and every such account shall exhibit in detail all the items making up the amount claimed, and the true date of each.”

The remaining clauses of section 20 are as follows:

‘ ‘ It shall be a sufficient defense in any court to any action or proceeding for the collection of any demand or claim against the city, for personal injuries or. otherwise, that it has never been presented, certified to or verified as aforesaid, to the council for allowance; or, if such claim is founded on contract, that the same was presented without the affidavit or certificate as aforesaid, and rejected for that reason; or that the action or proceeding was brought before the council had a reasonable time to investigate and pass upon it.”

It will be noticed that the claim was not sworn to or verified in any maimer until March 10, 1897, nor is the bill of particulars in any manner verified. Counsel for plaintiff, however, claim that the statute does not require such verification where claim is made for personal injuries. Section 1, chap. 22, provides for the service of notice in writing, setting forth the time when and place where such injury took place, the manner in which it occurred, and the extent of such injury, so far as the same has become known, etc. This section does not in terms require the statement to be verified. The first part of section 20, chap. 8, above quoted, provides that no account or claim or contract shall be received for audit or allowance unless it shall be accompanied by a certificate of an officer of the corporation, or an affidavit of the person rendering it, etc. So far as this part of this section is concerned, it may well be said, as held by the court below, that “the words ‘account or claim’ are not enough to cover unliquidated claims for personal injuries in an action ex delicto.” Lay v. City of Adrian, 75 Mich. 443. But the remaining portion of that section refers especially to claims “for personal injuries or otherwise,” and makes it “a sufficient defense in any court to any action or proceeding” that such claims are not “certified to or verified as aforesaid.”

I take it that this latter part of section 20 means that claims for personal injuries or otherwise (that is, all claims) must be certified to or verified as provided in the former portion of section 20, which has reference to claims arising out of contracts, either express or implied. It is the evident intent of the legislature by these sections of the charter to compel all parties having claims against a city to make a statement of the claim under oath, or to obtain the certificate of an officer of the corporation certifying to the correctness of the claim, and until this is done no action can he commenced or maintained. It is made a sufficient defense to the action if this is not done. This question is settled in Springer v. City of Detroit, 102 Mich. 300; Snyder v. City of Albion, 113 Mich. 275; Selden v. Village of St. Johns, 114 Mich. 698.

The claim that the affidavit, as a verification of the claim,, served in March, 1897, was a compliance with the statute, can have no force. Under section 1, chap. 22, the claim must be made within 60 days after such injury, and the verification must accompany the claim. It must, in other words, be verified or certified and served within 60 days after the injury.

But we are satisfied that the court was in error in holding that there was no evidence of waiver by the common council of the right to insist upon a verified claim being presented. The plaintiff gave testimony tending to show that the claim was served upon the city clerk and mayor on December 17, 1896. The council held this claim until January 30, 1897. In the meantime it is apparent that several meetings of the council were held at which this claim was up for discussion; and plaintiff offered proof on the trial tending to show (which testimony was ruled out by the court) that after the claim was referred to the council, and in order to avoid the taking of formal action, the members were asked to remain after the council closed, and did remain, and a committee was then informally appointed to consider the claim, and did consider it; that this committee met with plaintiff and his counsel, and the matter was fully discussed; that no objection was made by this committee, or ever made by the common council, to the claim on the ground that it was not verified. It appears that one of the aldermen notified plaintiff that the council had informally appointed a committee “to look into the liability of the city, and report the same at the next meeting.” Plaintiff sought to show what that committee reported back to the council. This was not permitted. The council appointed this committee, and had the claim of plaintiff under advisement until after the time for filing a new and verified claim had elapsed, and then notified plaintiff that no damages would be offered for the injuries.

