text:
    PEOPLE v. COLLINS.
    1. Homicide — Death—Presumptions—Evidence.
    A charge, in a prosecution for murder, correctly advised the jury that death resulting from an assault, in the absenoe of any proof to the contrary, is presumed to be felonious — either murder or manslaughter — and that if it resulted from wounds inflicted by a deadly weapon, malice is presumed.
    3. Same — Trial—Instructions to Jury.
    Nor did the court err in stating to the jury the claim of the prosecution on the question of malice aforethought.
    8. Same — Harmless Error.
    But after a conviction of manslaughter any possible error in that respect was harmless.

      %. Criminal Law — Trial—Jurors—Citizens—Qualifications.
    Under the presumption that a juror is qualified, a juror who came to the United States from Canada in 1868 and took out full papers in 1864 will be deemed to comply with the statutory requirements affecting the upper peninsula of this State. 1 Comp. Laws, §§ 319, 844, 353. Art. 3, § 1, Const. 1909.
    5. Same — Argument of Prosecuting Attorney.
    The evidence was sufficient to justify the prosecuting attorney in arguing that respondent received certain bruises on his face by falling from his buggy, where it appeared that certain witnesses saw respondent at the time of the shooting and there were no bruises on his face, and that he subsequently on the same day fell from his buggy head foremost.
    Error to Chippewa; Steere, J.
    Submitted April 20, 1911.
    (Docket No. 119.)
    Decided May 8, 1911.
    Charles Collins was convicted of manslaughter.
    Affirmed.

      L. O. Holden and M. M. Larmonth, for appellant.

      Merlin Wiley, Prosecuting Attorney, for the people,
   Stone, J.

The respondent was convicted of manslaughter upon trial under an information charging him with having killed and murdered one Edward Winters. There was evidence to the effect that on the day in question respondent, who was a soldier in the United States army, had been downtown in the afternoon drinking at various saloons. Early in the evening he had hired a rig from Louis Belanger, and was driving it. He drove up to the Montreal House and stopped, and there met Winters. A witness testified:

‘ ‘ They appeared to have angry words. They continued about five or six minutes. Winters said: ‘ Come down to the Club, and I will settle it.’ They walked a few feet in the direction of the Club. Collins turned back and said ‘ To hell with you and your Club. You’re not going to get me down there to lick me,’ or something like that, and then stepped back. Winters kept following him up and he says, ‘Keep away from me. You’re a bigger man than me,’ or ‘ better man than me- I want nothing to do with you.’ Collins then got into the rig and turned the corner towards the fort. Winters stood out there, watching him for a few minutes, and then went into the saloon. When Collins went away in the rig, he says: ‘Wait there until I come back, you son of a bitch, and I will get you,’ and then drove away.”

Respondent was gone some 12 or 15 minutes. There was no evidence as to where he went, or what he did while away. When he came back, he stopped the rig, got out, and walked over toward a little store, known as Dago John’s, located just east of the Montreal House, on Spruce street, stopped for a few minutes, and talked with Nellie Bowers, one of the witnesses for the prosecution. He had his hands in his overcoat pocket, and then started towards the saloon door. The Bowers girl testified that she told him not to go in there; he might get hurt. He asked her what she said, and she repeated it, but she did not know whether he understood it or not. There was no testimony farther than that, that he knew Winters was in there. He started into the door, and just as he got there, as he opened the door, or as the door was opened from the inside, he met Winters. The assault then took place, and which party made the first assault was not made clear by the evidence. The respondent fired three shots, the first apparently going through the door, over the bar to the right, barely missing the bartender (who dropped behind the bar), and burying itself in the back bar. The other two shots lodged in Winters’ body, one in the arm and the other in the abdomen. Winters came out of the door, and said: “I am shot.” He was staggering, and groaned.

Respondent went in through the barroom to the back door, and stopped there for an instant. No cut or bruise was then observed on his face. He turned and came back out of the front door bareheaded. ' He picked- up a hat off the sidewalk, put it on, found it was not his, and threw it down again. His hat was afterwards found lying on the step or sidewalk in front of the Montreal House. He drove away from there, and that was the last seen of him until he was taken in custody half or three-quarters of an hour later, save that two boys brought the rig to the police station from the south side of the water tower, and testified that the man who was driving it had collided with another rig, and had been thrown out, and seemed to land head foremost, and had gone away and left the rig. When respondent came to the post, where he was arrested, his face was severely cut and bruised. Winters died four days after the shooting from the effects of the wounds received from respondent.

The defense in the case was that respondent acted in self-defense; and it was claimed that Winters was armed with a “billy or black jack,” which he had been known to carry, and that he made an assault therewith on the respondent, and there was some evidence tending to support the claim, although as to who made the first assault was not made clear. The subjects of murder of the second degree and of manslaughter were submitted to the jury in a very carefully worded and well-considered charge fully covering the case in all of its aspects.

The case is here upon a bill of exceptions. There are 13 assignments of error. All but two relate to the charge or refusal to charge. One relates to the alleged disqualification of a juror, and one to the language used by the prosecuting attorney in his argument.

By the third assignment of error the following language of the charge is claimed to be erroneous:

“And it is the law that death, resulting from an assault, in the absence of any proof to the contrary, is presumed to be felonious — either murder or manslaughter. And where the death is shown to have resulted from the use of a deadly weapon, in the absence of any proof to the contrary, in the absence of any testimony in relation to that, the presumption is that the death was inflicted with malice — with malice aforethought in causing the death, in the assault.”

We are of opinion that there was no error in this part of the charge. That it stated the rule correctly will appear by reference to the cases of People v. Potter, 5 Mich. 1-8 (71 Am. Dec. 763); Wellar v. People, 30 Mich. 16-20; People v. Miller, 91 Mich. 644 (52 N. W. 65); People v. Wolf, 95 Mich. 625 (55 N. W. 357). The jury had already been instructed as to the burden of proof; that it is the law that the burden of proof was upon the prosecution to satisfy the jury beyond a reasonable doubt that the killing was not in self-defense; that no reasonable belief existed in the respondent’s mind, at the time, that he was in great bodily danger, as the facts and circumstances then appeared to him; that it was a question of fact for the jury whether or not at the time of the shooting respondent was assaulted, and, being assaulted, as the circumstances then appeared to him, did honestly believe that he was in danger, and that it was necessary to do what he did to protect himself from great bodily harm.

By the eighth assignment of error, the following language of the charge is complained of:

“ On the part of the prosecution, it is claimed that on the occasion in question this defendant, Charles Collins, having had an altercation with the deceased, his passion being aroused, prepared in some way. It is claimed that he equipped himself and came back, went to where he was informed the deceased was, met him, and killed him.”

