author: Long, J. Grant, J.

text:
    Esther J. Tobias, Administratrix, etc., v. The Michigan Central Railroad Company.

      Railroad companies — Accident at crossing — Proximate cause — Contributory negligence — Instructions to jury.

    1. The duty imposed upon a railroad company by How. Stat. § 8828, subd. 5 (as amended by Act No. 90, Laws of 1891), to restore streets crossed by its tracks to their former state, as near as may be, and to construct suitable road and street crossings for the passage of teams, existed, in the absence of the statute, under the common law.
    2. Where, in a personal injury case against a railroad company, it appears that the decedent, who was struck by a train and killed while attempting to drive over the defendant’s tracks at a city street crossing, deliberately drove upon the crossing, either because he did not see or hear the train, or, seeing it, attempted to cross ahead of it and miscalculated its speed, it is not error to instruct the jury that the fact that the street may not have been restored to its original condition as near as might be has no bearing in the case.
    3. The whole evidence pointed to the fact that one approaching could see the train, with the headlight burning, for more than 1,300 feet before it would reach the crossing. And it is held that it is evident that the deceased, if he had looked, might have seen the train in time to avoid the accident, and the fact that he drove upon the track is conclusive evidence that he did not so look.

      4. The defendant, for a considerable time before the accident, had maintained an electric bell at the crossing to give warning of' the approach of its trains. And it is held that the court erred in not instructing the jury, as requested by the plaintiff, that if they found that the deceased, who had been in the habit of crossing the track at said crossing, knew of this signal, and that on the night of the accident the bell did not sound its usual alarm on the approach of the train, and that the deceased did not at that time know of any fault in the condition of the bell, such facts might be considered by them, together with all the other facts in the case, as bearing upon the question of whether or not the deceased was free from contributory negligence.
    Error to Ingham. (Person, J.)
    Argued November 21, 1894.
    Decided December 22, 1894.
    Negligence case. Plaintiff brings error..
    Reversed.
    The facts are stated in the majority opinion.

      Black & Bodge and Q. A. Smith, for appellant.

      M. V. & B. A. Montgomery, for defendant.

       As to the duty of looking and listening, or stopping and listening, before crossing or attempting to cross a railroad track, see Jensen v. Railroad Co., 102 Mich. 176, 181, and note; McGee v. Railway Co., Id. 107, where the rule is held equally applicable to an electric street railway; and Dawe v. Railroad Co., Id. 307, where the plaintiff’s intestate is held to have been guilty of such negligence, in walking a distance of 48 feet after passing an open railroad gate at a city street crossing, and before reaching the track, where she was struck by a passenger train, during which time she could have seen the train for a distance of 425 feet if she had looked in the direction from which it was coming, as to bar a recovery, unless it should be held that the fact that the gate was not let down excused her from exercising care in crossing the track.

   Long, J.

In October, 1891, the husband of the administratrix, while driving his horses and wagon on a public highway where it crosses the defendant’s tracks, was struck by one of defendant’s passenger trains and killed. The accident occurred at 5:30 o’clock in the evening at the place known as Mt. Hope Crossing,” in the south boundary of the city of Lansing. This action is for damages.

The negligence alleged is:

1. Running the train at a high rate of speed, the crossing being a dangerous one, and the night dark and foggy.

2. Failing to ring the bell as required by the statute.

3. That the defendant had, in the construction of its road across this street, excavated the ground, which was originally level, to a depth of from 4 to 6 feet, leaving banks about five feet high on each side of its track at the crossing, and had not restored the street at such crossing to its former condition as nearly as it' might have done, but left it, where it crossed said railroad track, and for quite a distance west, cut down to a level with the railroad track, and that said cut was only about 20 feet wide, which rendered it difficult for a person with a team to turn around therein, and that it had not maintained a suitable and sufficient approach and crossing over such track, as required by law, which acts and omissions on the part of said company were, among other things, direct and moving causes of the accident.

4. That there were obstructions on the north side of this street, west of the railroad track, which interfered with the view of an approaching train from the north, to persons passing east on this street over such railroad track, for a distance of 3 or 4 rods west of the defendant's right'of way, which rendered it dangerous, and that the company had for a year or more maintained at such crossing an electric bell to warn those crossing its track of the approach of its trains; that the bell had usually sounded when the train was within 80 rods of said crossing, either way, so that it could be readily heard 40 rods from the crossing, which fact was well known to the deceased; that the bell did not ring upon the approach of the train that killed the deceased; that the company had negligently allowed the same to get out of repair, and consequently such negligence was one of the immediate causes of the accident.

There was evidence tending to show that the train was running at the rate of 25 miles an hour and upwards at the time of the accident, and that no bell was sounded upon approaching the crossing. There was also evidence tending to show that the cut was about 5 feet deep, and 21 feet wide at the bottom, extending westward quite a distance, and also that there was a clump of hushes north of the highway and west of the railroad track, which to some extent interfered with the view of trains coming from the north, to a person passing along the highway towards the east; also that an electric bell had 'for a year and more been maintained, to warn people of the approach of trains, and that such bell, when in proper condition, could be heard for 40 rods distant, when a train was within 80 rods of the crossing; that the deceased lived near this crossing, and was accustomed to pass there frequently; that upon the night in question the deceased was last seen approaching this crossing from the west, driving a span of horses attached to a lumber wagon in which he was riding. Defendant’s engineer testified that he had his head out of the window, looking right ahead; that he had not seen anything until he saw something that looked like a black cloud, and after that there was a crash, and he put on his air brakes and stopped. He says the headlight was shining, but did not shine on the object before it was struck. He also says, as do others, that the whistle was sounded. On cross-examination the witness further testified that—

“We run with our train under full control 400 feet before approaching a crossing. * * * It was a dark night. It may have been a little smoky. I don’t think it was forest fires; something more of a fog, — a little mist. It would make it difficult for a man to walk in the country. Might make it a little difficult for him to see.”

Some contention arose on the trial as to the exact position of this clump of bushes, and just how much it obstructed the view of the railroad track to the north, of one passing along the highway going east; and defendant also contended that the banks where the cut was made were not high enough to obstruct the view, in the least, of one riding in the Tobias wagon. It was conclusively shown that the embankments were no obstruction to the view of an approaching train. Upon this point, and the obstruction by the bushes, plaintiff’s witnesses, on cross-examination, testified substantially as follows: Witness McKin says:

.“I examined the crossing with particular reference to see whether or not one could see an approaching train from the time they got within the lines of the company’s right of way. I think it would be impossible for a man to look down the line without seeing an approaching train from a point 26 rods west of the railroad track. You can see an approaching train all. the way, except where the fence and bank and trees interfere, but after getting on the company’s right of way you can see an approaching train down to the signal post. At any point between 26 rods west of the railroad and the track, a man looking north could see a train anywhere from 20 to 30 rods north, except where the clump obscures the vision. After a person gets on the right of way, riding in a wagon, it is impossible for him to look north without seeing an approaching train. If he looked, he might see it. He could not help but see it. I mean at any point on the right of way; that is, at any point 35 feet west of the west track. I can see a foot or two before I get on the right of way. The clump of trees grows close to the railroad fence on the west side.”

Witness Kitson says:

“ The tiees and bushes are not on the embankment at that place. They are more or less all along as far down as you can see.- They would commence to obstruct the view of an approaching train five or six rods west of the track, and continue to obstruct the view until you get on the right of way.”

Witness Hurd was asked:

“How far west — how wide a space — would that clump of bushes obstruct the view of an approaching train?

“A. It might be some seven or eight rods from the track, as you go east, before you struck the track. You might see it plain there five or six rods away. You can see a part of a train, but you cannot see the whole train.”

Defendant’s witness Harris says he made a correct drawing from the measurement of the track, crossing, and surroundings; that the west line of the company’s right of way was 35 feet west of the west rail; that the clump of bushes mentioned was north of the highway fence; that to a person standing at a point 35 feet west of the west rail in the highway, looking north at the semaphore, the range of vision would be 10 feet east of -the clump of bushes; that the' semaphore is 1,347 feet north of the crossing; that a person standing in the highway 70 feet west of the west rail, looking north, — the range of vision being immediately east of the clump of bushes, — could see a point north on the railroad from the crossing 230 feet; that, to one back 105 feet, the bushes would obscure a very.small space, and when down 70 feet they would obstruct but a very small space; that one could see a portion of an approaching train all the time.

This is substantially all the testimony on that point.

At the close of the testimony, defendant asked the court to direct the verdict in its favor, which was refused. Plaintiff then asked the court to instruct the jury:

1. If you find that the defendant company neglected to give the warning of the approach of the train at the crossing required by law, viz., by ringing the hell, that would constitute negligence on the part'of the defendant, and the plaintiff would be entitled to recover, unless you .should find that the deceased was guilty of contributory negligence in attempting to cross the track."

6. The question as to the speed of the train, and the time that it would take to reach the crossing from where it first came into view, and the time that the deceased would take to reach the track after he came into a position in which the view of the train was cut off, and the manner in which he would have been liable to have approached such a track, are all questions of fact for your consideration, in reaching the conclusion as to whether deceased was guilty of contributory negligence or not."

