text:
    ALLWORTH v. MUSKEGON TRACTION & LIGHTING CO.
    Street Railroads — Injury to Traveler on Highway — Action —Declaration—Sufficiency—Contributory Negligence.
    A declaration against a street-railroad company alleging that plaintiff, while driving westward on the track at a point one block east of a bend in the track, turned his face and body toward the rear to adjust his load while traveling two blocks, whereupon a collision occurred with a car traveling in the opposite direction, states no cause of action against the street-railroad company in the absence of averments that the motorman had any reason to suppose plaintiff would not turn from the track in time to avoid a collision.
    Error to Muskegon; Russell, J.
    Submitted October 12, 1905.
    (Docket No. 50.)
    Decided November 21, 1905.
    Case by David Allworth against the Muskegon Traction & Lighting Company for personal injuries. There was judgment for defendant on a demurrer to the declaration, and plaintiff brings error.
    Affirmed.

      Alex. Sutherland, for appellant.

      Nims, Hoyt, Erwin, Sessions & Vanderwerp, for appellee.
   Moore, C. J.

This case was commenced by declaration to recover for personal injuries received by plaintiff from coming in collision with a street car owned by defendant. The defendant interposed a demurrer to the declaration. This demurrer was sustained, and plaintiff was given an opportunity to amend his declaration. This he did not do. Judgment was entered against him, and the case is brought here by writ of error.

It is claimed by plaintiff the declaration states a cause of action, while defendant claims it does not. The declaration is very long. If it states a cause of action at all, it is to be found in the following language:

“That heretofore, to wit, on the day and year and at the time and place aforesaid, the said plaintiff was prudently and carefully driving west on said Labe street with his horse and wagon, the south wheels of said wagon being between the rails of the defendant’s track and the north wheels outside of said track. Said wagon was loaded with boxes, and there was a strong wind blowing. A short distance east of the place on said Labe street aforesaid, to wit, two blocks, where the injury complained of occurred, there is a bend in the said Lake street, and that a person driving along Lake street at that point could not see an approaching car more than, to wit, one block west. That before plaintiff had passed around said bend, he looked west, to see if a car was approaching, and, seeing none, plaintiff turned his face and body toward the rear of his Wagon to readjust the load, which had become displaced by the wind. That said bend is about, to wit, one block long. That west from this bend in said Lake street the view is clear and unobstructed for, to wit, a half of a mile. That the said plaintiff at the time aforesaid was driving slowly, carefully, prudently, and without negligence on his part, and while readjusting his load at the place aforesaid, and had gone, to wit, two blocks west, when plaintiff suddenly heard a noise, faced around quickly, saw the car of defendant almost upon plaintiff’s horse. He immediately pulled his horse toward the north of defendant’s track, and used every endeavor to escape collision with defendant’s car, but, before plaintiff could get the wagon and himself out of the way, defendant’s car hit the left side of the wagon, breaking, to wit, the front wheels and thill, and throwing said plaintiff violently to the ground. Plaintiff further avers that the defendant, its servants, conductors, and motormen, who controlled and operated said car of defendant, had a clear and unobstructed view of plaintiff at the time and place where the said plaintiff received the injury aforesaid, for, to wit, one-half mile, and saw, or could have seen, the plaintiff driving on said track, as aforesaid, with his body twisted and his head turned away from the approaching car of defendant and toward the rear of plaintiff’s wagon, in which position plaintiff was adjusting part of his load of boxes, which had become deranged by the wind, as aforesaid; yet the said defendant did not, or would not, employ prudent and careful agents, conductors, and motormen who did see, or, if they had been vigilant, could have seen, the plaintiff on the track of said defendant at the time and place aforesaid in ample time to have reduced the speed of said car, and stopped said car in time to permit said plaintiff to get out of the way without injuring the said wagon or person of plaintiff. Yet though said plaintiff was in plain view of the motorman of said car of defendant, who saw, or could have seen if said motorman had been careful and vigilant, that the said plaintiff was turned away with his hack toward the approaching car of said-defendant, as aforesaid, yet the said motorman of defendant, well knowing that plaintiff’s face and body was turned away from the approaching car, and that plaintiff was unconscious of his danger, negligently, carelessly, and recklessly, with great force and violence, drove down upon said plaintiff and his said horse and wagon, causing the damage aforesaid. That at said time and place said car was not under such control that it could be stopped in time to avoid collison with the said wagon and horse of plaintiff, but was running at a great and dangerous rate of speed, to wit, twenty miles per hour. That when said car struck the wagon of plaintiff, it threw said plaintiff out of said wagon, and injured his, to wit, the right arm,” etc.

There is no allegation in the declaration of gross, wanton, and willful negligence on the part of the motorman, nor is there an allegation that he discovered the negligence of the plaintiff in time to prevent the accident. In support of plaintiff’s claim, he cites La Pontney v. Cartage Co., 116 Mich. 515; Manor v. Railway Co., 118 Mich. 3; Mertz v. Railway, 125 Mich. 14; Rouse v. Railway, 128 Mich. 149, 135 Mich. 545; Tunison v. Weadock, 130 Mich. 159; Boettcher v. Railway Co., 131 Mich. 297; Labarge v. Railroad Co., 134 Mich. 139.

I think these cases are distinguishable from the case at bar. In nearly all of them the vehicle was going in the same direction as the street car when it was struck. In the case of Boettcher v. Railway Co., the vehicle was going toward the car, as in the case at bar, when it was struck, but in that case it appeared that the occasion of plaintiff getting so near the track was to avoid contact with a buggy, which was standing beside the road, and it was held a question for the jury under all the circumstances of the case. In the case at bar, according to the declaration, plaintiff was driving upon the track of defendant company at a bend in Lake street, where he could not see an approaching car more than one block west; that before passing around said bend he looked west, and saw no car, and then turned his face and body toward the rear of his wagon to adjust his load, and while adjusting his load, having traveled about two blocks, he suddenly heard a noise, faced around quickly, and his wagon was struck by the car. One cannot imagine a succession of acts much more negligent on the part of the person than what is stated here. When he looked he knew he could see but a block. He also knew that when he got west of the bend he could see without any obstruction down the track a half mile, and yet he did not look. There is nothing in the declaration to show that the motorman had any reason to suppose the plaintiff would not drive away from the railway track in time to avoid an accident. Instead of the case being governed by the cases cited by counsel for plaintiff, we think it is controlled by Richter v. Harper, 95 Mich. 221; Merritt v. Foote, 128 Mich. 367, and the many cases cited in the last-named case. See, also, Denman v. Johnston, 85 Mich. 387.

Judgment is affirmed.

McAlvay, Grant, Blair, and Ostrander, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    BRUNSWICK-BALKE-COLLENDER CO. v. NORTHERN ASSURANCE CO.
    1. Insurance — Eire—Insurable Interest.
    The seller of goods on a contract of conditional sale is the holder of the legal title, and has an insurable interest.
    2. Same — Description of Property — Title of Insured.
    A fire-insurance policy, providing that it should be void if the interest of the insured was other than unconditional and sole ownership, described the property as the property of the insured, who held the legal title thereto, subject to the rights of a buyer to acquire title by performance of a contract of sale, but there were no representations made by insured in procuring the policy, and the application therefor was verbal. Held, that the policy was valid, as the insurer could not complain of its own negligence in failing to require a more specific description.
    3. Same — Avoidance of Policy — Fraud.
    A stipulation in a fire-insurance policy that it shall be void if the insured has concealed or misrepresented any material fact, or in case of any fraud or false swearing touching any matter relating to the insurance, refers to actual fraud, and requires proof of a fraudulent intent, and hence the unintentional listing of property removed from the burned building before the fire will not avoid the policy.
    4. Same — Proofs of Loss — -Sufficiency.
    Where the insured in a fire-insurance policy is a nonresident of the State, the proof of loss need not be sworn to by him, as required by the policy, but may be made and sworn to by his _ agent.
    Error to Delta; Stone, J.
    Submitted October 12, 1905.
    (Docket No. 44.)
    Decided November 21, 1905.
    Assumpsit by the Brunswick-Balke-Collender Company against the Northern Assurance Company on a policy of insurance. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Oummiskey’& Yelland, for appellant.

