author: Grant, J. Hooker, J. Montgomery, C. J.

text:
    BELL v. VILLAGE OF WAYNE.

    1. Highways — Uncontrollable Horse — Shying.
    A horse which becomes frightened, and backs or plunges so that, even with proper management, it cannot be kept within a good roadbed, wide enough to permit teams to pass in safety, is beyond control, within the rule relieving municipalities from liability for certain accidents where a horse is uncontrollable, but charging them where it “simply shies to an extent common and probable among horses.”
    2. Same — Absence of Barriers — Injury to Driver — Proximate Cause.
    Where the driver of a horse, which becomes uncontrollable through fright not attributable to the negligence of the municipality charged with keeping the highway in repair, sustains injuries which would have been avoided had proper barriers been maintained at the place of the accident, the fright, and not the lack of barriers, is, as a matter of law, the proximate cause of the. injuries, and hence no action will lie against the municipality.
    Montgomery, C. J., and Moore, J., dissenting.
    Error to Wayne; Hosmer, J.
    Submitted April 19, 1899.
    Decided March 27, 1900.
    Case by Andrew Bell against the village of Wayne for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    The facts are stated in the dissenting opinion of the chief justice.

      Selling & Hatch, for appellant.

      Cutcheon & Stellwagen, for appellee.

       Rehearing denied May 18, 1900.

   Grant, J.

The distinction, now contended for in cases of this character, was not lost sight of by the writer of the opinion in Doak v. Township of Saginaw, 119 Mich. 680 (78 N. W. 883). The differences between that case and this are these: In this case the banks were higher and steeper, at least on one side. In the Doak Gase the frightened horse backed into the ditch. In the present case the backing horse was struck by the plaintiff, started forward, crossed the road, and went down the embankment. The roadbed in this case was wider than that. Here the roadbed was 17 feet wide, and in good condition. In both cases the horses were frightened, and not by anything for which the township was at fault. In the Doak Gase it was uncertain what frightened the horse and caused him to back. In the present case it was two boys in a tree. The plaintiff lost control of his horse, so that he was unable to keep him within the traveled way, 17 feet wide. He testified that there would have been no trouble if the horse had not seen the boys in the tree.

Whether this is a case where barriers should have been erected I do not deem it necessary to determine. In Massachusetts the statute expressly makes townships liable for the failure to erect barriers. What the decisions would be if their statute were like ours is, at least, doubtful. In Hinckley v. Inhabitants of Somerset, 145 Mass. 326 (14 N. E. 166), the stone wall which formed the barrier was 2 feet high. On the outside of the wall was water 10 feet deep, the surface of which was about 8 feet below the top of the wall. The horse became frightened a.t some oyster boats, and ran into or upon the wall, and got astride of it with his hind legs. That case is in direct conflict with Beall v. Township of Athens, 81 Mich. 536 (45 N. W. 1014). It is impossible to reconcile them. In Harris v. Inhabitants of Great Barrington, 169 Mass. 271 (47 N. E. 881), it was held that the roadbed, 17 feet wide, was not defective by reason of narrowness, but that, there was evidence that the highway was defective for want of a sufficient railing.

If, as my Brother Montgomery says, the rule has not been made entirely clear by the decisions, it undoubtedly results from the difficulty in determining when the driver has, and when he has not, lost control of his frightened, horse. In the Doak Case the horse had become so unmanageable that the driver could not prevent his backing. Doak’s counsel said in their brief: “The driver did his utmost to prevent the backing.” In the present case the-frightened horse was backing, was struck by the driver,, and had become so unmanageable that he could not keep him within the limits of the traveled road, wide enough for two teams to pass with perfect safety. Plaintiff did’ his utmost to keep the horse in the road, but failed to do so. We held in Si. Clair Mineral Springs Co. v. City of St. Clair, 96 Mich. 463 (56 N. W. 18), that where a. horse stopped, backed over the apron of a bridge against, an insufficient railing, fell into the water, and was drowned,, the city was not liable. In that case there was no fright. The horse started up the bank, and backed because of too great a load. Under the contention of the plaintiff in this case, if the horse, instead of backing from an overload, had backed from fright, and the jury could find that the driver had lost only temporary control, the city would, have been liable. In neither case was the city or village responsible for the proximate cause of the accident. What difference, in principle, between the two cases? Is it logical to say that, where the horse backs from other cause than fright, the defendant is not liable, but where he backs from fright it is liable, provided the jury are able to find that the driver had not lost complete control of him ? There certainly is no difference in the liability between backing and shying, or running down an embankment or into a ditch.

In Beall v. Township of Athens, the horse became frightened at a log upon the side of the highway. The driver struck his horse, which jumped forward, and upset the buggy. - In this case the horse became frightened, was struck, could not be kept within the highway, and went down the embankment. Where is the difference in principle or in the facts between that case and the present ? Both horses went over the side of the road because their drivers were unable to keep them within the traveled way.

In Lambeck v. Railroad Co., 106 Mich. 512 (64 N. W. 479), plaintiff’s horse had run for a block, and ran into the end of a car standing in the highway. Plaintiff was unable to keep him from running the carriage against it. It was held that the horse was beyond control.

In Agnew v. City of Corunna, 55 Mich. 428 (21 N. W. 873, 54 Am. Rep. 383), it was claimed that the horse was frightened at a large stone standing in the highway between the roadbed and the gutter, turned up a side street, and upset the buggy. It was there said: “If the stone had anything to do with the action of the horse and damage to the buggy, if was by frightening the animal, and not by hurting or impeding him.” If the horse in that case had shied or run into the gutter, or, running down the side of the roadbed, had caused the buggy to sway and upset, would not the rule of law have been the same ?

In Bleil v. Railway Co., 98 Mich. 228 (57 N. W. 117), the horse was hitched, broke away, and ran into iron rails piled upon the street. If the driver had been in the buggy when the window fell, and the horse had started and run upon the rails, causing the same injury, would this court have said that the rails, and not the falling of the window, were the proximate cause of the injury, if the jury were enabled to find that the horse was not beyond control?

What is the principle or rule upon which these decisions are based ? It is that the primary cause of the accident is the fright of the horse, not the defect in the highway. Why should a jury be left to speculate upon the question whether the driver could have controlled his horse but for the defect in the highway ? In Langworthy v. Township of Green, 95 Mich. 93 (54 N. W. 697), the wagon struck a log, which was from 4 to 18 inches above the' roadbed, and near the center thereof. The horses had not left the traveled road, but had, for some reason which did not appear, shied a little to one side. It did not appear that the horses were running, or were going at an unsafe speed for a properly-constructed roadbed. By referring to the same case in 88 Mich. 207 (50 N. W. 130), it will be seen that the plaintiff was driving at a slow trot when the log was struck.

We are not concerned with the rule in other courts, if this court has established a rule and followed it. In the cases above cited, I think we have established and recognized the rule to be that a township is not liable, under our statute, for the failure to maintain barriers, where the horse leaves a traveled highway, which is in good condition and wide enough to drive upon with safety, through any cause for which the township is not responsible. When a horse has become so frightened that, under proper management, he cannot be kept within a good roadbed 17 feet wide, he is beyond control, under our decisions, and the fright, not the absence of barriers, is the cause of the accident. Upon no other rule can these decisions, in my opinion, be sustained.

I think the learned circuit judge was correct in directing a verdict for the defendant. Its reversal would, in my judgment, result in overruling the cases above cited, and approved in Doak v. Township of Saginaw.

The judgment should be affirmed.

Long, J., concurred-with Grant, J.

Hooker, J.

(concurring). The doctrine that a township is not liable for an injury, where, though negligent, such negligence is not the proximate cause of the injury, has been asserted and reiterated many times by this court. Like other rules, it is invoked in many cases where its application is of doubtful propriety, and doubtless in some to which it should not be applied. It is not unnatural that minds should differ in close cases, and there is always danger that a misapplication shall make it more difficult to adhere to the rule, and easy to extend it. There is but one proper way to deal with such questions, and that is to adhere to the underlying principle, and not put too great emphasis upon similar, but not necessarily analogous, decisions. If this is done in this case, I am of the opinion. that its proper solution need not be difficult. It has been several times held that where a horse, while running away, strikes an obstruction, the resulting injury is due to the running away, and not to the obstruction, because the former, and not the latter, is the proximate or moving cause of the injury. The law requires highways to be kept in condition for the ordinary uses, and it expects the driver to be in control of his horse, and does not assume to compensate those who are injured through a failure to maintain such control. The decisions do not refuse relief upon the ground that the horse was running away, but upon the ground that the uncontrolled impulse of the horse was the moving, i, e., proximate, cause. Where the loss of control is due to the negligence of the town, it has been held that the township is liable, but, where it is due to other causes, the contrary has been usually held.

