text:
    O'DELL v. STRAITH.
    1. Trial — Requests to Charge Covered by General Charge.
    Where the substance of requests to charge was given in the general charge, there was no error in refusing such requests.
    2. Same — Evidence—Architects—Contracts—Conversation with Disinterested Party.
    In an action by a firm of architects for services in preparing plans and specifications for the construction of a building which was never erected because of difficulty In financing same, testimony of defendant as to an interview with a former member of plaintiff firm, who is not a party to the suit, in so far as it related to the terms of the contract which was afterwards entered into, held, properly stricken out.
    3. Same — Withdrawal of Question — Curing Error.
    Asking a question of defendant’s wife, on cross-examination, as to whether she had given the matter a great deal of thought during the past week in order to help win the case for her husband, which was withdrawn, on objection, held, not reversible error.
    4. Same — Compromise Verdict — Verdict for Less Than Amount Asked.
    Where plaintiffs sued for $6,000 and offered testimony that their services were worth that sum, but they had rendered a bill to the defendant of $3,000, a verdict for $2,500 cannot be said to be a compromise verdict, there being nothing to indicate that the jury did any “splitting of differences.”
    5. Appeal and Error — Trial—Defendant Cannot Complain of Smallness of Verdict.
    That the verdict was less than the evidence would have justified, is a matter of which defendant cannot complain.
    6. Same — New Trial — Great Weight of Evidence.
    It is only where the verdict is clearly against the great weight of the evidence that the Supreme Court will overrule the trial court and grant a new trial.
    Error to Wayne; Dingeman (Harry J.), J.
    Submitted October 22, 1919.
    (Docket No. 120.)
    Decided December 23, 1919.
    Assumpsit by Henry A. O’Dell and Dewey Halpin, copartners as Baxter, O’Dell & Halpin, against Samuel Straith for services rendered. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Paul W. Voorhies and Philip H. Robinson, for appellant.

      John McNeil Burns (Arthur P. Hicks, of counsel), for appellees.
   Stone, J.

This case was brought here by the defendant, by writ of error, to review a judgment for the plaintiffs of $2,500. The plaintiffs were architects in the city of Detroit, and it was their claim that in September, 1916, they were verbally employed by the defendant to prepare plans and specifications, and receive bids for the erection of a certain apartment building to be erected on Hancock avenue, in said city, the construction of which they were to superintend; that in pursuance of such employment, they prepared the plans and specifications for the building, and received bids which were submitted to the defendant, and approved by him; and that on or about April 7, 1917, the defendant notified the plaintiffs that, because of fhe unsettled conditions growing out of the war between this country and Germany, he had decided not to go on with the building. The plaintiffs, in this suit, sought to recover what they claimed was the reasonable value of the services which were rendered by them in connection with their employment.

On the other hand, the defendant, while admitting that he employed plaintiffs to prepare the plans and specifications, claimed that it was a part of the agreement that the plaintiffs were to arrange for the financing of the construction of the building; that this was a material part of the agreement, and that without it the defendant would not have entered into the contract with the plaintiffs; that the plaintiffs did make efforts to finance the building, but were unsuccessful; that after several unsuccessful efforts to consummate some arrangement for financing the building the plaintiffs announced that they were through, or words to that effect; and it was the claim of the defendant that, because of the failure of the plaintiffs to carry out this phase of the agreement, the contract was not performed, and that plaintiffs were not entitled to recover any compensation for their services; and that the contract was an entire contract, the material feature of which was the agreement of the plaintiffs to finance the construction of the proposed building.

Upon the trial the plaintiffs admitted that they made some efforts to assist the defendant to finance the construction of the building, but they claimed that their efforts in that direction were purely voluntary, and made simply with the desire on their part to see the project carried out, and that they were not obligated, under the terms of the agreement, to do anything in connection with the financing of the project.

Thus was presented to the jury a square issue of fact, and the principal issue in the case. It should also be stated that upon the trial plaintiffs claimed that by their contract with the defendant they were to be paid the regular fees of the American Institute of Architects, and that under the rules of that institute there is a regular and established charge of three per cent, of the estimated cost of the building to cover the work done by architects, including the preparation of the plans and specifications and the taking of bids; in other words, covering all the preliminary work to be done up to the time of the beginning of the actual construction of the building; and that inasmuch as all of this work had actually been done they were therefore entitled to the full three per cent, of the estimated cost of the building, or $6,000, and that was the amount claimed in the amended declaration.

There was lengthy testimony produced by the plaintiffs upon the subject of the amount of time spent and labor bestowed in the preparation of the plans and specifications, and in the receiving of bids. There was evidence that the amount of the total bids received by plaintiffs, and approved by the defendant, was $218,-890.20, which did not include a refrigerating plant.

There was also testimony on behalf of the plaintiffs of one John M. Donaldson, an experienced architect who had practiced his profession in Detroit for 35 years, that the value of services such as the plaintiffs claimed they had performed in preparing plans and specifications and receiving of bids, and not including superintendence of building, would be 3% per cent, of the total bids received; and that for such services, including full superintendence of construction, the reasonable charges would be 6 per cent.

The plaintiffs further gave testimony that the arrangement that was made between themselves and the defendant was that they were to be paid the regular fees of the American Institute of Architects, and that would be 3 per cent, or $6,000. It, however, appeared in evidence that on June 5, 1917, the plaintiffs had rendered a bill to defendant for services rendered, $3,000. This bill was accompanied by a letter which reads as follows:

“Baxter, O’Dell & Halpin, Architects,
“1024-5-6 Hammond Building,
“Detroit, Michigan.
“June 5, 1917.
“Dr. S. Straith,
“1461 David Whitney Bldg.,
“Detroit, Michigan.
“Dear Sir: We enclose herewith our bill for services rendered in connection with your building for the Hancock avenue lot.
“In accordance with our agreement, we are entitled to a commission of three per cent, on the estimated, cost of the work, but as you have decided not to pro-' ceed at this time, we are glad to make the minimum charge. If at a later date you decide to go ahead with the building, we shall be pleased to apply this amount on the charges for same.
“We trust that this arrangement will meet with your approval and beg to remain,
“Yours very truly,
“DH:0. Enel. Baxter, O’Dell & Halpin.”

The defendant testified that the first conversation which he had looking to the making of such a contract was with Mr. Baxter, who at least had been a member of the firm. The defendant testified that in such conversation he was encouraged to go ahead with the project and enter into the contract with the plaintiffs. The defendant testified that Mr. Baxter, with whom he had had a former acquaintance, represented that he was of the firm of Baxter, O’Dell & Halpin, the defendant testifying as follows:

“I recognized him as Mr. Baxter, and then the name —I connected the name with him, and asked him if he was of the firm of Baxter, O’Dell & Halpin. He said he was.”

