author: Moobe, J.

text:
    LARRY v. DETROIT & MACKINAC RAILWAY CO.
    1. Master and Servant — Fellow-Servant — Inoompetenoy — Railroads.
    Evidence tending to show that defendant’s locomotive engineer, whose negligence caused a collision, had on one occasion permitted his fireman to partly smother the fire;, that afterwards the fireman forgot to shake down the fire, and on another occasion the engineer ran past a stop which, he was ordered to make, but furnished a reasonable excuse therefor; and that he had been in defendant’s employ as engineer about a year, is insufficient to establish his incompetency.

    2. Same.
    While a single act may, under some circumstances, show an individual to be an improper and unfit person for a particular service, as when he acts wantonly or maliciously, yet a single act of casual neglect does not sufficiently establish that a servant was incompetent.
    Error to Arenac; Sharpe, J.
    Submitted June 20, 1911.
    (Docket No. 43.)
    Decided November 3, 1911.
    Case by Douglass Larry against the Detroit & Mackinac Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Charles B. Henry and Cuy D. Henry (James McNamara, of counsel), for appellant.

      Hall, Be Foe & Henry, for appellee.

      As to duty of master with respect to employment of competent fellow-servants, see note in 48 L. E. A. 369.

   Moobe, J.

On the 12th day of April, 1907, the regular afternoon passenger train going north left Posen station one and one-half minutes late. It had the right of way. This train is due to leave Posen at 4:58 in the afternoon, and to arrive at Metz at 5:08 in the afternoon. On the afternoon in question the plaintiff was fireman on an engine in charge of Fred Markey as engineer. This engine was ordered to run from Tower, a station on the defendant’s road 31 miles north of Posen, to Alpena. This engine started south. The passenger train was running from 45 to 50 miles an hour. The engine was running from 35 to 40 miles an hour. Metz was one of the stations between Posen and Tower, and was 5.3 miles north of Posen and 26 miles south of Tower. Between Metz and Posen there was a curve in the road. This curve was about halfway between Posen and Metz, and it was here the collision occurred which caused the injury, for the recovery for which the plaintiff brings this suit.

It was the claim of the plaintiff that the engineer was incompetent, and the defendant had or should have had knowledge of his incompetency. The case was tried before a jury, which answered three special questions, as follows:

“First. Did not Larry’s conduct and negligence contribute to the occasion of the collision?” Answer: “ No.”
“Second. Did Bolen have authority over the engineer and fireman so that he could hire or discharge them or direct their conduct other than as conductor, when acting in that capacity ?” Answer: “No.”
“Third. Does the fact that Larry smothered the fire on one occasion and failed to keep the steam up on another time by not shaking the fire sufficiently constitute incompetency on the part of Markey ? ” Answer: “Tes.”

The jury returned a general verdict in favor of the plaintiff. The case is brought here by writ of error.

Counsel are substantially agreed that the following legal questions are involved:

(1) Was there any evidence to go to the jury of Mar-key’s incompetency ?

(2) Was there any evidence upon which the jury could find that the defendant had notice of such incompetency ?

(3) Was plaintiff chargeable with contributory negligence as a matter of law ?

The first of these questions we deem to be the most important one. Counsel for plaintiff insist there was testimony of the incompetency of the engineer sufficient to carry the case to the jury. Counsel for the defendant insist to the contrary. The following appears in the record:

“ It is conceded that Fred Markey had acted as an engineer for the D. & M. for one year prior to the time of the accident.”

Mr. Markey was not a witness upon the trial. The plaintiff commenced work for the defendant railroad company March 8, 1907. He had never been employed by a railroad company, and knew nothing about a locomotive engine before that date. About the 4th of April the plaintiff fired upon an engine with Markey as engineer from East Tawas to Alpena Junction, a distance of 65 miles. He then fired the same engine 5 or 6 round-trips to Tower, a distance of 49 miles. About 11 or 12 o’clock of the day in question the plaintiff and Engineer Markey were directed to go from Alpena to Onaway with an engine. The plaintiff claims that the first knowledge he had of an impending collision was the jumping of Markey from his seat. He saw Markey take hold of the lever to reverse the engine, but could not say whether he moved it or not. The plaintiff was standing in the gangway as Markey jumped from his engine. The plaintiff ran onto the tank as the collision took place. After the collision the plaintiff saw Markey coming up the track.

The testimony of the incompetency of the engineer is almost wholly the testimony of the fireman, and is as follows:

“ I don’t remember Markey giving me any directions relative to the manner of firing the locomotive.
“Q. Was there any circumstances took place on the first trip—
“A. Yes, sir.'
“Q. In connection with Mr. Bolen and Mr. Markey and Mr. Markey’s treatment of the engine ?
“A. Yes, sir.
“Q. What was that?
“A. Our engine was on the Cleveland branch, back of Tower. Mr. Markey and Mr. Bolen had a talk. We were cleaning the fire and taking water at the same time. When we got our engine up to Tower, we went on the branch with the cars, and spotted them for them to load, and just before noon, I think it was, we went down to clean the fire. We went down where there was a little water hole to take water. While down there it was discovered that there was not very much live fire. We were there maybe half or three-quarters of an hour. I saw Bolen come down after we were there. Mr. Bolen asked why we were taking up so much time, and Mr. Markey spoke up something about the fire was not going. I didn’t know how to fire. Bolen asked him why he didn’t show me. All Bolen told Markey was to learn me how to fire. I didn’t know how to fire. I had only fired two or three days. The trouble with my fire was that. there was too much coal on it. I had fed it too much coal. Engine running light, and I didn’t know how to fire, kept throwing in coal and choking it down. Markey saw me. He was right there. Running the engine was all he was doing. I finally got my fire up, and we went back to load up ties. Bolen took charge of all the operations in there loading ties, and directed us where to go. * * * Take the second occasion, we had further trouble about firing my engine. I could not say where it was. It was somewhere on the road going to Alpena. Markey had not instructed me in any way how to fire after Bolen had told him. The second occurrence was where the steam got low, and we could hardly get along. I think Bolen was riding in the engine. He asked Markey something about why there wasn’t any steam and told him to let him run the engine, and he did and I fired, not very far, perhaps two or three miles, where Bolen had to get out and unload the ties. Bolen instructed me some how to fire. The result was that I got along with reference to making steam. * * * The day before the accident we were running from Tower to Alpena. I know where Metz and Posen are. As the train reached Metz that day Bolen was conductor. I don’t know where he was on the train. He wasn’t in the cab. * * * With reference to air and air appliances, our train had air on the train line and steam on the engine. We operated the air from the engine. We reached Metz coming south about'4 o’clock on the 11th — between 4 and half past. I don’t remember whether Markey stopped as he came to Metz, or whether he kept right on going. We were going by the station when Bolen stopped us. The train was in motion. Bolen stopped us by shutting the air from the rear of the train by opening an angle cock on the back of the train. This is an emergency application. * * * Our engine and train was better than half the length of the train, I should think, seven or eight cars from the station at Metz at that time. The side track at Metz that you should run into in order to meet and pass the train coming from the south was about a train length and a half back of us towards Tower. There was no other side track south of Metz and between Metz and Posen, where your train could side track. After the train was stopped, Bolen came to the engine. He asked Markey where he was going for No. 3, what he was pulling by for. I don’t remember what Markey said. Whether he said anything or not I could not say. Bolen was mad, and said something about he would get fired. I don’t know exactly what he said. I have said all I can remember about it. One could see about a mile south from Metz, and then the track curved out of sight, as I remember it. After Bolen came to Markey and asked him what he was going to do about No. 3, or something, we backed into the side track, and waited for No. 3 to go by. I don’t think it was over 5 or 10 minutes that we waited before No. 3 came. No. 3 is the train that was in the record yesterday. I think it was on time that day. I ran with Markey after this day.”

On the cross-examination, the plaintiff testified in part as follows:

