text:
    GRIPMAN v. KITCHEL.
    1. Libel and Slander — Conclusions as Evidence — Justification — Mitigation of Damages.
    While evidence was admissible, in a libel suit, to show that the article published in defendant’s paper charging plaintiff, a city marshal, with graft, was based on certain information secured by the reporter, no error was committed in excluding testimony of á member of the board of supervisors, which rejected plaintiff’s bill, as to the opinions of the committee and board concerning the matter.
    3. Same — Retraction.
    The completeness of an alleged retraction, published by defendant under 8 Comp. Laws, § 10435 (5 How. Stat. [3d Ed.], § 131881 > was a question for the court, in an action in which plaintiff claimed no punitive damages.
    8. Same — Evidence.
    Plaintiff was rightly relieved by the court from answering a question, on cross-examination, whether the retraction was full and complete; defendant’s counsel might have been entitled, if he had desired, to show its effect on plaintiff’s feelings, but the conclusion of the witness as to the legal effect of the retraction was incompetent.
    Error to Branch; Knowlen, J.
    Submitted October 16, 1913.
    (Docket No. 94.)
    Decided December 17, 1913.
    Case by L. J. Gripman against Horace Kitchel for libel. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      H. H. & B. H. Barlow and Palmer & Palmer, for appellant.

      L. F. Humphrey and-F. A. Lyon, for appellee.
   Kuhn, J.

The plaintiff was marshal of the city of Coldwater, in this State, on October 31, 1908, and for some time prior thereto. The defendant was the proprietor and publisher of a newspaper printed and published in the city of Coldwater, and circulated generally throughout said city and Branch county, and, to some extent, in adjoining counties and elsewhere outside of the State. On or about October 12, 1908, plaintiff filed a claim with the board of supervisors of the county for services rendered in making arrests, serving warrants, and other services pertaining to the apprehension, arrest, detention, etc., of persons charged with or convicted of crime. The consideration of the bill was postponed by the board, and the plaintiff brought mandamus proceedings against the said board to compel the allowance of the bill. The bill, which was sworn to, contained two items in which he claimed fees, which upon the face of the bill showed that the work was done for violation of city ordinances. The defendant, learning of the mandamus proceedings, sent his reporter, a Mr. Dean, to the courthouse to examine into the matter and write an article. The reporter examined the sworn bill filed by the plaintiff, talked with the clerk of the board of supervisors and with several of the supervisors, the name of one of whom was, he states, Mr. Bidelman, and thereupon wrote the article which gave rise to this controversy.

The article which was published in the newspaper accuses the plaintiff of having a double graft system, and further says:

“The marshal had submitted a bill to the county for the arrest of common drunks, the bill itself stating that they were taken for violation of a city ordinance, which would itself explain that the expense incurred should be met by the city.”

After the publication of the article, Mr. Gripman served upon the defendant a notice to retract, whereupon the defendant published what is claimed to be a full and complete retraction of the article. Suit was instituted by the plaintiff against the defendant, which resulted in a verdict by the jury of $1,200 rendered in favor of plaintiff, $400 of which was specified as damages to plaintiff’s feelings, and $800 damages to his reputation. Defendant now seeks to review the judgment by writ of error in this court.

On the trial of the cause, for the purpose of showing the source of defendant’s information, his good faith in publishing the article, and to rebut the presumption of malice on the part of defendant, in mitigation of damages, Mr. P. J. Rathburn, one of the supervisors of the county, was produced as a witness on behalf of the defendant. He was asked whether there was anything said at the time that the matter was brought before the board of supervisors as to how the members of the committee looked at the action of Mr. Gripman in filing the bill. He was not allowed to answer this question by the trial court, and at the close of the testimony, and before the defendant had rested his case, counsel also offered the testimony of a number of the supervisors of the county, at which time the following colloquy occurred between counsel and the court:

“Mr. Barlow: May it please the court, yesterday, I offered the testimony upon the question of rumor. This morning we desire to offer the same testimony, or the same class of testimony, and also in justification of the alleged slanderous article. It is offered in connection with what is stated in the plaintiff’s declaration on page 8.
“The Court: What testimony do you offer ?
“Mr. Barlow: The testimony of the supervisors bearing upon the reason why the bill was tabled, as showing how the bill appealed to the supervisors, as published in the article in the Reporter.
“The Court: Is there objection to the offer ?
“Mr. Lyon: There most certainly is. It cuts no figure what their reason was.
“The Court: It is offered for a twofold purpose, first in mitigation ?
“Mr. Barlow: Yes, sir.
“The Court: Gentlemen, I may be in error, but I don’t think the testimony is admissible for either purpose. To which ruling of the court the defendant by its counsel in open court then and there duly excepted. ”

The failure of the court to admit this testimony is made the basis of assignments of error.

While it was competent for the defendant or his reporter to show particularly the information upon which they wrote and published the statement, it does not seem to us to be competent, in order to justify libelous charges, to show the expressions of opinion of the supervisors. They could not be said to be in mitigation of damages, because the mitigating circumstances would only be what actually inspired the publication of the article and this could only be proven by showing what actually came to the mind of Mr. Kitchel and his reporter before the article was published. In the case of Brewer v. Chase, 121 Mich., at page 539 (80 N. W. 579, 46 L. R. A. 397, 80 Am. St. Rep. 527), Mr. Justice Hooker, speaking for the court, said:

“ Much testimony was admitted tending, to show that the plaintiff had been charged with the offenses described in the alleged libel. It was competent to show in mitigation of damages that the defendant had heard that such charges had been made, but it was unimportant whether other persons had heard them or not. * * * It was insisted that it was competent to show that the statements contained in the libel were literally true, whether the charges which they reflected were true or not. We have already shown that it was necessary to prove the truth of the latter to make out a justification. Nothing less would do. It was incompetent to prove the former.”

See, also, Schattler v. Daily Herald Co., 162 Mich. 115 (127 N. W. 42); Atkinson v. Detroit Free Press Co., 46 Mich. 341 (9 N. W. 501).

Upon the cross-examination of plaintiff by defendant’s counsel, he was questioned regarding the retraction which had been published, and the following questions were asked:

Q. Did you read it at the time it was published ?
“A. Oh, yes; I was quite a student of the paper about that time.
“Q. It was a pretty full and complete retraction in your judgment, wasn’t it ?
“Mir. Humphrey: Now, just a moment, that should be left to the jury.
“Mr. Palmer: I have a right to find out how it affected him.
“Mr. Humphrey: Not whether or not it was a complete retraction. (Question read.)
“Mr. Humphrey: I object to that because the retraction should be left to the jury as to whether it was full and complete.
The Court: It seems to me that is a good objection, is it not ?
“Mr. Palmer: The question possibly may be objectionable. There isn’t any sort of question but what it is for the jury, but he is suing for damages to his feelings, and I have a right to show from the witness himself whether the retraction did not repair his feelings.
“Mr. Lyon: That wasn’t quite your question was it, Judge ?
“Mr. Palmer: That was the object of the question, Mr. Lyon.
“The Court: You did not mean complete in the sense of a legal retraction under the statute ?
“Mr. Palmer: Well, I don’t care for his conclusion on that because we will read it to the jury.
“The Court: I understand your question is, was it satisfactory to him ? That is what you mean by it ?
“Mr. Palmer: Substantially, yes.
“Q. Didn’t you think it a fair retraction of the article complained of ?
“The Court: You still object ?
“Mr. Humphrey: I do.
“The Court: I will have to sustain the objection, Judge. To which ruling of the court the defendant by his counsel in open court then and there duly excepted.”

Error is assigned because of the ruling of the court excluding the questions asked. Section 30425, 3 Comp. Laws (5 How. Stat. [2d Ed.] §13138), provides as follows:

“No exemplary or punitive damages shall be recovered unless the plaintiff shall before bringing suit give notice by mail or otherwise to the defendant to publish a retraction of the libel, and allow the defendant a reasonable time in which to publish such retraction, and make such amends as are reasonable and possible under the circumstances of the case; and proof of the publication or correction shall be admissible in evidence under the general issue on the question of the good faith of the defendant, and in mitigation and reduction of exemplary or punitive damages: Provided, that the retraction shall be published in the same type and in the same editions of the paper as the original libel, and so far as practicable in the same position.”

A retraction having been published, no claim was made in this case for punitive or exemplary damages. The retraction being in writing, the question whether it was full or complete was a question of law for the court, and not a question of fact for the jury, if that question had been in issue.

The questions asked of the witness on cross-examination and ruled out by the court called for the opinion of the witness as to the legal construction to be placed upon this retraction. We think it would have been competent for counsel to have asked the witness what effect the retraction had on his feelings, and an examination of the excerpt from the record set forth above discloses that a clear intimation was given counsel by the court that such a question would have been permitted. The circuit judge did not err in excluding the questions asked.

Judgment is affirmed.

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


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    McBRIDE v. JERRY MADDEN SHINGLE CO.
    1. Master and Servant — Contract—Existence oe Relation.
    The general rule is that the relation of master and servant does not exist if the person employed is in the exercise of a distinct, independent employment, and not under the immediate control, direction, or supervision of the employer; it exists wherever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished.

