author: Montgomery, J. Grant, J.

text:
    ANDERSON v. MICHIGAN CENTRAL RAILROAD CO.
    1. Master and Servant — Saeety oe Premises — Delegation oe’ Duties — Fellow-Servants.
    The duty resting upon the master to provide a reasonably safe-place for the employé to perform his services is a personal one, and cannot be shifted or evaded by any attempt to delegate it to one who happens to be, as regards some of his duties, a fellow-servant of such employé. It is also a continuing duty, to the extent that it requires the master to provide reasonably for the inspection, and, if need be, for the repair, of premises or appliances.
    2. Same — Railroad Companies — Trainmen and Section Men— Negligence.
    It is no defense, therefore, to an action against a railroad company by a brakeman for injuries sustained by reason of a defect in the track (e. g., an abrupt depression in one of the rails), that the immediate cause of the accident was the neglect of the section men, who were charged with the duty of' keeping the track in repair. Grant, J., dissenting.
    3. Same — Instructions—Duty as to Repairs.
    In such case, an instruction that, if the defendant allowed its track to become out of repair, it is liable for the resulting damage, is erroneous, since, if the track was reasonably safe as-originally constructed, the measure of defendant's duty was the exercise of reasonable watchfulness and inspection to see that it continued in such condition.
    4. Trial — Credibility oe Witness — Remarks oe Court. It is error for the court to express an opinion, in the presence of the jury, as to the weight of testimony introduced as hearing upon the credibility of a witness. Per Grant, J.

      5. Same — Conduct of Counsel.
    A witness is not discredited merely because he is an employé of the party on whose behalf he testifies, and counsel should not be permitted to advance that theory in argument to the jury. Per Grant, J.
    6. Railroad Companies — Injury to Brakeman — Contributory Negligence.
    Where a car immediately preceding that upon which a brakeman was riding left the track, and the brakeman, while responding to a signal for brakes, was crushed between the two cars, it was held, by Grant, J., that the brakeman was not, as matter of law, guilty of contributory negligence in going to the front of the car, rather than to the rear, for the purpose of applying the brake, it appearing that, although the course taken exposed him to greater danger, he could thereby render more effective service.
    7. Same — Responsibility for Negligence — Contract — Public Policy.
    A railroad company cannot, by contract with its employé, relieve itself from liability for its own negligent acts. Per Grant, J.
    Error to Bay; Maxwell, J.
    Submitted April 2, 1895.
    Decided December 24, 1895.
    Case by Olive Anderson, administratrix of tbe estate of William Anderson, deceased, against the Michigan Central Railroad Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Reversed.

      JET. II. & O. II. Hatch, for appellant.

      Julian G-. Diclcvnson, for appellee.
   Montgomery, J.

Plaintiff’s intestate, William Anderson, was a brakeman in the employ of the defendant company on what is called the “Vanderbilt Branch.” On the 16th of September, 1892, the train upon which the decedent was employed consisted of about 10 cars and a caboose. There were two Blue Line cars, so called, —one ahead of the engine, and the other (the last car but one) being nest the caboose or way car. When the train reached a point at the top of a grade, and was just beginning to increase its speed, the Blue Line car that was nest the caboose ran off the track. The wheels ran along the ties for some distance, when the forward truck turned sidewise, and began to plow up the ties. The forward end of the Blue Line car was depressed, and the rear end was raised so that it cleared the rail of the platform on the way car, crushing Anderson, who was engaged in setting the forward brake of the way car; the engineer having, before this, whistled for brakes. The negligence complained of was that' the company failed to maintain its track in reasonably safe condition. The testimony offered by plaintiff tended to show that the point in the track where the car left it was the central point in a reverse curve; that at the point where the two curves came together there was a depression in the south rail of the track; that up to this point, as one goes west, this rail had been the outside rail of the curve, and had been considerably higher than the north rail; a short distance further west it became the inside rail, and lower than the north rail. It is claimed that it should have shaded gradually from the superior elevation to the inferior elevation, but that in fact there was a sudden and sharp drop in the elevation of this rail, which had the effect of causing the car to leave the track. The plaintiff recovered a verdict, and defendant appeals. It is claimed by the defendant that those having charge of this tra<jk were fellow-servants of the deceased, and defendant is not responsible for their neglect of duty, and, furthermore, if the duty to inspect and repair the track was the duty of the master, the circuit judge erred in his instructions to the jury, in that he, in effect, laid down a rule which would make the company an insurer of its track.

It appeared that, prior to this accident, there had been two other accidents at or near the place of the injury. One Burns was road-master, and one McMahon assistant road-master. The latter had authority to direct the section men. After one of the prior accidents, McMahon sent the section men to repair the track, but the defect in question was not remedied. Defendant requested the court to charge the jury that, if the car in question ran off the track because the south rail was not sufficiently elevated, the neglect to elevate and repair the same was the neglect of the section foreman in charge of that part of the track, and, the section foreman being the fellow-servant of the deceased, William Anderson, plaintiff could not recover; and, further, that the undisputed testimony showed that the depression referred to was not the result of any fault in the original construction of the track, but was caused by the ordinary use of the track, and that, there being such depression existing, it was the duty of the section men to repair it; and, further, that the section or track men were fellow-servants of the brakemen. If the master has any duty to inspect the premises to see that they continue in reasonably safe condition, or if, having notice of defects, he is bound to repair them, and cannot delegate the duty and thus escape responsibility, it would seem that these instructions were inappropriate, for it would appear that, McMahon having general charge of these tracks, and notice that an accident had occurred at the point where the injury resulted to deceased, it was his duty, as representative of the master, to see that the track was in proper condition.

It is very clearly the law in Michigan, and most other jurisdictions, that the duty to provide a reasonably safe place for the employé to perform his services rests upon the master, and that this duty is one that cannot be shifted or evaded by any attempt to delegate it to one who happens to be, as regards some of his duties, a fellow-servant of the employé whose safety is involved and to be provided for. This doctrine is enunciated and recognized in both opinions in Beesley v. F. W. Wheeler 6 Co., 103 Mich. 196, and in Dewey v. Railway Co., 97 Mich. 329, and is fully discussed by Mr. Justice Hooker in Balhoff v. Railroad Co., 106 Mich. 606. See, also, Van Dusen v. Letellier, 78 Mich. 492. This duty is also a continuing one, to the extent that it is required that the master shall provide reasonably for the inspection, and, if need be, for the repair, of premises or appliances. 7 Am. & Eng. Enc. Law, 830, and cases cited.

In Tangney v. J. B. Wilson & Co., 87 Mich. 455, Mr. Justice Morse, speaking for the court, said: '

“It was the duty of defendant to provide a safe place for plaintiff’s work, and to furnish safe and suitable appliances to be used in and about his work. And its duty did not end here. It was also its duty to see that the appliances so furnished should be kept safe, so far as reasonable and proper watchfulness and inspection would enable it to do so.”

See, also, Bailey, Mast. Liab. p. 36; Roux v. Lumber Co., 94 Mich. 607; Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368; Louisville & N. R. Co. v. Ward, 10 C. C. A. 166.

The cases that are claimed to establish the rigid doctrine that section men are in all cases fellow-servants of the trainmen are considered and distinguished, perhaps sufficiently, by Mr. Justice Hooker, in Balhoff v. Bailroad Co. It will be found on examination that in Michigan Central R. Co. v. Austin, 40 Mich. 250, the doctrine was not necessary to the result reached. In the case of Loranger v. Railway Co., 104 Mich. 80, the opinion shows that the injury resulted from the dumping of ashes on the track by a fireman of the defendant. The ashes were fresh, and it is plainly to be implied that no fault of failing to inspect occurred; and well might the case have rested upon this ground, or upon the ground of contributory negligence. In Schaible v. Railway Co., 97 Mich. 318, the injury resulted, not from fault in the appliances, but from neglect in their use. Piquegno v. Railway Co., 52 Mich. 40, is a case in which Mr. Justice Cooley distinguishes between the responsibility of the company for obstructions to the track caused by use, and defects in the track itself.

The charge of the court was in part as follows:

“The plaintiff requests me to charge you that ‘it was the duty of the defendant to provide a reasonably safe track and equipments, and to keep the same in repair; and if it did not do so, but allowed its track to become out of repair in the particulars claimed on behalf of the plaintiff, and if that was the cause of the accident in which William Anderson lost his life, then you will return a verdict for the plaintiff/ That is all right, with the qualification,' — and I give it with this exception,— excepting the deceased himself contributed to the injury.”

And again:

“In answer to some of these requests, perhaps I-should state that the railroad company must furnish a place for its employés to work upon that is reasonably safe.”

If the road was reasonably safe as originally constructed, the duty of the company was to exercise reasonable watchfulness and inspection to see that it continued in a reasonably safe condition. Tangney v. J. B. Wilson & Co., supra. This is conceded by plaintiff’s counsel to be the measure of the defendant’s duty; but it is claimed that, under the facts of the case, this neglect of reasonable inspection conclusively appeared, and also that the jury could not have interpreted the charge above quoted as imposing on the company a duty to see, at its peril, that the track continued safe. We think the question of whether the defendant’s employés used reasonable care in inspection was, under the proofs, a question for the jury, and we are not able to say that the other portions of the charge cured the error in this instruction. It is true, the court charged that there must be negligence on the part of the company, but he did not, otherwise than as shown by the quoted portions of the charge, define what that negligence must be. We are not prepared to say that the jury may not have been misled.