“ I first started out to become a fireman. I was going in the railroad business. I took an examination. I studied for it. I was on the train. I was not under pay during these first three trips. Charles Zink was with me and instructed me. He told me how to build my fire and how to coal. He explained to me how to keep the fire going. After this I didn’t know whether I was competent to fire or not. I was willing to try and learn. This was along early in March. Just two trips before I started with Markey was all I ever fired. I was with him five or six days before the accident. * * *
“Q. Did you ever have any trouble excepting on those two occasions that you had named when your fire went out ?
“A. No, sir.
“Q. Now, the first trouble that you had was because you put in too much coal, is that right ?
“A. Yes, sir.
“Q. What was the next trouble ?
“A. The next trouble was the time the steam went down on the road. I don’t know what caused that. I know now that this last time the trouble was because I didn’t shake it and keep the fire clean. I know it was necessary to shake it to keep the fire going. It was three or four days before I was injured that I failed to shake the coal down sufficiently.
“Q. The only difficulty you had was because first you put in too much coal ? .
“A. Yes, sir.
“Q. And smothered your fire?
"A. Yes, sir.
“Q. How long did it take you to learn you should not do that ?
“A. Well, it didn’t take me very long after I found out what was the cause.
“Q. And the second trouble you had was because you didn’t poke it; shake it enough and stir up the fire ?
”A. Yes, sir.
“Q. How long did it take you to learn that ?
“A. Well, it didn’t take me very long.
“Q. Now, do you mean that in all the experience you have had, and in all the education you got when you were qualifying, that you were not told about stirring up the fire and shaking it ?
"A. I was told, but I was not told how often it needed it.
“Q. Before that you had succeeded in getting along and had shaken it the required number of times, hadn’t you?
UA. I got along all right; yes.
‘‘Q. You never, had any trouble with the fires at all during all of the time you fired, excepting these two times ?
“M. No; that is all.
CiQ. And one was when you smothered it and when you didn’t poke it enough ?
“A. Well, there was another time, if I ain’t mistaken. It was a time when we was leaving in the Alpena yard. Mr. Richardson was acting as conductor. The blower was on and Markey told me to shut the blower off. I told him the fire would go out if I did, and he told me, let go, and I shut it off, and, when we got ready to start up, the fire was gone. That was the night before the wreck, I think. I don’t remember Markey instructing me on occasions when I choked the fire down and when I didn’t poke it enough. The only thing Markey did on these two trips was not to tell me. * * * I went back firing something like three weeks after. I worked until November some time, most of the time in the yard at Bay City.
“Q. I want to ask you once more, because I want to be definite about this. Aside from having put in too much coal at one time and thereby smothering your engine, and aside from not clearing it up sufficiently, nothing ever occurred until the wreck when Markey was there that was defective in your firing ?
“A. Not about the firing; no.
“Q. And, after you had once made the mistake by putting in too much coal and smothering it, you did not repeat this mistake, did you ?
“A. Not as I remember; no.
“Q. And, after you had failed this time to sufficiently poke and stir the fire you did not make that mistake again, did you ?
“A. Why, I might have once or twice.
“Q. Now, then, Mr. Larry, so far as this second offense is concerned, it all depends on whether the fireman is lazy or whether he is diligent, doesn’t it ?
“A. Yes, sir; I suppose. I don’t know. I suppose it is.
“Q. Aside from those two things, you never knew of Fred Markey doing anything that was not right in line with his duty as engineer ?
“Mr. Hall: Just the firing, do you mean, Mr. Henry?
“Q. All of those that you have related ?
“A. Just firing.
“Q. Well, whatever you have related ?
“A. Well, I know of him going to sleep in the engine.
“Q. When it was running ?
“A. No, sir.
“Q. Well, tell me in what way that is a defect ?
“A. Why, as quick as his engine would stop, he would prop himself up and go to sleep.
“Q. Wherein Fred Markey was deficient. Now, why do you charge him with defect in those things, not keeping the fires right ?
“A. Because I think he should have learned me more, try to learn me, which he did not try to do.”

Mr. Bolen’s version of the transaction at Metz is as follows:

“ I was standing on the flat cars, and, when we was going through Metz, I thought he was going a little too fast, so I swung him up and he did not see me, and I reached for the air and set the air on him. This stopped the train. I got off and went back and went into the telegraph office and I got a train order there to meet No. 45 at Posen. When I got down to the engine, I asked him what he was trying to do by pulling by the station at Metz, and he said he was figuring on backing in at Metz on the south end of the station. Well, I could say no more. All right, if that is what you are figuring on. But when we was at Metz, just about that time we got at Metz, No. 45 would be due out of Posen in about five minutes, and we got a train order there to meet her at Posen, and we went to Posen for that train.
“Q. At any time while Markey was acting for your company did you ever have any knowledge of anything which he did inconsistent with a competent engineer ?
“A. No, sir.
“Q. Who had charge at that time of the train crew, including the engineer and fireman, who was directly over them ?
“A. Well, the trainmaster was over them. Mr. Philip Richardson was trainmaster at that time. I never at any time communicated with him or with any officer of the road of any incompetency of Markey or Larry.
ctQ. Did you find after you had spoken to Markey on this 11th of April that there were cars on the north end of this side track so that would be the only way he could get in there ?
“A. Yes, sir; there was two cars loading with bark. There was one loaded and one partly loaded.
“Q. So in going into the side track it was the only thing he could do ?
“A. Was to go ahead and back in.
“Q. Now, at the time you stopped him, how far was the rear of his train from the south end of the side track ?
“A. Well, his engine was over the switch and the way car was three or four lengths by the depot station.
“Q. And he had not got far enough along yet to back in?
“A. Oh, no, no; I stopped him.”

On the cross-examination he testified:

“Q. Well, you thought yourself that he had neglected to see you signal, didn’t you ?
“A. No; I did not. I pulled the emergency brake because I wanted to stop him.
“Q. Well, he would not stop you say until he got still further down ?
“A. Well, because he figured on backing in, and I didn’t know he was figuring on that. I first learned that he intended to back in when he told me.
“Q. You were in charge of the train, were you not ?
“A. Yes, sir.
“Q. And you were the one to tell him where to stop, weren’t you ?
“A. No; he had just as much to do as I did. I had charge of the train.
“Q. Now, as a matter of fact, Mr. Bolen, don’t you know that you went down to Markey and criticised him for attempting to run by here in view of the approaching train ?
“A. I asked him—
“Q. Just answer my question.
“A. Yes, sir. I don’t know where Mr. Richardson was. The day before he rode with me on the tie train from Millersburg or Onaway down to Metz.
C‘Q. You deny having said you will be fired for this ?
“A.-Yes, sir. I never said that. I never said that.”
Mr. Henry T. Thomas, sworn for defendant, testified:
“Q. Did you employ Frederick Markey as engineer?
“A. I did. '
“Q. And Douglass Larry as fireman ?
“A. I did.
“Q. What have you to say as to the competency as an engineer of Frederick Markey ?
“A. About what ?
“Q. Competency, as to his ability, as to his competency ?
“A. I considered him at that time fair.
“Q. What experience on April 12, 1907, had Markey, how long had he worked as engineer ?
“A. I could not answer that question without looking up the record.
“Q. Do you pass upon the competency of engineers in the employment of your company ?
“A. Largely.
“Q. Who, aside from yourself, has the employment of engineers and firemen ?
“A. No one.
“Q. Prior to April 12, 1907, had any one informed you of any act on the part of Mr. Markey while running his engine with Mr. Larry that were not competent acts ?
“A. I do not remember of one instance of anybody making any such report.”

Cross-examination by Mr. Hall:

“ If any reports were made of the men, I have a record. I have not looked up the record to see what it is as to Mr. Markey.
”Q. So you don’t know what is on that record, do you?
“A. If there was anything grievous in that record, I would remember it. My recollection is that there is nothing in the record bearing on his competency.
“Q. Have not you got on your record that he was laid off at one time because of the fact that he had caused a collision at Saginaw river bridge ?
“A. It may be there.
“Q. It may be there? Well, was not he, as a matter of fact, laid off prior to this because of a collision of engine and cars at the Saginaw bridge ?
“A. He may have been laid off.
“Q Now, Mr. Thomas, if it was true that on April 11, 1910, or 1907, in face of a train about due at Metz when he was running south, that he failed to observe a signal given and the emergency had been applied, or the appliance used for the emergency, and he was brought to a stop, then he was remonstrated with, as to what he intended to do, and he made no reply, and he was reprimanded by the one in charge of the train, would you regard .that as evidence of incompetency ?
“A. I think I testified in regard to my opinion as to his competency previous to that accident. * * * I did not produce the record of Mr. Markey because I have not been asked for it.”

Mr. Allen, a witness for the plaintiff, testified in part as follows:

“Relative to the choking down of the fire, I don’t see how this could be occasioned by the work of a competent engineer and fireman. Every employé is liable to make a mistake. If Larry was firing and permitted the fire to be choked by putting on too much coal, I should judge that it was his fault from inexperience. As soon as the engineer discovered it, I think it would be his duty to instruct the fireman what to do; but in the first instance it is the duty of the fireman to see the thing does not occur. In my long years of experience I have had firemen who committed that mistake while I was competent to run the engine. The fireman has one thing to do and the engineer has another. The duties of the engineer are to see that every part of the engine is in running order. The fireman is supposed to know how to fire and take care of his fire. The engineer cannot watch the fireman constantly. When an engineer is running his engine, it is his duty to watch out. His mind is directed ahead when he is running ahead for obstacles or anything that might be in his path. I would not regard an engineer incompetent whose fireman permitted twice within two days his fire to be choked or go out.”

We have quoted every word of the testimony bearing upon the question of incompetency.

