author: Kuhn, J.

text:
    BOSEK v. DETROIT UNITED RAILWAY.
    1. New Trial — Affidavits—Newly Discovered Evidence.
    The refusal of a new trial, on the ground of newly discovered evidence that is rebutted by counter affidavits and that is found by the court not to be credible, after hearing the testimony orally, and seeing the proposed witnesses, will not be reversed on error.
    2. Same — Cross-Examination—Trial—Witnesses.
    Nor should the trial court grant the motion on the ground that one of plaintiff’s witnesses after being examined and cross-examined left the court and could not be produced for further cross-examination at the request of defendant’s attorney who failed to ask for a continuance or to move that the testimony given by the witness be struck out.
    3. Same.
    A new trial was not warranted on the ground that defendant’s counsel learned after the trial that certain material witnesses in favor of plaintiff had been previously arrested, no inquiry having been made of them as to their records and no showing of diligence or inquiry as to this point being presented.
    4. Amendment — Trial—Pleading.
    No formal written amendment of plaintiff’s declaration is required, on request for a correction at the trial.
    5. Same — Specific Averments.
    The amendment of a declaration in a personal injury action that averred injury to plaintiff’s head, so as to admit testimony establishing a fracture of plaintiff’s skull, was a proper exercise of the court’s 'discretion.
    6. New Trial — Weight of Evidence.
    In reviewing the denial of a motion for new trial on the ground that the verdict was against the weight of the evidence, this court recognizes the principles that always govern trial courts in determining the question, as aided also by the presumptions arising from his superior opportunity to determine the credibility of witnesses.

      7. Same — Conduct of Counsel — Error not Prejudicial.
    Argument of counsel tending to enhance damages was not prejudicial where defendant’s attorneys conceded that if a legal liability was established the verdict was not excessive.
    Error to Wayne; Murphy, J.
    Submitted January 7, 1913.
    (Docket No. 15.)
    Decided April 8, 1913.
    Case by Anna Bosek against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Joslyn and A. B. Hall, for appellant.

      Dohany & Dohany, for appellee.
   Kuhn, J.

On Saturday evening, October 29, 1910, the plaintiff, a young woman 23 years of age, left her home on Widman Place in the city of Detroit to attend a dance on Russell street, between Canfield and Willis streets. She left at half past 8, boarded a Baker street car, and transferred to a cross-town car at Chene and Forest. These cars have doors at both ends and also in the center on one side of the car, with two steps leading down to the pavement. The car was proceeding along Forest street, and plaintiff was seated in the middle of the car, intending to get off at Russell and Forest. After the car passed Riopelle street, immediately east of Russell, the plaintiff claims she rang the bell for Russell street, where the car stopped. It is her claim that she started to get out of the center door while the car was standing still, that she took hold of the side of the car with her right hand was on the last step with her right foot and about to step off with her left foot when the car jerked and started up. The plaintiff does not remember what happened after that, but it is unquestioned that she was taken to the Red Cross Hospital, where she remained unidentified and in an unconscious condition for a period of ten days. It is conceded that plaintiff has suffered serious injuries, and no complaint is made as to the amount of the verdict, the liability being established. It is the claim of the defendant, as stated in the brief—

“That the car never stopped at the corner of Russell and Forest, b.ut was going at a fair rate of speed; that the plaintiff either fell off or jumped off the car at the corner described, while the same was in motion and was thereby injured.”

The assignment of error mainly relied upon by the defendant is the refusal of the court to grant a new trial. The grounds for the motion were:

(1) Newly discovered evidence.
(2) Failure to produce A. J. Steber, a witness for plaintiff, for further cross-examination.
(3) Newly discovered evidence with regard to plaintiff’s witnesses.
(4) Because no amendment was filed to the declaration covering concussion of the brain, while testimony was admitted upon the subject.
(5) Because the verdict is against the weight of the evidence.

Defendant’s counsel, at the close of the trial, learned of a man named Miller, who claimed to be acquainted with three of the plaintiff’s witnesses, Frank Kurkowski, Steven Koscielniak, and Edward Kwitkowski. Miller was employed by the defendant at a salary of $3 per day “to go to work and see what he could find.” Miller claims to have met the three witnesses in question on the evening of the day he was hired and engaged them in a game of cards, and that in the conversation all three of the witnesses admitted having committed perjury on the trial of this case. When this story was reported to defendant’s counsel, he made plans to corroborate it, if possible, and for that purpose secured the services of two private detectives from Chicago, who accompanied Miller and tried to engage the three witnesses in conversation concerning the testimony they had given upon the trial, in order that they might hear what was said, but it did not result in proof being obtained to corroborate Miller’s statement. Walter Kowalski, who had been in business with Miller, made an affidavit which deals with an alleged conversation with John A. Kokowicz, a law student in the employ of plaintiff’s counsel, who, it is claimed, attempted to get him to testify falsely in this case for a certain remuneration. Kokowicz was not a witness on the trial, and the affidavit was used, it is assumed, for the purpose of substantiating Miller’s claim that witnesses for the plaintiff had been induced to do something wrong. The record discloses that the affidavits of Miller and Kowalski were laid before the prosecuting attorney of Wayne county before the motion for a' new trial was made, and the arrest of the three witnesses implicated was ordered and they were taken into custody. They were submitted to rigid examinations, and, at the direction of the prosecutor, were discharged from custody. It also appeared on the motion for a new trial that Miller had a criminal record, and the affidavits of several police officers of the city were offered to show that his reputation for truth and veracity was bad. The learned trial judge, on the motion for a new trial, made the following statement:

“Let the record show that the motion for a new trial in this case was heard and submitted on affidavits a week ago. After a careful examination of the affidavits I came to the conclusion that the deponents should be examined in open court, and subpoenas were issued on behalf of the court fixing the hearing as for this morning. As the result of this hearing, I am satisfied that the stories of both Miller and Kowalski are pure fabrications. I place no credence whatever in their statements. If it were not for the fact of the prosecuting attorney having already gone into this matter at my request, and come to certain conclusions about it, I would order both of these men into custody; but I do not think anything would be gained by doing that. The testimony of Frank Kurkowski is very satisfying to me. The other witnesses, Koscielniak and Edward Kwitkowski, are men of inferior intelligence, and, of course, their testimony is to be viewed and weighed in the light of their mental capacity or incapacity. I do not think it is necessary to pass upon whether Koscielniak and Kwitkowski were telling the truth about the happenings to which they testify. The motion is therefore denied.”

The trial judge was in a position to note the appearance and conduct of the various witnesses upon the stand. The affidavits of Miller and Kowalski being rebutted by counter affidavits and being found inherently improbable by the trial judge, were properly rejected by him. 29 Cyc. p. 905.

It is urged that a new trial should be granted because A. J. Steber, a witness for plaintiff, was not produced when called for further examination. During the trial 24 witnesses were sworn and testified; Steber being the fifth witness called. At the close of the testimony the following occurred:

“Mr. Hall: I will ask if the gentleman from Mont-rose is still to be had — Mr. Steber.
“Mr. Dohany: He is not in the city; you didn’t say you wanted him; if we had known you wanted him, we could have kept him.”

No intimation was given at the time of his examination that he would be further required. It is claimed that the information regarding which further cross-examination was desired did not reach counsel until'shortly before the request was made, but, in view of the statement of counsel that he could not be produced, a request for a continuance or a motion to strike out his testimony should have been made. This not having been done, it cannot be urged upon a motion for a new trial.