We are cited to cases which hold that the mere shying of a horse is not sufficient to exonerate a township, the reason being given that shying is to be expected of a horse, and that control cannot be said to be lost if the horse is so far under the control of the driver as to be immediately stopped or brought back to the traveled way. It makes little difference whether we say that the horse was under control of the driver when he shied, or that the want of control was but momentary, and to be expected at times with any horse, from his common and known habit, and therefore an exception to the rule. In neither is ground for breaking down the rule. The case can, at most, be treated as an exception, and, though a precedent governing cases whére a horse shies suddenly a little out of the beaten track, it does not follow that the exception should cover all eases where the want of control is of short duration, or where caused from some vice or habit which cannot be said to be found in horses in general. A horse which, through fright at an object on one side of the road, leaves the traveled way, and, notwithstanding the utmost efforts of the driver, cannot be made to return to it, and ultimately crosses the highway ditch, or goes to the verge of an embankment, which slides down with him, has done something more than to merely shy. To “shy” is defined as “to start suddenly aside as if a little frightened.” So, if the horse should rear, and fall against the carriage, throwing all down an embankment, or if he should refuse to obey the driver to go forward, and back up instead, overturning the buggy against a tree in the highway, or going down an embankment, the horse is beyond control, as much as though running away, and, to my mind, much more than when merely or momentarily starting and shying.

If these instances are enlargements of the adjudicated instances of shying, they are not within the exception, and, if one after another they are included within the exception, the rule will soon give way under the evolution of the exception. It is as much the. duty of the citizen to drive reasonably tractable horses as it is of the community to maintain reasonably safe highways, and as much the duty of courts to hold the former to the consequences of a failure of the performance of his duty as the latter; and it is, to say the least, fairly debatable whether the doctrine of proximate cause is not a reasonable and just one. It is not yet the law that the highways must be so level and smooth that a horse cannot capsize a carriage, and provided with barriers so strong that' a team cannot break them down, to the injury of the driver. Barriers may be required in some cases, as where the highway and its surroundings are of such a character as of themselves to create the danger of fright; but we may take judicial notice that barriers are usually limited to such places, and are not common along our highway ditches or causeways. The Case of Doak was correctly decided, in my opinion. The present case is substantially on all fours with Beall v. Township of Athens. The other cases are not cited, because referred to in the opinions of my brethren.

I think the judgment should be affirmed.

Montgomery, C. J.

(dissenting). This is an action for personal injuries claimed by the plaintiff to have been caused by the negligence of the defendant. The injuries were sustained by the plaintiff, May 17, 1892, upon a highway within the corporation limits of defendant. The highway in question crosses the River Rouge a few rods north of the place where plaintiff was injured, and the approach to the bridge crossing the river is elevated at the point where the accident happened 8 feet 10 inches on the west side, the descent being absolutely perpendicular, and 8 feet 6 inches on the east side, the descent being a slope above the surrounding country. The approach to the bridge is the same width as the bridge where they join, but a few yards north of the bridge, and at the point where the plaintiff was injured, it is but 17 feet in width. There was no barrier on either side of the approach to prevent travelers from going off the road down the embankment on either side. There was a plum tree a little west of the roadbed, at a point where the approach to the bridge ended, and a few rods south of the place of the accident, towards the main part of the village. Upon the morning in question, Andrew Bell, the plaintiff, was driving along the said road towards the main part of the village, on his way to the home of his sister-in-law, Susan Bell, who lived on the other side of the village. He was driving his horse, which he described as gentle, and not given to shying, attached to his buckboard. He had crossed the bridge, and was upon the southern approach to the same, at a point nearly abreast of the piling, when the horse caught sight of some boys in the plum tree picking blossoms, and thereupon started back. The buckboard wheels were cramped, so that, if the horse continued to back, Bell would have been thrown out backwards, down the abrupt descent upon the west side, there being no "barrier to arrest the progress of the vehicle. To save himself from this danger, he struck the horse one blow with the whip, and, in obedience to the blow, the horse started forward at a slow pace (about half as fast as a man can walk). The loosely-packed earth on the east side of the approach gave way, the horse slipped down the east side of the approach, and plaintiff was thrown out, and sustained the injuries complained of. The evidence shows that the horse was not running away; that, at the most, he took but three or four steps back, and that plaintiff did not lose control of the horse; and that the horse had his own way but momentarily, at the most.

The foregoing is the statement of facts taken in the main from plaintiff’s brief, and we find that there is testimony tending to support the statement in every particular. As the circuit judge directed a verdict for the defendant, the inquiry is whether, assuming this state of facts, the plaintiff was entitled, under any theory, to take the judgment of the jury as to the question of defendant’s liability. The learned .circuit judge, while stating that he was unable to reconcile all that this court has said in various cases, regarded it as stare decisis that the presence of those boys in the plum tree and the consequent fright of the horse was the proximate cause of the injury to plaintiff, and directed a verdict for defendant.

We think it must be conceded that this court has not made the rule in this class of cases entirely clear. It is equally true that other courts, in dealing with the broad question of proximate cause, as well as in dealing with the more restricted one as to what is to be deemed an intervening cause, such as relieves a municipality from responsibility for defective highways, have encountered difficulties at every turn, and have not always dealt with the question logically. See this illustrated in cases commented on by Judge Cooley (Cooley, Torts, pp. 76, 77, and also at page 622 et seq.). At page 70, Judge Cooley states one of the rules relating to the subject as follows:

“If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which were innocent. But if the original wrong only becomes injurious in consequence of the intervention of some distinct wrongful act or omission by another, the injury shall be imputed to the last wrong as the proximate cause, and not to that which was more remote.”

In a very able discussion of the causal connection by Mr. Wharton, at section 103 of his work on Negligence, he reaches the conclusion that where a township is negligent in failing to keep its highway in repair, and an injury results from a frightened horse striking against a defect in the way from which, if he had not been frightened, he could have been safely guided by his driver, the municipality is not liable to an action, for reasons fully stated by him. He adds, however:

“This mode of reasoning is inapplicable if the evidence is that the horse, being driven with due care, simply shies to an extent common and probable among horses, and when shying he deflects a few feet from the beaten track, and then strikes against the defect. In this case, as such shying is part of the natural and probable habits of horses, and does not, when only producing a slight change of course, make the horse unfit for use in a public road, the road-inaking authorities are liable for the consequences.”

See, also, Whart. Neg. § 983.

There are many cases which, as pointed out in Langworthy v. Township of Green, 95 Mich. 93 (54 N. W. 697), hold to a still stricter rule of liability, and maintain that the fact that the horse is frightened, and at the time uncontrollable, does not relieve the municipality of liability.

We think the better rule is that quoted from the text of Wharton on Negligence, and this rule we find abundantly supported in those jurisdictions in which the stricter rule, above adverted to, does not prevail. The case of Wright v. Inhabitants of Templeton, 132 Mass. 49, is very similar in its facts to the present. The plaintiff’s horse was frightened by the lantern of some boys fishing. The horse backed up, cramped the wagon, and carried i against the railing, which gave way. Defendants pre ferred a request that, if the horse backed a distance of 20 or 30 feet, the plaintiff could not recover.' The court held that this request was properly refused.

It was held, in effect, in Hinckley v. Inhabitants of Somerset, 145 Mass. 326 (14 N. E. 166), that the township might be liable if the driver did not lose control of the horse, or lost control for a moment only, and either regained control, or would have regained it but for a defect in the way. See, also, Harris v. Inhabitants of Great Barrington, 169 Mass. 271 (47 N. E. 881).

The case of Olson v. City of Chippewa Falls, 71 Wis. 558 (37 N, W. 575), is quite similar in its facts to the present. It was said:

“The team instantly and suddenly became frightened by some suddenly appearing object, * * * and as instantly and suddenly backed. * * * Such a movement of any team would not be at all uncommon under such circumstances, and so the city might have anticipated when it left the steep bank of the creek so unguarded in such a place.”

The distinction contended for in the present case was again noted by this court in Gage v. Railroad Co., 105 Mich. 335 (63 N. W. 318), and recognized in Simons v. Township of Casco, 105 Mich. 588 (63 N. W. 500), but was clearly lost sight of in Doak v. Township of Saginaw, 119 Mich. 680 (78 N. W. 883). In the last case a motion for a rehearing should be granted. We think the plaintiff was entitled to go to the jury.

It is contended in this court that the highway at this point was a part of the bridge. It does not appear that the point was made on the trial, and, as the facts are not as fully developed as they may be on another trial, we do not discuss it.

The judgment should be reversed, and a new trial ordered.

Moore, J., concurred with Montgomery, C. J.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    PEOPLE v. SLAYTON.
    1. Appeal —Bill of Exceptions — Assignments of'Error — Evidence — Partial Return.
    Assignments of error which relate to the sufficiency of the evidence will not be considered, where the bill of exceptions embraces a part only of the testimony of important witnesses, even though the certificate of the trial judge states that all the evidence is returned.
    2. Larceny — Defenses—Good Faith — Advice of Counsel.
    Where respondent in a prosecution for larceny claimed that he took the property acting under the. advice of counsel, believing it to belong to another, it was error to instruct the jury that the advice of counsel, to be available as a defense, must have been given upon a statement of all the facts; the limitation recognized in actions of malicious prosecution being inapplicable'on a trial for larceny, where such advice has no significance except as a circumstance bearing on the good faith of the respondent.
    Error to Benzie; Aldrich, J.
    Submitted May 2, 1899.
    Decided March 27, 1900.
    Bert Slayton was convicted of larceny.
    Reversed.

