text:
    SPRAGUE v. TRUSTEES OF PROTESTANT EPISCOPAL CHURCH OF THE DIOCESE OF MICHIGAN.
    1. Trusts — Validity—Resulting Trusts!
    Under a will conveying property in trust to a church association which bequest complainants, heirs at law of the deceased donor, claimed was invalid, the trustees, from, the time of taking possession under the terms of the will, held title by virtue of a resulting trust, if the claim of invalidity was established, in favor of the heirs or devisees of the testator.
    2. Same — Laches'—Delay—Expressed Trust — Judgment—Wills.
    After a delay of some thirty-four years, the heirs or representatives of the deceased testator were not entitled to object to the validity of a trust instrument made by him in his lifetime, conveying certain property in trust for religious purposes, and the resulting trust which, if the will was invalid, was created by equitable considerations in their favor, would not be enforced and the possession of the trustees disturbed by the court in chancery, especially after the will had been admitted to probate by a decree of the probate court, an appeal taken and the decree affirmed in the circuit court, and no further steps taken to review the order determining 'the validity of the trust.
    Appeal from Oakland; Smith, J.
    Submitted April 21, 1915.
    (Docket No. 73.)
    Decided June 7, 1915.
    Bill by Silas H. Sprague and others against the trustees of the Protestant Episcopal church of the diocese of Michigan for an accounting and to construe a will. From a decree for defendants, complainants appeal.
    Affirmed.

      Frank L. Doty and Glenn C. Gillespie, for complainants.

      Miller, Smith, Canfield, Paddock & Perry, for defendants.

      The complainants herein, 25 in number, are all heirs at law and next of kin of one Leonard Sprague, who died in the year 1880 leaving a last will and testament by the terms of which he devised to the Church Association of Michigan the residue of his estate in trust for certain charitable uses. Some seven individuals, likewise heirs at law of the said Leonard Sprague, are made defendants, as well as the trustees of the Protestant Episcopal church of the diocese of Michigan. We understand the said trustees to be successors to the Church Association of Michigan designated in the will. The bill sets out that the trustee named in the will qualified as such and entered upon its duty in the administration of said trust; that said trustee has ceased to exist, and the fund is now in the possession of the defendants trustees for the Protestant Episcopal church for the diocese of Michigan. It is further averred that said trustees now have in their possession a balance of $5,376.68, and that they are pretending and assuming to act under and by virtue of said trust contained in said last will and testament. It is further charged that said trust has not been administered in accordance with the provisions of said Will, and further that the said' trustees have failed to file any statement of account of their doings in relation to said trust in the probate court for the proper county, until within the last year (1913). It is next alleged by the complainants that by reason of such neglect and failure on the part of the trustees to file an annual account, as required by law, complainants were unable to inform themselves of their rights in the premises. It is further averred that the trust created by said will is invalid, and, finally, that complainants have frequently applied to the said trustees to account to them for said trust fund and property and for the profits and income therefrom, which the defendant trustees have always refused to do. Complainants pray:
    “This court will construe the will and codicil of said Leonard Sprague and advise and direct your orators and oratrixes in the premises.
    “Your orators, and oratrixes further pray that the trust created by the thirteenth paragraph of the last will and testament, and the codicil thereto, of said Leonard Sprague, deceased, may be decreed to be invalid, and that the residue of said estate in the hands of said trustees may be distributed by this honorable court among the heirs at law of said deceased, according to their respective rights and interests.
    “That said defendants, ‘The Trustees of the Protestant Episcopal Church of the Diocese of Michigan/ may be decreed to pay to this honorable court all the property, both real and personal, and all the rents, profits, and income therefrom received by it as trustees, and may be decreed to make good any and all loss to said estate by reason of its acts done while assuming to act to the provisions and terms of said trust.
    “That your orators and oratrixes may have such other and further relief in the premises as the merits of this case require and shall seem equitable and just to this honorable court. And your orators and oratrixes will ever pray,” etc.
    To this bill of complaint defendant trustees interposed a demurrer in the following language:
    “Because it appears from the bill of complaint in this cause that any rights which may have accrued to these complainants or to their ancestors, through whom they claim, in the property described in the bill of complaint, accrued, if at all, upon the death of Leonard Sprague in the year 1880, and have long since become stale by reason of the unexplained and unexcused failure and neglect of said complainants and their said ancestors to claim or assert any such supposed rights until the year 1913.
    “Because it appears from said bill that these complainants and their ancestors, through whom they claim, have been guilty of gross laches in neglecting to assert their supposed rights for upwards of 33 years since such supposed rights accrued.
    “Because it appears from said bill that these complainants and their ancestors, through whom they claim, have long since become barred and cut off, under the statutes of limitations of this State, from asserting any supposed rights they or their said ancestors may formerly have had in and to the property described in said bill.
    “Because it appears from said bill that the probate records for the county of Oakland disclose that the trust property mentioned in the will of said Leonard Sprague, deceased, was turned over to the Church Association of Michigan, the trustee named in said will, soon after the death of said Leonard Sprague in 1880, and that such trust property has been handled and administered continuously since the date by said trustee and by this defendant, as its successor in said trust, and that during a period of upward of 30 years these complainants, and their ancestors, through whom they claim, have never, as appears from said bill, made demand upon said probate court to order said trustee or this defendant to make a report of its administration of such trust until the year 1913, whereby any supposed rights these complainants may once have had in said property have long since been lost, and said complainants are estopped from now asserting any such rights, by reason of their acquiescence and the acquiescence of their said ancestors in allowing such trustee and this defendant to administer said trust during such period of 30 years.
    “Because it appears in said bill that some of the complainants claim an interest in the property described in the bill, as heirs of certain beneficiaries and legatees named in said will of Leonard Sprague, deceased, and that such beneficiaries and legatees accepted the bequests therein made by them and thereby confirmed such will, whereby said complainants, as their heirs and claiming through them, are estopped frfim attacking said will.
    “Because it appears from said bill that the probate court.for the county of Oakland construed the said will of Leonard Sprague, deceased, in administering said estate and assigning the residue to the trustee named in said will, and that the matter of the construetion of said will is res judicata as to these complainants and their ancestors under whom they claim, and the judgment of the probate court as to such will cannot be revised or annulled by this court in this proceeding.
    “Because the complainants have not in and by their bill made or stated such a case as entitles them in a court of equity to any discovery or relief from or against this defendant, touching the matters contained in the said bill, or any such matters.”
    The demurrer having been sustained, complainants have removed the case to this court for review.
   Brooke, C. J.

(after stating the facts). In considering the question here presented, it is, we think, unnecessary to determine whether the trust created by the will of Leonard Sprague is valid or invalid. If valid, the complainants have no standing in court; if invalid, it would seem to be elementary that, from the moment the trustee qualified as such and took possession of the property under the terms of the will by which a certain trust was sought to be created, the trustee held the same under a resulting trust in favor of the testator’s heirs, among whom stand complainants and their ancestors. This proposition is supported by the following authorities: Lyford v. City of Laconia, 75 N. H. 220 (72 Atl. 1085, 22 L. R. A. [N. S.] 1062, 139 Am. St. Rep. 680); Attorney General v. Craven, 21 Beav. 392; 39 Cyc. p. 111, and cases cited in note 51; and 15 Am. & Eng. Enc. Law, p. 1129, and cases cited.

Counsel for, complainants, while admitting the force of the decisions cited upon this point on behalf of defendant, claim that they are not applicable for the reason that “there is and has been no adverse possession on the part of the defendant,” and, further:

“There has never been any repudiation of the trust by the defendant, and therefore nothing by which the statute of limitations would commence to run. The defendant could never acquire a personal interest in the property so long as it claimed to hold it in its present trust capacity, and no one except the complainants have been injured by their failure to enforce their rights before this time.”

