author: Hooker, J.

text:
    DELBUSSO v. AMERICAN CEMENT PLASTER CO.
    1. Master and Servant — Elevators—Gates—Mining — Guarding Dangerous Openings.
    Act No. 113, Pub. Acts 1901, requiring manufacturing corporations to provide automatic gates for elevators, does not apply to an elevator in the mine of a corporation, organized under the laws of Kansas, and engaged in both mining and manufacturing in this State.
    2. Same — System oe Operating Elevator — Negligence.
    Whether it was negligence to install an elevator, -the signal for which was operated by ringing, from the different points at which it would stop, a bell located in the engine room, thereby notifying the engineer to start it, although he could not tell that it was then safe to do so, presented a question of fact for the jury, in an action brought to recover for the death of an employ6 who was caught by the starting »of the elevator while he was alighting.
    3. Same — Assumption oe Risk — Questions oe Law and Fact— Directing Verdict — Contributory Negligence.
    And it was a question of fact whether or not plaintiff's intestate was so familiar with the facts and so capable of appreciating the danger, that he assumed the risk, or was guilty of contributory negligence.

      4. Same.
    It is not enough that a servant knows the fact of certain dangers, to charge him with the assumption of risk; he must know and understand the danger, or the danger must be so obvious that his appreciation of it is a necessary inference.
    5. Same — Implied Contract — Presumption.
    An employé may expressly agree to assume the risk of his employer’s neglect, where it is permissible, or a contract to assume such risk may be inferred from the circumstances, but there is no presumption that he assumed the risk by his contract of hiring.

    6. Same.
    And while he is bound to-take notice of apparent conditions, he is not necessarily bound to know that they are dangerous.

      Error to Kent; Perkins, J.
    Submitted February 23, 1911.
    (Docket No. 48.)
    Decided March 31, 1911.
    Case by Eliza Delbusso, administratrix of the estate of Anthony Delbusso, deceased, for the negligent killing of plaintiff’s intestate. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Dunham & Phelps and Lombard & Hext, for appellant.

      Keena, Lightner & Oxtoby and Charles E. Ward, for appellee.

       On the question: May servant assume the risk of dangers created by the master’s negligence, see note in 28 L. R. A. (N. S.) 1215.

   Hooker, J.

The defendant is a Kansas corporation engaged in this State in the business of manufacturing cement and other products from gypsum, which it mines through a shaft about 75 feet deep. The gypsum was raised from the mine on an elevator, being in carts or barrows, which were rolled from the elevator in the shaft-house, and thence through a covered way to a building, about 20 feet distant, where it was transformed into cement and other products. The elevators were platforms, one being attached to each end of a wire cable which passed over and around a drum, operated by an engine situate on the second floor of the shafthoúse in ;charge of an engineer. When one elevator was at the second floor of the elevator building, the other was at the bottom of the shaft. It was usual for the men to be taken down into and brought from the mine on these elevators, from and to the first floor of the building. When one elevator was at the first floor, the other was some 20 feet above the bottom of the shaft. The engineer was signaled by a bell, a wire extending to the bottom of the shaft, and accessible from the elevator at the first floor, being used for ringing the bell by pulling the wire. The control of the bell from the bottom of the shaft was confided to a man employed for the purpose, with instructions to permit no other man to touch it. The elevators had gates at the shafthouse which closed by gravity, and were raised and held up by the men while they passed under them. Plaintiff’s husband, the intestate, was an Italian, and with others came up on the skip to the first floor, and, after many had passed under the gate, took hold of it and attempted to go off from the elevator, when the bell rang the signal for the elevator to go up to the second floor. It was immediately started, the gate fell upon the man, and after the elevator passed him he fell to the bottom of the shaft, and was killed. Two men remained on the elevator.

Negligence is charged against defendant:

First. For failing to comply with the statute by providing automatic gates.

Second. For failing to furnish a safe elevator by providing a proper device for signaling the operator.

That the signal was given is not disputed, but the men on the elevator and those at the bottom of the shaft who were waiting for an elevator to take them up all denied that the bell was rung from their respective points. A verdict was directed for the defendant; the learned circuit judge being of the opinion that the statute did not apply to this elevator; that the elevator and bell were all in good order; and that the defendant was not negligent in placing the engineer where he could not see the elevator when it was at the second floor; but that in any event the deceased was familiar with the appliance and assumed the risk.

Two errors are assigned, viz.: Firsts in holding that defendant was not negligent; second, in holding that deceased assumed the risk.

Defendant’s Negligence.

(a) The Statute. There is no question that the defendant was engaged in the business of a manufacturer. It is also plain that it was engaged in mining. It appears to be conceded that, if this were a mining corporation engaged wholly in mining, the statute would have no application ; if a manufacturing corporation engaged in manufacturing only, the statute would apply.

The plaintiff insists that, inasmuch as the defendant manufactured the product which it mined, it should be held that the manufacturers’ law should apply to the whole plant. We do not see why it would not be as reasonable to say that, inasmuch as it carried on the business of mining, the statute regulating mines should apply to the entire plant. It is contended that it should depend upon the law under which it was incorporated, or the purposes stated in its articles. It is also suggested that the secretary of State in filing articles must determine and certify which law is applicable, but in this case the; defendant was not organized under any Michigan law, nor has it filed its articles in Michigan.

There would be a manifest impropriety in applying one or the other of these laws to a particular corporation, if the effect were to be to relieve it from providing the safeguards required by the character of the business in which it should engage as protection against the dangers which the legislation was intended to prevent. To so hold, or to say that the opinion, or official act of the secretary of State, or its own choice of laws under which it organized, must control, would put a premium upon selecting an inappropriate act under which to organize for the sake of immunity from the requirements of the act appropriate to the business actually intended. If we could properly legislate on this question, we might think the provisions of the manufacturers’ act as to elevators a proper one to be applied to mine elevators; but we have no such authority, and the legislature has apparently taken a different view. We must either say that the mining part of this business is governed by the manufacturers’ act, to the exclusion of all of the mining law, or the converse. This corporation is engaged in mining and also in manufacturing. The plants are separate and distinct though closely adjacent and connected. The workmen are entitled to protection against the particular dangers of the business in which they are respectively engaged, manufacturers under the manufacturers’laws, and miners under the law pertaining to mines, made and provided in accordance with the judgment of the legislators. We should be careful in applying the proper rule, lest in an effort to mitigate the hardship of one case we make a precedent which will result in injustice in others. We are of the opinion, therefore, that the safer rule for all cases is that the manufacturers’ statute does not apply to a mine elevator, and therefore defendant was not negligent in omitting to comply with that statute.

(&) Safe Machinery. No complaint is made of this elevator plant, except in regard to the protection against inopportune signals, either by some other method of signaling, or by so locating the engineer that he could at all times see whether there was danger at the lower floor before obeying the signal. We are not concerned with either proposed remedy, but only with the question of reasonable safety of the course adopted. The light afforded by this accident makes plain a danger attendant upon attempting to operate an elevator which may be set in motion at will by different persons from different places. Whether this bell was rung by some one at the bottom of the shaft, impatiently waiting its ascent, so that the other might come down, or by one of the two remaining on the elevator, animated by a desire to go to the second floor as men sometimes did, cannot be told. It may have been the latter; the signal having been given prematurely in the expectation that deceased would be off before it started. Again, there is the improbable possibility that it was done maliciously. That the signal to go up was given, admits of no doubt, and apparently it is certain that it was the act of one of deceased’s fellow-servants at one of these two points. We must conclude, therefore, that, to hold defendant liable for this injury, it must be found to have been its duty to arrange for the operation of this elevator in some way that would protect passengers from the danger of its being started from different points, when the person causing it to start had no means of knowing whether it would be attended with danger. It is always easy to see how danger could have been avoided after an accident has happened, and equally easy to conclude that a failure to anticipate and provide against the danger was negligence, and doubtless many reasonably safe machines and methods have been held unsafe where they ought not to have been, under the law. On the other hand, it does not follow that particular dangers should not be anticipated. A rule of reasonable provision for safety is required, and in this case we think it was for the jury to say, in the light of the evidence, whether it was ordinary prudence to provide a signal which might be operated as suggested above. We are of the opinion that this ground for plaintiff’s action is sufficiently set up in the declaration. The question is, Was this a reasonably safe provision for the operation of that elevator, under all the circumstances and the general custom of operating such elevators ¥

Assumption of Risk.

It is a well-settled rule, and nowhere better settled than in Michigan, that an employé assumes the ordinary dangers of his employment and the risks of defective machinery and methods known to him, or so obvious that he should have known them. It is not, however, the law that the employé must make a minute investigation of machines and methods to ascertain, though he does owe caution and care in these respects.

In this case it may now seem that every one should have foreseen this danger if he knew that the signal could be given from both points, and that neither the man who should give it nor the engineer had any means of knowing whether it would be safe to start the elevator. If decedent was familiar with all the facts and was capable of understanding and appreciating the danger, it may be that it should be said that he assumed the risk, or was equally negligent with the master.

