text:
    ROBBINS v. ORIGINAL GAS ENGINE CO.
    1. Master and Servant — Accident—Workmen’s Compensation.
    Claimant, who applied for compensation for hernia that resulted from a sudden and violent effort on his part in attempting to disengage one side of a gas engine, which he and another were attempting to shove and which stuck to the floor, suffered from an accidental injury within the , meaning of the workmen’s compensation law, and was entitled to an award.
    2. Same — Expert and Opinion Evidence.
    And under expert evidence that sudden development of hernia is impossible, but the rupture of the inguinal wall may be felt, that the sac is previously and gradually formed, and a single act of tension cannot ordinarily result in the protrusion, the board did not err in granting compensation, since the hernia occurred as the result of a strain, and, as a result, the sac protruded, which medical attention was required to alleviate.
    3. Same — Amount oe Compensation.
    A laborer, who had worked' at painting engines for many years, and was employed by respondent for over nine years, and had labored continuously for a year, except seven weeks that he lost, was entitled to compensation on the basis of one-half his average weekly earnings to be found by dividing the amount received during the preceding year by 52; it was improper to award 300 times his average daily wages, a method of estimating damages which should be applied only if the employee has worked for a period considerably less than a year.
    Certiorari to the Industrial Accident Board.
    Submitted January 10, 1916.
    (Docket No. 76.)
    Decided March 31, 1916.
    James F. Robbins presented his claim for compensation against the Original Gas Engine Company for injuries received while in respondent’s employ. From an order' awarding compensation respondent and the Zurich General Accident & Liability Insurance Company, its insurer, bring certiorari.
    Reversed.

      Ivan E. Kerr, for appellants.

      Shields & Silsbee, for appellee.
   Ostrander, J.

It is the contention of respondents, plaintiffs in certiorari, that the testimony fails to prove accidental injury. The testimony introduced on the part of claimant tended to prove that on January 22, 1915, while he assisted another in moving a gasoline engine weighing some 600 pounds, he suddenly had pain in his left groin, noticed a small swelling in the groin that night, consulted a physician, was advised that he had a hernia, and was operated upon for hernia. His claim is for compensation for time lost from February 6, 1915, to April 5, 1915, for medical attendance, hospital and ambulance fees, a total of $167.08. o This amount was allowed by arbitrators, and, upon appeal, the allowance was affirmed.

Claimant had worked for the Original Gas Engine Company for about nine years, painting gasoline engines. For three years the conditions under which he worked and the method of doing the work were the same. Claimant described the injury, as well as the conditions, as follows:

“Q. What happened, Mr. Robbins?
“A. Well, in the course of painting the engines, we have to wash the grease off, and where we wash them there is a slope down to a drain, and pulling that engine up out of there, putting it where we are going to paint them, — a man takes hold of each side of the engine, on the shaft, pulls them up out of there.
“Q. And the engine stuck?
“A. Naturally, on the hump there. Two of us were working on the engine; Mr. Carr, the gentleman here, and myself. In order to move the engine, Mr. Carr would take hold of one shaft in a stooping position. On the 22d day of January, when we were pulling the engine up out of there, Mr. Carr had the long end of the shaft and I had the short end, gave him a little advantage, but we don’t look at that. Anyway, my side seemed to get behind, and I used extra effort to start it, and at that time I felt pain.
“Q. Just describe, if you will, the position you were in, what doing, and where the pain was.
“A. Well, we were stooping over, in a stooped position (indicating), pulling, and the pain shot up across my side of my body in the groin. As near as I can figure, the engine we were pulling weighed somewhere in the neighborhood of 600 pounds. I have never previously suffered similar pain in the region of my groin. I have never had any attacks similar to what developed after this pain. The pain I suffered was simply a pain, that shot around there, and I felt weak afterwards. I did not do anything concerning the pain immediately, but noticed it once in a while. I looked my body over that night to see whether there was any injury, and I noticed a small swelling in the left groin. This swelling was. not there when I went to work that morning. I do not know of anything that occurred to me that would have caused the swelling, except this strain and lifting the time I felt the pain. When I discovered the swelling, I was worried about it and consulted Dr. F. A. Jones; that would be on Saturday evening. He did not make any investigation of my body at that time, although I described the sense of pain that I had and the swelling. He did not see the swelling that night, neither did he prescribe anything for me. He said, I don’t remember the doctor’s exact words, something to the effect that a cold had settled in the glands and it would pass away in a day or two. 1 went back to the same doctor again on Monday after that Saturday night. I worked Saturday, and the following Monday I went back to the doctor because the swelling was larger. The doctor at that time made an examination and said that I had hernia.”

On cross-examination he testified:

“Prior to January 22, 1915, I did not have a hernia. I know what a hernia is, in a way. It is the breaking of the lining of the stomach, and, while I don’t really know whether I had a hernia before or not, I never had any pain or swelling down there. Never had any trouble there.
“Q. You don’t know whether you had a hernia or not?
“A. Well, according — if that is what I had, I never had one before. I have been employed with the Original Gas Engine Company for almost nine years.
“Q. And how long had you been doing this particular class of work?
“A. Ever since 1 have been there.
“Q. The very same kind of work?
“A. Exactly. The conditions of the factory during the nine-year period was not exactly the same as on January 22,1915, ’cause the Original Gas Engine Company have moved into these quarters about three_ years ago and previous to that time, of course we did not have the same floor to work on.
“Q. Then for three years you had been doing the work in the exact manner you were doing the work under date of January 22d?
“A. (Witness nods yes.)
“Q. The engine weighed, you say, in the neighborhood of 300 to 600 pounds?
■ “A. Somewheres in the neighborhood of 600.
“Q. You have been handling the same* make of engine right along?
“A. Yes; of course, you understand these engines are not the same size.
“Q. And when you were lifting the engine on this particular day, at this particular time, you merely felt a pain?
“A. A sharp pain, yes.
“Q. That was all out of the ordinary that happened at that time?
“A. Yes. * * *
“Q. You were doing the same class of work you had been doing for nine years?
“A. Yes, sir.
“Q. There was nothing whatever out of the ordinary that you did on that particular day?
“A. No, sir.”

And on redirect:

“Q. Mr. Robbins, do you ever remember any other occasion where any engine weighed as much as this one stuck and you had to exert yourself as you did in this case to move it?
“A. I couldn’t state any particular case, but there has been engines; it is a cement floor, and cast iron has a tendency to stick.
“Q. Had it occurred before that day at all, that you remember?
“A. Well, I presume there has been engines sticking down there, but I couldn’t name any particular time.
“Q. Could you say for sure whether they stuck so you had to exert extra strength?
“A. I couldn’t do it.”

The history of the particular case excludes the idea of the use, with violence, of an instrument, or substance, puncturing or rending the abdomin'al wall.

