author: Montgomery, J. Grant, C. J.

text:
    DAVEY v. HALL & MUNSON CO.
    Injury to Employe — Assumption op Risk.
    The ends of the cross-planking of a tramway, on which plain tiff was employed as a driver, extended beyond the stringers from 8 to 14 inches. Many of them became broken, being of a poor quality of pine, and when so broken were never repaired. There was barely room for a person to stand upon them when a loaded car was on the track. The space between the rails was doubly planked, and was- maintained in a safe condition. Plaintiff, while lifting a derailed car, threw his weight on the end of one of the planks, and it broke and caused his injury. He had had five years’ experience about the tramway, and knew that the car could be replaced without his standing outside the stringer. Held, that he assumed the risk. Montgomery and Moore, JJ., dissenting.
    Error to Chippewa; Steere, J.
    Submitted April 5, 1899.
    Decided December 12, 1899.
    Case by James Davey against the Hall & Munson Company for personal injuries. From a judgment for . defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Warner & Sullivan, for appellant.

      E. S. B. Sutton (John W. Shine, of counsel), for appellee.
   Montgomery, J.

(dissenting). This is an action for personal injuries received by the plaintiff through the alleged negligence of defendant in failing to provide a safe place for plaintiff to work in, and to properly construct, inspect, renew, and repair a certain tramway upon which plaintiff was employed as driver, and a fall from which caused the injury. Defendant is the owner of a large lumber-manufacturing plant at Bay Mills, in Chippewa county, composed' of sawmills, factories, lumber yards and docks, and about three miles of elevated tramways. The tramways are about 12 or 15 feet above the ground, and constructed in bents built of 8x8 timbers, with two posts or uprights, a sill on the bottom, and a cap or crosspiece on the top. These bents are 16 feet apart, and support 4xl0-inch stringers, placed on their edges-. On the stringers, crosswise of the tramway, are the pine cross-planks, which are nailed to the stringers. On the cross-planking, and directly over the stringer, is a bed-plate or plank, 2x10 inches, laid flat, upon which the iron rails rest which carry the tram-cars. The particular tram in question in this case,' known as the “Grand-Stand Tram,” was built six years prior to the injury of plaintiff; and planks taken from another tram, known as the “Canadian Tram,” where they had already been in use a number of years, were used for the cross-planking. These planks were not sound when put in the Grand-Stand tram, and the attention of the foreman was called to that fact. This cross-planking all along the tramway extends out beyond the stringer and bedplate from 10 to 14 inches; the ends being without support underneath or covering on top. It is claimed by defendant that these ends were not a necessary part of the tramway, which it was its duty to keep in repair; while plaintiff claims they were an essential part of the tramway, upon which it was frequently necessary for himself and other employes to walk or stand. The cross-planking between the rails was covered with boards called “sheathing,” laid lengthwise of the tram and crosswise of the planking, upon which the horse walked when drawing the cars; so that the only parts of the cross-planking which could be seen by the driver, when on the tram, were the ends which extended outside the bedpiece. Underneath the bedpiece, and between that and the stringer, this cross-planking had become decayed, —so much so that in places, where it became necessary to replace a broken bedpiece, the cross-planking would not hold the spikes; and the attention of the superintendent and foreman had been called to that fact. At frequent intervals along the whole tramway, ends of cross-planking had been broken off by lumber falling upon them, by cars running off the track, and in various ways; but the ends of the planking, so far as could be seen without taking up the bedpiece, appeared sound, according to the Weight of evidence, including the testimony of the defendant’s foreman, McKean. »

It was a frequent occurrence that tram-cars were derailed, and it then became the duty of the tram driver to call assistance, and get the car back on the rails. At the time of the injury, a car had become derailed, and plaintiff called assistance to get it back on the track. There is a dispute in the testimony both as to the usual method of putting derailed cars on the track, and as to the method employed by plaintiff; plaintiff claiming that he went about it in the usual way, which was the quickest way, and defendant claiming that the method employed was unusual and more dangerous. Plaintiff testified that, in case of a heavy load, it was usual and necessary to use a pry, and stand in the center of the track, but in the case of a small load it was not necessary. According to the plaintiff’s testimony, he had taken a short piece of 2x4 to use as a lever, and had stepped one foot outside the rail onto the projecting end of the cross-planking, and was standing in that position, one foot outside and one foot inside the rail, with the end of the 2x4 inside the rail for a purchase, and pressing against the forward wheel of the car to swing it on the track as the other men lifted up the end of the car; and as they lifted, and he put his weight on the foot outside the rail, in using the 2x4, the end of the plank broke short off between the bedpiece and the stringer, where it had become decayed, letting plaintiff fall to the ground below, breaking his leg and injuring his back. It is claimed on the part of the defendant that plaintiff stood at the side of the car, between the two wheels, facing directly against the side of the car, and attempted to pry the car on with a lever, standing on the end of the cross-planking. The plaintiff also testified that he stepped onto the end of the plank without making any examination to see' if it was sound, and that the defect from which it broke was rot underneath the stringer.

The circuit judge directed a verdict for defendant on the ground of plaintiff’s alleged contributory negligence— First, in adopting the more dangerous of the two methods in putting the car on the track; and, second, because “he took no pains to look to see whether this plank was weak or strong; that he did not observe to see whether it was rotten or sound.” The defendant also contends in this court that the ends of the plank were not a place to work provided by defendant.

The court below treated the case as a proper one for the application of the rule that where one has the opportunity of choosing between two methods of doing work, and chooses to adopt one which is obviously dangerous, the master is not responsible for the risk assumed. It seems to us that whether this case is a proper one for the application of this rule must depend upon whether, as matter of law, we are able to say that the ends of these planks were not intended for or adapted to the use to which they were put; in other words, whether the ends were a part of the tramway which the employés had a right to occupy in the performance of this duty. We are not prepared to say, as matter of law, that they might not have been so used with entire propriety. It is true, there was a method of lifting these cars onto the track without stepping onto the plank, but it appears it was not the only method. It might not have been the only safe method if the plank had been sound.

The plaintiff testified that he took no notice of the plank, as to whether it was sound or weak; that he was intent on getting the car on the track; that he saw there was at plank there to put his foot on. It is claimed this was. contributory negligence. We would have no hesitancy in holding that it was, if it appeared conclusively that an inspection of the plank would have disclosed its weakness; but the testimony on this point was contradictory. The question should, therefore, have been submitted to the jury.

Moore, J., concurred with Montgomery, J.

Grant, C. J.

The following facts are established by the evidence: These tramways were constructed in the usual manner and of the usual material. They are not constructed of the best and sound lumber, but of culled and knotty white pine. The ends of the planks are not supported, and extend from 8 or 10 to 14 inches outside the striqger. The plank between the rails is covered with inch boards, to make it safe for the horses and men in charge to walk on. Cars derailed frequently cut, indent, and break the ends of the plank. Many of the ends of the tramway where the plaintiff was hurt were thus broken. They were never repaired. In fact, the only way they could be repaired would be to raise the rail, remove the planks, and insert new ones. It was the duty of plaintiff and others to report any defects in the tramway to the tramway repairers provided by defendant. Defects in the ends of these planks were never reported, although they were known both to plaintiff and others. Pries were furnished for the purpose of raising the derailed cars and putting them upon the track. It was dangerous to walk upon these ends, and still more dangerous to stand upon them and lift, or to use them as a fulcrum to raise the cars. Mr. Hawes, the only witness for plaintiff besides himself, testified that it was dangerous and risky to get out upon them, even to walk. These single tramways were designed only for the use of the employes in charge of the horses and cars. They were not designed as passageways for other employes. The “ bunks,” as they are called, extend 6 to 8 inches over the sides of the cars, leaving barely room, as plaintiff testified, for a man to stand upon the end of the plank, with a loaded car upon the track. The ' danger in attempting to do so while a car is passing is apparent. The distance from the sides of the car to the ends of the planks did not exceed 4 to 8 inches. It is not possible that these spaces were intended for travel. Plaintiff had been at work in these yards and tramways for ijve years, and was perfectly familiar with their condition, but made no protest, apd never even suggested that the ends of the plank needed repairing. He stood upon this plank, ■and lifted, as he testified, with one foot outside the stringer and one in, or as another witness, who stood near him, testified, with both feet upon the end of the plank, without any examination or sounding of the plank. He testified that he took no notice of the plank at all, and stepped on it regardless of whether it was solid or weak. Under these circumstances, I think the instruction of the court was correct. I see no reason or justice in permitting a recovery. It would be dangerous to use the ends of even new pine plank as a fulcrum for lifting in the way the plaintiff did. It is probable that, had he sounded the plank with his lever, it would have disclosed the defect, if any there was. The pressure upon the plank must have been great, in the attempt to lift or push the car with the lumber upon it. No claim is made that the space between the rails was not in safe condition. The defendant furnished the means and a perfectly safe place and a safe way to lift these derailed cars upon the track. If plaintiff chose to use an unsafe one, he did so at his own risk. Goff v. Railway Co., 86 Wis. 237; Richmond, etc., R. Co. v. Bivins, 103 Ala. 142; Romona Stone Co. v. Phillips, 11 Ind. App. 118; Erskine v. Beet-Sugar Co., 71 Fed. 270; Gowen v. Harley, 6 C. C. A. 190, 56 Fed. 973; Shackelton v. Railroad Co., 107 Mich. 16; Perlick v. Wooden- Ware Co., 119 Mich. 331. There is no evidence of any express or implied instruction or direction to plaintiff or other employés to adopt the means which plaintiff did to replace these derailed cars. Even if other employés had adopted such methods, it would not bind the defendant, and compel it to respond in damages. Goff v. Railway Co., supra.

I think the judgment should be affirmed. It is so ordered.

