author: Steere, J. Ostrander, J.

text:
    BROWN v. KEISER.
    1. Homestead — Exemptions—Death—Creditors.
    The homestead of an unmarried man ceases to he exempt at his death: the statute creates such exemption only in favor of the widow or minor children of a decedent.
    2. Escrows — Conveyances—-Delivery.
    Evidence that decedent delivered a deed of his homestead to a third party to be delivered to the son of grantor; that no such instructions were given as to the length of time the deed was to be held; that although the witness understood the conveyance was to be delivered at the death of the father, and such intent was clearly to be inferred, no such instructions were specifically given; that the conveyance was made to induce the son to advance about |120 to the father; and that the money was advanced, held, to be insufficient to satisfy the requirement of law that proof of the oral directions must be clear and convincing.
    3. Same — Deeds—Death—Fraudulent Conveyances.
    By delivery of a deed in escrow to be surrendered to the grantee only after the decease of the grantor, a conveyance of the fee is accomplished, operating as of the date of delivery, the enjoyment being postponed until the grantor’s death. But, in equity, such a legal fiction cannot be permitted to defeat just claims of creditors which arose before the second delivery of the escrow. Brooke, Kuhn, Ostrander, and Bird, JJ., concurring on the ground that no delivery was proved and dissenting from the reasoning that if a delivery in escrow was effected, the conveyance should be set aside in favor of creditors.
    4. Same- — -Debtor and Creditor — Equity.
    But the decree, in a suit to set aside the deed as fraudulent, should have been so drawn as to permit the grantees in the deed to pay the claims against decedent, and costs, within a limited period, and not setting aside the transfer absolutely.
    Appeal from Lapeer; Smith, J.
    Submitted January 21, 1914.
    (Docket No. 36.)
    Decided October 2, 1914.

      Bill by Samuel D. Brown as administrator of the estate of William Reiser, deceased, against William F. Reiser and Jane S. Reiser to set aside a deed as a fraudulent conveyance. From a decree for complainant, defendants appeal.
    Modified and affirmed.

      William E. Brown, for complainant.

      B. F. Reed (George B. Andrews, of counsel), for defendants.
   Steere, J.

In this suit defendants have appealed from a decree of the Lapeer county circuit court in chancery, setting aside a deed to them of certain premises, executed by complainant’s decedent, and not recorded until some time subsequent to his demise, in order that the realty described in said conveyance may be reached by complainant, as administrator, and devoted, so far as necessary, to paying debts of deceased’s estate.

The premises in question, described as N. y% of lots 9 and 10, block 22, in the N. E. division of the city of Lapeer, Mich., and conceded to be of the value of $1,000, were purchased by William Reiser, decedent, in 1901. He was then a widower, and so remained until his death, which occurred September 29, 1908. Shortly after purchasing said property, he took possession thereof and resided upon it during the remainder of his life. When he died, and for some time prior thereto, his son and son’s wife, William F. and Jane S. Reiser, defendants, resided with him. From the time of purchase, in 1901, until March, 1910, said premises stood upon the public records in the name of deceased. In February, 1910, no steps having been taken by relatives to liquidate the expenses of deceased’s funeral and a few small debts which he had left, his creditors instituted proceedings in the probate court of Lapeer county for the settlement of his estate. Complainant was appointed administrator. Debts amounting to $210.49, including said funeral expenses, were proven and allowed against the estate. On March 7, 1910, the son, William F. Keiser, caused to be recorded a deed of the premises from deceased to himself and wife, bearing date April 8, 1908; the stated consideration being $1.

Unable to find other assets belonging to the estate, complainant filed this bill to set aside said deed, alleging that the same was never delivered during the grantor’s lifetime, and that he died seised of the premises described therein; that complainant and others had extended credit on the understanding and belief that the ownership of said real estate was as shown by the records; that no other assets of said estate were discoverable; that defendants refused to pay the debts of said estate, claiming to own said premises clear and free therefrom, and therefore complainant prayed that said deed be held void as against creditors and, if necessary, that said premises be ordered sold to satisfy their claims.

It appears, undisputed, that the deed in question was executed by deceased at his home on the date it bears and was, on the same day, left with the First National Bank of Lapeer, inclosed in an envelope, on which was indorsed a memorandum briefly describing the deed and stating that it was “to be delivered to grantees at the death of William Keiser, grantor.”

The instrument was prepared by an old friend of deceased’s, named J. H. Bidwell, who took the acknowledgment and acted as a witness. He made the indorsement on the envelope and delivered the deed, so inclosed and marked, at the bank, being accompanied there by defendant William F. Keiser. It there remained in custody of the bank until March 7, 1910, when said defendant procured and had it recorded following the institution of probate proceedings by creditors of his father’s estate. The circumstances of its execution indicate clearly the intent of deceased that the deed should not be delivered to the grantees during his lifetime. They were both present when it was executed, and he delivered it to Bidwell, not to them. What his further intentions in regard to it were is not so clear. There is no direct proof of any statement by him indicating that he did or did not intend to retain full control of it.

Of the witnesses present, only William F. Keiser and Bidwell testified to the transaction. Keiser related no conversation with his father or circumstances leading up to the execution of the deed, and briefly told of the occurrence as follows:

“Mr. Bidwell drew that deed, and I read it and handed it to my wife, and she read it and handed my father the deed, and father handed it to Jim (Bid-well) and said it was all right, and Jim put it in an envelope and wrote that stuff on there. I didn’t know what was on it.”

He also stated that he volunteered to go with Bid-well to the bank, “and the deed was left there.”

Bidwell’s account of the transaction was somewhat more full, he being recalled by the court, on its own motion, for further details, but his evidence was yet quite general and indefinite in many respects. He did not tell by whom he was instructed to prepare the deed, nor give the particulars of any conversation. He testified that he and deceased had been friends for years, and deceased used to go to him about many matters ; that the deed was drawn up in his office, and he afterwards went with it to deceased’s residence, where it was executed, he taking the acknowledgment and signing as a witness, but remained there but a short time; that he understood the son was letting his father have $100, $115, or $120 to pay a note the father owed; that later he learned the money had been paid to a creditor of deceased; that he could not say whether the deed was given for security or not, but he got the impression that, unless the deed was made, the money would not be forthcoming; that his understanding of the arrangement was the deed should be then taken to the bank, for the purpose of not having a delivery to William F. Keiser, and not to be delivered to the grantees until after the father’s death, it being talked that it should be left in care of witness, who, however, suggested that, instead of his keeping said deed, it would, be safer if left with the bank, which was acquiesced in; that, having received the instrument from the grantor after its execution, he first took it to his office and inclosed it in an envelope, upon which he wrote the memorandum before mentioned, then turned it over to the bank, without giving any special instructions, as he remembered, thinking the indorsement on the envelope would be sufficient; that no other consideration for the deed was mentioned in his presence nor anything said about the grantor keeping control of the instrument.

We need spend little time upon defendants’ contention that the property was exempt from claims of deceased’s creditors because it was his homestead. It ceased to be such when he went to his long home. He left no wife nor minor children to whom the privilege might be transmitted under the statute. The statute—

“Exempts the land only while it is occupied as a homestead by the widow and minor children. Subject to the homestead right, therefore, the lands are assets, when needed for the payment of demands against the estate.” Drake v. Kinsell, 38 Mich. 232.

If the property belonged to deceased at the time of his death, it became an asset of his estate, holden for its debts as any other property might be.

It is the contention of defendants that the facts proven in this case show deceased delivered this deed to a third party as an escrow, reserving no control of it, and with only the condition that it should be delivered to the grantees on his death, an event certain to happen sooner or later; that grantees having knowledge of and consenting to it, the delivery to the third party operated at once as a present, complete conveyance of the fee, free from all obligations of the grantor or his estate.

It is insisted by complainant that there was no legal delivery of this deed to or for defendants during deceased’s lifetime; that it is not shown to have been delivered by deceased to Bidwell beyond recall, and that the strongest inference in defendant’s favor to be drawn from the testimony is that, to recall it, the grantor would be required to repay the money it is claimed his son let him have on the strength of it; that even though it sliould be found the deed was delivered by the grantor as an escrow, beyond recall, to convey the fee and become operative on delivery to grantees at his death, whereby, as between the parties, the title might pass by relation at the time of the first delivery, it would not be effectual to cut off intervening rights of creditors of the estate.

