text:
    STOWE v. UNITED STATES EXPRESS CO.
    1. Carriers — Express Companies — Husband and Wife.
    Delivery by tbe driver of an express company at plaintiff’s former place of residence, as given in tbe city directory, was not a delivery to tbe consignee wbo bad separated from bis wife and no longer resided upon tbe premises, although she lived there.

      2. Same — Delivery—Excuse for Failure.
    It was not a sufficient excuse to relieve the carrier of liability that plaintiff, the consignee, left the city in the forenoon of the same day that defendant delivered the peaches at the wife’s residence, and did not return until • the goods had spoiled.
    3. Same — Release—Compromise and Settlement.
    Nor was defendant released because plaintiff signed an instrument when he presented his claim, authorizing defendant to adjust the claim and stipulating that “on such settlement I release United States Express Company from all claims and liabilities on account of loss in the above case.”
    Error to Kent; Perkins, J.
    Submitted January 27, 1914.
    (Docket No. 125.)
    Decided March 26, 1914.
    Assumpsit by Ernest A. Stowe against the United States Express Company for failure to deliver a consignment of peaches. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Hatch, McAllister & Raymond, for appellant.

      Wilson. & Johnson, for appellee.
    In this action the plaintiff seeks to recover against defendant a judgment for $1, the value of a basket of peaches. Defendant undertook to transport the peaches, and is said to have incurred liability because of its failure to deliver them to plaintiff, the consignee. Begun in justice’s court, where plaintiff had judgment, the cause was appealed to the circuit court, and was there tried by the court. Plaintiff requested written findings of law and fact, which' were made, proposed amendments thereto, and filed exceptions to the completed findings according to which defendant had judgment. These exceptions are to the refusal of the court to find as requested, with 13 specifications, and to the findings made, with 36 specifications. A bill of exceptions containing all of the testimony was settled, and was accompanied by 52 assignments of error;- the printed record containing 52 pages. None of the assignments of error are referred to in the brief for appellant, which contains, separate from argument, no statement of the errors relied upon, the questions involved, or the manner in which they are raised (Supreme Court Rule 40), nór is any of the argument addressed specifically to any assignment Of error or to any exception.
    It appears that Dallas D. Alton, residing in Fremont, on September 6, 1911, delivered to the defendant, at Fremont, a basket of peaches, consigned to plaintiff, and marked “E. A. Stowe, Grand Rapids, Mich.” He prepaid the charges, and was given defendant’s receipt. The peaches were a gift to plaintiff, who expected from them, he says, nothing but the pleasure of eating them. He did not know until later that the peaches had been sent to him. At some time during the same day the peaches arrived in Grand Rapids. Defendant undertook to deliver them to the consignee. For this purpose it consulted the city directory and found therein the name of plaintiff, with his residence given as No. 100 North Prospect street. In fact, plaintiff did not live at the place indicated, and had not lived there for more than a year. He lived at the Hoffman Apartments, and his place of business was, and for years had been, within one square of defendant’s office. Plaintiff had lived for a number of years at No. 100 North Prospect street, and his wife, from whom he was separated, but not divorced, and for whom he made provision, continued to live there. The agent of defendant took the package to this address, found a man employed about the place, asked him if it was plaintiff’s residence, was told that it was, saw the name E. A. Stowe upon the door plate, found no one in charge of the house, set the package in the back part of the house, and went away. He turned in a receipt for the package, signed, “E. A. Stowe;” himself signing the name. This was in the forenoon of September ,7th. Mrs. Stowe found the package about 12 o’clock, and had it conveyed to the cellar. Plaintiff left Grand Rapids about 10 o’clock on the, morning of September 7th, and remained out of the city until Sunday morning, September 10th. Arriving at his office September 11th, he found two letters, one from his wife, telling him that a basket of peaches had been left at his residence, addressed to him, the other from Mr. Alton, informing him about the shipment of the peaches. When these letters were written, or were mailed, does not appear. He requested the defendant to get the peaches and deliver them at his office, which defendant did. Plaintiff refused them because they were then decayed. Defendant did not know of the estrangement and separation of plaintiff and his wife, or that plaintiff lived in the Hoffman Apartments, and did know, generally, where plaintiff’s business office was. Plaintiff, had previously received at his office express packages addressed as the package of fruit was addressed.
    The plaintiff, on October 7, 1911, executed an order and release, authorizing the defendant to adjust a claim entered on account of the loss of the peaches with Mr. Alton, containing the statement:
    “On such settlement I release United States Express Company from all claims and liabilities on account of loss in the above case.”
    No settlement has been made with Mr. Alton by defendant.
    The principal contentions made upon this state of facts are:

      First, that plaintiff had no property in the peaches; second, there was a delivery of them, which discharged defendant; third, if there was a failure to make proper delivery, plaintiff’s absence from the city, would have prevented a delivery to him, and no injury resulted.

      On the question of the duty as to delivery of packages by express company, see note in 33 L. R. A. 66.

   Ostrander, J.

(after stating the facts). We should feel justified, after examining the brief for appellant, in affirming the judgment without examination of the record. We have concluded, however, to treat the findings of fact' as presumably supported by testimony, and to consider the single exception that the facts found do not support the conclusions of law and judgment.

We have no doubt that the plaintiff may maintain the action. Defendant did not make a proper delivery of the peaches. It made no delivery. Adrian Knitting Co. v. Railway Co., 145 Mich. 323 (108 N. W. 706); 4 Elliott on Railroads, §§ 1524, 1523; Bullard v. Express Co., 107 Mich. 695 (65 N. W. 551, 33 L. R. A. 66, 61 Am. St. Rep. 358).

The question of most importance is whether, having still reasonable time to make delivery when plain-' tiff left the city, the fact that he did leave, and that during the interval before he returned the fruit perished, may be offered as an excuse which will relieve defendant from liability. as a common carrier. A single case, Hutchinson v. Express Co., 63 W. Va. 128 (59 S. E. 949, 14 L. R. A. [N. S.] 393), in which a .similar excuse was held to be available to the carrier, has been brought to our attention. In that case the carrier failed to send to the consignee written notice, by mail, of the receipt of goods. It appearing that the consignee would not have received the notice if one had been sent, and that the omission of duty resulted in no injury to him, a recovery was refused. Applying such a rule here, it may be said that plaintiff was not injured by the failure of defendant to deliver the peaches. It cannot be said that upon appearances defendant was not warranted in the attempt to deliver the peaches at the private house. If the agent of defendant had learned at the house that plaintiff did not live there, and had then made inquiry at his office or apartments, he would have learned that he was out of the city. Delivery to plaintiff could not then have been made. Delivery to any one else would (have been at the peril of the defendant; there being no evidence of any custom or of any business or other arrangement of plaintiff’s which would have protected defendant in making a delivery to any other person. If it had then sent a notice to plaintiff, he would have received it probably on September 11th, which was the day he learned that the fruit had been sent to him, and had arrived. The effect of the decision in Hutchinson v. Express Co., supra, is to relax the rule of the carrier’s liability, a rule of public policy and convenience, “introduced to prevent ,the necessity of going into circumstances impossible to be unraveled.” 2 Kent’s Commentaries, p. 602. Plaintiff is relying here upon a strict enforcement of the rule, having in reality suffered no injury on account of its violation. The rule is rigorous; but it must be considered that a carrier may always, with certainty, even if with some inconvenience, discharge itself of its responsibility as carrier. We are of opinion that the rule should not be relaxed.