Judgment reversed, and a new trial ordered.

McGrath, O. J., and Hooker, J., concurred with Montgomery, J. Long, J., did not sit.

Grant, J.

The accident which resulted in the death of the plaintiff’s intestate occurred on what was called the “Vanderbilt Branch” of the defendant’s railroad, which was between 11 and 12 miles long. It was a logging road, and had been in use several years, doing a large amount of business. The business had fallen off, and the defendant was proceeding to dismantle the road. For this purpose one Sargeant, the assistant road-master, was gathering up the cars, preliminary to removing the track. He had picked up 9 or 10 cars, with which he was returning at the time of the accident. A Blue Line car was ahead of the engine, and another in front of the caboose, the rear car of the train. Upon reaching the top of a grade, and while on a slight reverse curve, the Blue Line car in front of the caboose jumped the track. The engineer whistled for brakes, and the train was stopped after running nearly 400 feet. The deceased was rear brakeman, and was seen in the cupola of the caboose (his proper place) at the time the car jumped the track. The front end of the Blue Line car had dropped down upon the track, and the rear end was raised up so that the bottom of it was about a foot and a half higher than the top of the brake of the way car. The deceased was caught between the ends of the two cars, and instantly killed. The declaration contains eight counts, alleging various acts of negligence. All but one were abandoned upon the trial, and the case was left to the jury on the theory that the accident was caused by tbe depression of tbe outside rail of the curve.

1. One Hutton was the principal witness for plaintiff, and at the time of the accident was a section foreman on the defendant’s main line. One Asselyn was the section foreman on the branch. Hutton had testified that he went in on the following morning, in obedience to instructions, to repair the track. On cross-examination he was shown a book kept by him, in which he made entries of the work performed by him and the men under him, and in which it was claimed by the defendant that no entry was made of his being at the place, or doing any work, repairing the track, after the accident. This was for the purpose of attacking the credibility of the witness. On redirect examination, counsel for plaintiff asked a question for the purpose of explaining the reason why such entries were not made. To this counsel for defendant objected. A colloquy arose between counsel and the court, during which the court said: “Well, I don’t think the question is very material. Because he did not account for an hour or two in the morning, in an exact manner, don’t reflect any question of the honesty of his bookkeeping.” The remark was uncalled for, and was outside the province of the judge. The explanation called for was, of course, proper, and, if the book contradicted his parol statement, the entire subject was for the consideration of the jury. The remark would naturally tend to prejudice them, and cannot be excused by the fact that counsel had made a remark reflecting upon the witness.

2. The attorney for the plaintiff, in his final argument to the jury, said:

“Every one of their witnesses knows that if he testified anything to the injury of the Michigan Central Railroad— Every one of those witnesses is interested, to the extent that he -wants to keep his job. Every one of those witnesses knows that, if he testifies anything to the injury of the Michigan Central Railroad Company, he puts that job in jeopardy.”

We think circuit judges should promptly condemn the use of such intemperate language, if there is no evidence to sustain it. It •would be a reflection upon employés to hold that they are discredited as witnesses simply because they are employés. There is no presumption that they will testify falsely, or warp their testimony, to keep their jobs, or that employers are inhuman enough to discharge them for telling the truth. It is entirely competent for attorneys to argue to juries bias and interest on the part of witnesses who are relatives or employés of litigants. But, in the absence of evidence to sustain them, counsel should not be permitted to make charges like those contained in the above language.

3. The defendant alleges error in the refusal of the court to instruct the jury that the deceased was guilty of contributory negligence because he went to the front, rather than the rear, of the caboose, to apply the brake. The theory is that the front platform was more dangerous than the rear, and that the deceased chose the more dangerous place. The court left the question of contributory negligence to the jury. We think he might properly have instructed them that there was no evidence of contributory negligence. The deceased was at his post in the cupola when the car ran off. It became necessary to stop the train as soon as possible. The engineer signaled for brakes. The conductor of the train, in response to questions by defendant’s counsel, testified that the use of the front brake was more effectual than the rear one, in stopping the train. There is no evidence to the contrary. With a car off the track, there was more or less danger in both places, and the deceased cannot be held guilty of contributory negligence for going to that place where he could render the most effective service. The instruction was more favorable than the defendant was entitled to.

4. The court instructed the jury as follows:

“It was the duty of the defendant to the plaintiff’s intestate to provide a reasonably safe track and equipments, and to keep the same in repair; and if it did not do so, but allowed its track to become out of repair in the particulars claimed on behalf of the plaintiff, and if that was the cause of the accident in which William Anderson lost his life, then you will return a verdict for the plaintiff.”

The court also repeated the statement “that the railroad company must furnish a place for its employés to work upon that is reasonably safe.”

It is contended that this is error, and that the true rule is that the employer is bound only to the exercise of reasonable care and diligence in endeavoring to provide the employé with a safe place in which to work, and that, if the employer has exercised such care, he is not responsible for consequences, though the place where the employé is to work becomes unsafe. The expression used by the circuit judge is found in many decisions, and is applicable to the facts of those cases, and must be SO' construed. The rule of the learned circuit judge, applied to the present case, would result in making the employer the insurer of a reasonably safe place in which to work, notwithstanding he may have exhausted all reasonable care and diligence to malee it so. No claim is made, nor is there any evidence tending to show, that the defendant did not properly construct its road. The sole claim is that the ties at the ■outer side of the curve became depressed, by use, from 1 to 2i¿ inches, for a distance of 7 or 8 feet, and that the sudden dropping of the car from the higher to- the lower ground caused it to jump the track. The original ■construction of the road is therefore not before us for ■consideration. The road having been properly constructed, the sole duty of the defendant was to exercise reasonable care and diligence to keep it in a proper and safe condition. Plaintiff’s counsel cites a large number of authorities to sustain the rule laid down by the circuit judge, and to show that the duty to supply a reasonably safe place is absolute. An examination of those cases will show that the language used was applied to places shown by the plaintiffs’ testimony to be unsafe per se. Swoboda v. Ward, 40 Mich. 420, and Huizega v. Lumber Co., 51 Mich. 272, were cases of uncovered machinery, where inexperienced persons were employed, and no caution given. Parkhurst v. Johnson, 50 Mich. 70, was. a case where an inexperienced laborer was not warned against the danger. In James v. Mining Co., 55 Mich. 335, an inexperienced laborer, not a miner, was not warned that there was danger the mine would cave in. In Smith v. Car Works, 60 Mich. 501, the deceased, a molder, was directed to carry a ladle of molten iron over ice with water standing on it, — a work which was outside the obvious scope of his employment. The negligence consisted in not informing him of the latent danger from explosion if the molten iron came in contact with the water and ice, and in instructing the molders to carry it over an unsafe place. The instruction should have been that it was the duty of the defendant to use reasonable care and diligence in inspecting its track, and keeping it in safe condition. Wood, Mast. & Serv. § 410; Fosburg v. Fuel Co., (Iowa) 61 N. W. 400; Lindstrand v. Lumber Co., 65 Mich. 261.

5. It is next contended that the deceased, under his contract, assumed all the risks of his employment as brakeman. The contract recited that his ■ duties had been explained to him, and that the performance thereof would expose him to great danger, the risk’ of which he would assume for himself, and that he would use a constant and proper care to avoid injury to himself and others. This contract cannot be construed to relieve the defendant from the consequence of its own negligent acts. If that were its intent, it would be contrary to public policy, and void. He assumed all the risks and dangers incident to a dangerous business. The testimony on the part of the defendant tended to show that the track was in proper condition, and that cars oftentimes jump the track when it is in good condition, and it is impossible to detect the cause. The jury should have been instructed that, if this was the case, the deceased assumed the risk, and no liability attached to the defendant. This rule is too well established to require the citation of authorities.

6. The defendant requested the court to instruct the jury as follows:

“(1) The undisputed testimony is that the depression in the south rail of the track, described and referred to in the testimony, was not the result of any error or fault in the original construction of the track, or its plan, but was caused, if there was any such depression, by the ordinary use of the track by trains running over it. There being such depression existing, it was the duty of the section men to repair it.
“(2) Section men or trackmen are fellow-servants of the brakemen; and, if the accident was the result of or was caused by a depression in the track, the existence of the depression was the negligence of the track-men, and therefore the plaintiff cannot recover.”

These requests were refused.

The theory of the plaintiff was that it was the duty of the defendant, at all events, to keep its track in reasonable repair, and she rested her case upon evidence of the depression of the rail. She requested the following instruction:

“The railroad company could not delegate to employés the duty of keeping its track in reasonable repair, so as to relieve itself from responsibility therefor to plaintiff’s intestate.”

The judge read this request to the jury, and said:

“I have got to refuse that, in the form in which it is presented, but on that subject I will say that if it was the duty of this man Asselyn and his hired man, Scott, to keep that track in repair, and they were merely the hired men of the company, in the ordinary, — I will not say what I was going to, — and they failed to keep it in repair, why, the injury in that case might arise from the act of the coemployé, and the railroad company is not liable. But the testimony in that connection shows that Mr. Burns was superintendent over that branch of the subject, and the care .of the road with Mr. McMahon, and then other parts of the road with the division superintendents. If the matter was in charge of Mr. Burns, in that sense, the blame would fall on his misconduct, and the railroad company might be liable. * * * Now, having passed the first question of the decedent’s carelessness, then on the question of the defendant’s negligence, then you will take up the third, — why it was caused, who caused it, was it a coemployé, or was it one of the principal officers of the company, whose duty it was to see that the road was in proper condition? If it was a coemployé, the plaintiff cannot recover; and if it was the head road-master, or manager above that, as a representative of the company, you may hold the road liable for it.”

