text:
    JEFFERS v. SYDNAM.
    1. Life Estate — Adverse Possession.
    The possession of a life tenant cannot be adverse to the remainder-men.
    2. Same — Rights of Grantee.
    The grantee of a life tenant, though by warranty deed purporting to convey a fee-simple title, takes no greater estate than that possessed by the grantor.
    3. Same — Tax Title.
    It is the duty of a life tenant to pay the taxes accruing during the continuance of his estate, and he cannot, by neglecting this duty, acquire a tax title valid as against the remainder-men.
    Error to Kent; Perkins, J.
    Submitted January 8, 1902.
    Decided February 11, 1902.
    Ejectment by Oscar Jeffers and others against John W. Sydnam. From a judgment for plaintiffs, defendant brings error.
    Affirmed.
    This case was tried by the court without a jury, and the following finding of facts and of law made:
    “1. In 1864 William J. Knapp was the owner in fee of the west half of the northeast quarter of section 10, town 5 north, of range 9 west. At or about this time the owner of these lands died intestate while in the army, leaving a widow, Mary J. Knapp, in possession of the premises, and James A. Knapp, Elisha D. Jeffers, Oscar Jeffers, Emily Swobe, Adelia Pakosta, Elizabeth V. Johnson, and Marinda Lloyd, his sole heirs at law.
    “2. Shortly after her husband’s death, Mary J. Knapp married one Albert A. Church; and they together lived upon and occupied the entire premises above described until about the year 1865, when the said Mary J. Knapp Church entered into a contract with one Perry Clark to convey to him premises described as the southwest quarter of the northeast quarter of the section, town, and range above mentioned. Under this arrangement Clark went into possession of the premises last described, and on the 3d day of January, 1870, on account of the inability of the said Mary J. Church to give title, he surrendered possession of said premises, and conveyed the same by warranty deed to Albert A. Church, the husband of Mary J. Church, which deed was duly recorded January 18, 1870.
    “3. October 27, 1876, Albert A. Church conveyed by quitclaim deed to his wife, Mary J. Church, the premises so conveyed to him by Perry Clark in 1870, which deed was duly recorded December 7, 1877.
    “4. May 16, 1887, Albert A. and Mary J. Church conveyed by warranty deed the premises last described to John W. Sydnam, the defendant in this case, for the purported consideration of $500, which deed was duly recorded May 24, 1887. The said Mary J. Knapp never did, and never intended to, claim title to the whole of said premises, but occupied the same as life tenant only.
    “ 5. The defendant went into immediate possession of the premises so described, and has continued to occupy the same up to the present time.
    “6. April 5,1872, James A. Knapp, the brother and one of the heirs of William J. Knapp, deceased, and his wife, conveyed by quitclaim deed to Rodney Robinson the west half of the south half of the northeast quarter of the premises first above desci’ibed, which deed was duly recorded April 15, 1872.
    ‘ ‘ 7. The plaintiffs in this case are the heirs of the above-named Rodney Robinson, deceased, and of the said William J. Knapp, deceased. . Delila White, one of the Robinson heirs, was not made a party plaintiff in this action.
    “8. February 27, 1896, the lands in controversy (viz., the southwest quarter of the northeast quarter of the premises first described) were conveyed by the auditor general to William H. Gilbert for the taxes of 1892, which deed was duly recorded March 26, 1897; and April 23, 1896, the said Gilbert conveyed to the defendant by quitclaim deed the said premises, which deed was recorded May 26, 1897.
    ‘ ‘ 9. From the date of the death of her first husband, William J. Knapp, until her own death, .in 1897, the said Mary J. Church continued in the occupancy of the entire premises first above described, except for four years, or thereabouts, that Perry Clark occupied the portion above mentioned, and the defendant, John W. Sydnam, occupied the portion conveyed to him in 1887 as above set forth. During her entire occupancy of the premises Mary J. Church paid the taxes on the portion of the premises actually occupied by her, and since the conveyance to the defendant, in 1887, he has paid the taxes upon the portion of the premises so conveyed to him, except for the year 1892, which were not paid, but were permitted to lapse, with the result above mentioned.
    “10. On April 19, 1807, the said Mary J. Church petitioned the probate court for the county of Kent for the appointment of an administrator of her late husband’s estate, which resulted in the appointment of herself as administratrix of said estate. She thereafter duly qualified, and filed an inventory of such estate, including among its assets the land first above described. Nothing further seems to have been done in relation to the probating of this estate until 1900, when a petition was filed to ascertain the legal heirs of said William J. Knapp, deceased, which resulted in the determination of that question.
    “ 11. At the time of the conveyance to the defendant of the premises in controversy by the said Mary J. Church and her husband, Albert A. Church, the defendant executed a mortgage to the said Albert A. and Mary J. Church to secure the payment of the sum of $500, covering said premises, which mortgage was duly recorded May 24, 1887. Accompanying this mortgage was a bond containing the condition, in substance, that, when the said Albert A. and Mary J. Church should perfect their title to said premises, the same would become operative and payable, and not until then; the said Sydnam paying as consideration for his said purchase, in addition to the giving of said mortgage and bond, the sum of $50, which is the only sum of money that has been paid as the consideration for the conveyance to him dated May 16, 1887, above set forth. On the death of Mary J. Church the said Sydnam obtained possession of said mortgage, and has since retained the same, without paying anything therefor, and the bond accompanying said mortgage has been lost, and the same cannot, after diligent search and inquiry, be found.
    “12. The above-named plaintiffs [naming them] are the heirs of said William J. Knapp and said Rodney Robinson, deceased.
    “ I find as conclusions of law:
    “1. That the said Mary J. Knapp (Church) became entitled to a life estate in-the premises first above described as the widow-of the said William J. Knapp, deceased.
    “ 2. That the said Mary J. Church’s contract with Perry Clark, and Clark’s subsequent conveyance to Albert A. Church, and Albert A. Church’s conveyance to Mary J. Church, and their joint conveyance to John W. .Sydnam, the defendant, were wholly inoperative as devesting the title of the legal heirs to said premises, and that said conveyances (nor either of them) do not constitute color of title to the premises in controversy.
    “3. That the said Mary J. Church, by her various transactions in relation to said premises, never intended to convey any greater interest than she in law possessed, which was merely a life estate.
    “ 4. That neither the said Mary J. Church nor the said John W. Sydnam has held said premises adversely to the rights of the plaintiffs in this suit.
    “5. That the said defendant, John W. Sydnam, by his conveyance from the said Mary J. Church, received only such interest in said premises as she then possessed, which was a life estate.
    “6. That, as life tenant, the said Mary.J. Church, in her lifetime, and, as the purchaser of her life interest in the premises in controversy, the said defendánt, John W. Sydnam, were, in law, bound to pay the taxes accruing from year,to year against the said premises.
    “7. That the tax deed received in evidence in support of the defendant’s claim of title i's wholly inoperative, upon the grounds: (1) That the said Sydnam was, in law, bound to pay the taxes assessed against the premises in controversy for the year 1893; (3) because the defendant wholly failed to support the validity of such tax deed by the necessary proof of the regularity of the proceedings upon which it is based.
    “8. That the rights of the plaintiffs to the possession of the premises in controversy did not accrue until after the expiration of the life estate of Mary J. Church, which did not cease until her death, in 1897, and that the statute of limitations, therefore, has not run against them.”

      John W. Powers (John 8. McDonald, of counsel), for appellant.

      Fred L. Williams (M. A. Nichols, of counsel), for appellees.
   Grant, J.

(after stating the facts). By the law of descent in this State at the time of William J. Knapp’s death, the widow was endowed with a life estate in the land. 2 How. Stat. § 5772a, subd. 2. The widow could not convey, even by warranty deed, any greater interest in the land than that of which she was possessed, and there is no evidence in the record that she intended to. No expectant estate can be defeated by the act of the owner of the intermediate estate, or by any destruction thereof. 3 Comp. Laws, § 8814. The present case, in all its aspects, is ruled against the defendant by Lumley v. Haggerty, 110 Mich. 552 (68 N. W. 243, 64 Am. St. Rep. 364); Bowen v. Brogan, 119 Mich. 218 (77 N. W. 942, 75 Am. St. Rep. 387). Defendant obtained only the life interest which Mrs. Knapp had, and, as such, it was his duty to pay the taxes. Smith v. Blindbury, 66 Mich. 319 (33 N. W. 391); Jenks v. Horton, 96 Mich. 13 (55 N. W. 372).

The judgment is affirmed.

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


source: Caselaw Access Project

author: Hooker, C. J.

license: Public Domain

text:
    ALBRECHT v. PEOPLE’S LIFE & ANNUITY ASS’N.
    1. Benefit Societies — Sick Benefits — Nonpayment of Assessments — Forfeiture of Membership.
    A contract of membership in a benefit association provided for the payment to the member of a certain sum monthly in case of total disability; also that nonpayment of an assessment when due should operate to suspend him from all benefits of the association. The member became totally disabled while in good standing, such disability continuing until his death. Held, that his membership was not forfeited because of the nonpayment of an assessment falling due during the period of such disability, the amount of which was less than his credit with the association for accrued benefits.
    2. Same.
    The fact that such disability had not existed for a month at the time the assessment became due, so as to entitle the member to a month’s benefit, was unimportant.

