author: Sharpe, J. Brooke, J.

text:
    LUTTENTON v. DETROIT, JACKSON & CHICAGO RAILWAY CO.
    1. Street Railways — Negligence—Evidence—Sufficiency.
    In an action against an interurban electric railway company for damages to plaintiff’s automobile, caused by a collision with defendant’s car, on a public highway, evidence that after the engine of the automobile stalled, near a crossing, plaintiff’s brother ran down the track about 54 feet and waved his hat to attract the attention of the motorman, who gave no heed to the warning, but came on at a speed of from 20 to 25 miles an bour in violation of a city ordinance, and crashed into the automobile, and that if the motorman had been on the lookout he could have seeu the automobile in time to avoid the accident, held, sufficient to present the Question of defendant's negligence to the jury.
    2. Same — Contributory Negligence — Question fob Jury.
    Where plaintiff's automobile became stalled on a public street a short distance from defendant’s track, hut whether in a place of safety or not is in dispute, and the driver, while his hrother was attempting to crank the machine, loosened the brake, when it drifted back against defendant’s track and was struck by defendant’s car, it cannot be said that plaintiff was guilty of contributory negligence, as a matter of law, there being no claim that the driver intentionally placed the automobile in a position of danger.
    3. Same — Negligence—Duty oe Motorman — Operation of Cab— Rule.
    It was the duty of the motorman, under such circumstances, to have the car under such control as to admit of its being stopped after he became able to discover objects on the track and before a collision with such object should occur.
    4. Evidence — Speed of Moving Object Not Subject of Expert Testimony — 'Weight fob Jury.
    A witness need not be an expert to testify as to the rate of speed of a moving object, since it is a matter of observation rather than expert knowledge, and the weight of such testimony is for the jury after the witness has been fully interrogated as to the basis for forming his judgment.
    5. Damages — Elements of Damages — Transportation of Damaged Car.
    In the absence of evidence that a damaged automobile. brought a better price in Detroit, where it was sold, than it would at the place where it was- damaged, the cost of storage and transportation to Detroit was improperly allowed as an element of damages, in an action against the wrongdoer.
    $. Same — Duty of Plaintiff to Minimize Damages.
    It was the duty of plaintiff to care for the automobile and to secure to himself such value as it possessed, either by having it repaired or by obtaining a reasonable price therefor in its damaged condition.

      1. Street Railways — Negligence—Evidence—Opinion Evidence.
    A question asked of defendant’s motorman as to whether the crossing where the accident occurred was more than ordinarily dangerous was not objectionable as calling for the opinion of the witness, in view of a curve in the track, the obscurity of his view, the decline in the road-' bed after leaving the approach to the bridge, and the probability of persons or objects being on the track beyond his vision, since his answer involved a knowledge acquired by experience, which was special and not such as might have been acquired by any intelligent observer.
    8. Same — Trial—Requested Instruction.
    In view of the duty of the motorman to have his car under control, it was not error for the trial court to refuse a requested instruction that the standing of the automobile in such close proximity to defendant’s tracks that it might be struck by a passing car was an unusual condition and one the motorman was not called upon to anticipate or be on the lookout for, to the exclusion of his other duties at that point, and that if the motorman did not discover the automobile as early as he might have done had he been aware of its presence, or on the lookout for it, this would not justify a verdict against the defendant.
    Moore, C. X, and Steere and Brooke, JX,' dissenting.
    Error to Jackson; Parkinson (James A.), J.
    Submitted October 30, 1919.
    (Docket No. 9.)
    Decided February 27, 1920.
    Case by Harry M. Luttenton against the Detroit, Jackson & Chicago Railway Company for negligently colliding with plaintiff’s automobile. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      W. S. Cobb, for appellant.

      Price & Whiting, for appellee.
   Sharpe, J.

The plaintiff’s automobile, a three-passenger Abbott-Detroit, while being driven by his brother Frank from Detroit to Jackson, was struck by one of defendant’s interurban cars on Congress street, in the city of Ypsilanti, about 2 o’clock in the afternoon of May 9, 1915. There were three persons in the automobile, Frank, the driver, his brother, Charles R., and one Charles M. Holland. Near the place of the collision, defendant’s railway crosses the Michigan Central railroad tracks on an overhead bridge of truss construction. This bridge, in order to give the necessary clearance, is considerably higher than the general level of Congress street. In order to reach it, defendant’s track goes upon a curve and rises to a considerable grade. The bridge itself is 130 feet long, and has a level approach of 28 feet at each end; the bridge and approaches making a level stretch of track about 3.86 feet in length. Immediately east of the east end of the bridge, Congress street is intersected by Miles street, which is also elevated in order to cross the Michigan Central tracks. Defendant’s car was on its way from Jackson to Detroit.

The three persons in the automobile testified, in substance, that, before reaching Miles street, an automobile which they were following stopped, necessitating the stopping of their car; that when it started, a motorcycle came around the highway bridge over Miles street, necessitating another stop. When this stop was made, the motor stalled. The self-starter failed to work, and Charles got out to crank the car. It stood on a grade, and as the driver released the1 brake it “drifted back” a few. feet and against the south rail of the defendant’s track. While Charles was cranking the machine, they heard the noise of an approaching car on defendant’s track, coming from the west. Charles then ran ahead between defendant’s tracks to near the east end of the bridge, a distance of about 54 feet, and waved his hat to attract the attention of the motorman to the danger in which the machine was placed. That the motorman either did not see him or gave no heed to the warning, but came on at a speed of from 20 to 25 miles an hour and crashed into the motor car, carrying it a distance of 81 feet and damaging it badly.

The driver testified:

“I was far enough away from the track so I wouldn’t have been hit if I had stayed right there.”

At another time, in answer to a question he said:

"Q. You were not anywhere near the rails when you commenced to back?

“A. Yes, sir.

“Q. How near were you to them?

“A. Right near them.”

His brother Charles testified:

“Q. How far were you from the track when you stopped the second time? '

“A. We were very close to it. I wouldn’t hardly consider it in feet; possibly 8 or 10 inches.

“Q. How far did your car drift back when your brother was using the self-starter?

“A. I couldn’t answer that accurately. I don’t know. I should say it drifted back 3 feet while he was using the starter.

“Q. Then you were so close to the track when you stopped the second time that a car coming along there would have struck you?

“A. Yes, sir.”

The motorman denied that any such warning was given, and insisted that he was driving the interurban car with due care. He testified that as he approached the bridge from the west he applied the air so as to be prepared to stop at Miles street should any person be there intending to board the car; that when he got—

"possibly a quarter of the way upon the bridge, having seen nobody there who made any endeavor or any attempt to stop the car or there being nobody in sight there whatever, I let the air off, which allowed the car to travel on its own momentum. When I reached about the center of the bridge I saw an automobile standing down beyond the bridge a short distance and 1 at once grabbed the whistle cord and started to blow the whistle and with the other hand I reversed the car. But the force of the car and the weight of the car and the grade was such I struck the automobile. I wasn’t reversed at the time and the interval wasn’t enough to stop the car. * * * The car would perhaps go 20 feet before the reverse would take effect at the speed I was going. * * * The car ran a little over its length after striking the automobile. The cars are forty-five to fifty feet in length.”

On cross-examination, he testified:

“Q. You could have seen that car sooner if you had been looking fight at the track?

“A. At that particular spot on that side of the track; yes, sir.

“Q. Wasn’t it your duty — your business — to keep a sharp lookout for the track ahead of you, coming on a place like that?

“A. It wasn’t ahead of me at that time; not directly ahead of me. It was a curve there.

“Q. Wasn’t everything ahead of you which was on the track you are going to travel over?

“A. No, sir; not exactly. * * *

“Q. You could see when you are in the center of the bridge and before you got to the center of the bridge, that automobile if you had been looking?

“A. If I had been looking at that particular point. * * *

“Q. You were paying no attention to the traffic. You were simply looking for passengers?

“A. At the time we are upon the bridge, yes.

“Q. Paying no attention whatever to the traffic?

“A. I wouldn’t say that; no, sir.

“Q. If you had been you would have seen that automobile sooner than you did?

“A. If I had been paying attention to the traffic at that particular point, I would.