A waiver is a mixed question of law and fact, and each case must necessarily depend much upon its own peculiar circumstances and surroundings. It is a question for the court to determine whether there is any evidence tending to show a waiver; but, when there is any evidence, the jury must determine what the intent of the party was, as the question of waiver is usually one of intent, as indicated by tbe acts and declarations of the party. Fox v. Harding, 7 Cush. 520; 28 Am. & Eng. Enc. Law, 535. We are unable to say, as matter of law, that there was no evidence in the case showing an intent on the part of the council to waive the fact that the claim was not verified. In Germaine v. City of Muskegon, 105 Mich. 213, the claim was verified, though the verification was before one of the attorneys in the case. The statute makes such affidavits void. It did not appear in that case that the claim was rejected for the reason that it was sworn to before one of the attorneys for the party, and this court held that such objection was waived. It is true the charter of the city of Muskegon is different from the charter under consideration, and provides substantially that the reason for such rejection must be stated. But in the present case we think the question of waiver was one of fact for the jury, under all the circumstances stated. That the common council might waive such defects, under certain circumstances, is held in Canfield v. City of Jackson, 112 Mich. 120.

•One more question needs to be mentioned, that relating to the fourth count. We think the court was in error in sustaining the demurrer to that. That count, added to the other causes set out in the former counts, avers that the city failed to light the street, so that by the walk’s being out of repair, and being unlighted, the plaintiff was injured. In Miller v. City of St. Paul, 38 Minn. 136, it was said:

“Of course, the fact as to whether a street was lighted or not may, in many cases, have a material bearing upon the question of negligence, for the manifest reason that a street left in a certain condition may be reasonably safe if lighted, but dangerous if unlighted.”

In Hayes v. City of West Bay City, 91 Mich. 422, the negligence claimed was leaving a building in the street with timbers projecting and without lights.

In the present case, the negligence claimed is not that the city did not properly light its streets, but that it left a dangerous bole in the walk, and, the walk being unlighted, the plaintiff fell into it and was injured.

The case, for the reasons above given, must be reversed, and a new trial awarded.

The other Justices concurred.


author: Moore, J.

text:
    UNION NATIONAL BANK v. RICH.
    1. Appeal — Review—Res Judicata.
    A question directly raised on appeal, and passed upon by the court after a full discussion and citation of authorities by counsel, is not open for consideration on a second appeal.

      2. Same — Findings on Disputed Evidence.
    A finding of the circuit judge as to the value of a stock of goods involved in a chancery suit heard before him, concerning which the opinions of witnesses are not in harmony, will not be disturbed on appeal, unless it clearly appears to be erroneous.
    3. Sale Under Trust Mortgage — Liability op Purchaser-
    Contribution — Equity—Decree.
    One who, knowing of the right of another to be subrogated to the claim of a beneficiary under a trust mortgage, purchases the property covered thereby, paying the full purchase price to the other beneficiaries, cannot complain that a decree by which he is held liable to the excluded claimant for the latter’s proportion of the purchase price, and which is made without prejudice to his right to bring an action at law . against the other beneficiaries to recover the amounts paid to them in excess of their pro rata shares, does not go further, and enforce contribution in the same suit.
    Appeal from Wayne; Peck, J., presiding.
    Submitted January 6, 1898.
    Decided March 29, 1898.
    Bill by the Union National Bank of Detroit against Charles A. Rich, trustee, and others, to compel the application of certain of the proceeds of a trust mortgage to the payment of a note held by complainant, and for other relief in connection therewith. From the decree rendered, complainant and certain of the defendants appeal.
    Affirmed.

      Ploman & Groesbeck, for complainant.

      A. G. Pitts, for appellants Oscar E. Rasch and Augusta Rich.

      T. T. Leete, Jr., for appellants Walter Buhl & Co.

      Charles K. Latham, for appellee Charles A. Rich.

      Brennan, Donnelly & Van De Mark, for appellee Peninsular Savings Bank.

      Wells, Angelí, Boynton & McMillan, for appellee American Exchange National Bank.

      Bowen, Douglas & Whiting, for appellee Mechanics’ Bank.
   Moore, J.

