author: Blair, J. McAlvay, J.

text:
    SMITH v. AUDITOR GENERAL.
    1. Constitutional Law — Statutory Construction — Evidence.
    In construing statutory provisions the practical construction which the legislature has during a long period of time adopted with reference to their meaning, is entitled to weight.
    3. Public Officers — Statutes—States—Salaries.
    Employés of the legislature are entitled to compensation at the rates fixed by Act No. 85, Pub. Acts 1907, during the entire time of the session, including Sundays and ordinary adjournments. Const. 1850, Art. 4, § 15. McAlvay, J., dissenting.

      Mandamus by Clarence B. Smith to compel Oramel B. Fuller, auditor general, to countersign a certificate and issue a warrant for relator’s salary as assistant secretary of the senate.
    Submitted March 6, 1911.
    (Calendar No. 24,493.)
    Writ granted March 27, 1911.

      Tuttle, McArthur & Dunnebacke (De Vere Hall and Dwight G. F. Warner, of counsel), for relator.

      Franz C. Kuhn, Attorney General, and Thomas A. Lawler, Assistant Attorney General, for respondent.
   Blair, J.

On or about January 10, 1911, relator was duly appointed to the office of assistant secretary of the senate. On February 2d there was issued to him, under the provisions of section 13, 1 Comp. Laws, being section 3 of Act No. 3, Session Laws of 1873, as amended by Act No. 85, Pub. Acts 1907, a certificate, signed by the president and secretary of the senate, that there was due to relator for services as such assistant secretary the sum of $60 for the salary period, January 24, 1911, to February 2, 1911, inclusive. The senate was in actual session on each day during said period, except Saturday, January 28th, and Sunday, January 29th. The relator presented such certificate to the auditor general for his signature, as provided in section 13. The auditor general refused to countersign it, basing his refusal upon a written opinion of the attorney general that officers and employés of the house and senate are not entitled to a per diem compensation for services rendered on Sunday.

Belator’s petition prays for a writ of mandamus directing the auditor general to countersign such certificate, and also to issue his warrant on the State treasurer therefor. If it shall appear, as contended by relator, that respondent’s position cannot be sustained in law, then the writ should issue, commanding him to perform one or both of said duties.

The Constitution of 1835, Art. 4, § 18, provided that:

“ The members of the legislature shall receive for their services a compensation to be ascertained by law * * * and such compensation shall never exceed $3 a day.”

The Constitution of 1850 provided, article 4, § 15:

“The compensation of the members of the legislature shall be $3 per day for actual attendance and when absent on account of sickness for the first sixty days of the session of the year 1851 and for the first forty days of every subsequent session, and nothing thereafter. When convened in extra session their compensation shall be $3 a day for the first twenty days and nothing thereafter.”

Speaking of these Constitutions, this court said at an early day:

“Under the former Constitution the amount of ¡compensation allowed to members and officers of the senate and house of representatives was settled upon and fixed annually by the legislature itself, but the amount is no longer the subject of legislation. It is now clearly and definitely settled and fixed by the revised Constitution. Section 15 of article 4 of that instrument provides as follows,” etc.

This section was amended in 1859-60 so as to read:

“ The compensation of the members of the legislature shall be three dollars per day for actual attendance, and, when absent on account of sickness, but the legislature may allow extra compensation to the members from the territory of the upper peninsula, not exceeding two dollars per day during a session. When convened in extra session their compensation shall be three dollars a day for the first twenty days, and nothing thereafter. * * * ”

With these provisions of the Constitution in force, the legislature adopted Act No. 3 of the Session Laws of 1873, entitled, “An act to provide for the payment of the officers and members of the legislature.”

Section 2 provides that:

“ The compensation of the president and members of the senate and of the speaker and members of the house of representatives shall be three dollars per day each, for actual attendance, and when absent on account of sickness during the session of the legislature. * * * The compensation of the secretary, engrossing and enrolling clerk and sergeant at arms of the senate, and their authorized assistants, * * * shall be three dollars a day each, for actual attendance during the session,” etc.

This section was amended in 1907 (Act No. 85, Pub. Acts 1907) so as to read:

“ From and after the first day of January, 1901, the compensation of the president and members of the senate, and the speaker and members of the house of representatives, shall be three dollars per day^each, for actual attendance, and when absent on account of sickness during the session of the legislature. * *' * The per diem compensation of the secretary of the senate shall be ten dollars; of the first assistant secretary, six dollars, * * * which compensation shall be in full for all services performed during any regular or special session,” etc.

These provisions of the statute render it clear that it was the intention of the legislature to place the compensation of the officers referred to upon precisely the same legal standing as their own, namely, a fixed compensation per day for aetual attendance during the session. If, therefore, a reasonable construction of the constitutional provisions determining their compensation authorized the members of the legislature to receive their per diem compensation upon a computation including Sundays, it logically follows that the same mode of computation is to be used in determining the relator’s compensation.

It will be observed that by the original Constitution of 1850, compensation was limited to the, first 60 days of the session, etc., and as amended in 1860, although the provisions limiting payment at the first session to 60 days and thereafter to 40 days were omitted, the provision was retained that when convened in extra session their compensation should be $3 per day for the first 20 days.

The Constitution of 1850, Art. 4, § 28, contained a further provision that:

“ No new bill shall be introduced into either house of the legislature after the first 50 days of a session shall have expired.”

‘ So far as we have been able to ascertain, this provision has always been construed by the legislature as limiting the introduction of new bills to the first 50 successive days of the session, including Sundays. While the correctness of this practical construction of the legislature has not been expressly passed upon by the court, it was recognized in the case of Davock v. Moore, 105 Mich. 120 (vide page 133, 63 N. W. 424, 28 L. R. A. 783). In that case the bill was introduced on the fiftieth consecutive day, including Sundays, and the court said:

“It appears that the bill was introduced on the fiftieth day, and therefore within the time limited by this clause of the Constitution. ”

This is the natural meaning of the language used, and is in accordance with the contemporaneous and subsequent constructions of the legislatures of the State, both of which considerations are entitled to weight in determining the proper construction of the constitutional provisions. Attorney General v. State Board of Assessors, 143 Mich. 73 (106 N. W. 698); Menton v. Cook, 147 Mich. 540 (111 N. W. 94). This construction is further strengthened by the provision of article 4, § 14, of the Constitution, that:

“If any bill be not returned by the governor within 10 days, Sundays excepted, after it has been presented to him,” etc.

If the words, “first fifty days of a session ” used in section 28 of article 4 include Sundays, no good reason is perceived why the same interpretation should not be applied to similar words used in the sections as to compensation.

Under our Constitution and laws the session of the'legislature is to be considered as an entirety, its beginning fixed by the Constitution itself. As said by Mr. Cushing:

“ The sitting of a legislative assembly, from day to day, begun on the day fixed by law, whether a quorum assembles, or the assembly is organized on that day, or not, and brought to a close by lapse of time, or by mutual agree■ment, constitutes a session for all legal or parliamentary-purposes.” Law and Practice of Legislative Assemblies, par. 507.

The usual temporary adjournments of the legislature, which are, in fact, necessary to enable the members to perform their duties as members of special and standing committees, in making investigations for the purpose of acquiring necessary information and drawing reports, bills, and amendments for the action of the house when in session, and in performing the manifold duties incident to their position and necessary to the proper discharge of their duties, have, in our opinion, no effect upon the continuity of the session.

It is tobe observed that neither the right of themembers of the legislature nor of the officers and employés is grounded upon the right to receive compensation for services actually rendered upon Sundays,, but upon the view that the method of computing the time in determining their compensation as fixed by the Constitution and laws concerning the same recognizes all days of the session, whether work is done thereon or not, in which the legislature may legally be said to be in session as proper days to be included in the computation. We have no doubt, however, that an adjournment of the legislature and the dispersal of its members to attend to their own affairs to the exclusion of those of the State may cover such a period of time as to exclude the view that the legislature is in session, for the purpose of basing compensation upon services rendered.

The fact, also, that the members of the legislature have always claimed the right to, and have received, compensation for Sundays during the sessions, while insufficient to overturn the plain meaning of a,statute, is of considerable moment in ascertaining the intention of the legislature in passing statutes providing for their compensation. There is much, also, in the variance of the language as to the three classes of officers and employés used in the amendment of 1907 to strengthen our conclusion that it was the intention of the legislature that, as to relator’s class, at least, Sundays should be counted in computing his per diem compensation. The provision of the original act of 1873 requiring actual attendance during the session is omitted as to the first class of officers provided for in the section, although it is retained as to the second class, and in perhaps stronger language as to the third class.