Hooker and Long, JJ., concurred with Grant, C. J.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    SEYMOUR v. CANFIELD.
    Real-Estate Broker — Contract—Evidence.
    Evidence reviewed, and held not to establish an alleged agree ment by defendant to purchase, through complainant, certain timber lands on which complainant claimed to have an option.
    Appeal from Manistee; McMahon, J.
    Submitted October 4, 1899.
    Decided December 12, 1899.
    Bill by Richard A. Seymour against John Canfield for an accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Judkins & Perkins {Crane, Norris & Stevens and George L. Hilliker, of counsel), for complainant.

      Hanchett & Hanchett {Fitz Gerald & Barry, of counsel), for defendant.
   Hooker, J.

The bill of complaint in this cause is filed for an accounting, and claims a large sum to be due to the complainant. The dispute arises over a sale of lands, for convenience called the “Long Lake Group,” which, at the time negotiations commenced, belonged to Hannah, Lay & Co., of Traverse City. Torrent, of Muskegon, had some sort of a verbal order or option upon them. Lunney, who was in the employ of Torrent, is alleged to have obtained from Torrent a written refusal of the property for the period of 10 days, and to have arranged with Richard Seymour to aid him in finding a purchaser for it, commissions to be divided equally between them. Seymour had negotiations with the defendant, Canfield,— both being residents of Manistee, — and the latter sent estimators upon the land. Seymour claims that subsequently an agreement was made that Canfield should buy the timber and pay $400,000 for it, and that Seymour should care for the property until sold, and have half the profits, after paying Canfield 6 per cent, interest upon the investment and other funds advanced. Later, Canfield refused to purchase the land, and within a few days it was bought by Filer, a fellow townsman and friend of Can-field ; title being taken in the name of Filer. It was kept for several years, and ultimately sold for $850,000. The complainant now claims a share of the profits. This is an outline, merely, of the case from the complainant’s standpoint, and allusion to the testimony tending to establish or dispute the claim is purposely omitted in the statement. The circuit judge filed a lengthy opinion, which gives the case in detail, and discusses the evidence at length. Upon most of the disputed questions of fact he finds with the complainant, but dismisses the bill. The record contains 1,015 pages; and the briefs, 552 pages. Upon some points the evidence is circumstantial, and the briefs necessarily contain a much fuller discussion of the questions involved, and the reasons which should lead to the one or the other conclusion, than we can be expected to incorporate in any opinion we may write; and we shall have to omit the discussion of many circumstances that counsel attach much importance to, with the simple statement that we have attempted to give each-of them the full weight to which it is entitled. At the same time, we will, in a general way, give our reasons for our conclusions, though, being mainly a question of fact, a very brief opinion would ordinarily .suffice.

The important questions appear to be the following, viz.:

1. What were the dates, duration, and character of the alleged option given by Torrent, and its renewals ?

2. What contract was first made with Canfield, and how should it be construed ?

3. Was a second contract made between Seymour and Canfield, and, if so, what were its terms, and how should they be construed ? .

4. Did Canfield wrongfully refuse to perform this alleged second contract ?

5. Did he fraudulently procure the timber, or any part-of it, through Filer ?

6. If so, has the complainant a right to share the profits, if any were made by Canfield ?

We will not take these up in their numerical or chronological order, but.will examine first the arrangement made when Canfiéld’s attention was called to the matter. This appears to have been done by one O’Brien, an impecunious man, whose only connection with the transaction, arose from a conversation which he overheard between the complainant and his brother John in relation to some land which they hoped to get an option upon, and which bore over 100,000,000 feet of pine. Next day he saw complainant, and told him that he had a party who had plenty of money, and who would buy a large group of timber. He asked where this group was, but Seymour refused to-tell him, and said he was going to have a refusal of this group, and did not want to say anything about it until it was secured. According to O’Brien’s testimony, he saw Seymour again, and obtained his consent that he might speak to Canfield about it, which he did, and Canfield asked him to bring Dick Seymour down there. O’Brien and Seymour agree that, after obtaining an option, they went to see Canfield. There is nothing in Seymour’s testimony that tends to show that Canfield did more than to-say that he would be to the expense of sending an estimator to the land if h¿ could be assured that he could purchase the land if found satisfactory to him. Seymour himself said that he took the refusal to Canfield, together with an estimate made for Torrent, which was shown to have been 116,000,000, and told him that Hannah, Lay & Co. had it estimated at 112,000,000, and that he had estimated it himself, and made more. He afterwards stated that he made it between 119,000,000 and 120,000,000 feet. There is testimony in the case that he said he made it 130,-000,000. He testified further that Canfield said that the-time was too short to look over this, and he told Canfield that he thought it unnecessary for him to go all over the; land, and that lie had made an estimate of the land, and knew the timber was there. He further testified:

“Canfield said, ‘Can’t you get that extended?’ and I said, ‘I will try to get it extended.’ Then he asked me what I wanted to get out of this, and I told him I wanted 10 cents a thousand, by the estimate he was having copied; and he said, ‘Jim O’Brien, what do you want?’ and Jim O’Brien said, ‘ I want $5,000.’

“Q. What, if anything, was said at that time about other purchasers of the land ?

“A. Mr. Canfield asked me if I had sought any others, or was going to seek any others. I said: ‘ No; if you will send your men right there to look this up, I will trust to your buying it.’ He said, ‘My man is here, and I will send him in the morning.’ * * *

“Q. What did Mr. Canfield say with reference to his buying the land ?

Mr. Fitz Gerald: I object to it as leading.

“A. Mr. Canfield said he was in the market for pine, and he had the money to buy it and pay for it, if it was a good thing. He also told me: ‘Now,’ he says, ‘I don’t want to send my man there unless you will keep away from going anywhere else.’ He said, ‘I don’t want to be put to any expense.’ I said: ‘All right. If you want to buy this, you can have the first chance at it. Now, send your man.’ He said he would send him in the morning, and I know he did send him.”

This is the substance of the testimony on behalf of the complainant in relation to this interview, except that the price asked was $400,000, as it was said to have been fixed by the refusal. We think that it shows that Can-field consented to send an estimator, on condition that he could have an assurance that he could buy the timber in case he should want to do so after getting his estimate, and there is nothing to show that he promised to take the land unless he should choose to do so.

The next important question relates to the alleged second contract. The witnesses who testify to this are the two Seymours and Goldsborough. If we take their testimony to be true, we are still unable to find an unconditional agreement to purchase this timber for $400,000, in the face of Canfield’s explicit denial, and other circumstances which show the improbability of the testimony. In the first place, the cross-examination of Goldsborough is such as to discredit him, while ten or a dozen witnesses were produced who unqualifiedly testified that the reputation of the Seymours for truth and veracity was bad. About as many were called by the complainant, who testified that the reputations of these men were good. It cannot, therefore, be said that they stand impeached, but they are in a measure discredited by the fact that a number of apparently respectable persons were found who would testify to their bad reputations. There are, however, some circumstances which have an important bearing. It will be remembered that Canfield insisted upon having an estimate made before he would purchase, notwithstanding the fact that Seymour wanted him to act on information imparted by him. It is clear that the estimators did not start until the 29th or 30th of September, while this alleged agreement is said to have been made on the 8th of October. The estimators returned about the 12th or 13th. Hence, while Canfield may have had some reports from them, they were not complete. Again, it is a significant fact that the contract was not closed up, which there was no occasion for postponing, if, as counsel for the complainant contend, it was not conditioned on finding the quality and quantity of timber as represented. If, in the first talk,- there was any promise to buy at all, it was clearly conditioned upon the amount of timber that should be found by Canfield’s estimator, and no adequate reason is shown for believing that Canfield changed his mind or made a different promise before getting the estimate. Again, Seymour’s next interview does not indicate that he was then claiming that Canfield had made an unconditional agreement to purchase. He claims to have asked Canfield if he had heard from his inspectors; and again, after the inspectors had returned, and he had been told by Canfield that the inspection did not turn out as well as expected, he replied, “This is the last day of the option.” He then asked Canfield, “What have you made up your mind to do about it ? ” He testified further:

“I asked him if he was ready to purchase it, and had made up his mind. He said, ‘No.’ I told him it was Trind of bad for me, waiting with the expectation of his purchasing the timber, and not seeing anybody else. It left me unable to do anything. He then said he would make me an offer of $325,000 spot cash. I wired that offer in.”

The same day Seymour showed him a telegram refusing this offer, and stating that an offer of $400,000 had been made by others. Some days afterwards he and O’Brien went to see Canfield, and O’Brien claimed that Canfield had bought it, and demanded his commission. If it is true that Seymour and Canfield made the contract relied upon, it would seem natural that Seymour should have said something about it at these several interviews, and that he, as well as O’Brien, should have claimed commission.

In any view of the case that we can take, the testimony of these witnesses fails to show the alleged unconditional agreement. It indicates merely that a change of consideration was agreed upon, leaving Canfield under no greater obligation than to take the timber if found equal to the representations as to quantity and quality. Another convincing circumstance is that, to sustain the complainant’s claim, it is necessary to find that Canfield was willing to invest the same amount of money, to get half of the prospective profits, as the whole. His risk was substantially the same, because he was not entitled to reimbursement in case of loss. We are asked to believe that the motive was to save paying commissions amounting to $11,000 or $12,000. This is a most improbable proposition to come from a man of Canfield’s alleged sagacity. These and other circumstances not only lead us to conclude that the alleged contract is not supported by a preponderance of proof, but beget a profound conviction that no such contract was made. As this is sufficient to dispose of the case, we might omit further discussion, but we will allude-to one or two other matters.

