author: Ostrander, J.

text:
    HUMMER v. MIDLAND CASUALTY CO.
    1. Insurance — Notice of Injury — Proof of Loss — Accident Insurance — Letters—Evidence.
    Where the evidence of an insured tended to establish that he sent notice to defendant of his injury, pursuant to the conditions of his accident policy, that he received a reply signed by one of defendant’s claim clerks, and that the defendant cashed a check contained in his letter, the court was not in error in holding that the sending of the notice was established.
    2. Same — Notice—Delay.
    The provisions of such accident policy requiring notice as soon as possible after suffering an injury, could not be held, as matter of law, to have been intended only as a protection against fraud and misrepresentation; and it was plaintiff’s duty to give notice as promptly as possible after an injury to his eye; delay for five months or over was not a compliance therewith.
    3. Same — Evidence.
    No reversible error was committed, on the trial, in reopening the case, after plaintiff closed his testimony, to admit testimony of his physician to show the contents of a letter which had been attached to the proofs of injury, but which contained no facts prejudicial to the defense.
    4. Same — Evidence—Conclusion—Expert Witnesses.
    It was not erroneous to permit the attending physician, who knew plaintiff's condition, to give his opinion that plaintiff was incapacitated from attending to his business during about three and a half months.
    5. Same — Indemnity—Cause of Disability.
    But plaintiff was not entitled, under a policy providing that the insurer should pay an indemnity of $2,500 if the injury resulted in the loss of an eye (or other similar injuries) within 100 days from the date of the accident, that in case the injury from the date .of accident rendered him continuously unable to perform any of his business duties and resulted in the loss of one eye, he should be entitled to a weekly indemnity of $25, to recover, in addition to the $2,500, the weekly indemnity so provided for, when it appeared that the injury to his eye was not serious, but by some mistake he obtained a medicine containing caustic acid which caused further injury and resulting blindness; and that he was not continuously disabled from the date of his original injury.
    6. Same — Waiver—Forfeiture.
    In the absence of provisions in the policy working forfeiture in case notice of the injury was not given as soon as possible, or in case proofs were not filed within the time stated, the insurer might waive such conditions, and a waiver was established by testimóny that showed the insurer had no intention of complaining about the failure to give notice in the stated period, and was not prejudiced by the neglect.
    7. Same — Waiver—Proofs of Injury.
    Testimony that the loss of plaintiff’s • eye was caused by the introduction into it of acid, that the proofs of loss or injury were filed' within 100 days from the date of the accident, and within 60 days from the time that plaintiff became satisfied what the result would be, held, to be within the conditions of the policy.

      Error to Kent; Perkins, J.
    Submitted April 17, 1914.
    (Docket No. 55.)
    Decided July 24, 1914.
    Rehearing denied December 19, 1914.
    Assumpsit by George P. Hummer against the Midland Casualty Company on a policy of accident insurance. Judgment for plaintiff. Defendant brings error.
    Reduced and affirmed.

      Cleland & Heald (McKenzie Cleland, of counsel), for appellant.

      Dielcema, Kollen & Ten Cate, for appellee.
    A policy issued by the defendant company insured the plaintiff against bodily injury through accidental means, and for certain injuries, among them the loss of one eye, promised an indemnity of $2,500 if the injury within 100 days from the date of the accident resulted in such a loss. It further promised him, in case the injury from the date of the accident rendered him continuously unable to perform any of his business duties and resulted in the loss of one eye, $25 a week as long as he lived and suffered such total disability. It was a part of the contract of insurance that written notice of an accident, together with full particulars thereof, be given , to the defendant at its home office in Chicago by the insured, beneficiary, or legal representative “as soon as possible after the accident,” and that within 60 days after the loss of an eye, or after the termination of disability, “affirmative proofs thereof must be filed with the company.”
    Claiming to be entitled under his policy to the specific indemnity of $2,500 and to a weekly indemnity in addition thereto, plaintiff brought this suit, and upon the trial offered testimony tending to prove the following facts: On Saturday, September 16, 1911, while he was walking on the street, some foreign substance entered his right eye. On account of it he suffered, and continued to suffer, pain. On Monday, September 18th, he went from his home in Grand Rapids to his business in Holland, kept a business engagement in Grand Rapids that evening, and at about 10 o’clock consulted Dr. Welsh, an oculist, who treated the eye. He found it inflamed, but found no foreign substance in it, and he gave plaintiff medicine to be dropped into the eye if the pain became too severe. Plaintiff, upon retiring,- used some of the preparation furnished him by the doctor, with the result that pain was greatly increased. He returned to the office of the doctor, where it was discovered that in the medicine furnished him there was a caustic acid, and that the eye had been affected by it. Tuesday, September 19th, he went to Holland, but using medicine in the eye to relieve pain. He returned-to Grand Rapids at night, again visiting the oculist. He went to Holland on Wednesday, staying but a short time, spent the remainder of the day with the oculist, his eye being frequently treated, went to bed, and remained there for about six weeks, with a nurse in attendance, and after that for ten weeks he suffered from sleeplessness. His nurse left about November 1st. After November 1st he remained in the house for some time under the advice of his physician, and then by advice of .his physician he went sometimes out of doors. During the time when he was taking exercise, and thereafter until he returned to his office, his stenographer or bookkeeper at Holland came to see him about 'once a week for an hour or so, his superintendent came once or twice; he had a telephone at his residence. During this period he did some, but little, business, and such as he did was by consultation with his employees who called upon him. He wore a bandage on his eye until January, or later. About the middle of November there were hemorrhages in the eye. Early in December he went to Chicago to con-suit an oculist. In April he consulted an oculist at Toledo. Neither of them advised him that sight would ever be restored to the eye. Dr. Welsh, whom he originally consulted, so expressed himself about May 1st. Under date February 9, 1912, he addressed to the defendant at Chicago a letter, inclosing a check for his premium from February 13, 1912, to February 13, 1913, and containing the following:
    “I am sorry to advise you at this time of a very severe injury which I received to one of my eyes the second week in September. The accident occurred by burning with an acid which caused an ulcer and I was laid up in a dark room for something like eight weeks and totally incapacitated for business for something like 3% months. I am now able to give a little attention to business; but the eye is still bothering me. I think I shall eventually have the sight restored in it, though not wholly.
    “Will you advise me what benefits I am entitled to under my policy No. 100. This will be notice to you of claim on my policy. If you have blank forms which are necessary to fill out I would suggest that you forward one to me at once.”
    The check which was inclosed with this letter was paid February 16th by the bank in Holland upon which it was drawn, and it bore then the indorsement of defendant by its treasurer. Under date February 13th plaintiff received a letter purporting to be signed by the defendant by “G. H. Cavanaugh, Claim Dept.,” which reads:
    “We are today in receipt of your notification of recent disability because of an injury to your eye and are accordingly inclosing you one of our regular accident claim blanks, which you will kindly have completed and forward to this office. In making out this blank, be sure that you answer all questions fully and also that your doctor does the same, as it is absolutely necessary for us to have full information before we can adjust a claim.
    “Assuring you that upon receipt of the blank properly completed the matter will be given prompt attention.”
    He received with it a blank form to be used for filing proof of claim. He afterwards, and under date May 13, 1912, filléd out the form, in which he stated that the injury for which he claimed indemnity was sustained on the 16th of September, 1911, about 1 o’clock p. m., and he described the location, nature, and extent of it as a “foreign substance in right eye,” and the cause of the accident “a foreign body blew into eye by high windthat he was first treated for the injury September 17th about 10 o’clock p. m. He claimed further that solely on account of the injury described he was continuously and wholly prevented from performing every duty pertaining to his business from September 16, 1911, to February 15, 1912. This proof was sent to the defendant, accompanied by a physician’s certificate, made out and signed by Dr. Welsh under date May 6, 1912. In this certificate the injury is described as a foreign body in the eye, and in answer to one of the questions contained in the blank he wrote, ’ “See attached letter,” and to two others, “See letter.” The certificate contained the following question:
    “In your opinion as a physician, has this injury been sufficiently severe to continuously and wholly prevent him from performing every duty pertaining to his occupation or business? If so, for what time.”
    To which he answered:
    “From 17th day of September to 15th day of February, 1912.”
    Under date May 20th plaintiff received a letter signed by the defendant, by its president, reading:
    “Your letter of May 13th inclosing physician’s certificate and your personal statement, also detailed letter from your physician regarding claim for loss of eye, was duly received.

