author: Steers, C. J. Ostrander, J.

text:
    GLASSBROOK v. LANSING WHEELBARROW CO.
    1. Master and Servant — Negligence—Personal Injuries.
    Testimony that defendant failed to supply customary safeguards for the gearing of its rattlers and to furnish loose pulleys to' throw the power off, and that the safeguards could easily and inexpensively have been provided, making it unnecessary for an employee to climb on a barrel to put on a heavy belt by hand, tended to establish negligence, under Act No. 285, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 4025).
    2. Same — Contributory Negligence — Promise to Repair.
    Taking the facts as presented by plaintiff’s witnesses as true, where plaintiff testified that he did not know of any rule against putting belts on running pulleys, and had been instructed how to püt the belts on the rattlers when the machinery was in operation, and had so done for several months, that'having become familiar with the . danger, he purposed to quit unless the difficulty was . obviated, and complained to his foreman who advised him to go ahead, be careful, and use all precautions, and the defects would soon be corrected, he was justified in putting on the belt as he had been instructed to do, and was not chargeable with contributory negligence as matter of law, nor did the directions amount to a change or revocation of his previous instructions.

    3. Same.
    Whether the, danger was so imminent that no prudent person would undertake to perform the service, was a question of fact: knowledge of the danger was not conclusive evidence of want of care on plaintiff’s part.
    4. Same — Trial—Argument—Contributory Negligence.
    Argument of plaintiff’s counsel to the effect that a working man was entitled to wear mittens while he. was putting on the belt, if counsel for defendant and himself could wear fur wraps and gloves on the street, — being outside the record, — with other remarks tending to enhance the damages and improperly criticising expert testimony introduced by - defendant, was prejudicial and erroneous, where the verdict rendered was large in amount, over $6,500, and where the court in his charge instructed the jury to decide the matter “as it actually affects you.”
    Error to Ingham; Collingwood, J.
    Submitted April 9, 1913.
    (Docket No. 21.)
    Decided September 30, 1913.
    Case by Ellis Glassbrook against the Lansing Wheelbarrow Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Bollin H. Person (C. W. Nichols and Harry A. Silsbee, of counsel), for appellant.

      Gardner & Hood (C. P. Black, of counsel), for appellee.

       On the question of attempting dangerous work in obedience to orders, without fully appreciating the danger, see note in 4 L. R. A. (N. S.) 838. The question whether servant’s assumption of risk in continuance of work after promise is contributory negligence, as matter of law, is treated in a note in 40 L. R. A. 786. And for effect of promise where danger is great and imminent, see note in 29 L. R. A. (N. S.) 598.

   Steers, C. J.

This case comes here by writ of error to review a verdict and judgment obtained by plaintiff on a second trial, in the circuit court for the county of Ingham, wherein he was awarded $6,500 damages for permanent injuries to his right forearm; that member having been drawn between a belt which he was adjusting and its pulley.

Defendant is a manufacturing corporation organized under the laws of the State of Michigan; its business being the manufacture of wheelbarrows, trucks, and various other articles, for which purpose it owned and operated an extensive plant in the city of Lansing, Mich., equipped with power and machinery. As part of its outfit it operated a foundry, woodwork shop, steam boilers, engines, machines, shafts, belts,' pulleys, and appliances, and used steam and electricity as motive power. In connection with its foundry it had and used a rattling room 8x20 feet in size, in which were located .two rattlers, separated by a board partition runhing north and south, which divided the space about equally between the two.

A “rattler” is a mechanical device of about one ton weight, driven by power; its object being to smooth and free metal castings from adhering molding sand. This is 'accomplished by putting the rough castings into a cylinder about 2% feet in diameter and 6 or 8 feet in length, formed of heavy metal slats or staves, fastened at the ends to flat circular metal heads, and revolving the same rapidly. Plaintiff, when injured, was in defendant’s employ, operating said rattlers.

Plaintiff was 40 years of age at the time of his injury and had been intermittently in the employ of defendant and its predecessors in the same business for about six years, during which time he did various kinds of work, süch as putting up scrapers and working on different kinds of trucks, wheelbarrows, and spring tooth harrows, also operating at different times both a punch press and a drill press. After six years of such work he spent some two years on his own farm, returning to the wheelbarrow company in October, 1908. He was put at work on the “rattlers” in question, at which employment he continued until his injury on January 6, 1909.

To the outer side of each metal head of these rattlers was firmly attached a short metal shaft, or axle, one foot in length; said axle passing through wooden boxes which supported the rattler in a horizontal position three feet above the ground, there being no other floor. The two rattlers were set in a row lengthwise, practically east and west in the rattling room. One axle attached to each rattler was connected by a pinion wheel to a countershaft at the south side of and a little behind each. Both counter-shafts were provided with a tight pulley and connected by a 9-inch leather belt with a corresponding tight pulley on a line shaft which passed through the rattling room in an easterly and westerly direction, and were, supported by boxing at a height of 8 feet above the ground, a little to the north and 8 or 9 feet from the countershaft. The pulley on the line shaft and the belt connecting the same with the counter-shaft were above and in close proximity to the pinion wheels. The line shaft which operated the rattlers was propelled by an electric motor in the cupola room, close to the wall separating that room from the rattling room; the motor was stopped and started by a rheostat upon which was a little lever, pushed from one notch to another in applying or taking off the power. The line shaft, as a rule, ran continuously, and the rattlers were stopped and started from time to time as they were loaded and unloaded; it only taking about an hour to put through a charge of castings. The rattlers only ran when connected to the line shaft by the belting referred to, and this was put on and off as occasion demanded. The belting could be, and generally was, put upon the pulley while the line shaft was in motion. In order to reach and make this connection, whether the shaft was in motion or not, it was necessary to climb up from the floor upon something, and a heavy oak kerosene barrel was kept on hand for that purpose, which always stood in such a position underneath the shaft that a man standing upon it could with his hands put the belt upon the pulley. It was while doing this that plaintiff was injured. His duties as an operator of the rattler consisted largely in filling and emptying the same; about a ton of new castings being put into the rattler at a time, shut in by a wooden cover to prevent spilling when in motion. It was necessary for the rattler to be stopped while being loaded, and each time it was started the belt had to be adjusted to the pulley on the line shaft.

Plaintiff’s declaration, consisting of two counts, charges defendant with negligence in failing to provide loose pulleys for the shafts and countershafts operating the rattler, and in not providing the gearing with proper safeguards, as required by statute; in providing an old, spliced belt with wire lacing which at times formed hooks, as it became worn and broken, which were liable to catch the hands or clothing; that the wooden boxings of the axle of the rattler, to which was attached the pinion wheel connecting the rattler with the countershaft, had been allowed to become worn or loose and the axle or shaft to settle, so that plaintiff was required to greatly exert his strength in putting the belt on the pulley; in not providing plaintiff with a safe place in which to perform his work, nor proper and suitable tools and appliances, furnishing him only a barrel to stand upon when putting the belt on the pulley, which was rendered more difficult by reason of sagging of the shaft, the barrel being unstable and liable to tip over and throw the plaintiff into the gearing. It is also alleged that plaintiff complained of the machinery being out of repair, and the place unsafe, to defendant’s superintendent, who promised to remedy the same but failed to do so before plaintiff was injured; that while plaintiff, in the performance of his duties, was standing upon the barrel endeavoring to place the belt upon the tight pulley on the line shaft while the same was ^ running, as he had been instructed to do, the wire hooks formed by the broken splicing caught the mitten upon his right hand, it being necessary to wear mittens owing to the weather being extremely cold, and, in jerking away to free his hand and avoid being thrown upon the pinion wheels, the barrel tipped, causing him to fall in such manner that his right forearm was drawn between the belt and pulley and crushed. Defendant pleaded the general issue.

The errors alleged and relied on, and the propositions contended for by defendant in its brief, are, generally stated, that plaintiff was guilty of contributory negligence as a matter of law, and the court erred in not directing a verdict for defendant under the undisputed facts; that there is a fatal variance between material allegations in the declaration and plaintiff’s own testimony; that various statements were made and language was used by counsel for plaintiff in their argument which amounted to prejudicial and reversible error; that the court erroneously refused certain of defendant’s requests and erroneously gave certain instructions as to contributory negligence and the rules by which the jury should be governed in weighing evidence.

The rattlers were old and had been in use for many years. That safeguards were not provided for the gearings, nor loose pulleys for the shafting, to throw the power on and off, is not disputed. Defendant’s own witnesses testify that dead or loose pulleys for applying and throwing off the power could have been easily and inexpensively provided. That this would avoid the time, labor, and risk involved in climbing upon a barrel to put on by hand what defendant’s witnesses say was a heavy belt is undisputed. The reason given by defendant for not doing so is that it would be impractical as the sand would wear out the loose pulleys. Section 15, Act No. 285, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §4025), provides:

“All gearing or belting shall be provided with proper safeguards, and whenever possible machinery shall be provided with loose pulleys.”

