text:
    LAIRD v. MICHIGAN LUBRICATOR CO.
    1. Corporations — Officers—Authority—Contracts— RatipicaTION.
    No ratification of an unauthorized contract of employment made by the secretary-treasurer and manager of a corporation with plaintiff appears where, upon the first discovery of the existence of the contract by the corporation, its validity was questioned, and plaintiff understood that his continued employment was not in recognition of the validity of the contract.
    2. Same — Implied Authority.
    Under section 7040, 2 Comp. Laws, the secretary-treasurer of a corporation and manager of its business under direction of the board of directors, whose term of office is one year, has no implied authority to bind the corporation by a contract of employment of a clerk for a period of three years, and there being no evidence of any custom of the corporation or of a holding out of the secretary-treasurer as having that author, ity, the contract is unenforceable.
    Error to Wayne; Donovan, J.
    Submitted April 14, 1908.
    (Docket No. 64.)
    Decided May 26, 1908.
    Assumpsit by Albert G. Laird against the Michigan Lubricator Company for breach of a contract of employment. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed.

      Corliss, Leete & Joslyn (Paul B. Moody, of counsel), for appellant.

      A. J. Gtroesbeck, for appellee.
   Montgomery, J.

The plaintiff brought an action to recover damages for the breach of a contract of employment covering the period of three years from the 1st day of February, 1904. The contract purported to be signed on the one part by the plaintiff, and on the other by George C. Morris, secretary-treasurer, on behalf of the defendant company, and provided compensation of $1,500 per year for the term of three years. The plaintiff continued in the employment of the defendant during 1904, and until the 11th of March, 1905, when his employment was terminated. The president of the company, Mr. Corliss, had in January, 1905, told him that his services would not be required, and that he had better seek other employment, and when told by the plaintiff that he had a contract with the defendant, and upon the production of the contract signed by Mr. Morris, he was assured by the president of the company that the contract was not binding. He was allowed to continue, however, until the 11th of March, when his services were finally dispensed with.

There was no testimony in the ease offered by the plaintiff to show that other contracts of employment extending over a period of three years or for any considerable period had been made by Mr. Morris, nor was there any evidence that prior to the time the contract was produced to the president, Mr. Corliss or the directors of the company had any knowledge that such a contract as that involved here had been made. The plaintiff was paid by the week, and received his compensation from the bookkeeper, giving receipts therefor. Mr. Morris became insane in 1904, and was succeeded’ by John B. Corliss, Jr., in the office of treasurer.

The circuit judge directed a verdict for the plaintiff for the amount of salary stipulated from the time of his discharge up to the date of the commencement of the suit.

It is very obvious that there was no conclusive evidence of ratification, as upon the first discovery of the existence of a contract by the defendant, its validity was questioned, and plaintiff very clearly understood that in his continued employment the company was not recognizing the validity of this contract. The plaintiff’s case must •rest upon the implied power which the circuit judge seems to have found arising from the fact that Mr. Morris was secretary-treasurer of the corporation and manager of its business under the direction of the board of directors, to justify a contract of employment for a term of three years.

Section 7040, 2 Comp. Laws, provides:

‘ ‘ Sec. 4.’ The stock, property, affairs and business of every manufacturing or mercantile corporation shall be managed by not less than three directors, who shall be chosen annually by the stockholders at such time and place as shall be provided by the by-laws of said corporation, and who shall be stockholders and shall hold their offices for one year and until others shall be chosen in their stead.”

Mr. Morris was elected as secretary-treasurer for the term of one year.

It would seem clear that in the absence of any evidence of custom or any holding out as possessed of authority other than the bare fact that he was secretary-treasurer and manager, the authority to continue employment not only beyond his term of office but beyond the period during which the entire management of the affairs of the company might be changed by the election of a new board of directors, would not be implied.

A case very much in point is Camacho v. Engraving Co., 2 App. Div. (N. Y.) 369, in which a contract made by the defendant’s vice-president and general manager for a term of three years was under consideration. The court said:

“But no presumption of law can be indulged in that, because a person acts as such a manager, he has the power to bind his principal to contracts of an extraordinary nature, and of such a character as would involve the corporation in enormous obligations and for long periods of time. If. a general manager, simply by virtue of his being charged with the ordinary conduct of the business, would have the right to bind his principal to a contract for service for three years, involving the obligation to pay thousands of dollars of salary to an employ é, why may not .that power extend indefinitely, so that he may make contracts for all employés for indefinite periods, and thus assume to himself a power which it cannot be supposed was ever intended to be lodged in him ? ”

The case is in all substantial respects on all fours with the present case. It is cited with approval by this court in Nephew v. Railroad Co., 128 Mich. 602. See, also, the cases collected in note to Carney v. Insurance Co., 49 L. R. A. 471 (162 N. Y. 453).

The case cited by plaintiff’s counsel, Ceeder v. Lumber Co., 86 Mich. 541, is not in conflict with the views here expressed. It was assumed in that case that the employment of a sawyer for the season was usual and necessary in the conduct of the business with which the president of the company was entrusted, and it was held that as the primary intention of a corporation in employing an agent is that he shall be able to accomplish the purposes of the agency, the power to do whatever was essential to the accomplishment of that object was to be implied. The situation is quite different from that here, as it can hardly be contended that the employment of clerks or subordinates for a term of years is essential to the conduct of the business. Whether there was proof in that case that it was customary to employ sawyers by the season is not made very, clear by the decision. But the court would almost take judicial notice that such is the fact. There was no such proof in the present case, and if there be any presumption on the subject, it is quite the reverse as to the employment of clerks and subordinates in an office such as that of the defendant.

The court was in error in directing a verdict for the plaintiff, and the judgment will be reversed, with costs, and a new trial ordered.

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


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    HARRIS v. NEAL.
    1. Rape — Civil Action — Evidence—Reputation of Plaintiff.
    In a civil action for rape, plaintiff’s reputation for chastity was not material as bearing upon the probability of her testimony, and proof that her reputation was bad having been admitted in mitigation of damages, the jury were properly instructed that they could consider it for no other purpose.
    2. Trial — Instructions—Weight of Evidence — Alibi.
    An instruction that an alibi, when established, furnishes the best of defenses, because a man cannot be in two places at one and the same time, but the jury should examine such evidence carefully in determining its truth or falsity, held, when read with the entire charge, not to improperly suggest a doubt of the credibility of defendant’s witnesses.
    Error to Livingston; Miner, J.
    Submitted April 15, 1908.
    (Docket No. 57.)
    Decided May 26, 1908.
    Case by Celia Harris against James Neal for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      William P. Van Winkle and William E. Robb, for appellant.

      Albert L. Ghandler, for appellee.
   Carpenter, J.

Plaintiff alleges that she was assaulted and raped by defendant. She brought this suit to recover compensation. Her testimony supported her claim. Defendant denied having had any intercourse with plaintiff and he introduced testimony tending to prove an alibi. The issue was submitted to a jury who rendered a verdict in plaintiff’s favor. Defendant seeks a reversal. Defendant was permitted to introduce testimony tending to prove that plaintiff had a bad reputation for chastity. The trial court held that this testimony could be used only for the purpose of mitigating damages. Defendant, contends that this was error; that the testimony was. “material as bearing upon the probability of plaintiff’s testimony.”

In the interest of clearness we think it proper for us to ■ distinguish the question raised by defendant’s contention from certain other questions which often arise. The question is different from the one which arises when a female witness upon cross-examination for the purpose of affecting her credibility is asked questions imputing lack of. chastity. While the law in such cases is not thoroughly settled, this much may be safely stated, that the trial court has authority to exclude such testimony (Knickerbocker v. Worthing, 138 Mich. 224) and that the answers of the witness are conclusive. The question before us is also to be distinguished from the question which arises when it is sought to impair the credibility óf a witness by proof of reputation. In such a case the proof of reputation is confined to reputation for veracity. Leonard v. Pope, 27 Mich. 145; People v. Abbott, 97 Mich. 488. The principles governing the admissibility of testimony in the two classes of cases above mentioned have no application to the question before us, and if they had, they would not sustain defendant’s contention. The rule invoked by defendant’s counsel is a different rule. He invokes the rule applied by this court in People v. Byno, 148 Mich. 137. That was a criminal case wherein respondent was convicted of rape. There we held: The bad reputation of a prosecuting witness above the age of consent for chastity prior to "the date of the offense charged ” was admissible as tending to prove that the intercourse may have been had by consent, and we reversed the judgment because this rule was violated by the trial court. The rule laid down in People v. Ryno would be applicable if the case at bar were a criminal case. It, however, is not a criminal case. It is a civil case, and this court has held that that rule is inapplicable to civil cases. Adams v. Elseffer, 132 Mich. 100; Knickerbocker v. Worthing, supra.

Adams v. Elseffer was a suit brought by the employer Adams against his employé Elseffer to recover moneys alleged to have been misappropriated. As bearing upon the probability of innocence, defendant was permitted to introduce proof of good character. This court held such testimony inadmissible, saying:

The correct rule, according to the great weight of authority^ is that in civil actions the character of a party to the action may become the subject of proof in case, and only in case, it is involved in the issue. And we think the character is involved in the issue only in the cases in which either the right of recovery or the extent of recovery is affected by the character of either. the plaintiff or the defendant.”