      T. B. White (Myron H. Beach, of counsel), for appellee.
   Blair, J.

Plaintiff, an Illinois company, located at Chicago, brought this action on a Michigan standard form insurance policy for $1,100, to recover for the total loss by fire of certain saloon fixtures covered by the policy. The property in question was sold by plaintiff to Rawson Bros., of Escanaba, in this State, with a reservation of title to itself, as evidenced by the notes given for the balance of the purchase price, each of which contained the following clause, viz.: “ Title to remain in the Brunswick-Balke-Collender Co. until the goods are fully paid for.” A chattel mortgage was also given by Rawson Bros, to plaintiff upon this property to secure payment of the notes. The plaintiff, having authorized Rawson Bros, to procure insurance on the property in its name, one of the firm employed one McKana, an insurance agent, to apply to one Linden, defendant’s agent at Escanaba, for the policy. In accordance with his instructions, Mr. McKana “went to Mr. Linden, and asked this insurance as covered by this policy. I got two policies from Mr. Linden, including the policy in question. I turned them over to Mr. Rawson. They were both issued to the Brunswick-Balke-Collender Co.” There was no written application for the policy, and, so far as the record discloses, no specific representations were made by or in behalf of the plaintiff in procuring it. The policy was issued and delivered on the 30th day of November, 1901, and covered, among other articles, “1 4x8 pool table, with complete outfit,” of the value of $200. On the 19th day of April, 1902, the property insured was entirely destroyed by fire. Prior to the fire, Rawson Bros, had turned the above-mentioned pool table over to plaintiff, and it had been shipped out of the State, and was not in the building when the fire occurred. On the 6th day of June, 1902, plaintiff executed and served, by registered mail, upon defendant, proofs of loss, containing, among other things, the following statements :

‘ ‘'2. The property thus insured at the date of policy and time of fire hereinafter mentioned belonged to the said Brunswick-Balke-Collender Co., and no other person or persons had any interest therein, except as follows: That on or about the 1st day of November, 1901, the said Brunswick-Balke Collender Co. sold and transferred all of said property to Neis W. Rawson and Guy C. Rawson, copartners doing business under the firm name of Rawson Bros., of Escanaba, Michigan, and that upon the said 1st day of November, 1901, in consideration thereof, the said Rawson Bros, executed and delivered to'the said Brunswick-Balke-Collender Co. a chattel mortgage upon said property for the sum of fourteen hundred dollars, which said chattel mortgage was duly filed in the office of the city clerk of the city of Escanaba on the 1st day of November, 1901; that since the fire the insured has been informed that on or about the 9th day of April, 1902, the said Neis W. Rawson and Guy C. Rawson executed and delivered to Yiola Rawson a bill of sale of all of said property; that said policy of insurance was made and issued for the purpose of securing the interest in and to said property of the said Brunswick-Balke- Collender Co.
“5. The whole value of the property amounted to the sum of twenty-one hundred sixty-five dollars ($2,165), which was the actual cash value at the time immediately preceding the fire, set forth in the annexed ‘ Schedule A.’
“6. The whole amount of loss sustained is twenty-one hundred sixty-five dollars ($2,165), as set forth in the annexed ‘ Schedule A.5 ”

Among other items in Schedule A was the $200' pool table. The proofs of loss were signed and verified by Mr. Cummiskey as follows:

“ Witness my hand at the city, of Escanaba, this 6th day of June, A. D. 1902.
“ Brunswick-Balke-Coulender Company,
“By John Cummiskey, Its Agent and Attorney.”
“ State of Michigan, )
County of Delta. f s ' '
“ On this 6th day of June, 1902, personally appeared John Cummiskey, the signer of the foregoing statement, and made oath that he is the agent and one of the attorneys for, and makes this statement and affidavit for and in behalf of, the said Brunswick-Balke-Collender Co., of Chicago, Illinois, the insured mentioned in said policy; that he knows the facts stated in said proof of loss, and that said statement is just and true according to the best of his knowledge and belief, and to the best knowledge and belief of the said Brunswick-Balke-Collender Company.
“ John Cummiskey.
“Subscribed and sworn to before me, this 6th day of June, A. D. 1902.
“Zell, a Cox,
“Notary Public, Delta County, Mich.”

So far as this record discloses, Mr. Cummiskey made this affidavit in good faith, believing the proofs of loss to contain an accurate statement of facts, and without any fraudulent intent.

Upon the conclusion of plaintiff’s proofs, defendant’s counsel moved for a verdict in its favor, which motion was granted, and a verdict directed by the court for the following reasons, as summed up at the end of his opinion:

“ I think it is my duty to direct "a verdict here for the defendant in this case, and I do it upon the ground that the policy is shown to be void from the fact that it appears here that the plaintiff was not the sole and unconditional owner of the property, and that in the proofs of loss there were gross misstatements of facts sufficient in the law to operate as a fraud upon the defendant company in the particulars which I have pointed out, which, among other things, embraces the same question of the chattel mortgage.”

With reference to the proofs of loss, we quote the opinion of the court more in detail, as follows:

“ The objection is made here that the proof of loss has not truthfully stated the condition of this property: First. In that it states that the plaintiff has sold this property, and instead of being the unconditional owner of it, or the owner of the title of it all, shows it to have been but a chattel mortgagee. The proof of loss here made by Mr. Cummiskey, one of the attorneys for the plaintiff, under the authority and acting for the plaintiff, in the light of the statement made by counsel in the opening of his case to the jury, did not make a truthful statement in the proof of loss in regard to this. I am not now using the words ‘false statement,’ which to my mind means a little more. It was not truthful. The statement of the plaintiff’s counsel in the opening of this case to the jury took the position that this plaintiff had sold this property conditionally; but, when we turn to the proof of loss, we find the agent who represents this plaintiff swearing that the plaintiff was a chattel mortgagee of this property.
“Now, it seems to me that where facts are within the knowledge of a party, as it must be inferred here from the evidence that this plaintiff corporation had knowledge of the facts, and where it delegates to an agent the duty or right to make proof of loss, and where that agent swears that he has knowledge of the facts and correctly states the facts, that so wide a departure from the facts may well operate as a fraud upon the insurance company. Whether such fraud was intended or not, the result of it is to misrepresent the condition and state of facts to the company.
“ Then, again, it appears here by the plaintiff’s own testimony that one of the pool tables — I believe not the most valuable one, but a pool table of the value of at least $200, as shown by the proof of loss — it is, I say, stated in the testimony offered here by the plaintiff that this pool table was in the building and destroyed by this fire. It so appears, I should say, by the proof of loss. By testimony offered here by witnesses of the plaintiff, it appears that this pool table had been returned to the plaintiff as early as the month of December prior to the time of the fire, which occurred in April. Now, here again the agent may have innocently — and we will presume did innocently— state the matter as he understood it. But he was mistaken in the facts. It cannot be supposed for a moment that this plaintiff did not know the fact, and I think knowledge of the plaintiff must be charged up to it here. And where it delegates authority to an agent to make statements of that kind, it must be held to the responsibility that follows that of untruthful statements and misrepresentations to an insurance company, which must operate as a fraud.
“ Now it does not meet the question to say that the amount of insurance that they claim here is much less than the aggregate value of this property. The question is, Was it a material statement? Was it material? If it was material to state the kind and class and value of the property destroyed, then this was a material matter.”

The policy contains a provision that “this entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership.” It has been held by this court that in case of an oral application- for insurance, the applicant is not required to show the exact condition of his title, unless requested to do so. Guest v. Insurance Co., 66 Mich. 98, and cases cited. And if the applicant is guilty of no misleading conduct, the insurer in such a case, must be taken to assume the risk of undisclosed incumbrances. Gristock v. Insurance Co., 87 Mich. 428. In Miotke v. Insurance Co., 113 Mich. 166, it was said, referring to the clause under consideration, that “ the day has gone by in Michigan for successfully contending that the mere acceptance of a policy containing a condition like this makes it conclusive against the holder, who accepts it in ignorance of the clause, and whose title does not conform to the strict letter of the .condition.” In Hoose v. Insurance Co., 84 Mich. 309 (11 L. R. A. 340), the policy contained the following provisions:

“ This entire policy, and every part thereof, shall become void unless consent in writing is indorsed by the company hereon in each of the following instances, viz.:
“ If the assured is not the sole and unconditional owner of the property; or if any building intended to be insured stands on ground not owned in fee simple by the assured; or if the interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, is not truly stated in this policy; or if any change take place in the title, interest, location, or possession of the property (except in case of succession by reason of the death of the assured), whether by sale, transfer, or conveyance, in whole or in part, or by legal process or judicial decree; or if the title or possession be now or hereafter become involved in litigation; or if this policy be assigned or transferred before a loss.”

It was said by the court:

“In construing this portion of the policy, the whole must be taken together. Now the object sought to be accomplished by the person applying for insurance was to obtain indemnity against loss by fire of her interest in the building. If the insurance company which made out this policy, upon the verbal application to its agent, had desired to know what interest it was it was insuring, it should have stated it in that part of the policy pertaining to the risk. It was the intention of these parties to issue a valid and binding contract of insurance, valid and binding from the time of acceptance of the same by the assured, not that after it had been accepted by the assured, then the assured should apply to the company, and obtain its consent in writing indorsed on the policy, stating that the assured was not the sole and unconditional owner of the property, or stating that the building intended to be insured stood on ground not owned in fee simple by the assured, or stating, by indorsement on the policy, the interest which the assured had in the property covered by the insurance; and yet the language of this part of the policy is that the entire policy, and every part thereof, shall become void — that is, void in the future — unless such consent in writing is indorsed by the company thereon. To give any reasonable force and effect to this clause of the policy, it can only be held to apply to such changes as arise after the policy has been delivered and accepted, in the ownership of the property, or, if a building stood upon leased ground, the ownership of the building; and it does not apply to an existing state or condition of the property at the time the policy was issued. It looks to the future for protection of the insurer, and not to the present, only in so far as the preceding portion of the policy is violated by a misstatement or concealment of any fact material to the risk.”

This case was followed in Hall v. Insurance Co., 93 Mich. 184 (18 L. R. A. 135). While the language of the policy construed in the Hoose Case was “shall become void,” and in the case at bar it is “ shall be void,” we do not regard this difference in verbiage as requiring a different construction with reference to the clause as to unconditional ownership.