A physician, the one first consulted by claimant, testified that in his opinion the hernia was caused by the strain in moving the engine. He further testified that when he first examined claimant he was able to reduce the hernia with his finger; that there were no adhesions. In these circumstances he found support for his conclusion that this was a new and not an old hernia. The surgeon who operated upon claimant testified that in his opinion the hernia was produced by the exertion described by claimant. All the experts seem to agree that the visible evidence of the hernia is the protrusion through the inguinal ring of the peritoneum and its contents; “the hernia is the peritoneum going through, accompanied by the intestines or some other substance.”

But the testimony for respondents is to the effect that the peritoneum is incapable of sudden, and is capable of very gradual, extension; that the sudden complete development of hernia in a pathological sense is impossible, but the hernia may be felt — the sudden projection of hernial contents into the preformed sáe —for the first time during a straining effort. Various medical authorities to which the court is referred appear to sustain the proposition that hernia is of slow formation and can never arise from a single augmentation of intra-abdominal tension, however great it may be. It may be said that the testimony of claimant’s experts does not deny this proposition; that they regarded the condition which they found — the condition they undertook to relieve — as caused by the strain and exertion of the claimant. They found a hernia, a protrusion, to be reduced, and found cause for it in the described strain and exertion of claimant.

The Michigan law does not award compensation for all personal injuries suffered by an employee, but for accidental injuries only. Adams v. White Lead & Color Works, 182 Mich. 157 (148 N. W. 485, L. R. A. 1916A, 288). The vital question which the • Industrial Accident Board had to determine was not whether on January 22, 1915, it was discovered that claimant had hernia, but was whether claimant on that day suffered an accidental injury, arising out of and in the course of his employment. Accepting respondents’ proposition as true, it may be said that upon the occasion in question, by reason of a strain, or effort, of claimant, in performing his duties, an undiscovered and undiscoverable, but previously formed, sac was pushed' through the left inguinal ring and muscles. So much injury claimant then and there suffered, to alleviate, if not to cure, which medical attention and treatment were required. It is compensation for that injury which is claimed and was allowed. Was it an accidental injury within the meaning of the law? It has been said of the expressions “accident” and “accidental,” employed in an act having a purpose similar to ours, that they were used with their popular and ordinary meaning. Happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected.

“If a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, then the injury has resulted through accidental means.” United States Mutual Accident Ass’n v. Barry, 131 U. S. 100, 121 (9 Sup. Ct. 755, 762).

This is a case relied upon by respondents.

It has been held that death resulting from a ruptured artery was not accidental when the rupture occurred while the insured was reaching from a chair to close a window, did not slip or fall or lose his balance, and nothing unforeseen occurred except the bursting of the artery. Feder v. Traveling Men’s Ass’n, 107 Iowa, 538 (78 N. W. 252, 43 L. R. A. 693, 70 Am. St. Rep. 212). An examination of cases arising principally upon accident insurance policies, some of which are collected in a note to Lehman v. Accident Ass’n, 42 L. R. A. (N. S.) 562, discloses that in the opinions which seem to be best considered the distinction is observed between the means by which an injury is produced and the result of the producing cause or causes. It is not sufficient that there be an unusual and unanticipated result; the means must be accidental — involuntary and unintended. There must, too, be some proximate connection between accidental means and the injurious result. It is doubtful, however, if in applying our statute, its general purpose being considered, the court should exactly follow the rules suggested and applied in the cases referred to. The statute seems to contemplate that an accidental injury may result by mere mischance; that accidental injuries may be due to carelessness, not wilful, to fatigue, and to miscalculation of the effects of voluntary action. There is testimony in the record, although it is not very conclusive, to support a finding that claimant was suddenly, and accidentally, put at disadvantage by the act of his fellow workman and the sticking of the engine on the concrete floor, and that the rupture and immediate protrusion of the abdominal sac were caused by his efforts to retrieve his position and do his work. It is assumed that it was the first time the sac had been forced through the abdominal wall. If it is also assumed that there was a certain lack of physical integrity in the parts where the injury was manifested, still I think claimant may have compensation for the injury he suffered. I decide only the particular case, and in doing so decline to hold, upon this record, that claimant suffered from disease and not from accidental injury. See Grove v. Paper Co., 184 Mich. 449 (151 N. W. 554).

The method employed by the board to ascertain the amount of claimant’s wages is questioned. Claimant had been employed by the Original Gas Engine Works for nine years. During the period from February 6, 1914, to February 6, 1915, he worked the entire time except seven weeks — 42 working days. His wages were $19.50 per week. He earned and received $790.15 during the year. The average weekly wages actually earned during the year was $15.20, one-half of which is $7.60. But claimant was- awarded $8.76 a week, or an average weekly wage of $17.52. It was ruled that, having lost seven weeks, claimant had not worked substantially the whole year, in the same employment, immediately preceding his injury, and that 300 times the average daily wage was the average annual earning. The statute, so much of it as is material, provides (2 Comp. Laws 1915, § 5441):

“Sec. 11. The term 'average weekly wages’ as used in this act is defined to be one fifty-second part of the average annual earnings of the employee. If the injured employee has not worked in the employment in which he was working at the time of the accident, whether for the employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he has earned in such employment during the days when so employed. If the injured employee has not worked in such employment during substantially the whole of such immediately preceding year, his average annual earnings shall consist of three hundred times the average daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or a similar employment in the same or a neighboring place, shall have earned in such employment during the days when so employed. In cases where the foregoing methods of arriving at the average annual earnings of the injured employee cannot reasonably and fairly be applied, such annual earnings shall be taken at such sum as, having regard to the previous earnings of the injured employee, and of other employees of the same or most similar class, working in the same or most similar employment, in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee at the time of the accident in the employment in which he was working at such time.”

Claimant had worked in the employment, that is, in the capacity and line of work in which he was working at the time of his injury, for many years — not only substantially, but wholly. It was therefore manifestly improper to employ the factor of average daily wages in determining the average weekly and annual wages. It is obvious, too, that the average annual wages of one employed for years in the same capacity and line of work cannot be determined except by comparing the wages of two or more years. A man may change his employment or the capacity in which he follows it. If he has done this at a time substantially less than a year before his injury, then the statute fixes 300 times his average daily wages as his average annual wages. For the man who works for years in the same employment and is injured, the statute fixes average weekly wages at 1/52 part of his average annual earnings. This is the rule which should be applied in this case. The record does not supply the information required to make a finding.

