author: Ostrander, J.

text:
    GARTH LUMBER & SHINGLE CO. v. JOHNSON.
    1. Constitutional Law — Vested Rights — Logging Rights — Navigable Streams — Rights of Riparian Proprietors.
    Act No. 189, Pub. Acts 1905, which attempts to confer upon persons engaged in running and booming logs in the streams of the Upper Peninsula the right to enter upon the lands of riparian proprietors without any provision for compensation, is unconstitutional.
    2. Injunction — Trespass—Propriety.
    Though an injunction to restrain a threatened trespass is sometimes refused where the remedy at law is adequate and the damage likely to arise from the trespass trivial as compared with the interests to be affected by the injunction, the writ will.not issue to protect a confessed trespasser in his occupancy of his neighbor’s premises upon the ground that his interests are large and his neighbor’s small.
    Appeal from Delta; Stone, J.
    Submitted November 15, 1907.
    (Docket No. 184.)
    Decided February 15, 1908.
    Bill by tbe Gartb Lumber & Sbingle Company and others to restrain Ole Johnson and others from interfering with complainants’ sorting logs and other forest products in a navigable stream. From an order granting a temporary injunction, defendants appeal.
    Reversed, and bill dismissed without prejudice.

      F. D. Mead, for complainants.

      A. H. Myall, for defendants.
   Ostrander, J.

Defendants appealed from an order granting an injunction. 150 Mich. 73. They were restrained—

“From in any manner interfering with or preventing the booming, sorting and removal of the logs, ties, poles, posts and other forest products belonging to the said complainants, now lying at or near the mouth of White Fish river, in Delta county, Michigan, and from in any manner interfering with any booms temporarily attached to the shore of any of the parcels of land belonging to said defendants, and from interfering with the men in the employ of the said complainants, or any of them, in walking along the shores of said White Fish river while necessarily engaged in the work of booming, sorting and removing said logs, ties, poles, posts and other forest products, as above described, until the further order of this court.”

We shall treat the bill as admitting rthat complainants were making such use of the stream, and of the banks thereof, as the injunction, in terms, protects. That is, they were booming and sorting forest products in the stream upon the defendants’ lands, had and maintained booms in the stream which were attached to defendants’ lands and their men went upon and walked along the shores of the river, on the lands of defendants, in the work of sorting logs and in removing such as were lodged or stranded. We assume, also, that the White Fish river is, where it flows over defendants’ lands, in sections 21 and 28, town 41 north, of range 21 west, navigable only for floating forest products. The right asserted by complainants, the exercise of which they contend should be protected by injunction (the bill asks for no other relief), is bottomed, in the argument, upon three distinct grounds.

First, upon the statute, Act No. 189, Pub. Acts 1905, entitled:

“An act to regulate and define the rights of persons in runnings rafting and booming of logs, timber, ties, posts or poles in the streams and rivers of the Upper Peninsula, in the State of Michigan.”

This act has two sections which read:

“ Section 1. It shall be lawful for any person or persons having logs, timber, ties, posts or poles in any stream in the Upper Peninsula navigable for such logs, timber, ties, posts or poles, to temporarily boom and assort such logs, timber, ties, posts or poles in said stream, and along the shores, and at the mouth thereof, and to secure the booms by means of piles driven in the stream, or by chains, ropes, timbers or traverse poles made fast at points along the shore: Provided, That the driving and maintaining of said piles or holding of said logs, timber, ties, posts or poles aforesaid shall not interfere with the use of said stream by others for the purpose of floating similar products.

“Sec. 2. Provided, That this act shall not apply to any rivers or waters now having organized boom companies doing business under charter or to Anna river in Alger county.”

It is charged in the bill that there is no organized boom company doing business under charter on the White Fish river.

Second, upon a prescriptive right to do the work they were doing in the manner in which they were doing it. It is charged in the bill that the stream has been used for floating logs for 50 years, that two of complainants have had in said river, for 10 years, forest products to be floated down it, sorted at its mouth and towed to the mills, that the other complainant has for two years been engaged in the same business, having purchased from another mills, lands, booms and sorting works which had been established at the mouth of the stream and used for sorting logs which came down the stream, for 80 years or more. That in March, 1907, complainants entered into an agreement by which—

“After the logs had been driven to a solid jam down the said White Fish river at or near the State Road bridge, which crosses the said White Fish river about one mile from its mouth, they should sort said logs, use the booms which had been placed in said river and which had been used for many years in sorting logs and other forest products, now owned by the Garth Lumber & Shingle Co., and also adding such additional booms as might be necessary for said purpose, and under this arrangement the parties contributed to the cost of this sorting proportionately to the amount of timber each had in said river.”

Third, upon the common law — that what they are proteeted by the injunction in doing is incident merely to the navigation of the stream.

Assuming that the statute which is relied upon attempts to confer a right not otherwise existing, it is plainly invalid. It does not, as its tit],e would indicate, merely regulate and define the rights of persons in running and booming logs. It in terms makes it lawful for individuals charged with no public or quasi public duties in the premises to temporarily boom and assort logs along the shores, and for that purpose to secure booms at points along the shore. As applied to this case, it gives a right of entry upon the land of others, the effect of which is dispossession of the owners and interference with their dominion over property; this without any provision for compensation. The principle involved is not different from that employed in Lorman v. Benson, 8 Mich. 18; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308; White River Log & Booming Co. v. Nelson, 45 Mich. 578. See, also, Ball v. Herbert, 3 Term Rep. 253; Cohn v. Boom Co., 47 Wis. 314; Perry v. Wilson, 7 Mass. 393. It is true that in his brief counsel for appellants states that — “in so far as they had attached booms to the shore and were in possession of them, and in so far as the injunction restrained defendants from interfering with them while in complainants’ possession, no appeal has been made; ” but counsel does, necessarily, because of the apparent claims of counsel for complainants, contend that no right to possess or interfere with the defendants’ lands is supported by this statute. In this, we agree with counsel for appellants.

The bill does not charge a prescriptive right — an easement — in the lands of defendants. Whether the condition of things described in the bill ever before existed does not appear.

The question of the right of owners of logs floated at high water to reclaim and set afloat such of them as are left by the subsidence of the water, or such as are forced, in prudently conducting the drive, upon the banks of a river, is not presented by this record. See 2 Comp. Laws, § 5098; Gratwick, etc., Lumber Co. v. Lewis, 66 Mich. 533; Bradley v. Boom Co., 82 Mich. 9; Bauman v. Boom Co., 66 Mich. 544. And, upon the subject, see, generally, Hooper v. Hobson, 57 Me. 273; Carter v. Thurston, 58 N. H. 104; Watkins v. Dorris, 24 Wash. 636, 646 (54 L. R. A. 199). What complainants are doing is not a necessary incident to such navigation as this stream affords. It is, apparently, a calculated invasion of private property. The bill charges that “said defendants threaten to interfere with the sorting of said logs by your orators, and threaten to use force to prevent your orators from walking along said shore, as above set forth, or from booming said logs along said shore and assorting them temporarily,” offers to pay any damages accruing to defendants “from such use of said shores in the assorting of said logs,” which complainants are legally liable to pay. No previous offer to compensate defendants is alleged, no attempt to agree with them for compensation. The statute right to use defendants’ lands being denied, the position of complainants is, in effect, that defendants are not, in fact, damaged by what complainants have done and are doing; if they are, they must submit to such use of their property as serves the necessities or convenience of complainants’ operations and prove their damages after such use has ceased. It is urged that the value of the forest products in the stream is $100,000, that one-fifth is stranded upon the shores and that the value of the land desired to be used is small, the land uncultivated, and the resulting injury to defendants inconsequential. The court has upon occasion refused the writ of injunction to restrain a threatened trespass where the remedy at law was adequate, the opposed interests to be affected by the injunction of large, proportional, consequence, and other and independent circumstances considered negatived the right of complainant to equitable relief. Howard v. Bellows, 148 Mich. 410. So the writ might have been refused to the defendants in the case here presented. It does not follow that the writ will issue to protect a confessed trespasser in his occupancy and use of his neighbor’s premises upon the ground that his interests and operations are large and the landowner’s damages small. Purely legal rights are involved in the present controversy.

Because no ground for equitable interference is stated in the bill of complaint, it will be dismissed, with costs of both courts, without prejudice to the rights of any of the parties to institute suits at law.

Montgomery, Hooker, Carpenter, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    STAPLETON v. MACOMB CIRCUIT JUDGE.
    Eminent Domain — Condemnation Proceedings — Appeal—Right.
    The general provisions of the laws regulating procedure in the probate courts do not apply to special proceedings for the condemnation of land, whence there is no right to a dilatory appeal to the circuit court in such a case under section 674, 1 Comp. Laws. (
    Mandamus by William J. Stapleton to compel Byron R. Erskine, circuit judge of Macomb county, to vacate an order denying an appeal from the probate court.
    Submitted December 10,1907.
    (Calendar No. 22, 595.)
    Writ denied February 15, 1908.