This case has been here before, and is reported as Union National Bank v. Rich, 106 Mich. 319. A reference to the case, as reported, will aid in the understanding of its present situation. After the case was remanded for further proceedings, a trial was had, and a large amount of testimony was taken, the witnesses being examined in open court. A decree was rendered, in which the circuit judge found that, when the chattel mortgage was made, the defendant August Rasch was insolvent, and that the complainant and the defendant the Peninsular Savings Bank were entitled to be subrogated to his rights in the mortgage before any of the property was sold to Walter Buhl & Co., or before the trustee in the mortgage assented to said sale, and that their rights in said mortgage could not be impaired through any act of the defendant Rasch; that defendants Buhl & Co. knew of the existence of the mortgage and its terms when they purchased the property, and had notice of the rights of the banks in the mortgage. The circuit judge further found that the property sold to Buhl & Co., including the stock, fixtures, leasehold interest, and horse and wagon, would, upon foreclosure, realize no more than Buhl & Co. paid for it, and that the value of such property at the time of the sale was $10,000. The circuit judge decreed the proportionate share to which each of such banks should be entitled of such fund. He also made a decree disposing of the book accounts, and fixing the interest of the two banks therein, and a decree in relation to the other property mentioned in said bill of complaint. From that decree the complainant and the defendants Oscar E. Rasch, Augusta Rich, and Buhl & Co. appealed.

Counsel for defendants Rich and Rasch makes a very elaborate argument, in which he seeks to show that complainant is not entitled to be subrogated to the rights of August Rasch, and that if it is, inasmuch as Mr. Rasch discharged the mortgage at the time Buhl & Co. purchased the stock, there is nothing to which the complainant can be subrogated. It is urged by the complainant’s counsel that the question of subrogation was fully discussed by counsel when the case was here before, and that as to that portion of the case it is not now open to argument. In that respect counsel are right. The brief of the solicitor for the defendants Rich and Oscar Rasch raised the question direct, and stated that this was really the point upon which the case turned, and cited a large number of authorities which he claimed supported his contention. The argument made then was substantially the same as the argument now made. The position taken by the solicitor for the defendants was disputed by the solicitors for the complainant, who cited a large number of authorities in support of their view, and the court adopted the view entertained by the solicitors for the complainant. That feature of the case must, then, be considered as res adjudicata.

It is the contention of the complainant that the court erred in deciding the value of the property to be but $10,000. It is urged that the inventory showed it to be worth more than twice that amount, and that, under the peculiar circumstances of this case, the amount found by the court is too small. The property described in the mortgage consisted chiefly of a stock of fur goods. The sale to Buhl & Co. was made in June, 1894. The season for that kind of goods, at retail, had passed, and would not open again until December. It is a matter of common knowledge that when fur garments are out of style their value is very greatly depreciated. The judgment of the witnesses varied as to the value of this property. They were sworn a,nd testified in the presence of the court, whose opportunity of seeing their degree of intelligence and candor was much better than ours. We do not think it clearly appears from the record that the trial judge was wrong in his conclusion as to the value of the property purchased by Buhl & Co. ¡

It is claimed on the part of Buhl & Co. that the American Exchange National Bank and Mechanics’ Bank, inasmuch as they had been paid their claims in full, should be required to contribute to Buhl & Co. for a portion of what they had received. It is the claim on the part of the banks that they were beneficiaries named in the mortgage, and discharged their interest therein upon the agreement that there should be delivered to them, respectively, the note of Walter Buhl & Co. for the amount of indebtedness which was due them from Rasch & Co., and that these notes were afterwards paid voluntarily, and that Buhl & Co. are not entitled to any contribution. Under the facts disclosed by the record, we think the decree of the circuit judge, made without prejudice to the right of said Buhl & Co. to sue at law to recover from these banks, is quite as favorable as Buhl & Co. have any right to ask.

The decree of the lower court is affirmed. Appellees will recover costs of this court against the appealing-defendants.