Assuming (for the argument only) that the defendant should be held negligent in not providing the elevator with a reasonably safe appliance and method of signaling the engineer, thereby subjecting his employés to extraordinary dangers, there is no presumption that the employés assumed the risk by the contract of hiring. It may be expressly so agreed, where such a contract is permissible, and it may be inferred from circumstances.

It is said in 1 Labatt on Master and Servant, § 271:

“An extraordinary risk, it is said, is not assumed unless it is, or ought to be, known to and comprehended by the servant; or — as the same conception may also be expressed in logically equivalent terms — where the servant is chargeable neither with an actual nor a constructive knowledge and comprehension of the risk.”

In 1 Labatt on Master and Servant, note to section 271, it was said:

“The general rule that a workman assumes the risks incident to his employment when he enters upon it, is well settled, but its application is subject to certain qualifications. He certainly has the right to expect his employer to provide machinery, tools, and appliances that are reasonably safe for his use, and he assumes no risks growing out of their defective character, unless he has been fully advised that they are defective and dangerous. He has the right to suppose that his employer has provided such guards and means of protection from injury, in the use of the machinery, tools, and appliances as are usual and reasonably necessary for his safety; and he cannot be held to assume the risks attendant on their absence, unless such absence is apparent, or his attention has been called to it. Rummel v. Dilworth, Porter & Co., 131 Pa. St. 509 (19 Atl. 345, 17 Am. St. Rep. 827 ). * * * If the plaintiff did not appreciate the danger of the work he was doing, arising from the defective appliances, and if the defendants were not justified in supposing he understood it, it can not be held that, in the contractual relation of master and servant, he assumed the risk which resulted in his injury. Demars v. Manufacturing Co. (1892), 67 N. H. 404 (40 Atl. 902). A servant does not assume the unusual and extraordinary risk of which the master knows or which he should know or foresee, unless such risks are obvious, or the servant has actual, or presumptive knowledge of the danger. Reed v. Stockmeyer (1896), 20 C. C. A. 381, 74 Fed. 186, 34 U. S. App. 727. A servant does not assume the danger from the failure of the master to exercise reasonable care to provide safe machinery and appliances, or a safe place in which to do his work, unless the danger is obvious, or he can acquire knowledge thereof in the exercise of ordinary care. Comben v. Stone Co. (1896), 59 N. J. Law, 226 (36 Atl. 473).”

This involves the capacity and understanding of the servant, the nature of the defect, the obviousness of the same, and consequent danger.

The author hereinbefore quoted sums up the rule in section 274:

“ The doctrine that a servant who has no knowledge, actual or constructive, of an extraordinary risk, is not chargeable with its assumption (see section 271, supra) is applied in every jurisdiction in which the principles of the common law are recognized. The logical converse of this doctrine, viz., that a servant is to be regarded as having assumed any extraordinary risk of which he had or ought to have obtained, knowledge, before his injury was received, was also applied universally until comparatively recent times (see section 280, infra) and is still the prevailing rule of law in the United States.
“ The effect of the operation of this doctrine with reference to a servant’s inability to maintain an action may be formally stated thus: A servant who, either before or after he commences the performance of the contract of employment, has ascertained, or ought, in the exercise of proper care, to have ascertained, that the ordinary hazards of his environment have been augmented by abnormal conditions produced by the negligence of his master or of his master’s representative, and has accepted or continued in the employment without making any objection and without receiving any promise that the abnormal conditions will be remedied, is deemed, as a matter of law, to have assumed the risk thus superadded,^ and to have waived any right which he might otherwise have had to claim an indemnity for injuries resulting from the existence of that risk.”

See, also, Id. § 274a.

It is not enough that a servant know the fact of certain conditions. He must know and understand the danger, or the danger must be so obvious that his appreciation of it is a necessary inference. See 1 Labatt on Master and Servant, § 279a, and notes.

“ To bring a case within the scope of the doctrine now under discussion, it must be shown that the servant possessed a sufficiently exact appreciation of the nature and extent of the danger in question to enable him to estimate the possibilities of his environment in so far as they affected his bodily safety. The absence of that appreciation is logically incompatible with the hypothesis that, in undertaking or continuing in the employment, he exercised that intelligent and deliberate consent which is one of the essential elements involved in the conception of an assumption of a risk.

“ ‘ When we say that a man appreciates a danger, we mean that he forms a judgment as to the future, and that his judgment is right. McKee v. Tourtellotte (1896), 167 Mass. 69 (44 N. E. 1071, 48 L. R. A. 543).’

“ ‘ One does not voluntarily assume a risk, within the meaning of the rule that debars a recovery, when he merely knows there is some danger, without appreciating the danger. Nor does he, on the other hand, necessarily fail to appreciate the danger because he hopes, and even expects, to encounter it without injury. If he comprehends the nature and the degree of the danger, and voluntarily takes his chance, he must abide the consequences, whether he is fortunate or unfortunate in the result of his venture. Mundle v. Manufacturing Co. (1894), 86 Me. 405 (30 Atl. 16).’

“ The second step in the demonstrative process is to establish the servant’s appreciation of the danger produced by the abnormal conditions in question. That this is the alternative and crucial element upon which the defense depends is sufficiently apparent from the terminology by which it is described.

“ ‘ A servant knowing the facts may be utterly ignorant of the risks. Byles, J., in Clarke v. Holmes (1862), 7 Hurlst. & N. 937, 31 L. J. Exch. N. S. 356, 8 Jur. N. S. 993, 10 Week. Rep. 405.’

“ ‘ A servant is chargeable with notice of what is apparent, but not necessarily that the apparent is dangerous. Pennsylvania Coal Co. v. Kelly (1894), 54 Ill. App. 626.’

“ ‘The difference is between going into the service or continuing in it, “knowing that the instrumentalities employed are unsafe and dangerous,” and knowing that defects exist, but. not that they necessarily render the employment of a perilous character. Galveston, etc., R. Co. v. Lempe (1883), 59 Tex. 19.'

“ ‘ It does not necessarily follow that knowledge that a master is not discharging his duty in making safe the place where he requires his employés to. work will defeat a recovery by an employé injured by the master’s neglect of duty; to produce this result it must be also inferable that the breach of duty augmented the dangers of the service. An employé may know that the employer is not performing his duty, and yet not know that the perils of his service are augmented. It is not, it is true, necessary that the fact that the perils of the service were increased should be established by direct evidence; it is sufficient if there be evidence from which that fact can be reasonably inferred. Rogers v. Leyden (1890), 127 Ind. 50 (26 N. E. 210).’

“ ‘The general rule, undoubtedly, is that a person cannot be said to take a risk, unless he knows, not only the condition of things, but also that danger exists in such conditions. Anderson v. Clark (1892), 155 Mass. 368 (29 N. E. 589).’”

See, also, note 5, p. 666, 1 Labatt on Master and Servant, for numerous cases.

This doctrine seems to comport with the rule in Swoboda v. Ward, 40 Mich. 423, where this court said:

“A party entering upon a particular employment assumes the risks and perils usual thereto. . Where the machinery used is not defective, either in its construction or from want of proper repair, and where the usual and customary means are adopted to guard against accidents, if wanting in either respect, there is an increased risk, and if the servant is injured in consequence thereof, the master must be held responsible therefor.
“If, however, the servant, with full knowledge of the facts, and understanding the increased risk occasioned thereby, in the absence of any promise by the master to remedy the same, consents to and remains in the master’s employ, then he voluntarily incurs such increased risk, and if he suffers damages in consequence of an injury received thereby, he will be without remedy. The fact that he remains in the master’s employ under such circumstances and with such knowledge is what constitutes, contributory negligence on his part.
, “ The master, in permitting his machinery to be thus more than ordinarily dangerous, is guilty of negligence; the servant, with full knowledge thereof, by remaining, contributes thereto. Cooley on Torts (1st Ed.), pp. 551, 553, and cases cited.”

See 2 Cooley on Torts (3d Ed.), p. 1043 et seq., for a discussion of these questions, and especially page 1048, where the distinguished author says:

“ It is essential to the assumption of risk, not only that the servant should know the defect out of which the danger arises, but that he should appreciate the danger, or that the danger should be manifest to a man of ordinary intelligence and experience in the line of work in which the servant is engaged. A servant cannot be heard to say that he did not appreciate a danger which was manifest to an ordinarily prudent person of his intelligence and experience. An adult servant is presumed to possess ordinary intelligence and capacity, and is held in law to know and comprehend the dangers which are open and obvious to a person of ordinary understanding and experience, and he cannot show a want of such capacity without also showing that the master had notice of the fact.”

There are cases where dangers, as well as defects, are so plainly obvious that courts may instruct juries that risks are assumed; when they are not so, the question is for the jury. In this case we are of the opinion that both questions were for the jury.

The judgment is reversed, and a new trial ordered.

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


source: Caselaw Access Project

author: Ostrander, C. J.

license: Public Domain

text:
    PANELA v. CASTILE MINING CO.
    1. Master and Servant — Pleading—Mines and Mining — Declaration.
    On demurrer to plaintiff’s declaration for negligent injuries, the pleading was sufficient where it alleged that while in defendant’s employ as a miner, he was injured by an explosion, that the defendant employed three shifts of men, and it was necessary that each shift he warned of dangerous conditions created by previous shifts, and that if an explosion was about to ocour it was necessary to furnish a means of esoape by promptly hoisting the miners out of the shaft, with the appliance used for that purpose, that defendant failed to maintain its hoisting machinery in fit condition for such purpose, and omitted to use sufficient diligence in responding to plaintiff’s signals to hoist the crew to a place of safety, and failed to warn them of an explosion laid by a preceding crew of miners.

