text:
    NATHAN KRONMAN & CO. v. GARDELLA.
    1. Sales — Warranty—Implied Warranty.
    Where defendant ordered of plaintiff 25 barrels of strictly fancy, sound, large bunches of grapes, and, after selling two barrels, discovered, by making an inspection, that the grapes did not conform to the description, he was entitled, in an action for the purchase price, to a judgment on the implied warranty that the grapes were like the description. And it was the defendant’s duty to inspect the goods within a reasonable time after their arrival, and either reject them or pay the price.
    2. Same — Waiver—Delay—Estoppel.
    That defendant sold two barrels before he inspected the grapes, did not deprive him of his right to rely on the implied warranty, where he acted promptly, and rejected the remainder at once, upon discovering their condition. No estoppel to claim noncompliance with the order arose from his act in making a sale before inspection.
    Error to Kent; Brown, J.
    Submitted June 22, 1915.
    (Docket No. 115.)
    Decided March 31, 1916.
    Assumpsit in justice’s court by Nathan Kronman & Company, a foreign corporation, against John G. Gardella for the price of certain grapes. From a judgment for defendant, plaintiff appealed to the circuit court. Judgment for defendant by the court sitting without a jury. Plaintiff brings error.
    Affirmed.

      "George C. Brown, for appellant.

      H. Monroe Dunham and John M. Dunham, for appellee.
   Bird, J.

The defendant is a retailer of fruits in the city of Grand Rapids. In the month of December, 1910, Sumner N. Wells, of Wells & Co., fruit brokers in the same city, called upon defendant and advised him that they had received a telegram from Clarence E.' Tucker & Co., fruit brokers in New York City, to the effect that they had for sale a “quantity of strictly fancy, sound, large bunches of grapes,” stating the price therefor, and asked defendant if he could use some of them. Defendant gave him an order for 25 barrels of the grapes described. Several days thereafter defendant received from Nathan Kronman & Co., the plaintiff, an invoice for 25 barrels of grapes. It appears that the plaintiff is a wholesaler of fruits in New York City, to whom Tucker & Co. had turned over the order. Upon learning the grapes were at the station he sent for them., and while they were on the dray in front of his store, he sold two barrels of them to Fabiano & Son, retailers of fruit in Holland. The two barrels were shipped to them at Holland at once, and the other 28 barrels were unloaded at defendant’s store. Soon after he inspected them, and found that they were not the kind of grapes he ordered, and he immediately notified Wells & Co., of,whom he had purchased them. Wells & Co. admitted that they were not the kind of grapes described by the telegram, and advised defendant to do nothing with them until they could communicate with Tucker & Co. of New York. Following this, more or less correspondence took place between Wells & Co. and the New York firms, and between the latter and the defendant, but no adjustment was reached, and this suit was brought by the plaintiff to recover the contract price of the grapes.

A considerable discussion is indulged in the briefs as to the relation in which these several parties stood to each other. If I understand the position of defendant correctly, it is unnecessary to decide these questions, as he is making no point of a defect of parties to the suit. His position is that he bought 25 barrels of strictly fancy, sound, large bunches of grapes; that plaintiff filled the order; that he was willing to accept and pay for them if they had been what he ordered, whoever shipped them. The important questions therefore under this defense are:

(1) Were the grapes of the kind that he ordered?

(2) Did the defendant by his conduct accept the grapes, and thereby preclude himself from refusing to pay for them?

The testimony was in serious conflict as to whether the grapes were as ordered. Plaintiff’s witnesses testified that they were, and defendant’s testified they were. not. We think, however, upon the whole, that the finding of the circuit judge that the grapes were not as represented is sustained by evidence and should not be disturbed.

This was a sale by description and therefore carried with it an implied warranty that the grapes were as described. It was defendant’s duty upon receipt of the grapes to examine them within a reasonable time after their arrival, and either reject them or pay the contract price therefor. Farrington v. Smith, 77 Mich. 550 (43 N. W. 927); Talbot Paving Co. v. Gorman, 103 Mich. 403 (61 N. W. 655, 27 L. R. A. 96); Williams v. Robb, 104 Mich. 242 (62 N. W. 352); Buick Motor Co. v. Manufacturing Co., 150 Mich. 118 (113 N. W. 591); Remy, Schmidt & Pleissner v. Healy, 161 Mich. 266 (126 N. W. 202, 29 L. R. A. [N. S.]. 139, 21 Am. & Eng. Ann. Cas.. 74); 2 Mechem on Sales, § 1392; Columbus, etc., Coal & Iron Co. v. See, 169 Mich. 661 (135 N. W. 920); Gill & Co. v. Gaslight Co., 172 Mich. 295 (137 N. W. 690).

The defendant insists that he did inspect them within a reasonable time after they arrived, and that he notified the parties of whom he purchased that he would not accept them. That he inspected them promptly is not seriously denied, but the point is made that he sold a portion of them, and that by his act in so doing he conclusively accepted them. We cannot agree with this conclusion. Had defendant sold a portion of the fruit after he had had reasonable opportunity for inspection, or after he had inspected them, it is doubtless true he would have been estopped from afterwards rejecting them, but such was not the case. The record shows without contradiction that he sold and delivered two barrels of them at the station before he made an examination of the remaining barrels at his store. Under these circumstances, we do not think he is estopped from rejecting them after making the sale. In Farrington v. Smith, 77 Mich. 550 (43 N. W. 927), where a similar question was before the court, it was said:

“The defendant had the duty laid on him of finding out, with no unreasonable delay, the quality of the teas. As soon as complaints arose it was his duty to investigate at once, and to make up his mind what he would do. He had no right to offer them for sale thereafter, and at the same time repudiate the bargain. What he sold before being led to suspicion would not affirm the purchase for the remainder; but it was his business to make no further sales except on his own account, and it was his duty to notify plaintiffs at once of his decision.”

There seems to be little question that the defendant examined the grapes within a reasonable time, and that he at once notified Wells & Co., the local brokers, that he would not accept them. The two barrels which were sold to Fabiano & Son were likewise rejected for the same reason, and the grapes were afterwards held subject to the order of the plaintiff. We are of the opinion that the inspection made of the grapes by defendant was as prompt as could be expected under the circumstances, and that he rejected them within the reasonable time which the law allows for so doing.

The judgment of the trial court in favor of defendant must be affirmed.

Stone, G. J., and Kuhn, Ostrander, Moore, Steere, and Brooke, JJ., concurred.

The late Justice McAlvay took no part in this decision.


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    McDonald v. McDonald.
    1. Divorce — Decree—Effect—Construction.
    Complainant filed a bill for divorce and tbe parties effected a reconciliation and resumed marital relations. As a condition to the adjustment of their differences, complainant secured from defendant a conveyance of his interest in some real property that they held by the entirety, and agreed to give back a mortgage for an amount that they agreed upon. The security was not delivered as agreed, and, without notice to defendant, the wife filed a supplemental bill and entered his default in the divorce proceeding. He applied for and secured an order vacating the decree which the court had entered, which order provided that he pay her solicitor’s fees of $150, and that the decree would become effective if this was not paid within ninety days. Defendant failed to make the payment because he had conveyed his real property to complainant, and he filed a petition to modify the decree as to attorney’s fees. The court entered an order denying the prayer of the petition but granting 30 days’ additional time in which to comply with the decree. During the forty-day period after this order took effect, and the decree was reinstated, defendant filed his claim of appeal. Held, that the decree automatically became effective on failure to comply with, its conditions and was thereafter appeal-able; also, that the appeal was not required to be entered within forty days of the entry of the decree, and under Act No. 299 Pub. Acts 1909, defendant took his appeal in time.
    2, Same — Conditions—Soiacitob’s Fees.
    An. order vacating defendant’s default and permitting him to defend the proceedings was justified, and complainant’s taking a decree, after promising her husband to discontinue the suit (as he claimed), was an act of bad faith and required the reopening of the case without costs or condition.
    Appeal from Wayne; Van Zile, J.
    Submitted June 8, 1915.
    (Docket No. 6.)
    Decided March 31, 1916.
    Bill by Elizabeth McDonald against James H. McDonald for a divorce. From a decree for complainant, defendant appeals.
    Reversed.

      Walter M. Trevor, for complainant.

      Edward H. Kennedy, for defendant.
   Bird, J.

Complainant filed her bill in the Wayne circuit court on April 4, 1913, praying for a decree of divorce from defendant, on the ground of extreme cruelty. On the same day process issued and was duly served on the defendant. Soon thereafter the parties talked over their differences, and as.a result of it, they became reconciled and resumed the marital relation. As a condition to resuming such relation, complainant demanded a conveyance of defendant’s interest in two houses and lots situate on Holbrooke avenue, and valued at $5,000, which were owned by them as tenants . by the entirety. This was agreed to by defendant, and the conveyances were made to her, with the understanding, as defendant asserts, that she would pay bim $1,700 or secure him by mortgage on the property for said sum. Complainant’s version is that she was to pay him only $1,000. No part of the money which he was to receive was paid to him, nor was any security given. They lived together for one month only, when complainant applied for and received leave to file a supplemental bill. Defendant’s default followed, and a decree was taken and filed on August 11, 1913, and complainant was awarded, as permanent alimony, the title to the premises which defendant had conveyed to her as a condition to resuming the marriage relation. Defendant claims that the filing of a supplemental bill and taking of the decree were without notice to him and without his knowledge; that he relied upon complainant’s agreement that she would discontinue her divorce proceeding and her assurances afterwards that she had done so. Subsequently, he filed a petition to set aside the decree, and after a hearing thereon, the chancellor who granted the decree set it aside on October 24, 1913, but provided therein that defendant should pay her $150 as solicitor’s fees within 90 days from the date of the order, in default of which payment the decree would be effective as made. The defendant claims that he was unable to make this payment, by reason of the fact that he had conveyed the premises to complainant, and that she was receiving the rents thereof,- and that he was being sorely pressed to make payment of obligations that she had previously contracted, and accordingly, he filed a petition to modify the order by striking out that part of it relating to solicitor’s fees. This petition came on to be heard on the 28th day of March, 1914. The prayer of the petition was denied, but complainant was given 30 days moré time in which to comply with the order. Defendant did not comply with the order, but on May 12, 1914, he filed a claim of appeal from the decree and final order rendered in said cause, and gave notice thereof.