According to his own testimony, plaintiff knew the dangers and was sufficiently familiar with the machinery to understand just what should be done to make it safer. He testified that, about two weeks, and not more than a month, before the accident, he went to the superintendent of the plant and made complaint of what he regarded as avoidable dangerous conditions, pointing out that the gearing was unguarded; that, instead of getting up on a barrel and lifting the belt to put it on by hand, loose pulleys should be provided, as a matter of convenience and safety; that he also stated the boxings and pinions were worn so that the machinery sagged, making it more difficult to put on the belt, which was spliced and more dangerous to handle, and said that if safeguards were not provided as he suggested and the rattlers were not fixed up he would quit; that the superintendent then promised to put on loose pulleys and make the other repairs as soon as the repair man finished a job he was then on, and requested plaintiff to continue with his work in the meantime, to be careful and use all possible precautions and do the best he could, in view of which promise plaintiff consented to remain. This is denied by the superintendent, who testified that no such complaints were ever made, and that there was no conversation on that subject between them. Plaintiff continued with the work until his injury, with knowledge of existing dangers and the risks involved, according to his own testimony. !<

It is plaintiff’s claim and testimony that when he began work on the rattlers he was shown, by an experienced employee called for that purpose by the foreman, how to operate the machinery and do his work, and was instructed to put on the belt while the pulley was running in exactly the manner he was attempting to follow when injured; that he had later been reprimanded by the superintendent for having the motor stopped and started to put on the belt; that after he was instructed at the time he commenced work, which was the first time he ever saw a rattler operated, he put the belt off and on both rattlers “an average of about six times a day,” and the pulley was rarely stopped for that purpose; that he was not only instructed to put the belt on while the pulley was running, but the foreman and superintendent saw him at his work and were familiar with his manner of doing it. This is denied, and defendant’s evidence, by those who instructed plaintiff and worked over and with him, is that he was instructed not to put the belt on a running pulley but to always have the man in charge of the motor stop the machinery for that purpose; and that such was a general and well-known rule of the plant.

The weather was severely cold the day plaintiff was injured, and it was necessary for him to wear mittens at his work. He had them on when injured. This is charged as contributory negligence. Various witnesses who had worked around machinery and put on and off belts, or had seen it done, testified conflictingly on this subject. Some testified that it was improper, dangerous, and an increased risk to put a belt on running machinery with mittened hands; others testified that it was as safe or safer to use mittens, such as plaintiff wore, when putting on a belt, as they prevented the hands from being “burned” or injured; that if, by mishap, anything was caught, the mittens would catch first and, being loose, would readily slip off and save the hands.

No one else was present when plaintiff was injured. The appliances and conditions were the same as they always had been while hé was engaged in that employment and daily putting the belt on and off without accident, except, as he testified, the machinery was getting older and worse from day to day, and it was an exceedingly cold morning. He stated if it was a cold morning the belt would slip. A model of the machine was present at the trial. His testimony, as it appears in the printed ' record, indicates that he referred to this model and with it illustrated the accident when giving his evidence before the jury. The material parts of his direct testimony on the subject are as follows:

“When I got hurt I was putting on the belt after I had filled the rattlers. The belt that he told me to stop monkeying with propelled the machinery, stopped and started it. * * * When I got hurt I got up on the barrel to put the belt on, and I tried two or three times, I think, to put it on. I would have to get the pieces of the belt over here back again and sometimes it would run off of that large pulley below, and then I would have to get down and put it on over again and then get back up on there again and try to push it up there again, and I finally succeeded in putting it on and during the time the lace catched my mitten, I think, and I kind of yanked back and when I drew myself back the barrel kind of tipped to the north and I lost my balance and was going down towards the rattler; belt went on; and when I started to catch myself from going that way I throwed my arm between the belt and the pulley. * * * In putting on the belt I placed the patched pieces over on the opposite side, the upper side, to get them as far away from me as I could so if the belt slipped on the pull iy it would not be apt to catch me. I did that that morning. My arm was drawn up over the pulley; my arm went right in; I drew myself back; it drew me right in like that.”

While .in a long and grilling cross-examination plaintiff made some modifying concessions and more or less contradictory statements as to details, we think it can fairly be said he adhered in substance to this account of the accident.. He was somewhat contradictory as to which hand he used at the pulley in adjusting the belt but finally testified it was the right. He explained and illustrated at length the method of putting on the belt as he had been in the habit of doing, and as he claimed he had been instructed, and testified he did it that morning as usual—

"Just as I always put it on. * * * I could not say which one of my hands the hooks caught; it was done quick; it might have caught this hand, and it might have caught this one; it would not be safe to say. * * * I am just giving my idea about it; I cannot tell just how I stood; when I tipped I tried to save myself; I could not tell how I stood exactly.”

He also testified that in doing the work he had in mind, not only the danger of getting caught on the hooks on the belting and placed the patched pieces on the opposite side, but "had the whole thing in mind,” and that "the principal danger came from the necessity of putting on that belt and the barrel tipping.”

After his injury plaintiff was taken by the superintendent to the office of Dr. Black, whom he says he had never met before, but whose services were evidently satisfactory, as plaintiff stated he was his family physician at the time of the trial. The doctor set the broken bones and dressed the arm without administering an anaesthetic. Plaintiff says he “remained under the doctor’s care somewhere about two or three months.” The doctor testified that both bones of the forearm were broken in two different places between the wrist and elbow, beginning 2% inches above the wrist. He described the injury as follows:

"Two bones broken; we call it a double fracture, and a compound fracture would be a fracture of the bone and a laceration of the soft part so that it would be a double compound fracture. I could determine that there was a laceration by looking at it, as one bone had protruded, made a small hole in the skin; that is what we call where the skin had been penetrated. * * * There seemed to be; the blood under the skin, quite considerable, would show that there was laceration.”

Of the condition at the time of the trial he testified:

“I find that there is not a bony union in one break there. It is sometimes called a fibrous or ligamentous union. * * * There is a difference in the terminance of the union even in cases of fibrous union. * * * If it is a short fibrous, union, we have use of the arm to a certain-extent.'- I should call this a very short fibrous union. It seems to be quite firm but slips at times; will move. I think the arm as good as could be expected under the conditions. * * * I think the difficulty óf the arm is permanent without an operation, and with an operation it might be corrected and he might lose his arm; it is a problematical proposition.”

Plaintiff testified that the injury caused him much suffering and loss of sleep; that it was nearly a year after the accident before-he “could go to work,” first going to work for the Olds people ten months or a year after the injury at $2 per day; that he worked at soldering brass and different metals, earning $3 per day, at time of trial, and worked every day; that he was doing piecework before he was injured and made about $3.50 per day; that he could not do strong manual labor since the injury, although by putting a strap around his arm where the bones failed to knit he could drive nails, etc., but “if I drive a tenpenny nail my arm is paining me almost immediately. Anything that causes a jar, it pains.” As a result of this accident he has an impaired arm, caused by a fibrous, instead of a bony, union of the broken bone between the wrist and elbow, and a particularly good ligamentous union, according to the testimony of his physician. The hand and all joints of the arm are uninjured and no member is gone. -Though weakened for heavy work and sensitive to jars, such as driving a tenpenny nail, he has yet a useful arm with which he can work steadily at his present employment at good wages.

Defendant’s contention that plaintiff was guilty of contributory negligence as a matter of law is based chiefly upon the claim that his own testimony shows that he wore mittens when putting on the belt, knowing they might be caught by hooks in the lacing; that it was a cold morning and he knew the belt was tighter, more inclined to slip and difficult to put on than usual, thus increasing the risk; that he knew it was a dangerous proceeding at all times to stand upon the barrel and attempt to adjust the heavy belt to the running pulley, and at the same time knew it could be done with comparative safety by stopping the machinery but negligently selected a more dangerous method.

It is undisputed that plaintiff was put to work by defendant in its factory on machinery where no attempt had been made to comply with the statutory requirements before mentioned; the gearing and belting were in no way safeguarded; and no loose pulleys were provided to start and stop the rattlers, which the nature of the work required to be done often. To do this in the performance of his duties plaintiff had to climb and stand upon a barrel several times each day and put the belt on a pulley eight feet above the floor. If the rule of safe place and proper appliances does not make this negligence as a matter of law, it was at least a question of fact for a jury. These were the conditions which confronted plaintiff when he was put at work there, and instructed how to do his work, and under which he could work or quit. He did not control these material conditions. It is his claim that he was reprimanded for, and ordered to re-' frain from, using the slower and more safe method of stopping the machinery each time he put on the belt to start the rattlers. He testifies that the superintendent said to him:

“Those belts have been put on right along without starting and stopping those things so many times a day and they can be yet, and that you fellows who don’t know anythin'g about it quit monkeying with it.”

In passing upon the claim that a verdict should have been directed for defendant, the facts as presented by plaintiff’s evidence are to be taken as true.