      Error to Wayne; Carpenter, J.
    Submitted January 10, 1902.
    Decided February 11, 1902.

      Assumpsit by Ella Albrecht and Walter Albrecht, by next friend, against the People’s Life & Annuity Association, on a benefit certificate. From a judgment for plaintiffs on verdict directed by the court, defendant brings error.
    Affirmed.

      Hayes & Lawson (B. T. Jones, of counsel), for appellant. ®

      Palmer & Palmer, for appellees.
   Hooker, C. J.

On July 26th, one Albrecht received a serious injury, causing total disability, both legs being broken. He was taken to a hospital, where he died on the 13th day of August following. At the time of receiving his injury he was a member in good standing of the defendant corporation, a mutual life association. His certificate or policy provided that:

“In consideration of the premises, and of the further payment to this association of each and all future monthly assessments as provided in the constitution and laws, the People’s Life & Annuity Association agrees and promises to pay Ella and Walter Albrecht, related to said member as children, the sum of $25 per month, until the full amount of $2,160 has been paid, less any and all amounts that may have been paid to said member during his life, at which time this certificate shall and will become null and void. * * *
“In case the said William F. Albrecht shall become totally disabled as a result of sickness, accident, or old age, the People’s Life & Annuity Association agrees and promises to pay said member the sum of $25 per month during such disability, until the entire amount named in this certificate has been paid out, when the.same shall and will become null and void.
“In case of failure to pay any monthly assessment on or before the last working day of each month, this certificate shall, ten days after such failure to pay, lapse, and become null and Void.”

The laws of the association provide:

“LAW 2.
“Assessments.
“ Section 1. Each and every member shall be required to pay one assessment per month, as follows: First rate members, $1.00. Second rate members, $2.00. * * *
A member failing to make such payment within the month in which it is due shall stand suspended from all benefits of the association.
“Sec. 2. A member so suspended may, at any time within ten days from the date of such suspension, reinstate himself by making application upon the form prescribed for that purpose, certifying that he is in good health, etc., and paying the amount charged against him. Such member shall stand reinstated without ballot. Any member failing to reinstate himself within the prescribed time can only be admitted as a new member, and when so admitted shall receive a new certificate from the date of readmission, and the original certificate must be surrendered to the secretary of the general assembly.
“ LAW 3.
“Total Disability.
“ Section 1. Any member becoming totally disabled by reason of sickness, accident, or helpless old age, and so declared by three competent physicians, one of whom shall, if possible, be the medical director of the association, shall be entitled to $25 per month during such disability, until the entire amount named in the certificate has been paid out, when the certificate shall and will become null and void. * * * These amounts are payable to the beneficiaries at the rate of $25 per month, until the entire amount named in the certificate, less any and all amounts that may have been paid to the member during life, has been paid out.”

After his death, the plaintiff, as guardian for the children, brought this action. The defendant claimed upon the trial that the policy was forfeited, for the reason that the July assessment was not paid. The court submitted the question whether or not the July assessment had been paid, and the jury found that it had been. The trial judge felt it his duty to decline to permit a judgment to rest upon this verdict, which we think that he was right in saying was contrary to the evidence in the case, and we think that he would have been justified in refusing to submit that question to the jury. He thereupon directed a verdict in favor of the plaintiff for $140 (the amount due when the action was commenced), on the ground that the obligation to pay assessments was suspended during the period of total disability. The defendant has brought error.

On July 26th this member was disabled, and became entitled to receive $25 a month during his total disability, which continued until his death. These benefits were not paid, yet the defendant alleges, as a reason why it should not pay them, the failure of the assured, though totally disabled, to pay his dues on or before July 31st. The payment by him personally is shown to have been a physical impossibility. Whether or not he was in a mental condition to cause it to be done does not appear. We can imagine a case where the assured might not be able to attend to such an obligation, or cause another to do so for him, — as where moribund or unconscious. This contract should have a reasonable construction, and one which recognizes the rule that forfeitures are not favored; and we are of the opinion that, if this contract entitled the company to demand payment of membership dues or assessments after this disability arose, it was not contemplated that a forfeiture should be enforced for nonpayment during the period of disability, when at the same time there teas money in the hands of the company belonging to the assured exceeding the amount of dues. Such was the view taken of this question in the case of Columbian Relief-Fund Ass’n v. Hopper, 24 Ind. App. 169 (53 N. E. 1051). The question is discussed at length in that case, and we need not repeat what can as well be read there. We think a construction such as defendant urges unconscionable, and we think this case readily distinguishable from cases where there is a clear delinquency, which the assured, though powerless to avoid, has contracted against, and where the company has no funds belonging to the assured in its hands which it can apply.

We think there is no merit in the very technical point that, at the time when the July payment became due, the disability had not lasted a month. It had lasted so long-that the company would have been safe in making the application of a sufficient sum to pay the assessment. If, as the defendant’s counsel intimate, it was not aware of the situation because no one had demanded payment or application, it has not suffered thereby. Perhaps there was no one to make demand or payment. Had there been, probably the payment would have been made, and this defense made impossible.

We have not now before us the question of what Mr. Albrecht’s status as to membership would have been had he recovered, and have no occasion to pass upon it. We are satisfied that this contract should not be held to contemplate that the sick and death benefits of a moribund or helpless person should be forfeited for the nonpayment of current dues, when he has a credit with the company sufficiently large to pay them.

The judgment is affirmed.

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


author: Moore, J.

text:
    BROWN v. KRISER.
    Contracts — Performance—Pleading—Evidence—Recoupment.
    Plaintiff sued on the common counts to recover a balance due on a contract to build a house. Defendant pleaded the general issue, with notice of set-off for failure to complete the house according to the contract, but gave no notice of recoupment. On the trial plaintiff testified to a settlement with defendant, by which the latter agreed to waive any defects, and pay the amount due, in consideration of plaintiff’s relinquishing a claim for extras and repainting the building, which he had done. Defendant claimed that his agreement to pay such balance was conditioned on everything’s being made “satisfactory;” and, while disavowing any desire to recoup damages, he testified that the work was not done in accordance with the contract or to his satisfaction; that the floor sagged, the roof leaked, and the paint peeled; and that he did not know of such defects fit the time of the alleged settlement. Held, that defendant’s testimony was admissible, under the pleadings, to show noncompletion of the contract, if-plaintiff relied thereon, and as showing what the settlement was, and that plaintiff had not complied with it, if he relied on the settlement.
    Error to Grand Traverse; Mayne, J.
    Submitted January 10, 1902.
    Decided February 11, 1902.

      Assumpsit by William L. Brown against Nick Kriser to recover a balance due on a building contract. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Patchin & Orotser, for appellant.

      Pratt & Davis, for appellee.
   Moore, J.

“The following is a bill of particulars of the defendant’s set-off in the above-entitled cause:
To breach of contract in not completing house by April 1,1898..................- §50 00
To breach of contract in not completing house in accordance with the plans and specifications--------------------------- 50 00
§100 00 ”

The case was appealed to the circuit court, where a judgment was rendered in favor of defendant. The case is brought here by writ of error.

Upon the trial in the circuit court, plaintiff claimed he had a written contract with defendant to build him a house for $739.85, upon which he had been paid $701.35; that in March, 1899, he had a settlement with defendant; that he had done some extra work, amounting to upwards of $27; that defendant claimed there were some things about the house that were not just right, including the painting, and it was agreed that plaintiff should throw off the extras and give the house another coat of paint, and then defendant should pay him $40; that he had done the painting as he agreed, and claimed the $40 was then due him. The defendant’s version of the settlement differed from the plaintiff’s. It was his claim he did not know of the defects when the settlement was made, and had no means of knowing of them, and that he did not agree to waive them because of the extras, and that he agreed to pay the remaining $40 when the painting was done and everything was satisfactory; that the work was never made satisfactory, and the $40, therefore, .was not yet due. The defendant gave evidence tending to show the work had not been done according to the terms of the contract; that the floor sagged; that the roof leaked, and the paint peeled off; that the work was not done to his satisfaction. This testimony was objected to upon the ground that no notice of recoupment had been given. The attorney for defendant stated that defendant did not seek to recoup damages against plaintiff, or ask a judgment against him, but claimed defendant had a right to show plaintiff had not performed his written contract, and therefore was not entitled to collect the full amount named therein. He also claimed the testimony was admissible as showing just what the settlement was, and that plaintiff had not complied with its terms. The court admitted the evidence. The important question in the case is whether this was error.

It will be observed, the plaintiff had been paid nearly the full amount called for by the written contract. If he sought to recover according to the terms of the written contract, it was competent to show, under the plea of the general issue, that the contract had not yet been completed. Hanley v. Walker, 79 Mich. 607 (45 N. W. 57, 8 L. R. A. 207); Morley v. Insurance Co., 85 Mich. 210 (48 N. W. 502). If the plaintiff relied upon the settlement, it was competent as bearing upon the question of just what was covered by the settlement, and whether its terms had been complied with. The court carefully instructed the jury as to the law governing the case.