In Knickerbocker v. Worthing, we applied the same principles, and there we held that defendant, who in a civil case was charged with committing adultery, could not introduce evidence of his good character for chastity. It may be said that those cases are to be distinguished from this because there the question related to the proof of character; here to the proof of reputation. This distinction is not tenable. The ordinary way of proving character — indeed, according to the weight of authority (3 Wigmore on Evidence, § 1983; People v. McLean, ?1 Mich. 309) the only way of proving character — is to prove reputation. And the language of our opinion in Adams v. Elseffer very clearly indicates that proof of reputation as well as proof of character is inadmissible. Indeed, I think it may be said that the only sound argument which could be advanced for admitting testimony of reputation in such cases is that reputation furnishes evidence of character, and therefore the decision that proof of character is inadmissible is also a decision that proof of reputation is inadmissible. We conclude that proof of reputation was not admissible as bearing upon the probability of plaintiff’s testimony, and it follows that though admitted for another purpose, it could not be legitimately used for that purpose. The complaint under consideration discloses no error.

The trial court charged the jury:

“An alibi when established furnishes the best of defenses, because a man cannot be in two places at one and the same time. But it is your duty to examine such evidence'carefully in determining its truth or falsity.”

Defendant insists that this last sentence, above quoted, is an unwarranted discrimination. This could be so only upon the assumption that it improperly suggested a doubt of the credibility of the witnesses for the defendant. We do not think the language quoted, especially when read in connection with the entire charge, is open to that objection.

We are asked to reverse the decision of the trial court denying defendant’s motion to grant a new trial upon the ground that the verdict was opposed to the weight of the testimony. We agree with the trial judge that the verdict was not against the weight of the testimony.

Judgment affirmed.

Grant, C. J., and Blair and McAlvay, JJ., concurred. Montgomery, J., concurred in the result.


author: Montgomery, J.

text:
    PETERS v. BIRKETT.

    Fraud — Misrepresentations op Vendor — Damages Recoverable.
    In an action for fraud in misrepresenting the right of head belonging to a water power sold by defendant to plaintiff, it appeared that on a bill by a landowner against plaintiff, to restrain the maintenance of the dam at the height represented, a decree was rendered giving plaintiff the option of reducing the head a certain amount or paying complainant’s damages to be assessed, and that plaintiff elected to reduce the head; whereupon the court directed a verdict for defendant on the ground that by electing to damage the power by reducing the head, when he might have preserved it by paying an inconsiderable amount as damages, plaintiff had lost his right of action. Held, error, since plaintiff’s right of action accrued at once when the representation was made and proved to be false, and the rule of damages was prima facie the difference between the value of the power as it was and what its value would have been had its condition been as represented; that while defendant might show in mitigation of damages that plaintiff might have relieved himself of a part of the damages by paying a less sum under the decree, such showing could not defeat plaintiff’s right of recovery, especially as plaintiff might have been compelled to compensate other owners for the injury to their land as well.
    Error to Livingston; Miner, J.
    Submitted April 15, 1908.
    (Docket No. 90.)
    Decided May 26, 1908.
    Assumpsit under 3 Comp. Laws, § 10421, by Frank M. Peters against Thomas Birkett for fraud in the sale of certain real estate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Louis JB. Howlett, for appellant.

      William P. Van Winkle (Bollin H. Person, of counsel), for appellee.

       Rehearing denied June 27, 1908.

   Montgomery, J.

This is an action in assumpsit brought under section 10421, 3 Comp. Laws, to recover for fraud and deceit in the sale by the defendant to the plaintiff of a mill property described in the deed of conveyance as—

“The mill and all belongings and the water and power privileges, mill dam and mill race which belongs to, or in any wise appertaining to said mill, and all lands flowed by the mill pond so far as the water power and lands flowed belonged to the estate of Joseph Kirkland, deceased. ”

The property consisted of a mill building erected in 1836 and the water power with which it was run. The water power was created by damming Portage creek, forming a large pond covering many acres of land west of the mill and extending up the creek for a distance of two miles or over. The testimony on the part of the plaintiff tended to show that before the purchase was made, he inquired of defendant how much right of head he had, and that the defendant replied “fourteen feet;” that this statement was in effect repeated in the presence of Mr. Erwin, an employé of defendant, and by him reaffirmed; that the purchase was made in reliance upon these conditions; that la'ter one Eloyd Reason, who owned a farm south of the pond, and some 20 rods or more distant therefrom, filed a bill in chancery against plaintiff to restrain him from overflowing his lands; that an injunction was issued; that the defendant was notified of these proceedings, took part in the same, and after a decision of the circuit court in chancery in favor of the complainant in that case, joined in an appeal to this court, becoming a surety on the appeal bond. On the hearing of that case in this court, Reason v. Peters, 148 Mich. 532, the court found that it appeared by a preponderance of the evidence that the complainant’s lands were flooded during the year to a greater extent than they had ever been during ordinary seasons, and that the water had been raised 20 inches above its usual height. The present case was brought after the decision in the chancery case in the court below, and before final determination in this court.

In the chancery case, the court gave the defendant, the present plaintiff, the option of removing 20 inches of the flashboards, thus reducing the head of water and the ponding capacity of the race by 20 inches, or having the damages which had accrued to Reason assessed and paying the same. The case was remanded to the court below, and the election was made by the present plaintiff to have the decree entered in form requiring a reduction of the ponding capacity by removing 20 inches of the flash-boards.

Plaintiff’s testimony tended to show that the damages resulting from the necessity of removing 20 inches from the flashboards were from five to eight thousand dollars. When the plaintiff rested, the circuit court directed a verdict for the defendant, saying:

“ The Supreme Court gave the plaintiff in this case the option of removing the flashboards or leaving them in. If he had left them in, as he might have done under the decision of the Supreme Court, then the only damages would have been what the damages were to the people who had been damaged by the overflow of the water, and, in the opinion of the court, when he removed those flash-boards without the consent or the knowledge of Mr. Birkett, he took it upon himself, and it appears in this case that he understood that if he did that it would damage or almost ruin his mill plant; while if he had left them there, as the Supreme Court gave him authority to do, and let the court assess the damages of Mr. Reason, it might have been much less than $5,000, as it appears in the bill of complaint he only claimed, I think, $500.”

We think the court was in error in this holding. The plaintiff’s right of action accrued at once when the representation that the deed carried with it a right to a 14-foot head was made and proved to be false, and the rule of damages prima facie would be in such case the difference between the value of the land as it is and what its value would have been if its condition and quality had been as represented. Page v. Wells, 37 Mich. 415; Jackson v. Armstrong, 50 Mich. 65.

It is true that the defendant might have shown in mitigation of damages that the plaintiff could have relieved himself in part of these damages under the terms of the decree of the Supreme Court by a payment of a less sum. This would not have defeated the right to recovery. But it is to be noted that this mill pond covered a large amount of ground, not all of which was owned by Reason, and that the plaintiff might have been compelled by other owners of land tó remove his dashboards or to compensate them for the injury to their land as well. So that it by no means appears that the plaintiff could have established his right to maintain this 14-foot head of dam by the payment of $500 or any other inconsiderable sum of money.

We think that the onus was thrown upon the defendant to show that the damage to the plaintiff was not as much as alleged, and that the case should have gone to the jury under proper instructions.

Judgment will be reversed, and a new trial ordered.

Grant, C. J., and Blair, Carpenter, and McAlvav, JJ., concurred.


author: Grant, O. J.

text:
    JOHNSON v. MICHIGAN UNITED RAILWAYS CO
    1. Carriers — Passengers — Wrongful Ejection — Grounds of Action — Contract for Transportation.
    In an action by a passenger against a carrier for wrongful ejection on refusal to honor a mileage ticket, it is incumbent upon plaintiff to prove that he had a valid mileage ticket, good for transportation according to its terms over the defendant’s road.
    3. Same — Tickets — Acceptance by Conductors — Effect as Estoppel.
    The acts of conductors in permitting passengers to.ride upon expired tickets, or upon tickets good only upon certain trains, though often repeated, do not estop the carrier to thereafter deny the passenger’s right to transportation contrary to the terms of his contract.
    3. Same — Ejection—Action—Evidence—Contract for Transportation.
    In an action by a passenger for wrongful ejection and refusal to honor a mileage ticket, not issued by defendant nor its immediate predecessor, but which defendant is shown to have honored without question for several months, evidence examined, and held, sufficient to sustain a verdict for plaintiff, especially as defendant offered no explanation of its apparent assumption of the contract and the facts were peculiarly within its knowledge.
    4. Same — Evidence—Admissibility.
    Though there was no direct evidence to connect defendant with the company appearing by the face of the ticket to have issued it, evidence by plaintiff that he had traveled over defendant’s road frequently between the date of defendant’s acquisition of the road and the date of his ejection, and that the validity of his ticket was never questioned, is admissible on the issue whether defendant had assumed the contract.
    Error to Calhoun; North, J.
    Submitted April 15, 1908.
    (Docket No. 81.)
    Decided May 26, 1908.
    Case by Henry F. Johnson against the Michigan United

      Railways Company for the wrongful ejectment from defendant’s car. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Sanford W. Ladd, for appellant.