“Q. Wasn’t it your duty to pay attention to the traffic in a place like that?

“A. To all traffic; yes, sir. * * *

“Q. Don’t you consider this more than an ordinarily dangerous place?

“The foregoing question was objected to as immaterial.

“Objection overruled.

“Mr..Cobb: What do you mean by ‘ordinary’?

“The Court: If the witness doesn’t understand, the witness may say so.

“(Question read.)

“A. In other words, he asks me if this place is more dangerous than any other place?

“The Court: Answer it according to your understanding.

“A. Yes, sir; it is.

“Q. For that reason it requires greater care on the part of the motorman in approaching near it?

“A. Yes, sir.”

He further testified that when he applied the reverse the car . was traveling at the rate of from 8 to 10 miles per hour.

Stanley Rose, a motorman in the employ of the defendant, ■ was riding in the car. He testified that his attention was first attracted by the blowing of the whistle and that the car was then near the east end of the bridge. .

An ordinance of the city of Ypsilanti which limited the speed of defendant’s cars within the city limits to 10 miles per hour was introduced in evidence.

The plaintiff had verdict and judgment for $811.41, and the defendant appealed.

While there are many assignments of error, we consider them as grouped by counsel for defendant in his brief.

1. Negligence of defendant. The negligence relied on by plaintiff was submitted by the trial court to the jury as follows:

“Plaintiff claims that defendant did not keep a proper lookout for persons who might be on the track in this place of danger; that one of the Luttentons did run up the track and signal the car and was not seen by the motorman, although he might have been seen, and that his warning to the motorman was not heeded. And plaintiff also claims that the motorman failed to so keep the car — the interurban car — under control as to avoid this accident when he discovered or might and should have discovered, by exercising proper care, that the automobile was in a place of danger; that he failed to obey the ordinances of the city' of Ypsilanti regulating the speed of interurban cars, by exceeding ten miles an hour, whereby the accident was caused; that the defendant’s motorman also failed to operate the interurban car with reference to the particular locality and its surroundings and the peculiar or particular dangers to which persons in that vicinity having automobiles were liable or exposed.”

There was testimony supporting plaintiff’s claim in. the several particulars stated. The duty of the motorman under the circumstances here presented has been so recently stated by this court that we content ourselves with the following quotation relative thereto:

“It was the duty of the motorneer to have the car under such control as to admit of its being stopped after he became able to discover objects on the track and before a collision with such object should occur.” Ablard v. Railway, 139 Mich. 248.

■ — quoted approvingly in Fischer v. Railway Co., 203 Mich. 671.

2. Negligence of plaintiff. In view of the apparently contradictory testimony as to the position of the automobile at the time it became stalled, we do not think it can be said as matter of law that it was in a place of safety when the brake was released and it “drifted back” near to the rail of defendant’s track. There is no claim that the driver intentionally placed the machine in a position of danger. He had had considerable experience in driving. When he released the brake, it is apparent that his front wheels were in such a position that as it backed up a few feet the machine moved nearer to the track. This was mismanagement on his part. But, as there was then no car on defendant’s track in sight, we do not think such act pan be said, as a matter of law, to constitute such contributory negligence as will bar a recovery. As was said in the Fischer Case, at page 670:

“Fischer had little reason to expect that a motorman would approach a place of this character driving his car at a rate of speed which would preclude him from stopping it within a limited space if it became necessary.”

The opinion in this case concludes as follows:

“As long as interurban companies ,are content to locate their lines upon public highways, they must yield to reasonable regulations for the protection of others who have a right to use them.”

3. Admission of evidence. Complaint is made that Frank Luttenton was permitted to testify to the speed at which the car was running without any showing of such knowledge or experience as would enable him to form a judgment thereon. This witness was the driver of the automobile and had driven the same for a number of months. He had several times ridden on interurban cars and had formed a judgment of the speed at which they were running. While on cross-examination he said that it was a “mere guess” on his part, that answer must be considered in connection with his other answers fending to qualify him to testify in the matter. While the judgment of observers as to the speed of passing objects may greatly differ, we do not think it should be said as a matter of law that only experts who have timed them as they pass by can express an opinion as to the rate of speed at which they are moving. It is not a matter of expert knowledge, but of observation by one possessing some mental standard as to time and distance. The weight that should be given to such testimony is for the jury to determine after the witness has been fully interrogated as to that upon which his judgment is based and his opportunity for forming one. Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99; Guggenheim v. Railway Co., 66 Mich. 150; Thomas v. Railway Co., 86 Mich. 496; Mertz v. Railway, 125 Mich. 11; Line v. Railway Co., 143 Mich. 163; Garran v. Railroad Co., 144 Mich. 26; Harnau v. Haight, 189 Mich. 600. We find no error in the admission of this testimony.

Error is also claimed in the court having permitted the plaintiff to prove as an element of damage the expenses incurred in storing the automobile and after-wards transporting it to the factory in Detroit where it was manufactured and where it was’ afterwards sold, amounting to $40.50. It was the duty of the plaintiff to care for the car and to secure to himself such value as it possessed either by having it repaired or by obtaining a reasonable price therefor in its damaged condition. It is but reasonable to suppose that it could be more cheaply repaired at the factory in Detroit than in Ypsilanti. Had it been so repaired, we would consider these items allowable as damages. But it was not so repaired. There is no evidence tending to show, that it brought a better price in Detroit than it would have sold for in Ypsilanti. We, therefore, conclude that these items should not have been submitted to the jury. There is, of course, a strong presumption that they were awarded as a part of plaintiff’s damages.

The defendant’s motorman was permitted to testify on cross-examination, over defendant’s objection, that the crossing near which the collision occurred was “more dangerous than any other place.” Defendant’s counsel says:

“This testimony was not only improper, as calling for the opinion of the witness on a matter not properly the subject of opinion testimony, but for the further reason that whether or not the crossing was ‘more than ordinarily dangerous,’ was wholly immaterial to the issue.”

The cases cited by counsel in support of this claim are those in which witnesses were asked to express opinions as to whether a highway or street was in fact dangerous by reason of its. lack of repair. No such question wa^ here involved. No claim was made that either the street or defendant’s roadbed was not in suitable condition for Use. The question, in effect, was an inquiry of the witness as to whether, in view ■ of the curve in the track, the obscurity of his view, the decline in the roadbed after leaving the approach to the bridge and the probability of persons or objects being on the track beyond his vision, it was necessary for him, in order to have his car under control, to observe greater care than usual when passing over the place in question. His answer involved a knowledge acquired by experience in handling his car and knowing how quickly and certainly it would respond to the means at hand for lessening its speed. This knowledge was special and not such as might have been acquired by any intelligent observer.

“The true test of the admissibility of such testimony is not whether the subject-matter is. common or uncommon, or whether many persons or few have knowledge of the matter; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the. jury in determining the questions at issue.” Taylor v. Town of Monroe, 43 Conn. 36, 44.

We do not find any Michigan decision in conflict with this rule, and believe it to be supported by the great weight of authority. 17 Cyc. (Opinion Evidence), p. 25 et seq.

4. Requests to charge. The court refused to give the defendant’s seventh request to charge, which reads as follows:

“Seventh. The standing of the automobile against or in such close proximity to defendant’s tracks, and outside of Miles street, that it might be struck by a passing car, was an unusual condition and one the motorman was not called upon to anticipate or be on the lookout for, to the exclusion of his other duties at that point, such as looking for passengers who might want to board his car, and persons and vehicles approaching and .crossing the track on Miles street. I, therefore, instruct you that should you find that the motorman did not discover the automobile as early as he might have done had he been aware of its presence or on the lookout for it, this would not justify a verdict against the defendant.”

In view of what has been said on the question of the negligence of the defendant as to the duty of the motorman to have his car under control, we find no error in such refusal. Whether he exercised reasonable care in approaching the place where the collision occurred presented a question which the trial judge properly submitted to the jury.

After a careful examination of the entire record, we find no reversible error therein except as above stated. If the plaintiff will remit the- sum of $40.50 from the judgment rendered within 30 days from the filing of this opinion, the judgment will stand affirmed, with costs to plaintiff. Otherwise, it will be reversed, with costs to defendant, and a new trial ordered.

Fellows, Stone, and Bird, J.J., concurred with Sharpe, J.