      Dodge & Coveil, for appellant.

      D. G. F. Warner, Prosecuting Attorney, for the people.
   Moore, J.

The respondent, who was convicted of the larceny of a horse, has brought the case here upon writ of error. We cannot well consider some of the assignments of error, for the reason that all the testimony in the case is not returned. The certificate of the trial judge states it is all returned, while the record discloses very clearly that as to some of the important witnesses none of the testimony in chief is returned, and only a part of the cross-examination.

It appears from the record that the respondent went to the barn of the complaining witness in the night-time, when the complaining witness was away from home, and his family was in bed, and took away a horse, which the complaining witness claimed to own. He delivered the horse to one Hoxie, who took it out of the county, and the complaining witness never saw it afterwards. It was claimed on the part of the respondent he was acting for a firm who had sold the horse to the complaining witness, taking a note therefor, in which they reserved the title to the horse; that he had the note with him at the time he took the horse, and posted a copy of it upon the barn; and that he acted in good faith. He also claims he acted under the advice of counsel. It is claimed upon the part of the people that the note given by complaining witness did not reserve the title to the horse, and that, if such a clause appeared in it, it was inserted after he gave the note, and was a forgery, and that respondent knew, before he took the horse, of this claim of the complaining witness. It is also claimed that respondent did not fully and fairly state all of the facts to the counsel he consulted, and was not advised by him to take the property in the night-time, and run it out of the county.

It is contended on the part of the' respondent that, where one in good faith takes another’s property under a claim of right so to do, he is exempt from the charge of larceny, however puerile or mistaken the claim in fact may be; citing People v. Hillhouse, 80 Mich. 580 (45 N. W. 484). Upon that feature of the case the trial judge instructed the jury:

‘ ‘ If the respondent took the horse in question under the note produced in this case, and in so doing was acting for A. Kahn, and in the belief that said A. Kahn owned said horse, then said respondent would have a right to do what he did, and your verdict must be not guilty. Even if the jury should find that said note had been fraudulently changed, that fact itself would not render the respondent guilty of larceny in taking said horse. * * *
“An officer or agent who takes possession of property under a chattel mortgage or note to enforce the collection of a debt would not be guilty of larceny if it should after-wards appear that said chattel mortgage or conditional note was forged or fraudulently changed by some other person unknown to the respondent. So in this case the respondent cannot be found guilty on the mere fact that the note has-been fraudulently changed, if you find it has been changed; still you must acquit the respondent, unless you find that he feloniously took said horse with the intent and for the purpose of stealing him and depriving the owner of his property. If the respondent took said horse on the claim of ownership in A. Kahn, and to enforce the claim of A. Kahn against said horse, even though said respondent was mistaken as to the genuineness of said note, — that is to say, if he believed in the genuineness of the note, — still he would not be guilty of larceny, and your verdict should be not guilty in such case.
“There can be no crime without criminal intent, and crime cannot be inferred from secretly or clandestinely taking property, — taking possession of property on claim to own, or of property claimed to be owned by another, by whom the party is employed to act in taking the same,— but such fact and circumstances may be taken into consideration by the jury in aiding them'to come to a conclusion of the bona fides of the taking of the property. By ‘ bona fides ’ I mean the good faith of the taking,— whether with a felonious intent or a criminal intent.
“The wrongful taking of the property would not make it larceny, nor would the taking of this property, after knowing it was in dispute, or _ that it was claimed that there had been a forgery committed, make it larceny; but, in addition to this, there must have been a criminal intent, or a taking and carrying away with a felonious intent, beyond a reasonable doubt, or your verdict must be not guilty.”

This charge was repeated, in effect, several times over, and was all that respondent had a right to claim upon that branch of the case.

It is said that, as respondent was acting under the advice of counsel, this disproved the necessary criminal intent to constitute larceny; citing People v. Schultz, 71 Mich. 315 (38 N. W. 868). The jury were instructed as. follows:

“If you find the respondent, Mr. Slayton, was acting under the advice of an attorney in this case, — that he followed the advice and instructions of such attorney,— this would do away with the necessary criminal intent, and you will find the respondent not guilty. In order for that to be an excuse for the respondent, however, he must act strictly under the advice of counsel, and he must in good faith believe that the advice— That is, he must submit to counsel all the facts known to him, and then act under such advice in good faith. A person may not, who was. intending,to commit a wrong, tell part of the facts and circumstances to counsel, and then act under advice of' counsel. It is necessary that he must act in good faith, even w.hen acting on the advice of counsel; but a person may rely upon counsel, if he states to the counsel all of' the facts and circumstances.”

In our opinion, the advice of counsel has no significance in this case, except as a circumstance bearing upon the respondent’s good faith. The question was introduced by his counsel by their nineteenth request to charge, which was as follows:

“ Gentlemen of the jury, if you find that the respondent, Mr. Slayton, was acting under the advice of an attorney in this case, — that he followed the advice and instructions-of such attorney, — this would do away with the necessary criminal intent, and you will find the respondent not’ guilty.”

This request was not and should not have been given, but that does not justify the instruction given. In a case of malicious prosecution, the instruction given would perhaps have been proper; but, in a criminal case like this, there is no such limitation upon the defense of good faith as that advice of counsel may not be relied upon unless all facts are stated to counsel. We are of the opinion that the language of the charge in this particular was injurious.

'It is assigned as error that the trial judge did not give respondent’s requests to charge. So far as the requests were applicable to the case, those of them that were proper statements of the law were fully and fairly and clearly stated by the trial judge. Under such circumstances, his failure to read the written requests of counsel is not error. People v. Weaver, 108 Mich. 649 (66 N. W. 567).

The other assignments of error have been considered. We do not think they are well taken, but do not deem it necessary to discuss them.

The conviction is reversed, and a new trial ordered.

The other Justices concurred.


author: Grant, J. Montgomery, C. J.

text:
    RIBICH v. LAKE SUPERIOR SMELTING 00.
    1. Master and Servant — Latent Danger — "Warning—Instructions.
    Where an employe was injured while dumping pots of molten copper, by one of the pots exploding when dumped by him at a place where there was water, an instruction that it was the duty of the master to warn plaintiff that an explosion might result from the contact with water, and to explain to him the “nature, force, and probable effect” of such an explosion, was not erroneous, as imposing on the master the duty of foretelling the precise result of any possible explosion. Grant, J., dissenting.

      2. Damages — Excessive Verdict — Appeal —Conditional Affirmance.
    Plaintiff, injured by an explosion, was badly burned, and lost one eye, and was confined to the hospital for four weeks. The sight of his other eye had been seriously impaired by another accident. Before he was hurt he earned $1.60 per day, and soon after leaving the hospital he was earning from $15 to $20 per month. Held, that a verdict for $15,000 was excessive, and that a new trial should be awarded unless plaintiff should remit all in excess of $10,000.
    Error to Houghton; Haire, J., presiding.
    Submitted November 16, 1899.
    Decided March 27, 1900.
    Case by Anton Ribich against the Lake Superior Smelting Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed on condition.
    The defendant, in connection with its business of refin-. ing, smelting, and manufacturing copper, operated cupolas in which mineral' copper was smelted. From these cupolas,. molten copper, mixed with slag, was run into cone-shaped pots at a temperature of about 2,500°. The pots are about two feet in diameter at the top, and taper to about six inches at the bottom; are made of cast iron, about an inch thick all around; are put on two wheels, one on each side. The axle is built onto the rim of the pot on each side of the wheel. The pot is swung in the middle, with a handle about four feet long riveted to the axle, so that the whole can be pushed or pulled by the handle. The pots are dumped by throwing the handle up and over, when the cone slides out upon the ground. The fall of the cone is only the thickness of the rim. About 15 or 16 pots are used in each cupola. Two men are employed in wheeling them away and dumping them. When the molten matter is ready to be drawn, each man takes a pot, wheels it to the spout, and, when it is filled to the required height, wheels it outside the building, leaves it, takes an empty pot, and returns. The second man does likewise. The pots are arranged in a semicircle. It takes from two to five minutes to fill a pot. Plaintiff testified that it took about five minutes. Fourteen or 15 pots were used on the day of the accident. The time required for the slag to ‘ ‘ set ” so as to be safe to dump was fixed by the experienced witnesses at from 8 to 30 minutes. The one wheeling out the next to the last pot would set it at the outer end of the line, take the pot at the other end, which had been cooling, dump it, and take it back to be filled. The one taking out the last pot would wheel it to the first place, made vacant by the removal of the first pot taken. He would then take the next pot, dump it, and return to the cupola to refill it. Thus the process would continue until the cupola was empty. They commenced to fill the pots about 7 o’clock a. m., and commenced to dump them about 8 o’clock. The accident occurred about 9 o’clock, according to plaintiff’s testimony. The snow had been cleared away from a space where the pots were to be dumped. There was some ice, which was, to some extent, melted by the hot cones. When plaintiff dumped the fifth or sixth pot, it exploded, and the molten matter flew into his eyes and upon his person. The only serious injury was to his eyes. He claims, as the result of the accident, that the sight of one eye was entirely destroyed, and the other seriously injured. He was an Austrian, about 23 years old. .Had been in this country about five years. Began work for the defendant in December, 1896, and was injured on the 11th day of January following. He had been engaged in wheeling slag from the furnaces before, but this was his first run of emptying copper and slag mixed. The negligence charged is the failure to instruct him as to the dangerous nature of the work, and the liability of such molten copper and slag to explode on coming in contact with water, and “as to the danger that might result from' an explosion.” Plaintiff testified that he had no warnings or instructions, but that he simply did as his co-employé, who had been engaged at this work for a long time, did. Several witnesses on the part of the defendant testified to informing him of the danger, and to instructing him how to do the work. Defendant also gave evidence to show that he dumped the wrong pot, contrary to instructions. Plaintiff recovered verdict and judgment for 615,000.