9. Under all the evidence in this case, it is only a question of fact for the jury to determine whether or not the deceased exercised reasonable care in avoiding the danger, and whether the deceased, in approaching the train, was negligent; and you have the right to consider all the testimony in relation to the condition of the crossing, the obstructions, the speed of the train, and such other facts, as shown by the evidence, as will throw light upon the question. And if, after considering these facts, under the instructions already given you, you are satisfied by a preponderance of the proof that the deceased came to his death in consequence of the negligence of the defendant, while he was exercising ordinary care, then your verdict must be for the plaintiff for such damages, under the evidence and instructions of the court, as you believe plaintiff is entitled to recover.” .

These instructions were all given. The following request of plaintiff was refused:

“'It appears that the defendant, for a considerable time before the accident, maintained an electrical bell at this! crossing, to give warning of the approach of its trains, and if you find that the deceased, who had been in the habit of crossing this track at this place, knew of this signal, and if you shall find that on the night of the accident this electric bell did not sound its usual alarm on the approach of the train that killed the deceased, and that he did not at that time know of any fault in the condition of the bell, then this fact may be taken into consideration by you, together with all the other facts in the case, as bearing upon the question as to whether or not the deceased was free from contributory negligence.”

The court, in its general charge, instructed the jury:

“ The plaintiff has charged several things against the railroad company as negligence; yet, under the proofs, I instruct you that there is but one of these things which you can consider in determining whether the defendant was or was not negligent, and that is whether the bell on defendant’s engine was or was not rung. * * * Nor would all of these things, — the failure of the electric bell, the failure to restore the crossing, and the rate of speed,— taken together, under the circumstances of this case, be negligence, so as to fix a liability upon the defendant company, provided the bell upon the engine was constantly ringing while the train was passing over the 40 rods of road next northerly from the crossing.”

The court also charged that—

“The failure of the electrical bell to ring was not negligence on the part of the company, because such a bell is liable to get out of order, and people must take notice that it is liable to get out of order, and not place dependence upon it. The company do not guarantee that the bell will ring every time. It was not intended that the bell should take the place of a man’s ordinary caution, but that it should be a help added to such caution.”

Upon the question of not restoring the highway, the court said:

“ The fact that the company had not removed the’ embankment at the crossing, and had not restored the crossing as nearly as possible to its original character as it existed before the railroad went through, would not of itself be such negligence as would entitle the plaintiff to recover, because the facts of this case do not give that matter enough importance, as connected with the result, to have such effect.”

As to the rate of speed at which the train was moving, the court said that “would not of itself make the company responsible.” The court also charged:

“If you find that Mr. Tobias looked and listened carefully until he came where he could see up the track east of the trees, all without being made aware in any way that a train was approaching, and you find that the engine bell was not rung, but that if it had been rung he would probably have heard it, and was listening for it; that the absence of its warning had lulled him into a sense of security, — you may take that into consideration in determining whether, acting as a reasonably prudent man, he should have stopped his horses before the collision, because, if the railroad company did not ring its engine bell, it was negligent, and it can gain nothing by its own wrong, but must consent to measure this man’s conduct by the situation in which its negligence naturally and necessarily placed him. * * * In the absence of all proof by the way of circumstances and otherwise, it will be presumed that Mr. Tobias looked and listened, and acted as he ought. But if there is a fact or circumstance, or any combination of facts and circumstances, in the case, inconsistent with his looking and listening or his proper action, then there is proof that he did not look or listen properly.”

The court also charged the jury at considerable length as to the care which the deceased should have used in approaching the crossing, and ■ that if they found, under the circumstances, that he was guilty of contributory negligence, the plaintiff could not recover. The jury returned a verdict in favor of the defendant company.

1. Plaintiff’s counsel contend that it was the duty of the defendant company to have restored the highway to its original condition, as nearly as might be; and the argument is made that the object the Legislature had in requiring a railroad company to restore a street crossed by its tracks to its former state, as nearly as may be, was for the safety of the traveling public, and that railroad companies are bound to construct and maintain such crossings so as to make them reasonably safe. There can be no question but that such duty is imposed upon railroad companies under the statute, and, indeed, if the statute had not been passed, the common law would have applied; and the company, in cutting through the highway, would have been bound to construct and maintain the crossing in such condition as to make it reasonably safe. Maltby v. Railway Co., 52 Mich. 108; Thayer v. Railroad Co., 93 Id. 150.

The question whether it was the duty of the defendant company to cut these banks down the full width of the highway, we need not consider here. It is not like the case of Thayer v. Railroad Co., supra. There the roadbed was built up to a distance of 30 feet, leaving on the top or crest only a narrow drivéway, about 5 feet wide, and on both sides of which were deep ditches. The plaintiff was driving upon this narrow way; and the negligence charged was in maintaining such a narrow way, and in failing to blow the whistle at' the proper place, and in blowing it just as the plaintiff’s horse was upon this narrow way, thus frightening him and causing the injury. It was evident in that case that the narrowness of the way was the proximate cause of the injury. In the present case there is no evidence whatever that the narrowness of the way had anything to do with the injury. The last seen of the deceased alive was when within a few rods of the crossing. The engineer saw the team just before it was struck. It is not claimed that the deceased was attempting to turn around, and could not, by reason of the narrow way; but the evidence all points to the fact that he deliberately drove upon the crossing, either because he did not see or hear the train, or, seeing it, attempted to cross ahead of it, and miscalculated its speed. We think the court was not in error in charging, the jury that, though the highway may not have been restored to its original condition as nearly as might be, such fact had no bearing in the .case.

2. It is next contended that the court was in error in charging that the rate of speed at which the train was moving would not of itself make the company responsible. It was shown that this highway was. nearly as much traveled as any in the city of Lansing, which was shown to have a population of some 17,000. We think, however, that the court was correct in the instruction given. This was a regular passenger train, running on schedule time. No ordinance was shown or claimed, limiting the rate of speed of trains in the city. There is no general statute limiting the speed, and it is well known that trains are often driven at the rate of 40 or 50 miles an hour across country highways. The statute requires certain signals to be given on approaching such highways, and a failure to give them is held to be such negligence as. to make the company liable. But the running of this train at the rate claimed, under the circumstances shown by this record, cannot of itself be said to be negligence.

In Stern v. Railroad Co., 76 Mich. 597, it was said that SO miles an hour was not an unusual rate of speed for a passenger train past stations; and in Hagan v. Railroad Co., 86 Mich. 615, 624, it was said:

“It must be conceded that in operating a railroad it becomes necessary, at times, to make time between given points, and the running of a freight train at the rate of 40 miles an hour for this purpose is not in itself negligence.”

In Thayer v. Railroad Co., 93 Mich. 150, it was said:

“The averment as to the rate of speed of the train is not that the train was running at an unusual rate of speed, but that it was being run at a speed of 40 miles an hour, in a negligent and careless manner. While it is not necessarily negligent to run a train at the usual rate, or at 40 miles an hour, it is negligent to maintain the usual rate of speed without observing the usual precautions and danger signals to warn the public of its approach.”

But plaintiff’s counsel contend that Klanowski v. Railway Co., 57 Mich. 525, and Guggenheim v. Railway Co., 66 Id. 150, support the doctrine for which they contend. In the first-named case, what was said by Mr. Justice Sherwood about the running of the train at a great rate "of speed, and that whether or not proper care was made to appear in this particular, was a question of fact for the jury, was not concurred in by the remainder of the Court. Mr. Justice Campbell expressly dissented from this doctrine, in which dissension Chief Justice Cooley concurred, and Mr. Justice Champlin concurred only in the result arrived at in the general discussion of the case. In Guggenheim v. Railway Co., it appeared that the street was a public one in the city of Hillsdale, and at the crossing the view was obstructed by buildings coming up within a very few feet of the tracks. It was said:

“While there was at the time of the accident no statute limiting the speed of the train over this crossing, yet the speed of such train must nevertheless be consistent with the degree of care and prudence required in good railroad management; and such crossing must be approached and passed oyer with the care and prudence commensurate with the rate of speed attained, and the train managed and controlled with that degree of care and prudence required for the safety of the lives and property of the persons rightfully approaching and traveling over such crossing.”

No case within this State has gone to the extent of holding that the running of passenger trains at 25 miles per hour is of itself negligence. It is true that such facts might exist as to make the running at that rate of speed •dangerous and reckless, but such facts do not exist here. There was no obstruction to the view of the train by the embankment, and none by this clump of bushes, except at quite a distance back from the crossing; and even there •only a part of the train was obstructed from view, and only for a moment. The whole evidence points to the fact that ■one approaching could see this train, with the headlight burning, for over 1,300 feet before reaching the crossing.