      A. M. & C. H. Stearns, for appellee.
    The defendant owns and operates an electric inter urban railroad between the cities of Battle Creek and Kalamazoo with intermediate stations. Plaintiff on October 20, 1906, presented himself as a passenger on a car upon said road at a usual station in Battle Creek, asking for transportation to a place called the Guide Board, a distance of 6.94 miles. He presented to the conductor a mileage book reading as follows:
    “ Jackson & Battle Creek Traction Company.
    “ Mileage Book. 400 Miles.
    “ No. 2265.
    “Issued to
    “H. F. Johnson, Augusta, Battle Creek.
    “ Good only
    “When officially stamped and presented with coupons ( mileage strip) attached, subject to the conditions named hereon.
    “Void for passage after date cancelled in margin.
    “F. L. Potteb,
    “ Treasurer.
    “ Read all the Conditions and Notices hereon.
    “No. 2265.”
    Each coupon represented a mile. The ticket was issued subject to several provisions, the only one of which material here to note is:
    “Detachments will be made by the conductor to cover actual mileage traveled on his train.”
    The conductor proposed to detach 8 coupons, being transportation for 8 miles. The plaintiff insisted that he take but ?. Plaintiff’s testimony upon this point is as follows:
    “ The conductor came around for his fare, and as he came to me I handed up this book, and says: ‘ Guide Board, 7 miles.’ I mentioned 7 miles for the reason that some conductors have taken 8 from the book. He says: ‘Eight miles.’ ‘No,’I says, ‘seven.’ ‘Well,’ he says, ‘ Itake 8 from these books. I take 8 or nothing.’ ‘Well,’ I says, ‘you cannot take 8 from that book.’ He says, ‘I shall,’ and pulled out his slip, and I reached up and took hold of the book and says: ‘ Hold on ! Don’t take 8 miles. It is only 7 miles to the Guide Board.’ ”
    The conductor then demanded that he pay his fare unless he would consent to detaching 8 coupons. Plaintiff refused to pay, and the conductor ejected him from the car. He then brought this action to recover damages, claiming that his ejectment was unlawful. His declaration alleged that he owned a mileage book—
    “ Issued by, used by, and recognized by defendant as good for the payment of passenger fares upon and over said so-called electric interurban line.”
    He was allowed to amend his declaration by alleging that the mileage book was—
    “Issued by and sold by the Michigan Traction Company at its office in Battle Creek, which last-named company, the defendant herein, on or about the second day of May, 1906, succeeded and assumed the obligations imposed by said mileage book, and which was thereafter repeatedly recognized by defendant as good for the payment of passenger fares.”
    The defendant introduced no evidence.
    Plaintiff testified that when he purchased this ticket the title of the company was the Michigan Traction Company. He introduced in evidence a conveyance made by the Michigan Traction Company to the defendant by which the Michigan Traction Company conveyed to defendant all its franchises and property of all descriptions, real and personal, and also all property which said Michigan Traction Company had purchased from its predecessors at Battle Creek and Kalamazoo in 1898. The description in said conveyance covered the roadbed and route over which the plaintiff was a passenger. The date of the conveyance from the Michigan Traction Company to the defendant was May 2, 1906.
    Plaintiff further testified that he had traveled over this route from May 2d to October 20, 1906, during which time he had used all the coupons except about 90. On cross-examination he testified he didn’t know when he bought the ticket what company was operating the road.
    Plaintiff recovered verdict and judgment.
   Grant, O. J.

(after stating the facts). It was incumbent upon the plaintiff to prove that he had a valid mileage ticket, good for transportation according to its terms over the defendant’s road. The ticket on its face was not issued by the defendant or by its assignor, the Michigan Traction Company. There is no direct evidence of the legal existence of a road known as the “Jackson & Battle Creek Traction Company,” or that the defendant acquired the franchises and property of such a company. The ticket itself and its use over defendant’s road are the sole facts from which it can be inferred that such a company was once in existence. The deed from the Michigan Traction Company to defendant refers to franchises, rights, etc., purchased from its predecessors, but does not state who they were. If this were the only evidence tending to show the validity of the ticket, plaintiff would fail. His own evidence, however, is that he had traveled over the defendant’s road frequently between May 2d and October 20th, and that the validity of his ticket was never questioned. The dispute, in consequence of which plaintiff was ejected from the car, did not arise over the ticket, but solely over the number of coupons which should be detached to cover his proposed journey. Shortly after the trouble one J. M. Bramlette, evidently an officer of the company, wrote a letter to plaintiff regretting the occurrence, and asking for an interview with him. The letter had no reference to plaintiff’s contract of transportation.

The record is unnecessarily meager. We, however, may assume that in the course of its business the coupons taken up by the conductors were turned in to the office of the company, and that its collectors of fares accounted for money and tickets received. Is this evidence that the defendant had assumed the contract which the plaintiff had with the Jackson & Battle Creek Traction Company, and that it was valid? Where a conductor permits a passenger to ride upon an expired ticket, or upon tickets good only upon certain trains, common carriers are not estopped by these acts, though often repeated, to thereafter deny the passenger’s right of transportation contrary to the terms of his contract. Sherman v. Railway Co., 40 Iowa, 45; New York, etc., R. Co. v. Feely, 168 Mass. 205; 28 Am. & Eng. Enc. Law (2d Ed.), p. 197. Those and similar cases do not, however, apply to this case. It was there held that the acts of the conductor only waived the obligation of the contract as to the specific occasions. They did not change the terms of the contract or extend it. Those cases involved a violation of the plain terms of the contract. In this case the evidence tends to show an assumption of the contract made with some other company and a recognition of the liability of the defendant thereunder. We think the evidence sufficient to sustain the verdict, especially as the defendant offered no explanation of its apparent assumption of the contract and the facts were peculiarly within its knowledge. The evidence above referred to was received under the defendant’s objection and exception. It was all legitimate for the consideration of the jury in determining whether the defendant had assumed the plaintiff’s contract. They might fairly assume that the defendant would not for months carry out a contract for which it was not responsible.

We find no error in the record and the judgment is affirmed.

Blair, Montgomery, Carpenter, and McAlvay, JJ., concurred.


author: Grant, C. J.

text:
    ALEXANDER v. MUD LAKE LUMBER CO.
    1. New Trial — Grounds—Compromise Verdiot — Support prom Evidence.
    A verdict which is supported by the testimony of one witness is not necessarily a compromise verdict, though for less than the plaintiff claims, and the court instructed that if the jury disbelieved the plaintiff’s testimony they should find for the defendant.
    2. Evidence — Experts—Competency.
    A witness who had worked around sawmills all his life, had worked ten years as a filer, and had filed saws in a mill in which plaintiff was employed as a sawyer two years, was competent to express his opinion as to plaintiff’s competency as a sawyer.
    Error to Chippewa; Steere, J.
    Submitted April 16, 1908.
    (Docket No. 111.)
    Decided May 26, 1908.
    Assumpsit by Ellery Alexander against the Mud Lake Lumber Company for breach of a contract of employment. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Sharpe & Handy, for appellant.

      Doig & Doig, for appellee. •
    Plaintiff was employed as a sawyer by the defendant at its sawmill at $5 per day. He worked from May 26th to September 26th, when he was discharged. He testified to a contract of employment from May 26th to January 1st following.
    Defendant’s agent testified that he employed him at $5 per day without any specification as to the time. A witness for the plaintiff testified that he heard the oral agreement for employment, and that it was at $5 per day for the season. The mill shut down for the season December 1st. The balance due at #5 per day to January 1st was #389. After his discharge plaintiff earned $16 at other employment. The jury rendered a verdict for $264, which covered the time to December 1st, deducting the $16. The jury evidently believed the witness who testified to employment for the season;
    Defendant discharged plaintiff for alleged incompetency.
   Grant, C. J.

(after stating the facts).. Two errors are assigned.

The court erred in refusing to set aside the verdict and grant a new trial upon the ground that the verdict was evidently a compromise. Under the court’s instruction the jury would have been authorized to find for the .defendant if they disbelieved the plaintiff’s testimony, that he was employed to January 1st. The court did not instruct the jury that they might find a verdict based upon employment to the close of the season, December 1st. In deciding the motion the court said that there was some warrant for making the motion based upon his charge, but an examination of the testimony led him to the conclusion that he went further in the charge than was warranted by the evidence, and that the jury believed the testimony of the witness who testified to a hiring for the season. The court therefore found that it was not necessarily a compromise verdict. In this conclusion we agree with the trial judge.

One Southmead, a witness for the plaintiff, testified that he had had experience in sawmills for ten years as a filer, and that he had worked in mills nearly all his life • that he had filed saws in a mill in which plaintiff was employed for two seasons. He described the causes which result in “pulling off a saw.” He was then asked the following question:

“Q. Now, from your knowledge of sawmill work, and from what you saw of Mr. Alexander’s work at that time, you may state whether or not you consider him a competent sawyer.
“A. I think that Mr. Alexander was an average sawyer, although at the mill that I was in Mr. Alexander was on the night shift all the time and was sawing a different class of logs; at that mill all the logs were sorted, and the day crew had the best show of it; he was working on the night crew.”