Plaintiff testified that he had no knowledge of any rule that belts should not be put on running pulleys; that he was instructed and shown how to put the rattler belts on when the machinery was running and did so openly and regularly several times each day during the three months he was engaged in that work. According to his testimony, he discovered, as he became more familiar with his work, defects and dangers, which he thought could be remedied, of so serious a nature that he proposed to quit if they continued; and he so notified the superintendent, who promised they would soon be corrected, urging him to remain. He testifies:

“Mr. Verplanck says, 'We are rushed for those castings; rushed with this work; go ahead and do the best you can and be careful; use all precautions.’ And I did so.”

It is urged this was a revocation of the previous order, if made, to not stop the pulley to put on the belt. If any such inference can be drawn, it was not made clear to plaintiff, as it should have been by detailed instructions. He had his previous orders as to how to do this work. He was told to be careful and use all precautions, and, as he understood his orders, he says he did so. Incomplete instructions are sometimes no better than none at all. Martin v. Shingle Co., 168 Mich. 175 (130 N. W. 614, Ann. Cas. 1913C, 124).

Even though plaintiff knew the danger and had threatened to quit, it was not negligence as a matter of law to continue the work as before for a time, expecting and relying upon a promise of repairs soon to be made. The rule upon this subject is concisely given in Missouri Furnace Co. v. Abend, 107 Ill. 44 (47 Am. Rep. 425), as follows:

“It is now uniformly stated by text-writers, that where the master, on being notified by the servant of defects that render the service that he is engaged to perform' more hazardous, expressly promises to make the needed repairs, the servant may continue in the employment a reasonable time to permit the performance of a promise in that regard without being guilty of negligence. * * * He may recover, unless when the danger is so imminent that no prudent person would undertake to perform the service. * * * The doctrine * * * rests on sound principle and” is “supported by English and American decisions.”

Whether the danger is so imminent no prudent person would undertake to perform the service is usually a question of fact. The rule is fully recognized in this State (Lyttle v. Railway Co., 84 Mich. 289 [47 N. W. 571]; Schlacker v. Mining Co., 89 Mich. 253 [50 N. W. 839]), and very strongly stated in the latter case. Knowledge of danger which one has failed to avoid is not conclusive evidence of negligence. Roux v. Lumber Co., 85 Mich. 519 (48 N. W. 1092, 13 L. R. A. 728, 24 Am. St. Rep. 102).

Many of the foregoing material facts testified to by plaintiff are strongly controverted, and a review of the evidence, taken as a whole, gives the case a different coloring from that indicated by bare recitals from Ms testimony, but we are convinced that the conflicting testimony renders plaintiff’s contributory negligence a question of fact within the province of the jury, to be decided by the jury under appropriate instructions.

Serious complaint is made of certain portions of the argument of plaintiff’s counsel to the jury, in which it is claimed unfair and unchecked appeals were made to the sympathy and prejudices of the jury. Some of the matters objected to are as follows:

In speaking of the use of mittens while putting on the belt, counsel said:

“It is a funny thing if Brother Nichols and I can go down the street clothed in our long fur wraps and with our gloves on, and the workman cannot have a canvas mitten on to work.”

This appeal to the masses against the classes appears to be entirely dehors the record. We have searched the record in vain for a word of evidence as to the length and quality of the fur wraps and gloves of the gentlemen mentioned and find no intimation even that they ever owned any such articles of wearing apparel.

In discussing the question of damages, counsel said:

“He may lose his life some time in the future because he is not able to use what would have been a good right arm to protect himself with. He may not be able to protect a child that belongs to him that would be his duty to do. * * * He is entitled to use that arm for his protection in time of danger, all of those things, and it is for you to estimate as best you can the damage he has sustained.”

Of a physician called as a witness by defendant, counsel said:

“No man had the power to tell how much that arm was mangled underneath the flesh and yet Dr. Toles wanted to intimate to you that he did. Dr. Toles could have been called upon the stand by us, in my humble judgment, and asked him the question, if he had been our witness, and he would have explained it in our way. Talk about, experts— * * * Time and time and time again lawyers everywhere are disgusted with that phase of testimony if they tell the truth. * * * For men like him to come before intelligent men like you knowing more about those appliances than he does and tell you how an injury happened time and time again. It is not fair.”

These and other remarks more or less outside the line of legitimate argument were timely objected to and exception taken to their continuance. They were not checked by the court, nor the objections ruled upon, so far as the record discloses, though it appears that at least a portion of them were called to the attention of the court at the time. Neither was the jury either instructed in what manner to regard or to disregard such comments. In concluding its charge to the jury the court said:

“It is your sworn duty to decide this matter as it actually affects you, and after you have so decided and deliberated you will return to this room with your verdict.”

In view of other portions of the charge correctly defining the duty of the jury, this might ordinarily be regarded as an incidental and unimportant conclusion of the instructions; but as the last word of the court, following the last argument of counsel in which it was sought, unchecked and outside the record, to affect the minds and arouse the emotions of the jury by appeal to prejudice and sympathy, we are impelled to the view, strengthened by the size of the verdict rendered, that the combined result was inimical to a fair and impartial trial, was prejudicial and reversible error.

The judgment is reversed, and a new trial granted.

Moore, Brooke, McAlvay, and Stone, JJ., concurred with Steere, C. J.

Ostrander, J.

(dissenting). I think no reversible error is made to appear and that the judgment should be affirmed.

Kuhn and Bird, JJ., concurred with Ostrander, J.


source: Caselaw Access Project

author: Steere, C. J.

license: Public Domain

text:
    GERKIN v. BROWN & SEHLER CO.
    1. Amendment — Declaration—Personal Injuries — Poisons.
    An amendment of plaintiff’s declaration which, charged defendant with manufacturing .and selling a dyed, fur-lined coat which contained coloring matter deleterious to life and health of the wearer, so as to charge that defendant was engaged in the business of selling at wholesale and jobbing such fur-lined coats, knowing the dangerous or poisonous character of the material used, did not change the identity of the litigants, or introduce a new cause of action, and was a proper amendment.
    2. Same — Continuance—Showing.
    But upon defendant’s showing that it was surprised by the proposed amendment, asked for at the trial, that defendant had prepared to meet the charge made in the original declaration to which it was a defense that defendant was not acting as manufacturer of the goods but as a jobber, and that it was necessary to procure evidence which defendant could not obtain in time to meet the case made in the amended declaration, the court should have allowed a continuance over the term; a postponement of four days, shown by defendant’s affidavit to be insufficient, was not a proper exercise of the discretion of the court.

      3. Same — Adjournment—Admission as to Testimony.
    Plaintiff’s admission that the witness mentioned in defendant’s affidavit would give the testimony stated therein, was not a proper basis for denying the application for continuance under Circuit Court Rule 22.
    4. Negligence — Poisonous Dyes — Deleterious Substances — Sales — Torts—Proximate Cause.
    Evidence that the plaintiff bought a fur-lined coat, handled and sold by defendant to a local dealer, that he frequently had occasion to turn the fur collar up about his face and neck, that he had never suffered previously from any skin or blood disease, that about two weeks after he commenced to wear the coat he experienced a burning sensation on his face and neck which later developed into serious inflammation and grew better when he ceased to wear his coat, taken in connection with a letter from defendant to plaintiff admitting that some persons were injuriously affected by dyed fur, supported by other testimony of the same kind, warranted the court in submitting the case to the jury on the question of negligence and notice to defendant.
    5. Same — Privity of Contract — Fraud, Absence of.
    As a general rule the vendor of an article is not liable on account of his carelessness or negligence to others than the immediate purchaser, for mistakes in the nature or quality of an article, where the thing sold is in itself harmless, so far as the vendor knows, if he'has made no false representations.

    6. Same — Notice or Knowledge of Dangerous Material.
    Having knowledge that dyed furs of the kind defendant sold were liable to cause suffering and injury to the purchasers, even though only a small proportion of persons were injuriously affected, defendant was liable in damages to one who was injured in ignorance of the poisonous character of the furs or dyes.
    Error to Livingston; Miner, J.
    Submitted April 29, 1918.
    (Docket No. 85.)
    Decided September 30, 1913.

      Case by Henry C. Gerkin against the Brown & Sehler Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Cleland & Heald, for appellant.

      Shields & Shields, for appellee.

       As to the liability of a manufacturer, packer or vendor to persons not in privity of contract, for injury from defects in article sold, see note in 19 L. R. A. (N. S.) 923.

   Steere, C. J.

This was an action of tort, wherein plaintiff recovered, in the circuit court of Livingston county, a judgment against defendant in the sum of $500, as compensation for injuries resulting to plaintiff from wearing a fur-lined coat with a dyed, or blended, collar, which, it is claimed, poisoned his neck, face, and hands, causing him great suffering, and seriously injured his health.