In the case at bar the plaintiff had an insurable interest. .It had the legal title and was the owner of the property insured, subject to the rights of Rawson Bros, to acquire its title by performance of the contract of sale. The only actual description of their interest in the property contained in the policy was the language, “$1,100 on their saloon furniture and fixtures,” etc. This was a true description, and defendant cannot complain because of its own negligence in failing to require a more specific description.

The policy contained a provision that ‘ ‘ this entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact, * * * or in case of any fraud or false swearing on the part of the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.” The learned trial judge seems to have drawn a distinction between fraud and false swearing as to the intent required, and to have held that a fraudulent intent was not necessary to constitute fraud under the above provision. We think the distinction is not a sound one. In 1 Clement on Fire Insurance, p. 276, Rule 3, the ruléis stated as follows:

“ Fraud or false swearing implies something more than mistake of fact or honest misstatements on part of assured. They may consist in knowingly and intentionally stating upon oath what is not true, or a statement of a fact as true which the party does not know to be true, and which he has no reasonable ground of believing to be true.”

We think that- the fraud referred to in this clause must be held to be actual fraud, and that the same rule applies which, in case the charge is false swearing, as we have heretofore held, requires proof of a fraudulent intent. Knop v. Insurance Co., 107 Mich. 323. Tiefenthal v. Insurance Co., 53 Mich. 306.

Counsel for defendant contend that the judgment should be sustained for reasons not assigned by the trial judge, viz.: (1) The policy was voided by other insurance. (2) The proofs of loss were not'sworn to by the insured, as required by the policy. We do not regard either of these points as well taken under the circumstances of this case. Plaintiff’s vice president and manager (Bensinger) testified :

“We had no other insurance on this property. We had a floating policy, but it did not cover this particular loss. * * * We liad a floating policy covering our interest on the property in Michigan, and in force at the time of the fire,” etc.

The policy is not printed in the record, and we cannot say, in opposition to Mr. Bensinger’s testimony, that it did cover this particular loss. The plaintiff was a nonresident, and within the exception to the general rule. 1 Clement on Fire Insurance, p. 206, Rule 16; McGraw v. Insurance Co., 54 Mich. 145; Burns v. Insurance Co., 130 Mich. 561.

'For the errors above pointed out, the judgment is reversed, and a new trial granted.

Moore, C. J., and McAlvay, Grant, and Ostrander, JJ., concurred.


text:
    KOBEL v. CITY OF DETROIT.
    Municipal Corporations — Officers—Compensation—Detroit Charter.
    Under section 250 of the charter of Detroit (1904), an assistant engineer, who has received the compensation fixed in the estimate, cannot recover for extra compensation, based on his having worked over eight hours per day, though an ordinance declares that eight hours shall constitute a day’s work.

    Error to Wayne; Hosmer, J.
    Submitted October 13, 1905.
    (Docket No. 65.)
    Decided November 21, 1905.
    Assumpsit by Rudolph Kobel against the city of Detroit for work and labor. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      William, F. & Frank W. Atkinson, for appellant.

      P. J. M. Hally (Timothy E. Tarsney, of counsel), for , appellee.

       As to right of servant to extra compensation for labor in excess of time limited by statute or ordinance, see note to People v. Orange County Road Construction Co. (N. Y.), 65 L. R. A. 46.

   Blair, J.

Plaintiff brought this action to recover $196, claimed to be due him in consequence of his having worked 11 hours per day instead of 8 hours per day, the legal extent of a day’s work under the city ordinance. Plaintiff was employed by the common council to work as an assistant engineer at the city hall from October 1,1900, to May 15, 1901. The estimates for that fiscal year were as follows:

Engineer city hall_______________________________§1,200 00
One assistant, 365 days, at $2.75 per day......... 1,003 75
One assistant, Oct. 1st to May 15th, 227 days, at §2.75 per day..................-..........— 624 25
One night engineer, Nov. 1st to May 1st, 156 nights, at §2.00 per night .......-........... 312 00

Plaintiff testified in his own behalf:

“ I was employed by the common council of the city of Detroit to work as assistant engineer of the city hall from October 1, 1900, to May 15, 1901. I was notified of my appointment by Alderman McGrraw. He told me I was to be paid $2.75 per day, and that I was to work 8 hours per day. I went to work on October 1st, and worked every day until May 15, 1901. I worked 11 hours per day, by direction of Chief Engineer Leadbeater. All my work was done under his direction. I asked him to put my extra time on the pay roll. He said he could not, but that I would get my pay for the extra time from the comptroller. It was necessary for the men to work 11 hours per day to do the work. On signing the pay roll, I made a demand for pay for the extra time. I made this demand several times when I signed the pay roll. At no time did I intend to relinquish any claim I had against the city for pay for extra time. * * *
“I was paid every two weeks. I signed the pay roll calling for $2.75 per day. I did this at the end of each two weeks during the time I was working.”

Frederick Leadbeater testified as follows:

‘ ‘ I am chief engineer of the city hall of the city of Detroit. I was such during the years 1900 and 1901. Mr. Kobel worked under me from October 1, 1900, to May 15, 1901. He worked 11 hours per day. His work was all done under my direction, such as running the engine, tending the fires, etc. It was impossible to do the work in 8-hour shifts. Mr. Kobel spoke to me about putting the extra time on the pay roll. I told him that I made out the pay roll for the 8 hours, and that he would get his pay for the extra time from the comptroller; that I had nothing to do with that. I understood that 8 hours was a day’s work, and that he would be paid for the extra time. Since that time the council has given me an extra man, and the men now work 8 hours per day.”

Section 1 of chapter 47 of the Revised Ordinances of the City of Detroit reads as follows:

“That hereafter 8 hours shall constitute a day’s work for all laborers, workmen and mechanics who may be employed by or in behalf of the city of Detroit, or any of its authorized boards or officers, or who may be employed by contractors or subcontractors in work done or executed under contracts with the said city of Detroit or its various authorized boards or officers.”

Section 250 of the charter (1904) provides as follows, viz.:

“The common council shall not, by warrant, draft, or order on the treasury, or by any form of contract, create any liability or expense, for the payment of which any particular fund is constituted as above, to a greater amount in the aggregate, for one year, than the amount of moneys raised for and paid into such fund for the year. All warrants, drafts, orders and contracts payable under this act, out of any particular fund, and issued or made after the moneys raised for and paid into such fund shall have been exhausted by payment therefrom, or liabilities created and to be paid out of said fund, shall be absolutely void as against the corporation.”

Section 258 of the same compilation provides for the disposition of the surplus that should remain in any fund.

The circuit judge directed a verdict for the defendant, saying:

“ I do not see that there is any case to be argued here. This is not like the Park Board Case; not like the O’Boyle Case, 181 Mich. 15. In the O’Boyle Case the common council and board of estimates made a, lump sum to the park board for certain purposes. The question whether Mr. O’Boyle in that case was to receive a dollar and a half for eight hours’ work or a dollar and a half for ten hours’ work was never considered by either party, and when the park board established an eight-hour rule in that case, he was directed by the man that employed him to keep his overtime, and return it to the park board, and it presented a very different case from the case at bar. Now, in the case at bar, when the estimates for each of those years went to the common council, they fixed two dollars seventy-five for the services for the day — for 227 days, the estimated time of two assistant engineers — and when the board of estimates passed upon that sum, and sent that back as the estimate for the year, they deprived the common council of the city of Detroit, directly or by implication, from in any manner exceeding that sum for that purpose ; nor would the common council, under ordinary circumstances — certainly, I may not anticipate every case, but under ordinary circumstances — nor would they be authorized to employ another engineer for that purpose. Now, under these circumstances, it does not seem to me that there is the slightest cause of action presented here, nor do I think that, under the circumstances of the case, any protest made, if there was any protest made by Mr. Nobel, would have been binding. He was appointed for the time, and he signed his pay roll without bringing the matter at least to the attention of the common council or of the comptroller, or any of the officers authorized to pay.”

In our opinion, the ruling of the trial judge was clearly correct, and we adopt his opinion as above quoted. The cases of Coit v. City of Grand Rapids, 115 Mich. 498, and O’Boyle v. City of Detroit, 131 Mich. 15, relied upon by plaintiff’s counsel, are not in point.

The judgment is affirmed.

Moore, C. J., and McAlvay, Grant, and Ostrander, JJ., concurred.


text:
    BURKART v. BLAUMANN.
    1. Justices op the Peace — Nonsuit—Discontinuance.
    Under section 836, 1 Comp. Laws, plaintiff, in an action before a justice, is entitled as of right to discontinue or submit to a nonsuit at any time before verdict.
    2. Same — Effect.
    Where, after a motion for a new trial is granted by a justice of the peace, plaintiff discontinues the action, the justice is thereby deprived of all jurisdiction to render any judgment in the case except one of nonsuit.
    3. Judgment — Bab op Cause op Action — Nonsuit.
    Where, after the granting of a motion for a new trial by a jus» tice of the peace, plaintiff discontinues the action, he is entitled to commence a new suit in any court having jurisdiction of the parties and subject-matter, though the justice neglects to formally enter the judgment of nonsuit.
    Error to Wayne; Donovan, J.
    Submitted October 13, 1905.
    (Docket No. 57.)
    Decided November 21, 1905.
    Assumpsit in justice’s court by Anselm S. Burkart against Carl R. Blaumann upon a promissory note. There was judgment for plaintiff, and defendant appealed to the circuit court, where there was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      William Kelley and M. J. Lehmann, for appellant.