It is assumed that the parties in interest can easily ascertain and agree about the annual earnings of claimant for a period of at least three years. It is, of course, possible that the award made is substantially a correct award; but, the rule applied being inapplicable, it must be set aside.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    DAVIS v. SAGINAW-BAY CITY RAILWAY CO.
    I. Street Railways — Negligence—Streets.
    Evidence that plaintiff, after alighting from defendant’s street car, passed around the rear and was struck by a rapidly moving car coming from the opposite direction on the adjoining track, that the speed of the car was about 30 miles per hour, and that it did not stop in approaching the one from which plaintiff alighted, or give the usual signals, held, to show contributory negligence and not to present any issue of gross negligence which the court should have submitted to the jury.
    2. Same — Personal Injuries — Comparative Negligence — Contributory Negligence.
    Comparative negligence is not recognized in this State and gross negligence does not in all cases relieve an injured plaintiff from the consequences of his negligence: hut contributory negligence may not preclude recovery in a case where the defendant knew, or ought to have known, of the precedent negligence of plaintiff.
    3. Same — Alighting from Car — Duty to Dook.
    The fact that plaintiff did not look for an approaching car at a point between 'the tracks where he could have had a view for 1,700 feet up the street, without any obstruction, and his attention was not distracted from doing so by any passing vehicles or other perils, and nothing interfered with his progress, held, to bar his right to recover.
    Error to Saginaw; Gage, J.
    Submitted January 4, 1916.
    (Docket No. 14.)
    Decided March 31, 1916.
    Case by Daniel J. Davis against the Saginaw-Bay City Railway Company for personal injuries. Judgment for defendant upon a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      Crane & Crane (Ernest A. Snow, of counsel), for appellant.

      Weadock & Weadock, for appellee.
   Ostrander, J.

The brief for appellant contains a meager statement of facts, followed by a subdivision headed “Legal Points,” which is in turn followed by one headed “Argument.” To the point where argument begins there is no reference to any error relied upon or to the manner in which any question involved is raised. Under the heading “Legal Points” it is said:

“It was negligence on the part of the railway company not to give due and timely warning of the approach of its cars to street intersections when a street car stopped there discharging passengers.
“It was negligence on the part of the street railway company not to maintain a constant and careful lookout ahead when a street car was stopped discharging passengers on a parallel track when the danger of collision was greatly enhanced.
“It was negligence on the part of the street railway company under section 13 of Ordinance LIII of the city of Saginaw to propel its car at a wanton and reckless rate of speed in the city as this south-bound car was propelled at a rate of speed of, to wit, 30 miles per hour.
“It was gross negligence on the part of the street railway company to propel this southbound car at great speed contrary to ordinance past an intersection where passengers were just being discharged from another car on a parallel track one block from a large factory.
“The evidence discloses no contributory negligence on the part of the appellant, and it was error to direct a verdict upon that ground.”

It is needless to say that no compliance with Supreme Court Rule 40 is attempted. As has often been pointed out, obedience to the rule not only saves labor on the part of the court, but aids the court in apprehending the precise points which áre involved and the appellant’s contentions.

An examination of the record discloses that, plaintiff having rested his case, counsel for defendant moved the court to direct a verdict for defendant upon the ground — the sole ground — that upon the undisputed facts plaintiff was guilty of negligence contributing to his injury; that the motion was granted, a verdict returned, and judgment thereon entered. It also appears from the record and brief for appellant that, while numerous exceptions to rulings of the court were entered, some of which are made the basis for assignments of error, two principal rulings" affecting the re-suit are questioned — one the direction of a verdict upon the ground that plaintiff was himself negligent; the other the exclusion of the contention of plaintiff that testimony had been introduced or offered tending to prove the gross negligence of defendant. I say this appears, but am not entirely certain that the second point is correctly stated. A considerable portion of the brief is a criticism of the alleged non judicial attitude of the court during the trial and the manner and language used in the rulings made.

Assuming that the second point stated is involved, it is proper that it be first considered. It is alleged in the declaration, in negativing the asserted duties of defendant, that it wholly and wantonly failed to give any warning of the approach of the car which did the injury, and that the car was driven negligently and wantonly at an unreasonable and improper rate of speed. Further, generally, it is alleged that by the gross negligence, omission, and fault of the defendant plaintiff was struck and injured. Plaintiff preferred no requests to charge, and I am referred to no page of the record for evidence that gross negligence of defendant was relied upon. No ruling of the court upon the subject is referred to; but it appears that after hearing argument of the motion for a peremptory verdict the court took a recess until the next morning. During the recess the court prepared a memorandum of his charge, and upon the coming in of court, the jury being present, the court was interrupted by counsel for appellant as follows:

“May it please the court, before the court makes a statement, I desire to say at the adjournment of court last night the court made a request that I be prepared this morning to show the court that under the declaration filed in this case there was a charge of gross negligence.
“The Court: I have decided the question. If you desired to do that you should have presented them before.
“Mr. Lloyd Crane: This is the first opportunity I have had. I respectfully ask the court to show you the Michigan decisions I have here.
“The Court: I decline to hear you.”

There was more said to the same effect, and the court proceeded with the charge.

It is alleged with a videlicet that the car which injured plaintiff was traveling at the rate of 35 miles an hour. Witnesses riding on the car from which plaintiff alighted described the speed of the car which struck plaintiff in various terms, as that it whizzed past; seemed to be making up time; went at a tremendous rate. The witness Lipinski testified in part as follows:

“Q. Can you give us an idea, from your experience, with having driven in automobiles, say, at 15 or 16 miles an hour, about how fast this car was going?”

The witness was riding in the car which struck plaintiff, the speed of which she was asked to estimate, and she replied:

“A. About 30 miles, I think, an hour.”

I do not find other testimony of the speed in miles per hour. She had testified that she had driven in automobiles and had asked and been informed as to the rate of speed they were going. She qualified in no other way to testify as to the comparative or actual speed at which a vehicle was moving. It was sought to show by her that she knew the motorman of the car, having traveled on his car many times during a period of four years, that in going to her work she preferred to take his car because of the speed with which he drove it, and that he drove it faster than other motormen with whom she had ridden drove their cars. In offering some of the testimony of Miss Lipinski which was excluded the purpose was stated to be to show that the motorman on the car on which she was riding — the car which struck the plaintiff, was incompetent. • But I find no testimony admitted, or excluded, tending to prove his incompetency. '

I am not prepared to hold that the declaration, considering all of its averments, does not allege gross negligence. Indeed, if the point was controlling, I should be inclined to hold that gross negligencé is charged. It fairly alleges that a street car had stopped for passengers to alight, and that passengers were alighting therefrom; that upon a parallel track a car was driven at great speed, without warning of its approach, in entire disregard of the fact that passengers from the standing car, some of them, would be likely to cross the street from behind the standing car.

But the doctrine of comparative negligence does not obtain in this State, and the gross negligence of defendant, if established, does not in all cases relieve an injured plaintiff from"1 the consequences of his own negligence. Contributory negligence of plaintiff may not prevent a recovery in a case where the defendant, who knows or ought to know of the precedent negligence of plaintiff, does him an injury. Battishill v. Humphreys, 64 Mich. 514 (38 N. W. 581) ; Richter v. Harper, 95 Mich. 221 (54 N. W. 768) ; Borschall v. Railway, 115 Mich. 473 (73 N. W. 551).

“It may be said that in such a case the negligence of the plaintiff only put him in position of danger, and was therefore only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proximate cause.” Cooley, Torts [1st Ed.], p. 674.