It appears from the affidavit of counsel for defendant filed in support of the motion for a new trial that subsequent to the trial he learned that several of the witnesses for plaintiff had been arrested, and it is claimed that as no opportunity was had to cross-examine them with reference to these arrests a new trial should be granted. No inquiry was made on cross-examination as to their records, and no issue was made for the introduction of impeaching testimony upon this point. This evidence was within reach of the defendant while witnesses were upon the stand if inquiry had been made regarding it. No diligence has been shown on the part of counsel to obtain this information at the time of the trial, and no showing is made to warrant a new trial on this ground. See Canfield v. City of Jackson, 112 Mich. 120 (70 N. W. 444) ; Grand Rapids Electric Co. v. Manufacturing Co., 142 Mich. 4 (105 N. W. 1); Burke v. Electric Co., 147 Mich. 172 (110 N. W. 524) ; Blickley v. Luce’s Estate, 148 Mich. 233. (111 N. W. 752) ; North Michigan Land & Livestock Co. v. Kneeland, 149 Mich. 495 (112 N. W. 1114); Storch v. Rose, 152 Mich. 521 (116 N. W. 402); Spring v. Perkins, 156 Mich. 327 (120 N. W. 807).

During the trial a medical witness of plaintiff was allowed to testify as to the fracture of the skull. Upon objection being made, it was discovered-that the declaration averred an injury to the head but did not designate it. Upon motion of counsel, an amendment was allowed to cover, this testimony. Complaint is made because no formal written amendment was- filed. This it was not necessary to do. Johnston v. Insurance Co., 106 Mich. 96 (64 N. W. 5) ; Farnam v. Doyle, 128 Mich. 696 (87 N. W. 1026). The amendment was one within the discretion of the trial judge, and its allowance was not error. Edwards v. Village of Three Rivers, 102 Mich. 153 (60 N. W. 454) ; Groat v. Railway, 153 Mich. 165 (116 N. W. 1081); Gates v. Beebe, 170 Mich. 107 (135 N. W. 934).

Is the verdict in this case so clearly against the weight and preponderance of the testimony as to warrant this court in overruling the decision of the trial judge? This court, in Hintz v. Railroad Co., 132 Mich. 305, 308 (93 N. W. 634, 635), in speaking of the power of this court in this regard, stated the rule that should govern, as follows:

“In exercising it, we are bound to recognize the principles which have always governed trial courts in determining whether or not verdicts should be set aside. We are also bound to bring to the support of the decision of the trial judge all reasonable presumptions which arise from his superior opportunity to determine the credibility of witnesses. When, however, in accordance with these principles, it is apparent from the record, notwithstanding every reasonable presumption in support of his decision, that the trial judge erred in refusing to set aside the verdict on the ground that it is against the weight of the testimony, the duty of this court to overrule that decision is manifest. Whipple v. Railroad Co., 130 Mich. 460 (90 N. W. 287) ; Baldwin v. Railway Co., 128 Mich. 417 (87 N. W. 380) ; Cole v. Railway, 132 Mich. 122 (92 N. W. 935).”

Bringing to the support of the decision the presumptions referred to, we are of the opinion that the trial court on this record did not err in refusing to set aside the verdict.

Error is assigned because of statements of counsel made to the jury in the closing argument. In view of the statement made by defendant’s counsel that if there was legal liability on the part of the defendant the verdict was not excessive, it cannot be claimed that the argument of counsel, if improper, was prejudicial to the defendant’s case. Error, to be reversible, must be prejudicial. Granger v. Darling, 156 Mich. 31 (120 N. W. 32). In disposing of a similar question in the case of Houser v. Carmody, 173 Mich. 121 (139 N. W. 9, 14), this court said:

“The question is whether the language complained of in the argument to the jury was so extreme as to justify a reversal — whether the defendant has been prejudiced thereby. This court has said that it is not disposed to reverse cases because of impassioned arguments, unless it clearly appears that such arguments are unwarranted by the evidence, and probably contributed to the result. In view of the moderate amount of the verdict rendered by the jury and the abundant support in the testimony for such verdict, we are satisfied that the impassioned arguments of plaintiff’s attorney did not work prejudice to defendant.”

The other errors complained of relate to rulings of the court with reference to the admission of testimony. No prejudicial error was committed in relation thereto.

Judgment is affirmed, with costs.

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


source: Caselaw Access Project

author: Stone, J. Ostrander, J.

license: Public Domain

text:
    NOACK v. WILLIAMS, DAVIS, BROOKS & HINCHMAN SONS.
    1. Landlord and Tenant — Liability for Personal Injuries— Statutes — Automatic Gates — Elevators — Negligence—Who is Tenant. ,
    Act No. 285, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §4020), requiring the owner, agent or lessee to provide automatic gates at elevator openings in manufacturing establishments, workshops, hotels or stores, applies to a lessee from a tenant, after the expiration of the term of such sublessee who obtains oral permission for a valuable consideration to hold over for a stated period in order to remove his property.

    2. Negligence — Elevators—Personal Injuries — Gates.
    The question of contributory negligence of plaintiff’s decedent in falling down an unguarded elevator shaft, which he did not know was unprotected, having received no warning of any violation of statute, was a proper one for the jury.
    Error to Wayne; Hally, J.
    Submitted January 9, 1913.
    (Docket No. 2.)
    Decided April 8, 1913.
    Case by Martha Noack, administratrix of the estate of Carl Noack, deceased, against Williams, Davis, Brooks & Hinchman Sons, a corporation, for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Keena, Lightner, Oxtoby & Oxtoby, for appellant.

      Dohany & Dohany, for appellee.

      The question of the liability of the owner for injury to tenant’s guests or employees by defect in premises is treated in a note in 17 L. R. A. (N. S.) 1161. And as to the liability of a landlord for injury to tenants from defects in premises, see note in 34 L. R. A. (N. S.) 798.

   Stone, J.

This suit was brought to this court by writ of error, to review a judgment entered in the circuit court for the plaintiff for $3,000. Plaintiff’s intestate, Carl Noack, aged 49 years, was instantly killed January 2, 1911, in the elevator shaft of the Jeffers building at Saginaw. The building belonged to Elizabeth Champ, legatee of Michael Jeffers, deceased, and was first leased by Michael Jeffers to the Smart & Fox Company on February 29, 1904, for the term of ten years from and after November 1, 1905. The interest came to Miss Champ later, and the lease was formally assigned to her by the administrator of the estate of Michael Jeffers, deceased, March 8, 1906.

The premises were sublet by the Smart & Fox Company (Lee, Cady and Smart, owners) to the defendant, sometimes known as the Michigan Drug Company, and operating m Saginaw as the Saginaw Valley Drug Company. Miss Champ testified that she did not recognize any one except the Smart & Fox Company as tenants, yet she knew of the occupancy of the defendant when it went in, and was consulted about it. The defendant had been in possession four or five years. It is conceded that for the purposes of this record the Saginaw Valley Drug Company, the Michigan Drug Company, and Williams, Davis, Brooks & Hinchman Sons are identical; and Lee & Cady and the Smart & Fox Company are identical.

In the fall of 1910 or earlier, the defendant had leased new quarters in Saginaw, and had agreed to vacate the Jeffers-Champ store by January 1, 1911. Defendant started to take its goods out in December ; but, having some trouble getting into its new building, it could not vacate the old store at the time it had agreed to, and it applied to the Smart & Fox Company (Lee & Cady) for permission to hold over for a limited number of days, either eight or nine, which was granted, and a lump sum was agreed upon and paid by defendant for the privilege. It appears that by January 6, 1911, Lee & Cady, under the name of the Smart & Fox Company, went into possession of the building in question. On January 2, 1911, defendant still had in the old store and on the dock some carboys of acid and other goods, and there were some fixtures in the building to be removed.