With these facts appearing plainly upon .this record, it is evident that the deceased, if he had looked, might have .seen the train in time to avoid the accident, and the fact ■that he drove upon the track would be conclusive evidence that he did not look; and the court should have directed the verdict in favor of the defendant, but for the question of the maintenance of an electric bell there. The court was expressly asked to charge upon this point, by the plaintiff’s third request, that, if the deceased did not know ■of any fault in the condition of the bell, this fact might be taken into consideration, with other facts in the case, as bearing upon the questiop of deceased’s contributory negligence. This request should have been given. It cannot be said that the deceased would have no right to rely upon the ringing of this electric bell to warn him of the approach of the train. If the electric bell had rung, it would have given him warning. That he expected it to ring might make him less cautious in looking for the coming of a train. The case is somewhat similar in principle to Richmond v. Railway Co., 87 Mich. 374. In that case it was said substantially that it was almost absolutely certain, from plaintiff’s own showing, that he did not look south when within 30 feet of the tracks, and that whether he was negligent depended in a great measure upon whether or not he had a right to rely, under the circumstances, upon the absence of the flagman, and the lack of any signal of danger from him. The cases upon that question are collected, and upon the whole case it was held that the circumstances were such that it became a question for the jury whether the plaintiff was guilty of contributory negligence. So we think in this case that, under proper instructions from the court, that question should go to the jury, in connection with plaintiff’s third request, which should have been given.

The main questions raised by briefs of counsel have been fully discussed, so that upon a new trial the rights of the parties may be fairly submitted.

The judgment must be reversed, and a new trial ordered.

McGrath, C. J., Montgomery and Hooker, JJ., concurred with Long, J.

Grant, J.

I concur in the opinion of my Brother Long, except in what he says about the failure to ring the electric bell stationed at the crossing. This bell is not required by the statute, and the failure to ring it is not negligence per se. There was evidence that the apparatus by which it is rung was out of order. Several of the witnesses, however, for the plaintiff, testified that it did ring, but not so loud as usual. The fact that it did not ring at all, or as loud as usual, could not, in my judgment, operate as an excuse for Mr. Tobias. He was bound to use his senses of hearing and seeing to the same degree as though the bell had not been there. The highway was on the outskirts of the city. Mr. Tobias lived near the crossing, and was familiar with the danger. He knew that: trains were liable to pass at any time, and is chargeable-, with knowledge that this was the time for the approach, of a regular passenger train. To hold that such am apparatus, not required either by the statute or by the' common law, but placed by the company in a laudable desire to furnish every notice possible of an approaching train, may operate to excuse a traveler from looking and. listening for an approaching train, is a doctrine which I do not think is sanctioned by reason or authority. Every traveler knows that a train cannot stop instantly, and that if he drives his team upon the track he endangers, not only his own person and property, but the lives and property of the employés and passengers .upon the train, and, as well, the property of the company. If it was so dark or foggy or misty that he could not see the light of the-approaching train, it was clearly his duty to stop and listen. Had he done so, the conclusion is irresistible that he would have heard the noise of the train. It is a matter of common knowledge that electrical bells are liable to-be out of order. In,order to excuse the failure of Mr. Tobias to look, or to stop and listen, if he could not see, the jury would be compelled to find that he had the right to rely upon the ringing of the electrical bell as notice of the approaching train, and to drive on without other precaution. I think the request was properly refused.

I think the court should have directed a verdict for the defendant, but he left the case to the jury with very careful instructions on both the negligence of the defendant and the negligence of the deceased,’instructing them to consider all the facts and circumstances in the case bearing upon both. The jury found a verdict for the defendant.

The judgment should be affirmed.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    George L. Walker v. Theron F. Giddings, Commissioner of Insurance.

      Benefit societies — Endowment insurance — Authority to do business.

    1. Insurance payable on the expiration of a fixed period comes within the definition of endowment insurance.
    2. A beneficiary society incorporated under Act No. 104, Laws of 1869 (How. Stat. chap. 118), which provides only for the payment by the society of a certain sum in case of death, and for periodical payments in case of the sickness or other disability of the member, is not authorized to conduct an endowment insurance business.
    8. The words “such business,” used in section 3 of Act No. 119, Laws of 1893, entitled “An act to define what shall constitute fraternal beneficiary-societies,” etc., and which provides that all associations coming within the description as set forth in section 1 of the act, organized under the laws of this or any other state, and now doing business in this State, may continue “such business,” provided they comply with the provisions of the act regulating annual reports, etc., mean such business as was authorized under the act under which the association was incorporated.

      Mandamus:

    Argued December 18, 1894.
    Denied December 22, 1894.
    Relator applied for mandamus to compel respondent to receive and file the reports of a fraternal beneficiary association, and to issue the statutory certificate authorizing it to do business. The facts are stated in the opinion.

      D. F. Olidden, for relator.

      A. A. Ellis, Attorney General, for respondent.
   Long, J.

Relator, on behalf of the American Monitor, a fraternal beneficiary organization, filed his petition for mandamus to compel the respondent to receive and file the reports of said association according to the provisions of Act No. 119, Laws of 1893, and to issue his certificate of authority to said association to carry on and transact the business specified in the several sections of its articles of association, constitution, and by-laws.

The petition sets forth substantially that said association was incorporated on August 9, 1893, and is a corporation organized and existing under the laws of this State as a fraternal beneficiary organization, operating through a lodge system, and paying to its members or their beneficiaries benefits upon death, disability, or old age; that by its constitution and by-laws it is authorized to issue to its members certificates in sums of $250 each, payable to such members at a specified time, or upon total or partial disability, or, upon death of such members, to the beneficiaries of such members.

This association was incorporated under Act No. 104, Laws of 1869, being chapter 118, How. Stat., and on the date of its organization filed its articles of association with the Secretary of State. The Commissioner of Insurance refused to receive and file the reports or to issue the certificate, for the reasons:

1. That by the articles of association, constitution, and by-laws of the American Monitor it is proposed to carry on what is commonly known as “endowment insurance,” or the paying of a specified sum upon the arrival of a certain stated time.

2. That the law under which said association was incorporated has been repealed, save as to corporations existing at the time the act of 1893 took effect, which was August 27, 1893; and, as said association has never reincorporated under the act of 1893, but merely continues its business by virtue of section 3 of that act, it has no authority to do any other business than that specified in Act No. 104, Laws of 1869.

Section 1 of the act of 1869, under which the association was incorporated, provides:

"That any number of persons, not less than five, may become a body corporate and politic for the purpose of securing to the families or heirs of any member, upon his death, a certain sum of money, to be paid by such corporation either out of its fund or by an assessment made upon the members of such corporation, or upon the members of the class in such corporation to which such deceased member belonged, or for the purpose of securing in the same manner a certain sum of money, weekly or monthly, to any member disabled from attending to his ordinary duties by sickness or other disability.”

Section 5 of article 1 of the constitution of the association provides:

" The supreme directory shall have the power, through its board of managers, to issue endowment or life certificates of not exceeding $250 each, payable in 100 months, or upon total disability or death; or, when there shall be a sufficient sum in the maturity fund, the lowest serial' number of the endowment certificates may be retired under the direction of the board of managers in accordance with the terms of the certificate.”

The act under which the association was incorporated, it will be noticed, provides only for payment in case of death, or for payments in case a member is disabled by sickness or other disability; while the constitution of this association not only provides for payment in case of death and disability, but also endowments payable at the end of 100 months. It is too well settled to need the citation of authority that corporations can exercise only such powers, as are expressly or by implication granted to them. Bac. Ben. Soc. & Life Ins. § 47; Ang. & A. Corp. § 256. Subdivision 3 of article 2 of the constitution of the association, relative to the objects of the order, provides for the naming of beneficiaries, and the receipt of benefits by such members or the beneficiaries named, in a sum not exceeding $3,000 in all in the endowment and life classes. The act of 1869 was amended by Act No. 192, Laws of 1883, but the amendment in no manner enlarged the privileges of corporations organized under the act of 1869, but, on the other hand, limited the beneficiaries of the member to the husband, wife, family, heirs, creditors, or assigns of the member.

But it is contended by relator that section 3 of Act No. 119, Laws of 1893, gives validity to all corporations organized and doing business within this State on condition only of complying with the act as to filing reports, etc.; that section 10 of that act provides for reincorporation under the act, but expressly negatives any obligation so to reincorporate; that it appears clear from the reading of the act that the Legislature intended (1) to recognize existing organizations,’ regardless of reincorporation, and by requiring reports; (2) that upon complying with the provisions of the act respecting the filing of reports the commissioner shall issue his certificate to do business. It is further contended that there had never been any inhibition in the statutes as to fraternal beneficiary organizations paying benefits in any form or manner desired until .the act of 1893, and that up to the act of 1893 every statute had expressly excepted from all its provisions such fraternal beneficiary organizations; and that the act of 1893 by implication recognizes the right of such organizations to do what they have in the past done. On the other hand, the contention of the Attorney General is that this association, having been incorporated under the act of 1869, is governed by its terms, and can only do such business as by that act authorized; and that the act of 1893 does not enlarge its powers. Act No. 119; Laws of 1893, is entitled:

“An act to define what shall constitute fraternal beneficiary societies, orders, or associations; to provide for their incorporation and the regulation of their business, and for the punishment for violation of the provisions of the act of their incorporation; and to repeal all existing acts inconsistent therewith.”

Section 1 of the act provides that—

“A fraternal beneficiary association is hereby declared to be a corporation, society, or voluntary association formed or organized and carried on for the sole benefit of its members and their beneficiaries, and not for profit. Such association having a lodge system, with ritualistic form of work and a representative form of government, and making provision for the payment of death benefits, may, in addition thereto, provide for the payment of benefits in case of accident, sickness, disability, or old age of its members. The fund from which the payment of such benefits shall be made, and the fund from which the expenses of such association shall be defrayed, shall be derived from assessments or dues collected from its members.”

