text:
    ADAMS & FORD CO. v. CULLEN.
    Justices oe the Peace — Adjournments — Showing Required — Jurisdiction — Statutes.
    A justice of the peace, who adjourns an action against the objection of one party without a sworn showing of cause, loses jurisdiction. 1 Comp. Laws, § 791.
    Error to Ogemaw; Sharpe, J.
    Submitted January 13, 1910.
    (Docket No. 68.)
    Decided February 3, 1910.

      Assumpsit in justice’s court by the Adams & Ford Company against Michael J. Cullen for goods sold and delivered. There was judgment for plaintiff, and defendant appealed to the circuit court by writ of certiorari. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      William T. Yeo, for appellant.

      Bennett & Moore, for appellee.
   Hooker, J.

Plaintiff, a nonresident corporation, sued defendant in assumpsit in justice’s court. Defendant appeared specially upon the return day, and moved to dismiss the cause for the neglect of plaintiff to file security for costs. This motion was overruled, whereupon plaintiff’s counsel offered to become security. The defendant objected to this, upon the sole ground that the statute prohibited such action, and the justice so held. Thereupon, without a showing on oath, plaintiff moved an adjournment of the cause for the purpose of obtaining a surety, and this motion was granted against defendant’s objection. On such adjourned day defendant did not appear,, and plaintiff took judgment. The judgment was affirmed on certiorari by the circuit court, and it is before this court by writ of error.

We are constrained to reverse the judgment upon the ground that the justice lost jurisdiction by his adjournment of the cause without a showing on oath that it was necessary. A justice’s power to adjourn a cause against objection rests upon the statute, which requires a showing on oath. See Stadler v. Moors, 9 Mich. 267; Warner v. Comstock, 55 Mich. 618 (22 N. W. 64). It has been held that an unauthorized adjournment ousts the justice of jurisdiction. Stadler v. Moors, supra; Ruberts v. Hathaway, 42 Mich. 502 (4 N. W. 307); Segar v. Lumber Co., 81 Mich. 344 (45 N. W. 982).

Judgment reversed, with costs of all courts.

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


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    DULL v. ROYAL INSURANCE CO.

    1. Insurance — Tornado Insurance — Title.
    A policy of insurance against damage by tornado, issued in the name of an owner, who at the time of the issuance was under contract to convey the property to a corporation, of which he was a stockholder, and who subsequently conveyed the same without the consent of the insurer, is void under a clause in the policy by which the policy is declared invalid if the insured was not the sole and unconditional owner, and if any conveyance should be made without the consent of the company.
    2. Same — Principal and Agent — Adverse Interest of Agent.
    An agent cannot represent and bind two parties having opposing interests in the same transaction, nor can he be at the same time a party and an agent of the opposite party, unless all persons in interest know of the dual relation and assent to it.
    3. Same — Good Faith of Agent — Interest in Transaction.
    If an agent for an insurance company is personally interested in the property insured, no policy issued by him thereon, or act done by him in connection therewith, binds the insurance company unless it knows of and assents to the situation.
    4. Same — Waiver of Defenses.
    The defense of forfeiture for a change of title is not waived by omitting to claim a forfeiture in the first letter written by the insurance company to the insured, which stated that the-matter would be referred to its agent, where a subsequent letter expressly claimed the right to rely on all defenses.
    Error to Wayne; Rohnert, J.
    Submitted January 14, 1910.
    (Docket No. 73.)
    Decided February 3, 1910.
    Assumpsit by John H. Dull, trustee, against the Royal Insurance Company on a policy of insurance. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Arthur D. Prosser, for appellant.

      Lucking, Emmons & Helfman and Charles B. Obermeyer, for appellee.
    Plaintiff sues in assumpsit to recover on a tornado insurance policy, issued by defendant to one Pfuntner, June 15, 1907. Defendant pleaded the general issue, and set up as a special defense that the title to the property insured had been changed after the date of the policy, and before the loss, without the consent of defendant indorsed in writing on said policy, thus avoiding the policy according to its terms. The policy contract contained the following provision:
    “ In case any change shall take place in the title or possession of the property herein described (except by succession) by reason of the death of the assured whether by legal process or judicial decree, or voluntary transfer or conveyance; or if the assured shall not be the sole and unconditional owner in fee of said property; or if this policy shall be assigned, without consent of this company indorsed in writing hereon, then in each and every one of the above cases this policy shall immediately become null and void. * * *
    “ This policy is made and accepted subject to the foregoing conditions and stipulations, together with such other provisions, agreements or conditions as may be indorsed hereon or added hereto, and no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions, no officer, agent or representative shall have such power or be deemed or held to have waived such provision or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the assured unless so written or attached hereto.”
    It appears that Pfuntner owned certain lands in Ma-comb county; that in January, 1907, Pfuntner, Dull, Ebert, Kearney, and Beiderman, formed a corporation known as the Rochester Sandstone Brick Company. Beiderman was a stockholder, member of the board of directors, and vice president of this company from the time of its formation to the time of the trial in the court below. Pfuntner, in the same month, entered into a contract with the company to erect a brick plant on his land, and convey the same to the company, for a certain sum of money in cash and a certain amount of the capital stock of the company. He proceeded to erect the plant, and in June, 1907, insured it in his own name, against loss by fire or tornado. This insurance was issued to him by the defendant upon the solicitation of Beiderman. The insurance was paid for in November, 1907, and February, 1908, by Dull to Beiderman, the checks being indorsed by Beiderman to Detroit Insurance Agency. On February 3, 1908, Pfuntner deeded the property covered by the policy in question to John H. Dull, trustee, plaintiff herein, Dull acting as trustee for the Rochester Sandstone Brick Company. No notice of this transfer was given to defendant. The loss occurred April 25, 1908. No testimony was introduced tending to show that Beiderman was the agent of defendant company, nor was it shown that Beiderman knew of the transfer of the title from Pfuntner to Dull, trustee. The policy was countersigned by the Detroit Insurance Agency, by George J. Gnau. Neither Beiderman, nor any member of the Detroit Insurance Agency, was sworn as a witness.' A verdict was directed for defendant.

       Rehearing pending.

   Brooke, J.

(after stating the facts). We are of opinion that the policy in question must be held to have been void at the time of its issuance, by reason of the fact that Pfuntner was not at that time “the sole and unconditional owner in fee of said property,” or became void upon the transfer of title to plaintiff, without consent of defendant, unless it can be said that Beiderman knew of the condition of the title at the time the insurance was written, that he knew of the transfer from Pfuntner to Dull, trustee, and that his knowledge was binding upon defendant. Jaskulski v. Insurance Co., 131 Mich. 603 (92 N. W. 98), and cases cited; Cronin v. Fire Ass’n, 123 Mich. 277 (82 N. W. 45), and cases cited; A. M. Todd Co. v. Insurance Co., 137 Mich. 188 (100 N. W. 442).

It is urged for the plaintiff that, inasmuch as Beiderman was a stockholder in and an officer of the brick company, not only at the time the contract with Pfuntner was made, but also at the time Pfuntner deeded to Dull, as trustee, for the brick company, he must be held to have had knowledge of the condition of the title, and that the defendantis bound by his knowledge so gained. We cannot, agree with this view. The record fails to show in what capacity Beiderman solicited the insurance, whether as agent, or broker, or in his capacity as an officer of the company, which at that time held a contract interest in the property, and is silent as to his connection with the defendant, except that the premium passed through his hands, on its way into the hands of the Detroit agency of defendant. Even if it were clearly proven that in soliciting the insurance he acted as agent for defendant, we think the defendant company would not be bound by uncommunicated facts, coming to his knowledge in his capacity as an officer or stockholder of the brick company. An agent cannot bind two parties having opposing interests in the same transaction, nor can he be at the same time a party and. the agent of the opposite party, unless, both parties know of the dual relation and assent to it. Mechem on Agency, §§ 66-68.