Montgomery, Hooker, and Long, JJ., concurred. Grant, C. J., did not sit.


text:
    PETZ v. VOIGT BREWERY CO.
    1. Landlord and Tenant — Duty to Repair.
    A landlord, in the absence of covenants on his part, is not required to repair, even when the premises become defective by reason of deterioration or decay.
    2. Same — Liability for Rent.
    Rent is payable even when demised premises have become untenantable by inherent defect, provided they were habitable at the time of the demise, and there was no fraud on the part of the landlord.
    3. Same — Eviction.
    Where premises demised without any covenant by the landlord to repair become unfit for occupancy while the tenant is in possession, and the landlord, with the tenant’s consent, enters upon them for the purpose of making repairs, and completes the same with reasonable promptness, the tenant, in the absence of an agreement to the contrary, is liable for rent during the time such repairs were being made, although he was excluded from the premises for such period.
    Error to Wayne; Donovan, J.
    Submitted January 6, 1898.
    Decided March 29, 1898.

      Assumpsit by Sophia Petz against the Voigt Brewery Company, Limited, for rent. Prom a judgment in her favor for less than the amount claimed, plaintiff brings error.
    Reversed.

      Keena & Lightner, for appellant.

      Wilkinson & Post, for appellee.
   Long, J.

Plaintiff is the owner of the premises in question. Edward W. Voigt had been in the brewing business in Detroit for many years, when, in 1889, he organized the defendant corporation. In September,' 1882, plaintiff leased the premises in question to Mr. Voigt personally, for the term of five years, “to be occupied for a restaurant, and dwelling.” The lessee covenanted that, during that term, he would “keepthe said premises, and every part thereof, in as good- repair, and, at the expiration of the term, yield and deliver up the same in like condition, as when taken, reasonable use and wear thereof, and damage by the elements, excepted.” There was the usual covenant for quiet possession on the part of the lessor, but there was no agreement by her to repair. On April 16, 1887, the parties to this lease executed a renewal lease for five years after the expiration of the first one; i. e., until October 1, 1892. The covenants in this second lease were the same as those above quoted from the first one. February 12, 1891, this second lease having been surrendered for its unexpired term, a new lease was given to the defendant for a term of 10 years from May, 1891; and this lease (being the one upon which this action is based) contained the same clauses as the two prior leases, as quoted above. The rental during the time covered by these leases varied from $2,500 per annum during the first years to $4,000 during the final years. From the time the lessee took possession of the premises, in 1882, until the trial of the cause, in 1897, Mr. Voigt (either for himself personally, or on behalf of the defendant) had the sole and exclusive possession of the whole of said premises, , except during three months in 1896, when plaintiff was engaged in making repairs. Mr. Voigt furnished them for the tenants, as he desired, from time to time; and they were taken by the defendant from Mr. Voigt, under the new lease, in precisely the same condition as he' had occupied and left them. Mr.' Voigt made many changes in the building during his occupancy under the three leases.