The release referred to was conditional. The claim was presented to defendant, and not allowed. It is no bar to the action.

It follows that the facts do not support the judgment, and that a judgment should have been entered for plaintiff for $1, and costs of suit.

The record is remanded to the circuit court, with direction to enter a judgment for the plaintiff. Plain- . tiff will recover costs of both courts.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    LYNCH v. VAL BLATZ BREWING CO.
    1. Landlord and Tenant — Intoxicating Liquors — Illegality of Lease — Rent.
    Under a lease of a building to a brewing company which made a practice of subleasing to various tenants for saloon purposes, providing as a part of the contract that the brewing company might surrender the lease if it should be prevented by any statute or law or authoritative order from using the premises for saloon purposes, it was insufficient to authorize the lessee to terminate such contract that its sublessee was refused a license to engage in the retail liquor business on the premises by the city council. The risk of. being able to procure a proper sublessee whs on the tenant.
    2. Same — Statutes—Brewing Companies.
    Act No. 1, Second Extra Session 1912 (2 How. Stat. £2d Ed.] § 5056), prohibiting brewing companies and other wholesale dealers from owning the license of retail dealers or controlling their business did not render illegal such lease, which was executed prior to the enactment of the statute.
    Error to Houghton; O’Brien, J.
    Submitted January 16, 1914.
    (Docket No. 173.)
    Decided March 26, 1914.
    Assumpsit by Eugene R. Lynch against Val Blatz Brewing Company of Michigan for rent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      J. F. Hambitzer, for appellant.

      Burritt & Burritt, for appellee.
   Ostrander, J.

The action was begun September 23, 1912, by the assignee of the lessors against the lessee to recover the rent reserved in a certain lease. The term created by the lease is three years from and after May 1, 1911, with, a possible two years in addition thereto. There is a stipulation in the lease that the property shall be used as a saloon and dwelling, but in no case used for any immoral or illegal purpose, or for any business deemed extra hazardous on account of fires, and a mutual stipulation that—

“Should said second party be prevented, by reason of any statute or law, or authoritative order, from using the said premises for the purpose of a saloon, as above provided, then the said second party reserves the right to surrender this lease, and have its obligations therein contained become null and void.”

There is no provision forbidding subletting or assigning the lease. Defendant gave notice, with its plea: That it would show in its defense that it had a tenant of the premises who conducted a saloon therein to May 1, 1912. That it made efforts to secure another tenant for the year beginning May 1, 1912.

“That a report became current, and it was remarked by certain of the aldermen of the city of Hancock, in which said premises are situated, that no saloons be permitted in said building, and parties feared making an application therefor, for fear that their application would be rejected if a license were applied for to conduct a saloon business in said premises, and therefore said William Lepisto declined making application therefor, but made application for a license to conduct a saloon on Quincy street in said city of Hancock. That on the 17th day of April, the defendant, by its vice president, wrote a letter to Hannah and George Rice, the owners of said premises, then residing in Eagle Harbor, Mich., reading as follows:
“ ‘Referring to lease made with you under date of April 10, 1911, and which expires May 1, 1914, covering premises as follows: The two-story frame, composition-roofed building and its additions, adjoining and communicating, situate upon the south one-quarter of lot number twenty (20) of block number eight (8) of the village (now city) of Hancock, wish to say that as we are advised, no license will ,be granted for the stand after April 30th, and we therefore will surrender possession of the premises on that date. Kindly asking you to he governed ao cordingly, and acknowledge receipt hereof, we remain.’ ”

That, after sending this letter, defendant was informed by the owners of the premises, the lessors, that it had been received, and “that it was all right,” and, after defendant had surrendered the property, the owners and lessors arranged with tenants occupying a portion of the building to remain therein and gave defendant written permission to store certain bar fixtures therein, without charge, until May 10, 1912. That thereafter defendant induced one Polsich to make application on or about May 15, 1912, for a license to conduct a saloon in said premises, and the application was made and rejected. That the lessors, after the surrender of the premises by defendant, requested ah agent of defendant to procure a tenant. Lastly, defendant’s plea contains the following:

“The defendant will also offer in evidence that it is engaged in the manufacturing and selling of beer, and has branch offices in several points in Michigan, one of which is in Hancock, and that it leases buildings for saloon purposes from owners of such buildings, and sublets such buildings to customers who are engaged in the saloon business, and that the provision authorizing a surrender and cancellation of such leases was inserted in such leases for the protection of the defendant in case it is unable to secure tenants for such buildings by reason of being prevented by statute or authoritative law, and such fact was well known to the lessors, Hannah and George Rice, and that by reason of the action of Dennis Holland, the former tenant, not having made application within the time specified by law for making application for a liquor license, and by reason of the failure of said William Lepisto making application for a liquor license to conduct a saloon in said premises, and by reason of the common council of the city of Hancock having rejected the application of said Joseph Polsich for a license to conduct a business in said premises, and by reason of the said common council or the aider-men of said city of Hancock being opposed to granting a license for conducting a saloon in said premises, the said defendant was unable to secure a tenant therefor, although it used every effort so to do.”

Testimony was introduced from which it appears that defendant is a manufacturer and wholesaler of beer, and that at the time of the occurrences in question it rented buildings from various owners, and sublet them to its customers for saloon purposes. The trial judge was of opinion that the defendant was not in law prevented from subletting the premises for a saloon; that it was not, under the undisputed evidence, in fact prevented by any statute or authoritative order from so using the premises at the beginning of the 1912 liquor year; that its failure to get a tenant did not relieve it from liability to pay rent; and that, having no legal right to surrender the lease, it was liable to pay the rent, unless there was a mutual agreement between lessor and lessee that there be a surrender. Stewart v. Sprague, 71 Mich. 50 (38 N. W. 673). He found ho mutual agreement for a surrender of the lease had been proven. He was further of opinion that Act No. 1, passed at the second extra session of 1912, in effect July 9, 1912, which forbids a concern like the defendant to assist retail saloon keepers in certain ways, had no effect upon contract relations established and existing in April and May, 1912. He expressly construed the lease, in view of all conditions, to mean, not that the . defendant should itself conduct a saloon upon the premises which, having a wholesale license in the district, it could not lawfully do, but as meaning and intended to provide for the subletting of the premises by defendant for saloon purposes. These views required that a verdict be directed, and the jury was instructed to return a verdict for plaintiff for $325, being the rent from May 1, 1912, to September 23, 1912; interest being waived. The argument of appellant which is most plausible is the one that, having found that under all the circumstances it was the understanding of the parties to the lease that defendant leased the premises for the purpose of subletting them, and not for the purpose of itself conducting á saloon, the court should have determined, upon like reasoning, that, if for any reason defendant could not sublet the premises for saloon purposes, the mutual stipulation referred to permitted defendant to surrender the premises and the term. But it will be perceived that the stipulation is not to this effect, and is to the effect that, if defendant is prevented from using the premises for a saloon by any statute, law, or authoritative order, there may be a surrender. The risk of being able to secure a proper sublessee is assumed by defendant.