It is conceded by the attorney general that the relator is entitled to compensation during ordinary adjournments, except as to Sundays, as we understand, even though not necessarily employed in performing services upon those days, from which it appears to us to follow that the jper diem provided is not the usual per diem compensation for services actually rendered and to be paid for only as actually rendered; but, as we have heretofore said, a method for computing the amount due. So far as we have been able in the brief time at our disposal to examine authorities, they appear to support our conclusion that Sundays are to be included in the computation of the salaries, and that the Sunday law, § 5912, 2 Compiled Laws, has no application to the question. Cushing’s Law & Practice of Legislative Assemblies, §§ 356, 357; Ex parte Pickett, 24 Ala. 91; State v. Hastings, 16 Wis. 358; Moren v. Blue, 47 Ala. 709; Moog v. Randolph, 77 Ala. 597, vide page 607; State v. State Auditor, 37 Mo. 176.

It is argued by the attorney general that Moog v. Randolph, supra, and Ex parte Cowert, 92 Ala. 94 (9 South. 225), holding that a constitutional provision, which limited each session of the general assembly to 50 days, means working days and Sundays are excluded from the computation, overrule the previous cases in that State above cited. In Moog v. Randolph, the court said:

“ The right to adjourn ad libitum, upon certain week days, and the right to draw pay for such days, are questions not necessarily dependent, the one on the other. The power to adjourn may exist, without the right to draw pay; and they are not convertible or correlative powers, as has been argued before us at the bar. This suggestion is not intended to cast any doubt upon previous decisions of this court, holding that the members of the general assembly are entitled to draw their per diem pay on Sundays — a view in which we all fully concur.”

We are therefore of the opinion that the relator is entitled to the writ as prayed, and it is so ordered.

Ostrander, C. J., and Bird, Hooker, Brooke, and Stone, JJ., concurred.

McAlvay, J.

(dissenting). I am unable to agree with the conclusions of Mr. Justice Blair in this matter, as set forth in his opinion. The only question involved is the construction of a portion of the statute which provides for the compensation of the officers and members of the State senate, viz., section 2 of Act No. 85, Pub. Acts 190?. The facts of the case as stated in that opinion do not require repetition.

For purposes of convenience the portion of the act under consideration may, however, be properly quoted:

“From and after the first day of January, 1901, the compensation of the president and members of the senate, and the speaker and members Of the house of representatives, shall be three dollars per day each, for actual attendance, and when absent on account of sickness during the session of the legislature. * * * The per diem compensation of the secretary of the senate shall be ten dollars ; of the first assistant secretary, six dollars, * * * which compensation shall be in full for all services performed during any reguler or special session for which they are elected by the senate or appointed by a superior officer,” etc.

For the purposes of an intelligent construction of this statute we must know what it says, not what after one reading we may think it says. Such knowledge can be acquired only by repeated and critical readings of the entire quotation.

After such careful study, and applying the fundamental rule of all construction, that usual and ordinary words must be given their usual and ordinary meaning, I discover no ambiguous or hidden meaning in the simple language used. This statute provides that the per diem compensation of relator (who is first assistant secretary of the senate) shall be $6, and there is no statement, express or implied, that the days of employment are to be other than the usual, ordinary, and lawful days of any ordinary employment.

The contrary is not claimed by relator and those who agree with him. The claim is that, in order to arrive at the true intent of the legislature as to the days of the employment, other constitutional and statutory provisions must be considered, together with the construction of long-continued practice given to the same by the legislature. It is sufficient answer to such claim to say that such rule of construction is never allowable or resorted to where no ambiguity or doubtful meaning appears on the face of the statute under consideration.

Further, whatever view the legislature may have taken of the provisions of the State Constitution that view cannot control in construing this legislation, unless it appears that it acted within its authority and such action is conclusive. Nor will its construction of its own legislation be binding, if in contravention of the Constitution or the general laws.

After quoting constitutional and statutory provisions the constructions of which are relied upon, we will proceed to the consideration of the argument tending to support relator’s claim, which, stated briefly, is that, under this statute, he is entitled to compensation at $6 per day for every day, both week days and Sundays, from the time of his appointment until the close of the legislative session.

The portion of the section (section 2 of the act of 1907) as far as quoted, and as far as material to this case, does not in any respect change section 2 of Act No. 175, Pub. Acts of 1901, which it amends, and which was an amendment to section 2 of Act No. 3, Pub. Acts 1873 (1 Comp. Laws, § 12), entitled, “An act to provide for the payment of the officers and members of the legislature,” which provided :

“The compensation of the president and members of the senate, and of the speaker and members of the house of representatives, shall be three dollars per day each, for actual attendance, and when absent on account of sickness during the session of the legislature. * * * The compensation of the secretary, engrossing and enrolling clerk, and the sergeant at arms of the senate, and their authorized assistants, * * * shall be three dollars a day each, for actual attendance during the session,” etc.

This act of 1873 was enacted under section 15, Art. 4, of the Constitution of 1850, as amended in 1860, which provided :

“The compensation of the members of the legislature shall be three dollars per day for actual attendance, and when absent on account of sickness, * * * ” etc.

It is urged that because under this constitutional provision and the statute, both of which provide for payment for actual attendance and when absent on account of sickness, the different branches of the legislature voted themselves a per diem of $3 for every day from beginning to end of the session that must stand as a legislative construction, and control in the instant case. This is not a reasonable construction of this constitutional provision or the statute, and such provisions never authorized compensation to the members of the legislature for Sundays, and no claim is made that they would, except for the so-called construction of the legislature. It was in direct violation of both the Constitution and the statute. Surely this court will not consider such an act a construction of the Constitution or of the statute.

Another provision of the Constitution of 1850 was:

“ That no new bill shall be introduced into either house of the legislature after the first fifty days of a session shall have-expired ” (a provision which is not contained in the present Constitution).

In a case, Davock v. Moore, 105 Mich. 120, at page 133 (63 N. W. 424, 28 L. R. A. 783), where a bill was introduced on the fiftieth consecutive day of the legislative session, including Sundays, this court said:

“ It appears that the bill was introduced on the fiftieth day, and therefore within the time limited by this clause of the Constitution.”

The question as to whether Sundays were to be counted or not was not before the court. It was in fact on the fiftieth day and within the constitutional provision in any event, whether Sundays were included or not. This is claimed to be a recognition by this court that Sundays are to be counted as legislative days. This case does not support the contention. Other courts have passed upon the question, holding against relator. Ex parte Cowert, 92 Ala. 94 (9 South. 225); Moog v. Randolph, 77 Ala. 597.

In Ex parte Cowert, supra, a statute was claimed to be void because enacted after the lapse of 50 days to which sessions of the general assembly are limited. The court said:

“It has more than once been determined by this court, and we have no disposition to depart from our rulings on that subject, that ‘ days,’ within the limitation upon the sessions of the general assembly imposed by section 5, Art. 4, of the Constitution, means working days, and, of consequence, that Sundays are to be excluded from the computation by which the end of the session is to be determined,” citing Moog v. Randolph, 77 Ala. 597; Sayre v. Pollard, 77 Ala. 608.

These are the latest and therefore the controlling pronouncements of that court, and in no cases in that State has the question of including Sundays in computing compensation been before the court. There are dicta upon the subject in two cases relied upon by relator, which are referred to and quoted in the opinion of Mr. Justice Blair.

The provision in the Constitution of 1850 relative to compensation of members of the legislature provided pay only for each day “for actual attendance, and when absent on account of sickness.” The statute of 1873 in terms followed this provision of the Constitution providing for a per diem compensation for employés of the senate “while in actual attendance.” The striking out of these words in 1901 and 190?, where they appeared the second time in the act of 1873, was simply removing a redundancy and has no effect upon this construction; We must construe this section as a whole.

While a session of the legislature is, in a certain sense, continuous from its opening until its final adjournment, it cannot be said that Sundays can be called legislative days. It will not be contended that exigencies threatening the public safety, the public health, etc., might not arise where legislative action on Sunday would be perfectly proper, but the journals of both branches of the legislature show that during all of its sessions since the State was organized no such sessions have been held upon Sunday, and that adjournments over that day have always been taken. The legislature by such action has by an unbroken record recognized that Sunday is not a working day, and also recognized the provision of the general law prohibiting work on Sunday. A branch of the legislature is no more authorized to ignore the laws of the State than an individual, and unlawful agreements of employment W’th its agents cannot be made by it.

This court has frequently declared the policy of the State relative to the observance of Sunday laws. It recently held, in an opinion written by Mr. Justice Carpenter :

“The Sunday law in question in this case is one not merely directed against the making of contracts as such. It prohibits and makes illegal the doing of all work except works of necessity and charity, and it makes the doing of such prohibited work punishable by a fine,” etc. International Textbook Co. v. Ohl, 150 Mich. 131 (111 N. W. 768, 13 L. R. A. [N. S.] 1157, 121 Am. St. Rep. 612).

The foregoing recognition by the legislature, the Sunday statute, and the decisions of the court relative to the Sunday laws are invoked as bearing against the conclusiveness of former action of the branches of the legislature upon the matter of per diem compensation urged as a controlling construction in favor of relator. The conclusion cannot be avoided that the action of the branches of the legislature was not a binding construction of the Constitution and this statute. The repeated violation of a constitutional or statutory provision cannot amount to, or become, legislative construction by labeling it such. It remains a repeated violation of law and nothing more.

