text:
    GUASTELO v. MICHIGAN CENTRAL RAILROAD CO.
    1. Master and Servant — Workmen’s Compensation ' Law — Personal Injuries — Course oe Employment.
    Where claimant, who was engaged as a member of a repair crew by respondent railroad company, "hung around” about half an hour after quitting time, when he was free to go where he pleased, and after dark started to walk down the railroad track, which was a shorter way than the highway which nearly paralleled the track, to a bunk car, furnished by respondent, on a side track, near a village, where he ate and slept, and, after going some distance, was struck and injured by respondent’s locomotive, he was not performing any duty in the line of his employment, in the course and out of which the injury arose, rendering respondent liable under the workmen’s compensation law (Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § •5423 et seq.).

    2. Same-Workmen’s Compensation Law — Going to and prom Work.
    It is recognized as a general rule that injuries sustained by an employee while going to or returning from his day’s work, where there is no contract of transportation, are not to be regarded as arising out of or received in the course of his employment.

      Certiorari to Industrial Accident Board.
    Submitted October 11, 1916.
    (Docket No. 126.)
    Decided December 22, 1916.
    Antonio Guastelo presented his. claim against the Michigan Central Railroad Company for compensation for injuries while in defendant’s employ. From an award of compensation, defendant brings certiorari.
    Reversed.

      J. W. Dohany (Henry Russel and Frank E. Robson, of counsel), for appellant.

      Louis J. Colombo, for appellee.

       On liability of master for injuries to servant arising out of and in the course of the employment, see note in L. R. A. 1916A, at page 232.

   Steere, J.

The question involved in this proceeding is whether an injury to plaintiff for which the State industrial accident board awarded him damages arose out of and in the course of his employment.

On December 13, 1913, said Antonio Guastelo was employed by defendant as one of a force of laborers engaged under a foreman in repairing and raising its railroad track at a place called Osborn Pit, located about five miles west of Ann Arbor and one mile east of the village of Delhi. He ate and slept in a bunk car on a side track near a crossing at Delhi. The usual quitting time for the crew at Osborn Pit was 5:30 in the evening. He was injured about a half hour after his day’s work was done, while walking westerly along the railroad track towards Delhi, returning with a companion to his car for the night.

Plaintiff testified that he was then working at the steam shovel for $2 per day; that, when they quit that evening and the “boss” laid him off for the night at about 5:30 or 5:35, he put a little coal into the engine, changed from his working clothes, and “hung around” until about 6 o’clock, then started towards Delhi with a companion and had gone, as he states it at different times, “about 200 paces west from where I was working, * * * about 600 feet from where I had been working, * * * about one-third of the way,” when the accident befell him, which he narrates as follows:

“I was going around a curve, and it was quite dark, and the train came along going in the opposite direction to which I was going, and it struck me in the arm and hurt me.”

He gives no further details or explanation of the accident, except to state that his arm was broken in two places so that he was seriously injured, disabled for work, and laid up in the hospital for some time. His companion testified that they had been walking perhaps two or three minutes, and “we were going around a curve, and it was misty, getting dark, and a train came along and hit him in the arm. It projected out and hit him on the arm.”'-

No opinion was filed by the accident board, and we can only infer that, in harmony with the contention of appellee’s counsel, liability was predicated upon the fact that defendant furnished him quarters in which to live, and allowed him to travel along its tracks in going to and from his work.

The evidence shows there were then from 30 to 35 men in this crew, most of whom lived in box cars equipped for their accommodation and located upon a siding right at Osborn Pit. It was customary for defendant to furnish such cars for the accommodation of its track construction and repair crews convenient to wherever work was being done. Abundant cars of that kind were furnished at the Osborn Pit, where there were 8 or 10 cars spotted on a siding, properly equipped with eight bunks in each, in which most of the single crew then working was. located. A double crew had worked there for a while, but at this time one crew was taken off and only a single shift working. There was then but one bunk car at Delhi, which had remained there for some time. Guastelo was originally located in it and had bunked there with others for over two months. Four men then lived there, two working at Delhi, and Guastelo with his companion working at Osborn Pit. The men were generally allowed to select their cars and associates according to their preferences. Defendant did not board the men nor charge them for use of the cars, but permitted them to cook, eat, and sleep in them. They were at liberty to live elsewhere. The only requirement of their hiring was that they work during working hours. Their time and pay started when they started work and stopped when they quit at quitting time, after which they were masters of their own time and movements until work began the next morning.

Between Delhi and Osborn Pit a highway nearly paralleled the railroad track, but a short distance from it. The walking was better upon the highway than upon the track, and the foreman testified he usually traveled the highway when'going and coming at night, both because it was better walking and safer. The railroad right of way was more accessible and the distance some shorter. It was commonly used by the men and Guastelo testified that he and the others always went that way.

It is undisputed that he was employed by the day, and when work stopped at quitting time that evening, about 5:30, his wages stopped, he was through for the day and had earned his day’s pay, his employer had no demand upon or need of him, he owed it no duty, and was then master of his own time and movements until he should return at the appointed time the following morning to commence another day’s work, when his pay would again start. His contract of employment did not provide, that he should receive pay for time consumed in going to or returning from his place of employment, nor for transportation. At the conclusion of his day’s, work he could go when and as he chose. He did not choose to leave for nearly half an hour, nor until it was dark, or getting dark, on a misty evening, and he chose his customary, but a shorter and more dangerous, route along the railroad track, when he could have taken the less dangerous though less convenient highway which nearly paralleled it, and which his foreman testified to taking “if it was very dark.” While applicant’s manifest negligence does not preclude recovery if he was then performing a duty in the line of his employment, in the course and out of which the injury arose, these facts render inapplicable the invoked rule that employment of one working by the day does not instantly end at the time and place work ceases, but the protection of the law extends to a reasonable time and space for the employee to leave the^ locality or zone of his work and while he is in proximity, approaching or leaving his place of employment by the only means of access thereto. The general rule by which this class of cases should be tested is thus well stated in Benson v. Railway Co., 6 W. C. C. 20, 23:

“A person who is in an employment carries with him during the period, whether in the day or night or whatever time it may be, that he is bound to work, all the privileges that are conferred by this act; but when he has left that employment in the evening, or at any other hour, from that time until he arrives next morning at the place where his field of employment is, he is in the same position as any other member of the public. He carries with him into his period of leisure no insurance from his employers. If he takes, a dangerous course, he takes it at his own risk.”

The distinction there pointed out plainly demarks the instant case from Papinaw v. Railway Co., 189 Mich. 441 (155 N. W. 545); Beaudry v. Watkins, 191 Mich. 445 (158 N. W. 16); Kunze v. Shade Tree Co., 192 Mich. 435 (158 N. W. 851), and other analogous cases cited to sustain the award. Without reviewing them at length, it is sufficient to note that in all those cases it was shown the workman when injured was on duty in the line of his employment, either actively at work or held under the direction and control of his employer subject to orders and ready for immediate response when called for active service by his superior officer, whether in the day or at night, while here the contrary affirmatively appears. The car in which Guastelo bunked had no more connection with the accident than would any boarding house at Delhi in which he might have been living. While, owing to the nature of the work, which at times was remote from where men could secure accommodation, it was customary for defendant to furnish bunk cars on a siding near the work for the laborers to . use if they desired, free of charge, it was not compulsory for them to do so, and some did not. Of this the foreman testified:

“It is nothing to us whether the man lives in the car or where he lives. He can live wherever he wants to, if he can get a boarding house. Sometimes you have men that won’t stay in the car.”

Had the nature of Guastelo’s employment been such that his services might be needed at any time, and by the terms of his hiring he was required to stay in one of the bunk cars where he worked, or the car at Delhi, within reach, on duty, ready to respond at any moment when ordered to service, it might well be urged that the relation of employer and employee yet continued; but it is undisputed here that half an hour before Guastelo was injured the work in which he was em gaged was ended for .the day and he set free from the direction and control of his employer, at liberty to go when and where, and do whatever he chose until he reported for the duties of another day on the following morning. At his pleasure he lingered in the gathering twilight until he says it was dark, and had then gone some distance down the railroad from the place of his employment on his way to where he lived when injured by A train coming towards him on the track he was traveling.

It is recognized by text-writers upon this subject as a general rule that injuries sustained by an employee while going to or returning from his day’s work, when there is no contract of transportation, are not to be regarded as arising out of or received in the course of his employment. 1 Bradbury on Workmen’s Compensation (2d Ed.), p. 404; Boyd on Workmen’s Compensation, § 486; Ruegg on Workmen’s. Compensation, p. 82; Harper on Workmen’s Compensation, §§ 32-34.

The testimony returned in this record furnishes no exceptions to this rule, which support an implied finding, upon which this award is necessarily predicated, that the injury in question arose in the course and out of appellee’s employment at Osborn Pit, which had ceased and from which he was released an half hour before it occurred.

