author: Kuhn, J.

text:
    BROWN, EAGER & HULL CO. v. MOSIER.
    1. Fraudulent Conveyances — Debtor and Creditor — Preference —Mortgage.
    In this State, the right of a debtor to give one creditor a preference over others is unquestionable, if the purpose is plain and the instrument not in the nature of an assignment or fraudulent.
    2. Same — Trusts—Assignments—Delaying Creditors — Pro .Rata Distribution.
    But an instrument in the nature of a trust mortgage containing recitals that the debtor was insolvent and that several of the creditors had signified their intention of commencing action and that it was his desire and intention to treat them all alike, thereafter providing that those creditors who accepted the conditions of the mortgage should he entitled to share in the proceeds and that the receipt of pro rata proportion thereunder should operate as a satisfaction of all claims of consenting creditors, was void as tending to hinder and delay a creditor in the collection of his claim. (3 Comp. Laws, § 9533; 4 How. Stat [2d Ed.] § 11417).
    Error to Cass; Des Voignes, J.
    Submitted April 19, 1915.
    (Docket No. 134.)
    Decided June 14, 1915.
    Garnishment by the Brown, Eager & Hull Company against Carl D. Mosier as garnishee of George P. Wilder, principal defendant. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Selling & Brand, for appellant.

      Hendryx & Mosier (O. W. Coolidge, of counsel), for appellee.
   The following facts, necessary to understand the question presented in this, case, are taken from the findings of facts made by the learned trial judge who heard the case below:

“Prior to January 2, 1914, defendant, George P. Wilder, conducted a variety and bazaar store at Dowagiac, Mich., and on said date was indebted to various merchandise creditors in amounts exceeding $4,370, inclusive of the account of the above-named plaintiff of $602.29, exclusive of interest; that prior to the giving of the mortgage hereinafter mentioned several creditors of principal defendant had signified their intention of commencing suit and making levy and sale; that on January 2, 1914, while insolvent and unable to pay his debts in full, said principal defendant gave to Carl D. Mosier, garnishee defendant herein, of the firm of Hendryx & Mosier, attorneys for principal defendant, a chattel mortgage, a copy of which is as follows:
“ ‘Whereas, George P. Wilder, doing business at 138 South Front street, Dowagiac, Mich., is indebted to divers parties in divers sums of money, the names of which parties and the amounts owing to each, as near as can be ascertained at this time, is as follows: [Setting forth the names of the various creditors and the amounts of their respective claims.]
“ ‘And whereas, said George P. Wilder is insolvent and is unable to pay his creditors in full; and
“ ‘Whereas, several of his creditors have signified their intention of commencing suit and making levy and sale; and
“ ‘Whereas, it is the desire and intention of said George P. Wilder to treat all creditors alike, and for which purpose this instrument is executed:
“ ‘Now, therefore, this indenture witnesseth: I, George P. Wilder, being justly indebted to divers parties and in divers sums, have for the purpose of securing siich indebtedness granted, bargained, sold, and mortgaged, and by these presents do grant, bargain, sell, and mortgage, unto Carl D. Mosier, as trustee for all the creditors of the said George P. Wilder, the following goods, chattels, and personal property, to wit: The entire stock of goods, consisting of variety and bazaar goods, together with all fixtures therein located and belonging to George P. Wilder at 138 South Front street, Dowagiac, Mich.
“ ‘This mortgage is intended to cover everything of said stock and fixtures: Provided, however, that said George P. Wilder reserves unto himself his right of exemption in the sum of two hundred and fifty dollars, according to the statute of exemptions, which said exemption is to he selected, by said George P. Wilder after an inventory of said stock and fixtures, which said exemption is to be inventoried and listed so as to be identified in the event any of the creditors shall refuse to accept the provisions of this mortgage and proceedings in bankruptcy shall supervene.
“ ‘It is understood and agreed that the trustee shall take immediate possession of the above-described property, and shall notify all of the creditors of the said George P. Wilder of the provisions of this instrument, and that they may share in the distribution of said property the trustee shall cause to be made an inventory of said goods and fixtures. The said stock of goods and fixtures may all be sold by trustees at public or private sale, as may be the most advantageous to the creditors, and the proceeds used in discharging the indebtedness of said George P. Wilder as follows: All creditors who shall consent to come within the provisions of this mortgage after due notice by said trustee shall present their claims to said trustee, together with a written consent to come under its provisions and agree to accept at the pro rata of payment which may [be] due and payable to them upon the sale of ¿he assets above described, which pro rata of payment shall be in full settlement and discharge of any claim held by any creditors. If any of said creditors shall refuse to come under the provisions of this mortgage, then only those who do so consent shall share in the proceeds of any distribution.
" ‘It is understood and agreed that, should any proceedings in bankruptcy be commenced against George P. Wilder, then the trustee herein named is authorized to turn said stock and fixtures over to the trustee in bankruptcy who may be duly appointed.
“ ‘Said George P. Wilder hereby represents said property to be free from all liens, incumbrances, conveyances, and levies except as herein stated.
“ ‘If said trustee cannot sell said stock and fixtures advantageously at private sale, then he is hereby authorized to and shall sell at public auction, after the like notice as is required by constable sales, the goods, chattels, and personal property hereinbefore mentioned, and apply the payment of the proceeds after deducting the necessary expenses and charges under the conditions of this mortgage. If there shall be any balance from the sale of said stock and fixtures after paying all indebtedness and the costs and charges of this proceeding, then the same shall be returned to the said George P. Wilder.
“ ‘In witness whereof, George P. Wilder, party of the first part, has hereunto set his hand and seal the 2d day of January, A. D. 1914.
“ ‘George P. Wilder. [L. S.]
“ ‘Signed, sealed and delivered in the presence of
“ ‘Coy W. Hendryx,
“ ‘Blanch Karnes.’
“Which mortgage was filed with the city clerk of Dowagiac.
“That after receiving said mortgage said Carl D. Mosier immediately took possession of the mortgaged property and sent to the various creditors of the principal defendant a blank form of consent to be filled out by creditors and returned; the form which said Mosier sent to above-named plaintiff being as follows:
.................. 1914.
“ ‘To Carl D. Mosier,
“‘Trustee and Mortgagee:
“ ‘We hereby consent to the terms in the trust mortgage given by George P. Wilder, of Dowagiac, and consent that his stock of goods be sold and the proceeds pro rated among his mercantile creditors, the amount we receive to be in full of our account against him.
" ‘Amount due on our account at this date is $............’
“The above-named plaintiff, because of the provisions of the mortgage requiring it to accept its pro rata share thereunder in full settlement of plaintiff’s account against the principal defendant, and because of the provisions excluding it from the benefits of said mortgage unless it did so consent, refused to consent under said mortgage, and has never accepted thereunder, but on February 24, 1914, commenced suit against principal defendant by a declaration, with affidavit of account annexed and rule to plead and notice indorsed, in the circuit court for the county of Cass upon its account, which suit, after due personal service on defendant of the declaration, rule to plead, and affidavit of account and notice of rule to plead, terminated in judgment (at the April term of the court) in favor of plaintiff for the sum of $616.55, which judgment was duly entered and costs thereafter taxed by plaintiff against defendant for $23.10, upon which said judgment an execution was issued and returned by the sheriff of Cass county unsatisfied.
“That, simultaneously with the commencement of above suit, plaintiff garnisheed Carl' D. Mosier, the trustee named in said chattel mortgage, the affidavit and writ of garnishment being in the usual form, and alleging that said garnishee defendant had property, money, goods, chattels, credits, and effects in his hands and under his custody and control belonging to^ said defendant George P. Wilder, and that said Carl D. Mosier was indebted to the said defendant, whether such indebtedness was due or not.
“After due service on the garnishee defendant of the writ of garnishment, the garnishee defendant disclosed in writing that at the time of the service of the writ of garnishment upon him he had not in his hands or under his control any property, money, goods, chattels, credits, or effects of such principal defendant, except under said chattel mortgage, a copy of which mortgage was annexed to such disclosure. * * *
“I further find that the value of such property was $2,000, which amount said garnishee holds at the present time.”

Kuhn, J.

(after stating the facts). It is the contention of the appellant that the provision in the instrument requiring the creditors, as a condition of their receiving the benefits, to accept their dividend pro rata in full settlement and discharge, and excluding any nonassenting creditors from the benefits thereof, makes it as to Brown, Eager & Hull, who never consented to come under its terms, a conveyance void as intended to hinder, delay, and defraud creditors, under the provisions of section 9533, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11417), and, further, that such a provision is coercive, repressive, unjust, .and fraudulent, thereby rendering the instrument as to the plaintiff void. On the other hand, it is contended by the appellee that the so-called coercive clause providing for a release by the assenting creditors in no way injures the appellant, and while it may be said that the clause giving preferences injures the appellant, that it is a well-recognized rule in this State that the mere giving of a preference does not invalidate a mortgage, that the mortgagor had a right to prefer his creditors and leave out the names of the appellants, and therefore it is difficult to see how the appellants are injured by the clause providing that those who accept its provisions should release or discharge their claims.

There is no dispute with reference to the rule, now definitely settled in this State, that a debtor has a lawful right to prefer a creditor, and that the courts are not alert to deprive him or a preferred creditor of • their rights, where the intention of the debtor is manifest and the instruments do not legally constitute an assignment, and there is an absence of fraud. Olmstead v. Mattison, 45 Mich. 617 (8 N. W. 555); Sheldon v. Mann, 85 Mich. 265 (48 N. W. 573); Warner v. Littlefield, 89 Mich. 329 (50 N. W. 721); Fitzgerald v. McCandlish, 89 Mich. 400 (50 N. W. 860); Weber v. Childs, 90 Mich. 498 (51 N. W. 543); McMorran v. Moore, 113 Mich. 101 (71 N. W. 505); Chas. Maloney & Co. v. Gonhue, 152 Mich. 325 (116 N. W. 436).