      “I was personally absent from the city the latter part of last week, otherwise would have acknowledged receipt of your papers before. We will give these papers our prompt consideration and let you hear from us accordingly.”
    Under date June 4th he received from the defendant another letter, in which it is stated that:
    “We understood that you were coming to Chicago, and would come in to see us and have been looking forward to your visit to the city and your call upon us”—
    And asking him when he might be expected in Chicago. Plaintiff called at the office in Chicago, but, owing to the engagement of general counsel for defendant, and perhaps for other reasons, their conversation did.not reach the matter of his claim, and on June 11, 1912, he received a letter signed by the general counsel for the defendant, referring to the call at the office, asking if plaintiff expected to be in the city again soon, and, if so, expressing a desire that he would call upon him at his office. This letter the plaintiff answered under date June 17th, stating he could not say when he would be in Chicago; that, if it was necessary, he would go over some time within two weeks. Under date July 18th the general counsel wrote plaintiff, stating that there was no special haste in the matter and:
    “I merely wished to talk over with you some matters connected with your claim, as we are prepared to take your word for somethings about which ordinarily we would require additional proof, and if it should not be entirely convenient for you to come to Chicago, I will ask Mr. Puse, of our claim department, to come over and see you.”
    Again, on July 30th, the general counsel wrote to him, stating that he had just returned to the city and was anxious to take the matter up with him at his earliest convenience, asking him to call on his next visit to the city, and if that was not convenient he would send Mr. Puse, of the claim department. August 22d the plaintiff wrote defendant a letter in which, among other things, he says:
    “From my standpoint I can see no reason whatever for any further delay. I shall expect remittance promptly by return mail to close this matter up.”
    Under date August 24th the general counsel wrote plaintiff, regretting the delay in passing upon his claim, denying any liability under the policy, stating his reasons therefor as follows:'
    “Your policy provides for a specific indemnity of :$2,500.00 for loss of one eye, provided such loss shall result within one hundred days from the date of the injury. If such loss result within one hundred days .and also render the insured continually unable to perform any of his business duties, he is entitled also to the weekly indemnity provided for in section B. The policy also provides (section P) that written notice of the accident, together with full particulars thereof on account of which a claim may be made, must be given to the company at its home office as soon as possible after the accident, and that within sixty days after the loss of one eye affirmative proofs thereof must be filed with the company. The first information of any kind which the company received.of this accident was conveyed in your letter of May 13th, 1912, which was nearly eight months after the occurrence of the injury and after, as you claim, the loss occurred. You will perceive that under this provision the company should have been given notice as soon as possible after September 17th, 1911, and that if the loss occurred on that date affirmative proofs thereof should have been filed with the company on or before November 17th; or, if the total loss did not occur until February 15th, that such affirmative proofs should have been filed not later than April 15th.”
    In reply to this the plaintiff sent a letter of considerable length, which was followed by further correspondence, during the period of which, and about a month after his first call at defendant’s office, plaintiff saw general counsel for the defendant and discussed with him for a few minutes the matter of his injury. The agent referred to in the correspondence as likely to be sent to Grand Rapids did not, to plaintiff’s knowledge, go there.
    Plaintiff is manager of the West Michigan Furniture Company, which makes bedroom and dining room furniture. Part of his time is spent in the office and part of the time in the factory; he having general charge of the correspondence and policy of the business. It appears to be conceded, at least is not seriously contested, that the loss of the eye was occasioned by acetic acid contained in the solution given to plaintiff by Dr. Welsh to use in his eye.
    Plaintiff having rested his case, the defendant moved the court to direct a verdict because sufficient notice was not given by the plaintiff of the injury, the proofs showing that the notice was not given as soon as possible after the accident, because affirmative proofs of loss were not filed within the time limited in the policy, because the written claim of the plaintiff, dated May 13, 1912, stated the cause of the accident to be a foreign body blown into the eye, while the proofs showed the loss of sight was caused by hemorrhages resulting from the acid introduced into the eye by plaintiff himself. The motion was overruled, and the taking of testimony proceeded, and after it was closed the motion for a directed verdict was renewed for the reasons originally given, and a motion was made to strike out the testimony of plaintiff and Dr. Welsh in relation to the putting of acid in the eye, the manner in which it was put in, and that the testimony in relation to the effect of the acid be stricken from the record as incompetent, irrelevant, and immaterial; the act of plaintiff in putting the acid into the eye being a voluntary one, and not an accident, and for the further reason that the testimony does not correspond with the proofs submitted by the plaintiff upon which the action is based. In the course of the argument following the making of this motion, the court asked for the letter that accompanied the formal proofs, meaning the letter written by Dr. Welsh. Counsel for defendant, Mr. Cleland, said:
    • “I suppose they will have to get Dr. Welsh to find out about that.

      “The Court: Who offered these blanks in evidence?

      “Mr. Cleland: The plaintiff offered that in evidence. This is the first I have heard—

      “The Court: Got it from the defendant company probably on notice.

      “Mr. Cleland: Oh, we produced that.

      “Mr. Diekema: And we asked for all letters and papers.

      “The Court: You better open up the case and let’s find out where that letter is, because it may bear upon some of the argument in advance here with reference to notice.

      “Mr. Heald: The only way we could find out is from Chicago. * * * We assumed that the letter meant the letter of Mr. Hummer’s when asked to produce these proofs.

      “The Court: It cannot be possible that that assumption was seriously made. All the letter of Mr. Hummer states is: ‘Inclosed hand you statement regarding injury to and loss of my right eye, together with physician’s certificate.’ Now, the physician’s certificate refers three times to a letter attached; that is, attached to the certificate. That is the letter we want, and the information relates to some of the questions that have been discussed right here and now from the questions asked and answered by the physician.

      “Mr. Diekema: And is á part of and attached to the proofs and they must have detached it.”
    There was further colloquy and a recess of court, after which counsel for plaintiff asked the defendant to produce a letter attached to the proof of claim made out by Dr. Welsh dated May 6, 1912, to which counsel for defendant replied that they knew nothing about it, that plaintiff introduced the proof, it was the first time they had made a request for the information, and it came too late. Thereupon Dr. Welsh and the plaintiff were recalled, examined, and cross-examined, and in the course of their testimony it was attempted to be shown what were the contents of the letter and its course from Dr. Welsh’s hands to the possession of the defendant.
    Defendant preferred requests to charge which present substantially the contentions made in support of the motion to direct a verdict. The court instructed the jury that the sending by the plaintiff to the defendant of the letter of February 9, 1912, and the receipt of it by the defendant were undisputed facts in the case. He submitted to the jury four questions:

      “First, did the accident occur resulting in the total loss of this eye — did the total loss of this eye result from this accident within 100 days from its date?

      “Second, were the proofs of loss sent in within 60 days after the plaintiff knew that he had lost totally the sight of his right eye ?

      “Third, did the plaintiff within a reasonable time and as soon as possible after the injury give notice to the company of the accident?

      “Fourth, if you should find that that notice was not given within a reasonable time as provided by the policy, then has the company by its acts after the proofs of loss were sent in, waived that necessary prerequisite to the rights of the plaintiff to recover in an action upon this policy?
    “If you find these several questions in favor of the plaintiff, you will find for the plaintiff and estimate the damages. The plaintiff will be entitled to recover the $2,500 specific indemnity and $350 weekly indemnity upon which interest is to be reckoned at 5 per cent, from August 15, 1912.
    “If you do not so find, your verdict will be for the defendant, no cause of action.”
    There was a verdict for plaintiff for $2,939, and judgment was entered on the verdict.

      The contentions of appellant are stated in its brief as follows:
    “(1) The plaintiff’s failure to give the notice required by the contract relieved the company from liability.
    “(2) In addition to giving notice of the accident, plaintiff was required by the terms of the contract to file proofs of loss within 60 days, and this was a condition precedent to his right of recovery.
    “(3) Plaintiff was not entitled to recover both the specific indemnity for the loss of his eye and the weekly indemnity, inasmuch as there .was no immediate total disability, and the policy made no provision for the payment of partial disability in connection with a specific total loss.
    “ (4) There was no waiver by the company of the provision of the policy relating to notice and proofs of loss!
    “(5) The court erred in reopening the case after it had béen closed, and admitting secondary evidence of the alleged letter claimed by plaintiff to have been attached to the proofs of loss.
    “(6) The court erred in admitting the testimony of Dr. Welsh as to plaintiff’s disability.
    “(7) The court erred in charging the jury that the plaintiff was not required to file final proofs of loss until 60 days after he knew that such loss had occurred.
    “(8) The court erred in instructing the jury that the sending by the plaintiff of the letter of February 9th and its receipt by the defendant was undisputed.
    “(9) The court erred in instructing the jury that the provision of the policy relative to notice must be given a reasonable construction, taking into consideration all the facts and circumstances in the case; the nature of the injury; the length of time the plaintiff was confined to his house and bed; the consequences of the injury; the pain he suffered, if any; his general physical and material condition resulting from the injury; and the length of time between the date of the injury and the giving of the notice; plaintiff’s conduct during this time; the uncertainty, if any, as to the outcome of the injury as plaintiff was advised and believed, etc.

      “(10) The court erred in instructing the jury that if they found for the plaintiff he would be entitled to recover $2,850.
    “(11) The court erred in instructing the jury that the provision requiring preliminary notice was inserted for the benefit and protection of the company against fraud and misrepresentation.
    “(12) The court erred in instructing the jury that the company claimed that the policy issued to plaintiff had become inoperative.”
   Ostrander, J.

(after stating the facts). Some of the contentions of appellant may be disposed of with little comment. It was not error to instruct the jury that the sending of the letter of February 9th and its receipt by defendant were established facts. It is true that the letter of February 9th was not produced by defendant upon notice to produce letters, and that it was stated by counsel at the trial that it was thought defendant never received it. A letter written by defendant to plaintiff states that the first information received by defendant of the alleged injury came in May with the proofs of claim, and a witness testified that there was in the files of defendant no evidence of an earlier notification. It appeared, too, that the defendant asked plaintiff to send them a copy of his letter of February 9th, and the request was refused, or ignored. But defendant’s witness also testified that the letter of February 13th, which purports to answer plaintiff’s letter of February 9th, and admits notice of a claimed injury to plaintiff’s eye, was written upon the stationery of the defendant, and that Mr. Cavanaugh, whose name is signed to it, was a clerk in defendant’s department. No error is assigned upon the introduction of the letters in evidence, and there is the evidence of the cashing by defendant of the check inclosed in plaintiff’s letter of February 9th. I find no testimony which raises an issue of fact upon the subject.