It will be noted that the court here simply stated to the jury the claim or position of the prosecution. That such was the claim of the prosecution in the trial of the case is not denied. There was evidence that there had been an altercation, or dispute with anger, between the parties; that respondent had refused to go with Winters as he was a bigger man than he; that respondent when he went away said, “You wait there and I will get you,” or “ I will come back and get you;” that he was gone 12 or 15 minutes, and returned with a revolver in his possession, and at once sought out Winters, when the assault took place. We think that the prosecution might well make the claim it did, and that the court did not err in calling attention to it. We think the jury would have been justified in inferring from the evidence that respondent went away for the purpose of arming himself, under all of the circumstances; in fact, that it would be almost impossible for a reflecting or intelligent mind to come to any other conclusion. The claim and evidence upon this point had a bearing upon the question of malice.

As the respondent was convicted of manslaughter only, and acquitted of murder, that part of the charge, if error ( and we do not think it was ), would have been harmless error. People v. Farrell, 146 Mich. 264 (109 N. W. 440); People v. Sharp, 163 Mich. 79 (127 N. W. 758); State v. Winter, 72 Iowa, 627 (34 N. W. 475).

The twelfth assignment of error relates to the action of the court in overruling respondent’s challenge to talesman Lyman Beach, who was called as a juror, and stated that he had never taken out his second papers, and become a full citizen. Just what-the juror did say on his voir dire was that he was born in Canada, had lived in this country since 1863, took out full papers in 1863 or 1864 in Marine City; that he got only one paper, and could not say whether he was a full citizen or not.

It will be presumed that the jurors are qualified, and the burden of proving the existence of a disqualification is upon the party alleging it. In this State these qualifications are expressly prescribed by statute. Such qualifications may be changed from time to time. 24 Cyc. p. 496. Under our statutes a juror and a talesman must have the qualifications of an elector. See sections 819, 344, 352, 1 Comp. Laws. By Art. 3, § 1, of the Constitution of this State, it is provided that:

“Every male inhabitant of foreign birth who, having resided in the State two years and six months prior to the eighth day of November, eighteen hundred ninety-four, and having declared his intention to become a citizen of the United States two years and six months prior to said last named day * * * shall be an elector and entitled to vote.”.

For aught that appears here, this man may have come to this country under 18 years of age, and may have taken his full papers at one time, after five years’ residence, under the naturalization laws then in existence, and thus have been a full citizen. At all events, he was an elector, and was thus qualified as a juror. People v. Scott, 56 Mich. 154 ( 22 N. W. 274); People v. Rosevear, 56 Mich. 158 ( 22 N. W. 276 ); People v. Considine, 105 Mich. 149 (63 N. W. 196). There is no merit in this assignment of error.

Respondent’s thirteenth assignment of error shows that during the argument of the prosecuting attorney he said:

“Where did Collins get that bruise on the head? I will tell you. The evidence' shows that he fell out of the rig on his right side. That is where he got it.”

To which statement respondent by his counsel excepted. At the close of the argument, and before the jury were charged, the above statement was called to the attention of the court by the defense, and its correction asked for, on the ground that it was not shown by the evidence. The prosecuting attorney refused to concede that he was wrong. The court said it would leave the matter to the jury, if there was a dispute as to what the testimony really was, which ruling was duly excepted to. There was evidence from a number of witnesses who were in the saloon at the time of, and immediately after, the shooting, that they saw respondent, and did not observe any injury upon his face. Later, after he had been thrown headlong from the rig, there was such injury. We are of opinion that the argument of the prosecuting attorney was justified by the evidence, and that it might be fairly inferred therefrom that the injury to his face was received by the respondent after he left the scene of the shooting.

We have thus carefully gone over all of the points urged by respondent’s counsel at the hearing.

Other errors assigned which we have not specifically treated have all received careful consideration, and we find no error in the record.

The conviction and judgment of the circuit court must stand affirmed.

Moore, McAlvay, Brooke, and Blair, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    PEOPLE v. PETERSON.
    1. Criminal Law — Statutes—Firearms—Negligent Use — Malice.
    Respondent, charged under the statute with discharging a revolver while intentionally, without malice, aimed at certain persons, should have been discharged upon a record showing that he did the act maliciously in a state of intoxication. 3 Comp. Laws, § 11510.

      2. Same — Intoxication—Trial.
    And if he was so intoxicated at the time that he was incapable of forming an intent, he should have been acquitted.

    3. Same — Privilege—Witnesses.
    In the charge of the court to the jury, it was error to comment on the fact that respondent did not take the stand in his own behalf. 3 Comp. Laws, § 10211.
    Error to Lapeer; Smith J.
    Submitted April 20, 1911.
    (Docket No. 127.)
    Decided May 8, 1911.
    William H. Peterson was convicted of the careless use of a firearm.
    Reversed.

      Percy W. Grose, for appellant.

      Herbert W. Smith, Prosecuting Attorney, for the people.

       As to what intoxication will excuse crime, see note in 36 L. R. A. 465.

   Stone, J.

The respondent was convicted under an information charging that he did at the time and place named “discharge, without injuring any person, a firearm, while intentionally without malice aimed at and toward Wyman Draper, Clarence Sherman, Arthur Reed, and Jum Elliott, contrary,” etc.; the information being filed under section 11510, 3 Comp. Laws.

Three of the persons last above named were sworn as witnesses on behalf of the people. It appeared from their testimony that on the night of December 12, 1910, at about the hour of 11 o’clock, the respondent, who was engaged in business in the village of North Branch, came out of his place of business onto the street; that they were standing on the opposite side of the street from respondent; that, when he saw the witnesses, he said to them, “You fellows will get your eye full. I will get you sons of bitches;” that respondent then re-entered his shop, and in a few minutes came out armed with a revolver; that they immediately started to run; that respondent followed them, and called out, “Halt, I’ll get you;” that at the corner of the street the respondent, while looking for the witnesses, fell, and, upon rising, he fired the revolver toward them; that the witnesses ran because of his threats, and because they were afraid he had a gun, and would hurt them; and that respondent appeared to be angry and somewhat intoxicated. The respondent did not testify in his own behalf.

At the close of the evidence, counsel for the respondent moved the court to discharge the respondent, for the reason that it appeared from the evidence that respondent made threats and acted with malice, and that the shooting was not careless within the meaning of the statute. The motion was overruled and an exception taken.

