text:
    WILLSIE v. COMMON COUNCIL OF IONIA.
    1. Municipal Corporations —Board of Public Works —Officers — Ionia Charter.
    Under sections 83, 92, and 93 of the charter of Ionia (Act No. 246, Local Acts 1891), the board of pnblio works has authority to appoint officers and agents without the approval of the common council.
    2. Judgment — Res Inter Alios Acta.
    The decision of a question of law, arising upon the construction of a city charter, is not binding upon one who was not a party to the suit.
    Certiorari to Ionia; Davis J.
    Submitted July 7, 1904.
    (Calendar No. 20,589.)
    Decided July 27, 1904.
    Mandamus by Samuel Willsie to compel the common council of the city of Ionia to pay relator’s salary as engineer. From an order denying the writ, relator brings certiorari.
    Reversed.

      B. A. & W. E. Hawley, for relator.

      II. J. Horrigan (Miller & McKenna, of counsel), for respondent.
   Hooker, J.

The relator, Samuel Willsie, was employed by the board of public works of Ionia as assistant engineer, and later as engineer, of the city waterworks, and his compensation was fixed by said board. The common council did not approve his employment. It is claimed that it did not approve the amount of compensation provided for such service. The relator performed some service, for which the council refused to pay upon the ground that it had not approved his employment. Relator was afterwards denied a mandamus to compel payment. The cause is before us on certiorari. .

Counsel seem to agree that the result must depend upon the construction to be given three sections of the Ionia charter and the effect of a former adjudication upon a similar case, to which this relator was not a party.

In 1883 provision was made for waterworks by an addition to respondent’s charter. Section 83 provided that—

£ £ The common council shall have the power to establish, construct, maintain, control, supervise, regulate, and keep in repair a system of waterworks, * * * and are hereby invested with full and complete power and authority to enact, make, and adopt any and all such Ordinances, by-laws, rules, and regulations as they may deem necessary, requisite, and expedient to carry into complete effect the power and authority hereby conferred upon them relative to the waterworks of said city and for the conduct of its business.” Act No. 309, Local Acts 1883.

Section 92 provided that the board of public works (the members of which were elected by the council) shall have the control and management of the waterworks of the city. Section 93 provided that the, board of public works may appoint such officers and agents as they deem necessary for the proper management of the works, and prescribe and define their duties and fix their compensation. These sections, as originally passed, authorized the board to employ engineers. In 1885 section 93 was amended by adding the following, viz.:

“Subject to the approval of the common council: Provided, that in case of accidental breakage of machinery or pipes, the said board of public works may proceed immediately to repair the same.” Act No. 364, Local Acts 1885.

This amendment seems to have been designed to require the approval of the council to the appointment and amount of compensation fixed by the board. In 1887 section 93 was amended. The following was the conclusion •of the section:

“They [the board] shall also have authority to, and may appoint such officers and agents under them, as may be necessary for the management of said works, and oversight of said sewers and public buildings, and define and fix the duties and compensation of such officers, subject, however, to the approval of the common council, as to the compensation they shall receive.” Act No. 485, Local Acts 1887.

Here is a marked change in relation to the approval by the common council by dropping the requirement of approval of appointments but retaining that as to compensation. In 1891 section 83 was amended so as to read as follows:

“ Sec. 83. The common council 'shall have the power to ■establish, construct, maintain, control, supervise, regulate, and keep in repair a system of waterworks for the purpose of supplying the city of Ionia with water for municipal, domestic, and other purposes, and are hereby invested with full and complete power and authority to enact, make, and adopt any and all such ordinances, by-laws, rules, and regulations as they may deem necessary, requisite, and expedient to carry into complete effect the power and authority hereby conferred upon them relative to the waterworks of said city, and for the conduct of its business: Provided, however, that the common council may delegate by resolution or ordinance any of the powers herein conferred to be performed as provided by section ninety-two of this act, by tbe said board of public works.” Act No. 246, Local Acts 1891.

At the same time section 92 was amended, and was as. follows:

“Sec. 92. The board of public works shall have the-management and control of the waterworks of the city; they shall have authority to and may lay down, repair, and maintain and do all things necessary to the laying down, repairing, and maintaining of waterworks, water mains, and pipes beneath, and through and along the-streets, lanes, and alleys, and into the public places of said city, and for the purpose of supplying water for public and. private use; they shall also have the superintendence and management in the erection, repairing, and maintaining; of all the public buildings of said city, and in the construction, maintaining, and repairing of all sewers that maybe required in said city: Provided, however, that all of the powers herein vested in said* board of public works, and all acts done by said board by virtue thereof, shall be-subject to the approval of the common council, after delegation of such powers as provided in section eighty-three of this act. In cases of necessary repairs of said waterworks, mains, pipes, buildings, and sewers, they shall cause the same to be made as soon as may be when required at the expense of said city, rendering to the common council the actual cost of the same, which shall be paid out of the funds of the city upon order of the common council. They shall also have authority to, and may appoint such officers and agents under them as may be necessary for the management of said works and oversight of said sewers.and public buildings, and define and fix the duties and compensation of such officers subject, however, to the approval of the common council as to the compensation they shall receive.” Act No. 246, Local Acts 1891.

Section 93 remains as amended in 1885, viz.:

“Sec. 93. Plans and estimates for constructing waterworks, and for repairing the same, shall be submitted to the common council for their approval, and when so approved the material may be purchased and the work may be let to the lowest responsible bidder, who shall give adequate security and do the work under such rules and regulations. as may be prescribed by the board of public works; or the said board of public works may procure the work to be done in such manner as they deem for the best interests of the city. The board of public works may appoint such officers and agents as they may deem necessary for the proper management of the works, and prescribe and define their duties, and fix their compensation subject to the approval of the common council: Provided, that in case of accidental breakage of machinery or pipes, the said board of public works may proceed immediately to repair the same.” Act No. 364, Local Acts 1885.

It is contended that section 83 provides that the board can have only such powers as are delegated by the common council, and that these powers have not been so delegated; and again section 93, which still stands, requires the approval of the common council to appointments and compensation. We think these positions untenable. We must construe these somewhat inconsistent provisions together, by aid of their chronology. If we do so, we find that sections 92 and 93 have for many years limited section 83 by declaring that the board should have certain powers. In these respects they superseded the provision of section 83 as to full control, etc. When first adopted, these sections required approval by the common council. Subsequently this was changed, and approval as to compensation only retained. To our minds, it seems plain that the authority to appoint was then relieved of the necessity for approval, and has since remained so. The appointments by the board were lawful, and beyond the control of the council.

It is contended that the provision contained in section 92, as finally amended, to the effect that “ all of the powers [power] herein vested in said board of public works, and all acts done by said board by virtue thereof, shall be subject to the approval of the common council,” after delegation of such powers as provided in section 83, includes the appointment of engineers. We think, however, that it does not, because the language which follows evidences a design to except that.

The decision of the circuit court upon the question of law-in this case between different parties is not conclusive in the present case. The return shows that the council had fixed the salaries of the chief and assistant engineers at $65 and $45 per month, respectively, and had paid relator to April 15, 1904, at these rates.

The writ should issue as prayed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
      In re LAMBRECHT.
    1. Constitutional Law — Ex Post Facto Laws — Indeterminate Sentences.
    An in eterminate sentence law which increases the minimum punishment for crime beyond what might have been inflicted under the statute which it supersedes, is ex post facto in so far as it applies to crimes committed before its enactment.
    3. Statutes — Construction—Retroactive Statutes — Presumption.
    Statutes are given only a prospective application unless the legislative intent that they shall be retroactive is clearly manifest.
    3. Criminal Law — Indeterminate Sentence Law — Prospective Application.
    The indeterminate sentence law of 1903 (Act No. 136), providing for the sentence of persons “hereafter convicted of crime,” is prospective in its operation, and applies only to crimes committed after it took effect.
    4. Same — Common-Law Crimes.
    Unless some statute provides a penalty, acts criminal at the common law are not crimes in this State.
    5. Statutes — Construction—Absurd Result.
    A statute will be given an interpretation leading to absurd and mischievous consequences only when no other is possible.