We do not agree with the learned circuit judge that a written refusal at a price of $400,000 was ever in Seymour’s possession. Like many other important papers, it is said to have been lost; and there is no satisfactory evidence that Seymour ever sought to preserve it, although it is claimed to have been in Lunney’s safe for a long time after it became apparent that it was an important paper. The existence of this paper is said to be proved by Lunney, the two Seymours, O’Brien, and Ellis. The circuit judge held explicitly that Lunney was unworthy of belief, and we are-not satisfied that he was wrong about it. O’Brien did not read it; he only saw it, and heard Seymour read it. Ellis says that a paper was brought to him to examine, and, while he is not able to be very definite, he thinks it was a paper signed by Torrent, giving a right to buy timber for a large price, — $300,000 or $400,000, probably the latter, — upon the “ Long Lake Group,” so called. He-says it was signed by Torrent and Lunney, which nobody else claims. On the other hand, Torrent says he gave no-written refusal, and that he did not offer the lands for less than $4 per 1,000 feet stumpage to any one until he sold to Filer. Lunney testified in a former suit against Petrie, where he sought to recover somewhere from $6,000 to $12,000 as commissions for bringing about the sale to Filer, in which he admits that Seymour had a half interest, that the option was verbal. Haines, a partner of Torrent, of whom Seymour made some inquiries in relation to the matter, testified that Seymour said the price was $4 per 1,000 feet, and made no claim that Torrent offered it for $400,000; while Canfield says he was asked $4 per 1,000 feet, and that their negotiations were upon that basis.

If we were to say that Canfield was under obligations, to take the timber in case his estimate should show the existence of 112,000,000,116,000,000, 119,000,000, or 130,-000,000 feet, we would have to say that an estimate showing 103,000,000 feet would not require him to do so, and he would not be precluded from buying upon other terms from other parties. It is said that, under the original bargain, he would have paid about $410,000 for the timber. Conceding that Filer bought it for him at his request, the amount paid was $10,000 less than Seymour would sell it to him for, and he had a legal right to buy it. But he did not buy it. Filer had at least a half interest at all times, and if Canfield interested Filer, and was willing to take one-half at $200,000, instead of the whole at $410,000, it was nothing more than he had a lawful right to do. We need not, therefore, concern ourselves with the alleged concealment of Canfield’s true relations to the property or to Filer.

The decree of the circuit court is affirmed, with costs.

The other Justices concurred.


author: Hooker, J. Long, J.

text:
    STANTON v. FOSTER.
    Estates op Decedents — Widow’s Allowance —Residue—As- ■ SIGNMENT BY PROBATE COURT.
    Under 3 Comp. Laws 1897, § 9322, subd. 4, providing that, if the inventory of an intestate estate shows that it does not exceed in value $150 over and above the allowances to the widow, the probate court may, by a decree for that purpose, assign-the entire estate for her use and support, she acquires no property rights in such residue until the proper order is made by the probate court. Long, J., dissenting.
    Error to Sanilac; Beach, J.
    Submitted October 4, 1899.
    Decided December 12, 1899.
    Replevin by Thomas J. Stanton, executor of the last will and testament of Keziah J. Johnson, deceased, against Josiah H. Foster. From a judgment for plaintiff, defendant brings error.
    Reversed.

      G. F. Gates, for appellant.

      H. O. Babcock and E. G. Babcock, for appellee.
   Hooker, J.

Robert H. Foster died November 24,1894. Keziah J. Johnson, who lived and cohabited with him for many years, died September 29, 1896, leaving a will appointing the plaintiff executor, and he received letters testamentary on November 5, 1896. He took possession of the property in dispute (some horses and harrows) at once. They had been in testatrix’s possession after the death of Robert H. Foster. On March 1, 189?, the defendant was appointed administrator of Robert H. Foster. Soon afterwards he replevied the property from one Freeman Johnson, the hired man of the plaintiff, who had it in his custody. The record does not show what disposition was made of that case, but subsequently this action of replevin was commenced. In his opening, counsel for the plaintiff stated that the defendant’s father, Robert H. Foster, lived in Lamotte township, and Mrs. Johnson lived with him; that the harrows were purchased directly by her; that defendant’s father made the bargain for the horses, but, before it was completed, Mrs. Johnson signed the note given for them, and afterwards paid it; that, after Foster died, the horses were in her possession until her death, and no one disputed her right to them or made any claim to them until after she died. Testimony in support of this statement was introduced. The defendant introduced testimony tending to show that the property was owned by Robert H. Foster at the time of his death, and showed his death, and the appointment of the defendant as his administrator. At the commencement of the case, the plaintiff offered to show that the marriage of Mrs. Johnson and Robert H. Foster was illegal and void. This was objected to, but the testimony was admitted. The court ultimately held that it was insufficient to overcome the proofs of cohabitation as husband and wife. The defendant’s inventory of the estate of Robert H. Foster was admitted, against defendant’s objections.

After instructing the jury that the plaintiff should recover if the jury should find that Mrs. Johnson was the owner of the property by reason of her alleged purchase, the court said further:

“Now, there is another question. If you should find the property belonged to the husband, as a matter of fact, originally, before he died, the law gives the widow certain rights in the property of her husband when he died, — -the personal property, the chattel property. It gives her first $250 worth of household furniture absolutely. It next gives her selection of $200 worth of the remaining property absolutely. And then she is entitled to some other , allowances. Then, after these allowances are made and • the selections made, after taking these out, if the whole estate remaining does not exceed $150, the law gives the rest of it to her,— the personal property. Now, whether the husband owned this property, or the wife owned it, in his lifetime, and died, and his personal property, outside of the household furniture, did not exceed $350 in value, then it belonged to the wife. If inventoried to his estate, it would go to the wife, and that irrespective of the fact whether the probate court had made the assignment or not. I don’t retract one word. That statute refers to personal property. If the personal estate does not exceed $150 over and above these allowances, the personal estate goes to the wife. That statute regulates personal property alone.”

Counsel for the appellant asserts that the plaintiff should not have been allowed to recover upon the theory that Mrs. Johnson was the widow of Eobert H. Foster, because he made no such claim in his opening, but, on the contrary, attempted to prove that she was not such widow, for the reason that the marriage was void. He claims further that the administrator was entitled to the property of Eobert H. Foster’s estate, and that the widow had no ownership of, or right to the possession of, it, as against him, until allowed to her by order of the probate court.

3 Comp. Laws 1897, § 9322, provides for the distribution of estates. Subdivision 1 thereof gives to the widow certain wearing apparel and household furniture. Section 9352 provides for a separate inventory and appraisement of the same, and that it shall not be considered assets in the hands of the representative. Subdivision 4, § 9323, provides:

‘ ‘ If, on the return of the inventory of any intestate estate, it shall appear that the value of the whole estate does not exceed the sum of one hundred and fifty dollars over and above the allowance above provided, the probate court may, by a decree for that purpose, assign for the use and support of the widow and children of such intestate, or for the support of the children under the age of ten years if there be no widow, the whole of such estate, after the payment of the funeral charges and expenses of administration.”

It is upon this that the portion of the charge complained of rests. ' We are of the opinion that, the learned circuit judge has misinterpreted it, and that the widow can acquire no property under that subdivision except by an order of the probate court. We are therefore constrained to reverse the judgment and direct a new trial. It is so ordered.

Grant, C. J., Montgomery and Moore, JJ., concurred with Hooker, J. ,

Long, J.

(dissenting). I am unable to agree with my Brother Hooker on the interpretation which he gives to subdivision 4 of section 9322, 3 Comp. Laws 1897. This section is quoted at length in the opinion of my Brother Hooker. Under its provisions, I think it became the duty of the probate court to assign the residue of the estate to the widow, if the residue did not exceed $150. If the residue did not exceed this amount, the widow was entitled to it; and the court below was not in error in so charging the jury. I also think the provisions of section 9352 do not affect the question of the widow’s right to receive the moneys provided by subdivision 4, § 9322.

The judgment should be affirmed.


author: Long, J.

text:
    W. & A. McARTHUR CO. v. OLD SECOND NATIONAL BANK OF BAY CITY.
    Bills and Notes — Agent for. Collection — Bill of Lading — Consignment to Shipper — Presumptions. %

    When a consignor forwards for collection, without other instructions, a sight draft, to which is attached a bill of lading showing a consignment to himself, indorsed by him in blank, the presumption is that he does not intend credit, but that it is a cash transaction, requiring payment by the drawee of the draft before delivery to him of the bill of lading; which presumption is not negatived by the fact that the draft is entitled to three days’ grace, and is considered in law as a time draft.
    Case made from Bay; Maxwell, J.
    Submitted October 4, 1899.
    Decided December 12, 1899.

      Assumpsit by the W. & A. McArthur Company, Limited, against the Old Second National Bank of Bay City, to recover the amount of a draft sent to defendant for collection. There was a judgment for plaintiff on verdict directed by the court, and defendant assigns error.
    Affirmed.

      C. L. Collins, for appellant.

      McDonell & Hall (Watts S. Humphrey, of counsel), for appellee.
   Long, J.

The plaintiff is in the milling business, having its office and place of business at Cheboygan, this State. The First National Bank of Cheboygan does business there. The defendant does a banking business at Bay City. The plaintiff, at Cheboygan, on March 5, 1898, shipped a car load of wheat to Bay City, which had heen sold by it to J. N. McDonald & Son, of Bay City. Upon such shipment it received from the railroad company a bill of lading showing that the wheat was consigned to itself at Bay City. Plaintiff indorsed the bill of lading iru blank, made a draft upon J. N. McDonald & Son, ánd delivered the draft, with the bill of lading so indorsed, to-the Cheboygan bank for collection. The Cheboygan bank forwarded the draft, with the bill of lading so attached, to the defendant, at Bay City, with the following letter:

“Cheboygan, Mich., March 7, 1898.
“Oii> 2d, Bay City.
Dear Sir: Inclosed as stated below for collection.
“Yours respectfully,
“A. W. Ramsay, Cashier.
“J. N. McDonald & Son. No P. $600. B. L. attached. Hold for arrival of goods, if necessary.”