He further testified that he had conversation with Mr. Baxter and showed him some plans which had been prepared by a Mr. Hunter, but which were never adopted; and he claims that the situation was talked over and the lot was mentioned. He further testified:

“I told him that I had bought the lot on contract, that I owed $10,000 on it, and that I had besides that, equities to the amount of about $10,000 in land contracts that I could put into the building, and that was all that I did have. ‘Well,’ he says, ‘that’s easy-.’ But before going into the room, while speaking of it in a general way, he says, ‘You ought to be able to build on that, that is easy, if you have got that lot.’ Then X told him that I had these resources. ‘Why,’ he says, ‘that is easy.’ ‘Well,’ I says, ‘if it is easy, I wish you would get somebody at it, for I have been unsuccessful.’ ‘Well,’ he said, ‘X am not in the active work in the office, but I’ll put this up to the boys, and I’ll have one of them come and see you.’ * * *
“There was no other conversation that I recollect on that day between myself and Mr. Baxter in relation to this proposed transaction. Later on, I saw Mr. Halpin about the matter. I should judge about three weeks after that, three or four weeks after that, I called to see Mr. Halpin at his office.”

There was no claim on the part of the defendant that Mr. Baxter ever had anything further to do in the matter. The defendant in this testimony was in part corroborated by a young woman, who was assisting him in his office, by the name of Edna Hirt, who subsequently married and bore the name at the time of the trial of Edna Hirt Sannar.

There was direct testimony on the part of the plaintiffs that Baxter had not been a member of the firm for three or four years.

In the cross-examination of Mrs. Straith, the wife of the defendant, who had testified to certain interviews between the defendant and Mr. Halpin, one of the plaintiffs, at Mr. Halpin’s office, the following occurred:

“Mr. Burns: Q. And you have given the matter, of course, a great deal of thought during the past week iWhile the case has been on for trial, trying to recall such details as you could, in order to help win the case for your husband?
“Mr. VoorMes: Now, just a minute; I object to the form of the question.
“The Court: The form of the question is objectionable.
“Mr. Bums: I will withdraw the question.
“Mr. VoorMes: Just a minute; I ask an exception to the remark of counsel.
“The Court: Note an exception.
“Mr. Burns: Well, what else would she be testifying for, if it wasn’t for that purpose? Certainly not to help us.
“Mr. VoorMes: Well, go ahead.”

At the close of all the testimony plaintiffs’ counsel made a motion in the following language, and the following colloquy occurred:

“Mr. Hicks: There is just one motion that I want to make at this time, and that is that all the testimony of conversations between Mr. Baxter and the defendant which has any tendency to show that a contract was made between them at that time, be stricken from the record, on the ground that it’s undisputed in this case that at that time Mr. Baxter was not connected with the firm of Baxter, O’Dell & Halpin.
“The Court: Well, I am inclined to think there is a lack of proof here to show that he had authority, that he was a member of the firm, and that he had authority to act for them; while he undoubtedly did voluntarily — or did offer to have Mr. Halpin come and see Dr. Straith, after all, I don’t think that that would be sufficient to bind the firm as to any arrangement that might have been talked between Dr. Straith and Mr. Baxter; because there is positive proof here that he was not actively connected with the firm, as I remember it, he was engaged in looking after some real estate holdings that he had.
“There is positive testimony that he was not a member of the firm, this suit is brought by O’Dell & Hal-pin, and I think Mr. Halpin said in answer to Mr. Voorhies’ question that it was something like three or four years since Mr. Baxter was connected with the firm.
“Well, I think I’ll strike out that testimony, that is, the testimony with reference to any arrangement between Mr. Baxter and Dr. Straith as to the preparation of these plans and the financing of the building. I’ll let the testimony stand in so far as it shows how these parties were brought together; but as to the arrangement that was talked of between Dr. Straith and Mr. Baxter, I think I will eliminate that from the record.
“Defendant’s Attorney: That is, if I understand your honor’s ruling, the testimony is stricken out as to his contract relationships.
“The Court: As to any attempt to make a contract between Mr. Baxter and Dr. Straith.
“Defendant’s Attorney: And it is only admitted for introductory preliminary purposes?
“The Court: Preliminary, to show—
“Defendant’s Attorney: And the contract is the one that was made between Dr. Straith and Mr. Halpin?
“The Court: Yes.
“Defendants Attorney: An exception, please.”

The following requests on the part of the defendant to instruct the jury were refused by the court:

“(6) I charge you, gentlemen of the jury, that in order to warrant you in finding for the plaintiff in this matter, you must unanimously find that they have established by a fair preponderance of the evidence all of the material''elements of their claim.
“(7) If the plaintiffs in this case have in any feature failed to establish any one of the material elements of their theory of the case, then you should find for the defendant and your verdict should be no cause of action.”

The charge of the court very fully, and, we think, fairly presented the issues in the case. After discussing the rule as to the burden of proof, the court spid:

“Therefore, it follows that the plaintiffs, to entitle them to a verdict, must establish all of the material elements of their claim by such evidence as outweighs, in the_minds of each of you, that given against it.
“Now, the first question that presents itself then for your determination is, What was the contract between these parties? Was it as the plaintiffs claim, a contract by which the plaintiffs were employed to perform services as his architects, which called for the drafting of plans and specifications and receiving bids and estimates, or was it, as the defendant claims, a contract which also obligated the plaintiffs to arrange for the financing of the project? If you find that the contract was as claimed by the plaintiffs, then the plaintiffs are entitled to your verdict. If, on the other hand, you find that the plaintiffs did undertake to arrange for the financing of the project, as claimed by the defendant, then your verdict would be for the defendant. * * *
“In determining what the agreement actually was, which these parties made between themselves, you must reach your conclusions from the evidence submitted to you in this case.”

After the verdict and judgment were entered, the defendant made a motion for a new trial for the following reasons:

Because the court erred in refusing to give each of the requests above set forth; because the verdict of the jury was not justified by.-any of the evidence; because the verdict of the jury is, on the face of it, a compromise verdict; because the court erred in striking out the testimony with reference to arrangements between Mr. Baxter and the defendant in relation to preparation of plans and financing the building; because of prejudicial and inflammatory remarks of counsel and unwarranted insinuations made by counsel while examining Mrs. Straith, as above set ¡forth; and, finally, because the verdict of the jury was against the weight of the evidence.

In the denial of the motion for a new trial the learned circuit judge stated that the 6th and 7th requests'^ to charge were covered by the general charge of the court, and that there was no merit in that part of the motion. The circuit judge further said:

“All of the parties agree that no fixed compensation for plaintiffs’ services was agreed upon between them. If entitled to a verdict, plaintiffs would be entitled to recover the fair and reasonable value of the services which they performed. This was admitted by the defendant and was embodied in defendant’s eighth' request. It was within the province of the jury to determine the value of the services, and in awarding a legs sum than that fixed by the experts, the jury was squarely within its province under the circumstances of this case.
“Complaint is made because the court struck from the record the testimony with reference to defendant’s talk with Mr. Baxter. Assuming that there was sufficient proof of Baxter’s authority to act for the plaintiffs, an examination of the testimony stricken from the record will disclose that it could not have affected the result. In substance, it amounted to nothing more than a promise by Baxter to have one of the plaintiffs talk over the matter with defendant. No claim was made of any contract with Baxter.
“There was nothing in the remarks of plaintiff’s counsel about which complaint is made, to influence the jury in their verdict.
“The verdict is not against the weight of the evidence. To hold otherwise would be to establish a rule that because the defendant produced, two witnesses to the contract, as against one for the plaintiffs, that the jury are bound by defendant’s testimony. The case presented a square issue of fact, which was resolved in favor of the plaintiffs and for which there is ample basis in the evidence.
“The motion for a new trial is denied without costs.”