In Evansville, etc., R. Co. v. Guyton, 115 Ind. 450 (17 N. E. 101, 7 Am. St. Rep. 458), the following language is used in the opinion:

“There was some testimony, however, from which the jury may have found that he was not possessed of sufficient familiarity with the time cards, and with the technical language of train orders, and was not sufficiently quick of apprehension to be able to construe and interpret an order in connection with a time card so as to be competent to act as the conductor of a wild train.
“In view of the fact that Stice had been promoted to the position of conductor but recently before the accident, and that more than ordinary vigilance and aptitude were required for the control and safe management of trains such as the one he was intrusted with, and in view of the further fact that there is good evidence which tends to show that, contrary to the requirements of the general rules of the company, Stice had been assigned to duty as a conductor without the usual inquiry or examination in respect to his qualifications, we are constrained to hold that the evidence tends to support what the jury must have found, viz., that Stice was incompetent to act as conductor of a wild train, and that the railroad company was remiss in its duty in selecting him for that service.
While the railroad company, in relation to the plaintiff, was not bound to guarantee the, absolute fitness of the conductor, it was its duty, nevertheless, to exercise reasonable and ordinary diligence, having respect for the exigencies of the particular service required, to the end that it might ascertain the qualification and competency of the conductor, and whether or not he was fit to be intrusted with the responsible station to which he was assigned. Wabash R. Co. v. McDaniels, 107 U. S. 454 (2 Sup. Ct. 932); Patterson on Railway Accident Law, p. 313.
“ In employing its subordinates it was the duty of the company to exercise a degree of care commensurate with the responsibilities of the position in which they were to be placed, and with the consequences which might ensue from incompetence or unskillfulness on the part of those employed. In case peculiar fitness was required, or special qualifications demanded for the service to be performed, unless it was assured by the previous like service of the conductor of his fitness, the duty of the company required it to institute affirmative inquiries in order to ascertain his qualification in that regard.
“ In case an employé proves to be incompetent for the duty assigned him, and ordinary care has not been used in his selection, or if he be retained after notice of his incompetency, the employer will be liable to a co-employé, whose injury results proximately from the lack of qualification of the fellow-servant, unless the person injured had notice of the incompetency, or had equal opportunities with the employer to obtain notice. Pennsylvania Co. v. Roney, 89 Ind. 453 [46 Am. Rep. 173]; Lake Shore, etc., R. Co. v. Stupak, 108 Ind. 1 (8 N. E. 630); Pittsburgh, etc., R. Co. v. Ruby, 38 Ind. 294 [10 Am. Rep. 111]; Chapman v. Railway Co., 55 N. Y. 579; Mann v. Canal Co., 91 N. Y. 495; Baulec v. Railroad Co., 59 N. Y. 356 [17 Am. Rep. 325].”

In that case it was held that, because Mr. Stice had been a competent brakeman and fit for promotion, it did not follow that he was also competent to take charge of and run a wild train. In Baulec v. Railroad Co., 59 N. Y. 356 (17 Am. Rep. 325), it is said, in part:

“ The duty of a railroad corporation is to exercise due —that is ordinary — care in the selection and employment of its servants and agents, having respect to their particular duties and responsibilities, and the consequences that may result from the want of competence, skill, or care in the performance of their duties. If, without exercising such care and caution, employés and agents are selected who are incompetent, or in any respect unfitted for the position, and harm and loss come to others by reason of such incompetency or unfitness, the corporation must answer for their neglect and want of care in employing a servant incompetent or untrustworthy. * * * If it be conceded that the negligence of McGerty upon the prior occasion is established, it by no means follows that the defendant was bound to discharge him upon peril of being charged with neglect and a want of due care in retaining him in its service. An individual who by years of faithful service has shown himself trustworthy, vigilant, and competent is not disqualified for further employment, and proved either incompetent or careless, and not trustworthy, by a single mistake, or act of forgetfulness, and omission to exercise the highest degree of caution and presence of mind. The fact would only show what must be true of every human being, that the individual was capable of an act of negligence, forgetfulness, or error of judgment. This must be the case as to all employés of corporations until a race of servants can be found free from the defects and infirmities of humanity. A single act may under some circumstances show an individual to be an improper, unfit person for a position of trust, or any particular service, as when such act is intentional and done wantonly, regardless of consequences, or maliciously. So the manner in which a specific act is performed, may conclusively show the utter incompetency of the actor, and his inability to perform a particular service. But a single act of casual neglect does not, per se, tend to prove the party to be careless and imprudent, and unfitted for a position requiring care and prudence. Character is formed and qualities exhibited by a series of acts, and not by a single act. An engineer might, from inattention, omit to sound the whistle, or ring the bell at a road crossing, but such fact would not tend to prove him a careless and negligent servant of the company. The company is only charged with the duty of employing those who have acquired a good character in respect to the qualifications called for by the particular service, and no one would say that a good character acquired by long service was destroyed or seriously impaired by a single involuntary and unintentional fault. Murphy v. Pollock, 15 Irish C. L. 224. But this appeal does not necessarily depend upon the correctness of this view of the effect to be given to a single instance of neglect. All that the corporation defendant was bound to do, after the occurrence, was to inquire into it, and ascertain the facts, and act in the discharge or retention of the switchman with reference to the facts as ascertained, as reasonable prudence and care should dictate, and, if such care and caution was exercised, the company is not liable, although its general agent erred in judgment in retaining the switchman in the same service. Ordinary care and a reasonable exercise of discretion and judgment is all that is necessary to absolve the corporation from the charge of neglect of duty in such a case.
“The transaction upon which stress is laid, and by force of which it is now sought to charge the defendant with the consequences of the servant’s neglect on this occasion, and the agency of the switchman in causing the accident on that occasion, was investigated immediately thereafter by the agent of the defendant whose general duties included such investigation, and who was authorized to employ and discharge switchmen at that point. He had the statement of the switchman himself, and in this record we have his sworn statement of the same transaction, and assuming, as we must, that the facts disclosed upon this trial were made known to the agent and representative of the defendant, then it was certainly a question of doubt whether the fault of that accident was upon the switchman or the engineer in charge of the train that was thrown from the track.”

The court held that there was not sufficient evidence to carry the case to the jury. In Holland v. Southern Pacific Co., 100 Cal. 240 (34 Pac. 666), the following language is used:

“ It was shown upon the trial that some three or four months prior to the collision resulting in the injury complained of by the plaintiff, Mulligan was the engineer in charge of one of defendant’s trains running between Marysville and Oroville, and upon that occasion ran a train between Marysville and Moore’s station, a distance of 12 or 14 miles, in 40 minutes, while the schedule time between these points was one hour. The plaintiff himself testified that in making about 1-J- miles of this run, over a portion of the road which was level, the train was driven at a speed of about 40 or 45 miles an hour; and he further testified that this road was not considered safe to run fast upon, because it was laid with light iron rails. There was but one train a day run over this road, but handcars used by construction men might have been upon the track at this time, and under the rules of defendant would have had the right to remain there until within 10 minutes of the schedule time for the arrival of the regular train. This run was made in daylight, and without accident or injury to any one. The plaintiff, although requested by Mulligan not to do so, notified the proper officers of defendant of the manner in which this train was run upon the occasion just referred to.
“This was all the evidence tending in any degree to show the incompetency of Mulligan as an engineer prior to the collision in which plaintiff received his injuries. Counsel for plaintiff in the very áble brief filed in this court argue that this evidence was sufficient to show that Mulligan knew, or ought to have known, that it was dangerous to run a train so fast upon this particular road, and that in so doing he not only endangered the lives of the passengers on the train, but also imperiled the lives of the section or construction men who were on the road, and who had the right to remain there until within ten minutes of the time for the regular approach of the train, and that the jury were justified in finding from this single act of Mulligan that he was reckless and careless to such a degree as to render him wholly incompetent as an engineer, and that the defendant could not, with notice of the incompetency thus shown, retain him in its service as an engineer without rendering itself liable to those of its employés who might thereafter be injured through his negligence. But we do not think so. It may be and doubtless is true that a single act may be such as to furnish an unerring index of the character of the actor, and, when considered by itself or in connection with the circumstances surrounding it, be sufficient to demonstrate the unfitness of a person to be placed in any position requiring great or even ordinary care in the discharge of its duties. Still, the act relied upon here was not of a character to necessarily stamp Mulligan as unfit or incompetent to discharge the duties of an engineer. It did not of itself show him to be a grossly careless person, or reckless of the lives, either of the passengers committed to his charge or the lives of the employes of defendants at work upon the track. No accident occurred at that time, nor is there anything in the evidence to show that this result was due more to chance or good fortune than to the management of the engine and the actual condition of the road upon which the train was running; and, although men were liable to have been working on the track, it does not appear that they could not have been easily seen, and would not have had ample time to escape all harm after being warned by bell or whistle of the approach of the train. Upon the facts disclosed by the evidence, the jury was not warranted in finding that the defendant failed in its duty to plaintiff or its other employés in not discharging Mulligan from further service as an engineer because of this one act, assuming it to have been a negligent one. The true rule upon this subject is stated with great precision and clearness by Allen, J., in delivering the opinion of the Court of Appeals of the State of New York in the case of Baulec v. Railroad Co., 59 N. Y. 363 (17 Am. Rep. 325), as follows.”