      William T. Kelly, for relator.

      Seth W. Knight, for respondent.
   Blair, J.

The city of Mt. Clemens, incorporated under Act No. 215 of the Public Acts of 1895, instituted proceedings in the probate court under chapter 25 of said act, as amended by Act No. 136 of the Public Acts of 1899, for the widening of Highland avenue in said city. The jury impaneled in the proceedings determined there was a necessity for widening said avenue and for taking relator’s land therefor and awarded relator $275 as compensation for his lands so taken. The verdict of the jury was rendered on the 21st day of June, 1907, and was duly confirmed on the 15th day of July, 1907. Section 15 of said chapter 25 provides that:

“Any party aggrieved by the judgment of confirmation hereinbefore mentioned, may, within ten days after the entry thereof, appeal therefrom to the circuit court of the county, by filing with the probate court a claim of appeal,” etc.

Section 12 of said chapter 25 provides that:

“Any such judgment of confirmation shall be final and conclusive as to all parties not appealing therefrom within the time hereinafter provided.”

On the 27th day of August, 1907, relator filed in the circuit court a petition for leave to appeal from said judgment of confirmation, in accordance with the provisions of section 674, 1 Comp. Laws, authorizing the circuit court to allow appeals from the acts of the probate judge where the person aggrieved thereby has omitted to claim an appeal without default on his part. The circuit court denied the petition and such denial is the basis of the application to this court for the writ of mandamus.

The claim of relator is stated by counsel in his brief, as follows:

“By the amendment of 1899, above referred to, jurisdiction in these cases was given to the probate courts and it is the claim of relator that section 674 of general probate law controls in street opening cases and has same effect as other sections of general probate law.”

The application of the general provisions of the laws regulating procedure in the probate courts to special proceedings for the condemnation of land was denied by this court in the case of United States Gypsum Co. v. Kent Circuit Judge, 150 Mich. 668.

Writ denied.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Carpenter, J.

text:
    AMOE v. GREAT LAKES ENGINEERING WORKS.
    Master and Servant — Personal Injuries — Fellow-Servants. The duly 0f diligently carrying certain iron plates from defendant’s shop to the deck of a steamship in process of construction in defend,'hit’s yard, and there safely piling them until needed for use in the work, held, a delegable duty, for the negligent performance of which, resulting in injury to a servant, defendant is not liable, though the work was performed under the direction of defendant’s foreman.
    Error to Wayne; Mandell, J.
    Submitted January 23, 1908.
    (Docket No. 136.)
    Decided February 15, 1908.
    Case by Louis B. Amoe against the Great Lakes Engineering Works for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Abbott & Abbott and Lehman & Biggs, for appellant.

      Busselj Campbell, BuTkley & Ledyard, for appellee.
   Carpenter, J.

Plaintiff brought this suit to recover compensation for personal injuries. The trial court directed a verdict for defendant. Plaintiff asks a reversal of the judgment entered on said verdict. We state the material facts shown by the testimony.

The business of defendant is the construction of large steamboats. Plaintiff is an ironworker. He was injured while in defendant’s employment. When injured he was drilling rivet "holes in the hull of a boat under construction. His injury was caused by the fall of a large iron plate called “ wash plate.” It fell from above and struck his foot. This plate was one of several which had been deposited on the deck above plaintiff. These wash plates are necessary parts of the floor frame of the boat. On the morning of plaintiff’s injury these plates had been carried from the shop and piled on the deck for the purpose of being used as soon as the workmen needed them. There is also testimony respecting the manner in which these plates were piled and the cause of their falling. We need not detail that testimony. It is sufficient to say that the utmost that can be claimed for it is this: It warranted the inference that the plates fell because they were improperly piled, and that defendant’s foreman in charge of the work on the boat might by the exercise of due diligence have corrected this and prevented plaintiff’s injury. Upon this negligence of said foreman plaintiff bases his claim of a right to recover damages. Can plaintiff, an employé, hold defendant, his employer, responsible for such negligence ?

These wash plates were a part of the material to be used in the construction of the boat. They were insecurely piled on the boat when they were in transit from the shop to the place where they were to be used. The duty of diligently carrying them and depositing them on the boat was surely not a non.-delegable duty of defendant. It was a duty which defendant might and did delegate to the co-employés of plaintiff, and those co-employes were his fellow-servants, for whose negligence defendant was not responsible.

The only ground, then, upon which plaintiff can recover —and that is the ground upon which he claims to recover

—is this, viz., that the foreman in charge of the work was a vice-principal, and that for his negligence, even though that negligence be in performing a delegable duty, defendant is responsible. This claim cannot be allowed. It has been repeatedly denied by our own decisions. See Guest v. Illuminating Co., 150 Mich. 438; Page v. Food Co., 142 Mich. 17; Wellihan v. Wheel Co., 128 Mich. 1; Andre v. Elevator Co., 117 Mich. 560; Morch v. Railway Co., 113 Mich. 154; Gavigan v. Railway Co., 110 Mich. 71; Findlay v. Foundry Co., 108 Mich. 286.

The judgment is affirmed.

Grant, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Grant, C. J.

text:
    HINCHMAN v. MATHESON MOTOR CAR CO.
    1. Contracts — Construction — Severable Provisions — Contract oe Employment.
    A contract by which, plaintiff undertakes to sell an approximate amount of the capital stock of defendant corporation and to become its treasurer for one year at a stipulated salary, is severable with respect to the two provisions, and his right to continue for the contract term as treasurer is not dependent upon his selling the amount of stock stipulated.

      2. Master and Servant — Contract of Employment — Termination — Cause—Burden of Proof.
    In assumpsit by the treasurer of a corporation on a contract of employment for a definite period the burden is upon defendió show sufficient cause for plaintiff’s discharge.

      3. Same — Contract—False Representations.
    In assumpsit by the treasurer of a corporation on a contract of employment for a definite period, the contract also providing that plaintiff should undertake to sell a certain amount of stock and to buy a certain amount himself, which latter agreement he had performed, defendant could not show as a reason for plaintiff’s discharge that he made false representations as to his ability to sell stock, where it had not rescinded the contract nor made any offer to place plaintiff in statu quo by tendering him the money received for the stock he had purchased.
    4. Contracts — Rescission—Fraud —Restoration oe Consideration — Necessity.
    When one rescinds a contract on the ground of fraud it is his duty to restore to the other the property he has received.
    5. Fraud — Pleading—Necessity.
    In assumpsit on a contract of employment defendant cannot show plaintiff’s false representations inducing the making of the contract without a notice of special defense on the ground of fraud.
    6. Master and Servant — Contract oe Employment —Termination.
    A letter from a corporation to its treasurer, with whom it has a term contract of employment, advising him of pending negotiations, the success of which will mean the termination of his service contract, and asking him for an “expression concerning same,” and an answer to the effect that the treasurer will be pleased to resign as soon as he is relieved of liability on indorsements and is repaid the amount of his investment made as a consideration of the contract, to which no reply was made, do not indicate a discharge of the treasurer.
    7. Same — Action—Form—Assumpsit.
    Assumpsit upon the contract, with a special count setting up the contract and the facts relative to the services performed, the discharge, plaintiff’s readiness to continue in the performance of his duties, and the failure to pay, is proper to recover on a contract of employment wrongfully terminated by the employer before the expiration of the contract period.
    Error to Wayne; Murphy, J.
    Submitted January 18, 1908.
    (Docket No. 175.)
    Decided February 15, 1908.
    Assumpsit by F. Archer Hinchman against the Matheson Motor Car Company on a contract of employment. There was .judgment for plaintiff, and defendant brings error.
    Affirmed.

      Hal H. Smith, for appellant.

      Bowen, Douglas, Whiting & Murfln, for appellee.
    The defendant, a Michigan corporation, in 1904 had its manufacturing plant at Holyoke, Mass. It desired to remove it to Detroit, Mich. Negotiations were entered into between the defendant through its manager, Mr. Matheson, and plaintiff who was a resident of Detroit. These negotiations resulted in a contract evidenced by a letter from the plaintiff .to the defendant and accepted by it. Plaintiff’s letter is dated December 6, 1904, and reads as follows:
    “Detroit, Mich., Dec. 6, 1904.
    “Matheson Motor Car Co., Ltd.,
    “Grand Rapids, Mich.
    “ Gentlemen: I will undertake to dispose of approximately $100,000 of the preferred stock of the Matheson Motor Car Co., Ltd., each share of preferred stock to carry with it half a share of common stock as a bonus, and to look after the finances of the company on the following basis: .
    “ I am to be elected treasurer of the company, and to perform the duties of that office for which my compensation will be $250 per month until the plant may be in operation in Detroit, after which time, my salary to be increased to such an amount as may be considered equitable by the board of directors.
    “For the placing of the above mentioned preferred stock, I am to receive five per cent, commission on all preferred stock sold by me, which commission is to be credited to my subscription account.
    “I will also subscribe for $5,000 preferred stock, to carry with it $2,500 in common stock. Of this amount, $2,500 is to be paid by me in cash and the balance to be paid for by my commissions as above outlined.
    “ It is also understood that any additional commissions above the $2,500 mentioned is to be paid me in preferred stock with half a share of common stock on the same basis as above.