In August, 1896, plaintiff received notice, through her brother, Joseph Pulte, who managed her business affairs, from the building inspectors, that the side wall of the building was in an unsafe condition, due to its bulging ■out at the first and second floors, and that it must be repaired. None of the parties interested in the building had noticed this defect before this time. Mr. Pulte saw Mr. Voigt, and some conferences followed between them, resulting finally in an interview between Mr. Voigt and Mr. Lightner, on behalf of plaintiff, which was followed by certain correspondence. Plaintiff offered to make the needed repairs to the wall, but refused to allow anything off the rental during the time the repairs were being made. The keys were handed by defendant to plaintiff’s attorneys on August 27, 1896, to make the repairs. On September 2d, Mr. Voigt spoke of not intending to pay rent while plaintiff was engaged in making repairs. At once plaintiff’s attorneys returned the keys to Mr. Voigt, with the positive declaration that the repairing would be undertaken by plaintiff only on the understanding that all the rent would be paid by defendant under the lease. Defendant thereupon, acknowledging receipt of this letter, returned the keys to plaintiff’s attorneys, and told them to go ahead with the repairs, and inclosed check for the month’s rent, which was then past due. The repairs were undertaken at once by plaintiff, and were done in a thorough manner, at an expense to plaintiff of about $2,500. The building was inspected by defendant’s architect, and was accepted by him about December 1st,. he receiving the keys on behalf of defendant'. The building inspectors examined the building in December, and gave a certificate that it was in good condition. Defendant, by Mr. Voigt, took possession of the building, and entered upon extensive improvements, to fit it for a German restaurant. While at this work, his men found it necessary to support certain joists with a truss, and to put in supports. This was not in the part of the building which plaintiff had repaired. Defendant did not notify plaintiff of these defects, nor call upon her to repair them, but Mr. Voigt had them attended to himself, and he paid for these latter repairs. This action was brought by plaintiff to recover five months’ rental, under the lease, from September, 1896, to January, 1897, which defendant has refused to pay, and interest thereon. The jury returned a verdict for plaintiff for two months’ rent; and the plaintiff, claiming that she is entitled to the five months’ rental, asks this court to review the questions decided against her on the trial.

At the close of the testimony, the court submitted to the jury the following special questions:

“1. Did the plaintiff take such control of the premises, to rebuild the wall and repair the building, as to exclude the defendant thereby from possession during the repairs ?
2. Were the premises unfit to occupy during such rebuilding and repairs ?
“3. Were the defects that required curing by rebuilding the walls and under-piers made necessary by the uses or changes of the building during the time that these tenants had control ?
“'4. Did the defendant, during its possession under this lease, remove any columns or partitions, and weaken the building, so as to cause the defects complained of that required repairs ? ”

Questions 1, 2, and 3 were answered by the jury in the affirmative, .and question 4 in the negative, and verdict was rendered in favor of plaintiff for $685, which was for two months’ rent.

Plaintiff contends:

(1) That she was not legally required to make the repairs, and that doing the work she did at defendant’s request does not constitute an implied covenant that she would make the repairs, and is no excuse for refusal to pay the rent stipulated.
(2) That, admitting that plaintiff was bound to make the repairs, defendant must pay the rent stipulated in the lease, provided the repairs were made with reasonable speed and care, and that it is shown .this was done.
(3) That the repairs were made necessary by the improper use of the building by Mr. Voigt under the former leases; and that the defendant knew, through its agent, Mr. Voigt, the condition of the building, and the defendant cannot hold plaintiff liable for the conduct of Mr. Voigt, of which it had full knowledge.
(4) That the repairs were made necessary by the improper use made of the premises by defendant under its lease, —that is, in using them for other than for restaurant and dwelling; and defendant must therefore pay-rent.
(5) It being admitted that five months’ rental under the lease was not paid, and there being no evidence to sustain any of the items of counterclaim given in defendant’s bill of particulars, the verdict should have been directed for plaintiff for her entire claim.
(6) That defendant’s measure of damages, if it were entitled to any set-off under the facts, was not the rental reserved in the lease, but the actual amount defendant was damaged by reason of the repairs being made.
(7) That the burden was upon the defendant to prove its counterclaim, and to show the amount of its damage.
(8) That, plaintiff having consented to make the repairs on condition that defendant would pay all the rent, by accepting this offer defendant estopped itself to refuse to pay tbe rent.
(9) Since defendant did not notify plaintiff of the defects claimed to have been discovered elsewhere in the building in January, 1897, evidence of these alleged defects and repairs made by defendant was irrelevant.

