author: Bird, J.

text:
    KAURI v. MESSNER.
    Master and Servant — Workmen’s Compensation Law — Scope oe Employment.
    The written, acceptance by an employer who is engaged in logging and lumbering business, and also owns a farm, of the terms of the workmen’s compensation act, describing the occupation as logging, and the employer’s indemnity insurance policy describing the nature of business as “logging and lumbering operations with transportation of logs to mills” do not cover the work of raising and repairing a foundation wall under the dwelling on the farm.

    Certiorari to Industrial Accident Board.
    Submitted June 8, 1917.
    (Docket No. 22.)
    Decided September 27, 1917.
    Rehearing denied June 20, 1918.
    Martha Kauri presented her claim for compensation against John Messner for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Fidelity & Deposit Company, insurer, bring certiorari.
    Reversed, and order vacated.

      Guy W. Moore and Hal P. Wilson, for appellants.

      Galbraith & McCormack (Warner & Baudabaughr of counsel), for appellee.

       On construction and effect of workmen’s compensation acts generally, see comprehensive notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.

   Bird, J.

Defendant, John Messner, is engaged in the business of lumbering in the counties of Houghton and Ontonagon. He is also the owner of a farm. Being desirous of raising and repairing a foundation wall under the dwelling on the farm, he engaged several men to do the work. None of these men were engaged in his lumbering’ operations. Among them was Aboudi Kauri, a common laborer. While engaged in this work he received injuries from which he later died. His widow presented a claim to the industrial accident board. The claim took the usual course, and a death award was made by the arbitration committee and later affirmed by the board. The question raised is lack of jurisdiction in the board to allow any claim. It appears that Messner filed his written acceptance of the terms of Act No. 10 of the Extra Session 1912 (2 Comp. Laws 1915, § 5428 et seq.), on November 12,1913. This acceptance gave the number of employees as 35, the location of place of employment, Houghton and Ontonagon counties, and the nature of the employment as “logging.” The policy described the nature of the business as:

“logging and lumbering operations with transportation of logs to mill (no railroad). Clerical force— office duties only. Drivers and helpers — wherever engaged. Chauffeurs and helpers — wherever engaged.”

It is contended by defendant that the acceptance of the act and Messner’s contract of indemnity cover only the men engaged in his lumbering business, and not the men to whom he gives casual employment in some other business. In other words that he had the right to accept the compensation act as a lumberman without doing so as a farmer. This point appears to be well taken. It has already been decided by this court that a man may be engaged in more than one enterprise and may accept the terms of the compensation act as to one and not as to another. Bayer v. Bayer, 191 Mich. 423 (158 N. W. 109, Mich. Comp. Cases, 435). Our attention is challenged by counsel to the following language contained in the policy:

“(a) This policy also covers all work done by the assured in the State of Michigan, not specifically described under statement numbered 6 of the schedule of statements, for which the'assured agrees to pay a premium based on the company’s rates at the time such work was done.”

Counsel argue from this that:

“Nothing can be plainer than that they have guaranteed John Messner indemnity against all claims that might arise by reason of accident or injury to any of his employees while discharging any work in this State,” etc.

We do not think counsels’ conclusions are justified by the text. The portion above quoted by them has reference to the location in which the work is done. The Statement No. 6, to which it refers, shows in unmistakable language what business was intended to be covered by this statement, namely, “logging and lumbering operations with transportation of logs to mill.” We think a fair construction of the language of the policy, read in connection with the acceptance of the compensation act by Messner, excludes the idea that it covered the work in which the deceased was engaged at the time of his death.

There is further claim that the case is ruled by Shafer v. Parke, Davis & Co., 192 Mich. 577 (159 N. W. 304, Mich. Comp. Cases, 7), inasmuch as it was shown that certain provisions were raised on the farm which presumably went to feed the men and horses employed in logging. There was no such connection shown between his lumbering operations and farming as to bring the case within the one referred to.

The industrial accident board being without jurisdiction in the premises, its order will be set aside and vacated.

Kuhn, C. J., and Stone, Moore, Steere, Brooke, and Fellows, JJ., concurred. Ostrander, J., did not sit.


source: Caselaw Access Project

license: Public Domain

text:
    COOK v. CHARLES HOERTZ & SON.
    Master and Servant — Workmen’s Compensation Law — Subsequent Injuries — Payments.
    A continuance of weekly compensation to an employee under an agreement approved by the industrial accident board is justifiable, although he twice sustains injuries to one of his legs by falling, where the injuries are simply mishaps due to the fact that he is obliged to use crutches, and he is still suffering otherwise from the original injury.

    Certiorari to Industrial Accident Board.
    Submitted June 21, 1917.
    (Docket No. 108.)
    Decided September 27, 1917.
    Floyd Cook presented his claim for compensation against Charles Hoertz & Son for injuries received in defendants’ employ: On petition of defendants for an order discontinuing weekly payments. From an order denying the petition, defendants bring certiorari.
    Affirmed.

      Lombard, Hext & Washburn, for appellants.

       On constitutionality and effect of workmen’s compensation acts, generally, see comprehensive notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.

   Bird, J.

While plaintiff was in the employ of defendant contractors he was injured. His injuries were received October 19, 1914, and are described by his physician as:

“A compound, comminuted fracture of the femur of the right leg, about the junction of the upper and middle third; a fracture of the tibia of the right leg below the knee; a fracture of the tibia of the left leg below the knee; both ankles badly bruised; patient in extreme shock.”

.The fractures were reduced, the bones placed in position, and splints put on. The parties agreed upon the amount of compensation which plaintiff was entitled to, which agreement was subsequently approved by the board, and the amounts were paid directly to him by the defendants. Matters progressed favorably with plaintiff until about March 1, 1915, when he slipped and fell on the floor of a meat market at Mt. Pleasant .and loosened the bone at the point of fracture- in the right femur. This was subsequently adjusted and the splints put on again. Later, in July, 1915, just after alighting from a wagon, and while his crutches were being handed to him, he lost his balance, fell over, and loosened the callous from the right femur, which required that the splints be put on again for about a week. On June 24, 1916, defendants filed their petition with the board, praying that they be relieved from making any further payments to plaintiff on account of his injuries. The hearing resulted in a denial of the prayer of the petition.

It is defendants’ contention that had it not been for plaintiff’s subsequent injuries- he would be fully recovered and able to work, and as the subsequent injuries were the result of his own carelessness and negligence, no further payments ought to he demanded of them. Furthermore, that the testimony does not justify a continuance of them. The board made the following findings of fact:

“(3) After a careful consideration of all of the evidence in this case, the board finds as a fact that the original injuries of October 19,1914, described and set forth in the agreement for compensation between the parties heretofore referred to was the proximate and direct cause of the second injury to his right leg, which occurred during the month of March following, and likewise the proximate and direct cause of the injury to his said right leg occurring in July following.
“ (4) We further find as a fact that at the date of the hearing before this board the applicant was still suffering from and under disability because of and as a direct result of said original injuries set forth and described in said agreement in regard to compensation, and that the said applicant has not been guilty of wilful and intentional misconduct.
“(5) That the applicant is still suffering from the injury to his back and is under disability at the time of this hearing because thereof. That said injury to applicant’s back was not effected by the second fall which he sustained in the month of March, and was not effected by the third fall which he sustained during the month of July, following his original injuries.”

It is quite, evident that had it not been for the initial injury plaintiff received he would not be obliged to go about on crutches. It does not appear that he was violating the order of his physician in doing so, nor does it appear that there was anything negligent, intentional, or wilful about the incurring of the subsequent injuries, but it does appear that they were simply mishaps, due to the fact that he was obliged to depend upon his crutches. But even if we concede that counsels’ position be the proper one as to the subsequent injuries, the testimony shows and the board finds that plaintiff is still suffering otherwise from the original injury. This proof alone would justify the determination of the board in continuing weekly payments.

The. conclusions of the board must be affirmed.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, Brooke, and Fellows, JJ., concurred.


author: Bird, J. Brooke, J.

text:
    DOVE v. ALPENA HIDE & LEATHER CO.
    1. Master and Servant — Workmen’s Compensation Law — Infection — Evidence.
    In proceedings for compensation under the workmen’s compensation act for the death of a tannery workman, employed in unloading hides, alleged to be due to septic infection from dust from the hides, the evidence of a physician that hides are dead animal matter; that, as a general rule, all dead animal matter contains infection and that hides are no exception, tends to prove that dust arising from the hides contained infection.
    2. Same.
    If it was established to the satisfaction of the commission that hides are animal matier, that all dead animal matter contains infection and that hides are no exception, such facts would justify an inference that deceased became infected by handling the hides — that the septic germ entered his body through the respiratory organs and first found lodgment in the throat.
    3. Same.
    A tannery workman employed in unloading hides suffers an accident causing his death where by chance septic germs in the dust from the hides are taken into his respiratory organs and carried into his system, an unusual occurrence in work at which he is employed, and death follows.

    Brooke and Steere, dissenting.
    Certiorari to Industrial Accident Board.
    Submitted June 6, 1917.
    (Docket No. 3.)
    Decided September 27, 1917.
    Louise A. Dove presented her claim for compensation against the Alpena Hide & Leather Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the ¿Etna Life Insurance Company, insurer, bring certiorari.
    Affirmed.

      C. W. & W. S. Foster, for appellants.

      Joseph H. Cobb, for-appellee.

       On constitutionality and effect of workmen’s compensation acts, generally, see comprehensive note in L. R. A. 1916A, 23; L. R. A. 1917D, 80.

   Bird, J.