Appellant invokes the doctrine that, if a contract is legal when made, and the performance of it is rendered illegal by a subseqeunt law, the parties thereto are discharged from its obligations. Gray v. Sims, Fed. Cas. No. 5,729; Heart v. Brewing Co., 121 Term. 69 (113 S. W. 364); Hickey v. Sciutto, 10 Brit. Col. Law Rep. 187. The application of the doctrine attempted is that after July 9, 1912, when the act of the extra session became effective, defendant’s obligation to pay rent was discharged. It is not made very clearly to appear what the relations of defendant to its sublessees usually were, and not at all clear what relations it sought or proposed to establish with its sub-lessees for the year 1912. But it is not claimed there was any law forbidding the use of the premises for a saloon, nor that the contract restricts the use to sales of intoxicating liquors.

We think the trial court was right as to each of the conclusions stated, and therefore affirm the judgment.

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


text:
    SCHWAGER v. SAGINAW PLATE GLASS CO.
    1. Master and Servant — Guarding Openings — Negiigence.
    Where decedent’s master had been accustomed in using air hose at its factory to lay the hose across its passageway that decedent went through to leave the factory, and where he and other men had frequently ridden on their bicycles along the passageway, defendant owed no duty to the servant to furnish a safe way for the use of the laborers so as to make it1 liable for injuries resulting in the death of its servant, where his bicycle skidded against the air hose laid diagonally across the passage as it had been placed for about two days in the ordinary course of business to the knowledge of decedent, throwing him into an open pit from which the railings or guards had been removed for necessary repairs.
    2. Same — Contributory Negiigence.
    If the defendant was in any sense negligent for leaving the engine pit into which the deceased employee fell, unguarded, the latter was guilty of contributory negligence for failing to act with the caution which the apparent conditions, of which he had actual notice, required of him to protect himself from injury.
    Error to Saginaw; Kendrick, J.
    Submitted January 20, 1914.
    (Docket No. 103.)
    Decided March 26, 1914.
    Case by Wilhelmina Schwager, as administratrix of the estate of Henry R. Schwager, deceased, against the Saginaw Plate Glass Co. for the unlawful killing of decedent. Judgment for plaintiff, and defendant brings error.
    Reversed.

      Humphrey, Grant & Humphrey, for appellant.

      Frank A. Rockwith (R. L. Crane, of counsel), for appellee.
   Ostrander, J.

When plaintiff rested her case, a motion was made by defendant for a directed verdict, in denying which the learned trial judge said:

“In this case it seems that the negligence complained of by the plaintiff against the defendant comes close along the line of that notorious condition which was under the common observation of any person who was in that locality. Yet there are certain conditions surrounding it that lead the court to think that perhaps there were facts there that the deceased was not as familiar with, as I recollect the testimony. As to how often he visited the locality, and what attention he gave it, is not apparent in the testimony. What is complained of as to the surroundings being unguarded and of a hazardous character, they were of a character that, it seems to me, the defendant would have knowledge of the hazardous character unless properly guarded. This place was not properly guarded at the time of the injury to the deceased; the conditions had been changed, and the guards that had been provided by the defendant had been moved, and were, if hazardous, continued dangerous at the time of the accident. That, of course, would not bind the company if the plaintiff had actual knowledge of the condition surrounding. If the conditions there were such that any person should have known, and would have known, all of the situation and surroundings, then the mere fact that the defendant did not guard these pit holes would not render them liable, nevertheless. But I am inclined to think that this is a question, perhaps, that should go to the jury and they take the responsibility. While I confess it is a very close case, it is not as clear to me as the vision of the attorneys on either side. I feel it my duty to deny the motion. The defendant may have an exception.”

Some testimony was introduced by defendant, and the motion for a directed verdict was renewed and overruled with the statement:

“The negligence, the only thing that should be submitted to the jury, is simply negligence in the way they handled that rail. Had he fallen over and struck himself against the rail, I think he would have had no remedy whatever, and would have been barred.”

Two principal acts of negligence on the part of defendant are alleged in plaintiff’s declaration: One, a failure to guard by a railing a sunken engine pit in the power room of the plant; the other, the leaving of an air hose lying upon the floor, over which plaintiff’s intestate traveled. As to the presence and use of the air hose, the court instructed the jury:

“I charge you concerning the surroundings which have been explained to you, and which have been prominently in consideration in the trial of this case, that it has been the fact that the railing was removed from a portion of the front of these pits, as has been described to you, and concerning certain air hose. Now, I have stated to you that it is the law, and properly so, that a party entering the employment of another assumes the natural risks incident to the business; and concerning the hose, I charge you that it appears in the evidence in this case that this air hose is oftentimes in constant use in and around this factory, and was used by coupling the hose with the air at some place in that portion of the building, and then again at some other place where the air was being used in the building, and that was one of the methods used by the defendant in the operation of its factory, and that this means or method of operation had been in use since the time that the factory was constructed and put in operation; and I charge you, gentlemen of the jury, that the defendant is guilty of no negligence in the use of this hose and in the operation of this factory in the usual and ordinary manner in which the same was operated.”

Assuming that the jury followed the instructions given them, they then found the defendant negligent in not having at the time a guard along the floor at the engine pit. Upon this subject, in all essentials, the testimony is undisputed, and the manner in which plaintiff's intestate was injured is related by an eyewitness, called by the plaintiff.