This testimony was admitted under objection and exception. The objection is that the witness was not shown to have sufficient knowledge upon which to base an opinion as to the competency of the plaintiff. We think the testimony was competent, even under the decision cited by the defendant (Lewis v. Emery, 108 Mich. 641). It was not necessary that the witness should have been a sawyer in order to become a competent witness. He had had a long experience in sawmills, had observed the plaintiff’s work, was able to compare it with others, and testified to other things which rendered him competent to give an opinion.

Judgment affirmed.

Blair, Montgomery, Carpenter, and McAlvay, JJ., concurred.


text:
    HARMON v. OLD DETROIT NATIONAL BANK.
    ' 1. Banks and Banking — Payment of Forged Paper — Fictitious Payee.
    Where, in an action by the receiver of a railroad company against a bank to recover money paid by defendant out of the funds of the company on a forged warrant, plaintiff showed that a trusted employé of the company erased or caused to he erased, with the aid of others, the name of the real payee and substituted the name of another, who was either a fictitious person or a real one unknown to the drawer, a prima facie case of a fictitious payee was made out.

    2. Same — Deposits—Accounting—Burden of Proof.
    As between a depositor and a bank, the burden of proving payment by a valid check or other voucher is upon the bank.
    3. Same — Payment of Forged Paper — Fictitious Payee — Payment Through Other Bank.
    Where a bank pays a forged check, or one upon which the name of a fictitious payee has been fraudulently substituted, the fact that the check came to the paying bank through other banks does not relieve it of the duty of investigation to determine the identity of the original presenter with the payee named in the check, and if the paying bank chooses to rely upon the identification accepted by the bank which cashed the check, it does so at its own risk.
    4. Same — Fictitious Payee — Statute—Application.
    • Section 4870, 2 Comp. Laws, making checks drawn in favor of fictitious payees payable to bearer, has application only to cases in which the drawer knowingly draws the check to the order of a fictitious payee, and hence does not apply to a case where a trusted employé of a railroad company fraudulently erased the name of the proper payee in a valid warrant and substituted the name of a fictitious person.
    5. Same — Forged Paper — Duty of Paying Bank.
    Where, after a proper voucher and warrant issued at Detroit by a railroad company had been approved by the necessary officers, a trusted employé fraudulently caused the name of the proper payee to he erased and one unknown to the maker substituted, and the warrant in due course of business was mailed to the address of the substituted payee in Chicago, and by someone cashed in Denver, the drawee was not relieved of the duty of using due diligence in identifying the payee, since such duty is not changed by the time or place of the forgery, unless the forgery was committed under such circumstances as to show negligence on the part of the drawer.
    6. Same — Burden or Proof.
    Where a warrant issued by a railroad company, payable at a bank in Detroit, was fraudulently altered, after approval, by the substitution, by a trusted employé of the railroad company, of the name of another person, or a fictitious person, as payee, and the warrant was, in the due course of business, mailed to the address given of the fraudulent payee in Chicago, and cashed by a bank in Denver, and subsequently received through several banks and paid by the drawee, the burden was upon the drawee, as between it and the drawer, to show the existence or non-existence of the substituted payee, and that the Denver bank took the proper means to identify him.
    7. Forgery —What Constitutes — Indorsement in Name of Fictitious Payee.
    Where, through the fraud of a trusted employé, a railroad company issued a warrant naming a fictitious payee, an indorsement of the name of such fictitious payee for the purpose of cashing the warrant was a forgery.
    Error to Wayne; Donovan, J.
    Submitted April 16, 1908.
    (Docket No. 95.)
    Decided May 26, 1908.
    Assumpsit by Judson Harmon, receiver of the Pere Marquette Railroad Company, against the Old Detroit National Bank for money had and received. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      Stevens, McPherson & Bills, for appellant.

      Henry A. Harmon (Harrison Geer, of counsel), for appellee.

      The defendant was one of the general depositaries of the Pere Marquette Railroad Company. The funds on deposit were paid out upon warrants issued by the company. Its method of doing business with the bank will appear from the following statement of facts:
    In May, 1905, the railroad company was indebted to the Sunday Creek Coal Company in the sum of $2,097.38. Its purchasing agent prepared a voucher-warrant for payment. This document was prepared on a printed blank. The first page of the document, called the warrant, constituted the check or warrant of the treasurer of the company on the bank. The warrant, as prepared by the purchasing agent, reads as follows:
    “Pere Marquette Railroad Company
    “ To the Sunday Creek Coal Co., Dr.
    (Pay W. N. Cott, Treas.), Columbus, O.
    “ Made 5/31/’05 Dept. No. 6706, April.
    “For coal per attached statement...........$2,097.38.”
    Below this were blanks for the signatures of the auditor of disbursements, comptroller, and treasurer, and for the signature of the payee upon presentation at the bank. Above the auditor’s signature is the following:
    “ I certify that this warrant is in accordance with an account approved by the proper officer and duly audited.”
    Above the comptroller’s signature are the words: ‘ ‘Approved for payment.” Above the treasurer’s signature is the following:
    “Will pay this warrant when properly dated and receipted if presented within 60 days from date stamped hereon.”
    All the above except the receipt of the payee appeared upon a carbon page called the voucher. Instead thereof there were blanks in which to show the manner in which the amount paid should be charged upon the books of the railroad company.
    The purchasing agent and his clerk who prepared the papers signed their names upon the voucher, and then the original warrant and voucher, with a statement of the coal to be paid for and original invoices thereof attached, were sent to the general manager for his approval. The general manager approved the payment by signing the voucher, and forwarded the papers to the president, who also approved the payment by signing the voucher, and then forwarded the papers to the auditor of disbursements. In the office of the auditor of disbursements, the papers passed through the hands of several clerks, each of whom had some particular duty to perform in relation to them, in verifying the computations, entering the transaction upon the books of the company, etc. Before the warrant had been signed by the auditor of disbursements, Edwin Murdock, one of the clerks in his office, fraudulently took the papers out of the office and sent them to Chicago, where the name and address of the payee named in the voucher was changed from “ The Sunday Creek Coal Co., Pay W. N. Cott, Treas., Columbus, 0.,”to “ The G. E. Fairbanks Coal Co., Pay G. E. Fairbanks, Treas., 407 Able Bldg., Cor. 63 St., Stewart Ave., Chicago, Ill.,” and the statements attached to the vouchers were changed in the same manner. The altered papers were returned by mail to the office of the auditor of disbursements, where a new warrant was prepared. This new warrant was made payable to “The G. E. Fairbanks Coal Co.” to accord with the altered voucher; and when some further entries in relation to the transaction had been made, the papers were, in the regular course of business, laid before the chief clerk of the auditor of disbursements for his approval. The new warrant above mentioned was signed by the auditor of disbursements without any knowledge or suspicion that the name of the payee had been changed after the voucher had been signed by the purchasing agent, general manager, and president of the company. The warrant was then sent to the treasurer of the company, who signed it and mailed it to the payee at Chicago, at the address shown in it.
    The indorsement stamped upon the warrant by the different banks through which it passed indicate that the warrant was cashed by someone at a Denver bank, forwarded by that bank to a bank in Chicago, which forwarded it to the American Exchange National Bank of Detroit, which collected the amount of the warrant from the defendant bank through the Detroit clearing house after an indorsement by the American Exchange National Bank of a guaranty of prior indorsements. This is all the light we have upon the history of the warrant from the time it left the office of the railroad company’s treasurer.
    The railroad company had no contract with the G-. E. Fairbanks Coal Company; never had any dealings with such a company; had never heard of the existence of such ' a company, and had no coal contract with anyone in Chicago.
    The warrant came to the defendant in the usual course of business and was paid. This suit is brought to recover the amount paid on the warrant on the ground that it was a forgery.
    The plaintiff requested the court to direct a verdict in his favor. This was refused, and the case submitted to the jury upon the theory that the railroad company was negligent in making and issuing.the warrant, and that where one of two parties must suffer, the loss must be borne by the one whose negligence caused it. The jury rendered a verdict' of no cause of action.

       As to who must bear loss where check or bill is issued or indorsed to imposter, see note to Land Title & T. Co. v. Northwestern Nat. Bank (Pa.), 60 L. R. A. 75.

   Grant, C. J.

(after stating the facts). The facts in this case are not in dispute, and are sufficiently above stated. The conclusion to be drawn from them is that a trusted employe of the railroad company erased or caused to be erased, with the aid of others, the name of the real payee and the substitution of another payee, and thus caused to be issued a forged warrant or voucher. The payee in the forged instrument was either a fictitious person or a real one unknown to the drawer. The plaintiff made a prima facie case of a fictitious payee. The defendant introduced no evidence that the payee was a real entity. The record is barren of any evidence tending to show to whom the payment was made by the. bank in Denver, Colorado, or under what circumstances it was paid. All that the record shows is that it was cashed in the Denver bank, and reached the drawee, the defendant, through other banks and was paid by it on July 1, 1905.