Plaintiff’s intestate was an employee of one Michael Mutschler, a carpenter contractor, who had been employed by defendant to take down in the old store, and remove to and put up in the new store, some of the shelving, show cases, a dummy elevator, etc. Plaintiff’s intestate was employed by Mutschler to assist in this work. At the rear of the store was a broad ledge, which, with the building itself, formed the loading platform. Double doors on the alley guarded the elevator on the left and the passageway alongside the elevator leading to the first floor of the building. The elevator landing was above the level of the alley and on a level with the platform of an ordinary wagon; the height of the ledge being 3% or 4 feet, and the width of the ledge being 23 inches. There was an automatic gate on the elevator shaft, at the landing, on the inside of the store, but no automatic gates on the alley side, or outside of the elevator ; instead,- however, there were solid wooden doors on rollers, and by the undisputed evidence such doors were rolled away, thus leaving an opening and no protection at the time of the injury complained of, upon the alley or outside of said shaft, and the elevator was in the upper part of the building at that time. The alley, so called, was a covered driveway on the west side of the building, was 25 or 30 feet wide, open at both ends, and having windows on the outside. It was not dark in the daytime in the alley, and teams and other objects could be plainly seen there. The outside doors were 4 feet wide and of the same width as the elevator shaft. The barrier on the left of the elevator (looking west) was 3% or 4 feet high, and one could look over this barrier and see whether the elevator was up or down. Approaching the building or the elevator shaft from the alley, one would have to climb up 3% or 4 feet to get into the building, and could go across the elevator, if it was there, or through a passageway at the right of the elevator. One approaching the alley from the store, going west, could go across the elevator if it was there, or go along the passageway to the left of the elevator.

The accident or injury happened about 1:30 o’clock in the afternoon. The principal conflict or disagreement in the testimony is as to the extent of decedent’s acquaintance with the location, and its surroundings.

Plaintiff’s witness Joseph Neuman testified that he and decedent were working on the first floor trying to pry a show case away from the wall; that they could not get it away with the tools they had and thought it better to get something to pry with. Neuman suggested to decedent that he go out and get a couple of pieces of board, whatever he could find, to pry with. Witness knew there were some boards in the alley because he had been out there before, and decedent knew it. There were three ways in which decedent could have gone to the alley for these boards; he could have gone out another door entirely (a door farther to the south), which was just as near as the door in question, or he could have gone to the left-hand side of the elevator and jumped down into the alley, or, if the elevator was on the first floor and the elevator gate was up, he could have gone across the elevator platform. Neuman testified that he started for the alley, but he did not follow him to see how or which way he went. Almost immediately after Neuman saw decedent, he (Neuman) learned that there had been an accident, and decedent was down the shaft. Neuman further testified that he and decedent had been working there in that store three or four days; that witness had occasion to pass the elevator 10 or 15 times a day; that decedent had probably passed it the same number of times, and must have known it was there; that if the inside gate was down the elevator would either be at one of the upper floors or down in the basement, and if the elevator was level with the ground floor the gate would not be there; that the gate could be plainly seen by any one with ordinary eyesight, and decedent did have ordinary eyesight, and did not wear glasses; that on the different occasions that the witness Neuman had gone out into the alley, some three or four times, he had jumped out into the alley unless there was a team there, and then he walked out over the wagon and then jumped, or else he went out the other door, which was probably 20 feet to the left; that it would be a man’s choice whether he would take one door or the other.

Another witness for the plaintiff, Fred W. Hillman, testified that he was working in this store on the day in question; that his work was to take care of the cellar and furnace. The witness testified that he had not seen decedent the morning he was killed, and did not know the man; that witness had been there every day up to the accident and had not seen decedent, who was not there at all; that at the time of the accident witness was on the first floor, between 50 and 70 feet away from the freight elevator. He describes how he went down into the basement by way of the stairs and found deceased lying there unconscious.

Michael Mutschler, another witness for the plaintiff, testified that he had the contract of moving all this material; that he stared in about the 12th of December to put some shelving for the drug company into the new store, and took the old shelves out of the old store; that he had hired decedent, and decedent was one of the men that worked for him. He also hired Neuman and the other man. He testified that decedent had been working for him on this occasion some two weeks. He further testified that during that time decedent had worked in the new building; that that was where they were doing the work; that he worked in the new building that day when he got hurt. And the witness testified that he, himself, got hurt and went home, and that the superintendent took decedent down to the old building. The following is a part of his cross-examination:

“Q. Took him down to the old building?
“A. Yes, sir.
“Q. Now, then, the 10 or 12 days that he had been working there, how many of those days had he worked at the old building in all, and how many on the new building?
“A. He didn’t work any at the old, only that day.
“Q. The rest of the time he worked, did he, on the new building?
“A. Yes.
“Q. You are sure about that?
“A. Yes.
“Q. Did you keep a record of where the men worked?
“A. Yes, sir.
“Q. That is, you jot down the number of days they work for you?
“A. Yes.
“Q. But you would not write down where they would work, whether at one building or the other?
“A. Well, I can tell that he was working there in the new building all the time.
“Q. At the new building?
“A. Yes.
“Q. But you don’t know at what hour of the day he was sent from the new building over to the old building; you were not there?
“A. Well, I was down there about 9 o’clock.
“Q. Where were you working when you got hurt?
“A. I was in the new building.
“Q. In the new building or the old one?
“A. The new building.
“Q. Had you been working in the old building that day?
“A. No, there was nobody there only early in the morning.
“Q. And did you have to go home?
“A. Yes.
“Q. What time was it?
“A. Eight o’clock in the morning.
“Q. Well, why did the superintendent go and get Mr. Noack?
“A. Well, he could get — I don’t know; he could take any one he wanted to. He had to have two men down there.
“Q. Had you been down there?
“A. No, sir; I have men working down there, but they were not working there but probably a week. We had that lumber out, the shelving out of the old building, and took it up to the new building, and then we were working there again two weeks or so and worked that lumber all up.
“Q. What I am getting at is the day Mr. Noack got killed; was it the first day he ever worked in the old building?
“A. In the old building; yes, sir.”

The other witness who was present was Walter J. Harris, called by the plaintiff. He was the truckman engaged to move defendant’s things from the building in question to the new building, and he had five teams engaged in this work. He testified that he had not seen decedent in the building before the time of the accident. He testified that he was standing on the platform looking out into the alley, watching a team that was just driving away with a load. He testified:

“While the team was loading, Mr. Noack was- not there; when the team drove away, Mr. Noack was not there; the elevator went up, and still Mr. Noack did not come.”

A little while after the team had driven away, Mr. Harris noticed decedent standing on the window ledge opposite the elevator opening. Decedent seems to have come upon the platform from behind the witness, and turning to the left decedent faced Mr. Harris, and then missing his footing fell to the left sideways, into the elevator shaft, striking a beam seven or eight feet below, and was instantly killed. Witness testified positively that decedent had not climbed up from the alley, but he came in back of the witness. He further testified that any one could see whether the elevator was up or down, and they could see whether the gate was up or down, and one could see the barrier on the left side of the elevator. This, in substance, is the testimony contained in the record relating to the accident.

The evidence shows that the elevator in question was actually installed for the benefit of the defendant, and that defendant paid an additional rental by reason of the expense of the construction of such elevator, for its use.

Plaintiffs action is based upon section 12 of Act No. 285, Public Acts of 1909, making it the duty of the owner, agent, or lessee to provide, or cause to be provided, at all elevator openings in any manufacturing establishment, workshop, hotel, or store, proper trap or automatic doors or automatic gates so constructed as to open or close by the action of the elevators either ascending or descending. Defendant offered no evidence.