      '6. Same — Repeal—Prior Aots in Conflict.
    A statute repeals a prior statute in so far as it is in conflict therewith.
    7. Criminal Law — Indeterminate Sentence Law — Repeal of Statute.
    The indeterminate sentence law of 1903 (Act No. 136), did- not repeal 3 Comp. Laws, § 11784, providing punishment for attempts to commit crime.
    ■8. Same — Sentence—Habeas Corpus.
    Where, on petitioner’s conviction of an attempt to uttei a forged instrument, committed prior to the taking effect of the indeterminate sentence law of 1903 (Act No. 136), the oourt erroneously sentenced petitioner under such act to imprisonment for an indeterminate term of not less than 2-J years, nor more than 3 years, and the sentence would evidently have been no less if it had been imposed under 3 Comp. Laws, § 11784, providing that for such attempts the court may sentence to imprisonment for a term not exceeding 3 years, the sentence was valid as to the minimum term, and could not, therefore, be set aside on habeas corpus.
    Habeas corpus proceedings by William J. Lambrecht to <obtain his release from the State prison at Jackson.
    Submitted July 7, 1904.
    (Calendar No. 20,584.)
    Prisoner remanded July 27, 1904.
    Petitioner was convicted October 26,1903, of an attempt to utter a forged instrument on July 10, 1903, and sentenced to the State prison for not less than 2$ and not more than 3 years, under Act No. 136 of the Public Acts of 1903, known as the “ Indeterminate Sentence Law.” The act took effect September 16, 1903. The punishment for uttering a forged instrument is imprisonment in the State prison not more than 14 years, or in the county jail not more than 1 year. 3 Comp. Laws, § 11660. No express provision is made by statute for the punishment of attempts to utter forged instruments. The statute in regard to attempts reads thus:
    “ If the offense so attempted to be committed is punishable by imprisonment in the State prison for life, or for five years or more, the person convicted of such attempt, shall be punished by imprisonment in the State prison not more than three years, or in the county jail not more than one year.” 3 Comp. Laws, § 11784, subd. 2.
    When the crime in this case was committed, the punishment was that provided by section 11784.
    The petitioner is now before us on the writ of habeascorpus, and the validity of his sentence is attacked upon the following grounds:
    1. The sentence is void because made by virtue of a statute not in force at the time the crime was committed.
    2. The act is unconstitutional and void in so far as it provides for the sentence of persons convicted of crimes committed before it took effect.
    3. That it repealed those portions of previous statutes providing a different punishment than provided by its provisions, and petitioner could not be sentenced under the provisions of the act in force at the time the crime was committed.
    4. That if the effect of the act was not to so repeal said statute, it operated as an amendment or exclusive provision for the sentence and punishment of all persons convicted of crime after it took effect, and therefore there was no law in force at the time the petitioner was convicted and sentenced authorizing any punishment whatever, except confinement in the county jail.
    5. The said sentence being void, and having been in part carried into effect, this court has no jurisdiction to remand petitioner for sentence, if a lawful one might have been inflicted under the original statute applicable to his offense.
    The provisions of Act No. 136, Pub. Acts 1903, materiaL here are:
    “Section 1. Every sentence to the State prison at Jackson, to the Michigan reformatory at Ionia, to the State house of correction and branch of the State prison in the Upper Peninsula, and to the Detroit house of correction, of any person hereafter convicted of a crime, except of a person sentenced for life, or a child under fifteen years of age, shall be an indeterminate sentence as hereinafter provided. The term of imprisonment of any person so convicted and sentenced shall not exceed the maximum term provided by law for the crime for which the prisoner was convicted and sentenced, and no prisoner shall be discharged until after he shall have served at least the minimum term as provided by law for the crime for which he was convicted: Provided, that in all cases where the maximum sentence, in the discretion of the court, may be for life or any number of years, the court imposing the sentence shall fix the maximum sentence: Provided further, that in all cases where no minimum sentence is fixed by law, the court imposing sentence shall fix such minimum, which minimum shall not be less than six months.
    “Sec. 2. If, through oversight or otherwise, any person shall be sentenced to imprisonment in the said State prisons for a definite period of time other than for life, said sentence shall not for that reason be void, but the prisoner so sentenced shall be entitled to the benefit and subject to the liabilities of this act, in the same manner .and to the same extent, as if the sentence had been in the terms required in section one of this act: Provided, that in these cases where no minimum sentence is fixed by the court, the minimum limit of any such sentence in any case shall not be for a less period than one year, except in those instances where the minimum limit is now fixed or which may hereafter be fixed or provided for by law.”

      Wilson & Cobb, for petitioner.

      Charles A. Blair, Attorney General,.for respondent -warden of State prison.
   Grant, J.

{after stating the facts). The attorney general conceded that the indeterminate sentence act, if retroactive, is unconstitutional and void in so far as it authorizes crimes committed before it took effect to be punished under it. This is obvious, for the punishment is increased, as the minimum punishment under the act is greater than that provided by section 11784, subd. 2, .3 Comp. Laws.

Is the act retroactive F The legislative intent must govern when it can be ascertained. “ It is a sound rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively.” Cooley, Const. Lim. (6th Ed.) 455; End. Int. of Stat. § 271 ; Angell v. City of West Bay City, 117 Mich. 685 (76 N. W. 128). The legislature is presumed to know that penal' statutes cannot be made retroactive. It should therefore-be held that they intended such a statute to act prospectively, if the language would reasonably permit such a. construction.

“A thing which is within the spirit of a statute is within the statute, although not within the letter; and the thing within the letter is not within the statute, unless within the intention.” Common Council of Detroit v. Rush, 82 Mich. 542 (46 N. W. 951, 10 L. R. A. 171).

We are therefore of the opinion that the legislature, im providing for the sentence of persons “hereafter convicted of crime,” intended only crimes committed after the act took effect.

Is the previous law (3 Comp. Laws, § 11784) — the-statute in force when the crime was committed — repealed, by the indeterminate sentence act of 1903 ? We can look only to the statute for any crime punishable in this State. We look to the common law for definitions and principles, in our criminal’jurisprudence, but, unless the statute provides a penalty, acts criminal at the common law are not; crimes in this State. In re Lamphere, 61 Mich. 105 (27 N. W. 882). If the penalty for attempts be taken away,, the entire statute falls with it. Under petitioner’s contention, therefore, the law of attempts is repealed by the act of 1903, and no such law is now in force. Other criminal statutes would also be repealed. The legislature will not-be presumed to have intended such a wholesale repeal of' criminal statutes, and jail delivery of all those guilty of' crimes under such statutes, but not then convicted and sentenced. “An interpretation of a statute which must-lead to consequences which are mischievous and absurd is-inadmissible, if the statute is susceptible of another interpretation by which such consequences can be avoided.”"Suth. Stat. Con. § 238; Alvord v. Lent, 23 Mich. 369.

“Not unfrequently a clause is inserted in a statute repealing all laws in conflict or inconsistent with it, ‘ contravening ’ it, or the like. If the provisions of the former and present enactments are in direct contrariety, the repeal takes place, but only to the extent of the repugnance. If, on the other hand, by any reasonable contracting, expanding, cutting short, or extending of the old laws or the new, as explained in the foregoing chapter, they can be brought into harmony without repeal, the interpretation should be so, and all suffered to stand together.” Bishop on Stat. Crimes, par. 2, § 152.

See, also, Smith v. People, 47 N. Y. 330. Where a subsequent act is absolutely repugnant to and inconsistent with any other provisions of a prior act, the former act is repealed to the extent of such repugnance only, and the repugnancy must be clear and unavoidable. Connors v. Iron Co., 54 Mich. 168 (19 N. W. 938); Tillotson v. City of Saginaw, 94 Mich. 240 (54 N. W. 162); Crane v. Saginaw Circuit Judge, 111 Mich. 496 (69 N. W. 721).

A statute in conflict with a prior statute in so far as the one is in conflict with the other, is no more effective as a repeal than if such repealing clause were omitted. In either case the former statute is repealed in so far as the later one is in conflict with it. In Murphy v. Commonwealth, 172 Mass. 264 (52 N. E. 505, 43 L. R. A. 154, 70 Am. St. Rep. 266), the indeterminate sentence act is nearly identical in its terms with that of Michigan. It was held that it did not repeal a prior act which entitled a prisoner to a deduction for good behavior. The court in that case Said:

‘ ‘ To hold that that statute operates by necessary implication as a repeal of it to that extent, as it would seem that we should be obliged to do if the statute of 1895 (Stat. 1895, chap. 504) is construed to apply to all sentences to State prison after it took effect, whether the offenses occurred before or after it went into operation (Flaherty v. Thomas, 12 Allen, 428, and Commonwealth v. McDonough, 13 Allen, 581), would result in the discharge of all persons who might have been sentenced under it to the State prison for offenses committed before it took effect. On the other hand, by construing it, as we think properly may be done pursuant to the general rule that statutes are to be construed prospectively, to apply to sentences for offenses committed after it took effect, this difficulty will be avoided.”

After the first act providing for indeterminate sentences was declared unconstitutional (People v. Cummings, 88 Mich. 249 [50 N. W. 310, 14 L. R. A. 285]), the people adopted a constitutional amendment authorizing such sentences. The present act was passed in accord with that amendment. It was not intended to repeal any of the statutes providing for criminal offenses. It recognized such crimes as still existing under the various laws of the State, and provided only a new mode or character of punishment, which the people and the legislature believed would tend to the reformation of criminals. It was evidently intended, and should be regarded, rather as an amendment to the criminal statutes. We must therefore hold that it did not operate as a repeal of the statute under which the petitioner was convicted.

It follows that the petitioner could not have been sentenced under the indeterminate sentence act. The court imposing the sentence considered that the petitioner should be sentenced for at least 2% years. The sentence would-evidently have been no less if the court had imposed the sentence under section 11784. In Murphy v. Commonwealth, supra, which was before the court on writ of error, the prisoner was remanded for sentence under the prior law. It is contended that this court cannot so order under the writ of habeas corpus, where the sentence has been partly executed. We need not determine this point. In People v. Cummings, which was also brought to this court on a writ of error, the sentence was affirmed as to the minimum term. If the sentence was a valid one as to such term upon a writ of error, it would not be good logic to'say that it was void when coming before the court on a writ of habeas corpus. If valid in the one case, it is equally valid in the other. In this respect we must follow our own decisions.

The sentence for the minimum time is therefore affirmed, and the prisoner remanded to complete that term of imprisonment, in accordance with the law and rules in existence at the time of the commission of the crime.