      “When elected as director I agree to indorse paper with all the balance of the board of directors as such indorsements may be necessary, it being understood that all the foregoing be dependent on an inspection of the company’s plant and books at Holyoke, the expenses of the trip to Holyoke for such investigation to be borne by your company.
    “ It is also understood that this agreement contemplates my service with the company for the year of 1905 and indefinitely thereafter so long as mutually satisfactory.
    “If this proposition maybe satisfactory to your company, I will arrange to run down to Holyoke the latter part of this week for the inspection above referred to.
    “Yours truly,
    “ F. A. Hinchman.”
    It was accepted in writing indorsed on the letter on December 7,1904. Plaintiff immediately went to Holyoke, and, after an examination on December 10th, wrote un- ' derneath the above letter an acceptance:
    “I hereby accept the above, having found the conditions at Holyoke satisfactory.”
    Plaintiff was elected director and treasurer and entered upon the discharge of his duties as treasurer and endeavored to obtain subscriptions to the stock as mentioned in the contract, but failed. In all other respects he fully performed the contract, having subscribed for the stock and paid $2,500 into the treasury of the company, and also indorsed paper for the company to the extent of about $30,000. He continued to act as treasurer until he was discharged the latter part of October, 1905. His salary was paid to July 1, 1905. Plaintiff, after the expiration of the year provided in the contract, brought this suit to recover the contract price of his services. With its plea of the general issue defendant gave notice that plaintiff had failed to perform his agreement to dispose of said stock, and that for that reason defendant rescinded the contract. It is undisputed that he continued to act as treasurer through July, August, and September, and nearly through October, and as to these months the court directed a verdict for the plaintiff. As to the months of November and December, the court instructed the jury that they must be able to find that the plaintiff was ready and willing to perform his duties as treasurer and was also competent, and that after his discharge it was his duty to use reasonable diligence to obtain other employment for which he would be adapted. The court also instructed the jury that the burden of proof was upon the defendant to show good cause for discharging the plaintiff from its employ.
    Two questions were left to the jury, namely, — (1) Did the defendant have good reason to discharge the plaintiff ? and (2) If it had no right to discharge him, did the plaintiff use reasonable efforts to obtain other employment and thereby diminish his damages ?
   Grant, C. J.

(after stating the facts). The most-important question arises upon the construction of the contract. The learned counsel for the defendant insists that the clause “I will undertake to dispose of approximately $100,000 of the preferred stock,” is an absolute agreement; that he failed to perform it, and therefore cannot recover for his services as treasurer. We think counsel in error. Plaintiff agreed to do two things, neither of which was dependent upon the performance of the other. He agreed to act as treasurer for one year for which he was to receive a monthly compensation. He also was to undertake to dispose of a certain amount of the stock. The disposal of the stock was certainly not a condition precedent to his appointment as treasurer and director and the performance of the duties which those two offices imposed upon him; otherwise the defendant would not have paid plaintiff monthly for six months. Furthermore, the correspondence between the parties clearly shows that plaintiff’s employment as treasurer was not understood to be dependent upon his disposal of the stock. Seymour v. Rolling Mills, 56 Mich. 117. controls this feature of the case. In that case this court said:

“The agreement consists of two contracts, severable and independent of each other, and have so been treated by the parties.”

It therefore becomes unnecessary to determine whether the word “undertake” imported an absolute agreement to sell, or simply a faithful endeavor on his part to sell. That plaintiff made faithful endeavors to sell the stock is established by the evidence. In these endeavors he was assisted by the manager of the defendant; but notwithstanding the efforts of both, no stock could be disposed of in the city of Detroit.

The contract was one of employment for a year as treasurer at a stated compensation, and plaintiff was subject to discharge only for cause. On November 1st another treasurer was appointed, and plaintiff notified that his successor had been elected. Mr. Matheson, the manager of the defendant, testified that technically plaintiff was the defendant’s treasurer as late as October. In fact he was the only treasurer defendant had and performed all the duties required of him.

The court correctly instructed the jury that the burden of proof rested upon the defendant to show sufficient cause for plaintiff’s discharge from its employment. Milligan v. Furniture Co., 111 Mich. 629; Bolt v. Frederick, 56 Mich. 20.

Defendant also insists that it should have been permitted to introduce evidence of false representations made by the plaintiff as to his ability to dispose of this stock, and as showing a reason for his discharge. It could not make that defense without a rescission of the contract. Defendant made no offer to show that it had placed the plaintiff in statu quo by tendering to him the money received for the stock he had purchased. When one rescinds a contract on the ground of fraud it is his duty to restore to the other party the property he has received. 3 Current Law, p. 844; 9 Cyc. p. 433. There was therefore no rescission. Furthermore, defendant gave no notice of a defense on the ground of fraud. This evidence was therefore properly excluded.

It is also urged that there was some evidence of a discharge of the plaintiff in July, which should have been submitted to the jury. The main ground for this contention is found in a letter written to plaintiff by defendant on June 30, 1905, in which defendant’s manager, Mr. Matheson, refers to negotiations to secure capital stock in the East which would result in the retention of the plant at Holyoke. The letter further stated that that would involve the reorganization under Massachusetts law and the transfer of the Michigan company to a Massachusetts corporation; that if the negotiation went through it would enable the company to retire its outstanding bank line and relieve plaintiff as well as the rest of the board from other indorsements. The letter then stated that in that event plaintiff’s services would be no longer required, and would mean the termination of his “service contract,” and asked an “ expression concerning same ” from him. To this plaintiff replied asking further information and promising to answer as soon as he was able to give the matter a little consideration. On July 8th plaintiff wrote defendant evidently in reply to Mr. Matheson’s letter of the 30th:

• “I will be pleased to send you my resignation when the loans at The American Exchange National Bank at Detroit have been fully paid up, so as to relieve me of my indorsements, and upon receipt of the amount of my investment, viz., $2,500 in the stock of the Matheson Motor Oar Company.”

This offer was not accepted. There is nothing in this correspondence to indicate any discharge of the plaintiff as treasurer. Neither is there anything in the correspondence following until his discharge November 1st.

It is also urged that the plaintiff’s form of action is not appropriate to recovery after his discharge, the claim being that he should have brought suit for breach of contract. The declaration we think is in the usual form for actions of this kind, alleging as it does, that—

“Defendant disregarding its obligation, * * * neglected and refused to pay the plaintiff’s salary, although the plaintiff was at all times prepared and ready to continue to discharge the duties of the office of treasurer to which he had been elected.”

The declaration is not for services rendered, but for services he did not render but was ready and willing to perform. The special count sets forth the contract in full; that the plaintiff entered upon his duties; that he was paid to July 1, 1905;‘that he was at all times prepared and ready to continue to discharge the duties of the office; and its refusal to pay. Had plaintiff brought suit simply for work and labor performed, as was the case in Moore v. Nason, 48 Mich. 300, plaintiff could not have recovered for the last two months of the contract period.

Judgment affirmed.

Blair, Moore, Carpenter, and Me Alva y, JJ., concurred.


text:
    McCARRON v. WHEELER.
    Limitation of Actions — Removal of Bar —Subsequent Transactions.
    A mortgage on complainants’ property being about to be foreclosed, defendant advanced the money to pay the amount due, taking a deed from complainants and giying them an agreement to reoonvey on payment of the amount advanced, and subsequently complainants sold their equity in the lands to persons who later deeded to defendant. Five years later complainants filed, their bill for an accounting claiming that at the time defendant advanced the funds mentioned he owed complainants more than the amount advanced on previous transactions. Held, that as the previous transactions had no relation to the transaction relative to the mortgage it was not effective to remove the bar of the statute of limitations as to those transactions.
    Appeal from Wayne; Mandell, J.
    Submitted January 14, 1908.
    (Docket No. 47.)
    Decided February 15, 1908.
    Bill by Michael L. McCarron and Ellen H. McCarron against Frank D. Wheeler for an accounting. From á decree dismissing the bill, complainants appeal.
    Affirmed.