It then provides to whom death benefits may be made payable, — who made beneficiaries. Section 2 of the act provides how such association may be organized. It is then provided by section 3 as follows:

“All such associations coming within the description as set forth in section 1 of this act, organized under the laws of this or any other state, province, or territory, and now doing business in this State, shall be considered duly organized, and may continue such business: Provided, that they hereafter comply with the provisions of this act regulating annual reports, and the designation of the Commissioner of Insurance as the person upon whom process may be served, as hereafter provided.”

It is contended by relator that the words “may continue such business,” used in the above section, mean such business as the association had theretofore been doing; that is, this association had been doing the business of issuing endowment certificates of $250 each, payable in 100 months, and that, therefore, though the act under which it was incorporated may not have permitted the issuing of such endowment certificates, yet the act of 1893 is an enabling act, and now permits the organization to issue them. On the other hand, the Attorney General contends that the word “such,” in section 3, means such business as was authorized under the act under which the association was incorporated. The construction given by the Attorney General is correct. We cannot accede to the relator’s construction of these words. If his contention be correct, it must necessarily follow that, however illegal the act which the association was performing or was organized to perform, such acts were made legal by section 3. It is very evident that the word “such” had reference solely to the business which was authorized by the act under which the associations were incorporated.

It is contended, however, that this is not an endowment fund which is provided to be paid by these certificates. It is an amount stated to be paid at the arrival of a certain and fixed period, and comes within the definition of endowment insurance. In Cooke, Ins. § 107, it is said:

“Sometimes the contract to pay on the death of the insured is conjoined with a contract to pay on the expiration of a fixed period, should he live so long. Such a contract is called a f contract of endowment insurance,’ though, so far as concerns the contract to pay on the expiration of a fixed period, it is not, strictly speaking, a contract of life insurance at all.”

See, also, Levy v. Van Hagen, 69 Ala. 17.

It follows from this that the association has no right to have the certificate to do such business as it claims, or to have its reports received and filed with the Commissioner of Insurance. This association sets up that it was organized under the act of 1869, and it must be held to derive all its powers from that act, and that it cannot do any business except such as is permitted by the act itself.

The Attorney General suggests in his brief that this association could not reincorporate under section 10 of the act of 1893. It has not attempted to reorganize. That question is consequently not before us, and we shall not pass upon it on this record.

It is also suggested by the Attorney General that the act of 1869 is repealed by the act of 1893, saving corporations already organized, and that hereafter no corporations can be organized under it; but, as this association was organized and had filed its articles of association with the Secretary of State before the act of 1893 took effect, that question is not before us.

The writ must be denied.

The other Justices concurred.


author: McGrath, 0. J. Grant, J.

text:
    The People v. Joseph Rice and William Berry.

      Criminal law — Information—Duplicity—Waiver—Local option— Intoxicating liquors — Instructions to jury — Paid witnesses — Keeping saloon — Inability of bartender.

    1. In a prosecution for a violation of the local option law, just as the case was about to be submitted to the jury, the respondent’s counsel for the first time objected that two distinct offenses were charged in the information, whereupon the prosecuting attorney was required to and did elect to claim a conviction for but one of said offenses. And it is held that the objection is therefore without force.
    8. Two witnesses testified in behalf of the people that they drank lager beer in the place kept by the respondents, and one of them further testified that the beer was intoxicating. Another witness for the people testified on cross-examination that he drank with one of said witnesses, and from the same bottle; that what he drank was hop pop; that he could not swear whether or not hop pop is intoxicating, but that he was not affected by drinking it. A witness for respondents testified that he was present, and that what the witnesses first mentioned drank was not lager beer. The respondents testified that they did not keep lager beer for sale at the time charged, and did not sell to said witnesses any such beer; that they had tested hop pop, and it was not intoxicating. And it is held that the court should have instructed the jury, as requested by the respondents, that, in order to convict, they must believe from the evidence introduced, beyond a reasonable doubt, that the respondents, on the day charged, sold lager beer, as alleged in the information, and that, if they should believe they only sold hop pop, they should acquit the respondents; but that it •would have been proper to add to this instruction a caution that, if what was sold was in fact lager beer, the responsibility for the sale could not be avoided by giving it the name of “hop pop.”

    3. The respondents had the right to show upon cross-examination, if they could, as affecting the credibility of the people’s witnesses, that they were employed as detectives to ferret out violations of the local option law, and were acting under pay; citing People v. Murphy, 93 Mich. 41.
    4. Where the fact of such employment is established, it is error to refuse a request to charge that, in determining the credit that should be given to the testimony of such witnesses, the jury should consider the fact that they are “ hired witnesses.”
    •5. Employment in a saloon as bartender to sell, both in the presence and absence of the proprietor, is aiding and assisting to maintain said place; and, in a prosecution under the local option law for keeping a saloon where liquors of the prohibited kinds were sold and furnished as a beverage, a bartender so employed may be charged as a principal.
    Exceptions before judgment from Hillsdale. (Lane, J.)
    Argued April 25, 1894.
    Decided December 28, 1894.
    Respondents were convicted of a violation of the local •option law.
    Conviction reversed.
    The facts are stated in the opinions.

      C. A. Shepard (T. B. Dibell and W. C. Chadwick, of counsel), for respondents.

      A. A. Bilis, Attorney General, and Guy M. Chester, Prosecuting Attorney, for the people.

       The question what liquors are intoxicating within statutes regulating their sale, including judicial notice of their character, is discussed in a note to Lemly v. State, 20 L. R. A. 645,

   McGrath, 0. J.

Respondents were charged with the violation of the local option law, and were convicted.

It is insisted that the information alleged two distinct offenses, viz., that of keeping a place where liquors were sold, and that of selling on a specified day. No objection was raised until the case was about to be submitted to the jury, when the people were required to elect, and did elect. The objection is therefore without force.

One Alley testified that he went into defendants’ place with one Adams, and—

“I drank what I called flager beer.’ * * * What I drank I thought was beer. * * * I drank the same as I did the first time, — lager beer. I thought it was intoxicating.”

Adams testified:

“I think I drank three glasses. It was beer, — flager beer,’ I should call it. It was intoxicating, stimulating.”

One Spaulding, who was invited by Alley to go with them, testified:

“I am a miller by trade. I was engaged in the saloon business for six months at Freemont, Ind., and sold lager beer under a license law there. I called for beer. Mr. Berry said he had no beer, nothing stronger than hop pop. I told him we would take some of that. He poured it out, and we drank it, Mr. Alley and I together. It was poured out of the same bottle. What I drank was hop pop. I have drank lager beer. I couldn’t swear whether hop pop is intoxicating or not. It never intoxicated me. I felt no effect of what I drank that day, and I don’t think I ever drank enough hop pop to feel the effect of it. What I drank there that day was not lager beer. I know what lager beer is.”

One Shepard testified that he was present when Alley and'Adams were in the place; that he saw them drink; and that what they drank was not lager beer. The respondents both testified that they kept no lager beer for sale at the time charged; that they did not sell or furnish to either Alley or Adams, at the time mentioned, any lager beer; that hop pop did not taste like lager beer; that they had tested hop pop, and it was not intoxicating.

Under this testimony, we think the respondents were entitled to the instruction requested, that,—

“In order to convict the defendants in this case, you must believe from the evidence introduced, beyond a. reasonable doubt, that they sold on the 11th day of' October, 1892, lager beer, as charged in the information; and, if you believe they only sold hop pop, then you. should acquit them.”

It would have been entirely proper, however, for the circuit judge to add to the instruction a caution that, if what was sold was in fact lager beer, the responsibility for the sale could not be avoided by giving it the name of “hop pop.” On a trial for selling intoxicating liquors ini violation of law, it is necessary to show by the evidence that the liquor sold was intoxicating. There are certain kinds of liquors in regard to which courts will take judicial notice that they are intoxicating, but hop pop is not one of them, nor does the statute declare that hop pop shall be deemed intoxicating. Neither Alley nor Adams was shown to be an expert, nor did it appear that either had had any personal experience or observation such as would enable him to form a correct opinion. Neither was shown to have been affected by the indulgence. Black, Intox. Liq. § 521.

Adams testified that he was a detective, and had been, employed to ferret out violations of the local option law and secure convictions; that he had made a number of complaints, and had been sworn as a witness in a number of like cases. The defense sought to show upon cross-examination that Alley was also employed for. the same-purpose; that the meetings between Alley and Adams were..not accidental; that they had been together at various ■.places; that both had testified in other cases; and- that .Alley had received pay for taking Adams to different .localities in the county. We think this testimony was ■■improperly excluded. The respondents had the right, upon -cross-examination, to show that these witnesses were employed, and were acting under pay, as affecting their •credibility. People v. Murphy, 93 Mich. 41, 45.

The respondents were entitled to their ninth request, "which was as follows:

“In arriving at your verdict, you should take‘into con.sideration the fact that the witness Adams is a hired witness, and the fact that he is such hired witness should be ■ considered by you in determining the credit that should be given his evidence.”