The other Justices concurred.


author: Moore, C. J.

text:
      In re LEONARD.
    Criminal Law — Breaking and Entering — Indeterminate Sentence.
    Under the indeterminate sentence law of 1903 (Act No. 136), the court has power to fix the minimum term of imprisonment for statutory burglary, as defined by section 11547, 3 Comp. Laws, no minimum being provided by the statute.
    Habeas corpus proceedings by John M. Leonard to obtain his release from the State prison at Jackson.
    Submitted July 7, 1904.
    (Calendar No. 20,592.)
    Prisoner remanded July 27, 1904.

      John M. Leonard, in pro. per.

      Charles A. Blair, Attorney General, for respondent warden of State prison.
   Moore, C. J.

Petitioner was convicted of the crime of burglary, committed on the 18th day of October, 1908, and on the 18th day of February, 1904, was sentenced to the State prison at Jackson for a maximum term of 15 years, and a minimum of 10 years, pursuant to the provisions of Act No. 136 of the Public Acts of 1903, known as the “Indeterminate Sentence Law,” which became operative ■about September 16, 1903. He now petitions for his release from imprisonment upon the ground that the sentence imposed is in violation of the provisions of said act the claim being made that the minimum term provided by law for the crime of burglary is 1 year, and the court therefore had no authority to fix the same at 10 years.

The information, a copy of which is attached to the petition filed herein, shows that petitioner was charged with the crime of breaking and entering, in the night-time, a store not adjoining to or occupied with a dwelling house, with intent to commit the crime of larceny therein. The statute fixing the punishment for this offense (section 11547, 3 Comp. Laws) provides that one guilty thereof shall be punished by imprisonment in the State prison not more than 15 years. No minimum sentence is provided, in the statute.

Section 1 of the indeterminate sentence law contains a provision that in all cases where no minimum sentence is-fixed by law, the court imposing sentence shall fix such minimum, which shall not be less than six months. Under this provision of the statute, the court was undoubtedly-authorized to fix the minimum sentence — none being fixed in the statute prescribing the penalty for the offense of which petitioner was convicted — and the sentence is clearly valid.

It necessarily follows that petitioner’s application for-release from imprisonment should be denied.

The other Justices concurred.


text:
    DEAN v. ANN ARBOR RAILROAD CO.
    1. Highways and Streets — Raising Grade oe Crossing Railroad — Injunction—Peculiar Damages.
    One whose frontage on a street would be lessened by the raising of the grade of a railroad crossing the street in the block in which his lots are located, and whose passage out of the block in the direction of the railroad would thereby be out off, increasing the cost of trucking to and from his ware- ■ bouses on the lots, and depreciating the value of his property, suffers a special damage different from that of the public, authorizing him to maintain a suit for injunction.
    2. Same — Abutting Owners — Compensation.
    Power in the charter of Ann Arbor to designate grades of railroads coming into the city, and to establish a grade for streets and sidewalks, does not authorize the city to in effect vacate part of a street by allowing a railroad to cross it on an embankment above the grade of the street, thereby cutting-off an abutting owner’s access to his property, without providing him compensation.
    Appeal from Washtenaw, Lockwood, J., presiding.
    Submitted February 23, 1904.
    (Docket No. 91.)
    Decided September 13, 1904.
    Bill by Sedgwick Dean and Henry S. Dean against the Ann Arbor Railroad Company, the city of Ann Arbor, and others to restrain the obstruction of a certain street. From a decree for complainants, defendants appeal.
    Affirmed.

      Jasper G. Gates, for complainants.

      A. J. Sawyer & Son (A. L. Smith, of counsel), for defendant railroad company.

      Thomas D. Kearney, for defendant city.
    The following is the plat referred to in the opinion:

   Moore, C. J.

A reference to the plat and a reading of the opinion filed by the circuit judge will give an understanding of the questions involved in this case. The opinion reads:

“ The bill in this case is filed to enjoin the Ann Arbor Railroad Company and the city of Ann Arbor and its officers from building an embankment in and across First street, in the city of Ann Arbor, and from closing or. diverting First street, and for.a decree compelling the defendants to keep First street from Williams street to Liberty street in good repair and in a condition reasonably safe for public travel. A long time prior to 1882, William S. Maynard’s Addition to the village (now city) of Ann Arbor had been made, and the streets therein, including First street, had been opened and used as public streets.
“In 1872 the common council of the city of Ann Arbor granted permission, by ordinance, to the Toledo, Ann Arbor & Northern Railroad Company, the predecessors of the present corporation, to construct its tracks through the city of Ann Arbor and across many of its streets, fixing the grade of the railroad at the then existing grade of each street crossed. At this time Roger Mathews and Mary Mathews were owners of lots 12, 13, and 14 of block 3 south of Huron street, range 2 east, according to the plat of Wm. S. Maynard’s Addition. These lots are situated on the east side of First street, in the middle of the block between Williams street on the south and Liberty street on the north, and had a frontage of 150 feet on First street, with no frontage on any other street. After the passage of said ordinance, the owners of these three lots conveyed to the railroad company a right of way across said lots, described as being 25 feet wide on each side of the center line of the railroad as located.
“ The railroad was constructed between 1872 and 1876, its general course through the city of Ann Arbor being north and south, but at the point where it crossed First street its course was north, 22 degrees west; the crossing at First street'being at an angle of 22 degrees. The right of way took the westerly part of lot 14 and the southwest corner of lot 13, the easterly line of the said right of way intersecting the easterly line of First street near the center of lot 13. The grade of the railroad as then constructed was at the grade of the street, which was but little, if any, above the level of the surrounding lots. In 1882 the complainants purchased from the said Roger and Mary Mathews said three lots ‘ except ’ the land in the southwest corner conveyed to the railroad company. This land purchased by the complainants exclusive of the railroad right of way had a frontage of about 75 feet on First street. The complainants, who are dealers in groceries, crockery, and oils, doing a wholesale and retail business in the city of Ann Arbor, built warehouses and oil tanks upon these lots, which are used in storing goods handled in their business. The defendant railroad company furnished a siding so that cars could be unloaded at the warehouse on these premises. The freight house of the railroad company stands upon the east side of First street, south of Williams street, and the complainants in shipping out goods from the warehouse truck them south on First street, across the railroad tracks and across Williams street to this freight house. Their business has gradually increased since 1882, and they are now handling very large quantities of merchandise each year in these warehouses and oil tanks. The buildings and improvements placed upon these lots by complainants for the purpose of accommodating their business cost about $8,000. The grade of the railroad has remained substantially as first constructed at the crossing of First street.
“On October 1, 1902, the common council of the city of Ann Arbor passed an ordinance entitled:
“ ‘ An ordinance relative to changing the course and grade of certain streets, and elevating the tracks of the Ann Arbor Railroad Company.’
“ This ordinance was duly approved, published, and accepted by the railroad company as therein provided. A copy of this ordinance is attached to the bill of complaint, and it provides, in brief, for raising the grade of five east and west streets in the southerly portions of the city, at the points where they are intersected by the tracks of the railroad company, from 1 \ to about 7 feet, for lowering the grades of other streets at the intersection of the said railroad tracks from 2 to 3 feet. It provides for steel viaducts above Felch street, Miller avenue, Huron, Washington, and Liberty streets, and at the foot of Ann street. These last-mentioned streets are east and west streets, and are north of the premises of complainants. This ordinance contemplates the raising of the grade of the Ann Arbor Railroad from Williams stfeet north from 9 to 15 feet above its present grade. The provision in said ordinance in relation to First street is as follows:
“‘That First street be diverted so as to intersect Liberty street west of the present right of way of the said company.’
“The next day after the passage of this ordinance the complainants notified the defendant railroad company that they would resist by legal proceedings, if necessary, any ■attempt to do the work contemplated, and that they claimed that said ordinance was not valid.
‘1 The defendant railroad company proceeded to do work in preparation for raising its grade, and had done a small amount of work on its grade in the way of surveys, testing the foundations, and the like, prior to the filing of this bill. This bill was filed March 7, 1903. Upon its filing a preliminary injunction was issued, restraining the defendant from building any embankment either in First street, in said city of Ann Arbor, between Williams and Liberty streets, or in front of the premises of the said complainants, and from in any wise closing or diverting First street, or placing any obstructions therein, and from interfering with or obstructing the said complainants, or either of them, in their free use of said First street, in either direction, north or south, from their said premises. This injunction was later dissolved on motion of the defendants.
“The defendant railroad company has continued to do wtork in raising its grade, and has raised a portion of its grade north of Liberty street, and put in foundations for the abutments in the streets over which viaducts are to be constructed. It has purchased and has upon the ground a large amount of steel and material for the construction of the viaducts, and is going forward in the work in raising its grade. It has now expended large amounts in doing the work and buying the material. At the time this case was heard no change had been made at the intersection of First street or south thereof. The evidence in this case shows that it is the plan and purpose of the railroad company to put in all the viaducts provided in the ordinance except perhaps the one at the foot of Ann street, which street does not cross the railroad track, and to provide for the separation of the grades of their track and the streets on Felch street, Miller avenue, Huron, Washington, and Liberty streets. In each case the street is to pass under the railroad track. That the east and west .streets south of Liberty street will cross the railroad track at grade, the grade of the streets being raised in most cases to bring it to the proposed grade of the railroad. That at the intersection of First street it is proposed to> build a grade for the railroad from 12 to 13 feet higher than it is at present, and higher than the level of the-street. That the railroad company proposes that, if it finds it necessary, in order to retain this embankment upon its 50-foot right of way, to build foot walls of masonry to hold the base of the embankment. The embankment, will occupy the whole of the 50-foot right of way of the-railroad company, and will occupy all of that part of First street falling within this 50 feet. The crossing of "First, street is a long one. If this embankment is made, it will occupy most of the street in front of complainants’ premises. The north line of their premises projected west will intersect the east line of the embankment at about the middle of the street. The only portion of the street in front of any of these premises unoccupied by the embankment-will be a right-angled triangle, with a base of about 75. feet along the east line of the street, and a perpendicular of about 32 feet along the north line of the premises projected west. In other words, all the street left open in front of these premises would be about 32 feet wide at the north line, and would narrow to nothing at a point about 75 feet south of the north line. All the balance, of this street in front of complainants’ premises would be entirely obstructed, and practically vacated and abandoned as a public way. It also appears from the evidence that no provision is to be made for the crossing of the railroad track on First street; that the portion of First street within the 50-foot right of way- will be entirely obstructed; that it will be impossible to cross the track® of the defendant railroad company on First street when the contemplated grade is completed. It also appear® from the evidence in this case that the intention to open First street along the westerly side of the right of way of the defendant railroad company to Liberty street ha® been abandoned. It appears that after the passage of the grade ordinance proceedings were instituted for the purpose of opening this street, but that the common counciL of the city of Ann Arbor determined not to open it. There is no evidence in this case tending to show a purpose on the part of the city to vacate or abandon that portion of First street north of the railroad right of way and between, it and Liberty street. The driveway which provides ingress and egress from complainants’ property on First street with trucks and wagons is near the north line of lot 12. If the embankment proposed is constructed across First street, the complainants can still get to this driveway into their property on First street from the north, but cannot get to their property on First street from the south. The portion of First street north of the railroad right-of way will be a cul-de-sac. It appears from the evidence in this case that the value of the complainants’ premises for the purpose for which they are used would be depreciated if the said embankment is constructed, and if the complainants continue to use their premises for the purpose for which they have been used since they have owned them, and they will be compelled to travel considerably farther in getting to the freight house of the railroad company, and that the added expense of trucking their goods from their warehouse to the freighthouse by reason of the increased distance would amount to several hundred dollars each year.”