      E. A. Eink and Ronald Kelly, for complainants.

      John H. McDonald ( Edward S. Gfrece, of counsel), for defendant.
    Complainants were once the owners of the lands involved in this suit. They were covered by mortgages amounting on March 1, 1898, to $3,674, which they were unable to pay. They applied to the defendant for assistance. Defendant let complainant Michael have the above amount. The mortgages were discharged and complainants conveyed the lands to the defendant by warranty deed. Defendant executed to complainants an agreement reciting the transaction and agreeing to reconvey the lands to complainants upon payment of the $3,674 in one year, with interest and taxes thereon at six per cent, per annum, interest payable semi-annually. The agreement further provided that if complainants were unable to pay said amount as provided, the lands were to be sold and the money over and above the contract price to be paid to complainants.
    On August 1, 1898, complainants sold and by proper conveyance assigned all their right, title, and interest in said contract to one Larrabee for $475. Larrabee subsequently conveyed the same to one Dey, and Dey and his wife by the proper quitclaim deed conveyed all their right, title, and interest by virtue thereof to the defendant. All these instruments were seasonably recorded. Complainants thereafter paid no attention to the property, paid no interest or principal, and in September, 1899, removed to the State of Massachusetts to reside. On August 3, 1904, they filed the bill in this cause, claiming that the deeds from them to the defendant were mortgages. The bill alleges also prior money transactions between complainant Michael and the defendant; that they never had a settlement of these transactions; that there is a large amount due from defendant to the complainant Michael thereon, which is sufficient to pay the amount obtained from defendant on March 1, 1898. The previous transaction between the complainant Michael and defendant began in 1892. Mr. McCarron was a contractor. In order to obtain consideration of his bids he was obliged to deposit certified checks to evidence his good faith. Not having sufficient money of his own he obtained checks from the defendant to be used for that purpose. After these checks had served their purpose they were from time to time returned to the defendant, and Mr. McCarron received credit therefor. The most of these operations occurred in 1892 and 1893. There were two or three other subsequent transactions, all of which were prior to March 1, 1898.
    On March 15, 1895, the parties had a settlement and Mr. McOarron gave to defendant a note for $4,785.93, understood then to be the amount due from Mr. McOarron to defendant. Subsequently (but at what precise time does not appear) this note with two other small ones was surrendered by defendant to McOarron in settlement of their accounts, and the fact of settlement was noted on the face of the note.
    Proofs were taken in open court and a decree entered by Judge Brooke, dismissing complainants’ bill. Complainants made , an affidavit for rehearing based upon alleged newly-found evidence. The decree was opened for further proof and subsequently came on for hearing before Judge Mandell, who again entered a decree dismissing complainaints’ bill.
   Grant, C. J.

(after stating the facts). The complainants paid nothing to defendant upon their contract with him, and subsequently sold and conveyed all. the interest they had in the lands, which, under their own theory, was only an equity of redemption. Their grantee therefore succeeded to all their interest in the lands; and that interest was subsequently acquired by the proper deed of conveyance by the defendant. They now seek to apply in payment therefor an amount which they claim is due them upon a prior transaction between defendant and McOarron. The two transactions have no relation to each other. Mr. McOarron testified that he knew a long time before he obtained the $3,674 from the defendant that there was a balance due him on their former dealings. As to that he once had a complete and adequate remedy at law. It had been barred by the statute of limitations á long time before this suit was commenced. A debt barred by the statute of limitations cannot be revived by a i subsequent transaction having no relation whatever to the former debt.' It is therefore unnecessary to determine whether there was any mistake in the settlement which the parties made.

The decree is affirmed, with costs.

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


text:
    HARE v. WORKINGMEN’S MUTUAL PROTECTIVE ASS’N.
    Life Insurance — Action on Policy — Pleading — Special Defense — Notice—Necessity.
    In an action on a life-in.surance policy a notice of special defense under Circuit Court Rule No. 7 is necessary if defendant intends to rely on the fact that the suit was not begun within the time limited by the policy, that proofs of loss were not furnished as required by the policy, or that the insured had changed his occupation to one more hazardous than the one he was pursuing at the time the policy was issued, contrary to the terms of the policy, disentitling the beneficiary to recover its full amount.
    Error to Bay; Collins, J.
    Submitted January 15, 1908.
    (Docket No. 63.)
    Decided February 15, 1908.
    Assumpsit by Violet M. Hare, administratrix of the estate of Alonzo W. Young, deceased, against the Workingmen’s Mutual Protective Association on a policy of insurance. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.

      John J. Sterling, for appellant.

      Gilbert W. Hand, for appellee.
   Blair, J.

Plaintiff brought this suit to recover on an insurance policy issued to A. W. Young in his lifetime, insuring him “ by occupation working on punch in shipyard, in Class D, subject to all the conditions herein contained and indorsed hereon,” etc. Under the head of “Conditions,” the following provisions, among others, were indorsed on the policy:

“(7) Any illness contracted, or any injury received, fatal or otherwise, after a change of occupation to one classified by this association as more hazardous than that herein stated, or if injured while doing any act or thing pertaining to any occupation so classified, the liability of the association shall be only for such proportion of the principal sum or other indemnity as the premium paid will purchase at the rates fixed by this association for such more hazardous occupation. * * *

“ (11) Affirmative proof of any injury, fatal or nonfatal, or of any illness for which claim can be made, must be furnished to the association at Benton Harbor, Michigan (on blanks provided by the association), within thirty .days from date of death, loss of limb or sight, or of termination of disability: Provided, that such proofs as to injury must affirmatively establish the fact that such death, disability or loss resulted directly and independently of all other causes from bodily injuries effected through external, violent and accidental means. No action at law or in equity shall be maintainable before three months nor after six months from date of which this paragraph provides that said affirmative proof must be furnished to the association. Any claim not brought in conformity with the provisions of this paragraph shall be forfeited to the association.”

The indemnity- for loss of life provided in the policy is $300. The indemnity for loss of life under Class X — to which defendant claims Young changed — is $1-00, and this amount defendant tendered in discharge of its liability. Defendant pleaded the general issue without notice of any special defense.

The errors relied upon to reverse the judgment for plaintiff, entered upon an instructed verdict, which we think entitled to consideration, are as follows:

“First. It especially relies on error No. 4, which relates to the refusal of the court to direct a verdict for defendant on the ground that the suit was not commenced within sis months from the date when the policy required proofs of loss to be filed.

“Second. It especially relies on error No. 3, which relates to the refusal of the court to direct a verdict for defendant on the ground that the plaintiff failed to furnish proofs of loss within thirty days after the death of Young, the insured, as required by the policy.

Third. It especially relies on errors Nos. 5, 6 and ?, which relate to a refusal of the court to instruct the jury that in no event could they find a verdict against defendant for more than $100, because deceased had changed his occupation from ‘working on punch’ to that of a ‘shearsman,’ at the time of his injury, which latter occupation was classified by the defendant as more hazardous than that in which he was insured, and therefore plaintiff could not recover $300, the amount named in the policy.”

Plaintiff contends, in accordance with the decision of the circuit judge, that none of these questions can be raised under the plea of the general issue alone. We are of the opinion that the circuit judge did not err in holding that, under the provisions of Circuit Court Rule 7, a special notice was required to authorize the defenses sought to be made under the plea of the general issue. Cronin v. Fire Ass’n, 112 Mich. 106; Malicki v. Guaranty Fund Life Society, 119 Mich. 151.

The judgment is affirmed.

Grant, C. J., and Moore, Carpenter, and Mc-Alvav, JJ., concurred.


text:
    DOLSEN v. PHŒNIX PREFERRED ACCIDENT INSURANCE CO.
    1. Life Insurance — Action on Policy — Payment of Premiums — Evidence — Sufficiency.
    In an action on a life-insurance policy a letter of defendant’s manager stating that “the premiums on the policy were paid under certain conditions ” is sufficient prima facie evidence that the premiums necessary to renew the life of the policy were paid.
    2. Same — Limitation of Action — Waiver.
    A letter from the general counsel of an insurance company, to whom plaintiff was referred, asking further time for investigation, in the absence of further communication, waives the contract limitation as to the time of bringing suit.
    3. Same — Evidence — Admissibility — Objeotion not Made Below.
    An objection that the court erred in admitting certain evidence for the purpose of showing a waiver because the waiver was not pleaded, not being made in the trial court, will not be considered here.
    4. Same — Direction of Verdict — Propriety — Attitude of Counsel.
    Where the evidence presents a question for the jury whether death occurred in such a manner as to limit recovery to 10 per cent, of the face of the policy as stipulated therein, but counsel for both parties insist that the court shall direct a verdict in their favor, and both agree that the court shall treat the question as one of law, defendant cannot complain that the court directed a verdict for plaintiff for the full amount of the policy, instead of submitting the question to the jury.
    5. Appeal and Error — Record—Recitals—Presumptions.
    A statement by the court that both parties desired the question at issue disposed of as a question at law, if incorrect, should have been corrected at once by counsel if review of the question was desired in this court.
    Error to Bay; Collins, J.
    Submitted January 16, 1908.
    (DocketNo. 73.)
    Decided February 15, 1908.

      Assumpsit by Mordred C. Dolsen against the Phoenix Preferred Accident Insurance Company on a policy of insurance. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.

      Abbott & Abbott, for appellant.

      Lee JE. Joslyn, for appellee,
   Blair, J.