However, an examination of the instrument here before us is not convincing that its intention was to prefer creditors. It recites that Wilder was insolvent and unable to pay his debts in full, that several creditors had “signified their intention of commencing suit and making levy and sale,” and that it was the desire of Wilder “to treat all creditors alike.” And while it may be true that Wilder would have a right to prefer such of his creditors as he cared to by giving a mortgage on his property to protect them, it does'not follow that that right carries with it the privilege of coercing creditors into surrendering a part of their claims. In the case of Hubbard v. McNaughton, 43 Mich. 220 (5 N. W. 293, 38 Am. Rep. 176), it was said:

“But it is contrary to justice and against public policy to. allow debtors to coerce their creditors into releasing their debts.”

It is clear that the avowed purpose of the instrument was to prevent creditors from making levies and sales, if they did get a judgment, and the plaintiff was thus denied access to the very property to which it contributed, unless it was willing to give up a certain amount of its claim. In this regard it must be said that the'objectionable clause was fraudulent, and that its evident purpose was to hinder, delay, and defraud the creditors, and in our opinion made the instrument void, under section 9533, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11417). In principle we are unable to distinguish the situation here presented from that presented to this court in Wood v. Eldredge, 147 Mich. 554 (111 N. W. 168), where this court said:

“If, then, upon the face of this instrument, we find that its legal effect was to hinder or delay creditors, the question of fraudulent intent is a question of law, and not a question of fact. To bring the transaction within the prohibition of the statute, it is not necessary that the transfer should actually defraud creditors. It is sufficient if it only hinder and delay them. McBryan v. Trowbridge, 125 Mich. 549 (84 N. W. 1084), quoting 14 Am. & Eng. Enc. Law [2d Ed.], pp. 244, 245.”

For a review of the various authorities upon this question, see note to Maclaren v. Kramar (26 N. D. 244, 144 N. W. 85), in 50 L. R. A. (N. S.) 714-753.

We are therefore of the opinion that the judgment of the court below should be reversed, and, as there is no question of fact, a judgment there entered in favor of plaintiff and against the garnishee defendant for the full amount of the judgment against the principal defendant, together with the costs to be taxed.

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


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    FLAHERTY v. MAXWELL MOTOR CO.
    1. Libel and Slander — ■ Corporations — Principal and Agent— Liability for Acts of Servants.
    The better -doctrine at the present time seems to be that while a corporation may not ordinarily be liable for slanderous statements made by its servants, although in uttering the words the speaker was acting for the benefit of the corporation and within the scope of his duties, it may be held liable where the evidence affirmatively shows that the agent was directed or authorized to speak the words in question or that the defendant later ratified his action.

    2. Same — Ratification.
    Nor was the fact that one of its servants or agenrs uttered the slanderous statements in the presence of its superintendent and in his office sufficient to render the defendant liable for the wrongful act; no inference could be drawn from this fact that the slander was authorized or ratified by the superintendent.
    3. Same — Corporations—Scope of Authority — Master and Servant.
    The utterance of slanderous language, charging an employee with larceny, by the chief office man and bead stockkeeper of a motor car corporation, who were subordinate servants of the defendant, was beyond the scope of tbeir authority as such servants or agents.
    Error to Wayne; Gage J., presiding.
    Submitted April 26, 1915.
    (Docket No. 142.)
    Decided June 14, 1915.
    Case by Charles Flaherty against the Maxwell Motor Company for slander. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      Dohany & Dohany, for appellant.

      Felton •& McGee and Stevenson, Carpenter, Butzel & Backus, for appellee.

       As to liability of corporation for slander by an agent or employee, see notes in 21 L. R. A. (N. S.) 873, 9 L. R. A. (N. S.) 929.

   McAlvay, J.

Plaintiff, a minor, by his next friend brought suit against defendant, a corporation, in an action of trespass on the case for slander. Upon the trial of the case, after plaintiff had rested, counsel for defendant made a motion for a directed verdict in its behalf upon the ground that there was no evidence in the case to warrant the court in submitting the question of defendant’s liability to the jury. This motion was granted, and a verdict of no cause of action was directed by the court in favor of defendant and against plaintiff. Plaintiff excepted to such direction of the court. Upon the verdict so directed a judgment was thereafter duly entered. The case is brought to this court for review by plaintiff who assigns the following error:

“That the court erred in directing a verdict in favor of defendant and against the plaintiff of no cause of action.”

The following is the statement of facts made by the appellant:

_ “On and prior to the 27th day of March, 1913, plaintiff was in the employ of defendant as an assistant stockkeeper, and it was his duty to keep track of stock which came in and was given out to the different departments on requisition.
“On that date, or shortly afterwards, a magneto and several carburetors were stolen from defendant’s plant, and in an effort to recover the same, defendant’s chief office man, Mr. Homer L. Cousins, and defendant’s chief stockkeeper, Mr. Harry Wallace, uttered and published the slanderous words which are made the basis of this action.
_ “At the conclusion of plaintiff’s case the trial court directed a verdict of no cause of action on the ground that the plaintiff had failed to make a sufficient showing that the slanderous words were spoken by some authority of defendant corporation, and this action is made the basis of appellant’s only assignment of error.”

Counsel for defendant in their brief say:

“The statement of facts in the plaintiff’s brief accurately presents the issue.”

The speaking of the slanderous words relied on by plaintiff upon which he bases his right of recovery in this case which are claimed to have been uttered and published by the chief office man and chief stock-keeper of defendant company on March 28, 1913, as testified to by plaintiff, occurred as follows: An investigation had been started relative to some property which had been stolen from this plant. Plaintiff 1vas called to the office of Mr. King, the superintendent of this plant, in the afternoon of that day, where he found Mr. King, Mr. Cousins, the chief office man, and two or three detectives. Mr. Cousins spoke to him first when he entered, telling him to sit down, and then said to him:

“You helped get that magneto and those carburetors out; you knew where they were all the time.”

Plaintiff • remained in Mr. King’s office about ten minutes. He says the detectives questioned him. He then went to the stockroom, where he was employed. Mr. Wallace, the chief stockkeeper of this plant, soon came in to see him. Plaintiff testified that at this time and place practically the same charges which Mr. Cousins had made were made against him by Mr. Wallace, who was near the door of the stockroom when he spoke and uttered these slanderous words in a loud voice in the hearing of defendant’s employees.

Mr. King was general superintendent of this branch of the Maxwell Motor Company, known as the Sampson & Brush plant. He was superintendent over the manufactured parts of the automobile, over everything in general pertaining to the manufacture of the car. This plant is divided into several departments in which Cousins, Wallace, and plaintiff were employed in the capacities already mentioned. Plaintiff testified that Mr. King was present in his office at the time Mr. Cousins uttered the slanderous words charged by plaintiff. Mr. King, the superintendent, was examined as a witness, under the statute, in behalf of plaintiff, and no questions were asked him relative to the interview in his office on the occasion when Mr. Cousins is charged to have slandered the plaintiff, nor as to what part, if any, he heard of the conversation which occurred at that time between Mr. Cousins and plaintiff. He was the only witness besides plaintiff who testified in the case, and the only mention made -of him in plaintiff’s testimony is that he was present in the office and said but little.

Plaintiff says that he was called to the superintendent’s office by one of the shop detectives, and it does not appear that the superintendent had any conversation with him while he was in his office. Plaintiff’s contention is that the fact that Mr. Cousins uttered the slanderous words in the superintendent’s office, where he had been requested to come, was sufficient showing on his part to fix the liability for the utterance of the slanderous words by Mr. Cousins upon the defendant company.

The defendant contends:

“(1) The corporation is not liable for slander uttered. by its servants unless it expressly authorized or subsequently ratified the utterance.
“(2) The alleged utterances of the slanderous words were not within the scope of the authority of the servants.”

. The declaration charges that Mr. Wallace, the head stockkeeper of the stockroom in which plaintiff was employed, acting within the scope of his authority, uttered the slanderous words as charged, and that Mr. Cousins, acting with authority from defendant and for and in its behalf, made these false charges.

The record does not show affirmatively that there was any express authorization or ratification by the corporation of the alleged slander, and the appellant does not so contend in his brief. It is, however, urged that the slander occurred in the presence of the general manager of this plant in his office, and that the words were uttered by Cousins, whose duty it was, together with Wallace, to recover lost or stolen stock, which plaintiff insists was a sufficient showing that the slander was authorized and ratified. We do not understand the foregoing to be the law applicable to slander by a corporation; in other words, slander by a corporation cannot rest upon inference. The accepted doctrine is stated as follows:

“It was for a long time thought that a corporation could not in any case be held civilly liable for a slander. But at the present time the better doctrine would seem to be that, while a corporation is not ordinarily liable for a slander uttered by one of its agents, even though in uttering such words the speaker was acting for the benefit of the corporation and within the scope of the duties of the agency, the corporation may be held liable where it affirmatively appears that the agent was expressly directed or authorized by the corporation to speak the words in question.” 18 Am. & Eng. Enc. Law (2d Ed.), p. 1059, citing Behre v. Cash Register Co., 100 Ga. 213 (27 S. E. 986, 62 Am. St. Rep. 320).

In Singer Manfg. Co. v. Taylor, 150 Ala. 574 (43 South. 210, 9 L. R. A. [N. S.] 929, 124 Am. St. Rep. 90), the court, among other things, said:

“A corporation will not, it is submitted, be liable for any slander uttered by an officer, even though he be acting honestly for the benefit of the company and within the scope of his duties, unless it be proved that the corporation expressly ordered and directed that officer to say those very words; for a slander is the voluntary and tortious act of the speaker.”