Plaintiff’s intestate was the electrician in defendant’s plant, where he had been employed for upwards of ten years. He was 35 years of age. His bench and cupboard for his tools were in the machine shop, and his duties called him into practically all parts of the factory. Considerable of defendant’s machinery was operated by electric power. The machine shop has a direct entrance from outside the building by means of large doors. It may also be entered from the power room. In the power room, sunk below the level of the floor, were engines operating polishing machines and perhaps other machines; the polishing machines being set at some distance from the engines which operated them, with a floor space between, the application of power being below the level of and through a space under the floor. One passing along the floor in this part of the power room had engines, in pits, on one side, and polishing machines on the other; the floor space being some six feet wide and a hundred feet and more in length. Turning off from this passageway at right angles, was a narrow floor space, 10 or 12 feet long, between engine pits, which ended at the door giving entrance to the machine shop. At some time during the interval of three years before the occurrence in question, iron railings had been erected in the floor on three sides of the engine pits; the fourth side being the wall of the building. A space three or more feet wide was left open in each case for an entrance to the pit. To prevent water running from the floor into the engine pits, the defendant undertook to build around each a brick coping, higher than the floor, into which the iron guard railings were to be set. The work of so protecting pit called No. 2 was begun some two weeks or more before plaintiff’s intestate was injured; the railings being removed and the laying of the brick coping begun. No temporary railings were used, and, because the masons who began the work were called to perform duties in some other part of the plant, the work which otherwise would have been completed remained incomplete. Three days or more before plaintiff’s intestate was injured, a workman had been directed to do something near engine No. 2 which required the use of the air hose, for the attachment of which various places existed in the room; the hose being almost constantly in use. The hose was laid along the floor from the place where it was attached, and in this case it was attached three feet above the floor in the narrow passage running to the machine shop door heretofore described, and was laid upon the floor out to the main passage and diagonally across it. The hose remained on the floor for several days. Plaintiff’s intestate habitually, in fair weather, rode a bicycle in going to and from his work. Instead of placing it in a rack provided by defendant for that purpose, he took it into the machine shop where he had his bench. Instead of entering the machine shop through the main doors provided for the purpose, he entered it from the power room. Instead of walking through the power room, and leading his wheel, he rode his wheel across it some 200 feet along the floor between the engines on one side and the polishing machines on the other until he came to the narrow passageway mentioned, into which he turned, at the end of which was the door into the machine shop. In quitting work he followed the same course. He brought his wheel from the machine shop into the narrow passageway, mounted it, rode a few feet in the passageway, turned at right angles, and proceeded upon and along the floor of the power room to the entrance thereto. He so rode his wheel into the plant on the mornings of January 18 and 19, 1911, and on and over the air hose on the floor. He attempted to ride it out, upon quitting work, in the evening of January 19th. The room was well lighted with electrie light. As he turned the corner out of the passageway, riding slowly, one wheel of his bicycle came in contact with the air hose, the bicycle skidded, he was thrown over and into the pit of engine No. 2, and his arm was badly injured. He had been told by a superior employee of defendant, who, however, had no supervision over or control of him, or his work, that it was a dangerous thing to ride through the power room on his wheel, because other employees were using the floor, glass was being carried along it, and he was likely to cause injury to himself and to defendant’s property.

Describing the way plaintiff’s intestate received his injury, the person who saw it said:

“Well, Mr. Schwager, he got his wheel and walked to the machine shop door with his wheel, got on the wheel, and started off. And as he went to make the bend he just got nicely on his wheel, and he went to make the bend, and there was an air hose lying between No. 1 and 2 pit, and as he went to turn his wheel, on the angle, struck the hose and threw him into the pit; his wheel going on one side of the pit and. him landing on the other side. * * *
“Q. And how far did he ride on the wheel before it struck this hose?
“A. Well, I should judge about 10 or 12 feet, possibly 15.
“Q. And about how far had he got around -the corner here, the first corner that he made?
“A. Well, he hadn’t got turned around there at all; he was just near it; the front wheel was just coming around. The wheel hadn’t passed the corner entirely.
“Q. So the middle of the wheel would be about opposite that corner?
“A. Yes. * * * It was the air hose that I have just mentioned that throwed the wheel into the pit. There was other hose about pit No. 2 at that time besides this one air hose. There was water hose; there was water hose all around there; that was right there in the bannister.”

This witness testified, also, that he saw plaintiff's intestate ride over the air hose at least two days and that it had been lying on the floor for four or five days; that the hose was in constant use about the factory, “as it was this day, lying on the floor.” Except that the railing had been removed from about the pit of engine No. 2, all witnesses say that conditions were as usual and as they had been for years. The railings were made of gas pipe and were three feet above the floor, supported at intervals by standards or uprights of the same material.

Plaintiff appears to have claimed something on account of the fact that a considerable number of the workmen passed over the floor of the power room, that some of those who rode wheels carried the wheels into the shop, and that plaintiff’s intestate rode his wheel through the power room frequently, so often that some person or persons in authority ought to have seen him do it, and he was not forbidden the practice. The defendant’s factory usually runs day and night, with two crews of men. The testimony is very indefinite as to what man other than plaintiff’s intestate rode a wheel through the power room. There was some testimony which tended to prove that two others did so. Just where they rode them, to what point, or points, is not clear. However favorable to plaintiff this testimony may be supposed to be, it is evident that plaintiff’s intestate ought to have learned from his experience the conditions existing there and the use which was habitually made of the air hose. It is said in the brief for plaintiff that—

“Deceased went by this pit the same as,others, and, if the several hundred persons continually passed to and fro while the rail was down, it would be of force that deceased did as the others, and that is the test of due care.”

And again:

“Deceased assumed the risks incident to his employment as an electrician. No one would anticipate defendant would make this common passageway needlessly and' negligently dangerous for him. That it was in that condition for all passers is too plain for question. There is no assumption of risk in this case.”

Several hundred people did not continually ride bicycles through this room, and I find nothing in the record to support the proposition that the defendant undertook to maintain a way through it for the use of persons riding bicycles.

I know of no principle of law which supports the idea that because plaintiff’s intestate was not forbidden to ride his bicycle in the building, or was not discharged from service for riding it, he therefore acquired the right to a safe way for riding. He was performing none of the duties of his employment when he was riding through the room, but was consulting his own convenience. Upon the facts, the case is not one for the application of the doctrine that the master must furnish the servant a safe place in which to perform his work. Assuming that the defendant knew the habit of plaintiff’s intestate,' and that he had tacit permission, or was licensed, to use the place as he did, defendant laid no trap for him. It did not dig a pitfall or dangerously, or in an unusual manner, obstruct or change the way traversed by him. ' In the regular course of its business, it was remedying a defective condition, in doing which it removed a railing from an engine pit. In the regular course of affairs, an air hose had been left by a workman on the floor. And plaintiff’s intestate must be presumed to have known of the absence of the railing; must be presumed to have accepted the risk of riding once more over a hose that he had passed over for two days, and perhaps for a longer time. It is incredible that he could have suffered the injury if he had walked along the floor.

I am of opinion that defendant, as matter of law, failed in the performance of no duty which in the circumstances it owed to plaintiff’s intestate. Other considerations bring me to the same result. The testimony permits no one to fairly say that the presence of the railing would have averted the injury, and, if it was negligent for defendant to leave the engine pit unguarded and to permit the air hose to remain upon the floor for so long a time, the evident failure of plaintiff’s intestate to act with reference to known, or observable, conditions plainly contributed to his injury.

The judgment is reversed, and, as upon plaintiff’s theory there can be no recovery, no new trial is granted.

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


text:
    PEOPLE v. KOWALSKI.
    Criminal Law — Advertisement—Principal and Agent — Physicians and Surgeons.
    Where the respondent, a physician, was charged with publishing, contrary to the provisions of Act No. 164, Pub. Acts 1907 (2 How. Stat. [2d Ed.] §5110), an unlawful advertisement in a newspaper, and her defense was that her husband had prepared and carried it to the newspaper and had paid for it without her knowledge or authority by a check Signed in blank by respondent and filled in by him, the trial court did not err in charging the jury that it was not necessary to find that the respondent personally directed the insertion of the offensive matter: if she did it through another she was responsible, but the jury must find that she knew it was going to be published and was responsible for it and paid for it with knowledge of what she was doing.
    Error to the recorder’s court of the city of Detroit; Connolly, J.
    Submitted January 29, 1914.
    (Docket No. 143.)
    Decided March 26, 1914.
    Mary Kowalski was convicted of violating Act No. 164, Pub. Acts 1907 (2 How. Stat. [2d Ed.] § 5110).
    Affirmed.