The court then quoted from the opinion in Baulec v. Railroad Co., and then proceeded:

“And in Wharton on Negligence, § 238, it is said:

‘“If single exceptional acts of negligence should prove an officer to be incompetent, no officer could be retained in service, for there is no person who is not at some time to some degree negligent. Henoe, it has been properly held that intelligent men of good habits^ who are engineers, or brakemen, or switchmen on railroads, are not necessarily to be discharged by their employers for the first error or act of negligence such employés commit, nor will railroad companies necessarily be liable for a second error or negligent act of a servant to all other servants of such companies, when the latter sustáin damages by reason thereof.’ ”

In Bailey on Master’s Liability, p. 48, it is said:

“ Liability on the part of an employer for an injury caused by the incompetency of a fellow-servant depends upon its being established by affirmative proof that such incompetency was actually known by the master, or that, if he had exercised due and proper diligence, he would have learned that which would charge him in the law with such knowledge.
“When, however, it is not shown but that due care was exercised in the choice of a servant, no presumption of the latter’s unfitness arises afterwards. The presumption is that, if competent and fit when he enters the service, he remains so.
“ The master, in the exercise of his duty of supervision over the conduct of his servants, to ascertain whether they should be retained, must consider the nature of the service, as well as the dangers attending the employment or retention of unfit or incompetent persons. A closer supervision over the habits and conduct of an engineer is required than over a common laborer for the very plain and obvious reason that the dangerous consequences of neglect are likely to be so much greater in the one case than in the other. The greater the danger, the greater the care, is the rule.
“The presumption is that the master has exercised proper care in the selection of the servant. It is incumbent upon the party charging negligence in this respect to show it by proper evidence. This may be done by showing specific acts of incompetency, and bringing them home to the knowledge of the master or company; or by showing them to be of such nature, character, and frequency that the master, in the exercise of due care, must have had them brought to his notice. But such specific acts of alleged incompeteney cannot be shown to prove that the servant was negligent in doing or omitting to do the act complained of. So it is proper, when repeated acts of carelessness and incompetency of a certain character are shown on the part of the servant, to leave it to the jury to determine whether they did come to the knowledge of the master, or would have come to his knowledge if he had exercised ordinary care. In such case the presumption that the master had discharged his duty may be overcome to such an extent as to call upon him to rebut the proof made showing his negligence.”

In a note on page 64, Id., the following is said:

“When a master employs a competent and careful servant, he has a right to rely upon the presumption that he will continue careful and skillful, and, when notified that he has become careless, he is not ordinarily bound to discharge such servant without an investigation into such charge, unless such notice is accompanied by such evidence as leaves no reasonable doubt of the truth of such charge. A rule that would require the master to discharge a servant, careful and competent when employed, without investigation, upon a charge of carelessness, would be a harsh one, and would often result in great injustice to employes. Lake Shore, etc., R. Co. v. Stupak, 123 Ind. 210 (23 N. E. 246); Ohio, etc., R. Co. v. Collam, 73 Ind. 261 [38 Am. Rep. 134]; Lake Shore, etc., R. Co. v. Stupak, 108 Ind. 1 (8 N. E. 630); Indiana, etc., R. Co. v. Dailey, 110 Ind. 75 (10 N. E. 631); Chap man v. Railway Co., 55 N. Y. 579; Moss v. Pacific Railroad, 49 Mo. 167 [8 Am. Rep. 126]; Blake v. Railroad Co., 70 Me. 60 [35 Am. Rep. 297]; McDowell v. Railway Co. (Ky.), 5 S. W. 413; La Rose v. National Bank, 102 Ind. 332 (1 N. E. 805).”

At page 67, Id., the text says:

“When the injured servant knew of the incompeteney' of the offending servant as well as the master, or had equal knowledge, and, notwithstanding such knowledge, continued in the employment without objection, he waives the negligence of the master in this respect.”

The note is as follows:

Laning v. Railroad Co., 49 N. Y. 525 [10 Am. Rep. 417]; Wright v. Railroad Co., 25 N. Y. 566; Mad River, etc., R. Co. v. Barber, 5 Ohio St. 563 [67 Am. Dec. 312].
“ One of the rules of the common law still in force is as follows: If an employé knows that another employé is incompetent or habitually negligent, or the materials with which he works are defective, and he continues his work without objection, and without being induced by his employer to believe that a change will be made, he will be deemed to have assumed the risk of such incompeteney, negligence, or defects, and cannot recover for an injury resulting therefrom. Kansas Pacific R. Co. v. Peavey, 34 Kan. 472 (8 Pac. 780); Kroy v. Railway Co., 32 Iowa, 357; Laning v. Railway Co., 49 N. Y. 521 [10 Am. Rep. 417]; McQueen v. Railroad Co., 30 Kan. 689 (1 Pac. 139); Jackson v. Railroad Co., 31 Kan. 761 (3 Pac. 501); Assop v. Yates, 2 Hurl. & N. 768; Hayden v. Manufacturing Co., 29 Conn. 548; Mad River, etc., R. Co. v. Barber, 5 Ohio St. 541 [67 Am. Dec. 312]; United States Rolling Stock Co. v. Wilder, 116 Ill. 100 (5 N. E. 92); Hatt v. Nay, 144 Mass. 186 (10 N. E. 807); Lake Shore, etc., R. Co. v. Knittal, 33 Ohio St. 468.
“ In United States Rolling Stock Co. v. Wilder, 116 Ill. 109 (5 N. E. 92), the duty of the servant was thus aptly expressed:
“ ‘ All that the law demands of one thus employed is that he keep his eyes open to what is passing before him, and avail himself of such information as he may receive with respect to the habits and characteristics of his fellow-servants; and if from either of these sources of information he finds one of them, from incompetency or other cause, renders his own position exfcrahazardous, it is his duty to notify the master, and, if the latter refuses to discharge the incompetent or otherwise unfit fellow-servant, the complaining servant will have no other alternative but to quit the master’s employ. If he does, not, he will be deemed to have assumed the extra hazard of his position thus occasioned. The case suggested, it will be perceived, is one of mutual negligence. On the part of the master it is negligence to retain the incompetent servant in his employ. It is, on the other hand, negligence in the complaining servant to continue longer in the master’s service, unless he intends to run the extra hazard himself.’”

See, also, 1 Labatt on Master and Servant, pp. 397, 423, 424; Michigan Central R. Co. v. Dolan, 32 Mich. 510.

If we apply these principles of law to the case in hand, it is not difficult to reach a result. The defendant employed an engineer shown to be fairly competent. He continued in their employ for a year, presumably becoming more competent. It is sought to show him incompetent by proving that the plaintiff upon one occasion overloaded his fire with coal and upon another occasion failed to shake down the fire when he ought. This may have established the fact that plaintiff was an inexperienced fireman, but falls far short of showing such a degree of incompetency upon the part of the engineer as to make it the duty to discharge him.

As to what occurred at Metz: There is no great conflict between Mr. Bolen and the plaintiff as to what occurred, so far as they testify. It is doubtless true that, when Mr. Bolen stopped the train, he supposed the engineer was running past the station at Metz, and was likely to meet the north-bound train; but when he saw the engineer and talked with him, and saw the two cars at the north end of the siding, he was satisfied. The incident, when fully related, instead of showing that the engineer was incompetent, showed just the reverse; that he was quick to observe and to comprehend that he could not go into the siding from the north end because of the loaded cars, but must go in as he did go in, even according to the testimony of the plaintiff, by backing in from the south. We think the judge might very properly have instructed the jury that plaintiff had failed to show such incompetency of the engineer as to make it the duty of the defendant to discharge him. Having reached this conclusion, it is not necessary to pass upon the other questions.

Judgment is reversed, and new trial ordered.

Ostrander, O. J., and Bird, Steere, McAlvay, Brooke, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    HILL v. REINER.
    1. Deeds — Wills — Testamentary Conveyances — Escrow — Parties.
    A deed in the nature of a testmentary disposition of real property placed in escrow to be delivered after the death of the grantor, conveying the property to four persons named, describing the first three as daughters of a deceased brother of the grantor, may be shown by parol to have been intended as a conveyance of one-half to the three grouped as daughters, etc., the other half to the other grantee.
    2. Same.
    Where a conveyance or deed to two or more persons does not state the interest of each, their estates are presumed to be equal: but the presumption may be rebutted by proof.
    Error to Livingston; Miner, J.
    Submitted June 19, 1911.
    ( Docket No. 103.)
    Decided November 3, 1911.
    Bill by Aurelia Hill against Matilda Reiner and others for partition. From a decree for complainant, defendant Reiner appeals.
    Modified and affirmed.

      E. A. & L. E. Stowe, for complainant.

      Louis E. Howlett, for defendant Reiner.
   McAlvay, J.

The bill in this cause was filed for a partition of certain lands in Livingston county and for an accounting by defendant Matilda Reiner forrents collected, also for delivery by her into court of a certain deed in her possession, through which complainant and defendants derive title, and which said defendant refuses to produce or record. The facts are not disputed.

On December 14, 1907, Adelaide J. Holdridge, of the village of Brighton, Mich., an old lady without living children, desirous of disposing of her property by will, was advised by a friend, formerly a banker, that to dispose of it by deed was preferable. She followed this advice and two deeds were executed. She was the owner of certain real estate in California, and the premises involved in this suit situated in the village of Brighton, Mich., estimated of equal value. Her next of kin were Aurelia E. Smith and Matilda Reiner, two sisters, Charles Judson, a brother, and Aurelia Judson (now Aurelia Hill), Helen Judson, and Evelyn Judson, children of Frank E. Judson, a deceased brother. On that date she made and executed two voluntary full warranty deeds, except in each reserving to herself a life estate. The real estate in California she deeded to Aurelia E. Smith, her sister, and Charles Judson, her brother. The deed of the Michigan land reads:

“This indenture, made this fourteenth day of December in the year of our Lord, one thousand nine hundred and seven, between Adelaide J. Holdridge of the Village of Brighton, Michigan, of the first part, and Aurelia Judson, Helen Judson, Evelyn Judson, daughters of Frank E. Judson, deceased, and Matilda M. Reiner, parties of the second part, witnesseth,” etc.