Assuming that the declaration alleges gross negligence of defendant, I find no testimony admitted, or offered and excluded, which in the view I take of the main contention required the court to submit the question of defendant’s gross negligence to the jury.

The first assignment of error is based upon the ruling directing a verdict for defendant. In the brief the plaintiff, appellant, recites the facts relating immediately to the injury as follows:

“As a passenger for hire the plaintiff boarded a street car on the west side of Saginaw, and was conveyed to his destination at the corner of Holden street and South Washington avenue, arriving as before stated prior to 7 o’clock on this wintry morning. Washington avenue runs north and south, and is intersected at the point where this accident took place by Holden street, running east and west. The defendant company owns and operates parallel tracks on Washington avenue; north-bound cars using the easterly tracks, and south-bound cars the westerly'tracks. The car upon which the appellant was riding was a northbound car, and therefore upon the easterly tracks, and upon signal stopped upon the north side of the street intersection to allow the appellant and another passenger to alight. The car was stopped on a line with the sidewalk at this point, and the appellant allowed a lady to alight ahead of him, and then he alighted. The cars operated by the defendant company during the winter season were the large inclosed cars that projected over the rails about 18 inches on either side. After the appellant had alighted he stepped back about 2Vá feet away from the car to the east and allowed it to pull out and proceed north in the neighborhood of 30 feet before moving. The Bartlett Foundry was located to the west one block, and, as this was his first morning going to work there, he stopped before crossing the tracks and looked north for an approaching car, and then to the south for any vehicles or automobiles. Seeing no danger, he started to cross the easterly track and proceed slowly, and again looked north, and saw only the rear of the car he had left, and this he estimated was probably 55 feet from where he stood. The way was seemingly clear, and he proceeded toward the westerly track, and when he had taken only a few steps from where he stopped to look, and while he had not reached the westerly track, and was still between the tracks, he was struck by a south-bound car going at a terrific speed, and which sounded no warning whatsoever. The impact of the collision was received upon the right side of his head and body, and he was struck by the projecting portion of the car and thrown forward and to the east, and only in this way escaped being ground to death under the car.”

In argument it is said:

“We contend first that a street car company does not acquire by its conferred franchise a - servitude or right to priority of way upon the highway as does an ordinary freight or passenger railroad company by gift, transfer for consideration, or condemnation as to land over which it runs its tracks. A street car and a pedestrian have equal rights of the same kind to the concurrent use of the city streets. Bremer v. Railway Co., 107 Minn. 326 (120 N. W. 382, 21 L. R. A. [N. S.] 887), and cases there cited.
“We contend secondly that it is not contributory negligence as a matter of law for a discharged passenger to attempt to cross a parallel track when he has looked and his view is obstructed by the projecting back of a retreating car, and when it is conceded the motorman was propelling the car by which he was struck at a reckless speed, and did not give the accustomed signals.
“We contend thirdly that upon the following conceded facts: (1) The car striking plaintiff was running at excessive speed, to wit, 30 miles per hour; (2) no warning or signals were given to acquaint plaintiff of the on-coming car; (3) the car had such impetus that it went over 200 feet after striking the plaintiff before it could be stopped; (4) the plaintiff waited until the car he had left had gone north about 30 feet, and looked both ways before attempting to cross the parallel tracks; (5) the plaintiff was struck before he reached the westerly tracks, that is, while he was between the tracks — it was error for the trial court to direct a verdict for the defendant.”

It is not conceded that the motorman was propelling the car at a reckless speed and did not give customary signals, 'but there was testimony tending to prove, as I have shown, a considerable rate of speed, and that no signals were given. There are, too, many important facts which were testified to, not embraced in the statement made by the plaintiff. At the point where plaintiff alighted and for a considerable distance in each direction Washington street is 100 feet wide, and 40 feet of the width are paved. Plaintiff was 30 years old, in health, with unimpaired hearing and vision. He was reasonably familiar with the surroundings, knew of the double tracks and the use which was constantly made of them. There were neither vehicles nor people interfering with his progress nor demanding his attention. Except as the car from which he alighted interfered with observation, the view to the north was unobstructed. He could have seen a car 1,700 feet away. It follows necessarily that he did not look for an approaching car at all, or, if he looked, it was from a point where his view was obstructed by the car from which he alighted. Whatever the legal consequences may be, what plaintiff did not do is put beyond question by the undisputed physical facts. He did not look to the north for an approaching car from a place where his view was for any considerable distance unobstructed by the north-bound car from which he alighted. If he had done so, he would have seen the approaching car. In the line of his progress to the west, and while he was in a place of safety, he would have seen the approaching car if he had looked for it. The case must be considered as though plaintiff had testified that, if he had looked from the space between the rails, and while he was in a place of safety, he could and would have seen the on-coming car, and did not look. Under the circumstances, what did ordinary care for his personal safety demand of him?

That passengers alighting from street cars often pass to the rear of the cars and cross the street is a circumstance, a fact, affecting the conduct of those using the street with vehicles. The view of persons alighting from the car and the view of drivers of vehicles approaching from the direction in which the car is moving are alike interfered with for a time by the standing or moving car. Drivers of street cars, traveling in the same street, in opposite directions, on parallel lines of track, cannot, in prudence, ignore the fact that they are approaching a car from which passengers are alighting. 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. In my opinion, the case is ruled by Clark v. Railway, 168 Mich. 457 (134 N. W. 463).

The judgment is affirmed.

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


text:
      In re FERRIS’ ESTATE. BURGESS v. JOY.
    Wills — Mental Incapacity — Evidence—Undue Influence.
    In probate proceedings, field, on review of conflicting evidence, that the will was valid and the testator understood the nature and effect of his act; also, held, that the instrument expressed the will of testator and was not shown to have been procured by undue influence.

      Error to Jackson; Parkinson, J.
    Submitted January 18,1916.
    (Docket No. 119.)
    Decided March 31, 1916.
    Calista Burgess presented for probate the will of Lewis Ferris, deceased. From an order admitting the same to probate contestants, Clarissa Joy and others, appealed to the circuit court. Judgment for proponent upon a verdict directed by the court. Contestants bring error.
    Affirmed.

      Wilson & Cobb, for appellants.

      Price & Whiting, for appellee.
   Ostrander, J.

When a paper purporting to be the last will and testament of Lewis Ferris was offered for probate in the probate court for Jackson county, two sisters, a brother, and certain nieces and nephews of the testator made objection. The objections, briefly stated, were that Lewis Ferris was mentally incompetent to understand the extent of his estate and his relations to relatives and friends when the paper was executed, was unduly influenced to make and execute it by Charles J. Comstock, named as executor therein,, and by a sister and her husband with whom he was living, was of unsound mind, and the execution of the paper and the making of it was brought about by the undue influence and fraud practiced by these persons. In the probate court no contest was made, and the paper was proved and admitted to probate. The contestants appealed, repeating in the notice of appeal the objections above stated. Apparently, the matter was once heard in the circuit court for Jackson county without final result, and the trial now sought to be reviewed began December 2, 1912, and resulted in a verdict for proponent, directed by the court. Judgment was entered on the verdict. Contestants, asserting that questions for the jury were raised by the testimony, have removed the record to this court.