    3. Same — Negligence.
    Plaintiff sent his team and driver to work for a contractor, who was lumbering for defendant company under an agreement creating the relation of independent contractor. After-working for some time under the contractor’s direction, the driver was ordered by him to haul logs out on the frozen surface of a lake, to strengthen the ice. Defendant’s overseer, arriving at the lake, assisted the teamster to load poles, and made several tests to determine the strength of the ice, assuring the driver of its safety. Defendant paid his wages and paid for the use of the team, upon the order of the contractor, who had charge of the team and driver and controlled them. At the direction of the contractor the driver placed a load of poles further out than he had theretofore done, and the team broke through the ice and were drowned. Held, that the relation of master and servant did not exist between defendant and plaintiff’s teamster.
    Error to Chippewa; Oren, J.
    Submitted October 18, 1912.
    (Docket No. 153.)
    Decided December 17, 1912.
    Rehearing denied March 20, 1913.
    Case by John McBride against the Jerry Madden Shingle Company for the loss of a team by reason of defendant’s negligent act. Judgment for plaintiff. Defendant brings error.
    Keversed, new trial denied.

      F. T. McDonald, for appellant.

      M. M. Larmonth, for appellee.

       The authorities on the question as to what persons are deemed to be independent contractors are reviewed in an elaborate note in 65 L. R. A. 447, and in a supplemental note in 17 L. R. A. (N. S.) 371.
      On the general rule as to absence of liability for acts of independent contractor, see note in 65 L. R. A. 622.

   Kuhn, J.

The plaintiff, being the owner of a team of horses, in the fall of 1909, sent them with a driver, Samuel Hewitt, to Trout Lake, in Chippewa county in this State, to work for Julius Brandt, who had a contract with the defendant company to cut and deliver certain timber at fixed prices on bank or on cars, as designated, near Trout Lake. The contract was in writing and provided that the timber should be cut clean, manufactured in a workmanlike manner, and delivered before April 15, 1909. The time for completing the contract was extended by the defendant, and all the work done by Brandt from 1908 until the spring of 1911 was done under this contract. Some changes were made, by mutual consent, as to the place of delivery; but in 1909-10 the route for hauling the logs was to Trout Lake, and, in order to get the logs to the banking grounds at this place, Brandt made a road and attempted to cross a small lake, approximately 40 rods wide which was frozen and covered with ice at the time.

On January 10,1910, the driver, Hewitt, with plaintiff’s horses, was working under Brandt’s orders and directions in plowing the road down to the lake. In the forenoon of that day, Brandt and Hewitt walked out on the ice so as to ascertain if it was strong enough to haul logs across. Holes were cut with an ax every 15 or 20 rods, and some weak places were found in the center of the lake. In the afternoon, Brandt told Hewitt to haul some logs, so as to pole the lake, by which means it was intended to make the weak spots on the ice safe, by allowing the poles to freeze in solid. While this work was going on, Timothy P. Cullnan, who was the overseer of the woods operations of the defendant company, appeared at the lake, and Hewitt claims that he assisted him in loading poles on his dray and went on the ice, cut several holes, and assured him that the ice was safe at those places and showed him where to unload the poles. It is also claimed by Hewitt that Brandt said he would not cross the ice without instructions from Cullnan. Hewitt thereupon left to get a second load of poles and met Cullnan on the edge of the lake as he was coming back. He placed the second load at the point where he had left the first, and, it is claimed, as directed by Cullnan. Cullnan did not return, and Hewitt, after delivering the second load, went after a third, which he placed about 15 feet farther out in the lake, under direction of Brandt, and then went after a fourth load, which he attempted to place still farther out, also under direction of Brandt, whereupon the team broke through the ice and were drowned. Suit was brought against the defendant company for the value of the horses. It was the claim of the plaintiff on the trial of the case below, and it is urged here, that the defendant company’s walking boss assumed and exercised such authority over the driver and team of the plaintiff and gave the driver such assurances as to the condition of the ice as to create the relationship of master and servant between the defendant company and the driver. This brings us to a discussion of what is the all-important question in this case.

It is an undisputed fact that in the ordinary relationship Brandt was an independent contractor. There was no provision in the contract reserving to the defendant company the right to control the details of the work. The company had no right to interfere with the manner of doing the work, or to assume direction of it as long as Brandt was able to do it; the only provision in the contract with reference thereto being:

“It is further agreed and distinctly understood that should the said Julius Brandt, through sickness, disability, death or any other cause be unable to properly look after and manage the said work, then the parties of the first part shall have the right to take charge of said work
and carry out the terms of this agreement at the cost and expense of the said Julius Brandt.”

No claim is made of any such right to interfere on the part of the defendant company, and Cullnan stated:

“ Brandt, himself, had the sole direction of cutting the timbers under his contract, and the hauling of it and placing it on the banking ground.
Q. Did you have any work to do, or instructions from the company, with respect to that work ?
“A. Why, no more than to go and look around and see how they were getting along.”

The general rule has been repeatedly stated by the authorities that the relation of master and servant does not exist where the person employed is in the exercise of a distinct, independent employment and not under the immediate control, direction, or supervision of the employer. De Forrest v. Wright, 2 Mich. 368. This case has been repeatedly cited and the supreme court of Massachusetts in Linton v. Smith, 8 Gray (Mass.), 147, declared it to be a well-considered case.

The relation of master and servant exists wherever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or, in other words, not only what shall be done, but how it shall be done. 26 Cyc. p. 966.

Can it be said that at the time of the accident Hewitt was under the immediate direction and control of the defendant’s representative ?

The record discloses that Cullnan was not at the scene at that time and that Brandt was actually supervising the work. Hewitt testified:

“I was working for Mr. Brandt. Mr. Brandt fixed my wages. Mr. Brandt hired me and also hired this team that was lost. He told me what he would pay me.
Q. And you took orders from Brandt as to what you were to do?
A. Yes, up to that time.
Q. And you knew that he was your boss, and no one else?
“1 Yes, he gave me orders.
Q- You were not working for the Jerry Madden Shingle Company?
A. No, sir.
Q. And you received no instructions from the Jerry Madden Shingle Company with respect to your work, when you went to work there for Brandt?
“A. No, sir; only to get my pay.
Q. And you got your pay from the Jerry Madden Shingle Company on orders issued by Brandt?
“A. He gave us our time; yes, sir.
Q. And you would go to the Jerry Madden Shingle Company to get paid?
A. Yes, sir.
Q. You knew you were hired by Brandt, and that you were subject to his instructions?
A. Yes, sir.
Q- And you knew that he was the man to let you go, and tell you when when your work was done?
A. Yes, sir.
“ Q. And to let you know if the work was done satisfactorily ?
“A. Yes, sir. * * *
“Q. Had you left the employment of Brandt and become employed by the Jerry Madden Shingle Company that morning ?
“A. No, sir. The walking boss gave the orders that morning.
"Q. Did you change your employment that morning ?
“A. I didn’t know. The walking boss is the man that gave the orders, anyway. I had not quit working for Brandt. * * * I put the first and second loads at the same point, and the third 15 feet further out as directed by Mr. Brandt. I had to drive the horses 15 feet further out. The ice was just as good there as where I was. The men were working alongside where the poles were left, making a road. They were poling the ice at the right-hand side of where I put the poles. After unloading these poles, I went back and got another one.
“Q. Now, you came out with the fourth load, and where did you put that load ?
“A. Brandt told me to put it a little piece further ahead.
“Q. And how far did you go with it ?
“A. I went ahead about 20 or 25 feet.
“Q. Further on than the third load of poles ?
"A. Yes, sir.
“Q. And you started to unload them ?
“A. No, sir; the team went through the ice.”

Defendant did not hire the driver and had no power to discharge him. It stood in no sort of contractual relation with him. In the case of Riedel v. Moran, Fitzsimons Co., 103 Mich. 262 (61 N. W. 509), the doctrine laid down in De Forest v. Wright, supra, is reaffirmed. See, also, Reier v. Spring Works, 109 Mich. 244 (67 N. W. 120); Burns v. Paint Co., 152 Mich. 613 (116 N. W. 182, 16 L. R. A. [N. S.] 816); Larsen v. Telephone Co., 164 Mich. 295 (129 N. W. 894). In bur opinion, Cullnan, by the acts testified to by plaintiff’s driver, Hewitt, did not assume such immediate control and direction of the work of building the road across the lake as to create the relationship of master and servant between the driver and the defendant company at the time of the accident.

The trial judge should have directed a verdict for the defendant at the close of the proofs, as requested by defendant’s counsel. It is unnecessary to consider the other assignments of error.

The judgment is reversed, and no new trial granted.

Moore, C. J., and Steers, McAlvay, Brooks, Stone, Ostrander, and Bird, JJ., concurred.


author: Ostrander, J.

text:
    ERNST v. GRAND RAPIDS ENGRAVING CO.
    1. Master and Servant — Discharge—Justification.
    A wilful refusal or neglect by a servant to obey reasonable orders of his master constitutes a sufficient ground for terminating the contract of employment: and a refusal to obey his foreman, if the servant knew that he was subject to the foreman’s orders, and the use of obscene and abusive language towards his superior, would justify his dismissal.

    2. Same.
    Whether defendant had sufficient ground to discharge plaintiff, who denied using profane or improper language as claimed by defendant, and denied that he refused to obey any orders of his foreman, or that he knew the foreman had authority over him, was a question for the jury, upon conflicting testimony, in an action for breach of contract.

    Error to Kent; McDonald, J.
    Submitted October 17, 1912.
    (Docket No. 117.)
    Decided December 17, 1912.
    Assumpsit by Carl Ernst against the Grand Rapids Engraving Company for breach of a contract of employment. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Wilson, Wilson & Sice, for appellant.

      Fred Maiehele and Ghris Maichele, for appellee.

       The authorities on the duty of a servant to obey his master’s orders are collated in a note in 24 L. R. A. (N. S.) 814.

       On the question of discharge of employé for disobedience of regulations, see note in 37 L. R. A. (N. S.) 950.
      The general question of the duty of a servant in regard to the rules promulgated by his employer, is treated in a note in 43 L. R. A. 350.

   Ostrander, J.

