author: Hooker, J.

text:
    DETROIT & TOLEDO SHORE LINE RAILROAD CO. v. CAMPBELL.
    1. Eminent Domain — Railroads—Contractor—Right to Maintain Proceedings.
    A contractor, who has taken a contract to procure the right of way and build a road for a railroad company, and has been authorized by it to bring suit in its name, may maintain condemnation proceedings in the name of the company.
    2. Same — Receivers—Right to Maintain Proceedings.
    The appointment of a receiver for a railroad company on a judgment creditor’s bill does not divest it of its franchises nor of the title to its property, and does not affect its right to maintain condemnation proceedings.
    3. Same — De Facto Corporation.
    A de facto railroad corporation may maintain condemnation proceedings, only the State being authorized to question the legality of the incorporation.
    4. Railroads — Condemnation Proceedings — Petition—Map — Survey.
    It is not now necessary that a petition for the condemnation of lands by a railroad company shall allege the filing of a map or survey. Act No. 280, Pub. Acts 1901.
    5. Same.
    If it is essential that a map be filed as a prerequisite to condemnation proceedings by a railroad company, a map which points out in a general way the route and termini of the road as required by the statute (Act No. 80, Pub. Acts 1901, § 7), is sufficient, and it need not particularly describe tbe exact land to be taken.
    6. Same — Appeal —Questions Considered — Rulings on Evidence.
    Questions raised over the introduction of evidence in proceedings by a railroad company to condemn land cannot ordinarily be considered on appeal, though evidence clearly improper might justify a reversal of confirmation, should it appear that it caused a substantial error on the part of the jury.
    7. Same — Questions op Fact.'
    On appeal in proceedings by a railroad company to condemn land for a right of way, it is not within the province of this court to review questions of fact, further than to see that the finding is supported by the evidence.
    8. Same — Procedure—Jury—Several Owners.
    The statute for the condemnation of lands for a railroad right of way contemplates, that one jury shall determine in one proceeding the questions relating to lands of different persons in a locality.
    9. Trial — Conduct—Tampering With Juror.
    In proceedings by a railroad company to condemn land for a right of way, it is error for the counsel, witnesses, and jurors to mingle freely together, dining together, and for meals, cigars, and drinks, to be furnished by petitioner’s representatives.
    10. Same — Objections—Time op Taking.
    In proceedings by a railroad company to condemn land for a right of way, error consisting in the treating of the jury, etc., by petitioner’s representatives, was seasonably taken advantage of by objection to confirmation.
    Appeal from Wayne; Hosmer, J.
    Submitted January 5, 1905.
    (Docket No. 13.)
    Decided June 8, 1905.
    Condemnation proceedings by the Detroit & Toledo Shore Line Railroad Company against Henry M. Campbell and Caroline B. Campbell. From an order confirming the award of the jury, defendants appeal.
    Reversed.

      Cfray & Oray, for appellants.

      Brennan, Donnelly & Van De Mark, for appellee.
   Hooker, J.

The Detroit & Toledo Shore Line Railroad Company, being completed from Toledo to Trenton, let a contract to Strang to obtain for it the necessary right of way and construct the remainder of its projected railway from Trenton to Detroit; authorizing Strang to take the necessary steps in its name to condemn lands necessary for the purpose. Proceedings to condemn a right of way across many parcels of lands were instituted by Strang, a jury was impaneled, and awards made. The defendants named in this record have appealed.

The questions raised may be divided into three classes:

(1) Those raised to the jurisdiction of the court to submit the cause to a jury.

(2) Alleged errors in the admission or exclusion of evb dence before the jury.

(3) Objections to the order of confirmation.

Upon the presentation of the petition the defendants answered, raising a number of questions relating to the jurisdiction of the court, to submit the matter to a jury, and a hearing was had and proofs were taken upon the issues thus raised. It was contended:

1. That this was not a proceeding by the railroad company, but by and for the benefit of a private person, and that such had no authority to institute the proceedings. The evidence upon which this was based tended to show, as hereinbefore stated, that Strang was under contract obligations to perform the service of securing the right of way, including payment for the same, and to construct the road, for which he was to receive an agreed sum in payment. He was authorized to use the company’s name in condemnation proceedings where necessary, and instituted these proceedings in its name after failing in an attempt to obtain the right of way by purchase.

The right to the benefit of the law of eminent domain inures to railroad companies by virtue of the. statute which confers powers upon the railroad companies similar to those used by highway authorities. These powers are sustained upon the theory that railroads are public highways, in a sense, and that the public may condemn lands for railways, and that it is lawful to delegate the power to the railroad companies for the use of the public; i. e., the power is “ delegated to a public agent to work out a public use.” See Swan v. Williams, 2 Mich. 435; Michigan Central R. Co. v. Ward, 2 Mich. 547; Consumers’ Gas Trust Co. v. Harless, 131 Ind. 450 (15 L. R. A. 507); Venable v. Railway Co., 112 Mo. 119 (18 L. R. A. 73); Gano v. Railroad Co., 114 Iowa, 721 (55 L. R. A. 267); Township of Pine Grove v. Talcott, 19 Wall. (U. S.) 676; Taylor v. Ypsilanti, 105 U. S. 64. That a corporation must in all things work through individuals who act as agents is obvious, and it is not necessary that it limit such agents to its officers or stockholders. It may employ an attorney to act for it, or it may choose a layman, so long as he is to act as the representative of the company and for its benefit. Strang acted for the company in procuring the right of way from the owners. Presumably the land required was designated by the company, and Strang was expected to procure it, not for his own, but the railroad’s, use. We do not see a reason for denying the railroad the right to acquire a right of way by condemnation merely because it had a contract with Strang to take the necessary steps to condemn the land for and in the name of the railroad, or that the authority of the raib road was affected by the terms agreed upon between them as to how he should be paid for his services and disbursements.

In the case of Ten Broeck v. Sherrill, 71 N. Y. 276, it was held that the authority given to canal commissioners by statute to take lands from which to obtain gravel for repairsof the canal was notimpaired by the fact that the State had let the work by contract, or that the contractor was to furnish the materials. It was said that this was a question between the State and the contractor, and did not affect the power of the canal commissioners. A similar holding is found in the case of Bliss v. Hosmer, 15 Ohio, 44 See, also, State v. Mayor, etc., of Newark, 54 N. J. Law, 62. Several cases are cited by counsel which, hold that although the railroad company may lease the road, even though it be for the full period of its charter rights, the authority to condemn property is not lost, and proceedings may be taken in its name. In re New York, etc., R. Co., 35 Hun (N. Y.), 225, 99 N. Y. 20, following Kip v. Railroad Co., 67 N. Y. 227; Chicago, etc., R. Co. v. Illinois Cent. R. Co., 113 Ill. 156.

We must hold, therefore, that the arrangement made with Strang did not divest the petitioner of its power to condemn land, and that the institution of the proceedings by Strang was upon its behalf.

2. It was urged that the proceedings were void for the reason that the road was, at the time they were instituted, in the hands of a receiver appointed by the Federal court at Detroit, who, if any one, had the exclusive authority to institute such proceedings. As a foundation for this point, it was shown that a judgment had been rendered against the railroad company by the Federal court at Detroit in favor of Henry A. Everett; that a creditors’ bill had been filed and a receiver appointed in 1902, who had not been discharged at the time the petition in this proceeding was filed, though he has been since. The gist of this objection we understand to be that the appointment of the receiver divested the company of the power granted it by the State, and gave it to the receiver, or, if not, that it suspended its power to act while its property was in the custody of the court.

We have said that the reeceiver was appointed upon a creditors’ bill, which, of course, sought to apply the property of the defendant to the judgment owned by Everett. We have not before as the proceedings in that case. All that our attention is called to is the order appointing the receiver, which provides that:

“On reading and filing the bill of complaint and the answer of the defendant in this cause, and on motion of Brennan, Donnelly & Yan De Mark, solicitors for the complainant, with the consent of Mr. Guy M. Walker, solicitor for the defendant, it is ordered, adjudged, and' decreed that Allen F. Edwards be, and he is hereby, appointed temporary receiver, until the further order of this court, of all the property, real and personal and mixed, of every kind, belonging or in the possession of the defendant railroad company, and, if necessary, to sue for, in the name of said receiver, and recover, all such property, whether in possession or in action, and that, upon demand made by said receiver, the defendant company, its officers and agents, shall forthwith deliver over to the receiver all of the aforesaid property, and that neither said company, nor any officers or agent or employe of said company, shall interfere with or molest the possession or enjoyment of any of said property in the possession of such receiver by said receiver.
“ And it is further ordered, adjudged, and decreed that ■the said receiver be, and he is hereby, empowered and diTected to carry on the business of the said defendant company until the respective rights of the parties in interest can be fully ascertained and determined, under and subject to the supervision, direction, and control of this court,..and until otherwise ordered by this court, and to use and employ the property, franchises, rights of way, roadbed, tracks, locomotives, rolling stock, machinery, fixtures, and property, of whatever kind or nature, and to take and receive revenues, issues, and profits of said business and property; and said receiver shall be, and he is hereby, invested with all the rights and franchises vested by law in said defendant railroad company in the duties and trusts aforesaid; and said receiver shall have authority to employ all necessary and proper agents, officers, and laborers, and to fix and alter their compensation, subject to the supervision of this court. Said receiver shall also have authority, subject to the supervision of this ■court, to make such repairs and necessary additions to ■■said railroad and property as may be essential to the interest and safety of the same, and proper, in his judgment, for carrying on said business; also to make all contracts that may be necessary in carrying on the business of said railroad company, subject to like supervision of this court; also to collect in his own name, as receiver as aforesaid, all debts, claims, or demands, of whatsoever iind or nature, owing, or that may become due and owing, to said company or to said receiver from any and all sources. Such receiver is ordered to make and return a full, true, - and correct inventory of all of the property that may come into his hands as receiver. It is further ordered that, out of the moneys that shall come into the hands of said receiver from the operation of said railroad, he shall pay all current expenses incident to the creation or administration of his trust, and all sums to become due to connecting or intersecting lines of railroads, arising from the interchange of business, and all amounts now legally due from said railroad company for taxes. It is further ordered that said receiver shall retain possession and continue to discharge the duties and trust aforesaid until the further order of this court in the premises; and that he shall from time to time make reports of his doings in the premises, and may from time to time apply to the court for such other and further order and directions in the premises as he may deem necessary and requisite to a due administration of said trust; and said receiver is hereby vested, in addition to the powers aforesaid, with all the general powers of receivers of this kind, subject to the supervision of this court.”

