author: Moore, J. Ostrander, J.

text:
    CHRISTOPHERSEN v. METROPOLITAN LIFE INSURANCE CO.
    1. Insurance — Life Insurance — Payment of Premiums — Directed Verdict.
    In an action on a life insurance policy where the policy contained a recital that the premium had been paid, but there was evidence that a letter was sent with the policy advising insured that the premium was not paid, and the application provided that there should be no liability on the policy until it was delivered and the first premium paid, ■ the court erroneously directed a verdict on the ground that there was a completed contract.
    2. Trial — Depositions—Abuse of Discretion.
    In an action on a life insurance policy, it was an abuse of discretion for the trial court to refuse a continuance to allow defendant an opportunity to perfect the certification of depositions of 'witnesses necessary for its defense.
    Moore and Bird, JJ., dissenting.
    Error to Muskegon; Sullivan, J.
    Submitted October 5,1917.
    (Docket No. 42.)
    Decided December 28, 1917.
    Assumpsit by Kittie Christophersen against the Metropolitan Life. Insurance Company on a policy of insurance. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Reversed.

      Kleinhms, Knappen & Uhl, for appellant.

      Cross, Vanderwerp & Foote, for appellee.
   Moore, J.

{dissenting). From a judgment upon a directed verdict for the plaintiff this case is brought here by writ of error. This suit is brought by Kittie Christophersen, beneficiary named in the insurance policy issued by defendant to Alda C. Christophersen, her sister. Alda Christophersen was a domestic in an apartment house in Chicago. In January, 1916, she came to Muskegon on a visit. While there upon January 29, 1916, she made application for a policy of insurance. She returned to Chicago February 13th, in apparent good health. February 22dj or early the next morning, she was taken sick. On the 24th she was taken to Lakeside Hospital, where an operation for peritonitis was performed. She died the next. morning. She was not married. Her sister, the plaintiff in this, case, told Dr. Johnstone at the hospital on the 24th that she was pregnant. The day she died the policy of insurance was found. It had been mailed to her from Muskegon, and was still in the envelope with a paper which read as follows:

''Metropolitan Life Insurance Co., '
“Grand Rapids District.
“Miss Alda Christophersen:
“Will you please send $8.79 and your policy will be paid for six months.
“Yours truly,
“J. M. Brouwer,
“Metropolitan, Muskegon.”

The defendant offered evidence that only $3 had been paid upon the first six months’ premiums, and that the first full premium had never been paid. The court refused to admit testimony as to the nonpayment of the premium. The defendant also offered testimony that no credit had been given for the premium; that neither of the agents who took her application extended credit, or ever claimed to her that they had authority to extend credit. The court refused to admit this testimony.

The defendant’s notice under the plea of the general issue set up as a defense that Miss Christopher-sen died as the result of the performance of an abortion. To support this claim defendant took the depositions of Dr. Lillian Hobbs, Dr. A. R. Johnstone, and police officers Howard F. Ryley and William P. Swain. The notice to take these depositions was given on October 16, 1916. They were taken on October 24th, and by mistake they were mailed in an envelope addressed. to the “County Clerk of Muskegon County, Grand Rapids.” Upon learning of this fact defendant’s counsel telephoned plaintiff’s counsel, and upon his agreement had them sent direct from Grand Rapids to Muskegon, where they were filed October 31, 1916, the day before the trial commenced. When defendant sought to introduce them, on the second day of the trial, objection was made because the notary before whom they had been taken had neglected to affix his seal of office or attach to the depositions a certificate of the county clerk showing his authority as a notary. The court refused to admit the introduction of the depositions, and defendant then made a motion to continue the case to give an opportunity to send the depositions to Chicago to have the notary affix his seal and get the requisite certificate of the county clerk. This motion was also refused by the court. The court directed the jury to render a verdict for the plaintiff for the face of the policy, $500, upon which a judgment was entered.

There are many assignments of error which are grouped by counsel into two classes. The, first class applies to the court’s action in refusing to admit any testimony in regard to the nonpayment of the premium, the agent’s authority to extend credit for the premium, and the testimony that the agents did not claim authority to extend credit for the premium. The second class pertains to the denial of defendant’s motion for a continuance.

The photographic copy of the application for the policy, which was signed by Alda C. Christophersen, was attached to and made a part of the policy. This application contained, among other things, the following statement:

“It is further agreed that the company shall incur no liability under this application until it has been received and approved, and the policy issued and delivered, and the full first premium stipulated in the policy has actually been paid to and accepted by the company during the lifetime of the life proposed.”

Rules for the conduct of agents were offered, but were not received in evidence. The two important ones read:

“232. Delivery of Policies. — All policies are sent the day they are written at the Home Office. They should be offered to applicants as soon as possible after they are received but then only in exchange for the full cash premiums, provided in each case that the applicant is in good health.
“The policy is a receipt for the first premium, and therefore, if the policy be delivered except in exchange for the full cash premium, and the company is put to any expense in the way of litigation or payment of a claim, the company will look to the offender for reimbursement.”

The policy contains the statement:

“In consideration of the application for this policy a copy of which application is attached hereto and made a part hereof, and of the payment of the semiannual premium of eleven dollars and seventy-five cents, the receipt of which is hereby acknowledged,” etc.

The policies also contain the following:

“No agent is authorized to waive forfeitures or make, modify, or discharge contracts or to extend the time for paying a premium.”

We quote from the brief of counsel for appellant:

“The introduction of this policy undoubtedly raises a presumption that the premium has been paid, but it is the contention of the defendant, supported by the text-writers and a number of well-considered cases, that this presumption is not conclusive, and that in such cases the defendant may show that as a matter of fact the premium has not been paid. It'will be argued that the possession of the policy by Alda Christophersen is evidence of a conclusive delivery, but the manual possession of a life insurance policy has very little bearing upon the question of delivery. Delivery is a matter of intention. If the insurer intended by sending the policy to the applicant to put it in force, then there is a delivery. On the other hand, it is always open for the defendant to show under what circumstances the applicant has possession of the policy. The undisputed- facts show that Alda Christophersen must have known that the policy she had in her possession was not in force. The letter written from Agent Brouwer inclosed in the envelope with the policy found with it after her death, informed her that not until the balance of the premium is paid will the policy be in force. It says: ‘Will you please send $8.79 and your policy will be paid for six months.’
“In view of the law as we will show, it was clearly error for the court to refuse to admit any of the testimony of the defendant’s witnesses as to the payment of the premium,” counsel citing Richards on Insurance Law, p. 199. * * * Richards on Insurance Law, p. 495, which reads:
“ ‘The payment of the premium is the essence of the contract, and in fact constitutes all that the company receives on its part, and under the usual phraseology of life insurance policies a failure to pay on or before the day or hour stipulated will cause a forfeiture of a subsisting policy unless the company is in some way responsible for the omission or waives it.’
“Page 498: * * * Page 504, which reads:
“,‘But in the case of ordinary life policy the liability of the company does not attach at all, and no compensation is earned until the first premium is paid or until note or credit or other substitute is accepted in its stead'. Under such a policy the only result of nonpayment of the first premium is that the contract is not closed.’”