We think the most of these contentions are answered by the jury under the general charge of the court. The court charged the jury substantially, after submitting the four special questions:

“ There is one other question, while I am upon the subject, I will speak of. It seems to be contended by counsel for the plaintiff, and as sharply denied by counsel for the defendant, that there was an agreement, just about the time they entered upon these repairs and the $300 was sent in for the August rent, whereby the brewing company should pay the rent, notwithstanding that they were to be out of the occupancy; and whether there was an agreement of that kind or not is a question for the jury. * * * Whether or not they came together, whether or not their minds met, or whether they agreed upon anything, you must gather from their dealings there together, and from their correspondence. * * * If you find that the building was unfit for occupancy at the time the plaintiff was notified to rebuild the northeast wall, and the defendant, without any fault on its part, was deprived of the peaceable use of said building, plaintiff cannot recover rent for the use of the building during the period it was in an untenantable condition. ”

In the verdict, none of the defendant’s set-offs were allowed as such. The jury undoubtedly took the defendant’s theory, that it was not liable for the rent of September, October, and November, the months during which the plaintiff was making the repairs, and during which time the defendant had no use of the building.

It appears from the testimony that in July, 1896, the board of building inspectors of Detroit inspected the building, and found it in a dangerous Condition, and notified plaintiff’s agent to “make safe the northeast corner, as this wall is bulged up to the second-story window, and is in bad shape; ” that, in accordance with this notice, plainr tiff, September 1, 1896, took possession of the building, to make the repairs, and found the wall in such bad condition that, instead of merely bracing it up, the entire easterly wall, for the height of two stories and 60"feet back, was taken out and rebuilt; that the westerly wall of the building had also sagged inwardly; that these repairs were going on until December 1st, when the defendant accepted it, and again commenced its occupancy. Testimony was also introduced by defendant tending to show that during these three months the building was untenantable. Defendant also claimed that it should not be liable for rent for December and January; but, as the jury found for plaintiff for those months, that question need not be discussed.

The only questions, then, remaining are:

1. "Whether the court was in error in submitting to the jury the question whether the building was unfit for occupancy during September, October, and November, 1896, and instructing them that if they found it was, and the defendant was thereby deprived of its peaceable use, the plaintiff could not recover the rent during the time it was in an untenantable condition.
2. Whether the court was in error in submitting the question whether there was an agreement between the parties that, if the plaintiff undertook the repairs, the defendant would pay rent during the time. the building was being repaired, and instructing them that, if they found such an agreement, the defendant would be liable for the rent for those months.

We think there was evidence in the case which warranted this last charge, if such charge was at all important. But, in view of the fact that defendant did not introduce testimony tending to show an agreement upon the part of plaintiff that it should not pay rent during these months, we think the court in error in submitting the first proposition. The jury found, specially, that the plaintiff took such control of the building to make these repairs as to exclude the defendant from possession. But it is well settled that the landlord, in the absence of covenants on his part, is not required to repair, even when the premises become defective by reason of deterioration or decay, Fisher v. Thirkell, 21 Mich. 22 (4 Am. Rep. 422); Gott v. Gandy, 2 El. & Bl. 845. Rent is payable even when demised premises have become untenantable by inherent defect, provided they were habitable at. the time of the demise, and there being no fraud on the part of the landlord. Wood, Landl. & Ten. § 382; 12 Am. &c Eng. Enc. Law, 722-, and cases there cited.