It would seem that the averment, in paragraph 12 of complainant’s bill, to the effect that complainants have frequently applied to said trustees to account to them for said trust fund, and that said trustees have always refused, and still refuse, to account to said complainants for the property so held as aforesaid, is a sufficient negation of the assertion that the defendant trustees do not hold said property adversely to said complainants. It is, of course, true that the defendant trustees claim no personal and beneficial interest in said fund. They do, however, claim that they and their predecessor in title have always held said fund under the terms of the will creating said trust, which is clearly contrary to the recognition of any rights of complainants in said fund. There can be no doubt that for upwards of 30 years the present trustees of said fund and their predecessor, assuming the validity of the trust creating the fund, have administered the same and disposed of the income arising therefrom under the terms of the trust. Whether this has been done in exact accordance with the conditions and limitations contained in the instrument ■ creating the trust is, in our opinion, of no particular consequence in this proceeding. The complainants must rest their right to relief upon the invalidity of the trust itself, and not upon its improper execution by the trustees named.

In our opinion, therefore, the sole question presented is whether by lapse of time and acquiescence in the solemn decree of a court of record by complainants and their ancestors they should be held to be es-topped from now questioning its validity. The record discloses the fact that the will in question was admitted to probate in 1880 ; that on October 18, 1880, four of the then heirs at law gave notice of an appeal from the decision of the probate court; that this appeal was allowed and perfected and filed in the circuit court; that on January 26, 1881, said appeal was heard in the circuit court and the will and codicil were again allowed and certified back to the probate court for execution; and that soon thereafter the trustee named in the will took possession of the trust fund. No appeal was taken from the judgment rendered in that case. We therefore have to consider a situation in which a judgment of a court of record now upwards of 34 years, old is brought into question-. Counsel for complainants cite several cases from foreign jurisdictions, among them the following: Tincher v. Arnold, 147 Fed. 665 (77 C. C. A. 649, 7 L. R. A. [N. S.] 471, 8 Am. & Eng. Ann. Cas. 917); Giraud v. Giraud, 58 How. Prac. (N. Y.) 175; Cooksey v. Bryan, 2 App. Cas. (D. C.) 557; Craig v. Beatty, 11 S. C. 375; and 15 Am. & Eng. Enc. Law, p. 1207.

Defendant trustees cite and rely upon the case of Speidel v. Henrici, 120 U. S. 377, 7 Sup. Ct. 610, where the court said:

“The constant avowal of the trustees that they held the trust fund upon such a trust is wholly inconsistent with and adverse to the claim of the plaintiff that they held the fund in trust for the benefit of the same persons as individuals, though withdrawn from the community, living by themselves, and taking no part in its work. * * * If he ever had any rights, he could not assert them after such a delay; not on the ground of an express and lawful trust, because the express trust stated in the bill, and constantly avowed by the trustees during this long period, was wholly inconsistent with any trust which would sustain his claim; not on the ground that the express trust stated in the bill was unlawful and void, and therefore the trustees held the trust fund for the benefit of all the contributors in proportion to the amounts of their contributions, because that would be an implied or resulting trust, and barred by lapse of time.”

While there may be some lack of harmony in the decisions from other jurisdictions, we are satisfied that the question in issue is determined against the contention of the complainants by our own decisions. In the early case of Campau v. Van Dyke, 15 Mich. 371, a bill was filed to set aside a decree after a delay of only 6Y2 years. The court there said:

“But sound public policy and a just regard for the stability of private rights require that the solemn judgments and decrees of courts affecting the rights of property shall not be lightly disturbed, nor, without the strongest reason, allowed to be impeached after any considerable period of time, during which the parties have been allowed to rely upon them, and others may have obtained interests on the faith of them, or the evidence by which they might have been sustained has been lost. And if a party to such judgment or decree might, after any considerable period, impeach its validity without showing a proper excuse or reasonable justification for the delay; and especially when it appears probable that material evidence to sustain it may, in the meantime, have been lost, a general feeling of insecurity and distrust, very injurious to property and business, must naturally result.
“For these reasons, we think, in a case like the present, a party seeking to set aside the decree must satisfy the court that he has not slept upon his rights, and that his delay for any period after he was aware of his rights, and competent to prosecute them, has not operated to the prejudice of the other parties, nor deprived them of any of the evidence or other means for sustaining the decree, which they might have possessed had he brought his bill at as early a period as he might. In other words, we think the only just rule which, can be laid down upon this point is that such a bill must be brought within a reasonable time; having reference to the nature and all the circumstances of the particular case.”

The language in this case was cited with approval in the case of Corby v. Trombley, 110 Mich. 292 (68 N. W. 139), where the delay by an heir for nearly 20 years after learning of the probate of a will was held to constitute such laches as to prevent him from maintaining a suit to set aside the will on the ground that the testator was not competent to make it and that its allowance was obtained through fraud.

In the case of Harlow v. Iron Co., 41 Mich. 583 (2 N. W. 913), a bill for an accounting and division of profits, sale of premises,.and distribution of proceeds, filed less than 30 years after the occurrence of the facts upon which relief was demanded, was dismissed; the court saying:

“The cause is distinctly subject to the principle which, according to previous decisions of the court, disentitles the party to the aid of equity. There has been unconscionable delay.”

In Birdsall v. Johnson, 44 Mich. 134 (6 N. W. 226), an unexplained delay of 24 years in asserting a claim was held to be fatal; the court saying:

“We are also of opinion that the long and unexplained delay and acquiescence of Birdsall would cut o'ffi any equities if he had them, and that he has neither a legal nor an equitable claim to relief.”

Compo v. Iron Co., 50 Mich. 578 (16 N. W. 295). In this case complainant acquired his assignment 30 years after the right of Marji Gesick accrued and 15 years after it had been distinctly repudiated. The court said:

“There is not in our reports a case in which so stale a claim has been recognized, and there are several in which a less serious lapse of time has been held fatal.”

In the case of Douglass v. Douglass, 72 Mich. 86 (40 N. W. 177), the bill was filed to set aside deeds made 30 years before. The bill was dismissed, the court quoting the language of Lord Camden in Smith v. Clay, 3 Brown, Ch. 639:

“A court of equity, which is never active in relief against conscience or public .convenience, has always refused its aid to stale demands, where the party has slept upon his right, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence.”

In the case of Buell v. Lumber Co., 163 Mich. 102 (127 N. W. 767), we held that a delay of over 30 years in the enforcement of a trust in real property was sufficient to bar the complainant from the relief on the ground of laches.

As was said in the case of Columbian University v. Taylor, 25 App. Cas. (D. C.) 124, where the court had under consideration the validity of a testamentary trust created 20 years before the filing of the bill, we think it may be said here:

“If the invalidity of the devise were apparent upon its face, the objection on the ground- of laches in bringing the suit would be fatal.”

Assuming therefore the invalidity of the trust (which we do not determine), it is plain that the trustees named in the will, upon taking possession of the property, held it under a resulting trust for the benefit of the heirs of the testator. This fact gave to complainants and their ancestors the right at that time to demand from the trustees named an accounting and the surrender of the fund. Instead of- doing this, they acquiesced for upwards of 30 years in the decree of a court of record affirming the validity of the instrument creating the trust. By so doing they must be held to be estopped by laches from now questioning the righteousness of that decree.

The decree dismissing the bill is affirmed.