Counsel, in his brief, says:

“It was perfectly proper for the court to say to the jury, 'If you find there was a depression in the rail, so sudden and sharp that it threw this car from the track, under the circumstances of this case, I charge you that the condition was the result of negligence on the part of the defendant company, or some of its agents.’ ”

We do not find this language in the charge of the' court, as printed in the record, and probably counsel intended to say that the court would have been justified in so instructing them. Such is his theory upon which he bases his right of action.

It is established by numerous decisions of this court that trainmen and section men are fellow-servants, and neither can recover against the master for the negligent acts of the other. The defendant’s roadbed was properly constructed. It had furnished properly constructed and equipped engines and cars, and had employed competent servants, both as trainmen and section men. If the engineer had failed to properly manage or inspect and repair his engine, thereby causing injury to a section man, the defendant would not be liable. If the section man failed to perform his duty, legally and properly imposed upon him, by reason of which a trainman is injured, can the latter recover? Why should there be any difference between the negligent act of the engineer, in not properly inspecting, repairing, and managing his engine, and the negligent act of a section man, in failing to properly inspect and repair the track? The place is rendered unsafe by the negligent act of each. There is as much necessity for proper inspection, care, and diligence in the one case as in the other.

About three weeks before this accident, a car jumped the track at or about the same place. Three section gangs, of one of which Mr. Hutton was foreman, were sent to repair it. No question is raised as to their competency. Mr. Hutton testified that he then saw there was a slight depression, but he did not raise the rail, and gave no instructions in regard to it. Probably he did not consider it dangerous. One Scott, then a section man on this branch, testified that they then put in 71 or 72 ties. “Q. Did you do anything to the track itself, at the very spot where that car went off at the time? A. We lifted it in some places, but not quite through. We thought, may be, it was the right place.” About seven days previous to the Anderson accident, another car jumped the track at or about the same place, damaging the track. This also was repaired by the section men. Hutton is the only witness who testified to any depression prior to the Anderson accident. He testified, “The defect was not in the original construction of the track, but the use of the track had made it lower at this spot.”

It is agreed by all the witnesses that it was the duty of the section men to put the track in proper condition after these accidents. If one rail was too low, it was therefore their duty to raise it. If they failed to repair it properly, such failure was the negligent act of a fellow-servant, for which the defendant is not liable, provided it was proper to commit the inspection and repair to section men; and there is no evidence that this duty is not properly committed to them. If it were made the duty of a road-master, a division superintendent, or other higher official, to inspect the track and see that it is in proper condition, another question would arise, which we need not now discuss. The present record is destitute of any evidence tending to show that good and careful management of a railroad requires the inspection and repair of tracks to be committed to other than section men, or that any such duty was imposed upon Burns or McMahon. The doctrine of a fellow-servant and a safe place will be found discussed, and authorities cited, in Beesley v. F. W. Wheeler & Co., 103 Mich. 196, and Schroeder v. Railroad Co., Id. 213. See, also, Loranger v. Railway Co., 104 Mich. 80; Dewey v. Railway Co., 97 Mich. 329.

The first request should have been given, because it correctly stated the facts and the legal duty of the section men. The second request should have been given, because it correctly states the law, but should have been followed by the instruction that, if the defendant had either actual or constructive notice of the defect, the negligence of the fellow-servant would be no defense. The oral charge of the court, while recognizing the doctrine of fellow-servant, is not sufficiently clear and explicit to correct the error.

Since writing the above, two other cases have been submitted, involving various phases of the doctrine of fellow-servant. McDonald v. Railroad Co. (December 30, 1895, 65 N. W. 597), and Perry v. Railroad Co. (Decem ber 31, 1895, 65 N. W. 608). In both, these and the present case this court is urged to adopt the rule, which appears to have been adopted by the courts of some of the states, that the duty of inspection is imperative upon the master, and cannot be delegated. The principle is the same in each case, and a further discussion of the subject seems appropriate. Stability is of the utmost importance in judicial decisions. A rule adopted and followed by a long line of decisions in this court should not be set aside, unless it is plainly contrary to common sense and reason, notwithstanding that many other courts have adopted the opposite rule. But in other courts the opinions upon the subject are by no means uniform. I am of the opinion that the judgments in these three cases cannot be sustained without overruling nearly all the decisions of this court exempting the master from liability for the negligence of a fellow-servant.

The difficulty in determining whether the negligent act complained of is the negligence of the fellow-servant, so as to relieve the master from liability, is recognized by both courts and text writers. The decision of the New York court of appeals (Flike v. Railroad Co., 53 N. Y. 519) states a general rule, which is recognized by many authorities; but still the question remains, in every case, is the servant charged with the performance of a duty which belongs absolutely to the master, and of which he cannot be relieved by delegating it? The duty to run an engine or manage any machinery with care and skill is as imperative upon the master as the duty of inspection. If the master himself were in charge of a railroad train, as either engineer or conductor, he would be liable for any negligence resulting in injury to any of his employés. Only when he may delegate that duty is he relieved from responsibility. If there is any sound principle upon which is based the doctrine of the non-liability of the master for injury to one fellow-servant caused by the negligence of another, courts should determine that principle, and apply it to each case presented. As already remarked, it has no application where the master himself is personally superintending the work. The reason arises from the necessities of the case. The master cannot give personal attention to all the operations of an extensive business, carried on at different places, and extending, as in the case of railroads, over hundreds of miles. The law in the operation of railroads imposes three duties upon the master: (1) To use reasonable care in the construction of its roadbed, so as to make it safe; (2) to use reasonable diligence and skill in furnishing engines, cars, and machinery to operate its road; (3) to use reasonable care to employ competent servants in all departments.

In Michigan Central R. Co. v. Leahey, 10 Mich. 199, Justice Campbell used this language:

“The law may now be regarded as settled that a master is not liable to a servant for the neglect of his fellow-servants in doing or omitting to ’ do their portion of the common work. He is only liable where his own personal neglect has directly contributed to the injury, or where he has not used ordinary diligence in employing competent servants. [Citing a large number of authorities.] The reason of the rule appears to be that the master or employer for whose benefit work is undertaken cannot be regarded as contracting for anything more than his own personal care and diligence, and, if he acts in good faith, the servant must run all those risks which may arise from others neglecting their duty. It must always be presumed that a master gives proper directions to his servants. His own interest would usually remove any contrary presumption. And there is no want of equity in requiring a servant to assume these risks. He has equal means of observing and guarding against impending danger with the master, and usually better opportunities.”

In Smith v. Potter, 46 Mich. 264, it is said:

“As we have frequently held, in accordance with what we conceive to be the legal rule, such actions as the present are based on actual negligence of the defendant sued, or of some representative who is held in law to personate him. And in such a business as requires the employment of a multitude of persons, beyond the possible constant supervision of either the ultimate or representative principal, there can be no negligence without the failure to use such precautions in choosing-agents and guarding against perils as diligent prudence and foresight require. When the principal has done all that can be reasonably required of him to prevent risks to his servants, he has done all that he owes them.”

That case involved the duty of inspection, and, in all its essential features, is identical with the case of Perry v. Railroad Co., the only difference being that in the latter case the car belonged to the defendant. It is neither claimed nor charged that the original construction was defective, or that it was not in good condition when sent out on its journey by the defendant. The sole contention is that the coupling apparatus was injured while in transit over another road; that it was returned to defendant for transportation over its road in a defective condition, which the car inspector should have discovered. There is no pretense, nor can there be, that the master was actually at fault.

In the case of McDonald v. Railroad Co., an engineer, whose duty it was to take care of and inspect his engine, to see that it was in proper condition, and to report any defects which he could not remedy himself, took out a defective engine, knowing it to be defective, but in his judgment he considered it safe for that trip. Undoubtedly, it would have been, if he had used it in the usual manner. In consequence of his negligence a brakeman was injured. No one but the engineer was negligent.

When the above decisions were rendered from which I have quoted, the court was composed of eminent jurists. The reason for the rule is there perhaps sufficiently stated. Is there anything unjust or unreasonable in the rule that where the master is engaged in a business whose multitudinous operations he cannot personally superintend; has, in the first instance, furnished a safe place, safe appliances, tools, and machinery, and competent men to use them, and to see that they are kept in reasonably safe condition, — he shall be relieved from liability where injury results from the negligence of one of his fellow-servants to another, both of whom are engaged in the same common employment?

I can think of no better illustrations than these three cases (the present case, McDonald v. Railroad Co., and Perry v. Railroad Co.) afford. It is impossible for a master to inspect daily the entire bed of a railroad. Consequently, these roads are divided into' sections, of a few miles each. Each section is placed in charge of a section gang, with a foreman, whose duty it is to daily inspect the section committed to their charge, and to keep the roadbed in safe condition. Why should the master be held liable for an act over which he has not, and in the very nature of things cannot have, any control? He must delegate the authority. He has done all it is possible for him to do. His own interest prompts him to do all in his power to secure proper inspection and proper repair of the roadbed. If it is not kept in proper repair, lie becomes liable in immense damages for injuries to both passengers and freight, as well as the destruction of his own property. Such is this case. Michigan Central R. Co. v. Austin, 40 Mich. 250; Henry v. Railway Co., 49 Mich; 496.