The draft was dated March 5, 1898, made payable at sight, and indorsed by the Cheboygan Jiank: “Pay to Old Second National Bank, or order.” The bill of lading was in the usual form. In the body of the bill, under file-name of the consignee, was a statement to the railroad company: “Notify J. N. McDonald & Son, Bay City, Mich.” It described one car of wheat. No other information or direction was given to the defendant, and it appears 'that the defendant had no notice of the dealings between McArthur & Co. and J. N. McDonald & Son, except such as could be inferred from the papers above set-forth. The car load of wheat arrived in Bay City March 9th, and the railroad company, acting upon a waybill, which is a duplicate of the bill of lading, notified J. N. McDonald & Son of its arrival. The letter of instruction, draft, and bill of lading reached the defendant March 7th, and on that day.was presented to J. N. McDonald & Son; but, the wheat not having arrived then, nothing was done. On March 11th the bank presented the draft to J. N. McDonald & Son, who wrote their acceptance thereon, and the bill of lading was delivered to them by the defendant. They presented the bill of lading, with the indorsement in blank of McArthur & Co. thereon, to the railroad company, who immediately delivered to them the car load of wheat.- It appears that J. N. McDonald &; Son were insolvent, and the draft was never paid. This suit was brought against the defendant to collect the amount of the draft, on the ground that the bank had been negligent in delivering the bill of lading to J. N. McDonald & Son upon the acceptance of the draft, and without the draft being first paid. There is no contention upon the facts. Upon the statements made by counsel in the court below, the court directed the verdict in favor of the plaintiff, and entered judgment thereon for the amount of the draft and interest, amounting to $630.30. Defendant assigns error.

It is the claim of defendant’s counsel that, under the: circumstances above stated, it was the duty of the defendant bank to deliver the bill of lading to the drawee upon acceptance of the draft. This claim is based upon the proposition that a sight draft is a time draft, as it is entitled to three days of grace, and that, the consignor having indorsed the bill of lading, and sent the same-forward with this time draft, with no instruction to hold the bill of lading until the draft was paid, such action conclusively negatives the presumption of intention to have the bill held until the. draft was paid. It is conceded that such presumption might arise from the fact that the shipment was made to the shipper as consignee, but it is urged that such presumption is conclusively rebutted by the above facts.

It is undoubtedly well settled that a sight draft is entitled to three days of grace. Story, Bills, § 342; 2 Edw. Bills & N. (3d Ed.) § 714; Cribbs v. Adams, 13 Gray, 597; Lucas v. Ladew, 28 Mo. 342; Thornburg v. Emmons, 23 W. Va. 334; Walsh v. Dart, 12 Wis. 635; Green v. Raymond Bros., 9 Neb. 295. It is also well settled that a blank indorsement upon a bill of lading is sufficient to pass the legal title to the goods, and that a delivery of goods by a common carrier to the consignee thereof is made at the peril of the carrier, unless, when made, the consignee surrenders the bill of lading either made to or indorsed to himself. Coleb. Coll. Sec. § 381; Hobart v. Littlefield, 13 R. I. 341; Gates v. Railroad Co., 42 Neb. 379; Weyand v. Railway Co., 75 Iowa, 580 (1 L. R. A. 650, 9 Am. St. Rep. 504). But we cannot agree with the contention of counsel for defendant that the fact that the bill of lading was indorsed in blank, and forwarded with the draft, under the circumstances here, negatives the presumption that the bill of lading was to be held until the draft was paid. The draft was sent to the defendant, as stated in the letter accompanying, for collection. The car load of wheat was not consigned to J. N. McDonald & Son, but to the plaintiff, who was the shipper. For the purpose of permitting J. N. McDonald & Son to at once get the wheat into possession, the bill of lading was indorsed, so that, when the draft was paid, there was nothing further to do by the defendant but to deliver the bill of lading to J. N. McDonald & Son, and the title to the wheat would at once pass to them.

Counsel, however, contends that the case is no different than as though the wheat had been consigned to J. N. McDonald & Son. There is, however, this difference: In case the consignment had been made direct to J. N. McDonald & Son, and no directions given for the collection of the draft, no presumption would have arisen that it was intended as a cash transaction, and the title not to pass until payment; but, the property being consigned to the shipper himself, showing that something further was to be done, by him to pass the title, the presumption was that it was a cash transaction; and we think this presumption was not negatived by the fact that the draft was entitled to three days’ grace, and considered in law as a time draft. We are satisfied that the transaction did not import a sale of the goods upon credit. '

In Security Bank of Minnesota v. Luttgen, 29 Minn. 363, it appeared that a merchant, having received an order for goods from a foreign correspondent, shipped the goods by a common carrier, taking bills of lading, by the terms of which the goods were deliverable at their destination to the shipper or his order. The merchant then drew bills of exchange for the price of the goods on the person ordering them, payable to the merchant’s own order 30 days after sight. Attaching the bills of lading, indorsed in blank, to the drafts, and indorsing the latter in blank, the merchant had the drafts discounted at the bank, it being agreed in parol with the bank that the bills of lading should not be delivered until the drafts were paid. These drafts were sent forward by the bank to its correspondent, who presented them for acceptance, and they were duly accepted. Upon the acceptance of the drafts, and without payment, the bills of lading were delivered to the drawee, and the goods thus passed into his hands. The drawee shortly after this became insolvent, and the drafts were not paid. Action was commenced to recover against the drawer upon his indorsement of the drafts. The defense urged was that the bills of lading were to be treated as security for the payment of the drafts, and that the plaintiff had no right to deliver them to the drawee until such payment. It was held that, independent of the parol agreement, and considered as a matter of merely legal interpretation, the transaction did not import a sale of the goods on credit, or determine that the drawee was entitled to the bills of lading upon his acceptance of the drafts, and without payment. The court said:

“ The taking of bills of lading making the goods deliverable to the order of the shipper, rather than to the person for whom they are ultimately destined, has been considered ‘ almost conclusive ’ proof of an intention on the part of the consignor to retain the jus disponendi, although subject to be rebutted;” citing Benj. Sales (3d Ed.), 382, 400; Dows v. National Exchange Bank, 91 U. S. 618; Farmers & Mechanics’ Nat. Bank v. Logan, 74 N. Y. 568; Seymour v. Newton, 105 Mass. 272; Jenkyns v. Brown, 14 Adol. & E. (N. S.) 496; Mason v. Railway Co., 31 U. C. Q. B. 73.

In the case of Bank v. Cummings, 89 Tenn. 609 (24 Am. St. Rep. 618), in an opinion written by Mr. Justice Lurton, it was held, upon a very similar state of facts as found in the Minnesota case, that, where bills of lading attached to time drafts left with a bank for collection are taken to the order of the vendor and drawer, instead of to the vendee and drawee, such fact is, when not rebutted by evidence to the contrary, almost conclusive to show that the bills were not to be surrendered to the vendee until the drafts should be paid, and is sufficient to require the bank to hold the bills until such payment. This is the rule recognized by Elliott in his work on Railroads (volume 4, | 1426).’

Counsel for defendant cites many cases which he claims have a tendency to support his contention. Those cases are readily distinguishable from the present and from the Minnesota and Tennessee cases. We do not deem it necessary to discuss the cases cited, as we are satisfied that a draft drawn as this was, and accompanied by a bill of lading showing that the shipper had consigned the goods to himself, is a clear indication that the shipper did not intend to extend credit.

The court very properly directed the verdict in favor of plaintiff. The judgment must be affirmed.

Grant, C. J., Montgomery and Hooker, JJ., concurred. Moore, J., did not sit.

       Viz.: Lanfear v. Blossman, 1 La. Ann. 148 (45 Am. Dec. 76); Moore v. Louisiana Nat. Bank, 44 La. Ann. 99 ( 32 Am. St. Rep. 332); Nat. Bank of Commerce v. Merchants’ Nat. Bank, 91 U. S. 92; Woolen v. Erie Bank, 12 Blatchf. 359; Marine Bank v. Wright, 48 N. Y. 1.


author: Moore, J.

text:
    DARROW v. VILLAGE OF HOMER.
    Adverse Possession — Village Street — Nonuser.
    Wliere a grantee of village lots abutting on land platted as an alley, but never used or occupied as such by the public or the village authorities, takes possession of all the land his grantor claimed to own, including that so platted, and holds the same adversely for a term which, together with his grantor’s term, exceeds the period of limitations, he acquires a good title as against the village, although the land platted as an alley wás not literally included in his deed. Wyman v. Village of St. Johns, 100 Mich. 571, distinguished.
    Appeal from Calhoun; Smith, J.
    Submitted October 6, 1899.
    Decided December 12, 1899.
    Bill by Charles E. D,arrow against the village of Homer to enjoin the opening of an alley. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Le Bar Tompkins (Edward Darrow, of counsel), for complainant.

      M. H. Nichols, for defendant.
   Moore, J.

The complainant has appealed from a decree dismissing his bill of complaint, which was filed for the purpose of restraining defendant from opening an alley through a block in the village of Homer. A reference to the annexed plat, which, so far as its lines are concerned, is a copy of the plat as recorded, will aid in understanding the situation. The bill was filed in June, 1897. The complainant obtained the deed of his lots in March, 1883, from Dr. Collins and wife and Mr. Gibbs, trustee. It conveys lots 76, 77, and 78, situated in the village of Homer, according to the plat thereof as recorded in the office of register of deeds. It was the opinion of the circuit judge that complainant, under his conveyance, got no rights in the alley, and had not been in possession long' enough when the bill was filed to give him a right to hold by adverse possession, and for that reason he dismissed, the bill.