    3. Same — Sufficiency of System — Demurrer.
    But if plaintiff claimed that the system installed in the mine to raise and lower the employés was unsuitable to the requirements of the business, the pleading should so aver, and should specifically point out its defects.
    Certiorari to Gogebic; Cooper, J.
    Submitted February 28, 1911.
    (Docket No. 142.)
    Decided March 31, 1911.
    Case by Jacob Panela against the Castile Mining Company for personal injuries. A judgment overruling a demurrer to a part of plaintiff’s declaration, is reviewed by defendant on writ of certiorari.
    Affirmed.

      Belmont Waples (William F. Shea, of counsel), for appellant.

      O’Brien & Le Gendre and George O. Driscoll, for appellee.

      As to master’s duty to warn servant, see note in 44 L. R. A. 33.

   Ostrander, C. J.

The plaintiff declared against the defendant in an action on the case, the declaration containing two counts. To the second count the defendant pleaded the general issue. To the first count it demurred and assigned as grounds of demurrer:

“ (1) That said declaration does not state wherein and what part or parts of the hoisting machinery, apparatus, appliances, contrivances, or devices of said defendant, by means of which the plaintiff was to be promptly, expeditiously, and safely hoisted and conveyed through defendant’s shaft or to a place or places of safety, were not reasonably safe, proper, or reliable for that purpose, as stated upon page 5 of said declaration.
“(2) That said declaration does not state wherein and what part or parts of said hoisting machinery, apparatus, appliances, contrivances, or devices were not reasonably safe, suitable, sufficient, adequate, or reliable by reason of being old, weak, worn, broken, and of insufficient strength and power to enable plaintiff to be promptly hoisted and conveyed through said shaft to a place or places of safety, as stated upon page 5 of said declaration.
(3) That said declaration does not state wherein and what part or parts of the signaling machinery, apparatus, appliances, contrivances, or devices were not reasonably suitable, reliable, sufficient, adequate, or proper with which to signal for the plaintiff to be so hoisted, as stated upon page 5 of said declaration.
“ (4) That said declaration does not state wherein and what parts of said signaling machinery, etc., had become unreasonably old, weak, broken, of insufficient strength and power to enable plaintiff or the other employés of said defendant to signal properly for prompt hoisting through said shaft, as stated upon pages 5 and 6 of said declaration.
“ (5) That said declaration does not state wherein and in what particulars said defendant negligently, carelessly, and recklessly conducted itself in and about the care, management, and control of said hoisting and signaling machinery, apparatus, and devices so as to cause plaintiff’s injury, and wherein said defendant did not use or exercise any reasonable care, skill, or diligence for the safety or protection of said plaintiff and other employés, and wherein it unnecessarily exposed them to the perils, dangers, and hazard of being killed or injured in consequence of the explosion of highly dangerous and explosive substances in said shaft, and wherein it failed to use and exercise ordinary care for his and their safety and protection from such perils, hazards, and dangers, as stated upon page 6 of said declaration.
“(6) That said declaration does not state wherein and in what manner the defendant was negligent in allowing, permitting, suffering, and causing said explosives to be left hidden, concealed, and obscured in said shaft by a member of one of the crews other than the crew in which plaintiff was working, in said shaft, as stated upon page 6 of said declaration. ”

The demurrer was overruled, whereupon the defendant sued out a writ of certiorari to review the order and determination of the trial court. The averments in the first count in the declaration are, in substance, that defendant was engaged in mining ore in a mine which, at the time in question here, had various levels, so called, below the surface of the earth about 100 feet distant from each other, and a shaft, called No. 3 shaft, which was a compartment incline shaft 9 by 20 feet in two dimensions, and 1,200 feet long from its top or collar to the bottom or other end, having no ladder way or ladders. The manner or means of conveying men and material to the seventh level of the mine and of carrying ore, etc., from this level to the surface was by a hoisting apparatus, constructed on the surface and in the shaft. Defendant employed and worked at this level in the mine three shifts of men, to one of which shifts plaintiff, a miner, with little experience in mining belonged. These shifts succeeded each other at work, each taking up the work at the point to which the last shift had carried it. Neither shift nor crew of men—

“ Could see or know what had been done in said shaft by any of such other crews unless they were specially notified and warned thereof by some person or persons other than their respective members.”

Defendant furnished and required the use of powerful explosives—

"And it was necessary for the safety and protection of said crews * * * that they and each of them should be specially warned and informed of any dangerous or perilous substances or conditions left or existing in said shaft * * * at the time such respective crews * * * began each shift therein, and especially of any explosives which were left in or about said shaft at the end of any shift by members then leaving work therein.”

It was also necessary—

“ That reasonably sound, safe, reliable, and trustworthy hoisting apparatus, devices, machinery, and appliances, and signaling apparatus and appliances, should be furnished, provided, kept, and maintained by defendant to enable them to promptly and safely withdraw themselves from said shaft in case of danger to them arising therein from any cause, and that defendant should use and exercise reasonable care, skill, diligence, and promptness in and about the hoisting them out of said shaft, and especially to promptly hoist them, and each of them, out of said shaft in case their lives or limbs were in danger by explosion in or about said shaft.”

Various duties of defendant, the nature of which have been indicated, are alleged, and breaches are assigned as follows:

“That the defendant did not perform its said duties, or any of them, and did not use and exercise reasonable care or diligence to furnish, supply, provide, or maintain for the use of said plaintiff and said other members of said crews reasonably safe, suitable, reliable, sufficient, or adequate hoisting or signaling machinery, apparatus, appliances, contrivances, or devices with, in, and by means of which to signal and be promptly, expeditiously and safely hoisted and conveyed through said shaft, or to a place or places of safety, in case of danger therein, or otherwise, and furnished, supplied, maintained, provided, and used for the purpose of conveying plaintiff and said other members of said crews through said shaft, and for the purpose of signaling to be so hoisted, hoisting and signaling machinery, apparatus, appliances, contrivances, and devices which were not reasonably safe, fit, proper, or reliable for that purpose, and which the defendant had allowed, permitted, and caused to become and be old, weak, worn, broken, and of insufficient strength and power to enable him or them, in ease of danger in said shaft, to signal and be promptly hoisted and conveyed through said shaft to a place or places of safety, and did not use or exercise reasonable care, skill, diligence, or alacrity in responding to divers signals to hoist him and them through said shaft given by plaintiff and said crew of which he was a member, for the purpose of being hoisted from said shaft to a place or places of safety, when he and they were in imminent peril and danger of being killed and injured by an explosion therein, on the day and year hereinafter mentioned ; and so negligently, carelessly, and recklessly conducted itself in and about the care, management, and control of said hoisting and signaling machinery, apparatus, appliances, contrivances, and devices, on and before said last-mentioned day, as to cause and occasion the injury of the plaintiff as hereinafter alleged and set forth, and did not and would not on said last-mentioned day use or exercise any reasonable care, skill, or diligence for the safety or protection of the plaintiff and said other members of his said crew; and on said last-mentioned day unnecessarily exposed plaintiff and said other members of said last-mentioned crew to the perils, danger and hazard of being killed and injured by reason and in consequence of the explosion of highly dangerous and explosive substances, to wit, powder and dynamite, in said shaft, when by the use and exercise of ordinary care for his and their safety and protection it could have protected him and them from such peril, hazard, and danger, and avoided his and their injury from said explosives, and on and previous to said last-mentioned day defendant allowed, permitted, suffered, and caused certain highly dangerous and powerful explosives, to wit, powder and dynamite, to be left hidden, concealed, and obscured in said shaft by one of said crews, or some member or members thereof, who were working in said shaft as aforesaid, other than the crew in which plaintiff was then and there working as aforesaid, and failed and omitted to notify, warn, or inform the plaintiff thereof, and allowed, permitted, and caused the plaintiff to be kept in ignorance thereof, and to be subjected and exposed to the danger of being killed, maimed, and injured in consequence of an explosion of such powder and dynamite, and the plaintiff alleges that each and all of the acts and omissions of defendant in this paragraph mentioned, alleged, and set forth were done, performed, and took place and occurred under such circumstances as to render each and all of them wrongful, careless, negligent, and reckless, on the part of the defendant, and the plaintiff relies upon each and all of them as grounds of recovery herein.”

The manner in which plaintiff was injured is described in the following language:

“On August 17, 1909, while the plaintiff was engaged in the performance of his duties, under his said employment, and was in or about said shaft at or near the bottom thereof, and was excusably ignorant and unaware of each and all of the wrongful, careless, negligent, and reckless acts and omissions of the defendant, and while plaintiff was in the exercise of all due care and caution for his own safety, and without any fault or negligence on the part of the plaintiff, and as a proximate consequence and result of each and all of the said wrongful, careless, negligent, and reckless acts and omissions of the defendant, before plaintiff could escape from the place last aforesaid a great explosion of, to wit, powder and dynamite, took place in said shaft, and caused a great and violent concussion therein and hurled and threw therein great quantities of rock, earth, and other matter and violently blasted and struck the plaintiff and knocked him with great force and violence to the ground.”