It can hardty be contended that this order was effective to divest the railroad company of its title to its property. Counsel for the petitioner have cited many cases which support their claim that under the rule of the Federal courts a receiver appointed under circumstances like those in this case is a mere custodian of property, without title, which remains in the company. Wiswall v. Sampson, 14 How. (U. S.) 52; Union Bank of Chicago v. Kansas City Bank, 136 U. S. 223. In this case a receiver was appointed upon a judgment creditors’ bill. The court said:

“A receiver derives his authority from the act of the court appointing him, and not from the act of the parties at whose suggestion or by whose consent he is appointed; and the utmost effect of his appointment is to put the property from that time into his custody as an officer of the court, for the benefit of the party ultimately proved to be entitled, but not to change the title or even the right of possession in the property.”

This language was cited with approval in the case of Quincy, etc., R. Co. v. Humphreys, 145 U. S. 97, as was also the case of Gaither v. Stockbridge, 67 Md. 222, where it was said:

“ It is manifest that the scope of his duties and powers is very much more restricted than those of an assignee in bankruptcy or insolvency. In the case of an assignee in bankruptcy, the law casts upon such assignee the legal title to the unexpired term of the lease; and he thus becomes assignee of the term by operation of law, unless, from prudential considerations, he elects to reject the term as being without benefit to the creditors. But not so in the case of receivers, unless it be, as in New York and some of the other States, where, by statute, a certain class of receivers are invested with the insolvent’s estate, and with powers very similar to those vested in an assignee in bankruptcy. Booth v. Clark, 17 How. (U. S.) 331. The ordinary chancery receiver, such as we have in this case, is clothed with no estate in the property, but is a mere custodian of it for the court, and, by special authority, may become an officer of the court to effect a sale of the property, if that be deemed necessary for the benefit of the parties concerned. If the order of the court under which the receiver acts embraces the leasehold estate, it becomes his duty, of course, to take possession of it. But he does not, by taking such possession, become assignee of the term, in any proper sense of the word. He holds that as he would hold any other personal property involved, for and as the hand of the court, and not as assignee of the term.”

Dayton Hydraulic Co. v. Felsenthall, 116 Fed. 961; Stokes v. Hoffman House, 167 N. Y. 560 (53 L. R. A. 870). The case of Ohio, etc., R. Co. v. Russell, 115 Ill. 52, indicates that a receivership not only does not divest title, but does not necessarily suspend all powers of a railroad company. The court said:

“Notwithstanding the appointment of the receiver, the corporation is clothed with its franchises, and such corporation still exists. The effect of the appointment of the receiver is simply to give him the temporary management of the railroad, under the direction of the court, instead of the manager appointed by the directors of the corporation. It is that, and nothing more. As the corporation still exists, it may still exercise, as before, its franchises, so it does not interfere with the rightful management of the road by the receiver, so far as his duties are defined by the court appointing him. No doubt, it may do many corporate acts, and certainly it can do all things necessary to preserve its legal existence, notwithstanding the appointment of the receiver to which the temporary management of the road is given; otherwise the appointment of the receiver would be tantamount to a dissolution of the corporation.”

Herring v. Railroad Co., 105 N. Y. 371; Ellis v. Railroad, 107 Mass. 1; Union Trust Co. v. Weber, 96 Ill. 346; Keeney v. Insurance Co., 71 N. Y. 396; Memphis, etc., R. Co. v. Railroad Com’rs, 112 U. S. 609.

Counsel for the defendants cite several cases holding that a receiver may, under the direction of the court, proceed to condemn property necessary to the use of the road which has been placed in his charge. In such cases, where title has not vested in him, he must do it as one representing the road, if- not in its name. In this case the receiver has not been directed to take such action, and has not assumed to do so. Neither has he in any way opposed the action by Strang, and in fact he was discharged by the court pending the proceedings, though the latter fact may not affect the question. The evident object of this receivership was to impound, and incidentally conserve, the property, to the end that it might be applied to Everett’s judgment so far as should be necessary. At that time this road was completed to Trenton. Strang was under contract obligations to procure the right of way on behalf of the company, and complete the road to Detroit. We may well doubt the efficacy of this order to confer upon the receiver authority to prevent Strang from doing this, though we place a most liberal construction upon the order. We have no doubt that the receiver must have proceeded in the name of the company, had the court directed him to complete the road, and we cannot suppose that the court intended to direct this in disregard of Strang’s contract rights. At all events, we are of the opinion that, where title does not vest in the receiver, the fact that he may, if directed by the court, proceed to condemn land for and on behalf of the railroad, is not inconsistent with the claim that the railroad company is not divested of its power, and may exercise it so long as it does not interfere with the control of the receiver, or transgress any order of the court appointing him. See Morrison v. Forman, 177 Ill. 427; 3 Elliott on Railroads, § 958.

3. The jurisdiction was attacked on the ground that the articles of association failed to show that the railroad company was lawfully incorporated. The grounds upon which this claim was made are that the articles of association did not sufficiently designate the termini of the road, and that the map and survey filed did not comply with the law.

2 Comp. Laws, § 6223, provides for the organization of railroad companies, and that for such purposes the requisite persons shall subscribe articles of association. The statute provides what the articles shall contain, and among them is the requirement that they shall state the places from and to which, and the name of each county into or through which, it is intended to be constructed, and its length, as near as may be. It provides further that after subscription and payment of the required amount the articles shall be filed, and thereupon the subscribers shall be a body corporate. The petition alleged that the petitioner was a corporation organized and duly incorporated under the laws of this State. The answer questions this, and avers that the “ articles of association do not state the points between which said road is intended to be constructed, nor its length, as near as may be, as required by section 6223 of the Compiled Laws of 1897.” It also denied that any map or survey such as is required by the railroad law has been filed in the office of the register of deeds for the county of Wayne. It now claims that the company failed to prove compliance with the statute. The petition is the only source from which we can ascertain petitioner’s description of the line. It states that the railway was to extend ‘ ‘ from a point in the northeast quarter of section 16, near the corner of sections 9,10,15, and 16,” etc., northerly to the city of Detroit. Nothing is indicated as to the length of the line. The petition states, also:

“ That your petitioner has surveyed the route of its proposed road in said county of "Wayne, and has made a map. and survey thereof, by which said route is designated, which said map has been submitted to and approved by the railroad crossing board of said State of Michigan, as required by law, and which is on file in the office of the register of deeds in and for said county, and that it has located its said road according to such survey, and that it has filed a certificate thereof, signed by the president and secretary of said company, your petitioner, and under its corporate seal, in the office of the said register of deeds.”

Defendants contend that the termini mentioned are indefinite; that the length of the line should have been stated. The points made against the map and survey are that “a red line shows the center of the tracks, and not the center of the right of way;” “it does not state the width of the right of way, nor any courses nor distances,” and that “it would be impossible from the map to lay out respondent’s land, or the right of way desired across it, except as one might measure the distances on the map by scaling and determine the courses by measurement of angles ;” and that entire accuracy would be impossible.

We may pass the claim that the company was not legally incorporated by saying that the record shows a de facto corporation, which is sufficient. See % Elliott on Railroads, § 497, and cases cited. It has been often held in this State that the State only can question the validity of an incorporation. See Toledo, etc., R. Co. v. Johnson, 49 Mich. 148, 55 Mich. 456. And in Schroeder v. Railway Co., 44 Mich. 387, it was held that the question could not be passed upon in condemnation proceedings, and it was repeated in the case of Traverse City, etc., R. Co. v. Seymour, 81 Mich. 378. This being so, the failure to state the termini or length of the road in the articles becomes unimportant in that connection.