Plaintiff is the widow of Leonard Dove, who was employed in and around the tannery of the first-named defendant. On March 30, 1915, he, with other employees, was engaged in unloading a car of hides, which had been received from South America. They were sun-dried and folded with the hair inside. They were thrown into the hide house from the car, and the deceased assisted in carrying and piling them. On April 1st he noticed a swelling on his neck under the right jaw. On April 2d, when he came to work, it was observed by the foreman, Mr. Good. After questioning him concerning it, Mr. Good advised him to see a physician. From that time on he grew worse rapidly, and on the morning of April 4th he died. The cause of death was given by the attending physician as “septic infection and heart trouble.” A death award was made by an arbitration committee, and subsequently approved by the board, on the theory that the deceased became infected from the dust arising from the hides.

The defendants insist that the finding of the board is not sustained by the testimony. The testimony has been carefully examined, and we think it tends to establish the following facts:

(a) That the cause of death was “septic infection.” (5) That dust arose from the handling of the hides and that the ventilation in the hide house was very poor, (c) That septic infection could be taken into the body by means of inhalation, (d) That the throat of deceased was badly inflamed. (e) That the infection which caused death was contracted from without. (/) That if the dust contained infection the deceased could have contracted it by working on the hides in the poorly ventilated room, (g) That the dust arising from the hides contained infection.

It is strenuously insisted by defendants’ counsel that there is no proof that the dust contained infection. We think the testimony of Dr. Dunlop tends to support the claim that it did. He testified in part as follows:

“Q. Do you know, Doctor, of your own knowledge, whether or not they (hides) contain germ diseases?
“A. Hides are dead animal matter, and they are the same as other dead animal matter. Because they are hides makes no difference.
“Q. Then, as I understand it, all dead animal matter contains infection as a general proposition?
“A. Yes.
“Q. And these hides are no exception?
“A. No.”

These propositions, if established in the minds of the commission, would justify an inference that the deceased became infected by handling the hides — that the septic germ entered his body through the respiratory organs and first found lodgment in his throat. Blaess v. Dolph, 195 Mich. 137 (161 N. W. 885).

Counsel inquire where the accident is which led to his death. The accidental feature of the case is that by chance the septic germ or germs were taken up by his respiratory organs and carried into his system, an occurrence which the testimony shows probably did happen, but which was unusual in the work at which he was engaged.

The conclusions of the board are affirmed.

Kuhn, C. J., and Stone, Moore, and Fellows, JJ., concurred with Bird, J.

Brooke, J.

(dissenting). In my opinion there is no evidence of an accident.

Steere, J., concurred with Brooke, J. Ostrander, J., did not “sit.


author: Fellows, J.

text:
    DINGEMAN v. STATE BOARD OF CANVASSERS.
    1. Election — Duty of State Board of Canvassers.
    In the absence of a contest over the election of a circuit judge, it is the ministerial duty of the State board of canvassers to canvass the returns and issue to the officer elected a certificate of election.
    2. Same — Circuit Judges — Recounts—Power of Legislature.
    The legislature, sitting in joint convention, has exclusive jurisdiction of a recount contest on the election of a circuit judge.
    Mandamus by Harry J. Dingeman to compel the State board of canvassers to refrain from recounting the ballots in an election of circuit judges.
    Submitted June 12, 1917.
    (Calendar No. 27,941.)
    Writ granted September 27, 1917.

      William L. Carpenter, James O. Murfin, John D. Mackay, and George F. Monaghan, for plaintiff.

      Alex. J. Groesbeck, Attorney General, Leland W. Carr, and Thomas G. Baillie, Assistants Attorney General, for defendant.

      H. E. Spalding, Fred G. Dewey, Henry M. Butzel, and Clarence A. Lightner, for contestant Ira W. Jayne.
   Fellows, J.

Upon the face of the returns as canvassed by the county board of canvassers of Wayne county, and duly certified to the- defendant, the plaintiff was elected one of the circuit judges for the third judicial circuit at the general election held in April. No question is raised as to the regularity of the returns to the State board of canvassers. Had no contest been had, it must be conceded that it would have been the clear duty of the State board of canvassers to canvass the returns and issue to plaintiff a certificate of election. This was a ministerial duty to be performed by defendant. Acting under the provisions of Act No. 320 of the Public Acts of 1913 (1 Comp. Laws 1915, § 3776 et seq.), Ira W. Jayne, who was also a candidate for the office of circuit judge for the third judicial circuit at said election, instituted a contest, claiming that the votes on circuit judge had been improperly counted, and that he (Jayne) had been elected to such office. Upon a recount of the votes by defendant, pursuant, to the prayer of said Jayne’s petition, it was found that Jayne was elected.

It is, and must be, conceded that the Constitution has vested in the legislature sitting in joint convention the power of finally determining the question who was elected to the office of circuit judge. The argument is advanced, and it presents the question in the case, that this is not exclusive, that it is competent for the legislature to empower the State board of canvassers to conduct a recount contest on State officers; conceding, however, that the decision of the board lacks finality or conclusiveness against the determination by the legislature. I cannot agree with this contention. If - the argument is sound, the adjudicated cases in this jurisdiction have been incorrectly decided. If the argument is sound, it could have been successfully urged in practically all the cases where this court has had occasion to speak on the subject.

The framers of the Constitution of 1850, and the people of the State in adopting it, made provision for contests for the more important offices before the legislature, and before the legislature alone. This, provision even excludes the courts from jurisdiction so far as contests for these offices are concerned, and was designed to discourage and prevent long drawn out and needless litigation and contest between private parties over the higher and more important offices of the State. The legislature, bound by no hard and fast rule, may or may not, in its discretion, entertain contests. The determination of the legislature is a finality, and private parties, ambitious to fill these offices, or litigious in character, cannot compel action by the legislature or go elsewhere and secure delay in carrying out the recorded will of the electorate. The wisdom of this provision is demonstrated by the fact that it stood without amendment, or attempted amendment, and was carried into the present Constitution.

This court has had occasion to consider this provision in several eases. In the early case of People v. Goodwin, 22 Mich. 496, this court had before it a proceeding in the nature of quo warranto to test the right of Judge Goodwin to the office of circuit judge. It was there said:

“Counsel on both sides have overlooked the fact that the Constitution does not permit the regularity of elections to the more important offices to be tried by the courts. It has provided that in all cases where, by the Constitution or by statute, the result of elections is to be determined by the board of State canvassers, there shall be no judicial inquiry beyond their decision. It declares that, 'when the determination of the board of State canvassers is contested, the legislature, in joint convention, shall decide which person is elected/ Article 8, § 5.
“This provision was doubtless suggested by the serious difficulties which would attend inquiries into contested elections, where the ballots of a great number of election precincts would require to be counted and inspected, and probably also to discourage the needless litigation of the right to the higher public offices at the instance of disappointed candidates where the public interest does not appear to require it. A legislative body can exercise a discretion in such cases, and could not be compelled to enter upon such an inquiry except upon a preliminary showing which the courts are not at liberty to require. The conclusive character given to the certificate of the canvassers is not a novelty. Similar provision has been made elsewhere.”

Again, in the case of Vance v. Board of Canvassers, 95 Mich. 462 (54 N. W. 1084), this court had before it a contest by recount for the office of circuit judge. The recount had been had under the provisions of Act No. 208, Pub. Acts 1887, which by its terms was broad enough to include that office. The board of canvassers of St. Clair county was, however, required by this court to certify the returns as they stood before the recount. It was said by Mr. Justice McGrath, speaking for the court:

“The theory of the cases cited is that, inasmuch as another tribunal for that review has been provided by law in that class of cases, and the act in question does not in terms qualify the powers granted to such' tribunal or limit the scope of the inquiry to be made by it, jurisdiction is exclusive in such tribunal, and boards of canvassers and the courts are without power in the premises.”

This case was followed in Pound v. Board of Canvassers, 120 Mich. 181 (79 N. W. 114).

In Belknap v. Board of Canvassers, 94 Mich. 516 (54 N. W. 376), a recount had been had under the act of 1887, which by its terms was made available to “any candidate yoted for at any election in this State.” The office involved was that of congressman. Application was made to this court to compel the board of canvassers to canvass the votes in accordance with the original returns. The writ was granted on the ground that under the Federal Constitution the house of representatives is made judge of the election and qualifications of its own members and that the act of 1887 had no application.

Recently, and since the act under consideration became’ effective, Samuel W. Beakes, a candidate for the office of congressman from the second congressional district at the general election of 1916, filed a petition under the provisions of this act with this respondent for a recount of the votes cast at such election. His petition was refused by the board. Upon application to this court for mandamus to compel action by the board this court refused to issue the order to show cause upon the grounds that the Belknap Case controlled.

In Wheeler v. Board of Canvassers, 94 Mich. 448 (53 N. W. 914), application was made to this court for mandamus to compel a recount, under the act of 1887, on the office of State senator. Under the Constitution of this State “each house shall judge of the qualifications, elections, and returns of its members.” Based upon this provision of the Constitution and on the authority of Naumann v. Board of Canvassers, 73 Mich. 252 (41 N. W. 267), the writ was denied. Had the argument made in the instant case been there followed, the writ would of necessity have issued.

People v. Harshaw, 60 Mich. 200 (26 N. W. 879, 1 Am. St. Rep. 498), was an information to test respondent’s right to the office of mayor of Alpena. Under the charter of the city of Alpena its common council was made the judge of the election and qualifications of its members. It was held that the mayor was a member of the common' council, and that the action of the council was finál, and not subject to review.