      Grant Fellows, Attorney General, Hugh Shepherd, Prosecuting Attorney, and Harry B. Keidan, Assistant Prosecuting Attorney, for the people.

      C. A. Howell and James V. D. Willeox, for respondent.
   Ostrander, J.

Respondent was convicted by a jury of an offense defined and made punishable by the provisions of Act No. 164, Public Acts of 1907 (2 How. Stat. [2d Ed.] §5110), namely, that, being a duly registered practitioner in medicine, she inserted or caused to be inserted and printed in a newspaper an advertisement obnoxious .to the statute. A motion for a new trial was made upon the grounds that-the court erred in receiving in evidence and permitting to be read to the jury a copy of the advertisement, and that the verdict was against the weight of the evidence. A new trial was refused, and exception was taken. This exception is the basis for an assignment of error, and error is assigned upon that portion of the charge in which the court said:

“There is another phase of this case which, I think, requires a word of explanation. It is not necessary to find, in order to convict this defendant, that she personally went over and caused this advertisement to be inserted. It is sufficient if she caused it to be inserted either in person or by her duly authorized agent. If she was the responsible moving party who incited or procured the publication of that advertisement, and if it is of the character penalized by the statute — namely, if it is an advertisement with reference to diseases of the genito-urinary organs, or venereal diseases, or containing obscene or offensive matter — she would be just as guilty as though she went over there and put it in herself. The mere fact that she did it through somebody else, if she did it, does not relieve her from responsibility; but you must be satisfied, in order to convict her, that she knew it was going in, was responsible for its going in, paid for it, knowing what she was paying for.”

The criticism made is that:

"This instruction was misleading and erroneous. It advanced a theory unsupported by any evidence in the case, and in conflict with it; and it introduced the unnecessary and uncertain element of agency as an open question to be passed on by the jury, without any instruction as to what would constitute agency, under the evidence. It ignored the defendant’s evidence and theory of defense.”

Respondent had, for a considerable time, carried an advertisement, with her picture, in the same newspaper. It was her theory that her husband changed it, prepared the obnoxious advertisement, carried it to the newspaper, and paid for it without her knowledge, with a check signed by her, but signed in blank and filled out by him. Her testimony and that of her husband tended to sustain this theory. It was admitted that in various business matters, other than professional, her husband acted for her, and that he paid bills, using checks signed in blank by her. The advertisement was in the Polish language, correctly described the place where respondent’s office was maintained, was published over her name, and accompanied with her picture. It is not claimed that the respondent was entitled to a peremptory instruction in her favor, and no request was made to have the instruction which was given modified. In view of the defense which was interposed, it is not perceived how the jury could have misinterpreted the instruction. It is a correct statement of the law, which in the language employed by the court, or in some suitable language the people were entitled to have given to the jury. We find no reason for holding that the matter should be submitted to another jury.

Reversible error is not made to appear, and the conviction is affirmed.

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


text:
    PEOPLE v. AMERICAN CENTRAL INSURANCE CO.
    1. Taxation — Insurance—Reinsurance—Foreign Corporations.
    A foreign insurance corporation lawfully doing business in Michigan, is not liable for the statutory tax upon the original premiums received by a domestic company on that portion of the risk which the foreign company has reinsured, when the local insurance corporation has paid the tax assessed against it, under Act No. 164, Pub. Acts 1903 (3 How. Stat. [2d Ed.] § 8082). Payment of the tax in this manner relieves the reinsuring company. The statute provides for a specific tax upon the gross amount received in premiums after deducting the premiums which may have been returned upon canceled policies, and the phrase “in any manner,” as employed in the proviso, refers to the two usual methods of reinsurance.
    2. Same — Reinsurance.
    The term reinsurance means either the substitution of a new insurer with, the consent of the policy holder, releasing the original insurer, or the indemnification by one company of another on account of risks which the indemnified concern continues to carry.
    Error to Ingham; Wiest, J.
    Submitted February 3, 1914.
    (Docket No. 176.)
    Decided March 26, 1914.
    Assumpsit by the people of the State of Michigan against the American Central Insurance Company for unpaid .taxes. Judgment for defendant, and plaintiff brings error.
    Affirmed.

      Grant Fellows, Attorney General, S. D. Pepper, Assistant Attorney General, for appellant.

      Arthur P. Hicks, for appellee.
   Ostrander, J.

By 2 Comp. Laws, § 7257 (3 How. Stat. [2d Ed.] § 8082), it is, among other things, provided :

“Any fire insurance company, association, or partnership incorporated by or organized under the laws of any other State, or any foreign government, doing business within this. State, shall, as a condition precedent to the renewal of an annual certificate by the secretary of State, make and file in the office of the State treasurer, annually, in the month of January of each year, on oath or affirmation, a statement of the number of fire policies issued by its agents, and procured by or written for subagents, solicitors, or brokers, upon property owned by residents of, or situate in the State of Michigan; also, a like statement of the marine insurance business transacted in the State of Michigan, and the gross amount of premiums received or secured thereon during the year then terminated; and shall pay into the hands of the State treasurer a specific tax of three per cent, on the gross amount of all premiums received in money or securities during the said year.”

By Act No. 118, Public Acts of 1899, there was added to the law the following:

“And in ascertaining the gross amount of all premiums received or secured, the return premiums on canceled policies shall be deducted, and shall not be included in the term ‘gross amount of premiumsand such deductions shall not include any moneys paid by any company for reinsurance.”

By Act No. 184, Public Acts of 1903, this section was again amended, and the entire section reads now as follows:

“Any fire insurance company, association or partnership incorporated by or organized under the laws of any other State, or any foreign government doing business within this State, shall, as a condition precedent to the renewal of an annual certificate by the commissioner of insurance, make and file in the office of the State treasurer, annually, in the month of January of each year, on oath or affirmation, a statement of the number of fire policies issued by its agents, and procured by or written for subagents, solicitors or brokers, upon property owned by residents of or situate in, the State of Michigan; also, a like statement of the marine • insurance business transacted in the State of Michigan, and the gross amount of premiums received or secured thereon during the year then terminated; and shall pay into the hands of the State treasurer a specific tax of three per cent, on the gross amount of all premiums received in money or securities during the said year, and in ascertaining the gross amount of all premiums received or secured, the return premiums on canceled policies shall be deducted, and shall not be included in the term ‘gross amount of premiums;’ .which said specific tax may be recovered from any company neglecting or refusing to pay the same in any court, at the suit of this State, and shall be and hereby is appropriated to the same uses and purposes as the specific tax on such corporation are or hereafter may be; and it shall be the duty of the State treasurer to give his receipts for all moneys paid into the State treasury under the provisions of this act: Provided, however, that when, by the statutes or rulings of the insurance department of any State, a tax is laid or levied upon the amount of the gross receipts of premiums received upon any company organized under the laws of this State and doing business in such State, which amount of gross receipts shall include return premiums, then insurance companies from that State doing business in this State, shall be taxed upon the amount of gross receipts for premiums without excluding the cancellation: Provided, further, that all companies transacting any reinsurance business in any manner shall pay the above tax upon the original premium received by the reinsured company on that portion of the risk reinsured: Provided, however, said reinsuring company may deduct from such premiums that portion of such premiums upon which the reinsured company has paid the above three per cent, tax.” 3 How. Stat. (2d Ed.) § 8082.