Exception was duly filed to the refusal to grant the motion for a new trial and the reasons therefor. The assignments of error cover the same subjects as those embraced in the motion for a new trial, together with the further assignment: That the court erred in denying defendant’s motion for a new trial, and in all its reasons for such denial.

We will consider the questions presented in the order of the discussion of them by appellant’s counsel.

1. Refusal of the court to give the 6th and 7th requests to charge. An examination of this record satisfies us that there is no merit in this assignment of error. We have never held that requests to charge must be given in their exact language. In that part of the charge which we have quoted, we think it distinctly appears that the substance of these requests was given, and therefore it may be said that they were embraced in the general charge of the court.

2. Was it prejudicial error for the court to strike out the testimony of the defendant as to the interview with Mr. Baxter, as indicated by the ruling of the court. We are constrained to answer this question in the negative, for the reasons stated by the learned circuit judge in disposing of the motion for a new trial. Further, Mr. Baxter was not a party to this suit. It may be said that the undisputed direct testimony shows that he had not been a member of the plaintiffs’ firm for three or four years before the trial, which time antedated the making of the contract, whenever it was. No claim is made that any bargain or agreement was entered into with Mr. Baxter. At the most, all that is claimed is that he said he would send the plaintiffs to see the defendant. The defendant’s own testimony is that the only bargain or agreement that was ever made in the case was made with the plaintiff Halpin. We see no prejudicial error in the ruling.

3. Was there anything occurring in the cross-examination of Mrs. Straith which should reverse this case. We think not. Counsel for appellant call our attention to the ruling of this court in Lumbert v. Prince, 203 Mich. 242. The cases are readily distinguished. There counsel said to the witness: “What a liar you are.” The court said: “Of course, gentlemen, you are supposed to give no attention to a remark of that kind; sometimes remarks come when we cannot avoid it.” Which defendant’s counsel supplemented with the exclamation: “For a man to sit there and tell me that!”

Here, when objection was made, counsel for appellees very promptly, upon the suggestion that the question was improper, withdrew it. To the last remark of appellees’ counsel, counsel for appellant made no objection, but said: “Well, gO' ahead.” The dissimilarity between the instant case and the case cited by counsel for appellant is so great that we refrain from discussing the question further, but call attention to the language of this court and the collection of authorities in the recent case of Fishleigh v. Railway, 205 Mich. 145.

4. The fourth point urged, and upon which error is assigned, is that the verdict was a compromise verdict. Unless we are to say that in every instance in which a jury renders a verdict for a less sum than is claimed by the plaintiff the verdict is a compromise, there is no reason for us to hold in this case that this verdict was a compromise verdict. It is true that the plaintiffs sued to recover the sum of $6,000, and offered testimony tending to show that their services were worth that sum. It appeared, however, during the trial of the case, that the plaintiffs had rendered a bill to the defendant of $8,000, and we cannot say that the jury acted unreasonably or improperly in cutting the plaintiffs’ claim down to $2,500. We think it is & matter of which the defendant cannot complain— that the judgment was too small. There is nothing here to indicate that the jury did any “splitting of differences.” See Crawl v. Dancer, 180 Mich. 607.

5. The claim that the verdict was against the great weight of the evidence was submitted to the trial judge in the motion for a new trial. We have quoted his language in denying it. It is only in a clear case that this court will overrule the judgment of the trial court upon the question of the weight of the evidence. We have so recently, and so often, spoken upon this subject that we do not care to cite authorities. See, however, Druck v. Antrim Lime Co., 177 Mich. 364, 374; Pachuczynski v. Railway, 202 Mich. 594. We do not think there is any merit in the question. The evidence was all before the jury; they had all the facts. There was a sharp issue between the plaintiffs on the one hand and the defendant on the other. The jury passed upon this issue under a full and fair charge of the court, and we cannot say, upon examination of this record with care, that the verdict was against the great weight of the evidence.

There was no error in the denial of the motion for a new trial; and, in our opinion, there is no prejudicial error in the record, and the judgment of the court below is affirmed.

Bird, C. J., and Sharpe, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    SCHURTZ v. CITY OF GRAND RAPIDS.
    1. Evidence — Municipal Corporations — Records of City Council Best Evidence.
    In a suit by a taxpayer to restrain a city from acquiring a public utility without an affirmative three-fifths vote of the electors voting thereon, testimony of “talk” in the common council was incompetent and cannot be considered in view of the record proceedings.
    2. Appeal and Error — Affidavit Varying Record Not Considered on Appeal.
    An affidavit of a witness appended to defendant’s brief, that testimony on a certain page of the record “should have read as follows,” cannot be considered on appeal.
    3. Municipal Corporations — Public Utility — Waterworks — Compliance With Charter.
    If in the settlement of a claim by a waterworks company against a city, the city attempted to acquire or purchase a public utility within the meaning of the charter language, then the terms of the charter must be complied with.
    4. Words and Phrases — “Utility”—“Public Utility” — Definition.
    “Utility” means the state or quality of being useful; a “public utility” is one useful to the public.
    5. Municipal Corporations — Waterworks — Acquiring Public Utility — Constitutional, Law — Grand Rapids Charter.
    An attempt by the city of Grand Rapids in the settlement of a claim against it for water furnished, to take over the property of a privately owned waterworks plant, without the same having received the affirmative vote of three-fifths of the electors voting thereon, held, to be a transaction involving the acquiring of a public utility within the meaning of section 25, Art. 8, Constitution of Michigan, and section 28, Art. 8, of the city charter adopted in pursuance of the “Home Rule Act” (Act No. 279, Pub. Acts 1909), and therefor void.
    6. Constitutional Law — Construction.
    The language of the Constitution should receive a strict, hut reasonable, construction.

      7. Statutes — Construction—Implications.
    "That which is expressed makes that which is implied to cease.”
    8. Municipal Corporations — Taxpayer’s Interest to Restrain Illegal Acquisition oe Public Utility.

      A resident taxpayer and qualified elector of defendant city has an interest in the several funds of the city and in their integrity, and may maintain suit to restrain the city from acquiring a public utility npt receiving the sanction of three-fifths of the electors voting thereon, as required by the Constitution and the city charter.

    Appeal from superior court of Grand Rapids; Perkins (Willis B.), J., presiding.
    Submitted October 10, 1919.
    (Docket No. 30.)
    Decided December 23, 1919.
    Bill by Perry Schurtz against the city of Grand Rapids to enjoin the acquisition of a public utility. From a decree dismissing the bill, plaintiff appeals.
    Reversed, and decree entered for plaintiff.

      Shelby B. Schurtz, for plaintiff.

      Ganson Taggart, City Attorney (Walter S. Palmer, of counsel), for defendant.

      On right of resident taxpayer, in absence of statute to enjoin unlawful expenditures by municipality for waterworks, see note in 36 L. R. A. (N. S.) 20.

   Stone, J.

The bill of complaint herein was filed to restrain the defendant city from acquiiing'the Grand Rapids Hydraulic Company, an alleged public utility, and its property and franchises without an affirmative three-fifths vote of the electors, and from paying $30,-000 or any amount of money therefor, and to have the attempted purchase and acquisition declared void and of no force and effect. The bill is based upon constitutional, statutory, and charter provisions requiring a three-fifths vote of the electors to authorize the city to acquire any public utility.