The will, executed October 17, 1908, seven days before the testator died, is a simple one.

Leroy Ferris, a contestant, testified that:

“The will divides the property into sevenths, in accordance with the number of brothers and sisters of the whole and half blood, except it wills two shares to a life estate and gives four $3,000 legacies to the children of William and Calista Burgess. Aside from those legacies, the property is divided among those who would naturally be the objects of his bounty.”

After payment of debts and funeral charges, the estate is made to devolve as follows: To a niece, Mrs. Edith Robbins, a daughter, and to each of three nephews, sons of Calista Burgess, a sister of testator, the sum of $3,000 is given, the remainder of the estate is divided into seven parts or shares, and one part or share, or the income therefrom, is given to each of the testator’s brothers and sisters, including Calista Burgess, and to the children of a deceased sister. The share given to a half-brother, Leroy E. Ferris, and that given to the children of a half-sister, Ida Sellen, are, in form, in trust, the income to be paid to the beneficiaries during life. A trustee is nominated to execute the trusts. The gifts to all others are unqualified. No final disposition is made of the funds of the trust estates. The executor is empowered to sell and convey property, real and personal, at public.or private sale, and to settle and compromise all claims for and against the estate, and the probate judge directed to allow the executor “a compensation adequate and commensurate with my said estate, as extraordinary compensation beyond what is allowed by the statutes.”

Assuming that the contestants are not moved entirely by altruistic motives, and are governed in some degree by the desire to profit by an order refusing probate of the will, it would seem that in the preference of the Burgess family by the testator and the creation of the two trust estates may be found the cause for this litigation.

The testator was a bachelor, 70 years old, who had lived at various places in and around Springport, in Jackson county, for many years, perhaps for the greater part of his life. In health — and he appears to have enjoyed health for the most part — he is described as a man physically robust, large, honest, kind-hearted, with a fairly active mind, a capacity for such business as he carried on, but somewhat slow in reaching business conclusions. It is not contended that he was ever mentally deficient, unbalanced, or incompetent, until near the end of his life, when for more than a year, and perhaps for two years, he suffered from a progressive and incurable disease. Two physicians, the ability of neither being questioned, attended him, and they call the disease progressive anemia. One of them, who lives at a distance from Springport, and had many times been consulted by him, saw testator October 15th and again on a day after the will was executed. The other saw him daily, and often several times a day, before and after the will was executed, and was present for a short time when the scrivener and nominated executor was securing from testator, as he says, data for preparing the will. Neither physician questions the mental capacity of testator to make the will on the day it was executed. Quite the contrary. They agree in saying that testator’s disease was progressive and incurable, and that when the will was executed he was, as for several days he had been, a very sick man. The prognosis was death, and a certain symptom, a chill, manifested at least once before October 17th, indicated to the medical mind the beginning of the end. There is much testimony .to the effect that for a considerable period before he finally went to bed the testator had at intervals been drowsy, that in conversations he repeated inquiries after they had been answered, and seemed at times to be rather stupid. Many of his acquaintances noticed his failing condition, and some describe his movements as indicating considerable physical weakness long before he died. But I find no testimony of any instance when he addressed his attention to business, or business affairs, and exhibited a lack of mental integrity.

Two business men of Springport, acquaintances of the testator, were called in by Mr. Comstock to witness, the will. Their visit was somewhat hurried, and they, of course, made no effort to test the mental capacity of the testator. The significant circumstance is that they saw and heard nothing which suggested any want of mental capacity of the testator or failure to comprehend what he was doing. There is the instrument bearing the signature of the testator, attested by two witnesses.

The scrivener, who prepared the will and is named executor, is bitterly assailed by counsel for contestants. If the idea that he had an ulterior or sinister purpose is eliminated, all that he did seems natural, innocent, and prompted by friendly feeling towards testator. He and the testator had been acquainted for years. They had together owned and operated a gristmill, depositing money from the business in the bank; each drawing it out on checks signed “Comstock & Ferris.” They owned as tenants in common a piece of land, and Com-stock, admittedly, wished to acquire the whole title and had sought to do so. Comstock had frequently prepared papers for the testator, who lent money, and there is evidence of mutual respect and trust in their relations and in their opinions of each other. Com-stock knew, and testator knew, that testator could not regain his health. If Comstock’s testimony is to be believed, the testator had expressed to him the determination that his money should be left to no one to be squandered. It seems natural that Comstock should have suggested to testator, as he did, that if he desired to make a disposition of his property unlike the statute devolution thereof he ought to make a will. Probably there are few men 50 years old who have not at some time made a similar suggestion to a friend. The record has been searched in vain for evidence that Com-stock favored, or desired to favor, any person named in the will, or to increase or diminish the share which any beneficiary should take. In short, if what he did, as he describes what he did, and as it is testified to by others, had been done by some one else, by a lawyer employed for the purpose, it is not likely that any one would have suggested that the will of the testator was not expressed in the instrument now proposed as a last will. It is pointed out that Mr. Comstock is executor and that he prepared a will expressing the desire of the testator that he be given a greater compensation than is allowed by statute. He testified that the testator desired him to settle his estate; that he, knowing something about the nature of the estate, declined to do so; that they talked about it and its general character; and that the testator agreed that he ought to have additional compensation.

But of what significance is this as affecting the questions of the mental competency of the testator or the exercise of an undue and fraudulent influence upon him? That a person has a sinister purpose may, of course, be shown by his acts. But mere innuendo is not enough to make an act or series of acts, apparently innocent, fraudulent and sinister. Counsel for contestants say that:

“The relations existing between Comstock and deceased were of the most confidential character and such as to raise a presumption of undue influence and cast upon Comstock the burden of showing absence of such influence.”

Assuming the premise for this legal conclusion to be true, in my opinion, Mr. Comstock has sustained the burden of showing absence of undue influence. There is no testimony tending to prove the exercise of undue influence. But the relations of these men were not confidential within the meaning of the rule invoked by counsel. Undoubtedly, there was the confidence of friendship, although particular intimacy is not shown, and of agreeable business relations. The record is barren of testimony tending to prove that Mr. Comstock had any interest, present or remote, direct or indirect, in the disposition" of property which the testator should, and did, make. A man enjoying the perfect confidence of his neighbor may prepare his neighbor’s will, and may even suggest to him that a will ought to be prepared, without raising the presumption that he unduly influenced him, or that his conduct is reprehensible. It is said that Mr. Comstock inserted in the will the provision for extra compensation and the one giving to the executor power to sell property at private sale. There is testimony, too, tending to prove that Mr. Comstock had offered to testator, and wished to acquire certain property for, a sum less than it was worth — at any rate, less than the value later placed upon it by the appraisers. But Mr. Com-stock testified that testator at one time agreed to sell him his interest in the property for the sum he (Com-stock) offered to give him and went so far as to have an agreement in writing to that effect made out. It was not executed.