Counsel also cite other cases, including Bowen v. Insurance Co., 178 Mich. 63 (144 N. W. 543, 51 L. R. A. [N. S.] 587). Counsel on the other side also cite that case. It is not controlling because there was no delivery of the policy to the insured.

It must be admitted that it would be difficult to harmonize all of the authorities. The kernel of the nut to be cracked in the instant case is: How is the fact of the payment or nonpayment of the first premium to be decided?

In 2 Words and Phrases, p. 1963, it is said under the head “Delivery by mail or to carrier”:

“A delivery of goods to a common carrier, consigned to a particular person without specific directions, different from ordinary usage, is constructively a delivery to the consignee. Where the. vendee is the consignee, the delivery of goods to a common carrier, without qualifications, consigned to that vendee, is in law a constructive delivery to the consignee from the time of shipment and the commencement of the carriage. Lake Shore, etc., R. Co. v. National Live Stock Bank, 53 N. E. 326, 328, 178 Ill. 506, citing Benj. Sales (2d Am. Ed.), p. 649, par. 693, and Merchants’ Despatch Co. v. Smith, 76 Ill. 542.”

In the instant case the policy was inclosed in an envelope as follows:

“Return if not called for within 5 days to Metropolitan Life Insurance Company. (Incorporated by the State of New York) New York. Muskegon.
“Miss Alda Christophersen,
“4149 Ellis Ave.,
“Chicago, 111.”

It was, postmarked “Muskegon, February 19, 7:00 p. m., Mich.”

The envelope and policy were not returned to Muskegon by the insured, but were found in a dresser with other letters and papers belonging to her. We think it must be held there was a delivery of the policy.

In 16 Am. & Eng. Enc. Law (2d Ed.), at page 862, it is said:

“Interpretation and Construction. — a. General Prim ciples — (1) Interpretation to be made by Court. — It is a firmly established and universally recognized rule of law that the construction of a written instrument is a question of law for the court; and where there is no ambiguity or conflicting inference of the language of the insurance policy when applied to the undisputed facts, it is error to leave its interpretation to the jury.
“(2) General Rules of Construction. — The same general rule of construction which applies to other instruments applies equally to policies of insurance; that is, they are to be construed agreeably to the intention of the parties.
“Interpretation of Terms Used. — This intention is in the first place to be drawn from the language of the instrument. The words employed are themselves to be understood in their plain, ordinary, and popular sense, unless they have generally, in respect to the subject-matter, as by the known usages of trade, or 'che like, acquired a peculiar sense distinct from the popular sense of the same words, or unless the context evidently points out that they must in the particular instance, and in order to effectuate the immediate intention of the parties to that contract, be un-. derstood in some other special and peculiar sense.”

We have already seen that the rules given the agent, which the insured had never seen, forbid the delivery of the policy until the premium is paid. One of the rules indicates the company realizes the serious results which follow the delivery of the policy, and warns the agent the company will look to him for indemnity. We have also seen that it is recited in the policy that no agent has any right to make or modify the contract.

The query then is a very pertinent one, whether, after the policy reciting the fact that the premium has been received is delivered and the insured is dead and cannot testify upon the question of the payment or nonpayment of the premium, the company may absolve itself from liability by invoking the oral testimony of the agent who took the application that he had violated his instructions.

May the written statements contained in the written contract, after the death of the insured and the liability under the policy has arisen, be contradicted by the oral testimony of the agent who is directly interested in the outcome of the litigation so as to result in the nullification of the recital in the contract? In one of the authorities cited by the appellant, 2 Bacon on Benefit and Life Insurance, § 353, it is said:

“Policy Does Not Attach Until First Premium, is Paid if Contract so Provides. — By signing the application and accepting the policy the insured is deemed to have had notice of, understood, and agreed to the terms, limitations, and conditions contained in the application and the policy, and if the latter provides that it shall not take effect until the advance premium is paid during the lifetime of the assured, then, unless such payment is made, the policy does not attach, and the delivery of the receipt without payment avails nothing. Such payment is a condition precedent that must be complied with. Delivery of the policy by an agent contrary to instructions and by mistake will not make the company liable. * * *.
“But where the receipt of premium is acknowledged in the policy, the insurers will not be heard to deny the fact, unless they can show that the acknowledgment was made by fraud, error, or duress” — citing many cases in the note.”

In Teutonia Life Ins. Co. v. Anderson, 77 Ill. 384, it is said:

“This court has twice decided that insurance companies, on the ground of public policy, will be estopped to prove, for the purpose of avoiding the contract of insurance, that the premium acknowledged in the policy to have been paid was not, in fact, paid. Illinois Cent. Ins. Co. v. Wolf, 37 Ill. 354 [87 Am. Dec. 251]; Provident Life Ins. Co. v. Fennell, 49 Ill. 180.”

The question presented here was before the court in Dobyns v. Bay State Beneficiary Ass’n, 144 Mo. 95, 107 (45 S. W. 1107, 1110). We quote from the opinion:

“But the contention of defendant is that Mr. Dobyns never paid the advance premium, and hence the policy lapsed or never became a binding obligation on the company. The instructions were asked with a view to this failure to pay the advance premium. As this case was tried to the court without a jury, and the court found for the plaintiff, the plaintiff has not appealed, but it is entirely proper to note in considering defendant’s appeal that plaintiff objected all along to the proof tending to prove the advance premium was not paid. If that evidence was not competent, then defendant has no ground of complaint. So that the all-controlling question in this case is: Can the defendant defeat plaintiff’s recovery by proving that as a matter of fact Mr. Dobyns never paid the semiannual assessment or premium, notwithstanding the formal acknowledgment of payment thereof in the policy or certificate? Upon authority, the analogies of the law, and reasons of sound public policy, we think not. Keeping in view the character of the insurance, we think the courts have settled the effect of the receipt in the body of this policy, and so far as they have spoken have conclusively estopped the defendant from averring or proving the nonpayment of the premium for the purpose of denying the existence of the contract of insurance. If this contract ever existed, it was good for six months from April 7, 1894, and hence was operative when Mr. Dobyns died on August 10, 1894. * * *
“Chancellor Kent, in his Commentaries, says that ‘the receipt of the premium in the policy is conclusive evidence of payment and binds the insurer unless there be fraud on the part of the insured.’ 3 Kent’s Com. note, p. 260. The supreme court of Illinois, in Illinois Cent. Ins. Co. v. Wolf, 37 Ill. 354 [87 Am. Dec. 251], Provident life Ins. Co. v. Fennell, 49 Ill. 180, and Teutonia Life Ins. Co. v. Anderson, 77 Ill. 384, holds that ‘insurance companies, on the ground of public policy, will be estopped from proving, for the purpose of avoiding the contract, that the premium acknowledged in the policy to have been paid was not in fact paid.’ To the same effect see Fellowes v. Insurance Co., 2 Disney (Ohio), 128; New York Cent. Ins. Co. v. Insurance Co., 20 Barb. (N. Y.) 475; Dalzell v. Mair, 1 Camp. 532; Foy v. Bell, 3 Taunton, 492; 1 Phillips on Ins. §§ 514, 515; 1 Marshall on Ins. p. 335. These decisions are in harmony with the rulings of this court and the great current authority in the United States that, while for some purposes parol evidence is admissible to show the real consideration in a deed, it is not permitted by parol ‘to so vary or control the operative words of the deed as to defeat the conveyance.’ McConnell v. Brayner, 63 Mo. 461; Hollocher v. Hollocher, 62 Mo. 267.”