Defendant is a foreign fire insurance company, and it is alleged that beginning with and including the year 1903, and up to and including the year 1912, it did not pay and was not required to pay a tax upon premiums received by it from Michigan fire insurance companies for reinsuring risks of those companies. It is stipulated that:

“Defendant included in the tax statement for' the years 1903 to 1913, inclusive, under the item on said blanks ‘policies and aggregate amount of premiums reported for taxation by the original insuring company upon that portion of the risks reinsured in this company,’ the portion of the premiums on policies written by insurance companies organized under the laws of Michigan on property situated in Michigan which had, during such year, been reinsured by defendant, and the amount of such premiums was deducted from the toual of premiums received by the defendant company in determining the item in said blanks ‘the balance upon which a tax of 3 per cent, is to be paid.’
“The amount of the deductions, which consisted of the proportion of the premiums on Michigan risks, re-insured from Michigan companies, which had been re-insured by the defendant company for each of the respective years 1903 and 1913, was as follows:.
Year. Business of 1903 Business of 1904 Business of 1905 Business of 1906 Business of 1907 Business of 1908 Business of 1909 Business of 1910 Business of 1911 Business of 1912 Premium received. ...... $13,338 45 ...... 12,932 30 ...... 13,675 84 ...... 15,859 99 ...... 12,676 30 ...... 9,530 42 ...... 9,370 86 ...... 8,584 27 ...... 245 78 ...... 7,114 29 Total.............................. $103,328 50
“In case the court should find defendant liable in this action for a tax of 3 per cent, on reinsurance premiums received by defendant from Michigan companies on risks located in Michigan for any of the years 1903 to 1912, it is agreed that such tax shall be computed for such years upon the amount stated opposite such year.”

Michigan fire insurance companies pay an ad valorem tax. The question is whether foreign fire insurance companies are required to pay a specific tax upon premiums received by them from Michigan companies, whose risks they reinsure. The question is answered when the legislative purpose is.determined; a determination to be reached, if possible, from the language employed in the statute, and, if that is ambiguous, then by the use of proper aids to construction.

There is some apparent, but little real, ambiguity in the statute. It relates entirely to foreign fire insurance companies. It imposes a tax which the company must pay annually, if it continues to do business ■ in the State. The tax is computed upon the gross premiums received for insuring property in the State, deducting premiums returned with canceled policies. It is a specific tax upon business transacted by the insuring company.

The term “reinsurance” has two meanings. When a fire insurance company, with the consent of the insured, is substituted for another fire insurance company, so that the insured releases the original insurer and looks to the substituted company alone, reinsurance has been effected. A company desiring to cease doing business entirely, or in a particular State, may thus reinsure -its risks. Usually the term is used with another meaning, which is that one fire insurance company indemnifies another on account of risks which the indemnified company is carrying and continues to carry. In such a case, the insured looks only to the company which issues its policy to him. A company may thus reinsure its risks, in whole or in part, by contract with the reinsuring company, and, with respect to the indemnity so secured, no new policies be written or issued. The company issuing the policy collects the premium from the insured. It pays the reinsuring company for its promise of indemnity. Whatever the form of reinsurance, it is plainly the meaning of the statute that a reinsuring company shall be liable to pay the whole or some part of the tax of 3 per cent, upon the gross amount of the original premiums received for risks. The tax need be paid but once and but by one company; i. e., if the original insurer does not pay it, the reinsurer must do so. Both are liable, where, before the act of 1903 was passed, only the original insurer was liable. This, I think, the second and third provisos make clear.

It is true the office of a proviso in a statute is, usually, to explain, modify, qualify, the enacting clause, and not to enlarge it. While this is the appropriate and the presumed office of a proviso, it may be clearly designed to perform some other office. And so it has been held that a proviso may be construed to enlarge the scope of the act, or to be equivalent to an independent enactment. 36 Cyc. p. 1161 et seq. Here, in accord with what seems the plain intention of the legislature, I construe the statute in such manner that the second and third provisos operate to make the reinsuring company liable for the tax upon. the original premium paid to the insuring company, discharged of such liability, if the insuring company, as it is bound to do, pays the tax. The words “in any manner,” in the proviso, mean in either manner herein indicated for reinsuring. This construction gives effect to every portion of the statute.

Fairly, construction can take us no further. The legislature has not imposed a tax upon the sums paid by insuring to reinsuring companies, whether the insuring companies are foreign or domestic companies. The executive departments have also so construed the act.

We must therefore deny the contention of the learned attorney general that a foreign fire insurance company, which reinsures the risks of a Michigan fire insurance company, is liable to pay a tax of 3 per cent, “upon the original premium received by the reinsured company on that portion of the risk reinsured.”

The judgment is affirmed.

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


author: Moore, J.

text:
    GRAHAM v. CITY OF GRAND RAPIDS.
    1. Municipal Corporations — Special Assessments — Sewers.
    Under special authority conferred by an act of the legislature (Act No. 668, Local Acts 1905), the city of Grand Rapids was legally empowered to convert an open ditch into a covered sewer and to levy a special assessment for the improvement on neighboring parcels of real estate and to include premises which did not connect directly with the sewer or abut on it.

    2. Same — Taxation.
    Lands on the line of the sewer do not usually receive all the special benefits and therefore should not pay all the cost; but in a clear case of assessment for special benefits for a sewer upon lands which could not possibly be benefited, the court may interfere.
    3. Same — Presumptions.
    The presumption is that in making a tax district and assessment, officers of a municipality have acted in good faith and have correctly performed their duty and in the absence of proof of mistake or fraud their determination is conclusive.
    ■t. Same.

      Held, that the evidence sufficiently sustained a special assessment for a public sewer in proportion to benefits received.
    Appeal from superior court of Grand Rapids; Stuart, J.
    Submitted October 13, 1913.
    (Docket No. 29.)
    Decided March 27, 1914.
    Bill by Robert D. Graham and others against the city of Grand Rapids for an injunction against a special assessment. From a decree for defendant, complainants appeal.
    Affirmed.

      Colin P. Campbell, for complainants.

      R. M. Ferguson, for defendant.

       As to what property is liable for assessment for construction of drains or sewers, see note in 26 L. R. A. (N. S.) 973. On the question who is liable for the expense of drainage, see note in 58 L. R. A. 353. And as to assessments for drains and sewers, generally, see note in 60 L. R. A. 227.

   Moore, J.