Action on an insurance policy to recover the sum of $300 alleged to be due to the plaintiff, in accordance with the terms thereof, in consequence of the death of Lee Dolsen by drowning on the 15th day of July, 1906. The declaration was filed as commencement of suit, March 23, 1907. Plea was filed March 27, 1907, with notice, (1) of the contract limitation of the right to bring suit to three months “ after the time when right of action may accrue or liability is denied by the company;” (2) that liability could not exceed one-tenth of the indemnity provided, because Lee Dolsen came to his death “through and from unnecessary, voluntary or involuntary exposure to danger and by and through his own gross negligence.” At the conclusion of the proofs, the court directed a verdict for the plaintiff and defendant brings the record to this court for review on writ of error presenting four points for our consideration, which we will consider in their order.

Plaintiff failed to prove that the policy was in force at the time of Dolsen’s death, because there was no proof of the payment of the monthly premiums necessary to renew its life, and' verdict should have been directed for defendant. The letter of district manager and adjuster Jordan stating that, “The premiums on the policy were paid under certain conditions,” etc., was prima facie evidence at least of the payment of the premiums.

Plaintiff’s cause of action was outlawed.

The following provisions were indorsed upon the policy:

“Fifteenth. {a) No action at law nor arbitration proceedings for recovery hereunder, shall be brought or instituted until after three months from date of filing final proofs at home office of the company in Detroit, Michigan, nor brought or instituted at all unless commenced within three months after the time when right of action may accrue, or liability is denied by the company.

“(J) If at anytime any question or difference shall arise between this company and the assured, or his beneficiary, their representative, heirs or assigns, respecting the validity of any claim, adjustment of any loss or auditing of any claim, under this contract, it shall be submitted to a commission of arbitration, consisting of three registered physicians in good standing, to consist of the company’s physician, to be paid for by the company; the claimant’s physician, to be paid for by the claimant; and a third physician to be selected by these two, and to be paid for by the company and the claimant jointly, unless the right to said arbitration is expressly waived in writing by the company. The decision of said commission of arbitration shall in all cases be final. This agreement to arbitrate shall be and is a condition precedent to any suit or proceedings at law, and no suit or proceedings at law shall be maintained except to enforce the award of such commission of arbitration, unless the right to arbitrate is expressly waived, in writing, by the company.”

Proofs of death were filed August 7, 1906.

Defendant’s counsel argue that, “ Liability under the claim sued upon was denied as early as August 27, 1906, when the compromise offer (Exhibit 1) was sent to plaintiff,” and that the time within which suit could be commenced began to run November 7, 1906, and expired February 7, 1907.

Exhibit 1 is a check for $30 payable to the order of plaintiff, upon which there was an indorsement that, if used, it should constitute a compromise settlement. This check was sent forward by Jordan, and is referred to in the letter above mentioned. Instead of being a denial of all liability, the letter was an admission of liability under the 13th clause of the policy, which limited the company’s liability to one-tenth of the amount otherwise payable, in the event of death resulting “from unnecessary exposure to obvious risk of injury or obvious danger.” The check was refused and returned to the company, plaintiff insisting upon his right to the full amount of the policy, and thereupon the provision as to arbitration became applicable. Plaintiff’s counsel wrote to defendant September 10, 1906:

“ I note clause 14 on the back of the policy, but I am not inclined to the belief that it is a part of the policy as I find nowhere anything which recites that it is made a part of the policy. However,. I wish to inquire whether we are to treat your allowance of the claim at only $30 as a waiver of the arbitration clause contained in said paragraph fourteen ? If not and you desire arbitration, please advise me by return mail, and if I can bring myself to the idea that clause fourteen is binding and that you are entitled to arbitration and that you have not waived it by allowing the claim at less than the amount proven, I will advise you of our position and name our physician in accordance with the terms of said section. If we must arbitrate the claim, we wish to proceed promptly and without delay, as the matter has now been held up for some time.”

Plaintiff’s counsel wrote again referring to the subject on September 26, 1906, to which letter a reply was written September 29th, signed by the secretary of the company, as follows:

“Replying to yours of the 36th inst., in re Lee Dolsen matter, will say that we have placed this matter in the hands of our general counsel, Chas. S. Abbott, who will take the matter up with you.”

On November 5, 1906, defendant’s general counsel wrote the following letter:

“Yours of Oct. 30th duly received. In reply will say that files and your letter were handed to me some time in September, and by me referred back to the secretary of the Insurance Co. for further investigation as to some of the facts and has not been returned to me. I will get the files at my earliest convenience, and thereupon give the matter my prompt attention. Owing to my absence from the city, your letter of the 30th was not received by me or called to my attention until this afternoon, and unfortunately I will leave the city today, and will “therefore be unable to give the Dolsen matter any attention until the latter part of the week. Asking you to patiently bear with me, I beg to remain,” etc.

On November 19th and on February 19th, plaintiff’s counsel wrote to defendant’s counsel, receiving a reply on February 23d stating that the files had been withdrawn from his hands “ and we are not in a position to advise you as to the company’s attitude.”

Mr. Abbott’s letter of November 5th authorized the delay of plaintiff’s counsel, in the absence of further communication, and waived the contract limitation as to the time of bringing suit. Turner v. Casualty Co., 112 Mich. 425 (38 L. R. A. 529).

The court erred in admitting the letters in evidence for the purpose of showing waiver, the waiver not having been pleaded. No such objection was made in the court below, and it cannot, therefore, be considered here.

The court erred in not limiting the damages to $30, in accordance with the provisions of the 13th- paragraph of the policy or else such question should have been submitted to the jury. We agree with the opinion expressed to counsel by the circuit judge, that the proofs raised a question of fact as to whether the death came within the limitation of the 13th paragraph, which question the defendant had a right to have submitted to the jury. Defendant’s counsel, however, did not ask to have this question submitted to the jury, but insisted that the court should direct a verdict in its favor. Plaintiff’s counsel contended that plaintiff was entitled to an instructed verdict. At the close of their remarks, the following occurred:

The Court: Do you gentlemen both wish it treated as a question of law to be passed upon by the court ?

"Mr. Joslyn: I do.

The Court: Both sides do. Then I will direct a verdict for the plaintiff for the amount of the policy with interest, and sustain the motion of Mr. Joslyn, under the statement of counsel that it is to be considered a question of law. I am willing to take the responsibility of all questions of law but as to questions of fact I think they ought to go to the jury.”

If the statement of the court that both sides desired this question treated as a question of law was incorrect, defendant’s counsel should have at once corrected the mistake. Not having done so, they cannot now complain. Myers v. Myers, 143 Mich. 32.

The judgment is affirmed.

Grant, C. J., and Moore, Carpenter, and Mc-Alvay, JJ., concurred.


text:
    PEOPLE, for use of J. E. BARTLETT COMPANY, v. CARROLL.
    1. Bonds — Action—Declaration—Sufficiency.
    A declaration in an action on a bond, brought against the sureties alone, which avers that the bond was delivered by the sureties, is sufficient as against a demurrer on the ground that the bond as pleaded shows that it was not signed by the principals, since if the sureties delivered the bond without the signatures of the principals they would be held to have waived such signatures unless there was an understanding that they were to be' procured before the bond should be valid, which matter would be matter of proof at the trial.
    2. Same — Contract Secured — Setting Forth in Bond —Necessity.
    It is riot necessary that a bond given to secure the performance of a contract mentioned therein should recite a copy of the contract or otherwise identify it, the identity of the contract broken with the one mentioned in the bond being the , proper subject of proof at the trial.
    3. Public Works — Bonds—Liability of Sureties.
    Sureties on a bond given for the benefit of laborers and materialmen under Act No. 187, Pub. Acts 1905, cannot avoid liability by showing a failure of the municipal authorities to approve the bond.
    Error to Jackson; Parkinson, J.
    Submitted January 17, 1908.
    (Docket No. 87.)
    Decided February 15, 1908.
    Assumpsit by the People of the State of Michigan, for the use and benefit of the J. E. Bartlett Company, against Stephen H. Carroll and Carl Eberle, sureties upon a statutory bond. There was an order overruling a demurrer to the declaration, and defendants bring error.
    Affirmed and remanded.

      John W. Miner ( Grove H. Wolcott, of counsel), for appellants.