      A. JR. Gray, for appellant.

      A. T. Streeter, for appellee.
   Grant, J.

{after stating the facets; dissenting). The court instructed the jury as follows:

“And I charge you, on that subject, whenever there is-any hidden, unusual, or latent danger connected with any work, the law imposes a duty on the master or employer of informing the workman or employé of the danger. It is not enough to tell him that the work is dangerous, but the particular danger must be pointed out and explained. In this case, if you find from the evidence that there was danger of an explosion from the contact of water with the mixed copper and slag, then I charge you that thqt was a danger that was known, or that should have been known, to the smelting company, and that it was its duty to warn Ribich, the plaintiff, of that danger,, and to' explain to him the nature, force, and probable effect of such an explosion.”

The objection urged against this instruction is that it was-not the duty of the defendant to explain to plaintiff the “nature, force, and probable effect” of such an explosion. It is insisted that the defendant’s duty was fully performed when it had instructed him how to do his work; had informed him that it was dangerous to dump the pots before they were sufficiently set, and that an explosion would likely result. The question is one of great practical importance in the law of negligence. The only authorities cited in the briefs of either counsel are Smith v. Car Works, 60 Mich. 501 (27 N. W. 662, 1 Am. St. Rep. 542), and Fox v. Color Works, 84 Mich. 676 (48 N. W. 203). I must assume that counsel have made a careful examination of the authorities, and are unable to cite any which afford much light upon the question. After as careful an examination as I have been able to make, I do not find the question now presented discussed to any extent, or any authoritative declaration of law applicable to this case. In the Smith Case the plaintiff was engaged in carrying a ladle .of molten iron from one building to another,. whereby it became necessary to walk over ground coyered with ice and water. The occurrence was an unusual one, made necessary by the fact that the fires had gone out in one room. No instructions or information were given as to the danger of an explosion if the molten iron came in contact with the water. The court below had directed a verdict for the defendant, evidently upon the ground that the plaintiff had assumed the risk. The language of the majority opinion does not go to the extent of the instructions now complained of. It is as follows:

“Where extraordinary risks are or may be encountered, if known to the master, or should be known by him, the servant should be. warned of these, their character and extent, so far as possible.”

It was further said that it was the duty of the defendant to inform the plaintiff ‘ ‘ somewhat of its dangerous character.” This language falls far short of holding that it was the duty of the defendant in that case, in addition to instructing him how to do the work, and notifying him that there was danger of an explosion if the molten iron was spilled upon the ice, to also inform him of the “nature, force, and probable effect” of the explosion.

The Fox Case simply holds that it was the duty of the defendant to notify its employé, the plaintiff, of the dánger and effect of inhaling Paris green, and the precautions necessary to prevent the injurious effect. Neither of these cases supports the soundness of the instruction now under consideration.

The evidence from several witnesses on the part of the defendant was very strong that plaintiff was fully instructed how to do the work, the reason for thus doing it, and the danger of an explosion if the pots were dumped before the contents were sufficiently “set.” Under this instruction, the jury may have found that this was true, and have based their exceedingly large verdict upon the failure of the defendant to further notify- the plaintiff of the “nature, force, and probable effect” of the explosion. It is not quite clear to me what a jury would understand

by the “nature” of an explosion, or why its nature, whatever it is, should have been explained to the plaintiff. If. by the information conveyed, he knew that there was danger of an explosion, what more notice did he require for his own protection ? Should he have been told that it might kill him, it might burn him, it might put out his eyes, or it might blow off a limb? All these things, and others, might be the effect of the explosion. This would depend upon its severity, which might be different on different occasions. If a fireman employed about an engine is informed of the liability to explosion if the boiler is not kept sufficiently supplied with water, and is told what to do, in watching the water-gauges, etc., is the employer bound to inform him further of the “nature, force, and probable effect” of an explosion? Must he inform him that pieces of the engine may strike him and hurt him or kill him, and that steam will scald him ? Where one employed to use kerosene or naphtha in lighting lamps or running engines is instructed how to do the work, and warned that an explosion may occur if the work is not done as directed, is it the’ duty of the employer to further inform him of the “nature, force, and probable effect” of an explosion, and that it will burn or injure him in other ways ? It may safely be granted, and is undoubtedly true, that even an educated man would not be aware of the danger of an explosion from dumping this hot slag upon water or ice. But when he is notified that, if it is dumped there under those conditions, an explosion will follow, would not the average man understand that he was liable to be injured ? Is it not a matter of common knowledge that explosions are liable to cause injury? In dumping this slag, plaintiff was obliged to stand close to, and almost over, the cone as it went upon the ice. Did he need to be told that, if there was an explosion, the hot metal would fly, and he was liable to be injured ? There could not be an explosion without something flying. The only thing there was to fly was the molten slag, or the outside that had become somewhat hardened.

The authorities are uniform, and hundreds of cases could be cited, holding that the law is that “if there are latent defects or hazards incident to an occupation, of which the master knows, or ought to know, and which the servant, from ignorance or inexperience, is not capable of understanding and appreciating, it is the master’s duty to warn or inform the servant of them.” Consolidated Coal Co. v. Haenni, 146 Ill. 626 (35 N. E. 162); Beach, Contrib. Neg. § 859; 1 Shear. & R. Neg. § 203, note 5; Whart. Neg. § 206. Reasonable notice, in order that the employe may, by the exercise of due care, avoid the danger, is all that the law requires. Is not the law satisfied when the party has been fully instructed how to do the work, and is told that there is danger of explosion, and his work requires him to be in close proximity to the explosion if it occurs ? I think it is. If the employé desires any further information before assuming the risk, he should be held to make further inquiries.

The question of instruction and warning has arisen more frequently in the employment of infants, where the employer is held to more explicit instructions and warnings than in the case of adults. 1 Shear. & R. Neg. § 46, note 1. The authorities are meager in determining what is a sufficient warning. Much must depend upon the circumstances of each case, in applying the rule. In Powers v. Sugar Co., 48 La. Ann. 483 (19 South. 455), plaintiff accidentally stepped into a ditch of hot water in the evening, and was severely scalded. Defendant’s manager testified that he told the plaintiff “to be careful; that there was a ditch along the side, and the floor was uneven.” It was held that the admonition was insufficient. The court said, “If an admonition of danger is relied on, it must be timely and explicit,” and held that the defendant should have informed him that the water in the ditch was hot. Where the negligence alleged was in permitting a plaintiff to pick up sodium and potassium and put them into water, without warning him of their dangerous and explosive nature when placed in contact with water, it was held that proof of knowledge of facts which would naturally suggest it was all that the law required. Hill v. Drug Co., 140 Mo. 433 (41 S. W. 909). The ordinary man knows the effect of dangerous elements. It is the common education of all. He knows that hot water and steam will scald; that fire will burn; that water will drown; that explosions of powder, dynamite, oil, naphtha, and molten matter will injure. When he is instructed how to handle these elements in order to avoid explosion, and is informed that there is danger of explosion if he does not handle them as instructed, he has received from his employer all the warning that the law requires. I think that the instructions were erroneous.

It is earnestly urged by counsel for defendant that the court should have directed a verdict for it, because the evidence conclusively shows that if plaintiff, as he testified he did, took the pot in its order and dumped it, no explosion could possibly have occurred. This would require us to find that it took a half hour or more to fill the pots, while there is testimony that it took less time. It would also require us to leave out of consideration an important piece of testimony from Mr. Franz, plaintiff’s coemployé and a witness for defendant, that he told plaintiff just before the explosion, “You better leave them set a little while; they are too hot.” The court explicitly instructed the jury that, if this witness so informed plaintiff, he could not recover. The contention upon this point cannot prevail.

Plaintiff alone testifies that no instructions or warning were given him. Several witnesses testify that they were given. Counsel strenuously urged that the preponderance of evidence is so great in favor of defendant that this court should grant a new trial, under a statute now authorizing this court to review motions for a new trial. Inasmuch as, in my judgment, the case should be reversed on other grounds, we need not consider this question.

Complaint is made that the verdict is excessive, and that for this reason the court should have granted a new trial. The statute above referred to imposes the duty upon us to review this question, and, however unpleasant this duty may be, we have no right to escape it. Plaintiff lost the sight of one eye. His left eye had been seriously injured by another accident. His own physician testified that he had 30 per cent, of normal sight of his left eye. He was in a hospital four weeks because his physician told him that he did not want to attend the case or be responsible unless he was removed to some place where he could get better care and nursing than he could get in his boarding-house. He testified that he was better at the trial than when he came out of the hospital.