In its charge to the jury the trial court used the following language:

“Butthere is evidence in this case, gentlemen, to go to you for your consideration as to whether or not this respondent was intoxicated. And I think this is the correct view of this statute that it could apply to a case where the respondent was bo intoxicated that he did not know what he was about and incapable of forming any intention. Suppose, for instance, that it were true (I am not saying that it is) that this respondent had been drinking, and that he was in such a mental condition that he was prepared to say anything, indulge in threats, threaten to do up these young men or any other men he might happen to see or fancy were annoying him. If he were so much under the intoxication that he was incapable of forming an intent to either kill, maim, or injure these young men, simply got the gun and fired it on the ground or in the air, or even pointed it toward these young men, if his mind was in such a condition that he did not know what he was about, then I say there is evidence to go to this jury. And, if they believe these facts beyond a reasonable doubt, then they could say the act was not done with malice; that his mind was incapable of having malice as the law describes malice.
“A legal description of malice would be an act accompanied with a malicious intent, an intent to injure, an intent as applied to this class of actions to do some serious harm, but, if the respondent were in that mental condition that he could not have any such intent as that, then he cannot he said to have malice such as I have described of a man who would do those acts not intoxicated and in his right mind. So I say to you, if you find beyond a reasonable doubt that this respondent was so under the influence of liquor, that he was incapable of forming an intent to injure these young men, or if he was incapable of having malice, as it is usually described, and it was simply a drunken act, that of going out and firing the gun upon the streets of North Branch regardless of whether he hit any one or not, then he is guilty under this statute. * * *
“ It may be true that if the respondent had testified he may have shown such acts on the part of these young men as to offer some excuse for a loss of temper, if it was due to a loss of temper, but you must take this case as it is before you, and it is before you only upon the testimony of these three young men and the village marshal.”

The respondent was convicted and sentenced, and the case is here upon a bill of exceptions. Error is assigned upon the refusal of the court to grant the motion to discharge the respondent, and upon the portions of the charge above quoted.

The statute under which the information was filed is entitled “An act to prevent the careless use of firearms.” In the case of People v. Chappell, 27 Mich. 486, Justice Campbell, in construing this statute, said:

“ The statute was designed to punish a class of acts done carelessly, but without any design of doing mischief, and the various sections must, under our Constitution, be construed so as to conform, to the title. The absence of malice is as necessary an ingredient in the statutory definition as the use of firearms. And the offense is purely statutory.”

See, also, People v. McCully, 107 Mich. 343 (65 N. W. 234); Bahel v. Manning, 112 Mich. 24-29 (70 N. W. 327, 36 L. R. A. 523, 67 Am. St. Rep. 381); Shriver v. Bean, 112 Mich. 508-516 (71 N. W. 145). The evidence all tended to show malice and ill will on the part of respondent, and we think that the motion to discharge the respondent should have been granted.

We are of opinion, also, that the court erred in its charge upon the subject of intoxication. If the respondent was so intoxicated that he was incapable of forming or entertaining an intent, it is difficult to see how he could be guilty of intentionally aiming the revolver toward the persons named.

Error is also assigned upon the charge relating to the fact that respondent had not testified as a witness in his own behalf. It is urged that it was the right of the respondent to go to the jury without any statement of the court as to what might have been shown by respondent’s testimony had he taken the stand. We think that the jury’s attention should not have been challenged upon this subject under the evidence disclosed in this record, and no comment was proper upon the subject. People v. Mitchell, 164 Mich. 583 (129 N. W. 698). We should hesitate, however, to reverse the case upon this point. It is not likely to occur upon a new trial.

For the errors pointed out, the judgment below is reversed, and a new trial granted.

Moobe, McAlvay, Beooke, and Blaib, JJ., concurred.


text:
    LOCKWOOD v. POPE.
    Injunction — Standing Timber — Evidence .
    Evidence held to sustain the finding and decree of the trial court dismissing complainant’s bill and dissolving an injunction restraining defendants from cutting timber on complainant’s farm, under the provisions of a contract for the sale of such timber.

      Appeal from Ingham; Collingwood, J.
    Submitted April 18, 1911.
    (Docket No. 139.)
    Decided May 8, 1911.
    Bill by Stephen A. Lockwood against George Pope and Benjamin Taylor to restrain defendants from cutting timber on complainant's farm. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Jason JE. Nichols, for complainant.

      Gardner & Hood, for defendants.
   Stone, J.

The bill of complaint in this cause was filed to restrain the defendants from cutting, removing, or destroying any of the timber and trees on the farm of complainant.

It is undisputed that on or about January 24, 1908, the complainant sold to the defendant George Pope a quantity of standing timber on complainant’s farm for the sum of $225, which amount was paid to complainant, $200 having been paid on the day of sale, and the remainder of $25 was paid a day or two later.

The case presents questions of facts only. The bill of complaint states that at the time named complainant sold to the defendant George Pope all standing timber and trees in the wood lot, on his farm, known and designated as the “elm woods,” above 14 inches in diameter, at the butt end thereof, excepting and reserving one large standing hickory tree, and also reserving one large oak tree in said “elm woods” lot, and also 25 oak trees standing in the wood lot at the north end of the farm, said lot being known as the “ oak woods,” and that said trees so sold in said “oak woods” lot were selected by complainant and said George Pope on the day such agreement was made, and many of them, if not all of such oak trees so sold, were then marked, so that said defendant would know the ones he was to have and cut, whenever he should enter upon the premises to cut the same; said marking being then and there done by said Pope and complainant. The bill further states, that, relying upon the honesty of said Pope that he would not cut any trees except those sold to him, complainant paid no attention to said defendant until about May 1,1908, when he discovered that said Pope had not only cut all of the trees in the wood lot known as the “ elm woods ” that were sold to him, and had removed them from said premises, but that said defendant had cut down and removed from said premises the large hickory tree and the large oak tree in said “ elm woods ” lot, reserved by complainant, and also had cut down and removed a large number of other trees from said lot, not sold to him by the complainant, and that many of the trees so cut down and removed were less than 14 inches in diameter. It is further stated that the said defendant wrongfully entered upon the lot next north of said “ elm woods ” lot, and, without any right whatever, cut down and removed a large number of large trees, to wit, 15 such trees of great value; and that, without any lawful right or authority, said Pope entered into said “ oak woods ” lot, and marked for cutting a large number of other valuable standing oak trees, in addition to those complainant sold to said Pope, and in some instances had girdled and destroyed the same, and claimed that he had bought said trees and all sawing timber in said “oak woods” lot, and that he was entitled to cut and remove the same, all of which claims were false. The bill further alleged that said defendant Pope was financially irresponsible. An injunction was issued as prayed for.