Upon the question of delivery, we start with the general proposition that a deed is inoperative until delivered by the grantor and accepted by the grantee. It may be delivered to a third person for the benefit of the grantee, and when afterwards delivered to and accepted by the grantee it will, by the doctrine of relation, take effect from the date of the original delivery. Under these elementary rules, there are different classes of delivery through an intermediary, of varying legal significance, according to conditions imposed and the intent of the grantor as declared, or disclosed from the facts and circumstances shown.

The chief cause of uncertainty and resulting abundance of litigation on this subject arises from the accepted rule that in this class of cases the title may rest for certain of its essentials on parol evidence. It is not required, as once indicated by early authorities, that all escrows, or conditional deliveries to third parties for ultimate delivery to grantees, must be evidenced by written instructions from the grantors (Fulton v. Priddy, 123 Mich. 298 [82 N. W. 65, 81 Am. St. Rep. 201]), and in this case defendants’ title depends for one of its essentials on parol evidence, in many respects rather indefinite and inferential. We have no distinct statement by any one as to what the actual understanding and agreement between the parties was. The one of the grantees who testified told nothing of how this deed came to be made, briefly gave his version of what occurred at the time it was executed, and asserted the deed was his, and he paid for it. The grantor’s mouth is closed by death.

The conveyancer did not know of any conversation between father and son previous to the time of the execution of the deed, stated he was not long there that morning, was not able to tell definitely what was said by any particular person or of distinct instructions given in relation to the deed which he carried away, but in general terms stated what he understood or inferred from what was talked, as he recollected it. From his testimony we can gather that the occasion for executing the deed was that the son let his father have some money with which to pay a debt; that in the transaction neither party was disposed to trust the other fully. The father would not trust the son with the deed, and, “unless the deed was made, the money wouldn’t be forthcoming.” Witness did not “recall that there was any conversation in regard to repayment of the loan,” and he did not remember anything said as to whether or not the father might recall the deed, but understood the deed was to be delivered to the son at the death of the father, who desired witness to care for it, but consented, on witness’ suggestion, that he might leave it with the bank. Witness thereafter, without any more definite instructions from deceased, wrote the indorsement on the envelope and left the instrument with the bank as before stated, and, so far as shown, without telling deceased of the indorsement or obtaining any ratification of what had been done. Bidwell nowhere testified that the grantor delivered the deed to him, or any other third party, with instructions to deliver it to grantees at grantor’s death. The farthest he went in disclosing the expressed intent or desire of the grantor was the statement that deceased suggested it be left with witness, and when directly asked by the court if deceased said anything as to how long witness should keep it, or when deliver it to the son, he replied:

“I don’t remember now what he said in that matter. * * I can’t recall the conversation.”

The son, the only other witness, goes no farther than to state that his father said the deed was all right, and “handed it to Jim.” Bidwell nowhere directly traces to the father the source of his understanding that the deed should be delivered to the son upon the death of the father.

Not only must the delivery, by grantor to a third party be proven, but also the definite instructions by him to deliver after death to the grantees. The validity of title to real estate, which defendants seek to maintain to defeat creditors of this estate, depends upon oral proof to sustain this proposition. It should be unequivocal, clear, and convincing proof. We are not well satisfied that the trial court should have found that it was.

Conceding, as defendants so strenuously insist, that it is affirmatively established by the proofs that grantor did deliver this deed to a third party, with instructions to deliver it to grantees on his death, and with the intent that it should thereafter be beyond his control or power to recall, we need spend no time with the numerous authorities cited upon the question of whether title passed before the second delivery and its effect as a deed between the parties at the date of the execution. That question is at rest in this court. The most emphatic utterance, perhaps, being found in Meech v. Wilder, 130 Mich. 29 (89 N. W. 556), wherein it is said:

“It is the well-established rule in this State that the delivery of a deed by a grantor to a third party, to be by him delivered to the grantee after the grant- or’s death, is valid. It conveys the fee, and operates as a conveyance in pnesenti, though the enjoyment is postponed until the grantor’s death.”

It is insisted that in such cases there can be no occasion to apply the doctrine of relation back to the first from the final and actual delivery to the grantee, because the fee was conveyed at the time of the first delivery. Whatever technical distinction may be discovered, as bearing upon passage of title by conveyance and testamentary disposition, the rule must rest upon the same principle of legal fiction.

This deed was executed April 8, 1908; the grantor died September 29, 1908; and the deed was first actually delivered by the bank to defendants as a physical fact on March 7, 1910. Whatever delivery is recognized as made to grantees before that time is a legal fiction, and, if distinguishable from the doctrine of relation, it is a distinction without more than an extremely technical difference.

As between grantor and grantee and those in privity with them, it may, by legal fiction, be held that the delivery to a third party for subsequent delivery to the grantee, who assents, operates as a full and complete delivery, but as is said in Hibberd v. Smith, 67 Cal. 547 (4 Pac. 473, 8 Pac. 46, 56 Am. Rep. 726):

“The assent can get back to the date of delivery to the stranger only by virtue of the doctrine of relation, which is a fiction of law in which there is always equity, never working an injury, and which is never permitted or applied so as to do wrong to third persons” — citing many authorities.

The decisions of this State fully recognize the principle. Heffron v. Flanigan, 37 Mich. 274; Flint, etc., R. Co. v. Gordon, 41 Mich. 420 (2 N. W. 648); Taft v. Taft, 59 Mich. 185 (26 N. W. 426, 60 Am. Rep. 291).

These few claims of creditors, consisting chiefly of the cost of burying the dead and necessities for the household, were existing, intermediate liens against the estate long before the second delivery of this deed, and the fiction of the first cannot be permitted to work a wrong by defeating them.

That the equities of the case are strongly in complainant’s favor is clear. The deceased is indicated to have incurred few obligations and been solicitous to care for his debts. After the father’s death, the son represented that the father owned this property, and directed that the funeral expenses be charged to the estate. While he has denied making this representation, he admitted promising to pay the debts, and gave the excuse for not doing so that threats of these proceedings prevented him from using this property to secure the means. When asked why he could not as well arrange it with complainant, who he admitted offered to take security on the property, he replied, “That is all right, but wouldn’t do it.” His own equivocal and contradictory testimony emphasizes lack of equities for the defense. He is seeking to maintain title to all his father had, and avoid even paying for the coffin he was buried in.

It is urged that equities cannot affect the legal questions involved in this litigation, and in no event could the misconduct of the son affect the rights of his wife, also a grantee named in the deed. She did not appear as a witness, and her attitude is not declared, except by her joint answer with her husband. As to the strictly legal questions involved, this contention is true; neither could what was said and done by him strengthen or weaken the legal status of prior creditors, but what he said and did is competent to consider as bearing upon his credibility as a witness and his understanding relative to delivery and acceptance of the deed prior to his father’s death.

The decree of the lower court set the deed aside absolutely as to all parties. Complainant is only interested to the extent of the proven debts of the estate, which amount to but a fraction of the value of the property. The decree should be modified to allow defendants to satisfy the same by payment of claims and costs within a reasonable time, in harmony with the rule declared in Reed v. Jourdan, 109 Mich. 128 (66 N. W. 947), and Chapoton v. Prentis, 144 Mich. 283 (107 N. W. 879).

With such modification, the decree is affirmed, with costs.

McAlvay, C. J., and Stone and Moore, JJ., concurred with Steere, J.

Ostrander, J.

I concur in the result announced in the opinion of Mr. Justice Steere, upon the ground that the testimony fails to establish a delivery of the deed, in escrow, by the grantor. If the delivery was established, then, in my opinion, a different conclusion and result would be inevitable. I do not concur in that portion of the opinion which proceeds upon the assumption that the deed was delivered in escrow.

Brooke, Kuhn, and Bird, JJ., concurred with Ostrander, J.


source: Caselaw Access Project

author: McAlvay, C. J.

license: Public Domain

text:
    BULLOCK v. WARD.
    Intoxicating Liquors — Warrant — Search and Seizure Act — Sheriffs.
    Under section 29 of Act No. 107, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 5044), wherein the requisites are set forth for issuance of search warrants, authorizing the seizure of intoxicating liquors unlawfully stored and concealed, an affidavit for such warrant, which does not allege in the language of the statute that the liquors are concealed in the place named therein, does not coDiply with the law, and the warrant afforded no protection to the sheriff in seizing liquors which were stored for sale in a county that had adopted prohibition.
    Error to Montcalm; Davis, J.
    Submitted April 28, 1914.
    (Docket No. 153.)
    Decided October 2, 1914.
    Trover by Julian W- Bullock against Alphonsus E. Ward and others for the conversion of certain intoxicating liquors. Judgment for plaintiff for less than his claim and he brings error.
    Reversed.

