text:
      In re SPARKS’ ESTATE. HODGMAN v. SEARS.
    1. Evidence — Admissibility—Witnesses, Credibility of — Cross-Examination.
    In a will contest the admission of evidence on cross-examination of one of the contestants and her former husband that a short time prior to the death of the husband the latter took his aged father to his home and procured a deed to himself of all the father’s property, and the wife received a deed of part of the property from the husband, and, after the father’s death, such deed was set aside in proceedings for its cancellation by other children, for the purpose of showing the character of the witnesses, was not prejudicial error.
    2. Witnesses — Cross-Examination—Discretion of Court.
    In order that the jury may get a proper appreciation of the fairness and reliability of the testimony of witnesses, considerable latitude is generally allowed in thei* cross-examination of witnesses, the extent of such cross-examination being a matter left largely to the discretion of the trial court.
    3. Wills — Mental Competency — Undue Influence — Witnesses —Evidence.
    Where a witness in a will contest, a banker, showed by his testimony that he had met decedent on the average of twice a week during a period of ten years preceding testator’s death and had observed him in various business transactions in the bank, it was not error to allow witness to testify that decedent was the equal of the average business man and could not be influenced in business transactions against his will.

    4. Trial — Exclusion of Witnesses from Trial — Wills—Discretion of Court — Abuse of Discretion.
    Where, by a consent order, all unsworn witnesses were excluded from the court room during a will contest by the order of court, and, after counsel for legatee stated that they desired that the latter be allowed to remain in court for the purpose of assisting counsel in the cross-examination of witnesses and that he would no,t be called for direct examination, and offered to allow him to be cross-examined at once, there was no abuse of discretion by the trial judge in not modifying the order as to the legatee. •
    5. Evidence — Wills—Failure of Legatee to Testify — Presumptions.
    The benefit of the presumption arising from the failure of the legatee to take the stand and testify in his own behalf in a will contest may not be claimed by contestants, where, after a consent order for exclusion of witnesses is made, it is announced that the legatee will not be offered as a witness, and opportunity is given contestants to cross-examine him, which is not done, and it is claimed that legatee’s presence in court is necessary and that by his remaining under a modified order of the court he can no longer be called to the witness stand without the consent of the contestants, since the contestants, by their actions, foreclosed him from so doing.
    6. Same — Admissibility—Wills—Statements of Testator — Undue Influence.
    In a will contest statements of the testator are inadmissible to show undue influence, but are admissible to show the effect that such undue influence had upon the testator in respect to making of the will.
    Error to Branch; Knowlen, J.
    Submitted June 25, 1917.
    (Docket No. 57.)
    Decided September 27, 1917.
    Willis E. Hodgman presented for probate the will of John Sparks, deceased. The will was allowed in the probate court, and Esther Sears and others appealed to the circuit court. Judgment for proponent, Contestants bring error.
    .

      C. C. Johnson and L. F. Humphrey, for appellants.

      H. H. & B. E. Barlow and Palmer, Palmer & Palmer, for appellee.

       On the question of admissibility in evidence of expert opinion as to sanity and mental capacity, see comprehensive note in 39 L. R. A. 305; 42 L. R. A. 767.

   Kuhn, C. J.

This is a contest over the will of John Sparks, deceased. The probate of the will is contested by Emma Wright and others of his children who were dissatisfied with its provisions, as by its terms the bulk of the estate was willed by the testator to his son, Edgar. The reasons filed for contesting the will were, in substance, that the testator was mentally incompetent to make the purported will, and also that the instrument was obtained and executed through undue influence exerted upon the testator by his son, Edgar. The only question, however, submitted to the jury was that of undue influence, and upon this question the verdict was against the contention of the contestants and the trial resulted in the will being sustained.

The first group of assignments of error have reference solely to the admission of testimony of witnesses. From the examination of ■ Sarah Wright Brooks,* one of the contestants, and her former husband, Jerome Wright, it was made to appear that, within a short time previous to his death Jerome Wright brought his father, a man upwards of 90 years of age, to his home, and there secured from him a deed of all of his father’s property; that his wife obtained a deed of 45 acres of this land from her husband; that his father lived seven weeks; and that after his death the other children in the family filed proceedings to set aside the deed, and, after a hearing in court, their contention was sustained. The purpose of this cross-examination was to show the character of the witnesses, and to our minds, in view of the claims made by the contestants in this case and the testimony given by these witnesses, the admission of this testimony was not prejudicial error. In order to get to the jury a proper appreciation of the fairness and reliability of the testimony of witnesses, considerable latitude has always been allowed in the cross-examination of withesses, and the extent of such cross-examination is a matter left largely to the discretion of the trial judge. In this case we do not think that this discretion was abused. See Wilbur v. Flood, 16 Mich. 40 (93 Am. Dec. 203); Wolverton v. Village of Saranac, 171 Mich. 419 (137 N. W. 211); Totten v. Totten, 172 Mich. 565 (138 N. W. 257).

Other assignments of error relate to the admission of the testimony of Milton W. Wimer. The question which was asked, and the answer which was allowed to stand, which are the subject of complaint, are as follows:

“Q. Now, would you judge him to be a man who could be influenced in any business transaction against his will?
“A. I should say no; he was the equal of the average business man.”

Before this answer was received, it was inade to appear that Mr. Wimer was connected with the bank in which Mr. Sparks did business, and that for a period of ten years and upwards he had seen him as often as twice a week, and had observed him in the transaction of various business matters at the bank, and had had opportunity to observe the general firmness of his mind from a business standpoint. It was not error to allow the witness to testify as he did, after stating the facts upon which his opinion was based. Paul v. Clements, 176 Mich. 251 (142 N. W. 384).

During the trial, by a consent order, all witnesses who had not been sworn were excluded from the court room by the order of the trial court. The record discloses that the following occurred:

“Mr. Johnson: Now, this order, as I understand it, applies to the legatee, Mr. Sparks?
“The Court: Yes.
“Mr. Palmer: Under our theory of this case, Mr. Sparks is not a competent witness on any question that we would want to call him upon. I do not think that legally he can testify; therefore we shall not put him on the stand. Our theory is that he cannot be sworn as a witness; therefore he won’t be called as a witness by us.
“The Court: All right. You better look after it, gentlemen, and see that the witnesses who are affected by the consent order understand it.
“Mr. Humphrey: If the court please, we, as contestants here, may, and probably will, desire to call Ed. Sparks upon the stand, if he is not put on, and I understand he is not to be, by the proponent, and we ask that he be §xcluded from the room.
“Mr. Palmer: Your honor, it is necessary in the cross-examination of these witnesses to have Mr. Sparks to assist in the trial of this case. If they want to call Mr. Sparks for cross-examination, they may. We consent that they may call him now.
“Mr. Humphrey: We will not do it now at the present time the way the testimony stands. We are not determined fully on the subject.
“The Court: That puts this thing in a somewhat embarrassing situation. I am not. prepared to say just what the court should do under the circumstances. It is a novel proposition you have here.
“Mr. Humphrey: Under our consent I supposed we had it arranged.
“The Court: You now announce that you may call him.
“Mr. Humphrey: Yes.
“Mr. Palmer: Then he will be a witness for them, and not us.
“Mr. Barlow: We waive the privilege as far as he is concerned.
“The Court: Yes; I understand that. I think I will deny that motion, Mr. Humphrey.
“Mr. Humphrey: Then is the further motion denied?
“The Court: What further motion?
“Mr. Humphrey: Then will the further order be set aside as to the other witnesses?
“The Court: No, sir; just with respect to Mr. Sparks here.”

It is claimed that this ruling of the trial judge was erroneous and prejudicial. The conduct of the trial must, as we have often said, be left largely to the sound discretion of the trial judge. He has the opportunity to observe the character of the witnesses, and is thus enabled to determine what action should be taken under the circumstances to best further the ends of justice. By his action in this case the contestants were not deprived of any substantial right, as they had the opportunity to examine Edgar Sparks immediately after the order of exclusion was made, but. this they did not see fit to do. We are of the opinion that it was within the sound discretion of the court, the order having been entered, to determine, taking into consideration all the facts and circumstances before him, whether the order which had been made should be set' aside or not. We think that he acted properly under the circumstances.