There is other alleged conduct of Mr. Comstock with respect to certain mortgages given by two of the children of Calista Burgess which testator at one time held and owned. It is said that the testimony I have referred to, and other testimony, tends to prove a disposition and state of mind of Mr. Comstock which makes it probable that he imposed upon his friend, the testator, and probable that the instrument in question does not evidence the testator’s real will. The testimony wholly fails to incline my mind to such a conclusion.

Numerous excursions were taken by witnesses and counsel which cannot be noticed. The record contains more than 500 pages, and in the view I take it is unnecessary and would be wholly unprofitable to analyze the testimony. In my opinion, there is no testimony tending to prove mental incompetency, the exertion of undue influence, or that the instrument offered for probate does not express the will of the testator.

The judgment is affirmed.

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


text:
    LONG v. SCHROEDER.
    Waters and Watercourses — Dam—Power Rights — Injunction. Where complainants filed their bill to enjoin defendants ■ from constructing a dam of greater height than one which had previously existed in the stream, and the circuit court decreed, upon the case being remanded for additional testimony as to the height of the new dam, that it should be reduced ten inches in height, the judgment is affirmed on a consideration of the proofs offered.
    Appeal from Lenawee; O’Mealey, J.
    Submitted January 11, 1916.
    (Docket No. 91.)
    Decided March 31, 1916.

      Bill by John Long and others against William Schroeder and others for an injunction restraining defendants from increasing the height of a certain dam. From a decree for complainants, defendants appeal.
    Affirmed.

      J. N. Sampson and John A. Riley, for complainants.

      Baldwin, Alexander & Russell, John O. Zabel, and Daniel R. Foley, for defendants.
   Ostrander, J.

There is a dam in the river Raisin, near Deerfield, in this State, owned and maintained by defendants. In the year 1906 it was an old structure, and the owners, in October of that year, began the construction of a new dam just above the old one. Complainants filed the bill in this cause, charging that defendants proposed to build the new dam higher than the old dam, in which case their lands would be over-" flowed, drainage thereof interfered with, and proper and usual cultivation prevented. Relief by injunction was asked for. Issue was joined, and after a hearing and after a supplemental bill had been filed, which set up that the new dam had been built higher than the old one, and its effects upon complainants’ lands, the court dismissed the original bill. Upon appeal the decree was reversed. Long v. Schroeder, 162 Mich. 690 (127 N. W. 811). In the opinion filed in that case we said:

“It is apparent from the facts which have been stated that the complainants admit, and the defendants assert, a prescriptive right. They do not assert that their predecessors in ownership of the mill, or that they themselves, ever acquired the right to flow the lands of upper proprietors in any different manner or to any greater extent than they were or would be overflowed by the dam in the condition it was when the bill was filed. The only difference between them, on this point, is that complainants charge a constant and long-maintained interruption to the flow of water caused by the old dam, while the defendants say that the old dam has settled, from which it is inferred, necessarily, that the interruption to the flow has not been constant, and the overflow of lands caused thereby has been variable. It may be said that defendants-concede, iii the answer, that if the new dam should be built higher than the old dam was as it was originally constructed, complainants would have a grievance which, if properly presented, a court of equity ought to relieve. We are of opinion, also, that the matter set up in the answer concludes defendants from claiming the right to maintain a dam any higher than the old dam was at the time the bill was filed. We are convinced that the new dam is higher than the old dam was at the time the bill was filed. In other words, we measure the-rights of defendants as against those of complainants by the interruption to the flow of water caused by the old dam as it was when the suit was begun.”

We also said:

“We are, however, in some doubt concerning the precise terms which ought to be incorporated in a mandatory injunction. Unless counsel can agree about the precise dimensions to which the new dam should be reduced or the precise dimensions of the reduction which should be made in its height to make it correspond, substantially, to the height of the old dam, the record must be remanded, for this purpose, to the court below.”

No agreement being reached, the record was remanded, and there has been a further hearing, with the result that a mandatory injunction was granted requiring defendants to—

“within 90 days of the date of this decree, lower or caused to be lowered, that portion of the new dam between the ‘spillway’ and the flume, as above set forth, a uniform distance of 10 inches from its present height.”

Defendants have appealed.

As when the cause was here before, so now, the question presented is one of fact. Upon this record, as upon the former record, mere vertical height of the new dam, in feet and inches, is not necessarily controlling. The learned trial judge, in an opinion filed in the cause, having in mind the controlling test where, as here, a prescriptive right of flowage is involved, found:

“That the new dam, excluding the weir and the flume, is 10 inches higher than the old dam was at the time of filing complainants’ bill, measured by the extent of the interruption to the flow of water in the river, caused by the old dam as it existed when the suit was begun.”

There is abundant testimony supporting this finding, as to the force and effect of which testimony we agree with the court below.

The decree is affirmed, with costs to appellees.

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


author: Person, J.

text:
    McMORRAN v. THE MILLINOKETT.
    1. Admiralty — Maritime Jurisdiction — Water Craft — Navigation —Lien for Wharfage.
    In. a suit under 3 Comp. Laws 1915, § 14892, to enforce a lien against a ship which anchored in the St. Clair river in front of complainant’s property, awaiting to unload at an adjacent wharf, and remaining there 37 days, while ten boats that preceded it discharged their cargoes, the State court had no jurisdiction to enforce the statutory lien for wharfage; the vessel was engaged in maritime business and the claim could only be enforced in the admiralty courts.
    2. Same — Carriers.
    The general rule is that the liability of carriers as such terminates with the service of transportation after a reasonable time and opportunity for the consignee to remove the freight: in order to enforce a lien under the statute, the vessel must be in nonmaritime business. Under the circumstances, a delay until the preceding boats had unloaded was not unreasonable.
    Appeal from St. Clair; Tappan, J.
    Submitted January 18, 1916.
    (Docket No. 58.)
    Decided March 31, 1916.
    Bill by Henry McMorran to enforce a lien under the water-craft law against the steamer Millinokett. From a decree for defendant, complainant appeals.
    Affirmed.

      Lincoln Avery and George L. Canfield, for complainant.