The land is described as “village lots numbered five (5) and the north two rods of lot four (4) and the south half (£) of lots six (6) and seven (7) all being on block number three (8) of Gale’s plat of said village as duly laid and platted and recorded excepting and reserving to said grantor,” etc. The deeds are identical except as to the parties and descriptions of land conveyed. It is conceded that these were voluntary deeds delivered to William T. Fry for the grantees, to be given to them upon her death. It is also admitted that these conveyances were testamentary in character. The dispute in the case concerns the construction of the portion of the deed quoted which designates the grantees. The court construed the clause quoted as conveying the property to the four persons as tenants in common in equal undivided shares. Defendant and appellant contends that the deed should be so construed as to give her title to an undivided one-half, and to “Aurelia Judson, Helen Judson, Evelyn Judson, daughters of Frank E. Judson, deceased, title to the other undivided one-half of the premises.” The appeal involves no other question.

If the trial court was correct in his construction, it must be held that the words “ daughters of Frank E. Judson, deceased,” are merely descriptive of these parties. The rule has been laid down in this State as follows: ‘ ‘ Where a conveyance or deed to two or more persons does not state the interest of each, their estates are presumed to be equal,” but this is a presumption, and may be overcome by proof. Campau v. Campau, 44 Mich. 31 (5 N. W. 1062); City of Detroit v. Jacobs, 145 Mich. 396 (108 N. W. 671). The grantees in this deed are “Aurelia Judson, Helen Judson, Evelyn Judson, daughters of Frank E. Judson, deceased, and Matilda M. Reiner.” While this deed does not state the interest of each of the grantees named, it does put the three first named together, designating them as daughters of the grantor’s deceased brother. The testimony of Mr. Fry as to the intention of the grantor to divide her property into four equal parts, and give it in equal shares to her next of bin, is uncontradicted. The simple way indicated to her was followed within a week by the execution and delivery of these deeds to him. This testimony is conclusive, if any parol evidence was admissible in the case.

The presumption, above stated, raised by such conveyance, can be overcome by parol. It usually would be the only kind of evidence available for such purpose.

This case is distinguishable from Sanborn v. Loud, 150 Mich. 154 (113 N. W. 309, 121 Am. St. Rep. 614), where the deed was issued to Sanborn and Avery, “executors of the estate of James W. Sanborn,” and, further, “to their heirs and assigns forever.” The court at the outset declared that, if the construction insisted upon that they took as executors was followed, “it would require us to cast out of the instrument the words ‘ their heirs and assigns, forever,’ and substitute in their stead ‘their successors and assigns ’ or some equivalent expression. This we are prohibited from doing by all sound rules of construction.” It was therefore held that the words, “executors,” etc., were merely descriptive. Having deter-mined that parol evidence in the instant case was admissible, it is unnecessary to cite authorities that the language of the instrument, the intention of the grantor, and the surrounding circumstances, may be considered in arriving at a proper construction.

Under the proofs, our construction is that, by the deed in question, the grantor intended to convey and conveyed to the three daughters of her deceased brother as designated an undivided one-half of the land described, and to her sister Matilda Reiner an undivided one-half of the same. The decree of the court below will be modified accordingly with respect to the partition of the land and the moneys in defendant Reiner’s hands, and otherwise affirmed. Costs will be allowed to appellant.

Moore, Brooke, Blair, and Stone, JJ., concurred.


author: Brooke, J.

text:
    GURCHKE v. GURCHKE.
    1. Divorce — Extreme Cruelty.
    Upon a consideration of the evidence in a suit for divorce, a decree granting defendant, the wife, a divorce on the ground of extreme cruelty, is sustained.
    2. Same — Alimony.
    But it is held that the real estate owned by the. parties, worth about 13,700, should be sold and the proceeds equally divided.
    Appeal from Wayne; Donovan, J.
    Submitted June 21, 1911.
    (Docket No. 126.)
    Decided November 3, 1911.
    Bill by Anton Gurchke against Ernestine Gurchke for a divorce. From a decree for defendant granting a divorce upon her answer in the nature of a cross-bill, complainant appeals.
    Modified and affirmed.

      Thomas A. Gonlon, for complainant.

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

The parties to this cause have been married for 28 years. They have raised a family of five children, now all of age, and through frugality and industry have accumulated a little property. Each charges the other with acts of extreme cruelty, and asks release from the marriage bond. Though continuing to occupy the same house, their marital relations ceased some 11 years ago. In 1908 the wife filed a bill for divorce, which was afterwards withdrawn. The husband instituted this suit in December, 1909, after (as he testifies) he had been driven from his home. The court below granted a decree of divorce to the wife, and the husband appeals. To set out in this opinion the testimony bearing upon the question of cruelty would be profitless. It is sufficient to say that we have determined, though with some reluctance, not to disturb the decree in favor of the wife. This leaves the property interests only of the parties to be considered. Complainant was at the time of the hearing 54 years old and is not in very good health, while defendant was 48 and in good health.

In 1882 defendant inherited a little cottage from her mother, worth about $1,000, but charged with the payment of $300 to her brother. This sum complainant paid, and put repairs upon the cottage, from time to time, amounting to upwards of $300 or more. When he paid off defendant’s brother, she caused the title to be placed in their names jointly, and it so remained until 1908, when the complainant quitclaimed his interest in the cottage to defendant at the time she discontinued her divorce proceeding. Complainant testifies that defendant had ordered him out of the house, but that his daughter told him, if he deeded the property back to her mother, he could stay. In the meantime complainant had bought another house, taking title thereto in the names of himself and wife. This house the parties occupied as a home together until the institution of the divorce proceedings. It is free from debt, and is worth $2,600 or $2,700. The cottage is worth between $1,000 and $1,100. Complainant has purchased about $800 worth of furniture. This is now old and of comparatively little value. Complainant was seriously ill a short time ago, and is indebted to his physician in the sum of $243.

The lower court decreed that complainant should quitclaim to defendant his interest in the homestead, and that she should execute a conveyance to complainant of the cottage. The furniture (except sufficient thereof to furnish one room) was likewise given to defendant. This division of the estate we think clearly inequitable. The husband contributed as much in value as the wife to the cottage, and earned all the money which went into the homestead. We think he is entitled, at least, to one-half of the joint estate. For the purposes of this adjustment, the quitclaim deed given by the husband in 1908 should be set aside, and the value of the cottage should be added to that of the homestead, and the amount equally divided between the parties.

The decree for divorce will stand, and a decree may be entered in this court providing for the sale of both parcels and an equal division of the proceeds.

Bird, Moore, McAlvay, and Blair, JJ., concurred.


text:
      In re McNAMARA’S ESTATE. MICHIGAN TRUST CO. v. McNAMARA.
    1. Estates op Decedents — Distribution op Personal Estate-Executors and Administrators — Partial Distribution — Probate Courts.
    An administrator having sufficient effects reserved on hand for the payment of debts and expenses may petition the probate court for a partial distribution of the surplus to the persons entitled thereto. 3 Comp. Laws, § 9443 et seq.

    2. Same — Probate Jurisdiction.
    The probate court is a constitutional tribunal and under the statute may entertain such proceedings.
    Case-made from Kent; Perkins, J.
    Submitted June 7, 1911.
    (Docket No. 10.)
    Decided November 3, 1911.
    The Michigan Trust Company, administrator of the estate of Mary McNamara, deceased, presented to the probate court a petition for leave to make a partial distribution of assets. An order determining the persons entitled thereto and granting the prayer of the petition was entered in probate court. On appeal to the circuit court by James McNamara, one of the distributees, the order was affirmed and he brings case-made.
    Affirmed.

      Francis W. Balcomh, for appellant.

      Thomas P. Bradfield, for appellee.
   McAlvay, J.

This matter is before this court upon a case-made after judgment rendered in the Kent circuit on an appeal by James McNamara, one of the heirs, from the probate court of that county, where, upon a petition for that purpose, the court determined who were the heirs of the deceased, and also granted leave to said administrator to make partial distribution of said estate, to the amount of $1,000, to the persons entitled thereto. The trial in the circuit court resulted in an affirmance of the order and decree of the probate court. The appellant beforejudgment entered submitted amendments to the written findings of fact and conclusions of law filed by the court, and duly excepted to the refusal of the court to allow such amendments.

Errors are assigned upon conclusions of law of the court, refusals to find in accordance with certain conclusions of law as proposed by appellant, and upon rendering the judgment entered. We do not think that it is necessary or will be of any benefit to set forth in this opinion the findings of fact and conclusions of law of the court of the proposed amendments tendered by appellant.