The opinion is very long, and cites many authorities.

In Basch v. Insurance Co., 35 N. J. Law, 429, the policy recited the receipt of the premium, and the court said in part:

“It is very clear that this action must altogether fail, if the fact that the premium for the insurance was not paid before the loss is competent evidence in the ease. The only question on this first point, therefore, is whether the company can be permitted to show, under the circumstances of the case, the failure of the plaintiff to pay the premium anterior to the fire in compliance with the condition of the policy, which has been recited.
“This policy of insurance, executed by the president and secretary of the company, contains a formal acknowledgment of the payment of the premium in question, and, in my opinion, this should prevent the defendants from averring or showing nonpayment for the purpose of denying that the contract ever had any legal existence. What does this receipt in its connection with the delivery of the instrument import, if it does not mean that the payment of the premium is conclusively admitted to the extent that such payment is necessary to give vitality to the contract? Unless this be its meaning, it serves no legal office, for it does not mean that the money has been actually received. It is true that there is an express declaration that the policy is to have no effect until the premium shall have been paid; but in this same instrument is an equally express statement that the act on which the contract is to become efficacious has been done. Such an acknowledgment appears to be analogous, and equivalent to the acknowledgment of the receipt of a valuable consideration in a conveyance operative by force of the statute of uses; such acknowledgment being always considered conclusive for the purpose of giving a legal force to the transaction. This policy of insurance purports to have an effect immediate on delivery, founded on a paid-up consideration; it does not seem competent for the promisor to prove that the acknowledgment is not true, and that the contract never had any existence. I think, when the assured received this policy, he had a right to presume either that the agent had settled the premium with the company, or that they, by their receipt, intended to relinquish the clause requiring prepayment.
“The usual legal rule is that a receipt is only prima facie evidence of payment, and may be explained; but this rule does not apply when the question involved is not only as to the fact of payment, but as to the existence of rights springing out of the contract. With a view of defeating such rights the party giving the receipt cannot contradict it. An acknowledgment of an act done, contained in a written contract, and which act is requisite- to put it in force, is as conclusive against the party making it as is any other part of the contract; it cannot be contradicted or varied by parol.”

After a life insurance policy is delivered containing a statement of fact, and the insured is dead, it would not conserve public policy to annul the liability growing out of such an instrument by permitting oral proof that the fact stated did not exist.

We come now to the second question: Did the court so abuse its discretion in the conduct of the trial by overruling the motion for a continuance to require a reversal of the case? The testimony offered in evidence was that of witnesses outside the jurisdiction of the Michigan court. The depositions were taken by the Chicago attorneys of the defendant company. The requirements of the statute to entitle the depositions to be read could be easily ascertained, and with a small degree of diligence could be met.

The case had beén at issue five months. The trial was well under way when the depositions were offered. The plaintiff had closed her case, and two witnesses had been sworn on the part of the defendant. We do not think the trial judge so abused his discretion as to the conduct of the trial as to require our interference. See Bussey v. Bussey, 71 Mich. 504 (39 N. W. 847); Winklemeir v. Daiber, 92 Mich. 621 (52 N. W. 1036); McNaughton v. Evert, 116 Mich. 141 (74 N. W. 486); Roney v. Healy, 170 Mich. 46 (135 N. W. 959).

The judgment should be affirmed, with costs to the plaintiff.

Bird, J., concurred with Moore, J.

Ostrander, J.

The first point involved in the case is decided by my Brother Moore by application to the facts disclosed of a rule of evidence. The rule applied is that the admission or recital in a policy of life insurance that the premium has been paid is, for the purpose of making a completed contract, conclusive evidence of such payment when manual possession of the policy is given to the insured by the insurer or by its agent. The facts tend to disprove that the premium on the particular policy had been paid when possession of the policy came to the insured. The letter which went with the policy negatives payment. In precise keeping with the application for the policy, the letter advises the insured that the premium is not paid, and, by necessary inference, that until paid the policy will hot be in force. It plainly appears that when the policy came to the possession of the insured she was advised that the contract of insurance was not in force, was not á completed contract. Like other contracts, a contract of life insurance must be completed before it is enforceable. The application for the policy, a preliminary negotiation for the contract of life insurance, evidences the understanding of the insured that payment of the premium was required in order to complete the contract. Assume that an agent of the insurer might waive the payment and thereby bind his principal. There is no evidence that this agent waived, or intended to waive, the payment of premium. Nothing which he did can be construed as a waiver, unless it is the giving of manual possession of the policy to the insured. But the agent did not unequivocally deliver the policy. He sent a letter with it. All that he did must be considered, not a part of it only. And when all that he did is considered, and is referred to the preliminary negotiation evidenced by the application for the policy, we have a set of facts tending to prove that in contemplation of neither of the parties was there a completed contract. It may be put rather stronger than this. The facts tend to prove that both parties knew that the contract, to be completed, required the payment of the premium. It is plain that the defendant company, the insurer, was at pains to have it mutually understood that payment of the premium was essential to a completed, contract. Whatever the legal effect of an unequivocal delivery of the contract may be, no such delivery was made in this, case. The rule of evidence sought to be applied has the effect of making a contract which the parties knew was not made. As sought to be applied, it conclusively establishes a fact, the existence of which the conduct of the parties negatives.

In Russell v. Insurance Co., 176 N. Y. 178 (68 N. E. 252, 98 Am. St. Rep. 656), the policy was delivered. The receipt for the first premium was not, but by agreement was retained by the agent until the premium should be paid. In this case, as in that, there was the evidence that there had been no unqualified delivery of the policy. See, also, Rousseau v. American Yeomen, 186 Mich. 101 (152 N. W. 939). In my opinion, the trial court was in error in ruling that the evidence conclusively established a completed contract. Public policy is not served — not served with public profit — by the use of a rule which can work only private injustice.

I am of opinion also that it was an abuse of discretion to refuse defendant opportunity to perfect the certification of the depositions containing the testimony upon which a part of the defense is based.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    CHOLERTON v. DETROIT, JACKSON & CHICAGO RAILWAY.
    1. Carriers — Interstate Commerce — Electricity — Master and Servant — Statutes.
    In an action to recover damages for personal injuries sustained while plaintiff was employed by defendant interurban railroad as one of its bonding crew engaged in cleaning and wiring the ends of the rails of the tracks, where defendant owned and operated its railway wholly within the State and accepted freight to and from a point in another State on through bills of lading and collected charges for the full distance, held, that plaintiff was engaged in interstate commerce, within the Federal employers’ liability act, 35 U. S. Stat. 65.
    2. Same — Personal Injuries — Damages—Instructions.
    In an action by an interurban railroad employee under the Federal employers’ liability act to recover for personal injuries, where plaintiff claimed that he was injured as the result of the sudden starting of defendant’s car while he was attempting to get upon it, and defendant claimed plaintiff attempted to board a moving car, and the court charged that under such claims and the evidence if defendant’s claim was right plaintiff could recover nothing and if plaintiff’s claim was right he could recover all the damages sustained, and in effect that no question of contributory negligence was involved, held, that the question whether plaintiff attempted to board a moving car was submitted to the jury, and it was not error to .refuse an instruction on the diminution of damages because of contributory negligence of plaintiff.