Judgment is affirmed.

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

      See, also, Pungs v. Brake-Beam Co., 128 Mich. 318 (87 N. W. 364).


text:
    STEARNS v. STEARNS.
    1. Vendor and Purchaser — Agreement to Discharge Incumbrance-Promissory Note — Right of Recovery.
    Plaintiffs and defendant gave a mortgage on land owned by them in common as security for defendant’s debt, which was also secured by mortgage on his individual property. Subsequently defendant sold and conveyed to plaintiffs his interest in the common property, and at the same time gave them a note for the amount of the mortgage thereon, reciting that it was to secure them against the mortgage, and should be void if defendant should procure its discharge within a year. Held, that, on defendant’s failure to pay the mortgage within the year, plaintiffs might recover the amount of the note, though no steps had been taken to foreclose the mortgage, and plaintiffs had made no payments thereon.
    ■3. Same — Interest.
    But, defendant having paid the interest on the mortgage debt, plaintiffs were not entitled to recover interest on the note.
    Error to Wayne; Donovan, J.
    Submitted January 10, 1902.
    Decided February 11, 1902.

      Assumpsit by Samuel Stearns and William Stearns against Henry Stearns upon a promissory note. From a judgment for plaintiffs on verdict directed by the court, defendant brings error.
    Affirmed on condition.

      William JRolston Brown, for appellant:
    Cited Wilcox v. Musche, 39 Mich. 101, to the point that nominal damages only were recoverable.

      Adam JE. Bloom and Jay Fuller, for appellees.
   Moore, J.

On March 9, 1893, defendant, Henry Stearns, executed to James Howland a promissory note for $1,000, which he secured by a mortgage covering 14 lots owned by him on Holbrook avenue, Detroit, Mich. In order to obtain from Mr. Howland a release of three of these lots, on May 2, 1897, Henry Stearns, William Stearns, and Samuel Stearns executed a mortgage to Mr. Howland covering property which they owned jointly on the corner of Lincoln and Alexandrine avenues. The plaintiffs exchanged Itheir interest, valued at $2,800, in other propex-ty, for defendant’s interest in the Lincoln-avenue property, defendant agreeing to pay the mortgage. On April 8, 1898, Henry Stearns quitclaimed his interest in the Lincoln-avenue property to William and Samuel Stearns, and upon the same day executed the following agreement:

“$1,000.00. Detroit, Mich., April 8th, 1898.
“ One year after date I promise to pay to Samuel Stearns and William Stearns, or order, the sum of one thousand dollars, value received.
“Henry Stearns.
“The foregoing note is given for the purpose of securing Samuel and William Stearns against a mortgage of one thousand dollars upon certain property located at the northwest corner of Alexandrine and Lincoln avenues, Detroit, Mich., which said Henry Stearns has this day quitclaimed his interest in to said Samuel and William Stearns. This said mortgage of one thousand dollars also covers another property belonging to Henry Stearns, and the said Henry Stearns agrees to pay said mortgage of one thousand dollars, and relieve the said property on the corner of Alexandrine and Lincoln avenues from same, on or before one year from date, according to tbe above note. When said mortgage of one thousand dollars as aforesaid is paid, and said property on the corner of Alexandrine avenue and Lincoln avenue, Detroit, relieved of said incumbrance, then this note shall be void; but otherwise it shall remain in force to protect said Samuel and William Stearns against said incumbrance.
“Henry Stearns.”

Defendant did not pay the mortgage within the year, and plaintiffs brought suit, declaring on all the common counts in assumpsit and upon the agreement before mentioned. The defendant pleaded the general issue, and gave notice that the note mentioned in plaintiffs’ declaration was made without consideration. After the testimony was all in, the circuit judge directed a verdict in favor of plaintiffs for $1,000 principal and $194 interest. The defendant has brought the case here by writ of error, claiming plaintiffs are entitled only to nominal damages.

The record discloses that plaintiffs were yet in possession of the Lincoln-avenue property, and that no steps had been taken by Mr. Howland to foreclose his mortgage, and that plaintiffs had made no payments upon it. It also appears that defendant did not pay any portion of the principal of the mortgage, but that he had paid the interest, upon the mortgage. It is doubtless true, as contended by plaintiffs, that the defendant is bound by his agreement; but we do not think it can be said that, where he has paid the mortgagee the interest upon the $1,000 principal of the mortgage, plaintiffs should also be allowed to recover interest upon it. Upon condition that plaintiffs remit the amount of interest paid, the judgment for the balance will be affirmed; otherwise the judgment will be reversed, and a new trial ordered. The defendant will recover costs of this court.

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


author: Grant, J.

text:
      In re LITTLE.
    Criminal Law —Arrest by Federal Authorities — Transfer to State Authorities.
    A person arrested in another State, charged with a federal crime in Michigan, and brought here to await the action of the federal grand jury, may be turned over to the State authorities to be tried for a violation of our laws, without being allowed time to return to the State where he was originally arrested.

      Habeas corpus by Philip Little against the sheriff of Montcalm. county.
    Submitted January 28, 1902.
    Petitioner remanded February 11, 1902.

      Ritchie, Murphy & Phelan, for petitioner.

      H. F. Chase, Deputy Attorney General, and Frank A. Miller, Prosecuting Attorney, for the people.

       As to right to try prisoner arrested in foreign State for other crime than that for which he was surrendered, see note to Ex parte McKnight, (Ohio) 14 L. R. A. 128.
      As to service of process on fugitive in custody, see note to White v. Underwood, (N. C.) 46 L. R. A. 711.

   Grant, J.

The petitioner is confined in the jail of Montcalm county under a complaint and warrant charging him with the crime of burglary committed in that county. He seeks release upon the writ of habeas corpus, for the reason that, at the time of his arrest for this crime, he was confined in the jail of Kent county, Mich., under a warrant issued from the United States court for the Northern district of Ohio, charging him with the crime of robbery of post-offices in Michigan, and under the order of the United States court in Ohio removing him to the United States court for the Western district of Michigan, to await the action of the grand jury upon said alleged offense. The marshal of the United States court for the Western district of Michigan, upon the request of the sheriff of Montcalm county, and the presentation to him of the warrant for the petitioner’s arrest, surrendered him to the jurisdiction of the State courts for examination and trial. His counsel insist that, upon his release by the United States marshal, he was entitled to return to the State of Ohio, whence he was brought under the order and judgment of the federal court; that he was by law entitled to a reasonable time and opportunity to return, and was, during that time, privileged from arrest by the authorities of the State court.

Courts have shown no inclination to scrutinize too closely the means used by police officers to secure fugitives from justice, and bring them before the courts for trial. It has been repeatedly held that, when alleged criminals are brought by force or. by false representation, or even by abuse of process, from one jurisdiction, to which they have fled, into another, they are not entitled to return to the jurisdiction whence they were taken. In re Mahon, 34 Fed. 525, 528; Lascelles v. Georgia, 148 U. S. 537, 543 (13 Sup. Ct. 687), and authorities there cited. The prisoner, upon being discharged by the United States authorities, would not be entitled to return to Ohio, even if he had been extradited. It is just to counsel to say that they do not intend to carry their argument to this extent. If extradited for larceny, and discharged, and a charge of murder had been lodged against him, he would not be absolutely released, and given the opportunity to escape trial upon the more heinous offense. What counsel mean to say is this: That the United States marshal would take Him back to Ohio, and there retain him until the necessary papers could be obtained from the governor of Michigan for his return to this State to be tried. This would be an idle ceremony.

No question of treaty stipulation is involved. Petitioner has not been extradited. He was brought to this State under a United States warrant, arrested in one jurisdiction, where the crime was not committed, and transferred to another jurisdiction, where the crime was committed, for appropriate action. But, if the case were to be disposed of upon the rules governing extradition proceedings, the controversy has been settled by Lascelles v. Georgia, supra. This is a federal question, and the decision there made is binding, no matter what the previous decisions of this court may have been. Before the decision of that case the authorities had been divided, though we think the clear weight of authority was against the contention on behalf of petitioner. It was there expressly decided that:

“A fugitive from justice, surrendered by one State upon the demand of another, is not protected from prosecution for offenses other than that for which he was rendered up, but may, after being restored to the demanding State, be lawfully tried and punished for any and all crimes committed within its territorial jurisdiction, either before or after extradition.”