      Henry F. Chipman and Louis Ott, for appellee.
   Blair, J.

Plaintiff commenced suit upon a promissory note in September, 1904, in the justice’s court of Detroit, which, according to the practice of that court, was assigned to Justice Stein, who rendered judgment in favor of plaintiff, but upon motion of defendant granted a new trial. Thereupon plaintiff discontinued his suit, and commenced another suit in the same court upon the same note. This last suit, under the practice of the court, was assigned to Justice Teagan, who tried it, and rendered judgment for plaintiff, from which judgment the defendant appealed to the circuit court. The docket of Justice Stein showed the following entries:

“Sept. 10, 1904, I render judgment in favor of the plaintiff and against the defendant for $375 and $1.75 costs.
“ Christopher E. Stein.
“ Sept. 14th, motion for new trial filed, case set for Sept. 17th, 9 a. m. of that day.
“ Sept. 17th, case called, parties in court, case adjourned by consent of parties to Sept. 21.
“ Sept. 21, case called, parties in court, motion for new trial granted. Case discontinued in open court by plaintiff’s attorney.
“ Christopher E. Stein,
Justice of the Peace.”

The clerk of the court testified:

“ The case tried before Justice Stein does not now stand in our court upon a motion for a new trial. It was discontinued by plaintiff’s attorneys.
“ This case that we are talking about in this court was commenced after the motion for a new trial before Judge Stein was granted, Sept. 21, 1904. This case was started Sept. 28, 1904. * * *
“Justice Stein rendered two judgments and granted two new trials, and, after he granted the second trial, case was discontinued by plaintiff’s attorneys.
“In this city, suits are commenced in justice court by filing a praecipe in the office of the clerk, and the clerk assigns the cases to the justices in rotation, according to the requirements of the statute, and that is the way the case now before this court came to Justice Teagan.”

Defendant gave notice, under his plea of the general issue:

“ That said nóte, the subject-matter of this suit, is now in suit in another branch of this court before Christopher E. Stein, Esq., justice of the peace.
“That said'suit before Christopher E. Stein, Esq., is No. 13,358 of the files and records of the justice’s docket of said Christopher E. Stein, Esq., and has been fully tried and determined by said Christopher E. Stein, who did heretofore render judgment in said suit, which was set aside by said Christopher E. Stein, and a new trial of said cause granted, and on Sept. 10, 1904, upon the new trial of said cause, after hearing the testimony, said Christopher E. Stein did render a judgment in favor of the plaintiff for $372 and $1.75 costs.
“ That on September 14, 1904, defendant moved for a new trial of said suit, and said motion was duly heard and argued, and thereupon said Christopher E. Stein granted a new trial of said cause, and thereupon said' suit was discontinued in open court by plaintiff’s attorneys.
‘£ That said suit was not nonsuited, and the dismissal of said suit was irregular and void.”

When the cause came on for trial in the circuit court on appeal, on objection being made, the trial judge held that he had no jurisdiction, and that the case must be dismissed because the suit had not proceeded to judgment. On the following day, on motion of defendant’s attorney, and against the objection of plaintiff’s attorney, the court ordered the jury, which was not then in attendance upon the case, but whose assembling was waived, to return a verdict for the defendant. We think the court was in error.

“The general right of the plaintiff to discontinue his suit or submit to a nonsuit at any time before verdict is undoubted.” Merchants’ Bank of Canada v. Schulenberg, 54 Mich. 49.

As to whether that right existed in case of set-off, pleaded by defendant, the court evenly divided. The Justices, however, agreed as to the existence of the right in the absence of such plea. There was no notice of set-off or recoupment jn the case before us. See, also, to the same effect, Helwig v. Wayne Circuit Judge, 73 Mich. 258. Section 836, 1 Comp. Laws, provides that:

“Judgment of nonsuit, with costs, shall be rendered against a plaintiff prosecuting an action before a justice of the peace in the following cases:
“1. If he discontinue or withdraw his action;
. “ 2. If he fail to appear on the return of any process, within one hour after the same was returnable;
“3. If after an adjournment he fail to appear within one hour after the time to which the adjournment shall have been made;
“ 4. If he become nonsuited on the trial.”

It was held by this court in Brady v. Tabor, 29 Mich. 199, that the failure of the plaintiff to appear within the hour, under this statute, ‘ ‘ operated as a discontinuance of the suit, and deprived the justice of all jurisdiction to render the judgment against the defendant, or any judgment except that of nonsuit and for costs.” When plaintiff discontinued the suit before Justice Stein, the justice thereupon lost all jurisdiction to render any judgment except one of nonsuit, and the fact that he neglected to enter the formal judgment, which was the only one he could enter, could not affect the plaintiff’s rights. He no longer had jurisdiction of the case, and the plaintiff was at liberty to commence his suit anew in any court having jurisdiction of the parties and subject-matter.

The judgment is reversed, and a new trial granted, ^ with costs to plaintiff.

Moore, C. J., and MoAlvay, Grant, and Ostrander, JJ., concurred.


author: Ostrander, J.

text:
    SCHNEIDER v. TOWNSHIP OF BROWN.
    1. Highways and Streets — Establishment—Width —Presumption.
    Section 4036, 2 Comp. Laws, defining the width of the public highways of the State, supports a presumption that a highway, laid out across a ravine and creek extended at a uniform width across the ravine.
    ' 2. Same — Water Rights — Prescription—Rights Acquired.
    The building of a bridge on the section line across a mill pond occupying a ravine, the road for many years having diverged from the section line to cross the ravine on the dam, is not such a use of the land occupied by the bridge as will operate to invest the public with any rights exceeding the bounds of actual user, and hence the township had not the right, as a matter of law, to replace the bridge by an embankment and culvert to the injury of the mill pond.
    3. Same — Rights oe Abutting Landowners — Encroachment oe Embankment.
    The rights of the public in a highway do not give it any right to place a part of an embankment upon the lands of an abutting owner.

      4. Same — Construction—Injury to Abutting Owner.
    A township, in constructing an embankment for a highway, has no right to so construct it as to cause the deposit of earth in a pond of a landowner or upon his land.
    Error to Manistee; McAlvay, J.
    Submitted October 13, 1905.
    (Docket No. 58.)
    Decided November 21, 1905.
    Case by Casper Schneider against the township of Brown for damages to a mill pond caused by the maintenance of an embankment in a highway. There was judgment for plaintiff, and defendant brings error.
    Reversed.
    A highway has existed on the section line between sections 9 and 16 in defendant township since the year 1869. There is no record evidence of its establishment. There is testimony in the record to the effect:
    “ When I first went out there to live, the highway was not laid out. If I remember right, it was laid out in 1868 by the township authorities of the township of Brown; that was before Mr. Schneider came there. I think we worked on the road a short time after it was laid out. One end of the road was opened first, except that it turned, and went down over the dam there, and then came back. It followed right along. It was not always on the line; it diverged some.”
    It is said by counsel for defendant that in 1884 there was a resurvey of the highway, of which a record was made. It appears to have been a highway four rods in width, as indicated by understanding and marked by fences, including the fences on plaintiff’s land. Plaintiff owns land in both sections, and through his land a stream, called in th,e record “Chief Creek,” runs in a direction generally south, and crosses the line of said highway. Prior to the year 1880, the highway was not, and could not be, used over this creek and the ravine in which it ran. Using the highway to or near the banks of the ravine on either side, travel at this point was to the south of the section line, and the stream was crossed by way of a dam constructed .some 17 rods south of the. line of the highway. The <dam was there when plaintiff, some 28 years before the trial, purchased the land. It was only 2 or 3 feet high and was used by the public for crossing the creek until 1880, or perhaps 1882, when the township built, substantially on the line of the highway, a bridge 16 feet in width, spanning the ravine and the stream. The bridge was once rebuilt, was used by the public as a part of the highway until 1902, when it became infirm, and for it was substituted an embankment of earth and timbers, through and under which the water of the creek passes by way of a culvert. The embankment is 18 feet wide on top, and is at all points less than 66 feet wide at its base. There is testimony tending to prove that the center line of the embankment is south of the center line of the bridge it replaced, and that the base of the embankment rests upon land of plaintiff south of the south line of the highway. There is also testimony tending to prove that the embankment was built with reference to a north line of the highway e¡gst of the embankment, claimed by plaintiff to be a correct line, to correspond with which he moved his fence to the south, into the highway, as before indicated. Some years (4 or 5) before the first bridge was built, plaintiff, who operated a sawmill at a point below his dam, raised the dam 7 or 8 feet, as a consequence setting back the water in his pond to, and, as he testified, some 15 rods beyond the line of highway, all upon his own land. Plaintiff’s testimony is to the effect, also, that no uniform head of water was maintained, but that boards were used, as occasion demanded, to increase the height of the dam, and so to raise the water in the pond. With this pondage of the water, the bridge, built upon posts, did not, it is claimed, interfere, nor with the storage of logs in the pond. It seems to be conceded that the building of the embankment in question was by the direction and authority of the defendant township. Plaintiff complains that the embankment has filled his pond, •diminished its capacity for storage of water, and inter.rupted the free flow of water thereto. He also claims that the embankment is built in part, at least, upon his land, and is constructed without retaining walls of any sort, resulting in a wash of earth from the embankment to and upon his land and into the pond. The covering with earth of logs, placed in the pond to be sawed, and the diminished value and the diminished earning capacity of the mill by reason of a diminished mill pond, are specifications of injury for which, in an action on the case against the township, damages were claimed.
    The position of plaintiff is thus stated by his counsel:
    “ He did not deny the existence of a highway by user along the section line crossing his property, but he did deny the right of the township to connect this highway, at the point where it crossed his pond, with any sort of an embankment or fill that would interfere with the full use and enjoyment of his pond and water power. He had always acquiesced in the maintenance by the township of the wooden bridge, for the reason that that did not interfere with his property rights in the pond.”
    And again:
    “ The plaintiff in this case claims that the township of Brown had no right whatever to put in this fill or embankment, or fill up this space from one side of the bank to the other with this material, sand, and dirt, or grade and fill there, so to speak, that in doing so it trespassed upon his rights as the owner of that property, and filled up his pond to a large extent. That furthermore, in putting it in, the way it was put in, there was more serious damage done to the plaintiff because of the manner in which it was constructed, and that there was no effort made by the township of Brown to confine this embankment further by sodding or putting in timbers, or in any other way to prevent the water washing down from passing across it, and by the elements washing this material into the pond from both directions.”
    Defendant’s position is that a highway 4 rods wide has existed'across the creek since 1868; that the public right to use the land within the highway as laid out is, and has always been, superior to the right of plaintiff to back and hold water upon the highway; that the building, and for 20 years maintaining, a bridge across the ravine on the line of the highway were acts in assertion of rights in the highway as laid; that in electing to build an, embankment with a passage for water, instead of rebuilding the bridge, and in building the embankment, the township acted in its governmental capacity, built the embankment entirely within the limits of the highway, and in a proper manner; that, if plaintiff has been occasioned any loss thereby, it is damnum absque injuria. The further issue was made that plaintiff has estopped himself to question the right of the township to,build the embankment as and where it is built.
    Some of the alleged facts upon which estoppel of plaintiff is rested are:
    1. He fenced his land down to and in the ravine in such way as to indicate a highway four rods wide, within the limits of which the embankment is built.
    2. That a few years before the embankment was made, plaintiff had the lines surveyed, and insisted that the road was too far north, and should be changed to a line further south and towards his mill. ■
    3. That he saw the stakes locating the proposed embankment, and became surety for his son, who did the work; made no objections to the placing of the embankment.
    4. Plaintiff was present in 1902 at the public meeting which discussed and determined the manner of replacing the wornout bridge, and, while announcing his preference for an iron bridge, did not assert any right of his which the building and maintenance of an embankment would interfere with, nor suggest resulting injury to himself or his property.
    5. He presented in 1903 to the township board a claim apparently prepared in the office of his attorney, reading as follows:
    To damages caused to the said Casper Schneider by the township authorities in making a fill in the public highway across Chief creek, where there formerly was a wooden bridge; the said highway being between section nine and section sixteen, in township twenty-two north, of range fifteen west, and the said damages being more particularly described as follows:

      “ To damage to mill pond and water power, caused from the earth and sand caving into the said pond and filling the sam'e____________________________________________§500
    “To 50 M. feet of hardwood logs buried by the caving in of the said earth and sand in said pond, at §8 per M____400
    “Total ...I — ...................................§900”
    It is said that the form of this claim negatives the idea and fact of damage except as the same arose from improper construction of the embankment. This claim was the second one presented; the first one, made a month previous, reading:
    “ To the Township Board.

      ‘ ‘ Gentlemen: In order to save litigation in regard to damages sustained by me by having my logs covered and pond filled with sand by the wash that has filled it, I will settle with the township for the sum of three hundred dollars ($300) for damages done and all damages that may be done hereafter.
    “Yours truly,
    [Signed] “ Casper Schneider.”
    Both claims were verified by plaintiff, and a part of the verification statement with the later claim was:

      “ Deponent further says that he has heretofore rendered to the said township of Brown a bill for a less amount, but that when the former bill was rendered he was not fully aware of the extent of his damage on account of the action of the said township, as aforesaid, and as to the cost of repairing the same, in the event that the same could be repaired.”
    The trial court submitted to the jury certain questions of fact, and a general verdict for plaintiff for $650 was returned, and judgment was entered on the verdict. Defendant presented 20 requests to charge, all of which, “except as they maybe included in the main charge” were refused. In the main brief for appellant it is said that the important questions involved are raised by the defendant’s 14th, 15th, and 16th requests refused, and by the charge given as indicated in the 13th and 15th assignments of error. The requests to charge, referred to, are:

      “14. As to the highway, I charge you that the proof shows that in 1868 a highway was laid out on the east and west section line, between sections 16 and 9. That it was opened and traveled on each side of the valley; the traveling diverging to the south on either side of the valley, going down and crossing the creek at the mill dam. That in 1876 plaintiff bought the property described in this case; the dam at that time being a low dam, as he states it, four feet high. That he afterwards raised the dam, and in so doing flooded the water back to the highway and beyond. In 1888 the township constructed a wooden bridge across the valley on the line of the highway, and have ever since maintained either a wooden bridge or dirt and wooden bridge, which has been used by the public. This laying out the highway and afterwards opening it gave the township a right of way 4 rods or 66 feet wide, and the testimony in this case conclusively shows that the township has never abandoned or in any way lost its right in and to said highway.
    “ The plaintiff could not by flooding the water back in said pond or creek onto the land in the limits of the highway acquire any rights adverse or superior to the rights ■of said township, but any possession he may have had of said land in said highway must be held as having been with the consent and acquiescence of the township, and not adverse thereto.
    “That to acquire any rights by adverse possession or adverse user, the adverse possession or adverse user, in order to ripen into a right, must be open, notorious, and adverse, and it must be so brought to the attention of the owner of the soil. In this case, the township, being in the possession and use of the highway along the line in question, was in law in possession to the boundary line of the highway on either side, and the plaintiff could acquire no presumptive or adverse rights by flooding or taking possession of any part of said highway, unless he made such possession open, notorious, and gave the public in general, arid the township in particular, notice that he claimed an ownership in the soil and a right to flood the same.
    “ The proof in the case fails to establish such claim, but, on the contrary, does show that plaintiff recognized the south boundary line of the highway as the boundary of his land, and made no claim adverse to the rights of the township .to the land inside of the limits of said highway. Hence he has never acquired any prescriptive or adverse rights to any of the land in said highway.
    “ 15. In law the use of the highway by the public by the erection and use of the wooden bridge was such as to give the defendants possession of, and title to, the ground on two rods each side of the section line between sections 16 and 9, here in question; and, if the wooden bridge deviated from the true line within the limits of the four rods, the township might rightfully, in the erection of the new bridge, change the location, so long as it was kept inside of the four rods.
    “16. The right of the township to the highway in question is not based on user, but on grant or condemnation, and that said plaintiff had no right, by prescription or otherwise, at the time said first wooden bridge was constructed, and has and could not have acquired any since that time, as said defendant has been in the actual possession of said highway at least during all that time since said bridge was built, and I charge you, as a matter of law, that such claim is true.
    “ (a) The only way that said plaintiff could acquire any prescriptive rights in the land included in said highway would either be by deed from said township, or by taking possession of the whole, or some part thereof, to the exclusion of said township. This might be done by the erection of a fence or other barrier, and claiming it to be the. true boundary line, and thereafter continuing in the open, notorious, visible, and adverse possession under a claim of title or right. The mere flooding the water of the creek onto, over, or beyond the highway, unless done under a claim of right or title brought home to the attention of the defendant, would not ripen into a title, no matter how long continued. The possession of the defendant being actual, it must be considered exclusive, and sufficient to authorize the use of the entire width of the highway whenever the township authorities should elect. The use by the plaintiff, so far as the proof shows any use, was permissive and not adverse.
    “ (b) The highway had been appropriated to a public use, and no adverse interest could be acquired until some assertion of an adverse interest was so made that the public should be notified. The proof shows that the general understanding was that it was a highway, and there is no proof that any one ever understood that plaintiff had or claimed any rights within the limits of the four rods. Under this proof, the plaintiff must be held to have no right within the four-rod limit.”
    The thirteenth and fifteenth assignments of error are:
    “ 13. In instructing the jury: ‘ But I charge you, as a matter of law, that Mr. Schneider, by reason of having rights in this water privilege before there was any highway there, and by reason of the fact that in the early days the .travel was down over the dam, and the highway proper came to the banks, as I take it, and that the highway has crossed the valley, at least above part of the way over the water that Mr. Schneider flooded, the land has been used as a highway by user for all these, years, and has been used while Mr. Schneider has used his part or rights, whatever they may be, of floodage, each using and exercising such rights as it claimed to have without interfering with the other. On that account, I shall charge you that Mr. Schneider did acquire rights to back up, if he did back it up, under the bridge, for as far as he did back it ■Qp ^ ‡ il
    “ 15. In instructing the jury: ‘ And I charge you further, that if you find that Mr. Schneider, as a matter of fact, has used, as he claims, and as witnesses on his side have testified tending to show, the space under the bridge for whatever floodage you find, and has for years backed the water of his dam up through that space, that, as a matter of law, the township had no right to put a fill in there or a bridge in there that would deprive him of the use which he had had of that part of the water under the bridge, if you find he did use it.’ ”

      Pratt & Davis, for appellant.