We think the following cases, which sufficiently state the rule and discuss the question involved, are well in point and controlling here: Benson v. Railway Co., supra; Caton v. Steel Co., 39 Scot. L. R. 762; Anderson v. Coal Co., 3 B. W. C. C. 539; Fumiciello’s Case, 219 Mass. 488 (107 N. E. 349); Hills v. Blair, 182 Mich. 27 (148 N. W. 243).

The, decision of the industrial accident board is therefore reversed.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, and Brooke, JJ., concurred. Person, J., did not sit.


source: Caselaw Access Project

author: Steers, J.

license: Public Domain

text:
    SYMONS BROS. & CO. v. BRINK.
    1. Chattel Mortgages — Renewal—Foreclosure—Rights oe Creditors.
    Where defendant took possession of a grocery stock under his chattel mortgage, which complainants, general creditors of the mortgagor, sought to have set aside and declared void because defendant failed to file an affidavit of renewal at the expiration of one year, as provided by section 9526, 3 Comp. Laws, 3 Comp. Laws 1915, § 11991, but where the affidavit of renewal was later filed before complainants obtained any mortgage or lien on the mortgaged property, held, under the proviso in said statute, that the rights of the parties remained the same as if the affidavit had been filed within the specified period.
    2. Fraudulent Conveyances — Sales in Bulk — Chattel Mortgages — Foreclosure.
    The primary object of the sales in bulk act (Act No. 223, Pub. Acts 1905, 2 Comp. Laws 1915, § 6346) was to protect creditors against fraudulent sales, and not to preclude foreclosure of a recorded chattel mortgage given in good faith for a valuable consideration.
    Appeal from Crawford; Sharpe, J.
    Submitted October 5, 1916.
    (Docket No. 43.)
    Decided December 22, 1916.
    Bill by Symons Brothers & Company and others against Rolla W. Brink and Marius Hanson for an injunction, a receiver, and other equitable remedies. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Gilbert W. Hand and Osear W. Baker, for complainants.

      George L. Alexander, for defendant Hanson.
   Steers, J.

A demurrer to plaintiffs’ original bill in this case, sustained in the court below, was formerly overruled on appeal to this court, and the case remanded for further proceedings. 187 Mich. 43 (153 N. W. 359). The ruling of the trial court that the so-called sales in bulk act (Act No. 223, Pub. Acts 1905, 2 Comp. Laws 1915, § 6346), was not violated by the regular foreclosure of a valid chattel mortgage was then sustained ; but it did not there appear by the bill, nor was it conceded, that the grievances complained of involved only that question, and the bill, to be taken as true on demurrer, alleged in substance to the contrary. It was therefore found under the then state of the record that various questions sought to be raised were premature, that the bill was not demurrable in its entirety, and the case was accordingly remanded, with permission for defendants to plead over.

Plaintiffs have since then filed two amendments to their bill of complaint, which have been answered by defendant Hanson. Defendant Brink, who was a confessed debtor of both parties beyond his ability to pay, had but a passive interest in the eventuality of this suit, and made no defense. The case was heard in the chancery court of Crawford county upon pleadings and proofs taken in open court, resulting in dismissal of plaintiffs’ bill under the court’s construction of the law as applied to the facts found.

Plaintiffs are wholesalers located in Bay City and Saginaw, and defendant Hanson is' a private banker at Grayling, Mich., where defendant Brink owned and ran a retail grocery store from some time in November, 1910, until about November 11, 1914. On November 22, 1910, Hanson sold Brink a stock of groceries and fixtures on credit, at the appraised price of $2,-134.29, taking a chattel mortgage for that amount as security for the purchase price, in which it was provided that the stock on hand, inventoried at cost, should at least be maintained at 25 per cent, above “the entire indebtedness hereby secured from time to time existing.” It was a long-form, commercial mortgage covering existing and future indebtedness, for which was pledged the property then purchased, and also all merchandise, furniture, fixtures, etc., “which at any time hereafter may be purchased for, or added to, or used in connection with, said stock or business, or commingled with the same.” Fifty dollars per month, with interest, was to be paid on the indebtedness, and in case of default in any payments “thereby secured, whether heretofore existing or hereafter contracted,” Hanson was empowered to take possession of the mortgaged property, “and to hold the same at said place of business of said party of the first part,” or remove it to some other place within the State, “and there retain such property,” for such time as he deemed best and convenient, and proceed to sell the same, “either at private sale or public auction, in bulk or parcels.” The instrument contained, in regular form and legal phraseology, the usual provision relative to retaining out of the proceeds sufficient to meet the sums owing under the mortgage, expenses, etc., and rendering to the mortgagor the surplus, if any. This mortgage was recorded in the office of the township clerk at Grayling on March 23, 1911, and renewed by proper affidavit, filed October 16, 1912, alleging the amount due on that date to be $2,134.29. A second renewal affidavit was filed by Hanson on November 4, 1914, stating there was then due and owing on said mortgage $2,-084.29. Only those two renewal affidavits were filed.

Brink carried a commercial account in Hanson’s bank, which he was largely overdrawing at times, and during the same period he was making payments on his mortgage until on October 14, 1912, his checking account was overdrawn $2,350, and credits on his mort- ' gage account had reduced it to $909.29, when, by mutual consent, the credit on his mortgage was transferred to the commercial account to apply on the overdraft, leaving the original amount owing on the mortgage, with the overdraft reduced to below $1,200. On January 2, 1913, a note of Brink for $1,600 was credited to his checking account, which practically balanced his overdrafts, so at that time his indebtedness to Hanson was practically the amount of this note and original amount of the mortgage, with interest. He continued in business unsuccessfully, with increasing indebtedness, until November, 1914, when he was found to be owing Hanson $6,178.42, and other creditors about $2,800, including plaintiff's claims of approximately $2,000 for merchandise sold him between November 1, 1913, and November 4, 1914. He then owned a house and lot in Grayling, valued at $1,000, and 60 acres of wild land, valued at $300. His stock of merchandise was inventoried on November 8th at $3,315.65, and his store accounts, or bills receivable, totaled $3,547.88. He at various times talked over the matter of his indebtedness with Hanson, and states that he generally gave him a list each year of the amounts he was owing, including his indebtedness to plaintiffs, of whom he had bought merchandise to a greater or less extent from the time he went into business in 1910. Early in November, 1914, he told Hanson there was no use of his keeping on in the business; “we were getting in deeper all the time.” He states that he then decided to go out of business, and pay his creditors so far as possible with his assets. On November 10, 1915, he voluntarily deeded his house and lot and 60 acres of land to Hanson at an agreed price of $1,300, which was credited upon his $1,600 note, previously reduced to $1,375. He told Hanson that he did not want to go through bankruptcy, owing to the expense of such proceeding, and, after talking the matter over with Hanson, he executed an instrument, on November 14, 1914, by which he assigned to Mr. Palmer, an attorney of Grayling, all his accounts, bills receivable, and choses in action, amounting at face value to $3,547.88, delivering to him all bills, statements, account books, and evidence of indebtedness in relation thereto, authorizing and directing him as trustee to collect the same and pay the sums collected to Brink’s general creditors in proportion to the amounts due them, and surrendered at about the same time possession of the mortgaged stock of merchandise to Hanson, delivering him the keys and inventory of the property taken November 8, 1914. He stated that he then thought “the property belonged to Mr. Hanson by virtue of the mortgage.”

At the time of the hearing Palmer testified of the accounts receivable turned over to him as trustee:

“I have collected $1,004, enough to pay, roughly, 40 per cent, on Brink’s accounts. * ' * * It is a conundrum how much more I can collect on his accounts. I think I can collect 50 per cent. It is simply guesswork. I wouldn’t guarantee to exceed 50 per cent, of the whole, although there may be more.”

Plaintiffs promptly filed this bill and obtained a preliminary restraining order to preserve the stock of merchandise in statu quo, which, under an arrangement between the parties and stipulation of counsel, dated November 16, 1914, was set aside without prejudice, and Hanson permitted to sell the stock he had taken possession of at the invoice price to a purchaser he secured. Plaintiffs ask that Hanson be held a receiver of the proceeds from the sale of this stock of merchandise for the benefit of Brink’s creditors, because it was voluntarily sold, transferred, and delivered to him as an entirety, otherwise than in the ordinary course of trade or usual prosecution of the retail grocery business, and in violation of the bulk sales law, and that by reason of the nonrenewal of the chattel mortgage, after October 16, 1912, it became absolutely void under the provisions of section 9526, 3 Comp. Laws, as amended by Act No. 163, Pub. Acts 1915 (3 Comp. Laws 1915, § 11991), as to creditors for accounts created by sale of goods to Brink between November 1, 1913, and November 4, 1914;

This, purchase price chattel mortgage was unquestionably good between the parties to it, if never filed. When filed, it ceased to be valid as against creditors of the mortgagor at the expiration of one year, unless renewed by affidavit within the preceding 30 days, under the section referred to, with, however, the important qualifying provision that if an affidavit of renewal is later filed:

“Such affidavit being made and filed before any purchase of such mortgaged property shall be made, or other mortgage received, or lien obtained thereon in good faith, shall be as valid to continue in effect such mortgage as if the same were made and filed within the period as above provided.”