A brief history of the organization and operation of the Grand Rapids Hydraulic Company may be helpful to an understanding of the questions involved. It was incorporated in 1849 under “an act to incorporate the Grand Rapids Hydraulic Company,” approved April 2, 1849 (Act No. 223, Laws 1849), with a capital of $30,000, with power to furnish and supply water to the inhabitants of Grand Rapids, and it is alleged and we think it appears that said company, or its receivers, successors or assigns have continued to operate such utility down to the time of the hearing of this caúse.

In 1889 the legislature by Local Act No. 404 authorized the township of Grand Rapids to establish and maintain a fire district within the limits of section 29 of said township, and to provide fire protection within the same. The board was given the power to rent from any water company laying its mains through any street within said fire district such a number of hydrants as might in the opinion of the board be necessary to afford fire protection for said fire district, and to increase the number of such hydrants from time to time as might by the board be deemed necessary. The expense of renting said hydrants was provided for by a tax upon all the taxable property within said fire district, to be spread upon the annual tax roll of said township. Acting under the authority so given, the township board of said township did provide a fire district constituting the west one-half of section 29, and made a contract with the Grand Rapids Hydraulic Company on June 13,1889, to install and maintain fire hydrants, said contract to continue for a period of 30 years. The Hydraulic Company, acting under such contract, installed some 24 fire hydrants at an annual rental of $30 per hydrant. The rent thus accruing was paid up to and including 1891. In 1892 this portion of the township was annexed to the city of Grand Rapids, and the rent was not thereafter paid, although it is claimed by defendant that claim was made from time to time for the same, and that about 17 of the hydrants were, for a number of years after such annexation, the only fire protection in that district.

The act under which the Hydraulic Company was organized contained no limitation upon the life of the corporation save this: It was provided that “the legislature may at any time hereafter amend or repeal this act.” In 1905 the legislature exercised this authority, and by Acts Nos. 455 and 492 of the Local Acts of that year, repealed said Act No. 223 of the Laws of 1849. At the same time it gave to said company the right to present a claim for the value of its tangible property to the common council of the city of Grand Rapids. The constitutionality of said repealing acts was sustained by this court in the case of People v. Calder, 153 Mich. 724, and on error to the Supreme Court of the United States the decision of this court was affirmed (Calder v. Michigan, 218 U. S. 591 [31 Sup. Ct. Rep. 122]). In the opinion in this court it was said:

“The repealing act does not take from the corporation any personal or real property acquired during its legal existence. It does take from it this, and only this: Its right to continue to be a corporation. It takes from it no right, franchise or power which does not depend for its existence upon the granting clause of the charter, and these it had a legal right to take.”

The right to present a claim to the common council of the city was given in the following provision of said act of 1905:

“The Grand Rapids Hydraulic Company’’may’at any time before January 1, 1906, and not thereafter, present a claim to the common council of the city of Grand Rapids for the value of the real and tangible estate owned by it, not including franchise, at the time of the approval of this act, and transfer such property to said city in consideration therefor. If the said company and the said common council shall be unable to agree upon the valuation of said property within thirty days thereafter, then such claim may be filed within the further time of thirty days, in the form of a claim in assumpsit in the superior court of Grand Rapids, and issue framed thereon in the nature of assumpsit. The rules and practice in suits in assumpsit shall be applicable thereto. Either party to such issue may take the same for review to the Supreme Court of the State, upon the questions of law raised upon the trial, or charge of the court made to a jury, if the same shall be tried before a jury. The amount finally awarded to said company against the city of Grand Rapids shall be a claim against the city, to be paid in the same manner as other claims: Provided, That if the said Hydraulic Company shall not elect to present a claim against the said city and transfer its property to said city, it may, upon giving a bond with sufficient sureties to be approved by the common council, to protect the city from any damages caused thereby, remove all of its tangible property from the streets, lands, and alleys in said city, under the direction of the board of public works of said city, and in the event of any disturbance of the street or alley grades, or injury thereto, caused by said removal, it shall at the time of removal of its property therefrom cause the said streets, lands and alleys to be repaired and placed in as good condition as before.”

'Said Act No. 455 is in language identical with the above, from said Act No. 492, and the record states that this act is expressly reserved from repeal in the charter of 1916, hereinafter referred to.

There appears to have been filed with the city clerk, on December 30, 1905, a communication, or so-called claim, by the president and directors of the Grand Rapids Hydraulic Company. After referring to the act repealing the charter, it stated that in the year 1893, in an action in the United States court at Grand Rapids, wherein the American Loan & Trust Company was complainant, and said company was defendant, a receiver was appointed for all the property of said company, and that said receiver had ever since been in possession of the same; that the amount of the bonds duly issued by said company was $680,000; the amount of the accrued interest thereon remaining unpaid was $244,800, making a total of $924,800; that because of the rights of the receiver and of the bondholders represented by him amounting to the said sum of money plus the expense of the receiver, estimated at $25,000, the company was unable at that time to present an exact claim for the real value of its real and tangible estate, nor its constitutional right to do business as a going concern, which the city proposed to take over to itself, and now owned by it, subject to such claims, for less than the sums above mentioned. It accordingly claimed (if said act be valid and constitutional, which it did not concede) the said sum, and it offered thereby to sell its property to the city for the sum of $949,800.

Attention was called to the contract with the township of Grand Rapids, for the furnishing of 24 fire hydrants at $30 a year for a period of 30 years from 1889, — no part of which rental had ever been paid, except the rental for the years ending March 1, 1890, and March 1, 1891, which payments were made by said township of Grand Rapids; that in the year 1892 the said western half of section 29 of said township became a part of the city of Grand Rapids; that since the year 1891 no part of said rental had ever been paid; and that on said contract there had accrued the sum of $14,542.37 principal and interest, which was then due and owing by the city to the said receiver and to the company.

This communication was referred by the council to the committee on ways and means, and the city attorney. The committee and the city attorney made a lengthy report. It referred to the repeal of the charter of the company, and the privilege to present a claim to the council for the value of the real and tangible estate owned by it. Attention was called to the claim that the repealing act was unconstitutional, and the report stated that the claim was inconsistent:

“Your committee is of the opinion that this claim should not be seriously considered by the common council for the foregoing, as well as. the following reasons:
“(1) It is not a claim under the act, because not made for the ‘tangible’ property of the company, but for bonds that never, from the best information your committee is able to obtain, had a value of more than 20 per cent, of their face, and many of which were sold for a less price than that.
“(2) Because the offer of said company is not a bona fide one as. shown by the express determination of the company not to abide by any settlement or adjudication of the claim, unless the entire amount demanded by the company is paid.
“(3) Because the company in the offer filed, shows facts that negative any authority or power on its part to carry out any agreement or adjudication that might be had on the claim. It appears therein that all of its property is in the hands of a receiver in the United States court, where it has resided for a period of nearly 13 years. No order of such court is shown to have been made directing or authorizing the receiver to act or abide by any agreement made with the common council of the city, or adjudication had on such claim.
“(4) Your committee has been advised by the receiver of said company, and so it appears from its communication to the common council, that no interest has been paid upon said bonds since their issue, for a period of 13 years and upwards, and from such communication it also appears that the expense of administering the trust, amounting to $25,000.00 due the receiver, has not been paid. Your committee is not informed whether the company’s running expenses have been paid, but know that it has been with the utmost difficulty that city taxes have been collected from said company for several years. * * *
“As to the claim made by the Hydraulic Company for hydrants furnished to the township board of Grand Rapids township in the year 1889, and the contract said to have been made by the Hydraulic Company with said township board, your committee is not otherwise advised than appears in such communication. If any claim exists or is made by the Hydraulic Company for hydrants used within that portion of the township afterwards brought within the city of Grand Rapids, the claim should be made specific and presented by itself. So far as your committee is advised, no part of the same is a legal claim against the city, but it does not assume to pass upon the merits of it, in this report.”