      Lyman B. Trumbull, for appellee.
    This case is before us on a judgment overruling a demurrer to the declaration. The declaration alleges that E. J. Tobin and Henry C. Barnes, copartners under the firm name of E. J. Tobin & Co., entered into a contract with the city of Jackson for the construction of a sewer known as the Monkey Run and Third Ward sewer, and that the defendants made, executed, and delivered a bond to said city to secure persons furnishing labor or materials to said Tobin & Co. for said sewer. The bond which is set out verbatim in the declaration reads as follows:
    . “ Know all men by these presents, that we, E. J. To-bin and Henry C. Barnes, of Jackson, Michigan, copartners, trading and doing business as E. J. Tobin & Company, as principals, and S. H. Carroll and Carl Eberle, as sureties, are held and firmly bound into the people of the State of Michigan in the sum of five thousand dollars ($5,000), lawful money of the United States of America, to be paid to the people of the State of Michigan for the use and benefit of any person, firm or corporation to whom any money shall be due and payáble on account of having performed any labor or furnished any materials in the erection, construction and repairing of the public works hereinafter more particularly described, to which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators and each and every one of them firmly by these presents.
    “ Sealed with our seals and dated the 7th day of November, 1905.
    “The condition of this obligation is such that whereas, the principals named have entered into a contract with the city of Jackson, Michigan, for certain work as fully set forth in the contract, plans and specifications. ■
    “ Now therefore, if said principals above named herein, shall well, truly and faithfully pay any subcontractor or materialmen that may be employed on said work or furnish any materials for said work any indebtedness as the sum shall become due and payable, and if said principals above named shall well and truly pay all indebtedness which may accrue to any person, firm or corporation on account of any labor performed or materials furnished in the erection, construction and repairing of said work, then this obligation shall be void, but otherwise to remain in full force and virtue.
    “S. H. Carroll. (Seal.)
    “ Carl Eberle. (Seal.) ”
    The declaration then alleges that the J. E. Bartlett Co. furnished certain materials to Tobin & Co., that Tobin & Co. refused to pay, and that therefore the defendants became liable-on the bond.
    The grounds of demurrer are:
    (1) That the declaration does not show or aver that the bond was executed by the principals named therein, E. J. Tobin & Company, or delivered by said principals.
    ( 3) That no contract was specified or set forth in the bond for the construction of the sewer mentioned in the plaintiff’s declaration.
    ( 3 ) That there is no averment of the approval of the bond, either as to the sureties or the penalty by the board of public works or the common council of the city of Jackson.
   Grant, C. J.

(after stating the facts). The bond was evidently given in compliance with Act No. 187, Pub. Acts 1905. Counsel for defendants insist that the declaration does not aver the existence of all the facts essential to maintain the action. Their argument is that the bond upon its face imports a joint obligation of Tobin and Barnes as principals and the defendants as sureties; that it cannot be changed into a liability of the sureties alone without knowledge or consent on their part, and that there is no averment in the declaration that the bond was delivered by the sureties with knowledge that the principals had not signed or that they had waived execution by the principals. In support they cite Johnston v. Township of Kimball, 39 Mich. 187. That case was tried upon the merits, and the proofs showed that the bond in question was accepted by the supervisor without any knowledge or consent of the sureties that it was not to be signed by the principal.

The questions of knowledge and waiver are not raised by the demurrer or assignments of error. We think, however, that a complete answer to this entire contention is that the declaration avers that the bond was delivered by the defendants themselves. If they delivered it to the obligee without the signatures of the principals they would be held to have waived such signatures, unless there was an understanding that they were to be procured before the bond should be valid. There is no presumption that defendants delivered the bond by mistake. The question therefore becomes one of proof upon the trial.

The second ground of demurrer is without merit. The declaration alleges the execution of the contract and the bond at the same time, and that the bond was given to secure the faithful performance of the contract. The identity of the contract with the one mentioned in the bond is the proper subject of proof upon the trial.

Defendants cannot avoid liability by showing the failure of the municipal authorities to approve the bond. People v. Johr, 22 Mich. 461. See, also, Board of Education of Detroit v. Grant, 107 Mich. 151.

Judgment affirmed, and the cause remanded for further proceedings.

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


author: Grant, O. J.

text:
    ROUSTON v. DETROIT UNITED RAILWAY.
    1. Evidence — Declarations — Admissibility — Statements of Employé.
    In an action against a carrier for injuries to a passenger on an electric car, declarations by themotorman of the car causing the injury, made several hours before the accident, to the effect that his car was not working well, are inadmissible, being neither res gestae nor statements upon authority.
    2. Saving Questions for Review — Instructions—Objections — Liability of Carrier — Res Ipsa Loquitur.
    Whether a collision between electric cars establishes a prima facie case of negligence against a carrier and casts upon it the burden of showing that the appliances were in proper condition and properly managed, as charged by the trial judge, will not be decided where counsel made no objection to the charge and raises no question as to the point in the brief, though the court do not concede it to be the law.
    3. Carriers — Passengers—Care Required.
    Carriers of passengers running freight cars only short distances after passenger cars, and up and down steep inclines, are required to exercise a very high degree of care in seeing that their appliances are in proper condition and are properly managed.
    4. Same — Defective Appliances — Inspection—Sufficiency.
    Where inspection is relied upon as a defense to an action against a carrier for personal injuries arising from defective appliances, the inspection should be as thorough as the dangers incident to the business make necessary.
    5. Same — Personal Injuries — Action—Evidence—Sufficiency.
    In an action against a carrier for personal injuries caused by a* collision between a passenger car and a freight car following it, evidence examined, and held, sufficient to go to the jury on the questions of defective brakes on the freight car, inspection thereof by the carrier, and negligent management of the freight car by the motorman.
    Error to Oakland; Smith, J.
    Submitted January 21 1908.
    (Docket No. 110.)
    Decided February 15, 1908.

      Case by Grace G. Rouston against the Detroit United Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Brennan, Donnelly & Van De Mark and James H. Lynch, for appellant.

      Andrew L. Moore, for appellee.
    Defendant operates an electric railway between Detroit and Pontiac, running through the village of Birmingham. Its passenger cars run on schedule ■ time. It also runs freight cars on no schedule time, but under the direction of the operator located at the village of Royal Oak. The freight cars follow the passenger cars. A rule of the company requires that—
    “When two or more cars follow each other in the same direction, they must keep at least one thousand feet apart, except when closing up at meeting points, when extreme caution and good judgment must be exercised to avoid collisions.”
    The platform of the freight car is above the platform of the street car. Upon approaching the village of Birmingham from Detroit a steep grade commences about 1,100 feet from the power house, located at the foot of the hill. At this power house the tanks of the cars are filled with compressed air to operate the air brakes, and the cars are inspected.
    On the night of November 33d, at 11 o’clock, the car known as the theater car left Detroit on its way to Pontiac. Plaintiff was a passenger. The car had reached the power house at Birmingham and was standing still, with its red lights shining from the rear. A freight car loaded with from 13 to 14 tons of freight followed this passenger car. The motorman of the freight car for some reason lost control going down the incline, and his car crashed into the rear of the passenger car with such force that it went nearly two-thirds of the way through the passenger car; the forward trucks of the freight car were carried back to the hind trucks, and the passenger car was forced ahead a distance of a pole and a half (the distance in feet does not appear). One passenger was killed, and the plaintiff with several others was seriously injured.
    Barry, the motorman of the freight car, was an experienced motorman, and had been a long time in the employ of the company. He had run this car for some time., He knew that the passenger car was ahead of him, and expected that it would be standing at the power house at the foot of the hill. He saw its red lights when more than a thousand feet away, and when near the top of the hill or incline he saw by an electric light passengers alighting at a cross-street, a short distance from the power house. The plaintiff made him her own witness. He testified that as he approached Maple street he threw off the current, applied the air brakes and slowed his car; that the brakes worked all right during the day, and he had made three trips between Detroit and Pontiac. As he was crossing Maple street he threw off the brakes and applied the current. He was then going about 15 miles an hour. He ran with the power on until he had reached Middle street. He then cut off his power. It is from Middle street that the descent begins. The descent becomes steeper towards the power house. He testified that he saw the red lights of the passenger car just as he crossed Middle street. His car was supplied with an air brake and a hand brake. He further testified that just after he had passed Middle street he applied the air to his brakes but they failed to respond. Finding that they did not respond, he threw them off and tried them again several times, till he saw that the air brakes would not work; he then seized the hand brake, turned it sufficiently to tighten it some, but decided that he could not stop the car in that way. He then turned to the controller and threw on the reverse. For some reason the reverse failed to work and the car went down the hill with increased velocity. .No further attempt was made upon his part to use the hand brakes, and the car crashed into the passenger car as above stated. He also applied sand to the wheels, but with no appreciable effect.
    Plaintiff bases her right .of action upon two grounds,— (1) defective brakes, and (2) the negligent management of the car by the motorman. The case was submitted to the jury upon both grounds, and the plaintiff recovered verdict and judgment.
    Plaintiff, under objection and exception, introduced the testimony of one Larr, who testified that at Pontiac on the morning before the accident he met Barry, the motorman, in the hotel; that the car had just arrived from Detroit and was late; that he asked Mr. Barry why he was late; that he replied, — “My car has not been working. She has been bucking, and has been for several days;” that witness then asked him why he took the car out, and that Barry replied: “Where you are working for somebody you have got to do as you are told.” Witness further testified: “I think he (Barry) said he reported it, or handed in a report that the car was not in working order, and had not been for some time.”
   Grant, O. J.

(after stating the facts). The testimony of the witness Larr was incompetent. It was bare hearsay. It occurred 18 hours before the accident and at a place five miles distaht. It was no part of the res gestae, under the repeated decisions of this court. Dompier v. Lewis, 131 Mich. 144; Hall v. Murdock, 119 Mich. 389; Ablard v. Railway Co., 104 Mich. 147; Gardner v. Railway Co., 99 Mich. 182. See, also, authorities cited in those cases.