It will be noticed that the breaches of duty assigned are in no manner aided by allegations of plaintiff’s conduct upon the particular occasion beyond this: That it is alleged that defendant.did not respond promptly to divers signals given by plaintiff and said crew, indicating that they wished to leave the level and be hoisted through the shaft. The allegations of duty and of breaches of duty are most of them very general, so much so that a purpose to avoid specification is indicated. With regard to the hoisting apparatus, the declaration appears upon’ analysis to be sufficient to warrant the introduction of testimony and to support a recovery in accordance with the following construction which we place upon the language employed. The defendant had furnished a single method of conveying men to and from the seventh level of the mine. A part of the apparatus and machinery was the one for signaling, by the use of which men in the mine might convey to others on the surface -notice of a desire to be taken from the mine or from the particular level. It was the duty of defendant to maintain all of this apparatus and machinery in a condition suitable to prompt action and service, and a duty to promptly, respond to signals indicating that the men on the seventh level desired to leave that level. Proper signals were given, or were attempted to be given, by means of the apparatus provided, upon the occasion in question, by plaintiff or by some of the men with whom he was employed. They were not responded to. The failure to respond contributed to plaintiff’s injury, because he was thereby prevented from avoiding or escaping the results of an explosion. The failure to respond was due to some fault, defect in, or some failure of the machinery and apparatus described. We think plaintiff is not required to point out the particular fault, defect, or cause of failure. He could not be reasonably expected to know whether the signals were received at the surface — whether the apparatus for signaling failed, or whether an employe disregarded them if received, or whether in attempting to send the cage, or car, for the men, in answer to the signals, some part of the other machinery or apparatus was found to be defective or otherwise at fault. But this construction is the one to which plaintiff should be limited in the introduction of testimony, and indicates the issue presented by the pleading to which plaintiff is restricted. If he claims that the system installed at the mine to raise and lower the men is an unsuitable one, he should so aver and point out the fault. Under this declaration, a jury cannot be permitted to. find generally that some other arrangement is or would have been better than the one in use at the particular time, if that in use was in a reasonably proper condition to do what it was expected and required to do when such signals were given, or when the apparatus was used for signaling. With the construction we place upon it, the declaration is within the reasoning and the rule of Cristan elli v. Saginaw Mining Co., 154 Mich. 423 (117 N. W. 910). The first five grounds of demurrer are not well assigned.

It is averred, in substance, that each shift used explosives and that it was necessary to the safety of the men to warn (notify) them if the men of any other shift left fuse and explosives in the place where work was to be carried on. The duty of defendant to so notify or warn the men is averred. The alleged breach of this duty is hereinbefore set out. It will be observed that in the clause in which breaches of duty are assigned is the further statement that—

“ On and previous to said last-mentioned day defendant allowed, permitted, suffered, and caused certain highly dangerous and powerful explosives * * * to be left hidden, concealed, and obscured in said shaft by one of said crews, or some member or members thereof, * * * other than the crew in which plaintiff was then and there working as aforesaid, and failed and omitted to notify, warn, or inform the plaintiff thereof, and allowed, permitted and caused the plaintiff to be kept in ignorance thereof, and to be subjected and exposed to the danger of being killed * * * in consequence of an explosion of such powder and dynamite. * * * ”

These various statements and allegations do not enlarge the meaning which we have given to all of the allegations taken together. All crews used explosives. It was the duty of defendant to notify plaintiff if the members of another crew left explosives in the shaft, because, if such notification was not given, there would exist an unknown, and perhaps undiscoverable, hazard to which plaintiff should not be exposed. This is the reasonable meaning.

As we construe the language of the declaration, it is certain to a common intent. It is not so certain with any other construction. We affirm the judgment of the court below.

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


author: Bird, J.

text:
    BOWEN v. QUIGLEY.
    1. Fraudulent Conveyances — Bulk Sales Act — Words and Phrases — Merchandise.
    The bulk sales law (Act No. 223, Pub. Acts 1905) does not apply to a transfer of horses, wagons, harnesses, coal bags, and other implements used in the coal business, where no coal or other merchandise or fixtures were included in the conveyance.

    2. Same — -Statutes—Words and Phrases — Trade Fixtures.
    The word fixtures as used in the statute must be construed to apply to such chattels as merchants usually possess and annex to the premises occupied by them to enable them the better to store, handle, and display their goods and wares — sometimes called trade fixtures.
    Error to Wayne; Rohnert, J.
    Submitted February 21, 1911.
    (Docket No. 24.)
    Decided March 31, 1911.
    . . Garnishment proceedings by William F. Bowen against Robert M. Quigley in justice’s court. Defendant appealed to the circuit court, from a judgment against him. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Harry L. Schellenberg, for appellant.

      George F. & Peter J. Monaghan, for appellee.

      As to what kind or classes of property are within the operation of-bulk sales statutes, see note in 25 L. R. A. (N. S.) 758.

   Bird, J.

The plaintiff sued George Glazier in justice’s court, and garnished the defendant, Quigley. A judgment for $390.11 damages and $2 costs passed against Glazier. Later a judgment for a like amount was rendered against the defendant. The defendant appealed to the circuit court, where the judgment resulted in his favor. The plaintiff brings the case to this court for review.

The basis of the garnishee suit was the purchase by defendant of certain personal property from the principal defendant, Glazier. Glazier had been a retail coal dealer, and had become indebted to plaintiff for coal. While so indebted, he sold his coal business and certain personal property to the defendant for $450. The personal property was conveyed by bill of sale, and consisted of the following articles:

“1 reach lumber wagon; harness complete; 2 horse covers; 2 city boxes; 1 mud box; about 30 coal bags, more or less; 2 forks; 2 shovels; single reach wagon; 2 coal screens; 3 metal baskets; horse covers; 1 team, of bay horses; 1 dump wagon; 1 circle coal wagon; 1 desk; 1 safe; baskets; chairs; stove; sleigh runners; extra horse collars and harnesses; chutes; all books pertaining to business.”

In making the sale it is claimed by plaintiff that the bulk sales law (Act No. 223, Pub. Acts 1905) was transgressed, in that the statutory notice to creditors was not given. When the case was heard in circuit court, it was conceded that the notice to creditors was not given. The defendant insists that no notice to creditors was necessary, for the reason that the sale did not come within the statute, first, because no merchandise was sold, and, second, because the personal property conveyed by the bill of sale does not constitute “fixtures.” The trial court took defendant’s view of the case and directed a verdict in his behalf. The plaintiff now insists that the trial court was in error upon both of those propositions.

Did the defendant purchase any merchandise ? There was considerable testimony directed to the question as to whether there was any coal on hand at the time the purchase was made. It appears that there was some, but that Glazier reserved it and afterwards sold it out before the defendant commenced business. It is not very important, as the defendant testifies that he purchased nothing except what was mentioned -in the bill of sale, and this does not seem to be denied-. The court was not in erroin holding, under the testimony, that there was no sale of merchandise.

Were the articles conveyed by the bill of sale "fixtures ” within the meaning of the bulk sales law ? The language of the act provides in part that:

" The sale, transfer, or assignment, in bulk, of any part or the whole of a stock of merchandise, or merchandise and fixtures pertaining to the conducting of said business, otherwise than in ordinary course of trade, and in the regular and usual prosecution of the business of the seller, transferor or assignor shall be void,” etc.

Inasmuch as this law is aimed at the business of merchants, we think the word " fixtures,” as used in the statute, must have reference to such chattels as merchants usually possess and annex to the premises occupied by them, to enable them the better to store, handle, and display their goods and wares. Such chattels when annexed to the premises become fixtures. They are generally removed without material injury to the premises at or before the end of the tenancy. They are sometimes called trade fixtures. 13 Am. & Eng. Enc. Law (2d Ed.), p. 648; Bartlett v. Haviland, 92 Mich. 552 (52 N. W. 1008).

It is suggested that by reason of the words "pertaining to the conducting of said business” the statute should be given a broader meaning than it .otherwise would be given, and be made to include the furniture, tools, vehicles, and appliances which were used in and about the conducting of the coal business. We are not persuaded that the legislature has indicated by the language made use of that it intended the word "fixtures ” should have any other or different meaning than is usually given to it in the relation of landlord and tenant. It is probably true that the act could be made more effective if we were to give the word "fixtures” the enlarged meaning claimed for it, but we do not feel that the language of the statute will justify us in so doing. If the legislature has stopped short of making it an effective act, it is not the business of this court to finish the legislation by construction.

Applying the rule which we have indicated must be the test in such cases, we are of the opinion that none of the articles mentioned in the bill of sale comes within that term. There is nothing about them that would suggest that they are capable of being annexed in any way to the premises. We think the court was right in holding that they were not fixtures within the meaning of the bulk sales law.

The judgment of the trial court is affirmed.

Hooker, Brooke, and Stone, JJ., concurred with Bird, J.