Plaintiff had with defendant a contract of employment until September 1, 1911, at a salary of $40 per week. The contract was made August 12, 1910. Plaintiff was discharged by defendant April 14, 1911, and sued to recover his wages under the contract. He had earned something meantime in other employment, and a verdict in his favor was returned for his agreed salary less the sum which he had so earned. Judgment was entered on the verdict.

Two propositions are raised upon errors assigned by defendant : One, that plaintiff’s testimony shows there was sufficient reason for his discharge; the other, that the court erred in instructing the jury as to what would be a sufficient cause for plaintiff’s discharge. Both propositions involve the sufficiency of the cause for discharge asserted by defendant. Plaintiff was hired as foreman of its lithographic department. Defendant discontinued this department at or about the end of the year 1910. The reason was that the department did not prove to be a success. About January 1, 1911, plaintiff talked with the defendant’s manager, and it was arranged between them that plaintiff should enter the designing branch of the engraving department, but not as foreman. Soon after-wards, John Hegner was made general foreman of the engraving department. Whatever trouble arose was between plaintiff and Hegner.

The court instructed the jury upon the subject as follows :

“As I said, the defendant claims that he was discharged because of insubordination and disobedience to proper orders. It is the duty of a servant to obey all lawful and reasonable orders of his employer, or those representing him, and this obligation on the part of the employe is implied from the contract of employment; and a wilful refusal or neglect on his part to obey such orders amounts to insubordination, and constitutes a sufficient ground for his dismissal. The acts which the defendant claims constitute insubordination and disobedience to proper orders in this case were using obscene and abusive language to the general overseer of the engraving department, refusing to recognize his authority, and to report to him. You have heard the defendant’s evidence on that claim. The plaintiff claims that he did not use obscene and abusive language to the general overseer, that he did not refuse to do any work which he was requested to do, and that he did not report to the overseer because he had not been informed that he should do so and had no reason to believe that to be a part of his duty. It is admitted that the plaintiff was discharged, and, as some of the facts and circumstances surrounding the transaction are in dispute, it is for you to say, under the facts as you find them and the law as I give it to you, whether the discharge was lawful. If the plaintiff was guilty of conduct which would justify his discharge, it must be found in what he said to the overseer just before they went to the president’s office. If you find that he then refused to take any orders from the overseer, and that he used the language which it is claimed he used, such conduct would be a legal justification for his dismissal, providing that he knew at the time that Mr. Hegner was his superior officer from whom it was his duty to take orders and instructions and to whom he should report. In other words, his conduct, if it was as the defendant claims, was sufficient to justify his discharge, if it was wilful. ‘ Wilful ’ means intentional and wrongful. A wilful disobedience must be an intentional disobedience. It is something more than a conscious failure to obey. It involves a wrongful and perverse disposition, such as to render his conduct unreasonable and inconsistent with proper subordination. If Mr. Ernst knew that Mr. Hegner was his overseer, and that it was his duty to take orders from him and report to him, and, knowing these things, he refused to recognize Hegner’s authority and accompanied his refusal with profane and indecent language, such conduct would justify his discharge; and, if you so find, the plaintiff cannot recover in this action. If, on the other hand, the plaintiff’s conduct was not wilful, he was unlawfully discharged, and he can recover in this action. Every act of disobedience or insubordination will not constitute lawful reason for discharging an employe. As I said, the conduct must be wilful and it must be inconsistent with his duties to his employer.”

The court gave also defendant’s requests to charge 5 and 6, somewhat modified, as follows:

“ If you shall find from the evidence that after plaintiff entered defendant’s engraving department, Mr. Hegner was appointed general foreman of that department, and that plaintiff was subject to his reasonable directions, it was his duty to recognize Mr. Hegner’s authority as foreman. Plaintiff’s testimony shows that on the day of and just previous to his discharge he refused to recognize Mr. Hegner’s authority. If you so find, as before stated, that Mr. Hegner was plaintiff’s foreman, a wilful refusal on the part of the plaintiff to recognize Mr. Hegner as foreman would constitute such an insubordination as would justify the plaintiff’s discharge, and in that case your verdict will be for the defendant.
“If you shall find from the evidence that Mr. Hegner was the foreman of defendant’s engraving department in which the plaintiff was working at the time of his discharge, it was his duty to recognize Mr. Hegner’s authority as foreman; and if you shall further find that previous to his discharge plaintiff knew that Mr. Hegner was his foreman or overseer, and with such knowledge used the. language to Mr.' Hegner to which the latter testified, Í charge you that this would constitute such an insubordination as would justify plaintiff’s discharge. Therefore, if you shall find that Mr. Hegner was plaintiff’s foreman, and that the plaintiff knew it, and having such knowledge used to Mr. Hegner the language testified to by him, your verdict must be for the defendant.”

The trouble which resulted in plaintiff’s discharge appears to have arisen from an exaggerated idea on the part of plaintiff of his position upon the staff of defendant, and the zealous, and not entirely modest, notions of the foreman of the engraving department concerning the dignity of his position as foreman. Plaintiff was not ignorant of his rights. He kept a memorandum of whatever he did. And, when he was asked to go from defendant’s office to work for an outsider, he consulted his attorney before he would go. But the finale, the situation which culminated in the discharge of plaintiff, is told by both the plaintiff and the foreman. Sparing the reader the details, it in our opinion results in this: that whether the plaintiff was oversensitive, or whether the defendant’s foreman was overdignified, was upon the trial a question for the jury.

We are satisfied with the instructions which were given, and therefore affirm the judgment appealed from.

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


author: Bird, J.

text:
      In re KILBOURNE’S ESTATE.
    1. Estates of Decedents — Probate Courts — Appeal—Remanding Proceedings.
    On appeal from an order of the probate court denying a petition to compel the executor of an estate to render an account, the circuit court should enter the order, if proper, rather than remand the case to the probate court to proceed to hearing. 1 Comp. Laws, g 679, 5 How. Stat. (2d Ed.) § 12127. Ostrander and Kuhn, JJ., dissenting.
    2. Same — Executors and Administrators — Compromise.
    After compromising with the executor of an estate her interest as a beneficiary under the will, petitioner, in the absence of any fraud, could not require him to render an accounting as executor, in probate court, eight years subsequently; having parted with her interest in the estate by the terms of the settlement.
    8. Same — Accounting.
    The alleged failure of the executor to account to petitioner for one of the securities received by petitioner on the settlement and redelivered to him for collection, could not be tried in such proceeding: it was a personal issue between them, and did not concern the estate.
    Certiorari to Ingham; Collingwood, J.
    Submitted October 15, 1912.
    (Docket No. 75.)
    Decided December 17, 1912.

      Petition by Marie E. Stephenson to the Ingham probate court to require S. L. Kilbourne, executor of the estate of Cornelia W. Kilbourne, deceased, to render an accounting. The petition was dismissed. Petitioner appealed to the circuit court. An order setting aside the determination of the probate court and remanding the cause for further proceedings is reviewed by the executor on writ of certiorari.
    Reversed, and the order of the probate court reinstated.

      Bollin H. Person, for appellant.
    O. H. Beed, for appellee.
   Bird, J.

Cornelia W. Kilbourne departed this life in November, 1898, leaving a last will and testament in which she appointed her husband, Samuel L. Kilbourne, her executor. He accepted the trust and paid certain specific legacies in accordance with the terms of the will, hut the residue he refused to turn over to the residuary legatees, Marie E. Stephenson and Gertrude Higham, because of certain equities which he himself claimed to have in the fund. This gave rise to a controversy which continued until May, 1900, when the residuary legatees and the executor agreed upon a division of the fund. The amounts agreed upon were paid over to the residuary legatees by the executor, and their receipts were taken and filed in the probate court. Nothing further was done in the estate until February, 1908, when Marie E. Stephenson filed a petition in the probate court of Ingham county as residuary legatee, praying that the executor be required to file a complete inventory of the estate, a report of all moneys collected, and that he make a final accounting therein.

The executor filed an answer in which he set up the settlement with petitioner in the year 1900, and denied that she had any interest in the estate. The matter was heard before the probate court, and the prayer of the petitioner was denied on the ground that she had parted with all her interest in the estate. An appeal was taken to the circuit court where a hearing was again had upon the application, whereupon the trial court made the following order:

“ (1) Order of the probate court of Ingham county entered in said cause upon hearing in said probate court whereby petition of said Marie E. Stephenson was dismissed, be reversed, set aside, and held for naught.
> “ (2) Probate court of the county of Ingham is hereby directed to proceed to a hearing of the matter under the petition of the said Marie E. Stephenson.”

The executor then obtained from this court an allowance of a writ of certiorari to remove the proceedings to this court. His contention is that the order of the circuit court was irregular and unauthorized, and he asks that it be set aside for the reason that the circuit court had no power to send the case back to the probate court for retrial, that, when the appeal was taken, the probate court lost jurisdiction of the issue, and that it was then the duty of the circuit court to enter such judgment therein as was proper, and cites Daly's Appeal, 47 Mich. 443 (11 N. W. 262), in support thereof. The statute defining the jurisdiction of the circuit courts in appeals from probate courts is as follows:

“The circuit court may reverse or affirm, in whole or in part, the sentence or act appealed from and may make such order or decree thereon as the judge of probate ought to have made, and may remit the case to the probate court for further proceedings, or may take any other order therein, as law and justice shall require.” 1 Comp. Laws, § 679 (5 How. Stat. [2d Ed.] § 12127).

We are inclined to agree with counsel as to the second paragraph of the circuit court order.