It is asserted that the map and survey filed were indefinite, and did not comply with the requirements of the statute.' Section 18 of the act as originally passed (section 6243 of the Compiled Laws of 1897) contains the requisites of a petition for condemnation. Among these is the requirement that the petition contain the description of the real estate sought to be condemned, and the allegation that the company has made a map and survey by which the route is designated; that it has located its road according to such survey, and filed a certificate thereof in the register’s office of the county. Under this section we have held that a failure to allege and show the filing of such a map and survey, and that they fully and definitely described, or at least included, the land sought to be condemned as a part of the route, is fatal to the proceeding. In re Convers, 18 Mich. 465; Toledo, etc., R. Co. v. East Saginaw, etc., R. Co., 72 Mich. 225. At the time these decisions were made the provisions of section 18, as above set forth, were in force. That section has since been amended (Act No. 80, Pub. Acts 1901), and now contains no provision requiring an allegation that a map or survey has been filed. Had section 18, as theretofore existing, been the same as it now is, it would have afforded no ground for the decisions cited, and they could only have been planted upon the then existing provisions of section 7, viz.:

“ (6232) Sec. 7. Every such company proceeding to construct a part of its road into or through any county named in its articles of association, or which shall have been so constructed, shall make a map of such part of the route intended to be adopted by such company, or which shall have been adopted, giving also the location of the points selected for crossing any other railroad, which shall be certified by a majority of the directors and approved by a board consisting of the commissioner of railroads, attorney general and secretary of State, and filed in the officeof the register of deeds of such county.”

We doubt if section 7 contained any such requirement, first, because it did not mention a survey¿ and the map there required seems to have been designed to point out, in a general way, the location of the route, rather than the land to be devoted to it, subject to approval by the statutory board; and, second, no allusion is made to the subject of condemnation of lands. Its object may well have been to afford an opportunity for opposition from other railroad companies, and perhaps other persons interested in preventing such location of the route.

Counsel cite cases supporting their claim that this map is not a prerequisite to condemnation. See Missouri River, etc., R. Co. v. Shepard, 9 Kan. 647. In this case a similar statute was relied upon. Mr. Justice Brewer disposed of the question by showing that the filing of the map was not a prerequisite to the condemnation of the land — a matter which is within legislative control. Our statute is subject to the same construction. See Act No. 80, Pub. Acts 1901, § 7. See, also, 3 Elliott on Railroads, § 926; Chicago, etc., R. Co. v. Grovier, 41 Kan. 685; Wheeling, etc., R. Co. v. Oil Co., 35 W. Va. 205. It is unnecessary for us to go so far, though we know no reason for not doing so. There is nothing in section 7 which requires certainty of description as to the exact land to be taken. It is a map of the route, not of the right of way to be acquired.

Our decisions cited would be conclusive, but for the amendment of section 18. As it now stands, there is no express requirement that a map be filed as a prerequisite to condemnation; and, if the proviso in the amended section 7 is to be taken as an implication that a map is essential, it is only such a map as section 7 provides for, and we think the one filed sufficient. See Act No. 80, Pub. Acts 1901.

5. It was insisted that there was insufficient proof of preliminary negotiations requisite to the commencement of condemnation proceedings. We are of the opinion that the evidence justifies the conclusion that a reasonable effort to purchase the land was made. The claim that the parties did not have a mutual understanding as to the land desired is technical. The evidence shows that no dispute arose about that subject, but only over the price per acre to be paid, and that there would have been no trouble over the particular land required, if they could have agreed upon the price per acre. We think that we have covered the jurisdictional questions, and that the court did not err in impaneling a jury.

6. We will next consider questions which arose upon the hearing of the cause before the jury. These involve (a) the question whether the testimony of several witnesses upon the question of value, etc., should not have been excluded; (6) the propriety of receiving evidence regarding the amounts paid for, and offers of, other parcels of land; (c) testimony by Strang regarding the expense caused by the delay of these proceedings. Questions raised over the introduction of evidence cannot be considered in these proceedings, ordinarily. We have so held in many cases cited in the briefs of counsel, repeated here for future reference. Michigan Air Line Railway v. Barnes, 44 Mich. 226; Toledo, etc., R. Co. v. Dunlap, 47 Mich. 456; Port Huron, etc., R. Co. v. Voorheis, 50 Mich. 510; Detroit, etc., R. Co.v. Crane, 50 Mich. 182; Fort-Street Union Depot Co. v. Jones, 83 Mich. 415; Marquette, etc., R. Co. v. Longyear, 133 Mich. 94. It is true that evidence clearly improper might justify a reversal of confirmation, should it appear that it had caused a substantial error on the part of the jury, but we do not find such to be the fact here.

7. The order of confirmation is attacked on the ground that the jury were subjected to improper influences, and because the award was inadequate. It is not within our province to review the question of fact, further than to see that the finding is supported by the evidence. There was a wide difference in the opinions of witnesses as to the value of the land, and damage to follow its condemnation, and the finding should not be disturbed on the ground of inadequacy of the award.

8. It is urged that the verdict is void for the reason that the jury determined the necessity for taking the defendants’ land before hearing the testimony as to its value, or the damages resulting from its condemnation. We understand this to mean that, by rendering prior awards as to other parcels, the jury had prejudged the question of necessity as to defendants’ parcels. We think that the statute contemplates one proceeding for the condemnation of lands of different persons in a locality. Chicago, etc., R. Co. v. Sanford, 23 Mich. 428. Without saying that successive applications may not be. made, or that one petition embracing all land sought to be condemned on a line, or even in a county, is necessary, the common practice is for a jury to determine the necessity for a railroad, highway, or drain in connection with the various parcels sought to be condemned, and any other method would seem to be impracticable. If a different jury were to be required for each parcel, the verdict of any one which failed to find a necessity for the improvement would block the proceedings, perhaps after many awards had previously been made and paid. That the jury should not prejudge a defendant’s rights by foreclosing the question of necessity before considering his parcel, or the prospective damages to it, is true. (See Paul v. City of Detroit, 32 Mich. 108.) But we do not see that this was done in this case. It is intimated in counsel’s brief that successive awards were made, but our attention is not called to the same in the record, while the award which was confirmed includes a number of parcels and parties. Manifestly the amount of damage to each parcel must be determined by itself, and such determinations, if made separately,. and tentatively or conditionally, and subject to a final conclusion as to necessity, should not be objectionable. It is not shown that confirmation was objected to upon this ground, and this is another reason why we cannot disturb the verdict.

Confirmation of the verdict was opposed upon the ground that the verdict was ascribable to the improper conduct of persons interested for the petitioner toward the jury, and the court was asked to refuse such confirmation and order a retrial upon the ground that the jury had been influenced thereby. Testimony was taken upon this subject, and it was shown that, on the occasion of the view of the premises, counsel and witnesses and jurors mingled freely, dined together, and that meals, cigars, and even drinks were ordered for the jury and paid for by petitioner’s representatives. The court was of the opinion that there was no impropriety in all visiting the land together, i. e., court, counsel, parties, and jurors. Taking property by virtue of the right of eminent domain is a proceeding that ought to demand quite as careful oversight as the trial of any other case, .for it deals with as important interests as any civil cause. If it is necessary for the jury to view the premises — and it generally is — we think that the opportunity should not be given to parties and bystanders to express unsworn opinions to them, either in private or general conversation; and the practice of dining or treating jurors, which would be considered as unwarranted, if not censurable, is quite as objectionable in these cases. We do not know that the jurors were influenced in this case, but we are of the opinion that owners of land should not be subjected to such dangers, or be required to show affirmatively that they have suffered. It is claimed that objection was not seasonably made, and that the point was therefore waived. In the case of Hicks v. Wayne Circuit Judge, McGrath, Mich. Mand. Cas. 870, a new trial was ordered in a similar case, after confirmation, although the return of the circuit judge shows that the offending consisted merely of the furnishing of cigars to the jurors upon the statement in the presence of the opposite, party that he would do so if he (the opposite party) consented. Assuming such consent from his silence, the cigars were furnished. In that case the relief granted was by mandamus. Here it arises upon objection to confirihation, which amounted to the same thing as a motion for new trial. The order of the circuit court is reversed, and a new trial ordered, as to the land in controversy in this cause.

The respondents will recover costs of this court.

Moore, C. J., and McAlvay, Grant, and Blair, JJ., concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    DETROIT & TOLEDO SHORE LINE RAILROAD CO. v. FERGUSON.
    Eminent Domain.
    This case is ruled by the preceding one. Detroit, etc., R. Co. v. Campbell, ante, 384.
    Appeal from Wayne; Hosmer, J.
    Submitted April 4, 1905.
    (Docket No. 3.)
    Decided June 8, 1905.
    Condemnation proceedings by the Detroit & Toledo Shore Line Railroad Company against Genevieve Ferguson and others. Defendants appeal from the award of the jury.
    Reversed.

      James H. Pound (Fred Schmaltzreidt, of counsel), for appellants.

      Brennan, Donnelly & Van De Mark, for appellee.
   Grant, J.

This case is identical in its facts with Detroit, etc., R. Co. v. Campbell, ante, 384. It is a part of the same condemnation proceedings, and by the same jury; the appellants in this case having taken an independent appeal. The questions are identical, and any further discussion of them is therefore unnecessary. For the reasons there stated, the judgment in this case must be reversed, and new trial ordered.

Moore, C. J., and McAlvay, Montgomery, and Hooker, JJ., concurred.


author: Blair, J.

text:
    McDONALD v. CHAMPION IRON & STEEL CO.