“I was suffering from pain then nearly as bad as at the time I got burned. I could not tell the pain I suffered, but it was about two months after that. I was suffering about two months after that very bad. I have had pain since the two months.”

He is not deprived of all ability to labor. Soon after leaving the hospital he worked for defendant several months, helping teamsters, and earned from $15 to $20 a month. Before he was hurt he earned $1.60 per day. At 4 per cent., the $15,000 would yield an annual income of $600, — $100 more than he could earn before he was injured. At 3 per cent., it would'yield $450, which is within $50 of what he could earn if he labored every working day in the year, including holidays. Counsel cite Retan v. Railway Co., 94 Mich. 146 (53 N. W. 1094), where a verdict' for $30,000 was sustained. That case was decided before the statute above mentioned was passed. Besides, there is no parallel between that case and this. In that case, by the loss of both feet, the plaintiff was a helpless cripple for life, and was deprived entirely of the power of locomotion. I cannot avoid the conclusion that the verdict is excessive. As the verdict should be set aside upon other grounds, and as the testimony upon another trial may be different, it is unnecessary to determine upon this record by how much we think the verdict should be reduced, or a new trial ordered. On the question of excessive verdicts, see Stand ard Oil Co. v. Tierney, 14 L. R. A. 677 (92 Ky. 367, 17 S. W. 1025, 36 Am. St. Rep. 595), and note.

Judgment should be reversed, and new trial ordered,

Montgomery, C. J.

I am not able to agree with my Brother Grant that there was error in the instruction given. In Smith v. Car Works, 60 Mich. 501 (27 N. W. 662, 1 Am. St. Rep. 542), it was said that where extraordinary risks are or may be encountered, if known by the master, or should be known by him, the servant should be warned of them, their character and extent, so far as possible. I do not think the instruction which imposed upon the defendant the duty of explaining to plaintiff “the nature, force, and probable effect” of such an explosion as would be likely to occur from the contact of water with mixed copper and slag, fairly construed, goes beyond the doctrine of the Smith Case. It is a reflection upon the intelligence of the jury to assume that they would construe this language as imposing upon the defendant the duty of foretelling the precise result of any possible explosion. What the language fairly imports is that it was the duty of the defendant to warn the plaintiff that the explosion would be of such a nature and such force as would be likely to cause injury, and, so construed, the instruction is within the rule of the Smith Case.

I agree with my Brother Grant that we should not evade the responsibility of ordering a new trial where a substantial injustice is clearly shown. In my judgment, the verdict in this case is excessive, and a new trial should be awarded unless the plaintiff will remit from the verdict all in excess of $10,000.

Hooker, Moore, and Long, JJ., concurred with Montgomery, O. J.


author: Hooker, J.

text:
    PEARL v. TOWNSHIP OF BENTON.
    1. Defective Bridge — Liability of Township — Failure to Inspect.
    Failure of a township to keep a bridge in a reasonably safe condition for travel is not a ground of liability, unless knowledge or notice of the existence of the defect, and an opportunity to remedy it, be shown; and such notice cannot be inferred from a mere failure seasonably to inspect. Thomas v. City of Flint, ante, 10, followed.
    2. Same — Pleading.
    An allegation in a declaration that the construction of a bridge was defective in not sinking the mudsills below the bottom of the ditch, .and bracing or piling them, to prevent them from slipping into the ditch, will not warrant a recovery upon that theory, where, by other averments, the accident is clearly ascribed to the deepening of the drain under the bridge after it was built, whereby one of the mudsills was undermined.
    Error to Berrien; Coolidge, J.
    Submitted November 17, 1899.
    Decided March 27, 1900.
    Case by Arthur L. Pearl against' the township of Benton for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Valentine & Ellsworth and M. L. Howell, for appellant.

      Gore & Harvey, for appellee.
   Hooker, J.

The plaintiff recovered a judgment against the township for an injury received from the fall of a bridge, and the defendant has appealed.

The appellees brief states that the negligence of thé township consisted in its failure to sink the mudsills of the bridge sufficiently, and that in consequence the water washed the dirt from underneath them, and undermined the bents supporting the end of the bridge; also in neglecting to drive piles or posts to prevent the mudsills from slipping; also in neglecting to brace the structure. It was further claimed that the defendant was negligent in failing to examine the bridge for three years before the accident, and that it was chargeable with notice of its defective' condition.

The declaration is in two counts. The first alleges:

“That for more than six years previous to December 21, 1895 [the date of the accident], the defendant had constructed and attempted to maintain a certain bridge over and across a large public drain intersecting said highway, which drain was constructed and maintained by the defendant as a township drain, and that it was defendant’s duty to construct and maintain said bridge in a sound, safe, and proper condition, so that the same would at all times be staunch and strong and reasonably safe for public travel, but, neglecting its duty, it had for a long time previous thereto wholly neglected to care for, maintain, and repair said bridge, and the same had by reason of such neglect become wholly unfit and unsafe for public travel, and the supports, which had become weakened by rotting, were unfit and unsafe to remain thereunder as supports therefor,, and the soil supporting the mudsills had, by the swift current of said drain, been washed from under the mudsills by the defendant’s negligence, in this: The said defendant, by its drain commissioner's, having deepened the said drain until the mudsills of said bridge were left resting upon a narrow ridge of earth, from one foot to eighteen inches above the bottom of said drain, and defendant negligently and carelessly left said bridge in said defective and dangerous condition without placing any lateral support under it, or without bracing said bridge, and without sinking said mudsills below the bed of said drain, and without placing any precaution against the action of the running water in said drain upon the dirt under said mudsills, either by lowering said mudsills, or by driving piling or posts against said mudsills to hold •them in their places, and prevent the structure resting thereon from falling into the drain; and defendant was negligent also in this: That notwithstanding that said bridge was built upon mudsills, and without braces or proper supports, the highway commissioners of said township, nor any of them, had made any examination of said bridge for more than three years before said date.”

The count then alleges that there was a large hole in the planking of the bridge, and the failure of the defendant to repair the bridge or render it safe, and that plaintiff drove upon the bridge, which went down, causing his injury.

The second count contained the following allegation of negligence:

“That, crossing said highway at a point twenty-five rods south of the point of intersection of said highway with the south line of said section 21, is a large township drain, known and called the ‘Stewart Drain,’ which said drain, and its numerous tributaries, carry off the surface and other waters from more than one thousand acres of land in said township, and that said drain has a continuous flow of water the year around, and has at all times a swift current, and that said drain was originally constructed by said defendant, and has since always been and is under the control and care of said defendant; and more than six years before December 21, 1895, the defendant constructed a certain bridge on said highway over and across said large drain, and plaintiff avers that the original construction of said bridge was defective, and that the same was negligently and carelessly built, in' this: That the defendant rested said large structure of more than twelve feet span on mudsills, so called, and failed to sink said sills below the-bottom of said drain, and neglected to properly brace and strengthen said bridge, and drove no piling or posts to prevent the said mudsills from slipping from their places into said drain; and said defendant afterwards, to wit, on or about the month of January, 1895,. wrongfully and negligently deepened said drain across said highway and under said bridge, until said bottoms of said mudsills were from twelve to eighteen inches above the bottom of said drain, thereby exposing the dirt under said mudsills to 'the action and encroachments of the running water in said drain; and defendant negligently left said mudsills in that dangerous condition without driving piles or posts to hold them in place, and without bracing and constructing a firm foundation for said sills, and without in any way protecting, or attempting to protect, said bridge from falling into said drain.
“And plaintiff avers that for more than three years prior to said 21st day of December, 1895, no highway commissioner or officer of said township, or any other person on behalf of said township, made any examination whatever of said bridge and the supports thereof, wherein the plaintiff alleges the defendant was grossly negligent," and, by reason solely of the negligence of the defendant in the premises, the plaintiff received the injuries hereinafter complained of. Yet, notwithstanding it was the duty of said defendant to the plaintiff to build, repair, and maintain said bridge in a safe condition for travel and úse by the plaintiff and the public; the defendant wholly neglected its duty in the premises as aforesaid, and, by reason solely of such neglect, said bridge became dilapidated, and without supports thereunder, the mudsills having been washed away by the water in the drain, and the whole structure was in an unsafe and dangerous condition, and without knowledge on the part of plaintiff of the defective and dangerous condition of said bridge, said defendant having wrongfully and utterly neglected to place any signs or signals at or near said bridge to warn and notify the traveling public and the plaintiff that said bridge was unsafe and dangerous.”

From these counts we may deduce three grounds upon which the plaintiff seeks to recover:

1. A neglect to keep the bridge in proper repair.

2. A failure to seasonably inspect.

3. A failure to anticipate the undermining of the mud-sill when the bridge was built.

A failure to keep a bridge in a reasonably safe condition for travel is not a ground of recovery, unless knowledge or notice of the existence of the defect, and an opportunity to remedy it, is shown; and such notice is not inferable from a mere failure to seasonably inspect. Thomas v. City of Flint, ante, 10 (81 N. W. 937).