The court gave the following request to charge:

“The court instructs you that under the laws of this State the contestants to the will in this suit, or any of them, had the right to call Edgar Sparks to the stand as a witness and cross-examine him the same as if he had been called as a witness or taken the stand in his own behalf, and that when so called by the contestants they would not have been bound by his testimony as given. You are therefore further instructed that his failure to take the stand and testify in his own behalf raised no presumption against him or against any testimony that he might or might not have given”

—and refused to give the following of the contestants' requests to charge:

“Contestants request the court to charge the jury as follows: ‘It is the privilege and right of the proponent and all persons interested in this contest as heirs at law or legatees to take the stand and testify to such matters as are within their knowledge and involved in this case or connected therewith.
“ It is claimed on the part of the contestants of this will that that portion of the will making Edgar Sparks the residuary legatee thereof and giving him the greater portion of said estate was made by John Sparks, deceased, through the coercion, duress, threats, and undue influence of said Edgar Sparks, and testimony has been given you upon that subject which you have heard; and I charge you that Edgar Sparks had the right to take the stand in his own behalf and testify to such things within his knowledge as would refute or explain the testimony that has been offered and the charges made against him. He having failed to take the witness stand or make any explanation of the testimony offered and the charges made against him, this being a civil case, his silence and refusal to take the stand raises a strong presumption of the truth of such charges, and must be construed most strongly against him. Warren v. Holbrook, 95 Mich. 185 (54 N. W. 712, 35 Am. St. Rep. 554)."'

Testimony was admitted to show that Edgar Sparks was accused of many things, the purpose being to show the state of mind of his father toward him and the relations that existed between them. With reference to the refusal of the court to give the request presented, it should be borne in mind that, after the consent order excluding witnesses was made, it was announced that Edgar Sparks would not be offered as a witness by the proponent, and the opportunity was given contestants’ counsel to cross-examine him, if they so desired, which was not done; also that propor nent’s counsel claimed that his presence in court was necessary in order to enable them to consult with him during the progress of the trial, and that by his remaining, under the order of' the court, he could no longer be called to the witness stand without the consent of the contestants. Under these circumstances we do not think that the contestants should claim the benefit of the presumption arising from the failure of the legatee to take the stand, when by their action they foreclosed him from so doing.

Complaint is made to the charge of the court with reference to certain alleged statements of the testator, made in. the presence of some of the contestants. The court stated, in substance, that these statements of the testator were not admissible to show undue influence, but were admissible to show the effect that such undue influence had, if any, upon the testator in respect to the making of the will. In this the trial court seems to have followed the rule announced in Bush v. Delano, 113 Mich. 321 (71 N. W. 628), and Zibble v. Zibble, 131 Mich. 655 (92 N. W. 348).

It has not been made to appear that prejudicial error was committed by the court in the trial of this case, and we therefore affirm the judgment.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


source: Caselaw Access Project

author: Kuhn, C. J.

license: Public Domain

text:
    WILMARTH v. MICHIGAN UNITED TRACTION CO.
    1. Proximate Cause — Definition.
    Proximate cause is such, a cause as operates to produce particular consequences without the intervention of any independent unforeseen cause without which the injuries would not have occurred.
    2. Electricity — Animals — Liability for Injuries — Proximate Cause.
    The proximate cause of the death of horses killed during an electrical storm because of electricity communicated from a trolley wire to a wire fence along an electric railroad right of way was the failure for three months to repair a “pull off” wire, which, when in its proper place, ran. from the top of a line pole to the trolley wire over the center of the track, but the end of which had in some way become detached and fallen and become entangled with the fence, and the other end of which remained attached to the eye bolt of a span wire on the pole connected with the trolley wire by an insulated “hanger” or circuit breaker, which became charged during the storm, communicating electricity to the fence, and not the electrical storm, since the danger of charging the wire by an electrical storm was a danger which should have been foreseen and guarded against.
    Error to Ingham; Wiest, J.
    Submitted June 15, 1917.
    (Docket No. 56.)
    Decided September 27, 1917.
    Case by Hugh C. Wilmarth against the Michigan United Traction Company for the negligent killing of plaintiff’s horses. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Sanford W. Ladd (Charles E. Lewis and Warren, Cady, Ladd & Hill, of counsel), for appellant.

      L. B, Gardner and O. J. Hood, for appellee.
   Kuhn, C. J.

On August 13, 1914, three horses of the plaintiff’s were pastured in a field adjoining the electric line of the defendant company running between Owosso and Lansing. They were grazing in the field together with other stock of the plaintiff’s when a rainstorm came up during which there was more or less thunder and lightning, and when the storm had ended the horses in question were found lying against a wire fence separating the field from the defendant’s right of way. All were dead and were smoking, as well as a tree to which the fence was attached at this point, and continued to do so until a line crew arrived and cut a wire, one end of which was fastened.in some way to the wire fence about 40 rods from where the horses lay, and the other end of which ran to the top of one of defendant’s poles, where it formed a connection with a span wire running from pole to pole overhead across defendant’s track and supporting the trolley wire in the center. This wire running to the fence from the top of the pole had originally been installed as what is known as a “pull-off” wire, and when in its proper place ran from the top of the pole to the trolley wire over the center of the track; its purpose being to pull the trolley wire slightly towards the pole so as to adjust it to the curve of the road. The end of this pull-off wire attached to the trolley wire had in some way become detached and had fallen to the ground, where it became entangled, through accident or by some person, in the wire fence. The other end of the wire was connected by an eye bolt to the end of the span wire attached to the pole. The span wire was connected to the trolley wire by an insulated “hanger” or circuit breaker of a type in general use. After the storm this insulator was found to be “shot,” so that it no longer restrained' the current in the trolley wire which passed through the span wire, the fallen wire, and through the fence. When the line crew arrived shortly after the storm in response to a report of trouble, the fallen wire and the span wire to which it was connected were found hot and charged.’

It is the plaintiff’s theory of the case, and it was upon this theory that the case was submitted to the jury, that the defendant was negligent in allowing the pull-off wire to fall and remain there for such a length of time; that it should have been discovered in the exercise of ordinary care; and that the defendant had abundant time to remove it after the time in which it should have been discovered had passed. The evidence discloses that the wire had been in this position for a period of about three months prior to the accident. It also appears under the undisputed testimony that the insulated hanger or circuit breaker was of standard equipment sufficient to insulate for a current of 600 volts in the defendant’s line at the time in question, which voltage was the current which ran through the trolley wire necessary for the operation of the cars of the defendant. At the close of plaintiff’s proofs, and again at the-close of the case, a motion for a directed verdict was made in behalf of the defendant which was denied, and the case was submitted to the jury, resulting in a verdict of $595.76, upon which judgment was duly entered.

The assignments of error practically raise one question. It is the claim of the defendant that there was no actionable negligence on the part of the defendant in not removing the wire running from the pole to the fence, because the accident that really occurred could not have been anticipated, qs the proximate cause was the act of God, that the undisputed facts show the fallen pull-off wire was harmless as far as defendant’s current was concerned under ordinary and usual conditions, and that it was only the extraordinary accident that occurred during the electrical storm that rendered the wire a dangerous medium. In other words, it is the contention that the proximate cause of the death of the colts was the severe electrical storm, and not the failure to repair the pull-off wire.

The trial judge submitted to the jury these propositions: Whether or not under the circumstances of this case it was a negligent act on the part of the defendant to allow the pull-off wire to remain in the. condition that it was; whether or not such a reasonable time had elapsed as to bring notice to the defendant; and did the defendant, after it should have discovered it, have time in which to remedy it. We are of the opinion, that these questions were properly for the jury if it can be said that the alleged negligent act on the part of the defendant was the proximate cause of the damages suffered by the plaintiff. This brings up again the much-discussed and vexatious question of determining under the facts of any particular case what the proximate cause of a particular accident is. Can it be said that an electrical storm that destroyed the insulation on the circuit breaker attached to the wire was such a condition that it can be said the defendant should have anticipated it? In Detzur v. Brewing Co., 119 Mich. 282 (77 N. W. 948, 44 L. R. A. 500), the plaintiff was injured by the falling of a pane of glass from an upper window in the defendant’s building which stood close to the public street, and there was evidence tending to show that the pane of glass had been in such a condition as to render it likely that pieces would readily be shaken out. This court said:

“Counsel contend that, if the glass fell by means of its being dislodged by the wind, the negligence of the defendant was not the proximate cause of the injury, and they complain of a refusal to instruct the jury that in such event the plaintiff should not be allowed to recover. The negligence complained of is the maintenance of a window in such a condition that the glass was liable to fall out, not necessarily from its own weight, but under the natural conditions and strain to which it was likely to be subjected. It might not be negligent to leave a broken pane, if assurance could be given that it would be undisturbed by wind or by use. But wind is an everyday occurrence. It is a condition, not necessarily a cause, and one which should be taken into consideration before determining that a broken glass is not likely to fall. The wind may have been a concurring circumstance, but it cannot be said to have been the proximate cause, and the broken glass the remote cause.”

Again, in Morrison v. City of Ironwood, 189 Mich. 117 (155 N. W. 477), the plaintiff received her injuries by stepping into a ditch in, the public highway which had become filled with snow, and the question presented was whether the natural accumulation of snow caused by the snowstorm was the proximate cause of the accident. We there said:

‘ “Viewing the testimony as to the construction of the ditch in the light most favorable to the plaintiff’s claim, and taking into consideration the weather conditions prevalent in that part of the State at the time of year the accident occurred, we are of the opinion that the fall of snow was not such an independent, unforeseen cause which intervened between the claimed negligent act of the city in constructing the ditch as it did and the time of the injury that it can be' said to be the proximate cause of the accident, and that the city should have anticipated the possibility of the fall of snow, and that some injury might therefore result from having the ditch unprotected and uncovered.”