      R. A. Hawley, for appellant.

      L. C. Palmer, for appellees.
   McAlvay, C. J.

Plaintiff in this suit upon a writ of error asks this court to review and set aside a certain judgment entered upon a verdict directed in part against him in an action' of trover brought by him against defendants. The facts in the case are as follows :

Defendant Ward, at the time of the taking and conversion of plaintiff’s property, was sheriff of Montcalm county. The other defendants were his deputy sheriffs. Plaintiff was a registered druggist and pharmacist engaged in that business in the village of Fenwick, Montcalm county. He had given no bond for the sale of liquor as a druggist on May 1, 1911, and did not give such bond until July of that year. On May 19, 1911, at an early hour in the morning, the deputy sheriffs above named, acting under orders and directions of Sheriff Ward, who placed in their hands a search and seizure warrant, made a search of plaintiff’s premises in Fenwick, and seized and took away therefrom a large quantity of his property, being liquors with the receptacles containing them, of the claimed value of $284.

At the close of the proofs in the case, the trial court directed the jury to return a verdict in favor of plaintiff for the value of certain liquors and property taken by defendants, not described in the search warrant, to the amount of $29.45, and found defendants not guilty of the unlawful taking and detention of the other property mentioned and described in the declaration. The search and seizure proceedings had in this case were intended to be those provided for by what is known as the local option law of this State, and the questions raised upon the errors assigned by plaintiff challenged the validity of the complaint and warrant under which the officers justified the seizure of plaintiff’s property.

Plaintiff contended in the court below, and now contends, that:

“The complaint and affidavit made for the purpose of obtaining the search and seizure warrant involved in this cause conferred no authority or jurisdiction, upon the magistrate to issue such a warrant in that it did not set forth the statutory requisites.”

We notice that defendants insist this question was not raised in the court below. Our examination of the record shows that counsel is mistaken. Early in the case, counsel for plaintiffs stated to the court:

“The entire claim before the court is this: Have we a valid statute in this State authorizing the issuance of seizure warrants? If we have, does this paper, that was issued under that statute valid upon its face, disclose no legal defects upon the face of it? If it does, they had a right to seize them.”

And again, at the close of the proofs, plaintiff’s counsel made a motion for a directed verdict and, among other reasons given at the time, said:

“We assert this search warrant was not a legal process and would not operate as a justification for the reasons, as follows: * * * It isn’t stated, as I have already referred to, that affiant believes, or has good cause to believe, that such liquor is there on the premises concealed.”

This was understood by the learned trial judge, who, in denying plaintiff’s motion, among other things, said:

“The complaint itself in this case is within the statute. The warrant for search and seizure in this case is fair upon its face, so much so as would authorize the sheriff to act as he did.”

The following is a copy of the search and seizure warrant upon which the property of plaintiff was seized and taken away by defendants:

“State of Michigan,
“County of Montcalm — ss.:
“To George D. Bogart, Deputy Sheriff of Said County
—Greeting:
“Whereas, there has been filed with the undersigned an affidavit of which the following is a true copy, to wit:
“ ‘State of Michigan,
“ ‘County of Montcalm — ss.:
“ ‘The sworn complaint and affidavit of Frank Cole of Fairplains Township in said county, made and taken before me, William A. Briggs, a justice of the peace of the city of Stanton, in said county, upon the 18th day of May, A. D. 1911, who, being duly sworn, says that he has reason to believe and does believe that malt, brewed, fermented, spirituous, vinous, and intoxicating liquors, to wit, beer, whisky and alcohol, are being sold, furnished and given away as a beverage and kept for the purpose of being sold, furnished and given away in the drug store known as Bullock’s drug store at and in the unincorporated village of Fenwick, in the township of Fairplains and county of Montcalm aforesaid.
“ ‘Frank Cole.
“ ‘Subscribed and sworn to before me this 18th day of May, A. D. 1911.
“ ‘William A. Briggs,
“ ‘Justice of the Peace.’
“These are therefore to command you in the name of the people of the State of Michigan, together with the necessary and proper assistance to enter into the drug store known as Bullock’s drug store in the unincorporated village of Fenwick in the township of Fairplains in the said county of Montcalm and there diligently search for the said intoxicating liquors and implements, to wit, beer, whisky and alcohol and that you bring the same or any part .thereof found in such search forthwith before me to be disposed of and dealt with according to law.
“Given under my hand this 18th day of May, A. D. 1911.
“William A. Briggs,
“Justice of the Peace.”

The material part of section 27 of Act No. 107, Pub. Acts 1909, being the act under which the search and seizure proceedings were taken, which is necessary to be quoted, provides:

“Sec. 27. If any person makes a sworn complaint or affidavit before any magistrate authorized to issue warrants in criminal cases, that he has reason to believe and does believe that any of the liquors mentioned in section one of this act, are being .manufactured, sold, furnished, or given away as a beverage or kept for the purpose of being sold, furnished or given away or that any such liquors are stored, temporarily or otherwise, in any depot, freight house, express office, or in any other building or place with the apparent intention of being delivered for the purpose of being sold, furnished, or given away contrary to the provisions of this act, such magistrate shall immediately issue his warrant to any officer whom the complainant may designate, having power to serve criminal process, commanding him to search the premises described and designated in such complaint and warrant, and if such liquors are there found, to seize the same, etc.”

Section 29 provides:

“No warrant for search shall be issued until there has been filed with the magistrate an affidavit describing the house or place to be searched, the things to be searched for, and alleging substantially the offense in relation thereto, and that affiant believes and has good cause to believe that such liquor is there concealed: Provided, however, that any description that will enable the officer to find the house or place to be searched shall be deemed to be sufficient. The warrant for search shall be directed to the proper officer and shall show by a copy of the affidavit inserted therein or annexed and referred to, or recite, all'of the material facts alleged in the affidavit and describe the thing to be searched for and the place to be searched. A warrant for search and seizure substantially in the following form shall be sufficient:” (We omit the statutory form of the warrant.)

The principal objection to the sufficiency of the complaint and warrant under which defendants justify is that the affidavit (complaint), which describes the place to be searched, does not state, as required by section 29, that “affiant believes and has good cause to believe that such liquor is there concealed.” This contention of appellant is met by argument on the part of defendants:

“That the word ‘concealed,’ as used in section 29, is unnecessary and without meaning, * * * and, in view of the purpose of the act and the other provisions thereof, it cannot be possible that the legislature intended that the word ‘concealed’ must be used in the complaint.”

We cannot accept this contention for the reason that the language of this section in terms provides that:

“No warrant for search shall be issued until there has been filed with the magistrate an affidavit describing the house or place to be searched, the things to be searched for, * * * and that affiant believes and has good cause to believe that such liquor is there concealed.”

It prohibits the issuing of a warrant, unless the affidavit contains certain statements, among which is the one last above quoted, which is included as a requisite part of the affidavit, as explicitly as the place to be searched, the things to be searched for, and the other requisite allegations. It is therefore impossible for this court, where there is no ambiguity in the statute expressive of the legislative intent, to hold that the warrant may be issued upon a complaint which does not contain each and all of the requisites called for by section 29. The legislature provided further in this same section that the warrant for search upon its face shall “show by a copy of the affidavit inserted therein, or annexed and referred to, and recite, all of the material facts alleged in the affidavit and describe the thing to be searched for and the place to be searched.” By this it is evident that the legislature considered that it was providing for an extraordinary remedy of search and seizure, which is clearly in the nature of a criminal proceeding. It took great care to make plain and clear upon the face of the warrant that the requisite showing by affidavit had been made.

It appeared upon the face of this warrant that the magistrate who issued it had no jurisdiction, because of the insufficiency of the complaint. Defendants’ entire case depends upon the validity of this warrant, under and by virtue of which all of the acts charged against them, in taking and converting plaintiff’s property, were done. As a matter of law, this warrant was void and of no effect. It was not a legal process, and would not operate as a justification for the seizure of plaintiff’s property.

Other questions presented and discussed by appellant do not require consideration. The court was in error in refusing to direct a verdict against defendants, for plaintiff, as requested.

The one question remaining to be determined is the value of this property which, from our examination of the record, seems to be in dispute; otherwise this court could finally dispose of this case at this time.