There is no evidence that the defendant knew of Beiderman’s connection with the brick company, or with Pfuntner, or even knew of his existence. It seems to be settled law that, if an agent is personally interested in the property insured, no policy issued by him thereon, or act done by him in connection therewith, binds the insurance company, unless known and assented to by it. 1 May. on Insurance (4th Ed.), § 125; 3 Cooley’s Briefs on Insurance, p. 2529; 22 Cyc. p. 1435; Zimmerman v. Insurance Co., 110 Mich. 399 (68 N. W. 215, 33 L. R. A. 698); Spare v. Insurance Co., 19 Fed. 14; Ritt v. Insurance Co., 41 Barb. (N. Y.) 353; Arispe Mercantile Co. v. Insurance Co., 133 Iowa, 272 (110 N. W. 593, 9 L. R. A. [N. S.] 1084, and authorities collected in note); Greenwood Ice & Coal Co. v. Insurance Co., 72 Miss. 46 (17 South. 83); Wildberger v. Insurance Co., 72 Miss. 338 (17 South. 282, 28 L. R. A. 220, 48 Am. St. Rep. 558); New York Central Ins. Co. v. National Protection Ins. Co., 14 N. Y. 85; Rockford Ins. Co. v. Winfield, 57 Kan. 576 (47 Pac. 511); Glens Falls Ins. Co. v. Hopkins, 16 Ill. App. 220; British America Assurance Co. v. Cooper, 6 Colo. App. 25 (40 Pac. 147). Particular attention is directed to the case of Arispe Mercantile Co. v. Insurance Co., supra, where the facts are nearly identical with those in the case at bar and where the opinion is exhaustive and supported by many authorities.

It is claimed by plaintiff that defendant, after receiving notice of the loss, so conducted itself that it must be held to have waived the forfeiture.' This claim is based upon the following correspondence: -

“Detroit, Mich., May 1, 1908.
“Law Bros., Mgrs.,
“ Royal Ins. Co.,
“Royal Ins. Bldg.,
“Chicago, Ill.,
Gentlemen: Referring to tornado policy No. 10742339 in favor of Charles H. Pfuntner, Detroit, Mich. Through an unfortunate and uncalled for remark made by Mr. Pfuntner who dropped into the office during my conference with Mr. Duffey, negotiations for settlement of loss were abruptly terminated and I was referred to your office for adjustment, Mr. Duffey apparently being very much angered and would have no further hand in the matter, a condition I very much regretted, when it was found he would not continue interview to a satisfactory conclusion. The situation is just this: Mr. Pfuntner and I engaged in the proposition of a sand lime brick plant near Rochester, Mich., a year ago and, while it was a stock company, all the property consisting of a farm of 150 acres, buildings, etc., were in his name and were to be turned over to the company when he had fulfilled certain requirements which he failed to do, and I purchased Mr. Pfuntner’s interest in the property Feb. 1, ’08, paying him what he actually put into the deal, part cash and the balance notes coming due 3 and 6 months from date of contract, Feb. 1, ’08, for him to sell and I to buy; at the fulfillment of this contract he is to turn over all his rights, title and interest, etc., to me. In the meantime he deeded the property to me turning over to me all insurance policies but still retaining a few shares of stock to keep the organization intact until such time as I made my final settlement with him when he would under the contract be obliged to sever his connection with the brick company. Now then, during this time a technical violation of the provisions of the above named policy took place, that is to say, I failed to present the matter to your company for a transfer of the policy from Mr. Pfuntner to me, an oversight for which I may be responsible personally, notwithstanding the fact it was known to the representative of the Royal Ins. Co. that change of ownership of the property had taken place a month or six weeks prior to the loss by windstorm which occurred between 11 and 12 o’clock a. m. Saturday, April the 25th, ’08. The question of the transfer of the policy was not referred to and it did not occur to me till the accident to the building happened when the thought came to me that we had a tornado insurance policy on the property and on looking it up found the stipulations in the same had not been carried out. The adjustment was taken up with your representatives here, and was cut off, as said before, very suddenly through no fault of mine at all, but much to my discomfort and regret. Will you kindly take the case up with Mr. Duffey and have him continue the investigation and settlement of my claim. Please understand I am not criticising Mr. Duffey’s attitude in the way he took offense at Mr. Pfuntner’s remark as any person with a spark of manhood in him would no doubt have resented the insult. But bear in mind as you go along that I am not responsible for it, and do not under any circumstances approve or resort to any such tactics.
“ Yours truly,
“ J. H. Dull.”
“ Chicago, 5th May, 1908.
“ Mr. J. H. Dull,
“ President and Manager, The Rochester Sandstone Brick Co.,
“ Detroit, Mich.
Dear Sir: We are in receipt of your favor of the 1st instant, having reference to a conversation had with our State agent, Mr. B. T. Duffey, and have carefully noted contents. We will take up the matter with that gentleman. We are, dear sir,
“Yours very truly,
“Law Bros., Managers.”
“Detroit, Mich., May 9, 1908.
“Messrs. Law Bros., Mgrs.,
“ Royal Ins. Bldg.,
“ Chicago, Ill;
“ Gentlemen: Referring to yours of the 5th inst., Mr. Duffey has been absent since receipt of yours till today, when I fully expected to have him meet me, but he declined to do so pleading other business would prevent. I have power of attorney from Mr. Pfuntner, the assured, to settle this claim and to receive full benefits of policy No. 10742339. The damage has been carefully estimated by the parties who erected the building, and furnished the material, I hereby give you this formal notice that the damage amounts to $1,043.92 an excess of $43.92 over and above the amount of the policy. I trust you will promptly adjust my claim. An early reply will greatly oblige,
“Yours truly,
“ J. H. Dull.”
“ Chicago, May 15, 1908.
“Mr. John H. Dull,
“ Majestic Building,
“Detroit, Mich.
Dear Sir: We beg to own your letter of the 9th inst. with reference to policy 10742339 of this company issued at its Detroit, Mich, agency, to Charles H. Pfuntner, and in reply thereto have to say that if in the opinion of yourself or your attorney, a valid claim exists against this company by reason of said policy contract, you are referred to the contract itself for instructions as to such action as you may see fit to take.
“You are hereby notified that this company has not waived, does not waive, and does not intend to waive any of its rights under' said contract, nor any of the terms or conditions thereof. We are, dear sir,
“Yours very truly,
“L. C. Stark, Loss Supt.”

Plaintiff urges that, because defendant did not in its first letter claim a forfeiture, it therefore waived its right to insist on it later, citing Walter v. Insurance Co., 120 Mich. 35 (78 N. W. 1011); Burnham v. Casualty Co., 117 Mich. 147 (75 N. W. 445); Rauch v. Insurance Co., 131 Mich. 281 (91 N. W. 160); Granger v. Assurance Co., 119 Mich. 177 (77 N. W. 693); Cleaver v. Insurance Co., 71 Mich. 414 (39 N. W. 571, 15 Am. St. Rep. 275); Marthinson v. Insurance Co., 64 Mich. 372 (31 N. W. 291). An examination of these cases shows that in each one of them the defendant company did some act which induced the plaintiff to go to trouble or expense, without disclosing the fact that it intended to claim a forfeiture. The letters, written by defendant herein, cannot be construed as an invitation to plaintiff to act or refrain from acting to his detriment; on the contrary, we think they fully advise plaintiff that defendant intended to rely upon its legal rights.

The other errors assigned have been considered, but require no discussion.

The judgment is affirmed.