Plaintiffs were unsecured general creditors who had acquired no lien on, or distinct property interest in, the mortgaged stock at the time Hanson’s belated renewal was filed. They were in the same condition when Hanson took possession of the property, and when they filed their bill of complaint. If the filing of a chattel mortgage is equivalent, as notice, to a change of possession the converse would seem to follow.

“Taking possession after the time for refiling has expired, but before the rights of third parties have attached, protects the mortgagee the same as if he had taken possession, and relied upon that alone in the first place.” 2 Cobbey on Chattel Mortgages, § 596.

While the authorities are not always clear, nor at times fully in harmony, upon the exact status of creditors whose claims accrued during continuance of a default in filing or renewing the mortgage, under statutes declaring the mortgage invalid as to creditors at such a time, the great weight of authority supports the general rule thus stated in Cobbey, § 774:

“To enable a person to attack the validity of a mortgage he must show some right to the property, such as being a subsequent purchaser, lienholder, or a creditor of the mortgagor, who has taken legal steps to subject the property to the payment of his debt. A mortgage cannot be legally questioned until the creditor clothes himself with a judgment and execution, or with some legal process against the property; for creditors cannot interfere with the property of their debtors without process.”

Amongst the authorities there cited to sustain this proposition appears Fearey v. Cummings, 41 Mich. 376 (1 N. W. 946).

To bring out the logic of the rule that an attacking creditor must show some special right in the property, Jones in his work on Chattel Mortgages (5th Ed.), § 245, quotes the following from American Loan & Trust Co. v. Power Co., 72 Fed. 620, in reference to delay in attaching an affidavit of good faith to a chattel mortgage:

“At the date of adding to it the affidavit required by the statute, the mortgagor could lawfully have devoted any part of its property to the payment of the mortgagee, in preference to the petitioner, or could have created a valid lien to secure its indebtedness to the mortgagee. Now, if that could have been done by making and executing an entirely new instrumént, there is not a single good reason for saying that the mortgage in question could not be made a valid lien on personal property, by adding to it the essential requisites of a chattel mortgage.”

In the footnotes to that section the Michigan authorities touching the subject are commented upon, with the final statement:

“But the later cases, as well as some earlier ones, hold that the mortgage can be disputed only by means of some process or proceeding against the property"

—citing several of our decisions, to which may be added Manwaring v. Jenison, 61 Mich. 117 (27 N. W. 899), and Wade v. Strachan, 71 Mich. 459 (39 N. W. 582), which quote the statute and support such construction.

We are not unmindful of the difficulties arising in an attempt to harmonize all the decisions of this State on certain phases of the subject, some of which, dealing with the enacting portion of the section, which declares that unrecorded mortgages are absolutely void as to creditors, etc., indicate that relief may be granted in certain cases without any preliminary judgment or lien; but, at least under the wording of the proviso relating to mortgages once duly filed and then renewed before any steps have been taken or lien interposed by others, we think that the weight of our own decisions and the better ..reason clearly sustain the general rule. Hanson’s affidavit of renewal having been filed before plaintiffs obtained any mortgage or lien upon the mortgaged property, the rights of the parties in this case remained the same as if the affidavit of renewal were made and filed within the specified period.

VCe cannot agree with complainants’ contention that the surrender of this stock of merchandise under the circumstances disclosed amounted to a sale within the common acceptation of that term, or that it operated to transfer the entire title for an agreed consideration in violation of the sales in bulk act. Had Hanson, by reason of his mortgage being void as to creditors, been without any lien upon or special interest in the stock, and Brink transferred the property to him under an agreement that it would be accepted in payment of Brink’s indebtedness, the case would be nearer analogous to Gallus v. Elmer, 193. Mass. 106 (78 N. E. 772, 8 Am. & Eng. Ann. Cas. 1067), upon which plaintiffs rely. In that case one Kopec had purchased a stock of goods and appliances from Gallus, largely on credit, and while in possession, carrying on a butcher and grocery business, sold most of the merchandise originally purchased, replenishing his stock with goods bought from others. When his indebtedness to Gallus fell due, and payment was demanded, they made a settlement and entered into an agreement in writing, drawn for the especial purpose of showing Gallus owned the property, by which Kopec sold and transr ferred all his stock of merchandise and articles used in the business, “with the good will of the same,” to Gallus, “his heirs and assigns, forever,” who immediately took over the property, good will and all, in payment of what Kopec owed him. There Gallus, who had no mortgage or other lien upon the property which gave him any priority over other creditors, bought it outright for an agreed price, by bargain and sale of the business and stock in bulk, without complying with any requirements of the act.

It is true that both Brink and Hanson admit ignorance of the full legal significance of what was done, and say that they supposed, by Brink’s surrender of possession under the mortgage, Hanson became owner of the property, but not that it was so agreed. Ncp writing upon the subject passed between them. Brink testified that he wanted his creditors to have everything he had; that Hanson took possession by virtue of the mortgage when he turned the keys over to him, saying in that connection:

“I also understood that he was to sell that property and credit the proceeds on my indebtedness. I believed that would be a credit on my indebtedness, certainly. I fully realized that the property would not pay the amount of my indebtedness, and that I would still owe Mr. Hanson something. There was nothing said, and no agreement made in any way, shape, or manner, between us that the transfer of that property was to satisfy and pay the entire indebtedness due him.”

Hanson testified in part:

“Why, I took possession of the keys, and I supposed that was all there was to it. * * * I took possession of the stock, and sold it to Mr. De Waele & Son. * * *
“Q. Under and by virtue of what authority did you do those things?
“A. Why, the chattel mortgage on the stuck. * * * I took over this property, merchandise, and fixtures of Mr. Brink, by authority of the chattel mortgage, as mortgagee named in the chattel mortgage. I took it over as owner under the chattel mortgage. I supposed I was the owner under the chattel mortgage by virtue of its terms.
“Q. State to the court whether or not that is what you meant when you said you took the property as owner.
“A. Certainly.
“Q. And that was the only sense?
“A. Yes, sir.”

Whatever misapprehension he might have been under at that time as to the effect of taking possession, it was the first and proper step towards foreclosing his mortgage, and the only step, beyond possibly negotiating with a prospective purchaser, until he was stopped from- proceeding further by a restraining order of the court. If he had a right to proceed with his foreclosure, the stipulation under which he sold the property disposed of any question as to the regularity of subsequent proceedings.

We discover nothing in the testimony which raises a doubt as to the genuineness or amount of Brink’s indebtedness to Hanson, nor that reflects on their veracity and good faith in the transaction. No fraud is shown. The case resolves itself into a question of the priority and validity of Hanson’s chattel mortgage, under which the property it covered was voluntarily surrendered, and under which he took possession, and went no further, whatever his ideas might have been, because stopped by an order of the court.

The primary object of the bulk sales act was to protect creditors against fraudulent sales (Wasserman v. McDonnell, 190 Mass. 326 [76 N. E. 959]), and, as before stated, does not preclude foreclosure of a recorded chattel mortgage given in good faith for a valuable consideration.

The decree is affirmed, with costs.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, and Brooke, JJ., concurred. Person, J., did not sit.


author: Steere, J.

text:
    SAWYER v. HART.
    1. Elections — Ballots—Pasting Sup — Marking Cross.
    Where the name of one candidate only for any office ap* peared upon a ballot at a township election, an elector who pasted the name of one candidate over the name of another for the office of township treasurer, without making a cross at the top of the ballot or before the name on the pasted slip, cast a legal vote for the candidate whose name he pasted.

    2. Same — Ballots—Marking Ballots — Spoiled Ballots.
    A ballot cast at said election was not spoiled because the voter indicated in more than one authorized way for whom he desired to vote.
    3. Same — Ballots—Marking Ballot.
    Hence, where, on such ballot, the elector marked a cross in the circle at the head of the ballot, and also marked a cross before tbe name of one candidate, be did not thereby negative his intent to vote for the whole ticket.
    4. Same — Ballots—Marking Ballot.
    Where an elector, casting a ballot containing but one ticket, desires to vote for some and not for all of the candidates whose names appear thereon, he may effectually and lawfully so indicate by erasing, or striking off, the name of any candidate for whom he does not intend to vote.
    Case-made after judgment from Huron; Beach, J.
    Submitted October 5, 1916.
    (Docket No. 55.)
    Decided December 22, 1916.

