author: Steere, J.

text:
    BLATNIKOFF v. DETROIT UNITED RAILWAY.
    Street Railways — Personal Injuries — Last Clear Chance— Discovered Negligence — Directed Verdict.
    In an action against a street railway company for personal injuries, a verdict for defendant was properly directed, where plaintiff, who was a passenger on a south-bound car, passed around the end of the car and started diagonally across the other track, when he was struck by a north-bound car; plaintiff’s contributory negligence being conceded, and the rule of subsequent, or discovered, negligence having no application, since it was not manifest that he was in a position of peril which the motorman could and should have discovered in time to avoid the injury.

      See notes in 55 L. R. A. 418; 36 L. R. A. (N. S.) 957.

      Error to Wayne; Hosmer, J.
    Submitted April 18, 1918.
    (Docket No. 131.)
    Decided June 3, 1918.
    Case by Samuel Blatnikoff against the Detroit United Railway for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Fitz-Gerald & Ring, for appellant.

      Corliss, Leete & Moody and Benjamin S. Pagel, for appellee.
   Steere, J.

On the morning of May 11, 1914, plaintiff alighted from the rear exit of one of defendant’s south-bound street cars on Woodward avenue at a point north of its intersection with Larned street, in the city of Detroit, and, walking immediately eastward at the rear of that car upon the closely adjacent parallel track, was struck by a passing north-bound car. The car threw him to one side and its wheels did not run over him, but in the accident he suffered an open wound upon his knee which became infected, resulting in abscesses and stiffening of the joint. His physician testified this condition was permanent and describes it as follows:

“The anchylosed condition or solidifying of the knee joint is due to infection; that is, after the injury had happened some other germs got into it and set up an infection and this is the result.”

On trial of this action, which was brought in the circuit court of Wayne county to recover damages for such injury, it was the opinion of the presiding judge that actionable negligence was not shown, and a verdict of no cause of action was directed on defendant’s motion at the conclusion of plaintiff’s testimony. After denial of a motion by plaintiff for a new trial he removed the case to this court for review on numerous assignments of error.

It is "here admitted in the brief of plaintiff’s counsel that “there is no question but what plaintiff was guilty of contributory negligence in walking to the rear of the car from which he alighted,” and said that all assignments of error center upon the single contention that there was evidence of “subsequent negligence” on the part of defendant, owing to the failure of the motorman to promptly check his car on discovery of plaintiffs peril, which should have been submitted to the jury.

Woodward avenue is the principal and most congested thoroughfare in Detroit, extending centrally through it north from the Detroit river with a double street car line along it into which various other car lines lead and center. The accident occurred in the down town business district between Congress and Larned streets, which run east and west crossing Woodward one block apart, of which plaintiff’s witness Meade testified:

“It is a short block. This happened near the southerly end of the block; it is about 30 to 50 feet nearer thé southern than the north end. * * * There was a car coming down there in the morning every few minutes. There were many cars going up and down— Woodward, Hamilton, interurbans and Brush.”

Plaintiff was a cap maker by trade, about 56 years of age, active and able-bodied, his hearing and eyesight good, and, as he stated, “a fast walker.” At the time of the accident he was going to his place of employment. The nearest stopping place of street cars to the building in which he was employed was at the Woodward avenue and Larned street crossing. He had worked in this building for several years and was familiar with the locality, activities and condition of traffic at that point. The only witness to the accident besides himself was a young man named Lawrence Meade, employed in a clothing and haberdasher establishment four doors north of the corner of Larned on the east side of Woodward avenue, who was out sweeping the sidewalk in front of the store and just at that time happened to be leaning upon his broom facing southerly and watching the passing traffic, his position being north of the rear of the car from which plaintiff alighted. He testified that he noticed the north-bound car which struck plaintiff approaching on the easterly track as it was crossing Larned street, where it did not stop, and observed that after passing the crossing its speed was increased and he also saw plaintiff come out from behind a car which was standing back of another car on the other track, walking easterly as though about to cross that upon which the approaching car was coming, and thought he was. liable to be hit by it if he was not careful. He estimated the car was then going approximately 15 miles an hour and was about 50 feet from plaintiff as he came out from behind the other car, saying: “and he continued to cross until the car hit him.” He did not remember what part of the car struck plaintiff, but the wheels did not go over him and he rolled about 15 feet with his head to the westward, and the car stopped about within its own length after it struck him; that he could not tell how many steps plaintiff took after he passed the rear of the car he had left nor whether or not he was looking at the approaching car, but as he came out from the rear of the southbound standing car and went easterly onto the track of the on-coming north-bound car he was walking at an angle towards it.

It was conceded upon the trial that the car tracks on Woodward avenue are 4 feet, 8V2 inches wide, and the space between the two tracks, called the “devil-strip” was about five feet wide. In alighting from his south-bound car on the west track, from its right or west rear exit and passing behind it to reach the east. side of the avenue plaintiff was hid by the car he left from the approaching north-bound car on the other track, and it from him, until he had passed the overhang of his car on the five feet wide devil-strip. His general description of the accident and attending circumstances runs in one portion of his testimony as follows:

“I did not walk around without stopping, I had to stop to turn around to go back of the platform. After I started to walk around the car, I did not stop, I walked straight on to pass over the track and was walking until I was struck. I do not know whether I was walking three or four miles an hour or not, as I have never timed myself to see how fast I walked. I was walking quite fast as I am a fast walker, and was walking fast from the time that I got off the car until I was struck. * * * I passed over the first car track and passed over the strip between the north and south-bound tracks and onto the other track and just as I got on the other track I was struck. I do not remember whether I was thrown down as I was struck. When I first saw the car that struck me I was between the north and south-bound tracks.” * * *

In justification of his own conduct, now urged as proof of subsequent negligence on the part of defendant, he also testified that when he passed around back of the car from which he alighted to the “empty space,” or devil-strip between the two tracks, he “looked around up and down Woodward avenue to see if anything was coming” and saw the car which struck him coming from the south in the middle of the block beyond Larned street close to the Avenue Theater, and, expecting it would stop at the other corner of that street, thought “I can pass in the same time,” saying further, “I started to walk as soon as I thought to myself he has got to stop the other side comer, * * * I kept my eye on the car” which did not stop at the corner but “she went medium at first and after that she came to the corner-she started quicker,” and

“At the last track she catched me.
“Q. All the time you were walking fast — all the time you were looking at the car it was running?
“A. Yes, sir. * * * -
“Q. Did you look, or did you see the car just as you stepped over the first rail of the north-bound track?
“A. Yes, sir.
“Q. How far was it away from you then?
“A. Well, I think it was between — of course I could not tell you exactly but about 75 or 80 feet — between 75 and 80 feet.”

. Asked how many steps he took from the time he saw the car (which was after he came upon the devil-strip walking fast) until he was struck, he replied, “I' don’t remember exactly whether I took five, or may be took one, I don’t remember exactly.”

It is evident this line óf excusing testimony cannot be reconciled with plaintiff’s other more reasonable and probable repeated statements, that he “walked straight on to pass over the track,” did not see the car until he was in “the middle, or empty space,” within not over two steps of the other track, and was walking fast from the time he got off his car until he was struck. Unless he walked down the track to meet it with suicidal intent, it is inconceivable that he was struck by an oncoming car he had first seen upon this track near the middle of the next block south, beyond Larned street crossing, which he kept his eye on and noted was approaching the crossing where he expected it to stop at a medium rate,- but after passing that crossing increased its speed as it bore down upon him. He could see the car as soon'as'its motorman could see him, says he saw it was coming towards him, did not turn his head away and asserts “I kept my eye on the car, certainly.”

Plaintiff was an adult, familiar with the location and condition of traffic there, in full possession of his faculties and is not shown to have been confused or his attention distracted by any other passing cars or vehicles or apparent dangers. Meade testified that his course as he came out from behind the standing car was at an angle towards the one which struck him. His appearance to the motorman near the track, or even crossing it, if sufficient distance away to easily step aside, would not in itself be a warning that he was in peril. Until it became manifest that he did not see the approaching car or in some manner was apparent from his conduct that he was in a position of peril which the motorman could and should have discovered in time to avoid the injury, the rule of subsequent, or discovered, negligence has no application. It is not shown the car was running at an unlawful or excessive rate of speed. It was between crossings approaching the center of the block and was stopped within its length after the accident.

Of a similar accident where the car was claimed to be running at 30 miles an hour, it was said:

“But the duties arising from the circumstances are reciprocal. The alighting passenger, desiring to cross the street, owes the duty to exercise reasonable vigilance for his own safety. He knows that an approaching car cannot turn out for him; that it is heavy and cannot be instantly stopped. He knows that until he is- in a position to see an on-coming car he cannot be observed by its driver. He can in an instant put himself in a position where the sharpest lookout and most careful management will not save him.” Davis v. Railway Co., 191 Mich. 131.

Under the most favorable view of plaintiff’s testimony, as an entirety, we are well satisfied this case is analogous .to and in principle controlled by Doty v. Railway Co., 129 Mich. 464; Clark v. Railway, 168 Mich. 457; Davis v. Railway Co., supra, and the cases there cited.

