text:
    PEOPLE v. McCLINTIC.
    1. Perjury — Warrant—Grounds—Justices of the Peace — Preliminary Examination.
    Respondent was charged with perjury for giving false testimony relative to the purchase of intoxicating liquors from a colored person who was accused of unlawfully furnishing intoxicating liquors. Respondent was given two marked one dollar hills and entered the pool room of the accused and returned with two pints of whisky, which he stated that he bought of the accused. He made a sworn statement to that effect when the warrant was issued. Later, he gave evidence on the examination that he did not purchase the whisky of accused and did not pay him the marked bills which he had received. The people produced evidence that tended to show the contradictory statements of respondent on the two occasions and that he had informed certain witnesses of the purchase of the whisky. The justice of the peace who issued the warrant testified to the statements made by respondent at the time of issuing the warrant. They were not reduced to writing. Held, that the object of the examination before the justice, under 3 Comp. Laws 1915, § 15666, is to determine the sufficiency of the ground for a warrant and the evidence need not be written down, also that there was evidence which required the submission of the case to the jury.
    2. Same — Criminal Law — Trial.
    Contradictory statements, whether made under oath or not, do not authorize a conviction for perjury, although the additional testimony of another witness to the falsity of the statement is not required if the truth may be inferred from the combined facts proven. The prosecution, however, must prove which of the two statements is false and by other evidence than the contradictory statements.
    3. Same — Intent—Trial-Charge—Materiality.

      Held, that the jury should have been instructed on the point whether or not perjury was committed at the time laid in the information, i. e., the evidence given by respondent when he was called as a witness or whether respon.dent swore untruthfully on the prior occasion, and that wilful false swearing before the magistrate upon a material matter before the complaint had been made would constitute perjury.
    4. Same — Evidence—Juey Question.
    Testimony of the respondent that he was frightened or cajoled by the officers and by the justice of the peace before whom complaint was made into swearing to the same, and by the use of third degree methods, and, in effect, that his testimony at the subsequent examination was true, presented a proper issue for the jury.
    5. Same — Requests to Charge — Reasonable Doubt.
    The court, in giving his instructions to the jury, should have granted respondent’s request to charge that, in considering the guilt or innocence of the respondent, before they could convict they must find that the people have proved beyond a reasonable doubt in their minds that the matters sworn to were false in fact and that they must find the respondent did go to the place of business in question and purchase the whisky as charged; further, that they could not find the respondent guilty of testifying falsely upon the testimony of one witness whose testimony is given to prove the falsity of the statement; that in addition to the statement of the witness strong corroborating circumstances of such a character as would clearly turn the scale and overcome the oath of the party accused must be shown.
    6. Same — Tbial—Chaege.
    If the preliminary testimony made it clear that the statement claimed to have been made was voluntary or involuntary it was the duty of the trial court to admit or reject it; if the matter was left in doubt, it was the duty of the court to admit it and leave the question to the jury under proper instructions to determine whether it was voluntarily made; the jury should have been explicitly advised on this issue.
    7. Same — Presumption oe ■ Innocence — Instructions.
    The court did not substantially cover the subject of the presumption to be considered, by telling them that the burden rested on the prosecution and the accused came into court clothed with the presumption of innocence, and he stands innocent in their minds until the people, through the prosecuting attorney, had convinced them of his guilt beyond a reasonable doubt; that a reasonable doubt meant a doubt which a reasonable man might have, not a captious doubt; that the matter did not require mathematical exactness, but the people must prove beyond a reasonable doubt that respondent was guilty, etc.
    Error to Ingham; Collingwood, J.
    Submitted October 12, 1916.
    (Docket No. 125.)
    Decided December 21, 1916.
    Nelson McClintic was convicted of perjury.
    Reversed.

      Grant Fellows, Attorney General, William, C. Brown, Prosecuting Attorney, and J. Arthur Boice, Assistant Prosecuting Attorney, for the people.

      W. J. Carbaugh and S. B. Roe, for respondent.
   Stone, C. J.

The defendant was charged with, and convicted of, the crime of perjury, alleged to have been committed on April 7, 1916, at the city of Lansing, on the examination of one Theodore De Meaux, at a court held by Charles F. Haight, a justice of the peace, the said De Meaux being charged before said justice, on the complaint of one Frank Eurek, with the offense of unlawfully furnishing intoxicating liquor to the defendant herein, on March 24, 1916, at the city of Lansing, in violation of Act No. 207, Pub. Acts 1889, as amended.

The information in the instant case charges that upon such examination before said justice it then and there became and was a material question whether the said De Meaux did, on March 24, 1916, sell certain intoxicating liquor, to wit, whisky, to the defendant herein, and whether the defendant then and there paid to said De Meaux any money for the said whisky.

No question is raised as to the sufficiency of the information, nor is it denied that upon such criminal examination the defendant herein, in substance, testified that he did not purchase any intoxicating liquor from the said De Meaux at the time and place stated; nor is it denied that he, in substance, testified that he did not give or pay any money to the said De Meaux at the time and place alleged. It is conceded that such testimony was material to the issue. The matters which preceded this examination become material.

It is the claim of the people that, on the evening of March 24, 1916, the defendant was given two marked $1 bills by one Carl Hambruck; that they went together to the pool room of said De Meaux, in the city of Lansing; that this defendant went into the pool room of said De Meaux with said money and soon thereafter came out with two pints of whisky, which he said he purchased from De Meaux with the $2; that Police Officer Eurek, who had marked the bills and had furnished them to Hambruck, and who saw the defendant go into De Meaux’s place and come out again, and who took the liquor from him afterwards, went the same evening before Charles F. Haight, a justice of the peace of the city, and made, signed, and swore to a complaint against said De Meaux, charging him with having furnished whisky to the defendant; that the defendant, after such complaint was made and before the warrant was issued, went before the said justice and was there sworn and examined as to the matters charged in the complaint, and testified that he had that evening purchased two pints of whisky from said De Meaux, for which he paid said De Meaux $2. A warrant was issued upon the complaint and examination, and said De Meaux was immediately arrested. The people claimed that, at the time of his arrest, De Meaux was seen to throw these marked bills into his woodpile, and later claimed the money was his and took it; that defendant stated, not only on oath before said justice, but also to Eurek and one Merrick, that he had purchased two pints of whisky from said De Meaux on the occasion in question, and had paid him $2 for it. Then, on said April 7th, came the examination before the justice, above referred to, in which it is claimed by the people that defendant committed perjury in swearing that he did not purchase any liquor from, or pay any money to, said De Meaux on March 24, 1916. This is a case where it is claimed that defendant first swore before the justice that he had purchased intoxicating liquor from Theodore De Meaux, and did pay him $2 therefor; and later, upon the occasion charged as perjury, he swore that he did not purchase intoxicating liquor from said party, and did not pay him any money

It becomes important to examine the evidence as to whether defendant was sworn and examined in support of the complaint by the justice before the warrant was issued.

Upon the trial of the instant case, Charles F. Haight, the justice, was sworn. He testified as follows:

“I am justice of the peace of the city of Lansing. I am acquainted with Nelson McClintic. I saw Nelson McClintic on the 24th day of March, last, in my office in the city hall in Lansing, if I remember correctly, around about 10 o’clock, perhaps a little later, and the occasion of his being at my office was, I had been called down there in regard to issuing a warrant for Theodore De Meaux for violation of the local option law. Mr. Eurek and Mr. Hambruck were at my office at the time, and a few minutes later Mr. McClintic was there. If I remember correctly, Mr. Hambruck went out soon after, or about the time McClintic came in. There was a complaint against De Meaux at that time. The complaint was signed by Frank Eurek. Upon that occasion I swore Mr. McClintic as to the matters charged in the complaint. * * * I asked McClintic what there was about the fact of the statement made by Mr. Eurek that he had purchased liquor of De Meaux that night, and he said that Hambruck gave him two $1 bills and told him that if he would go to De Meaux’s and purchase two pints or one quart of whisky he would give him half of it for doing it. He stated that he went to De Meaux’s place, bought two one-pint bottles of whisky, and gave him the two $1 bills that Hambruck had given him to purchase the liquor with, to_De Meaux, and that he came away with the two one-pint bottles of whisky, that he gave one pint of whisky to Hambruck and kept the other pint himself.
“Q. I will ask you if that is the testimony upon which you issued the warrant in this case?
“A. Yes, sir.”

The record does not disclose any testimony contradicting the above testimony as to the time and manner of the examination on oath of the defendant.

Section 11839, 3 Comp. Laws, being section 15007, 5 How. Stat. (2d Ed.) (3 Comp. Laws 1915, § 15666), provides as follows:

“Whenever complaint shall be made to any such magistrate, that a criminal offense, not cognizable by a justice of the peace, has been committed, he shall examine on oath the complainant, and any witnesses who may be produced by him.”

The object of this examination is to determine the existence of ground for the warrant, and need not be reduced to writing. People v. Bechtel, 80 Mich. 623 (45 N. W. 582); and see notes to above section 15007, Howell.

There was evidence upon the trial in support of the above claim of the people.