Here we have another action of the elements, and we do not think it unreasonable to say that in this climate the defendant should be held to the knowledge that electrical storms are very likely to occur and do the very damage that was done in this case. We are therefore of the opinion that the electrical storm cannot be said to be such an independent, unforeseen cause as to take it from under the rule laid down in the definition given in Stoll v. Laubengayer, 174 Mich. 701, (140 N. W. 532), where proximate cause is defined as:

“A proximate cause, in the law of negligence, is such a cause as operates to produce particular consequences without the intervention of any independent unforeseen cause without which the injuries would not have occurred. 21 Am. & Eng. Enc. Law (2d Ed.), p. 485.”

It follows also that the failure to repair the pull-oft wire can reasonably be said to be the immediate, efficient, and direct cause preceding the injury because the defendant, who was guilty of this first act of omission, might reasonably have anticipated the intervening cause as the natural and probable consequence of his own negligence. Persons must be held to know the ordinary operation of the forces of nature and to use proper means to avert danger, especially when they are dealing with electricity, which is an invisible and impalpable force, highly dangerous to life and property, and are therefore bound to exercise care in proportion to the danger involved. See Seith v. Electric Co., 24 L. R. A. (N. S.) 978, and note (241 Ill. 252, 89 N. E. 425, 132 Am. St. Rep. 204) ; Paducah, etc., Power Co. v. Parhman, 52 L. R. A. (N. S.) 587 (56 Ky. 197, 160 S. W. 931); Kruis v. Railway Co., 190 Mich. 105 (155 N. W. 742); Southwestern, etc., Telephone Co. v. Robinson, 50 Fed. 810 (1 C. C. A. 684, 16 L. R. A. 545).

We have carefully examined the charge of the court, and are satisfied that the issues involved were submitted with proper instructions, and that there is sufficient evidence of the alleged negligence of the defendant to support the verdict of the jury.

We find no error, and therefore affirm the judgment.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


author: Ostrander, J. Moore, J.

text:
    MILLER v. ACME WHITE LEAD & COLOR WORKS.
    Master and Servant — Workmen’s Compensation Act — Findings of, Industrial Accident Board — Evidence—Sufficiency.
    In. proceedings for compensation for the death of an employee under the workmen’s compensation act, evidence held, by a divided court, sufficient upon which to base the findings of the industrial accident board so as to not warrant the disturbing of their conclusion in favor of claimant.

    Certiorari to Industrial Accident Board.
    Submitted June 11, 1917.
    (Docket No. 20.)
    Decided September 27, 1917.
    Josephine Miller presented her claim for compensation against the Acme White Lead & Color Works for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Travelers’ Insurance Company, insurer, bring certiorari.
    Affirmed by a divided court.

      Vandeveer & Foster, for appellants.

      John Kaminski, for appellee.

       On coustruction and effect of Workmen’s Compensation Acts, generally, see notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.

   Ostrander, J.

As plaintiff in certiorari says, there is a single point involved in this case, and states the point as “whether or not the testimony was sufficient and legally competent to justify an award to the claimant by the committee on arbitration, and thereafter an affirmance of said award by the industrial accident board.”

Claimant’s decedent received an injury to his foot June 5, 1916, when a wagon wheel passed over it, or struck it. Such injury as he then received was accidental, and the injury arose out of and in the course of his employment. The nature and extent of the injury is, however, uncertain, growing out of the fact, I assume, that because counsel for the employer admitted there was an injury to the foot “as described in the report of the accident, and therefore they need produce no proof on that as there is no question about it,” more detailed evidence was not produced. The report was that a truck which he "had just finished loading, in turning around, backed over his foot, and the foot was bruised. On the other hand, the claimant, in giving notice to the employer, stated the nature of the injury as follows:

“Whilst loading company’s truck, the horses shied, and wheel of truck crushed his right foot.. Blood poisoning caused his heart failure.”

A physician who saw the injured man June 6th, 7th, and 8th testified that when he first saw him it was evident that first aid had been given to him. He did not examine the injury then. The second time, June 7th, he was complaining of distress in his chest and could not keep quiet, the foot was bothering him and pained him. Then he opened the bandage, and found that the foot “was bruised or crushed more or less.” Because he thought his heart was palpitating, and of other symptoms, he gave the patient digitalis and bromide. Among other subjective symptoms was delirium, which the doctor describes as “vague in his ideas and thoughts, and then, if you would call his attention to it, why, he was all right.” The record is not clear, but it is understood as meaning that the doctor found high blood pressure and some hardening of the arteries. On June 8th he advised him to go to a hospital, and he went to one, where he died June 16th. The doctor who saw him June 6th, 7th, and 8th never saw him again; except by hearsay knows nothing about the progress of the trouble, the death of the injured man, or the cause of death. It is upon the testimony of this physician that claimant must rely to support the conclusion of the board that claimant’s decedent died as a result of the injury.

Before examining it further, reference is made to the only other medical testimony in the case and the only other testimony which assumes to give details from which a conclusion as to the cause of death can be drawn. It is the testimony of the physician who performed the autopsy upon the direction of the coroner, and who never had seen the patient alive. He testified that the coroner told him to be careful in his examination because there was a history of an injury, and that “he may have died from injury.” He found, he says, a large bedsore on the dead man’s back, slight abrasion of the right elbow, the right foot discolored and swollen, and some abrasions of the right foot. Internally he found a hardened liver, hypertrophy of the heart and myocarditis, with a lesion of the mitral valve. He reported death from myocarditis. Describing conditions as he found them in greater detail, he said there was a thickening of the mitral valve, with discoloration, the muscle walls of the heart thin, and a fibroid change in the muscle, deposit of little white spots throughout the muscles of the heart, tending to weaken the heart muscle — conditions due to organic trouble. He described myocarditis as follows:

“Myocarditis is a condition of the heart which really means weakened condition of the heart muscle, usually found as a rule in patients past 40; comes on late in life. May be 'traceable to alcoholism, to hard work, and possibly to syphilis and acute infectious disease, whereby certain organisms are lodged in the heart muscle; sometimes due to valvular disease and hardening of the arteries; sometimes due to a hereditary condition. Sometimes we find families who develop hardening of the arteries very early in life, and that.condition very often causes myocarditis. Now, in myocarditis we have an injured heart, a flabby heart; the heart muscle thins, and a fibrous connective tissue is deposited in the muscles, in place of the muscle tissue, and thereby weakens the heart.”

He looked for and found no blood clots, and was unable, he.said, to trace the trouble from which the man died to the injury he received. Referring to the injury to the foot, he testified:

“Of course, there would be some change in the foot, because I didn’t see him until the 16th, and repair had evidently started to take place, and the foot was in a better condition then than it was when Dr. Jaeger first examined the condition. '
“Q. There undoubtedly was some pain to that foot?
“A. Yes.
“Q. There undoubtedly was some fever connected with it?
“A. It was possible.
“Q. Would those conditions have anything to do with weakening the condition of the heart; would it be apt to make it worse?
“A. As I said before, it might aggravate the condition a little.”
“Mr. Vandeveer: Would that be great or slight, Doctor?
“A. Oh, I would not say it would be very great.
“Q. Well, it wouldn’t need to be very great to kill a person if the heart was in bad shape, would it? Sometimes a slight aggravation there will—
“A. That is possible. A slight change might have produced his death.
“Q. A slight aggravation in. this case would have caused that, wouldn’t it?
“A- Possibly; yes, sir.”