At the outset the question is raised by appellee that at the time the claim of appeal was filed there was no final order or decree in the case, and, further, that the appeal was not taken within the times fixed by law. The original decree was filed August 11, 1913. This decree was set aside and vacated for a period of three months. Subsequently, this time was extended 30 days from March 28, 1914. Defendant failing to pay the solicitor’s fees, the decree automatically went into effect again, and was in effect before the claim of appeal was filed on May 12, 1914. Counsel makes the point that a claim of appeal was not filed within 40 days from the time the decree was rendered, nor within 40 days from the date of the order overruling the petition to set aside the order for solicitor’s fees, and, therefore, the appeal was not taken within the time fixed by statute. Defendant had 40 days after the settlement of the case in which to file his claim of appeal. Act No. 299, Pub. Acts 1909 (3 Comp. Laws 1915, § 13754, note). There appears to be no merit in either contention.

The bill of complaint in this cause charges the defendant with a serious offense, and with conduct amounting to extreme cruelty covering several years of his married life. These charges are denied by the . defendant. Independent of defendant’s statement that she promised to discontinue her divorce proceeding, we are of the opinion that he was misled into believing that the proceedings would be discontinued after they -had resumed their marital relations and he had conveyed the premises she demanded. This would seem to be a sufficient excuse for not entering his appearance in the divorce proceedings. As a matter of good faith, if she did not intend to be bound by the conditions and intended to revive her divorce proceeding, she should have informed him of her intentions. The taking of a decree for divorce and alimony under these circumstances, without giving defendant an opportunity to be heard in his defense, fully justified the chancellor in setting aside the decree. We regret, however, that we are unable to agree with him that the -imposition of $150 for solicitor’s fees was a reasonable condition to impose. We think the chancellor must have overlooked the fact that defendant’s nonappearance was not due to his inattention, carelessness, or neglect, as is usual in such cases. After they had forgiven each other and her property demands had been satisfied and the marriage relation had been resumed, he saw no necessity for entering his appearance in the suit, and in so concluding, he acted as the average layman would have acted under similar circumstances. Were this the ordinary case, where petitioner’s neglect made the request necessary, it might not be unreasonable to compel defendant to pay complainant’s solicitor’s fees in view of a rehearing, but where defendant’s failure to defend was due to complainant’s lack of good faith, she ought not to profit by it now by having her solicitor paid.

The decree will be reversed and the record remanded for further proceedings in accordance with the rules and practice of the court. No costs will be allowed either party in this court.

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

The late Justice McAlvay took no part in this decision.


text:
    WOOD v. STANDARD DRUG CO.
    1. Death — Negligence—Estates oe Decedents.
    If death is not instantaneous, the representative of the decedent’s estate may recover under the survival act (3 Comp. Laws 1915, § 12383) the full measure of damages for the benefit of the next of kin: if instantaneous, fie may recover under the death act (3 Comp. Laws 1915, § 14577) a limited amount of damages for such pecuniary injury only as they can show has been sustained. Dolson v. Railway Co., 128 Mich. 444 (87 N. W. 632).
    2. Same — Drugs—Death—Actions.
    Accordingly, where defendant furnished a drug to be administered by the decedent’s parent, purporting to be mercurius viv, but which produced death in about 12 hours, the death could not be said to have taken place instantaneously, and suit was brought correctly under the survival act. 3 Comp. Laws 1915, § 12383.
    3. Same — Question oe Fact — Proximate Cause.
    Where the court submitted to the jury the questions whether or not the administration of the drug was the proximate cause of the infant’s decease and whether or not there was negligence on the part of the mother contributing to the death, the defendant had no ground to complain, as the first was clearly an issue of fact, and the. latter question was determined favorably to defendant by submitting the issue to the jury.
    4. Same — Appeal and Error — Record.

      Held, also, that the alleged failure of the parent of the decedent to follow directions given in the book from which she took the prescription would not be a sufficient ground for reversal, unless appellant made it appear of record that the drug should have been treated as claimed.
    5. Same — Trial—Requests.
    A request to charge the jury that it was not necessary to conclude from the evidence that deceased died as a result of taking corrosive sublimate, and that the symptoms were not necessarily those of poisoning by that drug, and were not even characteristic, that it would at least be expected that the history of a case of poisoning by that means •would be different and resembled more nearly symptoms of an overdose of calomel or santonine, and that there was evidence that acute indigestion might have been caused by any drug, etc., was of an argumentative nature and was correctly refused. It was further objectionable because it instructed the jury what inferences of fact they were to draw from the evidence. Counsel should have stated his several theories and ashed that the jury be instructed in relation thereto: requests to have certain bits of evidence favorable to his claims emphasized were improper. If the court failed to cover any of his contentions in its instructions, counsel should have challenged attention to the fact at the time.
    Error to Wayne; Mandell, J.
    Submitted June 15, 1915.
    (Docket No. 42.)
    Decided March 31, 1916.
    Case by Thomas A. Wood, administrator of the estate of Jack Beverly Wood, deceased, against the Standard Drug Store, a corporation, brought under the survival act, for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      A. G. Pitts, for appellant.

      Chawke & Sloan, for appellee.
   Bird, J.

Mrs. Virginia Wood’s boy Jack, two and one-half years of age, was suffering with pinworms. Mrs. Wood consulted a medical work entitled “The 20th Century Book for Every Woman,” and found the following treatment for pinworms:

“Treatment: Prepare a small quantity of starch, as it is generally used in starching clothes, only a trifle thinner. To 4 tablespoonfuls of this add 2 drops of spirits of turpentine, mix it thoroughly, and inject into the rectum. A second application would not be required if the eggs could be killed by such treatment. * * * At least once a day the rectum should be well greased with lard, etc. This will prevent the propagation of the worms. The size of a pea of santonine in powder form or two tablets mashed into powder mixed with the lard would increase its efficacy. A dose of mercurius viv should be given in the morning, and one of silica at night for one month to remove the predisposition to worms.”

Mrs. Wood concluded to try the treatment, and accordingly handed her husband a paper upon which was written the following, with the request that he purchase them:

Spirits of Turpentine 10c

Santonins .......... 10c

Mercurius viv...... 10c

Silica .............. 10c

Mr. Wood presented the paper to the prescription clerk at defendant’s store in the city of Detroit, and he read it over and inquired what “mercurius viv” was, and what it was to be used for, and Mr. Wood replied: “My little boy has pinworms.” Soon thereafter the clerk delivered to him two bottles, one of turpentine, the other of silicate of soda, and two small .envelopes each containing a powder, one being marked santonine, and the other calomel. Under the word “calomel” was written in parentheses “mercurius viv,” and under that the words “mild form.” Mr. Wood delivered the medicine to his wife, and at 4 o’clock in the afternoon of that day she administered to Jack from the powder marked calomel about as much as could be held on the tip of a teaspoon. Jack immediately grabbed his throat and began to scream and choke, and said: “Oh, mother, it burns! it burns!” soon thereafter he began to vomit and purge. Medical help was summoned and treatment administered, but the burning sensation was not relieved. At about 4 o’clock the next morning he died. The post mortem disclosed no poison, and the official cause of death was given as acute gastritis. An examination of the stomach, liver, and kidneys by Dr. Clark, the county physician, found them inflamed and congested.

The theory upon which the plaintiff recovered was that among other drugs called for at defendant’s store was mercurius viv; that mercurius viv was not furnished, but that some irritating poison was substituted therefor which caused the death of the boy. In support of this theory it was shown that a dose the size of that given to the boy either of calomel or mercurius viv would not produce death; neither would it produce the inflammation found in the stomach, liver, and kidneys. Some of the medical experts said mercurius viv was quicksilver. Others said it was quicksilver “rubbed up” with sugar. It could not be definitely determined what the powder was which was administered, because after seeing the effect of it upon the boy the mother threw it into the fire, fearing lest a younger child might get it. The opinion of. the attending physician was that the symptoms indicated an irritating poison not unlike that of corrosive sublimate, and that the failure to discover it at the post mortem may have been due. to the excessive vomiting. Plaintiff’s testimony tended to .support his theory of the case.

Defendant admits that it substituted calomel for mercurius viv, but it insists that in so doing it substituted a less poisonous and less dangerous drug than the one called for; that the boy did not die as a result of the substitution, but from a failure of the mother to properly administer the drugs, and, further, that the boy’s death was not caused by any of the drugs furnished. The trial resulted in a verdict for plaintiff, and the defendant assigns error.

That this action should have been based on the .death act instead of the survival act is one of defendant’s contentions. After much consideration of these two statutes (sections 10117 and 10427, 3 Comp. Laws; 3 Comp. Laws 1915, §§ 12383, note, and 14577) by this court, it promulgated a rule for the benefit of courts and litigants by which it could be determined with reasonable certainty under which statute to proceed. It is that:

“If the death be not instantaneous, the administrator recovers under the survival act the full measure of damages for the benefit of the next of kin. If it be instantaneous, he recovers under the death act, for the same persons, a limited amount of damages, viz., for such pecuniary injury only as they can be shown to have suffered.” Dolson v. Railway Co., 128 Mich. 444, 454 (87. N. W. 632).