Defendant’s claims under its assignments of error are twofold:

(1) That it was neither agent nor lessee of the premises, and therefore, no duty to maintain automatic gates on the alley side of the shaft rested upon it under the statute.
(2) That, aside from the question of its negligence under the statute, plaintiff’s intestate was guilty of contributory negligence.

1. Appellant’s counsel say that it was practically conceded at the trial that but for the statute there would be no negligence on the part of defendant under the rule as stated in Moll v. Cartage Co., 82 Mich. 389 (46 N. W. 777). The submission of the case to the jury was on the theory that the absence of an automatic gate on the side of the shaft was, under the statute, evidence of negligence. Defendant claims that the statute must be strictly construed, and that the statutory duty is one imposed on the owner, agent, or lessee, and at no time was it the owner, agent, or lessee and especially that on the 2d day of January, 1911, it was not even a sublessee, but was simply a subtenant holding over by permission of the lessee.

Since the trial of this case at the circuit, the case of Barfoot v. White Star Line, 170 Mich. 349 (136 N. W. 437), has been decided by this court. The discussion of the question there involved and the authorities cited by Justice Ostrander are enlightening upon this subject, and we shall not specifically review that case more than to say that an examination of the different statutes in the several States will show that sometimes the term “owners or managers” is used, sometimes “owners or occupants,” and in other instances “owner or proprietor.”

No question is raised in this case that the defendant had not been, during its occupancy, and was not at the time of the injury, rightfully in possession of the premises. The undisputed evidence shows that the defendant had been in possession as subtenant under the lessee, Smart & Fox Company, who were tenants of Jeffers originally, and subsequently of Miss Champ. We understand that a “subtenant” is an undertenant; one who leases all or a part of the rented premises from the original lessee for a term less than that held by the latter. In other words, such subtenant is a tenant of a tenant; as the old books say, “one who held of the mesne lord.” The lessee so underleasing may distrain or sue for the rent due on the underlease. Lee v. Payne, 4 Mich. 106; 18 Am. & Eng. Enc. Law (2d Ed.), p. 658.

The undisputed evidence shows that, on the day of 'the death of decedent, the defendant was in possession of the premises under an oral arrangement with the lessee, founded upon a sufficient consideration. We fail to see any distinction between a subtenant and a sublessee. An oral lease for ten days is a valid lease, and the tenant is as much a lessee as though he were in under a written lease. The dominion and control which this defendant had over the premises in question were as great and complete as had been the case during any portion of its holding. It was the lessee of the lessee, and the relation of landlord and tenant existed between the lessee and the sublessee. We are of opinion therefore that the defendant was a lessee within the meaning of this statute.

As was said by the supreme court of Minnesota, in Tvedt v. Wheeler, 70 Minn. 161 (72 N. W. 1062), in speaking of a similar statute:

“It is a police regulation founded upon sound public policy, and courts ought not to strain or restrict by construction its language so as to impair its useful operation. It should be construed so as to effectuate the wise and humane purposes of its enactment.”

We think the trial judge did not err when he used the following language:

“I think the statute applies to either a lessee or a sublessee, the object being to compel the person who is in charge to provide a safeguard in connection with the labor that is employed in or about the place. Generally speaking, any man in possession and in command and control of a piece of property is a lessee whether he be called a lessee or a tenant. On the termination of the written lease belonging to the defendant, an arrangement was effected between the lessee and the sublessee, the sublessee being the defendant in this case, whereby its possession and control of the property was to continue for a certain additional period of time, the time not being definitely fixed, but a definite amount of money in a lump sum being paid for that tenancy. Under these circumstances, I think the application of the statute rests upon the defendant.”

2. Upon the question of claimed contributory negligence of the decedent, the question is a close one. Looking at the entire evidence in the case, we are not prepared to say that the decedent went into or exposed himself to a place of known danger; or that he did not exercise such care as an ordinarily prudent man would have exercised under like circumstances. There is evidence tending to show that when he stepped upon the platform behind Mr. Harris the latter was looking up the alley watching a load that was passing out, and that decedent’s attention seemed to be attracted in the same direction, and that in moving he made a misstep and fell into the elevator well. Had the elevator well been there guarded as required by the statute, it is very evident that the deceased would not have fallen. The absence of the statutory guard was at least the occasion of his fall. It was a question for the jury how long a time the decedent had been in and about the premises, and how well acquainted he was with them. Assuming that he had been there the length of time testified to by Mr. Neuman, at work inside the building, that would not necessarily charge decedent with knowledge of the fact that the westerly side of the elevator was not equipped with an automatic gate, as required by law.

It will be noted that in Barfoot v. White Star Line, supra, the question of contributory negligence, under circumstances somewhat similar, was held properly left to the jury.

In Preuschoff v. Brewing Co., 132 Mich. 107 (92 N. W. 945), plaintiff’s intestate was killed by falling through a trapdoor, from which the stairway had been removed, upon premises with which plaintiff’s intestate was well acquainted. It was held that, even though a fellow employee testified that he had warned deceased of the danger, his contributory negligence was still a question for the jury.

We call attention to the case of Murphy v. Veneer Works, 142 Mich. 677 (106 N. W. 211). That was an action for the death of a servant caused by his falling down an elevator shaft while moving a truck onto the elevator. The defendant was there charged with violation of a statutory duty. The circumstances are disclosed in the opinion; and it was there held by this court that whether the servant was guilty of contributory negligence under the evidence was a question for the jury. In that case plaintiff’s decedent had worked for the defendant three months, and had operated the elevator there involved for about six weeks.

Plaintiff’s counsel have also cited the case of Guggenheim v. Railway Co., 66 Mich. 150 (33 N. W. 161), a case where the testimony showed that decedent’s attention had been called to an approaching train by which he was killed, and the question was there left to the jury as to his contributory negligence.

In the instant case there is no claim that decedent was warned, and it does not clearly appear that he had reason to believe that defendant had violated the statute in question; and there is much force in the claim of plaintiff that under these circumstances the question of decedent’s contributory negligence was one for the jury.

See Engel v. Smith, 82 Mich. 1 (46 N. W. 21, 21 Am. St. Rep. 549). In that case plaintiff was injured by falling through a trapdoor, with the location of which and its surroundings he was familiar. It was there held that though a question of some difficulty, it not being free from doubt, it was proper that the facts were submitted to the jury.

Appellant’s counsel have called our attention to the cases of Bedell v. Berkey, 76 Mich. 435 (43 N. W. 308, 15 Am. St. Rep. 370); Pelton v. Schmidt, 104 Mich. 345-350 (62 N. W. 552, 53 Am. St. Rep. 462); Hutchins v. Sleigh Co., 61 Mich. 252 (28 N. W. 85). In Bedell v. Berkey it appeared that the plaintiff was wandering about in a dark, strange room where he had no business, and it was said that he was wrongfully in the place. We think that this cannot be said of decedent in the instant case as matter of law. In Pelton v. Schmidt the question of contributory negligence was held to have been properly left to the jury. The Hutchins Case is an exceptional one, in which the writer of this opinion was counsel, and it rests upon its own peculiar facts. We think it clearly distinguishable from the instant case.

Upon the whole record we are of the opinion that the question of decedent’s contributory negligence was one for the jury, and that the question was properly submitted to them by the trial judge.

Finding no error in the record, the judgment of the circuit court is affirmed.

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

Ostrander, J.