Justice Kuhn took no part in this decision.

Brooke, J.

(dissenting). The plaintiff recovered judgment against the defendant in the sum of $811.41 for damages to his automobile under the claim that the collision occasioning the loss was brought about through the negligent act of the defendant’s agents.The accident happened about 2 o’clock in the afternoon on Congress street near .the easterly limits of the city' of Ypsilanti. Near the point of the accident defendant’s railway crosses the Michigan Central railway on an overhead bridge of truss construction. This bridge in order to give the necessary clearance to Michigan Central trains is much higher than the general level of Congress street. In order to reach it the railroad’ track goes- upon a curve and rises at a considerable grade. The bridge itself is 130 feet long with a level approach at each end of 28 feet; the bridge and approaches together constituting a level piece of track about 186 feet long. Immediately east of the east end of the bridge Congress street is intersected by Miles street. On the day of the accident, plaintiff was not operating his car. It was in charge of his brother, Frank Luttenton, who was accompanied by another brother, Charles R. Luttenton, and one Charles M. Holland. They were driving from Detroit to Jackson in a westerly direction. Defendant’s interurban car was being operated from Ypsilanti to Detroit in an easterly direction. Frank Luttenton, the driver of the machine, testified to the accident as follows:

“I came into Ypsilanti over Congress street. I was driving down this street and another automobile, a little ways in front of me, stopped just before reaching the Congress street bridge to let another automobile out around this bridge. I stopped directly behind him. There is hardly room for two machines to go around in there, and as he started up, a motorcycle came around this bridge. He stopped again and I also. In stopping the car the motor stalled. I tried to start the machine and the self-starter wouldn’t work and when I released the brake it drifted back against the side of the street car track, at the north side of Congress street.
“The rail was the height of the rail above the level of the street. The car was right against the rails on the track. There is quite a grade there. When coming west you are coming up grade.
“My brother got out to crank the car and as he was cranking it, he heard a street car approaching from the west. He ran ahead, to near the head of the bridge, the head -of Miles street, to flag the car and stop it. He went about 54 feet. I think we paced, it off at the time. * * *
“Miles street runs in a northerly and southerly direction and the distance from the west side of Miles street to the point where the automobile was is 72 feet. When my brother ran up the track to signal the street car, when he got up there, he stepped upon the middle of the street car track and gestured with his hands. The street car came right through and never stopped. It hit us and carried us down the track 81 feet.
“Q. You observed that car as it came along down there?
“A. Yes, sir.”

And on cross-examination:

“Q. You claim you can see that car 70 feet west of the bridge, do you, from where you were?
“A. See the top of the car; yes, sir. I have seen cars coming over there; seen the tops of them. Sitting in the automobile you could see a ear as it approached there about 70 feet west of the bridge. * * * I knew cars ran at frequent intervals over that track and that I might expect one along there at any time. I could see a car to the east for a long ways when approaching.
“Q. How much of a grade is there east of that bridge, commencing, at the bridge, toward the east?
“A. (Referring to map.) There is quite a grade there. I couldn’t tell exactly what grade. It extends a considerable distance east of where our car was.
“Q. Which wheel of your car rested against the rail?
“A. Both wheels on tfie right-hand side of the car.
“Q. You remember that distinctly, do you?
“A. Yes, sir.
“Q. Your starting apparatus was then out of commission?
“A. Yes, sir. * * *
“Q. You stopped your car, you say, going up this grade, just as you were about to turn on to Miles street; did you?
“A. Yes, sir. I was right at the edge of Miles street when I stopped my car.
“Q. How wide is Miles street there?
“A. 29 feet. I did not have to guess where my car was when I went back there with Mr. Riley. I had measured it from the bridge right off, the day of the accident, with a yard stick. There was an automobile driving ahead of us that day and had been for a mile or more. It passed us.
“Q. What became of it?
“A. It went on over the bridge. When they stopped I didn’t see him start the car but I seen the car go on. That car did not drift back down the hill at all.
“Q. You could hold your car there with the brake if you wanted to, couldn’t you?
“A. I couldn’t and start it.
“(Question read.)
“A. Yes, sir.
“Q. Why didn’t you?
“A. I wanted to get started and get away from there.
“Q. How was it going to help you to get started to drift against the street car track?
“A. It wasn't going to help us to start it, drifting against the street car track.
“Q. You could have avoided drifting against the street car track if you wanted to, couldn’t you? You know you could, don’t you?
“A. I could have avoided—
“Q. You could have avoided your car going near the street car track if you wanted to? Why do you hesitate about that?
“A. I don’t just exactly understand it.
“Q. You could have avoided your car running over against the street car track if you wanted to?
“A. Yes, sir.
“Q. Why didn’t you?
“A. Because the man in front of me with the automobile turned—
“Q. (Interrupting.) No. When your car commenced to back you needn’t have backed against the street car track? You could have backed the other way if you wanted to?
“A, No, sir; it was up grade.
“Q. Why not? You can back that-automobile any way you want to.
“A. Got against the rails.
“Q. You needn’t have got against the rails. You were not anywhere near the rails when you commenced to back.
“A. Yes, sir.
“Q. How near were you to them?
“A. Right near them.
“Q. How wide is Miles street — the street car track there on Miles street and Congress street?
“A. It measures 18 feet from the telephone pole on the corner by the bridge over to the street car track.
“Q. How wide is Congress street right at that point?
“A. I just told you.
“Q. 18 feet. So instead of Miles street, where it is 18 feet, you were outside of Miles street, weren’t you?
“A. It was 18 feet to get up there. I don’t know just how wide it was.
“Q. When you get outside of Miles street east, it is a good deal more than 18 feet across there, isn’t it, down there where your automobile was and in near there?
“A. Yes, sir. I didn’t measure it across there. I know there wasn’t room for two automobiles to go on here and let another one pass.
“Q. Right at the edge of Miles street, 18 feet from the street car track to the south line of Congress street; is that what you mean?
“A. There was a pole setting in there; a telephone pole set right in there (indicating). I mean it was 18 feet to that telephone pole from the south line of the street car track.
“Q. You were back down here at that time (indicating) ; you hadn’t got to Miles street yet, you say. It would be down there, isn’t that true?
“A. Measure it. That was where we were at this time before the car went by.
“Q. You don’t want to be understood as saying that the south line of Congress street was only 18 feet from the south line of the rail at the point where you stopped your car, do you?
“A. No, sir.
“Q. Why couldn’t you have backed your car away from the track instead of toward the track?
“A. Because I was facing away from the track.
“Q. Your steering gear worked all right, didn’t it?
“A. Yes, sir.
“Q. You needn’t have let it back up toward the track? You could have swung your car around and backed it the other way?
“A. I believe I possibly could. I could if there was room there to do it. The track projecting up from the rail prevented me from backing my car around.
“Q. Now, when you tried to start your machine when you had stopped on the hill there, you were entirely out of danger, weren’t you, when you first stopped?
“A. No, sir. I was right near the track. I was far enough away from the track so I wouldn’t have been hit if I'had stayed right there. I was trying to use my starter and it didn’t work. My brother got out to crank the car before I drifted back against the track. He tried to crank it before we drifted against1 the track. The battery seemed to be dead and it wouldn’t work. Then my brother got out to crank her. I held the car with the brake while he was cranking. He cranked it several times.
“Q. What did he do then?
“A. I released the brake and the car came down on level ground.
“Q. Then you released the brake and let it slide back against the interurban track, did you not?
“A. Yes, sir. The man who was with me in the car and I sat right in the car; didn’t get out at all. My brother was out before that; I wasn’t at all excited.
“Q. You knew that you were backing against the interurban tracks, or didn’t you look to see where you were going?
“A. I knew that I was backing near the tracks.
“Q. How many minutes, did you say, from the time you stopped to let the automobile go ahead, before you were injured?
“A. I couldn’t say exactly. It was a very short time. I tried once, anyway, to start it with the starter. Might have tried more. Then my brother got out and cranked it a number of times.
“Q. Then you released your brake and let'it drift down against the interurban track, did you?
“A. Yes, sir.
“Q. All that must have taken four or five minutes, didn’t it?
“A. Might have taken that much time.
“Q. You knew all the time that the interurban track was there, didn’t you?
“A. Yes, sir. I knew a car might be expected over it at any time.”