This report was adopted, and no further action seems to have been taken by the common council thereon. No action was ever taken in the superior court, as provided, for in the act. There was considerable testimony of “talk” in the common council, but such testimony was incompetent, and cannot be considered, in view of the record proceedings. Neither can we consider the affidavit appended to the defendant’s brief. It is alleged in the 12th paragraph of the amended bill of complaint, as follows:

“That in 1915 the Grand Rapids Hydraulic Company offered to sell to the city all its assets, in the city and outside, free and clear from all liabilities, for $80,000. That on Monday, April 3, 1916, this proposition was submitted to a vote of the electors of the city, and voted down by a vote of ‘Yes, 6,506 votes, No, 10,737 votes,’ and which proposition was duly declared defeated by the board of canvassers.”

. This allegation is by the answer admitted to be true, and the record sustains the allegation.

In the meantime the property of the Hydraulic Company had been sold under mortgage foreclosure in the Federal court to John J. Collins for $34,000, and the sale had been confirmed, and he seems to have acquired all the rights of the company to any claim it had against the city. On August 29, 1916, the voters of Grand Rapids adopted the present city charter, under the home rule law, which charter will be later referred to. On January 16, 1919, one Fitzpatrick appeared before the city commission and announced that the Hydraulic Company was ready to make a proposition to sell the property of said company, inside the city limits, to the city, whereupon the matter was referred to the committee on public service and city manager, and that the company’s proposition be submitted in writing. On March 29, 1919, at a meeting of the city commission, the mayor stated that the meeting was called for the purpose of hearing a report of the city attorney in regard to the purchase of the Hydraulic Company’s property and rights, at the price of $30,000. The communication from the city attorney, among other things, stated:

“Under the charter, sections 27 and 28 of title 8, and under the home rule act, section 3307 of the Compiled Laws of 1915, as amended, a city has no right to acquire an existing public utility, except the question be passed on affirmatively by three-fifths of the ^qualified electors of the city, voting thereon at a regular or special municipal election.
“Whether the taking over of the property of the Hydraulic Company, which would involve the taking over a part of it for park purposes, a part of it for use in connection with the water department, and a settlement of their claim under their old contract, would be a taking over of a utility, within the intent and meaning of the charter and home rule statute, is, in my opinion, a debatable question. It is not the taking over of the utility as a going concern, although the effect would be to wipe out the hydraulic company as a competitor of the city.”

Thereupon, and notwithstanding the adverse vote of April 3, 1916, of the electors, and without any attempt to submit the matter to the vote of the electors, the following resolution was adopted by the city commission:

“Resolved, that the claim of John J. Collins, or his assigns, against the city on contract for furnishing water to that part of the township of Grand Rapids now annexed to the city, acquired by said Collins under foreclosure sale in the United Slates district court for the western district of Michigan, be settled for the sum of thirty thousand ($30,000) dollars, conditioned that said Collins deliver to the city a deed and transfer of all the real and personal property, either within or without the city of Grand Rapids, except the Bailey Springs property, coal at pumping station and accounts receivable acquired by him on said foreclosure sale, or acquired since in connection with the use and operation of said property, free from all liens and claims of any nature, the same to be payable, five thousand dollars on delivery of deed and discharge of said claim, and the balance on or before sixty days, conditioned that marketable title to said property and all thereof be shown and conditioned that Mr. M. C. Gray shall give the city a written guarantee of title, and agreement that the money paid shall be returned to the city, in case any question of the city’s right or title thereto shall arise. And the city comptroller issue and deliver an order for five thousand ($5,000) dollars accordingly from the waterworks extension fund to Anne L. Sullivan, and the clerk and comptroller be instructed to draw an order on the city depository for the said sum of five thousand dollars ($5,-000) in favor of the city treasurer.”

On the same day the city comptroller issued warrant No. 7,953 for $5,000 payable to Anne L. Sullivan, out of the waterworks fund of the city, as first payment on the purchase of the Grand Rapids Hydraulic Company plant, and said warrant was delivered to M. C. Gray, who signed the name of Anne L. Sullivan in receipt thereof. On said March 29, 1919, there was delivered to the defendant the following guarantee by Mr. Gray:

“Grand Rapids, Mich,, March 29, 1919.
“For, and in consideration of the sum of one dollar, the receipt of which is hereby acknowledged, and the payment by the city of Grand Rapids, Michigan, of the sum of five thousand dollars to Axme L. Sullivan for the purchase of the property formerly owned by John J. Collins, doing business as the Hydraulic Water Company, I hereby guarantee the title of said Anne L. Sullivan to the said property, both real and personal, and that the same is free and clear from all liens and encumbrances whatsoever, and hereby agree to make the city whole, both principal, interest and costs, if any claim shall be asserted thereto, or any part thereof, and agree that any money paid to her, or to her assigns, by reason of said transaction, shall be returned to the said city, if any claim shall be made regarding the legal authority of said city to acquire said property, upon notice thereof, and offer of re-conveyance of the property in question.
“M. C. Gray. [L. S.]”

On said March 29, 1919, a warranty deed was duly executed, acknowledged and delivered by said Anne L. Sullivan to the city of Grand Rapids. After describing certain lots in the city the deed contains the following language:

_ “Together with all machinery, pipes, outfits, liberties, privileges, franchises and property, real or personal, excepting Bailey Springs property so-called, acquired by John J. Collins on mortgage sale, under mortgage given by the Grand Rapids Hydraulic Company, or acquired since the date of said sale by said Collins, operating as the Hydraulic Water Company, also any and all claim arising under and by virtue of a certain contract for supplying of water to lands adjacent to, and east of the city of Grand Rapids, but have since been annexed to said city, including contract regarding the same, the purpose and intent of this deed being to convey all property owned by, or used in connection with the carrying on of the business by said Collins as the Hydraulic Water Company, excepting only the Bailey Springs property so-called, and the coal now upon the said property heretofore described.”

On April 1, 1919, said deed was recorded in the office of the register of deeds of Kent county, and on the same day the original bill of complaint herein was filed.

Not only is it true that the Hydraulic Company, its receivers, successors or assigns, continued to operate this plant as a going concern — sometimes known as the Hydraulic Water Company and sometimes as the Hydraulic Company — and continued to be a competitor of the city, down to the time of the alleged sale to the city, but it appears that since said alleged purchase the property has been operated by the city as an independent plant. An officer of the city testified as follows:

“We are using the pumping station of the Hydraulic Company to supply the Hydraulic mains. Every employee they had at the time this matter came up is still in their employ, so far as I know. The matter is held in abeyance so far as the city and the Hydraulic Company are concerned, until the determination of this suit. Just as clean-cut and separate as if it was entirely by itself.”