McAlvay, Kuhn, Stone, Ostrander, Bird, Moore, xand Steere, JJ., concurred.


source: Caselaw Access Project

author: Brooke, C. J.

license: Public Domain

text:
    LEWIS v. WOLVERINE COAL CO.
    1. Master and Servant — Railroads — Operation of Cars — Rolling Stock — Size—Negligence.
    Where plaintiff, who was in the employment of defendant railroad company as a “boss trimmer,” having control of the loading and shipment of cars of coal and charged with the duty of selecting the proper cars for such work of loading, in the process of which the cars were placed under a chute and filled by plaintiff and his assistants, and where plaintiff was injured in starting a car while he was between it and a support of the loader the plaintiff was not entitled to recover for alleged negligence of the defendant in having posts of the loading device in dangerous proximity to the rails, or because it provided an unusually wide car for the operation.
    2. Same — Assumed Risk — Personal Injuries — Width of Cars.
    The trial court should have directed a verdict in favor of the defendant company on the ground of contributory negligence of the plaintiff when it appeared that he observed the dangerous proximity of the car to the post before he attempted to move the car and placed his body voluntarily in such a position as to endanger himself in moving the freight car from under the apparatus.
    3. Same — Evidence—Custom.
    It was also error, in the face of evidence in defendant’s behalf that the cars varied a considerable amount in width and that the car which caused plaintiff’s injuries was not among the widest employed for that purpose, to submit to the jury plaintiffs claim that there was a customary and usual width of cars and that the one which caused plaintiffs injury was unusually wide.
    4. Same — Contributory Negiigence.
    Plaintiff, having authority to select the cars to be loaded with coal and to reject those which were improper or insufficient for that purpose, assumed the risk of selecting and employing a car which was too wide to enable him to safely release it while he was between the post of the loading apparatus and the moving car; since the dan'ger was or ought to have been obvious.
    Error to Bay; Collins, J.
    Submitted April 9, 1915.
    (Docket No. 34.)
    Decided June 7, 1915.
    Case by Emry J. Lewis against the Wolverine Coal Company and another for personal injuries. Judgment for plaintiff against the defendant named, which brings error.
    Reversed, and no new trial granted.

      Gillett & Clark, for appellant.

      Charles W. Hitehcoek, for appellee.
    On November 22» 1911, plaintiff was crushed between the rear end of a coal car and one of the posts which supported a coal “tipple.” He brought suit against the Pere Marquette Railroad Company and the appellant, as joint tort-feasors. Upon the trial a verdict was directed in favor of the defendant railroad company, and, as the plaintiff does not appeal from such action of the court, that defendant is not now interested.
    It appears that the plaintiff had been an employee of the defendant for three years or more — the first year underground; the second as “extra man above ground;” and the last year before his injury as “boss trimmer.” As “boss trimmer” he had working under him a “helper” and a “car dropper.” His duties as “trimmer” required him, with the assistance of his “helper,” to pick out the dirt, rock, and impurities from the coal and spread the coal properly in the car as it was received from the “tipple.” The track ran north and south under the “tipple,” and was so inclined toward the north that storage cars standing to the south thereof would approach and pass under the “tipple,” by gravity, when released. It was the duty of the “car dropper” to permit the cars to drop down to the “tipple” when required for loading. The customary method of performing this operation was to block the car with a piece of wood as soon as the front end of the car was in proper position to receive the coal from the “tipple.” When a sufficient quantity had been received in that end of the car, the block was removed, and it was permitted to go to the north a few feet, when a further quantity of coal was loaded, and that operation was repeated four or five times, until the southerly or rear end of the car was immediately under the “tipple,” at which time the northerly or loaded end would be for a considerable distance outside the “tipple” and its supports. When the car was completely loaded it was customary for the plaintiff to climb down from the car, leaving his “helper” on top to control its movement by the brakes, and to himself remove the block and permit the car to pass to the north onto the siding, thus making room under the “tipple” for its successor. The “tipple” was supported by eight wooden posts standing at slightly varying distances from the rails. Those on the westerly side were respectively 3 feet 4% inches, 3 feet 3 inches, 3 feet 3 inches, and 3 feet 4% inches from the rail. The post at which plaintiff received his injury was the second nearest one to the north, and was 3 feet 3 inches from the rail.
    On direct examination the plaintiff described his accident as follows:

      “On the day of the accident I was working on the east track. That track extends north and south. When it goes north of the shed of the tipple, it keeps going north. After I got through with a car after it is loaded, the other trimmer takes it out and finishes it off. The tracks south of the tipple are on an incline which we call the hill. That part of the yard was used for storing cars. On this track this day there were probably a dozen cars up on the hill. ' I couldn’t say for sure. William Campbell had the task this day of dropping the cars down to me. We call his work ‘dropping fiats.’ He always dropped it down, and I would knock the block out and let this other go on out. These cars were held back on the place we call ‘up on the hill’ by wooden blocks placed under the front wheel — any wooden block you could get hold of. The fellow that dropped the cars down would take the block out from under one and put it under another. Sometimes the car would start, and sometimes he would have to pinch it with a pinch bar. When the car started down he had to run to catch it. After it got to the shed, after it was placed under the tipple, we would load it as far as the dump would reach. I would holler, ‘Go ahead,’ and he would let the car go and stop it again. When the car was first placed down there five or six feet' of it was under the dump. I always blocked the front end. I mean by that that I blocked the front wheel with a piece of wood. On the day of the injury I got back up on the car and went to trimming again. To get the coal into the car I had to pull a rope; there is a rope that dumps the big pan. The amount dumped at a time was sometimes more and less, maybe 700 or 800 pounds, sometimes maybe a couple of tons. Then I would let go of the rope, and the dump would go back. When we got that portion of the car filled up the fellow dropping the car would holler, ‘Go ahead,’ and he would drop the car down a little ways. Mr. Campbell did that this day. Mr. Klopf stayed on the car. Campbell would drop the car down by taking a piece of gas pipe and knocking the block of wood out and letting it go. He would stop it again with a block of wood.
    “Q. After you got this ear filled on this particular day, what was then required of you?

      “A.' Get off the car and knock the block from under the hind wheel. I got off the car to knock the block out, and the car was, so wide I could not reach the block. I would knock it out, and the car would keep running onto it, and I got down close to the post, and I don’t know for sure whether it was the step caught me in the hip, shoved me in around this post, kind of crowded me right in, and caught this left side of me. I was on the west side of the track. On that side of the track there are four posts or timbers that support the dump or tipple. I would judge they were 12 or 13, maybe 14 inches square. The two center ones were about 6 or 8 feet apart, I should judge. The others — the outside posts — probably 18 inches apart. There is two on the north and two on the south." I was hurt by the south post on the north side.

      “Q. Show the jury what you did and what you had to do with running the car.

      “A. Same as if this was the car here, I knocked the block out of the wheel here, and I could not get out, and the car kept running down on to me, and squeezed me between the two posts. I was hit in the hip, and the post caught me in the shoulder, here in the breast. Adam Klopf jumped off the car and picked me up. The posts where I was squeezed were the two northerly posts on the west side. To knock out the block I used a piece of gas pipe. That is what we had there for that purpose, and always wooden blocks were used.

      “Q. Do you know whether or not a man can run a car down there and use the brakes to hold it as you are required to?

      “A. I have never seen any car there, because the brakes would not hold on two-thirds of them if you did try them.

      “Q. You have to drop this car 3 or 4 feet; then stop it and go ahead again?

      “A. Yes, sir; a man don’t have very much time to lose; if he does, he is liable to get a chunk of coal on top of the head.”
    On cross-examination he testified:

      “Q. I suppose a man could not work around cars without noticing the names of the cars and the different railroads.

      “A. Oh, sure; some of those roads would be Western roads, some Eastern, some Southern, and some Michigan roads. Cars were there from all over the world. It is pretty near correct to say that hardly two cars in succession would be the same kind of cars. * ❖ ❖
    . “Q. Some have steps on all four corners, and others have steps on only two corners; that is true, isn’t it?