Appellant contends that the court erred in overruling his objection to the jurisdiction of the court on the ground that the administrator had no authority to initiate proceedings for the determination of heirship and partial distribution, and that the authority of an administrator to petition for the determination of heirship is confined to the closing of the estate. The court, as appears from his conclusions of law, held that under the provisions of sections 9442,9446, 3 Comp. Laws, as amended, the administrator was authorized to begin these proceedings, and the court given jurisdiction to act.

The question therefore involves the construction of these sections, which as amended are as follows:

“(9443) Before any partition or division of any estate among the heirs, devisees or legatees, an allowance shall be made for the necessary expenses of the support of the children of the deceased, under seven years of age; and the probate court may order the executor or administrator to retain in his hands sufficient estate for that purpose, except where some provisions shall have been made by the will for their support.
“(9443) After the payment of debts, funeral charges and expenses of administration, and after the allowances made for the expense of the maintenance of the family of the deceased, and for the support of the children under seven years of age, and after the assignment to the widow of her share in the personal estate, or when sufficient effects shall be reserved in the hands of the executor or administrator, for the above purposes,- the probate court shall, by a decree for that purpose, assign the residue of the estate, if any, to such persons as are by law entitled to the same, subject, however, to the widow’s right of dower, if there be a widow of the deceased, entitled to dower, and her dower shall not have been assigned and set off to her.
“(9444) In such decree the court shall name the persons, and the proportions or parts to which each shall be entitled; and such persons shall have the right to demand and recover their respective shares from the executor or administrator, or any other person having the same, or any part thereof, after the expiration of sixty days from the date of such decree, unless an appeal shall have been taken therefrom, in which case they shall have the same right immediately upon the final termination of such appeal.
“(9445) Such decree may be made on the application of the executor or administrator, or of any person interested in the estate, but no heir, devisee or legatee shall be entitled to a decree for his share, until payment of the debts, and allowances and expenses mentioned in the preceding section, shall have been made or provided for, unless he shall give a bond to the judge of probate, with such surety or sureties as the court may direct, to secure the payment of his just proportion of such debts and expenses, or such part thereof as shall remain unprovided for, and to indemnify the executor or administrator against the same.”

None of the questions raised by the appellant in this case dispute any of the facts as found by the court, either as to the regularity of the proceedings, the sufficiency of the petition, the persons designated as next of kin, or the solvency of the estate over and above all liens, claims, debts, and demands, and to distribution made, as distinctly appears from the record of the case made by the appellant for our consideration, except as they are all challenged by his claim of want of jurisdiction.

This question as to the authority of an executor or administrator to make a partial distribution of funds in his hands to those found to be entitled thereto is one of first intention in this court as far as we have been able to discover. It would therefore appear from an examination of this statute that this is the crux of the dispute. As to the authority given to such officer to make application to the probate court after payment of all debts, etc., or when sufficient effects remain in his hands for such purposes, for a designation of those entitled by law to participate in the estate, and to distribute the entire residue of the estate, the statute is perfectly clear, as admitted by appellant. The distribution provided for is not necessarily a final one. By the strictest construction the statute provides for the disposition of such amount, under the circumstances of each case as in the judgment of the officer and court may be done with safety to the rights of creditors and all others entitled to preferences, or, in the words of the statute, “ when sufficient effects shall be reserved in the hands of the executor or administrator for the above purposes.” It is not apparent to us that in enacting this statute the legislature intended to provide that those entitled to receive shares in the estate should be compelled to wait for the slow process of a final order of distribution and closing an estate before being able to enter upon the enjoyment of any of it.

It is not urged that, if more than enough had been reserved for such purposes, the authority to petition the court for the distribution of the surplus would have been exhausted by the former distribution. Without doubt the legislative intent was that no distribution of an estate should be made until it appeared that all lawful claims against it had been satisfied or protected by “effects” reserved in the hands of the executor or administrator, but, further than that, there is neither wisdom nor authority warranting a holding that the surplus may not be distributed from time to time if necessary. In the instant case, proceedings in the probate of this estate have been pending seven or eight years. Three persons have been found by the court to be next of kin to deceased, all first cousins, and each entitled to one-third of her estate. One died testate in Ireland since her death, aged 69 years. One residing in Oswego county, N. Y., is 81 years old. The third is the appellant, 61 years old, residing in Ireland. It is stated that some of the heirs are in needy circumstances. These must wait for the closing of the estate if appellant’s contention is sustained.

We think that the construction contended for in this case by him is unreasonable. While there are no express words in the statute allowing a partial distribution, we think that the authority to distribute the residue after reserving sufficient to satisfy all demands, before a final report closing the estate, includes the lesser authority to make a partial distribution upon a proper application by the administrator. The words used by the probate and circuit courts in the case, “by way of advancement,” are of no particular import, as from frequent repetition in his brief seems to be understood by the appellant, other than the ordinary meaning of the words to express the fact that the amounts allowed in this distribution are to be charged against the participants and their legal representatives in their accounts with the administrator.

The Michigan cases relied upon by the appellant are not in point. Persinger v. Jubb, 52 Mich. 304 (17 N. W. 851), was a case in ejectment where a partition of lands was claimed to be invalid because tbe application was made by an administratrix as such. Tbe court said:

“It is true that as administratrix she was not concerned; but she was widow with a right of dower, and she was also guardian for the two minor heirs. If she had described herself as guardian, the right would have been apparent. But we are inclined to regard the misdescription as a mere informality.”

The statute (section 9448, 3 Comp. Laws) provides that the application for partition shall be made by one of the parties interested. The statute we are considering provides that the application may be made by the executor or administrator or any person interested in the estate. In Owings v. Owings, 150 Mich. 609 (114 N. W. 393) the court also held that—

“The administrator was not a proper party complainant. He had no interest in the partition of the land.”

The cases relied upon from other States are constructions of statutes not similar to the one under discussion.

Argument at some length is made upon the proposition that—

“ The probate court is without authority to initiate proceedings for the determination of heirs and partial distribution of estates in advance of a final accounting.”

There is no claim that these proceedings were begun on the initiative of the court. It is probably intended to be stated that the probate court has no jurisdiction to entertain such proceedings. No claim is made that the statute is unconstitutional. This law with very few amendments had been the law of this State since the Revised Statutes of 1846. Our probate court is a constitutional court. It has conferred upon it by the legislature general probate jurisdiction. Having already construed this statute as authorizing the administrator to take these proceedings, it follows that we have disposed of the question of the jurisdiction of the court contrary to the contention of the appellant. Other questions presented do not require consideration. We find no error in the case. The judgment of the circuit court is in all respects affirmed, and the cause is remanded for such further proceedings as are provided by law.

Ostrander, 0. J., and Bird, Steere, Moore, Brooke, Blair, and Stone, JJ., concurred.


author: Moore, J.

text:
    VELTMANS v. KURTZ.
    1. Deeds — Covenants—Vendor and Purchaser — Boundaries— Recovery for Deficient Quantity — Description.
    Under a deed of one-half of a quarter section not referring to any plat, survey, or government boundaries, or mentioning the number of acres conveyed, the grantee who was informed at the time the conveyance was made that the fences surrounding the property were line fences, is bound, in an action of covenant for an alleged deficiency of 3.64 acres, by the description as fixed by such fence boundaries which had been in existence for upwards of 16 years, and he could not recover on the covenant for land included within the original government survey but extraneous to the lines determined by the fences.
    2. Same.
    Where parties by mutual agreement, and for that express purpose, meet and fix a boundary line, and thereafter acquiesce in the line so established between them, such line will be considered tbAtrue line.
    3. Same.
    The long practical acquiescence of the parties concerned in supposed boundary lines should be regarded as such an agreement upon .them as to be conclusive even if originally located erroneously.

      Error to Eaton; Smith, J.
    Submitted June 26, 1911.
    (Docket No. 90.)
    Decided November 3, 1911.
    Assumpsit by William Veltmans and Margaretha Veltmans against Benjamin Kurtz and Ella Kurtz for breach of the covenant of seisin in a certain deed of conveyance. A judgment for defendants on a verdict directed by the court is reviewed by plaintiffs on writ of error.
    Affirmed.

      John L. Wright (Elmer N. Peters, of counsel), for appellants.

      Bollin H. Person, for appellees.
   Moore, J.

October 6, 1906, plaintiffs purchased from defendants certain land. The description was as follows:

“All that certain piece or parcel of land situate and being in the township of Delta, county of Eaton and State of Michigan, and described as follows, to wit: The west half of the northeast quarter of section thirty in town four north of range three west, together with all and singular the hereditaments and appurtenances thereto belonging, or in anywise appertaining.”

It will be noticed that no reference is made to any plat or government survey, and the number of acres is not stated.

Plaintiffs claim that at the time of this transaction the defendants were not seised of 3.64 acres within the description in this warranty deed; that this 3.64 acres of land was not with'in the fences surrounding the land possessed and seised by defendants, but was in the possession of adjoining proprietors; that these parties had acquired title to this land by adverse possession. The plaintiffs instituted this suit against defendants to recover damages for breach of the covenant of seisin in the deed of defendants, and at the trial, after plaintiffs had rested their case, both plaintiffs and defendants requested the court to direct a verdict in their favor. The court directed a verdict for the defendants, and the plaintiffs bring the case to this court by writ of error.