The defendant testified upon the trial, in substance: That Hambruck came to his room where he was living, about 9 o’clock of the evening of March 24th, and produced and offered to the defendant some whisky. That defendant claimed that he went out with Hambruck upon the street, at his request, and that Hambruck said he needed some more whisky, and that he had been to De Meaux’s place and could not get it, and he asked the defendant to go and see if he could not get some from De Meaux, and that Hambruck then gave him two $1 bills. That defendant took the money and went to De Meaux’s place. That he tried to obtain the whisky, from De Meaux and was refused, De Meaux stating that he did not sell any whisky,' and that De Meaux did not sell him two one-pint bottles that night, nor any whisky, and that defendant did not pay him any money that night at all. That when he came out of De Meaux’s place he met Hambruck and walked around with him and gave back to him the money which Hambruck had furnished him. That Hambruck then furnished the defendant with a drink of whisky and said that he had another bottle. About this time defendant claims that they met the officer Eurek, and he said, “I want both of you boys.” That the officer took him and Hambruck to the city hall, where the whisky which Hambruck had furnished the defendant was taken from him, and also some whisky was taken from Hambruck; that the officers expressed great anxiety to arrest De Meaux. The defendant testified: That at this time the chief of police came in and abused him, swore at him, called him a “damned liar,” shook his fist in his face, threatening to strike him. That first one would question him, then another, and this abuse was continued. That the justice said to him, “What are you here for?” That he told him because he could not get away; that they brought him there. Whereupon the justice said, “You might as well tell us all about it,” and commenced to laugh, and defendant told him he had nothing to tell, and then he started asking questions, and the chief and Eurek abused him and called him a liar. That Eurek took him alone and said:

“You might as well come clean and tell this. You can be home in 15 minutes and in bed, because it is not you we want; it is the nigger we have been after.”

That the treatment of the police officers and the justice made him nervous. That he was soon after placed under arrest for having furnished liquor to Hambruck, and he was taken to Mason and confined in jail, but was never tried upon the charge of violating the local option law. The defendant testified that he had been drinking some whisky furnished him by Hambruck. He denied that he told them that he got the whisky from De Meaux, and also denied the purchase of any whisky from De Meaux; that they kept this abusive language up for three-quarters of an hour before he was taken to the justice’s office. He testified that he had no recollection of going to De Meaux’s and coming back with whisky, and claims that he did not remember what he said before the justice.

At the close of the people’s case, there was a motion for a directed verdict of not guilty, for the reasons that there was no proof in the case showing that defendant bought the liquor from De Meaux, and that the only proof that defendant swore falsely upon the examination was his own admission, and that such admissions and statements; being extrajudicial, were not sufficient to establish the charge unless supported by other substantive proof, or which there was none. The motion was overruled, and defendant’s counsel excepted.

There was other evidence tending to corroborate some portions of the defendant’s testimony

The court was requested to charge the jury, among other things, as follows:

“(1) I instruct you in considering the guilt or innocence of the respondent, before you can convict you must find that the people have proved beyond a reasonable doubt in your minds, * * * that the matters sworn to were false in fact, and that this respondent knew at the time he made these statements under oath that they were false. In other words, gentlemen, in order to find this respondent guilty as alleged, you must find as a matter of fact that on the 24th day of March last this respondent did go to Theodore De Meaux’s place of business on Ionia street in the city of Lansing, and there did purchase from the said Theodore De Meaux two one-half pints of whisky.
“(2) I instruct you that you cannot find this respondent guilty of testifying falsely upon the testimony of one witness whose testimony is given to prove the falsity of this statement so made, for that would only be oath against oath. It is necessary that, in addition to the testimony of one witness to the falsity of the statement alleged to have been perjury, that strong corroborating circumstances of such a character as will clearly turn the scale and overcome the oath of the party charged should be proven. * * *
“(4) Now, gentlemen of the jury, if you find from the evidence that the alleged statement made by this respondent before Charles F. Haight, a justice of the peace, at his office in the city of Lansing, in the evening between the hours of 10 and 12 o’clock p. m., were made under duress, promise, threats, or fear, or excitement, even though they may have been made under oath, they cannot be considered by you as evidence against this respondent. In order for these statements to be used as evidence against this respondent, they must have been made voluntarily and not through coercion or through fear or under excitement, and even then any statement that he may have made at that time, whether under oath or not, can only be considered by you as corroborating evidence of whether or not the testimony given by the respondent on the 7th of April last, upon the preliminary examination before the said Charles F. Haight of Theodore De Meaux, were true or false.
“(5) Gentlemen of the jury, the court instructs you that the respondent in this case is presumed under our law to be innocent of the crime charged until he has been proved guilty beyond any question of reasonable doubt. A ‘reasonable doubt’ is a doubt which grows out of the testimony in the case. It is not a mere fictitious or an imaginary doubt, but it is a doubt arising in your minds after, you have carefully considered all the testimony in the case. If yóur mind then is in such condition that you cannot say to a moral certainty that the defendant is guilty, a reasonable doubt exists in your minds and you should acquit him. If you have no such reasonable doubt in your minds under the testimony, then you should convict him. That is what is meant by a reasonable doubt. If, after you have looked this testimony carefully over, you have any reásonable doubt in your minds of this young man’s guilt, you should fearlessly say that he is ‘not guilty.’ ”

None of these requests wás given by the court. The court did charge the jury upon the subject of the presumption of innocence in the following language:

‘‘In this case, as in all criminal cases, the burden of proof rests on the people, and the man comes into court clothed with the presumption of innocence and he stands innocent in your minds until the people, through the prosecuting attorney, have convinced you of his guilt beyond a reasonable doubt.”

The court further charged the jury as follows:

“Now, a ‘reasonable doubt’ means just what it says, a doubt which a reasonable man might have. It is not a captious doubt. It is not that the matter must be proved as a mathematical problem is proved beyond all peradventure. It simply means that they must prove to you beyond a reasonable doubt that respondent is guilty, before you can so find him.
“In this case, the charge is perjury, false swearing. It might be termed lying in court under oath. Stripped of all its technicalities, the case is this: A certain person in Lansing was apprehended for a violation of the local option law.. That is a crime, and when the officers have evidence sufficient they issue a warrant; that is, a justice of the peace or the other properly organized officers would issue a warrant. The man is brought in, or the woman, and the first thing is to give them an examination. Now, in that examination Mr. McClintic was called as a witness, and he was asked if he had bought liquor of this man Theodore De Meaux, and he said, ‘No.’ And he was asked if he had paid him any money, and he said, ‘No.’ Well now if that is true, that was very proper testimony for Mr. McClintic to give. But the people claim that as a matter of fact he had actually bought liquor of Theodore De Meaux and had paid him money, and to substantiate their claim they bring forward these people who claim that at certain times and under certain circumstances Mr. McClintic admitted that he had bought this liquor of Mr. DeMeaux and had given him the money. And then they bring forward certain witnesses to testify to certain circumstances which might or might not convince you of the fact.
“Now, gentlemen, the thing for you to determine is this: Did Mr. McClintic, when he testified in that examination that he had not bought liquor of Mr. De Meaux and had not paid him money, did he tell the truth? If he did, you must bring in a verdict of not guilty. But if you believe that he did buy the liquor of Mr. De Meaux, or that he did pay the money to Mr. De Meaux, and if you are convinced of that beyond a reasonable doubt, under all the circumstances that have been given, then your verdict should be guilty.
“Something has been said about his testifying before Justice Haight, and taking an oath there. This question of perjury is not a question of whether he swore falsely before Justice Haight at that time that the warrant was made, but the question of perjury is: Did he swear falsely at the time of the examination?”

The defendant was convicted and sentenced to the State prison. The case is before us upon writ of error, and the assignments of error complain of certain rulings of the court in the introduction of evidence, of the conduct of the trial, of the refusal of the court to charge the jury as requested, and in the charge of the court as above indicated.

1. A careful examination of the record does not disclose any reversible error in the rulings of the court upon matters of evidence during the trial. We think the court did not err in refusing to direct a verdict of not guilty. The case is somewhat peculiar and unusual, in that it is the claim of the people that the defendant had made contradictory statements under oath, and that he told the truth when examined before the magistrate before the issuing of the warrant on March 24th, and that he swore falsely and committed perjury upon the examination of De Meaux, held April 7, 1916.

In some of the early English cases it was held that a contradictory statement under oath of a defendant justified a conviction for perjury, and that the jury might infer a corrupt motive from such contradictory statements. One eminent English judge said:

“There is no doubt that what might be called a common-sense conclusion is that if a man deliberately and wilfully on one occasion swore that a fact was so, and on another occasion deliberately swore that it was not so, no doubt he must have been guilty of perjury on one or the other occasion.” ,

We think the better doctrine, as shown by the great weight of authority in this country, is correctly stated in Bishop’s New Criminal Procedure, vol. 3, § 931, where that author says:

“Where, on different occasions, the defendant has sworn both in affirmation and denial of the same thing, oath nullifies oath; and the rule that the testimony of one witness will 'not authorize a conviction does not apply. The further doctrine as to the effect of his contradictory statements, whether made on oath or not, is that in neither case are they alone a sufficient foundation for a conviction for perjury. But the added testimony of an independent witness to the falsity of the one statement is not required where, as often happens, the truth may be otherwise duly evolved from the combined proven facts.”

In 2 McClean’s Criminal Law, § 891, appears the following statement:

“Proof that accused has given contradictory testimony under oath at a different time will not be sufficient to establish the falsity of the testimony charged as perjury, for this would leave simply one oath of the defendant as against another, and it would not appear that the testimony charged was false rather than the testimony contradictory thereof. The two statements will simply neutralize each other; there must be some corroboration of the contradictory testimony. Such corroboration, however, may be furnished by evidence aliunde tending to show the perjury independently of the declarations of testimony of the accused.”