      “A. I don’t know as I remember seeing them on all four corners. Some have what they call the platform of the car higher from the ground than others. Some boxes are higher, and I have noticed that they differ in width also. There is no regular standard width of coal cars that I know of. I don’t think that there is any regular standard in other respects. I am no railroad man.”
    Several of plaintiff’s witnesses testified that the cars in common use were of varying widths. Records with accurate measurements ,were introduced by the defendants, from which it conclusively appears that during the year plaintiff had acted as “boss trimmer” he had loaded at least 883 cars. Of these the outside measurement of 789 was given. To show the extreme variations in width, the following table is inserted :

    The plaintiff was unable to identify the car which caused the injury. Defendant, however, by means of a record which it kept of the cars loaded each day was able to determine- that the injury was caused by one of two cars, either Lake Shore No. 54,301 or Hocking Valley No. 25,215. The Lake Shore car was a steel car, and the Hocking Valley a wooden car. Inasmuch as two of plaintiff’s witnesses testified that the car which caused the injury was a wooden car, the conclusion is almost irresistible that plaintiff was injured by the Hocking Valley car. The Hocking Valley car had an outside measurement of 9 feet 8% inches; the Lake Shore car an inside measurement of 9 feet 7 inches, and an outside measurement of approximately 10 feet % inch. An examination of the foregoing table will show that during the year preceding his injury the plaintiff had loaded at least 80 cars of a greater width than the one which caused his injury, even presuming it to have been caused by the Lake Shore car. Plaintiff himself was in control of the operation, and it was his duty to reject any cars not suitable for loading, and to permit them to pass under the “tipple” empty.
    The declaration contains four distinct allegations of negligence:
    (1) The use of an unusually wide car.
    (2) The position of the posts in dangerous proximity to the rails.
    (3) An unsafe method of holding the car in place.
    (4) Lack of warning.
    The learned circuit judge determined that as to the second, third, and fourth grounds of alleged negligence the defendant must prevail. He submitted the case to the jury on the first ground, charging them, in part, as follows:
    “Now, gentlemen of the jury, if it is a fact that there is customary and usual width of cars, that is, that before this accident there was a customary and usual width of cars known and understood by the plaintiff and defendant, if the point of fact is established, and if it is further a fact that at the time of the accident a car was sent over the tracks beyond the tipple to be handled in loading the car, which car was of unusual width, if you find that to be a fact, and also if you find that the plaintiff, while doing that work there from the time, during all the time, that that car was handled, used reasonable care and diligence in all of the respects which I have described, and by reasonable care and diligence I mean used that reasonable care and diligence that would be expected or ought to be used by a reasonable and prudent person about the work that he was doing, considering the kind of work, if he used reasonable care and diligence to observe the car and observed the way the work was going on, but did not, notwithstanding the use of that reasonable diligence, observe that the car was of unusual width, and that in handling the car in a reasonable and prudent manner he was caught between the car and the tipple walls arid was injured, and that that injury was occasioned by the fact of this excess width of the car, and that the accident would not have happened if the car had been a car of the ordinary and customary width, then the plaintiff is entitled to a verdict at your hands, unless it can be said, as a matter of law, that the plaintiff assumed the risk; upon that — upon the assumed risk question — I will charge you later. * * *

    “By assuming the risk is meant that the risk was one of the ordinary risks of the business, or else the risk or danger was of such a kind that plaintiff knew and understood or ought to have known and understood such risk and danger. Where the risk or danger is of such a kind that it can be seen and understood by workmen, it is the law of this State that he cannot recover any damages, even though the employer may be negligent, and the workman may be free from negligence. In such a case the defendant is not required to take any better care of the plaintiff than plaintiff takes of himself, and if the plaintiff can see and understand the danger, and keeps on working without complaint, he assumes the risk or takes his own chances and cannot recover.”
    Under this charge a verdict was rendered in favor of the plaintiff in the sum of $4,525.
   Brooke, C. J.

(after stating the facts). We are of opinion that in dealing with the last three grounds of alleged negligence the learned circuit judge reached a proper conclusion. The sole question remaining, therefore, is whether he committed error in submitting the case to the jury upon the first ground; i. e., that it was negligence on the part of the defendant to use an unusually wide car. We are convinced that as to this aspect of the case the learned trial judge reached an erroneous conclusion.

The situation presented by this record is peculiar, in that the plaintiff himself, a man of maturity, and who had most ample experience, not only had power to reject a car which was unfit for loading, but himself controlled every movement of the car. Furthermore, he himself set the car in motion at the identical moment he received his injury. When he stooped to release the block he noticed the proximity of the car to the post, for he testified:

“I got off the car to knock the block out, and the car was so wide I could not reach the block.”

The method of blocking and unblocking the car to hold it as. required was of the plaintiff’s own selection. The cars were provided with brakes, and it must be presumed that they could have been used for that purpose. Plaintiff’s testimony to the effect that two-thirds of them would not work must be disregarded in the light of the fact that he testified that no attempt was made to hold the car which caused the injury by such means. The conclusion is irresistible that in knocking the block out from under the hind wheels of the car with his body in such a position that it would be caught by the caF which would instantly start when released, as he well knew, plaintiff was guilty of such contributory negligence as would absolutely preclude his recovery. The charge of the court upon which recovery is predicated permitted the jury to find that there was a “customary and' usual width of cars,” whereas the proof conclusively demonstrated that there was no such customary or usual width, that the cars varied in width from 7 feet 6 inches to 10 feet 3 inches, and that they varied in width from car to car, and the evidence further conclusively established the fact that the car which caused the injury was not among the widest of those commonly in use. In the face of such positive proof, it was improper to permit the jury to find, as a fact, that there was a customary and usual width of cars, and that the one which caused the injury was one unusually wide.

But, even if the car in question had been unusually wide, if such unusual width was such as to make it improper to load, it should have been rejected by the plaintiff. Not having so rejected it, but having loaded it, and being, as he testified; aware of its unusual width, when he went to remove the block for the last time, he must be held to have assumed the risk of that act, the danger of which was or should have been entirely apparent to him.

We believe the citation of authorities to sustain the conclusions here reached is unnecessary.

The judgment is reversed, and there will be no new trial.

McAlvay, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    GIGNAC v. STUDEBAKER CORPORATION.
    Master and Servant — Workmen’s Compensation — Negligence— Intentional and Wileul Misconduct.
    Claimant was employed by defendant corporation to check the automobiles shipped upon freight ears from the factory of the corporation. After he had checked a number of cars which were near the platform of the factory the cars were moved to a side track farther away and claimant in order to verify his work re-examined them for that purpose. In returning he found another string of cars had been placed upon the side track and that the engine ■ was attached to the train. He made no effort to ascertain whether the trainmen were signaling to back up or proceed but crossed between the cars, placing bis foot in so doing on one of the couplings. His foot was caught and crushed by the backing engine. He presented his claim for compensation under Act No. 10, Extra Session 1912 (2 How. Stat. [2d Ed.] § 3939 et seq.). Held, that although claimant was guilty of gross negligence he was not chargeable with such intentional and wilful misconduct as to defeat his right to compensation.
    Certiorari to the. Industrial Accident Board.
    Submitted April 16, 1915.
    (Docket No. 145.)
    Decided June 7, 1915.
    A. Harry Gignac presented his claim for compensation against the Studebaker Corporation and an award was made in claimant’s favor by the Industrial Accident Board. Contestant brings certiorari.
    Affirmed.

      F. J. Ward, for appellant.
   Brooke, C. J.

The facts involved in this case may be briefly stated as follows: The claimant, a young man about 20 years of age, was employed by the defendant corporation as a checker. At the rear of the plant operated by appellant was a side track of the railroad company, running along the side of the platform where empty cars were placed to be loaded with automobiles. It was claimant’s duty to check each automobile as it was placed in the car. When the string of cars was loaded, it was customary to remove it to another track a short distance away from the platform. On the evening before the accident, claimant had checked a string of cars which stood beside the platform. Returning to his work the following morning, he found that those cars had been removed from the front of the platform to the other side track. Desiring to assure himself that he had properly checked the automobiles in this particular string of cars, he crossed over to the track upon which they stood, and there made the necessary examination. Returning to the plant, he found that in his absence another string of cars was being placed upon the track in front of the platform, the engine being still attached thereto. Without stopping to see where the trainmen were, and without knowing but what they were signaling this train to back up or go ahead, he attempted to cross through between the water tank and the end car, and in so doing he placed his right foot on a coupling. The engine came back and caught his foot, crushing it so that it was necessary to amputate his five toes.

Compensation for said injury was allowed by the arbitration board, which award was afterwards affirmed by the Industrial Accident Board. But one question is raised upon the record. It is the claim of the appellant that the claimant was guilty of intentional and wilful misconduct as a matter of law. Section 2 of part 2, Act No. 10, Extra Session 1912 (2 How. Stat. [2d Ed.] § 3948), is as follows:

_ “If the employee is injured by reason of his intentional and wilful misconduct, he shall not receive compensation under the provisions of this act.”