Such, in effect, has been held by this court in a case where a portion of the compensation clause of this statute was before it for construction. A mandamus was asked to compel the auditor general to countersign a certificate issued by the speaker and clerk for mileage claimed to be due relator, a journal clerk of the house of representatives, during the regular session of 1901. Cook v. Auditor General, 129 Mich. 48 (87 N. W. 1037). An examination of the original record and briefs in the case discloses that relator principally relied upon the legislative construction of the statute by long continued practice. In his brief he says:

“A careful examination of the senate and house journals shows that both houses have, each for itself, continuously and without challenge, ever since the adoption of the present Constitution, exercised the right of determining the mileage of their members, officers, and employés.”

In support of this contention numerous pages are cited from these journals. Again—

“We submit that the practical construction of the statute of 1873 always has been that each house possesses the power to fix the mileage of its own members, officers, and employés, and that it is too late to question that practice now.”

This is familiar language. By substituting per diem for “mileage” we have a perfect reproduction of relator’s argument in the instant case.

In Cook v. Auditor General, supra, Chief Justice Montgomery, speaking for the court, said:

. “It is the contention of the relator that he (referring to the auditor general) has no discretionary power in the matter; that the house of representatives itself determines the amount of the mileage due to each member. And this is based upon long-continued practice, upon the claim of necessity, and upon the claim that each house exercises • certain judicial powers, such as are necessary to determine questions arising in matters peculiar to itself. * * * But whatever may be said of the force of practice in the absence of any statutory provision, it is clear that the legislature, acting through both branches, and by law approved by the governor, has the undoubted power to limit the exercise of such practice, and to prescribe what the compensation to employés shall be, and the manner in which it shall be determined," * * * The duty of certifying this per diém and mileage presupposes the ability to determine, and imposes the duty upon the officers whose duty it is to so certify and countersign the certificate of determining, the amount due; and it is significant -that the statute provides that the amount so certified shall be such sums as may be due ‘ under the provisions of this act,’ which is the statute fixing the compensation. * * * So, in the present case, the duty of certifying implies a duty of certifying the truth. This necessitates an ascertainment of the truth, and, by the language of the statute, it imposes upon the officers whose duty it is to certify and countersign the duty of ascertaining how much is due by the terms of the act. In holding thus we in no way infringe upon the prerogative of a co-ordinate branch of the government. We but affirm the-law which the legislature has itself enacted. * * *
“It is suggested that, if the view above indicated is adopted, money has been drawn illegally from the State treasury in a great many instances, for the reason that the legislature has assumed to. pass a resolution fixing the mileage of its members at the close of the session. But we assume that in the cases referred to there has been also the certificate of the proper officers, countersigned by the auditor general; and, if this be so, it can hardly be said that the funds were illegally withdrawn from the State treasury. However this may be, and giving due regard to the force of long-continued practice, we are not able to discover in the statute in question any ambiguity.”

I think the case is decisive of the construction involved in this case under consideration. The court in its construction of this statute refused to recognize the claimed legislative construction, because it was not able to discover in the statute in question any ambiguity. It is the principle of construction insisted upon early in this opinion. This court cannot hold differently in the case at bar without overruling Cook v. Auditor General, supra. The cases are not distinguishable. The fact that in that case the court was considering “mileage,” and in this case the per diem of legislative employés, does not make a distinction in the principle involved in the two cases. The construction of this statute by this court in Cook v. Auditor General, was accepted by the legislature. Since it was decided, no attempt has been made by that body to alter, amend, or repeal the section under consideration. Such construction must therefore be considered as final and binding until that case is overruled.

Should there remain any doubt of the correctness of the conclusions arrived at in this opinion, attention is called to a further reason why the relator is not entitled to the relief asked. The Constitution of 1909 does not contain the provision relative to compensation of members of the State legislature upon which the claimed construction must stand. The constitutional provision now is as follows:

“ The compensation of the members of the legislature shall be eight hundred dollars for the regular session. When convened in extra session their compensation shall be five dollars per day for the first twenty days and nothing thereafter.” (Const. 1909, Art. 5, § 9.)

By implication this section of the statute of 1873 under consideration, in so far as it relates to the compensation of members of the legislature, is repealed, and is no longer of any force or efféct. The new Constitution does not contain the provision limiting the right to introduce bills after the expiration of the first 50 days of a session.

No attempt has been made on the part of the legislature to amend this statute. All legislative enactments which, are not in harmony with the new Constitution cannot survive, and are not entitled to any consideration. All which do remain and have force and effect under this Constitution must be construed in harmony with its letter and spirit, and any construction heretofore given, founded upon any statute which is not in harmony with the letter and spirit of the present Constitution, is of no force or effect. It cannot be recognized by this court, for the reason that all decisions of this court must be in harmony with the present Constitution. The construction contended for is purely mechanical and must be so accepted. It is contrary to my sense of justice. Like the idol of the prophet’s vision, it has the semblance of strength, but its feet are made of clay.

The conclusion is that the relator is not entitled to the relief prayed. The writ should therefore be denied.


source: Caselaw Access Project

author: McAlvay, J. Blair, J.

license: Public Domain

text:
    CARDINAL v. HOUGHTON COUNTY STREET RAILWAY CO.
    1. Street Railroads — Collision With Vehicle — Contributory Negligence.
    Considering plaintiff’s case in its most favorable light, he was guilty of contributory negligence in attempting to drive across defendant’s car track, at a curve, with the car coming behind him in plain view, where he merely looked to one side so as to obtain a view from 5 to 6 feet back, and was struck by the car as it turned the corner.
    2. Same — Contributory Negligence — Discovered Negligenoe.
    The trial court having held that the verdict was against the weight of the evidence, it is not a proper case for the application of the rule that a plaintiff is entitled to recover if his negligence was or ought to have been discovered in time to have prevented the injury. Blair and Bird, JJ., dissenting.

      Error to Hougnton; Streeter, J.
    Submitted June 8, 1910.
    (Docket No. 25.)
    Decided March 31, 1911.
    Case by Dolphis Cardinal against the Houghton County Street Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Allen F. Rees, for appellant.

      P. H. O'Brien (W. A. Burritt, of counsel), for appellee.
   McAlvay, J.

Plaintiff recovered judgment against defendant for injuries claimed to have been negligently inflicted upon him by defendant in the operation of one oi its cars. A part of defendant’s street railway runs from Red Jacket to Houghton. This electric road, in going from the former to the latter place, passes through the village of Laurium along Lake Linden avenue to Florida street, which joins Lake Linden avenue at about a right angle. The car tracks turn into Florida street on a curve and continue on said street towards Houghton. Along these streets the line is double tracked, running on each side of their center lines for the entire distance involved in this case. Lake Linden avenue extends on in an easterly course beyond Florida street to the village of Lake Linden.

On the day in question, July 16, 1907, plaintiff, who was a truck farmer and lived in Lake Linden, had been peddling his produce from house to house in the village of Laurium, and also in Red Jacket and Calumet. He drove a one-horse buggy without a top, and had a boy to help him and to tend the horse. He took a lunch in a saloon, and they visited all the saloons in Laurium and Red Jacket in the course of trade during the day. Returning towards home in the afternoon, driving towards the east along the south side of Lake Linden avenue, with the boy riding on the seat next to the car track, intending to proceed on Lake Linden avenue beyond Florida street, he claims that, just as his horse had stepped on the first track, a car of defendant coming up behind him on the south track, which he was crossing, struck the front wheel of the buggy and threw him forward on the dashboard, breaking his leg at the ankle. The boy received some bruises on the left side of his face and jumped off. As the car track makes this curve into Florida street, it comes nearer the curve at the corner, leaving quite a narrow passage between the side of the car and the curb. At the time of the accident, a car bound in the opposite direction for Red Jacket was standing on the other track 105 feet south of the intersection of these streets.

Plaintiff says that he looked back to see if a car was approaching when he got to the last block, which would be about 250 feet frorh where the accident occurred at the curve, and could see two or three blocks, and saw no car coming. When he got ten feet from the curve he says he looked on the side a little bit back and saw or heard no car. He says the horse got on the track, and he then saw the car coming alongside of him. He pulled instantly on the horse to get him from the track, and the collision occurred. There is some disagreement in the testimony for plaintiff as to whether or not the horse and buggy were on the track at the time the car struck it. One witness, who was a passenger in the car which was standing still on the other track south of the place of collision, testified that the buggy was on the track. The testimony of the plaintiff and the boy is to the effect that the -buggy was not upon the track. The undisputed fact is that the horse was not injured at all, and that when the car stopped, the buggy was alongside of the car and between it and the sidewalk. The damage to the buggy consisted in breaking the forward left wheel, one of the thills, and part of the dashboard. After the car struck the buggy, all the witnesses agree that it moved but a short distance; the boy says about one foot. Some of the witnesses on the part of plaintiff testified that the car had a speed of 20 miles an hour until it came to the curve. The testimony for defendant tended to show that the car was running slowly the whole length of this block, under perfect control; that plaintiff drove rapidly up from behind the car, urging his horse, attempting to get ahead, and was not seen by the motorman; that as the car rounded the curve it collided with the plaintiff’s rig just before he reached the track in an attempt to cross ahead of the car; that plaintiff had been drinking, and his injury was caused by his own negligence.