Our examination of the cases satisfies us that the great weight of the authorities holds that a corporation is not liable for slander uttered by its servants unless it affirmatively appears that the agent was expressly authorized to speak the words in question or the corporation subsequently ratified the utterance. The law relative to the subject is clearly stated in the authorities cited supra. Further citations are unnecessary.

There is no substantive proof in this case tending to show that defendant corporation authorized or approved or ratified the act of Mr. Cousins in uttering the particular slander charged. The evidence relative to the presence of Superintendent King in his office at the time the alleged slander was uttered is not only not sufficient under the authorities to fix liability upon the defendant corporation, but from it no inference can be drawn of any authority or ratification of the individual act of Mr. Cousins.

The words alleged to have been uttered either by Mr. Cousins or Mr. Wallace were not within the scope of their authority. They were subordinate servants of the corporation, employed, respectively, as chief office man and head stockkeeper, in one of its branches, with limited powers and duties and could not render the corporation liable by uttering slanderous words. Stewart Dry Goods Co. v. Heuchtker, 148 Ky. 228 (146 S. W. 423).

There is a line of cases which holds that, where a special contractual relation exists between the plaintiff and defendant, recovery will be allowed for slander committed by a subordinate servant. Such are cases of common carriers in their relation to passengers, and are based upon a breach of duty arising out of the contract, whereby they are bound to protect passengers from insults, indignities, and personal violence. Singer Manfg. Co. v. Taylor, supra.

Our conclusion in this case is that, under the evidence, the circuit court was not in error in directing a verdict for the defendant.

The judgment is affirmed.

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


text:
    CUNNINGHAM v. CUNNINGHAM.
    Divorce — Extreme Cruelty — Gambling •— Marriage — Husband and Wife.
    Extreme cruelty is not established by a showing that defendant husband, a man of over 70 years of age, was untidy and accustomed to spit on the stove and to drop ashes and burned matches about the house, also that he played cards and gambled in a small way and frequented a resort or place which had once been a saloon and played cards there.

      Appeal from Hillsdale; Chester, J.
    Submitted April 20, 1915.
    (Docket No. 40.)
    Decided June 14, 1915.
    Bill by Esther Cunningham against Isaiah Cunningham for divorce. From a decree for complainant, defendant appeals.
    Reversed.

      Merton Fitzpatrick, for appellant.

      F. A. Lyon, for appellee.
   Kuhn, J.

The defendant appeals from a decree granting complainant a divorce on the ground of extreme cruelty, and an allowance of $2,000 as permanent alimony.

The parties were married in 1892, in Pennsylvania, and at the time of their marriage the complainant was 23 years of age and the defendant 48. Shortly thereafter they moved to the State of North Dakota, where they lived on a farm until 1900. In that year they sold the Dakota farm and came to Michigan to live, purchasing a farm in the township of Allen in Hillsdale county, where they lived until 1903. In that year they moved to the city of Hillsdale, where they continued to reside until the time of their separation, December 22, 1913. While they were living in Dakota their only child, a daughter, was born, who is now living and is 18 years of age.

On coming to the city of Hillsdale, the defendant engaged in the coal business, and during a portion of the time he also carried on a grocery and feed business in connection therewith. The home which they occupied was in close proximity to the railroad tracks and coal yards. It appears that at the time this property was purchased, the matter of going into the business was discussed between them, and that the deed to the property was taken in their joint names.

The allegations in the bill of complaint as originally filed consist largely of complaints of the personal habits and manners of the defendant and of his conduct in and about the house. Simply as evidence of the character of these complaints, the following is taken from the testimony of the complainant:

“It was mqddy and coal black and dirty around the place, and he would come in and walk through the store and into the kitchen and through the sitting room quite frequently; he would go through the whole house at times. He was quite a hand to smoke and knock ashes out on the stove, and to sit around in front of the stove and knock them out and light his pipe and snip the matches around. I told him I thought it was just as easy for him to empty his pipe into the stove as it was to empty it out onto the stove and the floor. He didn’t say anything, but sometimes he’d say, ‘Babe can sweep them up.’ He meant our daughter Lorena. I worked all I possibly could. He told me I didn’t do anything, and I wasn’t interested in anything, and that I always throwed the coal business aside for my washing.”

And the following from the testimony of the daughter:

“Our home was right along by the railroad track. There was a house between our house and the road. Our house was on the back end of the lot. Mrs. Osborn and her daughter, Mrs. Perry, lived on the front end of the lot. Mr. Eldridge lives the first house west of Mrs. Osborn. There were no other houses on the back end of the lot. The Hillsdale Grocery Company’s warehouse was directly east of our house. The coal bins were between our house and Mrs. Perry’s. They were right by our house. We kept the groceries in the office. They would drive in to get coal between Mrs. Perry’s and Mrs. Eldridge’s, and they would drive in around to the grocery company’s warehouse. They would have to drive in from the street. My mother did the housework and had no help except myself. There were four rooms below and only one carpeted. Mother had to .mop all the other floors. It was real muddy down there when it rained. Father would track in mud; it would stick to his feet and he wouldn’t try to get it off. This would happen every day when it was muddy. It would dirty up the floor. I have heard mother ask him not to come in without cleaning his feet. He said that he would just as soon live in it. Father was always smoking and when he would empty his pipe he would empty it on the stove, on the outside of the stove, or else on the floor. I have heard mother speak to him about that. I don’t remember what he would say. I have seen him blow his nose on the floor to dirty it. He did not chew tobacco very much; did once in awhile. He would sometimes spit on the stove. It would sometimes go in and sometimes beyond the side. My mother’s conduct toward him was kind. During the past year his conduct toward her wasn’t very kind. She couldn’t do anything to please him, and he would find fault with everything she did. I heard him swear at her once.”

Complaint is also made as to his lack of personal cleanliness, but it would profit no one to attempt to repeat the many seemingly trivial complaints which are set up in the record and discussed in the briefs- of counsel.

After the case had been heard, an amendment was permitted to the bill of complaint to show misconduct on the part of the defendant because of his having visited frequently a resort known as “Boyd’s Place,” which it seems was at one tinie a saloon, and later a place where men congregated to play cards. It is complainant’s claim, and she so testified, that knowledge of this habit of visiting Boyd’s Place, because of its bad reputation, brought great shame, humiliation, and disgrace to her and her family.

There is unquestionably ground for the complaint that the defendant was inclined to enjoy a game of cards, which he indulged in even when small amounts of money were at stake, and this he frankly admits in his testimony. It is true that his conduct in frequenting the place where he indulged in this practice and the pleasure that he seemed to get from gambling in a small way, could be the subject of some criticism, but, as was said by this court in Cadieux v. Cadieux, 180 Mich. 99, at page 105 (146 N. W. 161, at page 163):

“While culpable and an evidence of moral instability, we are not prepared to hold that, as proven, it amounted to a cause of divorce.”

We have carefully read this record, and although having in mind the fact that the learned chancellor, who heard the case below, had the advantage of seeing and hearing the witnesses, nevertheless we cannot escape the conclusion, taking the record as a whole and carefully weighing the testimony, that no just and legal cause for a divorce has been proved. These parties had resided together as man and wife for a period of 20 years, and it does not appear that any remarkable change has come about in the personal conduct and habits of the defendant from the time of his marriage. The record is convincing that both of the parties have been industrious and apparently willing to meet the everyday problems of life in the proper spirit, and considering their station in life and the surroundings in which the defendant toiled to fulfill his duties as a provider for his family, assisted by the complainant, it does not seem just and equitable that now, when the defendant has reached the age of 70 years, because of grievances of a character which might easily be found in the married life of many people in such a period of time, he should be deprived of the association and comfort of his wife and only child, both of whom he still insists he loves and wishes to have with him. As this court said in Root v. Root, 164 Mich. 638, 644 (130 N. W. 194, 32 L. R. A. [N. S.] 837, Am. & Eng. Ann. Cas. 1912B, 740):

“Neither incompatibility of temper nor the ordinary misunderstandings and bickerings which are characteristic of the marriage relation in a considerable percentage of cases, have been made grounds for divorce in this State. The legislature might, if it chose, extend the jurisdiction of courts to grant decrees of divorce upon these grounds. It has not done so, however, and those who are married must bear the real or fancied burdens they have assumed, unless the conduct of one entitles the other, that other being without fault, to a severance of the relation for one or other of the statutory causes.”

‘We are of the opinion that in this case the proofs are not satisfactory to make out a case of extreme cruelty under the statute, and that the decree must be reversed and the bill dismissed, without costs to either party.

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


text:
    McCAIN v. WAYNE CIRCUIT JUDGE.
    1. Practice — Default—Judgment—Irregularity.
    A default irregularly entered may be set aside after tbe six months’ limitation prescribed by Circuit Court Rule 12, Subd. 6.
    2. Process — Return—Garnishment—Agency.
    The return of service of a writ of garnishment issued against a corporation garnishee must show that the agent or officer upon whom the process was served was a proper agent or official upon whom service might legally be made, and a sheriff’s certificate not showing the essential facts in this regard conferred no jurisdiction to enter a default judgment.
    3. Amendment — Jurisdictional Defects — Return of Service.
    The right of amendment does not extend to defects of a jurisdictional nature.

      4. Same — Garnishment.
    The court was not authorized, after judgment had been entered, to grant an amendment of the sheriff’s return of process so as to show that service was made on an agent of the garnishee defendant, a corporation.
    Mandamus by Frederick E. McCain against Henry Mandell, one of the circuit judges for the county of Wayne, to compel respondent to vacate’an order setting aside default.
    Submitted April 17, 1915.
    (Calendar No. 26,704.)
    Decided June 14, 1915.
    Writ denied.