This is a bill filed to enjoin a special assessment made to pay the cost of making a covered sewer out of an open one, and placing a pumping station at its lower end, for the purpose of pumping the contents of the sewer over an embankment in times of high water iñ the river into which the sewer flows, so as to prevent backwater from the river overflowing the lands through which the sewer flows. This work was undertaken because the constant annual cleaning of the open ditch was expensive, and because the báckwater from the river in times of high water menaced the health of the citizens. Witnesses say that noisome odors came from it, and that it was more or less the cause of disease. Proper steps were taken declaring it a necessary public improvement, and its construction was undertaken. The work is regarded by the city authorities as a trunk sewer, and is about six or seven feet in diameter.

Complainants are the owners of 20 acres of land bounded on the north by Bridge street, on the west by John Ball Park. The east line of their land is 2,000 feet west of the trunk sewer. The land was assessed $1,000, payable in ten equal annual installments. A hearing was had in open court. From a decree dismissing the bill of complaint, the case is brought here' by appeal.

We quote from the brief of appellant:

“Complainants claim: First, that the assessment in question was in excess of the jurisdiction of the board of assessors of the city of Grand Rapids, in that the construction of the sewer conferred no benefit upon complainants’ property other or different from the benefits conferred upon all other property of the community. Seeond, that complainants’ property was not benefited in such a special and peculiar manner as would warrant its inclusion in a special assessment district, and would justify the impression upon it of a special assessment for the construction of the sewer. Third, that the fact that the property is within the drainage area of the sewer so long as the drainage of the property is not improved and so long as actual connection with the sewer is not furnished does not warrant imposing a special assessment upon the property.”

Each of these propositions is argued at length, and counsel cite authorities that sustain his contention as to his last proposition- but none of them are from this State.

It is the claim of counsel that the land is farming property; that it does not receive any appreciable benefit; that the land is not abutting upon the sewer; that its drainage is not benefited; and that any prospective benefit could not be considered.

It may be wise to get a general idea of the situation. Grand river runs nearly north and south through Grand Rapids, until it gets south of Bridge street, which is one of the main east and west streets of the city. The river then runs to the southwest, until it crosses the west city limits. West and north of the river there is a wide area of comparatively low and level land. About midway between the west city limits and that portion of the river running north and south, there has been for many years an open ditch or sewer running generally in a north and south direction, and emptying into Grand river, where the river runs in a southwesterly direction. During a period of heavy rains, Grand river would back up in this open ditch, and a wide area of land would be flooded. This ditch ran under the tracks of a railroad company, which were laid upon a high embankment near the river, and nearly parallel to it. It was conceived that if the open ditch was made a covered sewer, with a pumping station just north of the railroad embankment, that, by shutting out the water from the river and pumping the contents over the embankment into the river, a flood could be practically prevented and the sewer be made an available sewer all the time. This undertaking involved a large expense, and, in view of the situation, the legislature was appealed to. By Act No. 668, Local Acts of 1905, it authorized the conversion of the open ditch into a sewer and the' issuing of bonds. We quote from the act:

“Sec. 2. If the common council shall by resolution determine that the whole or any part of the said improvement shall' be defrayed by an assessment upon the owners of real estate to be benefited by said improvement, after having ascertained the estimated expense of said improvement it shall declare by an entry in its minutes which proportion thereof shall be assessed to such owner specifying the whole sum to be assessed and the portion of the city which it deems benefited by such improvement. The costs and expense of making the estimates, plans and assessments incidental thereto, shall be included in the expense of such improvement.
“Sec. 3. All the provisions of title six of an act to revise the charter 'of the city of Grand Rapids, apr proved June sixth, nineteen hundred five relative to the streets and public improvements and relative to ascertaining the cost, ordering improvements and assessing the cost of making assessment rolls and street improvements, shall be applicable to the ascertainment of the cost of the West Side Big Ditch improvement, to be paid for by the proceeds of the West Side Big Ditch bonds and the assessment of said cost or such portion of such cost as the common council may determine by a majority vote on the real estate deemed to be benefited thereby. Said assessment roll shall be subject to appeal therefrom to the common council by any of the parties assessed therein and shall be subject to ratification and confirmation by the common council and shall be final and conclusive as in other cases of public improvements under the provisions of said title six, and shall be a lien upon the premises from the date of such confirmation.”

An inspection of the record shows that the municipal authorities attempted to and, we think, did follow the provisions of the act.

As before stated, complainants’ property is bounded on the north by Bridge street. It is all high ground and would not be flooded by high water. Counsel say it is farming land. Mr. Graham testified to buying the land three years before the trial, and paying for the west ten acres $4,500, and more, though just how much he could not remember, for the east ten acres, and that the land had been platted into one-acre lots.

“It certainly is a fact that we expected to, and expect now to, some time sell off lots from this. The property is in the city, and is not supposed to be used for farm property. The taxes are too high. The property is for sale in whole or any part of it. We expected to sell the property, and platted it for that purpose. We have platted it in acreage property. It is not farm property, it is in the city and assessed as city property, but it was used to raise corn on for the past three years. It was not necessary to plat it for the purpose of raising corn. I don’t know whether it would sell for more in small parcels. We haven’t sold it. I said a few moments ago that property inside of the city was not supposed to be farm property, but was supposed to be used for building houses on. It is a good theory that this property would be more valuable as lot property than it would be to sell it as one parcel. It don’t work out in this case. The property is not worth one cent more than it was the day I got it. I will sell it for what I paid for it. I have endeavored to sell lots off. It has been for sale ever since we bought it.”

At another place he testified he had sold one lot on contract for $1,000, and had sold three other lots, but was unable to state for what consideration. He was the only witness for the complainant, who testified as to what effect the construction of the drain had upon the value of his property.

The testimony of the city engineer showed that this property was within the sewer district which was to be served by this great trunk sewer; that Bridge street, which bounded this property on the north, had a sewer which emptied into the trunk sewer where they met at right angles with each other; that the Bridge street sewer was extended west from the trunk sewer to within 150 feet of the northeast comer of the land; and that it was practicable to sewer these lands into the Bridge street sewer. Testimony was offered on the part of the city that these lands were benefited by the construction of the sewer.

In second edition of Cooley on Taxation, pp. 618, 619, it is said:

“As regards sewers and culverts in cities and villages, it is to be remarked that while they are often provided for by special assessments, there is no uniformity of practice in this regard, and perhaps, considering the different offices which sewers perform, being sometimes matters of imperative public necessity, and at others conveniences for a few tenements only, there ought to be the diversity' that now prevails. That the cost may be assessed upon the adjacent premises under proper legislation has been often held. * * *
“In the case of sewers it is very common to provide that the cost shall in part be a general levy on the municipality, and in part be collected by special assessment. Perhaps more often than in the case of any other local improvement it is just that such a division of the burden should be made. The lands on the line of a sewer do not usually receive all the special benefits and therefore should not pay all the cost; and when the district is extended to embrace other lands, there is imminent danger of doing injustice by extending it too far. In a clear case of the assessment of special benefits for a sewer upon lands which could not possibly receive special advantages therefrom, the courts have felt bound in some cases to interfere and annul the levy. But a case of the kind ought to be so plain as to admit of no doubt.”