In the present case it appeared that Mr. "Voigt, defendant’s agent, had occupied these premises for many years before the lease to defendant was made. Mr. Voigt was the agent of defendant, and made the arrangement for the defendant’s term. If the premises were then out of repair, he had as much knowledge of it as the plaintiff. This lease was executed in February, 1891, and defendant went into possession under it, and continued in until July, 1896, before the building inspectors of the city gave the notice to repair to make the building safe. It became out of repair or became dangerous and unfit for occupancy while the defendant was in. There being no agreement in the lease that the lessor should make repairs, the lessee would be liable for rent even if the lessor did make them, unless there was an agreement that rent should not continue during that time. The court should have directed verdict in favor of the plaintiff for the whole amount claimed (that is, for the five months’ rent), as there is no pretense that the plaintiff agreed to relieve the defendant from such payment. The defendant relies upon the untenantable condition of the premises, and its exclusion during the time repairs were being made, and not upon an express contract that it should not pay rent during this time. The case is not like Leonard v. Armstrong, 73 Mich. 577. There the unhealthy condition of the premises existed when the tenant entered. In the present case ihe jury found that the defects which required the rebuilding of the wall, etc., were made necessary by the uses and changes of the building during the time Mr. Voigt and the defendant had control. The defendant was represented solely by Mr. Voigt, who had the entire and complete control of the business, and made the arrangements under which defendant entered. Clearly, the entry of the plaintiff, with defendant’s consent, to make these repairs, under these circumstances, was not an eviction from the premises, and the case does not fall within that class of cases cited by defendant’s counsel.

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.


author: Montgomery, J.

text:
    FOWLES v. BRIGGS.
    Negligence — Proximate Cause — Intervening Agency.
    A shipper of lumber is not liable for injury to a railroad brakeman while coupling cars, by the shifting of the lumber because it was negligently loaded, where the accident happened after it had become the duty of the railroad company to provide for the inspection of the car.
    Error to Saginaw; Snow, J.
    Submitted January 27, 1898.
    Decided March 29, 1898.

      Case by John S. Fowles, administrator of the estate of Alexander T. Fowles, deceased, against .Daniel W. Briggs and James Cooper, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      George W. Weadoclc and John F. O’Keefe, for appellant.

      Hanchett & Hanehett, for appellees.
   Montgomery, J.

Alexander T. Fowles, plaintiff’s intestate, on the 4th day of February, 1896, was an employéof the Flint & Pere Marquette Railroad Company. His employment was that of rear brakeman on a freight train. The defendants, lumber dealers, loaded a flat car with lumber, in their yard in the city of Saginaw, and shipped it over the Flint & Pere Marquette Railroad Company, to Toledo, Ohio. The lumber was maple, 11,000 feet, weighing about 33,000 pounds, and piled flat upon the car in two tiers parallel with the sides of the car. It was put upon this flat car by the defendants three days before the day of the accident. The testimony of the plaintiff tended to show that the railroad crew, of whom the deceased was rear brakeman, were ordered by the railroad company, on the morning of the 4th of February, to make up some freight trains for transportation; and, in the line of their duty, this car load of lumber was shunted at a rate not to exceed from three to five miles an hour upon a level track towards a box car. The deceased was upon the ground, and stepped in between the box car and the car load of lumber for the purpose of coupling the two; and, when the car of lumber came in contact with the box car, the lumber shifted 25 inches upon the surface of the flat car, and crushed to death the deceased, by pinning him against the end of the box car.

The plaintiff’s declaration declares the several, acts of negligence of the defendants to be:

1. That they carelessly and recklessly loaded said flat car of said railroad company so as to cause the death of the deceased by the shifting of the lumber while upon said car; that said lumber was so loaded upon said car that it was not safe for an employé of said railroad company to couple it to another car, and that said danger was not apparent to the deceased.
2. That it was the duty of said defendants not to ship maple lumber upon a flat car without having the lumber so fastened and staked as to hold it from shifting.
3. That a piece of timber or other material should have been placed crosswise upon the floor and near the ends of said flat car, under the lumber, for the purpose of elevating the extreme ends of the lumber.
4. That the defendants loaded this lumber upon the deck of said car while the deck was covered with ice and snow and sleet, and in a slippery condition.
5. That the lumber was covered with ice and snow and sleet, and in a slippery condition.
6. That the lumber should have been placed in a box car, and not upon a flat car.

The cause was tried before a jury, and, after the proofs were all in, the trial judge' said to the jury that “ the evidence fails to show that the defendants violated any legal duty that they owed the deceased. Consequently, there is no question of fact to be submitted to you for your consideration. Your verdict, therefore, will be in favor of the defendants of no cause of action.”