Appellant cites and relies upon the following cases: Johnson v. Marshall Sons. & Co., 22 T. L. R. 565, 75 L. J. K. B. 868; Hill v. Consolidated Mines, 12 B. C. 118, 1 B. W. C. C. 436; Johnson v. Marshall Sons & Co., 94 L. T. 828, 8 W. C. C. 10; Leishman v. Dixon, 47 Scottish L. R. 410, 3 B. W. C. C. 560; John v. Coal Co., 4 W. C. C. 15; George v. Coal Co., 78 L. J. P. C. 47, 25 T. L. R. 57. These cases all arose in foreign jurisdictions and under statutes containing somewhat different language from that used in the Michigan act. The question has twice been presented to this court, in the case of Clem v. Motor Co., 178 Mich. 340 (144 N. W. 848), and again in the case of Rayner v. Furniture Co., 180 Mich. 168 (146 N. W. 665).

While it is quite clear that the claimant’s injury was brought about by his own gross negligence, we are of opinion that it cannot be said as a matter of law that he was guilty of such intentional and wilful misconduct as would defeat his recovery. Our own adjudicated cases cited above are conclusive upon this point.

The judgment is affirmed.

McAlvay, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Moore," J.

text:
    MacPHERSON v. HOVEY.
    Contracts — Compensation—Actions — Evidence — Work, Labor ' and Services.
    In an action brought by an accountant for auditing the books of a corporation wherein certain directors of the company, who authorized the performance of the work, were made defendants, upon conflicting evidence tending to establish plaintiff’s claim that the individual defendants were the proper contracting parties, the trial court correctly submitted the question to the jury, and a judgment in plaintiff’s favor determining that the defendants were individually liable was sustained by the evidence.
    Error to Wayne; Mandell, J.
    Submitted' April 16, 1915.
    (Docket No. 144.)
    Decided June 7, 1915.
    Assumpsit by Frank H. MacPherson against Horatio N. Hovey and Louis C. Sherwood for services performed. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Stellwagen & MacKay, for appellants.

      Angelí, Boynton, McMillan, Bodman & Turner, for appellee.
   Moore," J.

The plaintiff sued for services rendered as an accountant in auditing the books and accounts of the Detroit Radiator Company, of which company defendants were directors. The defense was that the work was done for the Radiator Company, and Mr. Hovey advances the further defense that it is not shown that he authorized the work to be done or is in any view of the case liable. From a verdict and judgment in favor of the plaintiff in the sum of $995.74, the case is brought here by writ of error.

Counsel for appellants say the principal question is whether or not a verdict should have been directed for the defendant Hovey as requested. The question involved is one of fact, and has required an examination of the entire record. The record discloses there were five shareholders in the Radiator Company. Defendant Sherwood held a block of stock variously stated to be either $2,000 or $3,000. Defendant Hovey and his son-in-law, Mr. Patterson, held one-half of the remaining stock, J. D. and Watson Beebe held the remainder of the stock. The capital stock of the corporation was $50,000. It is apparent some friction arose between Mr. Patterson, Mr. Hovey, and the Beebes, who were in control of the management. Mr. Sherwood testified in part:

“Q. Will you tell why it was necessary to have the ¿nzci.i'fc ITlctd© ^
“A. I held $3,000 of the stock, I think it was, enough to control between the Beebes and Mr. Hovey and Mr. Patterson, and I had a little discussion with J. D. Beebe, and he came down and asked me to sign a check for petty cash in the drawer as. assistant treasurer on account of the absence of Mr. Patterson, and I refused to sign the check, and told him I did not think he needed that much money for petty cash in the dráwer in the office, and there was a little argument, and the next day or two he offered me two for one in cash for my stock, knowing that I controlled the company, and, taking the position of the small amount of stock I held, I refused him, and reported the case to Mr. Hovey, and I said: Tf a man comes in and offers me two for one for stock that has some water in it as connected with patents, etc., he wants it for a purpose, aúd I think an audit of the company ought to be made, and I know nothing about the internal working of your concern/ But I know in a day or two a meeting was called of the board of directors, at which I think four were present. Whether Watson Beebe was present at that time at that meeting I am not sure. . * * * After the meeting with the board of directors I had a meeting with Mr. MacPherson, at my desk in the Dime Savings Bank. Mr. MacPherson came in, and I told him we would wait until Mr. Patterson came in, and during the time we were waiting I talked over with Mr. MacPherson and told him about the company, the personnel of the company, sort of a running visit, waiting for Mr. Patterson.
“Q. Did you tell him why you were there and on whose behalf you were there?
“A. I said I was chairman of the committee appointed to select an auditor for the Detroit Radiator Company. I told Mr. MacPherson that I was chairman of a committee appointed to select a suitable auditor for the purpose of auditing the books and accounts, etc., of the Detroit Radiator Company. There was nothing said about Mr. MacPherson working with me and Mr. Hovey individually.
“Q. Was anything said by you that you and Mr. Hovey would pay for this work?
“A. Absolutely no; this preliminary report I think was handed to me, and then sent to Mr. Patterson, treasurer of the company.”

It is the claim of Mr. MacPherson that he was hired by Mr. Sherwood to do the work for Mr. Hovey and Mr. Sherwood, and that it was done for them, and not for the Radiator Company. The preliminary report referred to by Mr. Sherwood (Exhibit B) began as follows:

“Messrs. H. N. Hovey and L. C. Sherwood,
“Directors of the Detroit Radiator Company, “Detroit, Michigan.
“Gentlemen:
“Pursuant to your instructions, we have made an inventory of the equipment, tools, machinery, goods, materials, and supplies of your company, as of June 6, 1910. At your request we submit herewith an interim report showing the financial condition of the company as of June 6, 1910.”

The following letter (Exhibit D) was sent:

“August 19, 1910.
“H. N. Hovey, Esq.,
“L. C. Sherwood, Esq.,
“Detroit, Mich.
“Gentlemen:
“Requiring funds, we will be pleased if you will let us have a check for the whole or a substantial part of our account for services rendered in connection with the Detroit Radiator Company’s examination. We shall be pleased if you can arrange this by the 23d of the present month.
“Yours very truly,
“F. H. MacPherson & Co.”

Other correspondence followed.

Mr. Hovey was called as a witness by the plaintiff under the statute. Exhibits B and D were shown to him. He testified of Exhibit B that it was delivered to him. He was asked:

“Q. When you had seen this did you take any steps to apprise Mr. MacPherson that you claimed that he was not acting for you, and that you received this report directed to you and Mr. Sherwood?
“A. I took it as it read there. It was given to us as directors of the Detroit Radiator Company, and not as individuals.
“Question repeated.
“A. I did not.”

He was questioned as to Exhibit D:

“Q. Will you look at ‘Exhibit D’? Was that letter delivered to you through the mail by Mr. MacPherson?
“A. I cannot answer that. I looked through my files this morning to see if I could find any communication, and I found none, and I don’t remember seeing it.
“Q. You don’t recollect whether you received it?
“A. No, sir.
“Q. You would not say you did not?
“A. No.”

He says if he received it he sent no reply to the plaintiff. Mr. Sherwood testified that he turned the reports and letters over to Mr. Patterson and did not reply to them. The Radiator Company shortly after-wards went into bankruptcy, and Mr. Patterson solicited the plaintiff to file his claim against the company. He declined to do so, insisting it was the debt of Mr. Hovey and Mr. Sherwood.

Mr. Boothe testified, in substance, that he presented the account to Mr. Sherwood, who asked him to see Mr. Hovey.

“I then went to see Mr. Hovey and presented the bill to him. Mr. Hovey said he had been out of- the city for some time, and that he had not before seen a copy of the bill, nor had he heard the amount of it.
“Q. Did or did not Mr. Hovey make any statement at that time about the charge being made against the wrong party?
“A. No; he simply stated that he would take the matter up with Mr. Sherwood and arrange the matter satisfactorily in a few days.”