    Error to Jackson; Parkinson, J.
    Submitted October 10, 1917.
    (Docket No. 77.)
    Decided December 28, 1917.
    Case by Clifford H. Cholerton against the Detroit, Jackson & Chicago Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed

      W. S. Cobb (Corliss, Leete & Moody, of counsel), for appellant.

      Lombard, Hext & Washburn (James J. Noon, of' counsel), for appellee.

      Authorities discussing the question of constitutionality, application and effect of the Federal employers’ liability act, see notes in 47 L.. R. A. (N. S.) 38; L. R. A. 1915C, 47.

   Moore, J.

The defendant owns and operates an interurban electric railway, extending from Jackson to Detroit, with a branch line running from Ypsilanti to Saline, in Washtenaw county. The defendant runs no cars out of the State, and no cars from other States enter upon its road.

Defendant accepts freight to be shipped to Toledo, and receives shipments of freight from that city. The packages are turned over to another transportation company at Detroit. Through bills of lading are made out for these shipments each way and charges collected for the full distance.

On the day of the accident, the plaintiff was working with what is known as the bonding crew. This crew consists of a motorman, conductor, and two men who work at cleaning the rails. In carrying on this work, a car with four wheels is used. This car was approximately eight feet in length and six feet in width, with canopy top, supported by uprights at each corner of the car. It was operated by electric motor, geared to run about twelve miles an hour. The crew rode from Ypsilanti on this car to their work. On one end of the car was a running board, and on the other a shallow box, in which material for their work was carried, and which was also used as a standing board. On this and the running board the men stood in riding on the car.

The work of bonding consisted of cleaning the ends of the rails, and then connecting them by wiring; the purpose being to provide an unbroken current through the rails. In preparing the rails for the bonding, the ends were cleaned by means of an emery wheel operated by a small armature attached to the trolley wire which was carried on the car from place to place by those in charge of the work. The plaintiff and another man performed the work of cleaning the rails.

On December 8,1914, the crew left Ypsilanti on the bonding car. It was a run to a switch to make a clearance for a car over the line. All members of the crew rode to the switch. It being near the noon hour, the conductor and motorman boarded an electric car and went to Ypsilanti for their dinner. The other two men ate their dinner at the switch. Upon the return of the conductor and the motorman, they prepared to resume the work of bonding. The switch referred to is what is called a dead-end switch, and the car passes out the way it enters. Three of the men boarded the car. The plaintiff went over and locked the section house. He testified that, after locking the section house, he crossed to the main track and walked toward the car which was standing on the main track, about 125 feet from him; that he walked toward the car when it started, and he stopped and waited for it to come where he was.

As to what occurred when the plaintiff undertook to board the car, the testimony is conflicting-.

The plaintiff testified:

“The car came right up in front of me and stopped. * * * I was just ready to pull myself up with my left hand hold of the upright and the other foot on the ground.”

He testified the car started suddenly while he was attempting to get on it, with the result that he was severely hurt.

The motorman testified the plaintiff tried to board the car while it was in motion.

The action is brought under the Federal liability act of April 22, 1908, which provides:

“Every common carrier by railroad while engaging in commerce between any of the several States * *
* shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative * *' * for such injury or death, resulting in whole or in part from the negligence of any of the officers [or] agents or employees of such carrier” (U. S. Comp. Stat. 1916, § 8657).

The casé was submitted to the jury by the trial court, resulting in a verdict and judgment for the plaintiff.

We quote from appellant’s brief:

“Questions of Law:
“First. That the testimony failed to establish that the defendant was, at the time of the injury, engaged in interstate commerce within the meaning of the act under which this action is brought.
“Second. That the proofs failed to establish that the plaintiff was, at the time he was injured, engaged in interstate commerce, but, on the contrary, showed his injury resulted from a cause disconnected with his employment, while he was not in the performance of any services for the defendant.
“Third. That whether or not plaintiff was, at the time of his injury, engaged in interstate commerce, was, under the circumstances shown by the testimony at most a question of fact for the jury.
“Fourth. That the question of plaintiff’s negligence should have been submitted to the jury, under the defendant’s sixth request to charge.”

The first three of these groups may be considered together. In 4 Words and Phrases, pp. 3725, 3726, it is said:

“Traffic is either State or interstate traffic according to its origin and destination. It is shipped by the consignor in the State where the consignee dwells, or it is not. If not, it is ‘interstate traffic.’ Ft. Worth, etc., R. Co. v. Whitehead, 26 S. W. 172, 6 Tex. Civ. App. 595. * * *
“A shipment may be interstate though transported by virtue of numerous bills of lading. If the purpose and intention is, when goods are shipped from St. Louis, that their final designation should be a point in Texas, it would be an interstate shipment, notwithstanding the transportation was not on a through bill of lading. Gulf, etc., R. Co. v. Fort Grain Co. (Tex.), 72 S. W. 419. * * *
“The fact that several different and independent agencies are employed in transporting the commodity, some acting entirely in one State and some acting through two or more States, does in no respect affect the character of the transaction. To the extent in which each agency acts in that transportation it is subject to the regulation of congress. The Daniel Ball, 77 U. S. (10 Wall.) 557, 564.”

In Holmberg v. Railway Co., 188 Mich. 605 (155 N. W. 504), Justice Steere, speaking for the court, said in part:

“While there is unusual conflict and contradiction in both the State and Federal authorities upon the question of when an employee of an interstate commerce road is or is not working under the provisions of the act, and even upon this direct question of track repair or improvements, it must be conceded the Federal authorities are controlling. The greatest number and latest decisions from that source have, we think, made a distinction between rolling stock, tools, and other appliances of a railroad which may or may not be used in its interstate service and its tracks, and settled the proposition that track maintenance or repairs not only facilitate, but are imperatively necessary to, all interstate commerce passing over the line; and the work of one engaged in such repairs is so directly connected and immediately beneficial to all commerce which uses the road that he must be regarded as covered by the act. Pedersen v. Railroad Co., 229 U. S. 146 (38 Sup. Ct. 648, Am. & Eng. Ann. Cas. 1914C, 153); Zikos v. Navigation Co., 179 Fed. 893; Thomson v. Railroad Co., 205 Fed. 203; Tralich v. Railway Co., 217 Fed. 675. In the latter case plaintiff was working on a steam shovel engaged in removing earth from the tracks and roadbed of a railroad which carried interstate merchandise.”