      Quo warranto proceedings by Albert Sawyer against George Hart to try the title to the office of treasurer of Chandler township, Huron county. Judgment for defendant. Plaintiff appeals.
    Affirmed.

      George M. Clark, for appellant.

      Paul Woodworth, for appellee.

       On validity and construction of law as to marking ballots, see notes in 13 L. R. A. 761; 47 L. R. A. 820.

   Steere, J.

At the annual township election held on April 3, 1916, in the township of Chandler, Huron county, there was but one ticket upon the official ballot. This contained the names of nominated candidates for the respective township offices. The name of Albert Sawyer, plaintiff and appellant herein, was printed upon said ballot as the regular candidate for township treasurer. Defendant Hart was also a candidate for the same office, and ran upon printed slips reading, “For Treasurer, George Hart.” The election inspectors who canvassed the votes on closing the polls found that Sawyer was elected township treasurer, whereupon he filed his oath of office and bond; but Hart promptly petitioned for a recount of the votes cast, which was made on April 10, 1916. The recount committee found and reported that Hart was elected by a majority of 5, he having received 85 votes and Sawyer 80. Hart thereupon qualified for, and assumed the duties of, the office of township treasurer. Sawyer, then, by leave of the court, instituted this quo warranto proceeding before the circuit court of Huron county to test their respective claims of title to the office. Issue having been duly joined, the matter came to trial before the circuit court of said county, and the determination of said recount committee was there affirmed,' on June 22, 1916.

Plaintiff’s assignments of error narrow to the proposition that the facts found by the trial court do not support its conclusions of law, and therefore do not support the judgment rendered, because the committee’s count of votes which ought not to have been counted was sustained. Upon trial in the circuit court all the ballots cast at said election were offered in evi-' denee. The facts are undisputed. It appeared that of undisputed ballots 79 were cast for Sawyer and 76 for Hart. The validity of 12 ballots was in dispute. One of the 12 was counted for Sawyer, and two others clearly could not be, and were not, counted for either candidate. Plaintiff contends that the remaining 9, which were counted for Hart, should also not have been counted for either. The 9 ballots in question have no cross in the circle at the head of the ticket, and Sawyer’s name is obliterated from all of them. Seven of them have crosses in the circles, or squares, opposite some or all names of candidates for the various offices, excepting treasurer, with Hart’s slip, reading, “For Treasurer, George Hart,” pasted over Sawyer’s name. On one ballot Hart’s slip (“For Treasurer”) is pasted over the printed portion of the ticket, reading “For Treasurer,” and Sawyer’s name, just at the right, is erased with a blue pencil mark. Upon the remaining ballot Hart’s slip is pasted over Sawyer’s name, and a cross only appears in the square before the name of the candidate for supervisor.

It is the contention of plaintiff that the mere pasting of a slip on the ballot is not a sufficient indication of the intention of .the voter, and does not accomplish the same result as making a cross in the square before the name, in support of which the case of the People, ex rel. Oatman, v. Fox, 114 Mich. 652 (72 N. W. 611), is quoted from as follows:

“We think it clear that full compliance with the statute requires that the name not appearing on the ballot be pasted or written in the proper place, and also that it be marked with a cross. The voters did not, in the use of these ballets, express an intention to vote for respondent in the manner prescribed by statute.”

In that case there were two tickets upon the ballot, with regular candidates for the office in dispute upon each ticket, while a third candidate ran on slips. Upon the ballots then under consideration there was no mark in the circle at the head of either ticket, and the unmarked names of two candidates for the same office appeared on each ballot. Following People v. Cicott, 16 Mich. 283 (97 Am. Dec. 141), it was held that the ballot was bad as to that office because of duplicity. No such question arises here, as only the name of one candidate for any office appears upon any of the nine ballots. This distinction is plainly pointed out in the opinion, and the case of Johnson v. Board of Canvassers, 101 Mich. 187 (59 N. W. 412), is distinguished. In the latter case it was held that a voted, unmarked ballot, containing but one ticket and but one name for each office, is a valid vote for each candidate named thereon, the court saying in part:

“The stamping of these ballots would not, so far as we can see, have added to the certainty of the voter’s intention, nor does the failure in any way hazard the rights of any one.”

By this authority an elector, casting at the polls a ballot with a single ticket upon it containing the name of but one candidate for each office without making any cross in the circle at the head of the ballot, legally votes that ticket to the same extent and with like effect that one casting a ballot with two or more tickets upon it votes, the ticket which he marks by a cross in the circle over it.

. Where but a single ticket is printed upon the ballot, which may therefore be legally voted for all the candidates named without marking if but one name appears for each office, the intention of an elector to vote for a particular candidate whose slip he has taken the trouble to substitute for the obliterated name of a regular candidate is in fact more clearly evident than his intention as to the other unmarked names of candidates. for whom he votes, and, like unnecessarily marking a cross in the square before the name of a candidate on a ticket marked in the circle at its head, or erasing the name in one’s party ticket when voting for an opposing candidate, but emphasizes, in a manner appropriate by statute, the voter’s intent. A ballot is not spoiled because the voter has indicated in more than one authorized way for whom he desires to vote. Attorney General v. Glaser, 102 Mich. 405 (61 N. W. 648). The court there quoted with approval the following language from the attorney general’s opinion:

“The fact that the voter has indicated in more than one way that he desires to vote for any candidate on the ballot is no reason why he should lose his vote or the candidate be deprived of the credit.”

This is apparently stated as a rule of general application, and we think should be recognized as such, provided whatever marks the elector makes upon the ballot are those designated by statute, made where the statute indicates they may be placed, and are appropriate to express the voter’s intent.

It is further urged for plaintiff that this construction is unsound and not permissible at an election where the ballot contains but one ticket, for the reason that it compels every elector, if he exercises the elective franchise at all, to vote for every candidate on the ticket, ignoring his right to vote for some and not for others, because the only way in which he can express his intention in that particular is by marking a cross in the square before the names of those for whom he desires to vote and leaving blank the squares before the names of those he prefers not to vote for. Such result does not necessarily follow. Neither does the statute recognize the suggested indirect process of elimination from a ticket which would otherwise be counted for all. If so, the elector who had marked his party ticket in the circle at its head would, by analogy, eliminate all other candidates on that ticket if he marked a cross in the square opposite the name of a favorite candidate and indicated in more than one way his intention to vote for him. This is permissible, and does not negative the indicated intent as to the whole ticket.

The statute contemplates, as noted on rehearing of Attorney General v. Glaser, 102 Mich. 396 (61 N. W. 648, 64 N. W. 828), that the erasure of a candidate’s name is to be recognized as an appropriate manner of expressing the voter’s intent not to vote for such a candidate. Hence where an elector, casting a ballot containing but one ticket, desires to vote for some and not for all of the candidates whose names appear thereon, he may effectually and lawfully so indicate by erasing, or striking off, the name of any candidate for whom he does not desire or intend to vote. By casting the 9 ballots in question the voters indicated an intention to, and did, vote for each candidate whose name appears thereon. It was permissible though not necessary, for them to indicate in more than one way, in manner recognized by statute, their desire to vote for certain candidates, and therefore their votes as cast for all candidates upon the ticket were not invalidated thereby.

The findings and judgment of the trial court that defendant Hart was duly elected to the office of treasurer of the township of Chandler and entitled to hold the same are therefore affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    JENSEN v. OCEANA CIRCUIT JUDGE.
    1. Mandamus — Security fob Costs — Return.
    Id. mandamus proceedings to compel the circuit judge to set aside an order requiring plaintiff to give security for costs, in determining whether the trial court reached a right conclusion and acted within discretionary powers, this court is not limited to the reasons returned.
    2. Costs — Security foe Costs — Meritorious Cause op Action.
    A prerequisite to plaintiff’s right to proceed without security for costs being that his declaration state a meri- ■ torious cause of action (Act No. 314, chap. 13,' § 8, 3 Comp. Laws 1915, § 12411), where the court below, without directly passing upon that question, denied plaintiff’s motion to vacate an order requiring security for costs, his ruling was, in effect, adverse to plaintiff upon that question.
    3. Same — Pleading—Sufficiency of Declaration.
    That defendant had pleaded to the declaration, does not eliminate the question of its sufficiency, on such motion.