Moore, J. As a stock of merchandise was not sold, the statute does not apply, and for that reason I concur in the result.


author: Moore, J.

text:
    YOUNG v. BLANCHARD.
    1. Process — Waiver by Appearance —Petition—Jurisdiction oe Parties — Judgment—Taxation.
    On petition to set aside a writ of assistance issued to the grantee of a tax purchaser, the court of equity has jurisdiction of the parties, without the issuance of process in original proceedings, since by this petition for the writ of assistance such grantee made himself a party to the tax proceedings.
    3. Taxation — Decree—Competency—Vacating Proceedings.
    Under the power given to the court by 1 Comp. Laws, § 3893, to cancel any sale of lands of incompetent persons and others, if necessary to protect them, such cancellation may be decreed after a deed of the tax lands has been made by the State to the purchaser and after a conveyance by him to another.

      3. Same — Setting Aside Decree — Limitations.
    Said statute is not affected by the following section, 1 Comp. Laws, § 3893, limiting the time to move to set aside a tax . sale to one year in certain cases and providing that in others no sale should be set aside after confirmation.
    4. Same — Incompetency as a Personal Defense.
    After the death of an incompetent, the proceeding commenced in her behalf to vacate such tax sale and deeds may be continued by her heirs, the defense of incompetency not being personal to the deceased.
    5. Same — Refunding Purchase Price — Equity.
    But the owner will be compelled to do equity by refunding to the tax purchaser, who did not know of the owner’s incompetency, the purchase price and payments made by the former to the State with interest, less the net revenue, if any, that he may have received from the property.
    Appeal from Ottawa; Padgham, J.
    Submitted February 21, 1911.
    (Docket No. 151.)
    Decided March 31, 1911.
    Petition by Catherine H. Young, by next friend, against Lewis H. Blanchard to vacate a tax sale, and writ of restitution. From a decree for petitioner defendant appeals.
    Modified and affirmed..

      Charles E. Soule, for appellant.

      Lillie & Osterhous, for appellee.
   Moore, J.

Some phases of this litigation were before this court in the case of Blanchard v. Young, 152 Mich. 619 (116 N. W. 189). A reading of the opinion in that case will be helpful in understanding the questions involved in this proceeding. After the opinion was handed down in that case, the court below proceeded to hear the petition referred to in the opinion, praying relief because Mrs. Young was a mentally incompetent person. After a full hearing the court decided Mrs. Young was mentally incompetent when the lands were sold, and ever since that time.

The defenses interposed in the court below and the disposition thereof are so well stated in the written findings of the court that we quote them here:

“ Counsel for Mr. Blanchard has made many claims in defense to the petition filed on behalf of Mrs. Young, or in objection to it, chief among which are the following:
“ (1) That Mr. Blanchard is a third party to the proceedings, and the rights of a third party cannot be tried and determined upon petition; the court having no jurisdiction to proceed, except upon some original proceeding bringing such third party into the case. ‘
“ (2) That the nature of the proceedings violates Mr. Blanchard’s rights, and gave him no fair and full hearing.
“ (3) That the writ of assistance decree was in full force when pleaded in bar of this petition and still so remains, and was and is res adjudicata of the matters between the parties herein.
“ (4) That it does not appear from the proofs that Mrs. Young was or is a mentally incompetent person within the meaning of the tax law.
“ (5) That Mrs. Young was notified by letter of the sale of her lands nearly two years before the proceeding was commenced, and she is therefore precluded by section 70 (1 Comp. Laws, § 3893) of the tax law from having the sale set aside for any reason.
“(6) That Mrs. Young is now deceased; the remedy provided by section 69 of the tax law is personal to the minor or incompetent landowner; and therefore no relief can now be granted by the court.
I have carefully considered all these questions. * * * I will pass upon them briefly in the order above:
“ (1) It may be true that the court would be without jurisdiction to try and determine the rights of a third party to a tax proceeding upon petition in the original matter. But this lack of jurisdiction relates only to the person, and not to the subject-matter. The court has jurisdiction of the subject-matter here, and, if originally without jurisdiction to bring Mr. Blanchard in, this question could be waived. * * * Mr. Blanchard would be a third party if he had not moved in the matter himself, but it seems to me that when he appeared (in the original case) by his petition for writ of assistance he became one of the parties to that case as much as was the auditor general and Mrs. Young; he took the place of Mr. Craw, submitted himself to the jurisdiction of the court, asked the court for relief, and in this proceeding, which is a branch of the original matter, he cannot be considered a third party or a stranger to the whole proceeding.
“(2) The statute (section 69 of the general tax law, 1 Comp. Laws, § 3892) prescribes no form of procedure. The statute provides:
'* ‘ In case of the sale of lands belonging to any infant, idiots, minor heirs, insane or incompetent persons, if it shall appear to any court that it is necessary, to protect the rights of such incompetent persons, to order any sale canceled or deferred, it may so order.’
“ There is but a single question of fact involved, namely, Was Mrs. Young incompetent, within the meaning of the statute, at the time her lands were sold ? Such proceedings were had, as above stated, that all parties were fully and fairly heard, and much testimony bearing upon this question was taken. Though the proceeding originally took a form which apparently cast the burden of proof upon Mr. Blanchard as a matter of fact, upon the hearing, petitioner’s counsel did not insist upon Mr. Blanchard showing that Mrs. Young was competent, but, on the contrary, offered much proof tending to show her incompetency, and he does not now claim, and never has claimed, that Mr. Blanchard has not proven Mrs. Young competent, and that therefore he is entitled to the order prayed for in the petition; but he asserts that he has shown, as he first claimed, that the landowner was incompetent, and that, because his proof does so show, he should have the order asked for. The burden of proof, in fact, if not in form, was upon the petitioner, and not upon Mr. Blanchard, throughout the entire proceeding. Any proceeding that gives all parties a suitable opportunity to be heard, in which their rights can be fully litigated and determined, would, I believe, be a proper proceeding, and all this has been done in this case.
(3) The question of res adjudicata has been effectually disposed of by the opinion and decree of the Supreme Court in the writ of assistance branch of the case. Counsel for Mr. Blanchard insists that the opinion and decree do not state that the ‘ decree appealed from stood without prejudice.* It does not say so in so many words, but the manifest intent of the court was to give its decree this effect; otherwise the provision in the decree relating to the mental incompetency proceeding would he wholly meaningless and valueless. Courts are not given to the saying of meaningless things. This clause in the decree, therefore, meant something, and meaning something it can be but one thing: That the decree appealed from stood without prejudice to the lower court’s determination of the question raised in this present branch of the case.
*' (4) I am fully satisfied that the proofs offered by and on behalf of Mrs. Young establish the fact that she was incompetent, within the meaning of the statute, at the time her land was sold and at the time the tax notices were served upon her; that she was not so competent as to enable her to transact her business properly and take care of her property; and that, within the meaning of the statute in question, to protect her interest, which she was incompetent herself to protect, the sale of her lands should be set aside.
“ (5) There is no limitation, as I read the law, upon the remedy sought by the petition in this matter. The limitation of one year prescribed in section 70 of the tax law does not affect or apply to the remedy provided for by section 69.
“ (6) Mrs. Young is deceased, but I do not believe the law is intended to take away her rights now that she is no longer here to enjoy them. The petition was filed, the proofs were taken, the case was submitted in her lifetime. Decision has been delayed through no fault of hers, or her heirs, and I am of the opinion that the court can as well grant the relief prayed now as in the lifetime of the petitioner.
“ It is therefore ordered and decreed, that the said sale of lots * * * to Edward L. Craw, for the taxes of 1901, and the conveyance made by the auditor general May 16, 1905, * * * be and the same is hereby set aside and canceled and held for naught. No costs are allowed either party to this proceeding, nor shall it be necessary for the said Catherine H. Young, or her administratrix, to refund or repay to the State, or to any other person, the amount of taxes paid by Mr. Craw.”

Section 69 was before this court in Foegan v. Carpenter, 117 Mich. 89 (75 N. W. 290), where it was held that, even though an infant had a guardian, if it was necessary to protect the rights of the infant, the sale would be canceled. Counsel in their brief refer to that case as follows:

“ The sale before deed may be canceled in a proper case, but after redemption has passed, deed has issued, and especially when the rights of a third party have intervened, the court is powerless to apply this statute to such case. To make such application would be to write into this statute what the legislature did not put there, as, after the word ‘canceled,’ ‘may set aside the deed to the purchaser at the tax sale and all subsequent deeds in the title without limitation.’ It is insisted that this cannot be done, under the authorities above quoted. Had the legislature intended it, it would have been put into the statute. So far as I have found, section 69 of the tax law has been before this court in but a single case, Foegan v. Carpenter, 117 Mich. 89 (75 N. W. 290). The court in this case emphasize the point made above that proceedings under it can be had only before deed issues. I quote:
“ ‘Before the deed was issued, intervener applied to the auditor general for leave to redeem. ’
“ It may be claimed that power, to set aside the sale, and setting aside the sale, would necessarily cancel all subsequent titles, but it is idle to say, under the strict rules of the tax laws, the legislature would not have so stated if sueh was the intention. The courts cannot write the new matter into the statutes.”