It is the claim of appellants that the city is the owner of the fee in the street. This is denied by complainants. Appellants say it is not important. Their position is that complainant had:

“ The right to use First street in common with the public — that is, the right to use First street between Liberty and Williams streets with their teams and vehicles — but manifestly this right they enjoyed in common with all the rest of the public who might have occasion to pass that way. So far as this right was interfered with, they have no standing in court to pray for an injunction. It is well settled that in cases of this kind an injunction will not be granted except to one who has suffered a special damage or inconvenience, different in kind from that suffered by the rest of the public. Differences in degree are of no importance here. Henry v. Railroad Co., 116 Mich. 314 (75 N. W. 886); Buhl v. Union Depot Co., 98 Mich. 596 (57 N. W. 829, 23 L. R. A. 392); People, ex rel. Bristol, v. Supervisors of Ingham Co., 20 Mich. 95.
“ The complainants, as the owners of abutting property, are not entitled to any compensation for damages for any injury to the use of the street that is common to the general public. * * *
“ It cannot be honestly denied that all the means of access that were ever owned by the complainants are preserved to them in this instance intact. That right would be in no way infringed upon by the building of the embankment contemplated under this ordinance. The same mode of ingress and egress would remain to and from First street, and therefore, under the authorities cited, the complainants are not entitled to any redress, and certainly not entitled to an injunction.”

Counsel for complainants do not admit this contention, and the learned circuit judge reached a different conclusion. He is justified by the record in saying that for many years the complainants had a frontage on First street of 75 feet, and, when they reached the street at any point in front of their premises, could travel either north or south thereon. The result of the proposed action of defendants will be to make of this street a cul-de-sac, very materially shortening the frontage of complainants, and making it impossible for them, when they reach the street, to travel south thereon. The conclusion cannot be avoided that, if this proposed improvement is carried out, the value of complainants’ property will be greatly depreciated, and the expense of conducting their business will be greatly increased. These are effects limited to the property of complainants and its business, and not common to the public.

It is said by counsel:

“Subdivision 10 of section 88 of the charter of Ann Arbor (Act No. 331, Local Acts 1889) reads as follows:
“‘Tenth. To determine and designate the routes and grades of any railroad coming into or passing through said oity, and to restrain and regulate the use of locomotives, engines, and cars upon any railroad within the city.’
“Subdivision 31 reads as follows:
‘ ‘1 Thirty-first. To establish a grade for streets and sidewalks and cause the sidewalks to be constructed in accordance with the same.’
“ Is there any doubt but that these subdivisions of this section authorize the city of Ann Arbor not only to designate the route of the Ann Arbor Railroad, but to. fix and establish the grade, and to fix the grade of the streets over which it crosses ? And by these provisions it may raise the grade of the railroad above or beneath the grade of the streets over which it passes. The ordinance in question simply establishes the grade of the Ann Arbor Railroad through the city of Ann Arbor, and changes the grade of certain streets, and authorizes the railroad to build viaducts over certain streets; and clearly the charter authorizes such an ordinance” — citing City of Pontiac v. Carter, 32 Mich. 164; City of Detroit v. Beckman, 34 Mich. 125 (22 Am. Rep. 507); Larned v. Briscoe, 62 Mich. 393 (29 N. W. 22).

The facts do not disclose that the city was simply attempting to change a grade for highway and sidewalk purposes. The effect of what it attempts to do is to vacate a considerable portion of a street, and deprive not only the complainants, but the public, of the use of it, and give it over to the use of a railroad company. The principles involved are fully discussed in Schneider v. City of Detroit, 72 Mich. 240 (40 N. W. 329, 2 L. R. A. 54), Harper v. City of Detroit, 110 Mich. 427 (68 N. W. 265), and Phelps v. City of Detroit, 120 Mich. 447 (79 N. W. 640), which cases are controlling.

Desirable as this improvement undoubtedly is, the complainants cannot be compelled to submit to the loss which they would be obliged to sustain if it was made without due compensation.

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

The other Justices concurred.


author: Grant, J. Hooker, J.

text:
    VAN CAMP v. MICHIGAN CENTRAL RAILROAD CO.
    1. Statutes — Construction—Penal Statutes.
    Penal statutes will not be enlarged by construction.
    2. Carriers — Passengers—Transportation—Change of Schedule.
    Railroad companies may change their time-tables and may take off and put on trains, only reasonable notice to the public of such changes being necessary. 2 Comp. Laws, § 6235.
    3. Same — Change op Schedule — Notice.
    If, after reasonable public notice of change of schedule has; been given, a ticket agent misinforms a passenger, the statute (2 Comp. Laws, § 6235) providing a penalty in such cases does not apply, and the passenger can recover only his actual damages as at common law.
    4. Same — Train Schedules — Failure to Maintain — Penalty.
    Where a railroad company had advertised a train on a branch line to leave a connecting point shortly after the arrival of another train, and had sent printed posters to its agents showing the contemplated operation of such train, but before the time arrived when the train was advertised to be put on notice of its withdrawal was sent to some of the company’s agents, and was published, but the agent at Y. had received no such notice, by reason whereof he sold a ticket to plaintiff for passage over such branch line, and advised her of the run- ■ ning of the advertised train, and on her arrival at the junction point she was compelled to remain there overnight, the company ,was liable for the penalty prescribed by 2 Comp. Laws, § 6235, for failure to transport in accordance with her contract. Hooker and Carpenter, JJ., dissenting.
    Error to Berrien; Coolidge, J.
    Submitted May 17, 1904.
    (Docket No. 141.)
    Decided September 13, 1904.
    Debt by Alberta E. Yan Camp against the Michigan Central Railroad Company for failure to transport, under 2 Comp. Laws, § 6235. There was judgment for plaintiff on a verdict directed by the court,, and defendant brings error.
    Affirmed.
    This suit was brought to recover the penalty of $100 provided by section 6235, 2 Comp. Laws, for the failure of the defendant to transport the plaintiff, in accordance with her contract of carriage, without legal or just excuse. Her home was in Benton Harbor, Mich. She was attending school at Ypsilanti, Mich. She purchased a ticket June 24, 1903, good for a continuous passage from Ypsilanti to Grand Junction. Her route was over the main line of the Michigan Central to Kalamazoo, from which place defendant has a branch line to Grand Junction. Previously to and at the time of purchasing her ticket she inquired of the defendant’s agent at Ypsilanti if she could take the train leaving Ypsilanti at 1:25 p. m., and make close connections at Kalamazoo with the train for Grand Junction. She was informed by the agent that she could, and he showed her a schedule stating that a train left Kalamazoo at 4:45 p. m., her train on the main line arriving at 4:25 p. m. She testified that she relied upon the schedule shown her, and the statement of the agent in purchasing a ticket. On arrival at Kalamazoo she was informed that there was no train running to Grand Junction .at 4:45, and she was therefore obliged to remain in Kalamazoo overnight. Defendant introduced as a witness its .agent at Kalamazoo, who testified that the defendant had issued a time card to take effect June 14, 1903, showing a train scheduled to leave Kalamazoo at 4-45 p. m. each day except Sunday; that that card was canceled by another one, eliminating that train from the schedule, and that a notice was received from the division superintendent’s office at Jackson advising that this train would not be put on until further notice; and that a further notice was received June 29th announcing that this train would ■commence to run July 1st. A time card was introduced in evidence, in which this train was advertised, to take effect June 14th. The evidence did not show when this card or time-table was posted in the office whence it was taken.
    The above is a statement of all the evidence produced upon the trial. The court directed'a verdict for the plaintiff for the statutory penalty of $100.