The testimony in this case shows that the boy survived nearly 12 hours. Under no reasonable construction could it be said that his death was instantaneous. If it were not, it was properly brought under the survival act. Counsel bases his contention upon the case of West v. Railway, 159 Mich. 269 (123 N. W. 1101), where it was held that:

“Where there is a continuing injury, resulting in death within a few moments, it is ‘instantaneous’ within the meaning of the statute.”

Counsel argues that this was a continuing" injury, resulting in death, but gives no heed to the limitation of a few moments placed upon it. There is no room under the testimony in this case to claim that the action should have been brought under the death act.

Counsel in his brief, under the heading, “Negligence and Contributory Negligence,” complains because the court failed to give his requests thereon. In defendant’s requests Nos. I and II the court was, in effect, asked to direct a verdict for defendant, on tlie ground that the substitution of the drug was not thte proximate cause of the death of the boy, and on the) ground that the mother was guilty of contributory! negligence in administering the drug. Both of these' questions were submitted to the jury. The question of proximate cause was clearly one for their consideration. The case of Love v. Railroad Co., 170 Mich. 1 (135 N. W. 963), indicates that the question of the contributory negligence of the mother was not one for the jury. But whether it was or not is- now of no importance, as its submission worked no injury to the defendant. Counsel in this connection offered certain alternative requests, numbered I to XV and from XVII to XXIX. We shall consider only those which have been considered by counsel in his brief.

Request No. VII asked the court to instruct the jury that the book from which Mrs. Wood copied the “¡treatment” prescribed a sixth attenuation of metallic drugs and a third attenuation of vegetable drugs. This request included a formula by which the sixth attenuation is reached. The book referred to was at the trial, and appears to have been used by counsel in his cross-examination of Mrs. Wood, and some extracts read therefrom, but we find no basis in the record for such an instruction, and our attention has not been called to any page in the record which would justify it. If the book showed that the drugs purchased by Mrs. Wood were to be attenuated or diluted, as indicated, before using, it was the duty of counsel to make it appear of record in this court.

The twenty-fourth request was as follows:

“On the other hand, from the testimony in this case it is not necessary to conclude that the child died as the result of a dose of corrosive sublimate. It is in evidence in this case that the symptoms testified to are not necessarily the symptoms of poisoning by corrosive sublimate; that they are not even characteristic; that it would at least be expected that the history of a case of poisoning by corrosive sublimate would be different from this; that they resemble to a greater extent the symptoms which would result from an overdose of santonine or of calomel. And there is evidence that the acute gastritis or acute indigestion of which the child died may not have been caused by any drug; also that it might be caused by silicate of soda. There is no direct evidence that the silicate of soda was administered, and it is denied by the mother that it was, but it is admitted that it was bought for that purpose, and you may find from the circumstances of this case that possibly it was administered, and that the mother is mistaken.”

This instruction was properly refused. It was objectionable because, argumentative. People v. Crawford, 48 Mich. 498 (12 N. W. 673).

And it was likewise objectionable because it instructed the jury what inferences of fact they were to draw from the evidence. Richards v. Fuller, 38 Mich. 653.

Counsel observes that the court’s refusal to submit this request resulted in his being deprived of having most of his theories stated to the jury. The court undertook to and did state several of them, and, if others were omitted, it was the duty of counsel to call the court’s attention to the omission at the time. In this request counsel does not state his several theories and ask that they be given to the jury, but he requests the court to call the attention of the jury to certain bits of evidence which tended to support his several theories, and comment upon them. The court was not in error in refusing to do so. Beurmann v. Van Buren, 44 Mich. 496 (7 N. W. 67).

Complaint is made because request XV was refused.

“The drug clerk would have been justified in filling this order with quicksilver, and asking no questions and making no remarks. It is admitted that he filled it with something else. But that fact does not of itself give the plaintiff any right of action. It must be further established by competent evidence: (1) That he had no right to fill the order with anything else; (2) that his substitution was a negligent one; (3) that it caused the death of the child; (4) that it was the proximate cause; (5) that there was no negligence on the part of the child’s parents which contributed to the injury.”

This request was not given in the form suggested, but each one of these items was fully covered by the general charge of the court.

The remaining assignments of error which are noticed in counsel’s brief have reference to the admission and rejection of testimony. These will call for no discussion, as we have examined them and find no error which calls for a reversal of the judgment.

The judgment of the trial court is affirmed.

Stone, C. J., and Kuhn, Ostrander, Moore, Stebre, and Brooke, JJ., concurred.

The late Justice McAlvay took no part in this decision.


author:
Ostrander, J.
      Kuhn, J.

text:
    PLANTENGA v. GRAND RAPIDS TERMINAL RAILWAY CO.
    1. Railroads — Highways and Streets — Damages—Nuisance.
    A railroad located in a public street with tbe permission of competent municipal authorities is not a nuisance to abutting property owners, though they have not received any compensation for injury to their land.
    2. Same — Damages—Eminent Domain.
    In an action for wrongfully constructing a railway track in a public street, without complying with 2 Comp. Laws 1915, § 8243, the elements of plaintiffs’ damages would not be different than in the case of proceedings for the condemnation, of a right of way, and consist in the reduction of rental value.
    3. Same — Value—Evidence.
    And where defendant railroad company sought to show that while the property had decreased in value for residential purposes for which it had previously been used, the value for manufacturing or business purposes had ' increased, the trial court correctly held that the evidence should be excluded and plaintiff’s recovery should rest on the decrease in rental value for the purpose for which it had been employed.
    4. Same — Damages.
    A verdict of $1,000, under the evidence, held, to be not excessive or unreasonable in amount.
    Kuhn and Brooke, JJ., dissenting.
    Error to Kent; McDonald, J.
    Submitted June 18, 1915.
    (Docket No. 74.)
    Decided March 31, 1916.
    Case by Peter Plantenga and another against the Grand Rapids Terminal Railway Company, a corporation, and another, for damages for the construction of a railway upon a public street opposite plaintiff’s premises.. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Clapperton, Owen & Hatten (L. C. Stanley, of counsel), for appellants.

      Hatch, McAllister & Raymond, for appellees.
   Ostrander, J.

Believing that my Brother Kuhn has reached a wrong conclusion, I briefly state my reasons for the belief.

The railroad in the street is not a nuisance, because it is permitted to be there by competent authority. The fact that before putting it there the damages to plaintiffs were not ascertained and paid does not make it a nuisance. Payment will not transform a nuisance into a lawful structure. Therefore the idea that defendant has created a nuisance ought not to enter into the reasoning upon which decision is based. None of plaintiffs’ land was taken or was invaded. If plaintiffs are damaged, it must be because the use of the property is affected by a lawful, proper operation of the road. It is laid on the side of the street opposite to their premises. It is claimed that it affects the use to which the property had been and is devoted, namely, the use for residence purposes. Defendants claimed that the property had no appreciable value for use as a residence and that for other, as for manufacturing, purposes, its usefulness and value was increased. Upon the first point, or claim, the testimony presented a question of fact which was submitted to the jury. Upon the second point, or claim, the court refused to receive testimony.

“The only question of fact,” the court told the jury, “for you to consider, is whether the building and operation of this side track depreciated the value of the plaintiff’s property for residence purposes.”

Again, the jury was told:

“The question is, if that property had any value for residence purposes before the track was built, has that value been reduced by a proper operation of this side track in the usual way? * * * You are not authorized or permitted to take into consideration the use of the property for any other purposes except for rental purposes, rental residence purposes, and to what extent the building of the railroad depreciated the value of that property for those purposes; that is, you are not to take into consideration the value of the property for factory purposes.”

Plaintiffs are contented with these instructions. They say in the brief that they base their claim for daiqages “precisely on the doctrine laid down in Keyser v. Railway Co., 142 Mich. 143 [105 N. W. 143].” The defendants are asserting that the rule laid down is too narrow, since it prevented them from showing that the presence of the road in the street added materially to the actual selling value of the property for purposes other than residence. In argument they base their contention in this behalf on the Constitution and statute and the meaning of the words “just compensation” used in each.

The elements of plaintiffs’ damages are the same in this action as they would be if condemnation proceedings had been instituted. In similar cases, while the right to recover once for all the damages sustained has sometimes been refused because of want of legislative authority to use the highway (Hoffman v. Railroad Co., 114 Mich. 316 [72 N. W. 167]); Phelps v. City of Detroit, 120 Mich. 447 (79 N. W. 640]), the measure of recoverable damages has be'en in all the cases the reduction in rental value. No other rule for measuring the damages has been suggested. No other damages have been sustained in the instant case. Just compensation is given when the rule is applied. No reason exists, none that I can discover, for changing the rule. The court below employed it, and in doing so committed no error.

The serious question in this case relates to the amount of the recovery. The judgment is for $1,000, and it is contended that, if there is any testimony which supports it, it is nevertheless grossly excessive and contrary to the great weight of evidence. It cannot be said that the testimony relied upon by plaintiffs and criticized by defendants is incompetent. The trial judge was of opinion that the verdict was not so clearly against the weight of evidence as to justify setting it aside and, while I am impressed that it is a large verdict, I am not satisfied that the conclusion of the court was wrong.

No prejudicial error appears, and therefore the judgment must be affirmed.

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

Kuhn, J.