Defendants answered and claimed that the defendant Pope entered into an agreement with complainant, wherein and whereby he purchased all the standing timber and trees in the wood lot on the premises described in the bill of complaint as the “elm woods,” above 13 inches in diameter at the butt and 34 inches above the ground, except one large standing oak tree which complainant reserved unto himself, which tree was, at the time of filing the bill, standing on the premises; that he also purchased from complainant certain oak trees standing in the wood lot in the north end of the premises, described in the bill as the “ oak woods,” all of which last-named trees were at the time of the purchase thereof marked by the said complainant with an axe by hewing the bark or blazing, for which he was to pay, and did pay, $225. Defendants by their answer denied that they or either of them had cut or removed, or attempted to cut or remove, any trees or timber other than that which they purchased from complainant. Defendants averred that complainant was at the premises almost daily, saw and knew what trees and timber were being cut and removed by them, and that he made no objection thereto. They prayed that the bill be dismissed. A general replication was filed, and the testimony was taken in open court.

Upon the hearing the complainant testified, among other things, as follows:

“The bargain between me and Mr. Pope was: I sold him the elm woods, except the maples and the hickories and one oak, and the pasture lot was not sold, and 25 red oak trees, and I was to receive of George Pope $225 for the timber over 14 inches known as the elm woods, all above 14 inches known as the elm woods except maples, hickories, and one oak; for $225, all over 14 inches, 20 inches above the ground. He was not to go outside the fence that surrounded the elm woods lot. That was the agreement. I was to have the pasture lot north of the elm woods lot myself. Mr. Taylor, my wife, and my wife’s father were there at the time the bargain was made. After we talked it over, I went down in the back woods with them, took an axe and marked the trees that he could have. I did the marking, did it by hewing off a little piece of bark on the trees he was to have. The trees I marked in the woods lot were all one kind, red oak. There are elms and a few basswood in the so-called woods lot. This was never called the elm woods, the wood lot or pasture lot as I have called it. There were some basswoods in the piece that I have denominated the elm woods. I claim that he had no right to take the hickory, that that was the agreement; and I also claim that he had no right to take any trees from the wood lot just north of the elm woods. I also claim he had no right to take any timber below 14 inches, 20 inches above the ground, nothing less than 14 inches through.”

A number of witnesses testified on behalf of complainant, including his wife. She claimed to have heard the bargain.

The defendant Taylor testified, in part, as follows:

“On January 28, 1908, Mr. Pope and I were over at the home of the Lockwoods. They made an agreement then about the timber. We talked about what the agreement should be. They had talked about the agreement, and then we went back in the woods. He said he would go back and look the timber over, and they went back, and Mr. Lockwood took his axe. First we went down to the elm lot. We started right out by the house, and went clean up through this rail fence on the north side of the wood lot. Then we passed over a little cleared strip of land to the oak woods. He was to have all there was in this here up to that fence on the north of the wood lot, so called. He was to have the woods in this lot, what they have called the elm woods, and this point south of the wood lot. Then we looked over all the timber and passed to the oak woods. Mr. Pope and I were along with them. They went around to the trees and blazed what they thought was not getting any better, the timber, and then came back up to the house and made the bargain. * * * They talked a little while longer, , and they came to the conclusion that $225 would buy it, and drew up the paper. Mr. Pope told Mr. Lockwood that he had better draw up a little paper, so they would know what there was, what he had sold and what he had not. He said, ‘Yes,’ but didn’t know as it made any particular difference. ‘Well,’ he said, ‘that was the right way, and then there would be no misunderstanding.’ Pope said that. So they drew up the paper. Pope drew it, and Mr. and Mrs. Lockwood signed it. He paid him $200, and Mrs. Lockwood took the money.”

This witness testified that the only interest he had in the matter was that he loaned Mr. Pope the $225 that was paid for the timber, and Pope was to repay him in cut barn timber, as Pope had a mill near by. The writing that was signed was as follows:

“Williamston, Jan. 34, 1908.
“ Received of George Pope ($300) two hundred dollars in payment of timber described as follows, all the red oak that is marked. All the timber known as elm woods, except one swamp oak, down to 13 inches on stump, 34 inches from the ground.
“S. A. Lockwood.
“Mbs. S. A. Lockwood.”

Defendant Pope testified that he had talked with complainant about buying the timber before the writing was made; that they went down to mark the trees; that complainant marked them; that after they got back to the house they agreed upon the price; that he suggested a writing, and it was drawn; that he suggested that it state what timber he was to buy; that the writing, when made, was read to complainant and wife; and that both signed it, and the $300 were paid to Mrs. Lockwood. In speaking of the timber, he testified:

“ We went through these woods and looked at it. We started in back of the house into this corner. We came down through this elm woods, as they call it now, around up to this corner, and a fence up here. Then we went over the fence and down into the oak woods and looked over the oak trees that he wanted to let go, and then we came back. As we were coming back, we came across the swamp oak that stood there. That is just south of the wire fence, just south of what they call the wood lot, and he says, I want to reserve that tree for a stick to put under my barn, as one sill is rotten,’ and I says, ‘All right.’ * * * So when I drew up the writing I mentioned that oak tree he had reserved it, and we agreed upon it. I bought the timber all together. It was all put in together. When we went through the timber it was all called the wood lot, clear from the road back. For that matter, it was all one woods. It was all one elm woods. It was called the elm woods and pasture lot. It was all called the elm woods clear back. We commenced cutting at what they now call the east part of the wood lot. That was cut off first.
“Q. How about this wire fence south of what they denominated the wood lot ?
“A. Why there was only one wire, if any fence, there at that time. There was one wire. You could see only a little place where there was any wire. Lockwood was down while we were taking timber off from what is known as the woods lot. He was there pretty nearly every other day; I was going to say every day. He never made complaint to me about iny taking timber off from the wood lot. The first I learned from him about his complaining about our taking timber off the wood lot, he came down there one day and says, ‘I think you are cutting more timber than you ought to.’ He says, ‘You have cut that hickory tree.’ I says, ‘Didn’t I buy it ?’ He says, ‘ No.’ ‘ Well,’ I says, ‘ you go over to Mr. Taylor and look at that paper, and you will find it does not specify any hickory trees that you reserved.’ And he says, ‘Well, you want to leave that hickory tree.’”

He further testified that he was to have all of the oak trees that were blazed by the complainant, that it was not true that he was to have but 25, and that complainant marked every tree that is marked, and that they were all marked before the paper was signed. Other evidence was offered by the defendants.

We have not here attempted to refer to all of the testimony in the case, but only to give the trend of the testimony of the parties. We have, however, read the record with care. The trial judge, who heard and saw all of the witnesses testify, dismissed the bill of complaint, with costs. Not only was his opportunity to judge of the truthfulness of the testimony of the numerous witnesses better than is ours, but we are content with the conclusion reached by the circuit judge that complainant had not supported his bill of complaint by a preponderance of the evidence. The testimony of the complainant and his wife was not corroborated by the writing signed by them. In fact, they claimed that that instrument had been altered after it was signed by them. An inspection of the original satisfies us that such is not the fact. We have treated this case as did counsel and the trial court, as presenting questions of fact only.