      4. Same.
    A declaration alleging that the sheriff levied upon and sold plaintiff’s one-third interest in a note which at the time was in the possession of the prohate court by order of the probate judge, without alleging that the sheriff actually took physical possession of it or attempted to remove it from the possession and custody of the court, stated an idle and impotent performance on the part of the sheriff, harmless to prejudice plaintiff’s rights, and at most it showed but injuria absque damno, and failed to state a meritorious cause of action.
    5. Execution — Custodia Legis.
    An interest in a note in custodia legis was not subject to-levy under execution.
    6. Same — Choses in Action — Bills and Notes.
    In. the absence of express statutory authority, choses in action, bonds, promissory notes, etc., are not the subject of seizure and sale under execution.
    7. Same — Practice—Wrongful Levy.
    The usual and proper method of attacking a levy is by motion to quash it in the court under whose writ it is made, where such course will furnish adequate relief.
    Mandamus by Lewis Jensen against James E. Sullivan, circuit judge of Oceana county, to compel the vacation of an order for security for costs in an action at law.
    Submitted October 17, 1916.
    (Calendar No. 27,448.)
    Writ denied December 22, 1916.

      Sutherland, Johnson & Sessions, for relator.

      F. E. Wetmore, for respondent.
   Steere, J.

In section 22 of part 1, Cummins & Beecher’s Michigan Judicature Act, under the subheading “Security for Costs,” it is stated the act provides “that on motion of the defendant all nonresident plaintiffs shall be, and all other plaintiffs in the discretion of the court may be, required to furnish security for costs.” This subject is treated in section 8, chapter 13, of the act (Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 12411), which, as read down to its concluding proviso, sustains the foregoing statement and confers upon the trial court substantially the same discretionary powers existing under prior laws, but said proviso then proceeds to emasculate the enacting clause as follows:

“Provided further, That in case any plaintiff except a nonresident of the State, shall show the court that he is unable to comply with such order, if the court shall be satisfied that the declaration in said cause states a meritorious cause of action, and that the suit is prosecuted in good faith, the plaintiff shall be allowed to proceed in such action without giving security for costs.”

Eelying on this proviso, it is sought by mandamus to compel defendant to vacate an order requiring plaintiff to give security for costs to the amount of $100 in an action begun by him in the circuit court of Oceana county against Henry W. Gephart, sheriff of said county, to recover damages for an alleged invalid execution levy upon and sale' of an undivided one-third interest in a certain promissory note which plaintiff claimed ownership of by inheritance. A motion to set the order aside was refused, followed by this application to enforce such action.

This proceeding relates back to the case of Jensen v. Gamble, 191 Mich. 233 (157 N. W. 440), in which the note in question here was the subject of litigation. The facts there stated sufficiently serve as an historical introduction to the subsequent events involved here. That case was reversed without a new trial on the ground that plaintiff was attempting to split up an indivisible cause of action, while the note in its entirety was a single demand for which there could be but one .action. Having obtained a judgment for costs as a result of this reversal, Gamble took out an execution, and caused levy to be made by the sheriff of Oceana county upon plaintiff's undivided one-third interest in the note, which was yet in the custody of the probate court of said county, and the sheriff thereafter, against plaintiff’s protest, went through the form of selling the same on execution sale to Gamble’s wife for $25. Plaintiff Jensen then brought against the sheriff, Gephart, the action out of which this mandamus proceeding arose, declaring in a plea of trespass on the case for unlawfully seizing and disposing of plaintiff’s interest in said note, following which security for costs was asked and ordered as above stated.

It was shown to the trial court, in connection with Gephart’s application for security for costs and Jensen’s motion to set aside the order requiring same to be furnished, that on January 23, 1915, one J. W. Richey, of Chicago, 111., served notice upon Gamble that by an assignment, of date November 24, 1913, he had become and was entitled to receive one-half of all money arising out of the collection of said note, forbidding Gamble paying the same “or any part thereof without the written consent of the undersigned,” and that on April 28, 1916, after the execution levy upon Jensen’s one-third interest in said note, a written notice was served upon the sheriff, Gephart, signed by Richey and the local attorneys of record in this case; that they had “a lien on the undivided one-third interest of the said Louis Jensen in and to the said promissory note for services rendered, and hereafter to be rendered,” warning him that sale of the same would be subject to their rights. Of this, defendant’s answer states it affirmatively appeared to the court from the “statements and concessions of the parties” that by an agreement between them Richey and the local attorneys of record were joint owners of the interest in the note which Richey had taken by assignment, and the court proceeded to apply a practical test of “good faith” by offering to accept one of them as sufficient surety upon the $100 obligation ordered given to secure costs.

Of the reasons given for refusing plaintiff’s motion, the return says in part:

“That although this suit may have been started in good faith, it is the third suit that petitioner has attempted to prosecute for the same cause of action. * * * That this suit is in fact an attempt to use an irresponsible plaintiff to prosecute a cause of action of which at least half the subject-matter thereof belongs to the attorneys * * * that the principal reason for refusing to set aside the order for security for costs was the fact that the attorneys for plaintiff were owners of half the cause of action, and that this was a suit against a public officer for a matter directly concerning his duties as such. * * * That inasmuch as a plea had been filed by the defendant, the court did not consider nor pass upon the question whether or not the declaration stated a meritorious cause of action, but based his decision upon the matters hereinbefore stated.”

It is urged for plaintiff that the trial judge neither passed upon the question of plaintiff’s good faith in bringing the action, nor whether the declaration stated a meritorious cause, but, as shown by the answer, ignored those questions by which under the statute his discretion is limited and, not having denied the motion to vacate the order on either of those grounds, plaintiff should be allowed to proceed in his action without giving security for costs.

As we understand the reasons given in the return, they relate mainly to whether it was obligatory upon the court to accept as legally sufficient plaintiff’s showing that he was individually unable to comply with the order requiring limited security for costs, when other active participants in the litigation, though not parties of record, are shown to own an equal interest with him in the subject-matter of the suit, and are not shown to be unable to effect compliance with the order. In determining, however, whether the trial court reached a right conclusion and acted within discretionary powers, we are not limited to the reasons returned.

Aside from other considerations, a prerequisite to plaintiff’s right to proceed without security for costs is that the declaration states a meritorious cause of action. The trial court denied the motion on other grounds, and did not directly pass upon sufficiency of the declaration. Failure to do so was in effect an adverse ruling to plaintiff upon that question. That defendant had pleaded does not eliminate the question. If the plea is taken as true, there is no merit in the declaration from any viewpoint, but considered independently as a pleading the court could not, as a proposition of law, have been satisfied that the declaration stated a meritorious cause of action. It merely states an idle and impotent performance on the part of the sheriff at the instance of Gamble, which was a nullity, of no legal force or effect, and harmless to prejudice plaintiff’s rights.

It states plaintiff’s inherited interest in an undivided one-third of the note, proceedings of the probate court' in relation thereto determining the respective interests of beneficiaries, and shows that the court

“further ordered, adjudged and decreed that said note shall be and remain in the possession of said probate court, to be used by any of the parties owning the same, but not to be removed from this court, except upon the order of said court, or the circuit judge of Oceana county.”

Although it is charged that the sheriff levied upon and sold plaintiff’s interest in said note, it is not alleged, or claimed, that he actually took physical possession of it, or attempted to remove it from the possession and custody of the probate court, where it presumptively, and so far as shown, yet remains. It was in custody of the law, impounded by an order of the court, and any attempt to take it from possession of the court would lay him liable to punishment by summary proceedings, for, being in custodia legis, it was neither subject to garnishment nor direct levy under execution. 1 Freeman on Executions (Bd Ed.), § 159a.

Beyond this, the note was not subject to levy on execution at all. People, ex rel. Martin, v. Board of Auditors, 5 Mich. 223. There is no statutory provision in this State authorizing such proceeding. • In the absence of express statutory authority, choses in action, bonds, promissory notes, etc., are not the subject of seizure and sale under execution. 1 Freeman on Executions, § 112; Herman on Executions, § 122; 17 Cyc. p. 971.

Plaintiff’s counsel recognize in their brief that this note is not subject to levy and sale upon a writ of execution, and urge that defendant,

“by levying upon and selling said note, exceeded his authority and unlawfully converted the same and became liable in an action in the nature of trover for conversion thereof.”

He did not and could not convert by a void levy or pass to the pretended purchaser by a void execution sale any right in or title to this past-due promissory note, a piece of paper valuable, only as evidence of indebtedness, held in custody of law by an order of the probate court, where it was presented as a claim against an estate in process of probation,

While plaintiff’s declaration charges that defendant by an unlawful levy “took and seized,” and “did wrongfully and unlawfully sell, convert and dispose of,” his undivided one-third interest in the note, no actual possession by physical seizure is alleged, and such formal averments, relating to a void execution levy upon an undivided interest in a writing held in the custody of a court,, do not, under the situation outlined in the declaration as a whole, charge physical interference with or removal of said note from the actual possession and custody of the probate court.