    1. Master and Servant — Injuries to Servant — Assumption of Risk.
    The principle of assumed risk rests upon the implied contract that the servant shall assume the risk of all dangers obviously incident to his employment, but the doctrine applies only to'those dangers -which the servant either actually knows or should know.
    2. Same — Duty to Instruct — Youthful Employé.
    Where an infant servant is injured, his age and experience and the necessity of instructions are to be considered in determining whether or not he assumed the risk.
    8. Same — Burden of Proof.
    Where a servant is injured in consequence of a risk not ordinarily incident to the employment, growing out of the master’s negligence, the burden is upon the master to show that the servant knew and understood the increased danger.
    4. Same — Question for Jury.
    Where a boy of 14, employed to remove the scrap metal from shearing machines, was injured in consequence of the master allowing a passageway behind the machine to become blocked with scrap over which the boy had to pass in performing his duty, the question whether he knew or should have known the danger which confronted him, and assumed the risk, held, under the circumstances, to be for the jury.
    5. Same — Duty of Master.
    Where boys were employed to remove the scrap metal from shearing machines, and set to work in a narrow passage in which there were gear wheels and other machinery so situated that as long as they stood upon the floor they were in little or no danger from the machinery, but should the scrap accumulate on the floor then increased altitude would subject them to danger, it was the master’s duty to take reasonable precautions to keep the passageway clear, and to that end to give instructions to the boys before setting them to work.

      6. Same — Evidence—Sufficiency.
    Evidence examined, and held, that the jury were warranted in finding that the master had not discharged his duty in that regard.
    7. Same — Fellow-Servants.
    Where the master’s duty to instruct servants is committed to a foreman, the master is bound by the instructions he gives.
    8. Saving Questions for Review — Exoessiveness of Verdict —Necessity of Motion for New Trial.
    In an action by a parent for the death of a child, in which the measure and data for computation of damages is fixed by law, error may be assigned on a clearly excessive verdict, as on one not supported by the evidence, without a motion for a new trial,
    9. Negligence — Evidence — Incompetent Matters — Prejudicial Error.
    In an action for the death of a servant, incompetent evidence as to changes in machinery ordered by the factory inspector after the accident, and as to the composition of a certain ' “trust,” will be deemed prejudicial where the verdict rendered was grossly excessive.
    10. Trial — Argument of Counsel — Prejudice.
    In an action by a parent for the death of a child, statements by plaintiff’s attorney in argument as to the suffering, agony, and pain occasioned to the father and mother by the child’s death, and as to how much the jurors would take to have a boy killed under similar circumstances, were prejudicial, and should have been suppressed by the court, whether objected to by opposing counsel or not.
    11. Death — Damages—Infant—Excessiveness.
    In an action by a parent for the death of a child, it appearing that the boy was 14 years of age, was earning 75 cents per day, while an older brother earned 85 cents to §1.25, and his father $1.75, in the same employment, and that it cost the entire 75 cents to take care of the boy who was killed, a verdict for $7,487 was excessive, and, the plaintiff so requesting, the judgment thereon would be reduced to $2,500 as a condition of its affirmance.
    Error to Muskegon; Russell, J.
    Submitted January 6, 1905.
    (Docket No. 21.)
    Decided June 8, 1905.

      Case by William McDonald, administrator of the estate of Patrick McDonald, deceased, against the Champion Iron & Steel Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Affirmed on condition.

      Keena & Lightner, for appellant.

      James E. Sullivan and Chamberlain & Walker, for appellee.

      Rehearing denied October 2, 1905.

   Blair, J.

Patrick McDonald, son of the plaintiff, William McDonald, was killed at defendant’s Iron & Steel Works in- the city of Muskegon between 2 and 3 o’clock in the afternoon of April 2, 1902, and plaintiff, as administrator, brought this action against the defendant in the Muskegon circuit court to recover damages for such death, being the financial loss suffered by the father and mother by reason of being deprived of the boy’s earnings during his minority, namely, from his fourteenth to his twenty-first year.

Theodore D. Morgan was at the time of the injury the general manager of defendant’s plant, and John C. Williams was superintendent of the inside work under Mr. Morgan. There were a number of departments in defendant’s plant. The place where Patrick was killed was in the shearing department, where the sheets were squared up and trimmed for tinning. This particular shearing room was in charge of a foreman named John Points, who worked under Williams’ general direction, and had under his immediate direction from 30 to 50 men, including shearmen, scrap boys, and openers. There were some five sets of shears in the department, three sets of which were small shears, and were in a large outer room, and two sets of which, called the “big shears,” were in a small room by themselves, which opened out, however, into the large room. These large shearing machines extended lengthwise east and west up to a wall at the west end of the west machine. The fronts of the machines were towards the north, where the shearmen stood and operated the machines by means of treadles. The backs of the machines were towards the south, and here the scrap boys stood and collected the scrap as it fell from the machines in the process of trimming the plates. Some six or seven feet to the south of the backs of the machines was a corrugated iron partition. The frames of the machines were some 10 or 12 feet in length, and the scrap boys at these machines therefore were required to perform their duties in a space bounded by the machines, the west wall, and the south partition, of from 20 to 24 feet in length and 6 or ? feet in width, with an open space at the east end only, leading out into the outer room. The gearing of the big shears was upon a rapidly revolving shaft, to which power was transmitted from line shafting above, and upon the shaft was a cogwheel meshing at the top into a cogwheel on another shaft further in from the perpendicular face of the machine. These shaftings work in such direction that the teeth of the cogwheels meet at the top and separate below. The shaft is about five feet above the floor. One Harry French was the scrap boy employed at the outer, or east, machine, and Patrick McDonald, the decedent, was employed at the west, or inner, machine. The shearman’s duty wasto take a package of sheets of iron, and, placing them upon the bed of the shearing .machine, trim the edges. The scrap boy’s duty was to stand at the back of the machine where the scrap would fall from this work, collect it with tongs as it fell, tie it into bundles, called “fagots,” and throw or pile it behind him. A man by the name of John O’Donnell was employed by defendant to remove these fagots upon a truck to a car outside of the building, whence it was hauled away.

Patrick McDonald went to work as a scrap hoy some time in February, 1902, and had worked continuously in such employment until the day of his death. He became 14 years of age on the 11th day of March, 1902, and up to the day of his death he always worked upon the smaller shearing machines, which had no walls or partitions back of them, and where the scrap, as collected by the boys, was piled upon trucks, and not upon the floor. About 12 o’clock on the day in question, Patrick, with his shearman, began work on the inner, or west, shearing machine, and French, with his shearman, began work at the same time upon the east, or outer, machine. According to the general manager, Morgan, each one of these machines would “ probably accumulate a fagot every five minutes or so, when they were working full; something like that.” In the performance of their work the boys took the scrap, which would be in various lengths, according to the length of the plate, “ some eight, and some six, and some seven, all lengths, some wider and some narrower,” and doubled them up in bundles or fagots about 2k feet long, and weighing from 50 to 100 pounds, tied them with wire, and piled them in rows against the corrugated iron partition the full length of the machines and across from the wall to the shear frame just under the gearing. The boys proceeded with their work for something over two hours or thereabouts, when McDonald’s shearman, having finished his work, left the machine to work elsewhere .in the department. The method of the work in the department required that each scrap boy should follow his particular shearman about the department. Patrick, having finished his work soon after the shearman left the machine, started to go out from behind the machines, going toward the east, the only way in which he could get out. When Patrick started to go out to follow his shearman, there were three rows of these fagots piled lengthwise against the partition, the fagots being some 2k feet in length and 10 inches in diameter, so that they took up about half the space between the backs of the machines and the partition. At the point opposite the cogwheel and gearing the fagots extended from the partition clear up to the machine under the cogs and gearing, and the pile was at this point about three feet wide and 2k to 3 feet high. It was necessary for Patrick to climb over this pile of fagots in order to get out. French saw him start to come out, then turned to pull some scrap away from his machine, heard a noise, looked up, and saw Patrick falling to the floor.

“His arm was tore off. You could see on his shirt afterwards. You could see where the cogs had run up his shirt. There was nothing there besides those cogs that could have caught him. The scrap itself was piled in the space under the gearing.”

This was the first time that Patrick McDonald had ever worked upon these big shears, and no instructions were given him at any time, so far as the record discloses. The foreman, Points, instructed French the first day he went to work in the mill how to bundle up the scrap and where to throw it, and told him to pile the fagots against the partition, and this seems to have been the company’s method in the operation of these machines, so far as the scrap boys were concerned, as shown by the testimony of Mr. Morgan, the general manager.

The plaintiff claims that the defendant failed in its legal duty to provide and maintain a safe place for the deceased boy to work in, in this: That the space provided was so confined that the usual and required method of doing the work might reasonably be expected to result in the piling of scrap across the passageway near the cogwheels, and thereby expose the scrap boy at the west machine to serious peril in endeavoring to leave the machine, and defendant did not make adequate provisions for the removal of the scrap, but permitted its accumulation. The circuit judge submitted the case to the jury upon this theory. Defendant’s counsel contend that this was error for the reasons:

“ (a) Because, even with the fagots across the passageway, Patrick assumed the risk of passing over them.
“ (6) Because defendant had furnished the boys with a safe place within which to work, and it was not responsible for the act of the boys in making the place dangerous' by the piling of fagots.”

The principle of assumed risk rests upon the ground that it is an implied contract between the employer and. the employé that the employé shall assume the risk of all dangers obviously incident to his employment. The doctrine of assumed risk applies, and is limited in its application to dangers which the employé either actually knows or should know. Bradburn v. Railroad Co., 134 Mich. 575. And in such cases as this the age and experience of the employé and the necessity for instructions are to be considered in determining whether or not the employé assumed the risk. Allen v. Jakel, 115 Mich. 484; King v. Lumber Co., 93 Mich. 172. When the servant shows that the injury received was in consequence of a risk not ordinarily incident to the employment, growing out of the master’s negligence, the burden is then upon the master to show that the servant knew and understood the increased danger. Swoboda v. Ward, 40 Mich. 423; King v. Lumber Co., supra.