One’s liability for negligence cannot be established by hearsay admissions of an employe who has no authority to make such admissions and they constitute no part of the res gestae. The' motorman was the plaintiff’s own witness, and could have been questioned by her counsel as to the condition of the brakes. Instead thereof, her counsel seek to fasten liability for negligence upon the de-fendant by showing that the motorman made a statement long prior to the accident, which, if true, would show negligence upon the part of the company if not upon the part of the motorman.

Counsel cite numerous cases in other jurisdictions. I have examined them all. Several of them held the testimony, to which objection was taken, admissible on the ground that it was a part of the res gestae. Others of the cases are based upon other principles, — such as the case of Denver, etc., Transit Co. v. Dwyer, 20 Colo. 132, where a conversation between the plaintiff and the engineer was held admissible to show that the engineer knew where the plaintiff was sitting when the accident occurred.

In Houston, etc., R. Co. v. Willie, 53 Tex. 318, the alleged negligence was in the employment of an incompetent engineer. The declaration of the engineer was held admissible to show want of care on the part of the company in selecting him as engineer, “if supported by other satisfactory evidence.”

So, where the defendant through his agent was charged with cutting the slash boards of a dam, and he and his agent were seen' going to the mill together, — it was held admissible to prove that the agent declared beforehand that he intended to do it. This was admissible to show that he did the act..

In discussing this question, in Dompier v. Lewis, supra, this court, through Brother Montgomery, said: “It [the testimony] became a matter of narration, and was not even narration of the incident, but of the cause which led to the accident,” and we held that the testimony was properly excluded.

The court instructed the jury that the defendant is not an insurer of the safety of its passengers; that it could only be held liable upon proof that the company or some of its employés had been guilty of negligence which was the proximate cause of the accident. He also instructed them that the collision established a prima, facie cáse of negligence against the company and cast the burden of proof upon the defendant to show that the appliances were in proper condition and were properly managed, and that the injury was the result of an unavoidable and unforeseen accident. Counsel for the defendant took no objection to this instruction, their position being that, upon all the evidence, no negligence was shown. On the contrary, in reply to a question by the court to defendant’s counsel upon the trial, asking him if that were a fair statement of the law, counsel replied, “ I am not raising any question about that.” Neither is any question raised about it in defendant’s brief. Counsel for plaintiff cites textbook authorities and decisions in support of the proposition. We are not called upon now to decide the important question. The court has frequently held that proof of an accident is not of itself evidence of negligence, unless accompanied by circumstances from which negligence may legitimately be inferred. It is sufficient to say that the concession of counsel settles the law for this trial, but it must not be understood that we Concede it to be the law. We express no opinion upon the question. Plaintiff, however, did not rest her case upon this proposition. She made the motorman of the car her own witness. It appears from his testimony that a day or two before the accident he ran past a station with his car, and the cause of his so doing appeared to be some defect with the brake, and he took his switch bar, went out and fixed it. This question was asked:

Well, if it had been working all right on that occasion, do you know of any reason why you should have gotten off your car and taken a switch bar and gone back to inspect it ?

A. No, sir. * * *

Q. Were the brakes on this car in the habit of getting so you had to tighten Idem up or loosen them up with a switch bar?

“ A. Brakes will wear out.”

Common carriers of passengers, especially where, as in this case, they are running freight cars only a short distance after passenger cars, and up and down steep inclines, are required to exercise a very high degree of care in seeing that their appliances are in proper condition and are properly managed. West Chicago St.-R. Co. v. Martin, 47 Ill. App. 610; 3 Thompson on Negligence, § 3477; Hamilton v. Railway Co., 17 Mont. 334, 342; 1 Current Law, pp. 459, 460; 6 Cyc. p. 591; 5 Am. & Eng. Enc. Law (2d Ed.), p. 558.

Upon the first indication of wearing out or of defects of any character, it is their duty to inspect them and see that they are in good condition. In view of this duty and of the testimony of the motorman, we are not prepared to hold, as a matter of law, that there was no evidence of defective brakes to submit to the jury. Defendant introduced evidence showing an inspection of this car before and on the day of the accident, but the record fails to show that it was the usual inspection or one sufficient to determine whether the brake machinery and brakes were in good condition. The inspector testified:

“As applied to the brakes, the inspection made would be simply looking at them. I did not tap the bars and different parts with a hammer to see if there was anything wrong with them. I did not get into the car and start it to test them or anything of that kind.”

Failure to inspect is not alleged as a ground of negligence, but the testimony was offered by defendant as a ground of defense, and properly so. When such inspection is relied upon as a defense, it should be as thorough as the dangers incident to the business make necessary.

We held in Dolph v. Railway Co., 149 Mich. 278:

“When the railroad has established by reputable and uncontroverted evidence that its appliances were such as good railroading requires, that they were in the condition required by the law, and properly managed, we think the question is one of law for the determination of the court, and not one of fact to be decided by the jury.”

We cannot hold that the evidence brings the defendant within the rule there stated. Neither are we prepared to say that there was no negligence in the management of the car by the motorman. The rules of the company required the motorman to approach stations with great care and caution. The motorman expected that the passenger car preceding him would be at the station; in fact he knew it was there. He saw its lights as he approached within about a thousand feet. The motorman started down this incline at the rate of 15 miles an hour with this heavy car, and shut off his current only as he commenced to go down the incline. We cannot say as a matter of law that it was proper management to start down a steep incline with this load at the rate of 15 miles an hour, knowing that there is a car loaded with passengers at the foot of the incline, and rely upon air brakes to properly check the speed of the car. Wynne v. Railroad Co., 35 N. Y. Supp. 1034. Neither can we hold that it was proper management for the motorman to make so many attempts as he .testified he did with the air brakes before reversing the current, nor that it was not negligence for him when he found that the reverse did not work, to fail to try the hand brake. All .those questions were left to the jury, with the following instruction, as requested by the defendant: - .

“ The law does not require that the motorman should have done precisely that which at this time, I mean now, after full investigation and mature deliberation, the jury may think that he should have done, but if he exercised that care and judgment, and did that in the handling of his car in his efforts to prevent the collision in question which a prudent, careful motorman would have done .under the same circumstances, then he was not negligent even though the collision ensued.”

Judgment reversed, and new trial ordered.

Montgomery, Ostrander, Hooker, and Carpenter, JJ., concurred.


author: Montgomery, J.

text:
    MARSHALL v. UNITED STATES ACCIDENT ASS’N.
    Saving Questions nor Review — Finding on Facts — Necessity.
    Whether plaintiff is estopped from maintaining his suit for services rendered by reason of having received payment upon a bill presented — which payment was made by defendant as payment in full — will not be considered where it does not appear that the question was raised in the court below, no finding of fact was requested upon the point, and no amendment to the findings of fact as signed was proposed by appellant.
    Error to Muskegon; Sessions, J.
    Submitted January 21, 1908.
    (Docket No. 105.)
    Decided February 15, 1908.
    Assumpsit by Frank B. Marshall against the United States Accident Association for services rendered. There was judgment for plaintiff, and defendant bripgs error.
    Affirmed.

      Stephen H. Clink, for appellant.

      Cross, Lovelace & Ross, for appellee.
   Montgomery, J.

This action was brought by the plaintiff, a practicing physician of Muskegon, to recover against the defendant for services rendered to its members under a contract under which plaintiff agreed to accept as compensation for such services “ at the rate of 10 per centum (10%) per month for each member enrolled in the Medical Aid Department in the said city of Muskegon who is in good standing and is entitled to services at the end of each quarter, and for surgical cases the usual scale as adopted by the Physicians’ Association of Muskegon county.”

On the trial of this case, the only question was whether treatment for an abscess on the leg or thigh of a member, which was treated, according to the testimony of the physicians, surgically, was treatment for which plaintiff was entitled to receive the usual compensation fixed by the Physicians’ Association of Muskegon county, or whether it should be considered medical treatment and compensated as such.

The testimony showed, and the circuit judge so found, that the treatment given to this case was .surgical treatment, within the proper meaning of that term. The defendant then sought to show that at a time prior to the execution of the contract, in conversation with an agent of the defendant company, plaintiff agreed that the treatment of such ailments as an abscess or a carbuncle was contemplated under the term “ medical” and would not be considered surgical treatment.

Under objection and exception this testimony was taken, but at the conclusion of the case the circuit judge found that there was no agreement to change the terms of the contract as actually written. He based this upon the fact that Dr. Marshall denied the claim made on behalf of the defendant. He also found as a matter of law that the testimony offered for the purpose of contradicting the terms. of this written contract was incompetent. If the circuit judge was justified in reaching the conclusion, from the testimony, that no satisfactory agreement, such as that claimed on behalf of the defendant, was made orally, the legal question became wholly unimportant.