      Prank L. Powler, for appellee.
   Ostrander, J.

(after stating the facts). It'is clear that, extending from the ravine in either direction, there was, at the time plaintiff raised his dam, a road which was four rods wide, which might become, if it had not already become, by user a public highway. There is no record evidence of the laying out of the road. At the time plaintiff raised his dam, no úse whatever had been made of the ground through the ravine for highway purposes. It is to be presumed, we think, if any presumptions may be indulged, that the highway, as laid, if one was laid, was a continuous highway, extending at a uniform width across the ravine and creek. The language of the statute supports such presumption. 2 Comp. Laws, § 4036. Travel was interrupted on the line of the highway by the formation of the ground, the presence of the creek, and the absence of a bridge or other means of crossing. Some years after the dam was raised (the precise time being uncertain, but it was probably not more than six nor less than four years), the township determined to build a bridge to connect and make continuous the highway. Plaintiff, for the township, built this bridge. As constructed, it interfered little, if any, with the use plaintiff was then making of the land. Then, for the first time, travel across the ravine on the line of the highway began.

We are referred to no authority which warrants us in holding, as a matter of law, that the use of the particular ground then first begun operated to invest the public with any rights exceeding the bounds of actual user. The cases of Bumpus v. Miller, 4 Mich. 159, and McNamara v. Railway Co., 95 Mich. 545, cited by counsel for appellant, do not rule the point. There had been here, after the use of the remainder of the highway had begun, a use of the land which might be said to be inconsistent with its use other than by bridging it as a highway. Whether the township had, except by acquiescence of plaintiff, the right to bridge it, we need- not determine. There is no complaint made of that action. Counsel for appellant says that the right of defendant to build the embankment in 1902 was the same as it was in 1880. That may be conceded, and it is still necessary to show that such right existed in 1880, or to show acquiescence in the claim of the township to have such a right.

The particular errors assigned, which, under the rules, we are permitted to consider, and the theories of rights asserted by counsel for the respective parties, make treatment of the case here somewhat difficult. The requests to charge, above set out, are open to the criticism, not only of asserting rights of defendant which cannot be, as matter of law, sustained, but of assuming facts which are disputed. On the other hand, the position of counsel for plaintiff may or may not be consistent with the facts, depending upon what a jury may, viewing all of the testimony, find the facts to be. There is testimony in the record from which the jury might have found that there was, as early as 1869, an intended and asserted appropriation by the public of a continuous strip of land along the section line, four rods in width, known to plaintiff when he purchased his land, and never disputed, or intended to be disputed, by him — rather affirmed and confirmed by him — until he brought this suit; that use of this strip of land across the ravine was postponed until the township should erect a suitable means of crossing; that all of the proceedings on the part of the township authorities were predicated upon this claimed appropriation and right, and were without protest from plaintiff, or assertion by him of any conflicting right, and that, with a pond 11 by 17 rods in size south of the embankment, a culvert through the embankment, permitting the free flow of water, and an indefinite space north of the embankment in which water may stand, plaintiff has in fact lost no use of his mill from a diminished flow or diminished head of water, attributable to the embankment, properly constructed. While contending for more than this, we think the requests to charge preferred on the part of defendant fairly raise the point that the case should be submitted to the jury upon the theory above indicated, and that the charge as given and as questioned in the fifteenth assignment of error was not warranted. The jury had already been charged, as matter of law, that plaintiff had not by his conduct acquiesced in the proceeding to build an embankment; a portion of the charge upon which the twelfth assignment of error is based. This alleged error is not mentioned in the brief for appellant, and the matter is referred to only as explanatory of what is here said and of that portion of the charge set out. If a jury should find that the embankment was built in part upon plaintiff’s land, outside the limits of the highway, of course no rights of the public in the land within the highway would warrant such a trespass. Vanderlip v. City of Grand Rapids, 73 Mich. 522 (3 L. R. A. 247). The same would be true if the embankment is so constructed that the inevitable consequence is the deposit of earth upon the logs of plaintiff in his pond, or upon the land of plaintiff, to his injury. Ferris v. Board of Education of Detroit, 122 Mich. 315. No other questions discussed, which we are at liberty to consider, are likely to arise upon a new trial.

Judgment is reversed, with costs, and a new trial granted.

Móore, C. J., and Grant, Blair, and Hooker, JJ., concurred.


author: Grant, J. Blair, J.

text:
    HAMILTON v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    Railroads — Injuries to Trespassers — Children in Yard.
    A railroad company is not liable for injuries to a -child sustained while playing around cars in its yard, where there is no evidence that the switching crew, in charge of the engine causing the movement of the cars, had or should have had knowledge of the presence of the child or of his companions.
    Error to Wayne; Hosmer, J.
    Submitted October 13, 1905.
    (Docket No. 56.)
    Decided November 21, 1905.

      Case by Frederick Hamilton, by next friend, against the Detroit, Grand Haven & Milwaukee Railway Company and the Chicago & Grand Trunk Railway Company for personal injuries. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Lehmann & Biggs, for appellant.

      Harrison Geer, for appellees.
   Grant, J.

Plaintiff, when 6 years and 10 months old, went, with some other children, into the yard of the defendant railway companies in the city of Detroit in which were standing freight and flat cars. He, with the other children, was playing on -or around a flat car. A switch engine backed down upon the siding, and moved the car under or upon which the plaintiff was playing. In some way not apparent plaintiff got under a wheel and had his arm crushed. For this injury plaintiff brought suit, alleging in his declaration that the defendants had knowledge of his presence, and that it was their duty to remove him from the yard before moving their cars. There is no evidence that the switching crew had, or should have had, knowledge of the presence of plaintiff or any of his companions. A further statement of facts is unnecessary. The court directed a verdict for the defendants.

The case, both in its facts and the law, is ruled by Katzinski v. Railway Co., 141 Mich. 75, and authorities there cited. See, also, Trudell v. Railway Co., 126 Mich. 73 (53 L. R. A. 271).

Judgment affirmed.

Moore, C. J., and McAlvay and Ostrander, JJ., concurred with Grant, J.

Blair, J.

I concur, on the ground that no negligence was shown on the part of defendants.


author: Hooker, J.

text:
    BREEN v. KEHOE.
    1. Executors — Disqualifications—Nonresidence.
    Under the statutes of this State a nonresident alien is not absolutely disqualified from serving as executor, but his non-residence is ground for the exercise of a discretion in the probate judge in the matters of appointing him or revoking his letters. Sections 9310, 9317, 3 Comp. Laws.
    2. Same — Appointment—Obedience to Will.
    The appointment of an executor must ordinarily be made in accordance with the will of the testator, unless he is ineli-' gible, or a statutory discretion, express or implied, to refuse such appointment, is lodged with the court.
    3. Same — Disqualifications—Indebtedness to Testator.
    In the absence of statute, indebtedness to testator does not disqualify one to act as executor.
    Error to Chippewa; Steere, J.
    Submitted October 18, 1905.
    (Docket No. 75.)
    Decided November 21, 1905.
    Annie Breen petitioned for the probate of the last will and testament of James Breen, deceased, and objected to the appointment of John J. Kehoe and David Lynn as executors. There was an order allowing the will and appointing said parties executors, and petitioner appealed to the circuit court. There was judgment sustaining the order of the probate court on a verdict directed by the court, and petitioner brings error.
    Affirmed.

      John W. Shine, for appellant.

      Sharpe & Handy, for appellee.
   Hooker, J.

James Breen died on July 26, 1904, a resident of Sault Ste. Marie, Mich., where he had lived from 1902. Previous to that time he had lived in Ontario. He left a large estate in both countries. A will made in Ontario some years before his death named his widow, Annie Breen, John J. Kehoe, his solicitor, and David Lynn, a friend, as executors. A codicil made shortly before his death made no change in this regard. Mrs. Breen petitioned for the probate of the will, and objected to the appointment of Kehoe and Lynn as executors, on the grounds, first, that they were nonresidents and aliens; second, that Kehoe was indebted to the estate. This indebtedness was amply secured by real-estate mortgage upon property in Ontario. The probate court confirmed the appointment of the three executors, and on appeal to the circuit this order was affirmed. , Mrs. Breen has brought the case to this court by writ of error.

The cause was tried at circuit before a jury, and a verdict was directed. No question is raised over the propriety of the trial by jury. The deceased left a widow and several children surviving him, all of whom reside in Michigan. Lynn has filed his refusal to act as executor. The will contains a provision authorizing the acting executor to remove such other executors as reside abroad or become incapable to act. Annie Breen filed her bond as executor, letters testamentary were issued to her, and she is administering the estate, which administration is now nearly completed, and the estate in shape to be carried on by her as sole executrix.

Counsel seem to agree that the question in the case is whether it was within the authority and discretion of the probate judge to appoint two nonresident aliens, one of whom was indebted to the estate, to the office of executor. We will therefore consider no other question. 3 Comp. Laws, § 9310, provides:

“ (9310) Section 1. When awill shall have been duly proved and allowed the probate court shall issue letters testamentary thereon, to the person named executor therein, if he is legally competent, and shall accept the trust, and give bond as required by law.”