(dissenting). The defendant Detroit, Grand Haven & Milwaukee Railway Company procured by ordinance from the common council of the city of Grand Rapids the right to lay and maintain a railroad track in Bond avenue opposite and in front of the plaintiffs’ premises, with the right and privilege of operating trains on said track between the hours of 11 o’clock p. m. and 5 o’clock a. m.

Subdivision 5, § 6234, 2 Comp. Laws (2 Comp. Laws 1915, § 8243) (section 6587, 3 How. Stat. [2d Ed.]), after providing the manner in which a railroad company shall obtain possession to lay a railroad track in 'a public street, provides:

“But such railway shall not be constructed upon any public street, lane, alley, highway, or private way until damages and compensation be made by the railroad company therefor to the owner or owners of property adjoining such street, lane, alley, highway, or private way, and opposite where such railroad is to be constructed, either by agreement between the railroad company and each owner or owners, or ascertained as herein prescribed,” etc.

The railroad company, ignoring this statute, claiming that the plaintiffs in fact suffered no damages, constructed the railroad on the street opposite plaintiffs’ premises without paying the plaintiffs any damages or taking any steps as provided by the statute to ascertain whether there were any damages. Thereupon the plaintiffs brought this action to recover their damages, which resulted in a verdict for the plaintiffs in the sum of $1,000, upon which judgment was duly entered.

The questions which are raised by the assignments of error relate to the charge of the court with reference to the measure of damages and the competency of witnesses sworn in relation thereto. The trial judge charged the jury that:

“If the plaintiffs are entitled to recover, they should recover the difference between the value of the premises for residence purposes before the track, was built and the value of the premises for residence purposes after it was built. * * * The question is, if that property had any value for residence purposes before the track was built, has that value been reduced by a proper operation of this side track in the usual way?”

The defendants claimed that the plaintiffs’ property had no value whatever for residential.purposes at the time the railroad was constructed, and insisted on the right to show that the property had increased in value for other and different purposes, eliminating the building therefrom.

The plaintiffs by their declaration, seek to recover various kinds of damages, viz., damages to the sale or market value of the property itself, damages by diminishing the rental value of the premises, and damages because of inconvenience and annoyance. For they say therein:

“The property of the said plaintiffs as aforesaid has become and is practically worthless for the use and purpose of a dwelling house, and that the said building •as an apartment house has become and is worthless, and of no value whatever as an apartment house and dwelling, on account of the erection of said railroad track of the said defendants in front of the said plaintiffs’ premises as aforesaid, and the rental value of said dwelling has been thereby totally and permanently destroyed, all to the damage of the said plaintiffs $6,-000; and the said plaintiffs and their tenants are also put to the inconvenience, annoyance, and discomfiture of the noises arising from the operation of the said railroad, and the ringing of bells and the puffing of the engines, and the squeaking of the cars, and the smoke, cinders, and odor arising 'therefrom, and the vibration occasioned to the building on said plaintiffs’ property by the trains passing along in front of said property, to the damage of the plaintiffs $2,000 — all to the damage of said plaintiffs in the sum of $8,000, and therefore they bring suit, etc.”

It is the claim of defendants’ counsel that in ascertaining what the “just compensation” is that is provided for by section 1 of article 13 of the State Constitution, they should be allowed to show.as against the damages claimed any benefits which the construction of the railroad might cause to the property. There is some confusion among the authorities as to this doctrine as to whether benefits may be set off against the damages. 2 Lewis on Eminent Domain, § 735, says:

“The prevailing doctrine is that benefits may be set off against the damages, and, if the benefits equal or exceed the damages, there can be no recovery. This is in accordance with the rule for the measure of damages usually applied in such cases.”

We are of the opinion that with reference to the market or sale value of the property the court below was in error in not allowing testimony to be introduced to show in what way, if any, the property had been specially benefited by the construction of the railway, and also in narrowing the rule of damages in his charge to loss in value for residential purposes. In the consideration of this question the jury should take into account only special injuries and benefits which affect the fair cash value of the property, and, if such damages exceed such benefits, award to -the plaintiffs the difference. This necessarily leads to the exclusion of those general and public benefits shared by the entire community, and limits the damages to such as are special to the property, and likewise the benefits to such as are special, though other property in the vicinity also may have been similarly benefited.

The charge given by the court follows the rule of damages approved in Keyser v. Railway Co., 142 Mich. 143 (105 N. W. 143). In that case there was no question raised as to the sale value of the property being increased by the advent of the railroad. Undoubtedly the rule approved was proper in that case, where only the residential use of the property was under consideration. But we are of the opinion that that case cannot be said to hold that the rule should be that narrow in cases where a claim of advantage to the property is made as in the case before us. See Boyer & Lucas v. Railway Co., 97 Tex. 107 (76 S. W. 441); Eastern Tex. R. Co. v. Scurlock, 97 Tex. 305 (78 S. W. 490); 2 Lewis on Eminent Domain, § 736.

While it is true that actual or potential rental value has much to do in creating the sale or market value of property, loss in rental value may be separate and distinct from reduction in sale value as an element of damage. Grand Rapids, etc., R. Co. v. Heisel, 38 Mich. 62, 69 (31 Am. Rep. 306). In this case Mr. Justice Cooley, in speaking of the rule of damages to be applied, said:

“And in such a case his injury is not confined to the inconvenience he is put to in making use of the publie easement, but, as the railroad wrongfully incumbers his freehold, he may recover for any injury the incumbrance causes. The decrease in rental value and in the market value of his lot are legitimate items of damage in such a case; and so are the annoyances to business or to family occupation which the operations of the railroad company may cause.”

It must be apparent that the plaintiffs might be able to show that the laying of the track had caused the market or sale value of the property to drop; also that from that time up to the commencement of the action their total rental income had been less than it would have been had the track not been laid.

In the opinion of Mr. Justice Ostrander the cases of Hoffman v. Railroad Co., 114 Mich. 316 (72 N. W. 167), and Phelps v. City of Detroit, 120 Mich. 447 (79 N. W. 640), are cited to sustain his conclusion. An examination of these cases shows that in neither was the question here under discussion raised.

It appears under the authority of Grand Rapids, etc., R. Co. v. Heisel, 47 Mich. 893 (11 N. W. 212), that benefits accruing to the property from the building and the occupation of the road, if any, might be considered in reduction of damages to the rental value. However, the advantage of such benefits can only be had once, and, as the only benefits claimed here are for increased sale value, and, as we have intimated, they can be allowed as an offset against the decrease in market value, it follows that in the instant case it cannot affect the element of claimed damages as to the decrease in the rental value.

Error is assigned because the court permitted witnesses Springer, Kimes, Mulder, and the plaintiff Peter Plantenga to testify in relation to the value of the property for rental and residential purposes before the railroad was built and the value of the same after the railroad was built. It is urged as grounds for these objections that the witnesses did not show any competency to express an opinion thereon. Without setting forth the testimony of these witnesses, it appeared that they were familiar with the property in question and had sufficient knowledge of real estate and rental values in the various sections of the city to qualify them to testify under the following authorities: Stone v. Covell, 29 Mich. 359; Carter v. Carter, 36 Mich. 207; Enright v. Hartsig, 46 Mich. 469 (9 N. W. 496); City of Detroit v. Robinson, 93 Mich. 426 (53 N. W. 564); Long v. Pruyn, 128 Mich. 57, 59 (87 N. W. 88, 92 Am. St. Rep. 443); McCormick v. Bradbury, 187 Mich. 512 (153 N. W. 780). The weight to be given to this testimony was for the jury.

For the errors herein pointed out, we think it is necessary to reverse the case and grant a new trial.

Brooke, J., concurred with Kuhn, J.

The late Justice McAlvay took no part in this decision.


text:
    TOWER v. DETROIT TRUST CO.
    1. Vendor and Purchaser — Breach—Forfeiture.
    The vendor in a contract for the sale of real property is not limited to the method of enforcing forfeiture authorized by Act No. 200, Pub. Acts 1911, which provided that the vendor might bring proceedings in chancery or recover possession by summary proceedings or in any manner authorized by law, if he elected to adopt any of the existing remedies, instead of selecting the means specified in. the statute.
    2. Same — Equity—Tender—Receiver.
    While the court of equity will not favor a forfeiture, it sometimes does declare rights of a contract vendee forfeited; and in a case where the receiver of a construction company, which was insolvent, applied to the court for an injunction against petitioner’s forfeiting its rights under a land contract, but was unable to tender the sum in default or offer to do so in the near future, and where it appeared that the purchaser was hopelessly insolvent, the court would recognize the forfeiture attempted in behalf of the vendor and declare it.
    Appeal from Wayne; Van Zile, J.
    Submitted April 23, 1915.
    (Docket No. 128.)
    Decided March 31, 1916.
    Petition by Ray J. Tower against the Detroit Trust Company, receiver of the Chippewa Construction Company, for the cancellation of a certain contract made between petitioner and said construction company, and to dissolve an injunction .restraining petitioner from forfeiting certain contracts with said construction company. From an order denying relief, petitioner appeals.
    Reversed.

      R. A. Hawley, for petitioner.

      Corliss, Leete & Moody, for defendant,
   Bird, J.