      Frederick E. McCain, in pro. per.

      U. Grant Race and Walter F. Haass (Archer F. Ritchie, of counsel), for appellee.
   McAlvay, J.

These are proceedings instituted by relator against respondent praying that a writ of mandamus may be issued commanding him to vacate and set aside a certain order vacating certain judgment in garnishment proceedings against the garnishee defendant and setting aside the default upon which said judgment was entered in a certain cause then pending before respondent in the circuit court for the county of Wayne, wherein relator, Frederick E. McCain, doing business as Michigan Audit Company, was plaintiff, and W. Bruce Williams and others were principal defendants, and Kirby-Sorge-Felske Company, a corporation, was garnishee defendant. The undisputed facts in the case are that relator, as plaintiff, on October 14, 1913, filed his declaration in an action of assumpsit, .as commencement of suit, against W. Bruce Williams and several other defendants. All of the defendants in the case, except Williams, entered their appearances and pleaded the general issue on or before Decembr 3, 1913. On December 4th, following, plaintiff entered the default of defendant Williams. The case was brought on for trial November 23, 1914, before a jury. During this trial plaintiff was allowed to amend his declaration, and the case was continued to the next term of court. On December 11, 1914, an amended declaration was filed by plaintiff, and on the 17th of the same month a judgment on default in favor of plaintiff for $1,046-.48 was rendered against defendant Williams only. On the same date the declaration was further amended, and a stipulation discontinuing suit as to the other defendants was filed and entered. It further appears that on application of plaintiff in the above-entitled cause a writ of garnishment issued a few days after it was begun, to wit, on October 22, 1913, against Kirby-Sorge-Felske Company, a Michigan corporation, which writ of garnishment was placed in the hands of the sheriff of Wayne county and on October 27th, following, was returned by him and filed with the following certificate of service indorsed thereon:

ss.: “State op Michigan, “Wayne County.
“I hereby certify and return, that on the 22d day of October, A. D. 1913, in said county, I served the within writ upon Kirby-Sorge-Felske Company, by serving A. F. Felske, the garnishee named therein, by showing the same to A'. F. Felske and at the same time delivering to and leaving with him a true copy of said writ.
“Dated October 23, 1913.”

On December 4, 1913, the default of said garnishee defendant was entered for want of appearance. On December 18, 1914, more than one year later, a judgment was entered by plaintiff on default in his favor against this garnishee defendant for the sum of $1,-094.72, damages, together with costs to be taxed. On December 29th, following, the garnishee, appearing specially in said cause for such purpose, made a motion to set aside its default and to vacate the judgment entered against it in said cause on the ground that the sheriff’s return of service indorsed on said writ of garnishment was insufficient to confer jurisdiction upon the court of said garnishee defendant, for the following reasons:

“1. That the return failed to show that the writ was served upon said Kirby-Sorge-Felske Company.
“2. That said return failed to show that A. F. Felske, the person upon whom service was made, was such an officer or agent as is enumerated in the statute in such case made and provided upon whom service may be made for and in behalf of a corporation.”

Pending this motion, plaintiff, on January 2, 1915, before Judge Murphy, presiding, asked, for and was granted permission to amend the return of the sheriff to the writ of garnishment, to read as follows:

ss.: “State of Michigan, ) “County of Wayne. j
“I hereby certify and return that on the 22d day of October, A. D. 1913, in said county, I served the within writ upon Kirby-Sorge-Felske Company, by serving A. F. Felske, as president of said corporation, the garnishee therein named, by showing the same to A. F. Felske, as president of said corporation, and at the same time delivering to and leaving with him a true copy of said writ.”

This motion to set aside the default of the garnishee defendant and to vacate the judgment against it came on to be heard before respondent by stipulation and was granted. An order and judgment was entered vacating and setting aside the default of the garnishee defendant and the judgment which had been entered upon it. This is the order and judgment which relator in these mandamus proceedings asks this court to vacate and set aside.

In support of his contention that a writ of manda-r mus should issue in these proceedings, relator makes the following contentions:

“(1) Defendant herein is guilty of gross laches and comes entirely too late in moving the court at this time.
“(2) The return of the sheriff as originally filed gave the court jurisdiction, and a judgment rendered thereunder was valid because it contained all the essential facts necessary thereto.
“(3) That any defect or error which existed by reason of the original return was properly and entirely cured by the amended return.”

The claim that defendant has been guilty of laches, and therefore was too late in asking to have its default set aside, is based upon Circuit Court Rule 12, subd. “b,” which among other things provides:

“But in .cases where personal service shall have been made upon defendant and proceedings taken after default on the strength thereof, his default shall not be set aside unless the application shall be made within six months after such default is regularly entered.”

The construction of this provision of rule 12 has been that it does not apply in cases of defaults improperly entered. Turner v. Circuit Judge, 123 Mich. 617 (82 N. W. 247).

The application of this construction is made clear in a. later case, where this court said:

“The case is unlike Turner v. Circuit Judge, 123 Mich. 617 (82 N. W. 247), in which case default was improperly entered. In this case the default was duly entered.” Petley v. Circuit Judge, 124 Mich. 14 (82 N. W. 666).

It is clear, therefore, that the rule cannot be invoked unless the default in the instant case appears to have been regularly entered. The fair inference is that relator has not proceeded upon the theory that the original return of an officer to the writ of garnishment was sufficient to confer jurisdiction upon the court to render a judgment against the garnishee defendant. This is confirmed by the fact that, after the motion to set aside the default and vacate the judgment entered against such garnishee defendant was made, relator at once made application to the court and was permitted to and did cause an amended return to the writ of garnishment to be made and filed, which conformed with the requirements of the statute providing for service upon corporations who were garnishee defendants.

At the time this default was entered and judgment by default rendered against the garnishee defendant, the right of relator to enter such default and the jurisdiction of the court to enter judgment thereon was fixed by the original return of service by the officer who undertook to serve the writ. Such return upon its face showed that no legal service of the writ of garnishment had been made upon the garnishee defendant corporation and it conferred no jurisdiction upon the court to render said judgment against said garnishee defendant.

It is contended on the part of relator that the amended return which was made and filed after the court had rendered this judgment conferred jurisdiction on the court to render the judgment before the amended return was called into existence. This court has said:

“The right of amendment does not extend to matters of jurisdiction.” Hoben v. Telephone Co., 176 Mich., at pages 599, 600 (142 N. W. 1071).

We cannot agree with the conclusion of relator. The court had already acted and rendered judgment without jurisdiction, and this court must determine the matter upon the facts as they existed at the time the judgment was rendered.

Our conclusion is that the court, in setting aside the default and judgment which had been entered against the garnishee defendant, was clearly within the exercise of a sound discretion, and that the writ of mandamus should be denied.

Brooke, C. J., and Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. Kuhn, J., did not sit.


author: Ostrander, J.

text:
    MURTHA v. LINDSAY.
    1. Mandamus — Elections—Public Officers — Recorder's Court of the City of Detroit.
    A writ of mandamus should not issue to require the performance of an act the doing of which would serve no lawful purpose.
    2. Elections — City Clerk — Mandamus.
    The petition of a candidate for the office of judge of the recorder’s court of the city of Detroit is not required by statute to be received by the city clerk in the case of a special election to fill a vacancy to the office of judge, since the primary ballot is not required to contain the names of candidates.
    3. Courts — Constitutional Law — Municipal Corporations — Recorder’s Court of the City of Detroit.
    The judge of the recorder’s court of the city of Detroit is a State official: the office is not one of a local nature; the court- having jurisdiction to try criminal offenses brought by the people of the State and the judge exercising the powers of a circuit judge.
    4. Same — Primary Election — Candidates.
    No member of the legislature is permitted to be a candidate for the office of judge of the recorder’s court of the city of Detroit at a special election to fill a vacancy in the office. Constitution, Art. v, § 7.
    Mandamus proceedings by James A. Murtha against Kichard Lindsay, city clerk of the city of Detroit, to compel the respondent to receive a petition of relator as candidate for the office of judge of the recorder’s court of the city of Detroit.
    Submitted June 22, 1915.
    (Calendar No. 26,845.)
    Writ denied June 28, 1915.

      Frank D. Eaman, Percy, W. Grose, and Stewart Hanley (Wm. L. Carpenter and H. E. Spaulding, of counsel), for relator.

      Harry J. Dingeman, Corporation Counsel, for respondent.
   Ostrander, J.

A special election has been called to elect a judge of the recorder’s court in the city of Detroit to fill a vacancy. Relator presented to respondent a petition as candidate for the office. It was refused for the reason that relator is a member of the State legislature and ineligible to the office under article 5, § 7, of the State Constitution, which reads as follows:

“No person elected a member of the legislature shall receive any civil appointment within this State or to the Senate of the United States from the Governor, except notaries public, or from the Governor and Senate, from the legislature, or any other State authority, during the term for which he is elected. All such appointments and all votes given for any person so elected for any such office or appointment shall be void. No member of the legislature shall be interested directly or indirectly in any contract with the State or any county thereof, authorized by any law passed during the time for which he is elected, nor for one year thereafter.”

The significance,- in law or fact, of the refusal of the city clerk to accept relator’s petition is not explained, nor, as we are at present advised, is it perceived. The printed primary ballot will not contain the names of candidates. It would seem, therefore, that the clerk of the city of Detroit refused to perform no plain legal duty when he refused relator’s petition, and would perform no plain legal duty if required by an order of' this court to now receive the petition. The order to show cause appears, therefore, to have been inadvertently and improvidently granted, since the writ of mandamus would serve no lawful purpose. However, inasmuch as the question debated in the briefs is -likely, if not certain, to become an issue of importance if relator shall receive a majority of votes at the primary to be held June 29th, we are disposed to signify, briefly, an opinion concerning relator’s eligibility to the office.