The court should have instructed the jury that plaintiff did not, as soon as possible after the accident, give defendant written notice of the same and the particulars thereof, and should not have instructed them that the provision in the policy for preliminary notice was inserted to protect defendant against fraud and misrepresentation, without saying more. The plaintiff’s testimony is conclusive evidence that he might earlier have notified defendant of his accident. It was therefore not for the jury to determine whether it was given as soon as possible and within a reasonable time. Plaintiff delayed for nearly five months to give any notice. On Wednesday, February 20th, if not before, he was advised by the pain he suffered that the injury to his eye was serious. He was in Chicago in December, in the latter part of that month, and in January he was looking after some of his business affairs. For this purpose he traveled from Grand Rapids to Holland, going down perhaps a dozen times. He was confined to his bed, he says, until about November 1st after which time he was about the house and began to go out of doors during the first half of November. What he did leads irresistibly to the conclusion that he was ignorant of the provisions of his contract, or careless or wilfully negligent about performing his duty thereunder, and that he gave, and intended to give, no preliminary notice of his injury and no notice until the result of the injury was pretty definitely known. With the notice he gave he asked for blanks for making proofs of claim and for advice concerning the amount he was entitled to receive. The provision in question was doubtless inserted in the contract to protect defendant from fraud and misrepresentation, but not for this purpose only. Defendant reserved the right to examine the person of the insured in case of injury. Its promise is to pay indemnity if the injury shall, within 100 days from the date of the accident, result in one of the losses specified. In the absence of the required notice, in the absence, as in this case, of any notice until 5 months after an injury is received, the defendant may not, perhaps, protect itself against a demand made in good faith by the insured or by his beneficiary. Was the loss of the eye sustained solely through accidental means? Did the loss occur within 100 days of the injury? These are matters about which it is the right of defendant under the contract to satisfy itself, without litigation, and, without regard to the good faith of the insured.

It was not reversible error for the court to reopen the case to learn the contents of the letter which accompanied the certificate of the physician. I do not appreciate the importance of the contents of that letter. The paper itself was a part of the proofs of loss, and should have been produced by defendant when it produced the proofs of loss pursuant to notice. If it had contained matter adverse to plaintiff’s right to recover, such matter might have been of value to defendant. But that proofs of loss were filed at some time is not disputed. They were not rejected as insufficient. The nature of the injury plaintiff suffered was proven by witnesses. So it seems to me to have been immaterial whether the letter had become detached and lost or inadvertently mislaid, unless the defendant undertook to predicate some right upon its nonappearance. And I cannot conceive that what was done after discovery of its absence prejudiced defendant.

Appellant’s sixth contention is based upon a ruling admitting answer to the question asked Dr. Welsh:

“Now, during those months of September, October, November, and December was Mr. Hummer incapacitated from attending to his business?”

The objection was that the question called for a conclusion. There is no merit in this. The witness appeared to have knowledge upon the subject. Whether his unqualified affirmative answer was precisely true is another matter.

The third and tenth of the contentions of appellant must be sustained. The court advised the jury that, if otherwise entitled to recover, plaintiff should be given $350, which is indemnity at the rate of $25 per week for 14 weeks. Assuming the accident, the foundation of plaintiff’s demand, occurred on September 16th, it is clear that plaintiff was not from that date thereby rendered continuously unable to perform his business duties. The disabling thing was the medical treatment of the injured member, and, while the defendant may be held liable for the loss of the eye resulting from such treatment, it is because of the original injury that liability for the result of treatment arises. I am of opinion, therefore, that upon this record the court should have advised the jury that plaintiff was not entitled to the weekly indemnity.

The questions made most important in argument are: First, whether defendant waived, or is estopped to assert, the failure to give the preliminary notice of the accident; second, whether final proofs of injury were seasonably made; and, third, whether there has been a proper determination of the fact that loss of the eye, the result of the injury, occurred within 100 days from the date of the accident.

The court instructed the jury that the proyision of the policy as to notice of injury must be complied with before liability could be found, unless the notice was waived. Waiver may be found from circumstances which show no intention of the insurer to complain that earlier notice was not given, and which indicate that the notice given is regarded as a sufficient performance of contract duty. This is especially true when, the testimony being all before the court, it does not appear that the failure to give earlier notice has prejudiced the insurer. I am of opinion that the court might properly have instructed the jury that under the particular contract waiver of the preliminary notice was established. Hohn v. Casualty Co., 115 Mich. 79 (72 N. W. 1105). As to the final, affirmative, proofs, the contract penalty for failure to file them is that no suit may be begun on the policy unless within one year from the date specified for filing them. Beyond this, it cannot be saidas matter of law that they were not filed within 60 days from the time plaintiff became satisfied about the result of his injury. There is testimony to support a finding that the loss of the eye occurred within 100 days from the date of the accident; that it was caused by the introduction of the acid into the eye, all attempts to avert the injury then caused having been unsuccessful.

With the exception noted, none of the errors committed upon the trial were prejudicial to defendant.

The judgment is too large by the sum of $350, and the interest on that sum at 5 per cent, from August 15,1912, to the date of the verdict. This plaintiff may remit and the judgment may stand affirmed for the sum remaining. Otherwise the case must go down for a new trial. In any event, a substantial reduction in the amount recovered having been secured, the defendant will recover costs of this court.

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


source: Caselaw Access Project

license: Public Domain

text:
    JOHNSON v. UNION CARBIDE CO.
    1. Appeal and Error — Curing Erroneous Admission oe Testimony.

      Testimony, in a negligence case, having been received to show that the wrench which plaintiff was using when he was hurt was defective, whether improperly admitted or not, did not amount to reversible error where the trial judge afterwards withdrew that subject from the consideration of the jury, leaving for their consideration only the failure to guard belts and pulleys in which plaintiff’s arm was injured.
    2. Same — Exclusion oe Cross-Examination — Trial.
    Nor was it erroneous to exclude the proposed cross-examination of plaintiff as to his bringing another action in whiGh he recovered damages for personal injuries, sustained prior to the injuries in question, although it would have been proper to show that plaintiff had given contradictory testimony at the trial, or to show his physical condition;- no such purpose being suggested or disclosed for. the examination.
    Error to Chippewa; Fead, J.
    Submitted April 30, 1914.
    (Docket No. 104.)
    Decided July 24, 1914.
    Case by Joseph T. Johnson against the Union Carbide Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Fred L. Vandeveer (Warner. & Sullivan, of counsel), for appellant.

      John W. Shine, for appellee.
   Ostrander, J.

Convinced that plaintiff had not shown himself free from negligence contributing to his injury, the trial court, upon a former trial of this cause, directed a verdict to be returned for defendant and entered judgment accordingly. The judgment was reversed, and a new trial granted. 169 Mich. 651 (135 N. W. 1069). In the opinion then filed, the testimony was carefully reviewed, and the conclusion was reached that whether plaintiff was himself negligent was a question for a jury. Certain other questions were determined, as will appear from the opinion.. Plaintiff has recovered a judgment, and I have examined the brief for appellant to learn whether it is claimed that the testimony for the plaintiff, given upon the last trial, differs materially from that which was reviewed by us, and find no such claim made, and counsel for plaintiff asserts there is no material difference. I assume, therefore, that the plaintiff made a case for the consideration of the jury. A motion for a new trial, one of the grounds being that the verdict was excessive, was denied. The error assigned upon this ruling is not discussed by appellant.

The first three assignments of error are based upon exceptions to rulings upon the admission of testimony relating to the wrench used by the plaintiff when he was injured. That defendant provided plaintiff with a defective wrench was alleged in the declaration as negligence. This, as a ground for recovery, was eliminated by the court in his charge to the jury. It is said the error in admitting the testimony was not thereby cured. If it was error to admit it, which is doubted, all the testimony in that connection being considered, the error was cured when the subject was withdrawn from the jury.

Plaintiff had suffered an injury while employed by defendant and, after suffering the one which is the basis of the present action, sued defendant to recover damages for both injuries. Upon the trial of that cause, after putting in his testimony, he withdrew his claim for damages for the injuries now relied upon. He recovered a judgment which was paid. He then began this'suit. Upon the trial of the pending issue, in cross-examination, plaintiff was aked:

“Q. And when you did bring suit against them for the loss of your arm, you also brought suit against them for your other injury, didn’t you?”

The question was objected to, the objection sustained, and an exception noted.

“Q. You didn’t begin any action for your first injury, or, rather, your second injury, until after you were hurt the third time, did you?

“A. No, sir.

“Q. And you have recovered and been paid — ”

Question objected to.

“The Court: You might show that he was paid for his former injury without showing the amount.

“Q. My question is that you have recovered a judgment and been paid for the explosion injury?

“A. Yes, sir.”

The record shows no more than this. It is obvious that there may have been proper purposes for showing that plaintiff had sustained a previous injury for which he had recovered. As affecting his physical integrity at the time of the second injury, the details of the first one might have been proved. So if upon the trial of the first case plaintiff had testified to the particulars of the later injury, and upon the pending trial was giving other and contradictory testimony in relation to it, the fact might have been shown. But no such or similar purposes are disclosed by the record. No error was committed in the rulings.

Defendant preferred certain requests for instructions to the jury and complains because they were not given. Those bearing upon any issue of fact were given in part, and, taking the charge as a whole, it states the applicable law. Those requests which in effect direct a verdict for the defendant were properly refused.

No reversible error is made to appear, and the judgment .is affirmed.