The master owns hundreds of cars and engines, running daily over various portions of his road. Personal inspection by him is impossible. He must delegate it. He employs a competent engineer; places his engine in his charge-, with instructions to inspect it, to take care of it, and to see that all defects are repaired, and not to use it when it becomes unfit for use. The engineer is the proper person to be intrusted with this duty. He finds the push bar of his engine cracked, and a defect in the brake apparatus. His judgment, however, is that it is still safe for use. He violates the instructions of his master, neglects- his express duty, and thereby injury-results to' a fellow-servant upon the train. Is there any reason why the master should be held responsible? He did all within his power to prevent it. Such is the case of McDonald v. Railroad Co.

Hundreds of freight cars are received from other roads at various stations along the line. They must be inspected to- see whether they are in a safe condition, both as to the manner of loading and their own fitness for use. The master cannot inspect them. He must delegate it. He employs competent inspectors-, and gives them explicit instructions. The inspector errs in judgment, or willfully passes an unsafe car. The result is an injury to- a trainman. The negligence of a fellow-servant engaged in the same common employment is alone responsible for the injury. Why should the master, who has done all within his power to prevent it, be held responsible? Such is the case of Perry v. Railroad Co.

I will now consider some of the numerous- decisions of this court upon the question. Smith v. Potter was decided in 1881. For nine years it was accepted as the established rule in this State by both the profession and the people, and has never been overruled. It was never doubted until after the decision of Van Dusen v. Letellier, 78 Mich. 192. In the majority opinion it was, however, expressly recognized as the law, and that case distinguished from it. Justice Long concurred in the opinion rendered, by Justice Morse; Justice Sherwood concurred in the result; Justice Campbedl dissented; and Justice Champlin concurred in reversing the judgment, saying: “I do- not think the duty of inspection, when such inspection is required by the circumstances of the case, can be delegated by the master, in such manner as to avoid responsibility.” This expression of the learned justice still leaves open the question as to what circumstances require an inspection by the master. This court has always and unanimously held that an inspector of the loading of cars is a fellow-servant, for whose negligence the master is not held responsible. Clearly, Justice Champlin did not intend to cover such a case by his sweeping statement, but his language must be construed with reference to the facts of that case. There is nothing, however, in that opinion which can be fairly construed as impairing the rule in Smith v. Potter, and other like decisions of this court. It is not in conflict with it; yet it is cited by counsel in these three cases, and in many others which have been presented to this court, as the principal authority against the rule theretofore established and uniformly adhered to. No occasion existed for delegating the duty of inspection. The defendants were mill owners. Their business was in a narrow compass and at one place, where personal supervision and inspection were practicable. They were seldom present at their mill, and delegated their entire business to agents, who, it was claimed, were competent. I concur in the conclusion reached by the majority of the court, — that the defendants could not have relieved themselves from liability, under such circumstances, by the delegation of authority and the control of their business. The agents were not fellow-servants, but the alter ego of the defendants. That case is on all fours with Ryan v. Bagaley, 50 Mich. 179, where the defendant sought to relieve himself from liability by appointing a competent agent to control and manage the business of mining. Those two cases have no bearing whatever, in my judgment, upon those now under consideration. They could not have been decided in favor of the defendants without abrogating entirely the doctrine of alter ego, and relieving the master in every case where he has appointed a competent agent. They go no further than to hold that the master cannot surrender the entire control of his business to another, so as to avoid responsibility for those acts which he could and ought to have controlled. This court has gone further, and held that, where the master has surrendered a large branch or portion of his- business, the party to whom he intrusts it is his alter ego. Such are the cases of Hunn v. Railroad Co., 78 Mich. 513, and Harrison v. Railroad Co., 79 Mich. 409. In the former case a train dispatcher had the absolute control over a division- of the railroad several hundred miles in length, and the charge of running all trains over it. In the latter case a road-master had charge of a division of the road 150 miles in length. I especially call attention to the language of that opinion, rendered by Mr. Justice Long, found' at pages 420 and 421, expressly recognizing the rule as laid down in Michigan Central R. Co. v. Leahey, supra.

In Miller v. Railway Co., 90 Mich. 230, an engineer was held a fellow-servant of a switchman; the negligence being a defective step, which it was the duty of the engineer to repair. In Michigan Central R. Co. v. Austin, a defective rail upon a side track was the alleged cause of the accident. The negligence, if any, was that of the trackmen, who were held to be fellow-servants with the switchmen. A depression in the rail was there alleged to be the cause of the accident, the same as in this. In Morton v. Railroad Co., 81 Mich. 423, the defect was in the original construction of the brake chain. The responsibility for inspection was not involved. The learned author, Mr. Bailey, in his work on Master’s Liability, at page 134, misstates that decision, when he says: “It was held to be the master’s duty to inspect chains to be used, and for a lack of such inspection by the person whose duty it was so to do, whereby injury was sustained by the servant, the master was responsible.” In Loranger v. Railway Co., 104 Mich. 80, the fireman who clumped the ashes upon the track, and the section man whose duty it was to remove them, were fellow-servants with the plaintiff, a brakeman, and the company was not liable for their negligent act.

In the three cases now under discussion, no knowledge of the defect was brought home to the master. They all involve acts performed in one common employment. In neither could the master have done any more than he did to prevent the accident. The negligence of the coemployé properly charged with the duty, and competent to perform the duty, was alone the cause of it. If there is any sound reason for the adoption of the doctrine of fellow-servant, it is, in my judgment, in these three cases. If no reason exists here, the rule may as well be abrogated entirely.

I have not deemed it important to refer to the decisions of other courts, whose decisions are in irreconcilable conflict. I have aimed to show the rule established by this court-in the beginning, and consistently followed, and from which I see no reason for now departing. I think it is founded in good sense, sound reason, and justice.

Judgment reversed, and new trial ordered.


source: Caselaw Access Project

author: Hooker, J. Montgomery, J.

license: Public Domain

text:
    CANTON BRIDGE CO. v. CITY OF EATON RAPIDS.
    1. Partnership — Construction oe Agreement — Intent.
    To determine whether persons are in fact partners, it is necessary to look at their intention; and this is deducible from their declaration in regard thereto, and from the agreements made with reference 'to the subject-matter of their dealings.
    2. Same.
    Where the contract under which a business engagement is made contains an express or implied disavowal of an intention to assume the partnership relation, no partnership will be found to exist, unless such declaration is so inconsistent with the engagement of the parties as to be irreconcilable, in which case the latter must control.
    8. Same — Sharing Profits and Losses.
    Mere participation in the profits and losses of a business does not necessarily constitute a partnership inter se.

    4. Same — Absence of Community of Property.
    A contract by which a bridge-manufacturing company appoints a certain person as its agent to contract for the erection of bridges, and to do such other work as it may direct, agreeing to advance the general expenses of the business, and to pay to such person one-half of the net profits as compensation for his services, the same to be ascertained by "deducting from the contract price for each bridge the cost of the material and labor entering into its construction, does not create a partnership as between the parties, although it also provides that any losses are to be borne equally; such person not being required to make any cash investment, and it not appearing that he was to own any share in the materials furnished. Montgomery, J., and McGrath, O. J., dissenting.
    Error to Eaton; Smith, J.
    Submitted June 6, 1895.
    Decided December 24, 1895.

      Assumpsit by the Canton Bridge Company against the city of Eaton Rapids to recover the amount alleged to be due upon a contract for the construction of a bridge. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      John Mr GorMn, for appellant.

      -JEEuggett & Smith and G. 0. Markham, City Attorney (JEE. F. Fennington, of counsel), for appellee.
   Hooker, J.

To determine whether persons are in fact partners, we must look at their intention, and this is deducible from their declaration as to their intention, and the agreements that they make regarding the subject-matter; and, where the contract under which the business engagement is made contains tlie express or implied disavowal of an intention to assume the partnership relation, no partnership will be found to exist, unless such declaration is so at variance and so inconsistent with their engagement as to be irreconcilable. If the actual engagements are incompatible with the expression of intention, the latter must yield to the former; but, where they can be reconciled, the latter must govern. Mr. Justice Cooley says in Beecher v. Bush, 45 Mich. 193: “If. parties intend no partnership, the courts should give effect to their intent, unless somebody has been deceived by their acting or assuming to act as partners; and any such case must stand upon its peculiar facts, and upon special equities.” And Chancellor Kent, in the case of Post v. Kimberly, 9 Johns. 504, after admitting the rule that expressions of intention must yield to actual engagements, says: “But every doubtful case must be solved in favor of the intent; otherwise, we should carry the doctrine of constructive partnership so far as to render it a trap to the unwary.” We see no reason to force partnership relations and obligations upon parties who did not desire or intend to assume them, especially where the interests or rights of third parties are not to be affected. With this in view we will examine the contract between these alleged partners, in the light of the circumstances surrounding the transaction.

The Canton Bridge Company was a manufacturer engaged in providing • material and manufacturing and erecting bridges from iron, having an extensive factory at Canton, Ohio, and doing business in that and other States. An examination of the written contract between the plaintiff and Mr. Wheaton will show its first provision to be a recital of the fact that “the Canton Bridge Company has this day appointed R. D. Wheaton its agent to contract for bridges and general iron work, and to do any other worh in connection with the general business, when directed,” in several States. It agreed to advance all money necessary to pay all general expenses incurred in said business, upon detailed statements of account, rendered monthly. Wheaton promised to devote his entire time and ability to the business, in consideration of which the Canton Bridge Company agreed to pay to Wheaton one-half of the net profits. These were to be arrived at by deducting the expenses from the contract price of jobs, the balance to be divided equally; losses, if any, to be divided in the same way. There was a further agreement that the company should buy a one-half interest in certain tools owned by a firm, then existing, of R. D. Wheaton & Co., said interest belonging to one Darst.