We think that it should be held that a conviction for perjury cannot be sustained merely upon the contradictory sworn statements of the defendant, but the prosecution must prove which of the two statements is false, and must show that statement to be false by other evidence than the contradictory statement. Billingsley v. State, 49 Tex. Cr. R. 620 (95 S. W. 520). This case will be found reported in 13 Am. & Eng. Ann. Cas. at page 730, and there is a very full and complete note containing reference to the authorities, both English and American. Many cases are cited, among them Schwartz v. Commonwealth, 27 Grat. (Va.) 1025, 21 Am. Rep. 365; Rhodes v. Commonwealth, 78 Va. 692.

It seems to us that the trial court should have covered this question with a more explicit charge. The attention of the jury should have been directed to the point whether perjury was committed by the defendant, if at all, on the 7th of April when he testified upon the examination, or whether he had testified mistakenly or untruthfully or falsely on March 24th before the magistrate. We have no doubt that under our statute deliberate and wilful false swearing before the magistrate upon a material matter, before the warrant was issued, and after the complaint had been made, would constitute perjury. We do not hold that the defendant might not have been properly convicted of perjury in his testimony of the 7th of April, if the jury should find, under proper instructions, that he had testified to the truth before the magistrate on the 24th of March. But to reach that result the evidence should have negatived the ■ probability of mistake or duress in regard to the first statement, and the people should have shown which of the two statements was false; or rather, under this information, they should have shown that the last statement was false.

We think that under the testimony of the defendant his claim that his statements made before the magistrate, and other statements in the presence of the other witnesses were not freely made, or that they were induced by threats, duress, and the exercise of what is claimed by the defendant as the “third degree,” and were not true in fact, should have been submitted to the jury; and we also think that it was prejudicial error not to have given defendant’s first and second requests to charge, or the substance thereof.

As to the claimed admissions or confessions of the defendant, we have recently stated the rule to be that, if the preliminary testimony made it clear either that the statement claimed to have been made was voluntary or involuntary, it is the duty of the trial court to admit or reject it. If the testimony left the question in doubt, it was the duty of the court to admit it, and leave the question to the jury under proper instructions to determine whether it was voluntarily made. People v. Prestidge, 182 Mich. 80, 82 (148 N. W. 347). We think that the jury should have been explicitly instructed upon this subject, but the subject was not alluded to in the charge.

2. Was the charge upon the subject of the presumption of innocence sufficient, in view of the refusal to charge as requested on that subject?

We have held that it was not error to refuse specific requests, if the charge as given brings out the same point clearly and definitely. People v. Hoek, 169 Mich. 87 (134 N. W. 1031). But upon this subject see the following cases: People v. Karamol, 173 Mich. 354 (139 N. W. 1); People v. Rogulski, 181 Mich. 481 (148 N. W. 189); People v. De Fore, 64 Mich. 693 (31 N. W. 585, 8 Am. St. Rep. 863). In the last-cited-case it was said:

“It is the duty of the trial judge, in a criminal case, to instruct the jury in reference to the presumptions of law applicable to the case before them, distinguishing those' which are conclusive from those which are disputable. The presumption of innocence is present in every criminal case; and he should instruct the jury to that effect, and that it stands good until overcome by evidence which convinces the jury beyond a reasonable doubt that the respondent is guilty.”

In our opinion the language used by the trial court was not a correct statement of the law. In view of the request to charge, it was not sufficient to say “the man comes into court clothed with the presumption of innocence, and he stands innocent in your minds until the people, through the prosecuting attorney, have convinced you of his guilt beyond a reasonable doubt.” It was not the equivalent of stating that the presumption stands good until overcome by evidence which convinces the jury beyond a reasonable doubt that the defendant is guilty.

In the particulars above pointed out, we are of the opinion that the trial court erred in its charge to the prejudice of the defendant. The case was one requiring more explicit instructions as to the law governing the crime of perjury, under the exceptional circumstances of the case.

The judgment of the court below is reversed, and a new trial granted.

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


source: Caselaw Access Project

author: Stone, C. J.

license: Public Domain

text:
    MORRISON v. QUEEN CITY ELECTRIC LIGHT & POWER CO.
    1. Waters and Watercourses — Plowing Lands — Action — Evidence.
    In an injunction suit to prohibit defendant from overflowing lands of the complainant, testimony that plaintiff paid $5,000 for the mill and premises including a claim for damages against the defendant power company would not be proof of the value of the premises when the transfer occurred.
    2. Same — Damages—Minimizing Injury.
    The property owner whose lands are damaged by flowing is under the legal obligation to minimize the damage as far as may be and in an action for the injury can recover only the damages that could not be avoided by exercising reasonable precaution.

    3. Same — Damages in Contemplation op Wrongdoer.
    Where defendant power company flooded the mill property of plaintiff, he was entitled to adequate damages for the injuries sustained and it was not material whether defendant actually contemplated them, as it must be held that all damages naturally and proximately following from its wrong were in the contemplation of the tort feasor.
    4. Same — Decree—Damages.
    Award of damages of $235 increased by the court to $500 and decree modified accordingly.
    Appeal from Grand Traverse; Mayne, J.
    Submitted October 5, 1916.
    (Docket No. 37.)
    Decided December 21, 1916.
    Bill by Harvey Morrison against the Queen City Electric Light & Power Company for an injunction restraining defendant from flooding complainant’s land. From a decree awarding damages, complainant appeals.
    Modified and affirmed.

      John W. Patchin, Parm C. Gilbert, and H, C. Gilbert, for complainant.

      Coveil & Cross, for defendant.

      On duty of riparian proprietor whose rights are interfered with or one whose property is flooded because of the obstruction of a natural watercourse, to minimize the damages, see note in 22 L. R. A. (N. S.) 684.

   Stone, C. J.

This case is before this court for the second time. The opinion written by Mr. Justice Kuhn, when the case was first here, will be found reported in 181 Mich., at page 624 (148 N. W. 354). As his opinion gives a full and clear statement of the case, it is unnecessary to repeat it here at any length.

Briefly stated, the bill of complaint was filed to restrain the defendant from overflowing certain lands owned by the plaintiff, located on the Boardman river near Traverse City. These lands, it was alleged, were overflowed by reason of the wrongful and unlawful construction of a dam upon said river below the premises of the plaintiff, by the defendant. Plaintiff’s premises consist of about 7% acres of land 40 rods north and south by 30 rods east and west, in the west part of the southeast quarter of the southwest quarter of section 3, township 26 north, range 11 west. The lands had been sold by one Cedersten to James M. Crandall, subject to certain water privileges theretofore granted in 1902 to Ralph Case, Joseph O. Crotser, and Lorraine K. Gibbs, which consisted of the right of certain water flowage and power, and to hold bach water and the natural flow of the same for a distance specified in the deed as 40 rods above a highway bridge which crosses the stream at the premises. These water rights were conveyed by Case and those interested with him to the defendant, in April, 1907. In the summer and fall of 1908, the defendant started the construction of a dam, and it was concluded that in order to make it a profitable enterprise it would be necessary to construct it with a 22-foot head. It was soon discovered, however, that if a dam with a 22-foot head were built it would be necessary to obtain flowage rights additional to those already possessed; and additional rights from certain of the riparian owners were obtained. An attempt was made to obtain such rights from Mr. Crandall, who, at that time, was the owner of the property in question. It was claimed that Mr. Crandall made no objection to the building of the dam, but would not estimate his damages until the dam.was completed, and the water raised. The defendant’s dam and power house were completed about August 15, 1909.

We think it appears from the record that, while the plaintiffs premises consist of about 7% acres, only about 4 acres of the same lie upon the east side of the river and are here affected; the portion west of the river being high land.

When the case was first heard in the court below, an injunction was denied; but the right was given to plaintiff to offer further proofs of the damage sustained by him by reason of the construction of defendant’s dam and the flooding of the premises; and the right was given to either of the parties to impanel a jury to hear proofs and assess the damage. That decree, upon appeal, was affirmed by this court, but without prejudice to plaintiff to elect, if he so desired, to resort to a court of law rather than to have a jury determine the question of damages in the case. That opinion was handed down July 24, 1914. The case went back to the circuit court, and about one year thereafter, to wit, on July 14, 1915, the case came on to be heard before the trial court, to determine the question of damages which should be paid to the plaintiff by reason of the premises.

The plaintiff did not obtain a deed of these premises until December 7, 1910, that being the date of the acknowledgment of the deed from Sprague Pratt to him. His deed was recorded December 21, 1910. As early, however, as October 15, 1909, Crandall gave an option to Charles T. Cedersten granting him the right to purchase the property at any time within 60 days for the sum of $5,000. This option was obtained through Mr. Davis, and on October 16, 1909, the option was assigned to Sprague Pratt, a clerk in Mr. Davis’ office. According to the testimony of thé plaintiff, this option was obtained for him. Before even the date of the option the plaintiff examined the premises and talked with Mr. Crandall about the condition of the water. He testified that he was informed by Mr. Crandall that he could not run the mill any more, and that he would have to get out, and that Crandall informed him that the water had “put the mill out of business.” He further testified that he went over the premises and saw just what the conditions were, and made up his mind that Crandall was right in what he told him about the flooding of the property and the impossibility of funning it; that he saw that the water was there over the monuments which had been placed by Crandall, defining the original right of flowage. He further testified that Crandall told him that he had asked to have the water lowered, and it had not been done; that a suit would have to be commenced against defendant, and the water would have to be taken down before the mill could run; that he (Crandall) was fearful of his ability to force the matter through the courts, because he had the impression that his chances of losing were very great in court, and that he would not take it into court himself; that Crandall told him that he (Crandall) had presented the matter to the persons interested in the company and had wanted them to lower the water, and explained to them that he could not run unless it was lowered.