The court submitted the case to the jury, which returned a verdict for plaintiff. A motion for a new trial was denied. The errors assigned and relied upon by defendant relate to the refusal of the court to direct a verdict for defendant; the refusal to give certain requests to charge; rulings on certain evidence; and the refusal to grant a new trial. When the plaintiff rested his case, and also at the close of the entire case, defendant moved and requested the court to direct a verdict in its faver on account of the contributory negligence of the plaintiff.

The record shows without dispute that plaintiff was perfectly familiar with the crossing of the car tracks at the place in question; that for several years he had crossed it frequently in going from and returning to his home. The entire distance from the place where he was injured along Lake Linden avenue westerly for several blocks, a distance of 1,000 to 1,200 feet, was level, straight, and unobstructed.

In determining whether or not the court was in error in denying defendant’s motion, we must give the plaintiff’s case its greatest probative force, and find, as a matter of law, that upon his own showing he was guilty of contributory negligence. Plaintiff testifies that he was driving along this street with the horse upon a walk for the last block. He says on direct examination:

“I was driving on Lake Linden avenue, and I got to the last block. It was about by Hebert’s place. I looked behind me, I don’t know how far, maybe a block or two behind me. I didn’t hear any car coming. I thought to drive along slowly — the horse was on a walk as far as the -corner, and before I got to Florida crossing, ánd about 10 or 15 feet before I tried to cross the track, I was busy to look ahead of me to see if any car was coming from Houghton or Lake Linden, and I happened to see a Lake Linden car was laying there not far from the curve, laying still, and I turn on the side and was listening to see if I could hear any car coming from behind me. I didn’t hear any car coming from behind me, and I didn’t see none. I thought I was all right as far as the curve. sfc * *
“Q. Did you, or did you not, look to see whether a car was coming from behind ?
“Mr. Bees: Same objection.
The Court: I think that is subject to the same ruling; but, being the third question, I will permit it to be answered, and give you an exception. * * *
“A. Yes sir; before I got to the curve on the crossing, I look to the side and I was listening if I could hear a car coming. I didn’t see no car coming. I didn’t hear anything. I thought I was all right, and as soon as the horse was on the track, the first thing I. see the Houghton car was coming alongside of me, and ‘Lord,’I says to myself, ‘ I am too late !’ * * * I recollect a pole at the corner of Lake Linden avenue and Florida street.
Q. When you looked to the side to see if you could hear something coming, you may tell us where you were with reference to that pole, how far from the pole ?
“A. I was about 15 feet from the pole when I look on the side. I cannot tell exactly how far I look back along the rack, but I can tell as near as I think I did look. I was about ten feet from the curve. Before I got to the curve the last time I look on the side about maybe five or six feet. I was listening at the same time if I could hear any car coming behind me, and I didn’t hear no car coming behind me, and I didn’t see no car behind me.” * * *

On cross-examination witness repeats his testimony about looking back the first time about two blocks, and says concerning the last look at the curve:

“ I look on the side a little bit back. I look on the side. We can see a little back when we look on the side. I didn’t see the car. I didn’t look far back. I was looking ahead. I was more fear for the Houghton car (the one coming behind him). The Lake Linden car was stopped. I saw the Lake Linden car was lying still, so I thought I was all right to cross the curve.
“Q. And you didn’t look back to see any car coming from behind ?
“A. When I got to the curve I just look on the side.”

This is all of plaintiff’s testimony, and all of the evidence on his part, showing the degree of care he exercised as he approached the crossing at this curve.

The degree of care which a person is bound to exercise in crossing a car track, which of itself is a place of danger, is such care as the situation and surroundings demand of a prudent and careful person. Gardner v. Railroad Co., 97 Mich. 240 (56 N. W. 603); McGee v. Railway Co., 102 Mich. 115 (60 N. W. 293, 26 L. R. A. 300, 47 Am. St. Rep. 507); Bennett v. Railway Co., 123 Mich. 692 (82 N. W. 518). After he took his first look behind him at a distance at least 250 feet from the crossing, until he was injured, he took no look behind, except, as he states, looking a little to the side, which he thinks gave him a view of 5 or 6 feet behind him. He had an unobstructed view behind for 3 blocks and more, and, when about 75 feet from the crossing, an unobstructed view in front of him to the corner and down Florida street, the only direction, other than from behind him, from which danger could threaten. He saw the other car standing there, and knew that danger, if any there could be, must arise from a car approaching from behind. At the time he looked a little to one side, one look behind, which he was bound to give, would have disclosed this approaching car which was then in full view. We can draw no other conclusion from his testimony and the undisputed physical facts which make it certain that if he had looked he would have seen the approaching car, but that he was guilty of negligence which contributed to his injury.

It is contended that, under the circumstances shown by the record, this case is brought within our decisions which hold that, notwithstanding the negligence of plaintiff, it is a question of fact for the jury whether or not the motorman after discovering such negligence by the exercise of reasonable care could have avoided the collision.

Whether this case comes within the rule laid down in the line of cases cited can be determined only from an examination of the evidence in the record. The case has been tried three times. In denying defendant’s motion for a new trial after the last trial — the motion was upon the grounds: (1) That the verdict was against the weight of evidence; and (2) that plaintiff was guilty of contributory negligence — the trial court said:

“ This cause has been tried in this court three times. The verdict of the jury on the first trial was in favor of .the plaintiff. On motion of the defendant the verdict was set aside and a new trial granted, because the verdict was clearly against the weight of the evidence. On the second trial the jury disagreed, and a third trial was had, resulting in a verdict in favor of the plaintiff. The testimony offered and received on the three trials was substantially the same. My opinion, entertained at the close of the first trial, that the verdict was contrary to the weight of the evidence, remains my opinion at the close of the third trial.” * * *

He further says:

“In the present case, so strong is my opinion as to the weight of the evidence that I should probably grant a motion, could I discover any way of submitting the second ground on which the motion is based to the determination of the Supreme Court without the expense of another trial.”

This is the judgment of the court who tried tne case three times upon the weight of the evidence. We do not determine that question; but we may give it consideration in determining whether, under the evidence, a case is disclosed where the doctrine of discovered negligence should be applied. From our examination of the evidence we find that this is not a case for the application of that doctrine, and determine that, as a matter of law, plaintiff was guilty of contributory negligence and cannot recover.

It follows that it will not be necessary to consider other questions.

The judgment is reversed and set aside, and a new trial will be granted.

Brooke and Stone, JJ., concurred with McAlvay, J.

Blair, J.

I concur in the reversal of this case upon the ground that the plaintiff was guilty of contributory negligence, as a matter of law, and that the jury should have been so instructed. I am not prepared, however, to hold, as a matter of law, that there was no evidence which would permit of the application of the doctrine of discovered negligence, and am therefore of the opinion that a new trial should be ordered.

Bird, J., concurred with Blair, J.


author: Brooke, J. Bird, J.

text:
    BROWN v. FULLER.
    1. Easements — Drains and Sewers — Way by Neoessity.
    The grantor of land by warranty deed is not entitled to maintain a sewer extending across the land of the grantee, and through and above the bottom of a proposed cellar, which the grantor knew at the time of executing the conveyance was to be dug, without a reservation of such right, or strict necessity therefor, continuous user, and the apparent existence of the easement. Bird and Moore, JJ., dissenting.
    2. Same — Implication.
    The purchaser of one of two tenements owned by the vendor takes the portion sold with all the benefits and burdens which appear at the time of the sale to belong to it, as between it and the property which the vendor retains.

      3. Same — Conveyances— Warranties.
    No reservation of an easement by implication arises from a conveyance of premises by a deed containing full covenants of warranty, without express reservation of the right or a strict necessity therefor.
    Appeal from Kalamazoo; Knappen, J.
    Submitted October 12, 1910.
    (Docket No. 52.)
    Decided March 31, 1911.
    Bill by Constance Reed Brown against Horace J. Fuller and Lizzie P. Fuller to enjoin defendants from obstructing a sewer and to require them to rebuild portions already destroyed. From a decree for complainant, defendants appeal.
    Reversed and bill dismissed.