We must assume from the declaration that the bridge was weakened by an undérmining of a mudsill, made possible by the deepening of the drain after the bridge was rebuilt, in 1892. Counsel insist that the declaration shows that defective construction is complained of. It is true that the declaration says that the construction was defective in not sinking the mudsill below the bottom of the ditch, and bracing or piling it to prevent slipping into the ditch. 'It is difficult to appreciate the danger of a mudsill slipping into a ditch, to the injury of a bridge, when the sill is as low as the bottom of the ditch; but, whatever may be thought about that, each count of the declaration shows that no such claim was relied on, but that the accident was ascribed to a subsequent deepening of the ditch, whereby the undermining by the action of the water occurred. The declaration did not warrant a recovery upon the ground that, when the bridge was rebuilt, the ditch was already sunk below the bottom of the mudsill, for it alleges no such condition.

It is conceded in the brief for plaintiff that the township cannot be held liable for the tort of the drain commissioner, and defendant’s liability is asserted to rest on two grounds, viz.: (1) Negligent construction; (3) negligent supervision. We have seen that the declaration does not show negligence in the construction, and, under the proofs, there was no actionable negligence, unless in failing to inspect the bridge. It was erroneous to instruct the jury that:

“ It is claimed on behalf of the defendant that its officers had received no notice of the dangerous condition of the bridge, but you are instructed that a defect may exist and be unknown to the public authorities, and the town still be liable, on the ground that the prime fault consists in being ignorant; it being a clear principle that a want of knowledge may, in given circumstances, imply a want of due care. The general duty of a township is to exercise, through its officers, a reasonable supervision over its highways and bridges, and, within fairly practicable limits, to be watchful of their condition and trustworthiness, and see that they are kept in a reasonably safe condition for public travel. And if you find from this evidence that the soil under the bridge was of a character easily affected by the action of water thereon, and that the township sunk this drain below the mudsills of this bridge without taking any precaution to hold said mudsills in place, and that in consequence thereof the bridge became unsafe or dangerous for travel, and if you find that these facts were known to the officers of the township, or could have been known by them by the exercise of-ordinary diligence, and that such officers neglected from the time the bridge was repaired or rebuilt, in 1892, until the time of the accident, to examine said bridge, and on account of such failure to examine such bridge said officers were without knowledge of its dangerous condition, and if such failure to examine the bridge was a failure on the part of the officers to exercise ordinary 'care and diligence, and they might have discovered the dangerous condition of the bridge by the exercise of ordinary diligence, it will be your duty to find for the plaintiff.”

Thomas v. City of Flint, ante, 10 (81 N. W. 937);. Wakeham v. Township of St. Glair, 91 Mich. 15 (51 N. W. 696).

The judgment is reversed, and a new trial ordered.

Long and Grant, JJ., concurred with Hooker, J.

Montgomery, C. J., and Moore, J. Because ruled by Thomas v. City of Flint, supra, we concur in the result.


author: Montgomery, C. J.

text:
    FOLEY v. KLEIBUSCH.
    1. Trusts — Title op Trustee — Right to Injunction.
    A bill to restrain the erection of a building on certain land, alleging ownership in complainant in fee, does not debar’ complainant from the relief sought, if he in fact holds title as-trustee, since 3 Comp. Laws 1897, § 8844, provides that every express trust shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust.
    2. Same — Church Property — Roman Catholic Tenure.
    A bishop of the Roman Catholic Church, who holds in his individual name all the church property within his diocese, and who, under the rules and tenets of the church, has complete authority in regard to the erection of church edifices, may maintain a bill to restrain members of a congregation, whose church has been destroyed, from rebuilding upon the. land in violation of conditions which he has imposed.

      Appeal from Allegan; Padgham, J.
    Submitted October 5, 1899.
    Decided March 27, 1900.
    Bill by John S. Foley against Matthias Kleibusch and others to restrain the erection of a church upon certain real estate. From a decree dismissing, the bill, complainant appeals.
    Reversed.

      Fitz Gerald & Barry (Francis A. Stace, Charles B. Wilkes, and Keena & Lightner, of counsel), for complainant.

      Hannibal Hart (Lombard & McAllister, of counsel), for defendants.
   Montgomery, C. J.

This is a bill filed by complainant to restrain defendants from constructing, a building on land claimed to be owned by complainant, and from interfering with complainant’s possession. The bill alleges that the complainant is the owner in fee simple of two acres of land in the township of Dorr, Allegan county; that defendants have undertaken to build a building thereon attached to the freehold, although they have been prohibited from doing so by the complainant; that complainant is unable to resist the attempts of the defendants by force, and that the acts of the defendants, unless restrained, will constitute a continuing trespass. The bill prays for relief by injunction. The answer denies that the complainant is the owner of the land in question in fee simple; and avers that he holds the title in trust for the Roman Catholic Church congregation at North Dorr, known as “St. Mary’s Church of North Dorr,” and alleges that, as members of that congregation, they were proceeding to build a church on the land in question. The answer sets up facts tending to show that authority had been given to build such church by the proper ecclesiastical authority. This allegation is controverted by the complainant.

In this court the defendants plant themselves almost wholly on their denial of complainant’s allegation that he is the owner in fee of the land in question. The history of the title is as follows: March 12,1858, Matthias Herrig and wife conveyed to Peter Paul Le Fevre, and his heirs and assigns, forever, the land in question. Le Fevre was at the time acting bishop of the diocese of Detroit. Bishop Le Fevre died in 1870. By his will he bequeathed the property in question to John B. Purcell, Roman Catholic archbishop of Cincinnati, and Peter Richard Kenrick, Roman Catholic archbishop of St. Louis, and to the survivor of them, and to their heirs and assigns, or the heirs and assigns of the survivor of them. In this will the testator expressed the hope that the legatees would, a,s soon as might be after the death of the testator, convey to the person who should become acting bishop of the Roman Catholic diocese of Detroit the property conveyed, “to be by the said person so becoming bishop or acting bishop of said diocese of Detroit, during his lifetime, held and used or disposed of for the formation and welfare, benefit and advantage, of the Roman Catholic Church in and within the diocese of Detroit.” This is followed by the following explanation:

‘ ‘And, further, in order to avoid all doubts, questions, and litigations in reference to this, my last will and testament, I do hereby declare that all contained in the sixty lines of this, my last .will, commencing with the twenty-third line on the second page, and ending with the twenty-fourth line of the fourth page, both inclusive, is but the expression of a hope and expectation on my part, and not intended to create a trust or obligation; and, further, I direct, and it is my will, that if all or anything in said sixty lines contained is illegal, void, or not permissible according to law, that then and in such case this, my last will and testament, shall be construed as if said sixty lines were stricken out from or not inserted therein, so as to leave the' bequest herein made to my said devisees absolutely and unfettered; and, further, I do here state and declare that, while I have hereinbefore added after the names of my said devisees their respective titles, I have so done only for the purpose of identification, and that said bequests herein made to them, and the survivor of them, are made and intended to be made to them as individual persons, and not to them in their official capacity ; and, further, in the event that any bequest herein-before made should for any reason be held void or illegal, then and in such case I do will, devise, and bequeath all and singular my property, real, personal, and mixed, and all demands and choses in action, whereof I may die seised, or to which or to any interest in which I die entitled, subject to the payment of my just debts and funeral expenses, to John B. Purcell, of Cincinnati, Ohio, and ® Peter Richard Kenrick, of St. Louis, Missouri, and to the survivor of them, to have and to hold the same to them, and the survivor of them, and the heirs and assigns of such survivor, absolutely and forever.”

On the 27th of June, 1870, John B. Purcell and Peter "Richard Kenrick conveyed all property vested in them by the will of Peter Paul Le Fevre to Caspar H. Borgess, and his heirs and assigns, forever. On the 16th of November, 1888, Caspar H. Borgess conveyed the lands in question (with other lands) to John S. Foley, his heirs and assigns, forever. This deed contained the following clause:

“ The further intention of this deed is to convey all the right, title, and interest in and to said property which said first party held or possessed as the Roman Catholic bishop of the diocese of Detroit, and also to deed, sell, hnd convey to the said second party all other land or interest in lands lying and being in said county, of every name and description, of which I may be seised or possessed in my name or in trust as such bishop or otherwise.”

One of the rules of the Roman Catholic Church, which complainant testifies has been in force in the diocese of Detroit since before his appointment, reads as follows:

“All real estate bought or donated for the use and benefit of any church and congregation in this diocese must be deeded in fee simple to the bishop, i. e., the bishop’s name, without any prefix or title, and without any conditions whatever in the instrument. If these conditions are not complied with, the deed cannot be accepted, and the pastor or missionary cannot allow the deed to be recorded. If the deeds are obtained, they must be forwarded immediately to the secretary of the bishop.”