For respondent it is contended that the proper answer to the question presented depends upon whether the recorder’s court is a local office or one of State agency.

In behalf of relator three principal propositions are presented. It is said:

First, that the case is not within the mischief designed to be prevented by the Constitution; second, that the fact that a locally selected officer performing local duties is also charged with the performance of State duties does not make his election the exercise of State authority within the meaning of the constitutional provision above set out; and, third, the judge of the recorder’s court is not a State official in the constitutional sense.

It may be said that the mischief would not be greater, or different, if the legislature, under the present Constitution, were by general law to set up courts possessing the jurisdiction of the recorder’s court in cities of a certain size throughout the State, and members of the legislature were admitted to be candidates for the offices thus created. The Constitution is aimed at preventing mischief, not at remedying its effects. Whether the present jurisdiction of the recorder’s court was conferred in a single act of legislation or in successive acts, it is now a court possessing a certain jurisdiction, including jurisdiction to try all persons accused of crimes committed within the city of Detroit. This is jurisdiction which may not be' conferred, nor be interfered with, by the people of the locality. .It is exercised by the person inducted into the office of recorder, not as an incident to a local office held by him, nor as an imposition upon a local officer of the performance of State duties. The office is inseparable from the entire jurisdiction of the officer, a jurisdiction conferred by the legislature with the sanction of the Constitution in force when jurisdiction was established. It is by virtue of State authority alone that the office exists.

The serious question, or part of the question, is: Does the person taking the office do so by virtue of “any other State authority,” within the meaning of the Constitution? In a sense, all justices of the peace, constables, and judges of courts of record are appointed — hold office — by virtue of State authority. The recorder’s court is, when exercising jurisdiction to try persons accused of crimes, under the general laws of the State, a State court; its judges exercising the powers of a circuit judge. People v. Jackson, 8 Mich. 78. If a vacancy in the office is filled by appointment, the appointment must be made by the governor. Attorney General, ex rel. Danhof, v. Renihan, 184 Mich. 272 (151 N. W. 324). Every argument which would support the conclusion that a member of the legislature should not be appointed or elected to the office of circuit judge applies with equal force to the appointment or election of such a member to the office of judge of the recorder’s court. Much of the reasoning employed in deciding Fyfe v. County Clerk, 149 Mich. 349 (112 N. W. 725), may be here properly employed. We conclude that relator is not eligible to the office.

The writ is denied. No costs are awarded.

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


text:
    CIVIL SERVICE COMMISSION OF THE CITY OF DETROIT v. ENGEL.
    Municipal Corporations — Constitutional Law — Civil Service— Detroit Charter — Recorder’s Court oe the City of Detroit.
    Under Act No. 326, Local Acts 1883, and' Act No. 55, Pub. Acts 1857, and other local acts constituting the city charter of the city of Detroit, the recorder’s court, established by said local acts, is a State court administering the criminal law and other law and statutes of the State, the court being established by the legislature and having a jurisdiction which the electors of the city could not confer. Accordingly, on a bill of complaint of the civil service commission of said city against the city controller to obtain an injunction against the payment of the salary of an appointee of said court, it is held, that the civil service provisions of the charter, under Act No. 5, Pub. Acts 1913, amending the same so as to place employees of the municipality under the civil service commission, was not subject to the amendment; the electors not having authority to interfere with the incidental powers possessed by the recorder in exercising general jurisdiction of the court in appointing clerks.
    Appeal from Wayne; Murphy, Van Zile, and Halley, JJ.
    Submitted January 28, 1915.
    (Docket No. 109.)
    Decided June 30, 1915.
    Bill by the civil service commission of the city of Detroit against George Engel, city controller, to enjoin the payment of the salary of a clerk of the recorder’s court. From an order denying the injunction and dismissing the bill, complainant appeals.
    Affirmed.

      Robert■ T. Speed, for appellant.

      Richard I. Lawson, for appellee.

      William F. Connolly, Recorder, in pro. per.

   The recorder’s court of Detroit is established by the city charter. Act No. 55, Laws of 1857; Act No. 326, Local Acts of 1883; Act No. 408, Local Acts of 1893; section 280 et seq., Charter of Detroit, Compilation of 1904. Section 7, chap. 12, of the act provides:

“There shall be a clerk and two deputy clerks of said court, who shall be appointed by the recorder, and a memorandum of such appointments shall be entered upon the records of said court. Such clerk and deputy clerks shall hold their respective offices for the term of six years from and after January sixteenth, eighteen hundred and ninety-four, and until their successors, are duly appointed and qualified. The common council of said city shall have the power, and it shall be their duty whenever the business of the court so requires, to provide by ordinance for additional deputy clerks and assistants. They shall prescribe in said ordinance the terms of office, compensation and amount of bond required of such additional deputy clerks and assistants. The recorder shall appoint,, the additional clerks and assistants authorized by said' ordinance in the same manner as is provided for the appointment of the clerk. The recorder shall have power at any time to remove such clerk, deputy clerks, and assistants for incompetence or serious neglect in the performance of their duties; and in case of such removal or of a vacancy in the said office by the death of said clerk, deputy clerks, or assistants or otherwise, the said recorder shall fill the unexpired term by a new appointment.”

Section 9 provides:

“It shall be the duty of said clerk to keep a true record of the proceedings of said court, in the proper books to be provided therefor; to enter and record all orders, decrees and judgments, and file and safely keep all books and papers belonging to or pertaining to said court. He shall sign and seal all writs and process issuing from said court, and shall have power generally to administer oaths and take affidavits and acknowledgments, and to do all acts authorized by law to be done by clerks of circuit courts of this State, so far as the same may be applicable. He shall receive all fines and costs imposed by said court, and within a reasonable time pay the same to the county treasurer of Wayne county, and take a receipt therefor, except such fines and costs as may be imposed for violation of city ordinances, which shall be received by the city attorney and by him paid to the city treasurer. He shall receive a salary of three thousand dollars per annum, which shall be payable out of the treasury of said city.”

Deputy clerks are given the power of the clerk, and a salary voted by the common council. The jurisdiction of the court is:

“The said recorder’s court shall have original and exclusive jurisdiction of all prosecutions and proceedings in behalf of the people of this State, for crimes, misdemeanors, and offenses arising under the laws of this State, and committed within the corporate limits of the city of Detroit, except in cases cognizable by the police court of the city of Detroit, or by the justices of the peace of said city, and shall have power to issue all lawful writs and process, and to do all lawful acts which may be necessary and proper to carry into complete effect the powers and jurisdiction given by this act, and especially to issue all writs and process, and to do all acts which the circuit courts of this State, within their respective jurisdictions, may, in like cases, issue and do by the laws of this State: Provided, That this section shall not be construed to prevent the grand jury for the county of Wayne from inquiring into and presenting indictments, as heretofore, for crimes and offenses committed within the limits of said city. * * *
“Said recorder’s court shall have exclusive cognizance of all prosecutions for offenses arising under this act, or any ordinance or regulation of the common council.”

The city, pursuant to Act No. 5, Pub. Acts 1913, amended its charter so as to provide for a civil service commission and for civil service, specifying that:

“The following shall not be affected as to their election, selection or appointment by the rules made by said commission, viz.: Officers elected by the peopie, or who- are by statute required to be appointed by the mayor or by the common council on the nomination of the mayor; inspectors and clerks of election; the one deputy, secretary or assistant of any of the departments or commissions, who in case of a vacancy in an office or inability of the chief -of the department or commission to perform his duties, would be entitled to perform the duties of the office until the vacancy is filled or the inability removed; the mayor’s secretary and stenographer. Excepting, as above provided, all officers, clerks and subordinates of all offices, departments and commissions, of said city, whether now existing or hereafter created, shall be selected and appointed as herein provided, but the officers,, clerks and other employees in the service of said city, when this amendment shall take effect, unless removed for cause, shall be entitled to retain their positions except as herein otherwise provided. They shall not be transferred or promoted, however, without first passing a noncompetitive examination provided by said commission.”

Thereafter one Leo Kwidzinski was, without the indorsement of the commission, appointed by the court to a clerical position, and the civil service commission filed a bill in the circuit court for the county of Wayne, in chancery, for the purpose of enjoining the city controller from paying the appointee his salary. There was an answer, and a hearing on bill and answer before three of the judges of the court, who agreed to an order denying the writ of injunction.

The complainant, appellant, contends:

_ “(1) That as the recorder’s court is a part of the city charter, the electors of the city of Detroit have the right, under section 21 of article 8 of the Constitution, to amend that part of the charter establishing said court; and
“(2) That the recorder’s court is a ‘municipal department,’ within the meaning of section 4 (p) of Act No. 5 of the Public Acts of 1913_, and that therefore the electors of the city of Detroit have the right to amend that part of the city charter establishing said court.”

On the other hand, it is contended that in the discharge of its most important functions the recorder’s court is a State governmental agency, “a part of the judicial department of' the State government, which could not be created, with the same jurisdiction, by action of the electors of the city of Detroit, but by the legislature only; that if one part of the legislative enactment in this behalf may be amended by the electors of the city, any'and every part of it may be thus amended; that the court having been established by the legislature, with power to appoint its clerks, the power cannot be abridged by the action of the electors of the city; that the electors of the city have power only to legislate upon matters of purely local concern.

Ostrander, J.