      Humphrey S. Gray and G. M. Valentine, for appellant.

      John J. Sterling and Cady & Andrews, for appellee.

      As to liability to passenger for default or delay in running railroad train, see note to Hansley v. Railroad Co., (N. C.) 32 L. R. A. 543.

   Grant, J.

(after stating the facts). The statute is a penal one, and will not be enlarged by construction. Crosby v. Railroad Co., 131 Mich. 288 (91 N. W. 124).

In several cases we have discussed what constitutes a “legal and just excuse ” within the meaning of the statute. Freeman v. Railroad Co., 65 Mich. 577 (32 N. W. 833);. Reed v. Railway Co., 100 Mich. 507 (59 N. W. 144); Hoyt v. Railway Co., 112 Mich. 638 (71 N. W. 172).

The learned counsel for the defendant contend that the undisputed facts do not bring the case within the statute. They admit that the defendant had determined to put on this extra train for summer service to leave Kalamazoo at 4:45 p. m. for South Haven, passing through. Grand Junction; that time-tables showing such train were prepared, and public posters were printed and sent to the agents along the line for public distribution; that they were to take effect June 14th. But they insist that immediately thereafter, and before June 14th, notice was sent to the several agents that this extra summer train would not be put on until further notice, and that a new public poster or time-table for distribution, omitting this extra train, was issued and published. If the facts were as stated, the defendant’s position would undoubtedly be correct.. Railroad companies may change their time-tables, may take off and put on trains, and all that the statute requires is that they give reasonable notice to the public of such change. Sears v. Railroad Co., 14 Allen, 433 (92 Am. Dec. 780). If, when such reasonable notice is given, the ticket agent misinforms a passenger, this statute does not apply, and the passenger so misinformed can recover only his actual damages. Ohio, etc., R. Co. v. Hatton, 60 Ind. 12; Marshall v. Railway Co., 78 Mo. 610; St. Louis, etc., R. Co. v. Atchison, 47 Ark. 74 (14 S. W. 468). In such case he must count upon the common-law liability, and not upon that of the statute.

The mistake of counsel is one of fact, and not of law. The undisputed facts are that the plaintiff applied two or .more times to the authorized agent of the defendant to-ascertain about this train. She was shown a time-table issued by defendant and in the hands of its duly authorized agent. She was under no obligation to look for a schedule posted in the defendant’s depot or published in the newspapers. She went' to the proper place for the most reliable information. She obtained it by being shown a printed schedule. She relied on it as well as on the representations of the agent. This made her .case, and entitled her to a judgment under the statute, unless the defendant showed ‘ ‘ a legal and just excuse ” for not carrying her in accordance with her contract of carriage and printed schedule. The defendant wholly failed to show that the notice countermanding the advertised schedule was delivered to its agent at Ypsilanti. Its only witness was the agent at Kalamazoo, who had nothing to do with issuing or countermanding schedules. He did not know, and did not testify that he knew, that any such countermand or notice was sent to the agent at Ypsilanti. Neither the agent at Ypsilanti nor the defendant’s agent who was authorized to issue the schedule was called upon to testify that any such notice or countermand was sent to or received by the agent at Ypsilanti. It cannot, therefore, be said that the act which caused the plaintiff to purchase her ticket and take the train was solely that of the ticket agent at Ypsilanti. On thp contrary, it was the act of the defendant itself in issuing and publishing its schedules and failing to notify its agent of the change. So far as this record shows, the agent relied upon this schedule, and was authorized to rely upon it until notified otherwise.

The plaintiff made a case within the statute, and the judgment is affirmed.

Moore, O. J., and Montgomery, J., concurred with Grant, J.

Hooker, J.

(dissenting). The plaintiff purchased a ticket over defendant’s railroad, from Ypsilanti to Grand Junction, upon the representation made by defendant’s agent at Ypsilanti that a train upon defendant’s branch road, running from Kalamazoo-to Grand Junction, would leave soon after the arrival at Kalamazoo of the train over its main line. In a schedule issued shortly before by the defendant such connection was advertised, but in fact this schedule was changed before the time for it to take effect, and trains were not run in accordance with it at any time. The agent-at Ypsilanti was unaware of this withdrawal, or forgot it, though the agent at Kalamazoo testified that the schedule referred to was canceled by a later one, which omitted this train. The plaintiff was misled by the statement of the agent at Ypsilanti, and was obliged to stay for the night in Kalamazoo in consequence. She thereupon began this action to recover a penalty of $100, under 2 Comp. Laws, § 6235, and the circuit judge directed a verdict in her favor for that sum. The defendant brings error.

The statute in question (2 Comp. Laws, § 6235) is a part of the law providing for the incorporation of railroad companies, and to regulate the running and management and to fix the duties and liabilities of such companies. Section 6235 is as follows:

“(6235) Sec. 10. Every such corporation shall furnish sufficient accommodation for the transportation of all such passengers and property, as shall, within a reasonable time previous thereto, , offer or be offered for transportation at the place of starting, and the junctions of other railroads, and at siding and at stopping places established for discharging and receiving way passengers and freight; and shall take, transport, and discharge such passengers and property at, from, and to such places, on the due payment of toll, freight, or fare, legally authorized therefor; and every such corporation shall transport merchandise, wood, lumber, and other property and persons from the various stations upon said road, without partiality or favor, when not otherwise directed by the owner of said property, and with all practicable dispatch, and in the order in which such freight and property shall have been received, under a penalty for each violation of this provision, of one hundred dollars, to be recovered by the party aggrieved, in an action of debt against such corporation: Provided, that perishable or explosive freight and property shall have the preference over all other classes of merchandise. In case of the refusal by such corporation or agents to take and transport any such passenger or property, as aforesaid, or to deliver the same, or either of them, without a legal or just excuse for such default, such corporation shall pay to the party aggrieved all damages which shall be sustained thereby, with costs of suit, or the penalty prescribed in this section, at the election of the party aggrieved.”

If defendant is liable to the penalty sued for, it is because it failed to transport the plaintiff from Tpsilanti to Grand Junction “with all practicable dispatch.” The evidence shows that she was transported by the first train scheduled, and that to have transported her with greater dispatch it would have been necessary for defendant to send a special train from Kalamazoo to Grand Junction, with its attendant inconvenience and dangers. In my opinion, this statute was not intended to cover a case like this, but was designed to secure fair, impartial, and diligent transportation according to its actual running schedule. Had the plaintiff been misled without the fault of the defendant or its agent, and found herself delayed in Kalamazoo, it would hardly be contended that the company should have put on a special train to take her to her destination at once. It is true that she was misled by defendant’s agent, and it is possible that under the law of principal and agent she may have an action for the damages resulting from a breach of contract, if it can be said that there was a contract to take her to her destination without delay at Kalamazoo. The damage for a few hours’ delay might or might not amount to $100. There was no discrimination against her. There was no unusual delay in running the trains. She was transported as speedily as practicable according to the existing rules and schedule of trains. The penalty is applicable to these things, and is not to be imposed'for disappointment and delay arising from a mistake of the agent, or even a breach-of contract to transport a passenger contrary to the schedule of trains made under a misapprehension of its schedule. Penal statutes are to be strictly construed, and not to be extended beyond the letter of the law.

The argument has been made that the agreement that she should be transported without delay may be taken as evidence that she was not transported as “ soon as practicable.” It seems to me that this is fallacious, as it “begs, the question,” and, in effect, makes the penal provision applicable to and a means of enforcing all special contracts relating to transportation, rather than to the general management of trains and business. It is not probable that the station agent had authority to make a contract for transportation, except in accordance with the existing schedules, it not being within the scope of his authority, and, if he had not, the railroad company was under no obligation to perform such a contract if expressly agreed upon by him; yet it is now proposed to punish the defendant by the imposition of a penalty for not doing so. This is a liberality in the construction of penal statutes-which the law does not permit. Weaver v. Railroad Co., 107 Mich. 300 (65 N. W. 225); Ohio, etc., R. Co. v. Hatton, 60 Ind. 12; St. Louis, etc., R. Co. v. Atchison, 47 Ark. 74 (14 S. W. 468); Marshall v. Railway Co., 78 Mo. 610; Lake Erie, etc., R. Co. v. People, 42 Ill. App. 387. The case last cited is much like the present case. See, also, Gulf, etc., R. Co. v. Dwyer, 84 Tex. 194 (19 S. W. 470); State v. Railroad, 15 W. Va. 362 (36 Am. Rep. 803); Com. v. Stevens, 153 Mass. 421 (26 N. E. 992); Com. v. Nichols, 10 Metc. 259 (43 Am. Dec. 432); Hall v. Railroad Co., 44 W. Va. 36 (28 S. E. 754, 41 L. R. A. 669, 67 Am. St. Rep. 75); Com. v. Railroad Co., 1. Grant, Cas. 329; Railway Co. v. Clark, 58 Ark. 410 (25 S. W. 504). The foregoing cases, all cited in the brief of' defendant’s counsel; show that this statute should not be. applied to a case like the present.

The judgment should be reversed, and no new trial ordered.