Plaintiff bought the coat, which had on it a dyed muskrat fur collar, on December 13,1910, from Young Bros., a firm of local retail dealers in Howell, Mich., where he resided. They bought it about a month previous, in the regular course of merchandising, from defendant, a business concern in Grand Rapids, Mich., engaged in jobbing fur coats, robes, blankets, etc., and in manufacturing harness and collars. The local dealers were regular customers of defendant. The coat was sold to them by one of defendant’s traveling men, who, it is claimed, represented to them in plaintiff’s presence, in their store, at the time he took their order, that defendant manufactured the coat; that it was guaranteed in every particular, was made out of good material, and would give good service.

Exception is taken and error assigned on the admission of testimony as to these representations by the traveling salesman. Plaintiff produced no other evidence that defendant manufactured the coat. Aside from this testimony, the undisputed evidence was clear and positive that defendant did not make the coat, nor know how it was made; had never dyed furs, nor manufactured fur garments, but had purchased the coat, with others, on the market in New York from Wasserman & Shecket, the manufacturers, ' who procured the fur ready dyed from a firm of fur dealers.

Plaintiff’s declaration, as it stood until both parties had rested their case during the trial, charged, and was framed upon the theory, that defendant was engaged “in the manufacture and sale * * * of blankets, robes, and fur coats, fur-lined coats, and saddlery,” and had sold this fur-lined coat, “so manufactured as aforesaid,” knowing, when it was manufactured, and when it was sold, that the coloring used and material of which the collar was made were “so poisonous and yet so concealed as to become eminently and necessarily dangerous to the life and health of those wearing the same.”

Defendant pleaded the general issue, and its primary defense, to the support of which its evidence was chiefly directed, was that defendant did not make the garment, was not a manufacturer, but a jobber, and bought the article in the usual course of trade, in the eastern market, with no knowledge of how, or, at the time, by whom the fur was dyed.

At the conclusion of plaintiff’s testimony, and again after both parties had rested, defendant’s counsel moved for a directed verdict in its favor, on the ground that there was no competent evidence to go to the jury on the charge that it had manufactured the coat, or that any injurious dyes were used in its manufacture by defendant, or any one else; in that connection moving that the court strike out all testimony, previously objected to, touching statements by the traveling salesman to the local dealers, to the effect that defendant had manufactured the coat.

In disposing of this motion, the trial court expressed the view that defendant would not be bound by such statements of its agent so far as plaintiff was concerned, he being a third party not participating in the transaction in which the representations were made, saying to counsel:

“Under this declaration, as it now stands, I have grave doubts about the plaintiff being entitled to recover, for this reason: that the declaration alleges that Brown & Sehler are the manufacturers. I think, if that question should come before the jury, the court would be obliged to instruct the jury that the evidence is that they are not the manufacturers.”

This ruling would, in effect, remove from the case and render unimportant the testimony excepted to, and which it was moved to strike out.

Following this intimation of the court, made after both parties had rested, counsel for plaintiff asked leave to amend his declaration by adding a count charging that defendant was, at the time of the sale, “engaged in the business of selling at wholesale and jobbing fur-lined coats of the description in the two counts in this declaration, knowing that the fur-lined coats were dangerous, contained poisonous and deleterious substances.” This amendment was opposed on the ground that it introduced a ■ new issue, and stated an entirely new and different cause of action from the one on which the case had been tried, requiring a different and additional line of testimony not then available, and which could only be obtained from New York, where the fur was dyed and the coat manufactured, and where the necessary witnesses then were-; that, the declaration having charged defendant, as a manufacturer, with making this coat and dyeing the fur, proof of such charge was necessary to entitle plaintiff to recover, and proof to the contrary was a complete defense, for which defendant had prepared, arid which it had successfully made, and was then entitled to the benefit of; further asking and urging that, if in any event the court in its discretion should hold it proper to grant the amendment, a continuance over the term be allowed to enable defendant to procure further testimony rendered necessary by such amendment.

After argument the amendment asked for by plaintiff was allowed on April 18th, and the trial postponed until the next Monday, April 22d, to allow defendant to produce further testimony; plaintiff being directed, in the meantime, to put in typewriting, file, and serve the amendment, which had been orally presented by counsel and taken by the stenographer. A copy of said amendment was served upon defendant’s attorney on Saturday, April 20th. It charged defendant as a dealer with knowledge, instead of as a manufacturer.

On Monday, April 22d, defendant’s counsel presented in proper form a motion, asking continuance of the case over the term for the following reasons:

“(1) After the close of the testimony in said cause, and after the court had announced that he would be obliged to direct a verdict in favor of the defendant, the plaintiff was permitted to amend his declaration so as to require an entirely different defense on the part of the defendant.
“(2) That the defendant-is not prepared to make such defense.
“(3) That the defendant was surprised by the amendment to the declaration of said plaintiff.
“(4) That some of the witnesses needed by the defendant to make a defense to the amended declaration reside in New York, and it is impossible to procure their attendance or deposition in time for the trial of said cause.”

This motion was based upon and supported by affidavits containing the usual averment of merits, and showing, amongst other things, that in a preliminary correspondence over this contention, had before suit was begun, defendant’s counsel took pains to distinctly notify plaintiff’s counsel that defendant did not manufacture the coat, and therefore, when plaintiff’s declaration was filed charging it as the maker, had assumed and believed such charge was understanding^ made, intended, and relied upon; that the defense accordingly prepared to meet that controlling issue, and a motion to amend at the trial was consequently a complete surprise; that every effort had since been made in the time allowed to get the desired testimony by wire and long distance telephone, the services of an attorney in New York being engaged to that end, but owing to the distance between the place of trial and New York it was impossible to have the witnesses before the court in person, or their depositions in time for resumption of the trial as set. The affidavits also stated, in part and in general terms, what it was expected to prove by the witnesses whose testimony was desired, and that, amongst other things, defendant, as a result of recent investigation, expected to prove by the dyer of the fur used in the coat complained of that there were no poisonous or deleterious ingredients used in the dyeing, and the fur was harmless to any one wearing it.

The court denied this motion for continuance, on condition that the plaintiff admit that the dye master, if present, would testify as stated in the affidavit (which plaintiff’s counsel thereupon admitted), holding that defendant’s attorneys knew or ought to have known that such an amendment was,.under the liberal statute of amendments, likely to be made, and should have prepared their case to meet it.

The proposed amendment did not change the identity of litigants nor the form of action, nor, strictly speaking, introduce a new cause of action; it charged "that defendant committed the same tort in a different capacity. It was within the scope of section 10268, 3 Comp. Laws (5 How. Stat. [2d Ed.] §12969), for the court, in its discretion, to allow the same on such •terms as were just, and did not ultimately deprive •defendant of any essential rights. As the pleadings and proofs then stood, it was the opinion of the court that defendant had made good a legitimate, if technical, defense, and .a verdict must be directed in its favor; but that, for the furtherance of justice, the amendment should be granted. On granting, such motion, it was incumbent upon the court to guard against it resulting in defendant’s being put to a disadvantage or denied opportunity for full defense as the pleadings stood after the amendment.

The suggestion that defendant should anticipate and prepare to meet an amendment which nullified a previously good defense loses force under the undisputed showing that plaintiff was fully advised of this defense, and with such knowledge challenged it, by specifically charging defendant with committing the tort as a manufacturer. In view of the time when, and circumstances under which, the motion to amend was made, and the showing in opposition, we think there is substantial ground for the contention that to deny defendant’s application for reasonable time to investigate, and opportunity to procure and present such further testimony as it desired to meet the case made in the amended declaration, deprived it of a substantial right. The time allowed did not give defendant opportunity to investigate and procure testimony from New York, the only place where the requisite testimony was available according to the undisputed showing. It was not a second motion for continuance, in which a concession that the desired witnesses would testify as stated in the application is ground for denial, under Circuit Court Rule 22. If defendant, taken by surprise as claimed, was entitled to any time to investigate and procure further testimony, it was entitled to sufficient time and opportunity to get before the court the desired witnesses or their depositions. Where material changes are allowed in the declaration during the trial, which may call for a different line of defense supported by additional testimony, it has been said by this court that to proceed or take a continuance is “the usual option” of defendant. Jennings v. Sheldon, 53 Mich. 431 (19 N. W. 132). The general policy recognized in this State is to allow continuances in such emergencies, 'wherever surprise is claimed under such conditions as reasonably justify the claim, and when time is asked to investigate and produce further testimony. Lester v. Thompson, 91 Mich. 245 (51 N. W. 893); Leonard v. Leahy, 169 Mich. 406 (135 N. W. 335); Berry v. Railway Co., 173 Mich. 181 (138 N. W. 1038).

Under the circumstances disclosed and showing made by defendant, it was the duty of the court, having in its discretion granted the amendment, to grant a continuance, either over, the term, or for sufficient time to permit defendant to procure the witnesses desired or their depositions. We conclude that upon ' this proposition a new trial must be granted.

Counsel have discussed in their briefs the underlying principles involved in this case, and, as a retrial must be granted, it seems proper here to give some consideration to the questions which will necessarily arise again.