Cross-examination:

“Q. Where was this conversation?
“A. With Mr. Sherwood in Mr. Sherwood’s office in the Dime Bank, and with Mr. Hovey at his own office in the Hammond Building.
“Q. Didn’t Mr. Hovey at 'that conversation tell you distinctly that that was a matter of the Detroit Radiator Company and not his own?
“A. No, sir; he did not tell me that.”

Mr. Hovey gave an entirely different version of this conversation, and said he told Mr. Boothe the bill was for the Radiator Company to pay.

In Mechem on Agency (2d Ed.), § 480, is found the following language:

“But since, as has been seen, authority for the doing of any lawful act — except in those cases in which an authority in writing or under seal is expressly required — can be conferred by parol, and since the existence of such authority may be inferred from the conduct of the parties, so also, with the same exceptions, the unauthorized doing of any such act may be ratified by parol, and the fact of such ratification may likewise be inferred from the conduct of the parties. In this case also, as in the other, it will be found that this is the most usual method by which the. result is effected.
“Ratification, like authorization of which it is the equivalent, is generally the creature of intent, but that intent may often be found by the law in cases where the principal, as matter of fact, either has no express intent at- all, or had an express intent not to ratify.
“The acts, words, silence of the principal which are relied upon are sometimes spoken of as in themselves a ratification. As a rule, however, this is not strictly accurate. They are rather the evidence of a ratification than the ratification itself.”

See, also, Mechem, §§ 451, 452.

In section 453 of the same author is the following:

“But even though silence may not be per se conclusive, and even though estoppel be for the time being excluded, it is entirely safe to say that silence or a failure to repudiate may often be evidence ■ of an assent, more or less strong under the circumstances, from which, as a matter of fact, an inference of assent may be drawn. The question seems to be this: From the failure to dissent, under the circumstances, would the ordinary intelligent man be justified in inferring that the principal assented? Like other similar questions, this would be for the jury, unless reasonable men could fairly draw only one inference from the facts, and in that case the court may decide it.”

In view of the circumstances under which the work was done and the conflicting testimony as to the hiring and the correspondehce, we think the trial judge was right in declining to direct a verdict in favor of Mr. Hovey.

A portion of the charge is criticised, but it should be read in connection with the rest of it. The charge makes nearly eight pages of the printed record. If the case was to be given to the jury at all, every phase of it was covered by the instructions of the judge. The other assignments of error do not call for discussion.

Judgment is affirmed.

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


author: Moore, J.

text:
    DEBO v. GAMBLE.
    1. Brokers — Commissions—Contracts—Principal and Agent.
    A real estate broker wbo had no agreement for compensation with the owner of the property, but learning it was for sale, obtained the price from the agent that had charge of the real estate, and who thereafter found a purchaser on land contract for the tract, was entitled to his commissions in an action against the agent upon evidence that the agent took advantage of plaintiff’s services to close the sale and charged his principal with a commission for securing the buyer. .
    2. Same — Trial—Chars®.

      Held, also, that the instructions of the court sufficiently presented defendant’s contention to the jury and did not prejudice his claims as set forth in his requests to charge.
    Error to Wayne; Wiest, J., presiding.
    Submitted April 6, 1915.
    (Docket No. 2.)
    Decided June 7, 1915.
    Assumpsit in justice’s court by Alfred Debo against James Gamble for a broker’s commission. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      John D. Harger, for appellant.

      Frank W. Atkinson, for appellee.
   Moore, J.

This suit was commenced in justice’s court. The plaintiff declared on all the common counts in assumpsit, and filed a bill of particulars for “amount due from sale of three lots belonging to William Wente, $300.” From a judgment in favor of the plaintiff for $90 the defendant appealed the case to the circuit court. The case was tried there before a jury, which rendered a verdict in favor of the plaintiff. From a judgment of $100.50, the case is brought here by defendant on writ of error.

The plaintiff had some dealings with defendant previous to the transaction involved here. It is his claim that he learned that Mr. Wente was the owner of a number of lots in Detroit, and that defendant was acting as his sales agent. The defendant had a desk at the office of Sherwood & Leland, at which office plaintiff called in April, 1912, to learn the price of two lots. In the absence of Mr. Gamble he requested Mr. Leland to find out t]ie price of the lots. Later he was told by Mr. Leland that the price was $1,600, and that Mr. Debo was told he must depend upon getting more than that amount for his compensation. Plaintiff handed Mr. Leland $5 and his check for $45. These were turned over by Mr. Leland to Mr. Gamble.

It is the claim of plaintiff that he made a contract May 2, with Mr. Harrison for the lots at $900 each, and that Mr. Harrison paid him $50; that Mr. Harrison sold to Mr. Rosenthal the contract, who in turn assigned his interest in the contract to Lowenburg Bros., on May Slst, and that soon thereafter a deed was made to them for the two lots and one other for $2,700, and that these deeds were delivered by the defendant, who applied the $50 paid by the plaintiff toward the purchase price, knowing that the plaintiff was the procuring cause of the sale. It is the further claim that defendant ignored the plaintiff in the transaction and collected from Mr. Wente $45 for each lot for making the sale.

The plaintiff called defendant as a witness. His testimony was evasive. He admits he knew Mr. Debo obtained from Mr. Leland the price of $1,600 for the two lots, and that the $50 paid by Mr. Debo to Mr. Leland was delivered to defendant, and that it was used to apply on the purchase price, but he denied that he had any knowledge that Mr. Debo was instrumental in making the sale, and claims to have made it himself. The first error discussed is — we quote from the brief:

“The court erred in overruling the defendant’s objection to the following question on direct examination of the witness James Gamble as follows:
“Q. Did Mr. Wente pay any commission for the sale of those lots ?
“Mr. Harger: I object to that as irrelevant, immaterial, and inconsistent.
“■The Court: He may answer the question and give Mr.' Harger an exception.
“A. I charged Mr. Wente for my services. I have done business for Mr. Wente for 20 years, _ and I simply make a charge for my services to him for what I think they are worth, if I think they are worth anything.”

The argument seems to be based upon the theory that plaintiff brought his action to recover $300 for the sale of three lots, and that if the arrangement made with defendant had any validity, the plaintiff must bring his action against the owner. The plaintiff made no arrangement with the owner, but if his theory is true, he did make an arrangement with defendant that gave him a right to sell the lots, and that defendant, taking advantage of his work, made the sale, and a sum of money came into his hands as the result thereof. We think the testimony competent.

It is said the court erred in refusing to give the defendant’s request to charge the jury as follows:

“I charge you that if you find from the evidence that the defendant received a certain sum of money from his principal for his services, growing out of the sale of the property, you cannot find a verdict for the plaintiff in this case unless you find from the evidence that the money so received by the defendant in equity and justice belonged to the plaintiff; and, to find that in justice and equity such money so received by defendant belonged to the plaintiff, you must find from the evidence that such sum of money so received from the sale of said lots by this defendant was in excess of the sum of $1,600, the purchase price which said plaintiff was to produce from said lots; and unless you find from the evidence that the money so received was in fact a part of the excess above the selling price, your verdict should be for the defendant of no cause of action.”