See, also, Collins v. Railroad Co., 193 Mich. 303 (159 N. W. 535).

We think plaintiff was engaged in interstate commerce.

We now come to group 4. Defendant’s sixth request to charge reads:

“6. The defendant in this case claims the plaintiff was himself guilty of negligence contributing to his injury. I instruct you that contributory negligence is the negligent act of a plaintiff, which, concurring and co-operating with the negligent act of the defendant, is the proximate cause of the injury. If you find that the plaintiff was guilty of contributory negligence, the act of congress, under which this suit is brought, provides that such contributory negligence shall not defeat a recovery altogether, but the damages to plaintiff shall be diminished in proportion to the amount of negligence attributable to plaintiff. So if you reach the question of damages in your deliberations, where you find it necessary to consider the defense of contributory negligence, I instruct you that the negligence of plaintiff, while not a bar to recovery, must be considered in diminution of the damages, and the actual damage you believe the plaintiff has sustained must be, by his contributory negligence, if you find he was guilty of such negligence, diminished in proportion of his negligence, as compared with the combined negligence of himself-and the defendant.”

With reference to this request, the court said:

“Under the statute invoked in this case and when the evidence justifies it, the jury have the right to determine the degree df negligence on both sides, and even if a plaintiff is found to be guilty of some negligence or carelessness and the defendant also guilty of some negligence or carelessness, such negligence on each side contributing to the accident, the jury have the right, and it becomes its duty, to determine to what extent each was careless and so diminish a plaintiff’s recovery in proportion to his own carelessness. But in this case I am not able to see how the damages, if any there be, can or should be divided or apportioned.
“Under the evidence in this case and the claims of the parties as. here made and argued before you, I instruct you that, if the plaintiff has shown his right to recover at all, he is entitled to his full damages without any diminution. I say that because, as the case has been tried and argued and as it stands, if the plaintiff’s theory is right, there is no evidence that he himself was careless and that his carelessness helped to bring about the injury. And if the defendant’s claim is right, he is entirely responsible for his injury and is not entitled to recover a cent. But if he is entitled to recover at all, he can recover all the damages he has sustained, but if he is not entitled to recover at all, because he was trying to board a moving car, then your verdict is for the defendant and he gets nothing.”

An examination of the record shows that defendant claimed it was not negligent for the reason that plaintiff attempted to board a moving car. This claim was supported by the positive testimony of the motorman and in part by the testimony of the conductor. It was the claim of plaintiff that the car had stopped when he attempted to get upon it, and while he was boarding it that it was suddenly started and he was thrown. This claim is supported by the positive testimony of the plaintiff, whose testimony is, at least in part, corroborated by the testimony of Mr. Mallion.

We have read with care the claim of counsel in relation to the testimony of Mr. Mallion and have read all of his testimony with care. When so read, we think the only fair conclusion to be drawn from it was that the car had stopped when the plaintiff attempted to board it, and that while exercising diligence in doing so the car was started. The issue was clear cut. Did plaintiff attempt to board a moving car or not? This was submitted to the jury, who found he did not. We find no reversible error.

Judgment is affirmed, with costs to the plaintiff.

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


text:
    HOSLEY v. BAMBER.
    Animáis — “Running- at Large” — Damages—Statutes.
    In an action by a farmer against tbe owner of a bull and one wbo bad charge of it on bis own premises adjoining plaintiffs’ to recover damages for getting one of plaintiffs’ beifers witb calf while tbe bull was at large on plaintiffs’ premises, a judgment for plaintiffs was affirmed by divided court.
    Error to Livingston; Miner, J.
    Submitted October 12, 1917.
    (Docket No. 99.)
    Decided December 28, 1917.
    Case in justice’s court by Elijah B. Hosley and another against William Bamber and another for trespass. There was judgment for plaintiffs, and defendants appealed to the circuit court. Judgment for plaintiffs against defendant Bamber, who brings error.
    Affirmed by a divided court.

      Richard D. Roche and L. E. Howlett, for appellant.

      Frank J. Shields (Person, Thomas, Shields & Silsbee, of counsel), for appellees.
   Moore, J.

The plaintiffs, father and son, farmers, are breeders of shorthorn Durham cattle. They own two farms. Robert Eager, one of the defendants, owned a farm adjoining. In the summer of 1913, William Bamber, the appellant, who is a farmer, was rebuilding his barns and was the owner of a Holstein bull calf, nine months old in June, 1913. Mr. Bamber made an arrangement with Louis Eager, brother of Robert Eager, for the keeping of the bull until defendant Bamber rebuilt his barns. After Louis Eager had the bull for some weeks, he made an arrangement with Robert Eager to turn the bull on Robert Eager’s lands in the month of July, and he-ran on those lands from July until October. In October, 1913, plaintiffs were notified that defendant’s bull was upon their lands with their cattle. In the following July, one of the plaintiffs’ registered heifers gave birth to a spotted calf. This suit in trespass is against William Bamber and Robert Eager. The declaration alleges: First, a count for trespass; second, a count based upon the provisions of sections 7305, 7306, 2 Comp. Laws 1915. At the conclusion of the evidence, the court was requested to charge the jury as follows:

“I charge you that the statutes of this State pertaining to the running of animals ‘at large’ have no application to the facts in this case; that the plaintiffs cannot recover in this case on the count in their declaration charging the defendants with permitting the bull in question to run ‘at large.’ ”

The court refused to give this request, but charged the jury, in substance, that they could find a verdict against both defendants unless they believed that William Bamber had leased the bull to Louis Eager, and that at the time of the trespass the bull was in the control and possession of Louis Eager by virtue of the lease, in which case they should render a verdict for defendants upon the first count in the declaration. He also charged the jury, in substance, that they might find a verdict against William Bamber under the second count under the statutes above referred to, if the line fence was. defective and defendant Bamber permitted his bull to remain on Robert Eager’s land, knowing the condition of the fence to be defective. The judgment was against William Bamber alone for $50. The questions involved are whether the statute prohibiting the “running at large” of male animals applies to the facts in this case, and whether the court erred in refusing to give the request to charge above quoted.

The statute reads:

“Sec. 7305. The people of the State of Michigan enact, That, if the owner of any bull, stallion, boar or ram shall allow the same to go at large out of his inclosure, he shall forfeit the sum of five dollars for such offense, to be recovered on complaint before any justice of the peace of the county in which such owner may live, and twice that amount on any subsequent conviction: Provided, That such complaint shall be prosecuted within thirty days next after such animal shall be found at large as aforesaid.”

Section 7306 provides as follows:

“In addition to the penalty prescribed in the foregoing section,, the owner of said bull, stallion, boar or ram thus found going at large, shall be liable to the owner of any cow, mare, sheep or swine for any and all damages prising from the going at large of such animals as aforesaid to be recovered on any suit brought before any court of competent jurisdiction.”