It was the claim of plaintiff that the collision occurred through no fault or negligence of his agent, but solely through the negligence of the defendant’s agents in operating a street car at so high a rate of speed (contrary to the ordinance,of the city of Ypsilanti), that it was impossible to'stop it, after plaintiff’s position was or should’ have been discovered in time to have avoided the> accident.

It was defendant’s claim that the street car was being operated while upon the bridge at a rate of speed fully under control and such that it could have been stopped to take on passengers at Miles street;‘that no- passengers appearing at that point the airf was released and the car’s speed was accelerated so that after the discovery of the situation of the automobile a collision could not be avoided even though the brakes were immediately applied. At the close of plaintiffs case a motion was made on behalf of the defendant for a directed verdict upon the ground that plaintiff through his agent was guilty of such contributory negligence as should prohibit recovery. This motion was denied and the case submitted to the jury under a charge permitting the jury to pass upon both plaintiff’s- contributory negligence and defendant’s negligence with the result before pointed out.

We have quoted all the testimony directly bearing upon the question of plaintiff’s negligence and have reached the conclusion that defendant’s motion for a directed verdict under the testimony as it stood should have been granted, even assuming that defendant was operating its car at a rate of speed in excess of the ordinance regulations. Plaintiff’s agent was driving the automobile in close proximity to the interurban track up a rather steep grade. Apparently through no fault of his own it became stalled, but at a point where it was entirely safe. His agent says:

“I was far enough away from the track so that I would not have been hit had I stayed right there.”

He knew that the interurban track was in close proximity, that a car might be expected at any moment; that he was safe where his car then stood, and yet in the face of this knowledge he released his bfake and so cramped his car that in drifting backward the wheel rested against the track. He knew that the engine was dead, and though several attempts had been made to start if, it failed to respond. He testified that his steering gear was in good condition. Desiring to back the car up there appears no reason why he should not have backed it at a safe distance from the track, instead of allowing it to get into a position of danger from which he could not readily remove it.

The judgment should be reversed, with costs, and a new trial ordered.

Moore, C. J., and Steere, J., concurred with Brooke, J.


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    KOEBEL v. KOEBEL.
    1. Divorce — Extreme Cruelty — Personal Violence — Evidence— Sufficiency.
    In a suit for divorce, the charge of extreme cruelty, in that defendant husband used personal violence toward plaintiff, held, sustained by the record.
    2. Same — Facts Discovered After Separation — Admissibility.
    While testimony that defendant took indecent liberties with plaintiff’s young daughter, of which she was not advised until after she left him, could not be used as a reason for leaving, it was competent for the court to consider, in connection with other testimony, for thé purpose of determining whether defendant’s home was a proper place in which to rear the child, and whether plaintiff was justified, after learning of it, in not returning.
    3. Same — Alimony.
    In view of the fact that the record is persuasive that the marriage was purely of a commercial character, and the parties lived together only about a year, during which time plaintiff and her two daughters received their support, an award of alimony of $6,000 will- be modified to $4,000, the record showing that defendant was worth about $25,000.
    On the question of cruelty and abuse forcing spouse to leave marital home as grounds for a divorce, see note in 29 L. R. A. (N. S.) 618.
    On amount of permanent alimony on absolute divorce, see note in 44 L. R. A. (N. S.) 998.
    Appeal from Berrien; White (Charles E.), J.
    Submitted November 4, 1919.
    (Docket No. 94.)
    Decided February 27, 1920.
    Bill by Clara Koebel against George C. Koebel'for a divorce. From a decree for plaintiff, defendant appeals.
    Modified, and affirmed.

      Stratton & Evans, for plaintiff.

      Gore & Harvey, for defendant.
   Bird, J.

These parties were divorced by the Berrien circuit court. The decree was given to plaintiff, and carried with it $6,000 for temporary and permanent alimony. The defendant, feeling that the decree was at variance with the equities of the case, has appealed to this court.

The parties were married in March, 1916, and separated in April, 1917. Prior to the marriage plaintiff was a widow of 40, who resided in the city of St. Joseph with her two daughters, Lucille and Mildred, 9 and 11 years of age. Defendant was a widower of 57, who owned and resided on a farm a few miles distant from St. Joseph. A mutual friend brought the parties together, and after a very brief courtship they were married and went to live upon defendant’s farm. In this new relation, the family consisted of Mr. and Mrs. Koebel, Mrs. Koebel’s daughters, and Charles Koebel, aged 13, the foster son of defendant. The spring and summer months appear to have passed without any serious friction. In October their troubles commenced when, as plaintiff claims, defendant choked her and ill-treated her children. Following this plaintiff left and went to her sister’s. After an absence of a week or ten days defendant visited her. They talked over their difficulties and became reconciled and plaintiff returned to her home, as she says, under a promise by defendant that he would do better. They continued to live together until April, 1917, when she filed her bill, praying for divorce, on the ground of extreme cruelty. By way of specification she shows therein that defendant used personal violence on her, and also on her daughters; that, he was parsimonious, that he was profane and vulgar in the presence of herself and daughters, that his demands for sexual indulgence were so frequent that she was made ill by complying therewith, and that he took indecent liberties with her older, daughter Mildred. By reason of these things she asserts life became intolerable with him.

Defendant answered and denied the serious charges made by plaintiff and claimed the benefit of a cross-bill, in which he charged plaintiff with extreme cruelty in this, that during their married life she continually nagged him about his property matters. It is also charged in defendant’s cross-bill and argued by counsel that plaintiff’s motive in marrying defendant was solely a commercial one, unmixed with any tinge or touch of sentiment, and counsel argues that the proofs show that she was a “matrimonial profiteer.” It is rather to be inferred from counsel’s argument that he thinks the failure of this marriage compact, instead of being classed among the domestic tragedies, should have been classed with and reported among the weekly commercial failures.

Extreme cruelty. We are impressed, as the chancellor was, that the charge of extreme cruelty was established by the testimony. That defendant, in October, 1916, while in an angry mood, assaulted plaintiff and choked her, was testified to by her and denied by him. Had the testimony stopped here, we should be in more doubt as to where the truth lies, but when we consider the corroborating testimony of Mildred and plaintiff’s sister in connection therewith, we think the charge is sustained. We are also impressed with the story of Mildred that defendant took indecent liberties with her. ■ The other specifications which go to inake up the charge of extreme cruelty are not very serious and would, doubtless, have been soon forgiven and forgotten had there been enough sentiment in the marriage relation to have kept them together. Counsel makes a strong defense on the ground that the marriage was purely of the commercial type and that, therefore, we should accept her claims, with caution. The record is, indeed, persuasive that the union was begotten by a desire upon her part to secure a home for herself and children, and by a desire upon his part to secure a housewife. Conceding these to have been the real motives and assuming that the marriage was purely a commercial one in which “Dan Cupid” had no part, still even in such a contract plaintiff was entitled to protection against personal violence, while she was endeavoring to carry out her part of it. As we have said on former occasions, we know of no valid excuse a man can offer for using personal violence on his wife unless it is in self-defense.

It is argued by counsel that the testimony regarding the conduct of defendant with Mildred was inadmissible because plaintiff was not advised of the fact until after she left defendant and filed her bill. It is true the testimony could not be used by her as a reason for leaving defendant, but we think it was competent for the court to consider it in connection with the other testimony for the purpose of determining whether defendant’s home was a proper place in which to rear the child, and whether she was justified, after learning of it, in not returning to his home.

Award of alimony. It is plaintiff's claim that defendant’s real and personal property is of the value of $31,000. Defendant argues that its value does not exceed $21,000. The chancellor found that $24,000 or $25,000 would be a fair value. While we are inclined to accept the chancellor’s valuation we are unable to agree with his award of $6,000 as temporary and permanent alimony. Considering the character of the marriage contract and the motives which apparently actuated it, the length of time the parties lived together, the care and support which she and her children received while in defendant’s household, we think $4,000 would be a reasonable award of alimony. The decree may be modified in this respect, and then affirmed. No costs will be allowed either party in this court.