Counsel for the prisoner rely upon In re Cannon, 47 Mich. 481 (11 N. W. 280). Cannon was extradited as a fugitive from justice for a crime which was the proper subject of extradition. Upon being brought within the jurisdiction of Michigan he was at once discharged, and proceedings for bastardy commenced against him, growing out of the same facts as those involved in the criminal charge. The court held (citing authorities) that bastardy proceedings weré not criminal, but civil. The rule is universal that one is privileged from arrest on civil process when he is brought into another jurisdiction, either as a witness or litigant, in obedience to the process of the court. The law gives him sufficient time to withdraw from the jurisdiction into whicK he is thus forced to come, before he is subject to civil process. Only when he voluntarily enters within the jurisdiction of that court, or remains after he has had sufficient time to depart therefrom, can he be made the subject of civil process. In civil suits the defendant is entitled by law to be sued within the jurisdiction of his domicile, unless by his own act he places himself within the jurisdiction of the domicile of his adversary. This is not the rule, however, in criminal cases, which must be tried within the county and State where the crime is committed. Due protection to society against criminals forbids that they should be thus privileged from arrest for crimes, and opportunity given them to escape. A criminal acquires no right of asylum in a State to which he has fled. The court in Be Cannon were not discussing a case involving a criminal arrest, but only an arrest upon civil process. This is equally true of People, ex rel. Watson, v. Judge of Superior Court of Detroit, 40 Mich. 729, cited in the opinion in Cannon's Case. The language used in each case was entirely applicable to the facts, and, if anything was said which can be construed into applying to arrests for crime, it must be regarded as dictum. The decision in that case would undoubtedly have been the same if the case of Lascelles v. Georgia had been decided. Some of the language might possibly have been modified, or not used at all. This being a federal question, as above stated, and no such question being in fact involved in Cannon’s and Watson's Cases, we feel compelled to follow the decision of the Supreme Court of the United States.

The prisoner is therefore remanded.

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


text:
    RICHARD v. DETROIT, ROCHESTER, ROMEO & LAKE ORION RAILWAY.
    1. Electric Railways — Injury to Passenger — Negligence — Question eor Jury.
    Plaintiff was injured while attempting to alight from an electric car at a switch several rods from the station building at her destination. Her testimony tended to show that the conductor called the name of the station before the car stopped; that several persons then boarded the car; that passengers were in the habit of leaving the car at that place, and there was nothing to indicate that it was not proper to do so; and that she attempted to alight in a proper manner, and was thrown to the ground by the sudden starting of the car. Defendant’s testimony contradicted that of plaintiff in all essential particulars. Held, that a verdict for plaintiff would not be disturbed.
    2. Same — Connecting Lines — Track Contracts — Joint Liability.
    Defendant operated an electric railway connecting with another line, and had a contract with the latter whereby through cars were run by both lines between their respective terminals. The contract provided that each company should have full control of the cars while on its tracks, and that the ownership of the tracks should determine their responsibility to the public; that each company should receive a rental for the use of its cars by the other; and that the fares should belong to the company owning the1 tracks for a ride over which they were collected. Plaintiff boarded one of defendant’s cars while on the tracks of the other company, and paid her fare to the terminus of the latter’s line. She was injured, while alighting, by the negligent starting of the car as it was about to turn onto defendant’s track, and after the switch had been thrown. She was entitled, for the fare paid, to ride at least a block farther, and over a portion of defendant’s road. Held, that the companies were jointly operating the car, each receiving a consideration for her ride, — the other company, the fare; defendant, a rental for its car, with the privilege of through service, — and were jointly liable for the injury.
    3. Negligence — Joint Tort Peasors — Actions.
    Where more than one party is guilty of negligence, the person injured may proceed against them jointly or severally

      Error to Oakland; Smith, J.
    Submitted January 29, 1902.
    Decided February 11, 1902.
    Case by Elizabeth Richard against the Detroit, Rochester, Romeo & Lake Orion Railway for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Graves & Hatch, for appellant.

      Baldwin, Jacokes & Moore, for appellee.
   Moore, J.

The plaintiff recovered a judgment against the Detroit, Rochester, Romeo & Lake Orion Railway-for personal injuries sustained by her by reason, as she claims, of her being thrown from one of the defendant’s cars because of the negligent starting of the same when she was alighting therefrom at the village of Royal Oak. The annexed plat will aid in understanding the situation.

The Detroit & Pontiac Railway owns and operates an electric railway running from Detroit through Royal Oak and other intermediate places to Pontiac. The Detroit, Rochester, Romeo & Lake Orion Railway, the defendant, owns and operates an electric railway connecting with the Detroit & Pontiac Railway at Royal Oak, and running therefrom north and east to Rochester, Oxford, Orion, and branching to Romeo, in Macomb county. A working arrangement was entered into between the two companies. This arrangement was in writing. The pertinent portions read as follows:

“2. So soon as the Rochester Company has completed its railway and desires to commence operation, cars shall be run through by both companies jointly, and under the contract between the Pontiac Company and the Detroit Citizens’ Street-Railway Company, from the Campus Martius, in the city of Detroit, to the village of Rochester, in the county of Oakland, and such other terminals as the Rochester Company may have, or may from time to time acquire. * * *
“4. Each company shall remain in full control of the operation and management of the cars while on the tracks, and the ownership of the tracks shall determine the responsibility of the respective parties to the general public. Each party shall have the right to replace the employes of the other at the junction point, so that its own employés may operate the cars while on its own tracks.
“ 5. Each company shall pay to the other, for the use of double-truck passenger cars, two cents (2 cts.) per car mile; and the Pontiac Company shall pay to the Rochester Company all moneys collected from the Detroit Citizens’ Street-Railway Company for the use of Rochester Company’s cars on Detroit Citizens’ Street-Railway Company’s tracks.
“6. The fares shall belong to the company owning the tracks for a ride over which they are collected. Each company shall have the right to issue through tickets carrying coupons for collection by the conductors of the parties hereto and the Detroit Citizens’ Street-Railway Company; and an accounting thereof shall be made monthly, before the fifth day of each month, and the debtor at said accounting shall pay the balance against it to the creditor within five days thereafter. * * * ”

September 21, 1900, the plaintiff got upon one of the cars of the defendant in Detroit, and, after leaving the city limits, she paid her fare to Royal Oak. It is her claim that, just before reaching the point marked “A” on the plat, the conductor came through the car and called, “Royal Oak;” that soon thereafter the car stopped, and, after waiting for a number of passengers to get on, she attempted to alight, and while doing so the car started, as the result of which she was injured. It was also her claim that passengers were in the habit of alighting at this point. The conductor denied that he called, ‘ ‘ Royal Oak,” and that passengers were in the habit of getting on and off at this point, and it is the claim of defendant it was not a proper place for passengers to alight. The record shows that south-bound cars did not stop at the station, but stopped at the point marked “B” upon the plat.

Special findings of fact were submitted to the jury, Which, with the answers, were as follows:

“1. Was the plaintiff guilty of negligence in attempting to alight at the place and in the manner which she did ?
“Which said question was answered by the jury in the negative.
“2. Was the conductor negligent in signaling the car ahead in the manner in which he testified he did ?
“ Which said question was answered by the jury in the affirmative.
“3. Was the switch-stop a point where passengers were accustomed to alight from defendant’s cars ?
“ Which said question was answered by the jury in the affirmative.
“4. Did the conductor call out, ‘Royal Oak,’ before making the switch-stop ?
“Which said question was answered by the jury in the affirmative.
“5. Was the plaintiff thrown to the ground and injured by the starting of the car ?
“Which said question was answered by the jury in the affirmative.”

Counsel for defendant say, while they think the court erred on various questions upon the trial, they do not desire the case reversed unless the court erred in relation to two fundamental questions: First, was there negligence on the part of the conductor or motorman, and was the plaintiff guilty of contributory negligence ? And, second, is it the Rochester Company or the Pontiac Company that is liable to the plaintiff, granting that either is liable ?

As to the first of these questions the testimony was very conflicting. That offered upon the part of the plaintiff tended to show the conductor did call out, “Royal Oak;” that, soon after, the car stopped; that passengers who were waiting got upon the car; that there was nothing in the character or appearance of the place which should indicate to plaintiff that it was not a proper place for her to alight; that she attempted to alight in a proper manner, and that she was without fault; and that passengers were in the habit of leaving the car at 'that place. The jury, in reply to the special questions, have found in favor of the claim of the plaintiff, and, as there was testimony upon which to base their findings, we ai’e not at liberty to disturb them. Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99; Teipel v. Hilsendegen, 44 Mich. 461 (7 N. W. 82); Marcott v. Railroad Co., 47 Mich. 1 (10 N. W. 53); Sheldon v. Railroad Co., 59 Mich. 172 (26 N. W. 507); Gibbons v. Farwell, 63 Mich. 348 (29 N. W. 855, 6 Am. St. Rep. 301); Poole v. Railway Co., 100 Mich. 379 (59 N. W. 390, 25 L. R. A. 744).

As to the second question the court charged the jury:

“The accident in question happened at a point near the switch connecting the defendant’s line with the line of the Detroit &; Pontiac Railroad Company’s lines, and after the switch had been turned, and the car was moving towards the defendant’s line of track; and even though you find the defendant company operated its cars from Detroit to Royal Oak over the Detroit & Pontiac line by virtue of a private agreement, still, if the accident resulted from the negligence of the servants and. employes of the defendant company while in charge of the car, and without any contributory negligence on the part of the plaintiff, then the defendant would be liable, and the plaintiff entitled to recover.”