The judgment is affirmed.

Ostrander, C. J., and Bird, Moore, Brooke, Fellows, and Stone, JJ., concurred with Steere, J. Kuhn, J., concurred in the result.


source: Caselaw Access Project

license: Public Domain

text:
    WILLIAMS v. DOANE.
    1. Mandamus — Drains—Validity of Proceedings — Construction of Statute.
    Where defendants, drain commissioners of three adjoining counties, failed to agree as to the necessity of a proposed drain traversing their counties, and one of them appealed to the State highway commissioner, under section 4933, 1 Comp. Laws 1915, who decided in favor of the necessity of the drain, mandamus will not issue at the instance of a landowner objecting to the validity of the proceedings to compel the commissioners to correct the record where it is conceded to be as plaintiff claims.
    2. Drains — Joint Action of Commissioners — Appeal to Highway Commissioner — Construction of Statute.
    The statutory rule of construction in section 64, 1 Comp. Laws 1915, providing that all words purporting to give a joint authority to three or more public officials or other persons shall be construed as giving such authority to a majority of them, does not apply to action of county drain commissioners of three counties upon an application, under section 4932, 1 Comp. Laws 1915, for the construction of a drain traversing their counties, since section 4933, 1 Comp. Laws 1915, provides that if they are unable to agree, they, or either of them, may appeal to the State highway commissioner, whose decision on the matter in dispute shall he final.
    Certiorari to Livingston; Miner, J.
    Submitted April 5, 1918.
    (Calendar No. 28,275.)
    Decided June 3, 1918.
    Mandamus by Lester Williams to compel E. J. Doane and others, drain commissioners of Ingham, Livingston, and Washtenaw counties, to dismiss proceedings for the establishment of a drain. From an order granting the writ, defendants bring certiorari.
    Reversed.

      Baldwin & Richards, for appellants.

      Glenn S. Mack and Louis E. Howlett, for appellee.
   Steere, J.

By certiorari to mandamus defendants ask review and reversal of a peremptory order of the circuit court of Livingston county directing them in their official capacity to meet, take joint negative action upon the necessity for, and to dismiss pending proceedings looking to laying out a drain through the three counties they respectively represent.

The contemplated improvement, called the Lowe lake drain, as planned, has a length of between 11 and 12 miles, and in its course traverses the three counties mentioned. When proceedings were instituted for the improvement, in 1916, E. J. Doane was drain commissioner of Ingham county, Clayton E. Deake of Washtenaw county, and Arthur Grieve of Livingston county, the latter having since been succeeded by defendant Kenyon Wrigglesworth. Plaintiff Williams owns land in Livingston county through which the proposed drain would run, necessitating securing from him right of way for it. An application for this drain was signed by the requisite number of freeholders liable to assessment for benefits received and filed with the commissioner of Ingham county in February, 1916, pursuant to which the three commissioners met and ■acting jointly called a public meeting for consideration of such application, to be held March 7, 1916, at the village of Stockbridge in Ingham county, public notice being given which stated that:

“All persons whose lands were to be taken for the said drain and all other persons interested therein were asked to' appear at said time and place to be heard on said question in accordance with the statute.”

At this meeting the three commissioners did not agree as to the necessity for the drain, the commissioner of Ingham county being in favor of it and the other two announcing themselves as adverse to it. Two days thereafter the commissioners met again and signed a statement entitled “Disagreement of Commissioners as to Necessity of Proposed Drain,” which with recital of details as to the application therefor, description of the same, etc., concluded as follows:

“And whereas, a hearing was duly had by us on the 9th day of March, A. D. 1916, in accordance with the statute, for the purpose of determining the necessity of said drain.
“And whereas, full opportunity was given to all persons appearing at said hearing to offer evidence for or against the proceedings.
“Now therefore in view of the premises aforesaid, we, the said drain commissioners of said counties, of Ingham, Washtenaw and Livingston, are hereby unable to agree as to the necessity of said drain.”

Not long thereafter, and during that spring, the commissioner of Ingham county appealed to the State highway commissioner to determine the necessity for the drain. After a hearing on such appeal the State highway commissioner determined said drain to be a public necessity, and made an order accordingly; following and pursuant to which the three county commissioners met and jointly made an order of determination in harmony with that of the State highway commissioner, and proceeded with the prescribed statutory steps for such improvement, which, amongst other things, required them to secure right of way for the drain.

Being unable to obtain voluntary release of right of way from certain parties in Livingston county through whose lands the drain would go, including plaintiff, the commissioners, in November, 1917, made application as provided by statute to the probate court of that county for appointment of disinterested persons as commissioners to determine the necessity of taking the desired lands, appraise damages, etc.

While these condemnation proceedings were pending, plaintiff Williams applied to the circuit court of Livingston county for a peremptory writ of mandamus to compel the three drain commissioners to meet, dismiss their application before the probate court for condemnation, and enter an order determining said drain not to be a necessary public improvement. The commissioners made answer, and after hearing thereon at which the material facts were apparently not in dispute, the court made an order that the three commissioners should—

“assemble themselves together on some date to be determined by them, and not more than 30 days from this date, and then and there enter an order determining the application for the Lowe lake drain, so-called, to be unnecessary and discontinue further proceedings toward the construction thereof and dismissing the application therefor, and that each of said persons file in their respective offices a copy of said order as of the date of March 8, 1916.”

Defendants’ counsel urge and argue in their brief as reasons why this order of the circuit court should be reversed the following propositions:

“First. Mr. Doane, or any one of the commissioners, had the right to appeal to the State highway commissioner, when they disagreed as to the necessity of the drain.
“Second. That the court had no power to order the statement of disagreement (Exhibit A) amended, or a discretionary order entered.
“Third. The meeting held by the commissioners was informal.
“Fourth. Because the statutory certiorari was the proper remedy to review any alleged illegal -drain proceedings.”

Plaintiff’s counsel say that the meritorious legal issue involved is, whether upon the necessity for a proposed drain which traverses more than one county “a majority vote of the commissioners decides the question.” And, as to the remedy resorted to in the circuit court, admit that certiorari is the “proper and exclusive remedy for all defects in records of the proceedings at this stage of the establishment of a drain”; but contend that rule is not applicable to the situation presented here because plaintiff is “not objecting to the record,” and is only seeking to compel the commissioners to make a proper and truthful record of their action, which they neglected or failed to do, stating their position as follows:

“We are complaining because they failed to make a record. We simply are asking that these commissioners make the record that the statute required them to make. * * * If certiorari were brought, the return would show that these commissioners failed to agree, whereas, in fact, that is not true. In view of the conduct of the commissioners, we submit that mandamus was the only remedy open to Mr. Williams, whose lands were about to be taken by these commissioners for this alleged public purpose, whereas, in fact, these commissioners had determined legally that this alleged public improvement was unnecessary.”

In Auditor General v. Crane, 152 Mich. 94, it was held that where the drain commissioner failed to file certain papers essential to a true record of a drain proceeding, mandamus might be brought to compel him to comply with the statute in that particular, to lay a foundation for the statutory writ of certiorari; and mandamus was recognized in Cilley v. Sullivan, 187 Mich. 447, as proper to compel respondent to perform his official duties in joint action with the drain commissioner of an adjoining county where he had declined to co-operate in levying a special assessment for a drain, making the contention that the statute upon which the drain proceedings were based was claimed to be unconstitutional, and because of the probability of litigation following the heavy expenditures which proceeding with the drain would involve. On certiorari to refusal of the trial judge to grant mandamus the constitutionality of the law was passed upon by this court, it being held that the provision conferring authority upon the State highway commissioner to act as arbitrator in drain proceedings when properly appealed to was not unconstitutional as invading the right of local self-government, and mandamus should be issued by the trial court as prayed.

Conceding in the instant case that, if the record of the drain proceedings made by the commissioners is untrue in fact or incomplete, plaintiff is entitled to compel the commissioners by mandamus to correct and perfect them, the only material facts they would or could add to their record bearing upon the point at issue would be a statement of just how each commissioner stood and voted upon the necessity of the drain, which is admitted to have been as plaintiff claims, following which the truthfulness of their record that they were unable to agree is contingent upon whether defendants’ construction of the statute or that contended for by plaintiff should prevail.

Plaintiff’s contention is that the commissioners did, in fact and law, agree that the drain was not a public necessity for the reason that, acting jointly upon the question, a majority so determined. In support of this claim counsel urge, as controlling, the rule of construction found in section 64, 1 Comp. Laws 1915, which provides, in part:

“In the construction of the statutes of this State the following rules shall be observed unless such .construction would be inconsistent with the manifest intent of the legislature, that is to say: * ' * *
“3. All words purporting to give a joint authority to three or more public officials or other persons shall be construed as giving such authority to a majority of such officers or other persons unless it shall be otherwise expressly declared in the law giving the authority.” Citing Scott v. Young Men’s Society, 1 Doug. 119; Serrell v. Patterson, 107 Mich. 234.