      E. M. Irish, for complainant.

      Osborn & Mills, for defendants.
    Complainant and defendants were, respectively, owners of adjoining lots facing Burdick street, in the city of Kalamazoo. Upon complainant’s lot, which was 22 feet wide and about 230 feet deep, extending to Farmer’s alley, there had stood for many years a three-story brick block, running east from Burdick street about 90 feet. To the east and in the rear of said brick building, a one-story building extended eastward to the alley, about 130 feet. The sewage from the brick block was conducted under the one-story building to a lateral sewer in Farmer’s alley. The roof drainage of the block was carried onto the roof of the one-story building and thence to the alley. Defendants desired to erect a theater, and, their own lot not affording sufficient area for their purpose, negotiated with complainant for the purchase of the rear or easterly 130 feet of her lot. On November 9, 1908, a warranty deed of said parcel with full covenants against incumbrances was executed by complainant to defendants for a consideration of #5,000. This deed contains the following agreement:
    “It is understood and agreed between the parties hereto, as a part of the consideration of this deed, that the second parties are to build a wall on the west side of the land above conveyed, about 16 inches thick and about 40 feet in height, and that the party of the first part is to own said wall jointly with the second parties, and it is to be used as a party wall. The center of the said wall to be on the west line of the land above conveyed.”
    Defendants, after said purchase was completed, proceeded to tear down the one-story building which stood on the lot conveyed, and commenced excavation for the basement under the proposed theater. In excavating, the sewer from complainant’s block was uncovered, and as defendants desired to make a basement nine feet deep, which was three or four feet deeper than the sewer, the sewer was cut, and the excavation proceeded. In the negotiations complainant did not advise defendants of the existence of the sewer, and the record does not show that they or either of them knew it was there.
    After the sewer was cut, complainant filed her bill of complaint, praying for a mandatory injunction compelling defendants to restore the sewer connection and roof drainpipe, and for a permanent injunction restraining defendants .from breaking or interfering with the sewer and from interfering with the passage of the roof drainage over said lot. A preliminary mandatory injunction was granted ex parte which the court refused, on motion, to vacate. This injunction was granted on January 5, 1909. The cause came on to be heard on the merits October 17, 1909. In the meantime, defendants had completed the theater building, and, in obedience to the mandate of the court, had taken care of the complainant’s sewage and roof drainage, at considerable expense. Upon final hearing, the preliminary injunction was made permanent. The decree further provides that the expense of maintenance and repairs of the sewerage connection and the storm pipe shall be borne equally by the parties. From this decree defendants appeal.
   Brooke, J.

(after stating the facts). The sole question for determination here is whether or not there is an implied reservation of an easement over the land sold by complainant to defendants. It is said that in reaching the conclusion he did, the learned circuit judge relied upon the case of Smith v. Dresselhouse, 152 Mich. 451 (116 N. W. 387). An examination of the facts in that case will at once demonstrate that it differs vitally and fundamentally from the case here considered. There the owner of two adjoining tenements, located upon either side of a river, upon each of which stood a mill, sold one of the tenements to the complainant in that case, and, as appurtenant to the tenement conveyed, sold the water rights. The owner and his grantees continued to operate the mill on the other side of the river, using the water for tíiat purpose. Complainant filed his bill to enjoin the use of the water. This court held that, as to the water, complainant was a tenant in common with the owner of the adjoining tenement on the opposite bank of the stream. Mr. Justice Ostrander, in stating the general rule, there said:

“ It is a general rule of the law of easements that where the owner of two tenements sells one of them, the purchaser takes the portion sold with all the benefits and burdens which appear at the time of the sale to belong to it as between it and the property which the vendor retains.”

" The matter under consideration was a grant, not a reservation, and in discussing the effect of the grant he further said:

“We should not expect that a. grant of the land on one side of the river only, the grantor retaining the land and mill on the other side, and using the water there appurtenant, conveyed an exclusive, right to the entire water power. . The terms of the grant to complainant are express and seem to be unambiguous. The land is described by metes and bounds. One boundary is the center of the main channel of the river. The mill tract and the mill are within the boundaries. It is the mill privilege and water power 'there situate,’ i. e., appurtenant to the land conveyed, which is deeded, with the right to flow lands and to ‘ use and make use of the water power there situated.’”

Assuming, therefore, that the rule was correctly stated, the case was determined, not by any application of the rule, but by a construction of the terms of the grant. Nor is it applicable to the case under consideration. Here, the sewer was under ground. It was not apparent, and defendants are not shown to have had any knowledge of its existence under the land purchased by them. But, if they had such knowledge, that fact would not be controlling, because complainant knew that the use to which this property was to be devoted would uncover the sewer and, as it existed, destroy it.

Even if it could be said that a grantor under any circumstances could by implication reserve the right to continue an underground sewer in the premises granted, which we do not determine, it would not aid complainant. Here, it is sought by implication to reserve the right to have the existing sewer destroyed and rebuilt in the air through the basement of the tenement to be erected upon the demised lands. Simply to state such a proposition would seem to be a sufficient answer.

The rule applicable to implied reservations of easements is stated in 14 Cyc. p. 1171, as follows:

“As regards implied reservations of easements, the matter stands on principle in a position very different from implied grants. If the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. To say that a grantor reserves to himself in entirety that which may be beneficial to him, but which may be most injurious to his grantee, is quite contrary to the principle upon which an implied grant depends, which is that a grantor shall not derogate from or render less effectual his grant or render that which he has granted less beneficial to his grantee. Accordingly, where there is a grant of land with full covenants of warranty without express reservation of easements, the best considered cases hold that there can be no reservation by implication, unless the easement is strictly one of necessity.”

' Cases are cited from many jurisdictions in support of this statement of principle, and we think it is in accord with the weight of modern authority. The great weight of authority touching the question, with reference to subterranean drainage, is to the efEect .that, if the owner of the land under which there is such a drain conveys a part of it with full covenants of warranty without reference to the drain, no easement is reserved.

The grantor and his privies, under such circumstances, are estopped to claim any interest in the premises so granted. To permit such a claim would be to allow the grantor to derogate from the terms of his grant which, by every applicable principle, is forbidden. The authorities upon the subject are collected and discussed in 10 Am. & Eng. Enc. Law (2d Ed.), p. 420. See, also, 14 Cyc. p. 1169, and cases there cited, and Farnham on Waters & Water Rights, vol. 3, pp. 2454, 2455.

In the recent case of Covell v. Bright, 157 Mich. 419 (122 N. W. 101), which upon principle much resembles the case at bar, we said:

“To entitle the complainant to a decree, the burden was upon him to establish that the servitude was apparent, continuous, and strictly necessary to the enjoyment of his lands” — citing cases.

In New Jersey, a different doctrine for a long time obtained, based upon the ruling in the celebrated case of Pyer v. Carter, 1 Hurlst. & N. 916, and those cases which followed the rule there laid down. Pyer v. Carter has frequently been severely criticised, and was finally distinctly overruled in England. The case of Toothe v. Bryce, 50 N. J. Eq. 589 (25 Atl. 182), contains a review of the English and American cases, questions the soundness' of the doctrine announced by that court in its earlier decisions, and seems to recognize the distinction between an implied grant of an easement and an implied reservation.

While it is apparent from the record that it will be somewhat expensive to dispose of the sewage from complainant’s building otherwise than over defendants’ land, it by no means appears that it is impossible to do so. There is not made out, therefore, a case of strict necessity.

The case presents this alternative: Either complainant at some, perhaps considerable, expense to herself, must take care of her own sewage and storm waters, or the defendants who purchased and paid for a tenement warranted to be free from all incumbrances, must take that tenement charged in perpetuity with an incumbrance of a very serious character and one which is liable, through the breaking or stoppage' of the drain, to cause serious annoyance and damage.

Why should defendants be compelled to accept this burden ? Why should they be charged in perpetuity with the duty of defraying one-half of the expense of maintaining complainant’s sewer as well as the cost of its original construction ? So far as the record discloses, they have done no act which was not fully warranted by the terms of the grant to them. They have sought to make use of the granted tenement in a lawful manner and in a manner and for a purpose known by complainant before the sale.

Touching the disposition of the storm waters, it is clear that, by the sale of the one-story building upon which it had theretofore been carried to the alley, with the knowledge that said building was to be immediately demolished, complainant must have known that such drainage would be interrupted. The very terms of her written contract show this, because she stipulated for the erection of a brick wall between the premises granted and those retained. This wall was to be 16 inches thick and about 40 feet in height. It is obvious that she could not have contemplated the carrying of her roof waters over that wall. At that moment it was apparent that some new arrangement must be made to care for this water. Defendants did not contract to build a new drain and carry it across their own property to the alley, nor did they agree to construct a new sewer, and we know of no principle of equity which would compel them to do so.

The decree of the court below is reversed, and the bill <of complaint is dismissed, and, inasmuch as the record discloses that defendants have expended certain sums of money in obedience to the mandate of the court in caring for complainant’s sewage and water, the record will be remanded for the purpose of ascertaining the exact amount of such expenditure which, when ascertained, shall be decreed to be a debt due from complainant to defendants for the collection of which execution may issue.

Ostrander, C. J., and Hooker, McAlvay, Blair, and Stone, JJ., concurred with Brooke, J.

Bird, J.