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

Justice Kuhn took no part in this decision.


author: Steere, J.

text:
    GREGOR v. OLDE.
    1. Appeal and Error — Pleading—Motion to Dismiss.
    On appeal from an order granting defendant’s motion to dismiss, in the nature of a demurrer, the facts well pleaded in plaintifE’s bill are to be tahen as true. -
    2. Summary Proceedings — Judgment—Amount Pound Due No Part op Judgment.
    In summary proceedings before a circuit court commissioner to obtain possession of premises sold on executory contract, the amount found due by the commissioner was not enforceable by execution and constituted no part of his judgment.
    3. Same — Adjournment—Jurisdiction.
    Under 3 Comp. Laws 1915, §§ 13242, 13245-13247, in summary proceedings to recover possession, the return day of the summons is limited to not less than three nor more than six days from the issuing thereof, and if the defendant fails to appear on the return day the hearing « may be adjourned not more than six days, only one adjournment being authorized if defendant fails to appear; if defendant appears on the return day or on any adjourned day not more than six days thereafter, eontinuances granted in the discretion of the commissioner upon sufficient cause shown may not exceed 30 days in all.
    4. Same — Statutory Proceeding — Adjournment — Compliance With Statute Necessary.
    Summary-proceedings for dispossessing-an occupant of premises being purely statutory, the statute must be strictly observed and complied with, and an adjournment over a longer period than the statutory limit ousted the commissioner of jurisdiction and a judgment subsequently rendered was void.
    5. Same — Jurisdiction—Estoppel.
    Where defendant failed to appear in summary proceedings, and the commissioner lost jurisdiction by adjournment over a longer period than the statutory limit, her inaction could not reinstate it, nor is she estopped in another proceeding from attacking the validity of the judgment on jurisdictional grounds.
    6. Equity — Jurisdiction to Relieve from Forfeiture on Proper Showing.
    Equity courts have jurisdiction to relieve from forfeitures, direct accountings, and grant specific performance where equitable grounds to those ends are properly charged and satisfactorily proven.
    7. Same — Pleading—Showing Sufficient to Confer Jurisdiction.
    A showing by plaintiff in her bill that she has been in actual possession and residence upon the premises in question as her home and homestead under a land contract and has paid all or at least a large part of the purchase price; that, having lost her contract with receipts for the payments she has made, defendant has taken advantage of the situation to deny her rights and fraudulently make false demands for greater payments, wrongfully served «notice of forfeiture and by summary proceedings sought to dispossess her of her home, which is now worth double the contract price, and secure it for himself, held, sufficient to confer equity jurisdiction to entertain same.
    8. Appeal and Error — Motion to Dismiss — Issues Presented. ■
    On appeal from an order granting defendant’s motion to dismiss plaintiff’s bill, in the nature of a demurrer, the question presented is one of pleading only, the merits of the case not being before the court.

      Appeal from Wayne; Collingwood (Charles B.), J., presiding.
    Submitted January 22,1920.
    (Docket No. 82.)
    Decided February 27, 1920.
    Bill by Louisa Gregor against Ernest J. Olde, Jr., for the specific performance of a land contract. From ian order dismissing the bill, plaintiff appeals.
    Reversed, and remanded.

      Robert M. Dalton (Fritz L. Radford, of counsel), for plaintiff.

      Joseph H. Primean, Jr. (Howard H. Campbell, of counsel), for defendant.
   Steere, J.

The original bill of complaint in this case was filed on June 20, 1919, for the primary purpose of enforcing specific performance of a land contract for sale of premises known as 33 Farrand avenue, Detroit, more particularly described in the contract as lot 7, block 9, of Yeaman’s & Sprague’s subdivision of private claim 152, according to the recorded plat thereof. The bill asks for an accounting and injunction to restrain defendant from interfering with plaintiff’s possession of the premises or in any manner selling or incumbering the property. A preliminary injunction was granted.

On July 7, 1919, defendant filed a motion in the nature of a demurrer to dismiss plaintiff’s bill. An amendment to certain paragraphs of said bill with' some exhibits added was served upon defendant’s counsel, and filed as of July 16, 1919. On July 23, 1919, the motion to dismiss said bill was heard and granted, with 20 days’ stay of proceedings, as contended by plaintiff and confirmed in a letter to her counsel by the circuit judge who heard the case, but the stay was not inserted in the order of dismissal. Within the 20 days defendant evicted plaintiff from possession of said premises by a.writ of restitution obtained on a circuit court commissioner’s judgment previously granted.

The grounds of demurrer set up in defendant’s motion to dismiss center to the question whether the facts alleged in plaintiff's bill sufficiently state a case for equitable relief to give the chancery court jurisdiction. They are as follows:

“(1) There is no equity in said bill
“ (2) That plaintiff has an adequate remedy at law.
“(3) That no facts are set up in the bill constituting fraud or any other equitable ground authorizing a court of equity to grant injunctive relief restraining proceedings at law.
“(4) That the bill does not allege necessary facts upon which to predicate injunctive relief.”

On this motion in the nature of a demurrer the facts well pleaded in plaintiff’s bill are to be taken as true. Barber v. McMicking, 189 Mich. 266; Freeman v. Mitchell, 198 Mich. 207; Watson v. Wagner, 202 Mich. 397.

Some of the material facts alleged in plaintiff’s bill as amended are as follows: On June 2, 1908, plaintiff and her husband Rudolph Gregor, since deceased, bought for a consideration of $1,400 the premises described in said contract, running to them as husband and wife, with deferred payments of $8 or more every two weeks thereafter until fully paid. Thereafter plaintiff with her husband remained in possession of said premises, occupying the same as their home until her husband died, in 1912, and she continued in possession, occupying and claiming the property as her homestead, until her bill was filed; that payments were regularly made as provided in the contract until after the death of her husband, and if a true accounting were had between the parties the contract would be shown to have been paid in full, but her original copy of the contract became lost through no fault of hers, having been stolen from her possession together with $100 in money, and if she were able to produce said contract it would show payments thereon in the handwriting of defendant and his father to the full amount due upon said contract; that after defendant learned her contract was lost he insisted that a considerable sum yet remained due thereon and demanded instalment payments of $25 per month be paid by her, instead of $16 per month as provided in the contract; that she refused to do so, claiming the original contract was fully paid if proper credits were given her, but did make a payment in January, 1919, and offered to pay defendant whatever was shown unpaid if he would come to an accounting with her and furnish her an abstract of title so she could arrange a loan for the amount if any found yet due him, which he refused.

On February 15,1919, defendant caused to be served upon plaintiff, by delivering it to her daughter, at their home, a notice of forfeiture of said contract, demanding surrender of said premises. On February 24, 1919, he commenced summary proceedings for recovery of possession before a circuit court commissioner. The return day of the sufnmons was February 26, 1919, at which time plaintiff failed to appear and the hearing was adjourned at the instance of defendant to March 6th, and thereafter from time to time until May 12, 1919, when he took a default judgment of restitution before the commissioner, obtaining in that connection a determination that $2,801.88 was the amount yet due on the contract, which plaintiff charges was unwarranted, excessive and obtained by fraud. As to these summary proceedings the bill alleges no appearance was entered by or for plaintiff; the default judgment was'fraudulently taken while negotiations were pending between the parties for a settlement of the matter; that the circuit court commissioner was without jurisdiction to render such judgment arid the same was void; offers to pay whatever may be found due upon a proper accounting and to pay into court the monthly installments specified while this suit is pending.

Whatever misgivings may be suggested as to the-exact situation, these matters are all in the record, either as allegations in plaintiff’s bill or in exhibits, relating thereto; As applied to this inquiry defendant by his demurrer makes no denial of any material facts, asserted by plaintiff, accepts them as true and replies, in substance, reduced to the vernacular, “What of it?”"

The grounds upon which plaintiff’s bill was dismissed do not directly appear either in the short order of dismissal or elsewhere in the record, but, if not inferable, it is asserted in the brief of plaintiff’s counsel and nowhere denied that the lower court considered the summary proceeding and judgment therein as warranting the dismissal.