I concur on the ground that defendants were the lessees in control of the premises- and elevator.


author: Ostrander, J.

text:
    EDGERLY v. LADIES OF THE MODERN MACCABEES.
    1. Trial — Findings of Fact — Appeal and Error.
    When causes are tried by the court without a jury and findings are properly requested, it is contemplated by the statute and court rules that the court will find and state ultimate facts material to the issue, and, separately, conclusions of law based thereon; on error the questions usually presented in this court are whether there is testimony supporting the conclusions of fact and whether the facts found sustain the judgment.
    2. Same — Questions' Re viewable.
    Findings of fact supported by evidence will not be disturbed: the testimony need not be printed at all unless it is claimed that there is none to support a finding or that the court refused to find an undisputed fact considered to be material.

      S. Same.
    In such cases, on appeal, the Supreme Court sits to review errors of law only, and will not find facts or try the cause de novo.

    4. Same — Insurance—Fraternal Benefit Associations.
    Where, in an action on a benefit policy, it was claimed that an officer of the society had no authority to issue a dispensation relied on by plaintiff and necessary to plaintiff’s case, and the trial court made a finding that defendant conceded the officer’s authority to issue the dispensation but the record failed to sustain such finding, the question as to authority being a mixed issue of law and fact, this court will reverse the judgment and order a new trial.
    Error to Ingham; Collingwood, J.
    Submitted January 9, 1913.
    (Docket No. 40.)
    Decided April 8, 1913.
    Assumpsit by Harry A. Edgerly against the Ladies of the Modern Maccabees on a benefit certificate. Judgment for plaintiff. Defendant brings error.
    Reversed.-

      John B. Mcllwain, for appellant.

      Patrick H. Kelley, for appellee.
   Ostrander, J.

Plaintiff brought this action upon a life benefit certificate numbered 19,906, issued to Julia E. Edgerly August 24, 1894. A copy of the certificate is attached to the declaration. It recites that Mrs. Edgerly is a member of Central Hive No. 162, located at Lansing, Mich., entitled to all the rights, benefits, and privileges of membership, and at her death to receive one assessment upon the membership, but not to exceed $1,000 as a benefit to a person named in said certificate—

“Provided she shall have in every particular complied with the laws, rules and regulations of the order which are now or may hereafter be in force, and has not suppressed facts in regard to her health, age, habits, physical condition, personal or family history, or untruthfully answered any question in her application for membership or made any untruthful statements therein as shown by said application, which said application is hereby made a part of this certificate.”

Upon the back of the said certificate are printed certain conditions, among them the following:

“It is hereby stipulated and agreed by me that notice of an assessment, when published in the official organ of the order and mailed to my last known place of residence as shown by the records of the order, in compliance with the laws thereof, shall be accepted by me as personal notice of such assessment, and I on my own behalf and on behalf of my beneficiary or beneficiaries hereby expressly waive any claim against the order in case of death or disability arising while in default in making payment of an assessment so published and mailed as provided by the laws, and that any payment of dues or assessments by me or receipt thereof by any officer or member of the subordinate hive to which I belong, shall not be binding on the great hive until received by the great record keeper or great finance keeper. * * *
“It is expressly agreed that no officer or member of any subordinate body or any officer or agent of the great hive, Ladies of the Modern Maccabees, has any authority or right to waive a strict compliance with any of the provisions of the laws of the order relative to the payment of dues or assessments as they may be fixed or called from time to time; and it is expressly agreed that no claim shall be valid against the order under any certificate issued on this application which may arise while I am in default of making payment of any dues, fines, taxes, or assessments in the manner and within the time required by the laws of the order, or the by-laws of the subordinate hive to which I may belong, whether such default comes from my personal neglect or from relying upon any assurances by any officer or agent of this order, or any officer, agent, practice or custom of the subordinate body of which I am or may become a member.”

The plea was the general issue, with notice of certain special defenses. The cause was tried by the court without a jury, and, being requested, written findings were made and filed. The court found:

“Julia Edgerly became a member of the order of the Ladies of the Modern Maccabees by joining a subordinate hive in the city of Lansing on August 24, 1894, and there was issued to her benefit certificate number 19,906. By the terms of this certificate, it was agreed that, if said Julia Edgerly complied with and faithfully fulfilled the laws, rules, and regulations of said order, then, in event of her death, said order should pay to Nora Girardin, her daughter, a sum not exceeding $1,000. Nora Girardin died, and at the death of Julia Edgerly, Harry Edgerly, her son, as her only surviving heir, presented a claim to the great record keeper for the moneys due on this certificate. This claim was referred to the great executive committee of the order and by them rejected. Harry Edgerly brings suit, in this court, against the defendant order.
“The following facts are conceded:
“That Julia Edgerly became and was a member of the order on August 24, 1894. That Julia Edgerly died on December 8, 1910. That plaintiff, Harry Edgerly, succeeded to all the rights and benefits under certificate.
“That Julia Edgerly neglected to pay assessment No. 123 due in August, 1910, and that she neglected to pay assessments Nos. 124, 125, and 126 when they became due and payable in the months of September, October, and November of the same year.
“That on December 7, 1910, Julia Edgerly paid or caused to be paid to the record keeper of the subordinate hive in Lansing the several sums due and unpaid and made application for reinstatement. That at the time these payments were made Julia Edgerly could not furnish a certificate of good health, and shortly thereafter, in less than 30 hours, she died of a disease of which she was at the time of payment suffering.
“On the part of the defendant order it is conceded: That Harry A. Edgerly has at this time a right to commence suit in this court. That during the year of 1910 the order of the Ladies of the Modern Maccabees was discussing the proposition of raising their rates, and that a large number of members contemplated leaving and many actually did leave the order. That on July 1, 1910, the great commander, by virtue of the power vested in her by the constitution of the order, issued a dispensation. This dispensation was directed to the great record keeper, and instructed that officer to accept the dues of lapsed members and reinstate them up to January 1, 1911, without a certificate of health, as required by the rules of the order. Pursuant to these instructions, the great record keeper notified the record keepers of the subordinate hives, and the communication was given to the members. A communication from the great record keeper concerning the terms and privileges of this dispensation was given to the hive in Lansing of which Julia Edgerly was a member. That on the 1st of November, 1910, the great commander issued a second dispensation in terms annulling the dispensation of July, and requiring that, before the great record keeper received the dues or reinstated any delinquent member, said applicant should furnish a certificate of health.
“Under the rules of the order Julia Edgerly stood suspended on September 1, 1910, for the nonpayment of assessment No. 123. Members of the order some time during July or August received notice that under the terms of the July dispensation lapsed members would be allowed to reinstate at any time before January 1st, on payment of dues and without a certificate of health, as required by the rules of the order.
“Julia Edgerly would have had the right, on payment of dues and without furnishing a certificate of health, to be reinstated at any time before January 1st, if the dispensation of July had not been abrogated. Courts of justice do not regard forfeitures with favor, and they are never enforced, unless the evidence is clear that such was the intention of the parties. Home Life Ins. Co. v. Pierce, 75 Ill. 426. In a New York case, Homer v. Insurance Co., 67 N. Y. 478, prior to the time when payment became due, the president of the company indorsed upon a card, giving notice when payment was due, these words, ‘Payment extended until October 10, 1874.’ Defendant died September 19, 1874, after payment was due. Held to continue the policy in full force. In a California case the court say:
“ ‘We think these authorities sustain the point that, although the granting of the extension was not a binding contract so as to preclude the appellant from repudiating it at any time by notice to the assured, yet in the absence of any such repudiation, the acts and conduct of the company were such as to amount to a waiver of the provisions for forfeiture in the policy.’ Knarston v. Insurance Co., 140 Cal. 67 (73 Pac. 740).
“Viele v. Insurance Co., 26 Iowa, 9 (96 Am. Dec. 83) ; Dean v. Insurance Co., 62 N. Y. 642; Tennant v. Insurance Co. (C. C.), 31 Fed. 322.
“These questions then arise: What was the effect of the dispensation of November 1, 1910? Was notice of repudiation necessary? Although in life insurance time of payment is material, and cannot be extended against the assent of the company, when such assent is given,_ the court should be liberal in construing the transaction in favor of avoiding a forfeiture. Insurance Co. v. Norton, 96 U. S. 234; Insurance Co. v. Eggleston, 96 U. S. 572; Insurance Co. v. Mowry, 96 U. S. 544.
“Members who had lapsed, but who were relying on the provisions of the July dispensation regarding the health certificate to become reinstated, were entitled to notice of the repudiation of this provision. There is no proof that notice of any kind was given to any one that a dispensation was to be issued in November, 1910, annulling the provisions of the July dispensation regarding the furnishing of health certificates. There is no proof that after the great commander issued the November dispensation to the great record keeper any attempt was made to notify any of the active members of the order. There is no proof that any attempt was made to notify any of the lapsed members of its provisions. There is no proof that Julia Edgerly had any notice of the November dispensation.
_ “The record keeper of the subordinate hive in Lansing, of which Julia Edgerly was a member, had notice of the July dispensation. But it is an undisputed fact that on December 6, 1910, when she received the dues and the request for reinstatement from Julia Edgerly, she, the record keeper, did not know that the dispensation of November 1st had been issued or that the provisions of the July dispensation, waiving the furnishing of a certificate of health, had been annulled. This is part of the testimony of Mrs. Hodges. Some notice of repudiation should have been given to lapsed members. When an active member and an officer in the subordinate hive had no notice of the repudiation, can this court find as a matter of law that any definite number of days after the November dispensation was issued ought to have been as to lapsed members sufficient notice? It does not seem to this court that such finding would be justified.
“Under the facts and the law, this court finds for the plaintiff Harry A. Edgerly, and directs that a verdict be entered against the defendant, the Ladies of the Modern Maccabees, for the full amount claimed, with interest at 5 per cent, from February 8, 1911, at 5 per cent, and the costs of this court.”