Dnder this contract the parties were to share the profits and losses, but the Canton Bridge Company was to furnish the material and labor, or advance the necessary funds to pay for the same. There is nothing to indicate that Wheaton was to own any share in these materials. He was to give his services, and that was all of the obligation that he assumed. The contract does not bind him to put a dollar into the common enterprise. These things being true, it is entirely consistent that he should be an agent, as the contract states, and that he should be “paid” by the company for “his services,” and that his salary or compensation should be one-half of the profits. Numerous decisions support the proposition that a share of the profits may be treated as compensation merely. See authorities cited in the opinion of Mr. Justice MgGrath in Dutcher v. Buck, 96 Mich. 163.

Does the sole remaining' fact, viz., the sharing of losses, necessarily make the parties partners, against the express agreement that Wheaton was agent, to be “paid” by plaintiff for his “services,” — for whatever labor it should direct him to perform in relation to its property? It would seem' to be reasonable to conclude that the provision concerning losses was designed to induce care on the part of the agent in taking contracts. It carried his interest in case of unprofitable work a little beyond the line of the mere loss of profits, and no reason suggests itself why that might not be consistent with the existence of an agency, instead of a partnership. In Beecher v. Bush, 45 Mich. 199, numerous cases are cited to the proposition that a share of the profits may be compensation for services. Ordinarily, an agreement to put service against capital, and share the profits and losses, will warrant the inference of a partnership; but such does not absolutely constitute a partnership, as a legal conclusion, where other circumstances show that no partnership was created or intended. See 1 Bates, Partn. § 29, where this subject is discussed, and numerous instances cited to show that the intention controls where not inconsistent with the undertakings of the parties. We understand this to accord with the views expressed by Mr. Justice Coolidy in Beecher v. Bush. Among the cases cited in support of this proposition by the author quoted is Morgan v. Stearns, 41 Yt. 398, in which it is said, that “sharing in the profits and loss of the business is not decisive as between the parties, as this may have been merely an arrangement with a view to compensation for services.” Again, where plaintiff was to cultivate defendant’s farm, each to pay half of the expenses, and divide the profits equally, a charge that they were partners was held erroneous. Donnell v. Harshe, 67 Mo. 170. This arrangement plainly covered a sharing of the losses, as well as profits; and such contracts are of every-day occurrence, yet no one thinks of treating them as partnerships, though they might be if the parties so intended. In McDonald v. Matney, 82 Mo. 358, B., the owner of a bank, agreed to give A. one-third of his net profits for a year; A. to bear one-third of the losses, and to attend to the business, but B. to have entire control. The court said that mere participation in profit and loss does not necessarily constitute a partnership inter se, but that it is a question of intention. Where plaintiff was to share in profits and losses of defendant’s business for three years, in the proportion of 17 per cent., and to act as salesman, but not to have the right of partnership in the firm, and the capital then standing to his credit on the books was to remain in at 7 per cent., but he could draw an annual amount for his support, it was held that the parties were' not partners inter se. Osbrey v. Reimer, 51 N. Y. 630. See, also, Stevens v. Faucet, 24 Ill. 483; Fawcett v. Osborn, 32 Ill. 412; Mair v. Glennie, 4 Maule & S. 240; Dwinel v. Stone, 30 Me. 384; Ross v. Parkyns, L. R. 20 Eq. 331; Walker v. Hirsch, 27 Ch. Div. 460; Bullen v. Sharp, L. R. 1 C. P. 86.

In the case of Monroe v. Greenhoe, 54 Mich. 9, “aman arranged with a firm that he would buy standing timber, and cut, pile, and ship it, being paid therefor its cost ánd a certain sum per thousand. The firm was to sell it, and, after paying all expenses, was to divide the net proceeds with him equally, and he was to bear half the losses. But he had nothing to do with disposing of it after shipment, •and the firm had no control over it before. Held, that this arrangement did not amount to a partnership as to the unshipped lumber, at least; and the parties concerned could not be taxed as a firm upon such lumber.” In that case Mr. Justice Campbell, speaking for a unanimous bench, said: -“We do not think this agreement made any partnership, in the proper sense of the term, except, possibly, in such lumber as was actually loaded on the cars, and there are difficulties in the way of holding even that.”

Dutcher v. Buck, 96 Mich. 160, should not be held conclusive of the question in this case. There was, in that instance, “community of property, interest, and profits.” Such was not the case here, for there was not community of property. Wheaton was owner of nothing, while the plaintiff was owner of all materials, and its credit might be pledged upon the basis of monthly payments for labor -and such materials as it did not furnish. Again, in the •case before us the status of the parties is made clear, and it is apparent tliat the relation of principal and agent .was intended. It does not appear so clearly in Dutcher v. Buck.

The circuit judge was therefore in error in his instruction that the plaintiff and Wheaton were copartners, and that a verdict must be rendered for the defendant. The judgment should therefore be reversed. A new trial is directed. »

Long and Grant, JJ., concurred with Hooker, J.

Montgomery, J.

(dissenting). On the 22d day of December, 1892, plaintiff and R. D. Wheaton executed the following contract:

“This agreement, made and entered into this 22d day of December, 1892, by and between the Canton Bridge Company, of Canton, Ohio, of the first part, and R. D. Wheaton, of Charlotte, Michigan, of the second part, witnesseth: The party of the first part has this day appointed said second party agent, to contract for bridges and general iron work, and to do any other work in connection with the general business when directed by the first party, in the following territory, to wit: Michigan, Wisconsin, Illinois, and all the counties in Indiana except Elkhart, Allen, Miami, and Noble counties. The party of the first part to advance all the money necessary to defray all general expenses incurred in said business, on detailed expense accounts, to be furnished to the Canton office at the end of each and every month after the time this contract takes effect. Said second party agrees to devote his entire time and ability to said business to the best interests of the above parties described, in above territory. In consideration of services rendered by said second party, said first party agrees to pay said second party one-half of all net profits on work contracted in said territory. Said profits are to be arrived at on the following basis: Average cost of metal per pound, card labor on each job, freight per pound, erection per contract, lumber per contract, contractor’s expenses, and sundry expenses, or any other actual expenses' on the work, all of which is to be charged to each contract, and deducted from the contract price of each job or contract, and the balance to be equally divided between the parties to this contract.' Any other receipts to be divided equally. In case of loss on a job or contract, the same is to be divided equally between the parties to the contract.
“It is further agreed that the party of the second part is to have charge of above territory, and to use his best judgment in managing the same. In case of a dispute in regard to cost of work, the party of the second part is to have free access to the books of the company at any time. It is also agreed that the party of the first part is to purchase one-half interest in the erection tools, office fixtures, etc., now held by J. C. Darst, of the firm of R. D. Wheaton & Co., provided they can be purchased for a reasonable price, the party of the second part to hold his one-half interest in above tools, etc.
“This contract is to take effect January 1, 1893, and to hold good for five years, unless dissolved by mutual consent.
“In consideration of the above, we hereby bind ourselves by these presents.”

Upon the execution of this contract, the Canton Bridge Company purchased Darst’s interest in the construction tools, as provided by the contract. From the making of this contract on, as appears by the testimony of plaintiff’s witness and agent, the business contemplated by the contract was done in the name of R. D. Wheaton & Co. Shipments were made by the plaintiff in that name. Various contracts were taken from time to time, and a regular account with R.D. Wheaton & Co. opened and kept on the books of the plaintiff. The custom was for Mr. Wheaton to make collections. In September, 1893, a contract for the construction of a bridge for the defendant was made in the name of R. D. Wheaton & Co. The bridge was constructed in pursuance of the contract by the plaintiff. After the mailing of the contract, and before the construction of the bridge, there was some misunderstanding between the plaintiff and Wheaton, and an attempted adjustment of their matters. In the course of these negotiations the plaintiff gave to Wheaton an order upon the defendant for the contract price of the bridge, but subsequently revoked this order, and notified the defendant that the contract was the property of the plaintiff, and demanded pay.. The testimony offered by the plaintiff, however, shows that, in any event, Wheaton is interested in the profits of the job, and entitled to a share in them; and, if it has a right to rescind the transfer to him in the manner in ■which it was attempted, — a point which we deem it unnecessary to decide in the case, — it re-established the relation which the parties bore to the contract in the first instance; and this leads to the inquiry, which presents itself at the threshold of the case, of whether plaintiff and Wheaton were, by the contract set out, as interpreted and acted upon by them, copartners; for, if thqy were, it is clear that the disagreement between the parties cannot be made the subject of litigation in this suit at law, but both must join. Story, Partn. § 241.