The drain laws of Michigan which have long been a fruitful subject of litigation and legislation are found, in the form in which they were in force at the time of the proceedings under inquiry, in chapter 93, 1 Comp. Laws 1915, beginning with consecutive section 4870. In section 4874 provision for joint action of county commissioners first appears as follows:

“In all cases where the entire drain shall be laid in one county, and the benefits to be derived therefrom and the assessments for its construction shall extend to lands situated in one or more adjoining counties, then all such drains shall be laid by the commissioners of such counties acting jointly, and all their proceedings shall be had under the provisions of this act regulating the construction of drains traversing more than one county.”

In chapter 7 of the act, beginning with section 4932 of the compilation, the subject of joint action for construction of drains traversing more than one county is dealt with, it first being provided that:

“Whenever it may be desired to locate, establish, widen, deepen, extend or clean out a drain traversing more than one county, or affecting lands lying in more than one county, an application therefor shall be made to the county drain commissioner of either county traversed by the proposed drain. Such application shall be subject to the same conditions and the applicants to the same obligations and liabilities as in other drains under this act.”

The act further provides that the commissioner receiving the application shall, if he deems the drain necessary, notify the commissioners of other interested counties, furnish each with a copy of the application, and call a meeting. That portion of the law particularly in controversy here (section 4933) is as follows:

“Such county drain commissioner or commissioners shall, at the time and place fixed as above, meet with the county drain commissioner having the original application, and shall thereupon and thereafter jointly take all steps and perform all acts, and sign all papers as county drain commissioners are required to do singly in the case of other drains, including the application to the probate court: Provided, That should the said county drain commissioners be unable to agree as to the necessity, location or benefit of such drain, or any other matter relative thereto they, or either of them, may appeal to the State highway commissioner, who shall act in the premises as hereinafter provided. Such State highway commissioner shall be furnished with all the data relative to such drain, which may be in the possession of said county drain commissioner, or either of them, and said highway commissioner shall have the right to subpoena witnesses and take testimony, and his decision relative to such matters as may be in dispute shall be final.”

The statutory rule of construction quoted is but declaratory of the general common law rule which prevails where unqualified joint authority is given to public officials in the conduct of public matters, and is well sustained by the' numerous authorities plaintiff’s counsel cite, but to apply it in the construction of a particular statutory provision it must be consistent with the manifest intent of the legislature and purpose of the enactment. The joint authority given to drain commissioners by this statute is qualified by the proviso that if they “are unable to agree * * * they, or either of them, may appeal to the State highway commissioner,” etc. An agreement of individuals or officers where each has a voice and vote naturally indicates a concurrence- of minds — that they are of the same mind upon the question under consideration. Such is the construction put upon wording similar to this in Sudler v. Lankford, 82 Md. 142.

If the agreement of a mere majority was intended as final the proviso would seem superfluous. Construed with the manifest object in view and indicated legislative intent in dealing with this portion of the drain law, this language in the connection used fairly means that a concurrence or agreement of each commissioner is essential for a final settlement of the question to the exclusion of an appeal, which the act expressly authorizes any one of them to take in case the “commissioners be unable to agree.” Broadly viewed, the fair intent and proper construction of the provision is that no one of the counties involved shall be finally bound, negatively or affirmatively, by those representing the others without the concurrence of its representative except by affirmance on appeal to the State highway commissioner, whose decision on the matter “in dispute shall be final.” But even accepting the construction contended for by plaintiff as to the joint authority of the commissioners in the first instance, and conceding that a decision of a majority is controlling and final if not appealed from, the legislature has undoubted power to grant the right of appeal to any disagreeing commissioner, and we are satisfied the intent to confer such right is made evident by the language of the provision in question.

The order of the circuit court directing the commissioners to reconvene and take further action as. therein directed is therefore reversed and set aside.

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


text:
    LOVALO v. MICHIGAN STAMPING CO.
    1. Statutes — Construction.
    A meaning shall be given to all parts of a statute where possible.
    2. Master and Servant — Workmen’s Compensation Act — Loss of More Than One Finger — Total Disability.
    Where an employee, in the course of his employment, suffered a loss of the four fingers of his right hand and practically the whole of the palm, or fleshy part of the hand, leaving only the thumb, totally and permanently incapacitating him for work at the employment he was engaged in at the time of the accident, viz., operating a trolley punch press, an award by the industrial accident board for the loss of four fingers for 100 weeks, and if at the end of that time “he is totally disabled,” the compensation to continue for 150 weeks, was proper, under section 10, part 2, of the act (section 5440, 2 Comp. Laws 1915), providing that “in no case shall the amount received for more than one finger exceed the amount provided in this schedule for,the loss of a hand,” or one-half the average weekly wages of 150 weeks.
    See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.
    Certiorari to Industrial Accident Board.
    Submitted April 16, 1918.
    (Docket No. 98.)
    Decided June 3, 1918.

      Mike Lovalo presented his claim for compensation against the Michigan Stamping Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Royal Indemnity Company, insurer, bring certiorari.
    Affirmed.

      Frederick J. Ward, for appellants.

      John Loree, for appellee.
   Steere, J.

On July 6, 1916, plaintiff suffered an industrial accident while operating a trolley punch press for the Michigan Stamping Company which resulted in the loss of substantially all his right hand except the thumb, incapacitating him for work in the employment at which he was engaged at the time of the injury. It is undisputed that the parties had come under the provisions of the workmen’s compensation act and that plaintiff’s injuries arose out of and in the course of his employment.

Plaintiff claimed compensation for total loss of his hand, to which defendant did not accede, contending his compensation was limited to that provided in the act for the loss of his four fingers. He thereafter made and filed with the industrial accident board a claim for loss of his right hand under the provisions of the compensation act. ■ Upon hearing before a committee of arbitration he was awarded compensation for the loss of four fingers under the terms of section 10, part 2, of the act (2 Comp. Laws 1915, § 5440). Not satisfied with the award, he appealed to the full board, which, on review, modified the award by providing that the compensation awarded by the committee of arbitration for the loss of four fingers should continue for 100 weeks as specified, and if, at the end of the 100 weeks, “he is totally disabled from working in the employment in which he was working at the time of the accident, he shall be paid compensation at the same rate during such total disability”; with a further provision for reduction of this amount in case his disability becomes partial.

The parties stipulated before the arbitration committee that for whatever time plaintiff was entitled to compensation it should be computed on the basis of 27.8 cents per hour and no question is raised by either as to the rate of $7.22 per week fixed by the arbitrators; the evident contention between the parties before the committee of arbitration and the full board on review being whether this stipulated weekly compensation should be continued during the time prescribed by the act for loss of four fingers, or for the loss of a hand.

On appeal to the full board, plaintiff claimed that he “is entitled to compensation for 150 weeks for loss of one hand instead of for 100 weeks, as found by the committee on arbitration.” In this court his counsel say in their brief:

“Appellee contends that he should receive compensation for 150 weeks for the loss of the entire hand, or that the industrial accident board’s order should be affirmed.”

In an opinion made part of the return to the writ of certiorari herein, the board states the situation which the facts presented as follows:

“Applicant exhibited his hand to the committee of arbitration and was also present at the hearing on review before the full board, and the board inspected his hand and took measurements thereof and found that not only were all four fingers taken off as a result of the accident, but practically the whole of the palm or fleshy part of the hand was also removed. He still has the thumb, and technically it may be true that he has "not lost the entire hand. He has lost so much of the hand, however, that when he bends his thumb over .forward there is nothing it can reach. That portion of the palm of the hand which,the thumb would naturally touch when bent fully forward has been cut away. He has left only a very small portion of the thick portion of the hand below the wrist joint.
“As stated above, he may not technically have lost the entire hand within the meaning of section 10, of part 2, of the workmen’s compensation act, but the board found from the testimony and a careful inspection and examination of the hand, that he has lost substantially the entire usefulness of the hand. The board cannot see that the thumb he has left is of much, if any, practical use to him as far as following any employment is concerned, and believes that for all practical purposes he has lost the entire hand.”

Pointing out that with only the four fingers gone and the palm of the hand otherwise unimpaired the usefulness of that member as a hand, though diminished, would remain, since the thumb, in connection with the full palm, would have a grasping capacity and to a large degree serve the ordinary functions of a hand, it is stated that the question before the board is: “Should compensation be allowed to claimant for 150 weeks for the loss of a hand?” Finding that plaintiff is, under the facts shown, entitled to something more than for the bare loss of four fingers, the board concludes that “if not to compensation for the loss of a hand, then to compensation for disability, in case disability exists after the 100 weeks to be paid for the four fingers expires.”

The undisputed testimony, visualized by a verified photograph returned as an exhibit in the case, fully sustains the board’s findings of fact as to the physical result of the injury, showing the remaining extremity of claimant’s right arm consists of the wrist with the thumb projecting from one side of it, and all the fingers, knuckles, palm and the four metacarpal bones forming its frame, or metacarpus structure, gone. Attached to one side of the wrist, with one less joint than the fingers, its functions specialized for apposition to other portions of the hand, the thumb, left by itself becomes practically useless in manual employment.

In common terms the human hand consists of the palm, fingers and thumb, being in combination peculiarly adapted physiologically to the function of prehension, or grasping, which is their primary service, locomotion and support being of scant importance as contradistinguished from the lower order of animals. In that sense and for such uses plaintiff has lost his right hand.