Judgment was entered for the plaintiff for the face of the certificate and interest. Defendant’s counsel thereupon proposed findings after judgment, as follows:

“(1) That defendant is a fraternal beneficiary association, '"incorporated and doing business under the provisions of Act 119 of the Public Acts of 1893, as amended [Act No. 160, Pub. Acts 1901]. That its supreme governing and law-making body is made up of representatives from the membership.
“ (2) The certificate sued on in this case was issued upon a written application signed by the deceased, Julia Edgerly, dated August 24, 1894, in which it was agreed by the deceased that said application and the laws of the order now in force or thereafter adopted shall form the basis of her contract of beneficial membership, binding upon herself and her beneficiaries.
“ (3) That the by-laws of defendant in force during all the time complained of in this case provide that, if a member fails to pay an assessment during the month in which the same is levied, she shall stand suspended from all rights and benefits under the certificate held by her while under suspension. That during the first 30 days after suspension she may become reinstated by the payment of the assessment and dues then due to the finance keeper of her hive. That is, if she is under suspension for more than 30 days, she must not only pay all dues and assessments, but furnish a certificate of good health to be approved by the great medical examiner, before she can become reinstated. That, if she is under suspension for more than 60 days, she must not only pay the assessments and dues, but pass a satisfactory medical examination to be approved by the great medical examiner before she can become reinstated.
“ (4) That assessments 123, 124, 125, and 126 were duly levied, and notice given in accordance with the laws of defendant, and became due and payable from each member during the months of August, September, October, and November, 1910, respectively.
“(5) That on the last day of August, 1910, or near thereto, deceased, Julia Edgerly, called up the finance keeper of her hive in Lansing by telephone, being the person to whom the assessment should be paid, and informed her that she was not going to pay any more assessments but would drop out of the order.
“ (6) That Julia Edgerly did not pay assessment 123 during the month of August, and under defendant’s laws stood suspended September 1, 1910, from all rights and benefits of the order and she did not pay or offer to pay said assessment or any of the subsequent assessments until December 6, 1910.
“(7) That on December 6, 1910, Julia Edgerly was seriously and fatally ill, and could not furnish a certificate of good health, nor did she pass a medical examination, and died from the illness she was then suffering on December 8, 1910.
“(8) That on December 6, 1910, the daughter-in-law of the deceased, in an effort to reinstate the deceased, called the finance keeper of the hive to which Julia Edgerly belonged, Mrs. Hodges, to the house of Julia Edgerly, and there signed the name of Julia Edgerly to an application for reinstatement, and paid the finance keeper of the local hive certain sums of money sufficient in amount to pay the back dues, assessments, and also an assessment for December, 1910, which_ money was furnished by Harry Edgerly, the plaintiff, but no certificate of good health was furnished.
“(9) That on the 8th day of December, 1910, the finance keeper again went to the home of Julia Edgerly, and informed the daughter-in-law that it would be necessary to have a certificate of good health of Julia Edgerly before she could become reinstated, and that she would have to forward the certificate to the great medical examiner for approval before any reinstatement could be had. That without any consultation with Julia Edgerly, who died -a few hours thereafter, a certificate of health was drawn up showing she was then suffering from certain diseases, and signed by the daughter-in-law, but before the same was received at the headquarters said Julia Edgerly had deceased.
“ (10) At neither of the visits of the finance keeper to the home of Julia Edgerly on the 6th or 8th days of December, 1910, did she see the said Julia Edgerly or have any talk with her; the payments of the money and the signing of the papers being all done by the daughter-in-law.
“(11) That after the death of the said Julia Edgerly and the receipt of the money at headquarters $6.20 of the amount paid was returned to the said Harry Edgerly, who received the same, and has ever since retained it, and the balance paid by him was subsequently tendered to him and refused by him, all of which was done before the commencement of this suit.
“(12) Under defendant’s laws governing the payment of assessments and reinstatements of suspended members Julia Edgerly could not become reinstated December 6, 1910, without furnishing a certificate of good health, which could not be furnished as she was not then in good health, and which she did not furnish.
“ (121/2) The laws of defendant provide that said laws can only be amended in the following manner:
“ ‘Sec. 29. Any proposition to amend these laws shall he submitted by a member of the order or a subordinate hive, to the great executive committee or may be proposed by said committee at least ninety days prior to the review of the great, hive, and said proposition to amend shall be published in the official organ of the order in one issue thereof sixty days prior to the next review, provided the great hive by unanimous consent may consider any amendment submitted. The great record keeper shall submit all such propositions to amend the laws of the order in her report. No amendment shall be adopted unless it receives a majority of the votes of the members present voting thereon. All amendments adopted shall go into effect sixty days after their adoption unless otherwise ordered by the great hive.’
“(13) Plaintiff’s sole claim of right to reinstatement of Julia Edgerly on December 6, 1910,. by the payment of the assessments without a certificate of good health, is based upon a dispensation issued by the great commander on July 6, 1910, which read as follows:
“ ‘Office of the Great Commander,
“‘St. Louis, Michigan, July 6, 1910.
“ ‘To Emma E. Bower, located at Port Huron, State of Michigan—
“ ‘Ladies:
“ ‘Under and by virtue of the authority given me in the laws of the L. O. T. M. M., and believing that the best interests of the order will be thereby subserved, I hereby issue to your hive the following dispensation:
“ ‘Allowing reinstatement without certificates of good health or re-examination for one hundred and twenty (120) days from June 1, 1910. You will therefore be governed in accordance therewith and in relation thereto.
‘Given under my hand and seal of the L. O. T. M. M., this 6th day of July, 1910.
“ ‘Frances E. Burns, Great Commander.
“ ‘Emma E. Bower, Great Record Keeper.’
“(14) The only provision in defendant’s laws in force July 6, 1910, authorizing the great commander to issue any dispensation, is section 41, Laws of 1908, which reads as follows:
“ ‘Sec. 41. The great commander shall preside at all reviews of the great hive, and enforce all the laws thereof; she shall have the general superintendence of the order, with the power to grant dispensation when the good of the order may require, except for the admission or retention of unqualified persons to membership. The application for a dispensation shall be made on the proper blank, officially signed and sealed, and accompanied by a fee of $1.00, said fee to be placed in the general fund, of the order. Free dispensations may be granted by the great commander when the purpose is to complete the organization of new hives and transfer members thereto, or when the necessity therefor was not the fault or neglect of the hive, officer, or member for whose benefit it is issued.’
“(15) The dispensation above referred to was filed in the office of the great record keeper. It was not sent to the hives nor to the members. The great record keeper after the receipt of the dispensation, sent notice to the record keepers of the subordinate hives, which reads as follows:
“ ‘Official.
“ ‘Office of the Great Record Keeper,
“ ‘Port Huron, Mich., July 20, 1910.
‘To the Membership:
“ ‘The great commander has been requested by the great executive committee to issue a dispensation to allow members suspended over thirty days to reinstate without furnishing a certificate of health, to be in force from June 1st to January 1st, 1911. A member suspended June 1st, has under such dispensation until October 1st, to reinstate without a certificate of health or re-examination. A member suspended on July 1st, has until November 1st to reinstate. A member suspended August 1st, has until December 1st to reinstate. A member suspended September 1st, has until January 1, 1911, to reinstate.
[Signed] “ ‘Emma E. Bower,
“ ‘Great Record Keeper.’