Under this contract, there was an agreement to share the profits and losses. There was an agreement on the part of Wheaton to devote his time and energies to the interests of the parties; an agreement on the part of the plaintiff to advance the money necessary to defray all expenses. The profit should be arrived at after deducting the cost of the material and the expenses, including the work, etc.; and it is very clear that the losses on the contract or job would be determined in like manner. This, of necessity, involved a community of interest in the material, as fast as it was furnished, whether furnished by the plaintiff or purchased by Wheaton or the plaintiff. Should a loss of the material occur by fire or otherwise, or should a loss be met by failure to collect the contract price, it would be the joint loss of the parties to the contract. Both are alike interested. It is true the plaintiff agrees in terms-to pay one-half the profits in consideration of services rendered, and, if this were all that the contract provided, it would not necessarily import a partnership; but the contract goes further, and provides for sharing losses. It is difficult to conceive of any right which a partner can have in any case which Wheaton did .not have, and has not, with the approval of plaintiff, exercised under this contract. He is to have charge of the designated territory, and to use his best judgment in managing the same. This he did by making contracts in an agreed firm name. He is to have access to the books. He did in fact make collections, and plaintiff’s secretary testified that he was relied upon to make collections, and that he understood the arrangement to be that he was to make collections until he was notified differently. We think that, under these circumstances, it should be held that the two parties to the contract were partners. 1 Lindl. Partn. 12; Hunt v. Erikson, 57 Mich. 330; Corey v. Cadwell, 86 Mich. 570; Dumanoise v. Townsend, 80 Mich. 307. The fact that he is designated as “agent” in the contract, and that the writing refers to his profits as “pay,” cannot affect the result, if, by the plain provisions of the contract, he is constituted a partner. See Dutcher v. Buck, 96 Mich. 169; Beecher v. Bush, 45 Mich. 193.

The circuit judge committed no error in directing the verdict for defendant. The judgment should be affirmed.

MoG-rath, C. J. I think that the question as to whether a partnership existed in the present case depends upon whether or not there was a community of interest in the output, and I am inclined to think there was; hence I concur with Mr. Justice Montgomery. '


author: Hooker, J.

text:
    O’BRIEN v. EVANS.

    Land Contract — Conveyance to Third Party — Assignment.
    A vendor in a land contract conveyed the land by warranty deed to a third party, excepting the conti'act from the covenants of warranty. Held, that he did not thereby assign the debt secured by the contract, so as to enable the grantee to maintain an action at law therefor.
    Error to Wayne; Carpenter, J.
    Submitted October 12, 1895.
    Decided December 24, 1895.

      Assumpsit by Patrick B. O’Brien against Frederick Evans to recover the amount alleged to be due upon a land contract. From a judgment for plaintiff, defendant brings error.
    Reversed.

      William Stacey, for appellant.

      Edward McNamara (Charles Flowers, of counsel), for appellee.

       Rehearing denied, but new trial/granted, January 20, 1896.

   Hooker, J.

Price and Kinsey owned, in common, four lots in the city of Detroit. On October 4, 1888, they gave a mortgage for $1,100. upon said lots, to George W. Moore, trustee. On December 27, 1888, Kinsey deeded to Price, by warranty deed, lots 1 and 4, subject to one-half of the mortgage, which Price assumed by the terms, of the deed. On January 1, 1889, Price sold lot 1, by land contract, to Evans, the defendant, by the terms of which contract Evans was to have possession of the-premises, and was to pay to Price $50 down, $275 and interest on or before five years, and $275 and interest upon said mortgage, which, by its terms, was to fall-due October 4, 1890. On August 23, 1889, Price and Kinsey joined in a warranty deed of the four lots, to O’Brien, the plaintiff. This deed contained a covenant to warrant and defend the premises against all lawful claims except the mortgage and land contract. On August 26, 1889, George W. Moore assigned the mortgage to the People’s Savings Bank of Detroit. The defendant paid interest upon the amount remaining due upon the contract to Mr. O’Brien. He testified, however, that he did so believing that O’Brien had an assignment of Price’s rights in the contract; but, when he ascertained that the only interest he had in the premises was under the deed, he refused to pay more to him. O’Brien’s attorney testified that O’Brien paid the bank the amount due on the mortgage, and took a release of lot 1, upon the promise of Evans to pay up the amount due upon the contract soon. Evans testified that he did not make such promise. O’Brien paid the mortgage, and took a release of lot 1, and subsequently brought this action in justice’s court to recover from Evans the amount of such payment. The declaration was upon the common counts, and a bill of particulars was filed containing the following items, viz.:

To amount due on contract, Price and Evans, assigned to plaintiff........................ $275 00
Interest for one year, at 7 per cent............. 19 25
$294 25

A plea of the general issue was filed, and a judgment of no cause of action was rendered. Plaintiff appealed.

Upon the trial in the circuit court, the plaintiif recovered. At the close of the testimony, the defendant moved for judgment, for the following reasons:

“First. Because no proof was introduced to show defendant’s liability under the declaration to any person whatsoever.
“Second. Because, even if defendant was liable to' any person under the contract offered in evidence, there has been no assignment of it to the plaintiff, nor of the mortgage referred to in the contract, nor of the note secured by said mortgage, and therefore he could not maintain his suit against the defendant.
“Third. Because the lot in question is a vacant lot, in an outlying portion of the city, which to-day is not worth half the contract price. We therefore claim that as the defendant never took possession of the lot, and as the vendor in the contract has, by deeding the lot to a third party, put it out of his power to fulfill his part of the contract, that, therefore, the defendant can elect and has elected to repudiate the same.”

The cause was tried without a jury, and no findings of fact and law appear in the record. We are therefore limited' to the question whether there was evidence to support the judgment. All of the evidence was incorporated in the bill of exceptions. By the contract, the defendant obligated himself to pay certain moneys to Price, and Price thenceforth held the title in trust for the defendant. Price conveyed the legal title to O’Brien, and the one question presented here is whether he thereby assigned the chose in action, viz., his right to the consideration.

It is claimed that there is testimony in the case tending to show that the money paid upon this mortgage by O’Brien was paid at the request of Evans, who was under contract obligations with Price to pay it; but we fail to discover it. Evans made payments to O’Brien, and promised to pay the mortgage, but he did not request. O’Brien to pay it for him, and the payments made to O’Brien by Mm were upon the supposition that O’Brien had an assignment of the interest of Price in the contract. Again, the bill of particulars precludes a recovery upon a count for money paid for defendant’s use and benefit, and limits plaintiff to a claim for an amount ■due upon the contract. The question, therefore, turns upon the effect of the deed.

The deed conveyed whatever interest the grantor had in the land, but did not warrant against these incumbrances, which, by its terms, the grantor expressly refused to do. We have no doubt that he precluded himself from asserting a right to or claim upon said premises, by way of security for the contract debt, but it is manifest that he did not cut off Evans’ right to a conveyance upon performance. Again, it may be that the plaintiff acquired such an interest that payment of the mortgage would have entitled him to. subrogation to the mortgagee’s right against the defendant, had he seen fit to claim it, instead of taking a release of the premises; and it is possible that equity, upon an investigation of the surrounding circumstances, might be warranted in finding that an assignment of the claim was. intended. But, upon this record, the circumstances under which the deed was given do not appear. It may be that the intention was that the plaintiff should take the title as a mere trustee, or it is possible that the plaintiff’s grantor had possession that was of some value, which he desired to convey to the plaintiff, without designing to assign the indebtedness under the contract. It is true that defendant had the right to the possession under his contract, but his brief claims that he never took possession. But the intention of the parties is mere conjecture, and perhaps could not be considered in an action at law, except as conclusively presumed from the deed. If the deed can be construed as-, intending to convey the debt, plaintiff was entitled to-judgment; otherwise,'not.

At law, the vendor, Price, owned the land. He had the legal title, and while equity might treat him as a trustee, holding .the title for another in trust, but coupled; with an interest by way of security for his debt, the only remedy that the vendee could have at law, in case of a refusal to convey, would be an action for damages. On the other hand, the vendor’s right would be similar-if the vendee failed to perform. The deed conveyed the title, but, unlike the case of Lovejoy v. Potter, 60 Mich. 99, relied upon by counsel, it failed to expressly assign tbe contract. Tbe brief of counsel for tbe plaintiff does not cite an authority to sustain tbe proposition that tbe deed should be construed as an assignment of tbe debt. We can readily suppose that such may have been tbe intention of tbe parties, though, as we have shown, that does not necessarily follow. Had a portion of tbe premises covered by tbe contract been conveyed, or different portions been conveyed to several persons, a troublesome question would arise if a vendor’s deed must necessarily carry with it tbe debt. Whether tbe conveyance of a fraction would carry tbe entire debt, and, if not, what portion, would then be questions that would not be easy to answer.

We think that tbe circuit judge erred in bis conclusion, and are therefore constrained to reverse tbe judgment. There is no occasion for directing a new trial.

Tbe other Justices concurred.


text:
    MURPHY v. MICHIGAN CENTRAL RAILROAD CO.