We have considered all of the questions argued by counsel, and are of the opinion that the decree of the circuit judge should be affirmed, with costs to the defendants.

Moobe, Me Alt ay, Bbooke, and Blaib, JJ., concurred.


author: Hooker, J.

text:
    CHASE v. PORTER.
    1. Judgment — Appeal and Error — Certiorari—Drains—Decision on Appeal — Res Judicata.
    A judgment of this court on certiorari to review proceedings in probate court in which private property was taken for the purpose of a public drain, ordering that the proceedings be quashed, where the objection sustained related to certain misconduct of the jurors, applied only to the proceedings in probate court, and in no way affected the petition and action before the drain commissioner.
    2. Drains — Laches—Certiorari.
    A delay of 14 months before recommencing proceedings to take private property for a public drain, after the date of a decision in the Supreme Court reversing the cause, the delay being excused by a showing that a new drain commissioner was elected who was obliged to become familiar with the proceedings and to have new maps and surveys made, is not fatal to the validity of the proceedings. 2 Comp. Laws, § 4322; Act No. Ill, Pub. Acts 1907; Act No. 320, Pub. Acts 1909.
    Error to Calhoun; North, J.
    Submitted April 13,1911.
    (Docket No. 12.)
    Decided May 8, 1911.
    Upon the application of W- E. Rhodes and others to the county drain commissioner of Calhoun county to deepen and widen a drain, proceedings to take private property therefor were commenced, and, on review in the Supreme Court, were quashed. Arthur H. Chase, drain commissioner of said county, and John B. Rudesill, drain commissioner of Eaton county, subsequently applied to the probate court for the appointment of special commissioners to determine the necessity for such drain and to take private property for such purpose, and said application was denied in the probate court. On certiorari to the circuit court the order was affirmed. Petitioner Arthur H. Chase brings error.
    Reversed.

      Winsor & Miller, for appellant.

      Hatch & Hatch, for appellee.
   Hooker, J.

This record shows that proceedings were pending in 1907 before the drain commissioners of the counties of Calhoun and Eaton for the cleaning out of a drain, and extending, deepening, and widening the same, traversing parts of said counties. The matter was brought before commissioners appointed by the probate court of Calhoun county and a jury, and their determination was reviewed in the circuit court and later in this court, where their action was set aside upon the sole ground that the jurors accepted entertainment from one of the parties interested during the hearing of the case by them. The order of the circuit court had sustained the proceedings appealed from, and we said in the opinion that “theorder of the circuit court will be reversed, and the proceedings quashed.” Opinion was filed July 13, 1908. The formal order of this court included the following:

“Thereupon it is ordered and adjudged by the court that the order of said circuit court for the county of Calhoun, affirming the proceedings taken in the probate court of said coupty relative to the clearing out, deepening, widening, straightening, extending, and relocating the State and Indian Creek drain, be, and the same is hereby, set aside and vacated, and said proceedings in the matter of said drain are hereby quashed and held for naught. It is further ordered and adjudged that the relators recover of and from the respondent their costs of both courts to be taxed.”

“Saidproceedings ” clearly meant “the proceedings in probate court.” Subsequently another petition was filed in the Calhoun county probate court, but was dismissed at the hearing upon the ground “ that the order made in the Supreme Court as above set forth quashed all the proceedings in said drain, including the original petition for the drain.”

This order was affirmed by the circuit court on certiorari, and is now before us by writ of error. An investigation of the record in the case of Harrington v. Calhoun Probate Judge, reported in 153 Mich. 660 (117 N. W. 62), shows that the only criticism there made related to the proceedings before the probate court, and that proceeding was the only one passed upon, though there were other objections raised to that proceeding besides the one discussed in the opinion. It is possible that the petition filed in the probate court might have been held valid, and made the foundation for further proceedings, under 2 Comp. Laws, § 4346, which provides:

“ If any error be found in the proceedings, the court shall direct the county drain commissioner to correct such error or errors, and then proceed the same as though no error had been made.”

It does not appear that such direction was asked, and, in fact, the court ordered the quashing of the proceeding that was before it; i. e., the proceeding in the probate court. It made no order expressly relating to the proceedings anterior to the filing of the petition in probate court, and the case now before us raises the question whether the effect of our judgment was fatal to the entire drain proceeding.

Counsel for the respondent says that, inasmuch as this court failed to order a new trial before the circuit court, that court had a right to assume that no new trial was intended. If this be assumed, it amounted to no more than a final quashing of all proceedings before the probate judge, unless by operation of law. We infer that such contention can alone support respondent’s claim. He says that the record of the first probate proceedings showed that objections to the earlier proceedings were made as grounds of attack upon the probate jurisdiction, and we find that to be true in the present record as well as the former. But we do not find that the record contains such proceedings or that any of those questions were tried or passed upon in either instance. Section 4346 already quoted indicates the intention of the legislature to save drain proceedings so far as they are regular, and makes it the duty of courts to point out the limit of regularity in proceedings passed on by them. We held in this case that the probate proceeding was wholly void, and upon that record we could not well have gone further, and we know of no decision that forbids the commissioner to renew his effort to carry to effect the proceeding pending before him by filing a new petition in the probate court.

Laches. It is said that the drain commissioners lost jurisdiction by delaying action for 14 months after the decision of this court was announced. 2 Comp. Laws, § 4322, provides that application shall be made to the probate court as soon as practicable. This delay is excused by proof by affidavit (apparently undisputed) for certiorari. It appears that our judgment was filed July 13, 1908. The present commissioner, Chase, succeeded Harrington in the office of drain commissioner January 1, 1908. He found much unfinished work. He made an effort to obtain a full understanding of the drain and proceedings pertaining to it, had a map made in the fall of 1908, and a survey bill printed in the spring and summer of 1909, which he did not receive until September, 1909. He filed the second petition on September 25, 1909. It does not appear that there was any intention to abandon this proceeding, and we are of the opinion that this delay should not preclude further proceedings. The case is well within the recent case of Ranney Refrigerator Co. v. Smith, 157 Mich. 302 (122 N. W. 91). The amendatory statutes (Act No. 111, Pub. Acts 1907, and Act No. 320, Pub. Acts 1909) do not affect the question. See section 2, p. 794, Pub. Acts 1909, which provides that “proceedings begun shall be carried on and completed under this act.”

The orders of the circuit and probate courts are reversed, with costs of all courts to petitioner.