The judgment of the circuit court is reversed, with costs of both courts in favor of plaintiff, to be taxed, and a new trial will be had for the sole purpose of an assessment of plaintiff’s damages.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Stone, J.

text:
    EBERTS v. MT. CLEMENS SUGAR CO.
    1. Master and Servant — Declaration—Pleading—Explosions —Boilers—Safe Place.
    Plaintiff’s declaration, alleging that he was injured, while he was in the employ of defendant, from an explosion of its boiler; that for a period of ten years the boiler had not been properly inspected; that excessive heat had been applied to the plates of the boiler, causing them to bulge and strain; that the boiler had become unsafe from use and overheating; that it was defendant’s duty not to subject the boilers in its factory to excessive heat; and that the duty rested on defendant to ‘ inspect, etc., was not demurrable for the reason that the declaration did not allege that the boiler was imperfectly constructed or of improper material.

      2. Same — Inspection—Nondelegable Duties.
    The duty to inspect a boiler or other machinery cannot be delegated by the master so as to escape liability by virtue of the fellow-servant rule.
    3. Same — Contributory Negligence — Declaration.
    Where the declaration averred that the defects in the boiler were unknown to plaintiff, and that he exercised due care and caution, the demurrer of defendant, which set up the objection that the plaintiff was shown to be chargeable with contributory negligence, was properly overruled.
    4. Jury — Challenge to Array — Jury Commission.
    Under Act No. 367, Local Acts 1895, creating a board of jury commissioners for' the county of Macomb, providing for an annual meeting on the first Monday of May in each year, and that the panel for the jury shall be selected from the assessment roll of the preceding year, the trial court was right in overruling a challenge to the array of jurors, charging that the commissioners used the assessment rolls for another year, and did not select the names from the roll of the preceding year, when the evidence showed that the assessment rolls for the year in question were not completed, and the jury commissioners had the rolls of the preceding year, as required by the statute.
    5. Same.
    No sufficient ground of challenge was proved, because defendant charged that the commissioners drew only nine names of jurors from one township instead of ten from each,, as provided by the local act affecting Macomb county, where its attorneys did not exercise any of its peremptory challenges and from the township which defendant referred to only two jurors were drawn on the panel.
    6. Master and Servant — Safe P^ace — Boilers—Inspection.
    And evidence supporting the averments of plaintiff’s declaration as to overheating the rear stay plates and lessening the bolts, also, as to failure to inspect the boiler, presented an issue for the jury.
    7. Trial — Argument of Counsel.
    Unfair comments of plaintiff's attorney, in the argument of a personal injury case, to the effect that defendant’s witnesses had never seen a boiler, etc., were cured by the statement of the court that the jury would remember the evidence, and by his instructions that it would be their duty to recall and be governed by the evidence.

      8. Appeal and Error — Review—Exceptions.
    In order to review, on error, prejudicial statements or argument of attorneys, it is essential to secure a ruling of the court hy bringing'the matter to the attention of the court, not simply by taking exceptions.
    9. Master and Servant — Trial—Instructions.
    Nor did the trial court err in charging the jury that the plaintiff’s right to recover depended largely on two essential facts: (1) Had the stay sheet and connecting stay bolts of the boiler become so defective as to make the boiler more dangerous than one in reasonably good repair? (2) If so, did the servant in charge have actual or constructive notice of the condition?
    10. Same — Evidence—Permanency oe Injuries.
    Also, it was v proper to charge that if the jury found plaintiff’s injuries to be permanent, they should award to him a sufficient sum of money to compensate him for loss of the ability to earn a livelihood, not exceeding the period of his expectancy; plaintiff’s proofs tending to show that his injuries were of a permanent character.
    11. Trial — Special Questions — Conclusiveness.
    There was no reversible error, on the trial of a case arising out of the explosion of defendant’s boiler, in declining to submit to the jury defendant’s fourth special question whether the first break in the boiler occurred at a point identified in defendant’s exhibit, i. e., in the combustion chamber of the boiler, where it was very doubtful if the affirmative answer to' the question would have been conclusive.
    12. Appeal and Error — Assignment op Error — General Nature —Saving Questions for Review — New Trial.
    An assignment of error that the court erred in denying defendant’s motion for a new trial, which contained the objction that the court erred in failing to charge as requested in defendant’s requests, was too general, where the requested instructions covered six pages of the record.
    13. Same — Weight oe Evidence.
    An assignment of error that the verdict was contrary to the evidence did not raise the point that the verdict was contrary to the overwhelming weight of the evidence.
    14. Same — Evidence. • .

      Held, that the testimony warranted a verdict for plaintiff.

      15. Evidence — Former Verdict.
    No error was presented by an assignment that the court erred in ruling out the records in a previous action for personal injuries in which plaintiff had recovered a judgment for injuries received in a railway accident, in no way connected, so far as the evidence disclosed, with the injuries for which he claimed damages.
    Error to Macomb; Tappan, J.
    Submitted April 13, 1914.
    (Docket No. 28.)
    Decided October 2, 1914.
    Case by Charles Eberts against the Mt. Clemens Sugar Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Thomas A. E. Weadoek, for appellant.

      John A. Weeks, for appellee.
   Stone, J.

This is an action for damages on account of personal injuries sustained by the plaintiff on the occasion of the explosion or failure of a steam boiler in defendant’s sugar factory on November 1, 1911. The declaration alleges that the defendant was at the time stated the owner, occupant, and operator of a factory for the purpose of manufacturing sugar from beets; that in its said factory it maintained and operated a system of steam boilers, constructed of iron and steel, 11 in number, for the purpose of generating steam to operate the machinery and do the other necessary work in such manufacture, which said steam boilers had been used by said defendant for a period of about 10 years; that at the time aforesaid the plaintiff was in the employ of said defendant; that his duty was to unload coal from cars situated on a railroad track adjacent to the place or room in said factory where such boilers were situated, by shoveling such coal from said cars through an open window and space directly into said boiler room, the place where plaintiff was engaged in said work being a distance of about 20 feet from one of said boilers, known and designated as boiler No. 2; that on the occasion of the injury complained of the plaintiff was engaged in such work of unloading coal, and was in the exercise of due care and caution, and was without fault or negligence on his part. It is alleged that it then and there became and was the duty of said defendant to use reasonable care to provide a safe place in which the plaintiff was to perform such work, and to provide, keep, and maintain each of its said systems of boilers, and particularly said boiler No. 2, in a reasonably safe and proper condition, so that the same would not fail, burst, or explode, because of the defective condition thereof, thereinafter mentioned, and thereby injure plaintiff while engaged in such work; that it became and was the duty of said defendant not to so overwork or overtax said boilers, or any of them, beyond their capacity, that the same would fail, explode or burst, and thus injure its employees or said plaintiff; that it was defendant’s duty not to overheat or over-fire the said boilers, and particularly boiler No. 2, so that the same would become strained beyond their capacity, and the parts thereof, particularly the parts of boiler No. 2, known as the rear stay plate thereof, become burnt, bulged, strained, and thereby weakened; that it was the duty of defendant not.to subject said boilers to an excessive heat and excessive pressure, so that the steel plates and steel bolts constituting the parts thereof would become burnt by excessive heat, and strained, bulged, and weakened, so that such boilers, or the parts thereof, would fail, explode, or burst, and thus injure the plaintiff and other employees of the defendant; that it then and there became and was the duty of the defendant to exercise great care and caution to ascertain whether the said boilers, or the parts thereof, and particularly the part of said boiler No. 2, known as the rear stay plate thereof, had become burnt by excessive heat, or strained, bulged or weakened, and to cause due inspection and tests to be made thereof, by competent, skillful, and efficient engineers and inspectors at reasonable intervals, so that defects, burnt condition, bulging, or weakness, due to excessive heat or pressure, could be discovered and thereby guarded against; and that it then and there became and was the duty of defendant to have efficient, skillful, and competent engineers, inspectors, and firemen in control of said boilers, who would properly and skillfully operate, control, maintain, and inspect said boilers as aforesaid.