Applying these rules to the present case, we think the court would not have been justified in directing a verdict for defendant on the ground of assumed risk. Up to noon of the day he met his death, young McDonald had been employed upon the small shears, 200 feet away from the big shears, where the fagots were piled upon trucks, and no such situation ever did or could arise as confronted him when he started to follow his shearman from behind the big shears. The two or three hours that he worked behind the big shears was the only time that he ever worked there, and, so far as the evidence discloses, he had no knowledge whatever of these particular machines, or of the method of disposing of the fagots there. The fair inference from the testimony is that his attention had never been called to these big shears. Mr. Morgan says:

“ I had talked with Patrick about the work around the shears. I had not called his particular attention to these big shears, but I had called his attention when he started in to work. I went to him, and explained to him to be careful, and not get his hands where he would get hurt. I did that with all the boys when I would see a new boy on. Most of our shearing was done on these small shears, and it was only an occasional order that was sheared at these big shears. ”

There was nothing to attract his attention to the danger when he commenced his work. The passageway behind the machines was clear. The cogwheels on the east machine, when he passed it going to his own machine, were above his head, and were in no sense a source of danger. There were no cogwheels upon the machine at which he worked, and the efforts necessary to the taking care of a fagot “every five minutes or so” might naturally concentrate his attention upon his work, and prevent his considering the danger that might arise from the cogwheels upon the east machine in case he had to climb over the fagots to pass them. There is no claim that he had ever been cautioned that such a danger might arise, nor was there anything in the circumstances attending his passing the cogwheels when he went in to notify him that the passageway might later on be blocked with fagots which he would have to climb over. The youth of the boy, his lack of experience at the big shears, the novelty of the situation in this cul-de-sac, the necessity of climbing over the fagots suddenly presenting itself as the only way out to follow the shearman, the fact that they had been instructed to place the fagots there by the foreman, Points, all of these elements were to be considered in the light of the surrounding circumstances in determining whether the boy knew or ought to have known the danger which confronted him. We think the trial court properly submitted this question to the jury.

Did the court err in submitting the question of defendant’s negligence to the jury ? Both Morgan and Williams admitted that the piling of the fagots across the passageway behind the big shears would make the place dangerous. Mr. Morgan said: “Yes, if the stuff was piled up there, there would be some danger. If he would fall over, he would naturally put his hand on the shaft.” Mr. Williams testified: “If scrap was piled up two or three feet high, it would be a dangerous place.” Unless the scrap was piled across the passageway, there was no danger there at all. Mr. Williams testified:

‘ ‘ Q. In other words, if he stayed on the floor, why, of course, this gear wheel would be practically above him ?
“A. Yes, sir.
Q. And if he was raised up for a distance, why it would be alongside ?
“A. Yes, sir.
“Mr. Lightner: And the gearwheel, if I recollect, there would be no danger of getting caught in the gear wheel underneath, because it was revolving outward underneath ?
“A. Yes, sir.
Q. But the danger would be of getting caught up above and getting drawn in; is that right ?
“A. Yes, sir.”

In view of the conceded danger and the narrow space behind the machines, we think it was the duty of the defendant to take reasonable precautions to keep the passageway clear, and to that end to give instructions to the young lads before setting them to work at these big shears. We also think there was evidence from which the jury might b.e warranted in finding that the defendant had not discharged its duty in this regard. Mr. Morgan testified that:

“ The scrap boys would place their scrap right behind them against the partition that shows in this picture, and if the space should become reasonably filled the scrap boy would naturally place it back along the partition, against the partition; but it was necessary for him to leave a path for him to work in.
“Q. Have you ever been, there when you have seen that place so filled up that you couldn’t pass through there ?
“A. Well, I must say that at times the scrap has been piled up there, and I have given instructions for them to take it away at once, not let it accumulate.
“Q. You never allowed it. to stay there ?
“A. No.
“Q. And accumulate ?
“A. The instruction is to take it away, and not let it accumulate.
“The Court:' You mean from the partition over toward tuhere those cogwheels were ?
“A. Yes, sir.”

And again:

“We had one man to taire away those fagots when they were piled up from the shears around the mill. His name was O’Donnell. He was an old man, but he was awful strong. He had a hard job. * * * It was a hard job. The old man was kept busy. * * * The boys were accustomed to pile the scrap against the partition behind them. * * * If they put the scrap across, as the boy said they did, there wouldn’t be room for them to get out without going over the scrap. As I said before, there was always more or less scrap piled there, and at some times an accumulation of it.”

Mr. Williams testified, referring to the big shears:

“I had been around in this neighborhood more or less all day the day of the accident. I knew that McVeigh was working on these shears that afternoon immediately after dinner. * * * In the afternoon I recollect that Livingood was the shearman who was working on this one shown here, the one the young man got injured on; and I think French was his shear boy. * * * I have no particular recollection about its being filled up entirely that morning. * * * To the best of my knowledge, Patrick was quite a good boy, a bright boy, and I didn’t remember him any better than the rest of them. I never heard of his being careless in any way around the machinery. I never heard a single complaint against him. * * * I have no recollection of having' any talk with Patrick in regard — in relation — to warning him .of the danger. * * * John Points usually gave instructions to the boys.”

It is apparent from these quotations that the general manager and the superintendent were familiar with the method of doing the work, and that the general manager had witnessed an accumulation of the fagots, as shown by his answer to the court, “ from the partition over toward where those cogwheels were.” It is true he claims to have given instructions to take it away at once, and not let it accumulate, but it is apparent that these instructions were given the boys who were working at the big shears, at which young McDonald never worked until the day he was killed; and there is no claim that he was notified, either upon that day or at any other day, of the danger of allowing such accumulations. Furthermore, the surviving scrap boy, French, testified that no such instructions were given to him, and, as to the instructions actually given, testified as follows:

“We were told to pile them in back against this partition. The straw boss told us that. I can’t remember his name. The foreman, he told us to pile them against the partition, and those were the only instructions we had regarding the piling of those things. Those fagots that extended up near the cogs were placed there by Patrick and myself together. Patrick placed some of them there and I placed the majority. * * * This straw boss was our boss, and directed us where to place the fagots, and he directed us to place them between the two machines, and I put them where he directed, and there was no other place to put them. * * * The straw boss told us where to place these fagots. I guess he was a foreman. It was not O’Donnell. It was the straw boss. * * *
Q. And this straw boss, was his name Points, do you know?
“A. I believe it was Johnnie Points. That was the man I referred to as the straw boss. And he told me to pile the fagots against the partition the first day I went to work in the mill. I worked on the shears that Pat was working on — on the shears to the left. Points came around and gave me instructions how to bundle up the scrap and where to throw it. I was alone, and he showed me the partition back against which I was to lay them, and I was never told anything different during the time that I was there.”

Under the testimony of French, we think it was open to the jury to find that the boys were directed to pile the scrap where they did pile it, but defendant’s counsel now contend that the instructions given by Mr. Points were not binding upon the company, since in giving them he was a fellow-servant of the scrap boys. It is doubtful whether we ought to consider this contention at this time, since the point was not made before the trial court, but was urged for the first time on the hearing in this court. However, we think that, under the circumstances of this case and the testimony of the superintendent, the defendant’s duty to instruct, where necessary, had been committed to the foreman, John Points, so far as the shearing department was concerned; that, in'the giving of instructions required for the safety and protection of the scrap boys before setting them to work upon a machine, he was doing the master’s work, and the master was bound by his instructions. It is therefore our opinion that the circuit judge did not err in submitting the negligence of the defendant to the jury.

Defendant further contends that the judgment should be reversed because excessive. This contention is based upon the twenty-first and twenty-second assignments of error, which are as follows:

“21. The court erred in the entry of judgment upon the verdict of the jury for the sum of seven thousand four hundred eighty-seven dollars.
“22. That the amount of the verdict and of the judgment entered thereon is excessive, and is contrary to the evidence in the case.”

The judgment was entered on the verdict for the sum of $7,487 February 1, 1904. Soon thereafter an order was entered staying proceedings for 20 days “to enable defendant to move for a new trial,” etc. On the expiration of the 20 days a further order was entered extending the time to April 20th.

“On April 19th, while court was in session, the attorney for the defendant and Mr. Walker, one of the attorneys for plaintiff, appeared, and stated that they had agreed on this bill of exceptions. Defendant’s attorney stated before the bill of exceptions was signed he desired that the court extend the time to move for a new trial and then sign the bill of exceptions. Plaintiff’s attorney stated that he had no notice, and opposed such application. The court then refused to extend the time, or at this time to grant a new trial on its own motion because of excessive judgment.”