The testimony of this witness was read over to, or was read by, the physician who first examined.the injured man, before which time he was told that myocarditis had been given as the cause of the patient's death. He had suggested as a cause of death an em-bolus, thrombus, blood clot, and suggested no other cause.' Upon that subject he gave considerable testimony. Some of it is here set out:

“If an embolus — in other words, I had better put that so you can understand it — an embolus is a clot of blood. For instance, if a clot of matter which may become dislodged from the source of the infection where the primary injury was may have been taken up into the blood stream, pass through the heart and into the coronary arteries, and become lodged in there, and in that way stop the flow of blood by blocking it up. It in itself would form an infection. Of course, there are other things that might cause myocarditis, such as syphilis and tuberculosis, but it is usually from some infected source.
“Q. Was this man suffering from syphilis or tuberculosis?
“A. No, sir; not that I could tell. I have no evidence of that.
“Q. Then the injury that Mr. Miller sustained would cause a thrombus?
“A. A thrombus would be— An embolus is a thrombus that is removed from the original source of infection.
“Q. An embolism is a floating thrombus?
“A. Yes, sir.
“Q. And you want us to understand that that is the reason for this myocarditis?
“A. Might possibly be the reason. •
“Q. Would you say it was in this case?
“A. As a matter of fact, that is for the man that made the autopsy. He could tell more about that than
I could. I didn’t see the heart after the autopsy.
“Q. Doctor, as to whether or not this myocarditis was produced as the result of some floating object in the veins, you cannot say?
“A. I am not positive of that.
“Q. No. Now, if you attempted to say it would simply be a guess upon your part, of course ?
“A. It would be a tentative diagnosis; yes, sir.
“Q. Yes. And not being present at the time the inquest was held a guess of that kind would simply be speculative on your part?
“A. Yes; that is speculative.
“Q. And the person who could testify more fully upon that point would be the person who performed the autopsy?
“A.*Yes, sir; taking into consideration the symptoms he had before.
“Q. Yes; if death was caused by the floating of a blood clot to that point, the autopsy would disclose it, would it not?
“A. It may not disclose the original source of the original embolus, but would show the effects of the embolus by blocking up the coronary arteries; in other words, there would be no blood supplied to that portion of the heart the embolus got caught in. This is, it caught; it was too large to go up into either one of the coronary arteries, and blocked up the opening, which left the muscles of the heart devoid of blood, and the heart stopped.
“Q. Does the drinking of alcoholic liquors ever produce a myocarditis condition?
“A. It might produce a chronic myocarditis.
“Q. And if it did that would be disclosed in the autopsy, would it not?
“A. Most likely.
“Q. Now, you say it closes off the supply of blood. The cause of 'this myocarditis, which might have been produced from several different causes, would have a tendency to lessen the supply of blood that went to the brain, would it not?
“A. Not in.this case; no, sir. It is only the coronary arteries, the arteries that feed the heart muscles direct, only the muscular structure of the heart, that was involved here.
“Q. Now, then, if the patient was suffering from a delirious condition, you would not say that that would be due to the fact that a blood clot had stopped the supply of blood to the brain, would you?
“A. It is possible.
“Q. Well, my understanding was that in this particular case, as you have testified, that if there was a blood clot at that point, it would not affect the supply of blood to the brain ?
“A. Well, I am not positive whether there was one blood clot or more than one. There may have been one lodged up in the brain, as far as I can state.
“Q. But if the myocarditis was due to drinking, would that produce a delirious condition?
“A. Well, that is something I don’t know much about. I never ran into a case of myocarditis that was produced by drinking. I have no knowledge of that fact. I would say, though, that myocarditis produced by drinking would be a chronic condition, and would involve the entire heart structure probably, and not only one section. That would be the way out of that.
“Q. You weren’t present at the autopsy, doctor?
“A. No, sir.
“Q. And you don’t know what it disclosed?
“A. I do not, excepting by hearsay.
“Q. And, of course, the autopsy would disclose the conditions that existed there at that time?
“A. It ought to; no question about that.
“Q. And you would place more reliance upon what the autopsy showed than what your opinion might be as to a time prior to the man’s death?
“A. I certainly would. The autopsy would be direct evidence of what caused his death. * * *
“Q. Doctor, when you treated him on the 7th, that is when he had the pain in his chest?
“A. Began to show on the 7th and 8th. I didñ’t discover that on the 6th.
“Q. Is it your view of it now, that that was caused by the embolus?
“A. I would consider it — considering the outcome of the case that is my opinion.
“Q. This is th^ only thing you can attribute it to?
“A. Yes, sir; considering the circumstances and the symptoms when he was alive.
“Chairman Reaves: Supposing a man had myocarditis, and he had an injury of this kind, would that aggravate it? Would the pain and the fever from a condition of this kind aggravate the myocarditis?
“A. I should think it certainly would aggravate almost any condition there, if he was not normal.
“Mr. Healey: Even if there was no embolus?
“A. Even so.
“Chairman Reaves: Then it seems to be your opinion that the injury was the proximate cause of death. Is that right?
“A. I would state that as my own opinion.
“Chairman Reaves: That is all.
“Mr. Vandeveer: But, of course, doctor, you have to speculate on a good many things as to that?
“A. I say it is my opinion, that is all.
“Mr. Vandeveer: Your opinion is of a speculative nature in that respect, is it not?
“A. Considering the facts, I should say that would cause it.
“Chairman Reaves: And you are basing your opinion on the facts as you know them.
“A. On the facts as I know them, and on what I heard from the autopsy. * * *
“Q. Doctor, that is the testimony that Dr. Brandt gave before the committee?
“A. Yes, sir.
“Q. And do your views coincide with his upon that?
“A. That is a pretty hard proposition. Some thin'gs they do, and in others they do not.
“Examined by Chairman Reaves:
“Q. Well, would you say, Doctor, after hearing the testimony of Dr. Brandt read to you, and from your own testimony, would you not from your own knowledge, would you say now that the injury was the proximate cause of death?
“A. In my opinion it was. * * * Of course, I might state here that no two physicians agree on everything. •
“Examined by Mr. Vandeveer:
“Q. Well, Dpctor, the person who performed the autopsy would be in a better position to judge as to the cause of death than the physician who was attending him, would he not?
“A. He has got the facts right there, but there was nothing in my examination that would have led me to believe he had myocarditis.
“Q. The examination of the organ would disclose that, would it not, doctor?
“A. In a way it would. There might be a number of things creep in there I am not acquainted with. Here is one thing Dr. Brandt did not state that an embolism of the coronary arteries would have produced this thing.
“Q. The testimony discloses that he found absolutely no blood clot.
“A. It isn’t necessary to have a blood clot. When a person dies, the right heart is usually filled with the blood clot.
“Mr. Healey: He said there was no sign of embolism.
“A. Well, myocarditis may be produced; he stated right in there that blood passing from one portion of the foot might possibly lodge in the heart, and cause myocarditis.
“Mr. Healey: If it did, it would not be an embolism.
A. It might be.
“Mr. Vandeveer: Doctor, could these results that Dr. Brandt discovered be produced in ten days’ time?
“A. Possibly. If the coronary artery was blocked up it doesn’t take long for a fibroid change to take place. The fibroid change often is simply a hardening; the muscular structure is destroyed; in other words, scar tissue gets in there.
“Mr. Vandeveer: Well, how about the thickening of the walls, doctor?
“A. That would be due to the fibroid condition.
“Mr. Vandeveer: You take the position that that could be caused in a period of ten days’ time?
“A. Oh, not entirely so. A fibroid condition might have existed there for some time previous.”

I have set out here the testimony most favorable, if any of it can be said to-be favorable, to the contention that death was the result of the injury. That it may have been, is not enough. It is true that Dr. Jaeger affirmatively gives the opinion that the injury was the proximate cause of the death. It is obvious, however, when all of his testimony is considered, that the opinion is an expression of his theory which is not sustained by facts. It may, indeed, be said that all proven facts negative his theory and dispute his opinion.

There is no evidence sustaining the award as made, and it should be set aside.

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

Moore, J.

I cannot agree with the conclusion reached by Justice Ostrander. Section 12, pt. 3, of the workmen’s compensation act (2 Comp. Laws 1915, § 5465), is as follows:

“The findings of fact made by said industrial accident board acting within its powers, shall, in the absence of fraud, be conclusive, but the Supreme Court shall have power to review questions of law involved in any final decision or determination of said industrial accident board.” * * *

We have construed this statute repeatedly. Some of the cases are Rayner v. Furniture Co., 180 Mich. 168 (146 N. W. 665, L. R. A. 1916A, 22, Am & Eng. Ann. Cas. 1916A, 386); Bayne v. Cartage Co., 181 Mich. 378 (148 N. W. 412) ; Reck v. Whittlesberger, 181 Mich. 463 (148 N. W. 247, Am. & Eng. Ann. Cas. 1916C, 771); Estate of Beckwith v. Spooner, 183 Mich. 323 (149 N. W. 971, Am. & Eng. Ann. Cas, 1916E, 886); Grove v. Paper Co., 184 Mich. 449 (151 N. W. 554); Spooner v. Detroit Saturday Night Co., 187 Mich. 125 (153 N. W. 657, L. R. A. 1916A, 17) ; Papinaw v. Railway Co., 189 Mich. 441 (155 N. W. 545); Linsteadt v. Lumber Co., 190 Mich. 451 (157 N. W. 64).

The record shows that Mr. Miller sustained a bad injury to his foot on June 5, 1916. A physician who attended him June 6th, 7th, and 8th advised him to go to a hospital, which advice he followed, dying there on June 16th. This doctor testified on the hearing that in his opinion the injury was the proximate cause of the death. He was still of that opinion after hearing the testimony offered on the part of the employer.

The vital question was one of fact. There was competent testimony upon which to base the findings of the industrial accident board, and we should not disturb their conclusion.

The judgment is affirmed, with costs to claimant.

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


author: Ostrander, J.

text:
    STOMBAUGH v. PEERLESS WIRE FENCE CO.
    Master and Servant — Workmen’s Compensation Act — Disease —Accident.
    The death of a servant due to the breaking of an auricle in his heart while he is engaged in unaccustomed, heavy lifting is the result of exercise and not of accident where deceased had suffered from chronic heart disease and the wall of the auricle which burst was in a thin condition and liable to break by exertion.