The declaration alleges the breach of each and all of said alleged duties, and particularly that for a period of time, to wit, for a period of 10 years next preceding said 1st day of November, 1911, said boilers, or any of them, had not been properly tested or inspected by competent, skillful, and efficient engineers and inspectors; that by means of excessive heat and excessive pressure said boilers, and the parts thereof, and particularly the part of said boiler No. 2, known as the rear stay plate thereof, had become burnt, bulged, strained, and thereby weakened, and incapable of sustaining the steam pressure imposed thereon on said last-mentioned date; that a proper inspection and testing thereof, by competent, efficient, and skillful engineers and inspectors, at any time during the period of two years next preceding said date, would have disclosed that said boilers, and the parts thereof, and particularly the part of boiler No. 2, hereinbefore mentioned, were burnt, bulged, strained, and weakened, and were not in a condition reasonably safe to be used and operated as the same were operated on said last-mentioned date, and that the same was not in a condition reasonably safe to sustain the strain of the usual and ordinary steam pressure imposed thereon on said date, and would have disclosed the defective condition thereof, thereinbefore mentioned, and that said boilers, and particularly said boiler No. 2, was not properly cared for, or kept in repair, and was operated after the same became out of repair and defective, in that the same had become burnt by overheating, and in consequence thereof strained, bulged, and weakened, which defects and weaknesses aforementioned were, at and before the time aforesaid, unknown to the plaintiff, but were well known to the defendant, or, if not known, should have been in the exercise of due and proper care on its part; and that the explosion thereof, as thereinafter mentioned, resulted from overheating and overtaxing thereof, by means whereof the part of said boiler No. 2, known as the rear stay plate thereof, became burnt, bulged, strained, and weakened, by means whereof the same became liable to and did fail, explode and burst. It is alleged that on said date, while the plaintiff was engaged in such employment of unloading coal at defendant’s said factory, and while he was in the exercise of due care and caution on his part, by reason of said negligent acts of said defendant, said boiler No. 2 and the parts thereof, and particularly the part thereof mentioned, and because of the burnt, strained, bulged, weakened, and defective condition thereof, and consequent inability to sustain the steam pressure then and there imposed thereon, failed, exploded, and burst, and escaping steam therefrom enveloped, scalded, and burned plaintiff, throwing him with great violence to the floor, scalding and burning him, and throwing broken parts and debris of said boiler against and upon his body, and plaintiff was severely scalded, burned, bruised, injured, and wounded about his head, back, sides, arms, legs, and body, and all parts of plaintiff’s body were deeply scalded and burned, resulting in permanent scars thereof, and the left side of plaintiff’s skull was thereby broken and fractured, so that the broken bone penetrated and injured the brain substance, and so that a portion of the skull was required to be and was thereafter removed, and plaintiff’s upper front teeth were thereby forced out and removed, and the sight of the plaintiff’s right eye was thereby injured and destroyed, and dust and mud were thereby forced under the skin of plaintiff’s face, resulting in permanent disfigurement thereof, and the nerve centers of plaintiff were thereby injured, resulting in loss of power of motion of his right arm, leg, and side, and thereby plaintiff’s brain was injured, resulting in disturbance of brain functions and partial loss of memory, and plaintiff was injured by the shock, strain, and concussion he then and there received, and his nervous system was then and there affected and injured, all of which injuries were and always will be permanent.

To this declaration defendant demurred for the following reasons:

“(1) Plaintiff alleges in his declaration that the boiler which failed or exploded had been in use for 10 years, and does not allege that the boiler was imperfectly constructed, nor of improper material. Steam boilers are always dangerous, may explode at any time, which plaintiff well knew, and the defendant was not and could not be required to insure the safety of the boilers.
“(2) If the boiler was overtaxed and subjected to overheating or overpressure, as alleged in plaintiff’s declaration, such overtaxing, overheating or overpressure was caused by the fellow-servants of the plaintiff, and he cannot recover.
"(3) The engineer, inspectors, and others in charge of the boilers mentioned in plaintiff’s declaration were fellow-servants of plaintiff.
“ (4) If the rear plate, or any portion of boiler No. 2, mentioned in this cause, was burned so that it bulged outward and was thereby made weak, as alleged in plaintiff’s declaration, that fact was as apparent to plaintiff as to any one else, and if he continued working in the vicinity of the said boiler and did not give notice of such faulty condition and have the assurance that it would be speedily repaired, he was guilty of contributory negligence and cannot recover.
“(5) If plaintiff’s allegations as to the want of inspection, the condition of the boiler No. 2, the rear stay plates thereof, and the other portions thereof, referred to in his declaration, were true, it must long have been well known to plaintiff himself, and' if he had given no warning of the defective condition so observable by him, and, as appears by his declaration, he continued to work near and by the boiler No. 2 aforesaid, he was guilty of contributory negligence thereby, persisting in a place of known danger, and he cannot recover.”

Said demurrer was overruled by the circuit court, and defendant thereupon applied to this court to have such decision reviewed by certiorari, under the provisions of Act No. 310 of the Public Acts of 1905. The writ of certiorari was denied by us, and defendant now asks us to review such decision of the circuit court by assignment of error herein, in accordance with the provisions of said act.

The defendant having pleaded the general issue, the case came on for trial before a jury. When a full jury appeared the defendant challenged the array, for the following reasons:

“Because the board of jury commissioners of said county did not select the list of names from which said panel of jurors was drawn in the manner prescribed by law therefor.
“Because said board did not select such names making up said list from the proper assessment rolls of the several townships and wards of said county.
“Because, as appears by the records, the said board of jury commissioners used the assessment rolls for the several townships and wards of said county for the wrong year, from which to select said list of names.
“Because the said board did not select the number of names from all the assessment rolls of the several townships and wards prescribed and required by law.
“Because the drawing from the list prepared by the said board of jury commissioners by the circuit judge, sheriff, and county clerk of the panel of jurors for the March, 1913, term of said court was not conducted in compliance with the requirements of the statute.
“Because it does not appear from the record of the proceedings of said officers that said drawing was properly made from the lists prepared by said board for petit jurors.”

The said challenge to the array was overruled by the court, to which ruling the defendant excepted.

Act No. '367 of the Local Acts of 1895 provides a board of jury commissioners for the county of Macomb, and the manner of selecting jurors to serve in the circuit court for said county. Section 2 of this act provides that said board shall meet annually on the first Monday of May in each year, at the office of the county clerk, and shall then and there select from the assessment rolls of the several wards and townships of the said county, for the preceding year, a list of names of persons to serve as petit jurors in the circuit court of the said county for the succeeding year. It provides that the county clerk shall be the clerk of the said board, and shall keep a record of their doings in a book to be provided for that purpose, which record shall, at the close of each meeting of the board, be signed by the members thereof and attested by the said clerk, and shall then be evidence in all courts and places of the doings of the said board. This record was not offered in evidence, so far as appears by this record, and it is impossible to ascertain the actual facts that were before the court upon this inquiry. The defendant claims that the jury commission, at its May meeting in 1912, used the assessment rolls for the year 1912, instead of the assessment rolls of 1911, as the statute required.

After overruling the challenge, the court, after the jury had been instructed and had retired, permitted the testimony of Mr. Hall, who was the county treasurer in May, 1912, to be taken as to which.assessment rolls were used by the jury commission at th¡eir annual meeting in May, 1912. He testified that he gave said board the rolls of 1911, and that the assessment rolls of 1912 were not in his office at that time, that said last-named rolls were not in his office at any time in 1912, and that he was positive that the rolls used by said commissioners at the May meeting of 1912 were the assessment rolls of 1911.

It was the further claim of defendant that instead of 10 names being drawn from each ward and township, as required by the statute, they fell short of that in one instance, and only 9 names were drawn, and that there were two jurors on the panel that came from the township where there was a shortage. The local act above referred to provides that at least 14 days before the first day of any term of the circuit court for the said county at which a jury is to be in attendance, the said county clerk shall, in the presence of the circuit judge, and in case of his absence from the county, or of his disability to attend, then in the presence of the probate judge and the sheriff of the said county, proceed to select a jury for the next term of the said court in the manner following:

“The package containing the names of the jurors shall be arranged in alphabetical order, and shall in such order, beginning at ‘A,’ be separately opened and the slips therein placed in a box to be known as the jury box. The box shall then be shaken in such manner as to thoroughly commingle the slips, and one of the persons in attendance shall draw therefrom one of the slips of paper, and the name appearing thereon shall be a juror for the said term of court; the remainder of the packages shall then be successively-treated in the same manner in alphabetical order until such number of persons have been chosen as the said circuit judge shall have directed to be drawn for the said term, and such persons so chosen shall be the jurors for the said term, and each drawing after the first shall begin at the package next succeeding in alphabetical order the one last used in the preceding drawing. * * * A record of the said drawing shall be kept by the clerk in the same book in which the record of the doings of the jury commissioners is kept. When a name is drawn from the said box, and duly recorded, the slip containing it shall be destroyed and the remaining slips containing the names from the said township or ward shall again be returned to a package and sealed and indorsed as before to await the next drawing.”