Acting for the Chippewa Construction Company, a Michigan corporation, Charles S. Abbott, its vice president, entered into a contract with petitioner on the 1st day of February, 1912, by which the Chippewa Construction Company agreed to purchase from petitioner his milling and electrical plants in the city of Greenville, for the sum of $97,000. One thousand dollars was paid down. Monthly payments were to follow, and the whole sum was to be paid by February 1, 1913, and the Chippewa Construction Company was to have possession of the plants when the monthly payments aggregated $20,000, or when an existing mortgage thereon for $28,000 was paid. Default was made in the monthly payments, and none were ever made. On August 2d of the same year, another contract was executed between the parties, by which petitioner agreed to furnish electrical current. to the Greenville Gas, Electric Light, Power & Fuel Company of Greenville (a portion of whose lines had been destroyed), which company had also been purchased by the Chippewa Construction Company upon contract. This latter contract was to continue in force until a combination of the plants was made, or the lines of the other company reconstructed. It is petitioner’s claim that he was induced to make this second contract upon the assurances that the delinquent payments then due would thereafter be promptly made, and the vendee’s delinquency was excused by the statement that there had been dissension among the members of the board, but these were in a way to be straightened out, and when they were, the payments would be made. These assurances were not made good, and subsequently, and on the 29th day of October, 1912, the Chippewa Construction Company went into the hands of a receiver. On February 1, 1913, the time for making the final payments, no payment had been made upon the first-named contract, save the $1,000 paid when the contract was executed. Petitioner at once served a notice on the receiver, in which he exercised his right under the terms of the contract, and declared both contracts forfeited. Soon after this declaration of forfeiture, and on the 27th day of February, 1913, an ex parte injunction was allowed by the Wayne circuit court upon the application of the receiver, the Detroit Trust Company, restraining petitioner from severing his service wire from the Greenville Gas, Electric Light, Power & Fuel Company's lines. In May, 1913, petitioner filed his petition in the receivership proceeding, praying, among other things, that the aforesaid contracts be declared forfeited, and the injunction dissolved. This the chancellor refused to do, and hence this appeal.

It is argued in defense of the action of the trial court in refusing relief, that petitioner failed to comply with the provisions of (section 1) Act No. 200, Pub. Acts 1911, providing a method of forfeiting land contracts. It is conceded by petitioner that he did not comply with the terms of that act in forfeiting the contract, because he brought himself within its proviso. The act provides a mode for forfeiting land contracts without the aid of court proceedings, and contains the following proviso:

“Provided further, that this act shall not be held to debar the vendor or his proper representatives or assigns from enforcing the forfeiture of said contract through proper procedure in a court of chancery, nor to debar proceedings to recover possession of said premises in any manner now authorized by law or through summary proceedings, provided said contract by its terms so allows.”

A fair construction of this act seems to be that the legislature undertook to and did provide an additional method, whereby land contracts could be forfeited without the aid and expense of a court proceeding. There is nothing in the act which supports the view that the act is mandatory or exclusive with respect to the added remedy, but there is express language in the proviso which leads to the conclusion that it was intended to be elective with the vendor. In other words, the act in effect says to the holder of a defaulted land contract, if you desire to forfeit your contract, here is an additional method of doing so, by which you can accomplish it without the aid of court proceedings. Or, if you choose, you may pursue one of the existing remedies. Petitioner chose one of the existing remedies, and we think he was well within his rights in so doing, inasmuch as the contract in question makes provision for declaring a forfeiture of the contract by giving notice thereof.

Should the contracts be forfeited? The consideration of this question has been rendered less difficult, by reason of the agreement of counsel:

(a.) It is agreed that the Chippewa Construction Company was, at the date of the hearing, in default on its payments of contract No. 1;

(b) that contract No. 2 is subject to the terms of contract No. 1;

(c) that contracts 1 and 2 should be construed together ;

(d) that notice of forfeiture of the contract was duly served on the receiver;

(e) that a forfeiture of contract No. “1” forfeits contract No. “2.”

It is apparent from the record that neither in this proceeding, nor at any other time, has the vendee in the contract, or its receiver, tendered payment in compliance with the contract, nor is there any likelihood expressed that it can, or ever will, make payment thereon. This state of affairs, considered in connection with the concessions of counsel, leads us to the view that the contracts had been declared forfeited, and the court should have so recognized it.

But counsel for the receiver argue, in substance, that to maintain the status quo will not prejudice the rights of the petitioner, but will materially assist the receiver in disposing of the assets of the vendee on a sale thereof. The petitioner executed these contracts with the Chippewa Construction Company, and the record shows that he has not only complied with all the terms of the contract which were incumbent upon him to perform, but that he has borne with the defaults of the vendee longer than he contracted to. When the time finally arrived for payment in full, no payment was tendered.' There is no showing that the receiver is in any position financially to tender it, or, if it can, that it will. The inferences are very strong’ that the vendee is insolvent. Unless we are entirely to overlook the petitioner’s rights under the contract-for the purpose of augmenting the value of the assets of the vendee upon a sale thereof, some relief must be granted him.

It is urged that equity abhors forfeitures, and that equity will not enforce a forfeiture, and petitioner is charged with being unwilling to do equity, although he is asking it. This court not infrequently goes beyond the strict terms of the contract to enforce equities between parties, and an illustration of that is the recent case of Northern Michigan Building, etc., Ass’n v. Fors, ante, 69 (155 N. W. 736). If the receiver, in answer to the petition, were tendering payment to make good the default at this time, or if it were able to express some hope and ability to make payment in the near future, this court might see fit to still grant the defendant the privilege of making payment upon the contract, but such is not the case. Defendant is simply asking that the contract be not forfeited, because its equity therein will assist in making a sale of its other assets. The statement of counsel that a court of equity will not enforce a forfeiture under any conditions is sufficiently answered by the recent case of Donnelly v. Lyons, 173 Mich. 515 (139 N. W. 246).

We are of the opinion that under the state of affairs presented by this record, the order of the trial court should be reversed, and one entered, declaring a forfeiture of both contracts and dissolving the injunction, with costs to the petitioner.

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

The late Justice McAlvay took no part in this decision.


author: BIRD, J.

text:
    LADIES’ AUXILIARY OF ANCIENT ORDER OF HIBERNIANS v. FLANIGAN.
    1. Insurance — Change of Beneficiary — Alteration in Circumstances.
    The rule applied in the case of a change in circumstances of a testator, having the effect of revoking the will, does not by analogy relate to an insurance policy, causing a change in the beneficiary designated; and so the marriage of an insured and birth of a child subsequently to the taking out of a policy payable to tlie father and mother of insured does not change the-beneficiary under a mutual benefit certificate, which was subject to change only upon the payment of a fee and filing an application with the lodge secretary.

    2. Same — Interpleader—Contract.
    The mere unexecuted intention of an insured to change the beneficiaries could not be considered by the court: the original beneficiaries were entitled to the fund and the insurer has a right to insist that the fund be paid as the contract requires.

      Appeal from Kent; Searl, J., presiding.
    Submitted April 12, 1915.
    (Docket No. 39.)
    Decided March 31, 1916.
    Interpleader by Ladies’ Auxiliary of the Ancient Order of Hibernians, a mutual benefit insurance association, against Edward J. Flanigan, Bridget Flanigan, and George Hollway, administrator of the estate of Katherine E. Hollway, deceased, for a decree determining the claims of defendants to the proceeds of a certificate of insurance issued to deceased. From a decree in favor defendants Flanigan, defendant Hollway appeals.
    Affirmed.

      Carroll, Kirwin & Hollway, for defendant Hollway.

      James H. Campbell, for defendants Flanigan.

      On marriage of insured as affecting previous designation of beneficiary, see note to 49 L. R. A. (N. S.) 141.

   BIRD, J.

Complainant, a mutual benefit association, filed a bill of interpleader to have determined the respective claims of the defendants to the proceeds of a $500 certificate of insurance issued by it and delivered to Katherine E. Flanigan, payable to her father and mother, Edward J. and Bridget Flanigan. The date of the certificate was. May 9, 1905. In February, 1908, she was married to the defendant Hollway, and had one child by him, who survives her. In May, 1911, she died. It is conceded in the stipulation of facts that after the marriage, the insured delivered the certificate and receipt book accompanying the same to defendant Hollway, and that he thereafter paid all dues and assessments levied thereon, amounting to $14.60. The position taken by defendant Hollway is that after the insured married and gave birth to a child, the designation óf her parents in the certificate was- thereby revoked, and, inasmuch as she afterwards made no other designation, the fund would be payable upon her death to him as administrator of her estate. The sections of the by-laws which are stipulated to be material are:

“Section 6. Any member desiring any change in her beneficiary certificate must forward fifty cents to the State Secretary with application for the same.”
“Section 10. Death benefits shall be paid to such person or persons as the deceased members shall have ordained, or if said member has not so ordained then to the administrator or executor appointed by the probate court of the county in which said member resides.”

Defendant Hollway contends that, had Katherine E. Flanigan made a will while unmarried, her subsequent marriage and birth of a child would have revoked it (Durfee v. Risch, 142 Mich. 504 [105 N. W. 1114, 5 L. R. A. (N. S.) 1084, 7 Am. & Eng. Ann. Cas. 785]); that by analogy this rule operates to revoke the designation made in her certificate of insurance, and therefore, under the foregoing by-law, the same is payable to him as her administrator. The difficulty with this attempted analogy is that the rule invoked by counsel applies to and affects property disposed of by will, but does not apply to nor change the terms of an executory contract with third parties. The proceeds of this certificate were never a part of her estate. She never intended they should be. She contracted with complainant that the proceeds should be paid to her parents at her death. She never designated any other beneficiary, but, had she attempted to do so by any other means than those provided by her contract, she could not have enforced it. If she could not have changed the beneficiary in her lifetime without complying with the formalities provided by her contract, it is not clear to us how this common-law rule could do so after she was dead. The complainant may insist upon paying according to the terms of its contract, and the beneficiaries named therein have .a right to insist upon it. Grand Lodge A. O. U. W. v. Frank, 133 Mich. 232 (94 N. W. 731).