The deceased had no contract relations with the defendants, and, if his representative has a right of action based upon defendants’ negligence, it must rest upon a duty owed to deceased in common with all other employés of the Flint & Pere Marquette Railroad Company, or other road over which the car in question might ultimately be shipped; in short, a breach of a duty owing to the public. An accurate statement of this duty is:

“If a person undertakes to do an act or discharge a duty by which the conduct of others may properly be regulated and governed, he is bound to perform it in such manner that those who are rightfully led to a course of conduct or action on the faith that the act or duty will be duly and properly performed shall not suffer loss or injury by reason of his negligence.” Whart. Neg. § 437.

.Yet, as stated by the same author, the confidence must be immediate, or the action fails. In other words, there must be casual connection between the negligence and the hurt, and such casual connection is interrupted by the interposition between the negligence and the hurt of an independent human agency. Id. § 438. In the present case the defendants owed the railroad company the duty of using ordinary care in loading the car in question; but, before the car came to decedent, it was the duty of the railroad company to provide for the inspection. Here was the intervention of an independent human agency. A leading case is1 Winterbottom v. Wright, 10 Mees. & W. 109, in which case it was held that the defendant, who had contracted with the postmaster general to provide a mail coach, and keep it in repair, was not liable to an employé of one Atkinson, who had contracted with the postmaster general to provide horses and coachmen for the purpose of carrying the mail. See, also, Losee v. Clute, 51 N. Y. 494 (10 Am. Rep. 638); Goodlander Mill Co. v. Standard Oil Co., 11 C. C. A. 253, 63 Fed. 400; Loop v. Litchfield, 42 N. Y. 351 (1 Am. Rep. 543); Roddy v. Railway Co., 104 Mo. 234 (24 Am. St. Rep. 333). In Necker v. Harvey, 49 Mich. 519, the leading cases on this point are cited with approval by Mr. Justice COOLEY.

Plaintiff seeks to bring this case within a line of cases cited creating an apparent exception to the rule stated; but we think these cases may be all classed as coming under one of three heads: First, as in Johnson v. Spear, 76 Mich. 139 (15 Am. St. Rep. 298), where the fault was not keeping defendant’s premises in a suitable and safe condition; or, second, as in Roddy v. Railway Co., supra, where the defendant reserves the right to direct the manner of work, or undertakes to supply the instrumentalities. Of this class is also Elliott v. Hall, 15 Q. B. Div. 315, relied upon by plaintiff, in which case it was said by the court that “ the defendant had entire dominion over the truck ” which caused the injury, — a fact which distinguishes the case from the present. Cases belonging to a third class, more closely analogous to the case under consideration, have arisen where the shipper of a dangerous substance, the character of which is not made known to the carrier, has been held liable. But liability in this class of cases has been limited to instruments and articles in their nature calculated to do injury. Davidson v. Nichols, 11 Allen, 514. We think the case of Chapman v. Atlantic Refining Co., 38 Hun, 637, and 108 N. Y. 638, which counsel for plaintiff cite as fully sustaining their contention, is clearly distinguishable from the present case. The statement of facts in that case is found in New York, etc., R. Co. v. Atlantic Refining Co., 129 N. Y. 598, from which it appears that the defendant corporation was engaged in constructing some oil tanks on the line of the New York, Lake Erie & Western Railroad Company, at a place called Dykes’ Switch. The employés of defendant left a car of lumber, after it had been delivered to defendant, and partly unloaded, in such unsafe condition that a portion of the lumber fell upon or was blown upon the track of the railroad company, causing the derailment of the engine operated by the plaintiff, Chapman. It will be seen that the defendant had complete control over the partly-unloaded car, and whatéver duty was owing was owing by defendant. In the present case the defendants had parted with the control of the car. The railroad company owed the duty to decedent of causing an inspection or of providing a rule for inspection.

We think the circuit judge was right in his holding. Judgment affirmed.

The other Justices concurred.