The question at once arises: What constitutes “running at large” within the meaning of said act? Counsel. insist:

“That term [running at large] has been defined many times by the courts under similar statutes, and the rule is well settled that ‘running at large’ means ‘strolling without restraint or confinement; rambling at will.’ ” Eklund v. Toner, 121 Mich. 687, 689 (80 N. W. 791).
“Running at large is used in the statutes in the sense of strolling without restraint or confinement, as wandering, roving or running at will; unrestrained.” 3 C. J. p. 179. See cases cited, note 73..
“Animals are not running at large if they are under the control of a person having the right of control.” 3 C. J. p. 179.

They cite many other authorities, and claim that the bull was not within the statute when committing the trespass.

Counsel for the appellee insist that the authorities cited relate to cases where the animals were alleged to be running at large in the highway, and are not applicable to the instant case. An examination of those authorities will show that they did not involve the construction of the sections of the statute quoted. By the common law it was the duty of the owner of domestic animals to restrain them within his own close, at his peril, unless they escaped by means beyond his control. Cooley on Torts (2d Ed.), p. 397; (3d Ed.), page 684; 2 Cyc. p. 392; 3 Corpus Juris, § 393; Ingham on Animals, § 70, p. 258; Collins v. Lindquist, 154 Mich. 658 (118 N. W. 596), and the many cases cited therein. No case directly in point has been decided by this court.

A similar statute found in chapter 14 of the laws of Wisconsin, 1903, is construed in the case of Kopplin v. Quade, 145 Wis. 454 (130 N. W. 511). In that case a judgment for damages given to plaintiff under circumstances like those involved in the instant case was affirmed.

Judgment is affirmed, with costs to the plaintiff.

Kuhn, C. J., and Bird and Fellows, JJ., concurred with Moore,

Ostrander, J.

(dissenting). I am not persuaded that an animal restrained within an inclosure with other cattle is “at large,” within the meaning of the statute. The judgment should be reversed.

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


text:
    KETHLEDGE v. CITY OF PETOSKEY.
    1. Evidence — Admissibility — Mortality Tables — Personal Injuries.
    Mortality tables are inadmissible, in an action for personal injuries, where it is not reasonably certain that the injuries are permanent.
    2. Municipal Corporations — Defective Sidewalks — Personal Injuries — Evidence—Admissibility.
    In an action against a city to recover for injuries alleged to be due to a defective sidewalk, evidence that the walk was again washed out by flood two years after the accident was inadmissible, where the second flood followed a storm of longer duration than the first, when some snow was still on the hillsides.
    Error to Emmet; Shepherd, J.
    Submitted October 22, 1917.
    (Docket No. 134.)
    Decided December 28, 1917.
    Case by Marie L. Kethledge, an infant, by her next friend, against the city of Petoskey for personal injuries. Judgment for defendant. Plaintiff brings error.
    Reversed.

      M. W. Benjamin, for appellant.

      Wade B. Smith, for appellee.
   Moore, J.

This is the second appearance of this case in this court. See 179 Mich. 301 (146 N. W. 164). Upon the second trial the jury returned answers to special questions submitted to them as follows:

“(1) Was this sidewalk reasonably fit and safe for public travel up to the morning this accident occurred?
“A. Yes.
“(2) Was the flood of May 23, 1912, the proximate cause of the falling of this sidewalk?
“A. Yes.”

A general verdict was also rendered in favor of the defendant. Afterwards plaintiff moved the court to set aside the verdict and to grant a new trial for several reasons. This motion was overruled. From a judgment entered upon the verdict the case is brought here by writ of error. A reference to the opinion handed down when the case was here before will make a long statement of facts unnecessary.

Upon this trial the mortality tables were introduced in evidence. They were afterwards stricken out. This is said to be error, for the reason that the injuries received by the plaintiff are said to be permanent. A reading of all of the testimony of the physician which is relied upon to establish the permanent character of the injury is so uncertain — in one place he says of its permanency: “A. It is a possibility. Q. It is not a reasonable certainty? A. No” — that we do not think it error to strike out the mortality tables. See opinion when the case was here before.

It is said the court unduly emphasized defendant's requests to charge to the harm of the plaintiff. The reference by the trial judge to the testimony of the plaintiff is also criticized. As the case must be reversed for reasons which will appear later, we will not spend any time with these assignments of error.

The defendant was allowed to introduce testimony that it built a new wall in 1912 after the accident to the plaintiff, and that this wall was washed out in March, 1914, by another flood. In his charge to the jury the trial judge commented upon this testimony in part as follows:

“Now it is established that a short time before this accident occurred there was a heavy fall of rain and that the mouth of this tile drain across the Arlington park became stopped up with rubbish, which caused a large quantity of water to run across the surface of the ground out upon the highway adjacent to this sidewalk, and it is claimed that this water, in seeking an outlet, washed under this sidewalk and took out all the foundation that was there. It is the claim of the city that the force of this flood was such that it would have washed out the entire foundation if the sand had not caved back under the west side of the sidewalk at all, but had extended clear through under it and supported the entire width. If you believe that the flood was of such force, then your verdict will be no cause of action, even if you find that the foundation was defective before the flood came along. In order to support this claim that the flood was the proximate cause of the falling of the walk, the city has produced witnesses to testify that after this accident occurred another wall was built under this walk, which wall was constructed of cement and stone, and that the sand was replaced under the walk so that the entire width of the walk was safely supported. As a matter of law I instruct you that a cement walk built upon such a foundation would be reasonably safe and fit for public travel. It is further brought out by witnesses for the city that after this wall was built this same tile drain across the Arlington park became' again stopped up at its mouth and the water from the same creek ran across the surface of the ground out upon the highway just as it did on the 23d day of May, and that it again washed out the foundations under the walk at the same point and caused the walk to fall again. You may and should take this into consideration in determining whether or not the flood of the 23d of May would have washed out the foundation if it had extended the full width of the walk, giving it such weight as you deem it entitled to in the determination of that question.”

It will be observed that the court charges that a walk upon such a foundation would be reasonably safe and fit for travel, instead of leaving it for the jury to determine, and that he also charged that it is brought out'by the witnesses for the city that the walk was again washed out by the flood of 1914, and- that they might use that testimony in determining whether the flood in 1912 caused the accident.

The plaintiff insists that the introduction of the testimony and the use made of it under the charge of the court was error. Defendant in its reply brief says:

“At the outset, and to avoid needless repetition, we state our position: That the jury having by their special verdict found affirmatively the fact that the defendant was not negligent, the only assignment of error deserving of consideration by this court is that the trial court erred in not granting a new trial because the verdict was against the overwhelming weight of evidence given in the cause.”

One trouble with this contention is that the special verdict may have been brought about by the admission of the testimony and the charge of the court as to the use that might be made of it. This court held in the following cases that the plaintiff might not show the condition of the walk subsequent to the accident: Fulton Iron & Engine Works v. Kimball Township, 52 Mich. 149 (17 N. W. 733); Lombar v. Village of East Tawas, 86 Mich. 14, 18 (48 N. W. 947); Langworthy v. Green Township, 88 Mich. 207, 217 (50 N. W. 130); Rogers v. Village of Orion, 116 Mich. 324 (74 N. W. 463); Moon v. Railroad Co., 143 Mich. 125 (106 N. W. 715, 108 N. W. 78). See, also, McGrail v. City of Kalamazoo, 94 Mich. 52 (53 N. W. 955).