(after stating the facts). It is conceivable that the selection of a clerk or a deputy clerk by the recorder would not be greatly interfered with if he was obliged to choose from a number of persons approved by the civil service commission; indeed, it might occur that the person whose appointment is now contested would be, upon application, so approved. The power of appointment would not be taken away, although the selection would be made from a more or less limited number of persons. But I think the point presented for decision cannot be disposed of upon this view of the matter. It would seem that the recorder has, or has not, an unqualified power to appoint, with a qualified power to remove, the clerk and his deputies, and, if the power to appoint is not qualified, it ought so to be declared.

The recorder’s court is a court established by the legislature, although its creation is evidenced by the charter of the city, which is a local law. It is a court of record, with jurisdiction to try persons accused of crimes committed within the city. The execution of the criminal laws of the State is a matter of State concern, and in this respect the court possesses a jurisdiction which the electors of the city cannot confer. Power to amend the charter the electors have, but not power to interfere with the jurisdiction of this court, in so far as it relates to matters of State concern. It follows, logically, that the electors may not, by amendment of the charter, interfere with the incidental powers possessed by the recorder in exercising the jurisdiction which the court possesses, such as the appointment of necessary clerks of the court.

The decree of the court below is affirmed, but without costs of this appeal to either' party.

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


author: Steere, J.

text:
    COMMON COUNCIL OF THE CITY OF DETROIT v. ENGEL.
    1. Constitutional Law — City Charter — Detroit Charter — - Amendment.
    Under the amended Constitution, authorizing cities to amend their charters without an entire revision and framing a new instrument, the city of Detroit may amend its charter without regard to Act No. 203, Pub. Acts 1911, declared invalid by this court. Attorney General v. Common Council, 164 Mich. 369 (169 N. W. 879).
    2. Same — Municipal Corporations — Bonds.
    As the authority of the city of Detroit to issue bonds was in existence prior to the adoption of the Constitution of 1909, and continued in force by the adoption of amendments to the charter, under the authority of the amended Constitution, and Act No. 5, Pub. Acts 1913, the consent of the electors, necessary in other cases, to the issuance of municipal bonds, in excess of the 2 per cent, limitation in the city charter, was unnecessary; the power of issuing bonds in excess of the former limitation may not be exercised by the common council, pursuant to the amended charter.
    3. Same — Illegal Pubposes.
    But bonds for hospitals, garbage reduction, and so forth, not included in the public building fund under charter provisions as amended, cannot be issued for purposes that have not been previously declared by a change in the charter provisions.

      4. Same — Mandamus—Issues.
    If the improper conclusions of the circuit court on mandamus were distinct from, the correct findings or determination, so that the issues were separate, the court on certiorari may affirm the correct positions of the judgment and quash the remainder.
    Certiorari to Wayne; Mandell, J.
    Submitted June 15, 1915.
    (Calendar No. 26,818.)
    Decided July 2, 1915.
    Mandamus by the common council of the city of Detroit against George Engel, city controller, to compel respondent to issue certain bonds. An order granting the writ is reviewed by respondent on certiorari.
    Affirmed in part and reversed as to remainder.

      Stevenson, Carpenter, Butzel & Backus, Leo M. Butzel, Hawkins, Delafield & Longfellow, Frederick P. Délafield and William Henry Hoyt, for appellant.

      Richard I. Lawson and Edmund Atkinson (Harry J. Dingeman, of counsel), for appellee.
   Steere, J.

This contention involves the validity of certain bonds authorized by the common council of the city of Detroit and about to be issued, but which respondent refused to prepare, record, and deliver in compliance with provisions of the city charter 'respecting his official duties on the ground that said bonds could not be lawfully issued, unless authorized by a three-fifths vote of the electors of the city at a general or special election.

On application by relator to the circuit court of Wayne county, a writ of mandamus was issued commanding the controller to prepare said bonds, cause the same to be duly executed and recorded in the books of his office, and transmit them to the city treasurer, for delivery to the parties to whom they had been sold and awarded. The matter is now here upon certiorari to review the circuit court order granting such writ of mandamus.

Under authority of section 7, chap. 11, of the Detroit city charter, its common council, in 1914, by regular resolution, authorized, and the board of estimates of the city approved, the issuance of bonds as follows: $503,000 for public sewers; $383,000 for garbage reduction plant; $600,000 for municipal court building; $695,000 for hospital site and buildings; $25,000 for a city garage; $585,000 for conduit construction for public lighting system; and $72,000 more for public light conduits — making a total of $2,863,000. Thereafter the common council, on January 19, 1915, took action for the sale of, and advertised for proposals to purchase, bonds as follows: $200,000 30-year public sewer bonds, $270,000 30-year public building bonds, $408,000 10-year public building bonds, and $350,000 10-year public lighting bonds — mhking a total of $1,228,000. They had been advertised for sale in accordance with charter provisions, and bids for their purchase received when a question as to their validity arose, resulting in this litigation.

It seems to be conceded that the various steps taken by the common council authorizing these bonds, followed, and were in compliance with, charter provisions, and the first question raised is whether certain of those charter provisions of the city of Detroit have been so superseded or modified by subsequent constitutional restrictions and general legislation relative to incorporation of cities that municipal bonds issued in compliance with them are not valid.

Although the city of Detroit has in some particulars amended its charter piecemeal since the adoption of our present Constitution, which took effect January 1, 1909, there has been no adoption of a new or general revision of its old charter. The charter provisions, upon which the legality of these bonds depends, antedated the present Constitution, which, under sections 20 and 21, art. 8, requires the legislature to provide by a general law for incorporation of cities, and shall, amongst other things restrict, or set a limit upon, their power of borrowing money and contracting debts. Said section 21 provides that, under such contemplated general law relative to cities, the electors of each city shall have power to frame, adopt, and amend their charter and through regularly constituted authority pass all ordinances relating to municipal concerns, subject to the Constitution and general laws óf the State.

In compliance with these constitutional requirements, Act No. 279, Pub. Act. 1909 (2 How. Stat. [2d Ed.] § 5442 et seq.), known as the “Home Rule” law, was passed, which declared (section 2) that “each city now existing shall continue with all its present rights and powers until otherwise provided by law,” and (section 4, subd. “b”) that any city could in its charter provide for borrowing money on the city credit in a sum not to exceed 8 per cent, of the total assessed valuation; but in cities where the amount of money which might be borrowed was at the time of the enactment of the law limited, such limitation must continue until raised or lowered by a two-thirds vote of the electors; also that “ no city shall have power to incur indebtedness or issue bonds of any kind except for emergency purposes as above stated, and bonds secured only by mortgage on the property and franchise of a public utility which shall exceed in the aggregate ten per centum of the assessed value of all the real and personal property in the city.”

This court has several times been called upon to consider those provisions of the Constitution and the home rule act which followed, conferring upon cities autonomous powers not previously possessed, in the course of which it was held that an existing city could not in the first instance amend its old charter piecemeal.

In Jackson Common Council v. Harrington, 160 Mich. 550 (125 N. W. 383), decided March 21, 1910, the validity of the home rule act of 1909 was sustained as constitutional and construed in part, a writ of mandamus being granted to compel the city recorder to give official notice, as provided in said act, of a resolution by the common council declaring for a general revision of the Jackson city charter.

In Attorney General, ex rel. Hudson, v. Common Council of Detroit, 164 Mich. 369 (129 N. W. 879), decided February 1, 1911, the act was again under consideration in an application to review an order of the Wayne county circuit court dismissing a petition of the attorney general filed on relation of certain taxpayers of the city for a writ to restrain the common council from submitting to a vote of the electors a proposal to amend the Detroit charter. The constitutionality of the act was again attacked and sustained ; the court saying in part:

“We are of the opinion that the method of presenting a proposed amendment provided for is within the power necessarily committed to the legislature to provide the method of executing the constitutional provision as fully as the power to prescribe the method of proposing a revision of a charter, which we held to be constitutional in Jackson Common Council v. Harrington, supra.”

But the order dismissing relator’s petition was overruled and a writ granted on the ground that, under the Constitution, Act No. 279, supra, could not be construed as authorizing cities to amend their old charters piecemeal, because the language of the Constitution authorizing a city to “frame, adopt and amend its charter” must be construed as meaning a charter thereafter framed and adopted under the general law, or laws, to be enacted. This decision, that revision must precede amendment, tied existing cities to their old charters without power of change, except through a new charter in toto or a general revision of the old, framed or made by a commission and adopted by popular vote, subject to the compulsory and restrictive provisions incorporated in the general law, as directed by the Constitution.

The amount of money which could be borrowed by the city of Detroit for strictly municipal purposes was limited by its existing charter to 2 per cent, of its assessed valuation, and it was sought to increase this limit, without a general revision under Act No. 279, supra, by a local act of the legislature (Act No. 302 Local Acts 1911), approved March 23, 1911, amending section 7, chap. 11, of the charter, with a referendum clause; this local act being given immediate effect to preserve “public peace, health, and safety.” The Constitution of 1909 having deprived the legislature of the power to pass local laws amending city charters, this act was palpably unconstitutional and so held without serious contention to the contrary in Attorney General v. Thompson, 168 Mich. 511 (134 N. W. 722), decided February 16, 1912. At the same session of the legislature, said Act No. 279, supra, was sought to be amended by a general act (Act No. 203, Pub. Acts 1911), approved April 29, 1911, changing section 2 to read:

“Each city now existing shall continue with all its present rights and powers except as herein otherwise provided”

—and authorizing amendments of city charters without prior revision.

In Attorney General, ex rel. Vernor, v. Detroit Common Council, 168 Mich. 249 (133 N. W. 1090), decided January 15, 1912, this act was also held in that particular to be in violation of said sections 20, 21, art. 8, of the Constitution, which had been interpreted in the Hudson Case as intending a general law which should operate uniformly in all cities acting under it and did not permit a general law which authorized cities to amend only specified sections of their charters and leave them—

“repugnant to the general law adopted under article 8, § 20, of the Constitution, „so that cities claiming to operate under a general law intended to operate uniformly upon the local legislatures of all cities would be subject to such limitations as they should choose to accept and might adopt such provisions as they deemed beneficial.”