It is argued in this court that there was no testimony to support the finding of the circuit judge. It is hardly' necessary to set out at length the testimony given by Dr. Marshall, but it is sufficient to say that it does very clearly dispute the testimony offered on behalf of the defendant, and affords an ample basis for the finding of the circuit judge.

It is further claimed that plaintiff, having received payment upon a bill presented — which payment was made by the defendant as payment in full — is estopped from now claiming compensation for this special service. It does not appear that any such question was raised in the court below, no finding of fact was requested upon the point, and no amendment to the findings of fact as signed was proposed by appellant. Furthermore, the testimony does not show, as we read it, that there has been a settlement in payment of the claim of plaintiff since the surgical service was performed for the member involved in this case.

The judgment will be affirmed, with costs.

Grant, C. J., and Ostrander, Hooker, and Carpenter, JJ., concurred.


text:
    KROHN v. JOSEPH N. SMITH & CO.
    1. Master and Servant — Defective Appliances — Care Required.
    It cannot be said as a matter of law that an employer who continues in use a belt, so loose that it is likely to leave the pulley at any time, running in a position where on leaving the pulley it is likely to do injury to an employé, is guilty of no negligence.
    2. Same — Assumption of Risk — Promise to Repair.
    Where an employé made a second complaint within a few hours regarding the loose condition of the belt of the machine on which he was working, and was promised both times that the belt would be repaired, and he was injured within an hour after the second promise, it cannot be said as a matter of law that he continued work an unreasonable time after the promise, thereby assuming the risk.
    3. Same — Contributory Negligence.
    The employé was not so reckless in continuing to work at the machine as to constitute contributory negligence as a matter of law.

      Error to Wayne; Donovan, J.
    Submitted January 22, 1908.
    (Docket No. 121.)
    Decided February 15, 1908.
    Case by Herman Krohn against Joseph N. Smith & Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Samuel E. Jones, for appellant.

      Bowen, Douglas, Whiting & Murfin, for appellee.
   Montgomery, J.

This action was brought to recover for personal injuries sustained by plaintiff while in defendant’s employ. The plaintiff was employed as a polisher and buffer, and on the 6th of July, 1905, was engaged in buffing certain metal goods, and in this employment was operating a buffing' machine, the power to operate which was conveyed by a leather belt. On the day in question the belt became loose, flabby, and out of order, and the plaintiff, about 10 o’clock, notified the defendant’s superintendent, who had charge of the manufacturing for defendant corporation, that the machine and its belt connection were out of order, on account of the loose, flabby, and dangerous condition of the belt. The superintendent of defendant corporation agreed to repair the belt during the noon hour, but failed to do it. At about 2 o’clock the plaintiff again told the superintendent that it was impossible to work, or unsafe to work, in the condition the belt was in. The superintendent told plaintiff that he would repair the belt in a little while, and ordered the plaintiff back to work. With this assurance, and under this order, the plaintiff started again to work, and a,bout 3 o’clock the belt caught his right hand, destroying the third finger and crushing the second and fourth fingers.

The circuit judge, directed a verdict for the defendant, evidently on two grounds: First, that the employer is not bound to make his machinery or premises perfectly safe, or to have the most approved appliances, the presumption being that the circuit judge was of the opinion that it was not negligence to run machinery with a loose and flabby belt. The second ground appears to have been that the plaintiff assumed the risk.

We think it cannot be said as a matter of law that an employer who continues in use a belt so loose that it is likely to leave the pulley at any time, running in a position where, on leaving the pulley, it is likely to do injury to an employé, is guilty of no negligence. This would at least be a question for the jury.

As to the second question, that the plaintiff assumed the risk, this would be a sufficient answer to plaintiff’s claim except for the fact that under the statement of the plaintiff’s counsel, — and the case was determined on such statement, — the plaintiff continued in the employment upon the assurance of the superintendent that he would repair the defect and upon his orders for plaintiff to continue until that was done.

It is claimed on behalf of the defendant that the plaintiff worked at this machine such an unreasonable time after discovering this defect and after the promise of the superintendent to repair it, that he was no longer excused and should be held to have assumed the risk. We think it very clear that this could not be said as a matter of law. Only one hour before the injury occurred, according to the opening statement of counsel, the plaintiff was assured that the belt would be fixed as soon as the superintendent could do it, and he was directed to continue at work.

It was held in Mann v. Railway Co., 124 Mich. 641, that it was not unreasonable for an employé to continue in the use of defective machinery, under the promise of repair, for such time as there might be reasonable expectation that the promise for repair would be kept. See, also, Eligh v. Goldie, 143 Mich. 596. In this case but one hour elapsed after the last promise, and but three hours of actual work after the first request for repairs.

The further contention is made that the plaintiff, in view of his knowledge, was reckless. The precise circumstances under which this accident occurred are not made very clear by the statement. It is stated that the-injury, occurred without fault on the part of the plaintiff, and as the circuit judge withdrew the case from the jury upon the grounds herein stated, it will not do to say that the charge of recklessness by defendant can be predicated upon any other fact than the continuance by plaintiff in. employment with the knowledge of the conditions which, existed. "We think it cannot be said as a matter of law that the plaintiff- was reckless in continuing in this employment within the cases cited above.

The judgment of the circuit court will be reversed, and. a new trial ordered.

Grant, C. J., and Ostrander, Hooker, and Carpenter, JJ;, concurred.


text:
    GENROW v. MODERN WOODMEN OF AMERICA.
    1. Appeal and Error — Assignments of Error — Sufficiency.
    Assignments of error are sufficient when they fairly indicate-the ground of error, though it is not precisely stated.
    2. Life Insurance — Action on Policy — False Statements in Application — Waiver.
    In an aetiqn on a life-insurance policy claimed to have been, void on the ground of false statements in the application, evidence examined, and held, that a claimed waiver because of truthful statements to the examining physician was not supported, it appearing that assured stated he did not know whether he had been rejected by any other company when in fact he did know.

      Error to Alpena; Emerick, J.
    Submitted January 23, 1908.
    (Docket No. 141.)
    Decided February 15, 1908.
    Assumpsit by Ruth Genrow against the Modern Woodmen of America on a policy of insurance. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Joseph Cavanagh, for appellant.

      Truman Plantz and James Francis, for appellee.
   Ostrander, J.

In a suit by the beneficiary named in a certificate issued by defendant, it appeared that the application, which was made a part of the contract, contained questions, answers to which were warranted to be true, concluding with the following statement, signed by the applicant:

“I have verified each of the foregoing answers and statements from 1 to 36 inclusive, adopt them as my own, whether written by me or not, and declare and warrant that they are full, complete and literally true, and I agree that the exact literal truth of each shall be a condition precedent to any binding contract issued upon the faith of the foregoing answers. * * * If any answer or statement in this application is not literally true * * * my benefit certificate shall be void.”

A copy of this application was attached to the certificate when it was issued. The trial judge directed a verdict for defendant, and it is contended in this court that the case should have been submitted to the jury. Counsel for appellee make the point that errors are not specifically assigned. The assignments are not, however, subject to the criticism made in Johnson v. Ballou, 25 Mich. 460, and in Jackson Bridge & Iron Co. v. Insurance Co., 122 Mich. 433, because the ground of error is fairly indicated if not precisely stated.

To the question, “ Have you ever been rejected by any life-insurance company or companies, mutual benefit association or associations, or fraternal beneficiary society or societies?” the answer in the application was “No.” This was ah untruthful answer, and it is conceded that unless defendant is estopped to rely upon it the certificate is void. As was stated by .the trial judge in his remarks to the jury:

“ The plaintiff claims, however, to meet that defense by showing that when he made his application, that he truly stated the real facts, so far as they were within his knowledge, to Dr. Bertram, at that time the commissioned camp physician of the camp of the Modern Woodmen to which Mr. Genrow was afterwards admitted.”

The testimony fails to show that he truthfully stated to the physician, who wrote the answers, the real facts as he knew them. What he stated was, that he did not know whéther he had been rejected by the Maccabees or not. Even this was not written as his answer. It is undisputed, however, that upon his earlier making an application to the Union Life Guards, a fraternal beneficiary society, he stated, in answer to a similar question, that he had been rejected and by the Maccabees. The trial judge was clearly right in his statements and conclusion, expressed by him as follows:

“ Now, when this young man was asked the question of whether he had been rejected by any other society, he did not require any assistance to answer that question. He knew he had been rejected by the Maccabees, and the physician’s testimony shows it. He says that Mr. Gen-row told him he didn’t know why they did not take him into the Maccabees. And four years before that, when he tried to be admitted into the Union Life Guards, he stated explicitly that he had been rejected by the Maccabees. He knew that; he did not require the assistance of a physician to tell him that, nor he didn’t require the assistance of anybody to write down the answer, and he wrote the answer, ‘No,’which was false in fact at the time, and that avoids this policy.”

See Finch v. Modern Woodmen of America, 113 Mich. 646.

The judgment is affirmed.

Grant, O. J., and Montgomery, Hooker, and Carpenter, JJ.< concurred.