The certificate of the drawing of the petit jurors for the term of court at which this case was tried was as follows:

“We, the said officers, did proceed to draw the said jurors in alphabetical order; we did first open the package marked ‘Ray,’ that being the next package succeeding in alphabetical order the one last used in the drawing last before this, as appears by the record of said drawing, and placed the slips therein in a box known as the jury box, caused the same to be shaken so as to thoroughly commingle the slips, and thereupon the county clerk drew therefrom one of the slips which contained the name of Lewis Broughton, and thereupon the remaining slips contained in said package were returned thereto, and the same sealed and closed to wait the next drawing, and in the same manner the following named persons were drawn as jurymen and in the following manner. [Here follow the names and townships from which they came.] The names appearing in the above list being the names appearing on the several slips as so drawn as jurors for the townships and wards set opposite their respective names above, and when in each drawing a record was made of the name, the slip containing the name was destroyed, and said drawing proceeded in said manner until the number of jurors heretofore ordered to be drawn by the circuit judge, to wit, 30, was drawn.”

This certificate was dated and bore the signatures of the circuit judge, sheriff, and county clerk. The objection made to it by the defendant was that it did not appear that the officers followed the packages in alphabetical order. The trial court ruled that it would be presumed that they did unless the contrary appeared, to which ruling defendant excepted.

Upon the trial of the case the plaintiff introduced testimony tending to support the allegations of the declaration. The volume of testimony is too large to warrant us in quoting at length therefrom. It was the claim of the plaintiff that by overcrowding or overheating the said boiler the rear stay plate became bulged or corrugated between the stay bolts, so that the holding strength of the rear stay plate was reduced, and the failure resulted; that this bulging had existed for two or three years prior to the failure; that it was a dangerous condition likely to result in a failure or explosion, and would have been readily disclosed upon due inspection; that the space in the stay sheet had been pressed, or bulged out by the internal pressure to the extent of one-eighth to one-half inch, the effect of which was to pull the threads of the rear stay plate and the stay bolts apart, that is, as the plate pushed out, the threads of the plate and the bolt, commencing at the internal side, would separate; that the internal threads would separate, while the threads on the external side would remain in contact and prevent leaking.

One of plaintiff’s witnesses, George Kopoydlowski, a boiler maker, examined the boiler in question in July or August, 1911. Among other things, he testified as follows:

“We went inside of the boiler to look for the leaks and see if there were any leaks in the boiler, and discover any weak spots in it. We examined it by going inside, and through it, and looking over every bit, and seeing if there were any leaks around there; that was our business to do that. We scratched around it with the chisels, and it shows whenever there is a leak; we don’t do much tapping. On that boiler we didn’t find any indication of any leaks. I looked at the rear stay plate and examined it.
“Q. Did you examine the heads of the stay bolts?
“A. We see the bolts. The bolts didn’t look good, as I said before; they were peeling off from the sheet a little bit, to tell the truth. We looked at the stay plate, and it was corrugated a little bit, that is all; it wasn’t straight. It was corrugated right straight across in the center of it.
“Q. How much of the surface of the stay plate was corrugated?
“A. I am guessing at it. I had no straight edge on it. I can guess at it, about one-eighth of an inch, and if I say any more or less I am not sure of it. I did not put a straight edge on it to see how much it was corrugated. I think it was raised one-eighth of an inch. I was inside that boiler probably an hour or 20 minutes or so, not any longer. Mr. Henze was there. He did not go inside of the boiler. After I came out of the boiler I had a talk with Mr. Henze, the chief engineer of the company. I told him that 'everything looks tight inside but the bolts.’ I told bim, 'They don’t look very good to me,’ and the chief says, 'It don’t leak?’ And I says, 'No,’ and he says, 'Is everything tight?’- and I said, 'Yes,’ and it was, and he said, 'Fix it so it don’t leak.’
“Q. What did you say to him that didn’t look good?
“A. Some of them stay bolts I said they didn’t look good to me; that they were peeling off, but they didn’t leak.
“Q. What was the condition of the stay bolts?
“A. That’s something I couldn’t say, because they didn’t leak, and what can I say? They were just peeling off or lifting off from the sheet, and the only way I could fix them was to hammer them over again.
“Q. How was the beading on the heads of the bolts?
“A. That’s what I am talking about; they were lifting off the sheet and were not close enough to the
“Q. Could you see any hammer marks on the beading?
“A. The stay bolts would be hard to tell, as they were all marked up, and they were all pounded up, and you can’t tell by the marks on them. There was a test made of the boiler while I was there. The chief engineer, Mr. Henze, tested the boiler. I looked at the gauge a couple of times, but I had nothing to do with the pumps. He put on a cold-water test.
“Q. How much pressure did he put on?
“A. As I looked at the gauge it was 90 pounds that I could see of cold water.
“Q. Did he put on more than 90 pounds of cold water?
“A. As I say, I see it 90 pounds, and probably he went up to 95, and may be not any more, as they couldn’t get any more from those pumps. * * * I saw the boiler after the accident, laying out in the yard back of the works.
“Q. What part of the boiler had failed?
“A. The back end of the boiler gave out, the rear stay plate; the back head gave out; the inside she gave out and pulled it out.”

John C. McCabe, city boiler inspector of Detroit, a man of experience, testified that he examined the boiler after the explosion and found bulging between the stay bolts; that the plate between the stay bolts had been bulged forward in one place as much as half an inch. He said:

‘T found the rear stay plate thrown forward to the tube sheet; I found bulging in between the stay bolts and found- marks of the hammer around about the stay bolt ends; around a large number of the stay bolt holes in the stay sheet which failed; I found a portion of the beading of the head showed marks by recent contact with the head, and in a greater portion of the surface where the heads had been in contact, there was no evidence of any contact, but, on the other hand, there were hammer marks showing that the beading had been off for some time.
“Q. What was the condition of the beading?
“A. The beading had been practically destroyed, and there is evidence that the stay bolts had been very badly hammered up. It was evident that on account of the buckling of the plates there had been leaks, and the only possible excuse for pounding up the stay bolts was to stop leaks temporarily.
“Q. Whether it had been done in a good workmanlike manner, hammering up those bolts?
“A. That work was entirely wrong, for the reason that it was very evident that the stay bolts were loose; the buckling of the plates necessarily pulled the threads holding the stay bolts from their contact with the stay bolts, and the only possible purpose which it could serve would be to stop temporary leaks. When I made my examination of the boiler, I found the greater portion of the plate above, possibly the third row from the bottom were more or less bulged; the greater bulges appeared to be at the higher part of the plate. Between a half and three-quarters of the stayed sections were bulged more or less. The greatest bulging I noticed was one-half inch, and from that down to one-eighth of an inch, and some three-eighths and some one-quarter. That bulging could not have been caused by the failure of the boiler in question. My calculations show that the plate could not have been bulged from an internal pressure of less than 337 pounds, as it was very evident there was no possible means of getting 337 pounds, or upwards on the boiler, and the only other possible way for it was by an increase of temperature that would reduce the strength of the plate to a point that would admit a bulging from the pressure which was carried on the boiler, which was not to exceed 105 pounds.”

The foregoing is but a small part of the testimony of this witness. He further testified that the bulging was the cause and not the effect of the failure of the boiler, in his opinion, and that the stay plate failed because of the weakened condition of the threads of the stay bolts, which would have been readily discernible by proper inspection, and that a proper test of the boiler required a hydrostatic pressure of 150 pounds. It was the claim of the plaintiff that Kopoydlowski did not make an inspection, as that was out of his line of business, but that Henze should have made a proper inspection after it was reported to him that the condition of the bolts was such as to attract the attention of the witness, in the manner described. On the defense Henze denied that Kopoydlowski made such a report to him, and Prof. M. E. Cooley testified that a bulge in a boiler of one-fourth to one-half an inch is ordinarily of no consequence; that a boiler with bulges in a rear stay plate, or sheet, from one-fourth to one-half an inch is reasonably safe for use, especially so if the stays themselves did not leak.