In section .10, part 2, of the act, is set out a schedule providing compensation for loss of specified members, the disability resulting from which in each ease “shall be deemed to have continued for the period specified, and the compensation so paid for such injury shall be as specified therein.” Compensation is specified for the loss of a thumb and separately for the loss of each finger, aggregating 50 per cent, of the average weekly wages for 100 weeks, the loss of more than one phalange to be considered as the loss of the entire finger or thumb; with the proviso “That in no case shall the amount received for more than one finger exceed the. amount provided in this schedule for the loss of a hand”; or one-half the average weekly wages of 150 weeks.

If we should extend to the facts in this case the liberal construction provided in the schedule that loss of more than one phalange of a finger shall be considered the loss of the entire finger, then by analogy the loss of all the palm and all of the fingers of the hand could by greater impairment and a larger proportion of loss be reasonably considered the loss of the entire hand. If the claimed strict construction urged by defendants is accepted, in no case could the amount awarded for more than one finger exceed in the aggregate 100 weeks and the provision last quoted plainly recognizing a permissible increased discretionary limit for the loss of more than one finger to 150 weeks, is meaningless. It is a cardinal rule of construction that a meaning shall be given to all parts of a statute where possible.

In the instant case the board found total disability and the undisputed evidence shows that by reason of his injury plaintiff is not only totally but permanently incapacitated for work at the employment he was engaged in at the time of the accident. In practical application to his case the result is the same whether he be awarded compensation for the loss of a hand as he claims, or for the totally disabling loss of all his fingers, taking with them the whole palm of the hand, awarded for 150 weeks under the proviso quoted, being for “more than one finger” and not exceeding “the amount' provided in the schedule for the loss of a hand.” The only indicated meaning or purpose of that proviso is to give the board discretionary power to extend the period of weekly compensation within the limit specified, and such we conclude was the fairly manifest legislative intent.

So construed and limited, the award of the industrial accident board is affirmed, with costs.

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


text:
    SUTTON v. VILLAGE OF MORENCI.
    Eminent Domain — Cemeteries—Determination of Necessity— Injunction — Fraud.
    A bill by a landowner to enjoin condemnation proceedings by a village for cemetery purposes, on tbe ground of fraud, is properly dismissed where the alleged fraud appears in the introductory recital of the resolution determining the necessity for such taking; such resolution being neither judicial nor final, and the question must ultimately be decided by a jury in the very proceeding sought to be enjoined,- the burden of proof resting upon defendant to establish it.
    Appeal from Lenawee; Hart, 3.

    Submitted April 19, 1918.
    (Docket No. 102.)
    Decided June 3, 1918.
    Bill by Leroy Sutton and another against the village of Morenci to set aside condemnation proceedings. From a decree for defendant, plaintiffs appeal.
    Affirmed.

      H. Thane Bauman and Baldwin, Alexander & Russell, for plaintiffs.

      Earl C. Michener, for defendant.
   Steere, J.

Plaintiffs are husband and wife and own as tenants by entirety a farm of 60 acres, a portion of which, consisting of about 3.32 acres, lies within the corporate limits of the village of Morenci, Lena-wee county, adjacent to its so-called “Oak Grove” public cemetery. Owing to available space for burial being nearly exhausted in Oak Grove and a need for larger burial grounds in that community the village authorities desired and claimed it necessary to secure from plaintiffs this adjoining three and a fraction acre piece of land.

On August 13, 1917, the village council passed a resolution, with various recitals as to conditions and demands, declaring it necessary for the public welfare of its inhabitants that the village of Morenci acquire and own within its corporate limits a place of burial south of and contiguous to its old Oak Grave cemetery, in draining and beautifying which it had expended large sums of money and that for such proposed public improvement it was deemed necessary to obtain the piece of land in question belonging to plaintiffs. To that end a committee was appointed by the council to confer with plaintiffs and ascertain on what terms it could be obtained. This the committee did and later reported to the council in writing that plaintiffs refused to convey said land to the village for the purpose proposed at a less price than $1,000 per acre, or $3,332. On receipt of this report the council by resolution, with recital that the price demanded was deemed so exorbitant and unreasonable it was not warranted in agreeing to pay the same, determined it was unable to agree with the owners for the purchase of said described land, that it had become a public necessity to take the same for the proposed necessary public improvement without consent of the owners and directed the village attorney to institute condemnation proceedings to acquire the same before a justice of the peace residing in said village. The prescribed statutory steps were then taken for such condemnation pursuant to chapter 13 of the general village law, now found in 1 Comp. Laws. 1915, beginning with compiler’s section 2784 on page 1104.

On being served with summons in the condemnation ' proceedings plaintiffs filed a bill of complaint with the circuit court in chancery of Lenawee county, on September 13, 1917, asking an injunction to restrain, and end the condemnation. An order to show cause, with a preliminary restraining order, was granted and on September 22, 1917, a written showing in response to such order and a motion to dismiss plaintiffs’ bill for want of jurisdiction were filed by defendant. On September 27, 1917, an answer was filed, a hearing and argument had on the showing made and an opinion filed by the court, followed by an order, filed October 6, 1917, the concluding paragraphs of which are as follows:

“After reading the pleadings in said cause and listening to the argument of counsel, it is ordered by this court that said temporary restraining order is continued until a full hearing can be had in said cause upon the issue raised in said proceedings as to the disability of said justice of the peace, Leon D. Mowry, to proceed with said condemnation proceedings.
“It is further ordered that the proceedings complained of in said bill of complaint, up to the filing of said petition with said Leon D. Mowry, justice of the peace, are regular and valid, and that said village of Morenci may, if it sees fit to do so, discontinue said proceedings before said Leon D. Mowry, and proceed before any other justice specified in said statutes to take jurisdiction over said proceedings.”

From this order plaintiffs have appealed, their claim of error involving, as stated in their counsel’s brief,

“but one question in this court to determine, and that was whether the circuit court erred in holding that the bill filed by plaintiffs should be dismissed without a hearing upon the allegations therein contained.”.

Plaintiffs’ grounds of complaint against Justice Mowry were that he is also the village assessor, and an interested party, having expressed his views as to the value of the land sought to be condemned both by his records and in other ways, which defendant denied in its answer and showing in response to the court’s order to show cause. As to this, the circuit judge expressed the view that, while the offices of justice and village assessor are not incompatible yet, in view of the objection raised, it was advisable to take the condemnation proceedings before some justice entirely disinterested, stating in answer to inquiry of counsel that the bill should be dismissed “so far as the fraud charge is concerned,” subsequently filing the order quoted, from which plaintiffs have appealed for the reason stated in counsel’s brief.

' While in the opinion reviewing questions raised and discussed at the hearing of defendant’s showing in response to the order to show cause why a preliminary injunction should not issue and the temporary restraining order previously made should not be continued, the court stated plaintiff’s bill should be dismissed as to the charge of fraud, it was not specifically so provided in the order made. Technically the order made and entered is but the refusal, upon a ’showing against an application for an injunction, to grant the injunction or to continue a previously made interim restraining order, except as,, to defendant’s proceeding with the condemnation before a justice to whom plaintiffs objected because an interested or prejudiced party. But conceding that the order made in connection with the opinion filed amounts to a denial of plaintiffs’ right to be heard upon the charge of fraud as set out in their bill, and is in effect a dismissal of the same as to them, we find no occasion to disturb the order appealed from.

The property in question, which is a part of plaintiffs’ farm lying adjacent to defendant’s cemetery, is agricultural land, properly fenced, but without buildings, wells or other improvements upon it. The gist of plaintiffs’ complaint is that taking this land for cemetery purposes would disastrously contaminate and pollute the immediate environments of their home, and a green-house they maintain near by; that the addition of this tract to the old cemetery would bring the new south cemetery line 202 feet neare'sr their house and 192 feet nearer their wells than before, the present distances being 685 feet from the house and 575 feet from the wells; that there are other available lands, belonging to persons named, adjacent to the old cemetery and suitable for cemetery purposes; that taking their land for the proposed enlargement is not a public necessity and the village council, without regard to the true facts though familiar with them, fraudulently and maliciously based its resolution “upon a false and fraudulent statement of facts.”

The council embodied in its resolution a statement “ of conditions and reasons for the proposed improvement, the portion nearest approximating what plaintiffs charge as intentionally false and fraudulent being:

“And whereas, the land surrounding said cemetery is not suitable or available for cemetery purposes, except on the south side of said cemetery and within the corporate limits of said village of Morenci, and whereas it is not practical at this time to extend the limits of said cemetery in any other than a southerly direction.”

Such introductory recitals are in their nature largely conclusions or expressions of opinion, not directly an essential of the resolution and determination required as a jurisdictional initial step in the statutory proceedings to take- private property for public use. The resolution by the council, which must contain a determination of necessity, is neither judicial or final. Its legal force and effect being an official determination by the village council which inaugurates and authorizes the proceedings, in which the position of the council is .rather that of a petitioner asserting in prescribed form for adjudication in the proper tribunal the necessity of proposed public improvements and taking, specified private property for public use, which must, however, ultimately be determined by a jury trial in judicial proceedings for which the statute provides. People v. Village of Brighton, 20 Mich. 57; Horton v. City of Grand Haven, 24 Mich. 465; Powers’ Appeal, 29 Mich. 504; Detroit City Railway v. Mills, 85 Mich. 634; Commissioners of Parks v. Moesta, 91 Mich. 149; Detroit Water Com’rs v. Lorman, 158 Mich. 608.