So it was not the mere attempted purchase of some pipe in the ground or “old junk,” as claimed by defendant, but it was the attempted purchase of a “going plant,” with its pumping station, coal and supplies, a property which had been used in active competition with the waterworks of the city.

The plaintiff relies upon the constitutional provisions, the home rule statute, and the charter provisions set forth in the bill of complaint, requiring an affirmative three-fifths vote of the electors of the city to acquire or purchase any public utility. He claims that there was here a privately owned public utility; that the transaction of March 29, 1919, was void, because the Constitution, statutes, and city charter have pointed out the method to obtain plants like the Hydraulic Company, and such method excludes all other methods; that the transaction alluded to was in reality an attempt to purchase a public utility, and that the alleged settlement of a claim against the city was a mere pretense and subterfuge to avoid and evade the constitutional, statutory, and charter provisions relied upon.

At the expense of tediousness we think we should quote sections 27 and 28 of title 8 of the new charter. They are as follows:

“Sec. 27. The city of Grand Rapids shall have and it is hereby given the right and power to acquire, construct, own, operate and maintain either within or without its corporate limits, street railways, subways, and any and all transportation facilities, waterworks, electric light works, gas works, power works, heating works, telephone and telegraph lines, conduits, bridges, viaducts, wharfs and docks, market and market houses, garbage collection, garbage disposal and reduction plants, paving plants and appliances, and such other public qtility enterprises or service as the city commission may from time to time determine and designate, and to acquire all property, real or personal, necessary or proper therefor, and to maintain and operate the same, or to lease the same or any part thereof, to other corporations or individuals for the purpose of maintenance and operation. Said city may also sell and deliver water, heat, power, light and other service of any such utility as it is now or may be hereafter authorized to do by the laws of the State.
“Sec. 28. The city shall have and it is hereby given the power and right to acquire, by purchase or condemnation, existing franchises, if any, and the property used in the operation of any and all companies or individuals now engaged in the street railway, tram railway, electric light, gas, heat, water, or power business in the city: Provided, that the proposition to acquire or to construct any public utility under section 27 of this, title and the proposition to acquire by purchase any existing franchise and property under this section, shall have first received the affirmative vote of not less than three-fifths of the qualified electors of said city voting thereon at a regular or special municipal election, and upon such propositions women taxpayers having the qualifications of male electors shall be entitled to vote: Provided further, that in any such referendum the approximate purchase price or cost of construction, as the case may be, shall be a part of the question submitted to the people, and that the city shall not pay or agree to pay therefor more than ten per cent, in excess of such approximate purchase price or cost of construction, as the case may be: Provided further, that the city shall in no case purchase or pay any consideration for any franchise or privilege hereafter granted, renewed, or extended, except as herein otherwise provided: Provided further, that the qualified electors of the city may initiate the proposition or ordinance to acquire, construct or operate any such public utility and have the same submitted to the vote of the qualified electors for their approval or disapproval in the same manner as provided in this charter for the initiation and approval of ordinances.”

It is the further claim of the plaintiff that there was here an attempt by the defendant to utterly disregard not only the Constitution, statutes and city charter, but also the vote of the electors against buying the Hydraulic Company in April, 1916; and that the clause inserted in the new charter in section 28, to wit: “and the property used in the.operation of any and all companies or individuals now engaged in the street railway, tram railway, electric light, gas, heat, water, or power business in the city,” had special reference to the Hydraulic Company, which was the only individual property so employed in the city.

The claim of the defendant seems to be that the city was authorized in the year 1872 to establish a system of waterworks for the purpose of supplying the city with necessary water for municipal, fire and domestic purposes; that this authority was acted on, the system established, and from time to time extended so that at the present time the city has a pumping station with a capacity of some 35 million gallons per day, and a filtration plant with a capacity of from 24 to 30 million gallons per day, and approximately 180 miles of pipe; that prior to the transaction in question, the city took over certain of the hydraulic mains so that they could supply the customers with water; that the successors of the Hydraulic Company at this time had some 14 to 17y% miles of mains, and a pumping capacity of about one million gallons daily. It had mains in various city streets where the city had no mains, and in other, and particularly the downtown paved streets, and some 450 customers where its pipes parallel those of the city; and it had also various other mains of more adequate size than the city mains, and paralleling them. It is further claimed that the money paid the successors to the Hydraulic Company was from the waterworks extension fund, in which fund at the time there was a balance of $33,805.04, raised from sale of bonds, which bonds are paid through revenue derived from the sale of the water.

It is especially urged by counsel for defendant that the act repealing the charter of the Hydraulic Company authorized* and in fact directed, the city to take over the property of the company, and to make payment therefor. We do not deem it necessary to decide this question, nor the question whether the contract with the township was a valid one and properly filed. If in the settlement of this claim the city attempted to acquire or purchase a public utility within the meaning of the charter language, then the terms of the charter must be complied with. In our opinion the action of the city commission was an attempt to acquire a public utility — a privately owned public utility. We think that the term “public utility” means every corporation, company, individual, association of persons, their trustees, lessees, or receivers, that may own, control, or manage, except for private use, any equipment, plant or generating machinery in the operation of a public business or utility. Utility means the state or quality of being useful. Was this plant one useful to the public? If so, it was a public utility. We think it was such. \

Nor is it necessary for the disposition of the case, to hold that the transaction of the city commission in its attempt to get possession of the Hydraulic Company property and plant, by the settlement of the claim against the city, was a mere subterfuge or camouflage transaction. A careful reading of the proceedings which we have set out above, satisfies us that the real transaction was the attempted purchase of this plant without submitting the matter to the vote of the electors, and was void. The guarantee of Mr. Gray and the promise to pay back the entire sum paid is very significant. At best this alleged settlement was tentative and conditional on the result of a subsequent act or event, and so was not conclusive. 12 Corpus Juris, p. 341.

It is next urged by defendant that the transaction here involved was not the acquiring of a utility within either the spirit or letter of the Constitution, home rule, or charter. In this we do not agree with counsel. It is urged that the transaction had was an extension to, and not the acquiring of, a utility. Upon this subject we have read with great care the authorities cited by counsel. They embrace the following cases: City of Indianapolis v. Trust Co., 75 C. C. A. 442, 144 Fed. 640; Village of Champlain v. McCrea, 165 N. Y. 264 (59 N. E. 83); Stroud v. Water Co., 56 N. J. Law, 422 (28 Atl. 578); Connor v. City of Marshfield, 128 Wis. 280 (107 N. W. 639); Shorts v. City of Seattle, 95 Wash. 531 (164 Pac. 239); Shryock v. City of Zanesville, 92 Ohio St. 375 (110 N. E. 937); State, ex rel. Crow, v. City of St. Louis, 169 Mo. 31 (68 S. W. 900); also many of our own decisions.

The length of this opinion will not permit us to analyze these cases here. We invite an examination of them. In our opinion not one of them justifies the claim made that they are controlling here. Not one of them treats the question we are here considering. If, in the extension of the city’s water plant, it becomes necessary to purchase or acquire a public utility, in our opinion the matter must be submitted to the electors of the city. The Constitution requires it, and its language should receive a strict, but reasonable, construction. The unequivocal language of section 28 of title 8 of the charter does not permit the construction claimed for it by defendant’s counsel. It is a familiar maxim that, “That which is expressed makes that which is implied to cease.”