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


author: Ostrander, J.

text:
    GRAND RAPIDS BREWING CO. v. PETTIS.
    1. Fraudulent Conveyances — Bill of Sale as Mortgage.
    In an action of replevin, a plaintiff corporation, which claims title to a stock of goods under a bill of sale executed by one of its customers, a hotel keeper, in the business of selling intoxicating liquors, and which is shown by evidence in the case to have taken the conveyance as security for a debt, leaving the property in the possession of the grantor, without recording its evidence of title in the office of the township clerk, is properly denied the right to recover the goods as against an officer who levied thereon in behalf of a judgment creditor of the hotel keeper, since the evidence tends to support the contention of defendant that the property was transferred in fraud of the creditors, and the transaction was presumptively fraudulent under 3 Comp. Laws, §§ 9520, 9521.

      H. Same — Trial—Conduct of Court — Appeal and Error.
    The action of the trial judge in asking of a witness who advised the landlord as to his exemptions and who had also acted as attorney for plaintiff, as to his theory of the right to exemptions, was not prejudicial, in view of the charge which instructed the jury that the acts of such witness were not binding on the plaintiff except to show the acts done by them in conjunction.
    3. Same — Executions—Right of Owner.
    The plaintiff’s right to a judgment, in an action of replevin involving its title to the property, could not be affected by the defendant’s omission to prove that the costs for which the execution was issued were properly taxed.
    4. Trial — Conduct of Counsel — Cross-Examination.
    In cases which involve the good faith of a party, the extent of cross-examination bearing on the question is discretionary.
    5. Same — Cross-Examination—Collateral Matters.
    Inquiries as to immaterial matters, which are answered favorably to the appellant and not objected to at the time or presented on motion for a new trial, do not constitute reversible error.
    Error to Kent; Perkins, J.
    Submitted January 18, 1910.
    (Docket No. 84.)
    Decided February 3, 1910.

      Replevin by the Grand Rapids Brewing Company against Edwin Pettis. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed.

      Maher & Barnard, for appellant.

      Fred P. Gteib, for appellee.
   Ostrander, J.

The defendant is under-sheriff of Kent county. He executed a writ of fieri facias issued to collect a judgment for costs in favor of Lena Liebler and against Isaac W. Carrel by seizing certain chattels found in the possession of said Carrel and used by him in conducting his business of keeping a hotel and a bar therein for the sale of liquors. The household furniture of Carrel was not seized. The seizure was made on Saturday.' On the following Monday the judgment debtor claimed the right to some of the chattels as exempt from execution and defendant set aside, upon his demand, liquors and cigars of the value of $250, and also furniture used in conducting the hotel, not the private household furniture of Carrel, of the same value. Plaintiff, claiming to own the chattels used by the judgment debtor in conducting the hotel, took those not set out as exempt by a writ of replevin. The replevin suit coming on to be tried, a verdict and judgment for the value of the chattels taken in the replevin suit was rendered for defendant. Plaintiff moved for a new trial, which was denied.

Testimony on the part of plaintiff tended to prove that on April 27, 1908, Isaac W. Carrel occupied and had occupied from May 1, 1906, a certain hotel at Caledonia, Kent county, in which he kept a bar or saloon. The hotel was the property of plaintiff, and Carrel was its tenant. Carrel owned the hotel furnishings and the stock of liquors and cigars. Notice to quit or pay the rent, which was $1,200 a year, had been given to Carrel, March 9, 1908. There was a conference at which the sum due and owing from Carrel to plaintiff was agreed to be $1,500. Four instruments, dated April 27, 1908, were executed. By the terms of one of them Carrel and his wife sold and transferred to plaintiff the hotel furnishings and utensils for a stated consideration of $1,500. They also conveyed to plaintiff by warranty deed certain real estate at Dorr in Allegan county. The consideration stated in the deed was $1,500. A lease of the hotel for one year from May 1, 1908, for a rental of $55 per month, was executed by the plaintiff and by Carrel. An agreement was made, reduced to writing and executed by plaintiff and by Carrel and his wife, by the terms of which plaintiff agreed to sell to Carrel the hotel furnishings and utensils described in the bill of sale for the sum of $1,500, to be paid at the rate of $30 per month, in advance, on the first of each month, beginning May 1, 1908, and continuing until the said principal sum and interest at the rate of 6 per cent, per annum, payable annually, had been paid. The agreement concludes as follows:

“ Said parties of the first part hereby agree to keep the said property insured for the benefit of the said party of the second part in the sum of fifteen hundred dollars; the loss upon which said insurance, if any, shall be payable to the said Grand Rapids Brewing Company. It is further agreed and understood that said party of the first part shall have the privilege of paying the sum of more than thirty dollars per month to be credited to them upon this contract; and it is further agreed that upon the fulfillment of this contract and payment of the sum of fifteen hundred dollars, together with interest thereon, the said Grand Rapids Brewing- Company, the said party of the second part, will also deed and convey over to the said party of the first part certain premises in the village of Dorr, county of Allegan, which have been heretofore deeded by the said parties of the first part to the said Grand Rapids Brewing Company.”

It appeared from plaintiff’s books of account, and from the testimony of plaintiff’s witnesses, that prior to January, 1904, Carrel and his brother had carried on a hotel business at Dorr, in Allegan county, upon premises owned by them in common; that plaintiff advanced to Carrel to purchase the interest and property of his brother at Dorr the sum of $3,000. The hotel property, then estimated to be worth $6,000, was deeded to plaintiff, which gave to Carrel a contract agreeing to sell the property to him, and he agreeing to buy the same for $3,700. The $700 represented'a joint note of Carrel and his brother which Carrel agreed to pay, and which was surrendered. An account was opened by plaintiff with the Dorr property. The hotel was destroyed by fire in 1905, and was rebuilt; plaintiff contributing some money. Plaintiff received from insurance on the hotel the sum of $3,090 and from Carrel $335 and advanced him $356.43. The property was later sold to one Sturm for $3,000, which, with the insurance moneys, was credited to Carrel in the account. After the sale of the Dorr property, Carrel leased the hotel at Caledonia, Kent county, and purchased the furnishings and stock at the hotel and in the bar, the furnishings for $1,600 and the stock and supplies for $1,350, a total of $2,950. This sum was paid by the plaintiff and charged against Carrel in the Dorr property account. It further appeared from the testimony given by plaintiff’s witnesses that in August, 1907, Carrel was sued by Lena Liebler for damages resulting from the alleged illegal sale of liquors to her infant son, and that in January, 1908, a suit of similar nature was begun against Carrel by one Herp; the charge being an illegal sale of liquor to Herp’s daughters. The trial of the Liebler Case resulted in January, 1908, in a verdict and judgment of $900 for plaintiff. A new trial was granted, and upon the second trial, in April, 1908, there was a judgment for defendant. This judgment was reversed, and a new trial ordered. 155 Mich. 196 (118 N. W. 975). Costs upon reversal were awarded to the appellant, and it was a writ issued out of this court, directed to the sheriff of the county of Kent, commanding him to make the sum of $222.40 out of the goods and chattels of Isaac W. Carrel, which the defendant in the case at bar was executing when he was interrupted by the service of the writ of replevin.

A demurrer'in the Herp Case was overruled April 29, 1908. Herp has since recovered judgment against Carrel and, we assume, the sureties upon his liquor bond. Carrel had been and was a customer of plaintiff, which carried on its books an account with him for keg beer and one for bottled beer. There was testimony, all of it from plaintiff’s witnesses, tending to prove that plaintiff since some time in 1904 had an intimate acquaintance with the affairs of Carrel, had on one occasion deeded real estate at Caledonia to a person to enable him to become a surety for Carrel on his liquor bond, the surety later reconveying the real estate to plaintiff. No money was paid for either conveyance. It had indemnified at least one other surety.