It is not questioned that these proceedings are in conformity with the statute, showing upon their face jurisdiction and all prescribed requirements observed. The charges of fraud and falsehood in plaintiffs’ bill all center in their essentials to the question of necessity of taking their land for a proposed public improvement which is the exact controlling question tendered issuably for determination in a legally constituted forum before a jury where the burden of proof rests upon defendant, where full opportunity is given plaintiffs to appear and be heard upon the facts and law, present proofs and make whatever defense they desire, with the further right of appeal and retrial in • the circuit court from which appeal lies for review in this court. The circuit court correctly found and held that no such fraud was charged in plaintiffs’ bill of complaint as warranted its assumption of jurisdiction to exclusion of the regular statutory proceeding provided for trying the controlling issues involved.

The order appealed from is affirmed, with costs in favor of defendant.

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


author: Steere, J. Ostrander, C. J.

text:
    HATTER v. DODGE BROTHERS.
    1. Automobiles — Personal Injuries — Registration—Evidence oe Ownership.
    In an action for personal injuries caused by a collision between plaintiff’s motorcycle and an automobile, under 1 Comp. Laws 1915, chap. 89, requiring every automobile driven upon a public highway to be annually registered by and in the name of the owner, held, that proof of the license number upon the automobile and of the person in whose name such distinctive number is registered as owner, prima facie identifies both vehicle and ownership.
    2. Same — Master and Servant — Admission oe Driver.
    Evidence that defendant’s name was upon the motor vehicle which occasioned the injury, and the admission of the driver that it belonged to defendant, in whose employment he then was, might have warranted the inference that the relation of master and servant existed, in the absence of any explanation by defendant, and cast upon it a duty of explanation. Ostrander, C. J., dissenting on the admissibility of the admission of the driver.
    3. Same — Motor Vehicle Law — Presumptions—Prima Facie Case — Directed Verdict.
    A prima facie case having been made out by plaintiff under section 4825, 1 Comp. Laws 1915, declaring the owner of a motor vehicle liable for injury caused by its negligent operation unless driven without his consent or knowledge, and the innocence of the driver being presumed in view of section 15431, 3 Comp. Laws 1915, and Act No. 220, Pub. Acts 1917, making it a felony to take possession of and use a motor vehicle without authority, the court below was in error in directing a verdict for defendant.
    See notes in 23 L. R. A. (N. S.) 561; 25 L. R. A. (N. S.) 734; 35 L. R. A. (N. S.) 699; 41 L. R. A. (N. S.) 307; 45 L. R. A. (N. S.) 699; 52 L. R. A. (N. S.) 801; L. R. A. 1915D, 628; L. R. A. 1918A, 918.
    Error to Wayne; Webster, J.
    Submitted April 10, 1918.
    (Docket No. 54.)
    Decided June 3, 1918.
    Rehearing denied January 31, 1919.
    Case by Harvey Hatter against Dodge Brothers for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Dwyer & Dwyer and James A. Murtha, for appellant.

      Frederick J. Ward, for appellee.
   Steere, J.

On the afternoon of August 30, 1916, plaintiff sustained serious personal injuries in a collision at the intersection of Beaubien street and Med-bury avenue, in the city of Detroit, between a motorcycle he was riding and an automobile claimed to have been owned by defendant, and this action was brought to recover damages therefor. At the conclusion of plaintiff’s testimony the trial court granted defendant’s motion for a directed verdict in its favor, holding that plaintiff had failed to make out a prima facie case against defendant.

Beaubien street runs nurfcb. .and south with a single street car track along its center. Plaintiff was riding his motorcycle north, near the curb on the right side of Beaubien street in the direction he was going. The automobile which struck him was being driven south on the opposite side of the street and car track from him, which was the proper side of the street Nr the direction it was going, and had it kept on N course they would have safely passed each other near the intersection of Medbury avenue, but without previous notice or warning, as plaintiff’s evidence showed, the automobile, which was running at excessive speed, suddenly turned east to take Medbury avenue, cutting at a sharp diagonal across, the intersection of the two streets, instead of keeping to the right of the center as it turned, violently colliding with his motorcycle and seriously injuring him. As it turned plaintiff shouted ■loudly and made strenuous effort to avoid the collision, as then did the automobile driver also, but unsuccessfully.

There were several witnesses to the accident who testified in detail to the circumstances and cause. Plaintiff’s evidence as it stood when he rested clearly-showed him free from any contributory negligence, and the collision solely attributable to the .carelessness of the auto driver, who was apparently paying more attention to some girls on the sidewalk than to his driving and grossly violated the law of the road by making a sudden diagonal cut across the corner when turning down Medbury avenue. He stated when he got down from his vehicle after the collision “I did not see him.” He helped to pick plaintiff up and take him home, and shortly after the accident said that he was in the employ of defendant who owned the automobile he was driving, which bore the name of “Dodge Brothers” painted on each side in gold letters, was what is called a pick-up wagon or semi-truck of the kind customarily used by manufacturers, and the license number on it was 5048M, or M5048 as one witness stated. It was shown that only automobile manufacturers are assigned a license number followed by the letter M, that in 1916 license 5048M was issued by the secretary of State to Dodge Brothers and that for such a license the manufacturer could obtain as many license plates of his number as he paid for.

No question was raised in the trial court or here but that plaintiff had proven actionable negligence on the part of the driver of the automobile; but it was and is urged that plaintiff failed to show the vehicle belonged to defendant, that it was being operated in its business by its servant or employee, or that it was used with the knowledge or consent of the owner, which were essential facts to 'establish defendant’s liability.

In directing a verdict for defendant the trial court found there was “a scintilla of proof as to the ownership which could go to the jury,” and said, “but, even if you prove the ownership, even if you prove that this man who drove the car was the servant of Dodge Brothers, then there is no proof that he, at the time he was driving the ear, was about his master’s business, * * * and if there is no proof, then we cannot hold Dodge Brothers for the accident-”

There was more than a scintilla of evidence of ownership to go to the jury. The statute upon the subject of motor vehicles (chap. 89, 1 Comp. Laws 1915), requires every automobile driven upon a “public highway” to be annually registered by and in the name of the owner with the secretary of State who must assign to it a distinctive number and furnish to the owner, who has paid the license fee and complied with the law, a number plate which must be carried and conspicuously displayed on The vehicle it identifies when the same is in use. Penalties are provided for violation of this legislation which is regulatory in its nature and an exercise of the police power of the State. The manifest intent of many of its provisions, such as registration in the name of the owner with detailed description, assignment of a distinctive license number, issuance of an official number plate of special design which must be conspicuously displayed upon the motor vehicles when driven upon a highway, etc., is for identification of the vehicle and its owner. Proof of the license number upon an automobile being driven upon a highway and of the person in whose name such distinctive number is registered as owner, prima, facie identifies both vehicle and ownership.

In the instant case the name of Dodge Brothers was on the motor vehicle which occasioned the injury and the driver admitted shortly after the accident that it belonged to Dodge Brothers in whose employ he then was. The significance of such evidence and duty it imposes upon a defendant of whom such facts are shown, is commented on in Burns v. Paint Co., 152 Mich. 613, as follows:

“In the absence of any explanation, this circumstance and this.statement might have warranted the inference that the relation of master and servant existed. * * * It may be said that the circumstance and admission of Boyseau cast upon defendant a duty of explanation.”

Aside from this, as the law now stands, it is not a prerequisite for recovery to prove that the motor vehicle causing an injury was being operated in the business of the owner, for his use and enjoyment, or by his servant or employee. Section 29 of Act No. 302, Pub. Acts 1915 (1 Comp. Laws 1915, § 4825), provides in part:

“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.”

The section further provides that if the vehicle causing the injury was driven by an immediate member of the owner’s family “it shall be conclusively presumed” that it was with his consent or knowledge.

This section was recently under consideration and sustained as valid legislation well within the police power of the State in Stapleton v. Brewing Co., 198 Mich. 170, where it was held the owner of a motor vehicle was liable for an injury resulting from its negligent operation while being driven in the business of another company to whom it had been loaned, by an employee of the borrower between whom and the owner no relation of master and servant existed and who was not under the owner’s direction or control, nor in any particular engaged in the owner’s business.

This act takes special cognizance of recognized rules of evidence upon implications and presumptions arising from proven facts as proper and legitimate in establishing the responsibility of the owner of an automobile for injuries resulting from its negligent operation by another. It recognizes the difficulty to the injured party of securing direct proof in an automobile accident that the use by another is authorized by the owner and makes plain that fact may be presumptively or impliedly shown by proven facts from which it can be reasonably inferred. The permissible presumptions arising from proven facts are either conclusive, or disputable and open .to rebuttal. If the automobile was being driven by specified relatives or immediate members of the owner’s family the presumption that its use was authorized by him is made conclusive by the statute. It is an intendment of the law which he may not deny or contravene by other evidence, direct or indirect.