Plaintiffs right of action is based on the contention that poisonous dyes were used in the preparation of the fur which went into this coat; that defendant knew this,- or ought to have known it, and also knew that certain persons wearing the coat were liable to be injuriously affected; that it was therefore its duty to impart such knowledge to' the purchaser, which it failed to do.

Plaintiff furnished no proof of how the fur was dyed or what preparations were used. His proof upon that subject is inferential only. His evidence establishes a connection between cause and effect, tending to show that wearing the coat was the occasion of his malady. Briefly stated, his testimony shows that he was a strong, healthy man, in the prime of life, engaged in a calling which necessitated his taking long drives in the country in- all kinds of weather; that he bought and wore this coat to protect himself from the cold when on such drives, and often had occasion to turn the fur collar up to protect his face and neck; that he never before had been affected with any skin or blood disease; that about two weeks after beginning to wear this coat he at times experienced a burning and stinging sensation on his face and neck, for which he was unable to account, and which later developed into serious inflammation, swelling, and discoloration of his face, hands, and eyes, so severe and distressing as to incapacitate him for work and confine him to his house in misery; that he was treated, unsuccessfully, by local -physicians, his condition growing worse until about the 14th of March, when he went to Detroit and consulted a skin specialist, after which he ceased to wear the coat, and grew gradually better from that time on; though not for some time suspecting the cause, he 'finally remembered and understandingly noted that during January, February, and the fore part of March there was a difference in his condition, depending on whether or not he wore the coat; that previous to this trouble he had no knowledge that wearing dyed fur might be dangerous to the wearer. There was abundant evidence, to go to the jury, tending to show that plaintiffs malady resulted from wearing the coat.

Plaintiff also introduced in evidence a letter written by John Sehler, president of the defendant company, in reply to one from the local dealer who sold the coat to plaintiff, containing the following:

“We have yours of the 16th, and fully note contents. Now, we have had much experience with fur-lined coats with different collars, and about one out of every hundred customers we sell to we find cannot wear any kind of a dyed collar, no matter how much it is cleaned.”

Sehler, being sworn as a witness, testified that he was in charge of the fur coat department of defendant, had been handling fur coats and fur-lined coats for at least 10 years, and had knowledge as a dealer of at least 10,000 they had sold; that very seldom, but occasionally, complaints had been received from dealers to whom they had sold of certain fur coats making their customers’ faces sore, but they did not know the soreness was caused by poisonous or injurious dyes used in coloring the fur; that during the 10 years mentioned something like 20 complaints, or about one in a hundred coats sold, came to them that a coat made trouble; that the coat in question was the only one of those purchased from the firm of Wasserman & Shecket that there was any complaint about; thát outside of this case witness never knew of any one who wore a fur coat purchased from defendant being incapacitated or laid up by wearing it; that he possessed no knowledge of any poisonous material being used in dyeing furs, though he had tried to ascertain by inquiry of manufacturers and people who dyed the furs, and could not learn that there was. In answer to questions asked on cross-examination, witness testified as to knowledge and notice in part as follows:

“From the information I derived from the talk of the people who were familiar with manufacturing, handling, and even wearing furs, I learned that some of them had trouble with them. I did not go to any one of the 20 or 25 that had worn our fur-lined coats and had physical trouble from them and inquire of them. I did not make an investigation in a single case where a fur-lined coat of ours was claimed to have injured the purchaser. I.did not ever make any arrangement and have an expert physician or expert on skin diseases or troubles investigate any one of those cases that you have just described. I simply told them to send in the coat and not to wear it any longer. I did that something like 25 times in the 10 years preceding this 1909. I did all I could to prevent the coats sold by us from injuring people. I went to headquarters, to the manufacturers, and tried to find out what was wrong. I did find out. I found out from everybody that some people simply could not wear dyed furs; that it was their condition. That was the only answer I ever got. I knew that when I sold this coat, Exhibit C, to Young Brothers. I did not notify Young Brothers that I had that information and knowledge, and that in selling that coat they must notify the person that it was a dyed collar. * * * We told Mr. Allen (the traveling salesman) that whenever there was a complaint about the coat to take up the coat and send it in and change the collar.”

On re-direct examination witness testified:

“In making this investigation with manufacturers and people who knew the fur business, as to the reason for fur-lined coats causing sore skin with some people, I found out that some people simply can’t wear furs that are dyed; that seems to be the common accepted condition, knowledge among the fur trade, that some people, on account of their peculiar condition or the condition of the skin, cannot wear dyed furs. That is the information I got. I would like to add to that, all say that is a rare case; but they do find such cases.”

It is the contention of defendant that a verdict should have been directed in its favor on the case as it stood when submitted to the jury, for the reasons that defendant did not sell the coat to plaintiff, and therefore no contractual relations ever existed between them; that no evidence was produced by plaintiff as to the manner of manufacturing the coat and dyeing the fur, or that any deleterious or poisonous chemicals were used in that connection; that no fraud, deception, or misrepresentation on the part of defendant is shown; and that defendant as a wholesale dealer only bought and sold the garment in the usual course of trade, not knowing or believing that such apparently harmless article of wearing apparel in common use was, or could be, inherently and imminently dangerous, or that it contained any poisonous or deleterious substance which would injure the wearer.

It is clear in this case that there was no privity of contract between plaintiff and defendant and no implied warranty. Defendant was a wholesaler, buying from the manufacturer, and, in the absence of notice or special knowledge, practically in the same position as plaintiff, the final purchaser at retail, would be when buying an apparently harmless article of wearing apparel in common use; neither would be presumed to know of concealed dangers not naturally to be anticipated.

It is a general rule that the vendor of an article is not liable, on account of his carelessness or negligence, to others than the immediate purchaser for mistakes in the nature or quality of an article sold, where the thing sold is in itself harmless, so far as the vendor knows, and where he has made no false representations. Davidson v. Nichols, 11 Allen (93 Mass.), 514.

Plaintiff’s counsel admit that, in the absence of knowledge by defendant, there could be no recovery, but urge the proposition that, having put upon the market an article which it knew was dangerous to some persons and might prove injurious to whoever ultimately bought and wore it, because the fur was dyed and contained some kind of poison or deleterious matter, a fact not generally known, and of which the garment in and of itself gave no notice, defendant owed the duty to the public and to plaintiff, the ultimate purchaser and wearer, to furnish with such article, when it put it forth, a notice of warning imparting to its customers, for the protection of any of the public to whom they might sell, the same knowledge, and to the same extent, which defendant possessed.

There was evidence that dyed furs were injurious to some persons, and, where the fur came in contact with the skin, acted as an irritating poison, causing much discomfort and suffering, which, if continued, ultimately produced serious inflammation and malignant sores, ruinous to the health of the wearer; that such w;as the result to plaintiff, whose suffering was protracted and increased because he did not have, and for a long time was unable to obtain, the information defendant possessed. Sehler, defendant’s president, had handled fur coats, dyed and undyed, for many years, and knew that some dyed coats were injurious to some people. Trouble along that line had come to his knowledge so often that he had made an investigation, and complaints of coats he had sold came to him to such an extent that he had adopted a policy in that connection. He knew that the trouble only came from- the dyed fur. He did not know what dyes were used or of any test by which to determine what chemicals were used in the dyeing; but he did know that “some people simply could not wear dyed furs,” and so adopted the plan, which the traveling salesman was told to observe, to have the coat sent in and change the collar on it for one that was not dyed when a complaint was made, giving the purchaser no preliminary warning, and leaving it for him to make the discovery by the slow and dangerous process of painful experience. Sehler objected to the use of the word “poison,” and. testifies, on cross-examination :

“I say that I never had heard of any of our collars poisoning the people that wore them. When I put in this letter, Exhibit C, the following sentence, ‘We have one case in Otsego where a man was laid up for six weeks on account of having his neck poisoned from a fur collar,’ that is what they called it, so I used their language. In the other cases the language was that it made the customer’s neck and face sore; that I do remember. I don’t remember ever the word ‘poison’ being used. * * * In that letter, when I stated that one in one hundred of. our coats made trouble to somebody, I referred to fur-lined coats ■only.”

- What percentage of these had undyed collars is not shown.

Dr. Biddle, the expert on skin diseases, whom plaintiff finally consulted, and-on whose advice he discontinued wearing the coat, testifies, on cross-examination by defendant’s counsel:

“I couldn’t say and I haven’t any idea the proportion of people who wear fur coats that are troubled with this irritation; but in my line of work we see •cases occasionally. It is not very many, but still we see them; not more than half a dozen people or so affected with poisoning from furs come in to consult me during the course of a season, that is, that I could trace directly to the furs. * * *
“Q. How do you account then, Doctor, for the fact that some people are able to wear dyed furs without any difficulty and others not?
“A. We account for it in two ways: One is a possibility of there having been something in the manufacture of that particular coat or the dyeing of that particular coat which has not been — I don’t know whether it is a different dye used or something else that has not removed the irritant. That is one. Then the other one is the manner in which the collar is worn. For instance, a man turns down his collar, didn’t turn it up on his face, might wear a fur coat for a long, long while, never have it; if it comes a cold day, turns his collar up, might get that, so it depends a good deal on the condition of the coat and then also the manner of wearing it. Some people wear fur coats without ever turning the collar up; that class might wear a fur-lined coat for a winter without having any trouble. The irritant must come in direct contact with the face. * * * It is my opinion that it is the quality of the dye used and the condition of putting it on the coat, in the individual coat, that causes that irritation.”