The cross-examination of William Veltmans was in part as follows:

“ I have lived in that township since October 15, 1897, and during all the time since October 15, 1897, until I bought the 80 of Kurtz, I lived about three-quarters of a mile from the back end of the Kurtz farm, or about a mile and a half from the front end. I bought this farm of them October 6, 1906. I moved into that township in 1897. Lived there about a mile and a half from it before I bought this land. I knew the land was pretty good around there. After I bought it I had a conversation with Mr. Kurtz about putting up a fence; that was the next spring after I bought it, about the middle of February of the year 1907. That was the first I knew anything was wrong with the line.
Q. Were there fences around the farm when you bought it ?
“A. Yes, sir.”
Q. And you thought those were line fences until Mr. Kurtz told you differently ? * * *
A. Well, I thought it was a line fence; yes he told me it was a line fence.
Q. When did he tell you those were line fences ?
“A. When I bought the place he says, ‘There is the line fences.’
Q. When you bought the place, he pointed out those fences to you ?
“A. Yes, sir.
Q. Told you those were line fences ?
“A. Yes.”

And much more to the same effect. There was other testimony to the effect that the boundary fences had been in existence from 20 years to upwards of 35 years.

Counsel for plaintiff say in their brief:

“ It is believed by the writer of this brief that the cases of Rockwell v. Wells, 104 Mich. 57 [ 62 N. W. 165], and Nelson v. Gibe, 162 Mich. 410 [127 N. W. 304], lay down the rule of law that determines the rights of the parties to this litigation, rather than the case of Husted v. Willoughby, 117 Mich. 56 [75 N. W. 279], as contended by the attorneys for defendants.”

An examination of the first two cases mentioned will show they are easily distinguishable from the instant case. In Jones v. Pashby, 67 Mich. 459 (35 N. W. 152, 11 Am. St. Rep. 589), the court said:

“ The court instructed the jury that the burden of proving the boundary line to have been established between Charles and James Richardson, and located as they claimed, devolved upon the defendants, and that they must do this by a fair preponderance of evidence before they could recover; also, that, before they could find a different line than the one established by the deeds, as interpreted by the Supreme Court, they must find from the evidence that they were agreed as to such other line as between them, and applied the deeds to such line and assumed and acted upon the assumption that the other line (as claimed by defendants) was the boundary line, and treated it as such; and that the center line was the only one claimed by them, and was the one recognized and treated as tbe boundary line.
“‘The landmarks which were agreed upon at the time, and recognized since, as fixing the dividing line by the brothers in making the division, must govern, regardless of where the words of the deed would draw the line. If you find that the defendants have shown by a fair preponderance of evidence that there was such a line fixed and recognized as the dividing line, it must govern.’
“This instruction was good law, and fairly stated. *
“ It has been frequently held in this State that where parties by mutual agreement, and for that express purpose, meet and fix a boundary line, and thereafter acquiesce in the line so established between them, such line will be considered the true line between them, notwithstanding the period of such acquiescence falls short of the time fixed by the statute of limitations for gaining title by adverse possession. Smith v. Hamilton, 20 Mich. 433 (4 Am. Rep. 398); Joyce v. Williams, 26 Mich. 332; Stewart v. Carleton, 31 Mich. 270; Dupont v. Starring, 42 Mich. 492 (4 N. W. 190).”

In Husted v. Willoughby, 117 Mich. 56 (75 N. W. 279), the following language was used:

“In Diehl v. Zanger, 39 Mich. 606, it was said:
“‘The long practical acquiescence of the parties concerned in supposed boundary lines should be regarded as such an agreement upon them as to be conclusive, even if originally located erroneously.’
“See Smith v. Hamilton, 30 Mich. 433 (4 Am. Rep. 398); Joyce v. Williams, 26 Mich. 332; Stewart v. Carleton, 31 Mich. 270; Dupont v. Starring, 42 Mich. 492 [4 N. W. 190]; Burns v. Martin, 45 Mich. 22 [7 N. W. 219]; Jones v. Pashby, 67 Mich. 459 (35 N. W. 152, 11 Am. St. Rep. 589 ). If, then, the agreement as to what should be regarded as the true line between these two descriptions, which was made when the surveyor was employed, is conclusive, it would logically follow that the line so established was the south line of the N. W. ■£ of the N. W. i, and the north line of the S. W. \ of the N. W.

See, also, White v. Peabody, 106 Mich. 144 (64 N. W. 41); Tritt v. Hoover, 116 Mich. 4 (74 N. W. 177); Breakey v. Woolsey, 149 Mich. 86 (112 N. W. 719). In La Mont v. Dickinson, 189 Ill. 628, 637 ( 60 N. E. 40, 43), the following language is used:

‘ * The law is well settled that, where the boundary line between two estates is indefinite or unascertained, the owners may, by parol agreement, establish a division line, and the line thus defined will afterwards control their deeds notwithstanding the statute of frauds. The principle upon which this conclusion is arrived at is, that the effect of the parol agreement is not to pass real estate from one party to another, but simply to define the boundary line to which their respective deeds extend.”

See, also, Sneed v. Osborn, 25 Cal. 619; Young v. Blakeman, 153 Cal. 477 (95 Pac. 888), and the many cases cited therein.

Judgment is affirmed.

Ostrander, C. J., and Bird, Brooke, and Stone, JJ., concurred.


author: Stone, J.

text:
    PEOPLE v. STEWART.
    1. Criminal Law — Statutes—Complaint and Warrant — Sufficiency — Negativing Exceptions.
    Under 2 Comp. Laws, § 5324 et seq., a complaint and warrant charging respondent with selling goods by sample without a license is sufficient without negativing the exceptions mentioned in a subsequent seotion of the statute.
    2. Constitutional Law — Interstate Commerce — Sales by Sample — License.
    The provisions of the statute (2 Comp. Laws, § 5324), prohibiting the sale of goods by sample without a license are not in violation of the Federal Constitution relative to interstate commerce.

    8. Same.
    Respondent, who engaged in soliciting orders in Michigan for groceries and other goods by sample, having a place of business in Illinois from which he shipped goods in bulk not designated to any particular purchaser, consigned to respondent in person, who also kept goods in storage in Michigan, and delivered orders from the stock, was not carrying on interstate commerce.
    4. Same — Statutes.
    If Act No. 225, Pub. Acts 1907, is unconstitutional as a discrimination against nonresidents of the State, respondent is chargeable with a violation of the previously existing law (2 Comp. Laws, §§ 5324, 5330), which remains in force.
    5. Criminal Law — Hawkers and Peddlers — Misdemeanors— Limitation of Actions.
    The proviso in the statute requiring prosecutions for the recovery of the statutory penalty to be brought within sixty days does not affect a charge for engaging in business without a license but relates only to the recovery of the penalty prescribed by section 5331.
    6. Same — Date of Offense.
    In the case of a complaint and warrant alleging the date of the offense under a videlicet, the prosecution is not limited to the exact day alleged, unless an election as to the date is asked for and required on the trial.
    7. Same — Evidence.
    Evidence of actual sales made by respondent was admissible.
    8. Same — Directing Verdict — Trial.
    It was not error for the circuit judge to advise the jury, under uncontradioted evidence, that respondent was guilty of violating the statute where the privilege of retiring to the jury room, electing a foreman and returning a verdict was accorded to them, and where the conclusion of the judge was correct, and a verdict of guilty was returned.
    Exceptions before sentence from Berrien;
    Coolidge, J. Submitted June 28, 1911.
    (Docket No. 2.)
    Decided November 3, 1911.
    David J. Stewart was convicted of selling goods by sample without a license.
    Affirmed.

      Franz C. Kuhn, Attorney General, and William H. Andrews, Prosecuting Attorney, for the people. .

      George W. Bridgman, for defendant.

      License tax on hawkers and peddlers and persons engaged in soliciting orders by sample or otherwise as a violation of the commerce clause, see notes in 19 L. R. A. (N. S.) 297; and 28 L. R. A. (N. S.) 265.

   Stone, J.

This case is before this court upon exceptions after conviction and before sentence. The case originated in justice’s court. The charge against the respondent, dated the 8th day of November, 1909, was that theretofore, to wit, on the 1st day of August, 1909, at the county of Berrien, and for ten days preceding that date, one David J. Stewart did travel from place to place within the county of Berrien, State of Michigan, for the purpose of taking orders for the purchase of goods, wares, and merchandise, by sample lists and catalogues, without having then and there obtained a license as a hawker and peddler, as required and provided by chapter 136 of the Compiled Laws of Michigan of 1897, as amended. The respondent stood mute when arraigned in justice’s court, and upon conviction there he appealed to the circuit court, where the conviction here complained of occurred.

The statute ( section 5324, 2 Comp. Laws ) under which the respondent was arrested is as follows:

“Noperson shall be authorized to travel from place to place within this State, for the purpose of carrying to sell or exposing to sale any goods, wares, or merchandise, or to take orders for the purchase of goods, wares, or merchandise, by sample lists or catalogues, unless he shall have obtained a license as a hawker and peddler in the manner hereinafter directed.”