The village of Homer was platted in 1837, and the plat was recorded. The streets which bound this block have all been worked by the village authorities, and the alley through the block east of this one has been opened and used as an alley by the public. There has been no opening of the alley through the block containing complainant’s lots by the village authorities, and no formal action was ever taken by them to open the alley until shortly before the bill was filed, when a resolution was adopted instructing the surveyor to open the alley. Lots 82, 83? and 84, lying just south of complainant’s lots, were owned by Mr. Parks and his family for upwards of 50 years, and the evidence shows that the owner of these lots occupied for a long period of time to the center of what is shown on the plat as an “alley.” At the opening of the alley, and near its center, but in the street, a tree was planted in 1864, which is now upwards of a foot in diameter. A barn was put up on the land now occupied by Darrow 17 years before the bill was filed, which is shown by the plat and survey made by the village surveyor to extend upwards of five feet into the alley, and it is stated by the witnesses that the barn was put upon what was supposed at that time to be the center of the alley. The evidence also discloses that, prior to the building of the barn, a fence was built upon what was supposed to be the center of the alley, as the boundary line between the lots south of the alley and those north of the alley. There were other trees set out in the alley, and some other outbuildings were partly in the alley'. The record also discloses that in November, 1869, Dr. Collins obtained a deed reading in part as follows: ‘ ‘ Said party of the first part conveys the south half of village lots 77 and 78, in said village, according to the plat thereof as recorded in the office of register of deeds for said county; and the said party of the second part agrees not to open the alley on the south end of village lots 77 and 78.” Dr. Collins did not open the alley, but occupied his half of it, until he deeded lots 76, 77, and 78 to complainant, in March, 1883. The deed just mentioned to Dr. Collins was delivered by him to Mr. Darrow at the same time he made the deed to Mr. Darrow, and the latter took possession of all the land then occupied by Dr. Collins, and continued in possession of it up to the time of the filing of the bill.

The solicitor for defendant relies upon the case of Wyman v. Village of St. Johns, 100 Mich. 571, to sustain the decree. The cases are unlike. In the Wyman Case the street had been laid out and traveled for 30 years. Complainant’s deed did not cover the premises in dispute, and adverse possession for the requisite time was not shown. Here the alley was platted, but had never heen used by the public or by the village authorities; and, while the alley was not included in the literal reading of the deed, it had been occupied by the grantor of the complainant for a long time when the deed by him to the complainant was made, and possession of the alley and the lots described in the deed was given to him at the same time, and remained with him until the bill was filed. The possession of the complainant and his grantor was for a much longer time than the statute requires to obtain title by adverse possession. We think the case is governed by Field v. Village of Manchester, 32 Mich. 279; City of Big Rapids v. Comstock, 65 Mich. 78; Village of Grandville v. Jenison, 84 Mich. 54; Village of Essexville v. Emery, 90 Mich. 183; Flynn v. City of Detroit, 93 Mich. 590.

The decree is reversed, and the temporary injunction will be made permanent.

The other Justices concurred.


text:
    PAHLAN v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Railroad Companies — Duty to Employes — Safe Place.
    The requirement that employers shall furnish their employés with a reasonably safe place in which to work applies to its full extent to railroad companies.
    2. Same — Coal-Bin Near Siding — Judicial Notice.
    Where the undisputed evidence shows that the place furnished by a railroad company to its-employés conforms to the general condition upon other roads, the court may say, as a matter of law, that the company has performed its duty in this respect; and the court may properly so instruct the jury where the alleged defect is the maintenance of a coal-bin in close proximity to a siding, it being able to take judicial notice that those structures are commonly so placed.
    3. Same — Assumption oe Risk.
    An employé of a railroad company, who, after, dark, assisted in moving a detached way-car along a siding by pushing against a hand-rail on the front platform while he walked beside the car, assumed the risk of being injured by running against a coal-bin built close to the siding.
    4. Same — Contributory Negligence — Failure to See Obstruction.
    An employé of a railroad company, who, on a dark night, assisted in moving a detached way-car along a siding by pushing against a hand-rail on the front platform while he walked beside the car, was guilty of contributory negligence in running against a coal-bin built close to the siding, where he might have seen the obstruction, had he looked out for it, at a distance of 1Ó feet.
    Error to Ionia; Davis, J.
    Submitted October 6, 1899.
    Decided December 12, 1899.
    Oase by Edward Pahlan against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. Prom a judgment for plaintiff, defendant brings error.
    Reversed.

      E. W. Medclcmgh ( Geer & Williams, of counsel), for appellant.

      John Nichol and James Curry, Jr. (Allen B. Morse, of counsel), for appellee.
   Hooker, J.

At Ovid station the defendant’s railroad •consists of three tracks, there being two sidings north of the main track. Upon the north side of the northernmost track there was a coal-bin, which was erected, some years before the occurrence giving rise to this action, by the Ovid Buggy Company, to receive coal shipped over the defendant’s road. At the time of the accident, the side of the bin next the track overhung 8 inches at a height of 6 feet, according to the testimony of one of the plaintiff’s-witnesses, who said that he measured it. He testified that the distance between the top of the posts and a coal-car was about 8 inches, and between the post and the bottom of the car about 18 inches, and at the west end was- about 1 inch nearer the rail than at the other end. He also-testified that he measured six way-cars, four of which were of the width of the coal-car, and two were about 4-inches wider. He also testified that the bin was not too-near the track for convenience in unloading coal. It was-erected and maintained by the buggy company upon lands-of the defendant, by its consent; and there was a dispute-as to the cause of the overhang, — one side alleging that it was built so, and the other that it had spread. The-plaintiff had been in defendant’s employ as a section hand for about a year and a half, and had worked upon the-gravel train for about a week, prior to the accident. He had been through Ovid upon the train with two loads of gravel, but was otherwise unacquainted with the yard. Upon the day in question, a load of gravel had been taken east of Ovid, and after it was unloaded the train returned to Ovid, where it was to remain for the night. On reaching Ovid, the gravel train entered upon the middle track (i. e., the main siding), and the way-car was cut off; and,, with a view to getting it ahead of the engine, orders were-given to push it upon the north siding, and the plaintiff, with others, did so. This was after dark, and, as plaintiff' was walking beside and pushing the car by the hand-i’ail at the front platform, he claims to have struck his shoulder against' the coal-bin, and suffered an injury. The train was in charge of a conductor named Judd, and the workmen were at the time under a foreman named Grimes;., the assistant road-master having left the train at another station. Some witnesses say the order was given by Grimes; and others, that Judd gave it. There was-another man in front of the plaintiff, pushing the car, but his identity was not ascertained. Nothing indicates that he was injured. The negligence complained of was the maintenance of the coal-bin so close to the track, in violation of defendant’s duty to furnish a safe place for plaintiff to work. It was also urged that the work was performed under the direction of 'Grimes, who was a superior officer,, and that in giving the-order he represented the master..

It is definitely settled in this State that the master owes-to the employé the duty of furnishing a reasonably safe place to work, and that this rule applies to railroads as well as other places. The authorities are «collected in the cases of Balhoff v. Railroad Co., 106 Mich. 613, and Anderson v. Railroad Co., 107 Mich. 595. It is urged that a railroad company has a right to construct its road and structures after plans of its own, and not subject to the approval of juries, who cannot be allowed to determine such questions. This is equivalent to saying that the doctrine that a master must furnish a reasonably safe place for his employé to work does not apply to railroads. "We appreciate the practical consequences of leaving such a question to a jury, and the proneness of such tribunals to accept the fact of an accident as sufficient evidence of' fault upon the part of the master. We should hardly like-to admit that lawyers and juries know more about proper railroad building than those experienced therein. But, on the other hand, we cannot say that railroads are free from defects, or the owners and their employés from negligence;, nor is there authority or reason for exempting them from the general law pertaining to master and servant. Many of the cases cited were railroad cases, and we repeat that the question is settled for Michigan; and, wherever the-fact is fairly in dispute, we see no way for railroads to-avoid the submission of the question to a jury. There are cases, however, when no dispute arises; e. g., when the undisputed evidence shows that the place furnished by the master conforms to the general condition upon other roads, or where the defect is a known or obvious one to the employé, or one of which he is bound to take notice. In the former the court may say, as a matter of law, that there is no negligence; in the latter, as well as the former* that the employe has assumed the risk obviously incident to the conditions, whether defective or not.

It is a well-known fact, of which we may take judicial notice, that it is usual for sidings to be so constructed as to .permit cars to stand close to buildings, thereby facilitating the loading and unloading, and reducing the cost and danger of the operation. This is uniformly true of elevators and coal-bins, and every person of common intelligence may reasonably be presumed to know that the siding is made for such purposes, to which, perhaps, a main track could not be safely applied, by reason of the ■duty owed to passengers, if not to employés. Phelps v. Railway Co., ante, 171. The plaintiff admits that he knew of this practice on defendant’s road. It being the common practice upon railroads to thus locate structures, it cannot be negligence, for the test of negligence is, What is usual in railroading ? and a trial court should not hesitate to say to a jury that it is not negligence for a railroad •company to build or permit the erection and maintenance of coal-bins in close proximity to sidings, and that one who ■enters the employment of a railroad company must expect to find them and other structures, such as depots and their •awnings, bridges, warehouses, water-tanks, elevators, etc., and that he assumes the risks incident to railroading in .such places, in the night as well as the day, and the first time over the road as well as on subsequent trips. The brakeman must keep his eyes open for such obstructions, if be chooses to climb or work upon the cars, just as he should look out for trains approaching or standing upon an adjoining track when climbing a ladder on the side next such track.

There are cases which hold that an employe cannot be held to have assumed a risk of conditions that he has had no previous opportunity of becoming acquainted with. The leading case upon this subject appears to be Dorsey v. Construction Co., 42 Wis. 583. In that case a cattle-chute was erected near the track, and a brakeman was drawn against it while climbing a ladder upon a car. It was in plain sight, and the brakeman had frequently seen it; yet the court held that it did not follow that he was aware of danger, because it was not shown that he knew the precise distance between the chute and the car. A similar rule was applied in a case where the plaintiff was carried against a signal post erected between tracks. The court said he might not have known that it was near enough to do him injury, unless he had made actual measurements or calculation. Johnson v. Railway Co., 43 Minn. 53. This is equivalent to holding that a brakeman may assume that there will be no obstruction within striking distance, and that until his attention has been called to the danger, or he has seen fit to ascertain the distance by measurement, he does not assume the risk of accident therefrom. We think these cases are at variance with the weight of authority, and the requirement of reasonable prudence on the part of employés.