    Negligence — Accident at Railroad Crossing — Proximate Cause —Horse Beyond Control of Driver.
    Plaintiff’s intestate was driving along the highway in the direction of a railroad crossing, and had reached a point about 100 feet distant therefrom, when the thills became detached from the buggy upon one side, and dropped down, causing the horse to jump and run, and at the same time preventing the buggy from being drawn straight. The plank roadway at the crossing was but 14 feet in width, and the surface of the planks was lower than the top of the rails. On reaching the crossing, the wheels of the buggy came in contact with the projecting rails, and slid off the end of the planking, and the intestate was thrown out and killed. Held, that the improper planking of the crossing was not the proximate cause of the accident, and that the railroad company was not liable. Lambedle v. Railroad Co., 106 Mich. 512, followed.
    Error to Van Burén; Buck, J.
    Submitted November 6, 1895.
    Decided December 24, 1895.
    Case by Thomas W. Murphy, administrator of the estate of Agnes Murphy, deceased, against the Michigan Central Railroad Company, to recover damages for the death of his intestate, alleged to have been caused by defendant’s negligence. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Edwards & Stewart (Ashley Pond and Henry Russel, of counsel), for appellant:
    The negligence imputed to the defendant was not the proximate cause of the death of plaintiff’s intestate. 1 Shear. <& R. Neg. § 26; Conger v. Railroad Co., 86 Mich. 76; Powers v. Lumber Co., 92 Mich. 533; Lambedle v. Railroad Co., 106 Mich. 512; Titus v. Nortlibridge, 97 Mass. 265; Fogg v. Nahant, 98 Mass. 578; Lynn Gas Co. v. Insurance Co., 158 Mass. 570; Railway Co. v. Kellogg, 94 U. S. 469, 475; Jaclcson v. Bellevieu, 30 Wis. 251; Smith v. County Court Kanawha Co., 8 L. R. A. 82, and note (33 W. Va. 713); McClain v. Garden Gr-ove, 83 Iowa, 235 (12 L. R. A. 482). There could, therefore, be no recovery in this case, ■even if such negligence were established (Lewis v. Railway Co., 54 Mich. 55); it being immaterial whether the proximate causp, if not attributable to the negligence of the defendant, was or was not the result of the decedent’s negligence (Beall v. Township of Athens, 81 Mich. 536; Mineral Springs Co. v. City of St. Clair, 96 Mich. 463; Bleil v. Railway Co., 98 Mich. 228).

      L. A. Tabor, for appellee:
    Where two causes combine to produce an injury, both of which are proximate in their character, the one being the result of culpable negligence, and the other an occurrence as to which neither party is at fault, the negligent party is liable, provided the injury would not have been sustained but for such negligence; and since it cannot be said, as a matter of law, that plain tiff’s intestate would have been killed in the absence of any negligence on the part of the defendant with respect to the maintenance of this crossing, it was properly left to the jury to say whether such negligence was the proximate cause of her death, especially so long as there was testimony tending to show that the horse was not beyond control up to the time the obstruction was reached. Cooley, Torts, 70; 1 Shear. & R. Neg. § 33; Carver v. Plcmh Road Co., 69 Mich. 616; Selleck y. Railway Co., 93 Mich. 375; Langworthy v. Township of Green, 95 Mich. 93, and cases cited at page 96; Davis v. Dudley, 4 Allen, 557; McDonald v. Snelling, 14 Allen, 290; Palmer v. Andover, 2 Cush. 600; Powell v. Deveney, 3 Cush. 300; Bigelow v. Rutland, 4 Cush. 247; Howard v. North Bridgewater, 16 Pick. 189; Titcomb v. Railroad Co., 94 Mass. 254; Babson v. Roekport, 101 Mass. 93; South-worth v. Railway Co., 105 Mass. 342; Salisbury y. Herchenroder, 106 Mass. 458; Lane v. Atlantic Works, 111 Mass. 140; Hill v. Winsor, 118 Mass. 251; Cushing y. Bedford, 125 Mass. 526; Turnpike Co. v. Sears, 7 Conn. 86; Ward v. North Haven, 43 Conn. 148; Billman v. Railroad Co., 76 Ind. 176; Crawfordsville v. Smith, 79 Ind. 308; Binford y. Johnston, 82 Ind. 426; Henry v. Dennis, 93 Ind. 452; Turnpike Co. v. Bateman, 68 Md. 389; Campbell v. Stillwater, 32 Minn. 308; City of Rockford v. Russell, 9 111. App. 229; Weick v. Lander, 75 111. 93; Township of Plymouth y. Graver, 125 Pa. St. 24; Woodward y. Aborn, 35 Me. 271; Willey y. Belfast, 61 Me. 569; Norris v. Litchfield, 35 N. H. 271; Ciarle y. Barrmgton, 41 N. H. 44; Tucker y. Henniker, Id. 317; Ricker v. Freeman, 50 N. H. 420; Dreher y. Fitchburg, 22 Wis. 675; Olson v. Chippewa Falls, 71 Wis. 558; Hyatt v. Rondout, 44 Barb. 385; Unger y. Railroad Co., 51 N. T. 497; Kennedy v. New Work City, 73 N. T. 365; Hunt y. Poivnal, 9 Vt. 411; Kelsey y. Glover, -15 Vt. 708; Fletcher v. Barnet, 43 Vt. 192; Toms v. Whitby, 35 IJ. C. Q. B. 195; Davis y. Garrett, 6 Bing. 716; Dixon v. Bell, 5 Maulé & S. 198; Lllidge v. Goodwin, 5 Car. & P. 190.

       Rehearing denied March 12, 1696.

   Hooker, J.

The horse driven by the plaintiff’s wife was trotting quietly along a village street, when the thills became detached from the buggy upon one side, and dropped down, causing him to jump and run. This was about 100 feet from a railway crossing, and there was testimony tending to show that, before reaching it, the.driver had so far controlled him as to reduce his speed somewhat. Owing to the accident to the thills, the buggy did not draw straight, and, on reaching the railway crossing, it ran off from the ends of the planks between the rails ; and, the wheel striking the rails, the horse jumped, and, breaking the thills from the buggy, ran away. At that moment, according to the testimony of all the witnesses, the occupants “went into the air.” The negligence charged is that the railroad crossing consisted of planks laid between the rails, making a plank roadway but 11 feet wide, and that this did not conform to the requirements of the statute that the surface of the planks next to the rails should be higher than the top of the rails. It is contended that the wheels slipped and slid upon the rails, and that fact, taken in connection with the narrowness of the planking, caused the accident, which would not otherwise have happened.

If we take the plaintiff’s theory of this case as true, we must find that this accident was the result of concurring causes, viz.: First, the. breaking of the thill and the fright of the horse, causing him to' run; second, the improper planking of the crossing. That the horse ran away, and was beyond the control of the driver, is manifest, as all of the witnesses agree that he was running at first, and all but one, that he was on the lope or canter when he was on. the crossing. One witness used different language, saying she was getting him slowed down, and had practically got him stopped down to a trot when she struck the crossing. It is undeniable, however, that, while she might or might not have succeeded in stopping the horse without accident had not the crossing intervened, he was at the time of the accident so far beyond her control as to be traveling at a rapid rate, with a pair of thills about his heels, attached to the buggy close to one wheel, the effect of which would naturally be a tendency to turn the buggy around, rendering it exceedingly unsafe for the occupant, and important that the horse should immediately be brought to a stand, which up to that time she had been unable to do. While the buggy was in this condition, and the horse traveling rapidly, notwithstanding a desire and necessity that he be stopped, the buggy ran off the plank. There is not the slightest reason to suppose that this would have occurred but for the condition of the buggy and the fright of the horse. Of course, it is possible that it might not have occurred if the plank had been laid differently, and, if so, the accident was the result of concurring causes.

In such case it has been repeatedly held in Michigan that the doctrine of proximate cause applies. The latest instance is that of Lambeck v. Railroad Co., 106 Mich. 512, where the cases are collected. Under the rule there recognized, the court should have directed a verdict for the defendant, and we have no alternative but to reverse the judgment, and direct a new trial. Ordered accordingly.

The other Justices concurred.


author: Grant, J.

text:
    LOCKE v. HIGHWAY COMMISSIONER OF WYOMING TOWNSHIP.
    Establishment of Highway — Appeal to Township Board— Disqualification of Members.
    Members of a township board who took part on the hearing of an appeal by a land-owner from the decision of the highway commissioner in establishing a highway across appellant’s land, and who decided that the highway was a public necessity, are disqualified from sitting on the hearing of a second appeal by the same land-owner from the decision of the commissioner re-establishing said highway, the former proceeding having been quashed in the circuit court.

      Error to Kent; Grove, J.
    Submitted November 22, 1895.
    Decided December 24, 1895.

      Certiorari by Orson E. Locke to review the action of the highway commissioner and the township board of Wyoming township, Kent county, in establishing a highway across petitioner’s land. There was a judgment for respondents, and petitioner brings error.
    Judgment reversed and proceedings quashed.

      Bundy & Travis, for appellant.

      Maynard & Chase, for appellees.
   Grant, J.

The object of this suit is to test the validity of the action of the respondents in establishing a public highway across the petitioner’s land. He appealed from the decision of the commissioner to the township board, and at the hearing seasonably objected to two members of the board sitting in the case, claiming that they were disqualified to act. A former proceeding had been instituted for this same purpose, and the petitioner appealed that case to- the township board, which heard the case •upon its merits, decided that the necessity for the highway existed, and awarded damages. That proceeding was quashed in the circuit court. Two of the members of the present board sat upon and decided that case, one of whom made an affidavit that the highway was a public necessity, and the other stated that if he had it to do over again he would do just as he did before.

These two members were disqualified. They had already passed upon all the questions involved. Whom a citizen is called upon to part with his land for the public use, he is entitled to a fair and impartial tribunal. The purpose of the law is to furnish such a tribunal, otherwise an appeal would be futile. People v. Michigan Southern R. Co., 3 Mich. 504; Kundinger v. City of Saginaw, 59 Mich. 357; Cooley, Const. Lim. 563; Rand. Em. Dom. §§ 316-320; Rhine v. McKinney, 53 Tex. 361; Wil liams v. Mitchell, 49 Wis. 289; Thompson v. Multnomah Co., 2 Or. 34; Epler v. Niman, 5 Ind. 459; State v. Delesdernier, 11 Me. 473. The provisions are ample to secure such a tribunal. 1 How. Stat. §§ 729, 745. The only remedy provided by law for a rehearing upon the merits in these proceedings is by appeal to the township board. That board consists of the supervisor, the two justices of the peace whose term of office will soonest expire, and the township clerk, three of whom constitute a quorum.