Whatever Mrs. Hollway may have intended to do towards changing the beneficiary, she did not do it; neither did she attempt it in any manner known to the complainant. If she intended to change the beneficiary, it was a mere unexecuted intention, and this court has repeatedly held that in such cases the fund must be paid to the beneficiary named. Supreme Lodge K. of H. v. Nairn, 60 Mich. 44 (26 N. W. 826); Coston v. Coston, 145 Mich. 390 (108 N. W. 736); Franken v. Supreme Court I. O. F., 152 Mich. 502 (116 N. W. 188); Ancient Order of Gleaners v. Bury, 165 Mich. 1 (130 N. W. 191, 34 L. R. A. [N. S.] 277).

Error is assigned upon the admission of testimony by the beneficiaries to the effect that the insured did not intend to change the beneficiary as being within the statute excluding testimony equally within the knowledge of the deceased. This testimony was doubtless admitted to meet the testimony of the administrator that she intended otherwise. The decree indicates that this testimony was not regarded by the trial court in reaching a conclusion; therefore it will be unnecessary to consider it.

The decree of the trial court was right, and will be affirmed, with costs to the defendants Flanigan.

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

The late Justice McAlvay took no part in this decision.


text:
    PATERSON v. DUST.
    Municipal Corporations — Rivers—Waters and Watercourses— Parks — Contamination oe Waters — Riparian Rights.
    Where a city owned an island in the Detroit river which it used for park purposes, including a bathing pavilion and pool used by the general public, and it was the custom of the owners of houseboats to anchor off the shore of the island in shallow portions of the river, and dump garbage and sewage into the stream, which carried the contaminating substances down to the bathing beach, the city was entitled to enjoin the further pollution of the stream with unwholesome and unsanitary material and to enjoin the anchoring of such craft within a reasonable limit from the shore.
    Appeal from Wayne; Van Zile, J.
    Submitted April 16, 1915.
    (Docket No. 141.)
    Decided March 31, 1916.
    Bill by Walter G. Paterson and others against William T. Dust, commissioner of parks and boulevards of the city of Detroit, and others, for an injunction restraining defendants from interfering with the anchoring or mooring of any boats of complainants at certain places in the Detroit river. Defendants filed an answer in the nature of a cross-bill for an injunction restraining complainants from anchoring their houseboats near the shore of Belle Isle. From a decree for defendants, on their cross-bill, complainants appeal.
    Affirmed.

      Charles S. Hampton, for complainants.

      Walter Barlow (William E. Tarsney, of counsel), for defendants.
   Bird, J.

Complainants filed their bill praying for an injunction to restrain William T. Dust, commissioner of parks and boulevards of the City of Detroit, from interfering with the anchoring or mooring of their houseboats in the shallow water on the north side of Belle Isle Park. Defendants answered and set up affirmative matter in the nature of a cross-bill, and prayed for a temporary and permanent injunction, restraining complainants from anchoring their houseboats as above set forth. Upon the hearing the court decreed a permanent injunction restraining the complainants from anchoring their boats near the island as prayed for in defendants’ cross-bill.

It appears from the pleadings and concessions of counsel that Belle Isle Park is located upon an island in the Detroit river, opposite the city of Detroit; that the city has title thereto, it having been authorized to purchase the same by the legislature at its session of 1879 (Act No. 391, Local Acts 1879) ; that the city of Detroit has expended large sums of money in beautifying the island and making it suitable and convenient for park purposes; that it has erected and maintains, at a large expense, in the shallow water on the north side of said island, a bathing pavilion, and employs life guards to look after the safety of the bathers; and that these privileges were taken advantage of by nearly a quarter of a million of its people during the season of 1915.

It further appears that several years ago the city of Detroit gave the yacht club the right to erect a clubhouse on the north side of the island, a short distance from the bathing grounds, and gave them the right to use the waters for 1,000 feet east of said clubhouse. The houseboats in question were moored in a bay west of the clubhouse, but upon no part of the island leased to the club. Complainants lived upon these houseboats during the heated season with their families and friends, and discharged their garbage and night soil into the river, and the testimony tends to show that the current carried these down into the swimming grounds, and rendered the water unfit in which to bathe. It is claimed by complainants that the testimony is insufficient to establish this fact, but the chancellor found otherwise, and it was decreed that they—

“and each of them, their families and friends, .be perpetually enjoined from anchoring their said boats and houseboats (described in their bill of complaint and in the answer of the defendants filed herein) in the waters adjacent to said island within the red lines drawn around said island, as shown in Exhibit A attached to the answer of the defendants filed herein and from living thereon and using the same as houseboats in said waters.”

The respective counsel have prepared excellent briefs, and have discussed several propositions of law, and we conclude from an examination of them that in the main they are agreed as to the general propositions of law which must control the case. They agree that the city of Detroit is the owner of the island; that it owns the land underneath the water to the center of the stream; that such ownership gives it control subject to the rights of navigation. It is contended by complainants that the rights of navigation include the right to moor their houseboats in the manner in which they did. On the other hand, it is insisted on behalf of the city that the right to navigate the waters of the river does not include the right to anchor their houseboats in such position and discharge the garbage and night soil therefrom into the current, where it will be brought down to the swimming grounds, and thereby pollute the water. We conclude, therefore, that the two questions for determination are one of fact and one of law; the question of fact being whether the testimony was sufficient to sustain the decree; the question of law being as to whether within the rights of navigation are included the right to anchor their houseboats indefinitely in that position, and discharge their waste into the water.

The Question of Fact. The chancellor who sat in this case and heard the testimony held that the testimony established the fact that the garbage and night soil were deposited from these houseboats into the water and into the current, and were thereby carried down stream to the swimming grounds, rendering them unwholesome and unfit for use. We have reviewed the testimony by which he arrived at this conclusion, and we think it supports the conclusion reached, and we are not disposed to disturb it.

The Question of Law. Counsel are agreed that whatever rights the city of Detroit has in the water by reason of ownership of the island are subservient to the rights of navigation, but they disagree as to the extent of the rights included within the rights of navigation. Complainants’ counsel take the position that the right to navigate the waters of the river carries with it the right to anchor their boats as they have heretofore done. This right to anchor once established, complainants’ argument proceeds upon the theory that defendants’ whole case is met, but in this they are in error; it is not their whole contention. The city concedes the right of the complainants to navigate the river with their houseboats, and concedes the right to anchor as an incident thereto, but denies the right of complainants to anchor indefinitely immediately above its swimming beach, and pollute the water to the extent of making it unwholesome and unfit for bathing. The contention of the city in this respect appeals to us. The authorities are nearly all agreed that a riparian owner has a right to the enjoyment of the waters that flow past his premises in an unpolluted state. 29 Cyc. p. 335, and cases. This is no more nor less than a recognition of the common-law doctrine that one is under obligation to exercise his rights with some regard to the rights of his neighbor.

Analogous to the right to navigate the water and anchor is the right to travel the public highway and stop. Because of the latter right it would hardly be contended that one had the right to take his family in a moving van, stop on the highway near a farm dwelling, and remain until the air was contaminated by the poisons arising from his deposits of garbage and night soil. We have no difficulty in reaching the conclusion that the city of Detroit, as riparian owner, is entitled to some relief in this respect. Gould on Waters, § 95; 29 Cyc. pp. 333-335; Lorman v. Benson, 8 Mich. 18, 33 (77 Am. Dec. 435); People’s Ice Co. v. The Steamer Excelsior, 44 Mich. 229 (6 N. W. 636, 38 Am. Rep. 246); Attorney General, ex rel. Wyoming Township, v. City of Grand Rapids, 175 Mich. 503 (141 N. W. 890, 50 L. R. A. [N. S.] 473, Am. & Eng. Ann. Gas. 1915A, 968).

The decree of the trial court prohibited complainants from anchoring within the limits of the red line shown on Exhibit A. The red line referred to is a line fixed by the War Department around the island, indicating the limits to which the city is authorized to extend the shore line. We are in accord with the conclusions reached by the chancellor and with the relief granted.

The decree will be affirmed. No costs will be allowed in this court.

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

The late Justice McAlvay took no part in this decision.


text:
    RAPID RAILWAY CO. v. SCHROEDER.
    1. Taxation — Assessment to Wrong Party — Injunction—Street Railways — Liability for TAk.
    Defendants attempted to enforce collection of a tax on real property erroneously assessed to the complainant. Rapid Railway Company. The property taxed belonged to the Rapid Railroad Company, a corporation which formed part of the system known as the Rapid Railway System, a combination of several roads with the two mentioned; the majority, of the stock in each company was held by a general holding company and the Detroit United Railway acted as a general clearing house of the system and usually paid the taxes of all the lines. Held, that a levy upon rolling stock of the wrong constituent company of the system, which was not an incorporated entity, was improper and\should be enjoined.
    2. Same — Waiver—Subsequent Acts.

      Held, also, that an employee of the real estate department of the Detroit United Railway did not impair or affect the rights of complainant by failing to object to the assessment on this ground and by merely complaining about the amount of the tax, at a conference with township officials and board which occurred after the tax was ' assessed.
    3. Same — Board oe Review — Estoppel.
    Its failure to appear before the board of review and have the name of the owner inserted did not estop the complainant from restraining the collection against its property of the void tax.
    4. Same — Validity oe Tax.
    The provisions of 1 Comp. Laws 1915, § 4098, providing that no tax shall be held invalid on account of assessing property to the wrong person, did not apply to levy on the property of the party who did not own the land, and afforded no defense to an injunction suit.
    Appeal from Macomb; Tucker, J.
    Submitted April 20, 1915.
    (Docket No. 90.)
    Decided March 31, 1916.