As between the depositor and the bank, the burden of proving payment by valid check or other voucher is upon the bank. No citation of authority is needed that he who receives money of another must account for its payment. As between the plaintiff and the defendant, the question is, Upon whom must the loss fall ? There is no claim of bad faith on the part of either. The facts being conceded, the question is one of law.

Plaintiff contends that the fraud or negligence» of plaintiff’s employé does not relieve the bank of its burden of proving that payment was made to the payee named in the warrant. Defendant insists that the officers of the company were negligent in not ascertaining that the voucher was forged; that it exercised due care in honoring it, bearing as it did the genuine signatures of the officers of the company. If the payee named in this voucher, the G. E. Fairbanks Coal Company, Pay G. E. Fairbanks, treasurer, had been presented to the defendant by one claiming to be G. E. Fairbanks, the treasurer of the Fairbanks Coal Company, would the defendant have been protected in payment without any investigation to determine the identity of the presenter with the payee named in the warrant ? It seems to us clear that it would not. The same rule must apply when the warrant or check is presented to it, coming through other banks. If the drawee chooses to rely upon the identification by the bank which cashed the check, it does so at its own risk, and its recourse is upon that or some intermediate bank. If the G. E. Fairbanks Coal Company was a fictitious payee the bank cannot defend under the statute (2 Comp. Laws, § 4870) that the check was payable to bearer. That statute applies only to cases where the drawer knowingly draws the check to the order of a fictitious payee. Armstrong v. National Bank, 46 Ohio St. 512; Shipman v. Bank of New York, 126 N. Y. 318; Hatton v. Holmes, 97 Cal. 208; Chism, Churchill & Co. v. National Bdnk, 96 Tenn. 649; Murphy v. National Bank, 191 Mass. 159; 2 Bolles on Modern Law of Banking, p. 716; 7 Cyc. p. 564.

In Shipman v. Bank of New York, it is said:

“We are of the opinion, upon examination of the authorities cited by counsel on both sides, that this rule applies only to paper put into circulation by the maker with knowledge that the name* of the payee does not represent a real person. The maker’s intention is the controlling consideration which determines the character of such paper. It cannot be treated as payable to bearer unless the maker knows the payee to be fictitious and actually intends to make the paper payable to a fictitious person,” citing authorities.

There are authorities to the contrary in this country, but the clear weight of authority in both England and the United States is in favor of this rule. If this warrant had been changed so as to make it a forged instrument after it had been issued by the railroad company, under all the authorities the defendant would not have been justified in paying the forged instrument. The time and place of the forgery are immaterial, unless the forgery was committed under such circumstances as to show negligence on the part of the drawer. But the drawee’s duty to use due diligence in identifying the payee of the check or warrant is not changed by the time and place of the forgery. This is not the case of U. S. v. Exchange Bank, 45 Fed. 163. In that case the drawer of the check, the postmaster, went with the fraudulent payee to the bank and identified him as the payee named in the check. In that case the fault was, of course, with the drawer and not with the drawee. To render that case applicable to this, it should have appeared that the proper officer of the railroad company went to the bank and identified the payee.

It was held in Roharts v. Tucker, 16 Q. B. 560:

“That a banker cannot debit his customer with the payment made to one who claims, through a forged indorsement and so cannot give a valid discharge for the bill; unless there be circumstances amounting to a direction from the customer to the bankers to pay the bill without reference to the genuineness of the indorsement, or equivalent to an admission of its genuineness, inducing the banker to alter his position, so as to preclude the customer from showing it to be forged.”

It is held in Murphy v. National Bank, supra:

“The ordinary rule is 'well established that a banker, on whom a check is drawn, must ascertain at his peril the identity of the person named in it as payee. It is only when he is misled by some negligence or other fault of the drawer, that he cqn set up his own mistake in this particular against the drawer,” citing authorities.

In this case the defendant took no precautions before paying the warrant to ascertain the identity of the payee. It did not show that it paid the warrant to the payee named therein. It evidently relied upon the identification made by the bank in Denver, Colorado, where the warrant was cashed, and whether that bank took the requisite precaution we do not know. It would naturally excite suspicion that, a check, drawn in Detroit, payable to a corporation in Chicago, on a bank in Detroit, should be presented to a bank in the distant city of Denver. It was clearly the duty of the Denver bank to take proper means to assure itself that it was paid to the proper party; in other words, to take proper means to identify the payee. 2 Morse on Banks and Banking (4th Ed.), § 466 (6); Ellis & Morton v. Trust Co., 4 Ohio St. 628. The court in that case said:

“ Where negligence reaches beyond the holder and necessarily affects the drawee, and consists of an omission to exercise some precaution, either by the agreement of the parties or the course of business devolved upon the holder, in relation to the genuineness of the paper, he cannot, in negligent disregard of this duty, retain the money received upon a forged instrument.”

The negligence of the Denver bank is imputable to the defendant.

In Graves v. American Exchange Bank, 17 N. Y. 205, a draft was sent payable to order of Charles F. Graves. It reached a person in the same place by the same name, and by him was indorsed and paid by the drawee. It was held that the payment, although made in good faith, did not divest or impair the title to the true owner who had not seen or indorsed the paper. It was held in fact to be a forged indorsement.

It was held in Third Nat. Bank v. Merchants' Nat. Bank, 76 Hun (N. Y.), 475, that it is the signature of the payee that transfers title to a check; that the signature of another person by the same name as the one to whom it was drawn, is just as much a forgery as if the names had been different. It is the signature of the payee that transfers title to the check. A similar holding is in Indiana Nat. Bank v. Holtsclaw, 98 Ind. 85.

It was held in First Nat. Bank of Chicago v. Pease, 168 Ill. 40, that the fact that the drawer of a check delivers it to a party representing himself as the payee’s agent, without investigating the alleged agent’s authority, is not such negligence as will relieve the bank from liability for the payment of the check on a forged indorsement of the payee’s name by the alleged agent.

If the payee named in the paid warrant was a fictitious person, the indorsement in the name of such fictitious party is in effect a forgery. Hatton v. Holmes, supra. If the G. E. Fairbanks Coal Company, and G. E. Fairbanks, treasurer, were fictitious parties, the indorsement was a forgery. If they were real parties the indorsement by any other without authority would be a forged indorsement and would not excuse defendant’s payment. It was incumbent upon it to show the existence or nonexistence of such a payee, and that the Denver bank took the proper means to identify the payee. It failed to sustain this burden, and therefore the verdict and judgment are set aside and a new trial ordered.

Blair, Montgomery, Carpenter, and McAlvay, JJ., concurred.


text:
    WEIDMAN v. WILLSON.
    Pleading — Declaration—Assumpsit—Waiving Tort — Trespass.
    A declaration on the common counts in assumpsit, counting specially for the use of water used by defendant on plaintiff’s premises and metered through plaintiff’s meter, will not sup. port a recovery on the theory that the entry upon plaintiff’s premises by defendant constituted a trespass for which, under section 11207, 3 Comp. Laws, plaintiff was entitled to recover in assumpsit, the statute not being referred to and counted upon, nor the fact of the trespass alleged, in the declaration.
    Error to Shiawassee; Miner, J.
    Submitted April 16, 1908.
    (Docket No. 97.)
    Decided May 26, 1908.
    Assumpsit by Frank Weidmart against Purvis S. Will-son for goods sold and delivered. There was judgment for defendant on a verdict directed by the court; and plaintiff brings error.
    Affirmed.

      Watson & Chapman, for appellant.

      George Pardee, for appellee.
   Montgomery, J.

This action originated in justice’s ' court. The declaration was on the common counts in assumpsit and specifically for the use of water in the building now occupied by defendant. The defendant recovered in the justice’s court, the plaintiff appealed to the circuit court, and on the trial of the case, at the conclusion of the testimony, the circuit judge directed a verdict for the defendant. The plaintiff brings error.

It appeared on the trial that the defendant had the right to possession of certain rooms in a building, the occupancy of other portions of which were in the plaintiff, and that defendant was accustomed to go into other portions of the building and use water which belonged to the plaintiff, and which was metered through his meter. It also appeared beyond dispute that the defendant was using this water under a claim of right, and that the circumstances were such as to repel any implication of a promise to pay. The circuit judge was of the opinion that plaintiff had not the right to waive the tort and sue in assumpsit, resting his decision on numerous decisions of this court, including Watson v. Stever, 25 Mich. 386; Grinnell v. Anderson, 122 Mich. 533; Tuttle v. Campbell, 74 Mich. 662.

In this court the defendant’s brief was first filed. The plaintiff now claims in his brief a right to recover, on the ground that the entry by defendant through the plaintiff’s building into the basement, where he made use of the water from the hydrant, constituted a trespass upon land, for which, under section 11207, 3 Comp. Laws, plaintiff was entitled to recover in assumpsit. It is by no means clear that this position was brought to the attention of the circuit court, and it is a sufficient answer to say that the declaration being on the common counts, the statute not being referred to and counted upon, nor the fact of the trespass alleged, in the declaration, the plaintiff is not entitled to recover on this theory. See Anderson Carriage Co. v. Pungs, 134 Mich. 79; Barbour v. Hurlburt, 137 Mich. 534.

The judgment is affirmed.