In Gallup v. City of Saginaw, 170 Mich. 195 (135 N. W. 1060), decided May 4, 1912, the subject was again before this court in an attempt by complainant to restrain the city of Saginaw from proceeding further in action taken to revise its charter under Act No. 279, Pub. Acts 1909, as amended by Act No. 203, Pub. Acts 1911. Both the validity of the original act and the constitutionality of the amendment were attacked and contested in the trial court, and it was there held that the amending act (Act No. 203, Pub. Acts 1911) was unconstitutional and void in its entirety, but the injunction applied for was denied and the city permitted to proceed with its proposed charter revision under the original act of 1909. The conclusions of the trial court were sustained by this court and its decree affirmed.

At the general biennial election held November 5,* 1912, section 21, art. 8, of the State Constitution, was amended so as to authorize piecemeal amendment of existing .city charters without previous revision, including those “theretofore granted or passed by the legislature for the government” of cities, and by section 38, Act No. 5, Pub. Acts 1913, the home rule act of 1909 was amended; the expressly stated intent of the amendment being to — '

“re-enact sections twenty-one, twenty-two, twenty-three and twenty-four, as above amended pursuant to the adoption of the amendment to section twenty-one, of article eight of the State Constitution, by vote of the electors on November five, nineteen hundred twelve, so- that cities under existing charters heretofore granted by the legislature shall have the same right and power to amend such charters under the act hereby amended as cities that have adopted complete charter revisions.”

At a municipal election held in the city of Detroit on April 7, 1913, a proposed amendment of section 7, chap. 11, of its charter, increasing the bonding limit of the municipality from 2 to 4 per cent., was adopted by a large majority vote of its electors. With this increase the bonding limit of the city did not exceed one-half the possible limit fixed by the home rule act, or any of its amendments, and no question of a possible violation of that limit is involved here.

In Attorney General, ex rel. Barbour, v. Lindsay, 178 Mich. 524 (145 N. W. 98), in which Act No. 5, Pub. Acts 1913, was under consideration, this court held that the legality of said amendment (to section 7, chap. 11, of the Detroit charter), increasing its bond limit from 2 to 4 per cent., could not be questioned. The amendment of said section so recently adopted increasing the limit to 4 per cent, indicates an intent and purpose, on the part and so far as within the power of the electorate of the city, that the section should re‘■main in force. If each issue within that limit could only be by a vote of the electorate, why and for whom should they fix a general limit?

As before stated, the course prescribed by section 7, chap. 11, of the charter, was followed in authorizing and issuing these bonds, but it is urged that, with this limit fixed by a popular vote amending the section in question, bonds not exceeding the limit cannot be lawfully authorized and issued in compliance with the provisions of said section unless each issue is approved by a three-fifths vote of the electors at a general.or special election, in compliance with subdivision “e” of section 5 of the home rule act of 1909, as amended by Act No. 203, Pub. Acts 1911. As amended said subdivision provides:

“No city shall have power * * * to * * * authorize any issue of bonds except special assessment bonds, refunding bonds, and emergency bonds as defined by this act and bonds that it is annually authorized to issue, unless approved by three-fifths of the electors voting thereon at any general or special election.”

As originally enacted, the subdivision does not contain this restriction. Without it the authority of the common council and board of estimates to exercise the powers conferred and previously exercised under said section 7, chap. 11, of the charter, cannot be seriously questioned.

By Act No. 203, Pub. Acts 1911, section. 2 of the home rule act was amended to read:

“Each city now existing shall continue with all its present rights and powers except as herein otherwise provided.”

It is urged the provision for a three-fifths vote in subdivision “e” of section 5 should stand, although this act was apparently held unconstitutional in the Gallup Case, because there section 2 was not necessarily involved, and the decision, so far as that section is concerned, is not controlling. An examination of the record and briefs in the Gallup Case discloses that both the validity of the original act and the constitutionality of the amendment were in issue and passed upon by the trial court. Counsel for complainant elaborately briefed both issues in this court, urging objections against the constitutionality of the amendment, the sufficiency of which opposing counsel conceded here, for which reason the question was not reviewed at length. It was held, however, that the city, in revising its charter, might ignore the provisions of the amendatory act, because it was unconstitutional, and the decision of the trial court that it was void in its entirety was sustained. Whether essential or not to the disposition of that case, we see no sufficient reason to reverse such conclusion.

Section 20, art. 8, of the Constitution, was amended in close sequence, and in the light of those decisions construing it as then prohibiting piecemeal amendments of old charters because of an indicated intent to prohibit a confusing lack of uniformity in city charters, which might otherwise result. This amendment has eliminated those reasons from consideration and emphasized the intent to confer upon cities a large degree of autonomous power in strictly local matters. In Detroit, authority in the council to issue bonds for certain purposes, according to the provisions of section 7, chap. 11, of its charter, existed at the time and long before the adoption of the Constitution of 1909. By that Constitution, which first provided for the home rule law and now by express terms authorizes piecemeal amendment of old charters, Detroit continued with all its former charter rights and powers, whatever they were, until otherwise provided by law. The amendment to section 7, raising its bond limit from 2 to 4 per cent., introduced no new feature which in any particular contravened the Constitution or any general law of the State.

Objection is further made to the proposed issue of $350,000 10-year, public lighting bonds, for the reason that, with those now outstanding, they exceed the limit authorized by the charter. The charter authorizes the common council to establish a public lighting plant, “the cost of which shall not exceed $800,000.” It is also provided in that connection that funds for that purpose may be raised by tax or by bonds, in the discretion of the council, “payable at such time and in such amount and at such rate as the council may determine” and the board of estimates may approve. “Such amount” as the council may determine should be read and construed in connection with what precedes and which makes plain that the cost of said plant, whether paid for by taxation or bonds, shall not exceed $800,000. This necessary construction was manifestly adopted by the city authorities when the $800,000 so authorized had been expended. Desiring an additional $150,000 for that purpose, a local act of the legislature was deemed necessary and secured (Act No. 468, Local Acts 1905) which authorized a bond issue for that amount.

The authority of the common council of Detroit is, however, conferred and limited by its charter. Section 7 of chapter 11 empowers, the council only to issue bonds for “the public sewer fund for construction of trunk public.sewers, and the public building fund and a fund for the purchase or construction of public utilities,” and provides that “bonds issued by authority of this section shall be respectively denominated ‘public sewer bonds/ ‘public building bonds/ and ‘public utility bonds.’ ” Section 1, chap. 11, of the charter (Act No. 326, Local Acts 1883), thus defines the public building fund:

“Public building fund, for purchasing any real estate for the erection thereon of any public buildings, and to defray the expenses of erecting, repairing, and preserving such public buildings as the common council is authorized to erect and maintain, and are not herein otherwise provided for, which fund shall, from time to time, be divided into special building funds, to defray the expenses of erecting, repairing, and preserving the particular building or buildings for which such special building fund may be constituted or raised.”

It is to be noted that in the original authorization by the council of bonds aggregating $2,863,000 there were included $383,000 for a garbage reduction plant and $695,000 for hospital site and buildings. The bonds proposed to be sold and in issue here aggregate $1,228,000, and no mention of garbage plant or hospital site and buildings is made, but they include $270,-000 30-year public building bonds and $408,000 10-year public building bonds. It is urged against these that under the name of “public building bonds” was necessarily included and manifestly intended to be issued a part of the hospital and garbage plant bonds; that buildings for which public building bonds may be authorized and sold by the common council are public buildings, within the meaning of the charter, which does not include garbage plants or hospitals. Not only is a garbage fund and a hospital fund “otherwise provided for” in the charter, which at least raises a doubt as to the intent to include those subjects, in the section relating to a public building fund, but the legislative interpretation of the council’s authority in that connection makes plain that it does not, as subsequently shown.

It is to be borne in mind that the provisions referred to are a part of the city charter granted by the legislature to Detroit before the Constitution of 1909 gave cities the power, through the legislature, to adopt, revise, and amend their charters, and, as just pointed out, said charter remains in force until the city sees fit to change it. Before the common council could issue bonds to erect and equip a hospital for contagious diseases, it was found necessary to obtain authority to do so from the same power which granted the charter (Act No. 404, Local Acts 1905), and in like manner an amendment of the city charter was obtained (Act No. 670, Local Acts 1905) to authorize the common council to issue bonds to the extent of $100,000 to provide a garbage and refuse plant. While it is now within the power of the city to amend its charter and authorize the council to issue further bonds for that purpose, we do not discover that it has done so, and, until it does, that authority does not rest in the council.

The “public building bonds” proposed to be sold, and involved here, total $678,000. Exclusive of garbage reduction plant and hospital site and buildings, $625,-000 public building bonds were originally authorized. It is to be assumed that the proceeds of any bonds sold will be applied as legally authorized.

It follows from the foregoing that the writ of mandamus granted by the circuit court cannot be sustained in its entirety.

Distinct determinations of the circuit court as to different proposed issues of bonds are involved and presented for review in this proceeding. The legal and illegal matters are independent of each other and plainly ascertainable. This court may therefore quash or correct such parts as are illegal and affirm as to those which are legal.

We accordingly conclude, for the reasons stated, that the order for a writ of mandamus be affirmed as to the $200,000 public sewer bonds and the public building bonds to the previously authorized amount of $625,000 (deducting the excess from either the 30-year or 10-year issue as relators may elect), and reversed as to the other proposed issues, which are hereby held illegal; this without costs to either party.