    Certiorari to Industrial Accident Board.
    Submitted June 14, 1917.
    (Docket No. 49.)
    Decided September 27, 1917.
    Florence Stombaugh presented her claim for compensation against the Peerless Wire Fence Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Employers’ Liability Assurance Corporation, insurer, bring certiorari.
    Reversed,' and award set aside.

      Frederick T. Witmire (Charles A. Wagner, of counsel), for appellants.

      Henry I. Bourns, for appellee.

       On construction and effect of workmen’s compensation acts generally, see comprehensive notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.

   Ostrander, J.

It was found by the industrial accident board that Edwin Stombaugh, on May 13, 1916—

“received an accidental injury, namely, rupture of the right auricle of the heart, arising out of and in the course of his employment, which produced death. That the work he was doing for respondents on the day and at the time of death was, to Mr. Stombaugh, heavy and hard work. That he was not used to this heavy work and exertion. That the work he was doing for respondents at the time of death, and prior thereto, required him to strain, lift, pull, and lower heavy rolls of wire weighing 150 to 160 pounds, from their place in the tier in the car, and at the time of death, about chest high, to the floor, and then roll them to the car door, a distance of about five feet, and into the chute.
“That this straining, lifting, pulling, and handling these heavy rolls of wire weighing 150 to 160 pounds on the average, together with the weakened and thinned condition of the wall of the heart, we are convinced, caused the wall to part and the rupture of the right auricle of Mr. Stombaugh’s heart and his death.”

All of the foregoing, taken from the opinion of the board, is sustained by some evidence, excepting only the conclusion that there was an accidental injury, which conclusion is wholly unsupported by evidence. The man died while doing the work he agreed to do, in the way he intended to do it. The exercise accounts for his death, and if he had been informed about the condition of his heart, he must have known that death was likely to result, at any time, from any considerable physical exercise. There is no evidence of mischance or miscalculation in what was being done, none of anything fortuitous or unexpected in the manner of doing it. There is undisputed evidence that he had a chronic trouble — disease—of the heart, of long standing, the wall of one auricle being so thin that “any exertion at all might have been the cause of its breaking.” Death was merely hastened by the exertion. The distinction between this case and Schroetke v. Jackson-Church Co., 193 Mich. 616 (160 N. W. 383), is clear. The case, however, cannot be distinguished from Van Gorder v. Motorcar Co., 195 Mich. 588 (162 N. W. 107), and

The award must be set aside.

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


text:
    BURY v. DETROIT UNITED RAILWAY.
    1. Carriers — Street Railways — Injuries to Passengers — Defective Roadbed — Evidence—Admissibility.
    In an action against a street railway to recover for the negligent death of a passenger due to the car, in the vestibule of which deceased was riding, colliding with a car on the opposite track which became derailed, evidence that it was the duty of the city to relay foundations for the track and that it had refused to do so was admissible to explain the condition of the roadbed.
    2. Same — Evidence—Sufficiency.
    Evidence held, insufficient to show such a condition of the roadbed as to warrant defendant in refusing to operate' cars because of the failure of the city to repair the foundations.
    3. Same — Defective Roadbeds — Notice—Liability.
    While a street railway is not responsible for the condition of its roadbed due to the failure of a city to make repairs' to the foundation it is chargeable with notice of such condition, and in the operation of its cars is required to exercise the care made necessary by conditions.
    4. Same — Operation of Cars — Degree of Care Required.
    The motormen of street cars approaching on opposite tracks, on which derailments have occurred, should govern their cars with reference to all known conditions which make for danger for the loads carried and each observe the other approaching car.
    5. Same — Evidence—Question for Jury.
    Evidence held, to present a question for the jury whether either or both cars in meeting were handled with the high degree of care required by known conditions.
    6. Same — Derailment of Car — Negligence—Evidence.
    Derailment of a car, in and of itself, is not evidence of negligence.
    7. Negligence — Res Ipsa Loquitur — Accidents.
    The inference of negligence is not to be drawn from the mere happening of an accident.

      8. Carriers — Street Railways — -Negugenoe—Evidence.
    If other circumstances, with the fact that an accident has occurred, give rise''to an inference of negligence, the inference may be rebutted by showing that the appliances of a street car are in proper condition and order, and that the servants of the carrier did all that a high degree of care required in the conduct of the business.

    9. Same.
    Evidence held, to support an inference of negligence of defendant street railway.
    Error to Wayne; Hosmer, J.
    Submitted June 19, 1917.
    (Docket No. 82.)
    Decided September 27, 1917.
    Case by Ludwicka Bury, administratrix of the estate of John Rusala, deceased, against" the Detroit United Railway for the negligent killing of plaintiff’s decedent. Judgment for defendant. Plaintiff brings error.
    Reversed.

      John H. Dohrman and William K. Campbell, for appellant.

      William G. Fitzpatrick, for appellee.

       As to presumption of negligence from injury to street car passenger, see notes in 15 L. R. A. 35; 13 L. R. A. (N. S.) 606; 29 L. R. A. (N. S.) 811.
      On liability of street railway company for defects in track or street, see notes in 52 L. R. A. 448; 15 L. R. A. (N. S.) 840; 17 L. R. A. (N. S.) 758.
      Generally as to applicability of rule res ipsa loquitor in an action for injury by a street car derailment, see note in 43 L. R. A. (N. S.) 598.

   Ostrander, J.

Plaintiff offered testimony tending to prove that her intestate boarded one of defendant’s south-bound cars running on Oakland avenue May 5, 1914, at about 6 o’clock a. m., at the corner of Holbrook avenue, and because the car was full was invited to, and did, with three others, go into and ride in the motorman’s vestibule. Four blocks farther south, at the corner of Philadelphia avenue, a north-bound car running on parallel tracks derailed and ran across the rails on which the said south-bound car was traveling, a collision resulted, many were hurt, and plaintiff’s. intestate died as a result of his injuries. The derailed ear had nearly, if not quite, lost momentum when it was struck by the car going south, but so close were the cars together that the driver of the south-bound car had time to do little, if anything, to stop his car.

It is alleged in plaintiff’s declaration to be a duly of defendant to refrain and desist from operating cars upon and along rails, tracks, and roadbed after having notice, knowledge, or information that they are not in a fit and safe condition for the passage of cars, and a breach of this duty is alleged to have occurred upon the occasion in question. It is alleged also that the cars were operated at too high a rate of speed, everything considered, and, specifically, it is alleged:

“That the said rate of speed was not only dangerous to the life and limbs of all the passengers on said car, but that said car or cars were thus carelessly, negligently, and rapidly run on and over a section of defendant’s said tracks at or near the intersection of Philadelphia avenue, as aforesaid, without being under proper control, as they should have been, and over a defective and insufficient track and over defective and insufficient rails, and over rails that were depressed and lowered in places, and bulged up in others, and over rails not properly spiked to the cross-ties, by reason of all of which acts of carelessness and negligence on the part of said defendant so done and committed, and without any fault or negligence on the part of this plaintiff’s decedent, a certain car of said defendant’s at the time and place aforesaid, being operated in a northerly direction on the said Fourteenth avenue line, upon and along Oakland avenue as aforesaid, was by said defendant, its agents, servants, and employees, so carelessly and negligently run, propelled, operated, and managed so as to throw and precipitate said car from the rails and tracks of said line, and to cause it to derail and leave the said tracks and precipitate itself with great force and violence upon and over the parallel, track of said defendant’s, upon said street, causing it thereby to violently collide with and strike. the car upon which this plaintiff’s decedent had so become a passenger, at the invitation and request of said defendant.”

The testimony tends to prove that from Euclid avénue, which is farther south than Philadelphia avenue, to the northern terminus at Woodland avenue, the roadbed in Oakland avenue was in poor condition. Defendant introduced, over objection, testimony tending to prove that it was, as between defendant and the city of Detroit, the duty of the city to relay the foundations for its tracks, and maintain such foundations, and that for three successive prior years defendant had notified the city authorities that the foundation under its tracks in the vicinity was defective and requested its repair and restoration, being itself ready and willing to relay its tracks. Over this defective roadbed it was safe, so defendant’s witnesses say, to operate the type of cars in use there (single-truck cars seating 28 people) at a rate of speed not exceeding 12 miles an hour — 10 to 12 miles an hour. Cars had derailed on this roadbed, on both tracks, rather frequently, six or seven times from October, 1912, to May 5, 1914, and within six or eight weeks before the accident one derailed within a distance of 120 feet south of the derail in question here and on the same track. Cars of the type described run over the wavy roadbed, acquired a considerable dipping and a swaying movement. Properly handled, and it seems that they can be steadied by the proper use of air, they could be operated over this defective roadbed safely at the rate of speed above indicated.