It is the claim of defendant that plaintiff was hurt south of the switch, while the car was on the track of the Pontiac Railway Company, and while the conductor and motorman were under the control of the superintendent of the Pontiac Railway Company; and, while these employés were primarily paid by the defendant company, it was reimbursed by the Pontiac Railway Company, and, if there is any liability at all, it is the Pontiac Railway Company which is liable, and not the defendant company. The record discloses that, upon the fare paid by her, the plaintiff would have been entitled to ride at least a block farther than where she got off, and over a portion of defendant’s road. It also shows the conductor had thrown the switch belonging to the defendant company before the car was started. Whatever may be said of this contract between the parties thereto, it is very clear that it was to the mutual advantage of both the companies to have the cars of the defendant company pass over the track of the Pontiac Railway Company, and to have passengers ride in the cars of the defendant company. The fare which plaintiff paid entitled her to a ride over the tracks of both companies, and, according to the contract, each company was receiving a good and valid consideration for her ride. One received a five-cent fare; the other received a rental for its cars, the privilege of through car service, and all the benefits which such service brought, by giving the defendant company a Detroit terminal. Then, under the most favorable construction which could be given to the contract, the defendant company and the Detroit & Pontiac Company were jointly operating the car on the night in question, and were jointly and severally liable for any tort which may have been committed by their servants. And it is a well-settled principle of law that, where more than one party is guilty of a negligent act, the party injured may proceed against them jointly or severally. Patterson v. Railway Co., 54 Mich. 91 (19 N. W. 761); Roddy v. Railway Co., 104 Mo. 234 (15 S. W. 1112, 12 L. R. A. 746, 24 Am. St. Rep. 333); Keep v. Railroad Co., 10 Fed. 454. See, also, McMillan v. Railroad Co., 16 Mich. 79 (93 Am. Dec. 208); Eureka Springs Railway v. Timmons, 51 Ark. 459 (11 S. W. 690, 40 Am. & Eng. R. Cas. 698); Illinois Central R. Co. v. Kanouse, 39 Ill. 272 (89 Am. Dec. 307).

Judgment is affirmed.

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


text:
    DOTY v. DETROIT CITIZENS’ STREET-RAILWAY CO.
    Street Railways — Personal Injuries — Contributory Negligence.
    A business man of good intelligence, who had lived in a city for a number of years, and was familiar with the running of street cars, stepped ofE a car, started to cross the street, and was struck by a car on a parallel track, which he claimed was shut from his sight by the first car. He testified that he . saw a car on the farther track a block away, but not the car which struck him. Held, that he was guilty of contributory negligence, precluding a recovery for his injuries.
    Error to Wayne; Donovan, J.
    Submitted January 30, 1902.
    Decided February 11, 1902.

      Case by Wirt P. Doty against the Detroit Citizens’ Street-Railway Company for personal injuries. Prom a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Frederic T. Hamuctrd, for appellant.
    Brennan, Donnelly & Van De Mark, for appellee.
   Moore, J.

Plaintiff sued to recover a judgment for personal injuries received by him. The circuit judge directed a verdict for defendant. The case is brought here by writ of error.

The plaintiff is a business man, of good intelligence, who has lived in Detroit a number of years, and who is familiar with the running of street cars. Woodward avenue is one of the main thoroughfares of the city of Detroit, and in the center of the street the defendant maintains a double-track electric railway. The cars run out on the easterly or right-hand track, and into the city on the west track. Plaintiff was aboard an outgoing car on the evening of the accident, and the car stopped at the corner of Willis avenue for him to alight. There was a car in the rear of his car, going in the same direction as the car on which he was riding, about a block away. He knew that cars ran frequently in both directions upon this avenue. As he swung off the car, he claims, he looked up tbe street, and saw a car coming down town at Can-field avenue, which was a block away. It is his claim that he then started across the track in the rear of the car he had just left, listening and looking, and was struck by a car which was shut off from his line of vision by the car he had just left; that he did not see or hear the car until he was struck. The record shows the tracks are four feet and eight inches apart. The car from which the plaintiff alighted had a smoker or extension platform.

It is apparent that by a moment’s delay, allowing the car which he had just left time to move forward, the plaintiff would have a view of the track which would enable him to see any approaching car. It is also evident, if he had exercised ordinary care before attempting to step upon the track upon which the car was approaching which injured him, he would have seen the car. Upon the facts as disclosed by his own testimony, he was guilty of contributory negligence, and the court properly directed a verdict in favor of defendant. Henderson v. Railway Co., 116 Mich. 368 (74 N. W. 525); Doherty v. Railway Co., 118 Mich. 209 (76 N. W. 377, 80 N. W. 36); McCarthy v. Railway Co., 120 Mich. 400 (79 N. W. 631).

Judgment is affirmed.

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


author: Montgomery, J.

text:
    PEOPLE, ex rel. CADY, v. IHNKEN.
    i. Village Clerk — Records—Duty to Make.
    1 Comp. Laws, § 2731, makes the village clerk the clerk of the council, charged with the duty of recording all its proceedings, and provides for the appointment of a clerk pro tem. in his absence. Held, that, where the minutes of a meeting of the council at which the clerk was not present were authenticated on their face by the president and by a member purporting to act as clerk pro tem., the clerk could not refuse to record them on the ground that the member purporting to act was not actually present, but must enter the proceedings, subject to correction by the council.
    3. Same — Attending Counoil Meetings — Mandamus.

      Mandamus will not lie to compel a village clerk to attend the meetings of the council.

      Certiorari to St. Clair; Law, J.
    Submitted January 28, 1902.
    Decided February 21, 1902.

      Mandamus by the People of the State of Michigan, on the relation of Burt D. Cady, prosecuting attorney of St. Olair county, to compel John H. Ihnken, clerk of the village of Algonac, to record certain proceedings of the village council. From an order granting the writ, respondent brings certiorari.

    Modified and affirmed.

      Avery Bros. & Walsh, for relator.

      George G. Moore (W. F. Atkinson, of counsel), for respondent.
   Montgomery, J.

The ■ village of Algonac is incorporated under 1 Comp. Laws, § 2684. The council consists of a president and six trustees. Calvin Currie was president of the village. Three of the five trustees filed with the clerk their resignations. The regular meetings of the council were fixed for the first and third Mondays of each month. On December 16th there was a regular meeting of the council. On that night the president and two of the trustees appeared at the council chamber, but the remaining trustees, and the clerk were absent. The statute (1 Comp. Laws, § 2752) provides that a less number than a quorum may adjourn from time to time, and compel the attendance of absent members in such manner as may be prescribed by ordinance. An ordinance was in existence providing that a minority of the council might cause the absent trustees to be brought in. Those present at the meeting December 16th adjourned until the following day at 1:30 o’clock in the afternoon. At the adjourned meeting a quorum was not present, and they adjourned until the following day at the same time. At this meeting a majority was not present, and, acting under the authority of the ordinance aforesaid, two of the absent trustees, who, together with those present, constituted a quorum, were brought in. They proceeded to transact business, and fill a vacancy in the office of trustee. They then adjourned until the following Friday, and the respondent, who was clerk of the village, was notified to bring the records of the village council, and was also sent the minutes of the meetings of the 16th, 17th, and 18th, at which he was not present, and which minutes were signed by the president, and also by Angus M. Smith, one of the trustees, who acted as clerk pro tem. of these meetings. The clerk appeared at the meeting, but refused to enter up these records, and refused to call the roll of the council, which contained the name of the new trustee. A petition for mandamus was filed in the circuit court to compel the clerk to enter the minutes of the. meetings in the proper record, and perform the duties of his office by reading the minutes at the meeting, etc. An issue was framed before the circuit court on the facts, and, after a full hearing, the judge made a finding of facts, and ordered that mandamus might issue as prayed. The case is brought here for review by certiorari.

The statute (1 Comp. Laws, § 2731) requires the clerk to keep all files and records of the village not intrusted to other officers, provides that he shall be clerk of the council and shall attend its meetings, and provides for the appointment of a member of the council to act as clerk for the time being, in the absence of the clerk, and provides that the clerk shall record all the proceedings and resolutions of the council. The reason assigned by the clerk for his refusal to make the record in question is that it is inaccurate, in that the trustee who purports to sign the record as clerk pro tem. was not present at the meetings. The question is whether the clerk should be permitted to raise this question, or whether, the record on its face being authenticated by the president of the council and by one purporting to act as clerk pro tem., he should enter the record, subject to correction by the council itself. We think it is the duty of the clerk to enter the proceedings of record, and it is not his province to determine as to the accuracy of the proceedings. It is not the contemplation of the law that a controversy to be tried in the courts shall be raised over the truth of a record regular upon its face. While it is the duty of the clerk to enter the record, it is always within the province of the council to correct any errors that have occurred; and the proper proceeding is for the clerk to enter this record, and for the council then to make the correction of any error which is apparent.