Whether the same rule should apply in the case of defendant may be a query, but in the instant case we think there was too much difference in the situation when the two floods occurred to allow the testimony. The accident was in May following a storm of an hour or two, when there was no snow on the ground. The flood in March, 1914, followed a storm of much longer duration, when some snow was still on the hillsides. In May, 1912, there was a box 16 inches square under the walk to take off the surplus water, while in March, 1914, the opening was a 12-inch tile, and there were also other differences which appear in the record. See Linn v. Gilman, 46 Mich. 628 (10 N. W. 46), and cases cited therein; Patrick v. Howard, 47 Mich. 45 (10 N. W. 71).

The inquiry should have been directed to the condition in 1912, as to which was the proximate cause of the accident. Was it a defective walk or was it the flood?

Judgment is reversed and a new trial ordered, with costs to the plaintiff.

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


text:
      In re CARNEY’S ESTATE. CARNEY v. CARNEY.
    Courts — Probate Courts — Jurisdiction—Statutes.
    The probate court of a county first obtaining jurisdiction of the administration of an estate will retain such jurisdiction, even though a will is subsequently found and proceedings for probate are commenced in another county, under 1 Comp. Laws, § 9323 (3 Comp. Laws 1915, § 13819), providing that when any person dies intestate and is a resident of the State letters of administration shall be granted to the probate court of the county of which he is resident and the administration first legally granted shall extend to all the estate of deceased in the State, and shall exclude the jurisdiction of every other county, and 3 Comp. Laws, § 9340 (3 Comp. Laws 1915, § 13836), relating to the giving of notice of application for appointment of an administrator for an intestate estate by the probate judge, and 1 Comp. Laws, § 657 (3 Comp. Laws 1915, § 13766), providing that the “jurisdiction assumed in any case by a judge of probate, so far as it depends apon the place of residence of any person, or the location of his estate, shall not be contested in any suit or proceeding whatever, except in an appeal from the probate court in the original case, or when the want of jurisdiction appears on the same record,” and 1 Comp. Laws, § 658 (3 Comp. Laws 1915, § 13767), providing that the probate court of one of two counties first taking cognizance of a case of which they both have jurisdiction shall retain jurisdiction throughout the proceedings, and 3 Comp. Laws, § 9336 (3 Comp. Laws 1915, § 13832), providing that if, after the granting of letters of administration by any probate court on the estate of an intestate a will is duly approved and allowed by such court, the administration shall be revoked.
    Case-made from Van Buren; Des Voignes, J.
    Submitted October 11, 1917.
    (Docket No. 87.)
    Decided December 28, 1917.
    Katherine Carney presented for probate the last will of Byron S. Carney, deceased. The will was allowed in the probate court, and Claude S; Carney appealed to the circuit court. Judgment for contestant for lack of jurisdiction. Proponent appeals.
    Affirmed.

      Thomas J. Cavanaugh, for appellant.

      David Anderson, for appellee.
   Moore, J.

Byron S. Carney died in Van Burén county, Mich., July 18, 1915. He left a last will dated the 24th day of June, 1915. In it is the statement: “I, Byron S. Carney, of the city of Kalamazoo, county of Kalamazoo and State of Michigan,” etc. In article 8 of the will it reads:

“I do nominate and appoint the probate court of Kalamazoo county to select and appoint an executor for this my last will and testament,” etc.

This will was witnessed by Minnie Ryan and Leona Green, both of Kalamazoo county.

On the 11th day of August, 1915, Roy W. Carhey filed a petition in the probate court for Kalamazoo county alleging, among other things, that Byron S. Carney died July 18, 1915, leaving no last will and testament. The case was. set for hearing September 9, 1915. on which day the probate judge entered an order that the said Byron S. Carney died intestate, and that at the time of his death he was an inhabitant' of the city of Kalamazoo, and appointing Claude S. Carney administrator. On the 14th day of August, 1915, Katherine Carney, the widow, filed a petition in the probate court for the county of Van Burén setting forth, among other things, that Byron S. Carney died on the 18th day of July, 1915, leaving a will, and deposited it with the court. The petition stated deceased was at the time of his death an inhabitant of Van Burén county and left an estate therein. The probate court of Van Burén county fixed the day of hearing on September 13, 1915, on which day Claude S. Carney appeared as a contestant, and the hearing was adjourned to the 21st day of September, 1915, when the contestant filed objections to the jurisdiction of the court, as the probate court of Kalamazoo county had appointed an administrator on the 9th day of September, 1915. The probate court for Van Burén county overruled the objections, and on the 23d day of November, 1915, the will was admitted to probate in Van Burén county, and Andrew H. Campbell was appointed as administrator with the will annexed. From this order a claim of appeal was filed by Claude S. Carney. Later he filed a motion in the circuit court for the county of Van Burén praying that the circuit court might make ah order dismissing all the proceedings of the probate court for Van Burén county, because the probate court of Kalamazoo county had taken jurisdiction. To this petition on February 9, 1916, Katherine Carney filed an answer supported by an affidavit and other papers. The court took the motion and affidavits under advisement and later filed certain findings of fact and conclusions of law and entered an order setting aside all the proceedings of the probate court of the county of Van Burén. Exceptions were duly filed to the findings of fact, the conclusions of law, and the judgment. Requests for further findings were made and refused and exceptions duly filed. The proceeding is here upon case-made.

We quote from the brief of counsel for appellant:

“It is.apparent that the one question involved is: Did the probate court of Kalamazoo county under the facts and circumstances appearing in the record have a right to make an order on the 11th day of September, 1915, declaring that Byron S. Carney died intestate and appointing an administrator over his estate? If it did have such a right, was the probate court of Van Burén county obliged to surrender its jurisdiction and deny the petition of the proponent praying that the will of the decedent be admitted to probate under the circumstances in this case? * * *
“We are not contesting the jurisdiction of the probate court of Kalamazoo county. The court received a petition alleging intestacy. A sister court had received a petition alleging the existence of a will which was deposited with the court.
“Presumably neither court knew of the commencement of proceedings in the other. If the application in each court were for the appointment of an administrator over an intestate estate, there might be force to contestant’s claim. But this is not the case. Decedent left a will, and it is our claim that the court receiving this will had a right to retain it and to pass upon its validity, and in connection therewith to determine the residence of decedent at the time of his death.”

The statutes applicable which read:

“When application shall be made to the judge of probate for the appointment of an administrator of an intestate estate, or for letters of administration with the will annexed, or administrator de bonis non he shall cause notice of the same and of the time and. place of hearing thereof, to be given by personal service on all persons interested or to be published for three successive weeks in such newspaper as he may direct.” 4 How. Stat. (2d Ed.) § 11056 (3 Comp. Laws 1915, § 13836).