Carpenter, J., concurred with Hooker, J.


author: Moore, O. J.

text:
    NEWAYGO PORTLAND CEMENT CO. v. TOWNSHIP OF SHERIDAN.
    1. Taxation — Water Rights — Assessment.
    Where the owners of lots fronting on a lake conveyed to plaintiff the portion of the lots that was covered by water, the deeds reciting that it was the intention of the grantors to convey all their rights to the water and the soil under water in the lake belonging and appurtenant to the described premises, and thereafter the lots were assessed to the grantors under a description excepting the riparian rights, plaintiff was properly assessed on the remainder as that part of the same lots lying in P. Lake, including all the riparian rights belonging and appurtenant thereto. •
    2. Same — Assessment—Abbreviations.
    Where, after the conveyance of that part of certain lots fronting on a lake that was under water, the remainder of the lots were assessed by number, with the addition “excp’t rip’in r’g’t,” such abbreviations sufficiently excepted the riparian rights of the owners of the remainder of the lots.
    8. Same — Statutes—Cueing Errors.
    Where certain lots fronted on a lake, and that part of the soil under water was conveyed to plaintiff, and the remainder of the lots assessed to the owners under a description consisting of the lot number and the abbreviations “excp’t rip’in r’g’t,” an assessment of the part conveyed to plaintiff as unplatted lands in the village, consisting of that part of the following described premises lying in P. Lake, including all the riparian rights belonging to and appurtenant to said premises, followed by a recital of the numbers of the lots, etc., if defective, was cured by 1 Comp. Laws, § 8922, providing that no tax assessed shall be held invalid on account of any irregularity, informality, omission, or want of any matter of form or substance that does not prejudice the property rights of the person whose property is taxed, etc.
    Error to Newaygo; Palmer, J.
    Submitted May 17, 1904.
    (Docket No. 153.)
    Decided September 13, 1904.
    Assumpsit by the Newaygo Portland Cement Company against the township of Sheridan for taxes paid under protest. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      A. F. Tibbitts, for appellant.

      F. L. Gray, for appellee.
   Moore, O. J.

This is a suit brought to recover taxes paid under protest. From a judgment obtained by plaintiff, the defendant has brought the case here by writ of error.

Some time prior to 1901 the plaintiff obtained from Peter Smalligan, who owned lot 2 adjoining Fremont Lake, a quitclaim deed to that portion of the lot covered by water. Like deeds were obtained from seven or eight other owners of lots running to the lake. Each of the deeds contained the following language:

“ It being the intention of the parties of the first part to convey all their rights to the water and the soil under water in Fremont Lake belonging and appurtenant to said above-described premises.”

In 1901 the supervisor made the following assessment: “ ‘ Peter Smalligan, lot 2, excp’t rip’in r’g’t. Sec. 2, T. 12 N., R. 14 W.” A tax of $3.36 was levied against this description and paid. Like assessments were made against each person who had conveyed to plaintiff company. Taxes were extended thereon and paid. The same roll shows the following assessment:.

“Newaygo Portland Cement Company. Unplatted lands of the village of Fremont. That part of the following-described premises lying in Fremont Lake including all the riparian rights belonging and appurtenant to said premises, namely: Lot 2 of section 2; lot one, north half of lot two; lot three and east fifty rods of lot four, section 11; lots one and three, section ten; lot one, section 412-14, assessed at $5,000 all together, and assessed down under the real estate column at $5,000 more. State taxes, $14; county tax, $15; town tax, $3.00; highway tax, $6.00; school and mill tax, $34.00; drain taxes at large, $5.50; making $77. 50.”

On the side is marked: “Paid under protest.” The plaintiff company declined to pay its taxes. A levy was made upon a team belonging to'it. The taxes were then paid under protest, and this suit was brought.

The circuit judge was of the opinion that the assessment to the plaintiff of its riparian rights in the lots and parcels of land was void, because the riparian rights cannot be assessed separately from the government descriptions, under the laws of this State, and, not being occupied by plaintiff as one description, could not be assessed as a whole, and therefore, not being assessed in separate and distinct parcels, the assessment was void, and the taxes levied by virtue of said assessment were void; that said assessment of riparian rights is indefinite, and incapable of identification, and for that reason said taxes levied on said description are void.

We cannot agree with this conclusion. It is evident that the plaintiff became the owner, by virtue of its deeds, not only of the rights of the grantors to the waters of Fremont Lake, but also of the soil under the water. We think it also clear that in making the several assessments against the several grantors the supervisor excepted therefrom what had been conveyed tothe plaintiff. Itisequally clear that he also assessed to the plaintiff what had been conveyed to it by the several grantors, and what the supervisor had excepted in the assessments made against the several grantors. We think that -no one can reasonably doubt that by the abbreviations “rip’in” “r’g’t” was meant the riparian rights of the parties. It is also clear that the several grantors who have paid their taxes did not pay for that portion of the several lots which were in Fremont Lake, and that the plaintiff, who is the owner of the property, ought to pay the taxes levied thereon. If there is any irregularity in the assessment and levy of the tax, it is cured by section 3922, 1 Comp. Laws.

Judgment is reversed, and one will be entered here in favor of defendant, with costs of both courts.

The other Justices concurred.


text:
    BECKER v. HEADSTEN.
    1. Appeal and Error — Findings of Fact — Conclusiveness.
    Where no amendments to the trial court’s findings were proposed, as authorized by Cir. Ct. Rule 26 b, it will be assumed on error that the evidence warranted the findings made.
    2. Usury — Penalties—Forfeiture of Interest — Mistake.
    Where neither the borrower nor the lender of money was able to figure the interest due on the notes, whereupon the parties went to L., and had him figure the interest, and on the basis of his conclusion a new note was erroneously given for more than was justly due on the notes, but the lender had no intention of taking usury, and as soon as he learned of the mistake indicated his willingness to correct the same, he was not subject to a forfeiture of all interest due on the debt for taking usury, as provided by 2 Comp. Laws, § 4857, but was entitled to the allowance of his claim against the debtor’s estate to the extent of the amount due, with legal interest.
    Error to Delta; Stone, J,
    Submitted June 10, 1904.
    (Docket No. 78.)
    Decided September 13, 1904.
    Charles Becker presented a claim against the estate of Carrie A. Headsten, deceased, for the amount of a promissory note. The claim was allowed in the probate court, and Anna R. Headsten, the administratrix, appealed to the circuit court. There was judgment for claimant at the circuit, and defendant brings error.
    Affirmed.

      James H. Clancy, for appellant.

      George Callup (A. H. Byall, of counsel), for appellee.
   Moore, C. J.

Mr. Becker presented a claim in probate court. It was allowed at the sum of $589.19. The administratrix appealed to the circuit court. The case was fried before the judge without a jury. A judgment was rendered for claimant for $582.36. The case is brought Bere by writ of error.

August 5, 1893, Carrie A. Headsten gave to claimant Ber note for $100, bearing 8 per cent, interest. On July :24, 1890, she gave him one for $200, drawing 8 per cent, interest. November 1, 1890, she gave him one for $100. In the early part of 1898 the maker of the notes and the payee, neither of whom could figure interest, went to Mr. Linden, and had him figure the interest. January 30, 1901, Carrie A. Headsten, a daughter of the maker of the notes, taking Mr. Linden’s figures as a basis, figured the amount from that date and found it to be $846.50. For this amount a note was given to Mr. Becker by Mrs. Headsten, which note is the claim presented by Mr. Becker. It is admitted the note was given for $136.70 too much, which defendant claims was usurious interest, and for that reason no interest should be allowed. Section 4857, 2 Comp. Laws. It is the contention of claimant that he had no intention of taking usurious interest, and that an unintentional mistake was made in the computation, and that as soon as he learned the mistake he indicated his willingness to correct it. The circuit judge found:

“ I further find that it was the intention of both of the parties thereto to make said new note for the amount of, and to take the place of, said original notes. I find that neither the maker nor the payee could compute the interest on these notes, and that a mistake was made in the computation of the interest due upon said notes. I find that through inadvertence and by mistake said new note was given for the sum of $846.50, whereas it should have been given for only the sum of $710.10. I find that neither of the parties to said new note intended it to include usury or unlawful interest. An inspection of said original notes shows that upon no theory of computation could they have amounted to $846.50. * * * The claim will therefore stand allowed against said estate, and in favor of said claimant, as of October 2, 1902, at $582.36, and an order will be entered accordingly. My reasons for this conclusion are as follows: I think that this erroneous computation was the result of a mistake, and that it was therefore not intentional.”

No amendments to these findings were proposed. Seo Cir. Ct. Rule No. 26 b. We must therefore assume the evidence warranted the findings. See Merrill v. Newton, 99 Mich. 226 (58 N. W. 69), and cases there cited; Congdon v. Bailey, 121 Mich. 570 (80 N. W. 369).

The findings of the circuit judge bring the case within Green v. Grant, 134 Mich. 462 (96 N. W. 583), and cases cited therein.

Judgment is affirmed.

Carpenter, Grant, and Montgomery, JJ., concurred. Hooker, J., concurred in the result.


author: Carpenter, J.

text:
    HERRING v. CITY OF ST. JOSEPH.

    Municipal Corporations — Defective Streets — Injuries to Pedestrians — Contributory Negligence — Diverted Attention.
    Where packages plaintiff was carrying in her arms became disarranged, and while she was rearranging them, her attention being diverted, she came closer to a defective gutter than she thought she was, and stepped into it, her contributory negligence is a proper question for the jury.
    Error to Berrien; Coolidge, J.
    Submitted June 10, 1904.
    (Docket No. 146.)
    Decided September 13, 1904.
    Case by Nettie Herring against the city of St. Joseph for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      N. A. Hamilton, for appellant.

      James O’Hara, for appellee.