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


text:
    WILSON v. SAUBLE.
    1. Appeal and Error — Judgment — Trial Without Jury — Findings op Fact and Law — Review.
    In cases tried without a jury, the Supreme Court, on error, will not find any of the facts; it may reject such findings of the trial judge as are unsupported by the evidence; the ultimate facts are to be found by the trial court whether the testimony is undisputed or disputed.
    2. Ejectment — Remedy in Equity — Taxation.
    The court of equity is the proper forum to determine whether or not the owner of the title which has been cut off by tax proceedings is entitled to redeem and have a conveyance bach from the tax title holder, who refuses to give it.
    3. Taxation — Actions—Real Property — Equity.
    Ejectment does not lie for lands sold in tax proceedings to the State which thereafter gave a deed to a purchaser, plaintiff having only a deed from grantees of the wife and children of one who claimed the property by adverse possession and who occupied it under such claim before the State acquired title under tax proceedings. The tender of the statutory amount required for redemption did not confer upon the possessor a title which would sustain the action. The remedy, if any exists, is in equity.
    Error to Genesee; Wisner, J.
    Submitted April 20, 1914.
    (Docket No. 67.)
    Decided July 24, 1914.
    Ejectment by Samuel J. Wilson against Charles Sauble and others. Judgment for defendants on findings of the trial judge. Plaintiff brings error.
    Affirmed.

      McFarlan & Wilson, for appellant.

      John H. Tyler and Daniel Heims, for appellees.
   Ostrander, J.

The court made a finding with the conclusion that plaintiff take nothing by his suit. Judgment was entered accordingly. Matter contained in the bill of exceptions conveys the impression that it is supposed this court may itself find from the testimony, or may supply if not’ found, the facts. Of course, this court may not, in cases tried without a jury, find any of the facts. Those found to be wholly unsupported by evidence may, upon proper exceptions, be rejected. But the ultimate facts are to be found by the trial court, and this whether the testimony is or is not disputed.

We are not required to examiné and discuss the various assignments of error, because in no event can the plaintiff maintain the action. The plaintiff’s title is based, originally, upon an adverse occupancy of the premises by one William Hamilton, who, according to the finding, in this manner acquired title thereto. His wife and children conveyed the premises by warranty deed, and the grantees occupied the land. They in turn conveyed by warranty deed to plaintiff’s grantor, who lost his deed before recording it, and who did not occupy the land. Defendants’ title was acquired by sales of the land for taxes, and neither the taxes nor the proceedings by which the State obtained its title are questioned. As a consequence, the plaintiff’s grantor lost title, and he has not since regained it. He was in this position when he conveyed to the plaintiff. Without considering further the defendants’ title, it is clear that plaintiff may not maintain ejectment.. Upon the argument it was suggested to counsel for ap-; pellant whether he had the legal title, and the query was answered by reference to a finding to the effect that before beginning the action a tender had been made to defendants sufficient in amount to reimburse them in accordance with the statute for taxes paid to purchase the land from the State and for taxes subsequently paid, and interest. In such a case, in Backus v. Hoyt, 164 Mich. 407 (129 N. W. 693), a bill in equity was maintained to compel a reconveyance by the tax title holder, and we are of opinion that a court of equity is the proper forum for determining whether or not the owner of the title cut off in tax proceedings is entitled to a reconveyance from the tax title owner who refuses to give it. The legal title to the land, under repeated decisions, was acquired by the State, which sold it, conditionally, to the tax title purchaser. Assuming the tax proceedings to be regular, no title remains in the original owner. Griffin v. Kennedy, 148 Mich. 583 (112 N. W. 756). He does not acquire title by a tender of money, the right to make which is disputed. The court below properly held that plaintiff could not recover.

The judgment is affirmed.

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


text:
    STEWART v. STARK.
    1. Deeds — Covenants—Restrictions.
    Where building restrictions in a deed were not intended for a district in which stores were to be erected, but they provided that houses should be 25 feet from the street line and no building other than dwelling houses should be built within 25 feet of any street line, it does not follow that stores may be constructed in violation of the restrictions; nor is such breach excused because other violations of the restrictions had occurred or other stores had been built on the plat.

      2. Same — Equity.
    And where the general condition of a plat and' its surroundings had remained as contemplated by tbe grantors, notwithstanding that a number of stores had been placed on the restricted property, and defendant bought with knowledge of the requirements, he was rightly enjoined from violating them.
    Appeal from Genesee; Wisner, J.
    Submitted April 27, 1914.
    (Docket No. 147.)
    Decided July 24, 1914.
    Bill by Charles C. Stewart and another against Vergil L. Stark for an injunction. From a decree for complainants, defendant appeals.
    Affirmed.

      Black & Roberts, for complainants.

      William V. Smith, for defendant.
    Each original deed to lots in the residence portion of Oak Park subdivision, city of Flint — each deed given by the owners who platted the land — contains the following:
    “This deed is made subject to the following building restrictions which have been adopted for said plat, viz.: No house shall be erected on Hamilton avenue or Saginaw street to cost less than $800. No house shall be erected on any other street of said plat which shall cost less than $600. The front foundation wall of all houses shall be 25 feet from the street line, which is the building line established for said plat. All houses shall have a suitable foundation of either brick or stone. No building other than dwelling houses shall be built within 25 feet of any street line.”
    There are 20 large blocks, in two parallel lines; the lots, with 50 feet frontage each, facing either north or south on east and west streets. The plat was made in the year 1900, since which time about 600 houses have been erected in the restricted district, all but 30 or 40 of them in compliance with the restrictions. Complainants seek to restrain defendant from erecting a store building on lot 18, block 5, in said subdivision, within 25 feet of the line of the side street, in alleged violation of that portion of the restriction reading:
    “No building other than dwelling houses shall be built within 25 feet of any street line.”
    Defendant knew of the restriction and that it had been generally recognized, but he urges that the plat was intended for residence purposes only, and the particular restriction was made in view of such intended use, was intended to keep barns and other outhouses used with dwelling houses at a suitable distance from any street line. An interpretation of the language of the restrictive clause to make it mean that a store building may not be erected in the place where it is conceded a dwelling house may be built, it is said, is to create and enforce by mere literalism a restriction never contemplated by the original owners or by their grantees, to the damage of defendant and in the absence of any showing of damages to complainants.
    It appears that complainants use a portion of their property in the same block for business purposes; one building being occupied by a drug store with rented rooms over the store. Defendant proposes, .to use his building for a drug store. No injury peculiar to complainants appears to be threatened other than a possible, or probable, competitive renting of property. There are a considerable number of business places in the plat; 15 of them on corners being built nearer than 25 feet from a street line. It appears that, on a part of the plat reserved for factories, 5,000 to 8,000 men are employed, who were expected to find, and many of whom have found, residence upon the portion of the land embraced in the residence district. In the natural order of things, in the development of the locality, business places became a necessity, and, as has been stated, there are a number of them in the 20 blocks.in the residence district. There is at least one bank. There is no dispute of material facts.
    The rule which it is claimed is applicable is taken from 11 Cyc. p. 1077, as follows:
    “Covenants restraining the use of real property, although not favored, will nevertheless be enforced by the courts, where the intention of the parties is clear in their creation, and the restrictions or limitations are confined within reasonable bounds; but where there has been such a change in conditions as to defeat the object and purpose of the covenant, and to render it inequitable to deprive the convenantor of the privilege of using his property as the new conditions require, equity will not enforce specific performance.”
    Again, IB Cyc. p. 719:
    “Equity has power to enforce valid restrictions, as to buildings or concerning the use of the property, in favor of those entitled to the benefit thereof and will prevent a violation of the same in a proper case by injunction or other adequate.relief. * * * Equity will not, however, as a rule, enforce a restriction, where, by the acts of the grantor or of those who derived title under him, the property, and that in the vicinage, has so changed its character and environment and in the uses to which it may be put as to make it unfit or unprofitable for use if the restriction be enforced, or where to grant the relief would be a great hardship upon the owner and of no benefit to complainant, or where complainant has waived or abandoned the restriction.”
   Ostrander, J.

(after stating the facts). The language of the restrictions and the condition of the property when it was platted support the idea that it was intended and supposed that residences only and necessary and convenient outbuildings would be erected on the property. In this view, the restrictions are plain and not unreasonable. Doubtful meaning and real ambiguity are introduced when the restrictions are read as though applying to any but dwellings or residences. A building line for the fronts of all buildings being clearly established, no good reason appears for permitting dwellings, and not stores to be built to the lines of the side or lateral streets. In other words, if it was supposed, when the restrictions were imposed, that lots would be used both for dwellings and. for business places, no reason appears for refusing the right to build a store wherever a residence might be built. Counsel for appellant supports the idea that the restrictions were made in view of a residence district in his argument in favor of a modification of the restrictions because of changed conditions. In my opinion, the restrictions were not framed for a district intended to be built up with both business places and residences. It does not follow that they may be disregarded because stores have been built at various places in the plat, or because there have been violations of the restrictions. See Schadt v. Brill, 173 Mich. 647 (139 N. W. 878, 45 L. R. A. [N. S.] 726). No radical change has been shown in the environment and character of the neighborhood. The general condition of the property and its surroundings is still the condition contemplated when the plat was made and when buyers erected homes thereon. See Moore v. Curry, 176 Mich. 456 (142 N. W. 839); Frink v. Hughes, 133 Mich. 63 (94 N. W. 601). It is unnecessary for us to consider whether the restrictions impliedly deny the right to build store buildings upon the property. If they do, defendant, who bought with knowledge of the restrictions, is in the position of an. intruder, and equity will not favor him. It is enough,, for the purposes of this case, to say that stores, not being dwelling houses, in view of the restrictions, cannot be built nearer than 25 feet to any street line.

This conclusion requires an affirmance of the decree.