“(16) On November 1, 1910, the great record keeper issued another dispensation in terms annulling the dispensation of July 6, 1910, and directed the great record keeper only to receive applications for reinstatement of members under suspension for more than 30 days by complying with the laws and furnishing a certificate of good health in addition to the payment of all assessments and dues. This was also filed in the office of the great record keeper.
“(17) Notice of this dispensation of November 1st was sent to the record keepers of the hives, but it appears the notice was not received by the record keeper of the Lansing hive.
“(18) Under defendant’s laws, the local finance keeper has no power of reinstatement of suspended members, but can only accept their application and forward the same to the great record keeper.
“(19) There is no evidence in the case that the deceased, Julia Edgerly, knew of or in any manner relied upon the dispensation of July 6, 1910, in becoming suspended September 1, 1910, or remaining under suspension. That she had no correspondence with any of the officers of the defendant, or talked with them in regard to her membership. That she had no «talk with the finance keeper of her hive about becoming reinstated after the last days of August, when she informed the finance keeper she would not pay any more assessments, but would drop out of the order. That during the month of September the deceased, Julia Edgerly, gave as a reason to her daughter-in-law for dropping out of the order that she was aggrieved at the amount defendant society had paid a short time prior thereto on settlement of a certificate held1 by her deceased daughter in defendant society. After the talk the last days of August over the phone above referred to, the deceased never thereafter informed the finance keeper that she desired to become reinstated, although both lived during the entire period in the city of Lansing.
“(20) There is no evidence in the case that the deceased was in any manner misled by the dispensation of July 6, 1910, in not paying her assessments within the time as required by the laws of the order.
“Defendant’s counsel asks the coúrt to amend a portion of the findings of fact contained in the opinion in the following particulars:
“(21) That part of the opinion which reads: ‘On the part of the defendant order it is conceded,’ and then follows: ‘That on July 1, 1910, the great commander, by virtue of the power vested in her by the constitution of the order, issued a dispensation,’ for the reason that defendant has never conceded that the constitution of the order ever empowered the great commander to issue any such dispensation, but, on the contrary, has persistently insisted the great commander has no power by dispensation to change the contract between the members in their associated capacity, nor did she attempt to do so by the dispensation issued, but only authorized the great record keeper to accept application for reinstatement of members who might apply, without a certificate of good health
“(22) That part of the opinion which reads, ‘pursuant to these instructions, the great record keeper notified the record keepers of the subordinate hives, and the communication was given to the members,’ is misleading. It should be amended so as to state that the communication was read in the hive to the members present, but further than that was not communicated to the members by any of the officers.
“(23) That part of the opinion which reads, ‘members of the order some time during July or August, received notice that under the terms of the July dispensation lapsed members would be allowed to reinstate at any time before January 1st, on payment of dues and without a certificate of health, as required by the rules of the order,’ should be amended to state that no notice was sent to any of the members by any of the officers, except the notice to the record keepers of the subordinate hives, and that neither the supreme officers nor the local officers sent any notice to the membership.
“(24) That part of the opinion which reads, ‘Julia Edgerly would have had the right on payment of the dues and without furnishing a certificate of health to be reinstated at any time before January 1st, if the dispensation of July 1st had not been abrogated,’ should be amended so as to strike out the word ‘right,’ as defendant has insisted that the rights of the members are fixed by her contract with the order, and that the great commander would have no power to change these rights, and that the acceptance of applications for reinstatement in conflict with the contract rights between the members and the society would be a mere indulgence or gratuity, available only to those who applied while the indulgence or gratuity was in force
“(25) That part of the opinion which reads, ‘Members who had lapsed, but who were relying upon the provisions of the July dispensation regarding the health certificate to become reinstated, were entitled to notice of the repudiation of this provision,’ should be amended in so far as the same may imply that the said Julia Edgerly relied on any such dispensation, as there is no proof in the case that she did rely upon the dispensation, or ever knew of it, but, on the contrary, her reason for becoming suspended, as stated by herself, was that she was aggrieved by the settlement made on the certificate held by her deceased daughter.
“ (26) That part of the opinion which reads, ‘There is no proof that after the great commander issued the November dispensation to the great record keeper any attempt was made to notify any of the active members of the order/ as the positive testimony of the great commander, Mrs.- Burns, is that notice of the November dispensation was sent to all the record keepers, although the testimony of Mrs. Hodges is that it was not received by her, and she did not know that a certificate of good health was necessary.
“(27) That part of the opinion which reads, ‘Some notice of repudiation should have been given to lapsed members/ as there were no vested rights created in the members by the dispensation of July 6, 1910, no change in the contract between the members and the society, and at most the dispensation was a mere indulgence or favor authorizing another officer to accept applications of lapsed members for reinstatement, and when withdrawn there was no repudiation of any portion of the contract rights between the deceased and the defendant.
“Conclusions op Law.
“Defendant’s counsel asks the court to specifically find on each of the following conclusions of law:
_ “(28) The articles of incorporation, the application, and the by-laws of defendant, which, together with the certificate, constitute the contract between the member and the defendant society, did not authorize or empower the great commander to set aside the by-laws, and allow the members to become reinstated in conflict with the by-laws. The great commander cannot waive the by-laws relating to the substance of the contract between the members in their associated capacity.
“(29) The deceased, as a member of defendant society, was chargeable with knowledge of the limitations upon the authority of its officers.
“(30) When the deceased lapsed her membership September 1, 1910, she had only the right of reinstatement provided'in the laws of the society, and the terms of her contract with the society, and no officer of defendant society had any authority under the laws to reinstate her except in the manner provided in the laws of the society.
“(31) The dispensation of July 6, 1910, did not change the contract rights between the deceased, Julia Edgerly, and the defendant society, with reference to .the payment of assessments and the rights of reinstatement within the time' and in the manner provided in its laws. At most, it was but a mere indulgence or gratuity authorizing another officer to accept applications for reinstatement without a certificate of good health, and did not create any vested right in the deceased. The permission could be withdrawn at any time by the same power that gave it in the first instance. Not having created any vested right in the deceased, its withdrawal did not take away any right from the deceased.
“(32) There is no evidence in the case that the deceased was in any manner misled by' the dispensation of July 6, 1910, in becoming suspended and remaining under suspension, and the affirmative proof is that she acted on her own judgment in dropping out of the society, and notified the finance keeper in advance of her intention to do so, and subsequently assigned as a reason therefor that she was aggrieved with the settlement made by defendant society on the death of her daughter under the certificate held by her daughter in defendant society.
“(33) Under the facts in this case, the deceased could not become reinstated December 6, 1910? without furnishing a certificate of good health, which she did not do, and at the time of her death was under suspension from September 1, 1910, and judgment should be entered for the defendant of no cause for action.”