For defendant, testimony was produced tending to prove that the instrument conveying to plaintiff the hotel chattels was not recorded or filed with the township clerk; that Carrel in May, 1908, advised the supervisor that his assessment ought to be as it had been the year before ($2,000); that he had no other personal property in the township except that contained in the hotel; that he was assessed in 1908 for personal- property and paid the taxes thereon for that year. He proved the judgment of the .Supreme Court, but did not prove the fact of the taxation of costs other than by the recital in the writ of fieri facias.

It is a contention of the appellant that the undisputed evidence shows a state of facts which entitled plaintiff to have a verdict directed in its favor. The contention cannot be sustained. There was testimony which tended to prove that both the plaintiff and Carrel, and his wife regarded the arrangement of April 27, 1908, not as the payment and extinguishing of an indebtedness, but as one securing payment of an existing and continuing indebtedness. The instruments which were executed are themselves some evidence that, as between the parties to them, security was intended to be taken and given. It is true they contain no undertaking of Carrel to pay; but the contract for a resale of the personal property does contain a defeasance with respect to the conveyance of the real estate whenever the sum of $1,500 and interest thereon should be paid.

There is also testimony warranting, if not requiring, the inference that, whether the arrangement was a sale or a mortgage, the purpose of plaintiff was to continue in business a customer who was threatened with financial reverses, to secure itself and still to leave the debtor in the apparent position of an owner of the property in his possession. The stock of liquors and cigars was mortgaged and had been since the previous December. The mortgagee, an attorney of Grand Rapids, was upon various occasions employed by the plaintiff and had been and was attorney for Carrel in some, if not all, of the pending litigation. He prepared the papers executed April 27, 1908, was present at the conference at which it is claimed an adjustment of accounts was made, and he represented the plaintiff and himself in a conference with the defendant after the levy had been made. He advised or told Carrel that he was entitled to exemptions both from the stock of liquors and cigars and from the hotel furnishings, and assisted him in securing them from the defendant sheriff. He replevined the stock of liquors and cigars not set out to Carrel as exempt. His intimate relations with Carrel and with plaintiff indicate that plaintiff had accurate knowledge of the precise financial condition of Carrel and of the litigation which threatened him. It appeared from the testimony of this witness that after the trial of the Liebler Case had been postponed at the December, 1907, term of the circuit court, upon his application, he prepared for Carrel a deed of the Dorr property and a bill of sale of these chattels to his (Carrel’s) wife, conveyances which were ignored when the arrangement of April 27th was made.

Treated as a sale, the transaction of April 27,1908, in so far as it related to the personal property, was presumptively fraudulent (3 Comp. Laws, §§ 9520, 9521) as to creditors of the vendor, who are all persons who shall be creditors of the vendor at any time while such goods and chattels shall remain in his possession or control. The jury, were warranted in finding that the arrangement of April 27, 1908, was not a good-faith arrangement made without intent to defraud creditors or those who were likely to become creditors during the continuance of the arrangement.

Complaint is made of the conduct of the trial judge in questioning the plaintiff’s witness Newnham. It is said he indicated to the jury his opinion concerning disputed facts, asked the witness to state a legal conclusion, assumed that the witness had testified to certain facts when he had not done so, assumed without right that, if the hotel furniture belonged to plaintiff, Carrel would have no right to claim exemption from the execution levy, assumed that acts of Carrel subsequent to the arrangement of April 27, 1908, could be given in evidence against plaintiff.

There is no merit in the criticisms which are made. There can be no doubt about the attitude of the witness on the Monday following the levy when he went to Caledonia. He represented the plaintiff. The fact that he was also personally interested does not change the situation. He was not personally interested in the hotel furnishings. He advised, or told, Carrel that he had the right to demand exemptions out of the hotel furnishings which had been seized. The questions propounded by the court to the witness called for his (witness’) theory of the right of Carrel to claim as exempt property which belonged not to Carrel but to plaintiff. An argument is made in this court upon the proposition that Carrel had the right to the exemption growing out of his possessory and contract rights. The proposition is not involved here. Whatever property defendant seized was either taken on the writ of replevin or was set out as exempt. The property was not moved. At the conclusion of the somewhat extended colloquy, the court said to counsel for plaintiff:

“Neither of you have answered the question I have asked as yet. I have charged the jury right now that, in the absence of acquiescence on the part of the brewing company or their representatives, anything that Mr. Carrel may have done would not be binding upon them so far as their rights and interests in this property are concerned. It only bears upon the question of what the brewing company and Mr. Carrel were doing in conjunction, if anything at all. That is what I wanted to know.”

When it is considered that the business in which Carrel was principally engaged must have been the conducting of a hotel with a bar, or else either the hotel business or the saloon business, and that Carrel was claiming and took exemptions or one exemption of twice the value of goods permitted by the statute, with the knowledge, consent, and approval of the representative of plaintiff, it does not appear to us to be reprehensible conduct on the part of the court to make the inquiry which he did, with the caution and advice to the jury which he gave.

It is contended that defendant should have proved that the costs of Mrs. Liebler had been taxed in the Supreme-Court. We do not see how the point concerns the plaintiff in replevin. The property seized was in the possession of Carrel, and the writ runs against Carrel. Plaintiff’s right to interfere depends upon its having the title to or right to the possession of the property which was seized.

Conduct of Defendant’s Attorney in the Course of the Trial. The matters argued in the brief under this head are most of them, in fact, objections to testimony elicited upon the cross-examination of the plaintiff’s witnesses, as. to much of which no objection was made at the trial. The good faith of the plaintiff was in issue. In such cases the extent to which cross-examination may be carried must be determined by the trial judge. It is only when an abuse of discretion is made out that reversible error will be found. No abuse of discretion is made out here. The relevancy of the testimony indicating that a third trial of the Liebler Case had occurred after the rights involved here had become fixed is not apparent, and counsel for defendant should not have called for the testimony. It is not perceived how it could have prejudiced plaintiff with the jury.

During the cross-examination of plaintiff’s witness Newnham, the following occurred:

“Q. Now, Mr. Newnham, when you were there at the brewing company on these different occasions in April, just prior and during the time that the Liebler Case was being tried the second time, which, according to the records there, began April 17 or 16, 1908, isn’t it a fact that you arranged with the officers of the brewing company to invite the whole jury panel to the brewing company to look over their plant ?
“A. No, sir.
Q- Didn’t you know that the jury went up there at the invitation of the brewing company ?
“A. I don’t know anything at all about it.
“Q. Will you swear they did not ?
“A. I don’t know anything about it. It is the first intimation I heard anything about this.
“Q. Don’t you know it was done in that case ?
“A. I do not, Mr. Geib.
“Q. Didn’t you talk it over ?
“A. No, sir.
“Q. And arrange with them with the officers of the brewing company ?
“A. No, sir; I did not.. No such thing ever happened as I know of.
“Q. But there was a verdict of no cause of action in that case ?
“A. There was; yes.
“Q. Which was afterwards reversed by the Supreme Court ?
“Mr. Maher: Counsel should be sure that he has a proper foundation before he asks such questions as that.
“Mr. Geib: Well, I will produce what I have if you want to know about it.”