The complainant contends that no trust was created by the conveyance, for various reasons. The fact that the bill alleges ownership in fee should not debar complainant, even though the title which he holds is subject to a trust, if he is entitled as trustee to maintain this action. The statute (section 8844, 3 Comp. Laws 1897) provides that every express trust (with a certain exception not material) shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust. The whole estate in this case is the fee in the land in question. It has been frequently held that, in an action by a trustee to reduce the trust estate to possession, the pestui que trust is not a necessary party. Sill v. Ketchum, Har. Ch. 423; Martin v. McReynolds, 6 Mich. 70; Adams v. Bradley, 12 Mich. 346; Snook v. Pearsall, 95 Mich. 534 (55 N. W. 459). The bill is filed here by one in whom the whole title is vested, and by one entitled to maintain possession as against parties who are claimed to be wrongdoers.

We think it unnecessary to decide whether any trust is shown to exist in this case. If there be a trust, it is altogether clear that it was a trust to hold the property according to the rules and tenets of the Roman Catholic Church, which gave the bishop control of the property, and which prohibit the erection of church edifices without his express assent and approval. We may adopt the language of the supreme court of Wisconsin in Heiss v. Vosburg, 59 Wis. 532, 538 (18 N. W. 466):

“It may be that the court can look into these decrees ascertain whether the plaintiff owns this property absolutely or whether he holds it subject to a trust. * * * But it is not necessary to consider the effect of these ecclesiastical regulations, because they do not in any degree justify the acts of the defendants. They do not show that the members of the congregation are the cestuis que trustent or beneficial owners, so that they have the right to .fear down the building without the plaintiff’s consent. In any view which we have been able to take of the case, the acts of the defendants are unlawful. They are simply wrong-doers.”

So, in the present case, the record shows that, by the regulations of the Roman Catholic Church, complete dominion over the church property is vested in the bishop. "Whether this provision be. wise or upwise, absolutely equitable or otherwise, it is upon such a trust, if any exists, that the defendants must rely. They have failed to justify their acts under this alleged trust. It follows that the complainant has the right to insist that his possession of the property shall not be disturbed.

The decree will be reversed, and a decree entered for complainant.

The other Justices concurred.


text:
    MACK v. VILLAGE OF FRANKFORT.

    Equity Jurisdiction — Fraud—Remedy at Law.
    An allegation of fraud in the issuance of municipal bonds will not entitle the- purchaser to maintain a bill in equity to compel the municipality and its officers to reimburse him, where it is not shown that equity powers are necessary to the relief sought; the intervention of equity, even in cases of'fraud, being justified only when the remedy at law is inadequate.
    Appeal from Benzie; Aldrich, J.
    Submitted January 3, 1900.
    Decided March 27, 1900.
    Bill by Christian Mack and Frederick Schmid against the village of Frankfort and others, officers of said village, to compel defendants to reimburse complainants for moneys paid for village bonds. From an order overruling demurrers to the bill, defendants appeal.
    Reversed.

      B. M. Thompson, for complainants.

      George Whitbeck and Smurthwaite & Fowler, for defendants.

       Rehearing denied May 18, 1900.

   Moore, J.

The pleadings in this case are fairly summarized by the solicitors for the defendants as follows:

“Complainants filed their bill of complaint, alleging as follows: The defendants are the village of Frankfort, a municipal corporation, and Digby B. Butler, who was president, and six others, five of whom were trustees, in 1895, and one was village treasurer of said village when said bill was filed; and the defendants are therefore the village as a corporation, and its president, five of its trustees, and the village treasurer, as individuals. The complainants purchased three bonds, of $1,000 each, purporting to have been issued by the defendant village, and paid therefor $3,000, and said bonds purported to have been issued to enable the said village to purchase lands for a public park and improve the same. The village has refused to pay the interest coupons attached to said bonds, claiming that said bonds were never lawfully delivered. The president and members of said village conspired with each other, and with certain electors unknown, to deceive, mislead, and defraud complainants and all persons who should wish to purchase said bonds. Said bonds were not in fact issued for park purposes, but to be used as bonus bonds to promote certain business enterprises, and it was so understood by the electors of the village. The proposition to hold an election to issue park bonds was before the council of said village on January 14, 1895, when three of said trustees voted for, and three against, the proposition, and the president cast the deciding vote. An election was held accordingly on January 30, 1895, and 60 electors voted in favor of issuing the bonds, 37 electors voted against it, and 1 vote was rejected as defective.
“Prior to January 14,1895, one Howard Seely proposed to the village council that, if the village would give him a bonus of $3,000, he would erect a factory in said village, and employ at least 50 operators, and offered to give bond for the faithful performance of his undertaking. Said proposition was accepted by the village council, four trustees voting for, one against, the acceptance; the president and one trustee being absent or not voting. After the said special election, a petition, signed by a number of the electors of the village, was presented to the council, requesting that the proposition of said Seely be accepted. Said Seely executed and filed with the village clerk a bond as per his said proposition. On February 25, 1895, the village council accepted and approved said bond, and authorized the closing of the contract with Seely, four trustees voting in favor of and one against the proposition; the president and one trustee being absent or not voting. On February 27, 1895, the president and clerk were instructed to sign the contract with Seely, and to execute three bonds, of $1,000 each, four trustees voting for and two against the proposition; the president not voting. The contract and bonds were signed accordingly, and the bonds deposited in a vault in the Bank of Frankfort for safe-keeping until the said Seely had performed his agreement, then to be turned over to Howard Seely as per contract, and said bonds were so deposited by the president of the village, and were inclosed in an envelope upon which the said president indorsed as follows: ‘ Inclosed are three bonds of the village”of Frankfort, for $1,000 each, to be given to Howard Seely or the Frankfort Woodenware Company as soon as their factory is completed and ready to run. They are now placed until that time in the vault of the Bank of Frankfort for safe-keeping, in accordance with the vote of the council February 27, 1895.’ Seely erected said factory, but at what time does not appear, and on July 23,1895, one E. R. Chandler reported that he had delivered the bonds to the Frankfort Woodenware Company.
“Nothing appears upon the records to show that the bonds authorized by the electors of the village were the bonds given to said Seely. The president and trustees purposely caused the records to be made up in such a manner as would conceal the actual facts, with intent to' defraud complainants or whoever might purchase the bonds. The complainants acted in good faith, and without knowledge of the actual facts.
“ The bill makes the village, the president, five of the six trustees, and the village treasurer, defendants, as aforesaid, and prays relief as follows;
“ (a) That the defendant village be decreed to be liable for the principal and interest of the bonds, and, that .judgment be. rendered against it for the interest now due.
“(6) That the village treasurer be decreed to pay such judgment.
“(c) If there be no funds, that the village be decreed to spread a tax to raise the same.
“(d) If the court shall find the village not liable, that a judgment be entered against the president and five of the trustees of the village for the $3,000 the complainants paid for the bonds and interest thereon, and for execution to enforce the collection thereof.”

The village, Mr. Butler, formerly village president, three of the trustees, and the village treasurer filed general demurrers to the bill of complaint. The other defendants did not appear. The court overruled the demurrers, and the said defendants appealed.

The grounds of demurrer are: First, the bill is multifarious ; and, second, there is a plain, adequate, and complete remedy at law.

We think a disposition of the second ground of demurrer disposes of the case. It will be observed that the prayer for relief does not ask for an injunction, for discovery, for an accounting, or for specific relief, but asks simply for a money judgment. It is the claim of the complainants that the bill sets forth just one transaction, — a conspiracy to defraud, — to which all of the defendants were parties. The solicitor lays down these propositions:

1. “ The English court of chancery has concurrent jurisdiction with courts of law in all cases when the cause of action is based upon fraud, although complete and adequate relief might be had at law; ” citing St. Aubyn v. Smart, L. R. 5 Eq. Cas. 183, 3 Ch. App. Cas. 646; Hill v. Lane, L. R. 11 Eq. Cas. 215; 2 Pom. Eq. Jur. § 912.

2. “The jurisdiction of our circuit courts in chancery in cases of fraud is co-extensive with the- jurisdiction of the English court of chancery. ”

It is said that this jurisdiction is expressly conferred by the Constitution and the statutes.

“ The Constitution of this State (article 6, § 8) provides, ‘The circuit court shall have original jurisdiction in all matters, civil and criminal, not excepted in this Constitution and not prohibited by law.’

“Section 6592, 2 How. Stat. (section 415, 1 Comp. Laws 1897), provides, ‘The several circuit courts of this State shall be courts of chancery within and for their respective counties, the powers of which shall be exercised by the circuit judges thereof.’

“ Section 6611 (section433) defines the power and jurisdiction of these courts: ‘The powers and jurisdiction of the circuit courts and circuit judges in chancery, in and for their respective counties, shall be co-extensive with the powers and jurisdiction of the courts and judges in chancery in England, with the exceptions, additions, and limitations created and imposed by the Constitution and laws of this State.’ ”

The solicitor cites Heath v. Kent Circuit Judge, 37 Mich. 372, 375; People v. McCaffrey, 75 Mich. 115, 124 (42 N. W. 681); Brown v. Kalamazoo Circuit Judge, 75 Mich. 274, 278, 284, 285 -(42 N. W. 827, 5 L. R. A. 226, 13 Am. St. Rep. 438).