It appears, by stipulation in the original record, that on December 13, 1909, Pratt and Davis gave their demand note for $5,000, the proceeds of which were deposited in their account and drawn upon on the same date by check for $5,000 to James M. Crandall; that said note remained in the Traverse City State Bank until February 4, 1911, at which time it was paid by a demand note of the plaintiff for $4,000 dated February 4, 1911, and that an additional $1,000 note was given; and that said two notes of the plaintiff had never been renewed and were held by said Traverse City State Bank.

One cannot read the record in this case without becoming satisfied that the plaintiff never purchased the premises intending to operate the mills as a business; that he was employed by the Hannah & Lay Mercantile Company, and had been in such employ for more than 26 years, having charge of the books of account and the work generally of the office of the said company, and he also acted as its credit man; that he had handled some timber and forest products for himself in connection with the business of the company, but that he had never operated a mill himself, or engaged in the business as an operating proposition. We are satisfied that the whole arrangement which placed the title of this property in the plaintiff was manipulated by the officers and those interested in the Boardman River Electric Light & Power Company, a rival corporation, engaged in selling electricity in Traverse City, in competition with the defendant. In his testimony the plaintiff said:

“At the present time, the title to the Crandall mill, and the property where it stands, is in my name. ' I got the conveyance of that property by seeing Sprague Pratt. * * * I first mentioned the matter of negotiating or arranging to get this property to Mr. Clinch, and then to Mr. Garland.”

Mr. Clinch was interested in the Boardman River Electric Light & Power Company, and Mr. Garland was cashier of the bank.

While the plaintiff may be considered as merely a “figurehead,” or nominal owner of this property, yet the fact appears that he holds, and has held, the legal title to the property since December, 1910. Under these circumstances, we think he is entitled to such remedy as the law would give him and no more. Edwards v. Mining Co., 38 Mich. 46 (31 Am. Rep. 301). But as the case is here on an appeal from a decree awarding damages to the plaintiff, the evidence must be examined with that end in view. Counsel for the respective parties were so far apart in their claims of what the evidence shows upon the subject of damages, that it became necessary for us to read the entire testimony in both records to enable us intelligently to pass upon that question.

We are satisfied that the premises were not worth the sum of $5,000 when purchased by the plaintiff; that he bought the same with his eyes open; knew the conditions; and, because he saw fit to purchase these premises and a lawsuit and promised to pay therefor the sum of $5,000, it does not necessarily follow that the sum which he paid must be taken as the value of the premises in the condition in which they were when he purchased.

Upon the same date that he recorded his deed, plaintiff caused to be served upon the defendant a lengthy written notice requiring it to absolutely desist and refrain from withholding the natural flow of the Boardman river, or to hold back the waters and the natural flow thereof in and to said stream at, and beyond the point located on said stream by the original conveyance from Cedersten by his deed to Case and others in 1902; and defendant was notified and required by the notice to conform strictly to its flowage rights. This notice was served December 21, 1910. It appears that defendant paid no attention to this notice. Plaintiff had a right to serve this notice and to ask defendant to desist from the further flooding of his premises. It ought to be presumed that any action found to be an invasion of another's rights will be discontinued. This invasion was not discontinued, and the bill in this case was filed February 14, 1911. The testimony to determine the damages, as we have said, was taken before the trial court in the month of July, 1915, nearly five years after this notice had been served upon the defendant.

What damages should this plaintiff recover for this claimed continued invasion Of his rights after he became the owner of the property? There is a great conflict in the evidence as to the extent of the flowage and the amount of damages sustained by the plaintiff. We are satisfied that the premises have been damaged in a substantial manner, and that defendant has, without any right, raised the river along the premises of the plaintiff. L. K. Gibbs, one of the promoters of the defendant company, and a man as familiar with the Crandall property as any other witness who appeared in the case, testified as follows:

“We raised it just exactly to where it was showed to him (Crandall) on the start it would come to. We did know, after we got started to build the dam, that it would flood his property some, and it did; but at first we didn't know it. When we came to figure on a 22-foot head, we could realize it; that is when we got the levels correct.”

The learned circuit judge, who heard the entire testimony, saw the witnesses, and visited and examined the premises, made a written finding in the case. We cannot better express his views than to here include his findings in the case, which are as follows:

“The only question involved in this case is the amount of damages to be awarded to complainant. Under the pleadings and proof complainant should be placed as nearly as possible in the same position he would have been had the water been raised only to the 40-rod limit.
“Complainant’s premises are situate in the Board-man river valley. This valley, at the point in question, is a mile upwards in width and is situated between high lands on either side. Drillings on the premises and the level of the water in the cat-hole in Cedersten’s field discolse the fact that the water level is higher in the field and in the holes drilled than in the pond. This somewhat anomalous fact, I think, may be accounted for on the theory that the passage of the water through the earth into Boardman river has been checked or interfered with by the raising of the water in the pond and by the deposit of silt and other matter in the bed of the river and on the sides of the bank below the water level. But, whatever the cause, the fact is established that the raising of the water above the 40-rod limit raised the water level in the cat-hole and on the premises.
“The raising of the water has interfered with complainant’s business and has caused him damage. Complainant operated a sawmill and shingle mill upon the premises. These two mills were operated independently, and the business, also, was independent one of the other. It is admitted that the raising of the water did not interfere with the shingle mill or shingle business. It did, however, interfere with the sawmill as conducted by complainant. The sawmill was. a cheaply constructed building consisting of frame with roof and part of the sides covered with sheet iron; the greater portion of the sides of the building was open. The machinery was placed upon timbers laid upon the ground. A description of the same appears in the testimony and need not be repeated. In operating the sawmill complainant made use of the sawdust as fuel. In our consideration of the same, we have assumed that complainant had a right to operate his plant as he deemed to his own best advantage. He evidently considered that the use of sawdust as fuel was an advantage.
“The damages should be predicated upon the use of the premises by complainant. Under the testimony the track could be raised and the sawmill operated to the same advantage for about $100. Some additional grading would have to be done, and we have estimated, under the evidence, that the sawmill could be changed so as to make use of the sawdust at an expense of not to exceed $125, and under the evidence this would not interfere with the manufacture of lumber nor add to the cost, as the raising of the water in the pond would place the mill and pond in relatively the same position as before.
“The witnesses varied materially upon the question as to whether the raising of the water was an advantage or disadvantage to the premises. Under the evidence, I find the fact to be clear that the value of the premises as a manufacturing proposition, the sawmill being raised as stated, is not affected materially by the raising of the water; the flow of the water from the ■cat-hole in Cedersten’s field being provided for. In the •spring of the year and during freshets, necessarily the water from melting snow or heavy rains must pass from Cedersten’s field and the high lands adjoining over and across these premises. To accommodate this surface water, nature has provided a small ravine. The levels submitted show that this cat-hole can be readily drained into the river by an underground drain of tile or other material. My recollection is that $35 was the outside estimate of cost by witnesses as to the expense of this drain. In my opinion, $50 would be ample to drain this cat-hole. With the drain the water in the cellar of the boarding house would likewise be lowered. This would take care of all the water, also a considerable portion of the surface water in the spring, and in my opinion the premises would be in as good or better condition than before the raising of the water.
“The backing up of the water along the ditch beside the highway would render necessary a culvert or bridge; also, there is a possibility that some of the wagon tracks through the mill yard might require some gravel or other substance in the spring of the year. Although, in my opinion, the drain would make the premises as good as before the raising of the water, the sum of $25 may be awarded to construct the culvert or bridge and for the small amount of gravel necessary to improve this track through the millyard.
“Complainant had deposited some sawlogs in the millyard. These logs are practically a total loss. Under the evidence complainant could have removed these logs to another mill at an expense of not to exceed $1 per thousand feet. Under the law it was his duty to lessen his loss by removing these logs. He will therefore be allowed $1 per thousand upon the logs, the cost of removal. The proofs show, however, that he might have manufactured these logs into lumber in the mill without any change, merely losing the supposed benefit of the sawdust as fuel.
“In my opinion, the changes in the mill as suggested and the draining of the water herein provided for, which will enable the complainant to make use of the sawdust as fuel, places complainant in the position that he can manufacture logs as cheaply now as before the raising of the water. For this reason, I do not allow any damages for loss of business. There is as much timber available as ever, and complainant can manufacture the same as cheaply as formerly. I therefore assess damages at the sum of $200, plus $1 per thousand for lost logs.”

By the decree made in pursuance of this finding, the court awarded the plaintiff the sum of $253 damages for past, present, and future maintaining of the water in the Boardman river at and above the dam of the defendant at a head of 22 feet, and awarded execution therefor, with costs to the plaintiff. The plaintiff has appealed from that decree, and insists that he should recover, not only the original purchase price, but profits lost, both past and future, by reason of the conduct of the defendant.

It appears that the sawmill stood idle nearly all of the time of the pendency of this case. It has received little, if any, care, and naturally appeared to be in a dilapidated condition at the final hearing of this case. The plaintiff never attempted to operate the mill at all. For some unexplained reason one year elapsed, after the former opinion in this cause went down, before the taking of any testimony upon the subject of damages. In the meantime, the property was deteriorating rapidly. It appears that the machinery in both the shingle and saw mills was secondhand machinery, when placed therein by Crandall; that the shingle mill was the more valuable; and that the latter was not affected by the raising of the'water, except as the mill yard was rendered wet by the setting back of the water. It also appeared that the mills were operated independently of each other.