Attention is then called to the case of Dumphey v. Hilton, 121 Mich. 317 (80 N. W. 1), and the argument is made as follows:

“ The court has jurisdiction to entertain proceedings for the relief of persons under disability only to stay and to cancel the sale, and is without jurisdiction to entertain such proceedings after the sale has eventuated into a deed, and especially after the rights of a subsequent purchaser have intervened. To hold otherwise would give the courts authority, if there shall be a hard case, to write into the law what the legislature has not put there, which cannot be done.”

A quotation is made from the opinion in Dumphey v. Hilton, supra, which seems to sustain the claim of counsel, but an examination of the opinion shows that the case was brought under the statute of 1889, which makes no exception in the case of those under disability, like minors and incompetents. The justice writing the opinion said:

“ The same strict rules apply to persons under disability as to others, unless the statutes otherwise provide. 25 Am. & Eng. Enc. Law (2d Ed.), p. 419. The law of 1893 does otherwise provide. Section 69, Act No. 206, Pub. Acts 1893. One feature of this section was construed by this court. Foegan v. Carpenter, 117 Mich. 89 (75 N. W. 290).”

We agree with the trial judge that the objections of appellant specifically referred to are not well taken.

We cannot agree with him, however, in allowing the petitioner to take the lands without reimbursing the appellant. The only reason for canceling the sale is the incompetency of Mrs. Young. Her land, like the land of a competent person, is subject to the payment of taxes. The appellant had no occasion to know when he bought the land that she was not competent. In Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich. 444 (74 N. W. 656), it was held that one who seeks relief from a void tax sale will be compelled to do equity. We think in this case petitioner should reimburse appellant for payments made by him or his grantor to the State, at the time the deed was made, and any taxes subsequently paid, with interest at the legal rate, less the net revenue, if any, the appellant may have received from the property. Unless the solicitors can agree upon these amounts, the case may be remanded to take proofs.

A decree may be entered in accordance with this opinion.

Bird, Hooker, McAlvay, and Stone, JJ., concurred.


author: Brooke, J.

text:
    NACHTEGALL v. REILLEY.
    1. Gabnisment — Joint Funds — Parties—Claimant op Debt Garnished.
    Under the provisions of a compromise agreement providing for the deposit of certain funds in the hands of the garnishee defendant in settlement of claims of the principal defendant and another against the payor, the funds to be paid over to the attorney of the principal defendant, who also acted as attorney for the other claimant, the question whether the principal defendant owned the fund in his own right or jointly with the claimant could not be determined on motion to dismiss proceedings citing in persons claiming interests in the money, pursuant to the provisions of 8 Comp. Laws, § 10627, and the claimant and the attorney of the parties were properly interpleaded to determine their respective interests.
    2. Same.
    Funds in which the principal defendant and another are jointly interested cannot be reached by garnishment.
    3. Principal and Agent — Right to Sue on Contract to Pay Money to Agent.
    The principals may sue on a contract to deposit funds in the hands of a third person payable on certain conditions to their agent and attorney.
    4. Garnishment — Nonresident Dependants — Process — Con- . struotive Service — Motion to Quash.
    Proceedings in garnishment are not subject to dismissal because service of process is made upon the principal defendant outside the State.
    Error to Kent; Perkins, J.
    Submitted February 27, 1911.
    (Docket No. 89.)
    Decided March 31, 1911.
    Garnishment by Alfred Nachtegall against James Reilley, principal defendant, and Gaius W. Perkins, garnishee defendant. An order dismissing the proceedings on motion of principal defendant to quash, is reviewed by plaintiff on writ of error.
    Reversed.

      Wilson, Wilson & Bice, for appellant.

      Garl E. Mapes, for appellees.
    Prior to August 37, 1909, differences had arisen between the Nachtegall Manufacturing Company and James E. Reilley and Eugene H. Reilley. These differences were adjusted by the execution of the following contract:
    “Agreement between the Nachtegall Manufacturing Company, of Grand Rapids, Michigan, J. E. Reilley and Eugene H. Reilley, of Charlotte, N. C., in settlement of pending suits and controversies.
    “ J. E. Reilley and E. H. Reilley agree to accept twenty-five hundred dollars ($3,500) in full settlement of their claims against the Nachtegall Manufacturing Company for salary, expenses, etc.
    “ J. E. Reilley and E. H. Reilley hereby confirm to the Nachtegall Manufacturing Company the assignment heretofore made of all claim for commissions due or owing from the American Seating Company to Reilley & Spitz, as set forth in the statements thereof made by the American Seating Company, dated August 34th, 1909, including any claim of E. H. Reilley to any of said commissions.
    “J. E. Reilley shall immediately cause to be discontinued, without costs to either party, suits brought by him against the Nachtegall Manufacturing Company, both in the superior court of Mecklenburg county, N. C., wherein the county of Madison is garnished and funds due from that county attached, and in Lee county, S. C., wherein the county of Lee is garnished and funds due from that county attached.
    “The Nachtegall Manufacturing Company shall forthwith transmit to the Commercial National Bank, of Charlotte, N. C., the sum of fifteen hundred dollars ($1,500) the same to be paid to E. R. Preston, attorney for J. E. Reilley and E. H. Reilley, upon his depositing with said bank certified copies of orders dismissing said suits, and shall forthwith deposit with Gaius W. Perkins, one thousand dollars ($1,000); said one thousand dollars to be paid to said E. R. Preston, attorney, for J. E. Reilley upon the Grand Rapids National Bank, assignee of the claims of the Nachtegall Manufacturing Company against Madison county, N. C., and Lee county, S. C., for the so-called Madison and Lee county court house contracts, receiving settlement for .said contracts.
    “ J. E. Reilley agrees to assist the Nachtegall Manufacturing Company in making settlement of said Marshall and Bishopville contracts and agrees that if they so request, he will go to either place to assist in such settlements, he to be reimbursed for traveling expenses, and paid five dollars ($5.00) per day for time, the same to be paid by Nachtegall Manufacturing Company upon demand. If, in the settlement of said Marshall or Bishopvill’e contracts, it is necessary to make any discount, said Perkins shall determine whether said discounts shall be borne by J. E. Reilley or the Nachtegall Manufacturing Company, and if he shall determine that the discount . shall be borne by J. E. Reilley, he shall deduct the amount thereof from said one thousand dollars and pay the same to the Nachtegall Manufacturing Company, it being understood, however, that said J. E. Reilley shall not be held liable for any discounts or deductions, unless said J. E. Reilley has been guilty of misrepresentations as to the quality of the goods to be furnished in said contracts.
    “The payment of said sum of twenty-five hundred dollars ($2,500) shall be in full settlement of all claims, demands of every sort and kind whatsoever, of said J. E. Reilley and E. H. Reilley against the Nachtegall Manufacturing Company, and it is further agreed that a signed statement from Gaius W. Perkins, acknowledging the deposit of one thousand dollars with him, shall be attached to the check for fifteen hundred dollars, to be transferred to the bank for E. R. Preston, attorney, as aforesaid.
    “ E. R. Preston agrees to forthwith send to the Nachtegall Manufacturing Company an assignment of the commissions due and owing from the American Seating Company, signed by E. H. Reilley.
    “ It is understood and agreed that the said Gaius W. Perkins shall have the right and it shall be his duty to pay over to said E. R. Preston, attorney, said sum of one thousand dollars, within five days after the Grand Rapids National Bank or other persons entitled thereto shall have received settlement for the said Lee county and Madison county contracts; the said Perkins shall be held wholly free and harmless from any responsibility for so doing, unless within five days the Nachtegall Manufacturing Company shall file with him objection in writing to said payment.
    “ Dated August 2?, 1909.

      “ Grand Rapids National Bank as assignee of said claims and party to said suits assents to this agreement.
    “Grand Rapids Nat’l Bank,
    “By Hugh E. Wilson, its Atty.
    “Nachtegall Meg. Co.,
    “ By Hugh E. Wilson, its Atty.
    “ J. E. Reilley,

      “ By E. R. Preston, his Atty.
    “E. H. Reilley,
    “By E. R. Preston, his Attorney in Fact.”
    Following the execution of the foregoing contract, the two sums of $1,500 and $1,000 were deposited in accordance with its terms. On December 9, 1909, plaintiff brought suit against James E. Reilley, and proceeded against Gaius W. Perkins as garnishee. Service of process on Reilley was made outside the State. Perkins, in his disclosure, sets out that he is still in possession of the $1,000, which was deposited with him under the contract, but says that E. R. Preston and Eugene H. Reilley have severally served a demand upon him for said sum, each claiming a right to the same. He claims no interest in the fund, and offers to pay it into court. On motion of plaintiff, an order was entered interpleading E. R. Preston and Eugene H. Reilley. The principal defendant thereupon appeared specially for the purpose of making a motion to quash the proceedings, on the ground that there was no personal service on the defendant within the jurisdiction, and that the court was without jurisdiction, inasmuch as the garnishee had no property in his hands belonging to the defendant. This motion was granted. Upon this action the plaintiff assigns error.
   Brooke, J.