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


author: Moore, J.

text:
    EVANS v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    Railroads — Carriers—Master and Servant — Death.
    In an action under the Federal statute affecting the right of employees to recover for negligent acts of fellow-servants or others (35 U. S. Stat. 65; U. S. Comp. Stat. Supp: 1911, p. 1322), evidence tending to show that defendant’s employee, in charge of the main repair track, permitted cars to he hacked upon the track while deceased and another car repairer were working on one of the cars, without warning or notice to them, and that such track was their usual place of work, held, to present an issue for the jury as to the negligence of such fellow-servant.
    Error to Oakland; Smith, J.
    Submitted April 30, 1914.
    (Docket No. 10.)
    Decided July 24, 1914.
    Case by Fred J. Evans as administrator of the estate of David C. Harsen, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company for the unlawful killing of decedent. Judgment for' plaintiff. Defendant brings error.
    Affirmed.

      Harrison Geer, for appellant.

      B. F. Reed {Belton & McGee. of counsel), for appellee.
   Moore, J.

This action is brought-to recover damages sustained by decedent on the 12th day of December, A. D. 1910, while he was engaged as a car repairer in the yards of defendant at Durand, Mich. Decedent died the morning after he was hurt. The action is brought for the benefit of the widow, Blanche Harsen, who was 22 years old at the time of the trial, and her posthumous daughter, born on the '3d day of February, A. D. 1911. Counsel conceded upon the trial of the case that the defendant was at the time of the accident engaged in interstate commerce, and that decedent was repairing a car engaged in such commerce, and that the cause of action is controlled by an act of Congress approved April 22, A. D. 1908, and the amendments thereto, entitled:

“An act relating to the liability of common carriers by railroad to their employees in certain cases.”

From a verdict and judgment in favor of the plaintiff, the case is brought here by writ of error.

The accompanying plat will help to understand the situation.

The southernmost track somewhat circular in its course is called the lead track, and by means of switches cars may be shunted from it to all the tracks by opening and closing switches. The tracks numbered from 1 to 6, inclusive, ' are used for storage of cars, making up trains, and such-other purposes as are incident to a comparatively large railroad yard. Tracks A, B, and C are used almost wholly for the resting place of cars.while undergoing repairs.

The workmen making repairs on cars placed on tracks A and B are protected by rule 160, which reads:

“A blue flag by day and a blue light by night, placed on or at the end of a car, engine, or train, denote that workmen are at work under or about the car, engine, or train. The car, engine, or train thus protected must not be coupled to or moved until the blue signal is removed by the person who placed it. When a car, engine, or train is protected by a blue signal, other cars must not be placed in front of it so the blue signal will be obscured, without first notifying the workman, that he may protect himself.”

It was thought this rule did not sufficiently protect the men at work on track C, and in 1908 rule No. 160 was abrogated as to track C, and locks upon the switches, instead of the blue flag, were used from that time until the accident to decedent. Assistant Foreman Anthony Seeburger had possession of one of the keys to the Yale lock upon these switches. A second key was kept in the office to be used in case Seeburger was not present. When the switching crew desired to place cars upon or take them from track C, it was necessary to secure Mr. Seeburger to unlock the switch, as the ordinary switchman’s key would not open the locks.

But one error is urged, namely: That it was error upon the part of the trial judge to submit to the jury the question of whether or not Anthony Seeburger was guilty of negligence in the premises; counsel claiming there is no evidence in the record of any negligence upon his part.

We quote from the brief of appellant:

“Any cause of action which plaintiff has is therefore governed exclusively by the Federal act of April 22, A. D. 1908, and the amendments thereto. Section 1 of the act provides, in substance, that every common carrier railroad company, while engaged in interstate commerce, shall be liable in damages to any of its employees^ injured while engaged in such commerce ‘if such injury or death resulted in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment.’ Section 3 of this act provides, in part, as follows:

“ ‘The fact that the employee may have been, guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.’

“The trial judge instructed the jury according to the provisions of section 3 of the act in paragraph No. 12 of his charge.

“It is clear from the provisions of this Federal act that, if Anthony Seeburger was guilty of negligence in the premises which caused, or contributed to cause, the injury to plaintiff’s decedent, then there can be a recovery in this case.

“The amount of damages to be recovered depending upon whether plaintiff’s decedent was himself guilty of contributory negligence, it was the duty of the trial judge, under the Federal act of April 22, A. D. 1908, to say, in the first instance, whether there was any evidence introduced upon the trial of the cause tending to prove actionable negligence. If there was no evidence of actionable negligence, then it was the duty of the trial judge to instruct the jury to return a verdict in favor of the defendant railway company. Central R. Co. of New Jersey v. Young, 200 Fed. 359, 118 C. C. A. 465.”

“We requested the court in our eleventh request to charge to instruct the jury as follows:

“‘(11) I charge you that Anthony Seeburger, defendant’s assistant car foreman, at Durand station, was not guilty of any negligence in the premises.’

“This request was refused by the trial judge, and he instructed the jury as follows:

“ ‘The claim of plaintiff is that the negligence in this case on the part of the defendant’s agent, Anthony Seeburger, consisted in an act of omission; that is, he unlocked the switch and failed to notify the parties working under the cars, if any.’

“The negligence, therefore, which it is claimed Assistant Foreman Seeburger was guilty of is that he did not notify Harsen and Rothermal that the main repair track was to be pulled and then filled with bad-order cars.”

As stated before, it is insisted by counsel for appellant that no act of negligence on the part of Mr. See-burger was shown. On the other hand, it is claimed that Mr. Harsen was doing work of a character and at the place and in the manner he was expected to do it, and that his injuries are directly traceable to the negligence of Mr. Seeburger. It is clear that the issue involved is one of fact, and whether there was evidence justifying its submission to a jury requires a further examination of the record.

Mr. Harsen entered defendant’s employ as a car repairer on the morning of November 15, 1910, and worked there daily until he received his injury on the afternoon of December 12th. There were 10 or 12 men working as car repairers in this yard. They worked in pairs; Mr. Harsen working with Mr. Rothermal. The most of the car repairing was done upon track C. The new repair track (A) and steam track (B) werp also used as repair tracks. Track C was approximately 800 feet long', with a capacity of about 22 cars, with allowance of space for separating cars as required in making repairs, and track B was about 800 feet long, with a capacity of 8 cars. Track A was shorter than the others.

Cars having only minor defects would be repaired where they stood on the switch tracks out in the yard; but those requiring more important repairs would be appropriately marked by the inspectors, and would afterwards be picked out from the others by the switching crew and moved to the repair track. After being here repaired, the cars would be withdrawn from the repair track and placed again on the switch tracks for distribution among trains. Several switch engines and crews were employed in the yard, and switching was. constantly going on during working hours. Track C was. used exclusively for the work of repairing cars, and it was here that most of the car repair work was done.

Car repairers did not work at night, except in case of emergency, and it was usually at night, when they were absent from the yard, that the repaired cars would be removed from track C (called “pulling” the track), and the track refilled with defective cars for the repairers’ work the next day. Occasionally this track would be pulled and wholly or partially refilled during the repairers’ working hours. When pulled, the track would usually be refilled to its full capacity, but not always. '

The deceased began work as usual on track C in the morning of December 12, 1910, and worked there all the forenoon and the early part of the afternoon.

Mr. Rothermal testified that after dinner he and the deceased resumed work on track C, working near the “shop,” and, after working there “maybe a couple of hours,” were sent by Mr. Seeburger to repair some cars on the track B. After working on track B “not such a great while, probably an hour,” they finished their work there and started for the “shop,” thus apparently returning to or towards the place where they had been at work on track G before going to track B. On this course they would naturally pass the office, which was located in the east end of the long shop building. On their way they were met by Mr. See-burger, in company with a carpenter, Mr. Mastin, and were directed by Mr. Seeburger to assist Mr. Mastin in blocking some trucks loaded on a flat car that was standing on one of the switch tracks. Mr. Rothermal and the deceased crossed track C through an opening between the cars and proceeded to a point west of the ice house, where they each procured a tie and carried it back across the repair track and around the office end of the long building shown in the plat, to the north side of it, and over to the flat car upon which the trucks were loaded. The witnesses do not specify the particular switch track upon which this flat car stood; but there was at least one switch track filled with cars between it and the repair tracks, so it is claimed the view of track C from the flat car would be obstructed. Before going after the ties, deceased and Rothermal left their tools at the door of the toolhouse, which was a room in the long shop building used for storing tools, and located west of that part of the building occupied by the carpenter shop. The time they were detained at the flat-car was stated by the witnesses at from 30 to 50 minutes. Returning from the flat car at the end of this time, the deceased and Mr. Rothermal took their tools from where they had left, them, and, not seeing Mr. Seeburger, they went west along track C to a group of cars standing on that track toward the west end of it‘, and had just begun work on the first of these cars when other cars were pushed against the opposite end of them, setting them in motion and fatally injuring the deceased.

Mr. Seeburger was not a witness’at the trial; his absence was accounted for by his illness. After sending the deceased and Mr. Rothermal to the flat car, and while they were thus absent from the vicinity, and, it is claimed, out of sight of track C, Mr. Seeburger unlocked the switch at the west end of that track and directed a switching crew to pull the track and refill it. At this time six of the cars then on ,the track were unrepaired. The switchmen pulled all the cars from the track and, separating the unrepaired cars from those that had been repaired, left the latter on switch track No. 2, and shoved or kicked the six unrepaired cars back down the lead track, so that they rolled into the west end of track C, and there stopped. The switch crew then went on switch track No. 3; and there, coupling to a string of 21 out of order cars, pulled them out on the lead track and pushed them down the lead track to the west end of track C, where they struck and set in motion the six cars previously left there, and upon one of which deceased was then at work.