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


text:
    SWEEZO v. CHEBOYGAN ELECTRIC LIGHT & POWER CO.
    1. Evidence — Judicial Notice — Electricity—Common Knowledge.
    The court will take judicial notice that it is a matter of general knowledge that electric wires of high voltage, even if insulated, are dangerous.
    2. Master and Servant — Contributory Negligence — Electricity.
    It was contributory negligence for an employé in a power station, in looking for a lost rubber ball that had fallen into a pit where there were wires of high voltage, which he had notice not to touch because they were dangerous, to lower a lighted lantern among the wires in the performance of no requirement of, or duty to, his employer.
    Error to Cheboygan; Shepherd, J.
    Submitted April 14, 1911.
    (Docket No. 38.)
    Decided May 8, 1911.
    Case by Elizabeth Sweezo, administratrix of the estate of Augustus Sweezo, deceased, for the negligent killing of intestate. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      G. 8. Reilley, for appellant.

      Frost & Sprague (Hall, De Foe & Henry, of counsel)* for appellee.
   Hooker, J.

The plaintiff, a widow, has brought this action to recover damages for the loss of her husband, who was an employe of the defendant, in charge of its electric generating station, at the time of his death.

In this station were two generating machines. He was killed by the electric current from No. 2, and No. 1 has nothing of importance to do with the case. The generating wheel of the machine was nearly 10 feet in diameter. It was supported upon journals in which its shaft lay and turned; the shaft being run by a water wheel some 30 or more feet distant. The journals were supported on standards of iron extending 3£ feet above the floor of the power house. They stood on top of the iron base, and that on the right end of the machine was about six feet distant from the generator. As we understand the record, the wheel extends below the floor into a pit about 28 inches deep and 6 by 8 feet in size, approximately. As near as we can understand from the record, the iron base upon which the standards rest lies upon the floor or ground beneath it, and surrounds the pit, forming a barrier 9 inches thick and a foot high above the floor. It is 40 inches from the top of the base to the bottom of the pit. This base is grounded and devoid of danger through contact with it. The current is taken from the armature which surrounds the whole wheel upon three* wires down in the pit, and conducted under the floor, to the switchboard. These wires were insulated and carried a current of high voltage. The distance from the side of the wheel to the side of the pit is two feet.

The negligence alleged is a failure to properly insulate and inspect the three wires in the pit and omission to properly warn deceased of their danger. The plaintiff’s husband was a man who had previously worked at railroading and in a sawmill six summers. In the fire hold o£ the mill was the dynamo which furnished electricity for the sawmill, and at noon he had been in the habit of going there to smoke. He was employed and began work on April 1, 1908, as night man, taking the place of one Willsey, who was advanced. He was killed on the night of July 7th following his employment, under the following circumstances: On July 6th his two children were playing with a rubber ball in the power house, and it fell into the pit of No. 2 generator. The plaintiff was present, and testified upon the trial that the “girl asked deceased to get the ball the next time the machine was not running,” and he replied “there, let it be — you can’t get it, nor I can’t get it. I will have to tell Mr. Willsey to get it.” The generator ran all night and the ball remained there. The next night the girl asked him again if he would tell Mr. Willsey to get the ball, and he said that he would. The plaintiff’s own testimony of what followed is inserted:

“Just then he raised up and marked on this paper, and the telephone bell rang at the same time. I, not knowing what the meaning of the telephone rings was — whether it was for the plant, or on the line — I didn’t pay any attention to it; and he just dropped his pencil as soon as he marked, and started back as if he was going to the telephone office. * * * I listened, and I didn’t hear him receive the message, and pretty soon he came out, and the. next thing I was seeing — of course, the next thing that brought my attention was him striking a match on the stove. I looked up, and he had the lantern. It is a lantern the same as that one there.
ilQ. The same as this lantern here ?
. “A. Yes, sir, it was, only it looked as if it was larger, to me, in the globe, and he had hold of the handle, just like that, and he lit the lantern. ' And I never seen him take it out of that position — but he started over. When he lit the lantern, I said, ‘ Why, papa, what are you going to do with the lantern ? ’ He says, ‘ I am going^ to see if I can see Laura’s ball.’ I says, ‘If you are going to look, I am going to look, too,’ and I just let my sewing drop on the floor and started right after him; and he made off as if he was going to the end of this—
“Q. Pit?
“A. Is that what you call it ?
“Q. Yes; now which end ? Next to the switchboard ?
“A. Next to the switchboard. He looked as if he was going there. Instead of that, he turned and kind of stepped back to the rounding corner, and he just kind of stooped over — I couldn’t say whether he let the lantern go down this way, or whether he still held it in his hand. I never seen him change it; but, as soon as he stooped over in that position, there was two lights lit up and it all sparkled two spark lights; and, of course, it excited me so that I didn’t know what to do.
“Q. Now what happened to him ?
“A. He commenced to shake, and I supposed that he was going to pitch forward, and he settled down onto this basin or this iron base; and I grabbed him right under his arms, and I laid him back onto the floor. * * * When Mr. Sweezo was standing at the side of me, when he left the stove, he had the lantern in his left hand. It did not look to me as though his body touched the base, but I do not know. After the light flashed, I could not say whether his body touched the base or not. He was pretty close to the base, and was bending over quite a little bit. I was close to the base, but did not feel any shock. * * * He was at the rounding corner of the base when he looked into the pit. He held the lantern down into the pit. I was so scared I didn’t say anything. I did not even see the wheel. I was not scared before he let the lantern down in the pit. I saw the flash of fire. My husband said nothing after that.”

The daughter, a girl eight or nine years old at the time of the accident, testified:

“ I remember when my father was killed. I was down to the plant that night. The first thing I said I asked him if he would get my ball, or ask Mr. Willsey to get my ball for me. He was sitting in the chair by the meter board. I was over by Charley by the meter board. When I asked him if he would ask Mr. Willsey if he would get the ball, he said he would ask Mr. Willsey. I heard my mamma when she asked him what he was going to do with the lantern, and he said he was going to see if he could see my ball. I went over near the pit to look for the ball. I was around on the other side from where my father was; the other side of the big shaft. I know where the standard comes up, and I was standing at the extreme end. The standard was between me and my father. I looked in the pit. It was dark down there — could not see much of anything. We used to play at the plant in the evening, and Mr. Willsey’s children also.”

Cross-examination by Mr. Reilley:

“ I wanted my father to get my ball on Monday night— that was the night I lost it. And asked him for it, and remember him saying he could not get it — he would have to have Mr. Willsey get it. He was going to have him get it on Tuesday morning but he forgot. I did not want him to get it because I thought he could not get it when the machine was running. I knew the machines made the electricity. I thought the only time to get the ball was when the machine was not running — that would be in the daytime.”