(after stating the facts). The question to be determined seems to be whether or not the fund in the hands of the garnishee defendant (in which he claims no beneficial interest) is in fact the property of the principal defendant, and therefore lihble to garnishment. There is here no dispute between the plaintiff and the garnishee defendant; it is admitted that he holds the fund under the contract as stated in his disclosure.

It is claimed by the plaintiff that an examination of the contract will demonstrate that as to this $1,000 the principal defendant, James E. Reilley, is the sole owner thereof, and that upon the refusal of P.erkins to pay the same over to him he could maintain an action of debt or indebitatus assumpsit against Perkins for its recovery; while defendant claims that it is obvious that the fund belongs to James E. Reilley and E. H. Reilley jointly, and that E. R. Preston may also have an interest therein.

The contract first sets out that:

“ J. E. Reilley and E. H. Reilley agree to accept $2,500 in full settlement of their claims against the Naohtegall Manufacturing Company for salary, expenses, etc.”

It then, among other things, provides for the deposit of this amount in two sums in different depositories, but both payable, upon the happening of certain contingencies, to the same person, E. R. Preston.

The contract further provides that:

"The payment of said sum of $2,500 shall be in full settlement of all claims, demands of every sort and kind whatsoever, of said J. E. Reilley and E. H. Reilley against the Nachtegall Manufacturing Company.”

When the contract provides for the payment of the $1,500 to E. R. Preston, he is described as attorney for J. E. Reilley and E. H. Reilley. When it provides for the payment of the $1,000 to Preston, he is described as attorney for J. E. Reilley. The last clause of the contract, however, is, in part, as follows:

“ It is understood and agreed that the said Gaius W. Perkins shall have the right, and it shall be his duty to pay over to said E. R. Preston, attorney, said sum of $1,000.”

Here Preston is not described as attorney for the Reilleys, or for either of them.

We are unable to say from an examination of the contract that James E. Reilley is the sole owner of the $1,000, but it is equally plain that the contract does not show affirmatively that either E. H. Reilley or E. R. Preston own the fund. Both claim to own it, and they have been interpleaded in order that their rights to the fund, if they have any, may be determined.

3 Comp. Laws, § 10637, provides that:

“When the answer of the garnishee shall declare that any other person than the defendant claims the indebtedness. or property in his hands, or any part thereof, * * * the court may, on motion, order that such claimant be interpleaded as a defendant to the garnishee action, and * * * the court may order an issue to be formed, and may proceed to try the same or direct the trial thereof by a jury as in other cases, etc.”

In Muncey v. Sun Insurance Office, 109 Mich. 542 (67 N. W. 562), where this section was under consideration, it was said:

“Upon such disclosure the garnishee has no further interest in the proceedings, except to have the right as between such claimant and the principal defendant determined. And where the statement in the disclosure is accepted as true, except as such statement relates to the claim set up by said third party, there is no necessity or propriety in demanding as against the garnishee a trial of this question. The claimant must be brought in for that purpose.”

If, at the time of the service of the writ of garnishment upon Perkins, this fund was in fact the sole property of James E. Reilley, it was clearly subject to the process. If, upon the other hand, either E. H. Reilley or E. R. Preston was the owner thereof, or of a joint interest therein, at that time, the garnishment proceedings must fail. Markham v. Gehan, 42 Mich. 74 (3 N. W. 262); Kennedy v. McLellan, 76 Mich. 598 (43 N. W. 641); Stone v. Dowling, 119 Mich. 476 (78 N. W. 549); 20 Cyc. p. 1030; Rood on Garnishment, §§ 156-161.

The fact that Perkins was to pay the money to Preston as attorney, instead of to the Reilleys, presents no difficulty. The instrument plainly indicates that it was made between the Nachtegall Manufacturing Company upon one side, and the Reilleys upon the other, and that Preston was merely an agent appointed to receive the money.

The right of the principals to sue upon the contract is, we think, clear. Mechem on Agency, § 757, and cases there cited; Garton v. Union City Nat. Bank, 34 Mich. 279; Michigan State Bank v. Trowbridge, 92 Mich. 217 (52 N. W. 632); First Nat. Bank of Hancock v. Johnson, 133 Mich. 700 (95 N. W. 975, 103 Am. St. Rep. 468).

That service of process upon the principal defendant was made outside the State affords no ground for the quashing of the garnishment proceedings.

In Serviss v. Washtenaw Circuit Judge, 116 Mich. 101 (74 N. W. 310, 73 Am. St. Rep. 507), it is said:

The validity of this substituted form of service upon the principal defendant does not depend upon the disclosure of the garnishee defendant, or upon the denial of an indebtedness which he may make when interrogated thereon. No judgment could be had against the principal defendant, it is true, unless some credits were found in the hands of the garnishee; but whether such credits are in his hands is the subject of inquiry which may be had upon the statutory issue.”

We are of opinion that, upon the interpleading of the other claimants to the fund, the court should have ordered ail issue to be formed and proceeded to the trial thereof, as provided by 3 Comp. Laws, § 10637.

The judgment is reversed, and a new trial ordered.

Ostrander, C. J., andMcALVAY, Blair, and Stone, JJ., concurred.


text:
    NEIFERT v. METLER.
    1. Master and Servant — Personal Injuries — Assumption of Risk.
    The servant assumes the risk of the obvious dangers incident to his employment.
    2. Same — Contributory Negligence.
    It was contributory negligence for an employé in a saw mill, in putting a belt on a pulley, as he had previously done on several occasions, to allow his hand to be caught between the belt and pulley so as to draw him over the shaft, the danger being obvious and the employé of full [age, and not inexperienced about machinery.
    3. Same — Negligence—Duty to Warn.
    Nor was bis employer negligent for failing to warn him of the apparent danger.
    Error to Wayne; Mandell, J.
    Submitted March 1, 1911.
    (Docket No. 148.)
    Decided March 31, 1911.
    Case by Albert Neifert against Curtis L. Metier for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error
    Affirmed.

      Lehman, Riggs & Lehman, for appellant.

      Durbin Newton, for appellee.
    The plaintiff, a young man then 27 years of age, was seriously injured on May 22, 1903, while attempting to put a belt upon a revolving pulley in defendant’s sawmill. The mill, operated by water power, was a small one, requiring but three men to run it. These men were Clock, the foreman, one Kovalske, and the plaintiff. Plaintiff began working in the mill in October, 1902, about seven months before he was injured. His principal work was that of a tail sawyer; i. e., as the boards were sawn from the log, he would take one end, Kovalske the other end, and they together would place the board upon a car. When not engaged at this work or in cleaning up about the floor of the mill, he did such other work as Clock, the foreman, directed. During the threshing seasons of 1900 and 1901 plaintiff had accompanied a steam threshing outfit, and had assisted in its operation, and in the fall of 1901 had, with another, operated a corn shredder, also driven by steam. While engaged in running this latter machine, plaintiff'had been slightly injured by attempting to turn an oil cup, and take out a cornstalk, which had become lodged between the sprocket wheel and the chain. This earlier accident had happened while the machine was in motion. Plaintiff was familiar with, and had used, the ordinary farm machinery such as mowers and binders.
    The main shaft in defendant’s mill, which was set in motion through a beveled gear by the water wheel, was located upon the first floor. Upon it were several pulleys of different sizes carrying belts. Some of these belts ran up through the floor and furnished power to move the machinery located above. On the ground floor there was a sawdust carrier which was operated by power transmitted through a short belt which ran from a small pulley upon the main shaft to a larger one upon a countershaft, which connected with the carrier. This particular main shaft pulley was about six inches in diameter, with its outside edges raised somewhat like a spool. It was wide enough to carry a belt four or six inches wide. It was in the nature of a split pulley; the two halves being bolted together upon the shaft. These bolts went through the ends of the pulley, the raised edges of which were notched to accommodate the bolt heads. This method of construction left the flanges upon either end of the pulley uneven and somewhat serrated. The belt, when in position upon both pulleys, was loose, and would not operate the carrier until a tightener pulley was applied. On the day plaintiff was injured the sawdust carrier got out of order. Clock and plaintiff wont down to the ground floor to fix it. While this was being done, the belt which operated the carrier was hanging upon the wood pulley on tne main shaft, which was in motion, but was off the pulley on the countershaft, which operated the carrier. When the repairs to the carrier had been completed, Clock ordered plaintiff to put the belt on. This belt was about four feet long. Plaintiff put the belt on the pulley upon the countershaft, when it started to run off the wooden pulley on the main shaft, and plaintiff tried to push it on with his hand, which was drawn between the belt and the pulley, and his injury followed. He testified that he put the belt on in the same manner he had frequently seen Clock and others put it on, and that it did not look dangerous to him. He testified, further, that he had observed the pulley shortly after he started to work for defendant, and that both it and the belt were in the same condition during the whole period of his employment, and, further, that in obedience to the orders of Clock he had on “ several” or “a few” occasions previous to his injury put on this identical belt while the machinery was in motion. On cross-examination, plaintiff testified:
    “Q. You saw the big belt running on the separator and the engine all that summer ?

      “A. Yes, sir.

      “Q. You stood there looking at that many times ?

      “A. I have seen them run.