But, if we treat this part of the order as having no force, we still have the first paragraph, which in plain terms reverses the order of the probate court. And that action was clearly within the trial court’s statutory authority. It follows, then, that the question is properly before us as to whether the circuit court was right in reversing the order of the probate court. The issue raised in the probate court on the petition and answer was whether the petitioner had any interest in the estate. The proofs show that the petitioner was one of two residuary legatees of the estate, and that, following the death of the testatrix, a question arose between them and the executor as to whether certain securities standing in the name of the deceased belonged to the estate or to him. The controversy was subsequently adjusted amicably between them, and the amounts agreed upon were paid over to them. The petitioner settled with the executor on the 7th day of May, 1900, for $1,400, receiving in payment thereof certain securities aggregating the sum of $1,474. Petitioner gave a receipt in full for her interest in the estate, and also gave a note for the excess of $74, which she afterwards paid. The settlement was not questioned from that time until petitioner started this proceeding in February, 1908. The evidence further shows that, when the settlement was made, the petitioner was attended by her husband and by her counsel; and there is no evidence that any fraud was practiced by the executor in making the settlement. She does not deny that she received the securities nor that they were for the amount agreed upon. She does complain, however, of a small mortgage which was among those assigned to her on the settlement, and which was after-wards redelivered to the executor for collection, and that he has not properly accounted for the same. This appears to be a matter outside of the matters of the estate, and one which concerns only the petitioner and the executor individually. Under the showing made, we are of the opinion that the probate court was right in holding that the petitioner had no interest in the estate.

It follows that the order of the circuit court will be reversed, and the order of the probate court affirmed.

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

Ostrander, J. Having reversed the order of the probate court, it was proper to remand and order an accounting. It would have been improper to order an executor’s account to be filed in the circuit court. I concur in reversing the order which was made and in affirming the order of the probate court.

Kuhn, J., concurred With Ostrander, J.


text:
    FREEMAN v SHAW.
    1. Appeal and Error — Briefs—Supreme Court Practice.
    Briefs of appellant and appellee in this court should contain a statement of the facts, distinct from argument, and should inform the court as to the issues of law and of fact as they arose upon the trial. Supreme Court Rule 40.
    2. Parent and Child — Assumpsit by Parent.
    On the trial of an action brought by the father for earnings of his infant son, who had died, the value of the boy’s services prima facie belonged to plaintiff, and in the absence of decedent’s testimony, and under conflicting evidence, the court could not determine that the son had been emancipated, as a matter of law.

    3. Same — Master and Servant — Evidence.
    The employer should have been permitted to show what relations existed between the minor and his father, whether he was denied a place at home, so as to be compelled to seek outside shelter, whether existing relations were such as to indicate that the father did not expect to be paid for the labor, and knew the surrounding circumstances; it was competent to cross-examine the parent to show that he was needy, and to inquire his reasons for not having demanded the infant’s wages.

      4. Same — Admissions.
    Admissions made by the father to others, tending to show what the arrangement with defendants had been, were admissible.
    5. Same — Payment—Infants.
    Where defendants made gifts, at various times, of clothing and small sums of money to the minor, whose parents had removed to another locality and made no provision for the boy, nor toot any interest in discovering what he needed, credit should have been allowed therefor, though one defendant testified that he gave them to deceased.
    Error to Kent; Cogger, J., presiding.
    Submitted October 15, 1912.
    (Docket No. 71.)
    Decided December 17, 1912.
    Assumpsit by William H. Freeman against Nelson A. Shaw and another for the value of services rendered by plaintiff’s minor son. Judgment for plaintiff. Defendants bring error.
    Reversed.

      T. B. Taylor and Chas. A. Watt, for appellants.

      Rodgers & Rodgers, for appellee.

       On the question of the parent’s right of action at common law for loss of services of minor child whose death is caused by negligence, see note in 18 L. R. A. (N. S.) 316..

   Ostrander, J.

In justice’s court plaintiff declared on the common counts and specially for work and labor of his minor son. His bill of particulars was:

“Personal work and labor of Claude Freeman, minor son of said plaintiff, from March 1,1910, to April 11,1911, 58 weeks at $4 per week, #232.”

On appeal from the judgment of the justice, the cause was tried with a jury. A verdict was returned for plaintiff for #182.50, upon which a judgment was entered.

The brief of appellants does not contain a clear and concise, or any considerable, statement of the facts of the case, distinct from argument, of the errors relied upon, the questions involved, and the manner in which they are raised. The court is not at all advised, in the statement furnished, about the issues it is called upon to determine. The brief for appellee treats the statement as presenting mainly the facts as appellants claim them to be, and thereupon a statement is made presenting that portion of the testimony favorable to appellee. Both statements utterly fail to inform the court concerning the issues of fact and of law raised upon the trial. It is needless to say that neither brief conforms to the requirements of Rule 40 of this court, and neither furnishes to the court the assistance which it is entitled to have.

In argument, appellants contend that the court should have directed a verdict in their favor, and the contention is based upon the proposition that the testimony conclusively establishes the fact that the son of plaintiff had been emancipated by his parents. Upon this subject, the son having died shortly after April 11, 1911, his testimony was not available.

We are of opinion that the court could not have properly determined the question as one of law. Prima facie the earnings of an infant son belong to the father. Reeder v. Moore, 95 Mich; 594 (55 N. W. 436). Testimony given by the plaintiff tended to prove that defendants promised the father to pay for the work of the boy, that no price or wage was agreed about, and no express promise to pay the father was made. The testimony of the mother is that defendants said they would pay the boy wages. The boy was in his sixteenth year. Neither parent ever asked that the wages be paid to them until after the death of the son, and neither appears to have inquired about how much money was paid to him or about the value of clothing which was furnished to him by defendants. Testimony was also introduced which tended to prove that the father, the plaintiff, understood that the boy was not hired and was not regularly employed by defendants; that his work was intermittent; and that he could depend upon receiving no mere than his board and a place in the barn to sleep. In this connection, it is proper to consider various errors assigned upon rulings admitting and rejecting testimony.

Appellants should have been permitted to show, and were not, the relations existing between the boy and his parents, and whether he was, in fact, denied a place at home and obliged to seek shelter and maintenance elsewhere; whether, in fact, the existing relations, including the one that the boy, to the knowledge of his father, received clothing and money from defendants, were such as to indicate that the father did not expect to be paid for his labor.

The weight of such testimony would, of course, be for the jury, and in determining its weight they should have had the aid of admissions of the father and his statements to others, if he made any, regarding the arrangement with defendants.

It was proper to discover from the father, upon cross-examination, whether during the period that the son was with defendants he was himself needy, and his reasons for not demanding the wages of his son. Upon this record, it seems very doubtful that, whatever the boy may have earned, any one understood the father claimed, or would claim his wages.

Considering the age of the boy and testimony of his previous earnings and the disposition made of them in connection with the prima facie right of the parent to whatever he earned, it cannot be said there was no testimony to support a verdict for the plaintiff. But appellants were too strictly limited in cross-examination.

Error is assigned upon remarks made in argument by the attorney for appellee. No ruling was asked for, or was made, upon the exceptions which were taken, and no request to charge upon the subject was preferred. The court, without criticising counsel, made reference to the arguments in the charge, advising the jury that the case should be decided according to the evidence. As the judgment must be reversed, it is proper to say that the remarks of counsel for appellee were prejudicial, calculated to obscure the issues submitted to the jury, and, if properly objected to and ruled upon adversely to appellants, the ruling would have constituted reversible error. The charge of the court was a fair one, and was especially clear in presenting the issues and applicable law and happy in the language employed. It is open to one criticism which is made by counsel, and that relates to the subject of the proper allowances to be made to defendants if the jury found the boy had not been emancipated. The court permitted the jury to credit defendants with the value of necessaries furnished by them to the boy as they found the facts to be. Upon the subject of money given to the boy by defendants, the court said:

“Now, there is a claim here that they gave the boy some money, didn’t keep any record of it, didn’t charge it to them, didn’t keep track of it, gave him .five cents, ten cents, or some other sum. Now, gentlemen, if they gave it to him, made him a present of it, they would not be entitled to receive any credit for it because it would not apply upon his wages.”

Nothing more was said upon the subject. If, with the knowledge and consent of the father, defendants gave the boy small sums of money from time to time, without objection, no good reason is perceived for refusing them credit therefor. It is true, of course, as a general proposition, that, if the lad had not been emancipated, his father, and not he, would have the right to control the disposition of his wages, because they belonged to the father. It is also true that one of the defendants testified that whatever money and clothes he gave the boy were gifts, not pay. He also testified that defendants did not hire the boy, and under the charge of the court the jury may have found this to be the fact and found an implied undertaking to pay wages. Counsel for plaintiff conceded that an allowance ought to be made for clothing, and while it may not be generally true that money, as such, is a necessary, still, if the father knew of the furnishing of money, or knew that circumstances were such that some money must be furnished, made no provision himself, and no objection to the provision made by defendants, they should be allowed (of course, upon evidence) for reasonable money provision. We find no testimony in the record tending to prove that this plaintiff, father, who had removed himself and wife to another locality, made, or interested himself in discovering the necessity for making, any provision whatever for his son, whose wages he now claims.

The judgment is reversed, and a new trial ordered.

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


text:
    CAWTHORPE v. CLARK.
    1. Bills and Notes — Burden.of Proof —Prima Facie Case-Consideration — Presumption.
    Negotiable notes import consideration, and plaintiff, whose declaration sets out' copies of the notes sued upon and offered in evidence, is, in the absence of any defense, entitled to judgment.
    2. Same — Defenses Between Original Parties.
    In an action between the original parties to notes that were never negotiated, it was competent for the defendant to show want of consideration: the burden of proving consideration remaining on plaintiff upon the whole case.
    3. Same — Estates of Decedents — Novation — Negotiable Instruments.
    Notes of defendant given in .payment of accrued interest on a debt owed by defendant’s deceased husband, the amount of the notes being indorsed on the instrument evidencing the indebtedness, were supported by consideration: the discharge of decedent’s indebtedness pro tanto was a sufficient consideration ; the fact that the debtor was not living did not change the relations of the parties.
    Error to Calhoun; North, J.
    Submitted October 18. 1912.
    (Docket No. 154.)
    Decided December 17, 1912.