These statements are contained in a separate certificate of the trial judge, not made a part of the bill of exceptions, and plaintiff’s counsel contend that there is nothing before this court for review upon this point; citing Hunn v. Railroad Co., 78 Mich. 529 (7 L. R. A. 500). In our opinion, this contention of plaintiff’s counsel is not well founded. The verdict and judgment should, we think, be set aside, because there is no foundation in fact or law upon which they can rest. The verdict, $7,487, is not only grossly excessive, but there is no evidence upon which to base it. The deceased boy had entered upon his fifteenth year, and was earning 75 cents per day. Another son, 17 years of age, and their father, plaintiff here, both working for the same defendant, earned, the former 85 cents to $1.25 per day; the latter, $1.75 a day. Plaintiff and his wife both testified that it cost the entire 75 cents a day to clothe, feed, and take care of the boy. The cost of such support would increase with his age. If, however, it be admitted that the cost of support would be but 75 cents per day for seven years, it follows that the jury found that this boy would earn $4.31 per day for 300 days in the year for seven years. There is no legal basis for such a verdict. Such earnings are wholly improbable, and not based upon experience. There is a possibility that any boy may be able to earn large sums of money, .Verdicts, however, must be based upon facts proven and reasonable deductions therefrom, and not upon possibilities. A verdict which has no evidence upon which to base it is, in law, erroneous, and error can be assigned upon it without making a motion for a new trial. This case does not fall within the rule enunciated in Hunn v. Railroad Co., 78 Mich. 513, 529 (7 L. R. A. 500), and Coots v. City of Detroit, 75 Mich. 628 (5 L. R. A. 315). In the former case the deceased was 27 years of age, and earned $900 a year. The mortuary tables, showing his expectancy of life to be 37.43 years, were introduced in evidence, also his physical condition, and other testimony reasonably affecting his duration of life. Complaint was made that the verdict of $7,575 was excessive. In the latter case plaintiff was seriously injured, and was entitled to recover for pain and suffering, and as well for the loss of time and incapacity to work. In such cases the amount of compensation rests entirely in the sound judgment of the jury, and can only be considered where a motion is made for a new trial and denied. In such cases the court very properly said, “Whether damages found by a jury are excessive or not does not present a question of law.” That rule does not apply to this case, where a parent is seeking recovery for the value of the service of his son, and, as the court instructed the jury, can recover only the amount of his prospective earnings until he would become of age, less what it would cost to support him. There is no pain or suffering, mental or physical, for which damages can be recovered. The time of service is fixed. The amount he was earning at the time of death is fixed. The data for the consideration of the jury were clearly established. In them is found no evidence to justify the conclusion that the boy would for seven years earn for his father, aside from the expense of support, an average of about |3.60 per day. Neither is there any justification in the common experience of mankind for such a result. That the minds of the jury were in some way prejudiced is apparent.

Plaintiff was permitted to testify that defendant’s manager, in a conversation some time after the accident, told him that the factory inspector had ordered the gearing to be covered. One witness, employed by the American Tin Plate Company, was asked by counsel for plaintiff “if that was known as the ‘Tin Plate Trust,’and if there were not many companies and corporations that made up that trust?” When asked by the court if that had anything to do with the case, counsel replied, ‘ ‘ It may, and it may not.” If the verdict could be justified by any evidence in the case, we might properly hold that these errors were harmless, and were cured by the ruling and instruction of the court. But where a verdict is grossly wrong courts will infer that it is due, to a great extent, to such errors. This evidence, coupled with the arguments of counsel, as appears from a statement in the instruction of the court, may account for this verdict. While no exception appears to have been taken to the argument of counsel, yet, in view of a new trial, it is not improper to refer to it. The court, in his instruction, said:

“ Gentlemen, you will remember that the attorneys on the part of the plaintiff here have called your attention to the suffering and the agony and the pain and all that sort of thing that was occasioned to the father and mother by reason of the death of this boy, and as to how much his death was worth, and as to what you gentlemen would take, if you had a boy, to have him killed under similar circumstances.”

Such statements are highly prejudicial, and, of course, incompetent. Their utterances should be promptly suppressed by the court, whether opposing counsel object to them or not. The purpose of lawsuits is to attain justice. The natural effect of such statements is to defeat justice. The duty of courts is to so conduct trials that the ends of justice shall be reached.

Counsel for plaintiff asked that this court, if inclined to consider the question of excessive damages, adjust the matter without a reversal of the case. In other words, they ask that the amount of judgment be reduced. Twenty-five hundred dollars would give the plaintiff an average of a little over.$350 per year. We think there is no evidence to justify any judgment beyond this. If the plaintiff elects to reduce the judgment to $2,500, the judgment may stand for that amount; otherwise a new trial will be granted.

Moore, C. J., and McAlvay, Grant, and Hooker, JJ., concurred.


author: Ostrander, J.

text:
    SNORE v. HAMMOND.
    1. Sales — Breach of Warranty — Rescission —Action —Measure of Damages.
    Where a declaration on the common counts for breach of warranty on the sale of a horse, contained also a special count on the theory of a rescission of the contract for false representations, and there was evidence sustaining both theories, it was error for the court to instruct that the verdict, if for plaintiff, should be for the amount of the purchase price.
    2. Same — Election Between Counts.
    Where a declaration contains counts for breach of warranty on the sale of a horse, and one on the theory of a rescission of the contract for false representations, plaintiff must elect; the measure of damages not being the same.
    Error to Eaton; Smith, J.
    Submitted January 10, 1905.
    (Docket No. 37.)
    Decided June 8, 1905.
    Assumpsit by Peter Snore against Elmer Hammond for breach of warranty on the sale of a horse. There was judgment for. plaintiff, and defendant brings error.
    Reversed.

      Lyman H. McGall and Horace S. Maynard, for appellant.

      Gfeorge Huggett, for appellee.
   Ostrander, J.

The plaintiff bought a horse of defendant, paid the purchase price, and took the horse away. Later he brought this action in justice’s court, and on appeal to the circuit court a judgment in his favor was obtained. The declaration is in writing, and contains a special count in assumpsit for breach of warranty, drawn in approved common-law form, with the additional averment that plaintiff, “as soon as he discovered the fraud practiced upon him, returned said horse to defendant,’’ and defendant refused to return the purchase price. The declaration also contains counts for money lent, for money paid, and for money had and received. At the beginning of the trial, counsel for defendant asked that plaintiff be required to elect whether he would recover upon the special count or upon the common counts. No error is assigned upon the refusal of the' court to so order, and the fact is mentioned to explain subsequent proceedings in the course of the trial'.

It was the theory of the plaintiff, averred in the special count, and supported upon the trial by his own testimony and the testimony of others, that the price paid for the horse was $140; that defendant, by parol, expressly warranted the horse to be then sound, to be able to stand hard work, and to be not more than seven years old; that there was breach of this contract of warranty, the lack of the warranted qualities making the horse valueless to plaintiff for the purpose for which he was purchased; that with respect to these warranted qualities the misrepresentations were willfully false. There is no other proof of damages,. and no claim that it was a part of any agreement that the horse might under any circumstances be returned.

On the part of defendant the sale of the horse for the price stated was admitted, and testimony was introduced to disprove a warranty, to show that only qualified representations as to age, soundness, and capacity for work were made, and to negative any willful misrepresentations of the animal’s condition and qualities.

The errors assigned — 15 in number — are all to the charge of the court as given, and his failure to charge as requested.

In his charge, the court said to the jury:

“ This action is for damages which the plaintiff alleges he has sustained by a breach of warranty made by the defendant on the sale of a horse.”

Again:

“To entitle the plaintiff to recover, you must find that the defendant did warrant the horse.”

Again:

“The question of warranty is the first question for you to consider. If none was made, the plaintiff cannot recover, and,- if you find that the defendant made no warranty, as plaintiff claims he did, then your verdict will be for the defendant, ‘No cause of action.’ ”

Again:

‘ ‘ If the plaintiff recovers at all, it must be upon an express contract of warranty made by the defendant in the treaty of this sale, and so made before the delivery of the horse and the payment of the purchase price.”

He charged the jury correctly as to what constitutes a warranty under the circumstances of this case. But the court also said to the jury:

“A statement made by the defendant that the horse was sound and able to stand hard work, and not more than seven years old, if you find that he made such a statement during the trade, would amount to a warranty that the statements were true, unless he qualified them by adding, ‘So far as I know,’ or, ‘That was what I got the horse for,’or, ‘That was what the horse was recommended to me for,’or some words of that character and substance, intended by him to limit his liability. Now, if it turned out that the horse was unsound and unable to stand hard work, and was more than seven years old, that would not constitute fraud or deceit, unless the defendant, at the time he made the statements, knew them to be false. To constitute such false and fraudulent representations as would give the plaintiff a right to rescind this sale, you must find that whatever representations or statements the defendant made during the trade he knew to be false, and knew that he was making statements that were untrue.”

He further charged them:

“Your verdict in the case will be for the plaintiff for one hundred and forty dollars, the amount paid for the horse, or for the defendant, ‘No cause of action,’as you shall find the truth to be.”

The jury returned a verdict for $140.

The charge of the court is somewhat explained by the claim of the plaintiff, made in his brief in this court, that, even if there was a failure to prove the' warranty as alleged and its breach, he was still entitled to recover upon the theory that whatever representations the defendant did make concerning the horse were willfully false, entitling plaintiff to rescind the contract of sale and return the horse. The fact shown by the record that plaintiff did return the horse to the defendant, and, against defendant’s protest, left the horse with him, is a further evidence of reliance upon this theory. The jury, upon the testimony, might have found a warranty of the horse as alleged, and a breach of the warranty, and, upon that branch of the case, damages which might or might hot have been $140. And this without reference to the fact whether the seller knew or did not know that the warranted condition and qualities of the horse existed. They might have found that no warranty was made as alleged, but that certain representations were made by the seller which were untrue in fact, but were innocently made; that they warranted the plaintiff in rescinding the contract of sale; and that plaintiff had made such rescission, and was entitled to recover the price he paid for the horse. The court was in error in instructing the jury that the verdict, if in favor of plaintiff, must be for the sum of $140.