It is the contention of the defendant, and we think such contention is well grounded, that it was the duty of the plaintiff to minimize the damages which had been occasioned by the flooding of the premises, and that, having failed to do so, he can recover only such damages as would not have been avoided by so doing, and our attention is called to the familiar rule announced by this court in the cases of Cubit v. O’Dett, 51 Mich. 347 (16 N. W. 679); Breen v. Hyde, 130 Mich. 1 (89 N. W. 732); Talley v. Courter, 93 Mich. 473 (53 N. W. 621); and other similar cases.

It is also contended, and we think justly, that the plaintiff should have proceeded and made an honest endeavor to reduce the damages by changing and improving the property as suggested by the trial court, in its findings, and the doctrine is invoked: That a party is always entitled to recover the legitimate expenses incurred by him in an honest endeavor to reduce the damages flowing from, or following, a wrongful act. See Ellis v. Hilton, 78 Mich. 150 (43 N. W. 1048, 6 L. R. A. 454, 18 Am. St. Rep. 438); 13 Cyc. p. 78, and cases there cited. And, having failed to do so, plaintiff can only recover such damages as could not have been prevented by so doing.

It appears from the testimony that defendant paid to two other parties, not more seriously affected than the plaintiff, the sum of $500 each, for flowage rights. The only doubt which we have had in this case is whether the sum awarded by the trial court was adequate to compensate the plaintiff for the damage which it may be said he had suffered since he became the owner of this property. We cannot lose sight of the fact that the defendant committed a tort in flooding the premises of the plaintiff. We think that the damages recovered should compensate for the injury sustained. The court should take a reasonable view of the question, realizing that the amount cannot be estimated with entire certainty, and should award the plaintiff adequate damages for the injury sustained under the circumstances here shown. It is immaterial whether the defendant actually contemplated the damages which resulted or not; it must be held to contemplate all the damages which legitimately follow from its wrongful act, bearing in mind the duty of the plaintiff to minimize his damages as above stated.

A careful examination of the entire record has led us to the conclusion that the amount of damages awarded by the trial court was inadequate. In our opinion, the millyard will, to a large extent, have to be filled in and raised, and much more drainage will have to be supplied than that contemplated by the trial court. We think that the amount of plaintiff’s damages should be raised to $500, in lieu of the sum awarded him by the court below.

The decree will be modified in that respect, and when so modified will stand affirmed, with costs to the plaintiff, in both courts, to be taxed.

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


text:
    SCHROETKE v. JACKSON-CHURCH CO.
    1. Master and Servant — Accident—Peril—Definition.
    The words peril or accident denote an unexpected occurrence or mishap, taking place without design.
    2. Same — Compensation—Nerve Shock.
    One. who suffers from some shock, or nervous condition, as a result of an untoward incident, or disturbing event, arising in connection with or out of his employment, may recover compensation from the master.
    3. Same — Accident—Nerve Shock.
    A watchman, who received a nervous shock from the breaking out of a fire on his employer’s premises, resulting in heart failure and death, was within the compensation act and his wife could recover as for an accident; and an order denying the award is reversed and the cause remanded to the accident board.

    Certiorari to Industrial Accident Board.
    Submitted October 16, 1916.
    (Docket No. 146.)
    Decided December 21, 1916.
    Fredericka Schroetke presented her claim against the Jackson-Church Company for compensation for the death of her husband in defendant’s employ. From an order denying compensation, petitioner brings certiorari.
    Reversed and remanded.

      R. L. Crane, for appellant.

      Keena, LigMner, Oxtoby & Hanley, for appellee.

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

   Stone, C. J.

This is certiorari by claimant to review the decision of the Industrial Accident Board. Frederick Schroetke died while in the employment of the respondent, on June 13, 1913. Respondent was under the workmen’s compensation law (2 Comp. Laws 1915, § 5423 et seq.). The claimant is the widow of deceased. The deceased was about 72 years of age. He had been for 15 years continuously in the employ of the respondent as night watchman at its foundry and shops in Saginaw, and among his other duties he was to watch for accidental fires in said foundry and shops during the night, and, in the event of one breaking out, to extinguish it, if possible, and spread an alarm for aid to extinguish and control it. On the date in question deceased had spent the day at home, about eight blocks from respondent’s plant, and about 5 o’clock in the afternoon left his home in usual health to take up his work at 6 o’clock in the evening. He walked to the foundry. A few minutes after beginning his work at said foundry and shops a fire broke out, and deceased attempted to extinguish it, and spread an alarm thereof, and as a result of his efforts to give the alarm of the fire and attendant excitement he died of heart failure, the death being hastened and caused, in whole or in part, thereby. He died in said foundry immediately after the arrival of the fire department. Compensation was denied by the committee of arbitration and this decision was affirmed by the full board.

The testimony taken before the committee of arbitration is all contained in the record, and it may be said that the evidence is undisputed. Immediately after the death of Mr. Schroetke, and while the body was still lying in the building, Dr. W. F. Morse was called to the plant and examined the body. He testified that he saw no signs of external marks upon the body, and that from the examination he was of the opinion that Mr. Schroetke died from heart trouble; that the witness had treated the deceased some three or four years before; that at that time deceased was suffering from stomach trouble, and he had an irregular heart action; that he might have died from angina pectoris; that he did not disclose to Mr. Sehroetke the condition of his heart when he treated him. The following testimony was given in answer to questions of the committee:

"Q. In case a man has a weak heart, would excitement and overexertion have a tendency to precipitate stoppage of the heart and death?
“A. I would say it would.
“Q. So if this man Sehroetke had a weak heart, heart trouble, and was engaged as watchman in the plant of the Jackson-Church Company and discovered a fire, and exerted himself somewhat in giving the alarm, what would you say as to the probable effect of the excitement and overexertion?
“A. Why any undue and overexcitement might affect the heart.
“Q. What would you say as to the exertion?
"A. Of course, that aided.
“Q. The quick movements the man probably would make in a case fire breaking out?
“A. I think the action through the excitement and the shock would cause the heart, possibly, to cease to' beat.
‘‘Respondent’s Counsel: Q. Ordinarily speaking of a man who was suffering from heart trouble, or any other condition such as to give any such effect, that almost anything might cause his death?
“A. I would say that any little shock or excitement might bring it on.
“Q. In other words, if I understand you correctly, the condition of his heart had been running such a length of time that almost anything which would be a shock or some undue excitement would cause his sudden demise?
“A. Yes.
“A Member of the Committee: Q. You don’t want to say any little thing would affect his heart?
“A. I think any shock, excitement of any kind, would bring on the same condition of things; any excitement would bring on heart failure.
“Q. That is, if the heart was in a certain condition ?
“A. Yes; if the heart was a weak heart.
“Q. Is there anything else, Doctor, that might have caused his death excepting heart failure and heart trouble?
“A. I think he died from heart trouble.”

Error is assigned on the action of the board in refusing to award compensation to claimant, when, as is claimed, the testimony and conceded facts show there was an accidental, personal injury to deceased resulting in death.

The answer of the Industrial Accident Board to the writ of certiorari, in referring to the hearing before that board, contains the following language:

“At the inception of the hearing claimant’s attorney stated:
“ ‘As I understand, the facts in this case are not in dispute. The position of the defendant is no liability, because the death resulted from heart failure while deceased was in the performance of his duty as watchman for respondent. The cause of death arose from and grew out of the discharge of the employee’s duties to defendant, and death resulted from an affected heart and overexertion and excitement in the discharge of his duty. If these are not the facts, and respondent takes different position, I desire to produce further testimony in the cause.’
“Mr. Kinncme: I so understand the facts. We certify and return that deceased was employed as watchman in respondent’s plant at Saginaw at the time of death and for 15 years just prior. Among his duties he was required to watch for fires in the plant, and in event of one breaking out to extinguish it and spread alarm for aid. He began his labors about 5:30 p. m., and continued till 6 a. m., each night. He spent the day prior to his death with his family apparently enjoying good health and went to his work eight blocks from, home at 5 p. m. He discovered a fire at 6 p. m. in defendant’s plant, and immediately spread alarm by blowing the whistle. The president of the company went from the office near by into the plant and told him not to blow the whistle longer, as he would telephone the fire department. In a few minutes deceased began sounding the whistle again, and the president went to him and said, ‘I have phoned the fire department, and don’t blow the whistle any more, but close the factory doors and keep the crowd out.’ A strike was on at the factory. Directly the fire department arrived and proceeded to place the hose to extinguish the fire. Deceased said something to one of the firemen concerning directing the stream on another part of building. The president of the company observed deceased was pale and started to fall. His knees began, to waver. In a few minutes he dropped to his knees, fell over, and died almost instantly. Dr. Morse, the physician who had previously treated the deceased, was called and examined the body, and gave testimony at the hearing as to the condition found and his opinion as to the cause of death, said testimony being correctly set forth in the petition in this case.
“The plant of the defendant is a large one covering the block, and the deceased was the only watchman. The deceased showed much zeal in giving the alarm of fire and to protect his employer’s property, and was excited. He was afflicted with heart ailment, and his death was due to heart failure caused by the diseased condition of his heart and the excitement and exertion ^ incident to the fire. He received no physical injury in the sense that he was not struck by anything, did not fall, or receive any blow, contusion or physical impact.
“(2) The proceedings at the hearing before the committee on arbitration and the evidence in said cause are correctly set forth in the petition attached to and made a part of this return, except that the following should be added: ‘The fire was a small one, and was in a shed adjoining one of the factory buildings. The total loss was about $600 principally arising out of injury to the motors belonging to the company.’
“(3) The arbitrators' found claimant was not entitled to compensation under Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5423 et seq.). Claimant duly appealed to this board, but upon its suggestion the appeal rested until a similar case then before the board should be disposed of, but, that case not coming to decision, the instant case was in proper time and manner presented for decision. This board on April 20, 1916, presented that under the facts the law as provided in said Act No. 10 of 1912 did not permit claimant to recover, and the decision of the arbitrators was affirmed.
“Conclusion of Law.
“The holding of the board as a matter of law in this case was that the excitement and exertion, unaccompanied by any immediate physical injury, did not constitute an accident for which compensation could be awarded, within the meaning of the Michigan workmen’s compensation law.”