      “Q. Did it ever occur to you that if you got your hand in between the big belt and the pulley that was on the separator that you would be likely to be injured ?

      “A. I never thought of that at all.
    “Q. Now, to go back to the day that you were injured in this belt and pulley at the sawmill, you went back there to put the belt on. This pulley had the same notches in the flange where the bolts and nuts were that day, that it always had all the time you had been there ?

      “A. To my knowledge it had.

      “Q. You saw them at that time ?
    “A. Yes, sir; the time I was hurt.

      “Q. You said when you put your hand in there the belt was on that pulley, partly on and you put it on so as to guide the belt on; could you not see if you put your hand in between the belt and the pulley it was likely to be bound and pinched and drawn in ?

      “A. I never thought about that.
    “Q. Suppose you had thought and looked would not that have been apparent ?

      “A. I don’t think so.

      “Q. You have stated that neither Mr. Metier or Mr. Clock ever warned you of the danger of doing that or instructed you about putting that belt on. What danger was there in putting your hand down there and putting that belt on that they could have warned you about that you could not see by looking right at it ?

      “A. I don’t know I am sure.”
    The negligence relied upon by plaintiff was the use by defendant of an improper and unsafe appliance, and the failure of the defendant to warn plaintiff of the danger. Plaintiff appeals from a judgment against him upon a directed verdict.
   Brooke, J.

(after stating the facts). The employé assumes the risk of the obvious dangers incident to his employment. Richards v. Rough, 53 Mich. 212 (18 N. W. 785); Ragon v. Railway Co., 97 Mich. 265 (56 N. W. 612, 37 Am. St. Rep. 336); Ldmotte v. Boyce, 105 Mich. 545 (63 N. W. 517); Balhoff v. Railroad Co., 106 Mich. 606 (65 N. W. 592); Secord v. Railroad Co., 107 Mich. 540 (65 N. W. 550); Price v. Baking Co., 130 Mich. 500 (90 N. W. 286); Hathaway v. Milling Co., 139 Mich. 708 (103 N. W. 164); Walters v. Cement Co., 148 Mich. 315 (112 N. W. 113). In Lamotte v. Boyce, supra, Mr. Justice Hooker, speaking for the court, said:

“ There is no obligation upon the part of employers to make their premises and machinery perfectly safe, or to have the most approved appliances. The duty of the employer to provide reasonably safe machinery is qualified by his right to contract for the use of machinery which falls short of the best and most approved; and when the defect is obvious, and cannot escape ordinarily careful observation, which is always due from the employé, the risks attendant upon such use are assumed by the latter. In places like sawmills, appliances more or less crude may reasonably be expected, and those who use them are ordinarily as good judges of their safety as the master. If unsafe, and the employé still consents to use them, the risk is then his; and the master has the right to expect that he assumes it, where the nature of the appliance, and its dangers, are obvious ” — citing cases.

To meet the question of assumed risk, plaintiff was permitted at the trial to amend his declaration setting out the provisions of 2 Comp. Laws, § 5349, and averring a breach thereof by defendant. This amendment was allowed over the objection of defendant, and more than five years after the date of the injury to plaintiff. In our view of the case, it is unnecessary to determine whether the right to amend was properly granted. Nor is it necessary to determine whether the provisions of the statute apply to a situation such as is disclosed by. this record, where the belt, when in position upon both pulleys, is so loose that it does not move the machinery until the tightening pulley is applied. Our reason for arriving at the foregoing conclusions is that we are constrained to agree with the learned circuit judge in holding that plaintiff was guilty of contributory negligence as a matter of law. Here we have a man of mature years and extensive experience in the use of machinery, more or less dangerous, and seven months’ experience in defendant’s mill. He is, as is evidenced by his testimony, moreover, a man of rather unusual intelligence. He was entirely familiar with the device he was operating at the time of his injury. He had observed the peculiar and alleged dangerous character of the small pulley, and had himself on several occasions previously performed the same act which finally caused his injury. The device was one of extreme simplicity, and the danger of allowing his hand to be caught between the loose belt and the pulley, thus tightening the belt and causing it to draw him over the shaft, was, we think, so obvious that it cannot be said that defendant was negligent in not warning one of his age and experience. Upon this point the following cases may be examined: Sakol v. Rickel, 113 Mich. 476 (71 N. W. 833); Soderstrom v. Lumber Co., 114 Mich. 83 (72 N. W. 13); Perlick v. Wooden-Ware Co., 119 Mich. 331 (78 N. W. 127); Juchatz v. Alkali Co., 120 Mich. 654 (79 N. W. 907); Cantwell v. John Brennan & Co., 125 Mich. 349 (84 N. W. 299); Schulte v. Pfaudler Co., 150 Mich. 427 (113 N. W. 1120); Wight v. Railroad Co., 161 Mich. 216 (126 N. W. 414).

The judgment is affirmed.

'Ostrander, C. J., and McAlvay, Blair, and Stone, JJ., concurred.


author: McAlvay, J.

text:
      W. A. STURGEON & CO. v. VAN STUDDIFORD.
    Contracts — Sales—Book Accounts — Implied Assumpsit.
    Evidence tending to show that defendant, a married woman, selected goods from defendant’s stock, which were charged to her, that she made certain admissions and had made payments on account, although defendant showed that she supposed the purchase was charged to her husband, and although a former officer of the plaintiff corporation testified that he extended credit to the husband, presented a question for the jury as to defendant’s liability.
    Error to Wayne; Mandell, J.
    Submitted March 2, 1911.
    (Docket No. 129.)
    Decided March 31, 1911.
    Assumpsit by W. A. Sturgeon & Co. against Grace Van Studdiford for goods sold and delivered. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Lucking, Emmons & Self man, for .appellant.

      James McNamara, for appellee.
   McAlvay, J.

Suit in this case was brought by plaintiff, a Michigan corporation, engaged in the retail jewelry business in Detroit, for a balance of $428.50 and interest claimed to be due it on an account for jewlery and a chest of silver purchased from it by defendant in the year 1904, amounting to the sum of $1,098.50, upon which payments had been made by her to reduce the account to the balance above stated. Evidence was offered and received in the case tending to show that the jewelry and silver were selected by defendant, and were sold, delivered, and charged to her, and that the balance claimed was unpaid. Defendant was sworn as a witness by plaintiff, and from her testimony it appears that she selected and received these goods, and made certain payments on account, and thought the account was paid, and there are in her testimony statements tending to show that she purchased them. When examined by her attorney, she made statements which are in some respects contradictory to her direct testimony, and that she never knew the goods were not charged to her husband.

William Sturgeon, at the time these goods were sold, was interested in the plaintiff corporation. Later disagreements and litigation still pending arose, and his connection was severed. He was called by defendant. He testified that he had full authority to withhold or extend credit to customers; that Mr. Van Studdiford selected the chest of silver, and brought his wife (the defendant) the next day to see it, at which time they decided to, and did, buy it for $900; that credit for this purchase was extended by him, and it was charged to defendant; that the custom of that business was for the salesman who sold the goods to make a charge ticket, and for these particular goods he made the sale and the charge ticket; that from sales tickets an account would be opened against the purchaser in the ledger. He also testified that he made the sale to the defendant of a necklace (which she testified was of the value of $2,500 to $3,000 and was afterwards returned), and charged it to her, and so intended, although Mr. Yan Studdiford at the time had an account in the store; that it was not charged to the husband, because the wife bought it on her own account, and he opened an account with her. It is admitted that this witness is very friendly with defendant, who during the trial was a guest at his house. The record shows that Mr. Yan Studdiford is a bankrupt, and the defendant is divorced from him. There is testimony in the case of other witnesses relative to the correctness of this account as kept in the books; also on the part of defendant tending to show that some of the items were gentlemen’s jewelry purchased by the husband.

At the close of the case the court granted a motion of defendant to direct a verdict for defendant. Plaintiff moved for a new trial, for the reason, among others, that the court erred in holding that there was no evidence tending to show that defendant had purchased of plaintiff certain goods for the payment of which she was liable, and to entitle plaintiff to have the case submitted to the jury. This motion was denied. Plaintiff, upon a review of this case in this court, claims that the court erred in directing a verdict for defendant, in refusing to grant a new trial, and also in refusing to admit certain evidence.

The important question in dispute upon the trial before the circuit court was whether defendant or her husband purchased the goods from plaintiff. The plaintiff in this case is entitled to have its case made on the trial taken as true; the verdict having been instructed against it. Considered in the light of this rule, there certainly was evidence in the case tending to support its claim, and sufficient to entitle it to have the case submitted to the jury. To quote from this record, or to cite authorities to sustain this conclusion, is not necessary. The court was in error in directing a verdict for defendant.

As a new trial must be bad, it is proper to pass upon an error assigned relative to tbe exclusion of testimony which was offered tending to impeach the testimony of Mr. Sturgeon, whose testimony it was claimed tended to show that the credit was extended to defendant’s husband. This testimony was admissible for this purpose, and vitally important as bearing upon the only question in dispute.

Other errors assigned need not be discussed. The questions involved are not likely to arise upon a new trial.

The judgment is reversed, and a new trial is ordered.

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