Plaintiff’s witness Tusch was interrogated in a very similar manner. The answers of both witnesses were entirely favorable to themselves and to the plaintiff, and defendant offered no testimony upon the subject. No objections were made and no exceptions were taken to the cross-examination above set out, nor were objections made to the cross-examination of the witness Tusch until after answers had been given. It is the contention of plaintiff that this conduct of counsel for defendant, whether objected to or not, is of a character demanding the reversal of the judgment and a new trial. It is possible that, if objections had been made and answers excluded, the situation would have been less favorable to plaintiff. If the fact asked for was supposed to exist, it could be relevant to the issue only upon the theory that plaintiff and Carrel, one of the defendants in the Liebler Case, were acting in concert in an effort to defeat Mrs. Liebler’s demand at about the time the plaintiff received its bill of sale from Carrel, a conspiracy to which the attorney for Carrel, sometimes also the attorney for plaintiff, was a privy. If the fact called for was not supposed to exist, the conduct of counsel for defendant was most reprehensible. His answer to the admonition of counsel for plaintiff was in any event insinuating and improper, plainly intended as an affirmation that there was in fact a proper foundation for the interrogatories. We have concluded that as counsel for both parties accepted the answers of the witnesses, as the trial court was not asked to interfere, and as the alleged misconduct was not made a ground for the motion for a new trial, we may assume that the jury also accepted the answers of the witnesses as they should have done. We reach this conclusion the more readily because we are of opinion that the undisputed testimony required that a verdict be returned for the defendant.

All of the assignments of error relied upon have been examined. None call for more extended discussion, and none call for a reversal of the judgment.

The judgment is affirmed.

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


author: Stone, J.

text:
    KAUKOLA v. OLIVER IRON MINING CO.

      1. Master and Servant — Negligence—Safe Place — Lights.
    Testimony that an electric light, placed near an aperture in a mine shaft, was not burning after the plaintiff was injured, and that the bulb had been broken, tends, although contradicted, to prove a material question of fact in an action' for negligent failure to provide proper illumination.
    2. Same — Duty to Provide Proper -Lights.
    A question of fact as to the purpose of such light is presented by testimony of superior servants of the defendant that it was provided so that the men might walk with safety, and to protect them.
    3. Same.
    The duty to maintain proper lights in a mine so that employés in getting to and from work might avoid a dangerous opening in a level arises from the nondelegable duty of the master to provide a safe place.
    4. Same — Assumed Risk — Constructive Knowledge.
    Under uncontradicted evidence that the servant did not know of a dangerous opening in a dark portion of the mine in which he was employed, that the hole was not much more than a foot in apparent width when seen from certain positions, and was improperly lighted, raises a question of fact for the jury as to his constructive knowledge of the danger.
    5. Same.
    The servant would be held to have assumed the risk if the opening was such as would not escape ordinarily careful observation.
    6. Same — Safe Place.
    The employer must furnish a suitable place where the servant, with due care, may perform his work without being exposed to any but the ordinary dangers of his occupation.
    7. Same — Assumed Risk.
    The servant is not bound to familiarize himself with all the machinery and appliances which he does not use himself.

      8. Same — Presumptions.
    The servant has a right to presume that his safety has been reasonably provided for, and, in general, may use a walk or appliance without first particularly inspecting it.
    9. Same — Proximate Cause — Contributory Negligence. •
    Whether the absence of sufficient light was the proximate . cause of the servant’s injury, and whether he was guilty of contributory negligence, were questions of fact.
    Error to Gogebic; Cooper, J.
    Submitted January 19, 1910.
    (Docket No. 92.)
    Decided February 3, 1910.
    Case by Eino Kaukola against the Oliver Iron Mining Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.
    P. H. O’Brien'and George O. Driscoll, for appellant.

      Charles M. Humphrey and R. C. Flannigan, for appellee.
   Stone, J.

This is an action on the case brought and tried in the Gogebic circuit to recover damages for a personal injury received by the plaintiff about 10 o’clock on the night of April 4, 1907, while employed by the defendant in the Aurora iron mine at Ironwood, which was operated by the defendant. There was a jury trial, and at the close of all the evidence, upon the defendant’s motion, the circuit judge directed a verdict for the defendant, and a judgment followed accordingly. The case is brought here by the plaintiff upon writ of error.

We have discovered in the record no reversible error in the introduction of evidence, and shall only consider the assignments of error relating to the direction of the verdict.

A brief statement of the conditions in the fifteenth level of the mine, where the injury occurred, and of the employment of the plaintiff, will be sufficient. The ore vein and drifts in this mine run easterly and westerly. There were 17 levels, numbered downwards from 1 to 17, inclusive. There were two shafts, known as “A”and “No. 1,” which connected with the main or foot drift of the fifteenth level near its westerly end. This foot drift was nearly a mile long, was timbered with sets of eight-foot upright posts and eight-foot caps, and lagging behind, as mine drifts usually are. There were crosscuts leading off from this drift. Car tracks of 25-pound iron rails and 2-foot gauge were laid on cross-ties along the middle of this foot drift, and there were a number of crosscuts with switches at the crosscut entrances. Trolley wires were installed therein above the tracks to furnish power to electric motor cars which were operated thereon. Push cars, used in conveying timber and moved by hand, were also run on these tracks. The motor cars had no certain meeting points, and had the right of way, and the timbermen were required to not interfere with their operation. These motors had gongs and headlights, with reflectors on each end. The motors were used for handling rock and ore, and were each manned with a driver or “ motorman ” and a helper, called a “swamper.” As we understand the record, there were two motors operating in this drift, and each made 25 trips, more or less, per shift to the shafts, hauling trains of three or more cars each trip. There were two switches some distance east of shaft No. 1, called switches 48 and 24, the 48 switch being closest to the shaft. Before February, 1907, the defendant had constructed a raise— called in this record a “chute”— in the foot drift of this mine on the fifteenth level directly under the track and between switch 48 and switch 24, vertically from the floor of the foot drift of said fifteenth level, a distance of 75 feet downward to the sixteenth level of said mine. Said raise was so constructed as to leave an opening in the floor of said drift from .12 to 18 inches wide by 7 feet long on each side of said track, and in such a manner as to leave but one means of passage over and across said raise; that being along and upon said car track between the rails on which a pathway was constructed with plank between the rails, the rails being two feet apart. There was evidence tending to show that the raise before the track was laid over it, and the space between the rails was covered, was 7 feet by 4 feet — that was the cribbing of the raise. It was claimed by the plaintiff that from the time of the construction of said raise and up to the time he was injured the defendant had customarily and in fact constantly kept and maintained in this foot drift electric lights of 16 candle power at the switches, and one over this raise or chute, which was of material assistance in determining the location of the raise to such persons as had occasion to use this track as a passageway; that between 48 switch and the raise was a water ditch on the southerly side of this two-foot railway track, in which water continually ran and descended with considerable noise to the sixteenth level; that on the north side of the track between 48 switch and the raise was an air pipe along by said raise.

The plaintiff was born in Finland, and was 22 years old in January, 1909. He came to this country in April, 1905. During the first year he was here he worked three months as a section hand repairing railroad, and about eight months in the woods, cutting and skidding timber. He then worked in the East Norrie mine a few days, tramming. After that, and in the first part of May, 1906, he went to work in the Aurora mine, and worked nearly half a year as a timberman and filling cars on the fifteenth level. He knew where the said foot drift was, and was in it while he worked there during 1906. He testified that he did not know at the time where the switches known as 48 and 24 switches were. He knew that there was not any raise leading from the floor of the foot drift to the sixteenth level of the mine between 48 and 24 switches at the time he worked there in 1906. After working at this Aurora mine about half a year, he went back and worked in the East Norrie, and he worked at the last-named mine up to March 19, 1907, as timber-man ; it being his duty to help the miners bring in the timbers, lagging, etc. On March 19, 1907, he went to work a second time in the Aurora mine. Two or three of his comrades went with him to the Aurora.