In the absence of such statutory qualification the possession, use and control of an automobile in a public place fairly gives rise to the inference that the person so in control is the owner of such property or in lawful possession of it with the express or implied consent of the owner. By statute it is made a felony to take possession of and use a motor vehicle without authority (3 Comp. Laws 1915, § 15431; Act No. 220, Pub. Acts 1917), and the presumption of innocence, in the absence of proof to the contrary, attends the driver. Unexplained and undisputed, the reasonable inference of consent by the owner and authority of the driver is such as common sense and common experience usually draws and applies to the possession of those driving automobiles along our highways. A prima facie case was made out by plaintiff’s evidence, putting defendant to its proofs.

The judgment is reversed, with costs, and a new trial granted.

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

Ostrander, C. J.

Result upon the statute is right. Driver’s admission was incompetent and should not have been received.


text:
    McKENNA v. NEW YORK CENTRAL RAILROAD CO.
    Master and Servant — Workmen’s Compensation Act — Interstate Commerce — Federal Employers’ Liability Act — Jurisdiction.
    Where plaintiff’s son was accidentally killed while employed as a yard conductor in charge of making up trains engaged in. interstate commerce, the industrial accident board was without jurisdiction to make an award under the workmen’s compensation act; her remedy, if any, being under the Federal employers’ liability act (35 U. S. Stat. 65). Carey v. Railway Co., 200 Mich. 12.
    See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.
    Certiorari to Industrial Accident Board.
    Submitted April 16, 1918.
    (Docket No. 79.)
    Decided June 3, 1918.
    Catherine McKenna presented her claim for compensation against the New York Central Railroad Company for the accidental death of her son in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed, and order vacated.

      Angell, Bodman & Turner and C. G. Dyer, for appellant.

      Cummins & Nichols, for appellee.
   Steere, J.

On March 15, 1917, Albert McKenna was in defendant’s employ as a yard conductor in the city of Lansing and lost his life while engaged in directing the making up of New York Central freight train No. 64 in its. Lansing yard. He was on duty there during the nighttime, and as. yard conductor had entire charge of the switch engine and crew, directing their movements in making up this and other trains preparatory to their starting out upon their runs. In his absence it would have been impossible to make up the train in time for it to leave as scheduled. This train regularly carried both inter- and intra-state shipments and on that night consisted of the engine, a caboose and eight freight cars, four of which were loaded with interstate merchandise, billed and bound for points in other States.

There were no witnesses to the accident which caused deceased’s death, but while the train was being made up, shortly after midnight, he was missed and soon thereafter found lying between the rails of the track upon which the train was being placed, crushed and dead with a wheel of one of the cars on his foot.

Deceased was. unmarried with no dependents other than his mother, Catherine McKenna, with whom he lived and who made claim for compensation under the State workmen’s compensation law. Appropriate proceedings were had under that law resulting in an award to her by the industrial accident board of the maximum amount provided by that law in case of death resulting to an employee from accidental injury. The claim was contested by defendant on the grounds that at the time deceased met his death he was engaged in interstate commerce, to which service the State law does not apply; and that in any event the amount claimed, and awarded, was excessive because plaintiff was not wholly dependent on deceased for support, and the permissible award was limited to her shown partial dependency under section 5, part 2, of the act (2 Comp. Laws 1915, § 5435). The industrial accident board found as a matter of fact that deceased was engaged in interstate commerce at the time of his death but held that, as the employer was not shown to have been guilty of negligence, the Federal law did not apply.

At the time the award was made by the board in this case and certiorari taken for review here the case of Carey v. Railway Co., 200 Mich. 12, had not been handed down. It was there said to be settled conclusively by the Federal authorities cited, which are controlling upon the question, that in all American jurisdictions “employees of an interstate carrier engaged in interstate business are not within the jurisdiction of the State workmen’s compensation acts.” In that decision it is held, and recognized as settled by paramount Federal decisions, that the United States employers’ liability statute (35 U. S. Stat. 65) covers the subject of the liability of railroads to their employees for injuries sustained while engaged in interstate commerce to the exclusion of our State workmen’s compensation act. This case has since been cited as controlling and followed in Nichols v. Waters, 201 Mich. 27, and Miller v. Railway Co., 201 Mich. 72.

That deceased’s employment was in interstate commerce at the time of his fatal injury cannot be questioned, and was so found as a matter of fact by the industrial accident board.

It therefore follows from the recent decisions above referred to that the order of award by the board must be and hereby is reversed.

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


author: Brooke, J.

text:
    LEWIS J. SELZNICK ENTERPRISES v. HARRY I. GARSON PRODUCTIONS.
    1. Equity — Motion to Dismiss — Pleading—Judicature Act— Practice.
    Under section 4, chap. 14, of the judicature act (section 12456, 3 Comp. Laws 1915), unless the matters set up in a motion to dismiss are matters which might have been raised by demurrer, plea in abatement or plea to the jurisdiction under the former practice, they cannot be made the basis of a motion to dismiss.
    2. Same..
    A motion to dismiss a bill of complaint on the grounds of lack of equity, that plaintiff has an adequate remedy at law, and that plaintiff is a foreign corporation carrying on business within the State without complying with Act No. 206, Pub. Acts 1901, as amended, cannot properly be considered either as a plea in abatement or a plea to the jurisdiction.

    3. Corporations — Foreign Corporations — Right to Courts.
    Foreign corporations have an undoubted ’ right to litigate their claims in the courts of this ■ State.
    4. Equity — Accounting—Equitable Jurisdiction.'
    A contract and the dispute arising thereunder whereby plaintiff gave defendant exclusive rights in certain motion pictures in Michigan, under which there is claimed to be due plaintiff a large sum of money, the exact determination of which will require an extensive accounting, and by reason of the breach of the contract plaintiffs are entitled to the return of certain positive prints and printing matter furnished defendants, is within equitable jurisdiction.
    5. Corporations — Foreign Corporations — Affirmative Defenses —Compliance with Statute.
    If plaintiff is barred from maintaining an action because of failure to comply with Act No. 206, Pub. Acts 1901, as amended, that fact has no bearing upon the jurisdiction of the court, but may be pleaded as an affirmative defense in bar of the action.

      6. Equity — Motion to Dismiss — Demurrer—Practice.
    Assuming that the motion to dismiss may be regarded in the light of a demurrer, defendants’ answer and the affidavit in support of the motion cannot be considered in determining the question involved, viz., whether the bill of complaint stated a cause of action.
    7. Corporations — Foreign Corporations — Pleading — Presumptions — Compliance with Statute.
    Averment in the bill of complaint that plaintiff has com- r plied with the statute (Act No. 206, Pub. Acts 1901, as amended) is unnecessary, as such compliance will be presumed.
    Appeal from Wayne; Searl, J., presiding.
    Submitted April 10, 1918.
    (Docket No. 55.)
    Decided June 3, 1918.
    Bill by Lewis J. Selznick Enterprises, Incorporated, against the Harry I. Garson Productions and another for an accounting and for injunctive relief. From an order denying a motion to dismiss, defendants appeal.
    Affirmed.

      Angell, Bodman & Turner and Clifton G. Dyer (Konta & Kirchwey, of counsel), for plaintiff.

      Robert M. Brownson (Frederick S. Baker, of counsel), for defendants.
    The plaintiff in this case, a New York corporation, •filed a bill of complaint against defendants setting forth that on May 28, 1916, it entered into an agreement in writing with defendant Garson, by the terms of which Garson was given sole, exclusive, right, license, and authority to distribute and exploit in the State of Michigan certain motion pictures. By the terms of said agreement it was further provided that said Garson might assign said right to a corporation to be by him organized under the laws of the State of Michigan. Such corporation was so organized and such right was assigned to the corporation defendant herein. It is averred in the bill of complaint that since April 29, 1917, said, defendants have failed to perform under said agreement; that there is now due the plaintiff a large sum of money under said contract, the exact determination of which will require an extensive accounting; that under said contract upon the breach thereof by defendants, plaintiff is entitled to the return of certain positive prints and printing matter furnished defendants by plaintiff.
    Plaintiff prays:
    1. For an accounting.
    2. For the payment of such sums as may be found due.
    3. For a return of the property alleged to be unlawfully withheld by the defendant.
    4. For an injunction, temporary and permanent, preventing defendants from further exploiting said motion pictures within the State of Michigan.
    To this bill of complaint defendants on August 11, 1917, filed a joint and several answer, which, together with its exhibits, covers upwards of 100 pages of the printed record. In the meantime and on June 23,1917, defendants made a motion to dismiss the bill of complaint upon the following grounds:
    1. Because there is no equity upon the face of plaintiff’s bill of complaint.
    2. Because it appears upon the face of the bill that the plaintiff has an adequate remedy at law.
    3. Because it appears upon the- face of the bill that plaintiff is a foreign corporation carrying on business within the State of Michigan without complying with the provisions of Act No. 206, Pub. Acts 1901, and the acts amendatory thereof [2 Comp. Laws 1915, § 9063 et seq.].