The judge charged the jury upon that subject as follows:

“So, then, we now come to the remedy open to the plaintiff in this case. It appears from the evidence that the defendant is not the owner of the lots. The lots were owned by Mr. Wente of Manistee, but the defendant in the case testifies that he has authority from Mr. Wente to sell the lots. I am of the opinion that the plaintiff in this case, even though he brought the Lowenburgs and procured them to buy the lots, cannot recover the difference between $800 and the price the lots brought; but if defendant had authorized the plaintiff to make sale of the lots and knew that he had procured the Lowenburg Bros., then I am of the opinion that the plaintiff in this case may recover the money that came into the hands of the defendant for the price of the lots, not the difference between $800 and $900, but the money that came to the defendant because of his sale of the lots.
“The defendant has testified that he got for the three lots that he sold $135. You may then consider that for each lot sold he received $45; that for the two lots he sold he received $90, and in equity and in conscience, in case he made the agreement as plaintiff claims, and in case plaintiff procured the purchaser, as the plaintiff claims, then in equity and good conscience the money defendant has received because of the sale of the lots, the commission or fee that is coming to the defendant, belongs to the plaintiff in this case, because it was earned under such circumstances by the plaintiff; and if you find from the evidence the agreement was made by the defendant and with Leland, and the defendant knew at the time of the sale that' Lowenburg Bros, was a customer brought there by the plaintiff, then the plaintiff in this case may recover the commission or fee received by the defendant upon two lots, which would be $90.
“In case you cannot so find from the evidence, then your verdict will be for no cause for action.
“If you find for the plaintiff in this case and award him $90, then you will give him interest upon that sum at the rate of 5 per cent, per annum from the 1st of June, 1912, to this date. * * *
“Let me restate one proposition in the case. Did the defendant, through Mr. Leland, agree with plaintiff that plaintiff might sell the two lots at $800 each, and did plaintiff bring about the purchase by the Lowenburg Bros.? If the defendant through Leland fixed the price of the lots with plaintiff at $800, and if he was paid $50 on the sale of the lots, the defendant not being the owner of the lots, he would be under no legal obligation to pay. the plaintiff; but if plaintiff found a purchaser at $900, and the defendant used plaintiff’s efforts finally and derived an additional sum, a sum set as commission from the owner on the sale, then he has received money that as between himself and the plaintiff belongs to the plaintiff, and plaintiff may recover such commission on the sale of the two lots, in the sum of $90. Follow the officer.”

In view of the testimony of defendant that the lots sold for $900 each, and that he was paid by Mr. Wente $45 for each lot sold, and of his written request to charge, we cannot see wherein he was prejudiced by what the court said to the jury.

The other assignments of error have been examined, but do not call for discussion.

Judgment is'affirmed.

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


text:
    WEAVER v. MAXWELL MOTOR CO.
    Master and Servant — Workmen’s Compensation — Partial Disability — Statutes—Construction.
    Under sections 9 and 10, pt. 2, Act No. 10, Extra Session 1912 (2 How. Stat. [2d Ed.] §§ 3955, 3956), providing that when incapacity for work resulting from claimant’s injury is total the employer shall pay, or cause to he paid, a compensation equal to one-half his average weekly wages, etc., etc., and that while the incapacity resulting from the injury is partial the employer shall pay one-half the difference between the average weekly wages before his injury and, the average earnings he was able to obtain thereafter, a claimant who had lost one eye at the time of his injury which later caused the entire loss of the other was entitled only to the compensation for partial disability, not the amount which would have been payable to an employee who lost both his eyes in the accident complained of.
    Certiorari to the Industrial Accident Board.
    Submitted April 12, 1915.
    (Docket No. 43.)
    Decided June 7, 1915.
    Charles Weaver presented a claim against the Maxwell Motor Company for total incapacity resulting from the loss of both eyes. An award granting compensation as for total incapacity to work is reviewed by the contestant on certiorari.
    Reversed.

      Fred L. Vandeveer (Cummins, Nichols & Rhoads, of counsel), for appellant.

      Person, Shields & Silsbee, for appellee.
   Moore, J.

This case is certiorari to the Industrial Accident Board. The facts are stipulated. We quote sufficiently for the purpose of this case:

“The character and nature of the injury and the result thereof is as follows: ‘The end of a crowbar struck me in the left eye, causing an injury which has permanently destroyed the sight of this member/ Due to an injury received about seven years ago while, working in a dyeworks, applicant received an injury which cost him practically the total loss of sight of the right eye. At the present time the sight of both eyes is limited only to a perception of light. Applicant received no injury to his right eye due to the accident of July 3, 1913, to the left eye. * * * Applicant contends that by reason of the loss of his left eye, due to the accident of July 3, 1913, and the loss of the right eye, due to the accident of some seven years ago, that he is now totally and permanently incapacitated from work, and therefore entitled to compensation up to the limit allowed by the act, viz., $4,000. Respondent claims that it is liable only for the injury which was received while in its employ, viz., the loss of the left eye, and should pay compensation for but 100 weeks, or- a total amount of $1,000.”

The ruling of the Industrial Accident Board was as follows:

“This cause having come on to be heard before the full boqrd on stipulation and waiver, agreeing, among other things, that the applicant by the accident in question lost the sight of his only eye, the result being blindness and total incapacity for labor, and the same having been argued by counsel and written brief filed therein, and due consideration thereof having been had by the board, it is ordered and adjudged that said applicant is entitled to receive and recover from said respondents compensation at the rate of $10 per week for a period of 400 weeks from the date of accident in said cause; said compensation to be paid in weekly payments in accordance with the provisions of the workmen’s compensation law.”

The questions involved call for a construction of portions of Act No. 10, Extra Session of 1912 (2 How. Stat. [2d Ed.] § 3939 et seq.).

Section 9, pt. 2, of the act reads:

“While the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee a weekly compensation equal to one-half his average weekly wages, but not more than $10.00 nor less than $4.00 a week; and in no case shall the period covered by such compensation be greater than five hundred weeks, nor shall the total amount of all compensation exceed $4,000.”

Section 10 of part 2 provides in part as follows:

“While the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee a weekly compensation equal to one-half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than $10 a week; and in no case shall the period covered by such compensation be greater than three hundred weeks from the date of injury. In cases included by the following schedule the disability in each such case shall be deemed to continue for the period, specified, and the compensation so paid for such injury shall be as specified therein, to wit: * * *
“For the loss of an eye, fifty per centum of average weekly wages during one hundred weeks.
“The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof, shall constitute total and permanent disability, to be compensated according to the provisions of section 9.”

Counsel upon the oral argument and in the printed briefs stated that after diligent search they were unable to find a case in point. Since the case was submitted counsel for the claimants has called the attention of the court and opposing counsel to the case of State, ex rel. Garwin, v. District Court, 129 Minn. 156 (151 N. W. 910), which is a case on all fours as to the facts. It is not a precedent in the instant case, however, because the Minnesota statute contains language not found in the Michigan statute, reading:

“If an employee receives an injury, which, of itself, would only cause permanent partial disability, but which, combined with a previous disability, does in fact cause permanent total disability, the employer shall only be liable for the permanent partial disability caused by the subsequent injury.”

And it was held the compensation should be based upon the permanent partial disability, and not, as claimed by the appellant, on the basis of permanent total disability.

It must be confessed that the provisions of the Michigan statute are so ambiguous as not to be free from doubt, as is evidenced by the diverse constructions' put upon it by the able counsel employed in the case before us. All of its provisions, however, should be given effect, if possible. The compensation fixed in section 9 must be based upon the fact that the total incapacity for work resulted from the injury. Section 10 deals with the partial incapacity for work resulting from the injury, and fixes the compensation, and then proceeds:

“For the loss of an eye fifty per centum,” etc. “The loss of * * * or both eyes * * * shall constitute total and permanent disability.”

In the instant case the loss of the first eye was a partial disability for which, if our workmen’s compensation law had been in existence, the then employer would have been liable, and for which disability the present employer was in no degree the cause. The loss of the second eye, standing by itself, was also a partial disability, and of itself did not occasion the total disability. It required that, in addition to the results of the disability occasioned by the accident of seven years ago, there should be added the results of the partial disability of the recent accident to produce the total disability. The absence of either accident would have left the claimant partially incapacitated. We think it clear the total incapacity cannot be entirely attributed to the last accident. It follows that the compensation should be based upon partial incapacity; and it is so ordered.

The case will be remanded for further proceedings.

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


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    SNOOK v. MT. CLEMENS SUGAR CO.
    1. Appeal and Error — New Trial — Judgment — Reducing Amount.
    On. appeal from the judgment of the circuit court requiring plaintiff in an action upon contract to remit a portion of the judgment, the trial court will not ordinarily interfere with thé conditional order requiring plaintiff to remit or to submit to a new trial, and such order will usually be affirmed.
    2. Same — Trial—Motions.
    In reviewing an action of the trial court in granting or denying a new trial, the appellate court will take into consideration the superior opportunity which the lower court had -in seeing and hearing the witnesses give testimony and to judge of their credibility, and will only reverse an order of the trial court in a clear case of abuse of discretion.
    Error to Macomb; Tucker, J.
    Submitted April 13, 1915.
    (Docket No. 61.)
    Decided June 7, 1915.
    Assumpsit by Thomas W. Snook against the Mt. Clemens Sugar Company for breach of contract. Judgment for plaintiff, which the trial court required to be reduced upon penalty of a new trial. • Plaintiff remitted and defendant brings error.
    Affirmed.