He testified:

“ Capt. Thomas hired us to work in the Aurora when I went there last. * * * I went to work that evening. After I left the dry house, I walked to the cage shaft, and went down to the fifteenth level. We waited for the boss to give us directions where to go to work. Several of us belonging to the same timber gang were to work together. Those were the men that came in with me from the East Norrie. * * * We followed the man and started to walk east in the drift, the main drift, the foot drift. We walked east in the foot drift, quite a long distance. I thought it was almost a mile. I walked with the boss, right behind him. We walked through the drift, and presume passed the chute, into which I afterwards fell. The boss did not call my attention to the chute, or tell me it was there, or anything. While we were walking through the drift, I was walking as near to Mr. Caddy as one man can walk behind each other. He put me at work timbering. I could speak just a few words, poorly, of English at that time. The nature of my duties was to bring the timber and lagging and cribbing to the miners. The boss and the miners told me where to get them. There were four men working in my crew. They were all Finns.”

The plaintiff, referring to the circumstances of the injury, testified:

“ I was working in the Aurora mine on the 4th day of April, 1907, at those same duties, night shift. I went to work that day at the usual time, just a little before 7. All of the members of my crew were not present that night. There were three present. We did what the boss told us. He told us to bring timber near the fourteenth level. We were working on the fourteenth level at that time. After he told us, he took one man away from our gang. I told him it was rather hard work for two men to do. I didn’t know that boss’ name any better than I used to call him ‘Jack.’ That just left my partner and me in the crew. The timbers that were used up in that part of the mine were gotten near the ‘A’ shaft, or cage shaft, on the fifteenth level, and to take them up on the fourteenth level we had to take them up on a truck to the place where they were hoisted up on the fourteenth level through the foot drift on the fifteenth level. According to my estimation, we had to take them east through the foot drift nearly one-half a mile. We had to take them very much east of the place where I fell in the chute. When the boss told me to go out and get this timber, my partner, Oscar Maki, and I went. * * * We were there on a sublevel between the fourteenth and fifteenth levels. After we started after the timbers, I saw another boss, Mr. Caddy, at the following switch after 48 switch. * * * I tried to explain to him that there were only two of us that were ordered to bring and set the timbers in. He said that we had better try to do it. He didn’t say anything else to us at that time. He just told us to go ahead and get them. He didn’t say anything about the chute. He didn’t say anything about the light over there. After we talked to him, we commenced to walk towards the shaft, and we walked near to No. 1 shaft, where we took the truck. We didn’t have the truck till we got to No. 1 shaft. We then went to ‘A’ shaft. Then we commenced to pick up such timber as we thought necessary out there, and then we put it on the truck, and commenced to go towards the place where they were needed — that was east. We met Mr. Caddy by No. 1 shaft, and asked him what chance he had to go in. We asked him that because we couldn’t always go in on account of motors being inside. They were working there —going in and out — and we had to keep out of the way of the motors. He told us to wait a minute until the motor came out, and then go in.”

He then described the manner of their waiting for the motors to pass, going upon the side track, etc., and continued :

“We had timbers called drift timber loaded on that car, about 7 feet long, and a foot or more thick. I can’t remember whether they were green or dry timbers. We had three timbers on the car. The car was about three feet wide anyway, and our load of timber was anyway over three feet wide. The car had four wheels, and that time it was very hard to push, it was very heavy. We were-pushing the car with our hands and putting our shoulders to it, propelled it along. My partner was walking on the right side of me in the bottom of the drift. After we left 48 switch, he walked inside the track, between the rails, and I walked outside of the rail on the left side. That would be on the north side, I think. I didn’t walk between the rails, too, because there was no room for two; that is, side by side for two. We had both candle lights with us at that time, which we kept in the rear of the car on the timber. We had a candlestick made of iron that we stick into the timber. We put it on the rear end of the timber so that it would not blow out, and, if they went out, we could easily light them again. I don’t think they would stay lighted on the front end of the timber, because there was a good deal of draught. It would easily blow out the light. After we started east from 48 switch with our car of timber at that time we pushed the car very hard, we were in a hurry to get out of the way of the motor because we heard the bell ring, and I cannot describe exactly the minutes, but all at once I fell down. I did not know myself where I fell. I thought I fell very far, but I did not know how far I fell down. I did not lose my senses when I fell. I cannot describe to the jury how I fell better than that I fell down and went to the bottom of the hole. I fell with my feet down. I was trying to hold myself this way as I went down — spreading out my arms. Then I fell down in a sitting position. I will illustrate to the jury just how we were pushing the car at the time I fell. I had my leg in this position (indicating), and my shoulders I had towards the timber, and I was pushing the car in this way (indicating). I was braced against the timber with my feet back from under it, my feet braced.”

He then described the nature and extent of his injury.

On cross-examination the plaintiff: testified that he did not know the hole into which he fell the night he was injured was there before the time he fell into it; that he had never been told by any one that there was such a place in the foot drift' in the fifteenth level. We gather from his testimony that he does not claim to know whether or not there was a light over the raise at the time he fell into it. But he testified that there was none there when he was brought up after the injury. He further states that he made about three trips a day over this raise; that, when he went to the fourteenth level of the mine, he went down “A” shaft to the fifteenth level, and from there he walked east through the foot drift, and then up the ladder to the sublevel of the fourteenth, and each time passed the place where he fell in, and repeated the same when he came back.

The evidence upon the trial was conflicting as to whether or not there was an electric light at the raise at the time of the plaintiff’s injury, and we think it a material question as to whether the light was burning at the raise at the time the plaintiff fell into it. The witness Victor Maki testified that he was at work on this night at this place; that he and two other men dumped rock in the raise in question the night plaintiff was hurt, on two occasions, about 8 or 9 o’clock, and that he went by the raise that night after plaintiff was hurt, and that he did not see any light over the raise up to midnight. He claims that he is sure of that because there was a good deal of talk about it. He is positive that there was no light there when he dumped the car before plaintiff was hurt, and claims that he noticed it was gone when he dumped the first car. He further testified that there had been a light kept there previous to that night on that chute or raise.

There was also evidence showing that this light had been broken in the afternoon, about 2 or 3 o’clock, and a witness testified that he saw the bulb broken, and described the manner of it. Robert Lindberg also testified that there was no light over the raise that night. He claims that he learned there was no light there a little after 7 o’clock in the evening. He further testified that he saw the socket without the light, and the reason that he missed it was because he could not find the tally board that was used to mark the number of cars that were emptied. He further testified that he spoke to Mr. Caddy about the light being gone that evening at about half past 7, and details the conversation. This is denied by Mr. Caddy, and it is the claim of the defendant that there was an electric light burning at the raise all that night, and at all times, and a number of witnesses so testified.

In our opinion this testimony raised a question of fact for the jury.

In McDonald v. Railway Co., 105 Mich. 659 (63 N. W. 966), the question was whether certain bars were up at 4 o’clock. One Brearly testified that they were. Justice Montgomery, speaking for the court, said, after reciting the testimony:

“ I think it very clear that this testimony raised a question of fact for the jury. It is true that the defendant’s witness testified that the bars were up at 4 o’clock on the 7th, but there is no testimony that there was anybody whose duty it was to put them up after 1 o’clock on the 7th, when the witness England testifies they were down. This testimony clearly tended to impeach the recollection or veracity of the witness Brearly. According to his testimony, the bars could not have been down except on very rare occasions, whereas the other witnesses testified that the bars were left down constantly. * * * In my judgment it was for the jury to say whether his positive testimony that they were up on the 7th should be accepted in view of the fact that his testimony upon this question of their being up at other times, during the summer was so directly disputed by the testimony of other witnesses.”