    4. Because it appears in and by Exhibit 3 attached to defendants’ answer that the plaintiff has failed and neglected to file in the office of the secretary of State of Michigan a record of its articles of association in conformity with the provisions of said Act No. -206.

      This motion was heard in the court below and denied on August 14, 1917, the court saying in part:
    “I am of the opinion that, under all the facts so far as I have been able to understand them from the pleadings and arguments and concessions made, that the court ought not to say at this time that the plaintiff is not doing an interstate business. * * * I am of the opinion that the argument which has been made here, that the plaintiff had an office here in Detroit, is fallacious. The only business that plaintiff had here in Detroit was the office of the defendants, and while the correspondence, printed literature and advertisements speak of this as the-office of the plaintiff, it was in fact the office of the defendants. That was largely an advertising matter to call it plaintiff’s office. For that reason and other reasons not necessary to explain now, the motion to dismiss will be denied, the court holding at this time, so far as he is able to learn, that the plaintiff, in making this contract, was carrying on interstate business, and it has a right to bring this suit.” ., ,,.........
    Defendants now review the denial of said motion to dismiss, this court having by order granted leave to appeal.

      See note in 17 L. R. A. (N. S.) 1117.

   Brooke, J.

(after stating the facts). The brief of appellants is devoted entirely to a discussion of the question whether plaintiff was in fact engaged in carrying on business in the State of Michigan without a license. The meritorious question thus raised we find it unnecessary to discuss at this time for the reason that in our opinion defendants are not entitled to a final determination thereof upon the record as presented.

Section 4, chap. 14, of the judicature act (3 Comp. Laws 1915, § 12456), is as follows:

“Demurrers, pleas in abatement, and pleas to the jurisdiction, are abolished. All questions heretofore raised by such plea or demurrer, shall hereafter be raised by motion to dismiss, or in the answer or notice attached to the plea; and in case such questions are raised by answer, or by notice attached to the plea, the same may be brought up for determination by the court, in advance of the trial of said cause, upon four days’ notice by either party.” * * *

We had this section under consideration in the late case of Pagenkoff v. Insurance Co., 197 Mich. 166, where we said:

“Unless the matters set up in this motion to dismiss are matters which might have been raised by demurrer, plea in abatement, or plea to the jurisdiction under the former practice, they cannot be made the basis of a motion to dismiss.”

Section 3 of Circuit Court Rule No. 25 provides:

“Pleas in equitable actions, other than pleas in . abatement and to the jurisdiction (which are abolished by' statute) are abolished, and all defenses which might formerly be raised by such pleas shall be interposed by answer provided that on cause shown by motion an issue so raised may be heard in advance of the trial in the cause.”

In our opinion the motion to dismiss cannot properly be considered either as a plea in abatement or a plea to the jurisdiction. Foreign corporations have an undoubted right to litigate their claims in the courts of this State. We are, too, of opinion that the contract itself and the dispute arising thereunder is- within equitable jurisdiction. If plaintiff is barred from maintaining this action because of the statutory provision, that fact has no bearing upon the jurisdiction of the court but may be pleaded by defendants as an affirmative defense in bar of the action. Power Specialty Co. v. Michigan Power Co., 190 Mich. 699. Assuming but not determining that the motion to dismiss may be regarded in the light of a demurrer, defendants’ answer and the affidavits in support of the motion cannot be considered in determining the question. Freeman v. Mitchell, 198 Mich. 207. Upon such an inquiry the only question involved would be whether the bill of complaint stated a cause of action. Allen v. Powers, 196 Mich. 622. Averment in the bill that plaintiff has complied with the statute is unnecessary, as such compliance will be presumed. Prussian National Ins. Co. v. Eisenhardt, 153 Mich. 198. We are quite clear that the defense relied upon is affirmative in character and must be pleaded in bar. Pagenkoff v. Insurance Co., supra. See, also, Fuller & Co. v. Schrenk, 58 App. Div. 222; Illinois Sewing Machine Co. v. Harrison, 43 Colo. 362 (96 Pac. 177).

The order denying the motion to dismiss is affirmed.

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


text:
    LEWIS J. SELZNICK ENTERPRISES v. HARRY I. GARSON PRODUCTIONS.
    1. Equity — Motion to Dismiss — Pleading—Demukbeb.
    Defendant’s motion to dismiss the bill of complaint must be considered as a demurrer to the bill, admitting all properly pleaded allegations therein to be true.
    2. Injunction — Equity—Relief—Adequate Remedy at Law.
    A bill setting up that defendant wrongfully obtained possession of a moving picture film, which through its exploitation at a price or rental greatly below normal would destroy plaintiffs’ custom, credits, and profits, and would cause them irreparable injury, which could not be adequately compensated in damages, presented a situation where injunctive relief was necessary.

      3. Accounting — Equity—Adequate Remedy at Law.
    Upon the question of accounting, the remedy in equity is more complete and better adapted to the ends of justice than the remedy at law.
    4. Equity — Jurisdiction—Fraud.
    Where fraud is charged, equity may assume jurisdiction, even though plaintiffs have a remedy at law.
    5. Same — Motion to Dismiss — Plea in Abatement.
    Defendant’s motion to dismiss, based on the ground that the material issue involved will be determined in a pending suit at law, amounts to, a plea in abatement and should show that the whole relief sought in the second suit is obtainable in the first.
    6. Same — Motion to Dismiss — Foreign Corporations — Defenses —Compliance with Statute.
    That plaintiffs, foreign corporations, have not complied with Act No. 206, Pub. Acts 1901, as amended, in regard to doing business in Michigan, should be pleaded in bar, and is not available upon a motion to dismiss.
    7. Election of Remedies — Estoppel—Commencement of Suit.
    Because plaintiffs brought replevin to secure possession of a moving picture film, they are not thereby estopped from maintaining an equitable action for an accounting and for injunctive relief; the mere starting of an action at law or a suit in equity not constituting an election, and until election is completed, the pursuit of both remedies will not deprive plaintiffs of either.
    Appeal from Wayne; Searl, J., presiding.
    Submitted April 10, 1918.
    (Docket No. 56.)
    Decided June 3, 1918.
    Bill by Lewis J. Selznick Enterprises, Incorporated, and another against the Harry I. Garson Productions for an accounting and for injunctive relief. From an order denying a motion to dismiss, defendant appeals.
    Affirmed.

      Angell, Bodman & Turner and Clifton G. Dyer (Konta & Kirchwey, of counsel), for plaintiffs.

      Millis, Griffin, Seely & Streeter (Robert M. Brownson, of counsel), for defendant.
    The bill of complaint sets out the fact that the plaintiffs are engaged in the business of distributing and exploiting motion pictures; that in the course of said business on June 10, 1917, they shipped by American Express to their agent, Dennison, in the city of Detroit, one positive print of the motion picture “Poppy”; that defendant fraudulently and wrongfully secured possession of said positive print; that immediately upon learning of such wrongful taking plaintiffs made a demand upon defendant for the return of the same which was refused; that on September 7, 1917, plaintiffs started a replevin suit against defendant and by virtue of the writ recovered possession of the said print; that thereupon defendant corporation furnished a bond in the sum of $1,000 and regained possession of the print in question; that since regaining possession of said positive print known as “Poppy” defendant corporation has fraudulently and wrongfully been distributing, exploiting and leasing the same in various parts of Michigan, and is wrongfully proceeding to collect rentals thereon amounting to a large sum of money, to wit, $5,000. The bill contains other averments not necessary to an understanding of the questions presented.
    Plaintiffs pray:
    1. For an accounting.
    2. For payment of such sums as may be found due.
    3. For an injunction temporary and permanent against defendant corporation restraining it from exploiting or leasing said motion picture “Poppy.”
    This bill was filed on October 25, 1917, and an injunction issued on November 3, 1917. On the same day defendant filed an answer and cross-bill and a motion to dismiss. The motion is based upon the following grounds:
    1. It appears on the face of the bill that plaintiffs have a plain, adequate, and complete remedy at law.
    2. It affirmatively appears in and by said bill of complaint, defendant’s answer attached thereto, and the records and files of this court, in the case of Lewis J. Selznick Enterprises, Inc., a foreign corporation, plaintiff, v. Harry I. Garson Productions, et al., defendants, Court No. 59,604, that all of the material issues involved in this case are necessarily determinable in the other case.
    3. It affirmatively appears from the bill, defendant’s answer, and the exhibits attached thereto that plaintiff, the said Lewis J. Selznick Enterprises, Inc., is a foreign corporation doing business in Michigan without complying with the provisions of Act No. 206, Pub. Acts 1901, and acts amendatory thereof (2 Comp. Laws 1915, § 9063 et seq.).
    4. It appears from the bill of complaint and the answer that prior to the commencement of this suit plaintiff commenced a replevin suit against defendant, Court No. 68,469, and it is apparent that the same issues are involved in the said replevin case as in this, said replevin suit being now pending and undetermined.
    The motion was supported by several affidavits, other affidavits contra being filed by plaintiffs. The matter came on for hearing and the motion was denied November 23, 1917. Leave having been granted, defendant here reviews the order denying the motion to dismiss.
   Brooke, J.