Complaint is also made of the order of the circuit judge requiring the clei’k to appear at the next meeting of the council, with his books, etc. We think it is beyond the authority of the circuit judge to direct by mandamus that the clerk attend the meeting. People, ex rel. Fitzgerald, v. Whipple, 41 Mich. 548 (49 N. W. 922). The order of the court will be modified by eliminating this direction, and in other respects it will stand affirmed. No costs will be awarded in this court.

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


text:
    McGREGOR v. GRAND TRUNK ELEVATOR CO.
    Negligence — Defective Appliances — Evidence.
    Plaintiff contracted to make certain repairs to defendant’s grain elevator, defendant to furnish the necessary ropes for a swinging scaffold. The rope furnished, and which plaintiff, who had done similar work for 17 years, examined without finding any defects, broke from dry rot, caused, it was claimed, by the dust in the elevator where it had been used. There was no testimony as to how long the rope had been in the elevator, nor as to the time within which dry rot might be expected to develop; and a large number of elevator men, including defendant’s employé who furnished the rope in question, testified that they had never heard that elevator dust would cause dry rot in a rope. Held, that no negligence was shown on the part of defendant.
    Error to St. Clair; Whipple, J.
    Submitted October 11, 1901.
    Decided March 4, 1902.
    Case by William A. McGregor against the Grand Trunk Elevator Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error. '
    Affirmed.

      George G. Moore, for appellant.

      Stevens & Graham, for appellee.
   Moore, J.

In August, 1899, the plaintiff was at work upon a swinging platform, replacing the iron, and repainting it, on the side of an elevator owned by the defendant. One end of the platform gave way. The plaintiff fell a distance of about 70 feet, and was severely injured. He brought suit to recover damages. The case was taken from the jury by the circuit judge. The plaintiff has brought the case here by writ of error.

The defendant denied any neglect. It denied that it agreed to furnish plaintiff with suitable ropes. It denied that a rope furnished by its foreman was defective, but insists that the trouble was that a knot tied in the rope by the plaintiff himself was not properly tied, and slipped, thus causing the accident.

In his charge to the jury, the learned circuit judge, among other things, said:

I understand the plaintiff’s claim to be, briefly, as follows : The defendant, during the year 1898, had erected a new part or addition to its building; that the new portion had settled and fallen away from the old part, leaving a crack or opening between the two of from 4 to 12 inches in width, extending from the top to the bottom of the building, a distance of 70 feet and upwards. Plaintiff, having nailed the iron sheathing on the new part originally, and painted the whole building, was requested to present a bid for covering this crack at the north and south ends of the building, which he did about July 29, 1899, which was accepted by J. C. Johnston, secretary of the company, by telephone. Plaintiff claims that he then stipulated that Mr. Burke, foreman of the company, should furnish him with the necessary tackle and ropes with which to suspend his platform while doing the work, which was done, plaintiff arranging the tackle personally; that, among others, Burke handed him two ropes with which to make straps to be attached to the crosspiece nailed across two windows in the building, 70 feet or more from the ground, to which he was to suspend his platform. These ropes he examined, unwinding the ends of one piece, and untwisting it in the middle, so as to examine it, then restored the rope to its original condition, seasoning each end, and with it made a round turn on the crosspiece, knotted the rope in such a way as to leave a loop, in which he fastened the tackle with which he elevated or lowered his platform or scaffold. Plaintiff claims this strap was affected by dry rot, peculiar to ropes used in and about grain elevators, of which he was ignorant, and which was commonly known by elevator employés, and should have been known by Burke, and that the company was negligent in furnishing him with a rope thus affected, the breaking of which without fault on his part rendered the company liable to respond in damages for his injuries, which were severe. * ■ * *
“ I do not think plaintiff has shown the existence of such decay in ropes used in and about the elevator, and the common knowledge thereof by elevator men, as would render the company liable for neglect in not knowing this strap was rotten, because there is no testimony showing the length of time, necessary to cause this condition,, nor that this piece of rope had been exposed to the effect of elevator dust long enough, or so that this decay or rotten condition might or should have been expected. For those reasons, I instruct you that defendant is entitled to your verdict.”

The claim of plaintiff, as stated by his counsel, is that:

“Defendant agreed to furnish the plaintiff with ropes with which to sustain his scaffold at an extremely perilous height from the ground, by which he might repair the side of its elevator. The defendant knew that the plaintiff’s life would be endangered, on account of the great height that the scaffold was suspended, if the ropes furnished him were not sound and strong, and sufficient to sustain the ordinary weight and strain that would be placéd upon them in doing his work. It was the duty of the defendant to furnish him with rope that was free from any rot, defects, or imperfections which reasonable and ordinary care on its part might guard against. The rope which defendant furnished did not have this strength, but, because it had been rotted by elevator dust, broke within five minutes after plaintiff began to work upon his scaffold. An inspection after the rope had broken, and while the ends of it hung dangling in the air, disclosed that the strands at the point where the rope had broken were laden with dust, and that the color of the rope in these parts was darker and a deeper yellow than the natural color of the rope. These were signs which, according to the testimony of the elevator men produced on the part of the plaintiff, showed beyond question that elevator rot existed in the rope. A proper examination and inspection of the rope by Burke, the defendant’s foreman, when he handed this rope to plaintiff, would have revealed that this rotten and dangerous condition existed. The signs of elevator rot in this rope were unmistakable to any competent elevator man, and, had Burke made even a casual examination, he would have known that this dangerous rot existed in the rope that McGregor was about to use to sustain himself on a little scaffold more than 70 feet from the ground.”

Was the judge wrong in holding the plaintiff had not shown the existence of such decay in ropes used in and about the elevator, and such common knowledge thereof by elevator men, as would render the company liable for neglect in not knowing that the rope was defective, because there was no testimony showing the length of time necessary to cause this condition, nor that this piece of rope had been exposed to the effect of elevator dust long enough so that this decay or rotten condition might or should have been expected ? It is true that three witnesses testified that the effect of dust in elevators was to dry-rot Manilla rope, and that, when the rope assumed a deep yellow color, it was an indication that it had dry rot. But none of these witnesses testified for what length of time there must be an exposure to dust to produce such a result, nor was it made to appear how long the rope had been in the elevator. One of the three witnesses on cross-examination testified:

“ I do not think a man, to take 1 out of 100, could take one of these lines and bring it here and see the rot on the inside. But you can go and try the line; that is the way to test it. To look at it, the nice yellow would be there yet, and would look like a perfectly good line; but go and put it on somewhere and try it, and then you would find where the mistake would be. I don’t think there would be any way that a line .could be told, whether it was sound or unsound, unless you put a strain on it, that would be out of the 'elevator, unless it was a brand-new line. I would not like to run my risk without trying it, without it was a brand-new line, or I knew how long it had been in the elevator.”

On the other hand, a large number of men who had worked in and about elevators testified that elevator dust did not have an injurious effect upon Manilla rope, and that they had never heard that elevator dust would dry-rot. Mr. Burke, who made the arrangement with Mc-Gregor to do the work, and who, plaintiff claims, furnished him with the ropes, testified to the same thing, as did Mr. Johnston, who authorized Mr. Burke to employ the plaintiff.

The plaintiff himself testified, among other things:

“I went in the elevator again, and asked Burke for a couple of straps to make these blocks fast. He was putting on his overalls, right in the way of the door. He put them on and buttoned them, and turned around about eight feet from the door, where there is a pile of junk there, and picked up two pieces of line, and said, ‘ There are two good pieces of line; they will hold you.’ I said, ‘Yes.’ I took them out of his hand. He told me, ‘ There are two good pieces of line, Mac. They will do you.’ ”

Did the plaintiff rely upon this statement ? On the cross-examination he said:

‘ ‘ Q. After he told you that, you still went to work and examined them ?
“A. Yes, sir.
Q. And you unlaid the rope ?
“A. I unlaid both ends about that far, and laid it up again.
Q. You unlaid it; that is, at the ends?
“A. Yes; a foot and a half, or, say, two feet.
Q. Undid them?
“A. Yes.
Q. So you had the whole of the fiber exposed there?
“A. Yes.
Q. At those ends ?
‘‘A. Yes, sir. * * *
Q. How did you fix the ends of the rope so they wouldn’t unravel, after you had unwound them ? • How did you fix them back ? How did you fix the ends of the rope after you unwound them, so they wouldn’t unravel ?
“A. I laid them up again, and put a rope yarn around the end of them'.
Q. Did you season both ends ?
“A. Yes.
Q. With a little bit of the rope ?
“A. Yes, sir. * * *
Q. It appeared to you to be strong?
“A. Yes, sir.
Q. And you have used ropes for this purpose for how many years ?
“A. Off and on, when I struck a job like that, I have used them for 16 or 17 years, when I have to do a high job.
Q. And you have worked around this same elevator the year before, there, for some two or three months ?
“A. Yes, sir.”