This section appears to leave no discretion in the probate judge. If the person named is legally competent, and will accept and give the bond, he must be appointed. That a nonresident and even an alien might be named and appointed executor under the common law is clear. See Appeal of Ann Smith, 61 Conn. 420 (16 L. R. A. 539); 18 Cyc. p. 77, and cases cited in note 30; McGregor v. McGregor, 3 Abb. Dec. (N. Y.) 95; 1 Williams on Executors (7th Am. Ed.), p. 269; Cutler v. Howard, 9 Wis. 309; Berry v. Hamilton, 54 Am. Dec. 518, note (12 B. Mon. [Ky.] 191).

If a nonresident alien is not eligible in Michigan, it must be by reason of 3 Comp. Laws, § 9317, which provides that:

“ (9317) Sec. 9. If an executor shall reside out of this State, or shall neglect, after due notice given by the judge of probate, to render his account and settle the estate according to law, or to perform any decree of the court, or shall abscond or become insane, or otherwise incapable or unsuitable to discharge the trust, the probate court may remove such executor.”

If we construe the word “may” in this section in accordance with the common understanding of the word (see 1 Comp. Laws, § 50, subd. 1), it should be said that this section was designed merely to permit removal, not to compel it, and perhaps refusal to appoint one not a resident of the State. It is suggested, however, that the word has acquired a peculiar meaning, appropriate to the purpose of its use, and should be held to mean “ shall.” To give force to this claim, counsel cites cases where, under similar statutes in relation to administrators, it has been held that the courts may refuse to appoint a nonresident administrator in the first instance. Thus in Gary’s Probate Law (3d Ed.), § 267, it is said that:

“ Removal from the State being ground for revocation of letters of administration, it would seem that a nonresident, otherwise entitled, should not [not cannot] be appointed.”

The authority cited in support of this statement is Radford v. Radford, 5 Dana (Ky.), 156. In that case a' woman abandoned her husband and went to another State two years before his death, at which time, and when she applied for letters at his domicile, she still resided there. Under these circumstances, the county court refused to appoint her. What kind of a statute, if any, was in force, does not appear; but it is probable that there was a statute authorizing her rejection, in view of the discussion in the later case of Berry v. Hamilton, 54 Am. Dec. 517 (12 B. Mon. [Ky.] 191), which seems to recognize the general features of the common-law rule. We must therefore conclude that she was disqualified by the statute. For such a case, see In re Ulhorn, 12 Ohio Cir. Ct. R. 766. Also, In re Sargent's Estate, 62 Wis. 130.

Mr. Oros well, a text-writer, interprets our statute (section 9317) as follows:

“ In Michigan and Vermont no prdvision of statute touches the point, except that if executors or administrators reside out of the State, they may be removed from office; from which it would seem that they are incompetent to be originally appointed.” Croswell on Executors and Administrators, § 94.

Mr. Woerner is more guarded. He contents himself with saying (somewhat inaccurately, perhaps) that “in Maine, Michigan, and Ohio nonresident executors who fail to account and settle in the probate court when required, are to be removed.” 1 Woerner on American Law of Administration, p. 505. In Wiley v. Brainerd, 11 Vt. 112, revocation of letters testamentary was refused. What the statute was does not appear, but the result would indicate that there was a statute, and the quotation from Gary indicates that it may have been a statute similar to ours. In any event, the case goes no further than to hold that her rejection was within the discretion of the county court, and we should perhaps be disposed to follow the case to that extent in the construction of our statute. It is entirely consistent with the interpretation of the word “ may ” in accordance with common understanding, and falls short of holding that such an appointment was prohibited. There are cases which hold that where a statute provides that, “ if an administrator moves out of the State, his letters shall be revoked,” a nonresident cannot be appointed as an administrator, since such an appointment is forbidden by implication. See Burkhim v. Pinkhussohn, 58 S. C. 469. It is so in Illinois, where the statute makes it the duty of the court to remove an administrator who has remoyed from the State. See Child v. Gratiot, 41 Ill. 359. In Pennsylvania the statute prohibits the appointment of a nonresident. See Sarkie’s Appeal, 2 Pa. 157, and Frick’s Appeal, 114 Pa. 29.

The foregoing discussion of the authorities satisfies us that our statute was not intended to absolutely disqualify or prohibit the appointment of nonresidents to the office of executor, but to make the nonresidence ground for the exercise of a discretion both in appointment and revocation. « There is a wide difference between an administrator and an executor. The latter’s appointment must ordinarily be made in accordance with the will of the testator, unless he is ineligible, or a statutory discretion, express or by implication, to refuse it, is lodged with the court. See note to Berry v. Hamilton, 54 Am. Dec. 518 (12 B. Mon. [Ky.] 191), and other cases hereinbefore cited. Por a case closely in point, see Cutler v. Howard, 9 Wis. 309.

It is said that Kehoe’s indebtedness to the estate disqualifies him. The authorities cited are in point upon this question. When the statute has not intervened, indebtedness to the testator does not disqualify. The exact point was decided in Kidd v. Bates, 120 Ala. 79 (41 L. R. A. 154).

The order of the circuit court is affirmed.

McAlvay, Grant, Blair, and Montgomery, JJ., concurred.


text:
    PINCH v. MORFORD.
    Brokers — Employment—Evidence of Agency.
    In an action to recover a commission for services rendered as a middleman in bringing parties together to make an exchange of property, evidence examined, and held, to show that plaintiff was an active broker, representing the party with whom defendant made the exchange, and was not a mere middleman, who simply brought the parties together, and permitted them to make their own trade, and was consequently not entitled to recover commissions from defendant.

    Error to Calhoun; Hopkins, J.
    Submitted October 17, 1905.
    (Docket No. 68.)
    Decided November 21, 1905.
    Assumpsit in justice’s court by Benjamin W. Pinch .against Aylmer D. Morford for commissions on the sale of certain real estate. Plaintiff recovered judgment, and defendant appealed to the circuit court. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      James M. Powers, for appellant.

      Williams & Beck, for appellee.

      As to right of broker to collect commission from both parties to •sale or exchange of property, see' note to Leathers v. Canfield (Mich.), 45 L. R. A., on page 44.

   Blair, J.

This action was commenced in justice’s court to recover a commission of $32, claimed to be due plaintiff from defendant as the agreed compensation for his services as middleman in bringing the defendant and one Conklin together, resulting in an exchange of property. Plaintiff recovered judgment in justice’s court, but, on appeal to the circuit court, the court, at the close of the plaintiff’s proofs, directed a verdict for the defendant, “on the ground that there was no evidence which tended to show that the plaintiffs employment was that of a middleman, but that his employment was that of an agent or broker for the defendant in the sale of this property.” The correctness of this ruling presents the only question for our consideration under the assignments of error.

The only witnesses sworn in the case were the plaintiff and Mr. Conklin, one of the parties to the trade. Plaintiff testified, among other things, as follows:

“On the 13th day of February, 1903, I went over to Olivet. I went in and saw Mr. Morford, and asked him if he wanted to trade his hardware stock, that was owned by Mr. Morford and Mr. Miller, for this Fry forty acres of land, owned by Mr. Conklin, south of there; that Mr. Conklin wanted a hardware stock. Had quite a conversation about it, and he said he didn’t think that they wanted to do it. * * * Mr. Morford said to me he wished he could make a trade of this store building, which he individually owned; * * * that he would like to trade this building for that farm. He said, ‘ Don’t you think you could make the trade ?’ I told him I did not know whether I could or not. He had asked me what Mr. Conklin asked for.the farm, and I told him what Mr. Conklin had told me, that he wanted $2,500 for the Fry farm, $2,200 for the Fry farm, and $300 for his equity in the other forty; * * * and he says: ‘ I will tell you what I will do. I will give $600 in money to boot between this store, which I value at $1,600, and the improved Fry forty.’ I told him of course I didn’t know whether we would be able to make a'trade, but I would lay the matter before them. I went home, and talked with Mr. Conklin concerning the matter, and finally made arrangements whereby Mr. Conklin would go to Olivet and investigate the property. I told him we could not trade for the stock, but could for this property. On the 18th day of February, Mr. Conklin, Mr. Stringham, and myself took the morning train for Olivet. I had some other deals on the string for this Fry forty over there, and I had told Mr. Conklin if he would go, I thought that between the two or three deals I thought we would be able to find one that would be satisfactory to him. He looked at another man’s house and lot before he looked at the store, and made up his mind to go down to the store and look at that property. He went there, and Mr. Morford wasn’t there at that time, but he came a short time afterwards, and we got together and talked matters over. He said he didn’t want the other forty, but Mr. Conklin said ‘the tail would have to go with the hide.’ He didn’t want to let the improved forty go unless he would let the wild forty go too, which was incumbered. Finally, he says: ‘ I will give $800 in cash between the two, taking the equity in the one and the other free and clear, and the store property free and clear, and give $800 in cash.’
“Mr. Williams: Who said that ?
“A. Mr. Morford. Mr. Conklin said he would take a thousand. Mr. Morford said he wouldn’t give it. At this time, Mr. Morford was in the front of the store, and ■Mr. Conklin sat back by the stove, and I talked with one and then talked with the other. Mr. Morford finally says, ‘ I will make that $850 in cash, and that is the best I will do.’ I went back again, and .talked with Mr. Conklin by the stove, and I says, ‘ Conklin, you make the best offer you will make,’ and he said he wouldn’t do that. ‘You make the best offer you will make.’ He says, ‘ If he wants to close that deal up today, I will take $900 in cash, and I won’t take a cent less. You can tell him that, and if he wants to do business that way, we will do it.’ I went back again, and talked with Mr. Morford. Mr. Morford says, ‘No; I won’t give $900.’ This was the time he says ‘ I will give $850, and I won’t give any more.’ Then I went back to Mr. Conklin again, and explained the matter, and he says, ‘ No; I will go and see the other fellow, and I won’t take a cent less than $900.’ Mr. Morford had refused to give the $900, and he got up and put on his coat, and Mr. Stringham put on his coat, and I put. on mine. It was a very cold day, and we started for the door, and when we got there to the front of the store, where Mr. Morford was, Mr. Morford — some of them had made the remark that we would go, and see the other party that was figuring on the deal, and he says, ‘ Plold on; I will take up that proposition. I will give you $900.’ He says, ‘Allright. We will go over to Keyes’, over to the bank, and draw a contract to that effect.’ We all went over there, and Mr. Keyes drew up a contract. I think there was a forfeiture in there on both sides if one backed out. They was to have a certain length of time —perhaps ten days — to get their abstracts around and consúmmate the deal, and they both signed it, and Mr; Keyes and myself signed it as witnesses. * * *
“Q. You went down there to sell that property for Mr. Conklin, did you not, or to exchange it ?
“A. No; I went there on some business of my own.
“Q. But you had this property of his for sale or exchange did you not, when you went down there ?
“A. Nothing more than Mr. Conklin said if I could find anybody down there to buy it, that he wanted to sell or exchange, and wanted me to look around, and see what I could do for him.
“Q. He asked you to find a sale or exchange for his property ? '
“A. Yes; he asked me particularly about this stock of goods, and said, ‘ Go and see if this man, Morford, wants to trade that stock of goods for this farm.’ * * *
“Q. At any rate you went up there for the purpose, among other things, of seeing whether or not you could make this trade or exchange for Mr. Conklin ?
“A. I went to Olivet—
“Q. You went there for that, among other things ?
“A. I looked after that, among other things; I was going up there anyway. * * *
“Q. (interrupting). Isn’t it true that you went in there,- and said, ‘ I have got that Fry farm for sale or exchange ?’
“A. Oh, no; that is not true.
“Q. And that you did not disclose the name of the party that owned the farm, right then and there ?
“A. No; that is not true either. I told them who owned it. They knew who owned it without my telling them. * * *
“Q. "Well, while we are on this subject, what were you to get for your services ? "Was there anything said as to your making Mr. Morford the best deal that you could, or was there anything said of that kind at all ?'
“A. Why, I told him I didn’t know whether I could get them to make any deal at all on the real estate.
“Q. Did you carry the idea to him that you would do your best you could for him in the matter ?
“A. No; nothing more than, to talk with them, and see whether they wanted to make a trade.
Q. You didn’t go and see Mr. Morford, and say to him, ‘ Mr. Morford, I represent Mr. Conklin in this matter.’ You didn’t say anything of that kind, did you ?
“A. Why no; because I didn’t represent him any more than he asked me if I wouldn’t see if I could get a trade for that stock of goods. * * *
Q. Then you came back down there on the 18th?
“A. I did. I went to Olivet on the 18th. I think the letter I received was dated on the 14th of February. I went back up there with Mr. Stringham and Mr. ConkJjjj ^
Q. The time you went down there with Mr. Conklin and Mr. Stringham, did you go especially to try to close up some deal for the Fry forty, owned by Mr. Conklin ?
“A. Yes; that was a special trip to try and get the deal closed up either with Mr. Herricks or Mr. Morford; both •of them wanted the forty. * * *
“Q. And in what part of the store did this conversation take place ?
A. Back by the stove; a good deal of it.
Q. Who was back there by the stove ?
A. Mr. Morford, Mr. Conklin, Mr. Stringham, and myself.
‘ ‘ Q. Who did Mr. Morford talk with ?
A. He talked with Mr. Conklin direct, and talked with Mr. Stringham, and we all talked. '
•“ Q. He talked it over with you ?
“A. Not especially with me.
“ Q. Who did you talk with ?
“A. Not especially with anyone. I was practically a listener all that time; had got them together, and I let them do their own talking.
“ Q. You didn’t go to Mr. Morford, and tell him what .Mr. Conklin was going to do, during that talk ?
“A. Yes; after Mr. Morford went up to the front of the store. * * *
Q. Who carried the flag of truce back and forth ?
“A. I guess I did. I talked with Mr. Morford, and then went back and talked with Mr. Conklin.
‘1 Q. Did Mr. Morford advise you as to what he would do about the deal ?
“A. I guess he didn’t advise with anybody. * * *
Q. There was considerable negotiating before you closed up that deal altogether on that trip ?
“A. I think perhaps from the time that Mr. Morford came to the store in the morning to the time that the deal was closed up might have been an hour; might not have ■been-that long. * * *
Q. And did you tell Mr. Morford that you were going to get a commission out of Mr. Conklin ?
“A. I don’t think there was anything said about it. I did get a commission from Mr. Conklin; 2 per cent, on $1,600, amounting to $32. I was paid in cash. * * * He paid me $32, and that was divided with Mr. String-ham.
Q. Where did you make the agreement with Mr. Conklin ?
‘ ‘ A. Where; about the time the deal took place ?
Q. Before you went down to Olivet?
“A. Yes; that he should pay me if I made the deal for him.
Q. You would never have taken this thing up with Mr. Morford if you had not expected to get a commission out of Mr. Conklin ?
“A. I would not. I was to make a deal with no one unless I got my pay for it.
Q. At the time that you went down to Olivet, had you any understanding with him that you were, to get a commission on his property ?
“A. Yes; he wanted to trade for the hardware stock.
Q. You were to get a commission on any trade you might make down there ?
“•A. Certainly. * * * I was asked in relation to receiving a commission from Mr. Conklin in making this deal, and I want to say that I received $32 commission, and I paid one-half of it to Mr. Stringham for helping to make the deal. I divided the commission that I got of Conklin with Mr. Stringham. He was in the real estate business, and went down there to Olivet to help the thing through.”

Mr. Conklin testified:

“ Q- What did you think Mr. Pinch was going to do to earn that money that you expected to have to pay him ?
“A. He was going to negotiate this deal and work it through for me. I didn’t want that farm, and you can’t never trade off your own stuff very well to very good advantage. You have got to get some one else to do it, and they won’t do it for nothing.
Q. And you expected he would make as good deal as he could ?
“A. Yes, sir; I expected he would work the deal through in some way or other, and I knew I would look out for myself.
Q. And you expected he would make a good deal for you, as he could under the circumstances ?
“A. I knew he would make a deal if he could. I did not understand that he would make a deal as good as he could; but he would make a deal-, and get commission out of it.
Q. And when you had that understanding with him, you didn’t have any talk with him about his also representing Mr. Morford ?
“A. No, not particularly; but it is rulable to get a commission out of him. I don’t know as Mr. Pinch told me that he represented Mr. Morford; I didn’t know that he did from anything he ever said. * * *
‘ ‘ Q. Now when you had that conversation down there in the store you could not agree with Mr. Morford, and you separated to opposite ends of the store, didn’t you ?
“A. Yes; I think so.
Q. And Mr. Pinch was the man who did the negotiating, was he not ?
“A. Yes; he acted asa middleman to get us together.
Q. He would talk with you and get your best offer, and go back and forth between you.
“A. That is about the size of it. .
Q. And you didn’t do your negotiating yourself with Mr. Morford, but it was done through Pinch ?
“A. No; I couldn’t do any dickering with him any more than he could with me. Two parties cannot get together very well that way.”

We think the circuit judge correctly held that the plaintiff, on the testimony which he -produced, was not a middleman, simply bringing the parties together, and permitting them to make their own trade without interference on his part. It is clear that he was an active ne-, gotiator, and quite apparent that he was negotiating in the interest of Conklin. He, confessedly, took Mr. String-ham, another real estate dealer, along with himself and Mr. Conklin, “to help the thing through,” and he paid him one-half of his commission “ for helping to make the deal;” and, according to Mr. Conklin, plaintiff “was going to negotiate this deal and work it through for me. I didn’t want that farm, and you can’t never trade off your own stuff very well to- very good advantage. You have got to get some one else to do it, and they won’t do it for nothing.” It is apparent that what Mr. Conklin means, when he speaks of plaintiff as a middleman, is that he was the negotiator through whom the business was transacted.

Q. And you didn’t do your negotiating yourself with Mr. Morford, but it was done through Pinch ?
“A. No; I couldn’t do any dickering with him any more than he could with me. Two parties cannot get together very well that way.”

Plaintiff did not disclose to defendant that he expected a commission from Conklin, and could only recover upon showing that he occupied a position of middleman, as he claimed. In our opinion, he showed the contrary, as held by the circuit judge, and the judgment is affirmed.

McAlvay, Grant, Montgomery, and Hooker, JJ., concurred.