Section 745 is as follows:

“When, from any cause, there shall not be three of the officers constituting such board competent or able to act, one of the remaining justices, on being notified by any member of said board, shall meet with any members of the board, and shall have the same authority as the other members of the board.”

Section 729 provides that, if any member “shall from any cause be unable to perform the duties of his office, * * * except that of justice of the peace and township treasurer, the township board may make temporary appointments of suitable persons to discharge the duties of such offices * * until the disability aforesaid be removed.”

The two remaining justices of the peace might have been called in, or only one, who would have made the quorum required. A township officer may become disqualified to act by reason of pecuniary interest and other causes. It is contrary to the spirit of the Constitution and to every principle of free government that a citizen’s land can be taken from him for public purposes without some fair and impartial tribunal to determine the necessity and the amount of damages he shall receive. It can hardly be conceived that the framers of our Constitution and laws intended that this important function should be exercised by a tribunal whose members had already prejudged the case.

It was said in People v. Michigan Southern R. Co., supra:

“That the proprietor whose land is taken for public use is entitled to have his just compensation therefor ascertained by a fair and impartial tribunal is certainly reasonable, and undoubtedly required by the spirit of the Constitution.”

Is this sound principle complied with by the farce of a trial before a tribunal half of whom have already decided upon the merits of the controversy?

Justice Cooley says:

“The case is not one where, as a matter of right, the party is entitled to a trial by jury, unless the Constitution has provided that tribunal for the purpose. Nevertheless the proceeding is judicial in its character, and the party in interest is entitled to have an .impartial tribunal, and the usual rights and privileges which attend judicial investigations. It is not competent for the State itself to fix the compensation through the legislature, for this would make it the judge in its own cause. And, if a jury is provided, the party must have the ordinary opportunity to appear when it is to be impaneled, that he may make any legal objections.” Cooley, Const. Lim. p. 563.

Speaking of these tribunals in condemnation proceedings, 'Mr. Randolph says that they are essentially judicial in this, that they must be impartial, and must preside over a cause in which both parties have the opportunity to be heard. Rand. Em. Dom. §§ 316, 320.

The learned counsel for the respondents contend that this tribunal stands, under the law, in the same position as a judge, and cite Heflin v. State, 88 Ga. 151, where it was held that a judge was not per se disqualified to preside on the trial of an indictment for perjury because he had presided at the trial of the case in which the alleged perjury was committed, and because he had privately and unofficially advised the prisoner’s counsel to induce his client to plead guilty, saying that there was no doubt about his guilt, and no earthly chance for him to be acquitted. The judge, however, in that case was not clothed with the power to try the case upon the merits, and determine the guilt or innocence of the accused. Had he possessed such power, no one would contend that he was qualified to try the case. It was only held that his knowledge of the facts and his expression of opinion upon the merits did not disqualify him from passing upon the. legal questions that might be raised, and from correctly-instructing the jury upon the law.

We held in Wilson v. Township Board of Burr Oak, 87 Mich. 240, that members of such board, in proceedings of this nature, who were financially interested in the establishment of a highway, were incompetent. It would be equally as disastrous to a land-owner to have his rights passed upon by those who had already decided his case as by those who were financially interested.

The judgment must be reversed, and the proceedings quashed.

McGrath, O. J., Long and Hooker, JJ., concurred. Montgomery, J., did not sit.


author: Long, J.

text:
    KAMP v. WINTERMUTE.
    Corporations-Liability of Stockholders for Labor Debts. •
    3 How. Stat. § 4161e8, making the stockholders of a manufacturing corporation individually liable for all labor performed therefor, and providing that such liability may be enforced •against “ any stockholder ” upon the return of an execution against the corporation unsatisfied, applies only to those who were stockholders in the corporation at the time the labor was performed.
    Error to Muskegon; Russell, J.
    Submitted November 20, 1895.
    Decided December 24, 1895.

      Assumpsit by Ralph Kamp against Peter H. Winter-mute for labor performed for a corporation in which defendant was a stockholder. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Macdonald & Marr, for appellant.

      IE. L. Delano, for appellee.
   Long, J.

This action was commenced in justice’s court to recover for the personal work and labor of plaintiff,, rendered the Cheesman & Kelly Manufacturing Company, a corporation organized under the laws of this State. The plaintiff, according to his bill of particulars filed in the justice’s court, performed the labor in the months of June, July, August, and September, 1894, of firing and running an engine in the factory of the corporation, which labor amounted to the sum of $77.20. For a balance due him upon this account he sued the corporation, and obtained judgment in the sum of $32.20 and costs. An execution was issued against the corporation, and returned unsatisfied for damages and costs. The present suit is brought to recover of the defendant, a stockholder in the corporation, under section 4161c8, 3 How. Stat., which provides:

“The stockholders of all corporations organized or existing under this act shall be individually liable for all labor performed for such corporations, which said liability may be enforced against any stockholder by action founded on this statute at any time after an execution shall be returned unsatisfied, in whole or in part, against the corporation,” etc.

The title of the act is, “An act to revise the laws providing for the incorporation of all manufacturing companies,” etc.

The justice gave judgment in favor of plaintiff for the amount of damages and costs rendered against the corporation. The cause was removed to the circuit court by writ of certiorari, and there reversed, and comes into this court on error.

The principal allegation of error upon which the writ of certiorari was issued is that the justice erred in rendering judgment ag-ainst defendant, for the reason that it appeared that defendant was not a member of the corporation at the time the debt was incurred. It is conceded in this court that the defendant was. not a stockholder in the corporation at the time the labor was per-' formed; but, as shown on the trial before the justice, he was a stockholder at the time suit was commenced. The claim is that those who are stockholders in a corporation at the time of the commencement of an action against the corporation upon labor claims are liable upon such demands, although not stockholders at the time the corporate liability accrued; that such stockholders impliedly assume all the obligations which rested upon, former holders as members of the company, and are liable to the ■same extent as the former holders.

In Voight v. Dregge, 97 Mich. 322, the defendant was a stockholder in a street-railway company. Judgment was obtained against the company for a labor debt. Execution was returned unsatisfied, and suit was brought against the defendant upon such judgment. Plaintiff prevailed. It appeared that the defendant was a stockholder at the time the services were performed for the company. Upon appeal to this court, judgment was affirmed. It was then said in that case that “whether the statute is broad enough to create a liability against the purchaser of the stock, and what his obligations to the former stockholder may be, need not be considered in this case.” The defendant in that case had ceased to be a stockholder in the corporation at the time the action was brought, but was a stockholder at the time the labor was performed. The result was reached in this court upon the interpretation of section 3557, 1 How. Stat., which provides that “the stockholders of every company incorporated. under this act shall be jointly and severally liable, in their individual capacity, for all labor performed for such company, and shall also be liable for the debts, of such company for an amount equal to the amount of' any unpaid stock in such company held by them.” This-section stands as section 22 of chapter 95, 1 Ho-w. Stat.,. being an act to authorize the formation of street-railway companies. The present action is brought under an act authorizing the formation of manufacturing companies,, and the two sections are very similar in their provisions.

Whether statutory liability attaches to- a stockholder in respect of debts contracted before he became a member of the corporation, is a question turning upon the words, of the statute. This rule was observed in Voight v. Dregge, supra, as applied to one who- was a stockholder-at the time the debt was contracted, and the reason given for holding that the defendant was liable was that when, one became a member of the corporation he became a surety for such labor debts; that, were he to become such surety by express agreement, he would not cease to be-so because of the sale of his stock; that the statute, in other words, became a part of the agreement upon which, he became a member of the corporation. The statute,, however, cannot have so broad a construction as to hold one liable who purchases stock in a corporation after the-debt is contracted. While the persons who were stockholders at the time the debt was contracted may be held liable, we think the liability is confined to such stockholders, and does not extend to those who thereafter-purchase. The stockholders mentioned in this section-of the statute must be construed to mean those who were-such at the time the liability attached to the corporation.

The statutes of many of the States prescribe when such liability is to attach. Our statute fixes no such time by any express words-, but, by necessary implication, was. not intended to apply to one who became a purchaser after the liability had been incurred. In Chesley v. Pierce, 32 N. H. 388, under a statute making stockholders liable for the debts of a corporation, it was held that an individual stockholder was not liable for the debts of the corporation contracted before he became such. In Williams v. Hanna, 40 Ind. 535, the statute made all stockholders liable for the debts of the corporation, and it was held that the owners of stock at the time the debt was contracted were intended. The same rule, under a somewhat similar provision, was held in Moss v. Oakley, 2 Hill, 265, and that those who became stockholders after the debt was contracted were not liable. The same rule was laid down in Judson v. Rossie Galena Co., 9 Paige, 598; McCullough v. Moss, 5 Denio, 567; Adderly v. Storm, 6 Hill, 624. The text-books cite many cases where the rule seems to be stated otherwise, but I think the confusion arises from the wording of the statutes then under consideration. The general doctrine seems to be that a stockholder does not avoid a statutory liability to creditors who were such at the time he transferred his stock, and there is good reason for holding, the rule being thus settled, that the transferee does not take the stock subject to such statutory liability.

The judgment of the circuit court must be affirmed.

The other Justices concurred.