A strenuous attack is made by plaintiff’s counsel against the commissioner’s judgment, on various grounds which are argued at length. While the circumstances attending the history of those summary-proceedings might bfe found to have a more material, bearing upon the equities of the chancery case when at issue and heard, it is sufficient for the purposes of the question involved here to note that the amount’ found due by the commissioner was not enforceable'' by execution and constituted no part of his judgment (McSloy v. Ryan, 27 Mich. 116; Bauer v. Wasson, 66 Mich. 256) ; and as appears by this record the pending of summary proceedings before the commissioner, in which plaintiff did not appear, was protracted by continuances at the instance of defendant, as plaintiff alleges, beyond the limit of time in which the commissioner had jurisdiction to enter judgment under the statute then in force. Some 78 or 79 days elapsed between commencement of the case and the judgment.

In summary proceedings to recover possession, the return day of the summons is limited to “not less than three nor more than six days from the issuing thereof.” 3 Comp. Laws 1915, § 13242. By section 13245 it is provided:

“If the defendant fail to appear on the return of such summons, and the same be returned duly served, the officer issuing such summons may, in his discretion, adjourn the hearing, not more than six days from the return of such summons, and on the day to which the hearing shall be adjourned, if the defendant appear, the same proceedings shall be had as if he had appeared at the return of the summons.”

Only one adjournment is authorized if the defendant fails to appear. Section 13246 provides:

“If the defendant fail to appear on the return of the summons, and there be no adjournment, or if the defendant fail to appear on the day to which the hearing may be adjourned, the officer shall note such failure in the minutes of his proceedings, and proceed to hear the complaint, and to inquire into the truth thereof,” etc.

In this case plaintiff (defendant there) did not appear in the summary proceeding at any time. Under section 13247, had she appeared on the return day or at an adjourned day, not more than six days thereafter, continuances granted in the discretion of the commissioner upon sufficient cause shown could not exceed thirty days in all.

Summary proceedings for dispossessing an occupant of premises are purely statutory. The judgment rendered is by an officer of special, local, and limited jurisdiction. To be valid the statutory requirements and limitations set must be strictly observed and complied with. A close analogy is recognized in that respect between the limitations on justices of the peace and circuit court commissioners. Feldman v. Zimmerman 208 Mich. 240. Section 14207, 3 Comp. Laws 1915, relative to adjournments by justices, limits them to “not exceeding in all three months,” unless extended by stipulation of the parties in writing and filed with the justice. By an adjournment beyond that limit in violation of the statute the justice loses jurisdiction and any judgment rendered thereafter in the case so adjourned is void. Smith v. Kistler, 174 Mich. 367. In Boller v. Mayor, etc., of New York, 40 N. Y. Super. Ct. Rep. 523, it was held that under the summary proceedings statute of that State an adjournment over a longer period than the statutory limit ousted the court of jurisdiction and a judgment subsequently rendered was void.

Whatever else might be claimed as to plaintiff’s failure to appear and defend her rights during the time the commissioner had jurisdiction in a pending proceeding to dispossess her of her home, that jurisdiction having been lost, her inaction could not reinstate it. Not having appeared or submitted herself to the jurisdiction of the court, she is not estopped in another proceeding from attacking the validity of the judgment on jurisdictional grounds. Wilcke v. Duross, 144 Mich. 243.

Plaintiff shows by her bill that she has been in actual possession and residence upon these premises as her home and homestead under a land contract and has paid all or at least a large part of the purchase price; that having'lost her contract with receipts for the payments she has made, defendant has taken advantage of the situation to deny her rights and fraudulently make false demands for greater payments, wrongfully served notice of forfeiture and by summary proceedings sought to dispossess her of her home, which is now worth double the contract price, and secure it for himself.

It is said in Davis on Michigan Practice before Circuit Court Commissioners, p. 313, that where the vendor does not live up to the terms of the contract the. vendee may declare the same forfeited or ask a decree for specific performance in a court of equity. To which is added:

“If the vendor recovers a judgment against him by summary proceedings and thus gain possession upon forfeiture of the contract, the vendee might file a bill in equity if he has paid in a large sum towards the purchase price, setting up such facts and get a reinstatement under the contract through such court or such other relief as the court of equity might grant.”

That equity courts have jurisdiction to relieve from forfeitures, direct accountings and grant specific performance where equitable grounds to those ends are properly charged and satisfactorily proven, is textbook law and not open to question. Plaintiff’s bill contains matter along those lines sufficiently well pleaded to confer equity jurisdiction to entertain the same and determine the truth or falsity of the facts stated and equitable claims therein alleged.

It is further urged in behalf of plaintiff that she should be reinstated to possession of the premises by an order of this court and an injunction granted maintaining her' possession pending a hearing of the case on its merits. That, this court cannot do at the present stage of the litigation. The question presented and for decision on this brief record is one of pleading only — defendant’s demurrer to plaintiff’s bill. The merits of the case on the truth or falsity of the tendered facts are not before us. The interlocutory matters which plaintiff proposes are for the trial court as the case progresses to a hearing before it.

The decree dismissing said bill on demurrer will be reversed, with costs of this court to plaintiff, and defendant granted the rule time in which to plead issuably to said bill as he may be advised.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    LENAWEE COUNTY GAS & ELECTRIC CO. v. CITY OF ADRIAN.
    1. Municipal Corporations — Gas Rates — Franchise Contracts —Constitutional Law.
    If an ordinance fixing the price of gas to the consumers, accepted by both the municipality and the gas company, was in the first instance a valid binding agreement which the contracting parties were competent to make, the fact that it proved to be unprofitable to one of the parties would not render its enforcement 'by the other unconstitutional.
    2. Equity — Jurisdiction—Relief from; Hard Bargain.
    Equity does not relieve from hard bargains simply because they are hard, even though made so by the world war.
    3. Municipal Corporations — Public Utilities — “Reasonable" Regulations — Power to Contract as to Rates.
    Statutory power of a municipality to prescribe “reasonable” regulations for a public utility, held, to carry with it authority to contract as to rates.
    4. Same — “Rates”—Contract and Legislative Definition.
    The word “rates” may be said to denote the price stated or fixed for some commodity or service of general need or utility supplied to the public, measured by a specified unit or standard and classified as contract or administrative rates when voluntarily fixed or agreed upon between the contracting parties, and -as legislative rates when fixed by the legislature or its authorized agency without consent or agreement of the parties.
    5. Statutes — Rate-making a Legislative Function.
    It is a well settled principle of law that rate-making in matters of public utilities is a legislative function.
    6. Same — Presumptions.
    Laws are assumed to be enacted by the legislative body with some knowledge of and regard to existing laws upon the same subject and decisions by the court of last resort in reference to them.
    On power of municipality to fix gas rates as an incident of its power to authorize the laying of gas mains, see note in 18 L. R. A. (N. S.) 1197.

      .7. Municipal Corporations — Power to Fix Rates Recognized by Inference — Public Utilities Commission.
    That by Act No. 419, Pub. Acts 1919, creating the public utilities commission, and giving it power to fix “rates and charges of all public utilities within this State producing, transmitting, delivering, or furnishing gas for heating or lighting purposes for the public' use,” the legislature prohibited altering, without consent of the interested municipality and company, any franchise or agreement relative to rates, gives room for possible inference of ratification or at least approval of contract relations between those bodies touching rates.
    8. Same — Rates—Reasonableness Relates to Time of Contracting.
    If the validity of a franchise contract as to rates depends on the agreed rates being' reasonable, it follows from the fact that there was a contract that the question of whether it was reasonable must relate to the time the contract was entered into.
    ■9. Same — Equity—Gas—Rates—Injunction—Relief from Hard Contract.
    Where the city of Adrian entered into a franchise contract with the gas company fixing the gas rates for said city which were reasonable at the time said contract was made, the equity court will not grant injunctive relief to said company by restraining said city from enforcing the contract.
    Appeal from Lenawee; Hart (Burton L.), J.
    Submitted January' 27, 1920.
    (Docket No. 98.)
    Decided February 27, 1920.
    Bill by the Lenawee County Gas & Electric Company against the city of Adrian and others to enjoin the enforcement of an ordinance fixing gas rates. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Pam & Hurd and Baldwin & Alexander, for plaintiff.
    - Henry R. Jewett and John C. Howell, fon defendants.
   Steere, J.