      Bill by the Rapid Railway Company, a street railway corporation, against Charles Schroeder, deputy township treasurer, and the Township of Erin, for a decree declaring void a certain tax assessed against complainant and for an injunction restraining defendants from selling one of complainant’s passenger cars under a tax levy. From a decree for defendants, complainant appeals.
    Reversed.

      Erskine & Lungerhausen, for complainant.

      Warren S. Stone (Robert F. Eldredge, of counsel), for defendants.
   Bird, J.

The supervisor of the township of Erin, Macomb county, assessed to complainant in the year 1912 a strip of land 33 feet wide, fronting on the Gratiot road, which was purchased for railroad purposes, but which was not yet being used for that purpose. The tax amounted to $473.10, and payment thereof was demanded of complainant. Complainant refused to pay, whereupon the treasurer levied upon one of its passenger cars and advertised it for sale under the provisions of the tax law. Complainant; then filed the present bill to have the tax declared void, and prayed for a temporary injunction to prevent the collection of the tax, and the sale of the car pending the hearing. Subsequently a stipulation was made between the parties releasing the car upon the filing of a bond by the complainant. At the hearing it turned out that the land belonged, not to complainant, the Rapid Railway Company, but was purchased and owned by the Rapid Railroad Company. It further appeared that these parcels of frontage, forty-seven in number, save one, were taken in the name of the Rapid Railroad Company, and recorded as such in the office of the register of deeds of Macomb county. Notwithstanding the assessment was made to the wrong corporation, the chancellor was of the opinion that the management of the several railway corporations constituting the Rapid Railway System, taken in connection with their former dealings with the township authorities, left it to be inferred by them “that it would make no difference how the assessments were made or labeled, and that, if they were proper charges against any of the companies constituting the system, they would be paid.” Entertaining this view, he held that a personal decree should pass against complainant for the amount of the tax with the costs incurred in the collection of the same, as well as the costs of suit, and that the bill should be dismissed.

The Relation, of the Companies. The record discloses that complainant, “The Rapid Railway Company,” “the Rapid Railroad Company,” “the Detroit, Mt. Clemens & Marine City Street Railway Company,” “the Port Huron, St. Clair & Marine City Railway Company,” “the Detroit & Lake St. Clair Railway,” and “the City Electric Railway Company of Port Huron” are Michigan corporations and constitute what is popularly known as “the Rapid Railway System.” These lines of interurban railway are operated between the cities of Detroit, Mt. Clemens, and Port Huron. The majority of the stock of each one of these railway companies is owned by the Port Huron & Shore Line Railway, a New Jersey corporation, which is not an operating company, but merely a holding company. The inference from the record is that the stock of the New Jersey company is owned by the Detroit United Railway, which ownership carries with it control of the six companies constituting the Rapid Railway System. The Rapid Railway system is not a corporation. It is simply a trade-name used to designate the lines controlled by stock ownership, the same as the trade-name “Grand Trunk System,” “the New York Central Lines,” and “the Pennsylvania Lines.” Each of these six interurban lines of railway, making up the Rapid Railway System, maintains an independent organization, and elects its own officers and makes reports to the State. The Detroit United Railway acts as a sort of clearing house for these several corporations, receives their income, pays their bills, and keeps a separate account with each company. The Detroit United Railway also maintains a real estate department which looks after and pays the taxes of these several companies. It is said that combining these several companies, two of which have very similar names, under one control, has confused the situation, so that it is difficult to know to which company the particular assessment should be made, and it is further insisted that it is immaterial to which one the assessment was made, because all taxes are paid by the controlling authority and charged to the proper account. We cannot agree with this conclusion. The complainant corporation has no interest in the Rapid Railroad Company. Neither has that company any interest in the complainant corporation. Both are independent corporations, created so by the State, and recognized by it as such. Each has its own board of directors and selects its own officers, and each makes reports to the State. There is no more reason for taking complainant’s property to pay the taxes of the Rapid Railroad Company than there is of taking the property of one individual to pay the taxes of another. The argument that it becomes unimportant because the taxes of both are paid by the Detroit United Railway Company is not of much force, because the assessment was neither made against the Detroit United Railway, nor was the attempt made against that company to collect the same. The mere fact that the relations of these companies are such that it is sometimes difficult to determine to which company certain property belongs will not justify the township authorities in taking property owned by the complainant to pay the taxes assessed upon property which it does not own. In the instant case the process of determining to which company these 47 descriptions belonged was not difficult. A reference -to the records of the register of deeds by the assessing officer would have disclosed who the grantee was.

Dealings Between the Railways and the Township Authorities. A few days prior to the levy, a Mr. Beath, who is employed in the real estate department of the Detroit United Railway, met the township board and treasurer in the prosecuting attorney’s office, for the purpose of talking the matter over and determining whether a compromise could be made of the matter, and several suggestions were made whereby complainant agreed to pay some portion of the tax if other portions were remitted. At this conference it is claimed that no objection was made by Mr. Beath on the ground that the assessment was made to the wrong corporation, but his objection went only to the amount of the assessment. Nothing came of this meeting, and a conference was arranged for the following day between the treasurer and Mr. Beath, but no settlement was arrived at. We are not impressed with the importance of this conference, nor of any concessions upon the part of the complainant, as it took place long after the assessment was made, and therefore could have had no tendency to mislead the assessing officer. It was claimed upon the part of the complainant, and we think the testimony tends to show, that the township authorities were advised at this conference of their mistake in making the assessment. This was before the car was levied upon.

It was further shown that the previous year a like assessment was made to complainant on some portion of these parcels, and that it was paid without objection. It appears, however, that the tax paid was. a drain tax, and was paid not by complainant, but by the Detroit United Railway. To which railway line it was charged by them does not appear.

We are unable to see anything in these dealings between the complainant and the township authorities which should estop the complainant from resisting the payment of the tax.

It is further contended that the failure of complainant to appear at the board of review and have the correction made estops it from now complaining of the error. We think this rule is not applicable where the complainant owned no part of the property assessed, and where the assessing officer had no jurisdiction to assess any part of the property against complainant. One is not bound at his peril to appear before a board of review to protect himself against a void tax which the township authorities had no jurisdiction to levy against him. Woodmere Cemetery Ass’n v. Township of Springwells, 130 Mich. 466 (90 N. W. 277); City of Detroit v. Transportation Co., 140 Mich. 174 (103 N. W. 557); Township of Portsmouth v. Steamship Co., 148 Mich. 230 (111 N. W. 749).

The defendants invoke the following provision of the statute in defense of their action:

“No tax assessed upon any property * * * shall be held invalid * * * on account of the property having been assessed * * * in the name of any person other than the owner.” 1 Comp. Laws, § 3922 (1 Comp. Laws 1915, § 4098).

This rule applies only where one is proceeded against to collect a tax which he would have been liable for if properly assessed, but which has been assessed to another. If this attempt to collect the tax against the complainant was for property which it owned, but which through error had been assessed to another, an application of this rule might be made, but we think it could in no sense apply in the present case, inasmuch as complainant did not own the property, and was not liable for the tax which the township was seeking to collect.

The decree of the trial court will be reversed, and one entered in conformity with this opinion, with costs to the complainant.

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

The late Justice McAlvay took no part in this decision.


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    CRITZ v. CROPSEY.
    Bills and Notes — Defenses—Set-off—Unliquidated Claim.
    In an action on a promissory note, defendant, who claimed that his father had turned over real property on a previously existing obligation of defendant, sufficient, after defendant had paid the debt, to secure plaintiffs, and that the amount owing to plaintiffs was less than the value of the land so turned over, and that his father, the indorser, had assigned his rights and claim to the defendant, who was not entitled to set off the amount of the alleged claim assigned to him, to reduce or defeat the note; because a set-off must be liquidated in order to warrant its use as a defense to an action at law: de< fendant’s claim of defense could only be enforced bj separate proceedings in equity.

      Error to Wexford; Lamb, J.
    Submitted June 9, 1915.
    (Docket No. 25.)
    Decided March 31, 1916.
    Assumpsit by Frank L. Critz and another against Jesse R. Cropsey and another on a promissory note, before the court without a jury. Judgment for plaintiffs. Defendants bring error.
    Affirmed.

      Gaffney, Miltner & Millington, for appellants.

      Fred C. Wetmore, for appellees.
   Bird, J.

Plaintiff sued defendants in assumpsit on a promissory note for $500, and recovered judgment thereon. No point is made against the validity of the note by defendant Cropsey, but he asserts that it has been paid by a balance due his father on a former transaction with the plaintiffs, which balance was afterward assigned to him. The claim was in substance this:

That defendant Cropsey in November, 1911, was a resident of Vicksburg, in this State; that he was making preparations to move from that village, and had made arrangements to sell his law books and office furniture; that he made a loan of the Farmers’ State Bank of Vicksburg for $1,500, payable in '30 days, and that plaintiffs indorsed the note with him, he securing them by a chattel mortgage on his books and furniture; that he afterwards paid this note, but after such payment was made, his father, without knowledge of the fact that the note had been paid, to further secure plaintiffs, deeded certain real estate in the village of Vicksburg to one Charles F. Brown, subject to a mortgage thereon of $750, at the request of the plaintiffs; that the property still remains in the hands of the said Charles F. Brown, if not sold, and that the same was fairly worth $1,800. Defendant Cropsey therefore concludes that the $1,500 note has been twice paid, and he insists that the balance coming to his father in that transaction shall be applied on the note in suit, his father having consented thereto in open court. The trial court was of the opinion that this claim was not within the issues, and as there was no other defense offered, a judgment was' rendered for plaintiff for the amount of the note.