Neither do we agree with the proposition that the plaintiff, as a taxpayer in the city, has no standing in a court of equity, under the facts here disclosed. Under the repealing statute, which defendant insists is in force, the claim against the city was to be paid as other claims are paid. We are of the opinion that a taxpayer has an interest in the several funds of the city, and in their integrity. We think the proposition urged too narrow a one to require discussion. The learned circuit judge dismissed the bill of complaint. His reason, briefly. stated, was as follows:

“I am convinced the city commission had authority to settle the claim of the Hydraulic Company for the amount specified; that the transaction was in good faith; and that in connection with such settlement it had a lawful right to take a deed to the Hydraulic Company’s property as shown.”

Plaintiff has appealed. For the reasons already stated, we are unable to agree with this conclusion of the circuit judge.

The decree below will be reversed, and a descree will be entered here for the plaintiff in accordance with the prayer of his bill of complaint, with the costs of both courts.

Bird, C. J., and Sharpe, Moore, Steere. Brooke, Fellows, and Kuhn, JJ., concurred.


text:
    FLINTOFF v. MUSKEGON TRACTION & LIGHTING CO.
    1. Death — Death Act — Infants — Contributory Negligence of Parents.
    In an action by a parent, as administrator, brought under the “death act,” the contributory negligence of the parents would operate to defeat the action, based upon ordinary negligence.
    2. Street Railways — Death — Infants — Contributory Negligence.
    A bright, intelligent boy, of the age of 7 years and 5 months, who slid down a steep hill onto a street car track, knowing that cars were running thereon at frequent intervals, riding feet foremost and lying upon his stomach upon a sled, who was run over by a car and instantly killed, held, guilty of contributory negligence, as a matter of law.
    3. Same — Test.
    Age is not the true test as to whether a child is guilty of contributory negligence; it is the intelligence, and not the age, that must control.

    4. Evidence — Original Record Controlling.
    Where plaintiff offered in evidence the original record of a resolution of the common council, he could not later contradict it by offering a corrected published copy, since the original record must control.
    5. Appeal and Error — Harmless Error.
    Where deceased was guilty of contributory negligence, which would bar recovery unless defendant was guilty of gross negligence, the trial court was not in error in excluding evidence of ordinary negligence.
    6. Street Railways — Gross Negligence — Evidence — Question for Jury.
    Where the evidence as to the manner in which the injury occurred was in conflict, the trial court very properly submitted the questions of gross negligence, and of discovered negligence to the jury.
    Error to Muskegon; Sullivan (James E.), J.
    Submitted October 17, 1919.
    (Docket No. 71.)
    Decided December 23, 1919.
    Case by George A. Flintoff, administrator of the estate of George N. Flintoff, deceased, against the Muskegon Traction & Lighting Company for the alleged negligent killing of plaintiff’s decedent. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Alex. Sutherland, for appellant.

      Charles B. Cross and Wallace Foote, for appellee.

      Authorities passing upon the question of age at which doctrine of contributory negligence may be applied to child, are collated in a note in L. R. A. 1917F, at page 42.

   Stone, J.

This action was brought under the “death act,” so-called, to recover damages from the defendant for causing the instant death of George N. Flintoff, the son of the plaintiff, a boy 7 years and 5 months old, at about noon on December 31, 1916, at the city of Muskegon. The first count of the declaration alleged the negligence of the defendant to consist of failure to ring a bell or sound a gong, to warn, when approaching the plaintiff’s decedent where he was on the track; that defendant was guilty of gross negli-. gence in not stopping the car to avoid the accident; and that defendant was negligent because it did not equip its car with proper fenders. The second count charged defendant with negligence in not complying with an ordinance of the city of Muskegon requiring it to equip its double-truck cars with air brakes and fenders. The plea was the general issue.

The place where the accident occurred was at the intersection of Cherry street with Wilcox street, upon the latter of which was defendant’s track, and the car was going from Muskegon lake to Lake Michigan park. The streets cross each other at right'angles. The deceased was coasting, or sliding down the hill on Cherry street at the intersection aforesaid. The hill was steep and somewhat obscured from the view of the motorman by two houses located near the intersection, on the side where the hill was located. The Flintoff family home was located on Wilcox street about one block away from the scene of the accident. There was a curve in defendant’s track as it came onto Wilcox street going towards the park, about 150 feet, or half a block, from the place of the accident at said intersection.

There was some conflict in the evidence as to just how the accident occurred. On the part of the plaintiff the evidence tended to show that the deceased had been given a hand sled by his parents, as a Christmas present, the week before; that for some time previous to December 31 a number of children in the vicinity, including the deceased, had been accustomed to sliding down this hill; that on this occasion the deceased was lying on his stomach on his sled with his feet at the front of the sled, and in this condition he slid down the hill and onto the track of the defendant in Wilcox street, and was run over and instantly killed by the approaching car. The evidence was undisputed that the children knew that cars were running on Wilcox street. The plaintiff’s principal witness, as to the accident, testified as follows: “We boys knew that the car was running there that day.” The father of deceased, and plaintiff here, testified that he knew the boys were using their sleds on the street.

“Q. Had you known of his sliding down this particular hill?
“A. No, sir, he was forbid to slide on the hills,”— not stating who had forbidden him.

The mother of deceased testified that she instructed him that he should not slide on Pigeon hill — claimed by the plaintiff to be the hill in question; and she further testified that she had watched him as carefully as she could, but she knew that he was with his sled, out on the street; that he had been allowed to go with his sled on the street at other times, but that she did not know anything about children sliding down this hill.

The motorman of the defendant in charge of the car, which was a double-truck car, was the only adult witness to the accident. He testified that after 11 o’clock a. m. at that time of the year cars went to Lake Michigan park every 15 minutes; that he had run this car for three months before the accident, passing this place about once every hour. He testified that he had not seen children there before; that he did not know that children were using that hill for the purpose of sliding on it, and that his attention had never been called to it by any person; that this car was due at Lake Michigan park at 12 o’clock, and that the accident happened at 11:47 o’clock a. m., and that the car was on time when it reached Wilcox street. He testified as to the curve on the street car track just as you enter Wilcox street; that as he came around this curve he was running from 7 to 10 miles an hour, with no power on while going around the curve. As the car straightened up on Wilcox street he gradually applied the current, and at the time of the accident the car was running about 10 miles an hour. He testified that he did not see the child until it was about 8 feet from the car, and that it came darting down the hill and ran right under the front step of his car. He testified the first he saw, “some of the children hollered, and I seen the little fellow coming down the hill, he was coming rapidly, and as he was coming he went right under the front step of my car.” He testified that, instantly, when he saw the child, he reversed the power, and the reason why he operated in that way was because he could stop the car quicker by reversing the power, and that he applied the reverse just as quickly as he saw the child; that he could, and did, stop the car within 20 feet. The manner in which the accident occurred is given by the witness in great detail.

In the cross-examination of the motorman the following question was asked:

“Mr. Waltz, if your car had a fender on, something like that, do you think the boy would have gone under the car?”