It is urged that, inasmuch as Berry was an emplové .simply, he was not guilty of the offense of keeping the place. It seems to me that there is much force in this •contention. The offense is purely statutory. The statute .makes it unlawful for any person to sell, etc., or to keep .a saloon or place where, etc. Many of the statutes make .not only the principal, but all who aid or assist, liable. State v. Stucker, 33 Iowa, 395; State v. Sullivan, 83 Me. 417; Tardiff v. State, 23 Tex. 169. Our own statute .regarding the sale of intoxicating liquors, in express terms, makes all who aid and assist liable as principals, but the local option law contains no such provision. Mr. Bishop .says that, if the terms of a statute distinctly limit the punishment to persons who participate in the act only in a certain way, they furnish the rule for the court. If the expression is general, then, if the offense is of minor turpitude, and especially if the thing is only malum prohibitum, the courts, by construction, will limit its operation to those persons who are more particularly within the express words of tbe enactment. 1 Bish. Cr. Law, § 657. In Wakeman v. Chambers, 69 Iowa, 169, the question arose as to the liability of the purchaser, and the court say:

“The sale of intoxicating liquor is lawful at common law, and it becomes unlawful simply because the statute so provides. Under the statute, the sale, or keeping with intent to sell, is a public offense, because the statute so declares. The statutory crime is bounded by the statute creating it, and the statute operates on, and has force and effect against, the persons therein named, and no others. As the prohibitory statute does not provide that the purchaser is guilty of any crime, it seems to us this fact practically ends the inquiry. If such had been the intent, it would certainly have been so provided in express terms.”

Mr. Black says (section 372):

“A servant may be convicted of keeping and maintaining a saloon if, in the absence of the proprietor, he makes illegal sales of liquor, or otherwise assumes a temporary control of the premises.”

The Massachusetts cases seem to uphold the rule laid •down, but they also hold that a conviction for keeping is not supported by proof of sales made in the presence of the proprietor. The language “keep a place” involves the control and management of the place; and it is going very far to hold that because a clerk is left temporarily in charge, in the absence of the proprietor, he is chargeable as keeper of the place. In State v. Main, 31 Conn. 572, it is said that “to keep a hotel implies more than to live in one. The controlling head of a hotel keeps it. So the controlling head of a house of ill fame keeps it.” Persons having the general charge, control, management, and supervision have been held liable as for keeping. State v. Dow, 21 Vt. 484; Stevens v. People, 67 Ill. 587. But I find no cases except those in Massachusetts holding that the mere temporary charge of a servant constitutes him the keeper of the place. State v. McGuire, 64 N. H. 529, holds the servant liable, but puts it upon the ground that the act of keeping is a misdemeanor, and that all who aid and assist are liable as principals. I think, however, that those who aid and assist in the commission of a misdemeanor are liable as principals in that class of cases-only where the offense is malum in se, or criminal in itself, and not merely malum prohibitum. The statute, it seems to me, aims to reach any person who manufactures, sells, gives away, or furnishes, and the person also who keeps the place where manufactured, sold, given away, or furnished. I do not think that the language “to keep a saloon or place can be held to apply to a mere bartender who is under the immediate control of the master, although such master may be temporarily absent, at dinner perhaps. As between the two persons here charged, the proprietor should be deemed the one who keeps the place, under the statute.

The conviction must therefore be set aside, and a new trial had as to the respondents. In my opinion, respondent Berry should be discharged, but my brethren do not concur in that view.

Montgomery, J. I concur with the Chief Justice except as to the last point. In respect to that question, I concur with Mr, Justice Grant.

Long, J., concurred with Montgosiery, J.

Grant, J.

1. Defendant Joseph Rice was the keeper of the place where it is charged that lager beer was sold in violation of the local option statute. Defendant Berry was his bartender. Two witnesses testified that they called for lager beer, and that they obtained it, and drank it. Others testified that they called for hop pop, and that they did not know that it was intoxicating. It is alleged as error that the court should have charged the jury, as requested, that, if they believed that the defendants sold only hop pop, they should acquit them. It would have been proper to give this charge, coupled with the further instruction that, if what was called hop pop was in fact lager beer, then they should convict. We have no information as to the ingredients of hop pop. It may or may not be one of the subterfuges resorted to by persons desiring to avoid the law. The only charge in the information was the selling of lager beer. The judge clearly and plainly instructed the jury that if the people had not satisfied them beyond .a reasonable doubt, by their evidence, that the defendants sold this article, then they must acquit. The jury, under the charge, could not have convicted except by finding that the liquor sold was, in fact, lager beer. The charge covered the entire ground, and we see no error in refusing this •specific request.

2. On cross-examination of the witness Alley, he was permitted to testify that, on four or five examinations ■before justices of the peace, he had been sworn in connection with the witness Adams, where it was claimed they were together; that he had never gone with Mr. Adams to certain places named; that he had no arrangement or ■contract with Mr. Adams by which he was to take him around to different places, and assist him in looking up places where liquor was sold. It was also shown- upon •cross-examination of this witness that, in another case, witnesses were placed upon the stand to impeach him, and that two of them swore that his reputation for truth and •veracity was bad. The witness was asked if he was with Adams in any of these places before going to the place -called “Reading,” and if he had ever received pay for Tiding to any of those places other than Reading, and if he had been around and been a witness in a number of ■cases. The refusal to permit these questions to be answered is alleged as error. We think the questions were within the discretion of the court. Helwig v. Lascowski, 82 Mich. 620.

3. Defendants’ counsel requested the ’ following instruction :

In arriving at your verdict, you should take into consideration the fact that the witness Adams is a hired witness, and the fact that he is such hired witness should be considered by you in determining the credit that should be given his evidence.”

The request was properly refused. Whatever language it may have been proper for the counsel defending the prisoners to use in regard to this witness, it would not, in my judgment, have been proper for the court to say to-the jury that he was a hired witness. If he was a hired witness, then every detective employed by the people to-investigate crime and hunt up evidence is a hired witness. Mr. Adams admitted his employment as a detective. As-such, it was his business to enter places upon which rested a suspicion that the law was there being violated, and to ask for drinks of liquors. He held out no inducement to-commit crime, and his 'employment as detective was legitimate and proper. The employment of detectives is necessary for the protection of society. Their conduct and interest in each individual case are proper subjects for. comment by attorneys, and for the consideration of the-jury. It would have been entirely proper, under the-authority of People v. Murphy, 93 Mich. 45, for the judge-to call the attention of the jury specifically to this subject, and to instruct them that they might consider that fact as-affecting his credibility. But I can see no reason for-holding that a detective who enters a gambling house or saloon to obtain evidence as to alleged violation of the-laws of the State should be denounced by the court to the jury as a hired witness. It is to be presumed that the; counsel argued this point fully to the jury. The court, in a general charge, instructed them that they should consider the conduct, character, appearance, and interest of the witnesses, with a view to determining the credibility to be given to them. In the absence of a proper specific request*, we think there was no error.

4. It is insisted that the court erred in not directing an? acquittal of the defendant Berry, the bartender, upon the ground that he was not a keeper. The charge in the information is that the respondents kept a saloon where liquors-, of the prohibited kind were sold and furnished as a beverage. Accessories in misdemeanors are unknown to the-common law. All who participate in the commission of the offense must be charged as principals. It is, however* sought to limit this rule to acts which are malum in s& and not malum prohibitum. In Massachusetts it is held that the clerk or bartender is liable if he acts in the? absence of the principal, and is in charge of the place*, but not when acting in his immediate presence. Com. v. Churchill, 136 Mass. 148; Com. v. Galligan, 144 Id. 171. In the latter case the court say:

“ The defendants could be jointly found guilty only by-proof that they jointly kept or maintained the nuisance-charged. If one was sole proprietor, and the other only kept or maintained the nuisance as his servant, under his. direct personal supervision, the latter could not be convicted. If, however, the servant, in carrying on the business of his employer, and in the absence of his employer* was authorized by him to make illegal sales of intoxicating liquor, and made such sales, both could be found guilty of maintaining the nuisance.”

In some cases a distinction is made between the charge-of unlawful selling and that of unlawful keeping. One of the propositions laid down by Black as sustained by the-authorities is:

“If neither the principal nor the agent, master noir servant, holds a license, the agent or servant is personally punishable for making the unlawful sale.” Black, Intox. Liq. § 372.

In Wakeman v. Chambers, 69 Iowa, 170, a witness refused to answer as to his purchase of liquor, on the ground that the answer would tend to criminate himself. ’The case was decided upon the provisions of the statute, ■which in terms invited those who obtained liquor in the ^saloon to give information under oath, and the purchaser was therefore held not liable. A similar principle appears -to have controlled the decision in State v. Main, 31 Conn. 574. This statute provided a punishment for keeping a /house of prostitution, and a separate punishment for persons residing therein.

In State v. Dow, 21 Vt. 486, the respondent was held guilty of dealing in spirituous liquors without a license, although he did not sell himself, but had general charge of his employer's store, in which liquors, among other things, were sold. See, also, State v. Bugbee, 22 Vt. 32.

In Stevens v. People, 67 Ill. 587, where the offense charged was keeping a common gaming house, it was held that if the respondent was present, and in any way nr manner aided or abetted or assisted in keeping, oper.ating, and running such gaming room, he was guilty, although he was not the actual owner or proprietor thereof.