3. “The complainants in this case have not a complete and adequate remedy at law. The defendants concede that, if the remedy at law is in any way inadequate and incomplete, the chancery court has jurisdiction. . The remedy which they have in mind, apparently, is the final relief which can be had, — the final judgment at law or decree in chancery. ‘ Remedy’ implies much more than that. It covers both the relief and the procedure. As Mr. Pomeroy states it, ‘The English judges have virtually said that, in every case of fraud, the remedy at law, either from the legal relief itself or from the methods of legal procedure, is inadequate,’” — citing 2 Pom. Eq. Jur. § 912; Ochsenbein v. Papelier, 8 Ch. App. Cas. 695; Wallace v. Harris, 32 Mich. 380; John Hancock Mut. Life Ins. Co. v. Dick, 114 Mich. 337 (72 N. W. 179, 43 L. R. A. 566).

It is said by the solicitor in his brief:

“It does not matter that the law courts can give a plain, adequate, and complete relief;” citing Wallaces. Harris, 32 Mich. 380, 381; Edsell v. Briggs, 20 Mich. 429, 433; Warren v. Holbrook, 95 Mich. 185, 189 (54 N. W. 712, 35 Am. St. Rep. 554); Wyckoff v. Machine Co., 43 Mich. 309 (5 N. W. 405); Tompkins v. Hollister, 60 Mich. 470, 479 (27 N. W. 651); Wright v. Hake, 38 Mich. 525; McKinney v. Curtiss, 60 Mich. 611 (27 N. W. 691); Tyler v. Savage, 143 U. S. 79 (12 Sup. Ct. 340).

The last-named case, the solicitor says, is especially in point. A reference to the case indicates that there was involved in the case what the court stated in its opinion at page 95, 143 U. S.: “ Thus there were in the case, as ingredients to support the jurisdiction of equity, discovery, account, fraud, misrepresentation, and concealment.” It also appears that there was no objection made to the bill in the court below for want of equity. Many of the cases' discussed by the learned judge in that case held that, where there was a plain, adequate, and complete remedy at law, the chancery court would not take jurisdiction.

Is the claim of the solicitor that in this State chancery has concurrent jurisdiction with courts of law, in all cases of fraud, true? An examination of the cases cited will hardly bear out that conclusion. Much reliance is placed upon the case of John Hancock Mut. Life Ins. Co. v. Dick, supra. This case was a border-line case, but an examination of it shows that complainant prayed for an injunction, and that .the policy might be declared void on the ground of fraud, and that it be surrendered for cancellation. It, of course, is apparent that a court at law could not have ordered the cancellation of the policy.

In Tompkins v. Hollister, supra, the record shows that the relation between Hollister and Tompkins was a fiduciary one; and the court said:

“Especially does equity take cognizance of a case where one holding confidential and fiduciary relations to another, and thereby morally and legally bound to communicate facts, conceals them for his own benefit and profit, and to the disadvantage of the other.”

In McKinney v. Curtiss, supra, the court used this language:

“The first ground relied on, that complainant has a remedy at law which was adequate, cannot be sustained. The defendant Mrs. Curtiss is shown by the record to be entirely insolvent, and there is nothing to prevent the administrator paying to her .the amount of the note, except this suit.”

In Wyckoff v. Machine Co., supra, an injunction was prayed to restrain the delivery of a contract in violation of an agreement to hold it as an escrow; and the court said, after holding that there was a concurrent remedy in cases of fraud:

“ And as equity, in this case, could require the surrender of the agreement and the machines on just terms, its remedies would be more complete and ample than any which a court of law could afford.”

In Warren v. Holbrook, supra, it was held that courts of equity have jurisdiction to compel an accounting where fiduciary relations exist or fraud is charged, and in that case it was held, that the fiduciary relation existed, and that it was a proper case to allow the aggrieved party to have an accounting and to pursue the fund.

In the case of Edsell v. Briggs, supra, the court said that it was not satisfied that the complainants had a remedy in a suit at law.

The case of Wallace v. Harris, supra, was one where the court held that the remedy in equity was fuller and more appropriate than would be one at law, and the court used this language:

“•We think the case presents such complications, such obstacles to a disposition at law, * * * that a speedy, full, and just solution could be had only in a court of equity.”

In Brown v. Kalamazoo Circuit Judge, supra, the court used this language:

“The universally-recognized basis of equitable jurisprudence, found in statutes and constitutions, as well as in the reports and text-writers, is the inadequacy of the common law to deal with these subjects. ”

It will be observed that it did not appear in any of these cases that there was a full and complete remedy at law, free from the existence of a fiduciary relation, or the right to have an accounting, or the right to have some other relief peculiar to a court of chancery.

The questions involved are not new in this State. The same issues arose in Teft v. Stewart, 31 Mich. 367, where Justice Graves uses this language:

“They further explicitly claimed that the bill did not make a case of equitable cognizance, and insisted that his remedy, if any, was at law. * * * It appears to me quite impossible, in the face of the objection taken and insisted on, to sustain this decree without sanctioning the right to come into equity in all cases to recover damages where the grievance asserted is a fraud committed by one upon another in a dealing in personal property. If the right contended for and carried out by the decree can be maintained, no reason is perceived why, upon the same principle, a party claiming to have been cheated in a horse trade, or in a purchase of any chattels, where the amount is sufficient, may not, at his election, proceed to sue in chancery for damages, and preclude an investigation before a jury. The principles and course of practice of the court are, however, not in harmony with any such procedure. It is admitted that the books' commonly say that equity has jurisdiction in all cases of .fraud, but every one knows that the proposition is not to be accepted literally. It must always be understood in connection with the genius and specific remedial powers of the court. These confine it absolutely to civil suits. They also confine it, when the point is seasonably and properly made and insisted on, to transactions where, in consequence of the indicated state of facts, there appears to be ground for employing some mode of action, or some kind of aid or relief, not practicable in a court of law, but allowable in equity. In the present case no injunction was called for, and there was no ground for discovery, and no discovery was sought, as the bill waived an answer on oath. No claim was set up to have the deed from Sherwin to Stewart set aside, or to have the land conveyed to complainant, and no case is made to warrant such a claim, since the bill contains nothing to show that third persons may not have acquired interests on the faith of Stewart’s title. Indeed, no circumstances are set forth to call specially for equitable intervention, or for any assistance or mode of redress peculiar to chancery procedure. The facts as given, and the case as shaped, point to just the action and relief peculiar to a court of law. They look to a single judgment for damages, and nothing else. The case, then, was really of legal, and not in strict propriety of e'quitable, cognizance. The objection was timely made and urged, and complainant was bound to regard it; and unless it is to be maintained that in all cases standing on the same principle a complaining party is to be allowed by his election to try in chancery, and prevent an investigation by jury, the point made by appellant must be sustained, and in my judgment it should be,” — citing many cases. .

In Hagenbuch v. Howard, 34 Mich. 1, the court in equity declined to interfere by injunction to restrain the collection of a tax on personal property, because the complainant had an adequate remedy at law. The same ruling was made in Mears v. Howarth, 34 Mich. 19. In Bay City Bridge Co. v. Van Etten, 36 Mich. 210, the court declined to entertain the bill for the reason that complainant had an adequate remedy at law. In Shaw v. Chambers, 48 Mich. 355 (12 N. W. 486), Justice Cooley, speaking for the court, said, “Equitable jurisdiction is to be invoked only when the common law is inadequate to give full relief.” In Stoddard v. McLane, 56 Mich. 11 (22 N. W. 95), Justice Cooley, speaking for the court, said, “In general, liens obtained by the levy of executions on personalty do not require the aid of equity for their enforcement, and alleged fraudulent transactions which affect them are best investigated in the courts of law.” In Prescott v. Pfeiffer, 57 Mich. 21 (23 N. W. 477), a bill in the nature of a creditor’s bill was dismissed. Justice Campbell, speaking for the court, used the following language: “But, inasmuch as he must sue as an assignee, he must sue in such a form as the nature of the case requires; and, if there is an adequate remedy at law for the judgment creditors or for himself, there is no occasion to resort to equity.” In Pulezer v. Kucharzyk, 116 Mich. 92 (74 N. "W. 304), the bill of complaint was dismissed for the reason that complainant had an adequate remedy at law.

I do not understand that, every time a man has been defrauded in a horse trade or in the purchase of a stock of goods, he may invoke the aid of a court of equity, even though he had an adequate remedy at law. It is doubtless true that, in cases of fraud, the equity court has concurrent jurisdiction with courts of law, and its aid may be invoked if the relief sought is of an equitable character, but this case is not such a one. The bill calls for a money judgment, and does not show that the equity powers of the court are necessary for its enforcement. The case is of such a character that it can best be investigated in a court at law, where the parties can have the benefit of a jury trial, if they so desire. Bennett v. Nichols, 12 Mich. 22; Smith v. Walker, 57 Mich. 456 (22 N. W. 267); Stoddard v. McLane, 56 Mich. 11 (22 N. W. 95); Prescott v. Pfeiffer, 57 Mich. 21 (23 N. W. 477).

The demurrers should have been sustained. The decree is reversed, with costs.

Montgomery, C. J., concurred with Moore, J. Hooker, Long, and Grant, JJ., concurred in the result.