This question was objected to and the objection sustained by the trial court.

Upon the trial of the case the plaintiff sought to show by the records a resolution of the council of the city of Muskegon requiring the defendant to place air brakes and fenders on all its double-truck cars within 60 days after the service of the notice. The resolution, as recorded in the journal of the council proceedings, provided that the city recorder be instructed to place air brakes and fenders on all of its cars. Objection was made to the record of the resolution, for the reason that it was meaningless and imposed .no duty upon the defendant. The court excluded the record of the resolution for that reason. Plaintiff’s counsel then sought to introduce in evidence a copy of the published resolution, which stated the duty of the defendant to place air brakes and fenders on its double-truck cars. The court refused to receive in evidence this copy of the resolution for the reason that the original resolution, as it appeared in the record, was a meaningless thing, and, having been introduced by the plaintiff, he could not contradict it by the published copy of the resolution. The manner in which this difference occurred appeared in the testimony of the city recorder, in which he said:

“I corrected the one sent to the printer and told the stenographer to correct the other, and she evidently forgot it.”

The court held that the record itself must govern, and that the plaintiff himself having discredited the original resolution, the copy should not be received in evidence.

The trial court, at the close of the evidence, held that the parents of the deceased were guilty of contributory negligence in permitting the deceased to go upon the streets with his sled in the company of other children; and that, therefore, there could be no recovery on the ground of ordinary negligence of the defendant; but it was ruled that the case should be submitted to the jury upon the claim made by the plaintiff, that the defendant’s motorman was guilty of gross negligence. The case was so submitted under a lengthy charge, which fully stated the rule as to gross negligence, and as to discovered negligence. The court added the request of plaintiff’s counsel, based upon Fike v. Railroad Co., 174 Mich. 167, as follows, at the close of the charge:

“ Tf you find that the motorman could have seen the boy on the track by the exercise of ordinary care, for a time long enough to have stopped the car and avoided the accident, and that he did not do so, that would be gross negligence and the defendant would be liable.’ I thought I told you that. I tried to tell it to you before, but I give it to you that way. That is the law, gentlemen.”

The jury found in favor of the defendant of no cause of action, and the judgment was entered accordingly.

The plaintiff has brought the case here upon writ of error, and in his brief counsel for plaintiff discusses the questions raised by the assignments of error as follows:

(1) Were the parents guilty of contributory negligence?

(2) Was the defendant guilty of negligence in not equipping its cars with' fenders?

(3) Did the court err in refusing to receive the testimony offered by the plaintiff in relation to the resolution of the council of the city of Muskegon, ordering defendant to equip its cars with fenders and its double-truck cars with air brakes?

1. As has been noted, this action was brought under the “death act,” as distinguished from the “survival act.” Under the authority of Feldman v. Railway, 162 Mich. 486, which was an action by a parent, as administrator, brought under the death act, the contributory negligence of the parents would operate to defeat the action, based upon ordinary negligence. In Love v. Railroad Co., 170 Mich. 1, the distinction is pointed out between actions under the death act and those brought under the survival act. Without deciding whether the court erred in holding that the parents, as matter of law, were guilty of contributory negligence, we are satisfied that it should be held, under our authorities, that the deceased was, himself, guilty of contributory negligence. Here was a bright, intelligent boy, as testified to by his parents, of the age of 7 years and 5 months, who slid down this steep hill onto this car track, riding feet foremost and lying upon his stomach upon the sled, knowing that the cars were running upon that track at frequent intervals. If this did not constitute, under our authorities, contributory negligence it would be difficult to state a case involving that doctrine. The authorities upon this subject are thoroughly discussed in Mollica v. Railroad Co., 170 Mich. 96. In that case, at page 101, Justice Steere, speaking for this court, said:

“Where the plaintiff is an infant of such tender years as to be without discretion, contributory negligence cannot be imputed to him; and such is the general presumption where the child is under the age of 7 years. It is also held by some authorities that such presumption obtains, prima facie, until the age of 14 years is reached; but, where capacity is shown, the general rule of contributory negligence will' apply. While in the case of a child between the ages of 7 and 14 years the allegation of age might raise some presumption which tends to remove the imputation of neglect, it is mainly a matter of pleading; and the fact, when proven on the trial, does not establish that freedom from negligence essential to recovery.”

Attention is called to the numerous Michigan cases there discussed, including the case of Trudell v. Railway Co., 126 Mich. 73 (53 L. R. A. 271). There it was held that a child 7 years and 4 months old was guilty of contributory negligence. In the course of an unanimous opinion in that case, Justice Long used the following language:

“Age is not the true test in such cases. It is the intelligence of the boy, not his age, that must control.” Citing cases.

Attention is also called to the recent case of White v. Cowing, 205 Mich. 318, where some of our cases are cited. Had the trial court found, as we do, that the deceased himself was guilty of contributory negligence, the result would have been the same, to wit: that there could be no recovery unless the defendant was found guilty of gross negligence.

2. The second and third grounds may be discussed together. We do not think the court erred in excluding the record of the resolution of the common council and the purported printed copy thereof. Had the plaintiff rested content with the introduction of the published copy of the resolution, and had he not first discredited that, by the introduction of the original record, another question would be presented. We think the conclusion reached by the court upon this branch of the case was the proper one — that the original record, when offered by the plaintiff, must control. That record stood in its original form at the time it was offered in evidence.

Neither do we think the court erred in its ruling as to the question asked of the motorman upon the subject of fenders. If we are correct in holding, as we do, that this child was guilty of contributory negligence that would bar a recovery, except upon the theory that defendant was guilty of gross negligence, then the two subjects of the resolution and of the fenders was unimportant because they have to do with the question of ordinary negligence.

It is also urged by counsel for the appellee that the conduct of the defendant was not the proximate cause of the injury, but that the proximate cause was the darting down upon this track by the deceased, riding feet foremost upon his uncontrolled sled; and the following cases are cited upon that subject: Lambeck v. Railroad Co., 106 Mich. 512; Murphy v. Railway Co., 107 Mich. 627; Cavanaugh v. Railway Co., 175 Mich. 161.

In the case last cited plaintiff was injured because his horse stopped on the track and refused to proceed, and it was held that the act of the horse caused the injury; and it is urged in the present case that the deceased was in a place of danger because he was unable to stop his sled in the manner in which he was riding, and in darting in front of the car.- To the above cases may be added the cases of Stoll v. Laubengayer, 174 Mich. 701, and Illinois Cent. R. Co. v. Dupree, 34 L. R. A. (N. S.) 645 (138 Ky. 459, 128 S. W. 334). It is not necessary for us to pass upon this question, as the case is disposed of on other grounds.

Owing to the conflict in the evidence as to the manner in which the injury occurred, we think the trial court very properly submitted the questions of gross negligence, and of discovered negligence, to the jury. As we have shown, plaintiff presented a request upon that subject, and he went before the jury upon that question. The jury found a verdict upon the merits of that question in favor of the defendant. We have examined the charge with great care, and if it is to be criticized at all it is because of its great length and the numerous reiterations of the correct rule. There can be no question as; to the law of the case as presented by the trial court.

We find no reversible error in the record, and the judgment below is affirmed.

Bird, C. J., and Sharpe, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.