Section 11039 (3 Comp. Laws 1915, § 13819) provides :

“When any person shall die intestate, being an inhabitant of this State, letters of administration of his estate shall be granted by the probate court of the county of which he was an inhabitant, or resident at the time of his death; if such deceased person at the time of his death reside in any other state or country, leaving estate to be administered in this State, administration thereof shall be granted by the probate court of any county in which there shall be estate to be administered, and the administration first legally granted shall extend to all the estate of deceased in this State, and shall exclude the jurisdiction of the probate court of every other county.”

Section 12105, 5 How. Stat. (2d Ed.), 3 Comp. Laws 1915, § 13766, provides:

“The jurisdiction assumed in any case by a judge of probate, so far as it depends upon the place of residence of any person, or the location of his estate, shall not be contested in any suit or proceeding whatever, except in an appeal from the probate court in the original case, or when the want of jurisdiction appears on the same record.”

Section 12106 (3 Comp. Laws 1915, § 13767) provides :

“When a case shall be originally within the jurisdiction of the probate court of two or more counties, the court which shall first take cognizance thereof by the commencement of proceedings, shall retain the same throughout.”

Section 11052 (3 Comp. Laws 1915) § 13832, provides :

“If, after the granting of letters of administration by any probate court, on the estate of any deceased person, as if he had died intestate, a will of such deceased person shall be duly approved and allowed by such court, the first administration shall, by decree of said court, be revoked, and the powers of the administrator shall cease, and he shall thereupon surrender his letters of administration into the probate court, and render an account of his administration, within such time as the court sháll direct.”

These provisions of the statute are not ambiguous and would seem to take care of the case under consideratiom The rule of law is well settled that the court which first obtains jurisdiction of a cause has exclusive right to decide the matter at issue, and any other court save an appellate one, which subsequently assumes to act in the matter must, when this priority of jurisdiction is brought to its attention, proceed no further, is held in the following cases: Maclean v. Wayne Circuit Judge, 52 Mich. 257 (18 N. W. 396); Barnum Wire & Iron Works v. Speed, 59 Mich. 277 (26 N. W. 802, 805); Shields v. Riopelle, 63 Mich. 463 (30 N. W. 90); Wells v. Montcalm Circuit Judge, 141 Mich. 58 (104 N. W. 318, 113 Am. St. Rep. 520). None of these cases arose in probate court, and we find none of our decisions which have passed directly upon a case like the one here. The case of In re Estate of Davison, 100 Mo. App. 263 (73 S. W. 373), is much like the case before us. In the opinion it is said, in part:

“Granting that his abode was in St. Louis, the question arises: Was the action of the probate court of Jackson county granting administration on his estate to his executor void so that the probate court of St. Louis should have ignored it and granted letters to the appellant? We have no doubt that this question should be answered in the negative; for, while there is some conflict among foreign decisions and some inconsistencies in the opinions of the appellate courts of this* State, it seems to be settled law that, when a probate court has granted letters of administration on a decedent’s estate, the grant has validity until it is set aside in a direct proceeding or on appeal, and cannot be ignored by some other probate court and letters granted to a different person. Before granting letters, a probate court must judicially determine the facts necessary to give it jurisdiction, and, under our statute, its jurisdiction may depend on where the decedent’s abode was. The acts and rulings of probate courts enjoy the same presumptions in respect to validity that those of courts of general jurisdiction do, probate courts being treated, not as inferior tribunals, but as courts of superior though limited jurisdiction, whose judgments are impregnable to collateral attack. Rowden v. Brown, 91 Mo. 429 (4 S. W. 129). Having found the fact necessary to warrant it in assuming jurisdiction of a particular estate, if such finding may be wholly disregarded and for naught held by another similar court, confusion will occur in the administration of many estates, and important orders, on which titles acquired at administration sales and other property rights depend, will be shaken or annulled. If such a course were followed, there might be several concurrent administrations of the same estate in as many probate courts, each one treating the jurisdiction of the other as a usurpation. These considerations have gradually established the rule in most States that the administration first granted is collaterally unassailable and can only be vacated by a direct proceeding ; that is, by an application to the court which granted it to set it aside. 1 Woerner American Law of Administration (2d Ed.), § 204, and cases cited.”

See, also, McFeely v. Scott, 128 Mass. 16.

Judgment is affirmed, with costs to appellee.

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


author: Kuhn, C. J.

text:
    MOLL v. CITY BAKERY.
    1. Master and Servant — Workmen’s Compensation Act — Com'pensation — Evidence.
    The principle underlying the workmen’s compensation act is that it was adopted to compensate for a loss, and that the loss in every case must be determined by the facts in that particular case.
    2. Same — Dependents.
    The question of dependency under the act is always one of fact.
    3. Same.
    Parents of a deceased employee were not dependent upon him so as to be entitled to compensation for his death, where, if the amount that the son’s board cost the father was deducted from the family expenses, the father’s income was more than adequate to meet expenses.

    Certiorari to Industrial Accident Board.
    Submitted October 16, 1917.
    (Docket No. 153.)
    Decided December 28, 1917.
    John Moll presented his claim for compensation against the City Bakery for the accidental death of his son in defendant’s employ. From an order awarding compensation, defendant and the London & Lancashire Indemnity Company, insurer, bring certiorari.
    Reversed.

      John M. Dunham, for appellants.

      Roman F. Glocheski and Corie C. Coburn, for appellee.

      On construction and effect of workmen’s compensation acts, generally, see comprehensive notes in L. R. A. 1916A, 23, L. R. A. 1917D, 80.

   Kuhn, C. J.

William Moll, who was the son of John Moll, and Lucy Moll, the claimants, was unmarried, 25 years of age, and lived with his parents. On June 6, 1916, while in the employ of the City Bakery, he slipped and caught his hand in a dough divider, which resulted in injuries from which he subsequently died.

The industrial accident board awarded compensation to his parents because of their being partially dependent upon the deceased at the time of his death, the compensation of $2.78 per week being awarded to them, in equal proportions, for the period of 300 weeks. It was made to appear that the average weekly expenses of the family amounted to $18.78, of which the father earned $16 per week, which, deducted from the expenses, made the basis of the finding of the board for the dependency of the family upon the earnings of the deceased. It further appears that in the amount of weekly expenses there was included what it cost to support the deceased boy.

In determining the question of the dependency of the parents, the board refused to take into consideration the cost of the son’s support. It is conceded that the cost of maintenance of the deceased son would be, if allowed at a reasonable figure, $4 per week, and it is the claim of respondents that this should have been deducted from the family expenses when the dependency of the parents is considered, and' it is their claim that the money devoted to the decedent’s own support could not at the same time be devoted to the support of his parents. The board was of the opinion:

“That there is nothing in the compensation law which would suggest any deduction for board of a son in a case of this kind.”

But in our opinion this overlooks a fundamental principle underlying the law, and that is that it was adopted to compensate for a loss, and that the loss in every case' must be determined by the facts in that particular case. Bearing in mind the principle of compensation, the question of dependency is always a question of fact. But, under the facts of this case, deducting from, the amount which the board found the parents were dependent upon the son’s earnings for at the time of his death,- the $4 per week it clearly appears it cost them to board him would make this a case of no dependency.

The award is therefore erroneous, and must be reversed.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.