Employment in a saloon as bartender to sell, both in the presence and absence of the proprietor, is certainly aiding and assisting to maintain such place. While the authorities are not uniform, and some decisions are based upon the peculiar wording of the statute, I think the better rule is that all so aiding and assisting are guilty as principals. We see no good reason for making a distinction between offenses malum in se and those malum prohibitum.

It follows that the conviction was correct, and should foe affirmed.

Hooker, J., concurred with Grant, J.

       The prosecuting attorney elected to submit the case to the jury upon the count charging the respondents with keeping a place where liquors were sold.


author: Grant, J.

text:
    James T. Birkett v. The Western Union Telegraph Company.

      .Telegraph companies — Regulation limiting liability — Unrepeated message — Delay in transmission — Gross negligence.

    1. Telegraph companies, in the absence of a statute making them such, are not common carriers; citing Telegraph Co. v. Carew, 15 Mich. 525.
    :2. A regulation by a telegraph company that, to guard against mistakes or delays, the sender of a message should order it repeated, — that is, telegraphed back to the originating office for comparison, — for which service one-half the regular rate would be charged, and limiting the liability of the company for mistakes or delays in the transmission or delivery or for the non-delivery of any unrepeated message, whether happening by the negligence of its servants or otherwise, to the amount received for sending the message, is such a reasonable condition as the law authorizes the company to make.
    :3. The sender of a message written upon a blank furnished by the company, and signed by him, upon which is printed said regulation, is bound by the same whether he had knowledge of its contents or not, and, in the absence of gross or willful negligence upon the part of the company, it is not liable, except as stated in said regulation, for delay in the transmission of the message.
    -4. A message was left for transmission at a railway station, at which the telegraph company receiving it had an office, which was one with that of the railway company, as was its office at the station to which the message was to be sent, it having an arrangement with both railway companies by which their operators at said stations attended to its business. The message had to be sent via a city about 12 miles distant from the receiving office of the telegraph company. It reached said city in due time, but owing to the failure of the operator at the-delivery office, who was temporarily in charge during the absence of the regular operator, to make the proper connection with the city office, the message was four hours late in its delivery. The telegraph company had provided suitable-instruments and competent operators. And it is held that the-failure of the temporary operator to make the proper connection with the city office was not gross negligence, within the definition adopted by the Court in Denman v. Johnston, 85-Mich. 387; Frost v. Railroad Co., 96 Id. 470.
    Error to Wayne. (Brevoort, J.)
    Argued June 7, 1894.
    Decided December 28, 1894.
    Case. Defendant brings error.
    Reversed.
    The facts are-stated in the opinion.

      O. A. Kent, for appellant.

      David W. Brooks (Otto Kirehner, of counsel), for-plaintiff.
   Grant, J.

Defendant has a telegraph office at Hand' station, on the Wabash Railroad, 13 miles from Detroit, and also at Dearborn, on the Michigan Central. The-distance between them is between three and four miles. At both places the office is one with that of the railway-company, and the operators are those employed by these-companies. Defendant has an arrangement with the companies, by which their operators at these stations do all, its business. It has no contract with the operators, and no control over them. The entire receipts of the defendant at Hand are about $3.50, and at Dearborn about $4, per month. The 'cost of a telegraph operator at either-place would be about $40.

Plaintiff resided at Hand station. His wife was taken, sick on the morning of August 36, 1890, and a physician, residing at Dearborn was summoned to attend her. She-was suffering from a miscarriage. The flow of blood wa'sstopped, and the physician left, with instructions to send for him if the hemorrhage returned. About 9 o'clock in the morning she became worse. At 10 o'clock plaintiff-sent an nnrepeated message to the physician at Dearborn, sayings “ Come to my house quick." He also informed the operator of Mrs. Birkett's illness, and of the necessity of haste. The message had to go by way of Detroit. It. reached the latter place in due time, but the operator at-Detroit could not get the operator at Dearborn, although he tried many times. The message should have been delivered in about half an hour, but was not delivered until about 2 o'clock p. m. The regular operator at Dear-born had been granted leave of absence, and his place temporarily supplied by another, who did not make the proper connection with the Detroit office of the defendant. This was the reason of the delay in sending the message. It is claimed by plaintiff that the health of his wife was. seriously injured by the delay in the delivery of the message, and the consequent failure to obtain medical attendance and treatment, and also that he had been subjected thereby to expense in procuring medical attendance and medicines. For the alleged injury he recovered verdict, and judgment of $2,500.

.The telegraph blank upon which the message was sent, and signed by the plaintiff, stated that it was taken by the company subject to the terms thereon printed. One of these terms reads as follows:

“ To guard against mistakes or delays, the sender of a. message should order it repeated; that is, telegraphed back to the originating office for comparison. For this,, one-half the regular rate is charged in addition."

It further provided that the company should not be liable for mistakes or delays in the transmission or delivery or for the non-delivery of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same. The first defense set up against this action is this condition, which defendant insists was a part of the contract between it and the plaintiff, and is such a reasonable condition as the law authorizes it to make.

It was settled in this State by the case of Western Union Telegraph Co. v. Carew, 15 Mich. 525, that telegraph companies, in the absence of any provision of the statute, are not common carriers, and that the regulation stated above is reasonable, and binding upon the senders of messages, whether they had knowledge of its contents or not. This has been accepted as the law in this State for 27 years. The telegram, as written, used the word “forty,” as delivered, the word “ four.” The Legislature has not seen fit to change the liability of telegraph companies, as there established; and, whatever might be the views of any of us if it were a new question, we are not disposed to overrule that case, which received the sanction of the three eminent jurists who decided it. The reasoning of that decision is substantially the same as that found in the decisions of many other courts, some of which are cited in the opinion. In addition to the cases there cited, we cite the following: Ellis v. Telegraph Co., 13 Allen, 226; Grinnell v. Telegraph Co., 113 Mass. 299; Kiley v. Telegraph Co., 109 N. Y. 231; Redpath v. Telegraph Co., 112 Mass. 71; Clement v. Telegraph Co., 137 Id. 463; Telegraph Co. v. Hearne, 77 Tex. 83; Passmore v. Telegraph Co., 78 Penn. St. 238; Becker v. Telegraph Co., 11 Neb. 87; Wann v. Telegraph Co., 37 Mo. 472; Lassiter v. Telegraph Co., 89 N. C. 334; Telegraph Co. v. Gildersleve, 29 Md. 232; Hart v. Telegraph Co., 66 Cal. 579.

In Ellis v. Telegraph Co., the dispatch, as sent, read, “ Ten (10) men, one hundred twenty-five dollars.” As received, it read, “Ten (10) men, one hundred seventy-five (175) dollars.” In Grinnell v. Telegraph Co., a material part of the message was omitted. In Kiley v. Telegraph Co., the message was never delivered. In Redpath v. Telegraph Co., the message was never delivered, but was sent to Oswego, instead of to Owego. In Clement v. Telegraph Co., the message was not delivered until five days after its receipt. In Telegraph Co. v. Hearne, the dispatch read: " Return note left by Hearne. Draw for $500.” As delivered, it read: " Return note left by Hearne, order $500.” The plaintiff in the court below recovered a verdict for $25,000. In Passmore v. Telegraph Co., the dispatch, as sent, read, "I hold the Tibbs tract for you.” As received, it read, "I sold the Tibbs tract for you.” In Becker v. Telegraph Co., the dispatch, as sent, read, "One fifty;” as received, "One sixty.” In Wann v. Telegraph Co., the dispatch, as sent, read, "Ship by sail;” as received, "Ship by rail.” A similar mistake occurred in Lassiter v. Telegraph Co., which case has, however, been recently overruled by Brown v. Telegraph Co., 111 N. C. 187. In Telegraph Co. v. Gildersleve, the dispatch was never delivered. In MacAndrew v. Telegraph Co., 17 C. B. 3, the message directed a vessel to proceed to Hull. The message, when delivered, read "Southampton.” In the above cases this regulation was held reasonable, ¿nd the failure to order the message repeated a complete answer to the action. Several of the authorities above cited recognize the rule that any condition relieving telegraph companies from liability for gross negligence, willful misconduct, or fraud is void, as against public policy. This rule is also recognized in the following authorities: White v. Telegraph Co., 5 McCrary, 103; Telegraph Co. v. Howell, 38 Kan. 685; Telegraph Co. v. Goodbar (Miss.), 7 South. Rep. 214.

The authorities are not uniform, and several authorities will be found to the contrary. The rule is criticised in Thompson on the Law of Electricity (chapter 8), where the authorities will be found collated. We do not deem it important to cite them here. Some of them recognize the right of telegraph companies to establish reasonable rules and regulations for the conduct of their business. ■Some also recognize these regulations as valid, but strip them of their force by holding that'they do not apply to nor relieve a telegraph company in case of negligence. Speaking for myself, I can see no object in the regulation, unless it be to relieve the company from certain negligent .acts of its employés. If they be not common carriers,— and this is almost universally admitted, — then there is no liability, except in case of negligence. If delay in delivery, ■or failure to deliver, or mistake in the wording of messages, is attributable to storm, to accident, to sudden .sickness of an operator or a messenger, or to any cause which does not of itself imply negligence, there can be no liability. What purpose, then, is there in, or what benefit is, such a regulation, if it still leaves open the question of negligence against them, where the sender ■does not choose to comply with the conditions to which he has agreed, and which will, in all probability, insure the delivery of his message as written? In commenting upon this class of cases, which hold that telegraph companies cannot stipulate against any negligence on the part ■of their employés, the supreme court of California says:

“ But, as this latter class of cases concede that telegraph •companies are not common carriers, their liability must rest on the ground of negligence or willful misconduct, which is fraud. Fraudulent conduct on the part of the ■company would, of course, vitiate such a stipulation; but to say that no stipulation can be made, limiting their liability for negligence, is to say, in effect, that no stipulation can be made limiting their liability at all. It seems to us, therefore, that we must either hold,' as did the ■courts in Illinois, Maine, and Wisconsin, that such stipulations are invalid because unsupported by a consideration .and contrary to public policy, or that it is competent for "telegraph companies to stipulate for the limitation of their liability for errors arising from any cause except willful misconduct or gross negligence.” Hart v. Telegraph Co., 66 Cal. 583.