The movement of the south-bound car on the particular occasion was described by witnesses. It left its northern terminus at 5.55, and arrived at Philadelphia avenue and the place of collision at 5:59. It does not appear how many stops were made. It does appear that the car. started with a seated load, and acquired passengers as it proceeded until, when plaintiff and his companions boarded it, it' was crowded, and they were taken into the front vestibule. One of its passengers estimated the speed of the car at the moment preceding the collision at 25 miles an hour. The motorman who drove it was killed.

Witnesses fixed the speed of the north-bound car, which was carrying from 80 to 100 passengers, at no more than 10 miles an hour. Another witness, however, who was on the north-bound car, testified that the speed maintained on the bad track north of Euclid avenue was the same as that maintained on the good track. There was also testimony tending to prove:

That when the north-bound car “got past Euclid the car jumped up and down.” “She hit first in front and up in back, and then we stopped and ran into the other car. She made lots of noise; would go bang down there and hit the front and back.”

A witness testified that at the point where the wheels of the north-bound car left the track, as indicated by the impression on the pavement, there was a broken flange on one rail of the track. A wavy condition of the rails, the rails visibly not in alignment, nor in gauge, at about the place where the car left the track, is a condition testified to by a witness who was on the north-bound car.

Testimony for defendant tended to prove that no mark on the car wheel indicated that it had been in contact with the broken lip of the rail, and that the gauge of the rails on the north-bound track was good a very short time, a few hours, after the accident, and that it had been gauged the day previous and found to be in good condition.

Plaintiff had an adverse verdict, and complains here of:

(1) The rulings admitting evidence of the relation of the defendant and the city of Detroit with respect to the laying and maintaining of the roadbed for defendant’s tracks at the place in question.
(2) The charge of the court.
(3) The refusal of the court to give plaintiff’s request to charge No. 2, except as modified, refusal to give plaintiff’s request No. 3, refusal to give plaintiff’s request No. 4, except as modified.
(4) The refusal of the court to grant plaintiff’s motion for a new trial.

The requests to charge referred to are:

“(2) This duty of the defendant to plaintiff’s deceased was the duty by itself and its servants to do all that a high degree of care and prudence required it to do in and about the conduct of the business. This duty, I charge you, is not discharged by the defendant company by a showing on its part that some one else not connected with the contract of safe carriage between plaintiff’s deceased and the defendant was known to the defendant to be derelict in its duties (in this instance the city of Detroit), but that such duty of the defendant extended so far as to, if necessary, cease traffic over an admittedly dangerous and unsafe track.
“(3) I charge you in that regard that, if you find from the evidence in this case that the defendant knew or had notice or knowledge by the prior derailments of its cars upon that stretch of track described in the declaration as upon and along.Oakland avenue, and which by the evidence in the case is claimed to have been in a general bad condition for the whole distance to Woodland avenue, then it was the duty of the defendant to have found and repaired the place where the derailment occurred and plaintiff’s deceased was injured, and its failure to do so was negligence.
“ (4) I charge you that it is for you to consider the testimony of the plaintiff tending to show negligence in the operation of the car, by the defendant at the point of derailment, or immediately before; the testimony of the plaintiff that a piece of the groove or lip of the rail was broken out of the track at or near the place where the car left the track; the testimony of a varying and spreading track at this point in connection with the inference of negligence arising from the derailment itself, all of which is to be weighed by you with the testimony offered by the defendant, and your conclusion is to be arrived at from a consideration of all of this testimony.”

Not all of the points which are made under these heads demand elaboration and discussion. Some of them do.

Fairly interpreted, the declaration alleges not only that defendant negligently operated cars over a track, the condition of which required great care to be exercised in running cars, but it alleges also, inferentially at least, that defendant is itself responsible for the condition which made extreme care necessary and which even made it the duty of defendant to cease running cars. Unexplained, the evidence of the condition of the roadbed made a case against the defendant likely to affect a jury rather strongly. It is true generally, “Res inter alios acta ulteri nocere non debet,” but it happens here that the private arrangement of the city and the defendant explains just what defendant, in view of the issue tendered, had, I think, the right to have explained. It was not error to admit the testimony, and, while I think the second request to charge might properly have been given as preferred, it was not error to say to the jury, as was said, in substance, that the evidence in the case did not show such a condition of the roadbed as would warrant the defendant in refusing to operate cars.

While it was not responsible for the condition of the roadbed, defendant was chargeable with notice of that condition, and in the operation of its cars was bound to exercise the care made necessary by conditions. This idea was expressed in the charge when the court said:

“The duty of the defendant to the plaintiffs deceased, was a duty by itself and its servants to do all that a high degree of care and prudence required it to do in and about the conduct of the business. Now, you take that into consideration, gentlemen of the jury, with what you may find the condition of the track, and all I can say with reference to'that, having a public duty to operate its road under the ordinance as given by the common council whereby the city of Detroit became responsible for the foundation, it therefore became the duty of the defendant to operate its cars at such a rate of speed as would be consistent with safety, under the existing circumstances.”

’ But the court had already said, among other things, of defendant’s duty:

“What the law requires of it is that it shall furnish such service as existing conditions will permit, according to the practices of good railroading, and that, in so far as the jury believe from the evidence it was not responsible for the conditions under which its service was rendered, it should not be accountable for the failure due solely to such conditions.”

Immediately preceding this, the court had said that:

“The% defendant; under the law, is not bound to furnish a p'erfect service, nor is it an insurer of the safety of its passengers.”

Defendant consents that conditions made operation of cars in the locality relatively hazardous. It is doubtful if from the whole charge the jury would understand the rule to be that defendant’s care should measure up with the conditions presented, whether defendant was or was not responsible for the conditions.

I have already said, in effect, that the third request to charge was rightly refused. The fourth was not refused, although not given in the form preferred.

This instruction was given:

“I am asked to charge you that there is no evidence in this case which would justify the jury in finding the swaying of the north-bound car at any time before the derailment occurred was unusual in character, or was of such a nature as to be other than incidental to the operation of cars through the streets of the city, and that therefore the motorman of the south-bound car was under no obligation in any way to check or seek to control the speed of his car,' because of such swaying. Well, I think, gentlemen of the jury, that is so, unless you should find that the motorman of the car, under the existing circifmstances, should have seen—
“Mr. Fitzpatrick: Your honor recalls that the motorman of the south-bound car lost his life, he was killed, and the presumption of due care—
“The Court: I think that is so, gentlemen of the jury, and I therefore give it.”

It is a necessary inference to be drawn from the testimony of defendant’s witnesses that, it was,dangerous, if not reckless, conduct to drive a car over either of the tracks in either direction at a speed of 25 miles an hour. And it is obvious that the faster the south-bound car was driven the less possible would it be to stop it in a given distance. There was testimony that the car on which plaintiff’s decedent was riding was driven towards the north-bound passing car at a speed of 25 miles an hour. Independent of this testimony, it is inferable that it had been run, when moving, at a considerable rate of speed. What did a high degree of care for the safety of passengers on both cars require the motormen of cars passing in this neighborhood to do? And if, as testimony tends to prove, the north-bound car, with its heavy human load, was swaying, hitting at both ends, as it teetered on its single truck, what was the obvious duty of the driver of the south-bound car as it approached. and passed it? The learned trial judge had in mind, it is clear, an admonition for the jury, an admonition not given because counsel for defendant suggested an inapplicable rule, favorable, if applied, to the defendant, which the court appears to have followed.

Manifestly the true rule to be applied is that both motormen should have governed their cars with reference to all known conditions which made for danger to. the loads either carried, and manifestly the duty to observe the other approaching car was imperative.

Applying the rule, it was for the jury to say whether either or both cars in meeting were handled with the high degree of care demanded by known conditions. Every day cars were safely operated over the roadbed. The track was rough and wavy, if not otherwise out of order, but, if driven slowly enough cars could safely make the journey. Speed made danger. • In view of the danger of derailment of cars, the speed of either car in meeting and passing another car was matter of importance. And the court did more than once in the course of the charge advert to this fact, saying at one time:

“The defendant company was bound to operate a street railway oyer that track as it existed, but the question was whether they were bound — whether they should have used the speed under the circumstances they did use.”

In eliminating from consideration the speed of the south-bound car, this controlling question was answered, in part and as matter of law, by the court.

Derailment of a car, in and of itself, is not evidence of negligence. Felske v. Railway, 166 Mich. 367 (130 N. W. 676); Niedzinski v. Traction & Electric Co., 160 Mich. 517 (125 N. W. 409). The inference of negligence is not to be drawn from the mere fact of an accident. Sewell v. Railway, 158 Mich. 407 (123 N. W. 2). And if other circumstances, with the fact that an accident has occurred, give rise to an inference of negligence, the inference may be rebutted by showing appliances in proper condition and order, and that the servants of defendant did all that a high degree of care' and prudence required in the conduct of the business. Sewell v. Railway, supra; Rouston v. Railway, 151 Mich. 237 (115 N. W. 62); Dolph v. Railway Co., 149 Mich. 278 (112 N. W. 981).