      Assumpsit by Ellis Oawthorpe, executrix of the estate of Harriet C. Howell, deceased, against Caroline H. Clark upon three promissory notes. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Edward B. Loud, for appellant.

      Charles B. Wilkes, for appellee.
   Ostrander, J.

Being requested so to do, the trial court on April 24, 1912, made findings of fact and law. The defendant on June 4, 1912, filed exceptions in the following form:

“ This court having made and filed his findings of fact and law in this case, now comes the said defendant, Caroline Clark, by Edward R. Loud, her attorney, and excepts thereto, as follows: (1) The said defendant excepts to the decision of the court in allowing the said plaintiff to recover on the two disputed notes in question, and, (2) the said defendant excepts to the findings and conclusions of law of this court in this cause.”

We find no errors otherwise assigned, although the certificate of the trial judge recites that “the annexed assignments of error ” were before the court when the bill of exceptions was presented and signed. No proceedings appear to have been taken by appellant pursuant to Circuit Court Rule 26, except to allege exceptions, as above set forth. This rule provides that the findings of facts shall be treated as special verdicts—

“And error may be alleged that the same does not support the judgment, as on a special verdict; but no ruling of law embodied in such finding can be reviewed except on exceptions, or on a case made as provided by statute.”

Assuming the exceptions to be sufficient, the question presented is whether the facts found support the judgment.

The notes sued upon, being negotiable in form, import consideration, and, in the absence of other evidence, copies of them having been set out in the declaration, plaintiff would be entitled to a judgment.

The action being between the original parties to the notes, and the notes never having been negotiated, it was competent for defendant to introduce testimony to prove want of consideration; the burden being upon plaintiff upon the whole case to prove consideration. Manistee Nat. Bank v. Seymour, 64 Mich. 59 (31 N. W. 140); Taylor v. Taylor’s Estate, 138 Mich. 658 (101 N. W. 832).

The facts supposed to show want of consideration are not disputed. Plaintiff’s decedent held the promissory notes of defendant’s husband. After the death of her husband, intestate, defendant gave the notes in suit to pay accrued interest upon her husband’s said notes. Plaintiff’s decedent accepted the notes in suit in payment of such accrued interest and indorsed the amount thereof upon said notes. The estate of defendant’s deceased husband has never been administered. Whether defendant’s husband had an estate of value and defendant a valuable interest therein, whether forbearance was sought by defendant and was secured, are facts not made to appear.

There is no evidence of reciprocal promises, and in the facts stated there is none of any benefit or advantage moving from plaintiff’s decedent to defendant. There is the presumption, already referred to, and the fact that the notes in suit were tendered and received in payment of the debt of a third person, which debt was, to the amount of the notes in suit, discharged. We regard the fact that the third party debtor was deceased when defendant’s notes were given as immaterial. There was an act of plaintiff’s decedent, the altering of an existing right, presumptively the release or relinquishment of a remedy based upon defendant’s promises. This is a sufficient consideration for the promises.

The judgment is affirmed.

Moore, C. J., and Steers, McAlvay, Brooke, Kuhn, Stone, and Bird, JJ., concurred.


text:
    WOOD v. ROOKS.
    1. Appeal and Error — Findings op Fact and Law — Trial.
    Findings of fact made by the trial judge without the aid of a jury are regarded on error as special verdicts which, if supported by any evidence, are conclusive; but appellant may review the case on the contention that there is no testimony to sustain them.
    2. Sales — 'Contracts—Rescission—Waiver.
    Where defendant executed an order in duplicate for a set of books, and caused to be inserted on the part retained by him a condition that the books should be delivered in nine months, also, after the expiration of that time, ordering other books from plaintiff and signing an agreement to pay installments upon both orders, he could not rescind for failure upon plaintiff’s part to deliver the set within the nine months.
    8. Same — Breach—Waiver.
    He waived any failure of performance, so as to lose his right to rescind, by accepting and retaining a part of the first order after the time limited by the duplicate contract.
    Error to Kent; Brown, J.
    Submitted October 16, 1912.
    (Docket No. 98.)
    Decided December 17, 1912.
    Assumpsit in justice’s court by William O. Wood and another against John J. Rooks for the price of books sold to defendant. From a judgment for plaintiffs for less than their claim, the plaintiffs appealed to circuit court. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Adsit & Danhof, for appellant.

      George G. Brown, for appellees.
   Ostrander, J.

In justice’s court plaintiffs declared orally upon the “common counts in assumpsit specially for goods sold and delivered and specially on two contracts for purchase of two sets of books,” and defendant pleaded the general issue with notice that he would show in his defense the following facts: questions of the practice of surgery. That he has paid on said books the sum of $32, and he hereby claims the right to have said money returned to him by reason of the nonperformance of said contract by said plaintiffs or by applying the same, or as much thereof as may be necessary, on plaintiffs’ demand, if any, and that the balance, if any, be certified in defendant’s favor. Said defendant will further show: That on or about July 16, 1908, he gave an order to said plaintiffs’ agent for another set of books entitled ' Reference Hand Book of the Medical Sciences.’ That by the terms of said order he was to pay for the same at the rate of $2.50 every two months until the purchase price of same was paid in full. That he has received said set of books and has made his payments on same as they fell due, and that at the time of the commencement of the said suit no installments on said books were due.”

“Said plaintiffs’ authorized agent on or about February 6, 1907, called on said defendant at his office in the city of Grand Rapids, in said county, and solicited him to subscribe for a set of medical books entitled ‘ The American Practice of Surgery.’ That said agent stated to him that said books would all be published and delivered within nine (9) months thereafter. That defendant told said agent that said books would be out of date and antiquated in authority upon the practice of surgery unless said books were published and delivered within said nine (9) months or thereabouts. That said agent told him that if he did subscribe for said set of books that they (the books) would be published and delivered to him within nine (9) months thereafter. That said defendant then told him that, if he would write in the said order which he presented to him the words * with the understanding that they would be ready in nine months,’ then he would give said plaintiff an order or subscribe for the same. That said agent asked him then to sign the order and at the same time gave to him a duplicate of said order which he was about to sign, and which said duplicate contained the words ‘ with the understanding that they would be ready in nine months.’ That said defendant, relying on the statements and representations of said agent, and also upon the duplicate which the said agent delivered then and there, he (the defendant) signed the same. Said defendant will further show that said statements of said agent were false and untrue. And also this defendant is informed now the order which he did sign and which was sent in by said agent to the plaintiffs did not contain the words * with the understanding that they will be ready in nine months.’ Defendant will further show: That four of the eight volumes in said set he has received. That some time last spring he was notified of the arrival of the fifth volume of said set, but he refused to receive and accept same or the remaining volumes of said set for the reason that said books did not comply with the terms of said order, namely, that the said entire set was not published and delivered to him within said nine months as said order was given. And for the further reason that said set of books are now antiquated and obsolete upon

The printed record gives no further information about the pleadings. Upon an appeal to the circuit court the issue was tried by the court without a jury and the court found the facts and stated conclusions of law as follows:

“Facts.
“(1) Plaintiffs are publishers of medical works in New York City, and on July 5, 1907, one of their solicitors received from defendant, residing in Grand Rapids, a subscription for an eight-volume set of ‘American Practice of Surgery,’ at $8 per volume, to be thereafter published and delivered as each volume was published, payable ‘$5 every 60 days from date of shipment.’ The subscription was on one of plaintiffs’ regular subscription blanks, and the terms of the subscription made a full and complete contract between the parties.
“ (2) Under this subscription, the first four volumes were shipped to defendant as published, and received by him; the fourth volume being received some time in 1908. Defendant paid for these four volumes; the last $17 being paid in three payments between November 25, 1907, and June 8, 1908, and the four volumes were in possession of defendant when suit was commenced.
“(3) On July 16, 1808, through another solicitor of theirs plaintiffs received from defendant a subscription for an eight-volume set of ‘ Reference Hand Book of Medical Sciences ’ at $8 per volume, to be shipped at once. This set was in possession of defendant when this suit was commenced. This subscription was likewise on plaintiffs’ regular subscription blank and its terms made a full and complete contract between the parties.
“ (4) The terms of payment were stated on the back of the subscription, and were as follows:
“ ‘You are to charge this to account and I am to pay full bill as at present ($5.00) every two months, which includes “A. P. S.” and “R. H. B.”
“ ‘ J. J. Rooks.”
“The initials “A. P. S.” and “R. H. B.” meant respectively, ‘American Practice of Surgery’ and ‘Reference Hand Book of Medical Sciences,’ contracted for in the two subscriptions.
“(5) January 18, 1909, plaintiffs notified defendant that volume 5 of ‘ American Practice of Surgery ’ had been published and was about to be sent or had already been sent to him. January 20, 1909, defendant replied that he would neither accept the volume nor pay for any more of them. I find that plaintiffs had shipped this volume to defendant before he rescinded the contract for the ‘ American Practice of Surgery.’
‘ ‘ (6) The only payments made by defendant to plaintiffs after June 5, 1908, were two of $5 each, made October 8, 1908, and December 8, 1909, under the terms of the contract of July 16, 1908. After rescinding the contract for the ‘American Practice of Surgery,’ defendant refused to make any further payments.
“(7) "When this action was commenced in justice’s court of Grand Rapids on October 5, 1909, $25 was due and unpaid under the terms of the contract of July 16, 1908.
“Law.
“ (1) I find the declaration in the case is broad enough to permit recovery, under the facts shown in this case.
“ (2) I find that the contract of July 16, 1908, fixed the terms of payment for both sets of books in single, deferred, partial payments, and to that extent merged the contract of February 5, 1907, and made the contract of July 16, 1908, the only contract in existence as to the payments for both sets of books.
“(3) I find that the terms of payment stated in the contract of July 16, 1908, made that contract a single indivisible contract for the payment for both sets of books, of which there could not be a partial renunciation so as to prevent plaintiffs from recovering under the pleadings in this case for the payments due and unpaid at the commencement of this suit.
“ (4) I find that the defendant is liable in this action for the payments due for both sets of books under the contract of July 16, 1908, as though he had not refused to receive a portion of one set.
“ (5) I find that there having been no attempted rescission or breach of the contract of July 16, 1908, before all volumes of ‘American Practice of Surgery’ then published had been shipped to defendant, and defendant having received all volumes of the ‘ Reference Hand Book of Medical Sciences,’ plaintiffs are entitled to recover in this action strictly according to the terms of payment of the contract of July 16, 1908.
“(6) I find therefore that plaintiffs are entitled to a judgment for $25 and interest thereon at 5 per cent, from the commencement of this suit to the date of judgment.”