It is the claim of plaintiff that Mr. Seeburger had determined to pull these cars on track C some time before he sent the deceased and Mr. Rothermal to the flat car, and that at the time he directed them to go he was preparing to pull the track, and in fact caused it to be pulled almost immediately after they left, and that he should have so stated to Mr. Harsen and Mr. Rothermal, as their usual place of work was on track C.

The claim of plaintiff is stated in the brief as follows:

“It is perfectly apparent, as we think, from the evidence heretofore reviewed by us, that at the time See-burger directed the deceased and Rothermal to go with Mastín to the flat car he was preparing to pull the main repair track, and then expected to have it pulled almost immediately; and it is altogether likely that he had planned to pull the track before he had sent the deceased and Rothermal to the steam track, for, as we have, seen, he so informed Jewell and Arnold near the same time when directing them to fix the brakebeam. Yet Rothermal testified that Seeburger did not inform him and the deceased that he would pull the track, or warn them to stay away from it, at the time he sent them to the flat car with Mr. Mastín, or at any other time that day. * * *

“Defendant’s witness Arnold testified that when the main repair track was being pulled, Seeburger would be at the switch, or ‘up around there,’- and that it was his custom to be around the track when it was being pulled and refilled during working hours. Yet on this day nobody saw him from the time he unlocked the switch until after the accident. Conductor Green of the switch crew that pulled the track did not see him again during working hours that day after he had unlocked the switch. Arnold, who was working near the place of the accident, did not see him from the time the track was pulled until after the accident. Jewell, who was with Arnold, does not mention seeing Seeburger after the latter had gone to give orders to pull the track. Rothermal says that Seeburger was not in sight when he and the deceased came from the flat car to the shop for their tools and went up the track to the car where the accident happened, and that he first saw him coming from the east a few minutes after the accident. No other witness testified to having seen Seeburger between the unlocking of the switch and the accident. * * *

“The situation presented, therefore, by the conceded facts and the inferences fairly warranted by the evidence, is this: Mr. Seeburger, who alone possessed the power of safety or danger over the main repair track, at a time when that track was a place of safety, and a considerable portion of the cars thereon were yet unrepaired, and shortly before, as he knew, he would convert it into á place of danger, and while he was preparing to make the change, sent the deceased away from the vicinity of that track to a place where observation of it was cut off, on an errand which he (Seeburger) knew was but temporary, without giving deceased any warning of the proposed change on the main repair track, or any direction as to his work after the temporary errand should be accomplished, and, while deceased was thus absent by direction of See-burger, .the latter changed the track from safety to danger and then dropped out of sight, so that when deceased returned neither Seeburger nor any one in his place was there to either direct the deceased where to work or warn him away from the main repair track, and thereupon the deceased voluntarily went upon the track to work, without discovering the danger, and was injured.”

There is testimony tending directly and by reasonable inference to sustain these contentions made on the part of the plaintiff.

The respective rights of employers and employed under the Federal statute involved here, and its various amendments, have received the careful attention of the Federal courts, and full discussions may be found in Second Employers’ Liability Cases, 223 U. S. 1 (32 Sup. Ct. 169, 38 L. R. A. [N. S.] 44); Michigan Central R. Co. v. Vreeland, 227 U. S. 59 (33 Sup. Ct. 192); St. Louis, etc., R. Co. v. Hesterly, 228 U. S. 702 (33 Sup. Ct. 703); Central R. Co. of New Jersey v. Young, 200 Fed. 359, 118 C. C. A. 465; Grand Trunk Western R. Co. v. Lindsay, 201 Fed. 836, 120 C. C. A. 166; Louisville, etc., R. Co. v. Wene, 202 Fed. 887, 121 C. C. A. 245; Pennsylvania R. Co. v. Goughnour, 208 Fed. 961, 126 C. C. A. 39.

Under the principles of - law stated in these cases, especially the last two, we think it cannot be said, as a matter of law, that there was no negligence shown on the part of Mr. Seeburger.

Judgment is affirmed.

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


text:
    CRESSLER v. KING PAPER CO.
    Master and Servant — Negligence—Protecting Gears and Machinery.
    Evidence tending to show that plaintiff’s decedent was caught on a revolving shaft, upon which he was making repairs, that one of the pins or keys on the shaft projected, hut not showing what his clothing caught on, and testimony that he could have had the machinery stopped while he was adjusting the gears, held, to warrant a directed verdict for defendant.
    Error to Kalamazoo; Knappen, J.
    Submitted April 24, 1914.
    (Docket No. 123.)
    Decided July 24, 1914.
    Case by Bertha Cressler, administratrix of the estate of Charles F. Cressler, deceased, against the King Paper Company for the negligent killing of decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Thomas J. Cavanaugh and L. H. Titus, for appellant.

      Fred L. Vandeveer and E. M. Irish, for appellee.
   Moore, J.

This action is brought by Bertha Cressler, administratrix of the estate of Charles Cressler, deceased, to recover damages for the death of her husband, caused by injuries received by him while in the employ of defendant. The trial judge directed a verdict in favor of the defendant. The case is brought here by writ of error.

Mr. Cressler was, at the time of his death, 31 years of age, a healthy man of good ability. His wife was employed in defendant’s plant, and in her testimony described the character of his work as follows:

“Mr. Cressler started to work for the King Paper Company a little over a year before his death. I think his first work was installing machinery in the new part. He helped do that. That was before the mill was put in operation. I do not know how many months he was engaged in work of that character. As to whether he was placing overhead shafts or placing machines themselves, he was helping at a little bit of everything like that. I don’t know how many men were engaged in installing the machinery, or how long he was so engaged. Approximately I would say probably about five months, and the balance after that was through he was transferred to the millwright gang. They repaired everything over the mill. They kept the machinery in repair after it had been installed, and, if it became necessary to install a new piece, the millwright gang would do it, and made repairs and changes necessary throughout the entire plant, and at the time of his death he was doing work of that character, working with the millwright gang, and repairing and installing what new machinery was necessary.”

Mr. Cressler was hurt at washer No. 2. Mr. Miller, a witness on the part of the plaintiff, testified in part as follows:

“There was a gearing on the main shaft at four points on the shaft. There was a gearing at five points at that time, and four of them were used to run washers with, and the other was motor driven. The gearing was fastened onto the shafting at the point called washer No. 2 with a key or a feather. Mr. Cressler was injured at washer No. 2. * * * The power is transmitted from the main shaft by gear to the machinery inside of the washer No. 2. The gears mesh. The feather pin or key at washer No. 2 is about nine inches long. There is nothing more than a key here and this feather pin to hold. The key bed is the same size as the feather pin itself. At washer No. 2 it is a 5-8 key, if it is standard. I should think it would be quite 5/16 of an inch'above the shafting. Now in the gearing that went on there there was a core in the gearing to fit over the pin. Power was transmitted from this main shafting, this gearing to the washer itself by a larger gear meshed into the other one. There was a shaft that run from this gearing into the washing machine. The size of the gearing on the main shaft was about 10 inches, and the size of the gearing on the shafting that run into the washer was about 24, and at full speed the main shaft would make from 92 to 94 revolutions a minute. The gearing on the main shaft was fastened so as to keep it in place by the key or feather. I don’t know whether there was anything to keep the gearing in mesh. There was a safety collar placed on the main shafting to keep the gearing in place. * * * At the time of the accident the gearing on washer No. 2 had got out of repair by stripping the teeth; that is, breaking off these cogs, the gearing on the main shaft. It was repaired by putting in peg teeth, as we call it, by smoothing the face up and drilling in and put in pegs, we call them. I was working for the King Paper Company on the 6th day of July, 1911. Mr. Cressler was with me. I had known him personally four or five months. He was on the millwright gang. At the time I first knew him he was working for the millwright gang on general repairs — any old thing that breaks down, just repair it, whether it was wood, iron, or lead. I first saw him on the morning of July 6th at the machine shop at the King Paper Mill at 7 o’clock in the morning. James Nerry was the foreman. He was there. I had orders to finish the job that I left on the 3d of July on the washers in the basement. Mr. Nerry gave the orders that the work commenced should be finished up. Mr. Cressler and I went down in the basement about 10 minutes after 7 in the morning. I went down to complete the job that I had started, and Mr. Cressler went with me, and I put on a gear that I had started to put on previously, and when I got that on I had to fit a key, and Mr. Cressler said, T will go and put the collar on.’ I was working on washer 5 or 6, putting on a gear, and I had to fit a key, and so he could not help me, and he said, T will go and put on the collar, Peter,’ and while he was putting on the collar I was fitting the key. I got the key fitted perhaps at about the same time that he got the collar on at No. 2, and he had the power started by a Dutchman — I didn’t know his name. He had the fellow start up the power, and I could tell by the sound that there was something wrong, and I hollered down there to him. There was a space between the washer and the flooring above, just a platform, and I looked down through there and asked him if he broke off the pegs that were broken. He said, ‘No.’ I said ‘You better break them off,’ so he had the power stopped, and he broke off what he could. They were bent over, but not broke off entirely. The guard was here, so he broke off down there what he could see, and he told the Dutchman to start it up again, turn it half over, and I looked down through, and I saw that the fellow could not understand it, and after he told him two or three times I said, ‘Wait a minute, and I will start it,’ and I went down and started it half over or quarter over, and he broke off some more teeth, and when he got what he could he told me to turn it over again until he got them all broke off, and be says, ‘It’s all right, Peter, let her go,’ and I said, ‘Is it all right?’ and he said, ‘Yes.’ Then we always holler before we start anything that is going around, and I hollered, ‘It is going around.’ He said, ‘All right,’ and I started it. I walked around then between Nos. 2 and 3 washer and stood looking at him, and there was something rattling, and he apparently reached over to take hold of the guard or something, I don’t know what. I saw his clothes were tearing off, and I ran to the motor and shut it down. When I came back he was laying partly across the shaft. The shaft was about here. He was hanging on the shaft. The guard over the bearings I spoke of was simply made of ordinary sheet iron, simply comes up over this one and this one. * * * After I stopped the motor I came back to the washer where Mr. Cressler was and began to cut him off the shaft and took him out with help. I did not see him revolving around the shaft. I am not positive whether I went to the washer again the next day or the next but one. I did not go in particular to make an examination of the gearing and feather pin. I did go where it was. I discovered a cold chisel mark and the feather pin extended out beyond the gearing and the covering two or three or four inches. I am not positive about that. The cold chisel mark had the appearance of taking a cold chisel, and apparently trying to drive the key out that had made a little burr in there that extended up. I could not say how deep it was in the feather pin, or how high it raised above the feather pin. It was out towards the end of the feather. The feather pin is made of steel — key steel we call it. It is 5-8 square. I think this one was nine inches in the shaft.”