“Q. If a boiler had bulges in it, and it had been repaired, and had afterwards ran for nearly three years without leaking, what would be your judgment as to whether the bulges had any-effect on it?
“A. The bulges would not have had any effect on its strength in such cases as that. * * * I have investigated the boiler in this case very thoroughly. My first examination of it was. on January 22d, the second about May 5th, then the third last Friday, all in this year. The examination I made last January was very brief, and in expressing my opinion after that time, I took the testimony taken in the case to guide me, and it occurred to me then that the explosion might have resulted from the tearing away of the tube sheets, as was set up in that testimony, but my later examination showed that this was not the cause of the explosion, but rather the result of it. The condition of the fractured edges of the plate itself satisfied me as to this.
“Q. What, in your judgment, caused the failure of that boiler?
“A. After careful examination of the boiler itself, and the study of the testimony introduced in the case, I reached the conclusion that this explosion could not have been caused by the giving way of the stays, and when I came down and spent the afternoon examining the boiler, after the first time, I discovered another fracture which I had not found before, and which has not been referred to before in this case. I mean the fracture which is shown in this sketch by the heavy black line near the upper left corner of the combustion chamber, where the crown sheet joins the curtain sheet. I did not know this existed, until I looked into the boiler, and the first examination of It disclosed all the earmarks of an initial rupture. For boiler explosions are made up of two parts, first, an initial rupture; the boiler gives way- and drops, the pressure and the water and steam together create and form a presshre, which ruptures and tears the boiler all to pieces. The difference between a failure and an explosion is that when a boiler fails in some particular place, it lets the water and steam out without exploding and blowing the boiler asunder; both a failure and an explosion must have an initial rupture. ‘ This initial rupture is splendidly shown in Exhibit No. 15. You can see from this exhibit that the torn edges of the plate are doubled over and bent around, something like a seam of a hem on a garment, and the calipers show that the thickness of the plate where it is torn has not been reduced. It is 7/16, as near as I could measure it, and that indicates that it was torn like the plate at the manhole, but that it broke off, and it broke off like that to give way, the steam rushing out, caused these edges of the plate to turn around into the form of a seam. * * * There was no evidence whatever, visible to the' eye, that the tube sheet had ever been burned, nor did I see any evidence that it had been overheated. I noticed the bulges in the stay sheet, at the time of my examination, and from it I should say unhesitatingly that they were more of the result of the explosion, and I still think so, notwithstanding other testimony to the contrary. Those bulges were all the result of, and not the cause of, the explosion. I have listened to Prof. Bragg’s testimony as to the design of this boiler, and to me it seems perfectly correct. He is perfectly right in emphasizing the fault, due to the location of that outer row of stay bolts, next to the crown sheet. He might have emphasized more strongly the effect of expansion on the top row of tubes, the top of the combustion chamber, back to this top row of stay bolts, that under a difference in temperature, increased in length 3/16 of an inch; he might have emphasized more strongly the effect of that elongation on the bending of this plate, in the vicinity of this seam, which would start this initial rupture, and that in my judgment is what caused that plate to kick back and forth and start it. The location of these stays so close in the curve of the stay plate practically amounts to the expansion of the plate itself, and the riveting of it to the rear head of the boiler. This holds the plate as if in a vise, and expansion and contraction must have the effect of bending back and forth the plate in that vicinity. They should have been placed several inches away from this rigid point to allow for the plate to bend. Those stay bolts, in the .position they were in, were of no practical use, but did actual harm; they should have been located away from this sheet to give a chance to bend. As a result the bolt next to this is forced away beyond its capacity, and tends to strip the thread of the bolt.
“Q. What connection would that have with the initial rupture?
“A. If the threads were stripped off, it would produce a bigger load, would throw a bigger load on this same joint, and also a strain on the fracture itself. This Scotch marine boiler I have known to be in common use for nearly 40 years. The bulging itself is not particularly dangerous. If there was to be any bulging, due to low water, it would take in the crown sheet, and that is one reason why I thought this could not be due to overheated plates. Another reason is that if these plates had been heated to the point which would permit bulging, the bulging would not have stopped at % or % of an inch. * * * I take it that this bulge in the stay plate could not have been caused in the way stated, and as a matter of fact that could not be the source of any particular weakness in the boiler. * * *
“Q. State whether or not, in this boiler, it is possible for the heat to become so intense that the water is driven away from the rear stay plate?
“A. That is not possible, and you can speak with a great deal of positiveness on that; it is not possible for a blanket of steam to form next to the plate. * * #
“Q. Please give your attention to this answer: Tn a boiler of this construction, the products of combustion, owing to their velocity and quantity, naturally throw back and strike this rear stay plate before they can return, and enter the tubes to carry them off. On account of the intensity of the fire, the rate of generation of steam is very rapid on this plate, and in the generation of the steam it rises on the face of the plate, and by the time the steam from the lower portions unite with the steam generated higher up, it makes considerable of a blanket between the water and the plate, and in cases where the firing is extreme, or where there is scale, sediment, oil, or any other semi or non conductor in the water, there is great danger in overheating the plate, and causing bulging at comparatively low pressure.’ What do you say to that?
“A. I say there is nothing to it at all; it cannot possibly happen.
“Q. In case the stay bolts are 71/2 inches apart, would a bulging of less than a quarter of an inch, in your judgment, cause it to leak at the stay bolt?
“A. I shouldn’t expect it would.
“Q. What effect has the beading on the stay bolt, in adding to the holding strength of the bolt, if any?
“A. I think it adds a little, and it depends on the amount of the beading, and how well it is done; the beading in these boilers, I don’t think added greatly to the strength. * * *
“Q. What do you think of this testimony: ‘Whether a boiler whose stay plate bulges between the stay bolt a quarter of an inch would be in a reasonably safe condition for use depends in a measure on the pitch of the boiler; as regards to this particular boiler, it would not be in a good, reasonable, safe condition ?’
A. In my judgment the boiler would be safe under those condition's.
“Q. What do you think of this testimony: ‘Q. Do you think that a boiler with a bulge in it of an eighth to a quarter of an inch, where the stay bolts are iy% inches apart, would affect the threads on the stay bolts? A. Absolutely it would?’
“A. It might affect them a little theoretically, but practically not at all; if it did, leaks would result, which would be discovered at once, or very soon.
“Q. What do you think of this testimony: ‘I don’t think that the failure of this boiler was due in any way to the construction of the boiler?’
“A. To my mind it lies altogether on the design and the construction of the boiler, and that is the cause of the failure.”

There was other testimony to the same effect; also that a chemical examination of the stay plate of the boiler disclosed that for all purposes it was as it should be, and showed absolutely no trace of burning in the plate, and that the same was true of the stay bolts. In rebuttal there was testimony to the effect that the construction and design were proper, and that the crack referred to by Prof. Cooley was the result of the failure and not the cause of it.

In the course of his argument to the jury one of plaintiff’s attorneys said:

“The testimony that we have produced is from workmen. We haven’t tried to go to Ann Arbor or to the university to produce theoretical men, and men that have never seen a boiler before.”

This remark was excepted to by defendant’s counsel, whereupon plaintiff’s attorney said:

“Can I proceed without interruption?
“The Court: Counsel have a right to interpose an objection. The jury will remember the facts.”

At the request of defendant’s counsel three special questions were submitted to the jury. They were as follows:

“1. Was the rear stay sheet in the boiler in question-overheated before November 1, 1911?
“2. Was the rear stay sheet of the boiler in question burned prior to the accident on November 1, 1911?
“3. Did the bulges in said stay sheet, being one-eighth to one-quarter of an inch in depth, affect the stay sheet so that it was not reasonably safe on November 1, 1911?”

Each one of said special questions was, by the jury, answered in the affirmative.

The court declined to submit the following special question:

“4. Did the first break in the boiler, when the accident happened on November 1, 1911, occur in the spot marked in black on ‘Exhibit 5/ and shown in the photo ‘Exhibit 15/ being in the upper left-hand corner of the combustion chamber?”

To which ruling defendant’s counsel excepted.

The trial resulted in a general verdict for the plaintiff in the sum of $7,000. There was a motion for a new trial by defendant, the third ground therefor being: “The verdict is contrary to the evidence given in the case.” This motion was denied as not supported by the record, and counsel for defendant duly excepted. The defendant has brought the case here upon writ of error, and there are 91 assignments of error.

1. The first assignment o^ error is to the effect that the court erred in overruling defendant’s demurrer to the declaration. In considering the first ground of demurrer, we think it sufficient to say that, as we understand the declaration, the plaintiff does not seek to recover on the ground that the boiler was imperfectly constructed, nor because of improper material.