(dissenting). I am of the opinion that the trial court reached a right conclusion upon the law and facts in this case and that it ought to be affirmed by this» court.

In the case of Smith v. Dresselhouse, 152 Mich. 451 (116 N. W. 387), Mr. Justice Ostrander, discussing the doctrine of implied reservations, quoted, with approval, the following general rule of easements:

“ It is a general rule of the law of easements that where the owner of two tenements sells one of them, the purchaser takes the portion sold with all the benefits and burdens which appear at the time of the sale to belong to it as between it and the property which the vendor retains. Seymour v. Lewis, 13 N. J. Eq. 439 (78 Am. Dec. 108). Every grant of a thing naturally imports a grant of it as it actually exists. United States v. Appleton, 1 Sumn. (U. S.) 502 (Fed. Cas. No. 14,463).”

Mr. Justice Selden, in speaking of this rule, said:

“ This is not a rule for the benefit of purchasers only, but is entirely reciprocal. Hence, if, instead of a benefit conferred, a burden has been imposed upon the portion sold, the purchaser, provided the marks of this burden are open and visible, takes the property with the servitude upon it.” Lampman v. Milks, 21 N. Y. 505.

If we are to take the foregoing rule as our guide in determining this case, I am very firm in the conviction that defendants took the deed of the premises burdened with the sewer. In arriving at this conclusion, the distinction made by Mr. Justice Brooke, in his opinion, between implied grants and implied reservations, has not been overlooked. Although there is a difference of opinion in the cases as to the degree of necessity required to create them, the better rule seems to be, and the one supported by the weight of authority is, that a reasonable necessity is sufficient to raise an implied grant; whereas, a strict necessity is necessary to raise an implied reservation. This court has adopted the strict necessity rule in Covell v. Bright, 157 Mich. 419 (122 N. W. 101). The question therefore arises whether the circumstances of this case are such as to bring it within the rule of strict necessity. A study of the record has persuaded me that they do. To establish her case it was necessary for complainant to show that the easement claimed was apparent, continuous, and strictly necessary.

Was the easement apparent? “Apparent easements” have been defined to be those the existence of which appears from the construction or condition of one of the tenements so as to be capable of being seen or known on inspection. 10 Am. & Eng. Enc. Law (2d Ed.), p. 405. To this class of easements belongs the bed of a running stream, an overhanging roof, a pipe for carrying water, a drain, or a sewer. Fetters v. Humphreys, 18 N. J. Eq. 262. And the mere fact that a drain or aqueduct, as the case may be, is concealed from casual vision, does not prevent it from being “apparent” in the sense in which that word is used in that connection. Larsen v. Peterson, 53 N. J. Eq. 88 (30 Atl. 1094).

Defendant testified that he did not know that the sewer extended through the premises conveyed to him. If he had no actual knowledge, he did have constructive knowledge of that fact. He had owned for upwards of 25 years premises side by side with the premises in question, with like improvements. He knew there was a sewer which served complainant’s premises because he had the front portion of them under lease nearly two years before he purchased the rear portion, and at the time there were five water-closets in the portion he had under lease. He knew that the sewer from his own premises was discharged into the Farmer’s alley sewer, and must have known that there was no other sewer into which it could be discharged and, if he did, it would not be unreasonable to assume that he knew the same thing was true of complainant’s premises. On one occasion, prior to his purchase, a portion of the floor in the rear part was taken up, which disclosed the sewer, and defendant was present at that time. Defendant had, before purchasing the property, talked and planned with complainant’s husband about building a theater where he has since erected one, and, in doing so, undoubtedly considered the question of plumbing among other questions of construction and arrangement. A knowledge of these facts was sufficient in the law to put defendant upon inquiry and to charge him with notice that the sewer traversed that portion of the premises purchased by him.

Is the easement continuous ? The sewer had been in existence for 20 years, was of a permanent nature, was in use at the time, and was susceptible of being used and enjoyed without making an entry on defendant’s premises, except for the purpose of repair. These facts would clearly bring it within the definition of a “continuous easement.” Larsen v. Peterson, supra.

Is the easement strictly necessary to the enjoyment of complainant’s premises ? The sewer in Farmer’s alley is the only one available for her use. The city engineer testified that one might be constructed to De Visser alley, but that it would be impracticable for the reason that, where it would discharge into that sewer, it would be only 18 inches underground. The topography of that part of the city is such that no other sewer can he constructed which will serve these premises without a prohibitive expense. A cesspool was suggested by complainant; but the city authorities would not permit it. She then made an effort to buy the right of her neighbor on the north to go through the partition wall and connect with his sewer, which also discharges into the Farmer’s alley sewer; but to this her neighbor would not consent. We have then a situation where complainant must be permitted to use the sewer which has served her premises for 2"0 years, if her building is to have any sewer service. If this situation, which nature has so fashioned that the sewage can be directed only in the direction of Farmer’s alley, does not bring it within the rule of strict necessity, it would, indeed, be difficult to suggest one. If greater exigency than here exists is required before the strict necessity rule can apply, there would be little use for the existence of the rule, as its use would be so infrequent as to render it useless.

In my opinion, the trial court found his way to a very equitable adjustment of the entire matter, and I think his decree should be affirmed.

Moore, J., concurred with Bird, J.


author: Bird, J. Ostrander, C. J.

text:
    SHEPARD v. GERMANIA FIRE INSURANCE CO.
    Insurance — Fire Insurance — Construction of Contracts — Property Covered by Policy.
    Under a policy of fire insurance which described the property insured as a one-story brick building and its additions adjoining and communicating with the foundations, which was executed in compliance with the request of the insured to include in the policy a wooden building connected with the brick structure by a covered passageway eight feet in length, the parties canceling a previous policy that covered only the brick building, plaintiff was entitled to recover for damages by fire to the wooden building, which was the only addition to whioh the terms of the contract would apply.

      Error to Clinton; Searl, J.
    Submitted October 24, 1910.
    (Docket No. 96.)
    Decided March 31, 1911.
    Assumpsit by Laura L. Shepard against the Germania Fire Insurance Company on a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Wilkinson & Younglove and Walbridge & Kelley, for appellant.

      Lyon & Moinet, for appellee.
   Bird, J.

Plaintiff instituted this suit to recover for a loss which she suffered by fire to certain business property which she owned in the village of Ovid. She had judgment in the trial court, and the defendant brings the case to this court by writ of error.

The plaintiff was the owner of two brick stores facing the east, on Main street, in the village of Ovid. The north one was occupied as the post office, and the south one as a restaurant. At the rear of the stores, and from five to eight feet distant, was a two-story wooden structure extending nearly the entire width of the stores. The wooden building was connected with the store occupied as a restaurant by an inclosed passageway and was used in connection with it. The brick oven used by the bakery was situate in the rear part of the wooden building. A short time prior to the issuance of the policy, the wooden structure occupied the place where the post office now stands. It was moved to the rear, and the brick stores were erected in the summer of 1906. In the autumn of that year, when the improvements were nearing completion, plaintiff, being desirous of obtaining some insurance thereon, applied to her husband who was the local agent for the defendant. . He wrote and delivered Jo her a Michigan standard policy, describing the property, as “the one-story brick building located on the west side of Main street,” etc. Plaintiff, upon learning that the policy did not cover the wooden building, informed her husband that a local agent had agreed to insure the buildings as an entirety, and that she preferred to. have it done in that way. The husband expressed some doubt of his authority to make the policy cover both buildings and suggested that the matter rest until he could communicate with the State agent. Subsequently Mr. Spice, the State agent, came and inspected the property, and, after doing so, he canceled the policy which had been written by the husband and drew up the policy in question, describing the property as “the one-story brick, metal and/or composition roof building, and its additions adjoining and communicating with their foundations.” The policy gave “permission to make ordinary alterations, additions, and repairs, without notice, until required.” Later a fire occurred, which damaged both the brick and wooden buildings. Defendant refused to pay the loss on the wooden building on the ground that it was not included in the description of the property insured. Suit was brought on the policy and plaintiff recovered a judgment for the damage to both buildings.

The trial court admitted parol proof of the conversations between the plaintiff and her husband, and her husband and the State agent, with reference to the issuing of the policies, and instructed the jury that if plaintiff was misled, by these conversations and the acts of defendant, into believing that the policy in question covered the wooden building, and she relied upon it, the defendant would be estopped to deny that it was so covered. The defendant assigns error upon the admission of this testimony and also on this charge of the trial court.

The plaintiff contended, in the trial court and in this court, that the jury ought to have been instructed, as a matter of law, that the wooden building was covered by the terms of the policy. If plaintiff is right in this contention, it disposes of the defendant’s assignments of error. Therefore we will first consider that question.

When the words of description contained in the policy are read in connection with the undisputed testimony, with reference to the location, the surroundings, the ownersbip, and the use made of the property, we have no.hesitancy in holding, as a matter of law, that the wooden building was included within the terms of the policy.