Were the lights kept at the switches and at this raise for the benefit of the employés of the mine, and to enhance their safety? In the argument at the hearing, defendant’s counsel took the position that these lights were not intended for the security of the workmen. There was testimony upon that subject as follows: Andrew Yronch, one of defendant’s witnesses, among other things, testified:

“ I had nothing to do with putting the lights in. That was the business of the electricians. It was their business to put back a light if it was out. If a light went out on the night shift, a lamp burned out, they have to get some lights extra. Then the captain — the foreman — or the motorman put them in. * * * If the motorman put a lamp over the chute or any place, he would be just doing that of his own free will. The only ones whose business it was to do it was the electricians. It was their business to see that lamps were kept burning, and on the night shift it was the business of the boss and the motorman. They kept the lamps burning there to show the men how to walk in the raise, in through, was the reason they kept them there to make it good and safe to walk along.
“Q. Because if there was no lamp there a man might walk into a hole, is that true ?
“A. Why, sure; he might walk in a hole. A fellow could see from one light, or might see from one light to another.”

This man had testified on direct examination that the light was kept at the raise to show the men where to walk. Hart Caddy, the shift boss of defendant, testified, on cross-examination, as follows:

“Q. And you just testified that there was a light there that night because that was your general habit, and you depend upon that ?
“A. Well, it is my general habit, and, if there was a light out in passing through, we certainly would notice it. I always notice that, because that was part of my business. I had to look out for the lights and raises, switches, and such things, and I was the only man on the fifteenth level at that time whose duty it was to do that — to look after the lights. And that is why I am so positive about the fact that the light was there.
“Q. Did defendant impose that duty of keeping the lights there for protection of the men upon you ?
“A. Well, that is the electrician’s through the day, the same as I said before. On the night turn, we look out for them at such places as switches and raises where they are most necessary. I see that they are there. The company expects me to do that for the safety of the men. They expect us to see that we carry that out. That is a part of my duty as shift boss. * * * It is my duty to' look after the lights on the fifteenth level. I was the only one that that was imposed upon. I looked after the lights and the motormen, and was the . only one on the fifteenth level. Well, there are five of us, but I was on the fifteenth level; yes, sir. I was the only boss on the level, and the only one that was appointed to look after the lights for the safety of the men. Yes, sir; for the safety of the men.”

We are of the opinion that this evidence tended to show that the light had been placed and kept at the raise by the defendant for the safety and security of the workmen. At least, that question became one of fact for the jury, under the evidence. The raise was a dangerous place.

If this was the duty of the defendant, does the doctrine of fellow-servant apply, and can it be said that the matter of the failure to keep the raise lighted was simply the neglect of Caddy, the shift boss, who was the fellow-servant of the plaintiff ? The lighting of this passageway or thoroughfare of the mine, far distant from the working places of most of those who passed through them — it being always dark in the mine — was just as necessary for the safety of the men, as it was to have the walls and floors in a proper condition. It was one of the “instrumentalities ” which it was necessary to provide to enable the men to do their work, and to get to and from their work safely. It was a thing which it was necessary to keep permanently in condition. Unlike the case of Livingstone v. Plate Glass Co., 146 Mich. 236 (109 N. W. 431), here the place furnished was a permanent place of work, and notone where the conditions were constantly changing. Here, in our opinion, the rule of a safe place to be furnished by the master applies. In Cristanelli v. Mining Co., 154 Mich. 423 (117 N. W. 910), it was held that the engineer of a mining hoist, in so far as it is his duty to keep the place safe, is not the fellow-servant of an employé engaged in loading machinery upon the skip at the collar of the shaft. In Beesley v. F. W. Wheeler & Co., 103 Mich. 211 (61 N. W. 662, 27 L. R. A. 266), Justice Montgomery, in a concurring opinion, said:

“ The rule that it is the duty of the master to furnish a safe place for the servant to work is so universal, and so thoroughly settled, that no citation of authorities is necessary to sustain it. It is also settled in this State that this duty is one which cannot be delegated by the master so that the employé engaged to do the work of making the premises safe is to be treated as a fellow-servant of those who are employed and engaged in the general work for which the premises are intended ” — citing Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572); Brown v. Gil christ, 80 Mich. 56 (45 N. W. 82, 20 Am. St. Rep. 496); Roux v. Lumber Co., 94 Mich. 607 (54 N. W. 492); Morton v. Railroad Co., 81 Mich. 423 (46 N. W. 111).

See, also, Sadowski v. Car Co., 84 Mich. 100 (47 N. W. 598); Town v. Railroad Co., 84 Mich. 214 (47 N. W. 665); Fox v. Iron Co., 89 Mich. 387 (50 N. W. 872); James v. Mining Co., 55 Mich. 335 (21 N. W. 361).

The rule is well stated in Baldwin on Personal Injuries (2d Ed.), §§ 386, 388, as follows:

“ The master must provide his servant with a safe place in which to work, and furnish him with suitable machinery and appliances with which to perform such work, and it is his duty to keep such machinery and appliances in good repair. If he cannot do this himself personally, he must provide some other person to take his place in this respect; and the person to whom the master’s duty is thus delegated — no matter what his rank or grade, no matter by what name he may be designated — cannot be a servant in the sense or under the rule applicable to injuries caused by fellow-servants. Such a person is an agent, and the rules of law applicable to principal and agent must apply. He is generally called in the law a vice-principal. In order to keep the machinery and appliances safely in repair, the law makes it the duty of the master to make all needed inspections and examinations; and he cannot escape responsibility by delegating this duty to one who in other respects may be a fellow-servant of the person injured by the failure to properly perform his duty. * * *
“ The weight of authority holds that the duty of inspection cannot be delegated, or the responsibility therefor shifted from the master, and that whenever the duty of inspection is placed upon a servant, whatever may be his grade or rank, he is to that extent a representative of the master, though in all other respecte he may be a fellow-servant.”

In Anderson v. Railroad Co., 107 Mich. 592 (65 N. W. 585), and in Balhoff v. Railroad Co., 106 Mich. 607 (65 N. W. 592), it is held that sectionmen, in so far as they have the duty of keeping the track in repair, are not fellow-servants of the trainmen.

In Knapp v. Railway Co., 114 Mich. 199 (72 N. W. 200), and in Fluhrer v. Railway Co., 121 Mich. 213 (80 N. W. 23), where brakemen received injuries from holes in a defective track bed, the same holding was made.

In McDonald v. Railroad Co., 108 Mich. 8 (65 N. W. 597), where a brakeman was injured by a defective coupling on an engine, it was held that the engineer whose duty it was to inspect the couplings, etc., on his engine, was not in that respect a fellow-servant of the brakeman.

In Thomas v. Railroad Co., 114 Mich. 59 (72 N. W. 40), where a section foreman in selecting a rope for the use of his men was held not in that respect a fellow-servant with them; but was a fellow-servant in so far as using the rope was concerned.

In McDonald v. Railroad Co., 132 Mich. 372 (93 N. W. 1041, 102 Am. St. Rep. 426), it is held that the car repairer, whose duty it is to inspect the cars, is not in that respect a fellow-servant of a conductor. This brings us to the general question of assumption of the risk.

Did the plaintiff assume' the risk ? The doctrine of assumed risks of servants applies, and is limited in application, to dangers which the employe either knew or should have known. The evidence in this case may be said to be undisputed that the plaintiff did not know, as a matter of fact, of the existence of the raise. Therefore, upon this branch of the case, the only question is whether, as a matter of law, it can be said that he should have known. The learned circuit judge charged the jury as follows:

“ Now, it seems to me that this case falls clearly within the cases that, where a dangerous place is apparent and obvious, the servant is bound in law to observe it. He has had an opportunity of doing so, and certainly a man, as the plaintiff did in this case, passing this chute or raise as many times as he did, could not help but have the opportunity of seeing it. I am forced to that conclusion the more that I have looked over the authorities. It seems to me that it falls absolutely within the cases that hold that a servant assumes all of those risks that are apparent to him if he has an opportunity to observe them for himself. In this ease the plaintiff certainly had such an opportunity.”