It is the common understanding and a reasonable presumption that a fur coat is a harmless thing, free from suspicion of hidden dangers to any one, and the téstimony shows that this is true in fact in all cases where the fur is not artificially colored; but it is shown that, if the fur is dyed, in certain cases some coats are imminently dangerous to the health of some persons, when used for the purpose for which they are manufactured and sold.

When the fact is once established and demonstrated by experience that a certain commodity, apparently harmless, contains concealed dangers, and when distributed to the public through the channels of trade and used for the purposes for which it was made and sold, is sure to cause suffering to, and injure the health of, some innocent purchaser, even though the percentage of those injured be not large, a duty arises to and a responsibility rests upon the manufacturer and dealer with knowledge, to the extent, at least, of warning the ignorant consumer or user of the existence of the hidden danger. Failing to do so, the dealer, as well as the manufacturer, who has the knowledge and does not impart it, is liable to a subsequent, ignorant purchaser, reasonably within contemplation of the parties to the original sale, for injuries sustained through such hidden dangers. This is by reason of the duty the dealer owes to the public generally, which includes all whom it may concern, to give notice of any concealed dangers in the commodity in which he traffics, and to exercise a reasonable precaution for the protection of others commensurate with the peril involved. We think this principle applicable to the case at bar and fairly deducible from the many authorities touching manufacture and sale of dangerous commodities. Thornton v. Dow, 60 Wash. 622 (111 Pac. 899, 32 L. R. A. [N. S.] 968), and authorities cited and reviewed in Tomlinson v. Armour & Co., 75 N. J. Law, 748 (70 Atl. 314, 19 L. R. A. [N. S.] 923).

That the great majority of persons are safe from the particular danger concealed in the article sold, or that few injuries in fact result from its use, does not militate against this principle when the certain fact of imminent danger to a percentage is established. Many people are immune from the most virulent contagious diseases, and the percentage of injuries to those ignorantly using defective machinery or dangerous explosives, or unwholesome and dangerously adulterated foods, is small in proportion to the number who ignorantly or knowingly use them; but it could not be contended, for that reason, that the person knowingly renting a house or selling clothing which were infected with smallpox, or selling defective machinery, or tainted meats, or dangerous explosives, without warning, to one ignorant of the danger, and who was injured thereby, might escape liability.

Even in that class of cases in which it has been held that the vendor is not liable to those not in privity of contract with him for injuries resulting from his negligence, unless the article was manifestly dangerous, the inference is strong that with knowledge of the danger such liability would arise, even to strangers who were subsequent purchasers.

In Slattery v. Colgate, 25 R. I. 220 (55 Atl. 639), a dealer, selling to a barber shaving soap which contained an excess of alkali, resulting in injury to the latter’s business, was held not liable in the absence of knowledge of the excess, limiting the rule to cases where the defect was not known at the time of the sale.

In Gould v. Woolen Co., 147 Mass. 315 (17 N. E. 531), a case in many of its facts quite similar to this, ' plaintiff showed that she was poisoned in using cloths manufactured by defendant and bought of its agent in 1884. An expert chemist and physician, who analyzed the cloth and found in it what he designated as “chrome compounds,” stated that the cloth was mordanted by bichromate of potash, which was an irritant poison; that it was the chemical commonly used as a mordant in dyeing woolen cloth; that cloth so dyed might be pqisonous to susceptible persons; that this chemical was extensively used in dyeing, and, so faí as he knew, no case of poisoning similar to plaintiff’s had been published until he published four or five cases in 1886, since which time he had seen several more; that he did not know how poisoning could be effected from the presence of chrome compounds in cloth. Being asked, “Is there anything further developed in relation to this kind of poisoning, other than that some people may be injured, who have a disposition that way, by the presence of this compound?” he answered, “Nothing more than occasionally persons may be injured by it, but the great majority of people not.” While not deciding the question involved here, the court in that case emphasized the importance of knowledge as applied to such an issue, and held that plaintiff could hot recover because of defendant’s lack of knowledge, saying:

“The plaintiff’s action was brought on September 22, 1884. According to the testimony of the expert witness introduced by the plaintiff, it had never been shown, until 1886, that any cases of poisoning had occurred like the plaintiff’s. For all that appears, the plaintiff’s was the first instance of injury that ever was known to arise from the cause alleged in the declaration. All that the plaintiff showed against the defendant was, that it used an article for dyeing its cloths which was the most common mordant used in wool dyeing, which was also used very extensively in dyeing cotton stockings black, which, so far as then known, had never caused injury to anybody who merely handled the cloths, and which the defendant did not know or suppose, and had no reason to know or suppose, to be injurious; and, under the circumstances, although there was evidence tending to show that, in point of fact, the plaintiff was injured by merely handling the cloths, this was not a result which the defendant was bound or ought to have contemplated as likely to happen.”

. We conclude there is evidence of defendant’s negligence in this record sufficient to carry the case to the jury, and, as already indicated, that defendant should have been permitted to exercise the “usual option” of a continuance to obtain and present such evidence as it desired to meet the declaration as amended.

The judgment is reversed, and a new trial granted.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Moore, J.

text:
    CLARK v. GUSTIN.
    1. Deeds — Competency—Evidence—Consideration.

      Held, that complainant’s contention that she was induced to execute a deed of 120 acres of land by fraud and undue influence was not sustained by the proofs; and that the deed was not void for incompetency.
    2. Same — Cancellation of Instruments.
    Evidence considered, and held, to show performance by defendant of his agreement for the grantor’s support and maintenance during her lifetime, made in consideration of the deed.
    Appeal from Shiawassee; Miner, J.
    Submitted April 29, 1913.
    (Docket No. 121.)
    Decided September 30, 1913.

      Bill by Adelia Clark against Daniel T. Gustin for cancellation of a deed. From a decree for defendant, complainant appeals.
    Affirmed.

      Thomas Hislop, for complainant.

      Byron P. Hides, for defendant.
   Moore, J.

On January 8, 1909, the complainant made a warranty deed to defendant of 120 acres of land. The consideration stated therein is “for and in consideration of the execution of a certain contract bearing even date herewith.” The deed contains the following:

“Saving and reserving unto said party of the first part the use of said premises for and during the term of her natural life. Provided always that if said second party shall fail to perform on his part a certain contract made and executed between first party and second party bearing even date herewith, then the estate above conveyed to second party shall cease and said first party shall have the right to re-enter and dispossess said second party and the estate hereby conveyed shall be forfeited, but in case no forfeiture shall be declared by first party during her lifetime the estate herein granted shall become absolute upon the death of first party.”

The contract referred to in the deed, omitting the formal parts thereof, reads as follows:

“Witnesseth, that whereas, the said party of the first part has this day deeded to said party of the second part, a certain piece or parcel of land situated in the township of Vernon, county and State aforesaid, known and described as follows, to wit: * * *
“And whereas, said first party has reserved in said deed a life estate in and to said lands and has provided for a re-entry and termination of the said estate of said second party, in and to said lands any time during the lifetime of first party, when said second party shall make default in the conditions thereof which condition is the performance of this contract; and providing also that in case said first party shall not re-enter or divert or terminate the estate of said second party under said deed during hfer lifetime, that it shall become absolute at the death of first party.
"Now, therefore it is hereby agreed by and between said parties that in consideration of the execution and delivery of said deed by said first party as aforesaid that said second party agrees to move onto the said premises above described and live thereon with said first party and make a home there for said first party and to furnish said first party with board and care in sickness and in health at any and all times, when she shall choose to be and remain at the home of the party of the second part. Said first party to furnish her own clothes, pay for her own medicine and doctor bills and if during sickness it shall be deemed by the attending physician necessary to have a professional or trained nurse the same shall be procured at the expense of first party who shall be boarded free of charge by second party. Said second party agrees to provide and furnish first party with a tenant for said farm who will work the same as long as first party shall live on the terms one-third to first party and two-thirds to the tenant; said tenant to reside in tenant house on said farm. Said first party agrees that all profits derived from said farm under said arrangement with said tenant shall be expended in improvements on said farm.
"First party shall have the right to insist that second party live in the house on the farm above described, but if the parties hereto mutually agree, they may move into the village'of Durand during certain seasons of the year without voiding or affecting any of the other provisions of this contract and the obligation of second party as above provided shall continue the same in such home as though he lived on the farm, but said second, party shall not have the right to move off said farm without the consent of first party.”