By the terms of section 5329, 2 Comp. Laws, a violation of this statute is made a misdemeanor, and it is provided that upon conviction thereof before any court of competent jurisdiction the offender shall be punished by a fine of not more than $50 and costs of prosecution, or by imprisonment in the county jail for a period not exceeding three months, or by both such fine and imprisonment, in the discretion of the court before which the conviction may be had.

Upon the trial in the circuit court, the evidence tended to show that the respondent had for many years lived in the city of Chicago, 111., and had been engaged in the running of a general store there, carrying a general stock of goods amounting to about $3,000 or $4,000. This store appears to have been in charge of respondent’s wife, brother, and son, while the respondent has spent most of his time for the past several years in Michigan, soliciting orders and selling goods, which were shipped into Michigan from his store. He has never obtained nor procured a license as required by the statutes above referred to. The course of business seems to have been that the respondent would ship these goods to St. Joseph in car load lots, and included therein were flour, sugar, coffee, tea, soaps, etc. The sugar was put up in packages of 25, 50, and 100 pound sizes, and the sugar was packed together. Teas, coffees, flour, and many other articles were put up in packages varying in size, and placed in the car. Each kind of goods was packed separately; that is, all coffee in one bulk, and all tea in one bulk, etc. This car of goods would be consigned to the respondent himself, and there was no mark of any kind upon any of the goods to identify the goods with any particular order, or any particular person. When the car arrived, the respondent would fill therefrom orders, which he claimed to have previously solicited and taken. When an order of goods which had been taken was refused, or for any reason the order of goods was not delivered, the goods would be returned to the car, or placed in a warehouse or storehouse provided by respondent for that purpose. At the time respondent took orders, his practice was to make out a duplicate slip of each order, forwarding one to the Chicago house and retaining the other, and from the slip retained he would fill the various orders from the car. The retained slip seems to have been the only means that respondent had of determining the contents of the various orders, or to whom they belonged. The car would be allowed to remain upon the side track at St. Joseph for several days, from which place the delivery of goods would be made, and from which place respondent would sell goods at times. It appeared in the evidence that at the time of the trial in the circuit court respondent had a stock of goods amounting to about |100 stored in his warehouse or storehouse in the city of Benton Harbor, from which latter place he would make deliveries for either orders taken or goods sold.

We think the main questions in the case to be considered under the assignments of error were embraced in objections to all testimony made by respondent’s counsel upon the trial. These objections were:

(1) That the complaint and warrant set forth no crime known to the laws of the State of Michigan.

(2) That the complaint and warrant do not negative or show that the defendant was not selling his own work or production by sample; nor that he was not peddling meat or fish; nor that he was not a merchant, and was conducting a regularly established mercantile business in the county of Berrien for at least one year previous; nor that he was not a wholesale merchant selling by sample to dealers.

(3) That the law of the State of Michigan mentioned in the complaint and warrant in this case, and upon which such complaint and warrant , are made, is unconstitutional for the following reasons: That such law is in violation of section 8, art. 1, of the Constitution of the United States, which vests in the Congress of the United States the power to regulate commerce between the States; and also in violation of section 2, art. 4, of such Constitution, which provides that citizens of each State shall be entitled to all the privileges and immunities of the citizens of the several States; and also that such law is in violation of article 1 of the fourteenth amendment to the Constitution of the United States, which provides that no State shall make or enforce any law which abridges the privileges or immunities of the citizens of the United States, nor deny to any person the equal protection of the laws. Because such law discriminates against the citizens of different States, and is in restraint of interstate commerce in this: That such law expressly exempts from its operation any merchant who has been conducting a regularly established mercantile business in any county of the State for a period of at least one year previous; and also provides that any wholesale merchant shall not be prevented by anything therein contained from selling to dealers by sample without any license.

(4) Because no proceedings were had, as appears by the complaint and warrant in this case, and such complaint and warrant were not issued until after 60 days from the time in which the offense mentioned in such complaint and warrant were alleged to have been committed.

It is also urged in the assignments of error that the court erred in not confining the testimony to transactions occurring within the ten days limited in the complaint and warrant; and that the court erred in its charge to the jury.

The first andsecond objections urged maybe considered together. Perhaps it is sufficient to say that they are not discussed by appellant’s counsel in his brief. We think, however, that, under the repeated decisions of this court the complaint and warrant did state and charge an offense within the statute, and that the exceptions being in a separate section were not required to be negatived in the complaint and warrant.

Coming to the third point urged by respondent’s counsel, wherein he contends that the act in question is unconstitutional, and that the case at bar comes within the interstate commerce laws, and is governed by the case of People v. Bunker, 128 Mich. 160 (87 N. W. 90), we are of opinion that this statute, which has been sustained in numerous cases, is not unconstitutional for the reasons stated; and that, while we recognize the soundness of the doctrine announced in People v. Bunker, supra, we do not think it governs this case. The facts in that case differ materially from those in the instant case. In the Bunker Case, respondent was selling knives by sample; and, as stated in the opinion, he did not have with him, or at any place in the State, any stock of knives with which to furnish customers, or to fill orders; that every knife for which an order would be taken would be furnished by the firm at Canton and sent to him for delivery.

The further case cited by counsel, that of Brennan v. Titusville, 153 U. S. 289 (14 Sup. Ct. 829), cited in the Bunker Case, is a case where picture frames were sold only by sample, were manufactured in Illinois, and the goods were sent by express, either to the purchaser or to the agent, and the moneys collected and sent to the manufacturer. Here the respondent solicited orders, and shipments were made in car load lots in bulk, unidentified, and consigned to the respondent. Refused goods were returned to the car, or a warehouse or storehouse kept and maintained by respondent, and new orders were filled and goods sold from this place. None of the orders was kept separate, nor was any identification mark placed upon any of the goods to distinguish them, or to indicate that they .belonged to any particular order or person; and the sales were really made in this State. Many authorities could be cited holding that the interstate commerce law does not obtain under such circumstances. The decisions of this court have so decisively settled this question that we do not cite other authorities. People v. Sawyer, 106 Mich. 428 (64 N. W. 333); City of Muskegon v. Zeeryp, 134 Mich. 181 (96 N. W. 502); City of Alma v. Clow, 146 Mich. 443 (109 N. W. 853); People v. Smith, 147 Mich. 391-397 (110 N. W. 1102); City of Muskegon v. Hanes, 149 Mich. 460 (112 N. W. 1077); Despres, Bridges & Noel v. Zierleyn, 163 Mich. 399 (128 N. W. 769).

The circuit judge held, and so charged the jury, that, where the goods were shipped in bulk, consigned to respondent, and no mark upon any of the goods to indicate that they were for any particular order, or any particular person, the respondent was not within the protection of the interstate commerce law. There was undisputed evidence at the trial that at the car the respondent carried on a part of his business, as well as at the storehouse. We think the holding of the circuit judge finds support in the cases above cited.

In 1897, Act No. 248 of the Public Acts of that year was enacted, which was held unconstitutional by this court in Rodgers v. Kent Circuit Judge, 115 Mich. 441 (73 N. W. 381), for the same reason that is urged against the amendment in Act No. 225, Pub. Acts 1907, to wit, that it discriminated against a nonresident of the State. If it is true, as is urged, that Act No. 225, last above referred to, is unconstitutional for the same reason, then section 5330, 2 Comp. Laws, remains in force.

The nest ground of error urged is that the complaint was not made and warrant issued until after 60 days from the time in which the offense charged was alleged to have been committed. We have already stated that the offense with which we are here dealing is by the statute made a misdemeanor. There are certain penalties provided for in the chapter under consideration. For instance, section 5331 provides:

“Every person who shall be found traveling and trading as aforesaid, and who shall refuse to produce a license as a hawker or peddler to any officer or citizen who shall demand the same, shall, for each offense, forfeit the sum of ten dollars.”

Then follows section 53316, which provides that no prosecution for the recovery of any penalty imposed for any violation of the provisions of this chapter, relating to hawkers and peddlers, shall be maintained, unless it shall be brought within 60 days after the commission of the offense charged. Respondent’s counsel urges that this last section applies to the offense charged in this case. We do not so read the statute. The provision clearly relates to prosecutions for the recovery of the penalty, and has no application here. This offense being a misdemeanor will be governed by the general statute with reference to the limitation of actions.

As the offense charged in the complaint and warrant was alleged with a videlicit, the prosecution was not confined to the exact day alleged. The record does not disclose that respondent asked that the prosecutor should elect as to the date upon which he relied, and we do not think this question is open. We find no error in the ruling of the court in receiving evidence of actual sales. They tended to show that the respondent was engaged in the business of hawking and peddling.

We shall not consider all of the exceptions relating to the charge of the court, for the reason that the circuit judge, under the undisputed evidence in the case, found that the respondent had violated the statute, in his opinion, and so stated to the jury, giving the jury, however, the privilege of retiring to their room, selecting a foreman, and returning a verdict. This privilege was exercised by the jury, and they returned a verdict of guilty. A careful reading of the record satisfies us that the conclusion reached by the circuit judge was the correct one, and it is not important to consider other parts of the charge; the jury having reached the same conclusion.

We find no reversible error in this record. The conviction is affirmed, and the circuit court is directed to proceed to judgment thereon.

Moore, MoAlvat, Brooke, and Blair, JJ., concurred.