One who engages in railroading may be presumed to understand the nature of the work he is entering upon, and, if he is not acquainted with the particular dangers of the line upon which he is to work, it is his duty to give attention to them. He must be on the lookout for buildings near the tracks, and to know what persons usually know of the uses of side tracks, and such dangers as naturally follow. A master has a right to expect ordinary caution, and need not point out dangers that will be seen and known but for inattention and thoughtlessness. It cannot be. expected that he will give the employé a list of structures, and their respective distances from trains or tracks, or that he will send the newly-employed servant over the line and sidings with a rule, to measure them. He may assume that the structures will be seen, and that, when there is doubt about the exact distance from the track, the risk will be avoided. .It is manifestly unsafe for one to attempt to pass between a building in close proximity to the track, and a car, especially on a dark night. This plaintiff was chargeable with knowledge that he was liable to encounter such buildings upon a siding at the station, and, if it was so dark that the building was not easily discernible, increased vigilance was required. It was unnecessary to walk upon that side ■of the car, if it was necessary to walk upon either side, and in so doing we think that the plaintiff assumed the risk of meeting this obstruction.

It may be urged that the overhang of the shed, and its position in relation to the track, show that it was out of repair, or a trap. It is the common custom to set structures of all sorts nearer the track than was the topmost part of this bin; but it is unnecessary to pass upon these' questions, as the plaintiff’s testimony shows that he was not trapped, but walked against the end of the shed.

There is another point that should settle the case. The proof shows that the plaintiff walked up to and against this shed, when he should have seen it. It is evident that the man in front of him saw it in time to avoid it. While it occurred in the night, there is no testimony that shows that it was so dark as to prevent the building from being seen before running against it. The plaintiff’s own testimony is that: “It was dark. You couldn’t see much of anything.” His witness Weirs said that: “It was a dark night.- Couldn’t see much ahead of you. I couldn’t see an object more than 1Ó feet, to tell what it was.” William Wall said: “I could see an object the size of a man 10 feet away on that night, but I don’t think you could have told who it was. Q. When was your attention first called to the fact you could see a man 10 feet away? A. I saw some of them going upon the track.” Lee Perry said: “I know the plaintiff. I saw him in the depot after the accident, some time between 6 and 7 o’clock, standard time. It was a very dark night. It wasn’t raining.” Elmer Settle said: “It was dark. I couldn’t really tell just where Pahlan was, but, as near as I can tell, he was right across from me, pushing. It was a pretty dark night. I saw them take him out from under the car. I noticed the coal-shed.” The almanac shows that the moon was at the first quarter (i. e., half full), and set after 10 o’clock, upon that night. ,The plaintiff "testified that he was pushing the car along, when his shoulder struck against the end of the coal-bin. By his testimony we think it conclusively shown that he was negligent.

The court shotild have directed a verdict for the defendant. Judgment reversed, and new trial ordered.

Grant, C. J., and Long, J., concurred.

Montgomery and Moore, JJ. Because the case is ■controlled by Phelps v. Railioay Co., ante, 171, we concur in the opinion of Justice Hooker.


author: Grant, C. J. (after stating the facts).

text:
      In re LAMB’S ESTATE.
    "Wills — Construction—Conditional Devise.
    Under a will devising testatrix’s property to her brothers and sisters, share and share alike, but providing that, incase of the death of any legatee ‘ ‘ previous to the probating or execution ” of the will, his share should go to his children, the children, and not the assignee, of a deceased legatee are entitled to his share, where his death occurred after the probate of the will, but prior to its execution by settlement of the estate.

      Certiorari to Van Burén; Smith, J.
    Submitted October 6, 1899.
    Decided December 12, 1899.
    Petition in probate court by James H. Hall, executor _of the lasfwill and testament of Catherine Lamb, deceased, for a construction of the will. Annetta Tillou, one of the ■children of Carlton Ray, deceased, a legatee under the will, -appealed to the circuit court, and from a judgment in her favor the executor brings certiorari.

    Affirmed.

      Catherine Lamb died testate. Her will provided as follows:
    “I give and bequeath to Benjamin Ray, Carlton Ray, Samuel Ray, Nancy Sumner, Marilla Smith, Julia Hopkins, Mary Carnes, Jane Hoffman, and Lovina Taylor (all of whom are my brothers and sisters) all the real estate and personal estate of which I may be possessed at the time of my decease, to be equally divided between them, share and share alike. But in case of the death of any of the above-named legatees previous to the probating or execution of this, my last will and testament, then I desire, will, and bequeath that the share of such deceased brother or sister shall revert to, and become the property of, the children of said deceased legatee; but, if said deceased legatee has no children living at the time of my decease, then the said deceased legatee’s share of property bequeathed to him or her by the terms of this will shall revert to, and become, a part of, the general fund to be divided among the surviving legatees named in this will and testament.”
    She died April 3, 1898. Her will was admitted to probate, and letters testamentary were granted to defendant, June 13, 1898. Carlton Ray died December 18, 1898, before the distribution of the estate. Prior to the probating of the will, Mr. Ray assigned to his wife all his interest as devisee and legatee under the will. He left two children. January 21, 1899, the executor filed a petition in the probate court praying a construction of the will. From the decision of the probate court an appeal was taken to the circuit court, and judgment entered holding that Mr. Ray’s share did not pass by his assignment to his wife, and that it passed to his children, since he died before the estate was finally administered and settled.

      A. J. Mills, for appellant.

      B. F. Heckert, for appellee.
   Grant, C. J. (after stating the facts).

The decision depends upon the construction to be placed upon this clause of the will:

“But in case of the death of any of the above-named legatees previous to the probating or execution of this, my last will and testament, then I desire, will, and bequeath that the share of such deceased brother or sister shall revert to, and become the property of, the children of said deceased legatee.”

Manifestly, the.term “execution” does not apply to the act of signing and publishing her will. It refers to something to be done after her decease. Certain cardinal rules must be kept in mind. The intention of the testator must be determined from the four corners of the instrument: Bailey v. Bailey, 25 Mich. 185, 188; Fraser v. Chene, 2 Mich. 81, 88. Wills must be construed so that the distribution will conform as nearly to the generál rule of inheritance as the language will permit. Rivenett v. Bourquin, 53 Mich. 10, and authorities cited. Words must be given their ordinary significance, and testators must be held to have meant something by the words used, unless the contrary clearly appears. To probate a will is not to execute it. To probate involves only a determination that the will was duly signed and published, and that the testator was competent to make it. It simply establishes the validity of the will. Its execution comes after its probate. The executor has no control over the estate until the probate of the will. The executor is the person appointed to ‘ ‘ carry the will into effect or execution after his decease, and to dispose of his property according to the tenor of the will.” 1 Burrill, Law Diet. 584. Counsel concedes that Mr. Bay took a conditional estate,— the condition being that he live until the proof or probate of the will. This construction would eliminate from the will the words “or execution,” as it would leave them no office to perform. We cannot hold that the testatrix used the word “execution” as synonymous with “probating.” Persons of common intelligence know what it is to probate a will. We think it manifest that the intention was to devise her property to her brothers and sisters, and to their children in case of their death before her will was; executed. The term “execution” was, in our judgment, used with reference to the act of the executor in executing the will by settlement of the estate under the provisions of law for the settlement of estates of deceased persons, and distributing the property to her legatees. At her death 'Mr. Ray received an estate upon the sole condition that he live until the will was executed, and the property ready for distribution. This was the construction placed upon similar language in Scott v. Guernsey, 60 Barb. 163, 175, and Lambert v. Harvey, 100 Ill. 338, and is not in conflict with Calkins v. Smith’s Estate, 41 Mich. 409. The word “or” is often construed to mean “and,” and its use is a common mistake in wills as well as elsewhere. 1 Jarm. Wills (6th Ed.), 505; 2 Burrill, Law Diet. 263.

We think the court reached the correct conclusion. Judgment affirmed, with costs.

The other Justices concurred.


text:
    MACTAVISH v. KENT CIRCUIT JUDGE.

    1. Insurance — Bill to Cancel Policy — Averments.
    That an insurance company’s bill to cancel a policy for fraud of the insured, and to enjoin the beneficiary from prosecuting a pending action at law thereon, alleges that complainant has assumed to cancel and annul the policy, does not show that it was unnecessary for the company to invoke the aid of equity, it being.evident that the validity of ■ the company’s attempt at cancellation is denied, and must be determined by the courts.
    2. Equity — Injunction.
    Although injunction is usually refused where defendant answers fully, denying all the allegations of the bill, the grant, ing it, even under such circumstances, is within the discretion of the court.

      8. Same — Mandamus to Compel Dissolution oe Injunction.
    On mandamus to compel the dissolution of an injunction restraining an action at law, it is unimportant that the injunction bill failed to allege the state of the pleadings in the action sought to be enjoined; counsel having had opportunity to bring the subject to the attention of the court on his motion to dissolve the injunction.
    4. Same — Point Properly Raised by Demurrer.
    Nor is it important that the injunction bill contained no allegation that the legal remedy was inadequate, the point being one properly raised by demurrer.
    5. Same — Jurisdiction—Enjoining Action in Another Court.
    Relator brought an action on a fraternal society’s benefit certificate. Subsequently the society filed a bill in the circuit court of another county to cancel the certificate on the ground that it was procured by fraud, and the latter court, sitting as a court of equity, enjoined the prosecution of the action at law pending the determination of the suit in equity. Held, that the circuit court of such other county, sitting in equity, had power, in its discretion, to issue such injunction, and that its action in so doing could not be reviewed by the Supreme Court.

      Mandamus by Maggie Mactavish to compel Allen C. Adsit, circuit judge of Kent county, to dissolve an injunction.
    Submitted October 24, 1899.
    Writ denied December 12, 1899.