The second and third grounds of the demurrer raise the question of fellow-servants of plaintiff. Some portions of the declaration may be treated as surplusage, yet the duty to inspect is clearly alleged, as well as the breach of that duty. We have frequently held that this duty is nondelegable. The duty of inspection, when required by the circumstances of the case, cannot be delegated by the master in such manner as to avoid responsibility. Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572); McDonald v. Railroad Co., 108 Mich. 7 (65 N. W. 597); Orso v. Engineering Works, 164 Mich. 568 (129 N. W. 673); Druck v. Lime Co., 167 Mich. 154 (132 N. W. 492); Scendar v. Copper Co., 169 Mich. 665, 669 (135 N. W. 951).

The fourth and fifth grounds of demurrer are to the effect that if the boiler was defective as alleged, the fact was as apparent to the plaintiff as to the defendant, and that he was guilty of contributory negligence in continuing in a place of known danger. We have called attention to the allegation in the declaration “that the defects- in the boiler were, at and before the time aforesaid, unknown to the plaintiff,” and it is also alleged that plaintiff was in the exercise of due care and caution on his part. We passed upon this question in Cristanelli v. Mining Co., 154 Mich. 423, at page 429 (117 N. W. 910). We are of the opinion that the court did not err in overruling the demurrer.

2. The second assignment of error relates to the action of the trial court in overruling defendant’s challenge to the array. We are of opinion that in the state of this record it sufficiently appeared that the assessment rolls of the proper year were used by the jury commissioners. The rolls of 1912 were not yet completed. In any view of the matter we do not think that the challenge to the array could be sustained upon that point. Niles v. Schoolcraft Circuit Judge, 102 Mich. 328 (60 N. W. 771).

The other point raised as to the conduct of the jury commissioners is disposed of by our ruling in People v. Macgregor, 178 Mich. 436 (144 N. W. 869).

Further, it was claimed by defendant that only two jurors in the panel came from the township where there was a shortage, and the record does not show that the defendant exercised any of its peremptory challenges. The certificate of the circuit judge, sheriff, and county clerk, as to the drawing of petit' jurors for the term is not open to criticism, for it expressly appears that they “did proceed to draw the said jurors in alphabetical order.” In our opinion the court did not err in overruling the challenge.

3. The next 72 assignments of error relate to rulings, at the trial, in passing upon the admissibility of testimony. We have given them all very careful consideration, and have read the entire record, and are of the opinion that the court therein did not commit reversible error.

4. It is claimed that the court erred in refusing to direct a verdict for the defendant at the close of the evidence, for the reason that plaintiff had failed to malje out a case. We do not think that the court erred in that particular.

We have quoted enough of the testimony to show that upon the principal questions involved, there was a sharp conflict as to the facts and the conclusions to be drawn therefrom. It was the claim of plaintiff, and there was evidence tending to support it, that the boiler in question had been installed for 10 years; that two or three years before, the failure the boiler had been operated at a time when there was little or no water in it, resulting in overheating it; that at the time the fires were drawn it was discovered that the stay bolts had been loosened, and that there were corrugations in the rear stay plate.

Just prior to the campaign of 1911 a witness testified that he discovered the bulging and the condition of the stay bolts, as above set forth; he testified that he reported this condition to Henze, defendant’s chief engineer, who, it is claimed, made no effort to cause an inspection of the boiler to be made.

Upon these claimed facts the plaintiff invokes the application of the doctrine stated in Woods v. Railway Co., 108 Mich. 396 (66 N. W. 328), that while not an insurer, it was defendant’s duty to use reasonable and ordinary diligence in providing safe machinery and appliances in the first instance, and, by continued inspection at such intervals as the reasonable and proper conduct of such a business requires, to ascertain whether the appliances continue in safe condition, and, if unsafe, to put them in safe condition; that to the extent that this duty of inspection goes, it is the master’s duty, which he cannot escape or delegate.

5. The seventy-seventh assignment of error complains of that part of the argument of plaintiff’s counsel above set forth. The argument was improper .and unfair, as it was to the effect that all of defendant’s witnesses from Ann Arbor had never seen a. boiler. The fact was that the witnesses Cooley and Bragg had had large experience with boilers. But we think that the error was cured by the remark of the court that the jury would remember the facts. In the main charge the.court also particularly called the attention of the jury to their duty to recall and be governed by the evidence.

Referring to the other assignments of error upon other parts of the argument, it is only necessary to say that the record shows that defendant’s counsel simply excepted to the remarks of counsel, and it does not appear that the attention of the court was called to the matter, or its ruling secured. We have so often and so recently ruled upon this subject that a reference to the cases is hardly necessary. People v. Auerbach, 176 Mich. 23-48 (141 N. W. 869); People v. Danenberg, 176 Mich. 337-339 (142 N. W. 347).

6. The eighty-third assignment of error is to the effect that the court erred in charging the jury as follows:

“Now, gentlemen, having in mind the instructions given you and the opposing theories of the parties, you are further instructed that the plaintiff’s right to recover will be largely governed by two essential facts:
“First. Had the stay sheet and connecting stay bolts of the boiler in question become so defective and out of repair as to make the boiler more dangerous than a boiler in reasonably good repair?
“Second. If the stay sheet and connecting stay bolts were not in a reasonably good repair, and had become defective and dangerous because of such defective condition, did Mr. Henze, the engineer in charge, have notice of this condition?
“Or, if he had tio actual notice, were the stay sheet and stay bolts so out of repair that the company, in the exercise of reasonable care and prudence, should have made further examination, and discovered and repaired the defects?”

In view of other portions of the charge upon the subject of the duty of inspection, and in view of the special questions submitted at defendant’s request, we do not think that the court erred in giving the above quoted instructions.

7. The eighty-fourth assignment complains of the following language of the charge:

“The mortuary tables show that a man of his age has an expectancy of life of 33 years. That is shown by mortuary tables which are in use in this State, and it is a proper guide to you as to the probable duration of the man’s life.”

This language was prefaced by the following:

“If, under the proofs, you find that plaintiff’s injuries are permanent, then you will include in your award a sum of money to compensate him for loss of ability to earn a livelihood at common labor during the future years, not exceeding his expectancy of life.”

Defendant presented no requests to charge upon this subject, and as there was evidence tending to show that plaintiff’s injuries were permanent, and as to his condition at the trial, we think that the charge upon this subject falls within the rule stated by us in Belmer v. Tanning Co., 160 Mich. 669-678, 679 (125 N. W. 726).

8. The eighty-fifth assignment of error is that the court erred in refusing to submit to the jury the fourth special question submitted by the defendant. We are of opinion that, in view of the other questions submitted to the jury, it was not error to refuse to submit the fourth. We do not think that the answer to this question would have been conclusive. We doubt, if this question had been put and answered as the defendant desired, if it would have overruled a general verdict for the plaintiff. Power v. Harlow, 57 Mich. 107 (23 N. W. 606).

9. Error is assigned because the court denied defendant’s motion for a new trial. Turning to the motion we find that the second ground stated is that the court erred in not charging the jury as requested by the defendant in its several requests, which were refused by the court. An examination of the record discloses that defendant’s requests to charge cover six pages of the printed record. An examination of them shows that some were given by the court, and some clearly should not have been given. The assignment of error is too general to be considered, under our repeated decisions. Green v. Brookins, 23 Mich. 48 (9 Am. Rep. 74); Tupper v. Kilduff, 26 Mich. 394; Finch v. Karste, 97 Mich. 20 (56 N. W. 123); Wanner v. Mears, 102 Mich. 554 (61 N. W. 2); Snyder v. Patton & Gibson Co., 143 Mich. 350 (106 N. W. 1106); Nissly v. Railway Co., 168 Mich. 676 (131 N. W. 145, 135 N. W. 268, Ann. Cas. 1913C, 719).

Another ground of the motion was that the verdict is contrary to the evidence given in the case. We do not think that this assignment raises the question whether the verdict was contrary to the overwhelming weight of the evidence. We are of opinion that there was evidence to support the verdict, and it would seem from the result that the jury believed such evidence.

10. The ninetieth assignment of error is to the effect that the court erred in refusing to admit in evidence the records of the circuit court of Macomb county in the case of the plaintiff v. Detroit, Mt. Clemens & Marine City Railway, in an action in which he recovered $1,500 damages for personal injuries. 151 Mich. 260 (115 N. W. 48). Counsel for defendant does not give us the page of the record where this offer was made, and a patient examination of the ^printed record has failed to disclose any such offer. Plaintiff was cross-examined on the subject of such suit, and he testified that he recovered such sum for an injury in 1905. His physician testified that there was no relation between plaintiff’s condition at this trial, and the injury from which he suffered at that time. No error is presented by this assignment.

Finding no reversible error in the record, the judgment of the circuit court is affirmed.

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