      P. H. Phillips and Goulder, White & Garry, for defendant.
    The complainant seeks by this proceeding to enforce the lien given by statute (section 10789, 3 Comp. Laws; section 13625, 5 How. Stat. [2d Ed.] ; 3 Comp. Laws 1915, § 14892), the so-called water-craft act. The defendant ship, on December 3, 1913, anchored in the St. Clair river opposite the complainant’s property, and made a line fast to his dock. The complainant protested to the "captain against his lying there, and told him he would insist upon his paying $50 a day if he continued to lie there. The captain at once shifted his line to neighboring property, and refused to move, and the plaintiff protested to the owners, without avail. The ship was loaded with grain consigned, to the Grand Trunk elevator in Port Huron, and on January 9th moved up to the elevator, and was relieved of her cargo on the 10th. The complainant submitted a bill for $1,850 to cover the 37 days the ship lay opposite his premises. The owners refused to pay, and this suit was commenced.
    The complainant’s premises are 300 feet wide, and the ship, which was 524 feet long, overlapped them from the north about 250 feet. There were a boathouse and small pier on the extreme north end of the lot, and the above-mentioned dock on the south end. The ship lay about 60 feet out into the stream, with her stern 50 feet above the dock. This dock was considerably out of repair, and had not been used as a landing, place by a boat of any considerable size for about three years. It was a small dock, constructed primarily for the personal convenience of the complainant. No attempt had been made to use it, even by rowboats or launches, while the ship lay there, so far as the record shows, and it seems clear that the ship would not have interfered with such an attempt. There was a space of 60 feet between the ship and the dock line, and ice was floating in the river, and navigation had practically ceased.
    The complainant contends that the ship had laid up there for the winter, intending to use his property for a winter berth, because she had dismantled her engines and boilers, and discharged her crew. The bill of lading provided that the cargo was to be unloaded not later than April 1st. The Millinokett was one of a fleet of eleven grain carriers with cargoes for the same elevator, and they all dropped anchor as near below the elevator as possible, by direction of the man in charge, to minimize the difficulties in bringing the boats up to the elevator that might result from the blocking of the ice. The carriers were unloaded according to the requirements of the railroad contracts for delivery at the seaboard, in no definite order, and at no definite time. After the Millinokett was unloaded she was moored for the winter a short distance below the elevator.
    The claim of the complainant is based upon his notice to the captain and the owners under the following section of the water-craft law:
    “Every water craft of above five tons burthen, used, or intended to be used, in navigating the waters of this State, shall be subject to a lien thereon: * * * Second. For all sums due for wharfage, anchorage, or dock hire, including the use of dry docks; the lying immediately in front of, or attached to any wharf, dock, or pier, within this State, so as to prevent the use of any portion of such wharf, dock, or pier, by other water craft, with or without the discharge of freight or passengers across such wharf, dock, or pier, after a notice to leave, shall be an evidence of an agreement to pay for such use. whatever the same may be worth.”
    Counsel for the defendant contend that the decision of the lower court in their favor should be affirmed on any one of three grounds:
    (1) The court was without jurisdiction of the proceeding.
    (2) The lying in front of the complainant’s premises was an incident of navigation, and interstate commerce to which the State statute could not attach a penalty.
    (3) If the statute had any application, there was no proof of damage upon which a recovery could be based.
    The circuit’judge dismissed the complaint because no damage was shown, considering it unnecessary to pass upon the question of jurisdiction.
   Person, J.

(after stating the facts). Whether or not the complainant succeeded in showing such damages as would have entitled him to compensation in a proper proceeding, in our opinion, under the facts in this case, the court below had no jurisdiction of the matter. Though the complainant claims that the ship ceased navigation on December 3d, laid up for the winter opposite his premises, and became subject to a lien for wharfage under the statute, the facts clearly show that she did not actually go into winter quarters until after she had discharged her cargo on January 10th. Until then she awaited her turn for unloading, with the rest of the fleet, and as a carrier her employment did not cease until then. If a ship is engaged in the maritime business while unloading, a fortiori she is so engaged while waiting to unload. See Leathers v. Blessing, 105 U. S. 626; The Main, 51 Fed. 954, 957 (2 C. C. A. 569). In the case of The Murphy Tugs (D. C.), 28 Fed. 429, 432, in which a statutory lien for wharfage was refused, the vessel had laid up for the winter, and the decision is therefore not in point, in view of our conclusion that the Millinokett had not yet laid up. In The Pulaski (D. C.), 33 Fed. 383, while it was said that the contract would be adjudged to be a maritime if the storage were a mere incident of transportation (as it was here), the ship was adjudged to be not engaged in navigation because “the contract is primarily for storage, and the transportation is a mere contingency, possible or probable, in the future.”

In The Richard Winslow (D. C.), 67 Fed. 259, the bill of lading provided for free storage in the vessel until April 1st, at the shipper’s option, and the vessel was moored at the wharf at the shipper’s direction, where she remained during the winter in charge of a shipkeeper. The court found that the vessel had been “converted into a mere winter storehouse for the corn,” but the general rule was stated to be that the liability of carriers, as such, “terminates with the service of transportation, after a reasonable time and opportunity for the consignee to accept and remove them.” What is a reasonable time may be open to doubt, but it is not charged here, nor do we think, that in view of the number of vessels waiting to unload, the Millinokett was converted into a warehouse by the elapsing of 37 days from the time she dropped anchor until she was unloaded.

We are satisfied that this is an action in rem to enforce a lien against a vessel engaged at the time in maritime service, and may be brought only in the admiralty courts of the United States. Where the lien sought to be enforced is one against a vessel engaged in nonmaritime service, the State court has assumed jurisdiction, under this statute, of proceedings in rem to enforce it. See City of Erie v. Canfield, 27 Mich. 479; People’s Ice Co. v. Steamer Excelsior, 43 Mich. 336 (5 N. W. 398); McCarthy v. Circuit Judge, 118 Mich. 363 (76 N. W. 756); Delaney Forge & Iron Co. v. The Winnebago, 142 Mich. 84, 93 (105 N. W. 527, 113 Am. St. Rep. 566).

The judgment of the lower court dismissing the complaint filed by the complainant is hereby affirmed, with costs to the defendant.

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


author: Kuhn, J.

text:
    KOLE v. LAMPEN.
    1. Bills and Notes — Forged Instrument — Estoppel.
    Where plaintiff got defendants’ note in June in a horse deal and informed them that he held it, but no claim was made that the paper was forged, and later, in garnishment proceedings, brought by third parties against the owner of the horse, who had hired his team out to sprinkle the streets, the purchaser testified that the money for its hire belonged to the indorser on the note, his father, and the latter had signed the note, he also being present and making no objection to this statement, the indorser was' estopped to deny the signatures after the one who committed the fraud -had left the State, and the horse had died, so that plaintiff could not place himself in the same position as before.
    2. Same — Trial—Instructions.
    The court’s charge to the jury that defendant should have advised plaintiff at the first opportunity that the note was a forgery, and a neglect during about three months to notify the holder of its invalidity was unreasonable, and if the latter thereby suffered prejudice he was entitled to recover, was not erroneous, and properly instructed the jury as to what would be a reasonable time.
    Error to Ottawa.; Cross, J.,
    Submitted January 12, 1916.
    (Docket No. 102.)
    Decided March 31, 1916.
    Assumpsit in justice’s court by James Kole against Ered Lampen and another on a promissory note. From a judgment for plaintiff defendants appealed to the circuit court. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Smedley & Linsey, for appellants.

      Jarrett N. Clark, for appellee.
   Kuhn, J.