      Lee E. Joslyn, for relator.

      Wanty & Knappen, for respondent.

       Rehearing denied January 23, 1900.

   Hooker, J.

The relator brought an action upon a fraternal society beneficiary certificate in the circuit court for the county of Bay. Subsequently the defendant in that action filed the bill in this case for cancellation of the certificate upon the ground of fraud alleged to have been committed in procuring the certificate, and an injunction pendente lite was issued by the Kent circuit court, sitting in chancery, restraining the plaintiff in the original action from further prosecuting said action. An affidavit was filed, denying the fraud, in conjunction with a motion to dissolve the [injunctionand, said motion being denied, we are asked to compel the circuit court to dissolve the injunction. The grounds relied on by counsel for relator appear to be:

1. That the bill alleges that the society assumed to cancel and annul the certificate, and therefore it is unnecessary to invoke the aid of equity to the same end.

2. That the material allegations of the bill are denied by affidavit, and that this entitled the relator to a dissolution of the injunction.

3. That the court had no jurisdiction to grant the injunction, (a) because the pleadings in the original case were not fully set up in the bill; (b) because it failed to allege injury or want of complete remedy at law.

It is an established rule that the court will not interfere with the discretion of a circuit judge in relation to injunctions. Instances are rare where appellate courts will compel lower courts to issue them, and they will seldom compel a dissolution unless the injunction has been issued, or dissolution refused, in contravention of law.

The first and second propositions require only a passing notice. The relator does not admit the binding force of the company’s attempt at cancellation, and the company is compelled to submit the question of its right to a cancellation to some coiirt of justice. It is true that there is a general rule that when a defendant answers fully, and denies all of the allegations of the bill, a preliminary injunction will usually be denied. There are, however, cases where this rule is not followed, and it is a matter of judicial discretion.

The failure of the bill to allege the state of the pleadings in the action at law is unimportant. Doubtless, counsel brought the subject to the attention of the circuit court in chancery on the motion to dissolve; and, if not, he has only himself to blame.

If the allegation of inadequacy of remedy at law is wanting, the point should have been raised by demurrer.

The principal effort of counsel appears to be directed towards inducing us to overrule the case of John Hancock Mut. Life Ins. Co. v. Dick, 114 Mich. 337 (43 L. R. A. 566), and, failing in that, to show a distinction between that case and the present, inasmuch as the injunction is issued from the court of a different county from that in which relator’s action was brought. The case of John Hancock Mut. Life Ins. Co. v. Dick was carefully considered. The question there was not whether it was a hardship upon the plaintiff to be compelled to try the question of fraud in equity, rather than before a jury, but— First, whether equity has jurisdiction to cancel a contract obtained by fraud; and, second, whether such jurisdiction is cut off by the institution of a prior action at law upon the writing. There is but one answer to these' questions. The jurisdiction of equity for cancellation is well settled, and courts cannot curtail such jurisdiction because the same evidence that would justify a decree of cancellation may constitute a defense to an action upon the instrument. The authority to restrain the pending action at law is based upon the equitable jurisdiction to prevent a multiplicity of suits, and this is as well established as any other jurisdiction of equity. Then, the fraternal society had a right to sue in equity, and the court must entertain the suit. It might or might not restrain the beneficiary from prosecuting the pending action at law. That was a matter for the discretion of that court, and not for us. These propositions are elementary, and, as shown in John Hancock Mut. Life Ins. Co. v. Dick, are fortified by authorities. The briefs in this case furnish additional support to the claim of respondent.

It is urged that the circuit court for the county of Bay first obtained jurisdiction, and that no other court could deprive it of such jurisdiction, or itself take jurisdiction of this controversy. What force there is in this contention applies to cases where two courts have concurrent jurisdiction. These courts have not concurrent jurisdiction, for the court of law has no power to cancel, as was shown in the case of John Hancock Mut. Life Ins. Co. v. Dick, which is a case upon all fours with the present.

It is urged that the authority to enjoin a pending action at law is confined to the court of chancery for the county in which the action at law is pending, but we do not so-understand it. The injunction restrains the party, not the court, and any court having jurisdiction of the subject-matter has authority over the party before it. No one can question the jurisdiction of the Kent circuit as to the subject-matter before it. It may go on and decree cancellation, and, but for the pendency of this action in another county instead of Kent, it might restrain the party from pursuing 'a remedy at law. This jurisdiction originated when law and equity courts were separate. What it is that has deprived the court of chancery of its power to restrain proceedings in any other court except that held by the chancellor himself as a law judge is not made plain. In Indiana it rests on a statute, which is manifestly sufficient. See Indiana, etc., R. Co. v. Williams, 22 Ind. 198. But elsewhere the authority is recognized. Erie R. Co. v. Ramsey, 45 N. Y. 637; New York, etc., R. Co. v. Schuyler, 8 Abb. Prac. 239; Platt v. Woodruff, 61 N. Y. 378; Cushman v. Leland, 93 N. Y. 652. It has never been denied in this State, and, as counsel suggest, Turner v. Hatch, 100 Mich. 65, and Hogan v. Wayne Circuit Judge, 106 Mich. 254, were cases where that very thing was done. Again, cases can be found where one court of chancery has restrained parties before it from proceeding in chancery proceedings before other courts, which would be inconsistent with relator’s contention.

This attack upon a well-settled chancery jurisdiction has as a foundation the proposition that a person claiming under an insurance policy has a right to try the question of fraud before a jury, and therefore equity should in all cases permit the case to be tried by jury. But counsel does not stop there; he would have us go further, and hold that a chancellor has no discretion, but must yield his own jurisdiction in all such cases, and that, if he does not, we will compel it. There would be no more propriety in our curtailing equity jurisdiction, than there- would be in denying some legal S'jurisdiction. But suppose we were to do so, and hold that equity could not restrain the prosecution of an action of this sort; what should we do where the suit for cancellation is begun first? Will the next step be the contention that we should deny the jurisdiction of chancery in such a case because we may think the right to make a legal defense is remedy enough ? If so, and we yield to it, all concurrent jurisdiction would be taken from equity; and not only that, but the same would-be true in all cases where, as in this case, equity has jurisdiction to give greater relief than a court of law can do. The right to equitable procedure and relief would not then depend upon established rules, but upon the question whether the complainant ought to be satisfied with some lesser relief, which, in the opinion of an appellate court, would, or could be made to, answer his purpose. We understand that equitable rights are as sacred and as well guarded by the Constitution as the right of trial by jury, and we see neither the occasion nor the opportunity to increase the latter at the expense of the former.

The court of equity can do full justice in this case, and, in the opinion of the judge of that court, the case is one which equity, rather than a jury, should try. In this we must assume that the judge was right. We cannot review that question.

The writ is denied.

The other Justices concurred.


text:
    VINING v. DETROIT, YPSILANTI & ANN ARBOR RAILWAY.
    Street Railways — Coupon Tickets — Rights ox Passenger. Where a coupon ticket was issued to plaintiff for carriage between A. and C., through the intermediate point B., over , defendant’s line from a point east of B. to C. and over a connecting line from A. to such point, and the conductor on the connecting line detached by mistake the coupon “B. to C.,” leaving plaintiff the “A. to B.” coupon to present to defendant’s conductor for passage to C., the conductor was bound to honor the ticket for carriage as far as B., and his attempt forcibly to eject plaintiff before the car reached B. was an assault, for which defendant was liable.
    Error to "Wayne; Carpenter, J.
    Submitted October 24, 1899.
    Decided December 12, 1899.
    Case by Edward M. Vining against the Detroit, Ypsilanti & Ann Arbor Railway for an assault by defendant’s conductor. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      J. Emmet Sullivan, for appellant.

      Bice & Meeker, for appellee.
   Hooker, J.

The Detroit Citizens’ Street-Railway line extends to a place called “Addison’s Switch,” which is a half-mile or thereabouts east of the place where the defendant’s road is crossed by the Flint & Pere Marquette Railway. The Detroit, Ypsilanti & Ann Arbor Railway (defendant’s road) extends from Addison’s Switch to Ann Arbor, passing through the village of Wayne. These two street-railway companies had a running arrangement under which the cars of the latter road ran over the track of the former to the city hall in Detroit, coupon tickets being sold. The conductor of the Citizens’ Company took charge of the car between the F. & P. M. crossing and city hall, while the defendant’s conductor had charge west of the F. & P. M. crossing. Thus each conductor took up tickets for his own road. The plaintiff took the car at the city hall. His ticket consisted of two coupons. One, headed “Detroit, Ypsilanti & Ann Arbor Railway,” said, “Good for one fare between Wayne and F. & P. M. crossing;” the other, headed “Detroit Citizens’ Street Railway,” said, “Good for one fare between F. & P. M. crossing and city hall.” The ticket was purchased at Wayne, and was a double ticket, one-half of it having been used by the plaintiff in going to the city. On his return he handed his ticket to the conductor of the Citizens’ Company, who took off the wrong coupon, viz., the portion over the defendant’s road. At Addison’s Switch the defendant’s conductor took charge of the car, and the conductor of the Citizens’ Company left .it. Plaintiff handed defendant’s conductor the remaining coupon, and was told that it was not good. Plaintiff-replied that the other conductor had made a mistake, but was told that he would have to get off or pay his fare. He refused to pay his fare or get off, and told the conductor he would have to put him off. The conductor took him from his seat, and then he paid the fare under protest. The plaintiff and one of his witnesses testified that he was taken from his seat before the car reached the F. ■& P. M. crossing. The conductor and motorman say that this was done when the car stopped for that crossing, and upon the F. & P. M. right of way, where they were in the habit of stopping before crossing that road. That, in a sense, was east of the F. & P. M. crossing; but, as said by the learned circuit judge, that was as far as the plaintiff was entitled to ride upon that ticket. But, as the plaintiff testified that the car stopped again east of the F. &, P. M. crossing, it was for the jury to decide who was right, and we cannot say that the testimony conclusively showed that the assault was not committed before reaching the usual stopping place at the F. & P. M. crossing.