In the findings of facts, “July 5, 1907,” should read “February 5, 1907.”

Exceptions were filed to the facts found as stated in the first, fifth, and seventh paragraphs of the findings, as not based upon the testimony, and to all conclusions of law, as not sustained by “the evidence in said cause, not based upon it and not warranted thereby.”

The errors assigned follow closely the exceptions which were taken, and in the brief for appellant those discussed are:

“(1) The court’s finding of fact that plaintiffs’ Exhibit A constituted the entire contract between the parties independent of the duplicate, defendant’s Exhibit 1.
“ (2) That volume 5 had been shipped by plaintiffs before defendant rescinded the contract.
“(3) That there was due and unpaid on the contracts the sum of $27.86 when suit was commenced October 5, 1909.
“ (4) In finding that defendant had not rescinded the contract of February 5, 1907, before the fifth volume had been shipped by plaintiffs.
“ (5) In finding that the declaration was sufficient under the proofs to permit recovery or support a judgment.”

Of these, the fourth is but a repetition of the second, and only the fifth presents a distinct question of law.

In cases like this, the findings of fact are regarded as special verdicts, and, if there is testimony to support them, are conclusive in this court. If it is claimed there is no testimony tending to sustain them, or any of them, this court will examine the testimony if it, or the substance of it, is returned. Before doing so in this case, it is well to understand what the real contention of appellant is. It is a narrow one and is based upon a supposed rescission in January, 1909, of the contract, or subscription, of February 5, 1907. The ground of the attempted rescission was that the order was given upon a condition which was written at defendant’s request, in an alleged duplicate of the said order given to defendant by the agent who made the sale, as follows: “ With the understanding that they will be ready in nine months,” which condition had been violated by plaintiffs. No such condition appeared in the original of the order signed by defendant and sent to and accepted by plaintiffs. When the second order was taken, in July, 1908, three volumes of the work first subscribed for had been received by defendant, a fourth was received later, and a fifth he declined to receive from the express company. In July, 1908, when defendant gave the second, order for books, the period mentioned in the condition relied upon had long expired. Besides this, both the original order for the books and the duplicate left with defendant contained the following:

“This Order is not subject to Countermand. Read This Before Signing. No mental reservation can be allowed and no agreement, verbal or otherwise, made with agent by which the terms and dates, as herein found are in any way changed or modified, is valid unless terms of said agreement are written on face or back of this contract.”

And, also:

“ Subscriber should retain exact copy of contract.”

In form the order of subscription is addressed to plaintiffs and begins, “You are hereby requested to enter my name upon your books as a subscriber for;” the particular work being named.

The facts stated in the second, third, fourth, and sixth findings are not questioned. There is testimony tending to support the fifth finding, and the seventh is merely the result of a calculation, itself sustained by testimony.

It is appellant’s theory that the duplicate order and original thereof given in February, 1907, together constitute the contract then made, and, even if the original alone evidenced the contract, it was void on account of the fraud of plaintiffs’ agent. In either event, he was entitled to rescind that contract. Rescinding it, he had the right to tender back the books and apply payments made on that contract upon the second contract, and, if such application was made, he owed nothing when suit was begun. If not entitled to rescind the first contract, he had at least renounced it — refused to proceed with it — and, it being executory, plaintiffs can recover only, upon a special count, for breach of the contract.

If defendant was not entitled to rescind, the recovery was for a sum due and owing upon a contract to that extent executed by plaintiffs, leaving nothing to be performed by defendant except to pay a sum of money agreed to be paid. The facts do not bring the case within the rule applied in Wigent v. Marrs, 130 Mich. 609 (90 N. W. 423); International Textbook Co. v. Schulte, 151 Mich. 149 (114 N. W. 1031). It is therefore apparent that unless defendant had the right to rescind and did rescind the contract or order of February 5, 1907, the conclusions of law are supported by the facts found, and the judgment must stand. This is so whether we treat the matter ending the first paragraph of the findings of fact as a statement of law or of fact.

Defendant was not entitled to rescind. Treating the condition relied upon as binding and made for his benefit, he waived performance of it: First, by accepting and paying for volumes of the work long after the period of time stated in the condition had elapsed; second, by the new arrangement as to his payments contained in the contract of July, 1908, an arrangement for making payments upon both sets of books.

We find no error, and the judgment is therefore affirmed.

Moore, C. J., and Steere, Me Ad vat, Brooke, Kuhn, Stone, and Bird, JJ., concurred.


author: Stone, J.

text:
    JOHNSON v. E. C. CLARK MOTOR CO.
    1. Master and Servant — Negligence—Personal Injuries.
    Plaintiff was in the employ of a corporation with which defendant company had contract relations for the manufacture and sale of motors, and was sent by his employer to defendant’s factory to assist in the inspection and testing of goods that defendant was engaged under contract in manufacturing for his employer. While doing his work of testing a motor, he found it necessary or convenient to put his hand through the pulley, by means of which power was transmitted to the machine, and was injured by the unanticipated starting of the machine by a servant of defendant, with whom plaintiff was working, and who knew plaintiff was in a dangerous situation if the machine should start, but forgot the fact for an instant. Held, that the servant of defendant was not free from negligence, as matter of law, and was not plaintiff’s fellow-servant.
    2. Same — Fellow-Servant.
    Servants of separate masters, although engaged in a common undertaking, are not fellow-servants. To constitute that relation servants must be in the employ or under the control of a common master.
    3. Same — 'Volunteer—Fellow-Servant.
    One who, having no interest in the work, voluntarily assists the servant of another, cannot recover from the master because of injuries done by the servant, since he cannot obtain greater rights than a hired employé.

    4. Same.
    But such volunteer is to be distinguished from one assisting the servants of another for the purpose of expediting his own business or that of his master: if he is injured under such circumstances he is entitled to recover for negligence.
    5. Same — Contributory Negligence.
    The objection that plaintiff was guilty of contributory negligence because he selected a dangerous instead of a safer manner of doing his work was erroneously sustained by the trial court: the way was safe, if defendant’s servant had not negligently started the motor, and plaintiff was not bound to anticipate his wrongful act.
    6. Same — Evidence—Bes Gestas.
    What was said and done by plaintiff and his fellow workmen immediately before and at the time of the injury was competent : also testimony relating to the practice in carrying on the work.
    Error to Jackson; Parkinson, J.
    Submitted October 17, 1913.
    (Docket No. 144.)
    Decided December 17, 1913.
    Case by Prank M. Johnson against the E. O. Clark Motor Company for personal injuries. A judgment for defendant upon a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Price & Whiting, for appellant.

      Wilson & Cobb, for appellee.

      As to who is a volunteer, and liability for injuries to, see note in 16 L. R. A. 861, and on the latter question see also notes in 13 L. R. A. (N. S.) 561, and 16 L. R. A. (N. S.) 963.
      As to liability of master for injury to an emergency assistant, see note in 40 L. R. A. (N. S.) 1180.

   Stone, J.

This is an action on the case brought to recover damages resulting from an injury in which the plaintiff lost his right hand and forearm on March 2, 1908. The defendant operated shops in the city of Jackson, where it manufactured gasoline motors.

The Jackson Automobile Company, another manufacturing company of the same city, had an arrangement with the defendant, whereby it purchased the motors of defendant, which were tested and inspected at the shops of the defendant before they were accepted by the Jackson Automobile Company. The work of inspection was done in a room of defendant, called the testing room, which was off by itself on the ground floor at the back end of the main building of the defendant. The defendant had a man named Crankshaw in its employ, who was present in this room to exhibit the motors and represent it at the tests; and the plaintiff was there in the employment of and representing the Jackson Automobile Company to see that the motors were up to a certain standard before they were accepted by the latter company. The defendant manufactured two different styles of motors, one of which was known as model “E,” and the plaintiff was injured while getting ready to apply the belt test to a motor of this model.