Other cases might be cited, but these are sufficient to demonstrate the rule adopted by this court. Running through all these cases is the rule, to my mind clear and distinct, that wherever by the organic law, whether Federal, State, or municipal, a tribunal is created to finally determine the right to an office, that tribunal is exclusive, and there, and there only, may the- right to the office be tested. By the organic law of this State the legislature, sitting in joint convention, is made such tribunal as to the office here involved. By that tribunal, and by that tribunal alone, may the ballots cast for the office of circuit judge be recounted, and the contest for this important office be decided.

I think the writ should be issued as prayed.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.


author: Moore, J.

text:
    GUY v. CINCINNATI NORTHERN RAILROAD CO.
    1. Master and Servant — Personal Injuries — Independent Contractor — Evidence—Sufficiency.
    In an action by an employee of a railroad to recover for injuries sustained as the result of the starting of machinery in a coal dock used for loading coal on engines, where the foreman in charge, in addition to his yard duties, had a contract with the company for loading coal and hired and paid plaintiff, evidence held, insufficient to show that such foreman was an independent contractor.
    2. Same — Interstate Commerce.
    One who is engaged in coaling and placing water in tanks of engines used in interstate commerce, among other duties, is engaged in interstate commerce.

    3. Same — Joint Tort Feasors — Release—Effect.
    The release of a foreman who is in charge of a railroad coal dock from liability for negligence in injuring another employee is not a defense in an action for damages for personal injuries against the railroad.
    4. Damages — Personal Injuries — Excessive Verdict.
    A verdict for $35,000 in favor of a railroad employee for the loss of' one arm below the shoulder and the other at the wrist and other injuries, held, not excessive.

      Error to Lenawee; Hart, J.
    Submitted June 27, 1917.
    (Docket No. 80.)
    Decided September 27, 1917.
    Rehearing denied December 28, 1917.
    Case by Leo Guy against the Cincinnati Northern Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Herbert R. Clark, for appellant.

      Alonzo H. Remes, Corinne L. Rice, and Éarl C. Michener, for appellee.

       For authorities passing on the question as to State regulation of relation between railroad companies engaged in interstate commerce and their employees, see notes in 15 L. R. A. (N. S.) 134; 29 L. R. A. (N. S.) 240; 52 L. R. A. (N. S.) 266.

   Moore, J.

The questions involved in this case are clearly stated in the charge to the jury, of the trial judge, from which we quote:

“It is the further claim that the plaintiff, Leo Guy, was, on the said 18th day of January, 1914, a resident of the city of Hudson in this county; that on that date and prior thereto he was in the employ of the Cincinnati Northern Railroad Company in the city of Hudson; that his work and duties consisted of coaling engines that were engaged in interstate commerce between the State of Michigan and the State of Ohio as above set forth, in placing water in the tanks of said engines, and of assisting in cleaning the ash pans of said engines, keeping up the fires in engines that stopped at this station overnight on their way from the State of Michigan to the State of Ohio, oiling said engines, and operating the switch allowing said engines to pass from the main track onto the side tracks and from said side tracks back onto the main line, for the purpose of placing water in the tanks of said engines to be used in said interstate commerce. * * *
“Plaintiff further claims that during all the time Leo Guy was engaged in said work he was under the direction of a boss or foreman, C. E. Duvall, who was an agent or vice principal of said defendant, and that in the absence of the said Duvall he was under the control and direction of Emil Morgret, said Morgret being also in the employ of the said defendant. Plaintiff further claims that there was being maintained by the said defendant a certain elevator or coal dock located on the right of way of the said defendant in said city of Hudson and where plaintiff was working, which was used for the purpose of elevating coal up and into a certain hopper by the means of steam power, and from said hopper into and through a certain chute into the tenders of said engines engaged in an interstate commerce, as heretofore set forth.
“Plaintiff further claims that on said date, January 18, 1914, said C. E. Duvall ordered the plaintiff to go to the top of said tower, and to spread about the coal in said hopper at the top of said tower, and that in doing so it became necessary to ascend a ladder to or near the top of the tower, and to cross upon and over a certain platform, which was of a width of about 14 inches, said platform being unprotected by any railing, and that near said platform there were located certain cogwheels, and that it was necessary for plaintiff in going to said hopper for the purpose of arranging the coal to pass near said cogwheels, and that said cogwheels were unprotected by any covering or guard, and it is further alleged that at said time it was snowing and blowing and very cold, and that while plaintiff was passing, or attempting to pass, over said platform in pursuance of said negligent order of the said Duvall, he necessarily and unavoidably passed in close proximity to said cogwheels, and while passing said cogwheels the machinery was negligently and suddenly put in operation by the said Duvall without any warning, and by reason thereof plaintiff was caught in the machinery of said cogwheels, and that his left arm and right hand were mangled and crushed and his left jaw was fractured in three different places. Plaintiff further alleges that he was compelled to remain at the top of said tower for a period of one-half or three-quarters of an hour, during which time he suffered great pain and agony by reason of said injuries, and by reason of the severe cold; that he was then lowered by means of a canvas and rope to the ground and taken to a hotel near by; that a doctor was called, and upon examination amputated his left arm just below the shoulder and his right arm at the wrist, and an attempt was made to set the broken jaw and lacerations sutured. * * *
“Plaintiff further claims that at the time he was taken from the hospital in the city of Adrian, as above set forth, he was suffering with pains in his head and other parts of his body; that he was in a weakened condition, both, mentally and physically, and while in that condition he was taken from said' hospital to the city of Hudson in company with C. E. Duvall, and taken into the office of an attorney in the city of Hudson, and that while in said office a certain alleged release was prepared, which purported to release the said Duvall from all liability by reason of the said injuries that he had sustained as above set forth, and that said release was signed by plaintiff’s mother, and that the said Duvall paid to plaintiff’s mother, Mrs. H. P. Bangs, the sum of $75, and executed and delivered to his said mother, Mrs. H. P. Bangs, two notes, one for the sum of $50, payable in 90 days, and one for the sum of $75, payable in one year from the date of execution. Plaintiff further claims that he received no part or any of the moneys paid by the said Duvall by reason of said alleged release, and that he did not, and could not by reason of his condition as above set forth, authorize his mother, Mrs. H. P. Bangs, to sign or execute said release. Plaintiff further claims that the said C. E. Duvall for the purpose of securing the alleged release, represented to his mother, Mrs. H. P. Bangs, that he, the said Duvall, was. the employer of the plaintiff, and that plaintiff had no rights, as against the Cincinnati Northern Railroad Company, and that he, the said Duvall, was insolvent, and that if she did not accept the money according to the terms of the alleged release, the plaintiff would not be able to recover any money, and that the said Mrs. H. P. Bangs, believing and relying on the said statements signed this alleged release.
“Plaintiff further claims that the alleged release is void under section 5 of the Federal employers’ liability act [Act April 22, 1908, chap. 149, '35 U. S. Stat. (U. S. Comp. Stat. 1916, § 8661)] under which act this claim is brought, and which reads as follows:
“ ‘Any contract, rule, regulation or device whatsoever, the purpose or intent of which shall he to enable any common carrier to exempt itself from any liability created by this act, shall to that extent be void: Provided, That in any action brought against any such commom carrier under, or by virtue of any of the provisions of this act, such common carrier may set off therein any sum [of money] it has contributed or paid * * * to the injured employee, or the person entitled thereto on account of the injury or death for which said action was brought.’
“Plaintiff further claims that the so-called independent contract alleged to exist between Duvall and the plaintiff was. a device, the purpose and intent of which was to enable the defendant to exempt itself from any liability created by this act, and is. void under the said section 5 of said act. * * *
“Now, gentlemen, that in substance is the claim of the plaintiff in this lawsuit. On the other hand, the defendant claims that plaintiff was not in its employ at the time of the accident; that plaintiff was in the employ of Edwin Duvall, an independent contractor, at the time of the accident; that plaintiff was not engaged in interstate commerce at the time of the accident; that plaintiff assumed the risk of being injured in going upon the platform of the coal dock near the cogwheels; that the accident was not due to any negligence on the part of the defendant; that the accident was due entirely to the negligence of plaintiff himself; that a settlement was made with, and release given to Edwin Duvall by the plaintiff, and that such settlement and release constitutes a bar to this action; that under the pleadings and proofs, plaintiff has not made a case against defendant such as to entitle him to recover in this action.
“Defendant claims that the coal dock in question was constructed, owned, and operated by Edwin Duvall, under and by virtue of a written contract entered into between him and the defendant, which written contract consists, of two letters * * * It claims that the said Edwin Duvall hired the men who worked on said dock, and paid them for such work.
“Defendant claims, further, that the plaintiff was never hired by it in any capacity, that his name was never upon its pay rolls, and that it never paid him nor became obligated to pay him for any such services performed. Defendant claims that the said Edwin Duvall was what is known under the law as an independent contractor, and that as such he hired the plaintiff and paid him for his services. Defendant-claims that if it was the duty of any one to furnish a safe place for plaintiff to work, any such duty was that of Edwin Duvall, who constructed, owned, and operated the tower in question upon land which defendant had leased to him.
“Defendant claims, further, that it was no part of the duty of plaintiff to assist in transferring coal from the tower to the tenders of engines, and that that was no part of the work required to be performed by the said Edwin Duvall under the terms of said contract. Defendant claims that plaintiff was warned not to go up to the platform where he was injured, and when so told answered, ‘All right’ or words to that effect. •{♦ H*
“Defendant claims further that the accident occurred through the negligence of plaintiff alone. It claims that plaintiff stated to Edwin Duvall several times after the accident that he, Duvall,, was not to blame for it, and that if he, plaintiff, had done as he was told, he would not have been injured, or that in substance, and that he made the same statement to other witnesses at different times.
“Defendant claims further that plaintiff made a settlement with the said Edwin Duvall for all damages on account of the injuries he received at the time in question, and that a release was executed by him, or for and in his behalf, with his authority, by his mother, Mrs. H. P. Bangs, said release being first discussed and read aloud in his presence, and that such release and full payment thereunder was a satisfaction for all his said injuries. * * *
“It is upon these conflicting claims, gentlemen, that you are to pass, and you are to determine from the evidence and under these instructions who is in the right and who is in the wrong in this matter.
“This is an action which is brought by the plaintiff under what is known as the Federal employers’ liability act (35 U. S. Stat. chap. 149, §§ 1, 3, 5 (U. S. Comp. Stat. §§ 8657, 8659, 8661). You are instructed that at the time the plaintiff claims to have received his alleged injuries, a statute of the United States was in force in this State and in all of the other States, and that such statute reads in part as follows:
“‘That every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States and Territories or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages, to any person suffering injury while he is employed [by such carrier in such commerce, if the injury is caused] in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency due to its negligence, in its cars,- engines, appliances, machinery, tracks, roadbed, works, boats, wharves or other equipment.
“ ‘That in all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employee the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.
“ ‘That any contract, rule, regulation or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act, shall to that extent be void.’ * * *
“You are instructed that the defendant was at the time of the alleged injury engaged in interstate commerce; that is, the railroad company. You are also instructed that if you should find that the plaintiff was at the time of the injury engaged in leveling coal or was going to the bin for that purpose, this work would be so closely connected with and a part of interstate commerce that it would be considered within the_ law, in the opinion of the court, as being 'engaged in interstate commerce. Therefore the first question for you to ascertain is whether the plaintiff at the time of the alleged injury was proceeding to the coal bin under orders and directions for the purpose of leveling this coal off. * * *
“If you find under this instruction then that the plaintiff satisfied you by a preponderance of the evidence that he was at the time of the injury engaged in interstate commerce work, then the plaintiff must next satisfy you by a preponderance of the evidence that he was at the time of the alleged injury in the employ of the defendant, the Cincinnati Northern Railroad Company. You are instructed that if the plaintiff was in the employ of Edwin Duvall as an independent contractor, and not in the defendant’s employ, he cannot recover in this action.
“You are also instructed that even if the plaintiff was engaged in interstate commerce work at the time of the accident, he could not recover in this action •unless he was in the employ of the defendant at the time it occurred.
“You are instructed that the defendant would have a legal right to enter into a contract with Edwin Duvall, and would have a right to delegate to him by a contract the right to construct the dock in question and the work of operating and control of the same, if you find under the evidence that the defendant did do so. But even at that, if the plaintiff was in the employ of the defendant, then you have a right to proceed with your inquiry. * * *
“If you find from all the evidence that the plaintiff has satisfied you by a preponderance of the evidence that he, at the time of the injury, was in the employ of the railroad company, then you will continue your inquiry!
' “On the other hand, if he hasn’t satisfied you, that will end your inquiry, and your verdict will be, ‘No cause of action.’ * * *
“You are instructed that if the plaintiff at the time of the alleged accident was in the employ of the defendant, then it was the duty of the defendant to exercise ordinary care for the safety of the plaintiff, and you are further instructed that ordinary care, as used in these instructions, is. that degree of care which a reasonably prudent man would exercise under the same or like .circumstances.
“You are instructed that if the plaintiff was in the employ of the defendant and was directed by a foreman of the defendant acting within the scope of his authority to go upon the tower or elevator, and if you find that the giving of such orders was a failure to use that degree of care which a reasonably prudent man would have exercised under the same circumstances, then this would be negligence.
“You are also instructed that if you find that the plaintiff was. employed by the defendant and that his work required him to work around a place which was not reasonably safe, in that there was an unguarded platform or unguarded cogwheels, and the defendant required the plaintiff to work in such a place, then this would be negligence. However, if the platform was reasonably safe without barriers, if you should find it had none, or if the cogwheels were reasonably safe without guards if you should find that they had-none, then this would not be negligence. * * *
“Then if you find under these instructions and evidence that the defendant was negligent and you will continue y'our inquiry. However, if you find that the defendant was not negligent, and that it did all that a reasonably prudent man would do under like circumstances, then the defendant would not be negligent, and that would end your inquiry, and your verdict would be, 'No cause of action/ * * *
“You are instructed that if you find the defendant was negligent, and you also find that the plaintiff was guilty of contributory negligence, that is that the plaintiff was guilty of doing something or omitting to do something which he should have done, by the test of what a reasonably prudent man would do under the same circumstances, and which if he had omitted to do or done, the injury would not have happened, yet this would not bar the plaintiff’s recovery; neither would it bar the plaintiffs recovery if the injury was caused by the negligence of a fellow servant. However, if you find that the plaintiff was guilty of contributory negligence, that he was to blame some, that he didn’t do his part in the matter, you should take this into consideration in estimating the damages if you find he has suffered any, and you should diminish his damages in proportion to the amount of the negligence which you attribute to him. * * *
“Then if you find that the plaintiff has established all of the elements that I have so far outlined which it is necessary for him to establish before he can recover, you will then proceed and inquire whether the plaintiff assumed the risk of the employment. If the injury resulted from what is known as an assumed risk, plaintiff cannot recover. You are instructed that whoever hires out for any service assumes those risks which properly belong to the employment. The servant assumes all the dangers that are obviously incident to the employment, which dangers he knows, or should know. You have a right to consider in fixing the liability here whether the railroad company furnished another way which was safe to get to this coal bin without going by the cogwheel, and if it did, and plaintiff knew it, or should have known it, by the exercise of ordinary caution, and plaintiff picked out his own way, which was not the way to be used, and which was not the ordinary way that was used, the plaintiff assumed the risk of going the way he did, and cannot recover. * * *
“You are instructed that before the plaintiff can recover he must establish by a preponderance of the evidence the following elements: (1) That he at the time of the accident was engaged in interstate commerce work; (2) that he was in the employ of the company at the time of the accident; (3) that the defendant was negligent; (4) that the negligence of the defendant was the proximate cause of his injuries; (5) that he has been injured; (6) that the injury was not assumed by him by virtue of his employment, and was not such as is known as an assumed risk. * * *
“You are instructed that there has been some evidence in this case tending to establish a settlement by Edwin Duvall with Leo Guy for his injuries. This evidence is to be considered by you in determining the question as to whether Leo Guy was working for the railroad company, or whether he was working for Edwin Duvall at the time of his injury. That is, if you find the release was authorized and made when the plaintiff was competent and that he understood it or ratified the signing of it, you will take this release as bearing on the question of who hired him, whether the railroad company did, or Edwin Duvall. If you find he was working for the railroad company, however, I do not believe under this act of congress that the railroad company could escape its liability by reason of the injury, if you find it is liable by reason of a settlement made by Leo Guy with Edwiii Duvall, even if you should find it was knowingly made and understood, because it would seem to me that this would be a device by which the purpose of the statute could be nullified and avoided. Of course if it wasn’t knowingly made or ratified and was done by fraud and deceit, it would not be any settlement or release. If, therefore, you find under the evidence and these instructions the plaintiff is entitled to recover from the railroad company, you will not consider this receipt as diminishing liability, if any liability is once established against the railroad company."

The jury returned a verdict for $35,000 in favor of the plaintiff. The case is brought here by writ of error.

The assignments of error are grouped in the brief of appellant as follows:

(1) Was the plaintiff in the employ of defendant at the time he was injured?
(2) Was plaintiff engaged in interstate commerce at the time he was injured?
(3) Was defendant guilty of negligence? .
(4) Did plaintiff assume the risk?
(5) Does the release plaintiff gave Edwin Duvall bar recovery?
(6) Is the verdict against the weight of the evidence?
(7) Is the verdict excessive?

It was stated on the oral argument by counsel for appellant that the controlling questions are 1, 2, and 5, and in considering these it is necessary to go into the testimony at some length.

It is claimed by the defendant that one Duvall was acting in a dual capacity; that while he was foreman of the yards of defendant at Hudson, he was also an independent contractor. To establish the last proposition two letters were introduced in evidence reading:

“Cleveland, Cincinnati, Chicago & St. Louis Ry. Co.
“Van Wert, 0., July 1. T3.
“Mr. E. Duvall,
“Hudson, Mich.
“Dear Sirs: Confirming the understanding between us in my office last week'.
“If you build the hoist at Hudson, it is understood that we are to pay you 11c per .ton for handling the coal, the Cincinnati Northern to furnish the coal for operating the hoist and if the coal used for this purpose amounts to more than three-fourths of a ton daily, the price of hoisting the coal will be reduced from 11c to 10c per ton. Bryan scale weights will govern in determining the amount of coal handled, if the coal is weighed at Bryan, and if it is not weighed there, billed weights will govern. If you are required to unload five or more straight flat bottom cars in one month, you will be paid 13c per ton for the number of flat bottom cars unloaded but if you unload less than five 'flat bottom cars in one month, the regular rate will apply to the flat bottoms as well as the hopper bottoms. You are to pick up all coal that fails to the ground. You are not to be held to this agreement if it is found that the hoist cannot be operated successfully, but you will bear the burden that results from a failure of a day or two. There is no understanding that we will continue this method of handling coal beyond the first of June, 1914.
“Have I outlined your understanding of our conference?
“Yours truly,
“J. V. Kennedy.”
“The Cincinnati Northern Railroad Company.
“Hudson Station, July 6, 1913. “Mr. J. V. Kennedy, Supt.
“Dear Sir: Referring to your letter on date of July 1st relating to our agreement about handling the company coal at Hudson. Everything is all right and I will accept this letter as our contract. Work is progressing nicely with the new dock and hope to have same in operation by the first of the month. Thanking you for the interest you have taken in this in my behalf as well as that of the company,
“I am yours truly,
“E. Duvall.”