In Warren v. City of Grand Haven, 30 Mich. 24, Justice Cooley, speaking for the court, said:

“It is also insisted that the tax should have been levied either upon the whole city, or upon a district within which the inhabitants would be benefited thereby as regards health. The argument on this branch of the case assumes that those provisions of the charter which, for sanitary reasons, confer authority upon the council to cause ditches to be opened, and swamps, marshes, and other low lands to be drained, are applicable to the case. But the provisions in the charter for the draining of the natural surface have nothing to do with the case of sewers. Sewers are required for a different purpose altogether, and are usually constructed with little regard to the natural condition of the land, and for the purpose of carrying off, not the natural fall of water, so much as the offensive material the accumulation of which is a necessary result of a dense population, and which, if not removed, would be a cause of discomfort and disease. In the construction of sewers, considerations of convenience to the inhabitants of the particular locality are involved quite as much as those of health; and it would doubtless be competent for the proper authorities to order a sewer opened without taking into the account at all the improvement of the natural surface or the protection of health. And whether or not it would be wiser or more just that the burden should be borne by the city at large, rather than by the particular district thereof in which the sewer is laid, is a question which must be determined by the proper legislative authority, which, in our opinion, would have an undoubted right to designate a special taxing district for the purpose, as was done here.”

In Thomas v. Gain, 35 Mich. 155 (24 Am. Rep. 535), it was said:

“In Warren v. Grand Haven, 30 Mich. 24, it was held that the court could not say, as ’matter of law, that an assessment for a sewer, estimated by the foot front of abutting lots, was not laid in proportion to actual or probable benefits. In Brewer v. Springfield, 97 Mass. 152, an assessment of benefits by the value of the lands, exclusive of buildings, was sustained. In several cases it has been decided that in assessing benefits the future probable advantages may be considered, as may also be the incidental benefits, equally with those which the land receives dir rectly. _ See Soady v. Wilson, 3 Ad. & El. 248; Hammersmith Bridge Co. v. Overseers of Hammersmith, L. R. 6 Q. B. Div. 230.”

See, also, Mock v. City of Muncie, 9 Ind. App. 536 (37 N. E. 281).

In Collins v. Mayor and Aldermen of Holyoke, 146 Mass. 298 (15 N. E. 908), the petitioner sought to restrain an assessment upon his lands for the construction of a trunk line sewer, for the reason, among others, that his lands did not abut on the line of the sewer; “that neither the petitioner nor his estate derived any benefit from the sewer either by the entry of any particular drain or by more remote means.” In the answer it was alleged “that in the list the assessments were divided into three classes which were called direct benefit, remote benefit and more remote benefit, and that the petitioner was assessed in the third class,” and it was insisted that while petitioner was not an abutter in the sense he was an adjoining owner, that his estate was benefited by the sewer. It was held:

“As a convenient method of equitably adjusting the assessments, the members of the board might, if they saw fit, divide them ‘into three classes, direct benefit, remote benefit, and more remote benefit’ ” — and the assessment was sustained.

In Power v. City of Detroit, 139 Mich. 30 (102 N. W. 288, 5 Am. & Eng. Ann. Cas. 645), appears the following:

“It is the claim of the complainants that, because of the peculiar position of this street to that portion of the city, large areas of property outside of the assessment district were substantially benefited, and that it was a great abuse of discretion not to make the assessment district larger, or else to require the city at large to share in the expense.
“A like claim to this has been made in a number of cases heretofore heard in this court.

“In Brown v. City of Grand Rapids, 83 Mich. 101 [47 N. W. 117], it was said:

“ ‘The determination of these two bodies — the commissioners who made the assessment roll and the common council of the city of Grand Rapids — cannot now be inquired into, unless it appears that they acted in bad faith. It is not for this court to set its judgment up in opposition to that of the board of commissioners and the council, and to say that this parcel of land or that is assessed too much or too little. The assessments were to be made according to benefits to each parcel of property, and there is nothing in the record showing that the' commissioners did not assess the complainant’s lands in accordance with their best judgments. Where provision is made by law for a review of assessment proceedings, and a body appointed with the power to set the assessments aside or correct the error complained of, and the party wholly fails to appear before such body, or take any steps to have such correction made, he is not in a position to appeal to the courts for redress in the absence of fraud or bad faith’ — citing Williams v. City of Saginaw, 51 Mich. 120 [16 N. W. 260]; Comstock v. City of Grand Rapids, 54 Mich. 641 [20 N. W. 623]; Peninsula Iron & Lumber Co. v. Township of Crystal Falls, 60 Mich. 510 [27 N. W. 666].

“In the case of Davies v. City of Saginaw, 87 Mich. 439, 449 [49 N. W. 667], this court said:

“ 'In matters involving the discretion or judgment of the common council, where no bad faith or fraud is alleged, parties cannot go behind the recorded vote to show either want of knowledge or of good judgment. * * * The resolution of the council fixing the assessment district and declaring that the sum of $'8,544.97 should be assessed upon the property of that district was a legal determination, under the charter, that the benefits conferred upon that district were equal to such amount; and the spreading of the aggregate amount upon the assessment roll, and the confirmation of that roll by the council determined that the proportion of the aggregate benefit received by each parcel was equal to the burden imposed, and, in the absence of fraud, oppression, or manifest mistake, such' determinations are conclusive.’ ”

See, also, Beecher v. City of Detroit, 92 Mich. 268 (52 N. W. 731); City of Detroit v. Daly, 68 Mich. 503 (37 N. W. 11).

In Powers v. City of Grand Rapids, 98 Mich. 393 (57 N. W. 250), the following language was used:

“It cannot be said that the improvement does not benefit complainant’s property, and the measure of that benefit is for the council and commissioners. These officers acted within the scope of their powers, and the record contains no evidence of fraud, corrupt motive, or intentional favoritism. The presumption is that, in making the district and the assessment, the officers of the municipality acted in good faith, and have correctly and faithfully exercised the discretion reposed in them. In such case, where mistake or abuse of discretion is not manifest or demonstrable, the determination of the municipal officers in whom such discretion is vested is conclusive, and it is not reviewable by the courts. 1 Dill. Mun. Corp. § 94.”

See, also, Voigt v. City of Detroit, 123 Mich. 547 (82 N. W. 253); Goodrich v. City of Detroit, 123 Mich. 559 (82 N. W. 255). We think the trial judge was right in refusing to set aside the assessment upon the ground of an abuse of discretion.

We have not overlooked Lawrence v. City of Grand Rapids, 166 Mich. 134 (131 N. W. 581), but that case is clearly distinguishable from this. The assessment was made not in proportion to benefits, but in proportion to area. It also appeared in that case property was not assessed that was benefited, and that the lines of the district divided lots, buildings, and houses, instead of being on the lot lines. Nothing of that sort appears in this case.

We think, in view of the testimony and these authorities, the decree must be affirmed, with costs.

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