The plaintiff was instructed by his employer, the Jackson Automobile Company, to go to the defendant’s factory and see that the motors were tested, and that they came out right, to avoid trouble after the motors came to the Jackson Automobile Company. He was instructed by his employer to have each motor “pulled under a load,” and to that end the testing room aforesaid was furnished with a dynamo and electrical fixtures, so that the motor could be run under a load, in order to develop and correct any imperfections and determine its horse power. The method of operation was substantially as follows: The motor was set upon a stand on the floor of the testing room, and a belt run from the pulley on the transmission shaft of the motor to the line shaft; and the belt from this line shaft in turn drove the dynamo and generated the electricity, which, by the aid of electrical instruments, determined the horse power. In other words, the gasoline motor or engine drove the line shaft, the latter in turn drove the dynamo, and the dynamo operated the electrical instruments which determined the horse power.

The motors were assembled in another part of defendant’s factory, and were then brought into the testing room. Plaintiff’s inspection commenced as soon as they were brought into the testing room, and the motors would be on the stand from five to eight or ten hours before they would be passed. The plaintiff, in the course of examining and testing these machines, would go all over them and do whatever came in his way to do, or was necessary, in order to satisfy himself that the machines were in perfect working order. The plaintiff and defendant’s representative worked together a great deal of the time, and if any trouble or peculiar noise was detected sometimes one would locate it and sometimes the other, when the proper steps were taken to remedy it. In manipulating the motors or machines the plaintiff “ did whatever suited his fancy,” and this was done sometimes after defendant’s representative had got through with them; and sometimes he would call attention to something that had been developed in running a motor “ before the motor run 30 minutes.” If a pulley was'loose and required tightening, or if the belt was to be put on in the course of examining the machines, sometimes plaintiff would do it, and sometimes the defendant’s representative would do it. It was customary for either one to do it, just as it happened to be convenient. The last thing to be done in testing these motors was to take what was called the dynamo test, or belt test, by which the horse power was determined. For the purpose of making this belt test, a pulley was placed upon the transmission shaft of the motor, from which a belt was run to the main shaft, as explained before. This pulley was used for no other purpose.

The plaintiff and Crankshaw had been working at this business for about three months before the injury complained of. On the day in question the motor had been upon the stand undergoing inspection and examination during the forenoon, and when the noon recess came there was practically nothing left to be done but to take the belt test. When plaintiff returned to the shop after the noon recess, he went “over to where the motor was to proceed with the test. The motor was not then running, was still, and Crankshaw, who was to take part in the test, was standing by it. When plaintiff got to the motor, he found that the pulley upon the transmission shaft of the motor to which they would have to apply the belt, in order to make the test, was loose. He wiggled the pulley, and as Crankshaw saw him doing this, and saw that it was loose, he said to plaintiff, “ Ain’t that d-d thing ready yet?” To which plaintiff replied: “No; there is no key in it. I will fix it.” Plaintiff then reached and picked up the key, which was on a little shelf next to him, and inserted it into the shaft, pushed the pulley, and started to screw up the follower with a wrench. The follower bound a little, as was often the case with new motors, which made it necessary to engage the transmission shaft, so as to hold it while the follower was turned up. This was done by operating what was called “the gear-shifting rod,” and in order to do this it was necessary to push hard on the rod. The plaintiff testified that the only way that he could do that was to put his hand through the pulley, so as to get a direct push on the rod. He further testified that this was the ordinary and most convenient way of doing this. Just before the plaintiff came over to the motor, Crankshaw had been running it, and had detected a rattling in a valve, and, stopping the motor, he had remedied the rattling, which was a matter of minor importance, and was adjusted by turning a little set screw.

In order to start the motor, it was usually necessary to crank it, the same as an automobile; but sometimes it would start under its own compression, when the electric switch or button was turned. This button was on the wall about midway of the motor, and near where Crankshaw stood, so that all he had to do to turn this button was to reach up and touch it.

After having the conversation with plaintiff above related, and while the plaintiff was bent over tightening the pulley, and had his right hand through the spokes of the pulley to push the shifting rod, Crankshaw reached up, turned the switch, set the pulley in motion, and so injured the plaintiff’s right arm that it had to be amputated.

The pulley revolved rapidly; would start off at from 500 to 2,000 revolutions a minute. Crankshaw testified that plaintiff in putting his hand through the spokes was acting in the customary and convenient way, and in the way which he had done himself, and had seen others do it. He did not know and could not tell why he had turned the switch and started the machine, and testified that he would not have thrown the switch had he thought of plaintiff’s position; that he forgot for the instant plaintiff’s position, though he knew that plaintiff was at the pulley. As soon as Crankshaw had thrown the switch and set the machine in motion, he realized what he had done, and immediately threw the switch back and stopped the machine ; but it was too late to save plaintiff’s hand. Had he not set the machine in motion, it was perfectly safe for the plaintiff to put his arm through the pulley and push the shifting rod as he did.

The foregoing statement of facts was somewhat modified by the plaintiff and Crankshaw (the only witnesses sworn) on cross-examination, and we have stated the case in the light most favorable to the plaintiff, as warranted by the evidence.

At the close of the plaintiff’s case, defendant’s counsel moved the court to direct a verdict for the defendant upon the following grounds:

(1) That no negligence of the defendant had been shown.

(2) That the plaintiff was guilty of contributory negligence.

The motion was granted, and a verdict for the defendant was directed by the court upon both grounds stated, and a judgment for the defendant was entered. The plaintiff has brought the case here for review, and many errors are assigned. The twenty-seventh assignment of error is to the effect that the court erred in directing a verdict for the defendant, for the reason that under the evidence in the case the question of the defendant’s negligence, as well as the question of plaintiff’s contributory negligence, were questions which should have been submitted to the jury. This assignment of error raises the meritorious questions in the case.

Was there evidence of defendant’s negligence ? This question involves another: Were the plaintiff and Crankshaw fellow-servants ?

The trial court charged the jury that if Crankshaw was guilty of negligence the defendant would be responsible for his negligence. We cannot agree with the trial court that, as matter of law, Crankshaw was not guilty of negligence. Whether he failed to exercise such care, prudence, and forethought as duty required to be given or exercised under the circumstances was, at least, a question for the jury. The negligence of Crankshaw, if any, must, under the evidence, be imputed to the defendant, unless the plaintiff and Crankshaw were fellow-servants, or unless the plaintiff was a mere volunteer.

The undisputed evidence shows that the plaintiff was in a distinct and separate employment from that of Crankshaw, and they were in no sense under a common master, or subject to the same control. Kastl v. Railroad Co., 114 Mich. 53 (72 N. W. 28).

In 26 Cyc., at page 1284, the rule is stated as follows:

“Servants of separate masters, although engaged in a common undertaking, are not fellow-servants. To constitute that relation servants- must be in the employ, or under the control of, a common master ”— citing many cases, English and American.

In 2 Thompson on Negligence, at page 1040, that author sayB:

“Nearly all the definitions of fellow-servants given in the books make it essential to the relation that they should be servants of the same master ” — citing McAndrews v. Burns, 39 N. J. Law, 119, where it was said, “ They are not fellow-servants unless they are all under the direction and control of a common master,” also citing Shearman & Redfield on Negligence, § 116, and other cases.

Because they were not subject to the control of the common master, the plaintiff was not in any sense a fellow-servant of defendant’s employe. Wagner v. Railway Co., 188 Mass. 437 (74 N. E. 919), citing Morgan v. Smith, 159 Mass. 570 (35 N. E. 101); Reagan v. Casey, 160 Mass. 374 (36 N. E. 58); Delory v. Blodgett, 185 Mass. 126 (69 N. E. 1078, 64 L. R. A. 114, 102 Am. St. Rep. 328).

Instances may be found where one servant may become, pro hac vice, the servant of another master, so that the servants of the latter will be his fellow-servants. The following cases illustrate this rule:

In Laporte v. Railroad Co., 209 Pa. 469 (58 Atl. 860), plaintiff was employed by a coke company to shift cars on a side track of the company; such cars being placed thereon by defendant railroad company, which every morning placed cars on the tracks. Plaintiff’s duty was to shift the cars on a side track in front of the ovens of the coke company. On the morning of the accident the cars were delivered on one of the side tracks, and plaintiff was advised by the freight conductor that no more cars were coming on such track. The switch had negligently been left open on the track on which plaintiff was working, and cars intended for another side track ran through the switch and injured plaintiff. Held that, under the act of April 4, 1868 (P. L. 58), the railroad crew and car shifters were coemployés while working in the yard together, and plaintiff could not recover. This case seems to turn upon the provisions of the statute, which are in substance:

“When any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company * * * of which company such person is not an employe, the right of action to recover in all such cases against the company shall be such only as would exist if such person were an employé.”

See Davis v. Button, 78 Cal. 247 (18 Pac. 183).

In Quinn v. Refining Co., 102 App. Div. (N. Y.) 47 (92 N. Y. Supp. 95), plaintiff was employed, at the time of his injury, by a lighterage company transporting sugar to a dock of defendant sugar refining company, and in such work a winch belonging to the refining company, operated by steam and an engineer furnished by it, was used by the lighterage company, which paid the refining company an agreed price per hour for such use. Plaintiff was injured by the negligence of such engineer. Held that, though the refining company was in a measure interested in the work, the engineer, under such circumstances, was plaintiff’s fellow-servant, for whose negligence the refining company was not liable. The doctrine of the case seems to be that where there is unity of service and control in any particular employment, even though one of the servants is in the general employ of another, the law is well established that they are to be treated as coservants as to the particular employment in which they are at the moment engaged, citing Wyllie v. Palmer, 137 N. Y. 248-258 (33 N. E. 381, 19 L. R. A. 285), Higgins v. Telegraph Co., 156 N. Y. 75-78 (50 N. E. 500, 66 Am. St. Rep. 537), and Longa v. Elevator Co., 69 N. J. Law, 31 (54 Atl. 251).