Plaintiff is a public service corporation engaged in supplying the city of Adrian and its inhabitants with gas. Defendants are the city of Adrian and certain of its officials who are said in plaintiff’s brief to have been joined with the city as defendants “both in their capacity as such officials and as consumers of gas representing the large body of such consumers.”

Plaintiff filed this injunction bill, directed primarily against the city, to restrain enforcement of an ordinance which specifies the rates which may be charged for gas; and in that particular to have such ordinance adjudged illegal and void because such rates as fixed have become so relatively low and unreasonable as to be in effect confiscatory and their imposition operates to deprive plaintiff of its property for public use without just compensation, due process of law, etc.; and the city did not in the first instance possess power to fix rates by contract or otherwise except that they be and continue reasonable. On application for a temporary injunction an order to show cause was issued and defendants filed answer to both the order and bill. A hearing was had in which defendants’ pleadings were accepted by common consent as a motion in the nature of a demurrer to dismiss plaintiff’s bill, which was argued.

The contentions on both sides are well pleaded and it may fairly be said on plaintiff’s theory of no binding contract, that the allegations in its bill state existing conditions fairly showing grounds for equitable relief. To that point counsel urge in its behalf that the rates fixed by ordinance, though accepted by the company, do not constitute such an unalterable binding contract as to be enforceable when it is clearly shown that the same have become, through changed conditions, palpably unreasonable, even though reasonable at the time the so-called franchise contract was entered into.

Plaintiff is successor to the Adrian Gas Company which was incorporated in 1856 under the so-called gaslight company act passed in 1855 (Act No. 109, Laws 1855), and from shortly thereafter it and its successor have continuously supplied the city of Adrian with gas, having the various rights and privileges given gas companies organized under general laws of the State. On August 12, 1901, the city of Adrian passed an ordinance giving the Adrian Gas Company the use of streets and other privileges customarily granted in such cases, fixing a rate to be charged for gas which was accepted in writing by the Adrian Gas Company. On April 9, 1908, the same was amended in certain particulars, including reduction of rates, and accepted in writing by the company. In March, 1912, the Adrian Gas Company transferred all its property, franchises, etc., to plaintiff, which has since owned and operated the property and business, supplying gas to the city and its inhabitants. On March 8, 1915, the gas ordinance of the city was again amended at the instance of and on a proposition made by plaintiff to the city in writing offering reduction of the rate for gas to $1.10 per thousand, supplied customers on the one meter plan with a discount of 10 cents per thousand for prompt payment, and furnish gas for city buildings at 90 cents per thousand, provided the city gave plaintiff a desired contract for lighting the “downtown and Tecumseh-street white way districts according to the terms, and for the sums specified in the attached proposals.” This proposition was accepted by the city council. The ordinance was amended as suggested, accepted by plaintiff in writing, and a contract was entered into for lighting the two white way districts according to the terms plaintiff proposed. The city was then operating under a special charter granted by direct act of the State legislature, but soon thereafter adopted a new charter under the home rule act with a commission form of city government.

In the summer of 1919 the company made application to the city commission for relief from the rate limit to which it was restricted by the amended ordinance of 1915, claiming that with its heavy bonded and floating indebtedness and the high prices labor and material had reached it would be impossible to continue operation of its plant for any considerable time unless a substantial increase was made in the rates it could charge for gas. Representatives of plaintiff appeared before the city commission and negotiations were carried on for a time in relation to the matter during which both the city commission and plaintiff’s representatives were advised by the city attorney that under the home rule charter then in force the existing franchise ordinance could not be amended by the commission until after the proposed change had been approved by a three-fifths, vote of the electors. An agreed form of proposed ordinance to amend section 8 of the old ordinance which covered the matter of rates was prepared, authorizing an increase of the charge for gas to $1.25 per thousand feet under specified conditions then tentatively acted upon by the city commission and under proper proceedings submitted to a vote of the electors, which failed of adoption, being defeated by a majority vote.

Failing in its efforts to obtain the desired relief by voluntary action of the electors or officials of the city, plaintiff filed this bill tó enjoin enforcement of the ordinance on the ground—

“that section 8 of said ordinance of the city of Adrian as amended has become and is unreasonable, illegal, null and void, because the enforcement thereof would: (a) Deprive the plaintiff of its property without due process of law. (6) Take the plaintiff’s property without just compensation. (c) Deprive the plaintiff of the equal protection of the law ”

These constitutional grounds of objection are necessarily predicated on a lack of contractual power in the municipality to enter into a contract with plaintiff fixing the price it could charge for gas, as a contract is commonly understood to mean and is legally defined, for if .the result of their accepted relations was in the first instance a valid binding agreement which the contracting parties were competent to make, the fact that it proved to be an unprofitable or losing contract to one of the parties could not render its enforcement by the other unconstitutional; neither does equity relieve from hard bargains simply because they are hard, even though made so by the world war. Columbus, etc., Power Co. v. City of Columbus, 249 U. S. 399 (39 Sup. Ct. Rep. 349); City of Moorhead v. Heat & Power Co., 255 Fed. 920.

The key-note of plaintiff’s contention is that, under our gaslight-company law and State Constitution, rates fixed by a city franchise must at all times be reasonable, setting a limitation on the municipality beyond which it cannot go by contract or otherwise, and that any rate fixed by franchise, although reasonable, satisfactory and agreed to by both parties at the time, cannot bind the contracting parties for the stipulated period of the franchise, or for any definite time, but whenever such rates in fact become unreasonable they become unlawful and unenforceable. This construction not unnaturally suggests the query whether such a contract becomes lawful and enforceable again when the pendulum swings the other way, and so on back and forth during the agreed life of the franchise.

Both “reasonable” and “rate,” while words of frequent use, are relative terms of such varied and shaded meaning not only in the abstract but often in the particular connections used as to be difficult of exact definition and afford a broad field for controversy. It has been said that any attempt to give a specific meaning to the word “reasonable” is like trying to count that which is not numbered, and its exact meaning when applied to particular subjects, in qualification of action or conduct, has been a topic of abundant discussion in legal text books and reported decisions.

Sufficient for the purposes of this case, as applied to the power of the city to enter into a contract for the rate at which gas should be supplied to the public, is the interpretation of “reasonable” in the connection used by Justice Carpenter in Boerth v. City Gas Co., 152 Mich. 654 (18 L. R. A. [N. S.] 1197), wherein statutory power to prescribe reasonable regulations is held to carry with it authority to. contract as to rates.

Many definitions of the word “rate” are to be found, but as involved in the present controversy it can broadly be said to denote the price stated or fixed for some commodity or service of general need or utility supplied to the public, measured by a specified unit or standard. Such fixed prices are sometimes classified as contract or administrative rates voluntarily fixed or agreed upon between themselves by contracting parties, and legislative rates fixed by the legislature or its authorized agency as a paramount governmental function without consent or agreement of the parties.

It is a well settled principle of law that rate-making in matters of public utilities like that under consideration is a legislative function. Primarily the power to control and regulate rates rests with the legislature. With that unquestioned principle in mind it seems advisable to first consider the present state of the law upon that subject in this jurisdiction and note what has already been decided, for it would be inexpedient and serve no useful purpose to again review the many not unfamiliar authorities relative to rates cited from other jurisdictions and arguments of counsel based thereon directed largely, as we are impressed, to questions already disposed of in this State by our former decisions.

In Mahan v. Telephone Co., 132 Mich. 242, the Michigan Telephone Company contested the validity of a claimed contract entered into by its predecessor with the city of Detroit. The city had no authority to exclude telephone companies from the use of its streets, possessing only the customarily conferred charter right to establish reasonable regulations and rules for their use. An ordinance was passed by the city council granting a franchise to the Detroit Telephone company, amongst other things fixing the maximum rate for telephone service charges and providing it should apply to any assignee or successor of said company. This was accepted by the Detroit Telephone company in writing. The Michigan Telephone Company denied the right of the city to fix rates. This court adopted and affirmed the opinion of the circuit court which held and said: “The right of the city to make the contract in the premises cannot be questioned.”

In Boerth v. City Gas Co., supra, the validity of a franchise contract fixing the rate which the company might charge the public for gas was directly in issue. The legal rights and relations of the parties were substantially the same as here. The gaslight company act under which each of the gas companies was organized give it—

“power to lay conductors for conducting gas * * * through the streets * * * of any city * * * where said corporation is located, * * * which pipes or conductors shall be laid with the consent Of the municipal authorities of such cities, * * * through which the same are laid, under such reasonable regulations as they may prescribe.”