Error is assigned upon the introduction of Exhibit 0, which was an ordinance of the village of Wayne fixing rates of fare. As the case turned, it does not seem to have been important, and we are not able to see that the defendant was injured by it. We see no reason for thinking that it confused or misled'the jury, and, if counsel for the plaintiff based an improper argument upon it, our attention is not called to it.

There is'no force in the proposition that the plaintiff had not paid his fare to the F. & P. M. crossing. If he had not given the conductor of the Citizens’ Company the right ticket, he had it still in his possession, and his delivery of it to the defendant’s conductor was sufficient to protect him from ejection before reaching the F. & P. M. crossing. This case differs from Mahoney v. Railway Co., 93 Mich. 612 (18 L. R. A. 335, 32 Am. St. Rep. 528). In that, case the plaintiff had no evidence of his right to ride on the car. In this case he had evidence of his right to ride to the F. & P. M. crossing. The conductor'testified that it is usual to stop the car before crossing, and not upon the track, and the court told the jury that plaintiff had a right to ride to that point. We think the defendant has no reason to complain of this, and that it was equivalent to giving defendant’s fifth request.

The j udgment is affirmed.

The other Justices concurred.


author: Grant, C. J. Hooker, J.

text:
    BROWN v. BOYNTON.
    Libel — Charges not Defamatory.
    A published letter charging that plaintiff got up a raffle for the benefit of the writer without his consent; appointed a committee of a fraternal organization to manage it; said he had received no money from it; that some of the members of the organization had purchased tickets; that the intended beneficiary received nothing from it; and that the facts were-published so that the members might get their money back,— is not libelous, as charging or imputing that plaintiff was guilty of falsehood, deceit, fraud, or misconduct as a member of said organization, or that he had obtained money by false pretenses, and had embezzled or misappropriated it. Hooker and Montgomery, JJ., dissenting.
    Error to Wayne; Hosmer, J.
    Submitted October 25, 1899.
    Decided December 12, 1899.
    Case by Samuel J. Brown against Nathan S. Boynton and Albert Gladman for libel. From a judgment for defendant Boynton on demurrer to the declaration, plaintiff brings error.
    Affirmed.
    This was an action of libel for publishing the following tetter in a newspaper called the ‘ ‘ Michigan Maccabee: ”
    “A Letter prom Albert Gladman.
    “Detroit, May 30, 1897.
    ‘ ‘ Editor op the Michigan Maccabee : I notice in the Michigan Maccabee, May 30, an article copied from a Detroit paper called ‘ This Week,’ dated May 1. I will state the facts of the case just as they are. ‘This Week,’ the Detroit paper, will retract its former statement, and publish the facts in the case from my side. The distress and misfortune part is too true; also, the raffle came off as planned. But the raffle scheme was got up by Sir Knight Brown against my wishes, and was done when I was home with my sick family, and did not know it till after Brown hád appointed his own committee and had the tickets printed. Grand River Tent, 409, the tent to which I have belonged for nearly four years, voted against the scheme, for which I am very thankful. Grand River Tent, 409, helped me and my family out kindly and nobly, and carried my assessment No. 70, and voted and loaned me money, and the tent sympathizes with me and mine. Now, the lot is not a city lot, but a lot away out in Romulus. The raffle came off, but ‘This Week’ states that I am in possession once more of home, which is not correct. I have not received one cent from the raffle, and the mortgage is in the hands of the collector to foreclose, and take my home from me. The man who holds the mortgage told Brown and Henderson to settle, or not bother him any more, and they told him that they had got no money. I wish, in justice to Grand River Tent, myself and family, that you would kindly state these facts about this scheme, so that the tents and sir knights who bought tickets will get their money back.
    “Yours fraternally,
    “Albert Gladman, “Grand River Tent, 409.”
    The declaration contains two counts, but the innuendo to the second count is a sufficient statement for plaintiff’s claim, and is as follows:
    “Thereby meaning and intending to charge that the plaintiff had, without the knowledge or consent of said Albert Gladman, got up a raffle and sold tickets and obtained money for the alleged benefit of said Albert Glad-man, and that the said Albert Gladman did not receive one cent of said money, and that the plaintiff and Henderson had obtained money as the proceeds of said raffle by false pretenses and representations, and embezzled said money; thereby imputing to the plaintiff the commission of the crime of obtaining money by false pretenses and representations, and also the crime of embezzlement, and charging and imputing to the plaintiff falsehood, deceit, fraud, and misconduct as a member of said Grand River Tent, 409, and obtaining money of members of said tent and other kindred tents, and of the individual members of said tent and other kindred tents, by falsehood, deceit, and fraud, and by false pretenses and representations, and with having misappropriated said money.”
    To this declaration defendant Boynton interposed a demurrer for the following reasons:

      “1. Said declaration nowhere states that the article mentioned therein as having been published in ‘This Week’ was true, or that the matter contained in the article published in that paper and the statements made therein were correct.
    “2. • The construction put upon the article published in ‘ The Michigan Maccabee ’ by said plaintiff is neither a legal nor a natural construction.
    “3. The language contained in the article charged in said declaration to have been published in ‘ The Michigan Maccabee ’ does not bear out the construction put upon it by said plaintiff in said declaration.
    “4. The article alleged in said declaration to have been published in ‘ The Michigan Maccabee ’ is not libelous, and it does not bear the construction put upon it by said plaintiff in his innuendoes in said declaration.
    “5. Neither count in said declaration states a legal cause of action against said defendant Nathan S. Boynton.”
    The demurrer was sustained.

      Lehman Bros, and F. J. Biggs, for appellant.

      Durand & Carton, for appellee.
   Grant, C. J.

(after stating the facts). A libel is a malicious publication, tending to expose a person to contempt, ridicule, hatred, or degradation of character. Barr v. Moore, 87 Pa. St. 390 (30 Am. Rep. 367), and authorities cited. “Words are to be understood in their plain and natural import, according to the ideas they are calculated to convey to those to whom they are addressed.” 13 Am. & Eng. Enc. Law, 378. Or, as Lord Ellen-borough stated in Roberts v. Camden, 9 East, 93, 96, “words are now construed by courts, as they always ought to have been, in the plain and popular sense in which the rest of the world naturally understand them.” Wieman v. Mabee, 45 Mich. 484 (40 Am. Rep. 477); Brettun v. Anthony, 103 Mass. 37. What the article referred to in the communication as having appeared in This Week was, does not appear. It is not given. It is certainly not defamatory to say that that paper “will retract its former statement, and publish the facts in the case from my side.”- Neither is it defamatory to say that plaintiff got up the raffle without the consent of the defendant Gladman, or that the defendant Gladman was opposed to it. To oppose it would be very creditable. There is no defamation in the statement that the defendant Gladman had received nothing from the result of the raffle, or that the mortgage was still in the hands of the collector to foreclose. The letter does not charge that plaintiff had received any of the money resulting from the raffle, or that he had anything to do with the matter any further than to appoint a committee. The article cannot be fairly construed into charging plaintiff with having received the money, and a refusal to pay it over. Fairly construed, it means no more than that plaintiff got up a raffle without the consent of defendant Gladman; that he appointed a committee to take charge of it; that defendant Gladman has received nothing from it; that plaintiff said he had received no money from it; that some members purchased tickets (but does not charge that they were purchased of the plaintiff); and that defendant Gladman states the facts, so that those who bought may get their money back. There is nothing in the article which can be construed into charging criminal or degrading conduct on the' part of the plaintiff. No claim is made in the brief of counsel for the plaintiff that this article is libelous because it charges him with engaging in a lottery scheme. If this were so, the article would clearly be libelous, and the judgment should be reversed. The only reason claimed for holding that this article is libelous is that it imputed the crime of obtaining money by false pretenses and the crime of embezzlement.

Judgment affirmed.

Moore and Long, JJ., concurred with Grant, C. J.

Hooker, J.

(dissenting). I am of the opinion that the demurrer should not have been sustained. It is obvious that the alleged article charges a crime under 3 Comp. Laws 1897, § 11344, which- punishes by fine not •exceeding $2,000, or imprisonment not exceeding one year, those who engage in lottery schemes. This makes it libelous per se. To my mind, the language of the article -declared upon is susceptible of the' interpretation given it hy the innuendo, viz., that the plaintiff had procured money from the friends of the defendant Grladman upon a raffle gotten up by the plaintiff for the professed, purpose of relieving the necessities of the defendant Gladman, but that he had not applied it to such purpose, and had denied laving received any money from the raffle. It is said that the words must be given their natural meaning, which forbids such a construction; but this cannot be, or there would be no occasion for the use of innuendoes. Words- many times do not, upon their face, fully convey the meaning intended or understood. Sometimes, when used ironically, they mean the exact opposite of their commonly understood meaning. It is competent to show this by the circumstances under which they are used, but in such cases an innuendo becomes necessary. The meaning may depend upon the inflection, emphasis, or manner of the speaker. So, when the libel consists of a picture. 13 Am. & Eng. Enc. Law, 394; Edwards v. Chandler, 14 Mich. 471 (90 Am. Dec. 249); Ewing v. Ainger, 96 Mich. 593; Simons v. Burnham, 102 Mich. 193 et seq. It is elementary that, when words are susceptible of two or more constructions, the jury must determine the meaning (13 Am. & Eng. Enc. Law, 378 et seq., and 385); and we should not apply the rule that words are to be understood in their plain and natural meaning where the circumstances (as set up in an inducement or indicated by the alleged libel) under which they were spoken or published show that they were intended and understood differently. We are not trying the merits of this case, and we must take these words as charged. If we do, they are libelous, both because they charge a crime, and because they charge dishonesty in withholding funds received for a given purpose.

The order of the circuit court should be reversed, and the cause remanded for further proceedings.

Montgomery, J., concurred with Hooker, J.