On the cross-examination he testified in part:

“It was the duty of the millwrights to make such repairs and changes in the machinery as was necessary to keep that machinery in motion in order that paper could be turned out, and especially so far as handling the machinery, which was constantly in motion, such as shafting, the bearings that hold the shafting, gearing, belting, hangings, standards, etc. ; and, if it became necessary to change the pieces of machinery from one part of the plant to another, the millwright gang would do that. And if a new piece of machinery was brought in, they would set it and place it and connect it up. And if a piece of machinery would break dowh, it would be reported to the foreman of the millwright gang, and the foreman would immediately send one of his men, so that the manufacturing might continue. And likewise if it became necessary to place a guard over a piece of machinery, that also was a part of the millwright’s work. I do not know who it was that placed the guards over the gears back of this battery of washers where Mr. Cressler was injured. * * * I would not say where the light was; but there was plenty of light in there. Now, in the event of it becoming necessary for millwrights to go into a place where they could, not see, candles were not furnished us, nor lanterns; but we had a cord that could be fastened to a socket to bring an electric light to us furnished by the King Paper Company as a part of our kit or equipment. I am not positive whether there was a sufficient amount of light there so it wasn’t necessary to use the extension. If necessary to use an extension, you could easily have made it. * * * The millwright is supposed to do all the repairing on the machinery, as I understand it. I said it looked to me as though a cold chisel had caused the small burr extending up by taking a chisel and hammer and driving the key out. I would not be positive how that would be caused. It looked as though it were toward the end, and had been caused when they were driving a chisel against the feather pin for the purpose of removing it, and the man who would do that would be apparently the fellow-servant of the millwright man. • There was a sheet iron guard over these gears which covered the point of where they were meshed. * * * He was between the shaft and the wall. It appeared to me that he was caught while reaching over like that (indicating) to make some adjustments. That is the way I saw it with his hand extended across and just above the main shaft. There was nothing that would have prevented him from requesting me to stop that shaft while- he was making the adjustment. If he had wanted to, he could have asked me to stop that shaft while he was making the adjustment. It would have been possible for him to have gone to the other side of the shaft, that is, on the west side, and make the adjustment and been in such a position that this arm would not have been over the shaft and extended across it. But instead of that he stood in such a position that he had to put his hand above the shaft and across it. I helped remove him from the shaft. I cannot state at what point on the shaft his clothes first became engaged, and I don’t know whether it was caught in the gearing, nor any part of the feather pin, nor on the shaft some distance from the exposed end of the feather key. It is my understanding that the shaft was running at the rate of 92 revolutions per minute — 92 or 94; that is what it runs regularly, and I think that it had speeded up to that many revolutions per minute at the time he was caught. When it was running at that speed you could still see the feather pin if you were looking for it. I don’t know whether in my kit of tools I carried a file. They were files that I could get if I desired that could be used in the event there was a burr on the feather pin in smoothing it out. I don’t know which one of the millwrights left it there. I don’t know whether it was one of the other millwrights or the deceased. Up to that time deceased was the last one that worked on the feather pin in setting the collar over it. I don’t know whether, if there had been a defect in that feather pin, or it was out of order, it would have been his job before leaving the work to put it in order.”

Mr. Dexter, a witness for plaintiff, testified, among other things, that on Sunday, July 2d, he helped put on a new pinion gear at washer No. 2, which was run but two days when the accident happened, July 6th.

“We used a torch for light, and we put the torch close to the gears. I don't know whether on that Sunday there was a burr on that feather pin. I didn’t see any. I was working around it, and I had to use my hands in slipping this pinion gear over the feather key, and I didn’t notice one at that time. If there had been, and I was looking for it, I could have seen it and felt it, because the torch gave sufficient light. I said I didn’t have any recollection of seeing any such burr. I don’t remember using a cold chisel or hammer. I have had occasion to use a cold chisel on a feather pin and raise a burr on it. Probably I would file it down. It would be the proper course to pursue. The accident happened in the morning, and I went down the middle of the afternoon to make the inspection. There is generally a good deal of water down there — moisture. The condition of the burr indicated that it was old, because there was some rust on it. I could not say whether it had rusted in two hours’ time or eight or twenty-four. I know rust forms quickly on iron. I don’t know positively whether that cut or that burr was made by Mr. Cressler in the morning and rusted between the time that he made it and I examined it in the afternoon-, and I don’t know positively whether, when I left work there on Sunday, July 2d, there was no burr that I saw or had made on the feather key. I don’t know of any one else working on the gear at washer No. 2 between the time that we did the work on Sunday and the time Mr. Cressler was injured.”

Mr. De Vries was a witness for the plaintiff, who helped Mr. Dexter put on the new gear on the Sunday before the accident. He testified in part:

“I was told to help Mr. Dexter put that gear on. He was apparently in charge of the work; but that never made much difference because we two men went down there and knew what the job was, and we both lent a hand and got it done. He said, for instance, ‘De Vries, you do this,’ and I would do it, and I might say, ‘Dexter, you do that.’ In' other words, we work-, ed together. I would not say the electric lights were burning the Sunday that we put the pinion gear on. I know I had a torch, and it was placed where we could see best. Before we put on the pinion gear we had to take the old one off, and that left the feather pin exposed for nearly its full length of nine inches, and after we removed it we went to work and slipped the other one out._ When we slipped the new pinion on, we had to adjust it so that a groove in the hub of the pinion would fit over the feather key, and the feather key is the thing that held the pinion gear tight to the shaft, so that when the shaft revolved it would cause the pinion gear to revolve with it, so that I had opportunity at that time to see the feather pin. And in making the adjustment of the pinion gear to the pin, my attention was directed directly and particularly to the feather pin. My light may have been close to it, and it may have been a foot or two away. If we have a torch, of course we put it where we can see best. I did not, that I know of, have to make any adjustment of the feather pin. I did not notice at that time any burr on the feather pin. I did not put a cold chisel against the feather pin and drive on it with a hammer. After the work was completed we did not make a test to see if the gears were running properly — we couldn’t, and after the work was done the machinery was run on Wednesday. We did not run Tuesday because it was the 4th of July. I heard Mr. Dexter’s testimony that he did not put a cold chisel on the feather pin and strike it with a hammer. I didn’t and when we left the job I did not notice any burr on the feather pin. If I had seen one there, I would have filed it off.”

We have quoted perhaps more than was necessary from the testimony, because the case of the plaintiff is based upon the theory that the projection on the feather pin caused the injury, and that the feather pin as well as the gears should have been covered by a guard. It is clear from the testimony that what caused the injury is a matter of conjecture. A new gear was put in on the Sunday before the accident. At that time the workman saw nothing wrong with the feather pin. The gear got out of order so it needed repairs on the following Wednesday morning. Mr. Cressler, whose duty it was to do that sort of work, was sent to put it in repair. Whether he cut the projection on the feather pin no one knows. The record does not disclose that any one else did it. After making his repairs, he caused the machinery to be put in motion. He found it necessary to adjust the guard over the gears to prevent them from rubbing on the gear. Upon the request of Mr. Cressler, Mr. Miller would have stopped the machinery. Mr. Cressler evidently did not think this was necessary. He reached over to make the adjustment, with the result which has already been stated. No one knows upon what his clothing caught.

We think the trial judge was right in directing a verdict. See Baldwin on Personal Injuries, § 357; Sakol v. Rickel, 113 Mich. 476 (71 N. W. 833); Perlick v. Woodenware Co., 119 Mich. 331 (78 N. W. 127); Van Wyck v. Dickinson, 148 Mich. 418 (111 N. W. 1033); Neifert v. Metler, 165 Mich. 354 (130 N. W. 630).

Judgment is affirmed.

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


author: Steere, J.

text:
    CALEDONIA COAL CO. v. CONSOLIDATED COAL CO.
    1. Contracts — Mines and Minerals — Coal Mine — Interpretation —Mining Rates.
    Where the defendant purchased plaintiff’s output of coal for a price stated, and it was stipulated as a part of the contract that “the prices named in this contract are based on the present Michigan mining rates of $1.01 per ton, and shall be increased or reduced on all sizes of coal as said mining rate may advance or decline,” and the rate of doing the actual mining increased five cents a ton, the price of such output advanced five cents per ton under the agreement, and plaintiff was not entitled to demand an increase of upwards of five per cent, because other mine work advanced in cost to about that extent.