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


text:
    PECARD v. MENOMINEE RIYER SUGAR CO.
    1. Master and Servant — Personal Injuries — Negligence of Master — Failure to Promulgate Rules — Question for Jury.
    In an action by a servant against a beet sugar manufacturing company for injuries resulting from his being pinched be- • tween cars he was coupling, by reason of another car being pushed against them by other servants of defendant, evidence examined, and held, under the circumstances, a question for the jury whether defendant was not guilty of actionable wrong in failing to provide for some warning of the danger from the approaching car to be given to one occupying the position occupied by plaintiff.
    2. Same — Assumption of Risk — Knowledge of Conduct of Business.
    A servant who had no knowledge of the failure of the master to make rules governing the conduct of employés in moving cars about its yard, or to provide any warning to workmen engaged at a point where the moving of cars without warning would be likely to occasion injury, but on the contrary was unfamiliar with the master’s methods, and had no thought that an absence of any regulations on the subject would result in a car being pushed without warning against a car to which he was coupling another, did not assume the risk of injury from that source.
    3. Same — Dangerous Employment — Promulgation of Rules— Duty of Master.
    In a business conducted by many employés performing work independently of each other, and in which the work of one becomes periodically dangerous to another, it is the duty of the master to provide reasonable precautions against such danger, and amongst these is promulgating rules and regulations for the giving of warning to the persons likely to be endangered when such dangerous acts are about to be per.' formed.
    4. Same — Contributory Negligence.
    A servant ordered by his foreman to couple a standing car to one being moved against it was not negligent in takihg his position between the cars for that purpose so as to defeat his recovery for an injury caused by another car being pushed without warning against the standing car from the opposite direction.
    Error to Menominee; Stone, J.
    Submitted April 16, 1908.
    (Docket No. 101.)
    Decided May 26, 1908.
    Case by Adolph' Pecard against the Menominee River Sugar Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      L. D. Eastman (E. G. Eastman, of counsel), for appellant.

      Doyle & Tracy, for appellee.
   Montgomery, J.

The defendant was engaged in the business of manufacturing sugar from sugar beets. On its premises was situated a beet shed into which were run railway tracks upon which loaded cars were taken in and the beets unloaded, and the testimony shows that as occasion required, the empty cars were taken out by the switch engine, or if the switch engine was not at hand, the cars were pushed out by the men employed in unloading beets. The plaintiff was employed by the defendant to engage in the work of unloading beets on the 16th day of October, 1906. He commenced work at about 1 o’clock on that day, his work consisting of shoveling beets from a loaded car into one of the bins. He again worked on the 17th, his work being likewise confined to unloading beets. He testified that during, this time the only cars that he saw moved were moved by the switch engine, and that he did not know anything as to the rules and regulations of the company in the management of its business or of its cars, or how the cars should be operated. On the morning of the 18th, he went to work at 7 o’clock. Shortly after that time he was called out by the foreman, whose duties included those of a yardmaster, and directed to throw the beets which had fallen over onto the track up into the shed. He was engaged in this business but a few moments when he was called by the foreman, Mr. Morrow, — there being at the time two cars standing on the tracks at a considerable distance outside the shed, one of which was a dead car and the other of which was being propelled by the men pushing it towards the dead car,— and directed to open the coupling on the stationary car. Plaintiff crossed over the track and saw that the coupling was closed on the stationary car and on the approaching car was open, and he thought they were in fit condition to make a coupling. But he was again told to open the coupling. The. cars came together and bounded back, leaving a space of about four inches between them. Plaintiff then went in beside the dead car for the purpose of making the coupling. While he was thus occupied, other employes pushed from the direction of the shed against the dead car another car by hand, causing the dead car to move and come in contact with the other approaching car, caught plaintiff’s arm and so injured it as to necessitate amputation.

The case was tried before a jury, and upon a charge which left them to determine whether the plaintiff was called outside the line of his employment without proper instruction as to the danger of the same, and second as to whether thé defendant was guilty of negligence in not having provided rules or regulations for the government of its business which should prevent such an occurrence as that in question, the jury found a verdict in favor of the plaintiff.

The sole error assigned is that the court erred in refusing to instruct the jury to find a verdict for the defendant as requested by counsel for the defendant, and we are only concerned in determining whether there was a case to go to the jury on any theory within the pleadings.

The evidence indicates that no rules or regulations were made to govern the conduct of the defendant’s employés in this business, or to provide any warning to workmen engaged at a point where the moving of these cars without warning would be likely to occasion injury. It further shows that the plaintiff had no knowledge of the failure of the company to make such provision. The foreman testified, it is true, that there was not anyone who had authority to order the special car in question pushed out so as to bump into that car. But he also testified that he had—

“ Given orders to McGowan to push some of the cars out to clean the tracks; that is the only order. That order did not refer to any particular car, or to any particular moment. That simply referred to clearing that track of empty cars for cleaning purposes. By that, I mean cleaning up the beets off the track.”

We think it was a question for the jury as to whether the defendant was guilty of actionable wrong in failing to provide, under these circumstances, for some warning of the danger from the approaching car to be given to one occupying the position which this plaintiff did. It is not a case where a plaintiff, with full knowledge of the methods of the defendant, had assumed the risk. On the contrary, he was unfamiliar with those methods, and had no thought that an absence of any regulation on the subject would result in such reckless conduct as to push this car against the dead car at which he was lawfully stationed.

The case is very similar in its facts to that of Polaski v. Pittsburgh Coal Dock Co. (Wis.), 114 N. W. 437. In that case it was necessary for certain workmen employed on the dock of the defendant to pass over and across a railroad track upon which it was the custom of the defendant to move cars by hand, which was usually done by attaching a hook to either the front or the rear of the car and propelling it in this way. The plaintiff had ■been ordered to cross the track to the opposite side of the dock, and, while crossing, was struck by a car propelled from the rear by one of the defendant’s workmen and injured. The evidence showed that no rule had been promulgated for governing defendant’s servants in the manner of running these cars, and the court said:

“Ina business conducted by many employés performing work independently of each other, and in which the work of one becomes periodically dangerous to another, it is the duty of the master to provide reasonable precautions against such danger, and amongst these is promulgating rules and regulations for the giving of warning to the persons likely to be endangered when such dangerous acts are about to be performed.”

The case of Gavigan v. Railway Co., 110 Mich. 71, is distinguishable for the reason that it does not appear that there was any neglect of a duty to promulgate proper regulations governing the conduct of the business.

It is contended that the plaintiff was guilty of contributory negligence in placing himself between these two cars. The answer to this is obvious. If there was any negligence on the part of the defendant at all, it was a negligence wholly disconnected with the act which the plaintiff was engaged in performing. For all that appears in this record, he could perform the duties which he undertook to do from between the cars where he placed himself with perfect safety except for the intervening and unexpected propulsion of this additional car against the dead car before which he was standing. It was not contributory negligence to fail to anticipate this.

We think there was a case for the jury, and judgment will be affirmed.

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


text:
    WILLIAMS v. CRANE.
    1. Assumpsit — Action—Grounds—Common Counts.
    Recovery may be had by a servant, under the common counts in assumpsit, for the value of services performed, subject to a deduction for failure of plaintiff to perform his contract, where he left the service before completion of the contract period.
    2. Master and Servant — Action for Wages — Burden of Proof.
    Where the services of a servant are accepted by the master, and action is brought to recover their value, the burden is not upon the servant of proving faithfulness, but the burden of proving the contrary is upon the master.
    8. Same — Evidence—Fidelity of Servant — Suffioienoy.
    Evidence that a servant employed to conduct a farm sold some of the crops and applied the proceeds upon his own claim for services, it being inferable that both parties intended that course to be pursued, and that there were some items for which credit'was not given until attention was called to them, do not justify the court in saying as a matter of law that the servant was lacking in fidelity.
    4. Same — Action for Wages — Damages.
    After entering upon performance of a contract under which plaintiff was to work defendant’s farm for a share of the crops, the parties abandoned the contract and agreed that the relation between them should be that of master and servant, the term of service to begin at the time the tenancy began. Before the change in their contract relations plaintiff did some work for other people, for which he received pay, but no loss occurred to defendant in consequence of plaintiff’s absence while working for others. In an action by plaintiff to recover the value of his services, held, that defendant could not have credit for the money earned by plaintiff, but that he could not be charged with plaintiff’s time while earning it.
    5. Same — Value of Services — Evidence.
    Where defendant testified that plaintiff’s compensation for running his farm was to depend upon the good results ob-tamed, he could not complain that plaintiff introduced testimony to show the value of the crops produced under his management.
    Error to Lenawee; Chester, J.
    Submitted May 4, 1908.
    (Docket No. 83.)
    Decided May 26, 1908.
    Assumpsit by James M. Williams against Arthur P. Crane for work and labor. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    Smith, Baldwin & Alexander, for appellant.