It is my opinion that the testimony in this case supports an inference of the negligence of defendant which is within the allegations of the declaration, and that the jury was not clearly advised about the high degree of care and prudence required of defendant’s servants, and especially did not appreciate from any instruction given that the very condition of the roadbed for which the city was responsible might be found to measure the degree of care owed to plaintiff’s intestate.

•The judgment is reversed, and a new trial granted.

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


text:
    TRAVELERS’ INSURANCE CO. v. BENJAMIN DOUGLAS CO.
    Principal and Agent — Insurance—Payment oe Premium.
    Where an agent collects insurance premiums due two different insurance companies which he represented by taking a note payable for convenience to one of the companies without the knowledge of the other, and the note is discounted by the payee and applied, at the agent’s request, in liquidation of his personal account and the note is subsequently paid, there is a payment to both companies.
    Error to Wayne; Mandell, J.
    Submitted June 11, 1917.
    (Docket No. 36.)
    Decided September 27, 1917.
    Assumpsit in justice’s court by the Travelers’ Insurance Company against the Benjamin Douglas Company for the amount of premium on a policy of insurance. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Reversed.
    Campbell, Bulkley & Ledyard, for appellant.

      Vundeveer & Foster, for appellee.
   Ostrander, J.

The facts are stipulated, and, as stipulated, are:

“The Travelers’ Insurance Company, plaintiff herein, through its duly authorized agent, George J. Haller, insured the Benjamin Douglas Company, defendant herein, on a contractor’s and employer's liability and compensation policy. Haller acted as agent for the Travelers’ Insurance Company, with all of the usual powers of soliciting insurance, collecting premiums, etc., and at the same time he represented other insurance and bonding companies, acting in the capacity of agent for some, and in the capacity of broker for others, carrying on a general insurance business. At the time when the facts occurred which caused this present controversy, Haller had desk room in the office of the Wolverine Insurance Agency, doing brokerage work for them; there were open accounts running between them. The Benjamin Douglas Company placed a construction bond with the Wolverine Insurance Agency through Haller.
“At some time subsequent to the taking out of the insurance policy in the Travelers’ Insurance Company $250 became due from the Benjamin Douglas Company as premium thereon. At the same time a premium of $265 became due on the Wolverine bond. Owing to a temporary financial embarrassment, Benjamin Douglas Company could not pay the cash covering the premium to Haller, as it had done at times before, but offered to give its six months’ note. Haller agreed to accept a note for $515 covering both the insurance and the bond premiums. The note was executed, discounted at the bank, and has subsequently been paid.
“At the request and direction of Haller, the note was made payable to the Wolverine Insurance Agency upon Haller’s representations that such procedure would facilitate its discount. It was actually discounted by the Wolverine Insurance Agency and the cash received by it. At Haller’s direction, the amount was a credit to him. It was the understanding between Haller- and Benjamin Douglas Company that the note was to discharge both debts; in other words, Haller was to credit the Benjamin Douglas Company with $265 on the books of the Wolverine Insurance Company, and with $250 on the books of the Travelers’ Insurance Company. This Haller did not do, but. instead turned the proceeds- of the note over to the Wolverine Insurance Agency to discharge a personal debt due 'from him to the latter. Later he defaulted and absconded. Inasmuch as he was indebted to the Wolverine Insurance Agency to a considerable amount, the moneys which the note represented were retained by it to offset that indebtedness, and the Benjamin Douglas Company never received credit for the $250 @n the books of the Travelers’ Insurance Company.
“None of these matters, however, was referred to the office of the Travelers’ Insurance Company for approval. The Travelers’ Insurance Company office did not know for some time that the Benjamin Douglas Company had given its note for the premium, and neither knew nor approved the manner in which it was made out, nor did it know that the discounted amount had been appropriated,; until Haller absconded, embezzling both these and other moneys due the Travelers’ Insurance Company. Immediately upon discovering the embezzlement, the Travelers’ Insurance Company made claim both against the Wolverine Insurance Agency, and directly against Benjamin Douglas Company. The former claim was dropped; the latter constitutes the case at bar.”

Judgment went for plaintiff as upon a directed verdict, and it is assigned as error that:

“(1) The court erred in directing a verdict for the plaintiff.
_ “ (2) The court erred in holding that under the circumstances the giving of a note to Haller, payable to the Wolverine Insurance Agency, was not in law payment to the Travelers’ Insurance Company by the Benjamin Douglas Company.
“(3) The court erred in holding that the Travelers’ Insurance Company never received, directly by itself, or through its agent, Haller, the payment of the indebtedness due from the Benjamin Douglas Company to it.”

Propositions advanced by the appellant are:

(1) Haller was agent of the plaintiffand not of the assured.

(2) As agent of the plaintiff, he had power to extend credit for the payment of policy premiums.

(3) Payment to Haller was payment to the plaintiff.

As to the first proposition, appellee admits that Haller was agent for the plaintiff for the purposes of selling insurance, collecting premiums, etc., with the usual and customary powers of an insurance agent. The second proposition is admitted. It is said:

That the third proposition would be true “as to the case at bar if Haller had actually received payment. * * * It is upon the fact that Haller did not receive payment that the plaintiff contends that the judgment below in its favor was a proper one.”

Appellee would agree — does agree — that if defendant had at one time paid to Haller cash for both premiums, plaintiff could not recover, and I assume would not think it mattered if payment was made in five bills of $100 denomination and $15 in another form, although obviously it would in that case be necessary to change a bill in order to properly divide the money. Defendant did not pay with money, but with a note, and afterwards paid the note. It is stipulated that upon discounting the note the amount received was “at Haller’s direction” credited to him (Haller) by the payee of the note. The necessary inference is that Haller in fact controlled the application of the money and expressly made disposition of it. Obviously Haller, to the point where he directed the disposition of the money, acted as the agent for the plaintiff. His method, irregular or otherwise, produced the money, without in any manner involving the plaintiff. The money was plaintiff’s money, in the control of its agent, who, it is said, misapplied it.

In suing defendant for the money, plaintiff necessarily proceeds upon the theory that the policy remained in force, and that the premium was due and unpaid.

The judgment is reversed, with costs to appellant.

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


text:
    WRAY v. TILDEN SAW CO.
    1. Corporations — Officers—Powers—Waiver—Presumptions,
    It will not be assumed that a corporation’s president had authority to contract to pay for unearned wages or to waive performance of the contract by an officer.
    2. Same — Officers—Salary—Right to Recover.
    In an action by an officer of a corporation to recover on a contract for wages earned, where the defendant did not so arrange or force matters that plaintiff was admitted to earn his salary, the result was the same as if defendant had denied plaintiff opportunity to perform the contract, and, even if the contract was for a fixed period, plaintiff could not recover wages as such by a showing that he stood ready to perform, since defendant had the right to terminate the contract at any time.
    3. Same.
    Where plaintiff did not perform any service he did not earn any ,salary which could be recovered, and it is immaterial that defendant secured a decree restraining certain persons from in any manner interfering with the management of the business by plaintiff as manager.
    Error to Wayne; Hosmer, J.
    Submitted June 11, 1917.
    (Docket No. 35.)
    Decided September 27, 1917.
    Assumpsit by Norman F. Wray against the Tilden Saw Company for salary earned. Judgment for plaintiff'on a directed verdict. Defendant brings error.
    Reversed.

      McNamara & Scallen, for appellant.

      Welsh, De Foe & Kahn, for appellee.
    The evidence was undisputed, none being introduced by defendant, both sides asked the court to direct a verdict, and one was directed for the plaintiff. No requests to charge were proposed.
    The appellant states the facts as follows:
    “This is an action in assumpsit for salary earned. Defendant is a Michigan corporation. At a regular meeting of its board of directors held May 12, 1913, a resolution was adopted by the terms of which two of the directors, Charles D. Todd, the president of the corporation, and James T. Currie, its secretary, were empowered to employ the plaintiff or some other suitable person to act as general manager of the defendant at a salary not to exceed $50 per week, Until such time as the board of directors deemed it advisable to remove him.
    “Pursuant to this authority, Mr. Todd and Mr. Currie employed plaintiff at a salary of $50 per week. Nothing was said to plaintiff as to how long his employment was to continue. Plaintiff entered upon his said employment, and continued to act as general manager until the night of September 15, 1913. At that time Mr. Currie informed him that they did not want him any longer, and that he should get out — that he was fired. Plaintiff saw Mr. Todd the same evening, and in company with him went to the plant on the following morning, and was again refused admittance. On the following day he sent a letter to the defendant by registered mail (Exhibit 7), in which he stated that he was then, and would be at any time, ready to assume any part of the agreement. _ Within a day or two after that Mr. Todd told the plaintiff that he was still manager and to hold himself in readiness and to. be ready to go down there at any time. It does not appear that any other officers or.stockholders ever told plaintiff anything of the sort. Plaintiff never did any work after that for defendant and never went near the factory after the morning of September 16, 1913, when he was told to get out by Mr. Currie.
    “Immediately after these events, on September 19, 1913, a bill of complaint was filed in the Wayne circuit court, by the defendant herein, Tilden Saw Company, and all of its stockholders except Mr. Currie and his son, Jay Currie, who were made defendants, alleging that plaintiff herein had been wrongfully excluded, that such exclusion was menacing the best interests of the corporation, and asking that the defendants be restrained by injunction from interfering with the management of the corporation by said Norman Wray. On the same date a petition for a temporary injunction was filed (Exhibit 3), in which temporary relief of the same nature was prayed, an order to show cause was issued thereon, and a hearing had before Judge Mandell on October 10th, at which it was ordered, adjudged, and decreed:
    “ ‘That the motion of complainants for a temporary injunction be granted, and that the defendants, their agents and attorneys, be, and the same are hereby, restrained and enjoined until the further order of this court from * * * discharging'any of its (Tilden Saw Company’s) agents, office force, or other employees who have supervisory capacity, without applying to court, with immediate notice to complainant’s solicitor.’
    “The suit was heard by Judge Codd, and on June 1, 1914, a decree was entered which provided, in substance, that Norman Wray was properly appointed general manager by the board of directors, and that he had never been discharged, and perpetually enjoining defendants:

      “ ‘from, interfering in any form or manner whatsoever with the management of the business affairs of the corporation by said Norman Wray while he remains such manager, except in so far as they may have the right as two of the four members of the board of directors, while they are such members, to participate in any action which a majority of the board of directors may take regarding such management.’
    _ “Plaintiff did not report for duty or offer to resume his duties either after the issuing of the temporary injunction or after the decree, and never did a day’s work for defendant after the time he was excluded by Mr. Currie.
    “On January 6, 1915, plaintiff commenced this suit, and by a special count in his amended declaration sets up that he was regularly appointed general manager of defendant and performed his duties as such until September 20, 1913, on which date certain officers of defendant refused him access to its plant and prohibited and prevented him from performing his said duties as general manager and from participating in its affairs, but that his employment had not been legally terminated, and that he has at all times been ready and willing to act and to perform his duties as general manager, and that by reason thereof there is now due him his salary as such general manager, less what he has earned in the meantime.”
    It should be added that finally, in September, 1914, the Curries bought the stock of other stockholders, ending controversies, large and small, which existed among officers and stockholders.
    Appellant states the questions involved and the manner in which they were raised as follows:
    “(1) The direction of the court that the plaintiff holding himself in readiness and awaiting orders was in itself a service for which he was entitled to recover.
    • “ (2) That it was error not to instruct the jury that the failure of plaintiff to offer his services when clothed with power to perform them by injunction of the court bars his recovery.
    “(3) That it was error to refuse to permit defendant to give evidence of the incompetency of plaintiff.

      “(4) That it was error not to instruct that Mr. Currie’s action had been ratified, and that the ratification related back so as to discharge plaintiff in September, 1913.”
    Plaintiff and appellee says:
    “Counsel’s whole argument under the first subdivision of their brief is based on the erroneous assumption that plaintiff’s right of action arises from a breach of a contract by one of the parties thereto.
    “If the plaintiff had been prevented from performing by the act of the defendant, then counsel’s position would be well taken, and this action would be for a breach of the contract. We could not sue for a breach of the contract under the facts in this case, however, because there was no breach by the defendant. Whatever Mr. Currie did was without authority, as determined by Judge Codd, and was not the act of the defendant. The defendant could not be held liable for a wrong which it did not commit. The contract was not terminated or breached by either of the par-' ties thereto, both of whom, affirming the continuance of the relation of employer and employee, joined in an action to restrain a third party (Mr. Currie) from interfering with that contractual relation.
    “The fact that plaintiff, during this, period, rendered but little, if any, actual service to the company, was no fault of his and no fault of the defendant or the majority of its stockholders.. Plaintiff therefore had no right of action for a breach of the contract by the defendant, because the defendant never breached the contract. He was told by the defendant that he was still its general manager, and the court so held in the suit referred to. He held himself in readiness to do, and did whatever was required of him. If he was the general manager of the defendant, as held by Judge Codd, and this finding is not disputed in this suit, then the relation of employer and employee continued, and plaintiff was entitled to the wages stipulated in the contract of employment.”
   Ostrander, J.

(after stating the facts). The contract of the parties was terminable at the will of either. Plaintiff was performing it when performance was interrupted. He was paid for all services rendered. He seeks in this action to recover his contract salary, as salary, for an indefinite period, during which he performed no service. His theory is that the interruption was without defendant’s fault or his fault, and effected no change in the relation of the contracting parties. According to this theory the contract is still in force and the salary running on, since it does not appear that the directors of defendant have, by formal action, terminated it, nor that plaintiff is not now standing ready to perform services when called upon to do so.

Manifestly plaintiff’s theory must include the idea that defendant is free from fault, since defendant had the right to terminate the contract at any time. The interruption was sufficient to prevent plaintiff from earning his salary, since, he says, it prevented him from rendering the contract consideration for his salary, which was his services.

There is a suggestion, rather than a claim, or contention, presented to the effect that the president of defendant made with plaintiff some ad interim, arrangement, or bargain, to the effect that he was to be at the call of defendant. It will not be assumed that defendant’s president had authority to contract to pay for unearned wages or to waive performance of the contract by plaintiff. Decisions to which our attention is directed are none of them decisive of the question which is presented. See Howard v. Daly, 61 N. Y. 362 (19 Am. Rep. 285); Olmstead v. Bach & Son, 22 L. R. A. 74 (78 Md. 132, 27 Atl. 501, 44 Am. St. Rep. 273) ; Keedy v. Long, 71 Md. 385 (18 Atl. 704, 5 L. R. A. 759); Granger v. Brewing Co., 25 Misc. Rep. 701, 55 N. Y. Supp. 695; Kennedy v. Lumber Co., 102 Wis. 284 (78 N. W. 567); James v. Allen County, 44 Ohio St. 226 (6 N. E. 246, 58 Am. Rep. 821).

I conceive that, so far as the controlling principle is concerned, the case is not different from one where plaintiff was prevented by. the defendant from earning his wages. It is clear that the defendant did not so arrange or so force matters that plaintiff was admitted to earn his salary. The result was the same as if defendant had denied plaintiff opportunity to perform the contract. In such a case, even if the contract was for a fixed period, plaintiff could not recover wages, as such, by a showing that he stood ready to perform. To this effect is the modem law in England and in this country, as the cases cited show.

■ It is true that defendant, in an effort to compel recognition of plaintiff and enable him to earn his salary, secured a decree of the chancellor restraining certain persons from interfering in any form or manner with the management of the business affairs of the defendant by plaintiff while he remained such manager, reciting, too, that at “the date hereof” (the date of the decree, June 1, 1914) plaintiff “is” the general manager of defendant. It remains that, either because he never thereafter undertook to manage the affairs of defendant, or for some other reason, plaintiff did not perform any service, earned no salary.

The judgment is reversed, with costs to appellant.

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


text:
    CAMPAU v. BOARD OF WAYNE COUNTY AUDITORS.
    Municipal Corporations — Plats, Approval of — Statutes.
    Under Act No. 251, Pub. Acts 1915 (1 Comp. Laws 1915, g 3350 et seq.), mandamus will issue to compel the approval of a proposed plat by a board of county auditors, where such plat conforms to streets and alleys of adjoining plats and does not interfere with any general plan for streets and is disapproved by the board because relator has not provided for, and has refused to provide for, a certain street across his land.
    Certiorari to Wayne; Sharpe, J., presiding.
    Submitted June 12, 1917.
    (Calendar No. 27,797.)
    Decided September 27, 1917.
    Mandamus by Daniel J. Campau to compel the board of county auditors of Wayne county to approve a plat. From an order denying the writ, plaintiff brings certiorari.
    Reversed, and writ granted.

      Moore & Moore (Otto Kirchner, of counsel), for plaintiff.

      Charles H. Jasnowski, Prosecuting Attorney, and Paul W. Voorhies, Assistant Prosecuting Attorney, for defendant.
   Ostrander, J.

Plaintiff seeks to compel the defendant to approve a plat. The court below refused the writ of mandamus. The proposed plat conforms to the streets and alleys of adjoining plats. It does not interfere with any general plan for streets. It was disapproved because plaintiff had not provided for, and would not provide for, a certain street across his land.

The governing statute is Act No. 251, Public Acts of 1915 (1 Comp. Laws 1915, § 3350 et seq.). Plaintiff is entitled to an approval, and the judgment must be reversed and one entered to this effect. Campau v. Board of Public Works, 86 Mich. 372 (49 N. W. 39) ; Van Husan v. Heames, 91 Mich. 519 (52 N. W. 18); Owen v. Moreland, 132 Mich. 477 (93 N. W. 1068).

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