It is true, he testified he knew nothing about elevator dust causing dry rot; but Johnston and Burke testified they knew nothing of elevator dust causing dry rot. If this plaintiff, who had pursued a business for 17 years where he used a rope for like purposes, and where his safety depended upon the strength of the ropes he used in suspending his scaffold, was not negligent in not discovering the trouble with this rope and in the use of it, we do not see how the defendant can be regarded as negligent' because its employé who furnished the rope did not have any knowledge of any defect in the rope, and when the record does not show anything in the nature of his employment which would make it likely he would know whether a rope which appeared strong was in fact affected with dry rot.

In view of all this testimony, we think the action of the judge in directing a verdict should be affirmed.

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


text:
    HAINES v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Personal Injuries — Damages—Evidence.
    Where, in an action for personal injuries, the declaration alleged that, as a result of such injuries, plaintiff was for a long time in a condition of severe mental, nervous, and surgical shock, the testimony of a doctor as to the seriousness of the shock to plaintiff was not objectionable as amounting to a conclusion.
    2. Evidence — Hearsay—Harmless Error.
    In an action against a railway company for injuries at a street crossing, the admission of the testimony of a passenger that the station agent at a station near the place of the accident told him, in reply to an inquiry, that the train was 23 minutes late, if erroneous, was not prejudicial, the engineer having given substantially the same testimony as to the lateness of the train.
    3. Personal Injuries — Evidence—Mortality Tables.
    Where, in an action for personal injuries, there was testimony on the part of plaintiff that his injuries were of a permanent character, it was not error to admit the mortality tables in evidence.
    4v Railroads — Crossings — Negligence — Evidence — Speed oe ■ Train — City Ordinance.
    In an action against a railway company for injuries at a street crossing, it was not error to admit in evidence a city ordinance limiting the rate of speed of trains in the city, in view of defendant’s objection that it was incompetent and irrelevant, and the judge’s charge that, if the train was running at a greater rate of speed than allowed by the ordinance, it might be considered as a circumstance from which negligence might be inferred, but, if it was not so running, then the rate would not of itself be evidence of negligence.
    5. Same — Contributory Negligence — Question eor Jury.
    Where, in an action against a railway company for injuries at a street crossing, the testimony on behalf of plaintiff tended to show that he stopped his horse, and looked and listened, at a point some 75 feet from the track, which was the usual and proper place for stopping, because one could there get a better view of the track than anywhere else, and beyond that could not turn around because of the narrowness of the road; that he continued to look and listen as he proceeded, but discovered nothing to indicate that a train was approaching; that the whistle was not sounded nor the bell rung; and that his view of the train was cut off by intervening objects, — it could not be said, as a matter of law, that he was guilty of contributory negligence, though such testimony was contradicted in several particulars.
    Error to St. Joseph; Yaple, J.
    Submitted December 11, 1901.
    Decided March 4, 1902.
    Case by Thomas J. Haines against the Lake Shore Sc Michigan Southern Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Boudeman & Driver, for appellant.

      Marshall L. Howell, for appellee.
   Moore, J.

This is an action commenced by the plaintiff against the defendant to recover for an injury received by him at a crossing of the highway over the Lake Shore railway track at the city of Three Rivers. He recovered a verdict. The case is brought here by writ of error.

The accident occurred in the early evening. Rock River avenue enters the city of Three Rivers, coming from the northwest, going towards the southeast, until near the crossing of the Lake Shore railway track, which is on Fifth street, when Rock River avenue turns to the east upon Fifth street. This avenue does not run parallel with the railway company’s right of way, but for a portion of the way before reaching Fifth street it runs nearly so. It then turns to the left and crosses the railroad track. The plaintiff was a practicing physician, aqd on the evening in question he made a professional call on Rock River avenue, and then started for his home in Three Rivers. The train of defendant coming from the north was late. He drove along until he came from 50 to 75 feet from the track, when he claims to have stopped, looked, and listened, and, not hearing any indication of a train, he continued his journey, continuing to look and listen, when the first intimation which he had of the coming train was the flash of the headlight upon his horse. The plaintiff testified he stopped at the usual distance for stopping at that crossing, and looked and listened. In reply to the question of what he meant by the usual distance he said:

“ At that place the usual distance is where the roadway turns to go across the track. There is quite an abrupt turn. It is at a distance between 50 and 75 feet, somewhere along there. There were two trees over in the road, and, as I stopped my horse to look up the track, the trees were just a little ahead. ■ They were outlined against the embankment beyond and right up against the sky. My hearing and eyesight were good. I neither heard nor saw the train. There was no signal given by anybody, or any warning of the coming of the train, tó my knowledge.
Q. State whether or not you could have turned at that point, if you had desired to.
“A. I don’t believe any one could have turned at that place without backing up and turning. You might take a long time and turn around. '
Q. For what reason ?
“A. On account of the narrowness of the road, which was occasioned by a great pile of brush on the right-hand side and the embankment on the left-hand side. * * *
Q. You say you stopped, and you looked and listened, and heard nothing and saw nothing. Was there any other place along there where you could have stopped and listened so well, or where you could see so well, as at the point at which you did stop, that you know of ?
“ A. I don’t know of any place that would be near enough. If you went further southeast to the track, you would be less safe; and, if you stopped further back, then you would stop before the road turns, and there would be no use of stopping.
Q. Why couldn’t you stop further back?
“A. You are going the same direction as the train is. After I started up, my horse went along at the ordinary gait until the horse was very near the track. I think his head was almost to the track, when suddenly I saw the light on the horse, and the horse threw up his head; and I also saw the light at that time, and he sprung forward, and I realized that the train was there.
Q. Did the bell ring or whistle blow ?
“it. There was no noise, except the rumbling of the train. The buggy did not make any noise as I rode along. There was a light snow falling, and the ground was not frozen. The snow had been damp, I think, during the day, and the wheels cut into the sand pretty well, and made a rut under the wheels. It was so moist that the horse and buggy made no noise.”

The evidence shows the track was not straight, but was curved. The witnesses disagree as to how much the view of the track was obstructed by bushes, and by a cut and the earth thrown out of the cut. It was the claim of the plaintiff that the crossing was a dangerous one; that the train was late, and was running at an unusual rate of speed; that no signal of the approaching train was given; that he himself was free from negligence; and that the negligence of the defendant company was the proximate cause of the accident. The record is a very long one. Upwards of 40 witnesses were sworn. There are upwards of 60 assignments of error, and yet the case does not differ substantially from the other cases which find their way to this court, growing out of personal injuries at highway crossings over railway tracks.

Some assignments of error relating to the admission of testimony call for our attention. It is said the court erred in allowing one of the doctors to testify to the seriousness of the shock to the plaintiff, as calling for a conclusion. One of the things alleged in the declaration is that, as the result of his injuries, the plaintiff was for a long time in a condition of severe mental, nervous, and surgical shock. We do not think the testimony was objectionable.

It is said the court erred in allowing a witness who took the train at Schoolcraft to testify that the station agent told him, in reply to an inquiry, that the train was 23 minutes late, because this was hearsay. We do not need to express any opinion upon that subject, because the defendant’s engineer, who had charge of the engine, testified to substantially the same thing,, and, if its admission was incompetent, no harm was done.

It is said the court erred in allowing the mortality tables to be introduced in evidence; citing Foster v. Village of Bellaire, 127 Mich. 13 (86 N. W. 383). There was-testimony on the part of the plaintiff that his injuries were of a permanent character, and, if this was true, .the testimony was admissible.

Complaint is made of the refusal of' the circuit judge to give defendant’s requests to charge. The defendant offered 37 written requests to charge. Instead of giving all of these requests, the circuit judge gave some of them, and covered all the others which should have been given in a general charge of exceptional clearness, covering every proper phase of the case. The charge itself covers 17 printed pages of the record, and does not omit anything to the prejudice of the defendant.

Error is assigned upon the admission of an ordinance limiting the running of trains to 8 miles an hour. In reply to an inquiry by the court, the counsel stated his objection was that any ordinance relative to the speed of trains is incompetent and irrelevant. It was afterwards shown that, by resolution, the speed of trains at this point was allowed to be 20 miles an hour. It may be well to quote from 2 Thomp. Neg. (2d Ed.) §§ 1552-1554:

“As already seen, the rights of the general public traveling a common highway and of a railway company crossing it are reciprocal; and, although common conven-1 ience and the rights of the traveling public to rapid transit give the railway train precedence upon the crossing, it is upon condition that those in charge of the train will give reasonable warning of its approach, so that a person or a vehicle upon the highway may stop and wait for it to pass. Gates, gatemen, and automatic signals at crossings may dispense with the duty of giving audible signals from approaching trains; but the traveling public have the right to a reasonable and adequate warning of the fact that a train is approaching, -whether such warning be given at the crossing itself or from the approaching train. As to the nature and kind of warning which the railway-company is bound to give, the law does not undertake to lay down a rule applicable to all cases. Ordinarily, the ringing of the bell or the sounding of the locomotive whistle as the train approaches the crossing, and within a reasonable distance from the same, is no doubt sufficient; but at crossings peculiarly dangerous the maintaining of gates, gatemen, or automatic signals may be demanded as a reasonable safeguard to the public. As we shall more fully see when treating of the contributory negligence of travelers at railway crossings, judicial opinion tends to the conclusion that, in the absence of directions embraced in statutes and municipal ordinances, the railway company discharges its general duty by giving such warnings as may reasonably be expected to protect travelers who themselves are in the exercise of reasonable care and vigilance. As the law cannot undertake to lay down any exact rule on the subject of the number and kind of signals required, the same depending upon the character of the crossing, the speed of the train, and all the surrounding circumstances which determine the danger to be anticipated and provided against, it becomes in most cases a question of fact for a jury, under proper directions from the court, as in other cases. * * * This duty exists independently of statutes or ordinances. It is usually regarded by the courts as imperative, and negligence is either conclusively ascribed to its omission, or it is regarded as evidence of negligence to be considered by a jury, provided, however, that this omission is the proximate cause of the accident to the traveler, who is himself without contributory fault. In such cases, a traveler who has exercised what care he can by the use of his faculties is justified in assuming that the railway company will not neglect this duty. * * *
‘ ‘ Although the legislature has granted to a municipal corporation a general power to make regulations upon this subject, yet this power is subject to the common-law principle that municipal ordinances must be reasonable, and that whether they are reasonable or unreasonable is a question to be determined by the judicial courts. Exercising this power, it has been held that a municipal ordinance requiring the ringing of the bells of locomotives at street crossings, and the presence of flagmen at the more important crossings, is reasonable and proper, and so of an ordinance requiring the ringing of the bell of a locomotive within the corporate limits of the city; and the ordinance is applicable even to the yards of the railroad company, situated in a thickly settled portion of the city, and traversed by people at all times and places; and so of an ordinance requiring the bell of a locomotive to be continually rung while the locomotive is in motion within city limits, and prohibiting the running of locomotives at more than five miles an hour, as applied to a street crossing within three blocks of the railway depot in the city.”

We do not think the court erred in admitting the ordinance in evidence, in view of the objection, and his charge as to what constituted negligence on the part of defendant.

The most serious question in the case is, Did the court err in submitting the case to the jury? Counsel for defendant say the court should have directed a verdict for the defendant. In the case at bar the statement of plaintiff that he stopped and looked at the proper place, because at that point he could get a better view of the track than at any other point, and that, because of the narrowness of the road nearer the track, one could not turn around, if it was necessary to do so, was sustained by the testimony of several witnesses. The case is nearly parallel to Whitman v. Railroad Co., 156 Pa. St. 175 (27 Atl. 290), where the court said:

“The learned judge nonsuited the plaintiff for violation of the rule which requires a traveler, about to cross a railroad track, to stop, look, and listen, because he held that the evidence showed that, where plaintiff stopped, the trains could neither be seen nor heard. The rule has been enforced and reiterated in so many cases, from Pennsylvania R. Co. v. Beale, 73 Pa. St. 504 (13 Am. Rep. 753), down, that it needs no further discussion. As was said in McNeal v. Railway Co., 131 Pa. St. 184 (18 Atl. 1026), experience has confirmed the wisdom of its adoption, and it will not be relaxed nor pared down by exceptions. But it is a rule which in its nature is, applicable only to clear cases, to those which practically only admit of one view.
“We are unable to agree with the learned judge that this is such a case. It is true that the place where plaintiff stopped was 100 feet away from the track, and afforded a very short view, about 35 yards to the eastward, and that further view was then cut off, not only by a curve in the track, but by a hotel. But, notwithstanding these disadvantages, five witnesses besides the plaintiff, one of them a liveryman, testify that this was the proper and customary stopping place, used by drivers coming in that direction. The witness Ervin explains why this place is preferred, because there is a break or level place in the road, which then runs at a down grade until so near the track that some horses cannot safely be checked there. Plaintiff and the driver testified that they not only stopped nt this point, and waited until two trains in opposite directions had passed, but then drove on, and ‘slacked up* nearer the track, ‘ to see or hear whether there was anything coming.’ In the face of this testimony, we do not think the court could,safely say, as matter of law, that the place where plaintiff stopped was not one which reasonable prudence would sanction for the purpose.”

See Grenell v. Railroad Co., 124 Mich. 141 (82 N. W. 843); Chicago, etc., R. Co. v. Miller, 46 Mich. 532 (9 N. W. 841).

In this case the claim that no signals were given by ringing the bell or blowing the whistle was not simply that the witnesses did not hear them, but some of the witnesses say they were listening, that they heard the rumble of the train, and one of them says no whistle was blown until the train was directly upon the crossing. This testimony was disputed by the ttain men and other witnesses called by defendant. The question of whether the train ■could be seen or not was also a disputed question in the case about which witnesses differed. In Becker v. Railway Co., 121 Mich. 580 (80 N. W. 581), it is said:

“The rule is well settled that the question of plaintiff’s contributory negligence should be submitted to the jury when the testimony is conflicting, or where the case is not free from doubt upon the facts, or where candid and intelligent men might reach different conclusions upon the facts. Swoboda v. Ward, 40 Mich. 420; Teipel v. Hilsendegen, 44 Mich. 461 (7 N. W. 82); Chicago, etc., R. Co. v. Miller, 46 Mich. 532 (9 N. W. 841); Lewis v. Railway Co., 54 Mich. 55 (19 N. W. 744, 52 Am. Rep. 790); Palmer v. Railroad Co., 56 Mich. 1 (22 N. W. 88); Staal v. Railroad Co., 57 Mich. 239 (23 N. W. 795); Luke v. Mining Co., 71 Mich. 364 (39 N. W. 11); Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457); Adams v. Iron Cliffs Co., 78 Mich. 271 (44 N. W. 270, 18 Am. St. Rep. 441); Brezee v. Powers, 80 Mich. 172 (45 N. W. 130); Underhill v. Railway Co., 81 Mich. 43 (45 N. W. 508); Guta v. Railway Co., 81 Mich. 291 (45 N. W. 821); Engel v. Smith, 82 Mich. 1 (46 N. W. 21, 21 Am. St. Rep. 549); Roux v. Lumber Co., 85 Mich. 519 (48 N. W. 1092, 13 L. R. A. 728, 24 Am. St. Rep. 102); Graves v. City of Battle Creek, 95 Mich. 266 (54 N. W. 757, 19 L. R. A. 641, 35 Am. St. Rep. 561).”

See, also, Willet v. Railroad Co., 114 Mich. 411 (72 N. W. 260); Ryan v. Railway Co., 123 Mich. 597 (82 N. W. 278).

The case- was very carefully tried, and we do not find any reversible error in it. Judgment is affirmed.

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

       Viz.: ‘ ‘ The plaintiff claims, as I have said, that the defendant was running its train at a greater rate of speed than 20 miles an hour within the limits of the city of Three Rivers, in violation of the ordinance which has been introduced in evidence. For the purpose of this trial, you will assume that said ordinance was valid and in force in said city at the time of the accident in question. The plaintiff agrees that, for the purpose of this trial, it shall be considered as limiting the rate of speed of railway trains within the limits of said city to 20 miles an hour, or, in other words, as permitting a rate of speed of 20 miles an hour. The defendant claims that the train was not running to exceed- the rate of 20 miles an hour. If you find from the evidence in the case that this train was running at a greater rate of speed than 20 miles an hour when approaching the crossing in question within the limits of said city, then such act on the part of the defendant may be considered by you as a circumstance from which negligence may be inferred in determining whether the defendant was or was not guilty of negligence. If you find that the rate of speed of the train in approaching the crossing within the limits of the city of Three Rivers was no greater than the rate permitted by said ordinance, — that is, if it did not exceed 20 miles an hour, — then the rate of speed at which the train was running cannot of itself be considered by you as á circumstance from which negligence may be inferred.
      “But it may be negligent for a train to approach a crossing in a city or village at a rate of speed no greater than that permitted by an ordinance of the city or village. But there must be facts and circumstances, apart from the rate of speed itself, tending to show that it was careless to run at the rate of speed complained of, or a finding of negligence would not be warranted. While there maybe circumstances which would require a less speed than the rate permitted by such ordinance, it is only the force of those circumstances which creates such duty. If, in view of the situation of the crossing in question, and its surroundings as shown by the evidence, ordinary, reasonable care and prudence, and due regard for public safety, required the railroad company to run at a less rate of speed, then it was the duty of the company to observe such care and prudence, and its failure so to do would be negligence on its part. The ordinance of the city of Three Rivera, permitting the company to run its trains within the limits of the city at the rate of 20 miles an hour, would not justify such speed, if in fact negligent in view of the surrounding circumstances. It is for the jury to determine, from the evidence in the case, the rate of speed at which the train in question was running when approaching the crossing, and at the time of the accident, and whether or not such speed was negligent; and, in determining that question, you may consider, not only the testimony of witnesses as to their opinion of its speed, but also the testimony concerning the manner in which the train was stopped, the distance run by the train after striking the carriage of plaintiff and before it could be stopped, and all of the facts and circumstances bearing upon the question as shown by the evidence.”