July 29, 1911, this bill of complaint was filed. The prayer is:

"(1) That the said deed be set aside and declared to be void and a fraud upon your oratrix, your oratrix being willing to pay and now here tendering to the said Gustin any sum found by said court to be due to said Gustin from your oratrix in the premises, the equities in the premises being considered, and that said contract be declared to have been fraudulently obtained and violated, and that said defendant holds said deed without consideration.
“(2) That your oratrix be restored to her rights in said lands, and that a full accounting be had between the parties hereto, and, if the said Gustin has conveyed or incumbered said farm, that your oratrix may make the parties claiming any interest by reason thereof parties to this suit.
“(3) That your oratrix may have such other and different relief in the premises as. may be agreeable to equity and good conscience, and your oratrix will ever pray.”

Mrs. Gustin was not made a party to the proceeding.

The case was put at issue and tried in open court. The record contains upwards of 350 printed pages. The trial judge filed a long written opinion, in which he reviewed the contention of the parties. In the decree occurs the following language:

“And the court, being fully advised in the premises, finds that the complainant has failed to prove the allegations of the bill of complaint as to fraud, undue influence, or lack of mental capacity on the part of the complainant to enter into the contract with defendant, that there is not a particle of evidence in the case to show that Dr. Fair or Mr. Hicks had any interest in the case whatever, or that they were in any way governed except by the highest and purest motives.
“Neither does it appear that the defendant has been guilty of any violation of his contract which would warrant this court in setting aside the deed; but the court does find that it was intended by the parties that the property described in the bill of complaint * * * was intended by the parties to be the means of giving complainant her board and good care.
“It is also evident that the litigation between the parties has intensified any feeling that might have existed between the parties, so it is doubtful, if the undertaking contemplated by the parties can now be so executed that the complainant would be contented and comfortable in the old home with defendant.
“It is therefore ordered, adjudged, and decreed that the prayer of the bill' asking that the deed be canceled should be denied, but that the defendant be required to pay to complainant the sum of $6 per week, commencing from the 1st' day of September, 1911, and to continue during such time as she may desire to remain away from the home of the defendant, which sum shall be a lien on the land above described, but that complainant shall have the right at any time she sees fit to return to the home of defendant and live 'with him in .accordance with the terms of the contract. Neither, party in this case will recover costs as against the other.”

The complainant has brought the case here by appeal. The defendant did not appeal.

Counsel evidently regard the questions involved as those of fact and not as questions of law, for the counsel for appellant quotes no legal authority in his printed brief,, and in a written memorandum cites only Shepardson v. Stevens, 77 Mich. 256 (43 N. W. 918), while counsel for appellee contents himself with citing Wilson v. Wilson, 160 Mich. 555 (125 N. W. 385).

Mrs. Clark has been in this court before. See Clark v. Ulrich, 153 Mich. 695 (117 N. W. 329). In that case it appeared that her mother, Huldah More, died at the age of 93 years. When Mrs. Clark went to live with the defendant and his wife, she was 77 years of age. Besides the farm in controversy here, she had another farm of 60 acres, several thousand dollars in the bank, real estate in Detroit, for some of which, whether all or not we do not know, she sold to the school board, since the deed in controversy here was made, for $27,000. She had but one child, a married daughter, whose husband, the evidence tends to show, was in the habit of getting intoxicated.

The circumstances under which the deed and contract were given are disclosed by one of the witnesses, the material part of whose testimony is as follows:

“Dr. Robert C. Fair, sworn for defendant, testified:
“I have practiced medicine and surgery in Durand for 21 years, having graduated from University of Michigan. I am district surgeon of the Grand Trunk Railway Company and president of Shiawassee County Bank from 12 to 15 years, having succeeded William H. Clark, complainant’s husband. Mrs. Clark has been a stockholder all this time. I first became acquainted with her at the time we operated on her daughter, I think, in 1905. My wife and I own a clothing store jointly, and do business as Fair, Gustin & Co. Mr. Gustin has not a dollar invested in it; he works for the firm at so much per week; that is all his relation to the firm. After becoming acquainted with Mrs. Clark, I attended her at different times. * * * I remember being called out to see her in September, 1908, by her daughter. Used to see her once in two or three weeks, and think that time had elapsed from last visit until this time. I had seen her on the 16th of September, five days before. She was suffering considerably from heat and asthma and quite fatigued. Mr. Gustin accompanied me from Durand that day in an auto. I had asked him if he wanted to go out and put up some signs. * * * I left him at the corner at the schoolhouse. Paine lived about 40, 50, or 60 rods from there. _ * * ■ * I found Mrs. Clark in her room over the dining room, where I had seen her before. It was quite a large room, with the edges of the room cut off, you know, story and half house. Think there were three windows in the room. She complained the room was so hot that she was suffocating, said: ‘Doc. Fair, you have got to take me away from here today. I have got to get out of here, or I will die.’ I tried to pacifv her and tell her to try and quiet down and we would talk the matter over, that we could perhaps arrange for another room downstairs, where it would be cooler. She said, ‘No,’ that she had tried to get that for a long while back, and Fred and Mate wouldn’t give up their room, and they wouldn’t let her have the large room downstairs. She said she had been trying to get another room; but they wouldn’t give her anything, that she had to get out, or she would die that day, and that I had to take her out. I either was to take her to Durand, or take her to Vernon to Howd’s, to her farm. * * * I asked her to be quiet, and gave her a powder, and went down to talk with Mr. and Mrs. Paine. * * * I told them what she said, and that she insisted on being taken away, that she either wanted me to take her to Howd’s or down to Durand some place. I asked them what the trouble was. Fred said, ‘She is having another one of her sprees,’ and I don’t remember as Mrs. Paine said anything to that; but they both said, ‘For God’s sake, don’t take her to Howd’s, for Howd is a scoundrel, and he will beat her out of every cent she has got.’ * * * The thought occurred to me of Gustin’s people keeping roomers, and he was on the corner. I said, ‘Mr. Paine, go down and see Dan,’ and he went, and ' Dan came up with him. * * * When he came, I talked the matter over in his presence. I explained to Dan that Mrs. Clark wanted to go away from there and wanted to go to Durand if she could go, and that I knew of no place to take her on such short notice, and asked if they would consent to take her for a time. He said he couldn’t say anything about it one way or the other. T could call up my wife,’ and if she wanted to it wouldn’t make any difference to him; but it would be just as she said. * * * Then I called up Mrs. Gustin. She said she couldn’t take her.
“Q. Go on and give the conversation you had with Mrs. Gustin.
“A. I explained to Mrs. Gustin that Mrs. Clark, who lived at Mrs. Paine’s, wanted to come to Durand, get a room, and stay there for a time, and I asked her if she would consent to take her, and Dan was present there while I was talking, and he said it would be just as she said about it. ‘Why,’ she said, ‘Doctor, it would be impossible for me to take her at the present time; my rooms are full, and I have no place to put her.’ ‘Well,’ I said, ‘she says she has got to go today, and she has got to go some place; if you can take her for a few days, it would be an accommodation to me to get her some place.’ Mrs. Gustin said, ‘With that understanding, I will take her for a time.’ * * * Mrs. Clark had her stuff all packed up, and I went up and told her, and helped her carry it downstairs. Mrs. Paine or anybody else did not go upstairs with me. I assisted her downstairs with her luggage. * * * She went away in a half or three-quarters of an hour after she came downstairs, perhaps an hour. When she left, she was angry and nervous; she was very angry.
“Q. Did she remonstrate?
“A. Why, she did to me; yes, she told me about how she had been used. She said they had used her like a dog there; they wouldn’t give her anything; they wouldn’t give her any room that was fit to sleep in, and the room she was in was terrible hot on this particular day. * * * After she got downstairs and got straightened around — by the way, she had spoken to me upstairs about this $900 note which was going to outlaw in just a little while, and she was so angry, she was crying about it at the time; she was going to sue Fred Paine. I said: ‘Mrs. Clark, just be quiet and don’t let that worry you at all. I will speak to Mr. Paine for you, and I know Mr. Paine will fix it up satisfactorily. There won’t be any trouble about it; you won’t have to sue him; there won’t have to anybody sue him; I will talk to him.’ And I did speak to him when I went downstairs; they said they would fix it. I told him if Mrs. Clark owed him for anything, board or anything, to take it out, but get that matter adjusted so she wouldn’t be worried about it. After she came downstairs she spoke about it again in their presence. I interrupted and told her I had spoken to them, and the matter would be fixed up; leave it alone, and it would be adjusted before it outlawed; and it was afterwards adjusted, after she was to Gustin’s. * * * Nothing was said to Mrs. Gustin about any terms, nothing said as to what she would receive, when I spoke over the ’phone. Mrs. Clark told me why she was leaving when she was up there before she left; because she couldn’t get a suitable room, and she didn’t like Fred Paine, she said, because he was unreliable and, dishonest and was always drinking and wouldn’t work her farm for her satisfactorily, wouldn’t settle up with her, and all that sort of stuff. She said she had offered to give Charlie the farm, and that at one time he talked as though' he would do it, and she bought him a team and started to carry out her part of the agreement, and when she asked him about getting some one to go on the farm with her he told her he wouldn’t take her old farm as a gift. She told me she had made a bargain' with Niver to move down on the farm; he was to live there and work the farm, and she was to give him the farm; she was going to live with him. She told me that before she canceled it. * * * Before September, while I was treating her, she told me she had been trying to get somebody to move onto the farm and take care of her. I tried to get some one for her, but did not succeed. When she left Paine’s, I saw Mr. and Mrs. Paine when they parted.
“Q. Describe the parting between her and Mrs. Paine.
“A. When they parted, they simply parted; she did not kiss her mother goodbye. I carried her satchels. She said nothing to Mr. Paine. He said nothing to her. He and I had some conversation. I said I was sorry to see her going away in that mood; * * * that I had done all I could to get her to stay, and Fred said that he didn’t care anything about it, he was glad to see the old bitch go. * * * He said she had nagged her husband to death, and had never been able to get along with anybody. After she got to Durand, I saw her the next day. * * * I saw her pretty nearly every day from that time on. In about three weeks she was taken severely sick. * * * I got a nurse for her, who was nursing in Du-rand. I don’t think she was there a week. Before the nurse came and afterwards, Mrs. Gustin took care of her. She was given the large bedroom on the first floor. Her severe illness lasted about a week. I did not see Mrs. Paine; she never came to see her at Gustin’s during the first year she was there. She spoke to me about Mrs. Paine not coming there; said it made her feel sad to think that her daughter— that she had been there about a year, and her daughter had never come to see' her. After she got over her illness, she spoke to me about a proposition to Gus-tin’s people in regard to the farm. I don’t think that was over a week before the deal. She said that she was thinking of deeding her .farm to Gustin in consideration of their taking care of her the rest of her life, and asked me what I thought about it. She did not at that time tell me of having made other offers; she did at other times; said she had offered it to Mr. Conn. When she spoke of the Gustin deal, she asked me what I thought of it. I said: ‘Mrs. Clark, I have helped to get you out of one deal of that kind, and I don’t want you to get into another. Take my advice, and don’t deed your farm to anybody; you have plenty of money to pay your way. If you like it as well as you say with these people, pay them well; if you get dissatisfied and want to go away, you can go away, then you can come back again, but don’t deed your farm away.’ She said that was very true, but she might go through the rest of her property or might lose it, and if she made such a deal she would know she would always be protected. I said to her: T can only say one thing in regard to it: I advise you not to do it; but I will say, whatever Mr. Gustin agrees to do with you he will undoubtedly do to the letter, because I would trust him with every dollar I have on earth. Mr. Gustin has been in my employ six or seven years; I have known him since he was a boy.’ Finally, one day Mrs. Clark told me she had decided she was going to deed her farm to the Gustins on that sort of a basis, and she also wanted to make a will at the same time, and she said: ‘Now I want to make a will — make a deed that can’t be broken down, because I know that Paine’s people will contest it when I am dead, and William Clark would raise right out of his grave if Fred Paine was to ever get a dollar of his money. For that reason, I want to make papers that won’t be broken, and I want to know what I have got to do.’ * * * She asked me who I would recommend as an attorney, and I told her I would recommend Mr. Hicks, who was attorney for our bank, doing our business, and being honorable and reliable, and asked me to have you call and see her. I was present at the time she gave you instructions in regard to how she wanted her will, and told you to prepare the deed and contract and the will. I was not present when any of them was done, and did not see them previous to their being executed. Her health was fair for her at that time; her mind was clear. I think her condition was better then than she is now. From that time on she would have sick spells. Some of them more severe than others. I think this last winter, in January, was the first time I called when she was sick and found her daughter there. She frequently spoke of the.kind of treatment she got there at Gustin’s.
“Q. What did she say about it?
“A. She said she never knew what it was to have a good home before; that these people had done everything in the world for her, and were doing, and it was no wonder that Mr. Gustin couldn’t get ahead in the world, the way he bought stuff. She never made any complaint of not getting what she wanted to eat. Paine’s people began to visit her more frequently, beginning the latter part of last January. My recollection is it was after that that I heard of the school board in Detroit making overtures to buy this piece of real estate. I was attending her in January, 1911, and before Mrs. Platt came there she had quite a severe. attack of the grippe, and had recovered from that, so that her temperature was normal, and was getting along nicely. After getting along nice for a few days, she was suddenly taken with pain, and became rapidly worse. That was after Mrs. Platt had come there, she was taken so bad. Sunday, towards evening, Mrs. Paine asked me if I didn’t think that mother had ought to have a nurse, and I said: Why, I kind of thought so last week, because she was very sick; but she is lots better now, and her temperature is normal. If she wants one, of course, it is entirely satisfactory to me. She thought she didn’t want one when she was sick the week before.’ * * *
“Q. Was Mrs. Clark at that time sick enough to require, in your opinion as her physician, a professional trained nurse?
“A. She wasn’t as sick at that time as she was the week before. After she was taken worse, she needed the best care she could get. She was a very sick woman. I couldn’t state the date, but a short time after Mrs. Platt came she was taken worse, 1 think. Mrs. Clark said she thought it was something she had eaten that had made her worse, some green stuff of some kind, I think she said it was. Her lungs were bad, especially her left lung. She-has had a chronic bronchitis ever since I have had her in charge, a very bad one, and she frequently had acute attacks on top of that chronic condition, associated with asthmatic trouble. I had an examination made, and decided it was not tubercular, and so informed Mrs. Clark.
“I was not interested in any way in the sale of this property, only to assist Mrs. Clark in what way I could, as she asked me for assistance. The first time that I heard about her going out to the farm she telephoned down from Paine’s, I think, to Dan. He was out when I answered the ’phone; I happened to be in the store. She said she- wanted to talk to Dan, and wondered if he was about ready to go out on the farm; that was the first time they went to the farm —the second year that she was at Gustin’s I think it was, along towards fall. I called Dan and heard him talk. He said that he had just got ready to go on his vacation — I always gave him a vacation, and have him draw his wages — and that he and his wife had decided to go to Toledo the next day; but he said, ‘Grandma, if you want to go to the farm, we will put off the Toledo trip and stay.’ I couldn’t say how long after that it was before he moved out to the farm. * * * I heard a conversation between Mrs. Clark and Dan in regard to going to the farm during her sickness in the spring of 1911, in the bedroom, along the latter part of March, I think. She said to me that when she got well, as soon as she was able, she wanted to arrange to go out to the farm this spring and stay there all summer.
“Q. Was Dan present at that time?
“A. She said, further, she wondered if Dan would be ready to go, and I asked her if she had said anything to him about it; she said she hadn’t. I said, ‘Let’s call him in and have an understanding, so when you get ready to go there won’t be any question about it.’ And I called him in, -and stated to him that ‘Mrs. Clark wanted to go on the farm as soon as her health would permit, and she wants to know if you will be ready to go.’ And h'e said, ‘Certainly, grandma, I am ready to go any time, if you will give me a few days’ notice so we can pack up; you give me 10 or 12 days’ notice, and I can get out there any time, maybe on shorter notice.’ He said, T would be glad to go any time.’
“Q. At that time what was her condition as to being sick or well?
“A. She was confined to the bed until she went away; she got up out of bed when she went away. I saw her that day she went away. I had a talk with her about how it happened that she didn’t stay at the farm when they were out there, and she told me she didn’t intend to stay any longer than when it began to be cold weathér, she wanted to go back to her fire, to furnace heat, and be handy where if I was called in the night, had a bad attack, she could get me.”

The testimony of the complainant as to the essential things does not differ materially from that of Dr. Fair. Soon after the last talk with the doctor, the complainant, without giving any considerable notice to the defendant, went to the farm with the nurse. This was after dinner on the 9th of May, 1911. Mr. and Mrs. Gustin at once packed their household furniture and went to the farm on the morning of the 11th of the same month, completing the moving on the 13th. Without any trouble having arisen after complainant went to the farm, the complainant left the farm July 27, 1911, saying to the defendant and his family that she was coming back, but instead of going back she commenced this litigation two days later.

It will be noticed upon a reading of the deed and contract that by their terms Mrs. Clark was parting with nothing in her lifetime; Mr. and Mrs. Gustin were receiving nothing in the way of an income from the farm or from Mrs. Clark.

It would profit no one to go into the details of the testimony. A careful reading of the record convinces us that Mrs. Clark first proposed this contract, without it being suggested to her by My. and Mrs. Gustin, or any one else, and after she had proposed like contracts to other people.. She was entirely competent to make it. The terms of the contract are such that it cannot be said that it was an unconscionable contract.

The record convinces us that for nearly three years Mr. and Mrs. Gustin, with as little friction as could be expected, in good faith carried out their part of the agreement and have always been ready, and are still ready, to carry it out.

Upon this record no court would be justified in setting aside this deed. The defendant has not appealed, so that the part of the decree in relation to the weekly payments is not open for review.

The decree is affirmed, with costs.

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