The usual aind proper method of attacking a levy is by motion to quash it in the court under whose writ it is made, where such course will furnish adequate relief (2 Freeman on Executions [3d Ed.], § 271a), and along the same line it was held in Campau v. Godfrey, 18 Mich. 27 (100 Am. Dec. 133), that one who complains of a levy upon his property should move for relief in the court which issued the execution rather than by a bill in equity. While the court from which this execution issued might, with propriety, if applied to in a proper proceeding, take note of and vacate with costs any record of this unlawful and worthless levy and pretended sale, plaintiff’s declaration fails to show that his title to the note or rights in that connection have been impaired or he injured thereby, at most it shows but injuria absque damno, ■ for which reason it cannot be said to state a meritorious cause of action.

The writ of mandamus applied for is therefore denied.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, and Brooke, JJ., concurred. Person, J., did not sit.


author: Brooke, J.

text:
    BUHSE v. WHITEHEAD & KALES IRON WORKS.
    1. Master and Servant — Workmen’s Compensation Law — Course oe Employment.
    On certiorari to review an award by tbe industrial accident board to the parents of decedent under tbe workmen’s compensation law (Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5423 et seq.), for the death of decedent as the result of blood poisoning, following an injury to his finger, claimed to have been received in the course of bis employment, held, that there was competent testimony upon which the board could base its finding.

    2. Same — Parties—Parent and Child — Conditional Award.
    Where tbe claim for compensation for the death of a son was made in the name of both parents, who had benefited alike by the son’s contributions, and the proceedings negative the possibility of a second claim being made in the name of tbe mother, the contention of appellant that tbe award should be made conditional upon tbe filing of a waiver by the mother was without merit.
    3. Same — Amount oe Award — Contributions.
    Where appellant claims the award should be $8.01 per week, computed upon the definite amount of $416 shown by the evidence to have been contributed by decedent to claimants the year previous to his death, under section 5, part 2, Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5435, an award of $3.33 1/3 per week will not be reversed, where tbe evidence shows that there were additional contributions of uncertain amount for fuel.
    Certiorari to Industrial Accident Board.
    Submitted October 5, 1916.
    (Docket No. 44.)
    Decided December 22, 1916.
    Albert Buhse presented his claim against the Whitehead & Kales Iron Works for compensation for the death of his son in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Affirmed.

      Goodenough & Long, for appellant.

      Lyle G, Younglove, for appellee.

       On application and effect of workmen’s compensation acts, generally, see comprehensive note in L. R. A. 1916A, 23 et seq.

   Brooke, J.

This is certiorari to the industrial accident board. The committee on arbitration awarded the applicant the sum of $3.50 per week for a period of 300 weeks as a partial dependent upon his son, Charles Buhse. Upon appeal to the board the award was affirmed in all things, except that the amount to be paid was reduced from $3.50 to $3.33 1/3 per week.

Appellant states that the following three questions are involved:

(1) Is there competent evidence in support of applicant’s claim that Charles Buhse received an injury in the course of his employment, from which he contracted blood poisoning and died?

(2) Is applicant entitled to compensation, as a partial dependent?

(3) If applicant is entitled to compensation, is the amount awarded correct?

It is the contention of appellant that the evidence introduced on the part of applicant is not sufficient to sustain the finding of the board that Charles Buhse sustained an injury in the course of his employment which developed into blood poisoning and ultimately caused his death.

The facts as disclosed by the record are as follows : The deceased was a structural iron worker, and while engaged in his. work on November 23, 1914, one of his index fingers, was caught and jammed. About a week later he suffered a second injury to the same finger. He became ill shortly thereafter and was sent to Harper Hospital, where he died on December 30, 1914, from blood poisoning.

The following evidence with regard to the injury was introduced by William Tillman:

“In November, 1914, I was employed by respondent on the job at the Ford plant with Charles Buhse. We were both structural iron workers. We roomed together on Gerald street, Highland Park. On November 23, 1914, we were upon a column getting a girder in place, and the girder swung around, and caught his finger between a lug on the column, and the girder pinched his finger. He says: ‘Bill I nearly lost my finger.’ He showed it to me. It was black and blue. He did not stop work.”

Under objection by respondent that the testimony was hearsay, and incompetent, the witness testified:

“He pinched the same finger later on. I did not see it until after it was pinched. It was ‘busted open.’ I guess it must have bled. This second injury occurred on the power house. At the time when he got his finger hurt, when I was with him, his finger was not broken open; it was only black and blue. About a week after that when he came home he showed me the finger broken open. There wasn’t a gash in it; it just seemed pinched at the end. He dressed it with some carbolic salve. I don’t know anything about this second injury except what he told me. I wasn’t present at the time. I don’t know anything about it. He complained to me on Saturday that his arm pained him. On Sunday he went to see Dr. Edwards. I went with him to the hospital on Monday. He complained at that time of being sick. I saw the finger from time to time after the first injury. Some time about a week after the first accident, I could not give the exact date, he showed me the finger broken open before we washed up. He went to the drug store and got carbolic salve to dress it. Saw him at the hospital, and wound was nearly healed up.”

By Bert Reese:

“I am an iron worker. In November, 1914, I was employed by respondent on the Ford job. During the latter part of November, 1914, I was with Charles Buhse, when he hurt his finger. He shook his finger like that (indicated), and I am pretty sure he said, T hurt it again.’ I heard he had hurt it before. I didn’t see the injury itself. I heard later he went to the hospital.”

By Dr. E. Parke Edwards:

“Charles Buhse came to my office one morning (I don’t know the date) with an abrasion on one of his fingers and was complaining of pain in his arm, and I took his temperature. There was a slight fever that day, and I asked him to come back the next morning, which he did, and he was worse, if anything. The symptoms were worse, his pain was greater, and I examined his arm more carefully, and found a lymphangitis, red streak running up the arm and great tenderness in the axillary, in the arm pit, and I advised him at once to go to the hospital, and made arrangements for him to go to Harper Hospital, while he was still in my office. Then I called Dr. Potter and he took charge of the case. I diagnosed the case as blood poisoning. It was about December 6, 1914, that I saw him first. I saw him after he went to the hospital. I saw nothing to change my opinion. It was more of an affirmation of my opinion.
“Q. There was nothing to indicate that the infection might not have been caused by pricking it open, or something like that?
“A. It could not have been done.
“Q. Was there anything to show on the wound that it could not, though?
“A. The wound would not be as extensive, the size of the wound, by pricking it open or anything like that.
“Q. Yes, but the wound might be quite extensive and yet not be infected?
“A. Very true. That is true.”

On behalf of respondent the following testimony was introduced:

By Edward J. McCarthy:

“I am adjuster under the compensation law. Respondent is one of the companies I am employed by. I got acquainted with Charles Buhse, ak a result of the timekeeper at the Ford job telephoning to the head office that Mr. Buhse was in the hospital. I went up to the hospital then, and saw Mr. Buhse. He was confined to his bed. I asked him what was the matter. He told me he was sick. He said he hurt his finger three weeks before. I said, ‘Where?’ He said, ‘On the end.’ He showed me the right index finger. I said, ‘How did you hurt it?’ ‘Well,’ he said, T pinched it.’ I said, ‘What is the matter with it now?’ He had his arm under the quilts, and I said, ‘How is it now?’ ‘Why,’ he says, ‘my finger is all right, but I have got pains in my arm.’ I said, ‘Let me see the finger,’ and he showed me the finger, and the finger was practically healed.”

By Mrs. Fred Williams:

“I kept a rooming house in Highland Park. Mr. Buhse roomed there. I did not know anything about his having a sore finger until the day he was taken to the hospital. I said, ‘What is the matter with Mr. Buhse?’ and he said, T ran a piece of steel in my finger a few days ago, and I picked it open, and it is bothering me,’ and he said, ‘I went to a doctor this morning, and he said I was about to have blood poison.’ He said he opened it, opened his finger with a knife to see if it would ease it. He said he ran a piece of steel in his finger three weeks before that, and he said that he didn’t see that anything seemed to do it any good. He said he was suffering from those pains for three or four days before he spoke to me and before he tried to ease it.”

By Dr. H. D. Jenks:

“He said that he had been one week in the hospital. About two weeks previous to his entrance to the hospital he had pinched his finger, as he expressed it; that it had raised a little bit of a dark pimple. I said, ‘Was the skin broken?’ He said, ‘No, sir.’ I said, ‘You were not laid up ?’ and he said, ‘No,’ he was not laid up; had. worked right along. He said, ‘A few days after that,’ he said, T took and pricked that with a needle,’ and curiously enough he said he sterilized the needle. I said, ‘What did you get out of it?’ He said, ‘I didn’t get anything.’ He said, ‘There was a little black pimple there,’ and I said, ‘You kept on working?’ He said, 'Yes, sir.’ He said lie worked for, approximately, I won’t be exact on. this, but approximately a week later.”