      T. A. E. Weadock, for appellant.

      Martin Crocker, for appellee.
   Moore, J.

This case has been here before. A reference to the opinion (180 Mich. 691, 146 N. W. 631) will be helpful now. After that opinion was handed down defendant asked the plaintiff for the delivery of the barrels which were the subject of the controversy. When plaintiff made delivery of the barrels they had, defendant claimed that fewer were delivered than were involved in the controversy, and moved for a rehearing for that and other reasons. Affidavits were filed and a hearing had. The trial judge required the plaintiff to remit $291.55 of the judgment, or to submit to a new trial. The plaintiff at once remitted. The defendant has brought the case here by writ of error, claiming a new trial should have been granted, or that in any event the trial judge should have required a larger amount to be deducted from the judgment.

An examination of the opinion of this court shows that plaintiff sued, not only for the barrels, but for interest and storage from January, 1906, and that there was some testimony the storage would be worth $10 a month. In disposing of the motion for a rehearing the trial judge stated in writing his reasons in part as follows:

“I have had considerable difficulty in determining the amount which I think the judgment should be reduced. I cannot know just how much storage the jury allowed, nor exactly the number of barrels they found had been accepted.
“I have concluded to order a new trial unless the plaintiff consents to a reduction in the judgment of $291.55, leaving the same $1,171.23. I arrived at this amount of my reduction by allowing defendant 58.9 cents per barrel for 495 barrels, which is the utmost I can conceive they are entitled to.”

This court has allowed and approved the action of the trial judges in making the granting of a new trial depend conditionally upon the remitting of a portion of the judgment. Detzur v. Brewing Co., 119 Mich. 282 (77 N. W. 948, 44 L. R. A. 500); North Michigan Land & Live Stock Co. v. Kneeland, 149 Mich. 495 (112 N. W. 1114). The rule as to when this court will interfere with the action of the trial court in disposing of motions for new trials was so clearly stated by Justice Carpenter in Hintz v. Railroad Co., 132 Mich. 305 (93 N. W. 634), that it is not necessary to restate it here.

Judgment is affirmed.

Brooke, C. J., and McAlVay, Stone, Ostrander, Bird, and Steere, JJ., concurred. Kuhn, J., did not sit.


text:
    VERNAKES v. CITY OF SOUTH HAVEN.
    1. Municipal Corporations — Ordinances — License—Publication —Criminal Law. "
    Publication of an ordinance is not essential to its validity in the absence of provisions in the city charter that it shall not take effect until after publication.
    2. Same — License—Revocation.
    Under section 3108, 1 Comp. Laws (2 How. Stat. [2d Ed.] § 5630), the city of South Haven was authorized to revoke the license of a pop corn dealer for noisy and disorderly conduct, without giving prior notice of its action to the licensee.
    Error to Van Burén; Des Voignes, J.
    Submitted April 16, 1915.
    (Docket No. 130.)
    Decided June 7, 1915.
    Thomas Vernakes was convicted in justice’s court of Selling pop corn in the city of South Haven without a hawker’s license and removed the proceedings to the circuit court by writ of certiorari; conviction affirmed, and respondent brings error.
    Affirmed.

      Thomas J. Cavanaugh, for appellant.

      Fred C. Cogshall, for appellee.
   Moore, J.

Thomas Vernakes was granted two licenses to do business in the city of South Haven; one for maintaining a stand, and one for a pop corn wagon. For these licenses he paid the city $30. By their terms they expired in June, 1913. On the evening of July 19,. 1912, a special meeting of the council, attended by all of the aldermen, was held and the licenses revoked.

The resolution adopted contained the following as the reason for revoking the licenses:

“Said Thomas Vernakes conducts his business in a noisy and disorderly manner, and persists in continuously and loudly calling’his wares to attract the attention of purchasers and refuses to desist therefrom at the request of the police officers of the city.”

And also provided:

“Resolved further that the amount of said license fees, to wit, $30 be returned to said Thomas Vernakes.,
“And be it further resolved that the chief of police be and he hereby is directed to serve upon said Thomas Vernakes a certified copy of this resolution.”

The chief of police notified Mr. Vernakes. He paid no attention to the notice. He was arrested. After his arrest he was brought before the justice, pleaded not guilty, waived a jury, and demanded a trial. It was objected at the trial that there could be no conviction:

(1) Because there was no proof, written, verbal, or otherwise, of the publication of the ordinance, and since the ordinance is penal in its character it became necessary for the city to prove the publication before the ordinance should be received in evidence and before a conviction could be based thereon.
(2) Because there was no certificate attached to the ordinance as provided by the statute, and since there was. no proof by the printer or other person or in any manner that the ordinance was ever published it could not be received in evidence.
(3) Because Thomas Vernakes had a license from the city of South Haven for which he paid and the council had no right to revoke the same without notice and a hearing and then only upon good cause shown.
(4) Because the ordinance under which Vernakes was arrested, tried, and convicted authorized the city clerk to revoke the license upon cause shown, by reason whereof the council had delegated the power of revocation to the clerk, and could not exercise that power itself.

These objections were all overruled by the justice, and the relator was convicted and fined. He sought to have his conviction reviewed by certiorari in the circuit court. The circuit judge affirmed the proceedings in justice’s court, and the case is brought here by writ of error.

Objections 1 and 2 may be considered together. In his return to the writ of certiorari the justice returns:

“I do further certify and return that there was neither allegation nor proof that the ordinance upon which said complaint was based was never published. There was no certificate attached to the record of said ordinance in the 'Record of Ordinances,’ nor was there any proof by the printer or any other person that said ordinance was ever published, but said ordinance and the passage thereof was duly proved by the testimony of the clerk of said city of South Haven.”

The provisions in relation to the recording and publication of ordinances in cities of the fourth class are found in sections 3086 and 3087, 1 Comp. Laws (2 How. Stat. [2d Ed.] §§ 5608, 5609).

The following Michigan cases have held publication essential to the validity of ordinances: People v. Keir, 78 Mich. 98 (43 N. W. 1039); Richter v. Harper, 95 Mich. 221 (54 N. W. 768); Van Alstine v. People, 37 Mich. 523. But an examination of these cases discloses the fact that in each case the charter provided that the ordinance should not take effect until after publication. In the instant case theré is no provision that the ordinance shall not take effect until after publication.

In Stevenson v. City of Bay City, 26 Mich. 44, it is said:

“In the absence of a clear provision to the contrary, a provision in the charter of Bay City, requiring ordinances and the date of their publication to be recorded, and the record signed by the mayor and recorder, was held not to make such record a condition precedent to the validity and operation of an ordinance regularly adopted by the common council. * * * An ordinance lawfully adopted cannot be defeated by the omission of such a ministerial duty; for, otherwise, either mayor or recorder would be able to control or delay the legislation of the city by his individual action, and would possess a practical veto power not conferred or contemplated by the charter.”

See, also, Boehme v. City of Monroe, 106 Mich. 401 (64 N. W. 204), and Kenaston v. Riker, 146 Mich. 163, at page 167 (109 N. W. 278).

Reasons 3 and 4 may be discussed together. We have already seen that the council by a unanimous vote revoked the licenses. It is said they cannot do that because they had delegated that power to the clerk. . The circuit judge held the council could not delegate this power. We find it unnecessary to say whether it could.

Section 3108, 1 Comp. Laws (2 How. Stat. [2d Ed.] § 5630), in unambiguous terms provides that every license shall be revocable by the council at pleasure, and we think it had the right in this instance.

Judgment is affirmed.

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