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


text:
    PASKVAN v. ALLOUEZ MINING CO.
    1. Pleading — Negligence—Master and Servant — Inspection-Mines.
    Where decedent was fatally injured in getting into a skip or tram car used to carry the employees to and from their work in its mine, and in plaintiff’s declaration it was averred that the employer was bound to provide and maintain a proper signaling apparatus, including a reasonably safe signal bell line and bell for the purpose of notifying and conveying signals from the men underground to the engineer, that the defendant negligently failed to furnish and maintain a suitable signaling apparatus and negligently failed to inspect and repair the same, evidence as to want of inspection and the testimony of a witness as to its condition and failure to inspect was admissible in support of the allegations.

      2. Same — Negligence—Inspection—Proximate Cause.
    Testimony that defendant maintained a hell signal system for the operation of its tram car or skip, connected at the mouth of the mine with a puffer engine, that at the time decedent was injured the car was about to stop and take in a number of employees and that the signals given by the operator were not obeyed and the car behaved in an erratic manner, passing beyond the stopping point, that there was no proper inspection of the signaling apparatus but that the signals were given and in part followed by the operator of the engine, there being no proof that the signaling apparatus did not work or that failure to inspect contributed to the accident: held,, to warrant a verdict for the defendant by direction of the court, since it was a matter of speculation what had caused the erratic movement of the car and a reasonable explanation or inference being that the engineer misapprehended the signals or mismanaged the movement of the hoist so as to result in the accident to plaintiff’s decedent.
    Error to Keweenaw ;■ Cooper, J., presiding.
    Submitted June 20, 1913.
    (Docket No. 69.)
    Decided July 23, 1915.
    Case by Dala Paskvan, as administratrix of the estate of Matt Paskvan, against the Allouez Mining Company for the unlawful killing of plaintiff’s intestate. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      Le Gendre & Driscoll, for appellant,

      Allen F. Rees (Deen L. Robinson and Albert E. Petermann, of counsel), for appellee.
   Ostrander, J.

Plaintiff, as administratrix, sued defendant to recover for personal injuries sustained by her intestate husband. At the close of plaintiff’s case, the court, on motion of defendant, directed a verdict in its favor, upon which a judgment was entered. Upon writ of error the case is before this court for review.

The following are the facts in the ease: .

On Saturday, April 29, 1911, this injury occurred in shaft No. 2, at the eighteenth level of defendant's Allouez copper mine, in Keweenaw county. . This is what is known as a two-department shaft, and the eighteenth level was about 2,700 feet below the surface. This shaft, from a point at or near,the surface, dipped toward the west at an angle of about 80 degrees until about the fifteenth level, and then angled about 38 degrees.

“There were seven levels in the mine at that time. They were sinking for the twentieth level, so the nineteenth was then the bottom opened level. Other levels were above that.”

These levels were numbered from the top down, averaging about 100 feet apart. There were two skip tracks in this shaft, one in each compartment. The skips were the receptacles used to hoist out ore which was mined out in the several levels and delivered at the shaft in tram cars, and were the means by which the men who worked in the mine were let down to and drawn up from the places where they worked. They ran on wheels and were lowered and hoisted upon the inclined skip tracks by an engine, drum, and cable. One end of the cable was attached to the drum in the engine house on the surface and passed over sheave wheels in the shaft house down to the bail of the skip. The engine house and drum were about 200 feet from the mouth of the shaft.

North of the north skip track in the shaft were ladders by means of which the men sometimes went up and down. North of the ladders was the air pipe line. North of the skip track was also the signaling apparatus, called the bell line, made of wire, with a weight on the end of it in the engine house, and other weights were attached to it along the shaft. There was a lever at each level connected with the wire for the purpose of signaling the engineer. To signal the engineer in the engine house on the surface, these levers were operated by hand. The company had a code of signals for use in this shaft. One bell was the signal to stop. A bell and a half was the signal to hoist slowly. Five bells was the signal to hoist the men out. If the signaling apparatus was in working order, pulling the lever out once and letting it go back would ring one bell in the engine house. Pulling the lever out once and letting it go back and then pulling it out and holding it would be a bell and a half. This bell and a half signal to hoist slowly was used in bringing up the men; and when the operator let the lever go back the second time the skip was stopped at the level. Pulling the lever out and letting it go back five times would be five bells. This signal was given when the men were in the skip ready to be hoisted out. The one in question was a three-ton skip. Its size was about eight feet in length, five feet across, and about four feet deep. The body of it was in the shape of a box with a lip on it. There was no device on the skip to stop it or hold it in the shaft. It was held only by the cable and machinery above described. It was operated from the bottom to the surface, in bringing out the men, upon the code of signals above described.

The day this accident happened was Saturday. On that day all of the men working in this mine quit work at about 12 o’clock noon, and do not return to work until Monday. Plaintiff’s decedent on the day in question was working with his partner in the nineteenth level on the north side of the shaft, and about 200 feet from it. They quit work about 12 o’clock and went by way of the ladders up to the eighteenth level, at which place were 14 or 15 men waiting to get into the skip to be hoisted to the surface, as was customary. The skip had gone down past the eighteenth level, when witness Kemp operated the lever at that level, so as to give the one bell signal to stop it. It stopped at about the nineteenth level. After it stopped, Kemp with the lever gave the one bell and a half signal to hoist. The skip then started upward toward the eighteenth level. Kemp then turned the lever over to Mataja, who was to remain and give the other necessary signals to hoist the men out and then go up the ladder to the next level. The skip rose, approaching the eighteenth level very slowly. When it was about six inches or a foot below the platform, Mataja released the lever to give one bell to the engineer, which was the signal to stop. There is a dispute in the testimony whether or not the skip stopped on this signal. This witness testified that it gave a jump as if it was off the track and started up rapidly, when he immediately signaled it twice to stop, which it did about 45 feet above the eighteenth level. When the skip approached this level, four or five of the men at once got into it, as they were accustomed to do before it stopped. There is evidence in the case tending to show that the skip stopped at this level for a short time, and that, after it stopped, it jerked and went up, and also that plaintiff’s decedent, before the skip started, had hold of the bail of the skip with his hand for the purpose of getting into it.

Nobody saw how plaintiff’s decedent was injured. After the skip passed up, he was seen holding onto the timbers, crying out for some one to hold him or he would fall. He was taken down and found to be severely injured. The skip came back, and he was taken up in it and soon taken to the hospital, where he died within five hours after the injury. A piece of his trousers was found on or near the rail, having the appearance of having been run over. There was some blood at the same place and some on the dividing timber on the south side.

The errors assigned and relied upon in this case relate:

First, to the rulings of the court on the trial; and, second, to the direction of a verdict for defendant by the court.

Most of the witnesses called by plaintiff were in the employment of defendant company at the time of the accident and of the trial. Among these was Rudolph Kemp, who was present in this shaft at the time of the injury to plaintiff’s decedent and operated the signaling lever for the first two signals and then turned it over to Mataja to give the others. He testified at length relative to the circumstances which occurred at that time and place. He also testified that for two years he had operated a puffer engine at the bottom of this shaft, to which this signaling apparatus ran. At the time of the accident, his work was below the nineteenth level. He testified that he performed his work near the shaft and would see any inspection made, and that he saw none, except when the signaling apparatus broke down. He further testified that the signal line did break down sometimes; that 3mu could not tell when it would break; and that, in order to keep it in repair, it was necessary to inspect it, and that he would see any inspection made near the bottom of the shaft.

At the close of this part of his testimony, and just before his cross-examination, counsel for defendant moved the court to strike out his testimony “as to the inspection of the bell line signaling apparatus, on the ground that, under the declaration, the matter of inr spection of the bell line is not competent and not being set up as one of the causes of the injury.” Thereupon the court struck out all of the testimony of this witness regarding the inspection, “excepting he never saw them inspect between the eighteenth and nineteenth level.” To this ruling error is assigned by plaintiff. Counsel for defendant was clearly in error as to the reason for his objection, which the court sustained. The declaration clearly states, among other things, that it was the duty of defendant “to provide, and maintain a proper and suitable signaling apparatus, including a reasonably safe signal bell line and bell for the purpose of notifying and conveying signals from the men underground to the engineer.” The declaration also alleged a negligent failure to furnish and maintain such suitable signaling apparatus, and that it negligently failed to inspect and repair the same, which was a sufficient allegation to admit testimony relative to the inspection of the signaling apparatus by defendant.

This witness had testified that the signaling line broke down “once in a while;” that he never saw it inspected, except on such occasions; that his work was near the shaft for the term of two years, where he would see any inspection that was made at that place.

There is other testimony in the case bearing upon the question of the condition of the signaling apparatus at the time of this accident, which is undisputed. The skip came down past the eighteenth level, and upon the proper signal being given by Kemp, it stopped. Then, upon the signal to hoist slowly being given, that signal was complied with. Immediately following, the lever was turned over to another operator, who-gave the proper signal to stop, at which there was but a brief stop, and the signal was repeated twice, when it stopped 40 feet beyond the level.

Assuming that the signaling apparatus ought to have been, from time to time, inspected, and assuming a failure to inspect it, there is no testimony tending to prove that it was not in working order; none tending to prove that a failure to inspect it caused or contributed to the injury.. On the contrary, it is shown to have been in working order, and the hoist was operated in obedience to signals. Speculation only can attribute the alleged erratic movement of the car to defective apparatus, and speculation would seem to halt at attributing the speculative defect to want of inspection. It is more reasonable to say that the engineer, in obeying signals, mismanaged the movement of the hoist, if, as is claimed by plaintiff, it did not stop, or stop long enough, for the men on his level to enter the car.

We are therefore of opinion that the court was right in directing a verdict for defendant, whether the testimony of Kemp is or is not considered.

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

This case was originally assigned to the late Justice McAlvay.