Upon the subject of warning, Harry DePuy, defendant’s bookkeeper, testified to the hiring of deceased by Mr. Spencer, defendant’s superintendent, and that Spencer told him—

“About being careful about coming in contact with any wires or anything like that; and I also heard Mr. Sweezo make the remark that he didn’t think the place up there could be any more dangerous than the one that he had then. * * *
Q. State the conversation in reference to the employment between Mr. Sweezo and Mr. Spencer.
“A. Why, Mr. Spencer told him that he was going into a very dangerous place there — that he would have to be constantly on his guard.
Q. Now you say that he told-him to be careful about contact with wires ?
“A. Yes, sir.
Q. What else, if you remember, did he say in reference to that subject to Mr. Sweezo ?
“A. He told him not to — any wires — not to come in contact with any wires whatever.”

Mr. Willsey testified:

“When Mr. Sweezo was first employed, I was over there with him 14 nights. My employment at that time was taking care of the generator in the daytime, and looking after the switchboard and machinery, and also the water. During the first three or four weeks I left him alone an accident happened. I was there shortly after. At one time, the coils in No. 1 machine got grounded with the case, and it caused the current transformers to break down and the current going from one to the other. It caused a fire. Mr. Sweezo was there at that time. When I went into the power house, he was carrying water in a drinking cup and throwing it onto this fire. I went down and pulled out a switch — killed the machine. It cut off the current, stopped it generating; and. we put out the fire. Mrs. Sweezo was there and my wife, also a young lady who taught school up there, and I believe Mr. Sweezo’s oldest son.
“Q. What did you say to Mr. Sweezo, if anything?
“A. Why, Mr. Sweezo seemed to feel very bad, thinking it happened the first time I had left the plant, and I told him it wasn’t any fault of his — that he shouldn’t feel any ways like that about it, and he told me that if we would keep a pail around there that he could get some water, and he could have prevented the fire burning so; and I told him then, I says: ‘ It is a lucky thing, Mr. Sweezo, that you didn’t use the pail.’ Isays: ‘There is a pail there in the adjoining room.’ I said: ‘It is a lucky thing, Mr. Sweezo, that you didn’t use the pail, because if you had taken that pail and throwed water onto that fire, as you call it, you wouldn’t have known what happened you.’ I said: ‘You might just as well take your bare hand and catch right hold of those wires as to throw water onto it by the pailful.’
”Q. Catch hold of what wires ?
“A. Those wires that he was throwing water onto.
“Q. What wires were they?
“A. They was the lead wires from this generator, which I pointed out to him. I says: ‘ Those wires there are the same ones that comes out, or that you see there in that pit.’
“Q. That is the pit where he was hurt ?
“A. No, sir; in No. 1 machine.
“Q. What did he say, if anything ?
“A. I don’t know as he said anything.”

Here was a direct reference to these wires in the pit and the extreme danger of contact with them.

Q. What, if anything, was the occasion and what was said in reference to those wires in pit No. 2 hy you to Mr. Sweezo ?
"A. Why, I remember one night we were standing there and talking about it, and I was showing him the wires, and I told him that everything on the back of the switchboard, as we stood by it, was of high voltage, the same as those lead wires that comes from this machine, that run through this pit No. 2.
" Q. Was anything said about coming in contact with the wires ? * * *
“A. Why, I don’t know as there was, only I just told him that those were the same wires that he saw at the switchboard as he saw in the pit.
" Q. At that time, or any of these times when you had a talk with him in reference to those wires — you say it was on more than one occasion — what was said by you to him, if anything, about the base — as to its construction, and if it ran to the ground, or anything of that kind ?
“A. Why, I told him that the base was connected with the earth purposely, so that if those coils had grounded with the case of the machine that he could not get hurt off from it.
"Q. What do you mean by the coils? Now, explain that just as nearly as you can to the jury — the coils being grounded with the case of the machine.
“A. Well, those coils — what we call armature coils — is the coils of wire that is in the frame of this big machine, as it is shown here in this picture. There is coils of wire here that is in this big cast iron case here, and they are insulated and sometimes they break down. I mean they get grounded with this iron, and by that way, why, we ground it, connect it with the earth, so that a person can’t get hurt from the outside of this machine. You see this sheet here — there is what we call the 4 armature coils ’— coils of wire around inside of that casing; and sometimes we have what we call a breakdown. The current burns through the insulation and causes an arc, or jumps, through this case, grounds it, and we take the base and ground it with the earth so that nobody can get hurt on it.
“Q. Now, when Mr. Sweezo first came there, during the first 14 nights that you was there, was there any talk between you and him in reference to contact with the wires there ?
“A. Why, I talked with him— * * * I talked with Mr. Sweezo about the wires; yes, sir.
“Q. Now, I want you to go ahead and tell the jury just what you said.
“A. Well, I cautioned Mr. Sweezo. I told him the voltage of the machine, what it generated, and what the wires was, and where the wires was that carried this voltage from this machine.
“Q. Now, I want you to tell the jury just the same as you told him. You say you told him the amount of voltage. Now, I want you to say what you told him. Go ahead and tell the jury just what you told him.
“A. Why, I don’t know as I called him ‘Mr. Sweezo,’ but it don’t make any difference. I called him ‘ Gus ’— that was his first name. ‘ Now ’ (I says) ‘ Gus, this generator, or those generators, generates 11,500 volts at any time, and those wires leading from this machine carries this voltage.’
“Q. What wires were you talking about ?
“A. Those lead wires from the machine that run through this pit. And I don’t remember just what all I did say; but I remember telling him that.
“Q. Now, then, in reference, if you said anything about the contact with those wires, that is what I want you to say. I want you to tell what you said to him.
“A. Well, I told him that they were very dangerous— never to go near them — that his business didn’t call him there, and not to do anything around that machine when it was running; that is, in the way of any more than his duty, feeling of those bearings and such as his duties were. He understood what his duties was.
“Q. Well, was there anything that called him in the pit or the handling of those wires that you had been telling him about ?
“A. No, sir.
“Q. Now, after he had been there some time, in reference to his handling the machines or not doing anything about the machines, did you ever have any talk with him along that line ?
“A. I did.
“Q. Tell the jury what it was.
“A. I told him to be very careful around this machine when it was running — not to do any cleaning around it— and also the governor, for fear that he would get something in the governor that would cause him some trouble, to let the cleaning go, that we could clean it when we shut it down, if we did, which we did occasionally. I used to caution Mr. Sweezo when I would leave there in the evening and say to him that, if anything happened he could not stop, to take his hat and walk out and call me — to take no chances. When I first went over to the power house after the accident, the lights were off, but I turned them on. I turned them on by putting in the switch of the switchboard. The switch was pulled out. When I turned on the lights, the cluster of lights and also the lights over the exciter and governor lit. If the lights had not been on before the accident, they would not have lit up as they did. The lights were turned off on the 7th of July, 35 minutes after 8, and were out in the neighborhood of 20 minutes. I got that from a machine that registered time at the office here.”