The court below and counsel appear to have recognized the rule as established in the Carew case, for it was left to the jury to determine whether the defendant was guilty ■of gross negligence in the failure to deliver the message within the usual time. Such failure is certainly no more .gross negligence than in the cases above cited where the message was not delivered at all, and in others where the language was very materially changed and serious damage resulted. Negligence is the gist of these actions. It must ■be both alleged and proven. Some authorities hold that proof of the delivery of the message to the company by the sender, and of the failure to deliver, or of delay in ■delivery, or of its receipt, in language materially different from that in which it was sent, makes a prima facie case •of negligence, and casts the burden of proof upon the company to explain. This may be the correct rule, since the facts are peculiarly within the knowledge of the company, but that question is not now involved, since the cause of the delay is conceded.

The highest judicial tribunal in this country, in the recent case of Primrose v. Telegraph Co., 154 U. S. 1, has passed upon the precise question. The authorities are there cited and discussed in an exhaustive opinion by Mr. Justice Gray. The Carew case is cited, and its language quoted with approval. The regulation in that case is identical with the one in this, and it is sustained in its ■entirety. Mr. Justice Gray cites and discusses the decisions holding the regulation to be against public policy and void, among which is the case Tyler v. Telegraph Co., 60 Ill. 421. He quotes the language of that decision, and says of it:

“ The effect of that construction would be either to hold' telegraph companies to be subject to the liability of common carriers, which the court admitted, in an earlier part of its opinion, that they were not, or else to allow to the-stipulation no effect whatever; for, if they were not common carriers, they would not, even if there were no express-stipulation, be liable for unavoidable mistakes, due to-causes over which they had no control. * * *

“The conclusion is irresistible that, if there was negligence on the part of any of the defendant's servants, a. jury would not have been warranted in finding that it-was more than ordinary negligence, and that, upon principle and authority, the mistake was one for which the-plaintiff, not having had the message repeated according-to the terms printed upon the back thereof, and forming-part of his contract with the company, could not recover more than the sum which he had paid for sending the-single message.”

It is therefore clear that, in order to hold this regulation, which was a part of the contract, void, we must not.; only overrule the decision of our own Court, but must run counter to the great weight of authority. We do not. feel justified in doing this. See, also, Riley v. Telegraph Co. (City Ct. N. Y.), 26 N. Y. Supp. 532; Beasley v. Telegraph Co., 39 Fed. Rep. 181, quoting'the Carew case-with approval.

The statute of California requires telegraph companies to “use great care and diligence in the transmission and-delivery of messages.” Civ. Code, § 2162. The federal-court in that state held that a company could not, by stipulation, relieve itself from the liability imposed by this,express enactment. Telegraph Co. v. Cook, 9 C. C. A. 680, 61 Fed. Rep. 624. In its decision, the court say:

“The nature of the employment is so peculiar, the risks-attending it so extraordinary, that it is not unreasonable-to uphold such stipulations, to the extent of limiting the-liability of the company for losses not occasioned by its-want of the care and diligence exacted by the law under-which it operates.”

It is further argued by the learned counsel for the plaintiff that the repetition of the message would not have prevented the damage complained of, and that, therefore, the failure to have it repeated does not protect the defendant from liability. In the monographic note to Camp v. Telegraph Co., 71 Am. Dec. 468, the following authorities are cited as supporting this contention: Telegraph Co. v. Graham, 1 Colo. 230; Telegraph Co. v. Fenton, 52 Ind. 1; Birney v. Telegraph Co., 18 Md. 341; Ellis v. Telegraph Co., 13 Allen, 226; Baldwin v. Telegraph Co., 54 Barb. 505; Sprague v. Telegraph Co., 6 Daly, 200; Bell v. Telegraph Co., 25 L. C. Jur. 248.

In Telegraph Co. v. Fenton, the action was based entirely upon the statute of the state of Indiana, and not upon any contract between the parties. The court in Birney v. Telegraph Co. based its holding entirely upon the fact that no effort whatever was made by the company or its agents to place the message upon its transit. The decision recognizes the validity of a regulation similar to that in the present case.

In Baldwin v. Telegraph Co., the defendant was a connecting line, and received the message from the United States Branch Telegraph Company, to whom the plaintiffs had given it for transmission. The defendant set up its agreement with the other company, to which the plaintiffs were not parties. The court say, at page 516:

“It is not necessary to discuss what would have been the rights of the parties, had the plaintiffs sent the message from the defendants* office, written upon one of their blanks, containing their rules, conditions, and regulations as to their terms of transmitting messages.**

The italics are those of the decision.

Sprague v. Telegraph Co. is another case of the same character. The court say, at page 203:

“ This was not a mistake or delay in the transmission or delivery, or a non-delivery, but an entire breach of the contract, by a neglect to send the message at all."

In Bell v. Telegraph Co., plaintiff telegraphed to one Machar, to which Machar immediately sent an answer by the defendant’s line, which was never delivered. Stress appears to be laid in the opinion upon the fact that plaintiff was to be the recipient of 'the message, and was not a party, therefore, to the conditions of the message sent. The liability, however, was chiefly placed upon the law of the Dominion in relation to common carriers, which is quoted in the opinion as follows:

“Notice by carriers of special conditions limiting their liability is binding only upon persons to whom it is made known; and notwithstanding such notice, and the knowledge thereof, carriers are liable wherever it is proved that the damage is caused by their fault, or the fault of those for whom they are responsible.’’

The principles of this law are then briefly applied “to the case in hand,” and the defendant held liable.

It is apparent, we think, that these decisions do not sustain the text of the learned editor, and throw no light upon the present controversy. In Telegraph Co. v. Graham, it does not clearly appear where the mistake occurred. The statement in the ojDinion is that “the message was not transmitted and delivered.” It may be inferred from this that the message was never placed in transit. While the language of this opinion sustains the text, it is significant that there was no stipulation, as in the case at bar, that the company should not be liable in the case of an unrepeated message. The notice simply stated that messages of importance ought to be repeated, and attempted to limit the liability, in the case of repeated messages, to 500 times the amount paid for sending them. In Ellis v. Telegraph Co., the language upon this point was obiter dicta, and so held by the same court in subsequent decisions hereinafter cited.

This rule appears to be sanctioned in Fleischner v. Cable Co., 55 Fed. Rep. 738. The defendant in that case was clearly liable upon other grounds. It received an important message for transmission from Portland, Or., to Seattle. There was a competing line between these two points. The line of the defendant was down, and had been for more than an hour previous to the receipt of the message. The defendant did not know where it was down, nor how long it would require to put it in order. It did not notify the sender that its line was down, nor make any attempt to send the message by the competing line. This was clearly a case of gross negligence, for which it, under all the authorities, would have been liable.

In Grinnell v. Telegraph Co., 113 Mass. 306, the language of Ellis v. Telegraph Co. upon this point was held to be obiter dicta, and was disapproved. The court in that case, replying to this contention, say:

“The conclusive answer to it is that the plaintiff, having omitted to fulfill the condition on which alone, by the terms of the express contract between the parties, he could recover for any mistake in transmission more than the amount of his original payment, cannot be permitted to prove that his own failure to fulfill his contract did not affect the result.”

The precise question was again before that court in Clement v. Telegraph Co., 137 Mass. 466, where the message had reached the receiving office, and been intrusted to a messenger boy for delivery. The language of the court is as follows:

“ The only negligence shown in this case was an unexplained delay in delivering the message on the part of the messenger boy, to whom it was, after its receipt, intrusted for delivery. It may be that the company might be guilty of some fraudulent or gross negligence in trans-, mitting or delivering a message, so that it would not be protected by its regulation from liability for the actual damages, though in excess of the sum stipulated. But the negligence of the messenger boys in delivering messages was plainly contemplated by the parties when they entered into the stipulation, and there are no principles of public policy which should prevent the company from stipulating that it will not be responsible for such negligence, beyond a fixed amount, unless it receives a reasonable compensation for assuming further responsibility.”

This case is cited with approval in Primrose v. Telegraph Co., supra.