Defendant urges his contention again in this court. Plaintiffs’ counsel argues that, conceding defendant’s version of the $1,500 transaction is as he states it, it cannot be set off in this action, because it was not shown with any certainty what the balance was which was assigned to defendant; that it was not shown whether the land had been sold, and if not sold, whether the father’s equity therein had been transferred to defendant; further, that neither Brown, the vendee, nor the mortgagee is before the court, and therefore their respective rights therein could not be determined; that the claim of the father, if there be one, is a proper subject of inquiry by a court of equity, but not of law. These suggestions on the part of defendants’ counsel make it obvious that the claim is not a proper subject of setoff. What defendant is attempting to do in effect is to set off an equitable claim against plaintiffs, which has been assigned to him, against á debt owing by himself when suit is brought thereon in a court of law. In order to make a claim available as a set-off, it must be liquidated. Smith v. Warner, 14 Mich. 152; Holland v. Rea, 48 Mich. 218 (12 N. W. 167). It must be conceded that this claim is not liquidated, and therefore cannot be used to defeat plaintiffs’ claim.

The judgment must be affirmed.

Stone, C. J., and Kuhn, Ostrander, Moore, Steere, aiid Brooke, JJ., concurred.

The late Justice McAlvay took no part in . this decision.


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    SPEARS v. BLACK.
    1. Landlord and Tenant — Contracts—Evidence. ,
    Where a landlord brought attachment against a tenant on the ground that the lease, which was not in writing, authorized him to take steps for collecting the rental in case the tenant commenced to pack up to move away, when it should become payable, and the store manager stated that she had received orders from defendant to pack up and get out, the direction was part of the res gestee and admissible in evidence.
    2. Same — Hearsay—Agency.
    But whether it was permissible to receive the testimony of customers who had heard other clerks say defendant was about to move away, — quwre.,
    3. Same — Principal and Agent — Evidence — Hearsay — Witnesses.
    The agent may testify to the fact of his agency, and for that purpose is as competent as any other witness. When his authority is verbal, he may testify to its extent.
    Error to Tuscola; Beach, J.
    Submitted June 21, 1915.
    (Docket No. 78.)
    Decided March 31, 1916.
    Assumpsit in justice’s court by William J. Spears against George V. Black for the recovery of money due for rent of a store. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Frank L. Fales, for appellant.

      T. C. Quinn and H. H. Smith (Walter S. Wixson, •of counsel), for appellee.
   Bird, J.

Plaintiff brought suit in justice’s court to recover items aggregating $216, and attached defendant’s stock of merchandise in Vassar. Judgment passed for the plaintiff in justice’s court, and on appeal he was successful. The principal item of the account was for rent of a store building which defendant occupied. Plaintiff, acting as agent for his wife, claims that he leased the store building to defendant for one year from May 1, 1913, at $37.50 per month, with the understanding—

“that if he did not like it in Vassar, quit the business, before he commenced packing up to move away, my rent would be due and payable, and he would come in and settle foi it with me.”

The lease was oral. The defendant admits that he leased the store at the rental named, but denies that there was any talk that the balance of the year’s rent should become due in the event that he vacated it before the end of the year. Defendant took possession of the store May 1, 1913, and installed a Miss MacIntyre as manager, with general authority to buy goods, employ clerks, draw checks, pay bills, etc. Defendant had several stores in that vicinity, the principal one being at Pigeon, where he resided. On December 24th a fire occurred in the store, and damaged the stock to a considerable extent. Following the adjustment of the loss, arrangements were made for a fire sale, and some of the goods were packed the latter part of January, 1914, preparatory to shipping them away to some of the other stores. About this time the manager, Miss MacIntyre, checked the account out of the bank in which the plaintiff was interested. These acts, together with rumors about town that defendant was going to leave, made it appear to plaintiff that defendant was getting ready to leave, and he therefore demanded the rent for the balance of the year. This demand was refused, and attachment of the stock took place at the close of business on Saturday evening, January 24th. For the purpose of justifying his demand for the rent for the balance of the year, the plaintiff offered statements of the manager and clerks to the effect that Saturday, January 24th, would be their last day in Vassar; that the stock was to be moved away. Most of these statements are said to have been made to customers of the store. These statements. were admitted over defendant’s objection that they were hearsay. The defendant denied that he was intending to leave Vassar before the end of his year, and denied that he ever authorized any of his clerks to make the statements, and explained that the goods packed were damaged ones that he was about to ship to other of his stores.

The manager, Miss MacIntyre, had general charge of the business in Vassar in the absence of defendant. Her statement that defendant had given her orders to “pack up and get out” was with reference to the business intrusted to her, and was clearly a part of the res gestee, and therefore admissible as against the defendant. If we entertained any misgiving as to the admissibility of this statement under the rule, it would be cleared, up by the testimony of defendant, wherein he admitted that he testified in justice’s court that he instructed Miss MacIntyre that “if she didn’t like to stay there, should could sell the stock and go back home.”

It is not so clear that the statements of the clerks are admissible, but if they were not, the error in admitting them appears to be cured by the clerks after-wards becoming witnesses on behalf of the defendant and making a denial that they made such statements. Rounsavell v. Pease, 45 Wis. 506; Roux v. Lumber Co., 94 Mich. 607 (54 N. W. 492).

The plaintiff was permitted, under objection, to testify that he was the agent of his wife in the leasing of the store. This is relied on as an error. Counsel appears to rely upon the rule of law which precludes proving agency by declarations and statements of the agent. The cases cited do not apply, as the rule does not deny to the agent himself the right to testify as to the fact of his agency. He is as competent to testify to that fact as any other witness. 31 Cyc. p. 1651; 1 Mechem on Agency (2d Ed.), § 292; Cleveland Co-Operative Stove Co. v. Mallery, 111 Mich. 43 (69 N. W. 75).

And when his- authority is verbal, as in this case, he is permitted to testify as to the extent of his authority. 31 Cyc. p. 1652, and cases.

Several errors are assigned as to the admissibility of certain testimony, and also upon the charge of the court, having reference to the other items of the account. These were all questions of fact, and we find nothing in the assignments which calls for a reversal of the case.

The judgment must be affirmed.

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

The late Justice McAlvay took no part in this decision.


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    LEARY v. BECKER.
    1. Automobiles — Negligence—Contributory Negligence — Want oe Cake.
    Where plaintiff was injured in attempting to extinguish a fire in his car, caused by a piece of waste being left • on the exhaust pipe near the gasoline tank by servants of defendant, who had repaired the automobile, the question of negligence was for the jury.
    2. Same — Contkibutoky Negligence — Extenuating ‘Circumstances.
    Whether plaintiff was chargeable with contributory negligence for using his hands in attempting to put out the fire was a question of fact, when his own and another family occupied the car.
    Error to Kent; McDonald, J.
    Submitted October 15, 1915.
    (Docket No. 117.)
    Decided March 31, 1916.
    Case by George W. Leary against Ray E. Becker, doing business as the Becker Auto Company, for personal injuries. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Reversed.

      Smedley & Linsey, for appellant.

      Cornelius Hoffius, for appellee.
   Bird, J.

Plaintiff suffered quite severe injuries by having his hands burned, which he claims were due to the negligence of the defendant. The trial court directed a verdict for defendant, on the ground that plaintiff’s own negligence contributed to his injuries.

It appears that plaintiff owned a Ford car which he had purchased from defendant. It failed to work a short time thereafter, and he took it to defendant’s garage for repairs. The repairs were made, and plaintiff took the machine into his possession again. Later in the day, while riding with his wife and daughter and a neighbor and his wife and daughter, he had occasion to ascend a steep hill on Michigan avenue, and he placed his machine in low speed. Just as he reached the top of the hill he discovered fire and smoke coming up through the lever holes. Thinking it was due to a leak in his gasoline tank, he stopped, alighted, and grabbed hold of the floor boards to remove them, and in so doing severely burned his hands. After removing the boards he discovered the fire was caused by a piece of burning waste which had been left by the repair man on the exhaust pipe near the gasoline tank, and the low speed had heated the exhaust pipe to the point of setting the waste on fire. After throwing sand on the burning waste, he grabbed it with his bare hands and threw it aside.

There appears to have been little doubt in the mind of the court that defendant was negligent, but he was also impressed that plaintiff was negligent in reaching down into the fire through the finger or lever holes to remove the boards. The question whether plaintiff was guilty of contributory negligence under such circumstances is one upon which reasonable men might differ. Seeing fire proceeding from a point near his gasoline tank would have a tendency to alarm the average motorist. The fact that he had his family and his neighbor’s family in the car would undoubtedly increase his concern. From the fact that he did not choose the most prudent method of extinguishing the fire without injury to himself under such circumstances is not conclusive proof of his contributory negligence. The fact that he took a risk to protect his own and his neighbor’s family from injury is entitled to great -weight in determining whether he was guilty of contributory negligence. Fehnrich v. Railroad Co., 87 Mich. 606 (49 N. W. 890); Milbourne v. Power Sta tion Co., 140 Mich. 321 (103 N. W. 821, 70 L. R. A. 600); Mercer v. Railway, 151 Mich. 568 (115 N. W. 733); 29 Cyc. p. 523.

We are of the opinion that the question as to whether he acted as an ordinarily prudent man would have acted under similar circumstances was a fair question for the jury, and it should have been submitted to them.

The judgment is reversed, and a new trial ordered.

Stone, C. J., and Kuhn, Moore, and Person, JJ., concurred with Bird, J.

Brooke, J. I am of opinion that the learned circuit judge correctly held plaintiff guilty of contributory negligence as a matter of law.

Ostrander and Steere, JJ., concurred with Brooke, J.