As the case must go back for a new trial, we think it proper to say that upon this record the rule announced in H. W. Williams Transportation Line v. Darius Cole Transportation Co., 129 Mich. 209 (56 L. R. A. 939), applies, and that plaintiff should elect whether he will proceed upon the theory of damages for breach of the alleged warranty, or upon the theory of a rescinded contract of sale. While the actual damages recovered might be the same under either theory, it is manifest that the rule of damages is not the same.

The judgment is reversed, with costs, and a new trial granted.

Moore, C. J., and Carpenter, Montgomery, and Hooker, JJ., concurred. ,


author: Montgomery, J. Hooker, J.

text:
    COFFIN v. ONTONAGON CIRCUIT JUDGE.
    1. Process — Substituted Service — Opening Decree —Party Entitled.
    The grantee of a defendant in a suit to quiet title is a “representative ” within section 496, 1 Comp. Laws, and as such entitled to appear and defend where jurisdiction is founded on publication.
    2. Same — Opening Decree — Order—Error—Mandamus.
    Mandamus will not lie to compel the setting aside of an order opening a decree and allowing the grantee of the defendant to appear and defend merely because it improperly admits also the defendant, who has parted with his interest.
    3. Same — Notice to Complainant.
    The right of a party or his representative to appear and defend after the passing of a decree founded on substituted service ( § 496, 1 Comp. Laws) is absolute, and is not conditioned on notice to complainant, or his grantees, or assignees.
    4. Mandamus — Propriety—Jurisdiotional Questions.
    Mandamus will not lie to review an order of the circuit court in chancery opening a decree founded on substituted service and admitting interested parties to appear and defend, since chancery practice affords better means for reaching equitable results than are to be found in legal proceedings.
    Mandamus by Benjamin Howard Coffin to compel Norman W. Haire, circuit judge of Ontonagon county, to set aside an order admitting certain persons to appear and defend after a decree pro confesso on substituted service had been entered.
    Submitted February 7, 1905.
    (Calendar No. 20,902.)
    Writ denied June 8, 1905.

      Chadbourne & Rees, for relator.

      Ball & Ball, for respondent.
   Montgomery, J.

About February 14, 1898, the relator, Benjamin Howard Coffin, and Charles Winthrop Coffin filed their bill in the circuit court for the county of Ontonagon, alleging that they were the owners of the northwest quarter and the southeast quarter of section thirty (30), in township fifty (50) north, of range thirty-nine (39) west, in Ontonagon county, the title to which had come to them by will from their father, G. Winthrop Coffin, then deceased; that the title thereto was acquired by said G. Winthrop Coffin by sheriff’s deed on execution sale issued against the Victoria Mining Company, which company was alleged to be the owner of the land at the time of the levy and sale; that the title of said Victoria Mining Company to the undivided eight-twentieths of the land was acquired by deed dated October 10, 1866, from one Sarah N. Broughton, who, it was alleged, was then the owner of said eight-twentieths; that the deed of said Sarah N. Broughton had been lost without being recorded, and the complainants prayed for a decree establishing the deed and quieting their title to the said eight-twentieths.

A large number of parties were made defendants, being legatees under the will of said Sarah N. Broughton, who had died before the filing of the bill. Among the parties defendant to said bill were Laura J. Watkins, Broughton Buzzo, and Joseph Buzzo, who were nonresidents of the State, and resided in the State of California.

No personal service was had on said defendants, andan •order of appearance was obtained and jurisdiction over •them was acquired only by publication of the order pursuant to the statute.

After the time specified in the order for their appearance had elapsed, the bill was taken as confessed, and a decree was entered in favor of the complainants July 6, 1898. No notice of the entry of this decree was ever served on the •defendants. By this decree it was adjudged that said Sarah N. Broughton made the deed as alleged in the bill, and also it was specially adjudged that at the time of the execution of said deed she was the owner in fee of said undivided eight-twentieths of said lands.

The defendants Laura J. Watkins, Broughton Buzzo, and Joseph Buzzo claim to be the owners of an undivided interest in said lands, not through the will of Sarah N. Broughton, but under the will of one Shebuel H. Broughton; that the title to the lands was in Samuel H. Broughton, who died in 1860, seised of such title, leaving said Sarah N. Broughton, as his widow, and Shebuel H. Broughton, his father, surviving him, and without issue; and that the title to said land interest became vested in said Shebuel H. Broughton by inheritance from said Samuel H. Broughton, subject only to the life estate of the widow, and that the widow, by her deed, if she made it, conveyed nothing more than her life estate in said eight-twentieths. It becomes important, therefore, for the defendants named to appear and defend before the decree becomes absolute, and so becomes a final adjudication that the title to this land was in Sarah N. Broughton at the time she gave the alleged deed. They conveyed their interests in the lands to Ancil J. Rich, who also acquired the title to the remainder of said eight-twentieths.

June 2, 1904, Rich filed a petition in the circuit court for the county of Ontonagon asking that the decree be opened and set aside, and he be allowed to defend, the seven years allowed by the statute therefor not having elapsed. A notice of that petition was served upon Messrs. Chadbourne & Rees, solicitors for the complainants in the case. The application was resisted by Benjamin Howard Coffin, one of the complainants, by the same solicitors, on various grounds, and, among others, on the ground that Rich was not a representative of these defendants, and had no right under the statute to appear and defend. The court, however, on the 7th of June, made an order admitting said Rich to appear as a defendant in said case, unless cause be shown to the contrary within 15 days after service of notice of the order by registered mail upon said complainants. Such service was made by letter addressed to them at their supposed place of residence, and was actually received by the complainant, Benjamin Howard Coffin. Said Coffin applied to have the order set aside as improperly issued, and before the hearing of said application a second petition was filed, Ancil J. Rich, Laura J. Watkins, Broughton Buzzo, and Joseph Buzzo joining therein. The application to set aside the first order and also the second petition came on for hearing before the court October 10, 1904, notice of the second petition also having been given to Messrs. Chadbourne & Rees, as solicitors for the complainants, no substitution of solicitors ever having been made. Accompanying the second petition was a proposed answer, setting forth, among other things, the facts above mentioned by way of defense to the bill. On the hearing the court set aside the order of June 7th for the reason, as stated by the court, that said order did not provide, for the securing of costs to the complainants, and on the second application the court at the same time, reciting the facts, ordered that said Ancil' J. Rich be admitted as a defendant in the case, and the petitioners Rich, Watkins, and the two Buzzos be admitted to answer the complainants’ bill and to defend; and also directed that a copy of the proposed answer and the. petition, together with a copy of the order, be served upon the complainants personally, if they could be found by reasonable diligence; and, if not, notice be served by publication, and that after such service the cause proceed as if the petitioning defendants had appeared in due season, and no decree had been made in the case. It also provided for security for costs, which security was given in accordance with the order. A petition is now made by said Benjamin Howard Coffin for mandamus requiring the judge of said court to set aside this last-mentioned order.

The grounds on which the application is made, and upon which it is claimed the order is erroneous, are as follows :

(1) That Ancil J. Rich is not entitled to appear and defend, because he is not, within the meaning of the statute, a “representative” of the defendants Watkins and Buzzo.

(2) That the defendants Watkins and Buzzo cannot be heard to appear and defend, because they have parted with all their interest in the subject-matter.

(3) That such order could' not be made except after due notice to the complainants, which notice should be given personally, because, as it is claimed, the solicitors’ authority to accept or receive such notice terniinated with the entry of the decree, or at least that their authority as solicitors had ceased before the petition was filed.

(4) In the showing made by said Benjamin Howard Coffin against the order that was made on the first petition it was urged that “the lands which were the subject of the decree of July 6, 1898, have been conveyed to the Victoria Mining Company, a corporation organized under the laws of the State of Michigan, since the making of said decree, and in reliance upon the same, ” and it was therefore urged that, that fact appearing to the court, no order could be made admitting the petitioners to defend without notice to the Victoria Mining Company.

1. The statute authorizing such appearance and defense after decree on substituted service is found in sections 496 to498 of the Compiled Laws of 1897, and is as follows:

“ Sec. 496. If the defendant against whom such decree shall have been made, unless such decree shall be a decree of divorce, or his representatives, shall afterwards appear- and petition to be heard, the party so petitioning shall be admitted to answer the complainant’s bill upon paying or securing to be paid such costs as the court shall adjudge, and the suit shall then proceed in like manner as if such defendant had appeared in due season and no decree had been made.
“Sec. 497. The defendant, or his representatives, must so appear within one year after notice in writing of the decree shall have been given to him or them, and within seven years after the making of the decree, when such notice shall not be given.
“ Sec. 498. If the defendant or his representatives shall not so appear within one year after such notice shall have been given, and if not given, before the expiration of seven years after the making of the decree, the court shall then by order confirm the decree against the defendant and against all persons claiming under him by virtue of any act subsequent to the commencement of the suit, and may make such further order in the premises as shall be just and reasonable.”