Based upon the foregoing testimony, it is the claim of appellant that there is no competent testimony that the septicaemia which caused decedent’s, death resulted from the accident to his finger. It is contended that blood poisoning can only result when there is an opening in the skin through which infection may pass into the blood, and it is urged that, under the testimony contained in this record it is just as reasonable to suppose that decedent met his death through blood poisoning superinduced by his own treatment of his finger which had been bruised but not broken open, as that it resulted from a breaking open of the skin at the time of either the first or second injury. In other words, it is claimed that the actual cause of the decedent’s death is purely conjectural. With this view we are not inclined to agree. We think that the testimony introduced will support a reasonable inference that an open wound was caused by either the first or second injury to the finger, and that the blood poisoning resulted therefrom rather than from an act self-inflicted in an endeavor to relieve the pain from which decedent was suffering. We are unable to say that there was no competent testimony upon which the board could base its finding that decedent came to. his death as a result of an injury received in the course of his employment.

The second contention of the appellant is based upon the assertion that the record fails to show any contributions. made by decedent directly to the applicant, and it is. said that to protect respondent from a claim on the part of Augusta Buhse, mother of decedent, the award should be made conditional upon a filing of a waiver by Augusta of any claim growing out of the same circumstances, unless the court should be of opinion that all payments were made for the benefit of the applicant. In this contention we think that the appellant has overlooked the fact that the claim for compensation is made in the name of both Albert and Augusta Buhse, father and mother of decedent, and the evidence clearly discloses that such contributions as the decedent made were made alike for the benefit of his father and mother. The proceedings negative the possibility of a second claim being made against respondent by Augusta, the mother, she being a party to the present proceeding.

The last question discussed in the brief of appellant is as to the amount.of the award. It is claimed that the record shows contributions by the deceased to his father and mother of not more than $416, during the year previous to his death, and that his conceded earnings being $1,380, according to the method of computation set out in section 5, part 2, of the act (Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5435), the award should have been $3.01 per week instead of $3.33 1/3 per week. Assuming the facts as to the contributions to be as stated by appellant, the computation made by appellant is conceded by counsel for appellee to be correct. It is urged, however, by counsel for appellee, that the record shows other small contributions in excess of $416 made by decedent to his parents within the year. There is testimony to the effect that some money was furnished by decedent for the purchase of coal and wood, the exact amount is not disclosed by the record; but, as the amount allowed therefor by the board is small and apparently within the limits set by the testimony, we are not disposed to question its determination upon this point.

The order of the industrial accident board, is affirmed. •

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. Person, J., did not sit.


author: Prooke, J.

text:
    TACOMA v. NYENHUIS.
    Justices oe the Peace — Jurisdiction—Docket.
    'On certiorari to review the action, of the circuit court in •setting aside a justice’s judgment, where the justice failed to keep a docket and make specified entries thereon, as rrequired hy the statute (1 Comp. Laws, § 957, 3 Comp. Laws 1915, § 14451), held that the justice was without jurisdiction, and the judgment was properly set aside.
    Certiorari to Allegan; Cross, J.
    Submitted October 16, 1916.
    (Docket No. 145.)
    Decided December 22, 1916.
    Assumpsit in justice’s court by Samuel Tacoma .•against James Nyenhuis for goods sold and delivered: Prom a default judgment for plaintiff, defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings certiorari.
    Affirmed.

      Jarrett N. Clark, for appellant.

      Clare E. Hoffman, for appellee.
   Prooke, J.

On November 22,1915, plaintiff secured a default judgment against defendant in the sum of $30 and $3.10 costs. Thereafter defendant took a special appeal to the circuit court.

The justice’s return to the circuit court upon said appeal is, in part, as follows:

“The cause was commenced by summons issued on the 13th day of November, 1915, returnable at my office in the township of Saugatuck, in said county, on ]the 22d'day of November, 1915, aforesaid, at 9 o’clock in the forenoon.
“The plaintiff appeared in person and by attorney, J. N. Clark, and declared orally on each and all the common counts in assumpsit, and especially for a book account. The defendant did not appear, and after waiting one hour, and defendant not appearing, the plea of the general issue was entered by the court for the defendant. The cause was tried by the court. Samuel Tacoma was sworn and testified in his own behalf. That on the 22d day of November, 1915, I forthwith rendered judgment in favor of the plaintiff and against the defendant for the sum of $30 damages and $3.10 costs of suit. * * *
“(1) Said judgment was not on the 24tn day of November, 1915, entered on my docket.
“(2) I had, at the time said affidavit was made before, no written minutes of said judgment.
“ (3) At the time of the making of said affidavit* there was not in my office any record of said cause* except the original summons issued thereon and the officer’s return thereon. The only evidence that such judgment had been rendered was my verbal statement to that effect.
“ (4) My docket did not, at 2:30 p. m., on the 24th day of November, 1915, contain any statement whatever, showing that such a cause was ever pending before me, said justice, and no entry relating to said cause had ever at that time been made upon my docket or in any separate minutes kept by me of said cause, the whole proceedings being merely verbal. * * *
“In answer to the second error alleged in the affidavit of the said James Nyenhuis, I do return that I have no information as to whether or not I had jurisdiction, but I assumed that I had when I rendered said judgment. In answer to the third alleged error, I return that no security for costs had been given by the said plaintiff and that said plaintiff was a nonresident of the county.”

The judgment having been reversed and set aside by the circuit court, plaintiff now reviews that action here by writ of certiorari.

In his return to the writ the learned circuit judge says:

“And I further certify and return that, from the affidavit and the return of the justice submitted on the. hearing of said cause, it did not appear that said justice rendering said judgment had ever entered said judgment or any of the proceedings relating to said cause upon his docket or kept any minutes of any proceedings which may have been pending before him in said cause, and that the question as to whether said suit had been commenced, whether the summons had been personally served, or whether there had been substituted service, or whether the justice had acquired jurisdiction to render a judgment, was not made a matter of record in any form at any time, either at the time said appeal was taken or prior to the making of the return of the said justice, which was made upon the 26th day of November, 1915, or at the time of the hearing of said cause in circuit court.
“I do further return that, from the affidavits on file and from the return of. said justice, it appeared that no record whatever, either as to the issuing of the summons, the date of the return, the service of the summons, or of any proceedings had in said 'cause before said justice, was ever made in the docket of said justice or in any minutes kept by him; and that the whole of the proceedings before said justice with reference to said suit rested in parol.
“I do further return that it appeared from the return of said justice that the plaintiff was a nonresident of the county and that no security for costs had been given by him.”

We have lately held (Hoben v. Telephone Co., 176 Mich. 596 [142 N. W. 1070]) that the jurisdiction of the justice must appear affirmatively upon the face of the proceedings, citing Davison v. Davison, 99 Mich. 625 (58 N. W. 637); E. S. Knowles & Son v. Cavanaugh, 144 Mich. 260 (107 N. W. 1073); Wells v. Guaranty Co., 160 Mich. 213 (125 N. W. 57).

The statute (1 Comp. Laws, § 957, 3 Comp. Laws 1915, § 14451) requires the justice to keep a docket and make certain specified entries therein. It is apparent, from the return of the justice and from the return of the learned circuit judge to the writ of certiorari, that tip to the time of the hearing in the circuit court on a special appeal no record whatever of jurisdictional facts was kept by the justice either in a docket or upon separate memoranda.

The judgment is affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. Person, J., did not sit.


text:
    SEABURY v. DETROIT UNITED RAILWAY.
    1. Evidence — Mortality Tables — Present Worth.
    Where plaintiff’s expectancy, in a personal injury case, was shown by the mortality tables to be 26 years, it was not error to refuse to strike out testimony given by plaintiff’s counsel that the present worth of one dollar to be paid each year for 26 years would be §16.37.
    2. Damages — Measure oe Damages — Value oe Labor and Services — Market Value.
    The true measure of plaintiff’s damages, in a personal injury case, for labor and services which he had been able to perform before the injury, and which, because of the injury, he was unable to perform thereafter, would be the value in the open market of such labor and services.

    3. Same — Expectancy—Present Worth — Method oe Computation —Instructions.
    Where the trial court properly instructed the jury as to the method of finding the present worth of any sum of money, and further instructed them that in using the mortality tables they were to take into consideration the fact that plaintiff might not live out his expectancy, that he might be sick some of the time, and not able to work all the while, the charge was within the rule approved by this court in Little v. Bousfield & Co., 165 Mich. 654 (131 N. W. 63).