The ruling was:

“Defendant having filed the several proposed findings of fact after judgment and at a hearing argued the same before the court, the several findings are either refused or given as noted below, the number referring to the number on the paragraph as in the copy filed with the court. These findings which were given in the previously filed opinion of the court are marked as refused.
“(2) Nos. 1 to 15, inclusive, are refused.
“(3) No. 16 is refused.
“(4) No. 17 is given.
“(5) No. 18 is given.
“(6) Nos. 19 to 25, inclusive, are refused.
“(7) No. 26 is given and the part of the opinion of this court referred to should be changed by striking out the two last words 'the order,’ and adding the words 'the Lansing Hive of which Julia Edgerly was a member.’
“(8) Nos. 27 to 33, inclusive, are refused.”

Some of the findings asked for are included, in substance, in the findings filed. A comparison will show that the most of them are not. Exceptions were filed to the refusals to find as requested, error is assigned upon these exceptions, and it is also assigned as error that the court found in favor of plaintiff.

At the beginning of the trial, it was stipulated by counsel, among other things, that the by-laws of defendant for the years 1908 and 1910, as printed, might be used upon the trial by either party without further proof or authentication. Numerous by-laws appear to have been read, and some of them to have been relied upon by both parties. Ordinarily we should assume that the trial court intended the finding to .be read with them — to incorporate them. But the court expressly refused, as witness requests numbered 12% and 14, to incorporate some of them in the finding.

It is expected and contemplated by the statute and the rules of court that when causes are tried by the court without a jury, and findings are properly requested, the court will find and state ultimate facts material to the issue, and, separately, conclusions of law based thereon. After such a trial and findings, the questions usually presented in this court are whether there is any testimony to support the conclusions of fact, and whether the facts found sustain the judgment rendered. This court will not, upon disputed testimony, find facts, and will not assume that any material fact, not found and not admitted upon the trial, is proven.

It will not disturb a finding of fact which is supported by testimony.

Indeed, it is not necessary that the testimony shall be printed unless it is claimed there is none tending to prove a fact found by the court or that the court refused to find an undisputed fact thought to be material. See decisions involving the rules of practice in such cases collected in Moore v. Supply Co., 171 Mich. 400 (137 N. W. 270). We have examined the record with the briefs of counsel to see whether sufficient facts are admitted or found to warrant the examination and decision of the legal questions upon which the ruling of the trial court turned. Arguments in the briefs cover a considerable field. The record discloses that it is found that defendant conceded “that on July 1, 1910, the great commander, by virtue of the power vested in her by the constitution of the order, issued a dispensation.” If by this is meant that the power of the great commander to make or issue the dispensation is conceded, no support for it can be found in the record.

In the brief for plaintiff it is said:

“It is admitted that were it not for section 98 of the laws of 1910 making general provisions for re-rating, and the dispensation grafted by the great commander, under date of July 6, 1910, to be in effect from June 1, 1910, to January 1, 1911, Julia E. Edgerly could not have been reinstated on December 6, 1910, without a certificate of good health, and probably not without a medical re-examination. The exact legal force, therefore, of section 98 of the laws of •1910, and the dispensation bearing date July 6, 1910, becomes the chief question in the case. In this connection it is contended by plaintiff as follows:
“(1) That defendant is estopped from asserting as a defense in this case that the July 6, 1910, dispensation is invalid.
“(2) That the power of the great commander to issue the July 6th dispensation can be questioned only in the manner provided in section 41 of the laws of 1910 of defendant order.
“(3) That the July 6, 1910, dispensation expressly provided that it was to be in effect from June 1, 1910, to January 1, 1911, and cannot be rescinded on November 1, 1910, without notice to the membership given a reasonable time prior thereto.
_ “(4) That section 98, known as the re-rating section, authorizes the transfer from class 1 to class 2, at any time prior to January 1, 1911, upon payment of the new rates, all members in good standing at the time of the meeting of the great hive at Kalamazoo June 10,1910.”

None of the laws referred to by counsel for plaintiff nor the dispensations appear in the finding of facts. The court below does not appear to have passed upon either of the contentions stated. The argument of plaintiff’s counsel proceeds with the statement that:

“In the resolution of the executive committee giving the reasons of the order for declining to pay plaintiff’s claim, the validity of the dispensation in question was not denied, but, on the contrary, affirmed.”

There is no finding upon the subject. Repeatedly the court is referred in the briefs, as it would be or might be in a chancery case, to pages of the record where testimony is found which is used in argument to support certain propositions advanced by counsel, concerning which, and the facts upon which they are founded, the findings are silent. Turning to the brief for defendant, we find what purports to be a statement of facts, which includes statements of counsel as to the purport and effect of various laws of defendant and considerable quotations from the testimony of witnesses with a statement of defendant’s theory of the case and the following conclusion:

“Defendant appeals and assigns error on the admission of certain evidence,- the refusal of the court to find as requested before judgment, the findings as made, and the refusal of the court to find as requested by defendant after judgment, and upon the further ground that there is no testimony in the case to sustain the judgment for the plaintiff.”

The law argument immediately follows, discussing two propositions: First, that plaintiff cannot recover under the pleadings and contract between assured and defendant; second, plaintiff cannot recover under the dispensation of July 6, 1910. In discussing the second proposition counsel refers to various of the findings and to some of those requested and refused, with the statement that it was error to so refuse inasmuch as the facts are undisputed, and that they should be treated by this court as established facts.

In cases like this this court sits to review errors of law. Enough has been said to show the difficulty experienced in ascertaining what questions of law are presented. We do not find, except as hereinbefore noted, that it is alleged that any of the findings of fact are not supported by testimony, or that the facts which are found do not support the judgment. It is urged, as has been pointed out, that the court ought to have found facts which it did not find — facts which support defendant’s theory and upon which in part its argument is based

Under the circumstances, we think we should not attempt to dispose of most of the questions which are debated in the briefs. It appears that it is, and was, disputed that the great commander had authority to issue the July, 1910, dispensation, and that the recital in the findings that it is conceded is not supported by the testimony. Whether she had the authority is, in one aspect, a mixed question of law and fact. There is no finding upon the subject, and there is none from which the conclusion that she had or did not have proper authority may be based. It is essential to plaintiff’s recovery that the dispensation should have been issued by authority, or that the action of the great commander in issuing it should have been ratified, or that defendant’s right to insist upon this defense has been waived. If it was proper for this court to hear the cause de novo and decide it, undoubtedly a final determination would be reached.

As we can exercise only appellate jurisdiction, we content ourselves with pointing out the error which has been referred to, and reverse the judgment, saving the right to a new trial. ■

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