Mr. Duvall claimed there was a lease made later, but it was not produced upon the trial.

It is not claimed that plaintiff had any knowledge of this correspondence. It is claimed by the plaintiff that no authority was shown on the part of Mr. Kennedy to write the letter, and it is also claimed that if it is conceded a contract was made, it is against public policy. It will be noticed that the correspondence does not show how much coal is to be handled, or what is to be done in handling it, how many cars, who is to direct their placings, and after the coal is hoisted what is to be done with it; if to be used in coaling locomotives, who is to direct the placing of them and the times of coaling. The correspondence is silent as to these and other details. As to what was actually done, the testimony offered by the plaintiff in part is as follows:

“Morgret, Emil. Am employed by the Cincinnati Northern Railway Company. I was employed by that company January 18, 1914, when the accident occurred. I got acquainted - with Leo Guy during that month. I met him at the Cincinnati Northern Railway Company coal dock. He had been working there about a week. I had been there almost 2 years.
“We elevated coal on the coal dock with a machine built there on the Cincinnati Northern Railway Company’s land. It was about '40 or 50 feet high, and just about square at the base. * * * There is also a water tank located there on the right of way about 50 feet south of the coal dock, on the same side of main track as the elevator, and between the main track and switch track. The water tank is about 8 feet from the main track. There were also a couple of box cars there that we used for an office and storeroom; oil, corncobs, wire, kegs and sand are stored there. The main line extends from Jackson, Mich., to Franklin, Ohio.
“Edwin Duvall was a foreman there in charge of elevating coal and water into the engines. He was there all day and sometimes in the evening. When he was not there I was in charge. Leo Guy and Bert Elliott both worked there about January 18, 1914, the day of the accident, and the week previous to that. Leo Guy elevated coal. He opened the door of the cars and let the coal down into a hopper, and then it would be conveyed across into the endless chain and elevated up into the hopper above. He saw that the coal went down into the hopper and shoveled it out. We used a threshing machine engine to furnish power. After the coal was elevated into the hopper, it was put on the locomotives when they came by there. When a car would come up there or a locomotive engine, Leo Guy would release the clutch and let the spout down, and the coal would run out on the engine or tender. The fireman and engineer would generally be on the engine. The engines that we coaled came from Ohio, and were going north to Jackson, Mich., or came from Jackson, Mich., and were going south into Ohio. There was one freight train that was a short local run from Hudson to Jackson only. Outside of that all other trains went from Ohio into Michigan or Michigan into Ohio. When a locomotive engine or tender was there for coal the fireman of the locomotive engines would tell Leo Guy when to let the spout down or up. These locomotive engines were going from Ohio into Michigan or from Michigan into Ohio. * * *
“In addition to the work of elevating this coal, there was a couple of engines there we had to tend each night. One came from Ohio and the other from Michigan. The one coming from Michigan would go to Ohio the next day, and the other one had to come from Ohio. At night we put sand, water, and coal on those engines. Leo Guy assisted in that work a part of the time. Generally sent him to open the switch and send the engines south on the main track. When they had run the engines by the switch he would turn the switch back and lock it and get on the back of the engine. After that he would get on the tank and go and draw water in the tank. He would generally pull down the spout of the water tank and draw water. After the tank was filled, he would hang up the spout and go back onto the side track again, and turn the switch. He used to hoe the ashes out of the ash pan of the locomotive engines. If Mr. Duvall wasn’t there, this was done under my direction. He also carried sand up on the engine and put it on the sand box. The sand kept the wheels from slipping on the rails. He also filled the oil cans with oil, and put them back on these locomotives. These locomotives, when they left for Ohio, hauled box cars and coal cars. _ I have seen coal cars go by, and have seen threshing machines hauled. Leo Guy helped keep fires up on those engines at night. The next morning when the engineers came down these engines would have the steam all up for the purpose of going out and taking their trains.
“When Mr. Duvall was present he assisted in the work that I have named over. He ceased working there about 14 months ago. I took Mr. Duvall’s place. I got my pay from the Cincinnati Northern Railroad Company. I also got it from the Cincinnati Northern Railroad Company before Mr. Duvall left. I do the same work now that Mr. Duvall did before he left. I was present a couple of times when Mr. Duvall got his pay; he got it from the Cincinnati Northern Railroad Company.”

On cross-examination in part:

“I worked there nights. Leo Guy worked part of the time nights and part of the time daytimes. Besides Leo Guy and myself Bert Elliott worked there. I think another man came to Hudson with Guy and was also employed there, but I don’t remember his name.
“Q. Now, at the time you worked for the Cincinnati Northern Railroad Company?
“A. Yes, sir.
“Q. And did you also work for Mr. Duvall?
“A. I worked under his instructions; he was there.
“Q. Did you work for him?
“A. Yes; I done whatever there was to do there.
“Q. You. were paid by both were you not?
“A. Not at that time.
“Q. Were you paid by the Cincinnati Northern Railway Company?
“A. Yes, sir.
“Q. To do work for the company, and paid by Mr. Duvall to do the work for him?
“A. Not at that time.
“Q. Not at the time of this accident?
“A. No, sir.
“Q. You are sure about that, too, are you, Mr. Morgret?
“A. Yes, sir.”

On redirect examination in part:

“Q. Before Leo Guy worked at this place, how long had you been working there?
“A. About two years.
“Q. Were you carrying on the same kind of work during the two years prior to the time Leo Guy worked there that you were during the time Leo Guy did work there? Were you doing the same kind of work?
“A. Yes, sir.
“Q. State about when, if you remember, that you received your communications from the defendant here, the Cincinnati Northern Railway Company, by message. * * *
“Mr. Banes: (Question read) with reference to coal being furnished by you there for those engines?
“A. I don’t believe I can just tell.
“Q. Fix the date as near as you can.
“A. We got some long before this accident and got some after.
“Q. About how long were those last ones you remember received, either by phone or message before this accident?
“A. Just about a month I should judge.
“Q. I will ask you what did those messages state?
“A. It took a little bit longer than the time they thought it would to coal the engines, and they wanted to know what was the reason, and we simply told them we had a little trouble with the dock at the time, and there was a little delay in getting the coal on the engine.”
“Bert Elliott: My business is day work. I had been working off and on at the coal dock, where Leo Guy was working before January 18, 1914. I had been working there a couple of days before the accident happened. I worked some days and some nights. Leo Guy worked there while I was working. I was working for the railroad company under Mr. Duvall’s instructions. 1 got my money in checks from the Cincinnati Northern Railway Company at the depot. Mr. Morgret worked some nights and some days when I was there. Ed Duvall was boss or foreman; when he was not there Emil Morgret was in charge. When Duvall was there I worked under him, and when he was away I worked under Emil Morgret. I have been working at the coal dock off and on since it was built. I helped to do the first work. The week Leo Guy was working there we unloaded coal nights from the Cincinnati Northern Railway Company trains into the hopper, and elevated it up in that tower. After it was elevated it was put on the coal tenders or engines. The engines were bound from Ohio to Jackson, Michigan, or from Jackson, Michigan, to Ohio. The engine would come up and stop, and the fireman would call for coal, and we would give him coal. We would untie a rope over a hook set there and let the spout down and let coal into the tender. Leo Guy and I both did that work. When they had enough coal on the engine the fireman would give the signal. I drew ■the ashes from the ash pan underneath the engine. I have seen Leo Guy do that. I also put on sand and sifted it for the engines. It is used for a brake on the rails of the Cincinnati Northern Railroad Company. We also worked and cleaned up loose coal around the dock. We also run engines out to get water. Leo Guy always turned the switch, and always pulled the rope to the spout to get water from the tank; pulled it down to the tender. The water would then come out of the tank into the tender of the engine. These engines ran from Ohio into Michigan, and from Michigan into Ohio. Leo Guy worked underneath the engines, cleaned out the ash pans and oiled it, got the oil cans ready and the lanterns and such things. He cleaned and filled the lanterns and put them on the engines. The engineer and fireman of the engines took the lanterns with them. * * *
“I was present at the time Leo Guy was injured. Mr. Duvall was also present. On that day Leo Guy and I were both upon that platform. The belt came off, and we went up to put the belt on. Mr. Duvall directed us to go up there. Mr. Duvall had started the machinery several times, and the belt came off, and we put it back on. When Leo Guy first got up there I think the machinery was standing still. At the time he was injured I had just gone down to the lower part beneath the dock. I was close to 50 feet below Leo Guy. While I was there and he was. up there, the machinery came to a stop and started on. Before that time it had been running until I got down to the ground. When it started up I noticed a check of the motion of the machinery, and it stopped. I heard somebody holler and went out and seen. When the machinery was started up, I don’t remember now if I heard any warning given or anything said to me or Leo Guy that the machinery was going to be started. When I felt the machinery kind of stop and heard the scream, we ran out and looked to see what it was, and we see him hanging up there. I was down in back when I heard this cry. I never saw Leo Guy on that dock before as I remember of. * * * Prior to this accident we were unloading cars there. Leo Guy and I were both working at the same thing, to get the coal out of the cars into the hopper and elevate it above.”
“Leo Guy: I was 29 the 28th of last October. I was located at Hudson, Mich., January 18, 1914. I now reside at the Cook County Poor Farm, Cook County, III. January 18th and some time prior thereto I was working for the Cincinnati Northern Railroad Company at the coal dock at Hudson, Mich, I went to work there the Sunday morning before I got hurt on the following Sunday. When I made application for this position or work I went down to see the foreman, Ed Duvall. On that Sunday I went to work somewhere near 8 o’clock or 9 o’clock in the morning, and worked that day and all that night, and the next day. They gave us a couple of hours’ rest in the little box car office that was there.
“January 18, 1914, we were working around there, and there was a belt come off, and we went up and put the belt on and got it fixed on the wheel, and went down, and Duvall told me to go up on top and level off the coal in the bin, to level it off good so we can get lots of coal up there. He expected some more trains in there, and we would need lots of coal. On that day I had been working one week. I went to work that day about 6 o’clock in the morning. Before that we quit work the night before. During the daytime when I worked there Mr. Duvall was boss or foreman over me. When I worked there of an evening Mr. Morgret was boss or foreman.
“Q. State when you went to work there on Sunday, tell us just what work you were doing — the kind of work.
“A. The machine was broke down when I went there and— The machinery was broken down, and we had to shovel coal into buckets and then move the buckets with a crank outside so we could put more buckets up against the side of the car and. keep the buckets firm so we could coal the engines- running from Ohio into Michigan and from Michigan into Ohio.
“Q. What else did you do there besides coaling; tell us all the work you did?
“A. At nighttime when I was assisting in the work with Mr. Morgret I was told to sand the engines, clean the oil' cans, fill them with oil, and put them on the engine.
“Mr. Clark: Just a moment. State who he was told by.
“A. I said Mr. Morgret.
“Mr. Rones: By whom were you told? '
“A. I was told by Mr. Morgret.
“Q. To do what?
“A. To fill oil cans, put them on the engines, carry sand from the dry sand pile, and put it on the engine.
“Q. What else did you do there besides- that?
“A. 1 went and opened the switch, and let Mr. Morgret with the engine on the main track from the switch track and closed the switch, climbed on the engine, went down and got off the engine, unloosened the rope that held an iron cable that we had attached to the chute of the coal dock, and let the coal go into the tender of the engine. * * *
“A. From Michigan to Ohio and from Ohio to Michigan.
“The Court: Were the trains actually going through, or didn’t you get ready for the trains to go out in the morning?
“A. Ready to go out in the morning. * * *
“Q. What was done to the engines while they stopped there?
“A. They were cleaned, sanded, cleaned ashes out of pan.
“Q. Who did this?
“A. Myself and Mr. Morgret.
“Q. Under whose direction did you do it?
“A. Mr. Morgret’s.
“Q. Tell us all that was done to the engines while stopping there?
“A. Cleaned, sanded, took ashes out from under the engine with a long scraper, cleaned the oil cans, put them on the engine, filled them full of coal and water, and had steam up so they were ready to go out the next morning. * * *
“Q. And under whose direction?
“A. Mr. Morgret’s.
“Q. In addition to that, what did you do while working there, if anything?
“A. Elevate coal. * * *
“Q. After you got this coal up there and into this hopper, what did you do with it?
“■ A. Put it in the tender of the engines. * * *
“Q. What fireman?
“A. The fireman of trains coming in there, the locomotive fireman.
“Q. What did he.do?
“A. He would come up on top of the tender, and would give the signal to the engineer to stop the train, and when he would get into the position he wanted it, he would say, ‘All right,’ and I would release the rope and let the chute down and let the coal fall out of that bin or hopper, as we called it, into the tender of the engine; Then he would say, ‘That is enough,’ and I would put the chute back up again until he moved the engine probably a few feet. Then he would say, ‘Give me some more,’ and I would let the coal down again and level it up so it was nice and level on the tender.
“Q. Is there anything else you did there?
(‘A. Yes, sir; I dried sand.
“Q. What was afterwards done with that sand?
“A. Put in a sand tank on the engine.”

The witness described in great detail the accident, and the extent of his injuries. He denied that he had knowingly settled for his injuries, or that he had authorized anybody else to do so.

In view of the exceedingly meager statement in the alleged contract of what Mr. Duvall was to do, and in view of what was actually done in handling the coal, and the other work which was done by the plaintiff and by his co-worker Mr. Elliott, and by the assistant foreman, Mr. Morgret, we do not think the court erred in declining to direct a verdict for the defendant on the theory that plaintiff was at work for an independent contractor. The jury having found plaintiff was in the employ of the defendant, it necessarily follows under the proofs that he was engaged in interstate commerce. We think it also follows that what was done by way of settlement with Mr. Duvall is not a defense to this action, against the railroad company.

The other assignments have been considered. We think them without merit.

Judgment is affirmed, with costs.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, and Brooke, JJ., concurred. Fellows, J. did not sit.


text:
    TRUSSED CONCRETE STEEL CO. v. ROSEMA.
    Compromise and Settlement — Payment—Admissions.
    Where the purchasers of steel claimed credit for labor in tagging the pieces in a letter inclosing a check for the balance, after deducting the amount of the claim, a letter in reply from the seller asking the purchasers to forward bills for the charges so that they could be passed upon and credited, if correct, did not constitute an admission that the check was received as payment
    Error to Kent; Brown, J.
    Submitted June 15, 1917.
    (Docket No. 54.)
    Decided September 27, 1917.
    Assumpsit in justice’s court by the Trussed Concrete Steel Company against Naneo Rosema and Jacob B. Top, copartners as Rosema & Top, for goods sold and delivered. There was judgment for defendants, and plaintiff appealed to the circuit court. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      William J. Lcmdman, for appellants.

      Clapperton, Owen & Halten, for appellee.
   Moore, J.

The amount of the controversy in this litigation is less than $80. The case was tried before the circuit judge without a jury. He made findings of fact and law as follows:

“1. The written contract under which the plaintiff sold certain building materials to the defendants was completely performed by the plaintiff.
“2. The amount due to the plaintiff under the terms of this contract was the sum of $900 and the total payments credited the defendants amount to the sum of $829.84, leaving a balance upon said contract price of $70.16.
“3. There is no evidence of any failure on the part of the plaintiff to fully perform the conditions of sale in said written contract. When the defendants sent their last remittance to the plaintiff, the same was inclosed with a statement of an alleged claim of the defendants’ against the plaintiff for an amount equal to the balance of the $900 for ‘labor, sorting and remodeling reinforced steel,’ as follows:
“ ‘Grand Rapids, Mich., Sept, t, 1914.
“ ‘Trussed Concrete Steel Co.,
‘“Youngstown, Ohio.
“‘To Rosema & Top, Dr.
“‘General contractors and Builders, Dr.
“‘To steel contract ...................$900 00
‘“July 17. By Cash ................. $73 69
“ ‘May 9. By freight on footing steel. 6 71
“‘May 21. By freight on carload steel. 66 24 “ ‘July 24. By Cash ................. 500 00
“ ‘By labor sorting and remodeling reinforcing steel as follows:
“ '144 hours labor at 30 ct... 43 20
“‘52 hours foreman labor at
60 ct................... 31 20 721 04
$178 96’
“Upon the receipt of this check the plaintiff replied as follows:
‘“Rosema & Top,
“ ‘Grand Rapids, Mich'.
‘Gentlemen: We have your check for $178.96 which you for; ward in settlement of the balance on invoices of May 15th, less freight $66.24 and $6.71 and contras of $43.20 and" $31.20. Kindly forward us the bills for these charges so we can have same passed upon and credited to your account, if correct. The freight bills we will also have checked up.
“ ‘Awaiting your further advices we remain,
“‘Very truly yours,
“ ‘Trussed Concrete Steel Co.’
“The written contract entered into between the parties set forth the conditions of sale and delivery and the remedies of the defendants in case of shortage or defective material. It clearly appeared that the defendants had failed to comply with the conditions of said contract in presenting any claims they might have thereunder.
“The claim of the defendants is that the labor represented by the amount not remitted was occasioned by the failure of the plaintiff and its agents to properly tag the steel. I find that there was no obligation upon the plaintiff to tag the steel, and that there is no default on the part of plaintiff for failure to tag the steel, and defendants are not entitled to a set-off, recoupment, or any consideration whatever, for the amount of any labor or expense that they have incurred. '
“I therefore find as a matter of fact that the plaintiff had fully performed its contract and was entitled to receive from the defendant the full contract price of $900. The sum of $829.84 credited the defendants was an amount admitted to be due by them, and which was undisputed and due in any event, and there was no dispute or controversy as to the balance of $70.16? the balance due on said $900, except as defendants presented the claim, which was not in accordance with said contract. The plaintiff had no knowledge of the items making up such charge for labor, nor could it determine as to whether it would allow or disallow same until it was presented with an itemized statement. An accord and satisfaction can only be predicated upon an unliquidated claim. Nothing was paid upon this item of labor and material and the amount paid was such as would, as before said, be due and payable in any event. There was, therefore, no accord and satisfaction of this balance.
“Further I find that there was no evidence of the payment by the defendants' and the acceptance by the plaintiff of any sum in full settlement of the balance due on said contract.
“I find and conclude, therefore, that the defendants are liable to the plaintiff in the sum of $70.16, together with interest thereon at the rate of 5 per cent, per annum from September 9, 1914, to the date of judgment, and that a judgment should be entered in favor of the plaintiff and against the defendants for that amount, viz., $77.16, and costs to be taxed.
“Dated November 21, 1916.”