An inspection of the record will show that there was a conflict in the evidence as to the appearance of the hole or raise. It is the claim of the defendant that it was open and obvious to any passerby. But taking into consideration the surroundings, and that there is some testimony which does not make the opening upon the north side wider than one foot when looking down upon it, and that the timber underneath had been cut off slantingly to enlarge the entrance horizontally, it may well be doubted whether this hole was so apparent, and apparently dangerous, as is claimed by defendant. In order for the defendant’s contention to prevail upon this point, it should appear that this hole was so apparent that it must have been obvious to a person of ordinary prudence and care in the employé’s situation. That is, it must be such a defect or hole as would not escape ordinarily careful observation. Lamotte v. Boyce, 105 Mich. 545, 548 (63 N. W. 517); Bauer v. Foundry Co., 132 Mich. 537 (94 N. W. 9):

“Assumption of risk is a term of the contract of employment, express or implied from the circumstances of the employment, by which the servant agrees that dangers of injury obviously incident to the discharge of the servant’s duty shall be at the servant’s risk.” Narramore v. Railway Co., 96 Fed. 301, 37 C. C. A. 501.

The employer must furnish a suitable place where the servant, with due care, may perform his work without being exposed to any but the ordinary danger of his occupation ; and the servant will not be bound to familiarize himself with all the machinery or appliances which he does not use himself. The servant has a right to presume that his safety has been reasonably provided for, and in general may use a walk or appliance without first particularly inspecting it. See Clark v. Cement Co., 138 Mich. 673 (101 N. W. 845), where the loose plank in the walk threw decedent into the machinery. Also Nichols v. Railroad Co., 145 Mich. 643 (108 N. W. 1016), where it, was held that defects in a 35-foot ladder on the side of a tank, only occasionally used, need not be discovered by a workman who uses it, even though ordinary care and inspection discloses them; and it was claimed that it presented a question for the jury.

It was said in Boman v. Iron Co., 147 Mich. 178 (110 N. W. 518):

“A person who is employed and instructed to commence work at a particular place is under no obligation, in order to protect himself from a charge of contributory negligence, to first go over a building or plant and make himself familiar with each piece of machinery, and the danger he may incur in coming in contact with it.”

And the same rule would apply with reference to the assumption of risk. As was said by Justice Blair in De Kallands v. Telephone Co., 153 Mich. 25 (116 N. W. 564):

_ “When there is a possible phase of the case where the risk is not assumed, the trial judge cannot properly direct the verdict on the ground that such risk was assumed.”

In our opinion the circuit judge should have left to the jury the question as to whether the risk resulting from the presence of this raise was open and apparent, and was assumed by the plaintiff. We think the question was for the jury under proper instruction, and that the court erred in directing a verdict for the defendant. The questions of contributory negligence, and whether the absence of the light was the proximate cause of the injury, should also have been submitted to the jury.

For the errors pointed out, the judgment below must be reversed, and a new trial granted.

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


author: Cooley J.

text:
    Abraham D. Peck v. Chas. H. Cavell, Jr.

      Justice's Docket: Execration: Bequest of Plaintiff. It is not necessary that a justice’s docket should show that an execution was issued at the request of a plaintiff, as that is always to he presumed. When the docket entries comply with the statute, the ordinary presumption in favor of the correctness of official action must support the proceedings.

      Execution in Justice Court, when returnable: Sunday. An execution may he law • iully returned hy the officer on the sixtieth day from its date — that being the return day — unless such day should he Sunday, in which case the return would he void.

      Transcript from Justice's Judgment: Bequisites before filing. A transcript from a justice’s judgment cannot he filed in the Circuit Court unless it he certified to hy the Justice, together with an affidavit attached of the amount due upon the judgment.

      Heard July 9th.

      Decided July 11th.

    Error to Livingston Circuit.
    This was an action of ejectment brought to recover the possession of certain lands in Hamburg, Livingston County.
    The defendant set up a title based upon sales on two executions issued on transcripts of Justices’ judgments, and filed in the Circuit Court.
    Objections were made to tbe admission of said transcripts on the trial in the Circuit Court on account of several defects appearing in said transcripts, and which are stated in the opinion.
    Judgment was rendered for defendant in the Court below.

      Norris & Uhl, for plaintiff in error.
    1. The statutes regulating transcripts of Justices’ judgments being contrary to the course of the common law and ex parte, will be construed with the utmost strictness; and the proceedings of creditors acting in pursuance of such statutes, should be scrutinized closely, to prevent gross injustice and overreaching. — 3 Mich. 198; 5 Id. 98.
    The transcript in this case is defective because,

      a. It does not appear that the justice was requested to issue executions on the judgments sued upon, previous to giving transcripts. — Oomp. L. § 3789.

      b. The executions should not have been returned till after the 60th day. In this case the debtor should have had the whole of that day to pay in . — Comp. L. §§ 3786, 3789; 10 Mich. 496; 8 Cow. 260; 2 Id. 605; 6 Id. 659; 2 Hill, 356.

      c. It does not appear by affidavit, what was due upon the judgments.

      d. The return of the execution was made upon Sunday, and is therefore a nullity.

      O. Hawkins, for defendant in error.
   Cooley J.

The plaintiff having shown a prima facie right in himself to the recovery of the premises in question, the defendant sought to defeat that right by showing sales on two executions, against the plaintiff, issued on transcripts of justices’ judgments which had been filed in the Circuit Court. A portion of the premises was sold on each of the executions.

The statute only authorizes a transcript to be filed in the Circuit Court after execution has been issued by the Justice and returned unsatisfied; and it is objected that it does not appear from tbe transcripts that any execution was ever properly issued in these cases, inasmuch as the evidence does not show that the executions were issued at the request of the plaintiffs in the - judgment. The transcripts only state when and1 to what officer the executions were issued; but as these are the 'only-facts which the statute requires to be entered on the docket in relation thereto (Comp. L. § 3890, clause 12), and as the transcript is to be a correct copy from the docket (Comp. L. § 3786), we think the objection not tenable. If the Justice enters upon the docket in regard to his own proceedings all that the statute requires, the ordinary presumption in favor of the correctness of official action must support the proceedings. • .

It is also objected -that the executions issued by the justice were returned prematurely. Both appear to have been returned on the sixtieth day after date; and the plaintiff claims that he was entitled to the whole of the sixtieth day in which to make payment. The sixtieth day, however, was the return day; and although the statute allows the officer to make the return at any time within five days thereafter, without subjecting himself to liability (Oomp. L. § 3827), he may also make return on the return day; and a strict obedience to his process would require him to do so. One of the executions, however, was returned on Sunday; and that fact is fatal to the proceedings on the transcript based upon it.

But there is another fatal objection to both of the transcripts, and to all proceedings under them. It does not appear that either of the transcripts were certified by the Justice, or that any such affidavit was attached thereto as was required by the statute. A special statutory proceeding of this description which is to divest a man of his title in invitum must be in strict compliance with the statute in all those particulars designed for the protection of the defendant. The certificate to the transcript and the affidavit of amount due are jurisdictional facts, without which there is no authority to file a transcript. The original transcripts were not offered in evidence in this case, but only the docket entry thereof in the office of the clerk of the Circuit Court; and this entry did not show either a certificate or an affidavit. Without inquiring whether this would have been a sufficient docketing of the judgments had the transcripts been? in due form, it is clear that it can constitute no authority for an execution unless it appears that there was .a transcript duly certified, and an affidavit of the amount due, without which there is no authority for docketing the judgment in the Circuit Court at all. As objection was taken at the time that the transcripts themselves were the proper evidence, the attention of the defendant ivas called to the defect, so that he had an opportunity to put the transcripts in evidence if they were in compliance with the statute. As they were not offered, we can presume nothing in their favor.

The judgment must be reversed, with costs, and a new trial ordered.

Christianoy and Campbell JJ. concurred.

Martin Ch. J. did not sit.