The evidence in the case being undisputed, we think the record fairly raises the question whether the conclusion of law reached by the Industrial Accident Board was justified by the facts found. We think this case fairly presents the question whether compensation can be recovered where death or disability results from overexertion and excitement caused by an accidental fire such as broke out in this case, where the deceased was afflicted with heart ailment, and where death was due to heart failure caused by deceased’s condition of the heart and the excitement and exertion incident to the fire. It is the claim of the claimant-that the case is governed and controlled by our own. decisions, and especially by La Veck v. Parke, Davis & Co., 190 Mich. 604 (157 N. W. 72 L. R. A. 1916D, 1277).

In our opinion the instant case is a stronger case in favor of awarding compensation than the La Veck Case. In the instant case, by the undisputed evidence, the exertion and excitement occasioned by this accidental fire produced a nervous shock and increased the heart action of the deceased and caused his death. May this be said to have been an accidental death within the meaning of our act? This portion of our act was borrowed from the English act, and it early became necessary to determine what was personal injury or death by accident, and to give a definition of the word “accident” in the English courts.

In Hensey v. White (1900), 1 Q. B. Div. 481, the language of an earlier case was approved, where it was said:

“I think the idea of something fortuitous and unexpected is involved in both words ‘peril’ or ‘accident.’ ”

In Fenton v. Thorley & Co., 72 L. J. K. B. Div. (N. S.) 790, it was said:

“The expression ‘accident’ is used in the popular and ordinary sense of the word as denoting an unlooked for mishap, or an untoward event which is not expected or designed.”

In the case of Yates v. South Kirby, etc., Collieries, Ltd., in the court of appeal, England, reported in 3 B. W. C. C. at page 418, Yates, a collier, assisted to remove a fellow workman who had been knocked down and so shockingly injured by a fall of coal that he died almost immediately. This gave Yates such a nervous shock that he became neurasthenic, and, although he made some attempts to resume work, he was unable to do so. On an application for compensation the judge found that his incapacity was genuine, and that it was caused by what he had seen and done in the course of his employment. On these findings he held that the neurasthenia was due to personal injury by accident, and awarded compensation. This decision was held to be right. The trial judge in that case found as follows:

“The applicant picked him (Haggas) up in his arms, and with assistance carried him away. He was not dead at the time, but died in a quarter of an hour. The effect on the applicant was such that he sustained a nervous shock which incapacitated him from working at the coal face. * * * I find as a fact that there was a genuine incapacity to work which was due to the nervous shock which he sustained on the 9th October. It clearly was his duty to his employers to go to the assistance of the injured collier who shouted for help from the next working place, and his doing so arose both in the course of and out of his employment.”

He found the cause of injury was nervous shock,, and that that was a case within the act. The appellate court judge in disposing of the case, said:

“In my opinion on that finding of fact, it is impossible for us to say that the learned county court judge was wrong in law. * * * I think the decisions of this court, including the recent decision in the case of Eaves v. Blaenclydach Colliery Co., 2 B. W. C. C. 329, do show that when a man in the course of his employment goes to a place and sustains a nervous shock producing physiological injury, not a mere transient emotional impulse, it is an accident arising out of and in the course of his employment. It is something unexpected, no doubt, in this sense, that I do not suppose the man thought for a moment, or knew when he was doing what was plainly his duty in going to the rescue of the other party, that it would have this physiological effect on his system. * * * I think this is a case which falls within the act of Parliament on the same principle and in the same way as if the man on going to the rescue of the other collier was injured by this fall or had stumbled or fallen on his way there. That, undoubtedly, would have been a case within the act, and I can see no real difference in principle (when once you get rid of malingering) between that case and a case where a physiological injury — physiological damage — is produced by reason of what happened to this man when he went in the course of his duty to the neighboring stall, and saw what had happened to this workman. In my opinion, the learned county court judge was right.”

In Clover, Clayton & Co. v. Hughes, 3 B. W. C. C. 275, a workman suffering from an advanced aneurism of the aorta was doing his work in the ordinary way by tightening a nut with a spanner. This ordinary strain caused a rupture of the aneurism, resulting in death. The county court judge, on conflicting evidence, found that the workman’s death resulted from a personal injury by accident within the meaning of the English act. In the House of Lords it was held that there was evidence on which the county court judge was justified in so deciding. In the discussion of that case Lord Macnaghten said:

“In the argument in Fenton v. Thorley, supra, many decided cases were cited in which the word ‘accident’ was considered. There is one which was cited in the argument and not noticed in the judgment, which is, I think, a very good example of the far-reaching application of the word. I may perhaps be permitted to refer to it. It is not the less instructive because it occurred before the workmen’s compensation act of 1897. The case was this: The railway company had established a system of insurance for the benefit of their servants who contributed to it. One of their servants — a signalman in his signal box — saw a train coming, and noticed that there was something wrong with one of the carriages. He was much alarmed, and waved his flag frantically. The engine driver saw the signal, the train was stopped, and an imminent disaster was averted. But the signalman was so horrified that he lost his nerve and was incapacitated for work. Was that an accident? The condition of the insurance was ‘against all accidents, however caused, occurring to the insured in the fair and ordinary discharge of his duty.’ The court of appeal, consisting of Lord Esher and Kay and A. L. Smith, LL. J., held unanimously that the plaintiff had been incapacitated by accident within the meaning of the policy. ‘The sole question,’ said A. L. Smith, L. J., ‘is whether the facts which have been proved constitute an injury to the assured by an accident within the meaning of the policy. * * * This is not a case in which, as it has been suggested, the plaintiff has only suffered mental pain or grief. If that had been so, it would not have been within the policy; but this is a case in which he has been subjected to such a shock to his nerves that he has become physically prostrated and put out of employment for months. The company has undertaken to pay to the assured the weekly allowance of one pound in case of his being incapacitated for employment by reason of an accident, however caused. That I read to mean any unforeseen circumstance, however caused, occurring to him in the discharge of his duty in the company’s service. * * * It may be that this sort of accident was not thought of when the policy was framed, for it is of rare occurrence, but that does not prevent its coming within the terms of the policy.’ Pugh v. Railway Co. (1896), 2 Q. B. Div. 248. Now, in the present case, I have no doubt that there was an accident in the proper sense of the word. The man ruptured an aneurism in his aorta. An aneurism, as I understand, is an unnatural or abnormal dilation of an artery;' but still it is a part of the artery, and so a part of the man’s body. The man 'broke part of his body,’ to borrow Lord Robertson’s expression in Brintons v. Turvey, 7 W. C. C. 1.”

In the instant case the whole circumstance, including the fire, the overexertion and the excitement of the deceased, may be said to have been an accident. It was certainly a fortuitous circumstance. The fact that the man’s condition predisposed him to such an accident or stroke must be, under the authorities, held to be immaterial. While the exertion and excitement which accelerated the heart action were not the sole, proximate cause of the death, they were certainly concurring causes. Rayner v. Furniture Co., 180 Mich. 168 (146 N. W. 665, L. R. A. 1916A, 22, Am. & Eng. Ann. Cas. 1916A, 386.

Counsel for claimant have cited two Massachusetts cases, McNicol’s Case, 215 Mass. 497 (102 N. E. 697, L. R. A. 1916A, 306), and Brightman’s Case, 220 Mass. 17 (107 N. E. 527, L. R. A. 1916A, 321). In the last-cited case it was held that acceleration of previously existing heart disease to the mortal end sooner than otherwise it would have come is an injury within the meaning of the workmen’s compensation act. We do not cite these cases as authorities under our compensation act.

In Adams v. Color Works, 182 Mich. 157, at pages 168, 169, and 170 (148 N. W. 485, L. R. A. 1916A, 283, Am. & Eng. Ann. Cas. 1916D, 689), we pointed out the distinction between the Massachusetts act and the Michigan act. This distinction is recognized by the Massachusetts court in Re Madden, 222 Mass. 487 (111 N. E. 379, L. R. A. 1916D, 1000), where the court says:

“The standard established in this respect by our workmen’s compensation act as the ground for compensation is simply the receiving of ‘personal injury arising out of and in the course of’ the employment. This standard is materially different from that of the English act and of the acts of some of the States of this nation. That standard is ‘personal injury by accident,’ both in the act of 1897 and 1906.”

A perusal of this case will show the distinction we have suggested. We think, however, that under the English cases, and under La Veck v. Parke, Davis & Co., supra, it must be held that the death of claimant’s decedent, under the circumstances disclosed by the undisputed evidence, entitled claimant to compensation, and that the conclusion of law reached by the Industrial Accident Board was erroneous.