      2. Same — Mutes.
    It is an elementary rule of construction of contracts tliat all language used should be recognized and given a meaning where it is possible.
    Error to Saginaw; Gage, J.
    Submitted April 24, 1914.
    (Docket No. 124.)
    Decided July 24, 1914.
    Assumpsit by the Caledonia Coal Company against the Consolidated Coal Company for goods sold and delivered. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.
    " Snow & Snow, for appellant.

      Humphrey, Grant & Humphrey, for appellee.
   Steere, J.

This action was brought to recover a balance which plaintiff claims due it from defendant under a written contract entered into between the parties on July 22, 1910, whereby plaintiff, the Caledonia Coal Company, sold the defendant, the Consolidated Coal Company, the output of a mine plaintiff was then opening.

The controversy arises over the construction of that portion of said contract relating to the price per ton to be paid for the coal after a certain date; there being no disagreement as to the amount mined and delivered or the payments made, which, under defendant’s interpretation of the agreement, would be in full.

From a judgment on directed verdict for defendant, following the trial court’s construction of the clause in dispute, plaintiff brings the proceedings here for review upon a writ of error, contending that a proper construction of the contract either required a directed verdict in its favor or, if not, that the technical trade meaning of certain terms used in the agreement should have been submitted to the jury, under proper instructions, to be determined from the testimony.

At the time the contract was entered into defendant was itself engaged in operating coal mines and dealing in coal in the Saginaw valley coal mining district, and plaintiff was equipping and developing a mine in the same territory. By an arrangement then made defendant loaned plaintiff money to complete the development and equipment of its mine, agreeing in that connection to purchase, and plaintiff agreeing to sell, the output therefrom until said, mine was exhausted. A lengthy contract was then entered into, going into the subject in detail, and containing numerous provisions regarding which no questions have arisen, and which are not material here.

The parties operated under this agreement harmoniously until a general increase in the mining rates per ton in that district brought in question the meaning of paragraph 9 of said contract, which provides:

“The prices named in this contract are based on the present Michigan mining rates of $1.01 per ton, and shall be increased or reduced on all sizes of coal as said mining rate may advance or decline, during the life of this contract.”

At the date of the contract an agreement between the coal operator's and miners’ union fixed the prices paid by the operators- for various kinds and classes of work in and about the coal mines in getting out coal. This remained in force until March 31, 1912, when a new agreement increasing the prices was made for the ensuing two years.

The agreement of 1910-12, which was in force at the time the contract between these parties was entered into, fixed the pick-mining scale “for 30 inches of coal and upwards” at $1.01 per' ton, the basis adopted between the parties as appears in paragraph 9. There could be no misunderstanding so long as this rate was in force. When a new agreement was entered into between the operators and the union for the years 1912-14, and prices increased, the item of pick-mining scale “for 30 inches of coal and upwards” was fixed at $1.06 per ton. Defendants construed this as an increased price of 5 cents per ton on all sizes of coal, and made payment accordingly. Plaintiff construed the new agreement of 1912-14 as increasing the cost per ton 5.26 per cent., and brought this action to recover the difference withheld.

This contention arises from the fact that the agreements between operators and miners cover various items for different kinds of service connected with operating a mine, listed under headings fixing the prices therefor, such as “pick-miner’s scale,” with “three different rates per ton according to the thickness of the veins,” “pushing, entry, and narrow work,” covering eight different rates according to the work done, “dead work scale,” with a provision for additional price under varying conditions, “inside day wage scale,” including fourteen items for different classes of work, “outside day wage scale,” including eight different items according to the nature of employment, “general machine mining scale,” covering six items, and “punch machine scale.” Estimated on these numerous items of varying prices for different kinds of work, it is claimed by plaintiff that wages for mining coal were increased a percentage of 5.26, and that under the contract defendant is bound to pay such percentage of increase.

In support of this contention, plaintiff introduced in evidence three books or circulars, two of similar form, called the “Michigan mining scale,” being the agreements between operators and miners for 1910-12 and 1912-14, and one called the “Cleveland agreement” for 1912-14. It is claimed and not disputed that the Cleveland agreement was adopted as a basis for the Michigan agreement of 1912-14. The Cleveland agreement provides as to pick mining:

“That the price of mining be increased five cents per ton on inch and a quarter screened lump coal, pick mining, in Western Pennsylvania thin vein, the Hocking and basis district of Ohio, and both block and bituminous districts of Indiana; and three cents per ton on mine run coal, pick mining, in the bituminous district of Indiana and Illinois.”

An increase of 5.26 per cent, is provided for certain other inside and outside work, which is stated to be a “proportionate advance with the pick-mining rate;” what the previous pick-mining rate was is not shown. The advance in the pick-mining rate in the Michigan scale is shown to be less than 5 per cent., although other rates appear to have been advanced approximately 5.26 per cent. The items of “pick-mining scale” in the two Michigan agreements show the percentage of increase as follows:

Per Ton Per Ton Increase.

1910-12. 1912-14.

For 30 in. of coal and upwards .............. $1.01 $1.06 4.95%

For 27 in. of coal and less than 30 in......... 1.06 1.11 4.71%

For 24 in. of coal and less than 27 in......... 1.11 1.16 4.50%

The rate “of $1.01 per ton,” stated in said paragraph 9, here in controversy, necessarily referred to the item “for 30 inches of coal and upwards” at $1.01 per ton in the 1910-12 agreement, increased to $1.06 by the 1912-14 agreement. No other similar items and figures are found. The witnesses on both sides practically agree, and it is not questioned, that “the Michigan mining rates [rate] of $1.01 per ton” means the price paid the pick miner for mining a ton of screened coal in a vein 30 inches thick and upwards.

The Michigan mining agreement for 1912-14, ereating the increase in dispute, recites that the Cleveland agreement “was later indorsed by a referendum vote of our entire membership.” Nothing is otherwise said about screened coal in the Michigan agreement, as shown by this record; but plaintiff concedes the three Michigan items of pick-mining scale contemplate only screened coal. If the Cleveland agreement governs, that means “inch and a quarter screened lump coal.”

The prices mentioned in said paragraph 9, as based on a then rate of $1.01 per ton, are stated in paragraph 4 of said contract as follows:

“For all steam lump coal from a 7-8 inch screen delivered under this contract, second party agrees to pay first party therefor $2.25 per ton, and for all nut, pea, and slack coal so delivered, second party agrees to pay therefor to first party $1.25 per ton.”

It follows from this that plaintiff was entitled to the increased rate per ton, whatever the same might be, on all coal it produced, including nut, pea, and slack coal, though its scale to pick miners only provided payment for “inch and a quarter screened lump coal.”

Plaintiff urges that “Michigan mining rates” is an expression not generally understood by those not in the coal business — “a technical term, and its meaning and construction is to be ascertained from its technical and trade meaning,” which, as a question of fact, should have been submitted to and determined by the jury. In support of this claim, plaintiff’s bookkeeper testified that “mining rates” embraced “all labor in the way of producing coal;” and Frank Ardern, an experienced miner and member of the plaintiff company, testified that “mining rates” are the prices contained in the mining scale, and pick mining would be one of the rates in such scale. Interrogated on cross-examination as to how the miners commonly spoke of it, he was asked and answered:

“Q. Do they call that the scale or the rates?

“A. They call it anything they please.

“Q. There is no common way, then?

“A. No, sir.

“Q. Any common usage?

“A. It is a scale, they call it.

“Q. That is, the scale without regard to the rates, there is no common use?

“A. No, sir; among the miners they call it what they please. There is no common way. It is a scale, they can call it.”

It could well be questioned if plaintiff’s evidence raised any issue as to whether the term had a technical trade meaning not generally understood. Rate means generally the price or value, a fixed measure of valuation, in this instance definitely stated. Conceding such valuation was according to and part of the Michigan scale, its relation as a scale was with and under the heading “pick-mining scale” per ton; the prices being apportioned in three items according to the thickness of the vein. The rate per ton paid the pick miners is something definite and tangible. It is shown to be, when once agreed upon, the basis from which other rates, or figures, or scales are made at the meetings or conventions of operators and miners when working out their agreements. Mining the coal is the chief work in a coal mine. The other incidental items of expense per ton in mining coal are varying, uncertain, and difficult to estimate in advance.

Maniféstly it w;as for such reason that paragraph 9 of this contract, covering an indefinite term of years in duration, was framed in relation to one definitely stated sum as a basis. This basic item was selected from the Michigan rates then fixing the. price per ton paid pick miners, to designate which “there is no common way” or usage, but which the miners “call anything they please.” It is distinctly stated that the prices paid per ton for coal under said contract are based on that one definite amount then paid pick miners per ton for mining it, future changes in price, if any, to go up or down “as said mining rate [of $1.01 per ton] may advance or decline during the life of this, contract.” To give clause 9 the construction contended for by plaintiff necessitates elimination of this distinctly stated and agreed basis “of $1.01 per ton.”

It is an elementary rule of construction that all language used should be recognized and given a meaning where possible. We think the trial court properly observed that rule and correctly construed said clause as plainly meaning that the stated rate, or wage, per ton for mining coal 30 inches thick was the agreed,, fixed basis of increase or decrease of price per ton. which defendant should pay then, and as it might be varied in the future, irrespective of percentages on other items connected with the cost of mining.

Defendant having paid the increased price according to such construction, a verdict of no cause of action was properly directed.

The judgment is affirmed.

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