Each city had in substance the same charter power to control and regulate the use of its streets. It was there conceded that the city of Detroit was vested with no legislative power to determine and impose rates, but said that the “power to prescribe rates by contract — that is the power which was exercised in this case — is a very different power from the legislative power of regulating rates.” The court pointed out the distinction between the legislative or governmental power of a city and its administrative, proprietary or quasi-private power to conduct the business affairs and safeguard the interests of the municipality for the advantage or welfare of the city itself and its inhabitants. Justice Carpenter, who wrote the opinion, carefully reviews and analyzes many of the authorities cited and questions raised — some of which again appear in this contention — and it is distinctly held that between themselves, in the absence of any exercise by the State, of its paramount but yet dormant legislative power to regulate rates, the ordinance of the city accepted by the company fixing a rate which.the latter might charge for gas constituted a valid binding contract between the parties.

In 1909, by Act No. 300 of that year, the legislature provided for what was known as the Michigan railroad commission, investing it with broad powers as to regulation of carriers, to prevent unreasonable rates, inadequate service, discrimination, etc., similar in some respects but not so extensive, as those subsequently. conferred upon the public utilities commission which it afterwards created. In City of Monroe v. Railway, 187 Mich. 364, a franchise contract between the parties, relative to the operation of defendant’s railway through the city of Monroe was in issue. The contention was made in behalf of the company that said act operated as a revocation of any power the city might have had to regulate the service of the railroad by contract or otherwise. Of this contention the court said:

“It does not followi that because the contract may yield to the exigency of public necessity, when such exigency has been determined in a proper case and manner, by competent authority, that the respondent, a party to the contract, may ignore the contract obligation, plead the public or its own convenience as an excuse, and remit the relator to a commission for relief. On the contrary, it seems wholly reasonable that it should perform its contract obligations until relieved therefrom by competent authority.”

In Traverse City v. Telephone Co., 195 Mich. 373, involving among other things a franchise contract fixing rates, it was held that, the statute conferring controlling power over rates upon the railroad commission did not of itself abrogate a contract of that nature, but, accepting it as permissive only and subject to abrogation by exercise of the paramount legislative power of the State, it remained valid and binding between the parties until such time as the reserve State power to control rates was asserted and interposed. This case was again before us in Traverse City v. Railroad Com’n, 202 Mich. 575, where the right of the State to exercise through the railroad commission its reserved rate-making power against the provisions of the franchise contract was contested by the city and it was said with citation of sustaining authorities that the contract,—

“though binding between the parties to it in the absence of governmental interposition, is to be construed as having been entered into with reference to the right and power of the government to assert and exercise its inherent paramount authority.”

It is, however, contended in behalf of plaintiff that none of our Michigan decisions has held that a rate, even though fixed by franchise contract, is enforceable when unreasonable, and urged that in the recent case of City of Kalamazoo v. Kalamazoo Circuit Judge, 200 Mich. 146, this court has in effect held to the contrary, quoting and particularly emphasizing the following excerpt:

“It seems therefore clearly admissible under the language of the Constitution here under consideration that the municipalities of the State having ‘reasonable control of their streets’ may fix reasonable conditions for their use by public utilities, and that among such reasonable conditions is the fixing of a reasonable rate. That such conditions must be reasonable, the language of the Constitution clearly demonstrates. People v. McGraw, 184 Mich. 233. And that the courts may determine the question whether the conditions are reasonable or not, this court has determined. Michigan Telephone Co. v. City of St. Joseph, 121 Mich. 502 (47 L. R. A. 87).”

It may be noted in the first place that neither of the two authorities cited to sustain those reflections on reasonable rates áre gas company cases, which under their charters involve for occupation of streets the “consent of the municipal authorities,” nor does either have any relation to a contract of any kind. The McGrow Case was a criminal prosecution for violating a city traffic ordinance. It was there said that municipalities did have reasonable control of their streets, and to the extent section 9 of Act No. 318, Pub. Acts 1909, relative to registration, etc., of motor vehicles, forbids cities from reasonable control of their highways it is unconstitutional. The other case involved an attempted arbitrary exercise of legislative power by the city of St. Joseph to impose what was claimed to be unreasonable and prohibitive regulations in the use of its streets by a telephone company, which by statute had a right to use the streets subject only to reasonable rules and regulations by the city as to the manner of installing its line, etc.

In the Kalamazoo Case an unquestioned franchise contract between the city and gas company had expired and the city, without consent of the gas company, sought to enact by ordinance and enforce a rate for gas which the company claimed was unreasonable and prohibitive. The issue involved was the right of the city to so legislate. It was held to be an attempt to exercise a governmental legislative power which the city did not possess. The opinion discusses the various questions raised and reviews the authorities exhaustively, both in this and other jurisdictions, including the Boerth Case which is quoted from with apparent approval as well as cases from other jurisdictions to the same effect, and it is pointed out “that the want of power to legislatively fix a rate does not prevent the execution of a contract”; citing and quoting from City of Noblesville v. Improvement Co., 157 Ind. 162 (60 N. E. 1032). We discover nothing •in that case which questions or modifies any previous decision of this court.

While the exact question of the effect of an unreasonable rate upon a franchise contract is not dwelt upon in. the Boerth Case, it does appear in the statement of the case that complainant contended the rate charged by the gas company was unreasonable and unjust; and testimony offered to prove the charge unreasonable was not permitted by the trial court because the city had entered into a valid contract permitting defendant to charge 80 cents per thousand for gas furnished to complainant, and later in the opinion it is said: “complainant is not entitled to relief because the rate of 80 cents per thousand cubic feet is too high, for that was the rate defendant was entitled to charge.”

In 1919 the legislature of this State passed Act No. 419 abolishing the Michigan railroad commission and creating a public utilities commission vested with the powers and jurisdiction of the abolished commission with authority to take over its unfinished business, and conferring upon said public utilities commission additional rights, powers and duties, “including the fixing of rates and charges of all public utilities within this State producing, transmitting, delivering or furnishing gas for heating or lighting purposes for the public use,” but with the limitation that:

“In no case shall the commission have power to change or alter the rates or charges fixed in, or regulated by, any franchise or agreement heretofore or hereafter granted or made by any city, village or township.”

To this is added a provision that by mutual consent a municipality and public utility company operating within the limits of the municipality may join in submitting to the commission any question involving the determination or fixing of rates or charges which the commission shall then have jurisdiction to entertain arid power to determine. Laws are assumed to be enacted by the legislative body with some knowledge of and regard to existing laws upon the same subject and decisions by the court of last resort in reference to them. That the legislature took cognizance of and prohibited altering without consent of the interested municipality and company any franchise or agreement relative to rates gives room for possible inference of ratification or at least approval of contract relations between those bodies touching rates.

But conceding, as contended by plaintiff, that this court has not yet clearly spoken on the subject of franchise contracts and 'that their validity depends on the agreed rates being reasonable, we think it follows from the fact there was a contract that the question of whether it was reasonable must relate to the time the contract was entered into. In City of Moorhead v. Heat & Power Co., supra, it is said, with citation of numerous cases: .

“These cases all decide that in determining whether equitable relief should be granted with respect to a contract the court must place itself in the position occupied by the parties at the time the contract was made and not at the time at which it was to be performed. If at the time it was made the contract was fair and free from fraud, mistake or imposition, parties must be left free to make their contracts, and it is the duty of the courts to enforce them as made. The same doctrine has been applied to contracts between municipalities and public utility companies.”

It is said, and not disputed, that this franchise and all its amendments were agreed upon and enacted on plaintiff’s initiative. That of 1915 was upon plaintiff’s written proposition of which a contract for lighting the white ways of the city was a part. Both were accepted by the city and by plaintiff in writing. Presumably the rate contract was reasonable at the time it was made and there is no claim to the contrary.

The decree will stand affirmed, with costs to defendants.

Moore, C. J., and Brooke, Fellows, Stone, Clark, and Sharpe, JJ., concurred. Bird, J., did not sit.