The record shows that both brick and wooden buildings were owned by plaintiff; that the wooden building was not to exceed eight feet distant from the brick building; that it was used in connection with the restaurant in the brick building; and that it was connected by a walk, and before the fire it was made into an inclosed passageway. The words of the description contained in the first policy made it very clear that it applied only to the brick building. Soon after its issue, Mr. Spice, the State agent of defendant, came and inspected the property, and, after so inspecting and conferring with the local agent, he canceled the first policy and wrote the one sued upon, in which the words of description are substantially in the language of the first policy with the addition of the words, “and its additions adjoining and communicating with the foundations.” The evident intent in changing and adding to the description was to include something which was omitted in the first policy. The word “additions” was intended to have some significance, and there was no other building to which it could apply save the wooden building. Unless we say it applied to the wooden building, we are obliged to say that it meant nothing. If we are to adopt defendant’s view, we would be obliged to say that both descriptions should be given the same construction, notwithstanding they read differently. If the change in description had been made by an inexperienced local agent, we might have more misgiving about the intent in making the change; but when the State agent, with nearly 30 years of experience behind him in the insurance world, comes and looks this property over and changes the description so as to include the word “additions,” we are in duty bound to say that it was done to include something that was not included in the first policy, and that that something was the wooden building.

The case of Guthrie Laundry Co. v. Assurance Co., 17 Okl. 571 (87 Pac. 649), is very similar to the one under consideration. The insured property was described as a two-story basement and brick building, with metal roof and its additions adjoining and communicating, including foundations, occupied as a steam laundry. A boiler house, four feet distant, was connected with the main building by a steam pipe and by a partially completed platform and overhead arch between the buildings and a sidewalk along the side. It was held that the policy included the boiler house. For similar interpretations, see Marsh v. Insurance Co., 71 N. H. 253 (51 Atl. 898); Phenix Ins. Co. v. Martin (Miss.), 16 South. 417; Marsh v. Insurance Co., 70 N. H. 590 (49 Atl. 88); Pettit v. Insurance Co., 41 Minn. 299 (43 N. W. 378); Grass v. Insurance Co., 92 Wis. 656 (66 N. W. 712).

We are of the opinion that the plaintiff was entitled to an instruction in accordance with his contention. Under this view of the case, the admission of the testimony complained of and the submission to the jury of the question of estoppel are of no importance.

The case is affirmed.

Hooker, Moore, and Stone, JJ., concurred with Bird, J.

Ostrander, C. J.

I think the terms of policy, interpreted in the light of the undisputed testimony concerning the situation of the property at the time the policy was issued, included both the brick and the frame structures. I therefore concur in affirming the judgment.


author: Bibd, J.

text:
    GOLDSMITH v. DETROIT, JACKSON & CHICAGO RAILWAY.
    New Trial — Motions—Weight of Evidence — 'Trespass on Case —Personal Injuries.
    The refusal of a new trial unless plaintiff should aocept a specified sum if tendered, as his damages, for personal injuries, is not warranted, although the jury rendered a judgment for defendant pursuant to argument of plaintiff’s attorney that he would rather have a judgment of no cause of aotion than a small amount; and this court, on error, will . grant a new trial on the ground that the verdict was against the weight of the evidence in accordance with the finding of the trial court on such motion.
    Error to Washtenaw; Kinne, J.
    Submitted October 28, 1910.
    (Docket No. 135.)
    Decided March 31, 1911.
    Case by Earl Goldsmith against the Detroit, Jackson & Chicago Railway for personal injuries. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Lehman, Riggs & Lehman, for appellant.

      Cavanaugh & Wedemeyer (Corliss, Leete & Joslyn, of counsel), for appellee.
   Bibd, J.

Plaintiff instituted this suit to recover for personal injuries which he claims to have suffered while riding in one of defendant’s cars. On the trial of the cause the jury returned a verdict against him. He brings the case to this court for review.

The plaintiff resides at Wayne. While on his way home from Detroit, on the 8th day of August, 1908, on one of defendant’s cars, it collided with another car near the city limits. When the collision occurred, the seat in which plaintiff was sitting and the one in front of it were forced together, thereby catching and injuring the calves of plaintiff’s legs. Upon the trial the defendant did not contest the allegation that it was negligent, but did contest the question of the extent of plaintiff’s injuries. Much testimony was introduced on this phase of the case, and on this issue the jury found with the defendant. Plaintiff then moved for a new trial, and the trial court, in passing upon the motion, made the following order:

“ It is ordered that a new trial be granted to said plaintiff in said cause, unless the said defendant, within 10 days from this date, pay to the said plaintiff the sum of $300; and it is further ordered that, if the said defendant offer said sum of $300 to said plaintiff or his said counsel within 10 days from this date, and if said plaintiff declines and refuses to accept the same, then it is ordered and decreed by this court that the motion for a new trial is denied.”

Plaintiff’s counsel now assigns error, first, on the refusal of the court to grant a new trial; and, second, because the court granted a new trial with the conditions annexed.

It seems to be conceded that the defendant’s negligence caused the collision, and we think the record fairly shows that plaintiff was entitled to some damages, and he would doubtless have recovered a small sum, had not his counsel made the following statement to the jury in his closing address:

“What is the use of talking about $200 or $300. I would rather your verdict should be ‘ No cause of action ’ than to have it $200 or $300, because that would be adding insult to injury.”

It is quite probable that the jury took counsel at his word, and gave him nothing rather than to return a small verdict. In view of counsel’s invitation to the jury to return the verdict which they did, we should not be inclined to disturb it, were it not for the fact that the trial court has indicated by his order that a new trial should be granted. When a trial judge, before whom a case has been tried, is of the opinion that substantial justice has not been done, and it is his opinion that a new trial should be had, we are very loath to disagree with him. By annexing a condition that defendant should pay plaintiff $300, the trial court has made it manifest that in his opinion substantial justice was not done in the premises. We cannot, however, agree with him as to his right to annex such a condition. It was equivalent to the trial court himself assessing the damages. This is the province of the jury. This court has frequently sanctioned the reduction of verdicts where they were larger than the law would justify, but the right of a trial court to reduce a verdict under such circumstances would not carry with it the right to assess damages where the jury has refused to assess any. The plaintiff has the right to insist that the jury shall assess the damages. This question was passed upon in Lorf v. City of Detroit, 145 Mich. 265 (108 N. W. 661). In that case a similar order was made, and this court held that it could not be sustained.

We agree with the trial court that the verdict was against the weight of the evidence and that a new trial should be granted, but without the conditions imposed.

The case is reversed, and a new trial ordered.

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


author: Hooker, J.

text:
    WATKINS v. PHELPS.
    1. Sales — Rescission — Election of Remedies for Breach of Warranty.
    Having elected on the trial to claim damages for breach of warranty of a furnace sold to plaintiffs by defendants, the plaintiffs could not assert the inconsistent right to rescind their contract and recover the purohase price.
    2. Same — Warranty—Variance.
    Under a declaration setting up a warranty to install a furnace which would properly heat plaintiffs’ house in all kinds of weather, evidence was not admissible to show that the defendants warranted the furnace to heat the house to plaintiffs’ satisfaction.
    3. Same — Evidence—Trial—Directing Verdict.
    It was proper not to direct a verdict for plaintiffs upon conflicting evidence as to the warranty and its breach.
    4. Evidence — Breach of Warranty.
    Testimony that other furnaces of the same manufacture had satisfactorily heated houses as large as plaintiffs’, was inadmissible. Second Nat. Bank v. Wheeler, 75 Mich. 549 (42 N. W. 963). Distinguishing Avery v. Burrall, 118 Mich. 672 (77 N. W. 272).
    Error to Washtenaw; Kinne, J.
    Submitted January 6, 1911.
    (Docket No. 41.)
    Decided March 31, 1911.
    Assumpsit by Lucius D. Watkins and L. Whitney Watkins against Harrison T. Phelps, Fred A. Kanska, and Edward A. Phelps for breach of warranty. Judgment for defendants. Plaintiffs bring error.
    Reversed.

      A. J. Waters, for appellants.

      Arthur Brown and M. J. Cavanaugh, for appellees.
   Hooker, J.

This action was begun before a justice of the peace. The declaration, though oral, was as entered, a formal one of three counts, all setting up a promise by the defendants to furnish and erect in plaintiffs’ dwelling a hot-air wood furnace, and warranting that the same should, in all conditions of weather, properly heat said dwelling; that upon the completion of said heating plant, plaintiffs paid to said defendants therefor $289.06; that • said furnace was inadequate to, and never did, heat said house in many conditions of weather. Two of the counts alleged damages by reason of the breach of the contract. The other stated that, after ascertaining that said furnace did not and could not be made to heat the house, the plaintiffs notified the defendants that the furnace was at their disposal, and demanded the repayment of the purchase price thereof, but defendants have refused to repay the same. The common counts were added to the special counts. On appeal in the circuit a judgment was rendered for the defendants and the plaintiffs have appealed.