       Rehearing denied December 7, 1904.

   Carpenter, J.

On the 11th of May, 1903, plaintiff was injured by stepping into a gutter on one of the streets of .the city of St. Joseph. She brought this suit for compensation, and recovered a small verdict and judgment. No question is raised in this court, respecting defendant’s negligence, and therefore we do not consider that question. We are asked to reverse the judgment solely upon the ground that the plaintiff’s own testimony shows that she was guilty of contributory negligence.

It appears from that testimony that the existence of the gutter was well known to plaintiff; that it was broad daylight when she stepped into it; that she was carrying packages of merchandise in her arms; that “They got disarranged, and I * * * was arranging them. I hadn’t got to the gutter yet, but just about the time I got finished, I was nearer the gutter than I thought I was, and the consequence was that I got into the gutter.” That her “attention had been diverted to the packages,” and. she “ did not know she was so close to this place.”

We think that under this testimony the question of plaintiff’s contributory negligence was properly submitted to the jury. See Sias v. Village of Reed City, 103 Mich. 312 (61 N. W. 502); Lowell v. Township of Watertown, 58 Mich. 568 (25 N. W. 517); Graves v. City of Battle Creek, 95 Mich., at page 271 (54 N. W. 759, 19 L. R. A. 641, 35 Am. St. Rep. 561); Belyea v. City of Port Huron, 136 Mich. 504 (99 N. W. 740). See, also, Cumisky v. City of Kenosha, 87 Wis. 286 (58 N. W. 395), and Crites v. City of New Richmond, 98 Wis. 55 (73 N. W. 322).

As no other complaint is made by appellant, the judgment is affirmed.

The other Justices concurred.


text:
    McLEAN v. PERE MARQUETTE RAILROAD CO.
    1. Master and Servant — Railroads —Injuries to Servants — Derailment of Cars — Transportation of Freight.
    In an action for injury to a section hand by the derailment of a hand car, evidence held sufficient bo establish negligence of defendant in permitting an open rack car to be loaded with loose planing mill refuse, from.which short pieces of hardwood flooring could fall on the track, one of which caused the derailment in question.
    2. Same — Furnishing Unsuitable Cars — Accidents — Negligence — Res Ipsa Loquitur.
    Where a railroad company permitted planing mill refuse to be loaded loose on an open rack car, so that, as the car was being transported, some of the material would drop from the caí-, and might be drawn onto the rail and lodge there by the suction of the train, and plaintiff, a section hand, was injured by the derailment of a hand car, caused by the lodgment on the rail of one of the pieces of wood so transported, there being no other possible theory of the cause of the accident, the, rule that the happening of an accident was not of itself evidence of negligence does, not apply.
    3. Same — Contributory Negligence.
    Where defendant negligently permitted planing mill refuse to be loaded loose on an open rack car, and plaintiff, a section hand, was injured by the derailment of a hand car, caused by certain of such refuse falling on the track, the fact that, as the train containing the loaded car passed plaintiff, he saw it, and thought it was dangerous to so load such material, he never having seen it loaded in such manner before, did not render him guilty of contributory negligence, as a matter of law, in immediately following the train containing such, car on his hand car, under the direction of his foreman.
    4. Same — Assumed Risk.
    Plaintiff having a right to assume that defendant had furnished a proper car, and loaded it in a proper manner, the danger was not so obvious that he assumed the risk.
    5. Railroads — Station Agents — Authority to Bind Company.
    A station agent’s actions and contracts within the scope of his authority bind the company.

      6. Master and Servant — Railroads — Injuries to Servant — Fellow-Servants.
    Where a railroad station agent was intrusted by his master to select proper cars for the transportation of property over its railroad, and he negligently ordered an open rack car for the transportation of planing mill refuse to be transported loose, and plaintiff, a section hand, was injured by the derailment of a hand car, caused by the falling of certain of the refuse on the rail, the station agent, in selecting such car, etc., was not plaintiff’s fellow-servant, since the railroad’s duty to select reasonably safe cars could not be delegated.
    Error to Osceola; McAlvay, J.
    Submitted June 14, 1904.
    (Docket No. 19.)
    Decided September 13, 1904.
    Case by William E. McLean, an infant, by his next friend, against the Pere Marquette Railroad Company for personal injuries. There was judgment for plaintiff, ■and defendant brings error.
    Affirmed.
    On September 5, 1902, plaintiff, a section hand in the ■employ of the defendant, was injured by the derailment of a hand car upon which he and the other members of the section crew were riding. The section men had been working on the track about two miles east of Chase. About 10 or 15 minutes before they quit work in the afternoon a freight train passed over the track going west toward Chase. Plaintiff noticed in this train a rack car loaded with planing mill refuse. The rack car was such as the plaintiff understood was used for transporting barrels. The open spaces in the rack were three or four inches wide and about six feet long. The planing mill refuse consisted of pieces of hard maple flooring from three to four inches wide, and from four inches to three feet long. Plaintiff had never noticed such a car, loaded with such material, pass over the road before that. It was immediately in front of the caboose. Immediately upon seeing it, it occurred to him that that was a dangerous way of transporting mill refuse, for the reason that blocks might drop out between the racks and be drawn up on top of the rails by the suction of the train. Ten or fifteen minutes after the train had passed, the section crew placed their hand car on the track, and started toward Chase, following the train with the rack car in it. At that time they saw the smoke of another train coming from the east, and heard the whistle of its locomotive. Under the rules of the railroad company governing trackmen, it was their duty to keep out of the way of moving trains when they were passing along the track on a hand car. As they went westward they were watching the train approaching them from the east. As the hand car approached Chase, it was derailed by striking a block of hard maple flooring about one inch thick, three inches wide, and four inches long, which lay upon the rail just east of a highway crossing. Plaintiff was thrown upon the cattle-guards at the side of the highway, and sustained the injuries' upon which this action is based.
    The theory of the declaration is that the defendant furnished an improper car for the transportation of material of the character above described, and that a piece of it fell through one of the openings and lodged upon the rail, in consequence of which the hand car was derailed and plaintiff injured.
    The suit was brought in justice’s court, where plaintiff recovered a verdict of $100. Defendant appealed the case to the circuit court, where a like verdict was rendered.

      Charles McPherson (Frederick W. Stevens, of counsel), for appellant.

      Charles A. Withey, for appellee.
   Grant, J.

(after stating the facts). Defendant’s first contention is that there is no evidence of negligence. Defendant’s trainmaster, a witness in its behalf, conceded that it was unsafe to load an open rack car with such material thrown loose in it. There was sufficient evidence to establish negligence on the part of some one in furnishing and loading the car in the manner described. The block or piece of wood was found immediately after the accident with the dent of the flange of the car wheel on it. It was of the same material as that with which the car was loaded. The car had passed over the track only 10 or 15 minutes before. It is a fair inference that it fell from that car, and that in some way it lodged upon the rail. It might have lodged there as it fell. The train was going fast, and as the block struck the ground it would naturally roll some distance before stopping, and in this way might have lodged upon the rail. It might have been drawn there by the suction of the train. The evidence of the effect of the suction of a train upon pieces of wood the size of this was conflicting. There was no other probable theory of the cause ofl*the accident. This is not a case, therefore, for the application of the rule that an accident is not of itself evidence of negligence. Schoepper v. Chemical Co., 113 Mich. 582 (71 N. W. 1081).

The mere fact that, as the train passed, plaintiff saw the car, and thought it was dangerous to load such a car with such material in such manner; and that he, under the direction of the section foreman, rode over the track immediately after, is not conclusive evidence of contributory negligence. Neither did he thereby assume the risk. He had seen nothing of the kind before, and had the right to assume that the defendant had furnished a proper car and loaded it in a proper manner. The danger was not so obvious as to require him to place his own judgment at •once against that of his employer. The question of contributory negligence was properly submitted to the jury.

It is also contended that the furnishing and loading of the car were the acts of fellow-servants. The precise •claim is that the car was furnished to the shipper by defendant’s station agent at Reed City, whose province it was to determine the kind of cars to be used; that it was the duty of the train conductor to inspect every loaded car before taking it, and to determine whether it was properly loaded, and to refuse to take it if, upon inspection, he determined it was not properly loaded; and that these two> employes were plaintiff’s fellow-servants. The question as to the conductor may be eliminated from the controversy-by the fact that there is no evidence of any other method of loading this mill refuse into cars for transportation. There is no suggestion, even, of any other method. The method was proper for a suitable car. The plaintiff gave no direct testimony showing by whose authority or direction this car was furnished. The only testimony upon the point is that of defendant’s trainmaster, and is as follows

“ As trainmaster I have supervision over the station agents of my division in the handling of cars for trains. I am acquainted with the manner in which agents obtain cars for their customers. The station agent determines, what sort of a car shall be delivered to a customer who wants one. The customer applies to the agent, and the agent orders the kind of a car he wants from the car distributor. If the agent wanted a stock car for sheep, he would not specify to the car distributor that he wanted it to put sheep in. He would simply order a single or double deck stock car for a given destination. If he wanted a rack car, he would not specify to the car distributor what kind of wood he wanted to put in it. It appears that on the day on which plaintiff was injured a- rack car loaded with mill refuse was shipped out of Reed City. The agent at Reed City determined what kind of a car should be used for that purpose. If he had chosen to order a box car, or a gondola, he could have obtained it.”

Under this record the defendant intrusted its station agent to .select proper cars for the transportation of property over its road. The authority of a station agent is; very extensive. His actions and contracts in all things within the scope of his authority bind the company. L Wood on Railroads, § 165.