      4. Trial — Argument of Counsel.
    It was improper for plaintiff’s counsel, in his argument to the jury, in a personal injury case, to refer to the fact that, under the decision of the Supreme Court, he was not at liberty to ask them what they would take to be changed from their present condition to one like plaintiff.
    5. Same — Argument of Counsel — Credibility of Witnesses — Curing Error.
    Remarks by plaintiff’s counsel, in his closing argument to the jury, that in all his experience in 40 years in trying personal injury cases for the railroad company he had never known a single instance where the conductor and brakeman admitted that they had been at fault, if an injury occurred because of their negligence, and the trial court, at the time the remarks were made, definitely refused to rule upon defendant’s objection thereto, were highly prejudicial, and in view of the sharp conflict in the testimony, the effect upon the minds of the jury was not removed by the court’s tardy and apologetic treatment of the incident on the following day, in his charge to the jury.
    Error to Lapeer; George W. Smith, J., presiding.
    Submitted October 3, 1916.
    (Docket No. 17.)
    Decided December 22, 1916.
    Case by John Seabury against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Corliss, Leete & Moody (Benj. F. Reed, of counsel), for appellant.

      Theo. D. Halpin, for appellee.

       Admissibility, on question of damages for personal injuries, of amount paid for services of substitute during incapacity, see note in 30 L. R. A. (N. S.) 737.

       On conclusiveness and effect of tables of expectancy of life, in action for personal injuries, see note in 40 L. R. A. 560.

   Brooke, J.

Plaintiff in this case brought suit against the defendant to recover damages for injuries alleged to have been suffered by him through the negligence of the employees of the defendant company, in suddenly starting a street car after it had come to a full stop, while plaintiff was in the act of alighting. The case was warmly contested both upon the basic question of defendant’s negligence and on the extent of plaintiffs injuries. Upon the first question the testimony given by witnesses on behalf of the plaintiff and that given by witnesses on behalf of the defendant is so diametrically opposed as to preclude indulgence in the charitable assumption that one set of witnesses or the other was merely honestly mistaken as to the controlling facts. Unquestionably upon one side or the other there was conscious divergence from the' truth. Plaintiff secured a verdict for $6,805.

Defendant now reviews the case in this court under some 24 assignments of error, only a few of which we find it necessary to examine. In the course of the trial, the plaintiff, introduced the mortality tables, from which it appeared that plaintiff had an expectancy of 26.22 years. Thereupon Mr. Halpin, one of plaintiff’s counsel, was sworn as a witness and gave testimony showing the present worth of $1 to be paid each year for 26 years, to the effect that the present worth of the $26 so paid would be $16.37. A motion made on behalf of defendant to strike out this testimony was overruled and errors assigned thereon. This practice was followed in Little v. Bousfield & Co., 165 Mich. 654 (131 N. W. 63), apparently without objection. We think no error was committed in admitting the testimony of which complaint is made.

In the course of the examination of the plaintiff as to the measure of his damages, the following questions and answers appear:

“Q. What was your services worth to yourself in doing the work you done on the farm before your injury that you are not able to do now?
“Mr. Stevens: Object to that as incompetent, immaterial, and irrelevant, and suggestive, and not the proper measure of damages.
“The Court: Same ruling and exception. Answer.
“A. My labor at that time?
“Q. (Question read.)
“A. Myself?
“Q. Yes.
“A. I calculate about $3 a day, myself to go ahead and manage it and do all that work.
“Q. That would include the managing?
“A. Yes, sir.
“Q. You are able to do some of the managing now?
“A. Yes, sir.
“Q. You direct the work now?
“A. Yes, sir.
“Q. Tell the men what to do ?
“A. Yes, sir.
“Q. You are able to do that?
“A. Yes, most of the time; most of the time.
“Q. Are you able to work with the men?
“A. No, sir.
“Q. Taking into consideration the fact that you are able to direct the men now, I will say, what were your services worth to yourself that you were able to do before the injury, that you are not able to do now?
“Mr. Stevens: Same objection as to the former question.
“The Court: Same ruling. (Exception.)
“A. Well, they would be worth $2 a day the year around, and, of course, through the winter the man I have is different; I don’t pay him through the winter.
“The Court: Strike that out.
“Q. What I am trying to get is what the loss of his own services, that is all we claim for the measure of damages.
“Q. That is all.”

While we do not agree with the claim of appellant that “the proper measure of damages is the amount that the plaintiff is compelled to pay for labor to do the work that he formerly did which he claimed that he was unable to do after the accident,” we are still of opinion that the true measure of damages should not be based upon the plaintiff’s estimate of the value of those services to himself. The true measure of plaintiff’s damages upon this branch of the case would be the value in the open market of the labor and services which he had been able to perform before the injury and which because of the injury he was unable to perform thereafter.

Error is assigned upon the charge of the court, and it is claimed that improper instructions were given by the court as to the manner in which the. jury should ascertain the damages to plaintiff and the present worth thereof. An examination of the charge we think will show it to have been fairly within the rule laid down in Little v. Bousfield & Co., supra, which was approved in Rivers v. Electric Co., 164 Mich. 696 (128 N. W. 254, 131 N. W. 86).

Several errors are assigned upon alleged' improper argument of counsel for plaintiff in his argument to the jury. In addressing the jury counsel said:

“I am not at liberty under the decision of the Supreme Court to say to you: What would you take to be changed from your present condition to one like John Seabury?”

Exception having been made to this argument, the court said: ,

“There is nothing to rule on. You may take an exception. The jury cannot award anything in the way of punishment.”

While it is admitted by counsel for appellant that this statement is a correct exposition of the law, it is argued that it constituted an indirect appeal to the feeling of sympathy of the jury. In several recent cases the court has condemned appeals made by counsel to juries where juries have been asked to place themselves in the position of the plaintiff and to award damages on the basis of what they themselves would take to suffer as plaintiff suffered. Hughes v. City of Detroit, 161 Mich. 283, 288 (126 N. W. 214, 137 Am. St. Rep. 504); Morrison v. Carpenter, 179 Mich. 207, 223 (146 N. W. 106, Am. & Eng. Ann. Cas. 1915D, 319); Wells v. Railroad Co., 184 Mich. 15 (150 N. W. 340); Jolman v. Alberts, 186 Mich. 643 (153 N. W. 11); Mortensen v. Bradshaw, 188 Mich. 436 (154 N. W. 46). With reference to this incident we content ourselves by saying that we think counsel’s reference to the fact that the decision of this court precluded him from making a particular appeal to the jury was unfortunate.

In his closing argument counsel said to the jury:

“In all my experience in 40 years, I have tried many of these cases for the Grand Trunk, and I have never known a single instance where the conductor and brakeman admitted that they had been at fault, if an injury occurred, because of their negligence.
“Mr. Stevens: I object to that statement.
“Mr. Reed: We take an exception, if the court please.
“The Court: All you can do is to take an exception.
“Mr. Stevens: Under the ruling of the Supreme Court it is not good unless the court makes a ruling.
“The Court: I am not ruling upon it.
“Mr. Reed: We except because the court does not make a ruling.”

The court definitely refused to rule upon the objection at the time of the incident. At the opening of Ms charge he treated the matter as follows:

“Gentlemen, before taking up the merits of the case, I deem it my duty to call your attention to one statement made by Judge Williams in his argument. I know he will excuse me for calling' attention to it, because it is a matter of duty, and I have no doubt if he had made the statement on reflection he would not have made it. I understood him to say that in all his experience he had never known any employees of the railway company to admit that they were negligent. That might mean he had not heard very many witnesses testify upon that subject, or it might not. I say you will consider the witnesses of the defendant in this case, all of them, the same as you would consider the witnesses upon the other side. In other words, you are to assume in the first place the witnesses intend to speak the truth, then you will test their testimony by their appearance, by their cross-examination. You will inquire whether they are corroborated or not, is such testimony feasible, and such witnesses as you finally determine are speaking the truth you will receive it and act upon it. When you have determined a witness is mistaken or has stated an untruth, you will reject his testimony and not act upon it. You will consider all the witnesses, no matter whether they are conductors or motormen or detectives of defendant alike; treat them all alike and consider them in the same way.”

Touching this remark, counsel for plaintiff says:

“That this statement was outside of the record may be conceded, and that it is a statement that could be truthfully made by any one having had experience in trying similar cases is, we think, also true. It does not seem to us possible that a just judgment should be interfered with because of the statement of such a palpable truth.”

We are of opinion that this argument was highly prejudicial. As has been before pointed out, there was a sharp conflict in testimony between the employees. in charge of the car from which plaintiff fell and the witnesses for the plaintiff. One set of witnesses or the other was obviously falsifying. This being the state of the record, counsel for plaintiff, a man of high probity and wide experience as a lawyer, particularly in the defense of a railway corporation in suits growing out of injuries caused by the alleged negligence of the railway employees, in effect, testified to the jury that such employees were not worthy of credence. The refusal of the court to promptly condemn the argument at the moment attention was called to it tended to further prejudice the defendant’s rights. The tardy recognition by the court of the erroneous character of the argument and his apologetic treatment of the incident, in our opinion, failed to remove from the minds of the jury its legitimate effect.

The case is reversed, and new trial ordered.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. Person, J., did not sit.