Rescission. The case appears to have been tried upon the theory that plaintiffs were entitled to damages for the alleged breach of warranty, which is inconsistent with the count based on a rescission, and that count and such assignments as are based on the theory of rescission may be disregarded.

The Warranty. The plaintiffs introduced testimony tending to support the warranty alleged, and there was testimony that the promise was that the furnace should heat the house to the satisfaction of the plaintiffs, and their counsel asked the court to charge that, if the jury found that such was the agreement, and that the plaintiffs were not satisfied, their verdict should be for the plaintiffs. The warranty alleged in - the declaration has been stated and did not justify the introduction of this testimony or request.

Direction of Verdict. It is contended that the verdict was contrary to the evidence, and that for that reason the judgment should be reversed. If by this, counsel mean that' the court should have directed a verdict for the plaintiffs, we are constrained to say that there was a conflict in the testimony both as to the warranty and the alleged breach, and therefore the direction of a verdict would have been error, as they were questions for the jury. If we are expected to review the evidence, we must say that we can only do that upon an exception taken to the ruling upon a motion for new trial, and none appears to have been made.

Damages. Several of the questions relate to the damages recoverable, but, as the verdict was for defendants, the plaintiffs have not suffered from them.

Other Furnaces. The defendants offered and the court allowed the introduction of testimony tending to show that they had erected other heating plants with the same kind of furnaces, and that they had all been efficient, and some had satisfactorily heated houses of equal size with wood fuel. This was against plaintiffs’ protest. It was plaintiffs’ claim in this case that the furnace was better adapted to coal than wood and would not heat the house with wood, which is what it was agreed that they should burn, citing Avery v. Burrall, 118 Mich. 672 (77 N. W. 272). We are of the opinion that the testimony was not admissible. The case of Second Nat. Bank v. Wheeler, 75 Mich. 549 (42 N. W. 963), states the rule which should have been applied. See, also, D. M. Osborne & Co. v. Bell, 62 Mich. 214 (28 N. W. 841); McCormick Harvesting Machine Co. v. Cochran, 64 Mich. 636 (31 N. W. 561); Altman v. Fowler, 70 Mich. 57 (37 N. W. 708); Wickes Bros. v. Electric Light Co., 70 Mich. 322 (38 N. W. 299). The case of Avery v. Burrall, supra, was considered properly distinguishable from the above cases; the present case is not; and that case was not intended to abrogate the general rule as hitherto applied.

We have endeavored to examine all questions raised, but think it unnecessary to discuss all. Several requests are covered by the charge.

The judgment is reversed, and a new trial ordered.

Ostrander, C. J., and Bird, Blair, and Stone, JJ., concurred.


author: Bird, J.

text:
    HENRY v. HOBBS.
    1. Damages — Sales—Market Price.
    The damages for breach of warranty of apples sold by defendant to plaintiff was correctly stated by the trial court, in charging the jury, to be the difference between the value of the apples as they were warranted to be, and as they actually were.
    2. Same — Place op Delivery — Warranty op Quality.
    It was error to permit the jury to find that the place of delivery of the apples was in South Dakota, in which State plaintiff was engaged in business, where the testimony showed that the contract provided for delivery f. o. b. Williamsburg, Michigan, from which point they were shipped by plaintiff’s agent to him.
    3. Same — Special Damages — Assumpsit.
    Unless information was imparted by plaintiff to defendant at the time the contract was made, that the apples were to be shipped to South Dakota, or that the plaintiff desired them for a particular market, or that he had contracted to sell them for a particular price, he could not recover special damages, based on such facts, for a breach of warranty.
    Error to Grand Traverse; Mayne, J.
    Submitted January 6, 1911.
    (Docket No. 39.)
    Decided March 31, 1911.
    Assumpsit by Horace E. Henry against Herschel L. Hobbs for breach of warranty of a quantity of apples. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Parm C. Gilbert, for appellant.

      Pratt & Davis, for appellee.
   Bird, J.

This is an action qf assumpsit, based upon defendant’s alleged warranty of the quality of several hundred barrels of apples, which he sold and delivered to plaintiff in November, 1907. Plaintiff recovered a judgment of $500, and defendant assigns error thereon.

Plaintiff resides in Britton, S. D., and through Mr. Ralph White, of Williamsburg, this State, he learned defendant had apples for sale. He came to Williamsburg and examined them. Two hundred barrels were packed. He opened and examined such barrels as he chose and likewise examined the unpacked ones. He purchased them at $3.50 per barrel, to be delivered f. o. b. Williams-burg. The plaintiff claims that the defendant warranted that the apples should be “straight packed and to be strictly ‘ones’ and ‘twos,’ and if they were not right he would make them so.” The apples were shipped to Brit-ton, S. D., and other points in the immediate vicinity, and some of them were not opened until the following February.' When opened they were found to be below the grade agreed upon, and had to be sold at a reduced price, and some were worthless and had to be thrown away.

The defendant denies that he warranted the apples. His version of the sale is that plaintiff came and examined the apples, and while examining the unpacked ones he remarked that if he purchased them the defendant would have to use more care in packing the balance of them, to sort out the defective and undersized ones. Before returning to his home, plaintiff arranged with Mr. White to ship the apples to him and make payment therefor.

The chief dispute arises over what was the proper measure of damages. The court instructed the jury upon the question of damages as follows:

“The plaintiff, if you find him entitled to recover, would be entitled to recover the difference between the value of the apples at the time and place of delivery and the value as they actually were; that is, the value of the apples at the same time and place, had they been according to the terms of the contract. That is the measure of damages — the difference between the apples as they actually were at the time and place of delivery and what they would have been, had they been in accordance with the contract. The terms of the contract you must find from the evidence. The place of delivery you must find, in order to find a verdict for the plaintiff, to be in Dakota. If you find, gentlemen, in accordance with the contentions of the defendant, then your verdict will be, no cause of action. If, on the other hand, you find in accordance with the claims of the plaintiff, then your verdict must be such a sum as will represent the difference between the value of the apples at the time and place of delivery, namely, in Dakota, the value of the apples at the same time and place, had they been of the kind and quality provided for in the contract.”

Error is assigned upon that part of the instruction which left it to the jury to determine whether the place of delivery was in Williamsburg or in South Dakota. Defendant insists that the undisputed testimony shows that the contract called for a delivery of the apples on the cars at Williamsburg, and that there was no testimony from which the jury could find that the apples were to be delivered to plaintiff in South Dakota. The trial court correctly stated the rule of damages applicable to the case. 30 Am. & Eng. Enc. Law (2d Ed.), p. 209; 1 Mechem on Sales, § 652; McKercher v. Curtis, 35 Mich. 478; Maxted v. Fowler, 94 Mich. 106 (53 N. W. 921); Jackson Sleigh Co. v. Holmes, 129 Mich. 370 (88 N. W. 895).

But we think he was in error in permitting the jury to find that South Dakota was the place of delivery. The apples were delivered to Mr. White, the agent of plaintiff, at Williamsburg. Mr. White shipped them to the plaintiff. The plaintiff paid for the apples through Mr. White. The plaintiff’s own testimony showed that the apples were to be delivered to him f. o. b. Williamsburg. The defendant corroborated the plaintiff on this point. We have searched the record in vain to find any testimony which would justify the court in permitting the jury to find that the delivery was to be made in South Dakota. The jury should have been instructed that the delivery was to be made at Williamsburg.

It is urged by plaintiff’s counsel that South Dakota should be taken as the basis in estimating the damages, because the defendant was informed that the apples were to be shipped there. The law permits the ordinary rule of damages to be enlarged so as to include special damages, where the circumstances surrounding the making of the sale were such that it can be said the parties contemplated such damages in the event of a breach. The law relating to such damages is well stated in Clark v. Moore, 3 Mich. 55, and approved in Cuddy v. Major, 12 Mich. 368, where it is said:

“ To create such extraordinary liability, there must, in every case, be something in the terms of the contract, read in the light of surrounding circumstances, which shows an intention on the part of the vendor to assume an enlarged engagement, a wider responsibility than is assumed by the vendor in ordinary contracts for the sale and delivery of merchandise.”

We do not think, however, that the facts as they appeared in this case would justify an enlargement of the rule. It appears that the defendant knew that the apples were to be shipped to South Dakota, but it does not appear that the plaintiff informed him of the fact. The defendant was not informed that the apples had been resold, or that the plaintiff desired them for any particular market, or for any special purpose, or that he had contracted to sell them for any particular price. Unless information of this character was imparted by the plaintiff to the defendant at the time the contract was made, the rule of special damages could not be lawfully applied. 2 Mechem on Sales, §§ 1761, 1762; 30 Am. & Eng. Enc. Law (2d Ed.), p. 216.

There are many other errors assigned, but nearly all of them relate to the question of damages. As the case must be reversed on this ground, we think it unnecessary to discuss the other assignments.

The judgment of the trial court is reversed, and a new trial ordered.

Ostrander, C. J., and Hooker, Blair, and Stone, JJ., concurred.