The question now before us is not one of neglect to transmit at all, nor of failure to deliver after receipt at the place of destination. It is a case of delay in transmission. It is obvious that such delays may occur from various causes. There is as much reason in stipulating against such delays as there is against inaccuracies in the message. The demand for its repetition is a notice of its importance and the necessity for promptness, additional to the language of the message itself. If the order to repeat had been contained in the message, we cannot say that the operator at Detroit, upon finding that he could not get the office at Dearborn, would not have at once telegraphed to the plaintiff that fact. However that may be, this delay was one against which he contracted, and against which, under the authorities above cited, the parties had the clear right to do so.

The defendant provided suitable instruments and competent operators. The failure of the temporary operator at Dearborn to connect his instrument with its line for a few hours is not “gross negligence,” within the definition adopted by this Court. Denman v. Johnston, 85 Mich. 387; Frost v. Railroad Co., 96 Id. 470. There was no intentiqnal wrong, and no act done to cause the delay, with knowledge of the plaintiff’s message. It appears that about one message, every two days, came to Dearborn. Defendant could not keep an operator there at its own expense. It was therefore entirely proper for it to employ the railroad operator to attend to its business at this and similar stations. But it cannot defend upon the ground that the business was small. Having held itself out as ready to do business at these stations, the duty imposed was the same as though it had an operator of its own. 'The act complained of, however, was not attended by any willful misconduct, or reckless disregard of the rights of plaintiff, and cannot, therefore, be held to constitute .gross negligence.

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.


author:
Grant, J.
      Hooker, J.

text:
    Henry H. Scarvell v. The Grand Rapids & Indiana Railroad Company.

      Trespass — Licen se — Revocation.
    Under a verbal arrangement with the owners of certain lands-, who furnished the ties, a railroad company- constructed a spur track upon said lands for the accommodation of the business of said owners. One of said owners, by a deed containing no reservations, conveyed his land to a partner in business, who had full knowledge of the arrangement under which the spur track was built. The grantee, after continuing the business for a time, upon the refusal of the railroad company to pay rent for the use of the land, requested it to remove its track, and on its failure so to do sued it in trespass, and recovered nominal damages. And it is held that, as the defendant was given the actual possession of the land, and executed the license, which was largely for the benefit of the plaintiff’s grantor, it cannot be made a trespasser by an attempted revocation, either expressly or by implication of law, but the rights of the parties must be determined in some proceeding wherein a judgment of ouster can be rendered.
    Error to Kalkaska. (Aldrich, J.)
    Argued June 27, 1894.
    Decided December 28, 1894.
    Trespass. Defendant brings error.
    Reversed, and judgment entered in this Court for defendant.
    The facts are stated in the opinions.

      T. J. O’Brien, J. H. Campbell, and W. JD. Totten, for appellant.

      Chauncey C. JencJes, for plaintiff.
   Grant, J.

The defendant was convicted of trespass guare clausum fregit. The acts of trespass consisted of maintaining a spur track over plaintiff’s land, and running freight cars over the same.

About 10 years prior to the trial of the cause in the court below, one Amos C. Beebe owned the land, upon which was a gristmill, at which Beebe carried on both a commercial and custom business. Beyond and adjoining this land was the sawmill of the Smith Lumber Company. Mr. Beebe, the Smith Lumber Company, other parties, and the defendant entered into an arrangement or understanding for the construction of the track in question, which ran so as to accommodate the gristmill, the sawmill* and also the other parties interested. Beebe, at his own expense, furnished the ties for the construction of the track across his land; the lumber company and other parties did likewise; and the defendant furnished the rails and constructed the track, which was used for the joint benefit of all the parties, until Beebe sold and conveyed the land and the mill to the plaintiff, in 1891. After the purchase by plaintiff, he carried on only a custom business, and had but little occasion to use the track. Part of the tramway used by the Smith Lumber Company in connection with the spur track is upon plaintiffs land, for the' use of which he receives a rental. The deeds from Beebe to plaintiff contained no reservation, but the plaintiff had full knowledge of the arrangement, having been in partnership with Beebe for some time previous to his purchase of the entire property. The arrangement for the construction of this track rested entirely in parol. In April, 1892, plaintiff rendered a bill to the defendant, claiming $75 for the use of the land for switching purposes for the previous year. The defendant refused payment, and denied liability to pay any compensation. In August, 1892, he wrote the defendant a letter, stating that, because it had failed to allow him any compensation for the use of his premises, he therefore requested it to remove the track. This the ' defendant failed to do, and plaintiff thereupon instituted this action of trespass. The findings by the court are numerous, but the above statement is sufficient to present, and dispose of the question which is decisive of the case.

Plaintiff insists that the defendant had only a parol license to enter upon the land in question, which was revoked by the deeds from Beebe to him, and that thereafter defendant became a trespasser in its use of the track. The defendant insists that trespass is not the proper remedy, and that the parol license was coupled with an interest, was executed, and is therefore irrevocable.

This spur track was constructed at the joint expense of the defendant and the several parties over whose land it, ran, and who were entitled to its use. No time was mentioned for its existence, but it was the evident understanding among the parties interested that it should be continued so long as there was occasion for its use. Evidently, none of the parties would have incurred the expense of its construction if it had been understood that one of them might at any time terminate the license, and render the others trespassers by its use. "We are not called upon in this suit to determine the important questions arising under an executed parol license, coupled with an interest in the land. The plaintiff has clearly mistaken his remedy. The defendant .lawfully entered, and was lawfully in possession. If it be granted that the deeds terminated the license, yet this did not operate to render the defendant's possession tortious and its use a trespass. As well might a tenant whose right to possession and use has been terminated be prosecuted in trespass for remaining in possession. This is not a case of a mere naked license to enter for temporary purposes, such as the cutting of timber, the drawing of water, or the passage over one's land on foot or with teams. In these cases the licensor remains in the actual possession of his property, the licensee obtains only a temporary possession, which is not exclusive' nor coupled with any interest, and the revocation of the license terminates all right of entry. But in the present case the defendant was given the actual possession of the land. It took possession and executed the license, which was largely for the benefit of the plaintiff's grantor, and for the accommodation of the business carried on by him. Under these circumstances, it cannot be made a trespasser by an attempted revocation, either expressly or by implication of law. The rights of the parties in such case must be determined in some proceeding wherein a judgment of ouster can be rendered. Such was the course pursued in Wood v. Railroad Co., 90 Mich. 334, an action of ejectment, upon which case the plaintiff mainly relies to establish revocation by deed.

Judgment reversed, and entered in this Court for the defendant, with the costs of both courts.

McGrath, C. J., Long and Montgomery, JJ., concurred with Grant, J.

Hooker, J.

(dissenting). The plaintiff recovered a judgment of six cents damages and costs in an action of trespass. The findings of fact show, in substance, that the plaintiff’s grantor permitted the defendant to lay a spur track or switch across his land, upon ties furnished by him. He did not participate in the negotiations with defendant, but permitted the track to be laid in accordance with an arrangement between himself and adjoining mill owners. The track was laid about 10 years ago, and has been used for running cars to and from the mills upon the same. On March 3, 1890, the plaintiff became the owner of the undivided one-half of the premises in •question; and on March 12, 1891, he purchased and obtained title to the other undivided half of the same. These purchases were made by plaintiff with full knowledge of the existence of the track and the arrangement under which it was laid. In April, 1892, plaintiff demanded of the defendant the sum of $75, as compensation for the use of his land by the spur track for the year immediately preceding April 1, 1892. Defendant refused to pay the same, denying liability. In August, 1892, plaintiff required defendant to remove its track, and, upon its failure to do •so, brought this action, to recover for alleged trespasses since su'ch refusal. The defendant’s counsel contend (1) that the defendant built its spur under a license which is coupled with an interest, and is irrevocable; (2) that, if not, the license was not revoked by the deeds of the plaintiff; (3) that, in any event, trespass would not lie, but that the action should be ejectment.

The first of these questions is disposed of by the case of Wood v. Railroad Co., 90 Mich. 334. To hold otherwise would do violence to the rule, well settled in this State, that title to land cannot be acquired by estoppel. It needs no further comment, unless it be to add that in the case of Harlow v. Railroad Co., 41 Mich. 336, the road was built by the consent of the plaintiff, upon an oral promise that her claims should be adjusted. Subsequently, she was awarded damages by a jury, which the Court held settled her claim. See Callanan v. Railway Co., 61 Mich. 22; Barnes v. Air Line Ry., 65 Id. 253; Grand Rapids, Lansing & Detroit R. R. Co. v. Chesebro, 74 Id. 474. Under the circumstances of that case, it was said that she could not revoke the license under which the road was constructed. In short, the land was treated as condemned.

It becomes unnecessary to discuss the second question, for, if the deeds to the plaintiff did not have the effect of revoking the license, his express demand to remove the track did.

Upon the third point, it may be said that whether or not trespass will lie must depend upon the question of possession. If the facts were such as to be inconsistent with plaintiff’s possession, ejectment, and not trespass, might be the remedy; e. g., if the lands had been fenced, and occupied exclusively by the defendant. There is nothing to indicate such possession. The railroad company laid its rails upon the ties and ground of the plaintiff’s grantor, and ran its cars across and upon this track for the convenience of the mill owners. There is no reason for saying that it ever asserted or enjoyed possession, to the exclusion of the plaintiff or his grantor. For aught that appears, this was like any other way used under a license. The licensee used it when its business required, and the possession remained in the owner of the fee.

I find no error in the record, and think the judgment should be affirmed.