Exceptions were duly made, and the case is brought here for review.

Counsel for appellant in his brief says:

“There are only two questions involved: (1) Was. the account unadjusted or unliquidated, and therefore subject to an accord and satisfaction? {2) Was there an accord and satisfaction?”

—and insists that each of these questions should be answered affirmatively. This contention is based upon the claim that it was the duty of the plaintiff to tag the pieces so as to show where they were to go in the construction; that it had failed to do so, which failure resulted in the need of making expenditures by the defendant which were the subject of negotiation and was followed by their sending a statement, of their account with a check as payment of the balance, and a recognition of such payment and of its purpose by the defendant.

The contract between the parties was in writing. It was for a stated amount of steel for the price of $900, to be paid for in the manner stated in the contract. It contained the following:

“Conditions of Sale.
“No< one has authority to depart from the conditions of sale named herein, nor to make representations other than those printed hereon, unless the same are written on this order and approved by the home office. No claim for material purchased locally will be entertained unless the written authority of the home office for such purchase is first secured. * * *
“Material proving defective will be replaced if reported promptly and same returned to us, but no claim shall be made for labor on such material or for damages therefor.
“It is distinctly understood and agreed that where general information and drawings are furnished for the proper placing of our products in the structure, such drawings are furnished gratis and form no part of this contract. These drawings must not be used before being rechecked by the purchaser or his architect, and the purchaser alone shall be responsible for the correctness of said drawings.
“Unless specifically provided otherwise, this quotation includes no bending or other special labor on the materials mentioned. * * *
“Consignees should carefully cheek material immediately upon its arrival at destination as no claim for shortage will be entertained unless filed with us within five days thereafter.”

There was no agreement in the contract to tag the articles, and no agreement is shown on the part of the defendant to make an allowance because they were not tagged. The letter of plaintiff dated September 9, 1914, is claimed to be an admission that the check was received as payment. When it is all read we think it will not bear such a construction as is indicated by the following language:

“Kindly forward us the bills for these charges so we can have same passed upon and credited to your account, if correct. The freight bills we will also have checked up.”

The record is clear that the entire amount of material which was to be furnished for $900 was furnished. We think the trial judge reached the right result. See Goldsmith v. Lichtenberg, 139 Mich. 163 (102 N. W. 627), and cases cited therein.

Judgment is affirmed, with costs to the plaintiff.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, Brooke, and Fellows, JJ., concurred.


text:
    HOLCOMB v. ALPENA POWER CO.
    1. Injunction — Right to Relief — Permanent Structures — Equity — Remedy at Law — Damages.
    Where the owner of land bordering on a lake has had knowledge for a number of years of the Increased.height of the water due to a dam of a power company, has stood by and allowed the company to spend a great deal of money in acquiring flowage rights and in making other large investments, and, in two different actions, has recovered and been paid damages for overflow for a series of years, he is not entitled to an injunction to compel the lowering of the dam to its former height, but the case will be remanded to take proofs on the question of damages in full satisfaction for the damage, past and prospective.
    2. Waters and Watercourses — Flooding Lands — Damages, Measure oe — Permanent Injuries.
    The measure of damages for the overflow of land bordering on a lake, due to the increased height of a dam, is the difference in value of the property as it is and as it would be if the dam had remained without alteration.

      Appeal from Alcona; Widdis, J.
    Submitted June 7, 1917.
    (Docket No. 4.)
    Decided September 27, 1917.
    Bill by Samuel Holcomb against the Alpena Power Company, Limited, to restrain the maintenance of a dam. Defendant filed a cross-bill to determine plaintiffs past, present and future damages from such maintenance. From a decree for plaintiff, defendant appeals.
    Reversed, and remanded.

      Joseph H. Cobb, for plaintiff.

      Hewry & Henry, for defendant.,

       On the question of liability for damming back water of stream by increasing height of dam, see note in 59 L. R. A. 874.
      On the question of liability of one damming back water of stream, for injury by flood, see comprehensive note in 59 L. R. A. 817, 28 L. R. A. (N. S.) 156.

   Moore, J.

The plaintiff is the owner of a valuable farm situated a short distance from the shores of Hubbard lake. Many years ago a dam was erected at the north end of Hubbard lake. This dam until 1906 was used by .the log owners in sluicing forest products out of Hubbard lake and driving them down the lower south branch of Thunder Bay river. It passed into the control of the Alpena Power Company, Limited, in the year 1905.

It is the claim of plaintiff that since 1905 and from that date the power company has raised the water in this lake from 2% to 3 feet higher than it was carried before 1906, and that this increased height of the water flows and injures the plaintiff’s farm. Litigation followed the making higher of the dam, which found its way to this court (see 175 Mich. 500 [141 N. W. 534]), where a verdict of $1,080.70 for damages for the years 1907,1908, and 1909 was affirmed. Later the plaintiff sued for injury to his crops for the years 1910, 1911, 1912, and 1913, and recovered a judgment for $1,398, which was paid. The plaintiff filed this bill, in the circuit court in chancery to compel the defendant to take down its dam to the point where it was' previous to 1906. The case was heard and a decree entered in favor of the plaintiff. From this decree the defendant has appealed to this court.

The plaintiff to maintain the issue upon his part, introduced the pleadings, charge of the court, verdict, and judgment of the court in the two law cases, and gave testimony tending to show the defendant has continued to maintain the water in Hubbard lake by means of this dam to practically the same heights from the year 1906.

The defendant filed a cross-bill and asked the-court to take testimony as to plaintiff’s damages and to render a judgment and decree for such damages, past and prospective, giving the defendant the right to maintain and operate its dam in the future the same as it has done since 1906. The court refused to entertain this proposition, deciding the two law cases were res adjudieata.

I quote from the brief of the plaintiff:

“The attorneys then stipulated they would take such testimony as either side desired to introduce upon the condition of the water in the lake, value of plaintiff’s property, and the value of defendant’s property bearing upon the question of whether or not the defendant is entitled to the relief claimed and prayed for in its cross-bill so that this proposition could be determined upon this appeal. Under this stipulation no evidence of damages was introduced; this question being left open for further proofs providing this court should decide the plaintiff is not entitled to the relief granted to him by the trial judge.”

We quote from the brief of defendant:

“Defendant in its cross-bill prays that it be permitted to maintain and operate its dam in its present condition. It further asks that, if the court shall determine that plaintiff’s land is damaged by reason of the facts set up in the bill of complaint, the court ascertain the extent to which plaintiff has been damaged and will be damaged for all time, and the amount of damages and award to the plaintiff such amount as permanent damages. * * * We ask that it remand the case to the circuit court for Alcona county in chancery, for the determination by that court of the damages, if any, to which plaintiff is entitled as prayed for in our cross-bill.”

Many interesting questions are presented and argued by counsel, but we think the testimony of the plaintiff simplifies the situation. We quote part of it:

“In 1905 I had full knowledge of the condition of the lake. In 1905 I had full knowledge of the condition of the lake and knew the condition of the dam.
“Q. You knew that as well as anybody that lived around there?
“A. Yes, sir.
“Q. From that time until the present time you have known very particularly about the lake and the dam?
“A. Yes; I have known the lake.
“Q. And when you started the first suit — before you started the suit you went to the dam and looked at it?
“A. Yes.
“Q. You have kept track of the dam ever since?
“A. Yes. * * *
“Q. How long before they built it did you have information that they were going to build it?
“A. Probably a year or such a matter. * * *
“Q. You had knowledge of all the cases that have been brought?
“A. I have had knowledge of some of them; yes. * * * ■
“Q. You had knowledge for the past ten years that the power company were acquiring flowage rights around this lake and dam, acquiring some and attempting to acquire others?
“A. Yes. * * * I remember the circumstances of George P. Smith and W. H. Le Roy coming to me in reference to buying my flowage rights on my farm for the purpose of raising the water in Hubbard lake. I think it was in 1905, away along about July, I think. They wanted to buy my flowage rights; they said the water would bother me. They said they were going to raise it and it would bother me and they wanted to buy my flowage rights.
“Q. Up to the time they came there and wanted to .buy your flowage rights how had they manipulated this dam in reference to letting the water go out the 1st of June or some time along there, and letting the lake run down?
“A. The water went down, until about 1906 the water wasn’t held up — until 1906 the water was not held up, except there might have been one or two years, or not so much; after that it was held up steady all the summer long, except one year, I think it was 1910, it was drawed out a little earlier.’.’

The record discloses that between 1906 and the beginning of the instant case defendant invested a good deal of money in acquiring flowage rights about the lake, and made other large investments, the value of which is largely dependent upon the continued use of the dam. About ten years were allowed to intervene after the erection of the dam before the filing of this suit.

It is probable, under the cases cited by his counsel, that if plaintiff: had promptly appealed to the chancery side of the court, he could have made a case for injunctive relief, but he did not see fit to do so. Knowing the dam was to be increased in height, he took no steps to prevent it, but appealed to the law side of the court, where he has recovered and been paid damages for overflow for a series of years.