It is established by the decisions of this court that the primary duty to provide cars, etc., reasonably safe- and in reasonably good condition for the purposes for which they are to be used, is one which cannot be delegated. Thomas v. Railroad Co., 114 Mich. 59 (72 N. W. 40); Sheltrawn v. Railroad Co., 128 Mich. 669 (87 N. W. 893); Morton v. Railroad Co., 81 Mich. 425 (46 N. W. 111); McDonald v. Railroad Co., 132 Mich. 372 (93 N. W. 1041). This duty is not performed by furnishing a car designed, suitable, and safe for one purpose, to be used for another purpose for which it is unsuitable and unsafe. The shipper in this case did not ask for a car suitable and safe for the transportation of barrels, but for one suitable and safe for the transportation of his mill refuse. The defendant is equally responsible for furnishing a car unsuitable and unsafe for the use to which it is to be put as it would be in’ furnishing a car of the proper kind in an unsafe condition. Cases of defective loading (Miller v. Railroad Co., 123 Mich. 374 [82 N. W. 58]) have no application to cases where defective appliances and machinery have been provided. See a discussion of this subject in Beesley v. F. W. Wheeler & Co., 103 Mich. 203 (61 N. W. 658, 27 L. R. A. 266).

Some errors are assigned upon certain portions of the charge of the court. They are, in the main, controlled by what we have already said. Considering the charge as a whole, it was a correct exposition of the law, and we think there is no occasion for holding that the jury were misled by it, although in one instance a sentence standing by itself is not strictly correct.

Judgment affirmed.

The other Justices concurred.


text:
    KING v. ANN ARBOR RAILROAD CO.
    1. Negligence — Contributory Negligence — Question for Jury.
    In an action against the owner of a steamboat for negligently killing a laborer by collision with a dock, evidence examined and held to make a proper case for the jury.

      2. Same — Instructions—'Weight oe Testimony.
    Instructions in an action for wrongful death examined and held prejudicial as on the weight and effect of the evidence.
    Error to Benzie; Chittenden, J.
    Submitted June 14, 1904.
    (Docket No. 20.)
    Decided September 13, 1904.
    Case by Elfa H. King, administratrix of the estate of Sheridan J. King, deceased, against the Ann Arbor Railroad Company for the alleged negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      T. W. Whitney (Alexander L. Smith, of counsel), for appellant.
    ‘ D. Gf. F. Warner and Charles A. Withey, for appellee.
   Moore, C. J.

This cause comes into this court on a writ of error to reverse a judgment rendered in favor of the plaintiff for damages for wrongfully causing the death of the plaintiff’s husband, Sheridan J. King.

The accident by which Mr. King came to his death occurred on the 26th day of June, 1902, at Frankfort. The accompanying plat will help understand the situation.

It is the claim of plaintiff and admitted by defendant that instead of the boat getting out as far as “F” it was midway between “E”and “ F.” The defendant company has its terminus at Frankfort. The harbor consists of a small lake, known as “ Lake Betsey,” connected with Lake Michigan by a channel about 200 feet wide between parallel docks. This channel runs nearly east and west. At the easterly end of the northerly pier it is built at right-angles, and extends northerly several hundred feet, bordering upon Lake Betsey, furnishing a landing place for passengers for a large hotel. At the easterly end of the northerly dock or pier there is at-a short distance from the face of the dock a clump of piles not connected with the «dock. These piles are loosely bound together by a chain, and are called “fender.” piles. They are designed to protect the corner of the dock, and also vessels approaching the corner of the dock, from injury. The dock is a substantial timber structure about five feet above the water line. There is just about at the water line a 10-inch timber ^extending out from the dock, forming a ledge upon which a man can stand or walk. In passing around the corner of the dock on this ledge a man would pass between the spring piles and the face of the dock. These piles extend some 4 or 5 feet above the level of the pier. Just before the accident Mr. King had been engaged in painting a small shed belonging to the government which stood on the pier about 15 feet from its easterly end, and within 14 inches of the channel side. He had rowed over from the south side in the morning in a small rowboat belonging to the United States government, in whose employ he was, and had tied his boat kr the foot of a small ladder on the east end of the dock. The ladder is made of 2x4 pieces nailed to the face of the dock with four cleats for crosspieces. In tying this boat Mr. King passed the rope between the clump of piles and the dock. The rowboat was riding out into the water of the channel. One of the defendant’s car ferries had. been stopped at the hotel dock.. It was then backed out into Lake Betsey. She was in charge of Oapt. Robertson, who was on the pilot house, about the center of the boat, and 20 feet from the side. When his vessel was about 200 feet from the corner of the dock Oapt. Robertson, called out to the men on the dock, “ Somebody pull that boat in out of the way;” or, “ Get that boat out of the way.” There were at the time one or two other men on the dock besides Mr. King. The latter heard the call, got down from the building he was painting, and walked east toward the end of the dock. When he arrived at the top of the small ladder, he turned, backed down the ladder, and stooped down to untie the rope. In so doing he leaned against the spring piling, and he was in this position when the large vessel struck against the piling, and he was killed. Suit was brought, with the-result already indicated.

It is claimed the court erred in submitting the case to the jury, for the reasons:

1. That there is no evidence fairly tending to show any negligence on the part of defendant of any duty owed to the deceased.

2. That King was himself guilty of negligence proximately and directly causing his death.

The counsel are not agreed as to what the record shows. It is the claim of counsel for plaintiff that while the boat was 200 feet away, and still backing, or at a standstill, and certainly before beginning to move forward, the captain commanded the removal of the small boat, and that from then on he paid no attention to the man who obeyed his order. It is the further claim that Mr. King obeyed the order in the only way that it could- have been done; that to untie the rope he needed to stoop down facing the dock, and, on account of the narrowness of the ledge, steady himself against the piles; and' that while he was doing so he was in plain view of the captain, who, if he had looked, would have seen he was in a place of danger. It is his further claim that both Mr. King and the captain were familiar with the situation, that there was plenty of room in the channel to take the boat out without striking the piles, and if the big boat was so taken out the-little boat would be in the way, but if the big boat was so steered as to strike the fender piles the little boat would not be in her way, and, this being the situation, Mr. King, as a reasonably prudent, man, had a right to expect the boat would be kept away from the fender piles, and to do what he-did, and that he would not have-been in an unsafe place had it not been for the negligence of the captain. On the other hand, it is claimed the large boat was coming forward when the order was given, that any one could see she would strike the fender piling, .and that any one would know, if he were between the., fender piling and the dock, that he was in a place of great danger. It is also claimed the captain had no reason to suppose any one would undertake to do what Mr. King did; that he was not in a position to see Mr. King. They further claim, using the language of counsel:

‘ ‘ It seems too plain for argument that King was guilty of the grossest carelessness. He knew all the circumstances of the situation — of the approaching car ferry. If he did not know that it would actually strike the piling, he certainly knew that it was liable to do so. And with this knowledge he deliberately turns his back to the approaching ferry, and then gets between the piles and the dock, and is killed. Such negligence is simply inexcusable. If he had glanced over his shoulder, he could have saved his life by a step. Or did he miscalculate the force of the impact ? Who shall say ?”

We think there was evidence in the case in support of each of these theories, and that the court could not properly withdraw the case from the jury.

Error is assigned in relation to the charge of the court. The defendant asked the court to give his third request to charge, which was as follows, except the words in the parenthesis being omitted:

I further charge you that if Mr. King knew that the car ferry was approaching the corner of the pier when he got down on the ledge of timber at the bottom, and that he did not look to see whether the car ferry was liable to strike the piling (but carelessly and negligently, and without using ordinary care), placed his body between the piling and the pier just before the ferry boat struck the piling, and that if he had not gone into that place he would not have been killed, then the verdict should be for the defendant, even though the jury also find that those in charge of the boat were negligent in allowing the boat to strike the fender piling.

The court modified it by inserting the words in the parenthesis. This request, as originally prepared, met a phase of the case contended for by defendant in relation to which they have offered evidence.

The court also charged the jury:

Third. I charge you, as a matter of law, and wish you to understand it, that it is the duty of all persons, the defendant railroad company no more and no less than any one else, to so use and manage their property as not to unnecessarily injure others. This rule is general, and applies to defendant in this case. Those in charge of the boat ordered or requested leaving a place of safety for the purpose of moving the boat out of the way of the transport. The defendant knew that if they ran against the spring pile when Mr. King was between it and the dock they might kill or injure him, and, knowing where he was likely to be, and the dangers incident to what he was doing, if the transport struck the spring pile, it was the duty of the defendant, by its servants in charge of the transport, to use all reasonable diligence not to bring Mr. King into any unusual or unnecessary danger, and to keep away from the spring pile when he was near it, and until he was out of danger. * * *
Fourth. I further charge you that the fact that the plaintiff’s husband was not working for the defendant will not defeat her recovery, because the railroad company, •when it requested the removal of the rowboat, knew of the situation, and was in plain view of the surroundings, and the situation Mr. King was in, and owed to him the duty of all reasonable care on the part of those in charge of the boat to prevent injury to said King while he was carrying out their request. And the fact that the channel upon the waters of which the rowboat was then riding was a public highway does not release the defendant from the responsibility and duty of using due diligence and care in the premises.”

In giving these requests the charge substantially told what the weight and effect of the testimony was. This should be left to the jury.

Judgment is reversed, and a new trial ordered.

The other Justices concurred.