      John L. O’Mealey (Bird & Sampson, of counsel), for appellee.
    Defendant, a resident of the city of Adrian in this State, owns a farm located several miles distant. Plaintiff became defendant’s tenant on this farm April 1, 1903, under an arrangement whereby each was to have a share of the crops raised and sold. In August of that year it was agreed that their relation should be that of master and servant instead of landlord and tenant, and that this relation should date back to April 1, 1903. No stated wages were agreed upon. Defendant testifies that plaintiff’s wages should depend “upon the good results obtained,” while plaintiff testified that defendant said: “I will guarantee I will satisfy you.” Under this arrangement the farm was carried on by plaintiff. He harvested the crops, marketed a portion thereof, used part of the proceeds in paying the expenses and applied the balance upon his claim for wages. Plaintiff testifies that in December he went to defendant’s house— ■
    “In Adrian and asked him what he had made up his mind as to what the value of the work was worth, and he said he didn’t have time to talk with me that day. I said that I would like to know because it was getting along to the end of the year and if I could agree on a price I just as soon work for him in the future as anybody. I saw him next in February and asked him if he was ready to settle up. * * * I was not able -to see him between the time in December and sometime along in February. I said it is drawing now toward spring and I want to know whether I am going to stay or not, if I am not I want to know it; I want to know what I am going to get out of my summer’s work and be in shape to take another farm. He said he didn’t have time to take it up that day. * * * I told him I was going to move by the first of March and I wanted someone there to take my place. * * * He said there were some things there he did not understand, and some day when we got together he would look it over with me. But that day never came. * * * I told him I would give him until the 10th of March to get someone there to také my place. * * :|: I remained on the farm until the 10th of March ” and on that day he' left.
    In May he brought this suit declaring upon the common counts in assumpsit, furnishing a bill of particulars and recovered a verdict and judgment for the reasonable worth of his services. Defendant seeks a' reversal on various grounds, which will be discussed in this opinion.
   Carpenter, J.

(after stating the facts). The

first question for consideration arises from the contention of defendant’s counsel that recovery should not have been permitted upon the common counts'in assumpsit. We do not think this question a doubtful one. Under the testimony in this case, plaintiff had performed certain services for defendant for which he was entitled to be paid money. Even if it were true, as defendant contends, that plaintiff was bound to stay until April. 1, 1904, he would, none the less be entitled to recover, subject to a deduction for failure to perform his contract, and this recovery could be had under the common counts in assumpsit. Allen v. McKibbin, 5 Mich. 449; Bush v. Brooks, 70 Mich. 446.

It is insisted that plaintiff could not recover because he did not perform the burden resting upon him of proving that he was a faithful servant. Indeed, it is urged that his testimony respecting the sale of the crops and the application of a portion of the proceeds upon his own, claim proves his lack of fidelity. It is not true that there rested upon plaintiff the burden of proving fidelity. When the services of a servant are accepted and received, as in this case, the burden of proving the contrary rests upon his employer. Nor can it be said in this case that the testimony of plaintiff negatived his fidelity to his employer. The sale of the crops and the application of the proceeds were, under the circumstances disclosed by this record, presumably in accordance with the contract of employment. It is to be inferred that both parties intended that course to be pursued.

The point is also made that there were some items which plaintiff improperly failed to credit to defendant. When these were brought to his attention, plaintiff admitted his error and said they should be credited. This does not justify our saying as a matter of law that plaintiff was lacking in fidelity.

Before the altered relations between the parties to this suit, plaintiff had done some work for other people, for which he was paid a certain amount of money. Defendant insisted that he should have credit for this money. The trial court denied this and held that defendant should not be charged with plaintiff’s time while he was earning this money. It does not appear from the testimony that any loss occurred to defendant in cqnsequence of plaintiff’s absence while working for others. Under these circumstances, we think the rule applied by the trial judge the correct rule.

Plaintiff was asked this question:

“Have you made an estimate as to what had been sold off the farm during the year that you were there, and the value of what remained to be sold as the products of the farm, what it would yield for that year, and as to how much it would amount to ?”

Defendant objected, upon the ground that this was immaterial and incompetent, and the witness answered, “ something over $1,600.” We do not think the ruling of the trial court erroneous. If the jury had believed defendant they would have had occasion to use this testimony, for, according to defendant, plaintiff’s compensation depended upon the good results produced. Defendant cannot complain because plaintiff introduced testimony which would be needed in the event of his being credited as a witness.

Other complaints are made, but they disclose no reversible error, and their discussion would be of no service to the parties or to the legal profession.

The judgment is affirmed.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


author: Mooee, J.

text:
    CHURCHILL v. COMMON COUNCIL OF CITY OF DETROIT.
    Intoxicating Liquors — Regulation op Trappio — Detroit Charter-Power op Municipality — Restricted District.
    Under the authority granted by its charter (sections 184, 186) to license and regulate the sale of intoxicating liquors, the common council of the city of Detroit has authority to enact an ordinance establishing limits beyond which saloons shall not be allowed.
    Certiorari to Wayne; Hosmer, Brooke, Rohnert, Donovan, and Mandell, JJ.
    Submitted May 5, 1908.
    (Calendar No. 22,516.)
    Decided May 26, 1908.
    Mandamus by John W. Churchill to compel the common council of Detroit to approve a liquor bond. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      Alex. J. Q-roesbeck, for relator.

      P. J. M. Hally, for respondent.
   Mooee, J.

The relator, desiring to engage in the saloon business at 772 Porter street in the city of Detroit, filed his bond in due form. The common council rejected the bond because it provides for the establishment of a saloon in the restricted district defined in an ordinance passed on the 20th day of July, 1907, wherein the common council' prescribed where saloons in which spirituous, intoxicating, or malt liquors are sold as a beverage might not be located. Relator applied to the circuit court for a writ of mandamus to compel the common council to approve his bond. The court denied his petition. Certiorari is brought to review that action.

The only authority of the city of Detroit to pass the ordinance is found in sections 184 and 186 of the charter, the material portions of which are as follows:

“Section 184. The said council shall have power * * * to license and regulate the selling or giving away of any ardent spirits, or any other intoxicating liquors by any shopkeeper, trader, grocer, inn, hotel or tavern keeper, keeper of any ordinary, saloon, recess, victualing or other house, or by any other person, in case the selling or giving away of ardent spirits or other intoxicating liquors and licensing the sale thereof, shall hereafter be authorized by the law of the State.
“ Section 186. The common council shall have power to license and regulate the keepers of hotels, taverns and other public houses, grocers and keepers of ordinaries, saloons, victualing or other house or place for furnishing meals, food or drink.”

There is no express provision of the charter giving the city power to regulate and prescribe the location of saloons or places where intoxicating liquors are sold or given away, nor is there any provision expressly giving the common council the power to suppress saloons. It is claimed that, as the charter does not in express terms give the right to establish the location of saloons, the action of the common council in establishing saloon limits is void. Counsel cites, in support of this contention, Timm v. Common Council of Caledonia Station, 149 Mich. 323, and claims that the reasoning contained in the opinion supports this contention. That case is easily distinguishable from the case at bar. In the charter of the village of Caledonia Station, there was no power conferred to regulate the traffic. In the charter of Detroit the power to regulate is conferred upon the common council.

The power to regulate has been defined as meaning:

“To adjust by rule, method or established mode; to direct by rule or restriction; to subject to governing principles or laws. The term is one of broad import. A power to regulate does not properly include a power to suppress or prohibit, for the very essence of regulation is the existence of something to be regulated. But the power to regulate a business, trade, etc., authorizes a municipality to confine the exercise of such business to certain localities, to certain hours of the day, etc.” 24 Am. & Eng. Enc. Law (2d Ed.), p. 243.

See, also, cases cited in the note.

We think the case within People v. Blom, 120 Mich. 45, and the many cases therein cited. See, also, Love v. Judge of Recorder’s Court, 128 Mich. 545.

The judgment is affirmed.

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


text:
    DANIELS v. BAY CITY TRACTION & ELECTRIC CO.
    1. Appeal and Error — Review—Questions Considered — Relief Prayed.
    The court will not enter into a doubtful legal question involved in a case where the plaintiff in error requests that, unless the case can be reversed and no new trial granted, it be affirmed, and the case is not one in which the court would deny a new trial.
    2. Same — New Trial — Necessity.
    On error to review a judgment against a street-railroad company for injuries to the driver of a vehicle, the court will not deny a new trial on reversing the judgment, where it is inferable from the record that on retrial plaintiff might establish a custom on the part of the defendant to stop its cars and permit drivers, situated as was plaintiff, to cross its tracks in safety, and that he relied upon such custom, thereby relieving himself from contributory negligence.
    Error to Bay; Collins, J.
    Submitted May 6, 1908.
    (Docket No. 107.)
    Decided May 26, 1908.
    Case by William H. Daniels against tbe Bay City Traction & Electric Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Weadock & Duffy, for appellant.

      John Brigham, (De Vere Hall, of counsel), for appellee.
   Carpenter, J.

For a statement of this case see 143 Mich. 493. There we reversed a judgment in favor of the plaintiff, and ordered a new trial. It has been retried and a verdict of $500 rendered in plaintiff’s favor. Defendant brings the case here for review. The case made by plaintiff upon the second trial is not materially different from that shown by the former record. In a legal sense it is certainly no weaker. Defendant’s counsel has taken an unusual course. He asks us to reverse the judgment without granting a new trial, and says that unless we take ■ that course that he requests the judgment to be affirmed. In view of this request, we are not justified in entering into a consideration of the doubtful legal question involved — a question upon which the Justices who sat on the former hearing of this case differed. For whatever might be our conclusion respecting that question, we are bound to say that this is not one of those unusual cases where we would decline to grant a new trial.