The principle involved in the case is not new in this court. We shall not quote from the cases, as they are so easily accessible. Some of them are Jacox v. Clark, Walk. Ch. 249; Payne v. Paddock, Walk. Ch. 487; Blake v. Cornwell, 65 Mich. 467 (32 N. W. 803) ; Miller v. Cornwell, 71 Mich. 270 (38 N. W. 912) ; McKee v. City of Grand Rapids, 137 Mich. 200 (100 N. W. 580; Howard v. Bellows, 148 Mich. 410 (111 N. W. 1047); Reason v. Peters, 148 Mich. 532 (112 N. W. 117) ; Cornwell Manfg. Co. v. Swift, 89 Mich. 503 (50 N. W. 1001) ; Allen v. Electric Co., 144 Mich. 370 (108 N. W. 79, 115 Am. St. Rep. 453); Stock v. City of Hillsdale, 155 Mich. 375 (119 N. W. 435) ; Morrison v. Power Co., 181 Mich. 624 (148 N. W. 354).

We think the judge erred in the instant case in granting injunctive relief, and that he should have permitted the testimony offered on the question of damages.

The decree is reversed, and the case is remanded to take proofs on the question of damages in full. These should be computed upon the basis of the difference in value of plaintiff’s property as it is, and as it would be if the dam had remained as it was in 1905. The defendant will recover its costs.

Kuhn, C. J., and Stone, Bird, Steere, Brooke, and Fellows, JJ., concurred. Ostrander, j., did not sit.


text:
    STAPLETON v. INDEPENDENT BREWING CO.
    1. Automobiles — Liability of Owner — Negligence—Statutes.
    Under Act No. 302, Pub. Acts 1915, § 29 (1 Comp. Laws 1915, § 4825), providing that the owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle when it is being driven by another with his express or implied consent or knowledge, where the owner loans it to a company for use in its business and a wagon and team belonging to a third person are injured as the result of the negligence of the company's driver, the owner is liable.
    2. Same — Statutes—Constitutionality.
    Act No. 302, Pub. Acts 1915, § 29, relating to the liability of the owner of a motor vehicle for injury occasioned by negligence in operation while it is being driven by another by his express knowledge and consent, while safeguarding the rights of persons having occasion to use the streets, does not unreasonably infringe upon the rights of those able to own automobiles^ and is within the police power of the State.

    Error to Wayne; Shepherd, J., presiding.
    Submitted June 22, 1917.
    (Docket No. 130.)
    Decided September 27, 1917.
    Case in justice’s court bj. William J. Stapleton against the Independent Brewing Company for. the negligent killing of plaintiff’s horse. There was judgment for defendant, and plaintiff appealed to the cir-. cuit court by writ of certiorari. Judgment for plain-, tiff. Defendant brings error.
    Affirmed.

      J. O. Murfin (Howard, M. Campbell, of counsel), for appellant.

      ‘Guy W. Moore and Hal. P. Wilson, for appellee.

       On liability of owner of automobile when car is being used by borrower or hirer, see notes in 33 L. R. A. (N. S.) 81; 37 L. R. A. (N. S.) 834; 47 L. R. A. (N. S.) 662; L. R. A. 1916A, 957.

   Moore, J.

This suit arises as a result of an automobile accident. The suit was commenced in justice’s court to recover the sum of $375 for damages done, as a result of the accident to a wagon and team of horses belonging to plaintiff. The automobile which caused the accident was owned by the defendant, but at the time of the accident above-referred to it had loaned it to the Detroit Axle Company to be used in the Detroit Axle Company’s business, and at this particular time the automobile was being, driven by an employee of the Detroit Axle Company. The record discloses the following:

“Q. On this particular occasion did you know that this automobile was being used by the Detroit Axle Company?
“A. Yes, sir.
“Q. And it was with the consent of the Independent Brewing Company?
“A. Yes, sir.”

Counsel for appellant say there is but one question represented for determination — i.e.;

“If an employee of the Detroit Axle Company, engaged in that company’s business, negligently operates an automobile owned by another party, is the owner of that automobile liable where there is no relation of master and servant, but where the automobile is so used with the consent of the owner?”

This question involves a construction of section 29 of Act No. 302 of the Public Acts of 1915 (1 Comp. Laws 1915, § 4825). The portion of that section necessary to an understanding of this case reads as follows:

“Sec. 29. Civil Actions. Nothing in this act shall be construed to curtail or abridge the right of any person to prosecute a civil action for damages by reason of injuries to person or property resulting from the negligence of the owner or operator or his agent, employee or servant, of any such motor vehicle, or resulting from the negligent use of the highway by them or any of them. The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle, whether such negligence consists in violation of the provisions of the statutes of this State or in the failure to observe such ordinary care in such operation as the rules of the common law require: Provided, That the owner shall not be liable unless said motor vehicle is being driven by the express or implied consent or knowledge of such owner.” * * *

Counsel say:

“The statute itself does not purport to give a cause of action on the facts of this case. * * * As the statute now stands this section is merely declaratory of the common law. If it was intended to make the owner liable no matter by whom the car was operated, it would have been very easy to say so, but the statute does not purport to use any such language. An analysis of the proviso is interesting? the proviso reads: ‘Provided, that the owner shall not be liable unless said motor vehicle is being driven by the express or implied consent or knowledge of such owner.’ If the legislature intended to make the owner liable, no matter by whom the car was driven, the language employed would probably have been: ‘That the owner shall be liable if said motor vehicle is being driven,’ etc. * * * It does not so state.”

This argument is answered by the reading of the statute:

“The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle.”

And the proviso contains the exceptions to that liability. We quote again from the brief of counsel:

“If the construction contended for in the previous subdivision of this brief is not upheld, it necessarily follows that the statute must be deemed to impose a liability upon the owner of an automobile for an accident happening through its operation whether the owner is at fault or not. A statute of this description would violate both the Federal and State Constitutions. It would constitute a deprivation of property without due process of law and would be so obviously unjust, oppressive and arbitrary as to contravene the fundamental rights of a citizen. At the outset it should be borne in mind: ‘An automobile is not a “dangerous instrumentality” in the sense in which that term is used in the law.’ Brinkman v. Zuckerman, 192 Mich. 624 (159 N. W. 316), decided by our Supreme Court September 26, 1916; Hartley v. Miller, 165 Mich. 115, 119 (130 N. W. 336, 33 L. R. A. [N. S.] 81) ; Cunningham v. Castle, 127 App. Div. 580 (111 N. Y. Supp. 1057) ; McIntyre v. Orner, 166 Ind. 57 (76 N. E. 750, 4 L. R. A. [N. S.] 1130, 117 Am. St. Rep. 359, 8 Am. & Eng. Ann. Cas. 1087); Jones v. Hoge, 47 Wash. 663 (92 Pac. 433, 14 L. R. A. [N. S.] 216, 125 Am. St. Rep. 915); Lewis v. Amorous, 3 Ga. App. 50 (59 S. E. 338). It is not the ferocity of automobiles that is to be feared, but the ferocity of those who drive them. Until human agency intervenes, they are usually harmless. * * * Has the legislature power to say that the Independent' Brewing Company, totally and wholly without fault, with nothing whatsoever to do with the situation, shall be liable for that accident? Our Supreme Court has already held in substance and effect that such a liability may not be imposed by the legislature. Daugherty v. Thomas, 174 Mich. 371 (140 N. W. 615, 45 L. R. A. [N. S.] 699, Am. & Eng. Ann. Cas. 1915A, 1163).”

So far as the cases cited by counsel are applicable they do not sustain the contention of counsel. The quotation from Brinkman v. Zuckerman, supra, should contain two or three more lines reading:

“An automobile is not a ‘dangerous instrumentality’ in the sense in which that term is used in the law; and the relation between the owner of the car and his chauffeur is determined in the absence of a statute by the general rules of law relative to master and servant.”

We think this intimates that the general rules of law may be changed by statute. The case of Daugherty v. Thomas, supra, construed certain provisions of Act No. 318 of the Public Acts of 1909. Act No. 33, Public Acts of 1909 (3 Comp. Laws 1915, § 15431), provided:

“Every person who takes or uses without authority an automobile or other motor vehicle without intent' to steal the same * * * shall, upon conviction,” etc.

In the case of Daugherty v. Thomas this court discussed at length all the issues involved in the instant case. In concluding its opinion-it was said of Act No. 318, Public Acts of 1909:

“Had this provision of the statute been followed by language indicating that the owner should not be liable in case the automobile or other motor vehicle was taken or used in violation of Act No. 33 of the Public Acts of 1909, the infirmity would haye been cured.”

Acting strictly along the lines suggested in this opinion the legislature in 1915 enacted Act No. 302, § 29 (1 Comp. Laws 1915, § 4825),. containing the following:

“* * * The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle: * * * Provided, That the owner shall not be liable unless said motor vehicle is being driven by the express or implied consent or knowledge of such owner.”

It is true that the automobile has become so perfected that it may not be classed as a “dangerous instrumentality” when intelligently managed. It will not shy, balk, back up, or run away when properly directed, but may do all of these when managed by an inexperienced, incompetent, or reckless driver. When in the control of such a one it becomes an exceedingly destructive agency as the daily toll of lives and the many injuries to persons chronicled by the newspapers attest. If the owner of such agency consents to turn it over to the control of an incompetent or reckless chauffeur he is not deprived of any legal right by holding him liable for its negligent operation when in such control and a greater degree of safety to the general public is likely to follow.

The present statute, while safeguarding the rights of persons having occasion to use the streets, does not unreasonably infringe upon the rights of those able to own automobiles. The owner of an automobile is supposed to know, and should know, about the qualifications of the persons he allows to use his car, to drive his automobile, and if he has doubts of the competency or carefulness of the driver he should refuse to give his consent to the use by him of the machine. The statute is within the police power of the State.

Judgment is affirmed, with costs to the plaintiff.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, Brooke, and Fellows, JJ., concurred.