It is contended that the purchaser from the defendants Watkins and Buzzo is not their representative within the meaning of this statute. That no one but a legal representative is within the terms of the statute. It is also urged in the same connection that Watkins and Buzzo have, by parting with their title, disabled themselves from appearing. If both contentions are allowed, the complainants’ title resting upon this ex parte decree becomes absolute by reason of a transfer of defendants’ interest, made without knowledge of the decree, and what was before a voidable decree becomes conclusive without any intentional waiver. In other words, the attempt of Watkins and Buzzo to convey to Rich operates to confirm the title of complainant, and has no other operation. We should so construe the statute as to read this result only when convinced that no other reasonable interpretation is open. We are not impressed that this is the case with the present statute; on the contrary, we think the word ‘ ‘ representative,” as here used, is broad enough to include a grantee who by a grant becomes and is the representative of the title, and, in a sense, of the grantors. While the term “representatives ” is generally employed to designate the executor or administrator of a deceased person, it is often given a broader meaning, and has been held to include an assignee when such construction conforms to the manifest intention. 18 Am. & Eng. Enc. Law (2d. Ed.), p. 813, Louisville Trust Co. v. Kentucky Nat. Bank, 87 Eed. 143; New York Mut. Life-Ins. Co. v. Armstrong, 117 U. S. 591; O'Neale v. Caldwell, 3 Cranch (U. S.), 312; Davis v. Davis, 26 Cal. 37; Plummer v. Brown, 64 Cal. 429.

2. Being satisfied that the petitioner, Rich, is entitled to appear, it is hardly necessary to add that we would not interfere by mandamus to arrest proceedings, even if convinced that the original defendants were not necessarily entitled to appear.

3. As to the criticism of want of notice, we agree with the contention of respondent’s counsel that, as the right to appear and defend is absolute, and conditional only on the applicant paying, or securing the payment of, costs, no previous notice is necessary. Notice of subsequent steps must, of course, be given, but the order admitting defendant to appear is not irregular for want of notice:

Mandamus is denied.

Moore, C. J., and Carpenter, Ostrander, and Hooker, JJ., concurred.

Hooker, J.

I concur in the opinion of Mr. Justice Montgomery, and think that the writ should be denied for the further reason that relator has sought an improper remedy. Persons claiming to be interested asked leave to be made parties to a proceeding affecting property. Upon a hearing the court determined that they were entitled to intervene. As to some of them, at least, the right depended upon questions of fact. Aside from the question of the right to review jurisdictional questions in chancery summarily, during the pendency of the cause, by proceedings legal in their nature, rather than equitable, there is no more apparent reason for reversing an order of this kind in such a way than there would be in allowing a defendant to invoke such remedy to vacate an order denying a motion to quash or dismiss a bill as to defendants claiming to be improperly brought in by subpoena. After the final hearing any injustice can be corrected upon appeal. Chancery practice affords better means for reaching equitable results than are to be found in legal proceedings, and where a court of equity decides to give an opportunity for a hearing there should be not interference by mandamus proceedings.

Moore, C. J., and Carpenter, Montgomery, and Ostrander, JJ., concurred.


author: Montgomery, J.

text:
    AUDITOR GENERAL v. GRIFFIN.
    1. Taxation — Sale—Petition—Prior Proceedings — Irregularities — Lien of State — Enforcement.
    The fact that irregularities may be discovered in proceedings antedating a petition for the sale of land for taxes is no obstacle to enforcing the State’s lien for a tax equitably due, and chargeable to the land sought to be subjected to the lien, provided there is enough in the proceedings to show that the levy of the tax is authorized.
    2. Same — Board of Supervisors — Certificate of Equalization —Clerk’s Signature.
    Where the record of the board of supervisors shows that the assessments of the various assessing districts were properly equalized and the taxes properly apportioned, the fact that the certificate of equalization attached ■ to the various tax rolls was not signed by the clerk of the board, but by the chairman alone, does not affect the taxpayer’s equitable obligation to pay the tax.
    3. Same — Equalization—Unit—Bay Cities.
    In each of the cases of Bay City and West Bay City the assessment is made by one central board, the roll being spoken of in the singular, though divided into parts or books showing the property assessed in each ward, and the charter in each case treats the several component parts or books as comprising a single assessment. Held, that the board of supervisors of Bay county is authorized to treat the city as a unit in each case in making an equalization.
    4 Same — State Tax Commission — Acts of — Necessity of- Additional Equalization.
    The board of supervisors is not bound by the figures of the State tax commission, and where, in a State equalization year, an equalization made in July was regular, it was not invalidated so as to require an additional equalization in October by the subsequent action of the State tax commission in increasing the assessment rolls of some of the assessment districts.

      5. Same — Ministerial Duty — Error—Effect.
    Where a board of supervisors made a determination of the aggregate real and personal assessment in October, but, in making up its figures, used the assessments of personal property as they appeared on the original rolls, without taking into account the amounts added to certain townships and wards by the State tax commission, there was a mere mistake in performing a ministerial duty, and there being no evidence of fraudulent purpose, the vote not being divided on the question, and the representatives of townships injuriously affected by the error voting with those benefited thereby for the apportionment as made, taxpayers to whom no injury resulted could not complain.
    Appeal from Bay; Shepard, J.
    Submitted February 16, 1905.
    (Docket No. 82.)
    Decided June 8, 1905.
    Petition by Perry F. Powers, auditor general, for the sale of land delinquent for taxes: On objections filed by Albert A. Griffin and another. From a decree for contestants, petitioner appeals.
    Reversed.

      Brakie J. Orr, Prosecuting Attorney (8. O. Houghton, of counsel), for petitioner.

      Albert McOlatchey (O. L. Collins and T. JE. Webster, of counsel), for contestant Griffin.
   Montgomery, J.

On the presentation of the usual petition for the sale of land in the county of Bay, certain owners of land objected to decrees against their lands for 'taxes; various grounds of objection being argued, and numerous alleged errors in the proceedings antedating the auditor general’s petition being urged.

Before discussing such of these as affect the vital question — i. e., whether these lands are subject to the assessment made — it is proper to reiterate what we have held in numerous cases: In these proceedings the fact that irregularities may be discovered in the proceedings furnishes no obstacle to enforcing the State’s lien for a tax equitably due to the State, and chargeable to the land sought to be subjected to State lien, provided that there is enough in the proceedings to show that the levy of said tax is authorized. See Auditor General v. Sparrow, 116 Mich. 585, 588, 589, where the radical difference between the present tax law and former statutes in which a sale preceded any judicial determination is fully pointed out by Mr. Justice Hooker. In that case it was held that the absence of a warrant from a tax roll furnishes no defense to these proceedings, in view of the provisions of section 99 of the tax law (1 Comp. Laws, § 3922). See, also, Auditor General v. Hutchinson, 113 Mich. 245; Shelden v. Township of Marion, 101 Mich. 256.

One of the complaints made is that the certificate of equalization attached to the various tax rolls was not signed by the clerk of the board of supervisors, but was signed by the chairman alone. If the record of the board of supervisors shows that the assessments of the various assessing districts were properly equalized and the taxes were properly apportioned, it is not seen how the omission of this formality affects the equitable obligation of these contestants to pay this tax. It is contended, however, that there was no proper equalization. This was the year of the State equalization, and an attempted equalization was made in July. If regular, and if said equalization stands unaffected by the subsequent action of the State tax commission — a question which will be later discussed —the necessity for an additional equalization at the October session is obviated. Act No. 361, Local Acts of 1897; Silsbee v. Stockle, 44 Mich. 565; Boyce v. Sebring, 66 Mich. 210.

The contestants claim that this equalization in July was invalid, for the reason that the cities of Bay City and West Bay City were each treated as the unit for equalization, whereas (it is contended), the equalization should have been by wards and townships; citing, in support of this claim, Messenger v. Peter, 129 Mich. 93. In that case it was held that the statute which requires the board to examine the assessment rolls of the several townships, wards, or cities, and ascertain the relative valuation of the real éstate, etc., should be construed as intending that the assessment district be treated as the unit. In each of the cases of Bay City and West Bay City the assessment of -the entire city is made by one central board. The’ roll1 is spoken of in the singular, although divided into parts or books showing the property assessed in each ward. The charter in each case treats the several component parts or books as comprising a single assessment. The board was authorized to treat the city as a unit in each case.

It is insisted, however, that the case of Silsbee v. Stockle should not rule this case, for the reason that the State tax commission, after the July equalization, and prior to the October session, made certain additions to the assessment rolls of some of the assessment districts, and that it is not to be presumed that the board, with information of this action before it, would have fixed the same figures in October. These changes in the assessments might, it is true, have challenged the attention of the supervisors to the subject, but the board was in no way bound by the figures of the State tax commission in making its equalization. The board rested content with its July action— in fact, affirmed it in a way claimed by contestants to be informal. It is enough, within the rule of Silsbee v. Stockle, that it was allowed to stand.

Another objection interposed was that taxable property to the amount of $1,098,105 had been added to the assessment rolls of certain townships and Bay City and West Bay City, and that these added assessments were not taken into account in making the apportionment of taxes. Section 3860, 1 Comp. Laws, contemplates a computation of the personal assessments in October, and that the apportionment shall be made on the basis of the aggregate real and personal assessment as determined by the board. This determination was made in October, but the board, in making up its figures, used the assessments of personal property as they appeared on the original rolls. This was a mistake in the performance of a ministerial duty. Fay v. Wood, 65 Mich. 390, 398. We find no evidence of any fraudulent purpose. The vote was not divided upon the question, the representatives of townships injuriously affected by the error voting with those benefited thereby for the apportionment as made.

To the extent to which contestants’ taxes have been increased by reason of this error, it would seem that they may have their tax abated under section 76 of the tax law (1 Comp. Laws, § 3899). It is equally clear that where no injury resulted, as in Bay City, the contestants ■are not in a position to. complain.

The decree is reversed, and a decree will be entered in accordance with this opinion.

Carpenter, Blair, Ostrander, and Hooker, JJ., concurred.