In Bryant v. Fissell, 84 N. J. Law, 72 (86 Atl. 458), it was held that the question whether or not an injury is an “accident” within the purview of the New Jersey act is a mixed question of law and fact, and that when applied to certain facts it is a question of law.

On the part of the respondent it is contended that in the instant case claimant’s intestate did not suffer any injury, and therefore that no injury caused his death, that it would be more correct to say that death occurred during the hours of service, and that under the authorities in this State there is no liability shown, and Nelson v. Crawford, 122 Mich. 466 (81 N. W. 335, 80 Am. St. Rep. 577), is cited. We do not think that this case is applicable to a claim under this act.

We have examined the cases cited by respondent’s counsel in which no liability was held. They are the following:

O’Hara v. Hayes, 3 B. W. C. C. 586. In that case a workman who had been suffering for some years from progressive heart disease died while hurrying to the railway station with a parcel weighing 17 pounds, and it was held that the death was attributable to the disease and not to an accident. The appellate court in that case said:

“This man died while he was doing his normal work. There was nothing sudden. His death was not unexpected.”

The next case cited is that of Kerr v. Ritchies, 6 B. W. C. C. 419. There a workman, apparently in good health, died suddenly from heart failure while at work lifting baskets filled with corn. The sheriff-substitute found:

. “That nothing unusual or unexpected occurred in the course of his work that afternoon, until the sudden attack of illness, and that the strain arising from the exertion made by the deceased in repeatedly lifting the baskets was a contributing cause of the heart failure.”

He found that death was due to accident. The appellate court reversed this decision, and held that nowhere was there found any particular event or occurrence to which death could be attributed, and it was held that there was no liability.

The next case cited is that of Black v. Shipping Co., 6 B. W. C. C. 720. In that case an officer was superintending loading a ship for several days. The work was practically continuous day and night and very hard. Six days after the ship left port the officer died of heart failure. There was medical evidence that the death was due to heart failure caused by the continuous strain of work. The county court judge found that there was no evidence of accident and the appellate court affirmed that action, holding that there was no evidence of accident within the meaning of the act.

We think that these three cases are all readily distinguished from the instant case. Our conclusion is that the finding of the Industrial Accident Board in its conclusion of law was erroneous, and must be reversed.

Under the practice, as stated in Andrejwski v. Coal Co., 182 Mich. 298 (148 N. W. 684, Am. & Eng. Ann. Cas. 1916D, 724), and Finn v. Railway, 190 Mich. 112 (155 N. W. 721, L. R. A. 1916C, 1142), and Carpenter v. Forging Co., 191 Mich. 45 (157 N. W. 374), the order of the State Industrial Accident Board is, reversed, and the case remanded for further proceedings in accordance with this opinion.

'Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    BONER v. EASTERN MICHIGAN POWER CO.
    1. Master and Servant — Existence of Relation — Dinner Hour —Defective Instrumentality — Ladder.
    Where plaintiff was doing construction work about the plant of the Au Sable Electric Company, and was employed by defendant power company, he was not engaged in duties incident to his employment at the noon dinner hour, when he had no property or particular service of the master in charge, and had taken his dinner pail and started to climb a ladder to eat his lunch upon the boilers. The breaking of the ladder was not such an accident resulting from defendant’s negligence as would render it liable to a workman after he had ceased his employment to seek a place for the said purpose.

    2. Same — Cessation of Employment — Electricity.
    Though the injured party remained upon the premises where he was employed, the relation of master and servant did not continue, as he was at liberty to go wherever or do whatever he pleased.
    3. Same — Directing Verdict — License—Duty to Licensee.
    The injured party was a mere licensee as to the company that had allowed him in its plant, and, as to his employer, there was no ground upon which he could recover against it, unless the possession of the construction company was such that its control, and that of the power company which owned the plant, could be said to be joint.

      4. Same — Submitting Case to Jury.
    Plaintiff could not rightly recover against either defendants above mentioned on the theory that the relationship of master and servant existed at the time, but the court should have submitted the issue to the jury whether or not a duty was owing to plaintiff as a licensee, by either of the defendants.

      5. Same — Evidence.
    Evidence by another servant that he notified the assistant superintendent of the power company that the rung of the ladder was loose and would turn, charged the other defendants with no duty. He was in no way connected with them. There was no evidence of notice which would charge them.
    Error to Jackson; Parkinson, J.
    Submitted October 10, 1916.
    (Docket No. 91.)
    Decided December 21, 1916.
    Rehearing denied September 27, 1917.
    Case by Edwin Boner against the Eastern Michigan Power Company, the Au Sable Electric Company, and the Grand Rapids-Muskegon Power Company for personal injuries. Judgment for plaintiff against the two first-named defendants who bring error.
    Reversed.

      Bernard J. Onen (Wilson & Cobb, of counsel), for appellants.

      Price & Whiting, for appellee.

      The question as to whether relationship of master and servant still exists where servant goes upon master’s premises before, after or between hours of actual labor, is discussed in notes in 12 L. R. A. (N. S.) 853; 23 L. R. A. (N. S.) 954; 49 L. R. A. (N. S.) 162.

   Stone, C. J.

This is an action on the case, brought by the plaintiff against the Grand Rapids-Muskegon Power Company, the Au Sable Electric Company, and the Eastern Michigan Power Company, to recover damages for injuries sustained by him in a power plant in the city of Grand Rapids, on February 7,1912. The plant in which the plaintiff was injured was owned by the Grand Rapids-Muskegon Power Company. It is claimed that the plant was in possession of and operated by the Au Sable Electric Company. The Eastern Michigan Power Company was doing certain construction work in and about said plant. The plaintiff was an employee of the Eastern Michigan Power Company, but not of the other defendants.

The trial court directed a verdict in favor of the Grand .Rapids-Muskegon Power Company, and submitted the case to the jury as to the other defendants. The jury rendered a verdict in favor of the plaintiff for $2,258 against both of the remaining defendants, upon which a judgment was thereafter entered.

The plant in which the plaintiff was injured was in operation at the time. There were eight boilers in the boiler room, four of which had been there for some time, and four had been put in during the summer prior to plaintiff’s injury. They were large boilers. Plaintiff testified that a person who desired to go on top of them would be obliged to go up a ladder somewhere from 20 to 25 feet. The room in which the boilers were located consisted of only one story. One of the means provided for reaching the top of the boilers was an iron ladder fastened to, and parallel with, the west wall of the building, and about 4 or 5. inches therefrom, and extending to a height of about 25 feet. This ladder was. constructed of iron, the sides being flat pieces of iron and the rungs consisting of hollow pieces of pipe through which long bolts were run and fastened to the sides of the ladder on either side by nuts, which, when tightened, held the side pieces against the rungs so that they would not turn. The ladder was fastened to the wall with bolts or lag screws, and was located about 4 or 5 feet from the boiler nearest the west wall. The ladder in question had been up for six weeks or two months before the plaintiff was hurt.

The plaintiff alleged in his declaration, and was permitted to show by himself and other witnesses, that the employees were accustomed, and had been for some time, to go up on top of the boilers for the purpose of eating their dinners. On the day that the plaintiff was injured, and for two or three days prior thereto, he had been working on the outside of the building, and not upon the top of the boilers. It was cold weather at the time and he. was dressed in working clothes and wore leather faced mittens, sometimes by him called “mitts,” upon his hands. At the time the plaintiff was hurt he was going up the ladder referred to for the purpose of eating his dinner on top of the boilers. He was hurt about half past 11 o’clock a. m. He testified that his hours for work commenced at 6:30 o’clock in the morning and continued until 11:30 o’clock when he ate his dinner, and after dinner he went to work at 12 o’clock and continued until 5 o’clock p. m. The wages which he received for his work were paid at the rate of 25 cents an hour. The record shows that no witness was present at the time plaintiff was injured. He testified that he started up this ladder with mittens on his hands and his dinner pail in his left hand. He couldn’t state whether he had the bail of the pail in his left hand or on his arm, and couldn’t recollect how he did hold it. He claimed to have had hold of the rung with his right hand and his dinner pail in the other, and that, when he took hold of the rung to pull himself up, the rung turned and broke his hold, and he fell to the floor 15 or 16 feet, and was severely injured. He testified:

“Well, I was going up that day and I got about 15 or 16 feet up the ladder and as I grasped the round with my right hand and went to raise myself to the other step, the round rolled and I fell over backwards. I couldn’t catch myself with the other hand. I fell on the floor and injured myself, broke my arm and my wrist, and put it out of place, and injured my shoulder.”

On cross-examination the plaintiff testified:

“No, I couldn’t get as good a grasp on the round with the hand with the mitten on as I could if I had been barehanded.
“The Court: What were those mittens made of, cloth mittens?
“A. I think it was a cloth mitten with leather face.
“Q. If your hand had been warm, Mr. Boner, and you had used your bare hand in going up that ladder you could have put your hand around the round couldn’t you?
“A. I could have put my hand around the round.
“Q. If you would put your hand around the round, even if it turned it couldn’t break your hold, could it?
“A. No, not if I had grasped clear round the round, but any one climbing a ladder doesn’t stop to place the hand around each round in just such a position it can’t turn.
“The Court: Had any of those rounds ever turned or indicated they were loose when you had previously used them?
“A. I don’t remember of that round being loose before.
“Q. Any of the rounds up there?
“A. None of the rounds.
“Q. The last time before this was the day before you had used it?
“A. Yes, sir.
“Defendants’ Counsel: Mr. Boner, if I understand it, you had been up and down that ladder repeatedly, and the last time, the day before this accident, with perfect safety?
“A. I had been up there, and always went up and down safe all right.
“Q. You had repeatedly used that ladder, and the last time the day before the accident, and had never discovered a loose round in the ladder?
“A. I had never noticed the round being loose.
“The Court: Had you ever gone up there with those same mittens on?
“A. I had not.’’