In this last case the servant of Whan, while in a safe place and free from danger' in doing his master’s work, at the request of the engineer of the elevator company, which was engaged in an independent employment over which Whan had no control, attempted to loosen the elevator which had stuck fast, and while doing so was killed. Held, that the elevator company was not liable; that if the engineer had authority to employ the decedent they were fellow-servants; if he had no such authority the decedent was a mere volunteer. This case seems to have been disposed of upon the question as to whether the engineer of the elevator company had authority to employ the decedent to assist him in loosing the elevator; and it was said that, if he had such authority, then decedent was a fellow-servant of the engineer, and the plaintiff could not recover. And if the engineer had no such authority from his employer, then the decedent was a mere volunteer, and the company was without liability. We are of opinion that the plaintiff and Crankshaw were not fellow-servants.

Was the plaintiff a mere volunteer ?

It is earnestly urged by defendant’s counsel that the plaintiff was a mere volunteer in the particular work in which he was engaged when injured, and therefore cannot recover. The general rule is well stated in 26 Cye., at page 1287, as follows :

“ One who, having no interest in the work, voluntarily assists the servant of another, cannot recover from the master for an injury caused by the negligence or misconduct of such servant, since he can impose no greater duty on the master than a hired servant.”

The same rule is stated in 2 Thompson on Negligence, at page 1045, but that author adds:

“ Care must be taken, however, to distinguish the case of a mere volunteer from that of one assisting the servants of another, at their request, for the purpose of expediting his own business or that of his master. In such a case, he will not stand in the relation of fellow-servant to them; if he is injured by their negligence, the doctrine of respondeat superior will apply, and their master will be responsible. It is obvious that the real difficulty in these cases will be to determine, on the facts, whether the person injured was a mere volunteer, or acting in the furtherance of his own or his master’s business.”

The author cites and quotes from the leading English cases of Holmes v. Railway Co., L. R. 4 Exch. 254, affirmed in Exchequer Chamber, L. R. 6 Exch. 123; Wright v. Railway Co., 1 Q. B. Div. 252.

The former of these cases was said, by Lord Coleridge, C. J., in the latter case, to be one of the greatest authority, because in the Exchequer Chamber seven judges affirmed the decision, for the reasons given by the judges in the Court of Exchequer.

In Bonner v. Bryant, 79 Tex. 540 (15 S. W. 491, 23 Am. St. Rep. 361), the ease of Eason v. Railway Co., 65 Tex. 577, was adhered to, which was to the effect that where one having no interest in the loading of a car, or in the carriage or delivery of passengers or freight, volunteers to assist in reference to such matters, and while thus engaged is injured, he stands in the same position as a regular employe engaged in the particular service, so far as the right of recovery for his injuries is concerned; but the case is different where the injured party was acting at the time in furtherance of his own or his master’s business. In the principal case 2 Thompson on Negligence, p. 1045, is cited.

In Eason v. Railway Co., supra, the following language is used:

“ Thus, when the owner of freight transported by a railway company was allowed to assist in its delivery, and, in so doing, was injured through the carelessness of the company’s servants, it was held that he could recover damages of the company” — citing Holmes v. Railway Co., L. R. 4 Exch. 254; Wright v. Railway Co., 1 Q. B. Div. 252. * * *
“ The principle upon which a recovery is allowed is this: The injured person is not a volunteer, but engaged at the request or with the permission of the railway’s agent in a transaction of interest as well to himself or his master as to the railroad company, and this entitles him to the same protection against the negligence of the company’s servants as if he were at the time attending to his own private affairs. Though performing a service beneficial to both, he is doing so in his own behalf, and not as a servant of the company. Their request or acquiescence gives him the right to perform the service; the fact that he acts in his own behalf, however beneficial his labor may be to the company, gives him the right to be protected against the negligence of the company’s servants.”

In Street Railway Co. v. Bolton, 43 Ohio St. 224 (1 N. E. 333), the plaintiff was a passenger on defendant’s street railroad on a car northward bound. The railway was a single track, with occasional side tracks for the passage of cars moving in the opposite direction. The north-bound car having been drawn beyond the side track, where it was to have met the south-bound car, it became necessary to push it back to the side track, so that the cars could pass and each proceed to its destination. At the request of the driver of the north-bound car, the plaintiff assisted him in pushing the car back to the side track. While so engaged, without fault on his part, he was injured by the carelessness of defendant’s driver on the south-bound car. It was held that the plaintiff did not engage in the service of defendant as a mere volunteer, but that, under the circumstances, the plaintiff could not be considered as a fellow-servant with the driver of the south-bound car; and the doctrine of respondeat superior applies. The court says:

“But it does not follow that under all the circumstances, a person who assists the servants of another in the discharge of their duties, without employment by the master, is to be regarded as voluntarily assuming the relation of a fellow-servant, or the risks pertaining to that relation. To illustrate: Suppose a servant, in driving his master’s team on the highway, founders in such a manner as to prevent the use of the highway by others for the time being. Another person, who is thus impeded in the use of the road, assists the servant, either with or without request, to remove the impediments to travel from the highway. Such other person does not thereby become the fellow-servant of the driver. Indeed, in no just sense has he voluntarily entered the service of the master. And the rule of volunteer does not apply to the case supposed, and therefore if was not error in the court of common pleas to refuse it.”

The case of Wischam v. Richards, 136 Pa. 109 (20 Atl. 532, 10 L. R. A. 97, 20 Am. St. Rep. 900), states the general rule as to volunteers to be as claimed by counsel for defendant. While it was held that if plaintiff was a mere volunteer he could not recover, the court says that, under the facts in the case—

“ While it may seem a little strained to call such a person a mere volunteer, the reason given for the nonliability of the master is more substantial, to wit, that the plaintiff’s act of associating himself with the defendant’s servant in the performance of the work, was done without the knowledge or consent of the master; and therefore he could acquire no better position than that of the servant with whom he associated himself.”

The case is finally disposed of upon the ground that the plaintiff became one of the servants to assist in the defendant’s act of delivering the wheel. The participation of the plaintiff was not that of an owner receiving his own goods, but was that of a servant assisting the servants of the defendant, and this circumstance brings it within the rule of nonliability. This is an exceedingly close case, highly exceptional in its facts, and, as the court says, “ apparently without precedent among the authorities.”

The distinction is plainly pointed out in Cargill v. Thompson, 50 Minn. 211 (52 N. W. 648), cited by defendant.

A well-considered ease, and one which reviews the authorities, both English and American, is that of Kelly v. Tyra, 103 Minn. 176 (114 N. W. 750, 115 N. W. 636, 17 L. R. A. [N. S.] 334). In that case Jaggard, J.,says:

“There is, however, an increasing class of cases in which the exercise of proportionate care is held to be due to servants of different masters, who assist in the performance of a service mutually beneficial to such employers. Thus a servant of a shipper, who, to prevent delay, aids the servants of a carrier in shunting cars, is not a mere volunteer assisting defendant’s servants, although on request, but is regarded as having been on defendant’s premises with a purpose of expediting the delivery of his own goods. The carrier is liable to him for the negligence of its servants. [Citing cases.] * * * So one with an interest, who is requested by another’s servant to assist in adjusting or fixing an instrumentality, is not a mere volunteer, but is within the rule requiring the exercise of due care. [Citing cases.]
“ 'The distinction, running through all the cases is this: That where a mere volunteer — that is, one who has no interest in the work — undertakes to assist the servants of another, he does so at Ms own risk. In such a case the maxim of respondeat superior does not apply. But where one has an interest in the work, either as consignee or the servant of a consignee, or in any other capacity, and at the request or with the consent of another’s servants undertakes to assist them, he does not do so at his own risk, and, if injured by their carelessness, their master is responsible. In such a case the maxim of respondeat superior does apply. The hinge on which the cases turn is the presence or absence of self-interest. In the one case, the person injured is a mere intruder or officious intermeddler; in the other, he is a person in the regular pursuit of his own business and entitled to the same protection as any one whose business relations with the master expose him to injury from the carelessness of the master’s servants.’
“ [Citing many cases.]”

Applying this rule to the facts in this case as claimed by the plaintiff, we must hold that the plaintiff was not a mere volunteer.

Was the plaintiff, as matter of law, guilty of contributory negligence ? We think not. We are of opinion that it was a question for the jury. Upon this record it appears that the plaintiff had no reason to anticipate that Crankshaw would start the motor when he did. Plaintiff was proceeding in a perfectly safe manner but for the active and unexpected conduct of Crankshaw. The language of Justice Brooke, in Wallin v. Railway Co., 172 Mich. 466 (138 N. W. 270), applies here:

“The claim of defendant that plaintiff should not be permitted to recover, because he selected the dangerous rather than the safe way of preparing for the coupling, is without merit. When he attempted to open the coupler, both cars and engine were at rest, and he believed the engine would not move until its engineer received a signal from himself. Had they remained stationary, there would have been no danger. We think he was not bound, as a matter of law, to apprehend that the conductor would appear and give the signal for the operation. His conduct, under the circumstances, in all its detail, was a proper subject for the consideration of the jury upon the question of his negligence.”

As the case must go back for a new trial, some attention should be given to the assignments of error relating to the rulings of the court upon the admission of evidence. We think that what was said and done by the plaintiff and Crankshaw immediately before and at the time of the injury was proper subject of inquiry; also as to what the practice had been in carrying on the work there. Answers to questions covered by the first, second, fourth, eighth, and fourteenth assignments of error might well have been received. The other questions covered by the assignments of error relating to the rulings upon the rejection of testimony were properly ruled upon. Some of them relate to matters of mere speculation, and others relate to matters for the jury to determine, and were not matters of opinion. The other questions discussed are not likely to arise upon a new trial.

For the errors pointed out, the judgment of the circuit court is reversed, and a new trial granted.

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