The plaintiff, who resides in the city of Holland, is engaged in the vehicle and implement business, and occasionally deals in horses. On May 9,1914, Fred E. Lampen, Jr., who is the son of Fred Lampen, Sr., and a brother of the defendant George Lampen, called at the office of the plaintiff, and after some negotiation bought a horse, giving to the plaintiff a title note for the purchase price in the sum of $157.50, due on or before June 19, 1914. He also gave plaintiff a note payable to himself for the sum of $155, and purporting to be signed by the defendants, as collateral security. Fred E. Lampen, Jr., did not pay this note when it fell due, and suit was brought in justice’s court by the plaintiff upon the note given him as collateral security. Judgment was rendered against the defendants in that court, and an appeal was taken to the circuit court. There the jury found, in answer to a special question, that the note was a forgery, but found for the plaintiff on the theory (which was submitted to them by the trial court) that the defendants were estopped by their conduct to deny liability and the genuineness of their signatures.

The cause being brought to this court by writ of error, counsel for the appellants allege as error relied upon by them that:

(1) The evidence was not sufficient to create an estoppel against either defendant, and therefore the court erred in submitting this question to the jury.
(2) If the evidence was sufficient to warrant the court in submitting the question of estoppel to the jury, it was not submitted under proper instructions.

It is a familiar rule of law that an estoppel arises when one by his acts, representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts. 16 Cyc. pp. 722, 723. See, also, Bigelow on Estoppel (5th Ed.), p. 570; Dann v. Cudney, 13 Mich. 239 (87 Am. Dec. 755) ; 11 Am. & Eng. Enc. Law (2d Ed.), pp. 427, 428; 16 Cyc. pp. 759, 769.

It is claimed by the defendant Fred Lampen, Sr., that he first learned that the plaintiff had a note in his possession indorsed by him through a letter written by the plaintiff on June 4, 1914, to the defendant George Lampen, to which was attached a postscript directed to him, and he thereupon asked his son Fred about it, who informed him that it was none of his business; that he (Fred, Jr.) would fix up the note. It is the contention of the defendants’ counsel that this record does not show that there was any opportunity to speak, that there was a duty to speak, or that there was failure to speak by the defendants, or reliance in good faith upon such failure by the plaintiff as is required by law.

To determine whether this claim is justified, it is necessary to go somewhat more fully into the facts, and, among other things, we find that soon after his father had á talk with Fred, Jr., about the note, the latter had secured a contract from the city of Zeeland to.sprinkle the streets, and used the horse purchased from the plaintiff on the wagon employed for that purpose, and gave his father an assignment of his wages from the city. This, he claimed, was to protect his father from signing his bond, and to secure him oh notes signed by the father amounting to from $1,000 to $1,200.

Fred, Jr., was thereafter sued in the justice’s court, and his wages were garnished, and on July 21, 1914, in the justice’s court, Fred, Jr., testified in the presence and hearing of his father and George that the money garnished belonged.to the father, that his father was on $1,000 worth of notes, to which the father replied, “At least that,” that he got the horse in question from Mr. Kole, and, when asked who helped him get the horse, replied, “Then I told them father was indorser on the notes.” The horse died some time in the latter part of August. On August 10, 1914, another letter was sent by Mr. Kole to George Lampen, calling his attention to’ the collateral note concerning which he had been notified on June 4th by letter, and to the fact that it was now two months past due. On July 29th and on August 8th George Lampen was called on by Mr. Van Gelderen, who is employed by the plaintiff, and payment of the note was demanded. The first time George said he could not do anything until he saw Fred, and on the next occasion he said that he had arranged matters with Fred, and if Fred were seen he would pay it.? On the 12th of September he and Mr. Kole saw Mr. Lampen, Sr., at his home, and again talked with him about the note, and were told that it would be fixed up the following week. But when the father and George came to see Mr. Kole according to their agreement, they for the first time denied their signatures. At about the same time Fred Jr., talked with his father and brother about going away, and said that he was told that if he would leave for six months the notes would fall due and drop out and nothing would be done to him. He did in fact leave the State and go West before the father and brother denied their signatures to the note. This was the first notice that the plaintiff had of the claim that their signatures were forgeries.

It thus appears that the horse sold by Mr. Kole in reliance upon the validity of the collateral note was worked on a contract the revenues of which went to defendant Fred Lampen, Sr., by direct assignment. When creditors attempted to garnish this money, both defendants in court, without remonstrance or denial, allowed Fred, in their presence and hearing, to testify under oath that this money belonged to the father, and that the father had signed the note. ■

When Mr. Van Gelderen, representing Mr. Kole, called on the defendant George, and later when he and Mr. Kole called on the father, what reason or good excuse can be offered by them for not then and there denying their signatures to the note, notice of the existence of which they had previously had by letters written them by the plaintiff? If Mr, Kole had been notified by George, he might have taken steps to retake the horse under his title note, which Mr. Kole said he did not do because he depended upon the note given him as collateral security. At least, he might have taken some steps to protect his rights before Fred left the State.

It thus clearly appears that the plaintiff was worse off when he was told by the defendants that their signatures were forgeries than he was at the time the promise to pay was made. By their silence they allowed Fred, Jr., to carry out his fraud, and, having remained silent when they should have spoken, they should not now be allowed to complain; for as a result of their silence they prejudiced the plaintiff in his rights. We are of the opinion that under these facts it was no error to submit the question of estoppel to the jury. •

It will be unnecessary to discuss at length the errors relied upon with reference to the charge of the court in submitting the question of estoppel, because, on an examination of the entire charge, we are satisfied that the case was properly submitted to the jury. The court did in part charge the jury as follows:

“I charge you, gentlemen of the jury, that as soon as either of these defendants learned that the plaintiff had a note against them, or he claimed to have a note against them for $155, then it was their duty at their first opportunity to inform Kole, the plaintiff, that such note was a forgery, if in fact it was a forgery, and, as they received such notice in June and did not notify Kole that it was a forgery until some time in September following, that would be an unreasonable delay if done without reasonable excuse, and if, by reason of the conduct on the part of these defendants, this plaintiff has suffered in damages, he is entitled to recover against these defendants the full amount of that note, and, if you so find, your verdict should be for the plaintiff for the full face of the said note, and interest thereon.”

It is argued that this section of the charge placed the legal duty upon the defendants to inform the plaintiff, immediately upon receipt of the letter in June, that this note was a forgery. But we do not so construe the instruction, as the court specifically said that if the defendants had notice of such forgery in June, and did not notify Kole that it was a forgery until some time in September following, that that would be an unreasonable delay if done without reasonable excuse, and if, by reason of the conduct on the part of these defendants, the plaintiff had suffered damages, he was then entitled to recover. As we have indicated in this opinion, the jury was justified in finding that there were opportunities when the defendants were in a position to get notice to the plaintiff of the infirmity in the note, which they did not do. And we think that, under the circumstances of this case, there was no 'error in the court submitting the question as he did.

In our opinion the verdict of the jury was fully justified under the evidence introduced on the trial.

Finding no prejudicial error in the record, the judgment is affirmed.

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