He testified that he had gone up the ladder each day for two weeks prior to the time that he was injured, and he didn’t remember of any rung in the ladder being loose when he had previously used it. He testified, however, that he might have seen that it was loose and still not thought of it, because the ladder could have been climbed all right if the rung were loose.

All of the other witnesses sworn upon the trial of the case who had used this ladder, except the witness William Boner, never discovered any loose rung in the ladder until after the plaintiff's accident. The witness William Boner, brother of plaintiff, testified that the rung in the ladder was loose when it was installed, and that he had informed one Mr. Hottinger, the assistant superintendent of the defendant Eastern Michigan Power Company, of that fact. This testimony was denied by Mr. Hottinger, but the question became one of fact and was submitted to the jury.

The room in which the boilers were located was a large one, and the boilers were set through the center of the building, leaving a space in front and in back of the bqilers about 15 feet in width and 40 feet in length. In this space there were benches used by the pipe fitters, and the employees were accustomed to gather around these benches at noon for the purpose of eating their dinners.

The plaintiff claimed that the defendants were negligent:

“(a.) In failing to furnish plaintiff a safe place in which to work, or to keep the premises in a reasonably safe condition, or to use reasonable care and diligence in the construction of said ladder in order that the same might be reasonably safe for plaintiff and other employees to make use of in passing up and down, to and from the top of said boilers.
“(6) In failing to use due diligence in inspecting and looking after said ladder to see that the same was kept in a reasonably safe condition of repair.
“(c) In placing said ladder in position, leaving one of the rounds loose and the bolt that ran through same not securely drawn up and tightened, so as to prevent the said round from rolling and turning over.
“(d) In allowing the said round in said ladder to be and remain in that condition for a considerable length of time, to wit, for a number of weeks prior to the happening of the accident to the plaintiff.”

The case has been brought here upon writ of error by the defendants, the Eastern Michigan Power Company and Au Sable Electric Company, and there are many assignments of error. We shall not discuss many of the assignments of error, for the reason that, in our opinion, there are two or three controlling questions in the case which are sufficiently raised by the assignments of error. The following is the allegation in plaintiff’s declaration:

“And plaintiff further avers that on the said 7th day of February, 1912, he was climbing up said ladder, with due care and diligence, to go on top of said boiler for the purpose of eating his dinner.”

And in support of this allegation he testified as follows:

“Q. On this day in question just what were you doing when you got hurt?
“A. I was going up the ladder.
“Q. For what purpose?
“A. To eat my dinner.
“Q. What time of day was it?
“A. Half past 11.”

It is the claim of the plaintiff that at the time of the injury he was in the employ of the defendant Eastern Michigan Power Company. There is no claim on his part that he sustained any contractual relations with the defendant Au Sable Electric Company. The testimony of the plaintiff is uncontradicted that he had fixed hours op work, and that his wages were paid by the hour.

We have examined the record with care, and are satisfied that it appears unquestioned that at the time the plaintiff was injured he was performing none of the duties of his employment, but was consulting his own convenience in seeking a place to eat his dinner. In our opinion, under the authorities, the relation of master and servant did not exist at the time of this injury between the plaintiff and the Eastern Michigan Power Company; he was acting on this occasion of his own volition, and, in our opinion, the rule that where a servant sustains injuries while attempting, without authority, to do something not within the scope of his employment, he cannot recover under the circumstances as disclosed in this case. It cannot be said that he was in said defendant’s employment or in the proper discharge of his duty, and he voluntarily sought this place of his own motion. We think this view is supported by the following authorities: Schwager v. Glass Co., 179 Mich. 360-367 (146 N. W. 171); Moronen v. McDonnell, 177 Mich. 691-697 (143 N. W. 8); Spooner v. Detroit Saturday Night Co., 187 Mich. 125 (153 N. W. 657, L. R. A. 1916A, 17); Hutchinson v. Iron Co., 141 Mich. 346 (104 N. W. 698).

In 4 Thompson on Negligence, § 3748, it is said:

“As a general statement of doctrine, it may be said that to render a master liable as such for an injury resulting from a breach of his duties to his servant, it must appear that the injured servant was at the time of the injury acting within the scope of his employment. A larger statement of the same principle is to say that in order to hold a master liable for personal injuries to a servant, it must appear that the servant was at the time of the injury engaged in the service of the master, or going to, or from such service, and not acting for some purpose of his own, or going into some place where it was not proper or necessary that he should have been.”

See, also, 26 Cyc. p. 1241; Ellsworth v. Metheney, 104 Fed. 119 (44 C. C. A. 484, 51 L. R. A. 389), and cases there cited; Mitchell-Tranter Co. v. Ehmett (Ky.), 65 S. W. 835 (55 L. R. A. 710); Dickinson v. Railway Co., 177 Mass. 365 (59 N. E. 60, 52 L. R. A. 326, 83 Am. St. Rep. 289); Wilson v. Railway Co., 130 Ky. 182 (113 S. W. 101).

It has been sometimes said that if the injured party remains upon the premises the relation of master and servant continues, but that alone is not sufficient. Where the injured party, as here, was at liberty to go wherever and do whatever he pleased, and was not in charge of any of his employer’s property, nor under his orders, the employee is for that time dismissed from the service. Baldwin Personal Injuries (2d Ed.), § 374.

The cases of Broderick v. Depot Co., 56 Mich. 261 (22 N. W. 802, 56 Am. Rep. 382), and Adams v. Iron Cliffs Co., 78 Mich. 271 (44 N. W. 270, 18 Am. St. Rep. 441), cited by plaintiff, are readily distinguished from the instant case, for in the Broderick Case at the time the plaintiff was injured he was actually performing a service for the defendant. In the Adams Case the employee’s duties were numerous, and he had other men under his charge, and if at any time while he was on defendant’s, premises any need of his services had arisen, it was his duty, under his employment, to have at once stopped and given such services.

In the instant case the plaintiff had fixed hours, fixed wages paid by the hour, and, so far as the record shows, was not required to perform any service until he had eaten his dinner and had returned to his work. As we have already said, there is no claim on the part of the plaintiff that he was. in the employ of the defendant Au Sable Electric Company.

The evidence is quite indefinite as to the exact time when the plant had been turned over by the defendant Eastern Michigan Power Company to the defendant Au Sable Electric Company, or whether or not it had been fully turned over at any time. It may possibly be said, although the evidence upon the subject is not clear, that there was a joint possession of the plant by both defendants. It is therefore clear to us that the plaintiff cannot recover in this case upon the theory that at the time of his injury the relation of master and servant existed as between him and either of the defendants. In our opinion the plaintiff was a mere licensee at the time of his injury.

The court, among other things, charged the jury as follows:

■‘Tf you do not believe the evidence as to the round being loose, at the time the ladder was put up, then there is no evidence in the case as to how or when it became loose, and therefore there is no evidence whereby you can find negligence on the part of either defendant, and your verdict in that event would be for the defendants.”

The jury, having rendered a verdict in favor of the plaintiff, against both defendants, must have based the same upon the testimony of the witness William Boner. The plaintiff being a mere licensee, there can be no liability on the part of the defendant Eastern Michigan Power. Company unless it still had some control over said plant and premises. As we have shown, there was some testimony on the part of William Boner that the rung was loose at the time the ladder was put up, and that he notified Mr. Hottinger of that fact. Mr. Hottinger was the assistant superintendent of the Eastern Michigan Power Company, and had been in the employ of that defendant for a period of three years. He sustained no relation with the Au Sable Electric Company. Any notice to him would have been no notice to that company. There is no evidence in the record that notice of any defect in the ladder had been brought home to the defendant Au Sable Electric Company. The duty which these defendants owed to the licensee was fully discussed by us in the case of Morrison v. Carpenter, 179 Mich. 207, at page 216 (146 N. W. 106, Am. & Eng. Ann. Cas. 1915D, 319 et seq.). We there referred to the case of Habina v. Electric Co., 150 Mich. 41 (113 N. W. 586, 13 L. R. A. (N. S.) 1126), and that of Felton v. Aubrey, 74 Fed. 350 (20 C. C. A. 436), and a large number of other cases. See, also, Murch Bros. Construction Co. v. Johnson, 203 Fed. 1 (121 C. C. A. 353); Ellsworth v. Metheney, supra.

In our opinion this case should have been submitted to the jury upon the theory that if there was any liability on the part of either of these defendants to the plaintiff, it was because of the duty owed to him as a licensee. Without evidence of notice or knowledge on the- part of the defendant Au Sable Electric Company of a defect in this ladder, which had been purchased of reputable manufacturers and placed in position by the other defendant, there could be no recovery as to the defendant Au Sable Electric Company. And unless the defendant Eastern Michigan Power Company was still so far in control of the plant as that its possession might be considered a joint one with that of the defendant Au Sable Electric Company, there could, in our opinion, be no recovery against that defendant. Neither defendant can be said to have “laid a trap” for the plaintiff unless said defendant was in charge of the plant, and knew of the condition of the ladder.

The case having been submitted to the jury upon an entirely different theory, we think the verdict cannot be sustained as against either defendant. The judgment of the court below is therefore reversed and a new trial granted, with costs to the appellants.

Kuhn, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Bird and Person, JJ., did not sit.