In this connection it should be stated that, from this record, it may be inferred that on a new trial plaintiff may establish a custom on the part of the railway company to stop its cars and permit drivers of vehicles, situated as was plaintiff, to cross its tracks in safety. He ought not to be deprived of the right of establishing this, as he would be by denying a new trial, and of contending that because he relied upon this custom (see Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99) that he was not guilty of contributory negligence.

The judgment is affirmed.

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


author: Moore, J.

text:
    PEOPLE v. CASE.
    1. Intoxicating Liquors — Regulation—Municipal Ordinance-Exclusion of Females — Validity—Constitutional Law.
    A municipal ordinance to “restrain, license and regulate saloons,” etc., which provides that “no person licensed under this ordinance shall harbor or employ any females in or about his or her place of business, or permit females to resort to his or her place of business for the purpose of drinking,” is not invalid as an unwarranted discrimination against females and an infringement of their rights, privileges, and immunities, granted by the Constitution, but is a valid exercise of the police power.

    2. Same — Ordinance—Validity—Flint Charter.
    The charter of the city of Flint (Act No. 420, Local Acts 1905), by section 10 of chapter 15 of which power is conferred upon the common council to prevent vice and immorality, and to restrain, license and regulate saloons and other places where intoxicating liquors are sold, authorizes an ordinance prohibiting women from resorting to places where liquors are sold for the purpose of drinking. *
    Exceptions before judgment from Genesee; Wisner, J.
    Submitted May 7, 1908.
    (Docket No. 124.)
    Decided May 26, 1908.
    Edgar D. Case was convicted of the violation of an ordinance.
    Affirmed.

      Johnson & Landon (Bundell & Stockton, of counsel), for appellant.

      John H. Farley, City Attorney, for the people.

       As to constitutionality of police regulations excluding women from places of business, see note to Gastineau v. Com. (Ky.), 49 L. R.A. 111.

   Moore, J.

Respondent was arrested on a warrant, the charge contained therein being for a violation of an ordinance of the city of Flint entitled:

“An ordinance to restrain, license and regulate saloons and other places where intoxicating liauors are sold, and prescribe the location thereof.”

The particular section of the ordinance of which a violation by respondent was'charged reads as follows:

“Section 5. No person licensed under this ordinance shall harbor or employ any females in or about his or her place of business, or permit females to resort to his or her place of business for the purpose of drinking.”

The cause was tried before the circuit judge, without a jury, and upon the trial it was conceded that the charge contained in the complaint and warrant correctly charged a violation of the ordinance, and that such ordinance was duly adopted and in force at the time of the commission of the act charged. It was conceded that on the 15th day of June, 1907, the respondent, being a duly licensed saloon keeper under such ordinance and engaged in the business of selling and keeping for sale intoxicating liquors, permitted certain women to resort to his place of business for the purpose of drinking, contrary to the terms of said ordinance, and the only question left for the determination of the circuit judge was whether section 5 of the ordinance is valid under the Constitution and laws of the State of Michigan.

The court found the ordinance was a valid exercise of the police power and that the respondent was guilty. A judgment was duly entered on such conviction and sentence thereunder was deferred until respondent should have an opportunity to review the action of the circuit court.

The question is whether the ordinance, and particularly section 5, under which respondent was convicted, is in contravention of the Constitution and laws of the State of Michigan.

The theory of counsel for respondent, and upon which the principal contention seems to be based, is that the ordinance in question is an unwarranted discrimination against the rights of females, that women are granted equal rights, privileges and immunities by the Constitution ; and that the ordinance in question is an infringement on these constitutional rights, and therefore void. Also that the provisions of the special charter of the city of Flint are not sufficiently broad to warrant the enactment of section 5 of the ordinance, in that it provides a vending of liquors contrary to the provisions of the State law.

This ordinance was before this court in Wells v. Torrey, 144 Mich. 689. It will be helpful to refer to the opinion in that case.

The charter of Flint (Act No. 420, Local Acts 1905, chap. 15) contains the following provisions: The first subdivision of section 10 is as follows:

“To prevent vice and immorality, to preserve public peace and good order, to organize, maintain and regulate a police force of the city, to prevent and quell riots, disturbances and disorderly assemblies, to protect the property of the corporation, and of its inhabitants, and of any association, public or private corporation, or congregation therein, and to punish for injuries thereto, or for unlawful interference therewith.”

The fourth subdivision is as follows:

“To prohibit the selling or giving of any spirituous, fermented, or intoxicating liquors to any drunkard or intemperate person, or any minor or apprentice.”

The fifteenth subdivision is as follows:

“To restrain and punish drunkards, vagrants, street beggars and other disorderly persons.”

The thirty-seventh:

“To restrain, license and regulate saloons and other places where intoxicating, or spirituous liquors or malt, brewed, fermented, spirituous, or vinous liquors are sold or to be sold, and to regulate and prescribe the location thereof; to forbid and prevent the vending or other disposition of any intoxicating liquors in violation of the laws of the State.”

The forty-first (forty-third in the revision of 1903 and forty-fourth in the revision of 1905), so far as it concerns this inquiry, is as follows:

“And further, they shall have authority to enact all ordinances, and to make all such regulations consistent with the laws and Constitution of this State, as they shall deem necessary for the safety, order and good government of the city, and the general welfare of the inhabitants thereof.”

It will be observed that very broad police powers are conferred upon the common council, one of which is to prevent vice and immorality, another of which is to restrain, license, and regulate saloons and other places where intoxicating liquors are sold.

We have had occasion to construe a charter conferring the right to regulate the business of selling intoxicating liquors in the case of Churchill v. Common Council of Detroit, ante, 93. It is not necessary to repeat what was said in the opinion in that case, but reference is made thereto.

In the recent case of Muller v. Oregon (U. S.), 28 Sup. Ct. 324, there is an interesting discussion germane to the principles involved here. The legislature of Oregon passed a law limiting the hours of labor of women employed in laundries to ten hours daily. The law was attacked as unconstitutional, one of the reasons being that it was class legislation because it applied only to women. The supreme court held, thereby sustaining the State court, that the, law was not unconstitutional.

In Ex parte Hayes, 98 Cal. 555 (20 L. R. A. 701), the court construed an ordinance prohibiting the sale of liquors in places where females attend as waitresses. In disposing of the case the court said in part:

“ The fundamental principles which underlie and support legislation of this character were announced by this court in Ex parte Christensen, 85 Cal. 208, and also received an exhaustive discussion by the Supreme Court of the United States in the case of Crowley v. Christensen, 137 U. S. 86; and upon the authority of those cases we hold that the ordinance under consideration here is a valid exercise of the power conferred by section 11 of article 11 of the constitution of this State upon counties, cities, and towns to make ‘ all such local police, sanitary, and other regulations as are not in conflict with general laws.’
“It is claimed, however, by the counsel for the petitioner that the ordinance makes a discrimination against women in the matter of employment, and is therefore in conflict with section 18 of article 20 of the constitution of this State, which is in these words:
“ ‘No person shall, on account of sex, be disqualified from entering upon or pursuing any lawful business, vocation, or profession.’
“ This section does not, in our opinion, operate as a limitation upon the power of the State or its municipalities to prescribe the conditions upon which the business of retailing intoxicating liquors shall be permitted to be carried on, or in regulating the manner in which such business shall be conducted.”

In Adams v. Cronin, 63 L. R. A. 61 (29 Colo. 488), in disposing of the case the following language was used:

“If a discrimination is made against women solely on account of their sex, it would not be good; but if it is because of the immorality that would be likely to result if the regulation was not made, the regulation would be sustained. That injury to public morality would ensue if women were permitted without restrictions to frequent wine rooms, there to be supplied with liquor, is so apparent to the average person that argument to establish so plain a proposition is unnecessary. But if some people might not be willing to concede this, it is enough to say that the general assembly, speaking through the city council, with whom the decision entirely rests, has so determined. Women, therefore, may properly be excluded from wine rooms, as this ordinance provides; and if they have no constitutional right to insist upon being admitted to places there to be supplied with liquor when the effect would be demoralizing to society, a fortiori the saloon keeper may be prevented from furnishing them facilities for contributing to that result. * * *
“This ordinance does not operate as a discrimination between different licensees. It applies equally to every one of that class, and the fact that it restricts- the classes or persons to whom sales may be made in certain places or localities does not make it invalid. All courts can readily see that the restrictions therein found and the classification made with respect to the persons permitted to frequent wine rooms for supplying themselves there with liquor are based upon reasons that have their seat in the facts of nature, and that such regulations are conducive to, and are reasonably adapted to secure, the worthy object of preserving public morality.”

Counsel for respondent cites the case of Gastineau v. Commonwealth, 49 L. R. A. 111 (108 Ky. 473). A reference to the case will show it to be easily distinguishable from the case at bar. In the footnotes to the case there is a collection of cases showing that the great weight of authority is in favor of the doctrine that ordinances of this character are within the police powers.

Judgment is affirmed, and the case will be remanded for further proceedings.

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