(after stating the facts). Have plaintiffs a plain and complete remedy at law? The motion to dismiss as to this ground must be considered as a demurrer to the bill and the demurrer admits all properly pleaded allegations in the bill to be true. Assuming the truth of the allegations contained in the bill it seems to us quite clear that the recovery of damages in the replevin suit would fall far short of affording plaintiffs a complete and adequate remedy. It is averred in the bill that defendant through its exploitation of the picture “Poppy” at a price or rental greatly below normal

“destroys and will destroy plaintiffs’ custom, credits and profits and causes and will cause irreparable injury to plaintiffs which cannot be adequately compensated for in damages.”

Under a situation such as was presented by the bill of complaint injunctive relief is clearly necessary to protect plaintiffs’ rights. Upon the question of accounting, too, the remedy in equity is more complete and better adapted to the ends of justice than the remedy at law. Castle Creek Water Co. v. City of Aspen, 146 Fed. 8, and Butler Bros. Shoe Co. v. Rubber Co., 156 Fed. 1. Where, as in the case at bar, fraud is charged, equity may assume jurisdiction even though plaintiff may have a remedy at law. 16 Cyc. p. 82; Homrich v. Robinson, 221 Mass. 308.

Under this branch of appellant’s motion it is stated that the material issue involved in the suit at bar will be determined in the case of Lewis J. Selznick Enterprises, Inc,, v. Harry I. Garson, et al., Court No. 59,604. Inasmuch as in the bill of complaint filed in that case no. mention is made of the picture “Poppy,” we think the claim without merit. It seems plain to us that plaintiffs are seeking relief in the case at bar which they cannot secure in the other case. This part of the motion amounts to a plea in abatement and should show that the whole relief sought in the second suit is obtainable in the first. 16 Cyc. p. 289.

Under the decision of Lewis J. Selznick Enterprises v. Garson, ante, 106, handed down herewith, this branch of defendant’s motion should be pleaded in bar and is not available upon a motion to dismiss.

Have plaintiffs because of the starting of the replevin suit elected their remedy and so estopped themselves from maintaining this equitable action? The mere starting of an action at law or a suit in equity does .not constitute an election. 15 Cyc. p. 264. Until election is completed the pursuit of both remedies will not deprive plaintiffs of either. Id.

A consideration of the pleadings in this case, as well as those in its companion case, to which reference has been made, convinces us that the motion to dismiss was properly denied.

Order affirmed, with costs.

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


author: Brooke, J. Fellows, J.

text:
    SIDEBOTTOM v. CALHOUN CIRCUIT JUDGE.
    Attachment — Mandamus—Intervenees—Statutes.
    In mandamus proceedings to compel the circuit judge to set aside an order permitting the wife of defendant to intervene in a suit commenced against him, where property in the wife’s name was attached on the ground that defendant was attempting to conceal his property in this State for the purpose of defrauding his creditors, held, that the order should be modified allowing her to intervene as to the liability of the husband and the amount thereof, since the avowed purpose of the attachment case is ultimately to file a bill in aid of execution to subject the attached property to the payment of the judgment; but she may not intervene for the purpose of moving a dissolution of the attachment proceedings, because that would not be “in subordination to and in recognition of the propriety of the main proceeding,” under section 12362, 3 Comp. Laws 1915; nor may the question of fraud in the conveyance to her he determined. Ostrander, C. J., and Steere, Brooke, and Stone, JJ., dissenting in part.
    Mandamus by Robert B. Sidebottom to compel James G. Tucker, acting circuit judge of Calhoun county, to vacate an order permitting an intervention in an action at law.
    Submitted April 9, 1918.
    (Calendar No. 27,564.)
    Writ granted in modification of the order June 3, 1918.

      Goodenough & Long, for plaintiff.
   Brooke, J.

In this case relator seeks by mandamus to compel the trial court to set aside an order permitting Clara K. Butler to intervene in an action at law in which relator is plaintiff and one Hiland G. Butler, husband of said Clara K. Butler, is defendant. It appears that in February, 1916, relator commenced an action in assumpsit against said Hiland G. Butler. At the time said action was commenced an affidavit of his attorney was filed setting forth among other things that defendant was a nonresident of the State and had concealed and was attempting to conceal his property in the State of Michigan for the purpose of defrauding his creditors. Upon the filing of said affidavit a writ of attachment was issued, returnable February 25, 1916. On March 10, 1916, the writ was returned by the sheriff who certified that he was unable to find the defendant in his county and further that he had attached certain real estate described. At the time said attachment was made the record title to the attached premises stood in the names of said Clara K. Butler, wife of defendant, and of W. P. Butler and Ethel Reliance Butler, son and daughter-in-law of said defendant. Thereafter said Clara K. Butler filed a petition for leave to intervene under the provisions of section 11, chap. 12, Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1915, § 12362), which follows:

“In an action either at law, or in equity, any one claiming an interest in 'the litigation may, at any time, be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding.”

This motion came on to be heard on April 17, 1916, and was thereafter granted by respondent. A motion made on April 24, 1916, for an order vacating said ordér was denied. The only question raised by this proceeding is whether the learned circuit judge was correct under the undisputed facts in granting the order permitting Clara K. Butler, wife of the defendant, who claims to own the property attached, to intervene in the suit at law between relator and her husband. We are of opinion that it must be held that the order permitting intervention was erroneously entered. Prior to the passage of the judicature act, so called, such intervention was not permitted. In Peterson v. Swenningston, 178 Mich. 294, it is said:

“The trial court correctly denied Lee's motion for leave to intervene. Whatever the rule may be in other jurisdictions having different rules of practice or enabling statutes, it is the rule in this State that a third person not a party to the action cannot directly intervene to establish ownership of property levied upon by execution. * * *
“He having sold the property before this action was begun, its title and ownership are matters between defendant’s grantee and plaintiff to be litigated in independent, appropriate proceedings between themselves, in which both are parties to the record.”

We are unable to see how Clara K. Butler, a stranger to the action at law pending between relator and her husband, has an “interest” in the litigation. The primary purpose of the action at law is to establish the fact that Hiland G. Butler is. indebted to relator. If said Hiland G. Butler does not appear and defend in that action judgment would doubtless pass against him by default. The issuing of the attachment against the lands once owned by Hiland G. Butler, the record title to which now stands in the names of his wife and son, serves only to effect substituted service upon the ■original defendant, so bringing him within the jurisdiction of the court. The passing of judgment against him in that action affects not at all the title to the real estate claimed to be owned by Clara K. Butler and her son aftd daughter-in-law. Assuming judgment is obtained, execution must be levied upon the attached lands and a bill in aid of execution filed against those in whose name the legal title to said lands stands. In that proceeding Mrs. Butler may properly contest the claim made by relator that Hiland G. Butler in disposing of said property to his wife and son did so fraudulently and with the purpose to defeat and defraud his creditors, of whom relator claims to be one.

The identical question under statutes essentially similar to the section of the judicature act above quoted has been determined in several of our sister States, in accordance with the contention of the relator. See Dunker v. Jacobs, 79 Neb. 485 (112 N. W. 579); Meyer & Sons Co. v. Black, 4 N. M. 352 (16 Pac. 620); Loving v. Edes, 8 Iowa, 427; Gates v. Lumber Co., 9 Ohio C. C. 378. For cases in which intervention may properly be permitted under the section relied upon, see Weatherby v. Kent Circuit Judge, 194 Mich. 46, and McMillan v. School District, 200 Mich. 280.

The mandamus will issue as prayed.

Ostrander, C. J., and Steere and Stone, JJ., concurred with Brooke, J.

Fellows, J.

I do not agree with all that has been said by Mr. Justice Brooke, in this case. I agree that Mrs. Butler may not intervene for the purpose of moving a dissolution of the attachment proceedings because that would not be “in subordination to and in recognition of the propriety of the main proceeding.” She may not, in this proceeding, have determined the question of fraud in the conveyance to her; but the avowed purpose of this attachment case is to ultimately file a bill in aid of execution with a view of subjecting the property standing in her name to the payment of the judgment obtained in the case, on the ground that such property was fraudulently conveyed to her. As between her and her husband, she is entitled to the property conveyed to her even though in fraud of creditors. If in fraud of creditors the conveyance to her will be set aside upon the bill in aid of execution, and the property become subject to sale to satisfy the judgment. She, therefore, has an interest in the question to be determined in the attachment case, viz., the liability of her husband and the amount thereof. I think, for the purpose of being heard on that question, she is within the purview of the judicature act quoted by Justice Brooke. In Weatherby v. Kent Circuit Judge, 194 Mich. 46, and McMillan v. School District, 200 Mich. 280, cited by my Brother, intervention by those who might ultimately be called upon to pay the judgment was held proper under this statute. I think these cases authorize Mrs. Butler to intervene in this case “in subordination to and in recognition of the propriety of the main proceeding.” As I understand the record this will require a modification of the order made by respondent, the record indicating that Mrs. Butler was permitted to intervene for the purpose of moving for dissolution of the attachment.

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