It also appeared that signs with the words “Dangerous” and “Hands Off” upon them were conspicuously posted in the vicinity of the wires and generator, and that the wires in the pit were readily discernible (though this last was disputed), and were identical with the wires at the switchboard.

Want of Proper Insulation. We infer from the testimony and the conduct of the case that counsel agree that the shock that killed plaintiff’s husband was caused by his lantern coming in contact with one or more of the lead wires in the pit when he lowered it to look for the ball. Counsel for plaintiff seem to claim that such contact would have been harmless had there been proper insulation upon the wires. There is a paucity of evidence upon that subject, if there is any that indicates that it is usual or feasible to have such lead wires so insulated as to prevent grounding through any insulation in common use. One witness testified that from his experience he was of the opinion that there would be great danger in such contact, where the man was well grounded, as deceased evidently was if he was in touch with the base.

A critical examination of the record impels us to say that it conclusively shows that the deceased knew of the presence of the lead wires in the pit; that the same wires went to the switchboard; that they carried a dangerously high voltage; and that he had been warned not to touch them either in or out of the pit, and that his duty did not call him to invade the pit in any way at any time, or to touch the machine except to oil the journals, when it was running. It is manifest that not only did the deceased understand the necessity of caution in all of these things, but even his wife and children were alive to it. Moreover, we may take judicial notice that it is a matter of general knowledge that electric wires of high voltage, even if insulated, are dangerous, and to be avoided.

We are aware that in all probability the deceased thought he could avoid contact with these wires, but he took the risk of that when he lowered his lantern into the pit where he knew the dangerous wires were, and he was negligent in so doing. He evidently did it against his own better judgment, which had led him to say that he could not get the ball, but Willsey would have to get it, and the girl to understand that it could be recovered only when the machine should not be running.

Beyond all of this is the further point that deceased was not acting in the line of his duty, and did not suppose he was. His duties were clearly stated by plaintiff’s own witness, Monroe. This was a most tragic affair, and appeals strongly to our sympathies, as it evidently did to those of the jury, but neither courts nor juries have any right to bestow charity at the expense of litigants who are under no legal obligations to compensate the unfortunate for their misfortunes.

We feel constrained to reverse the judgment. No new trial is ordered.

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


author: Blair J.

text:
    DARLING v. CITY OF MANISTEE.
    1. Municipal Corporations — Voting Machines — Elections — Contracts.
    Under Act No. 217, Pub. Acts 1905, tbe common council of a city may provide for tbe issuance of certificates of indebtedness to purchase voting machines after the adoption of the annual appropriation, notwithstanding provisions in the municipal charter prohibiting the appropriation of any funds after the date of the annual appropriation bill.
    2. Same— Contracts — Ratification.
    And if the number of votes in the common council in favor of purchasing the machines, which were retained and used by the city, was insufficient, the contract was either ratified or executed by the subsequent action of the municipal council in voting to issue certificates of indebtedness for the purchase price thereof.
    3. Same — Statutes.
    The statutory provisions contemplate the making of an appropriation to buy voting machines after the purchase.
    4. Pleading — Amendments—Discretion of Trial Court.
    The trial court did- not abuse its discretion, in an action on a certificate of municipal indebtedness assigned to plaintiff, in permitting plaintiff to amend his declaration by correcting the date of assignment as alleged.
    5. Municipal Corporations — Rescission of Contract — Plea— Breach of Contract — Sales.
    Having received and used voting machines for three years, without making any objections to the machines, a city might not avoid the payment of the purchase price by a claim that they failed to conform to the seller’s warranty.
    Error to Manistee; Withey, J.
    Submitted April 14, 1911.
    (Docket No. 67.)
    Decided May 8, 1911.
    Assumpsit by Louis S. Darling against the city of Manistee, on a certificate of indebtedness. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      F. H. Stone, for appellant.

      Grant & Neal (Fellows & Chandler, of counsel), for appellee.
    The action was brought to recover an amount claimed to be due plaintiff as assignee of a certificate of indebtedness issued by defendant city. The amendment to the declaration referred to in the opinion was as to the date of the assignment of the certificate of indebtedness to plaintiff by the voting machine company to correspond to the proof as to the date of assignment.
   Blair J.

At a regular meeting of the common council of the city of Manistee, held September 27, 1906,11 of the 14 aldermen being present, a motion was made—

“ That the mayor and clerk be authorized to enter into contract with the Abbott Voting Machine Company of Hudson, Mich., for the purchase of seven voting machines.”

This motion received seven votes in the affirmative and there were four negative votes. On the 28th day of September, 1906, the mayor and city clerk executed on behalf of the city an instrument in writing, in part as follows:

“ The Abbott Voting Machine Company,
“Hudson, Mich.
Gentlemen:
“Please enter our order for seven Abbott voting machines to be delivered on or before the 25th day of October, 1906, and paid for by the city of Manistee. Six hundred twelve dollars and fifty cents on December 1st, 1906, and six hundred twelve dollars and fifty cents on the first day of December each year thereafter until the sum of two thousand four hundred and fifty dollars has been paid, without interest.
“ Upon the following conditions and not otherwise,” etc.
“ If the machines do not comply with the above conditions they are to be returned at the expense of the said Abbott Voting Machine Company and the contract canceled,” etc.

An acceptance of this order by the voting machine company was indorsed upon it. The seven machines were delivered to the city in October, 1906, and are still in its possession. On December 4, 1906, a motion was adopted by a vote of 10 to 1—

“ That the mayor and clerk be authorized to sign three certificates of indebtedness of $612.50 each, payable to the Abbott Voting Machine Company, Hudson, Michigan, in payment of the purchase price of voting machines.”

At the same meeting, the report of the finance committee recommending the payment, among other items, of “Abbott Voting Machine Company, first payment on contract, $612.50,” was adopted by unanimous vote of the 11 aldermen present, and this payment was made. No. 2 of the certificates of indebtedness was as follows:

“ Know all men by these presents, that the city of Manistee, in the county of Manistee, and State of Michigan, acknowledges itself indebted to the Abbott Voting Machine Company, of Hudson, Michigan, or bearer, providing the said machines prove to be satisfactory and in accordance with a certain contract entered into by and between the said Abbott Voting Machine Company and the said city of Manistee, on the 28th day of September, 1906, in the sum of six hundred twelve and fW dollars for value received, which the said city of Manistee promises to pay to the Abbott Voting Machine Company or bearer, at the office of the city treasurer, Manistee, Michigan, December 1, 1907, with interest at the rate of 4 per cent, per annum after due until paid, according to the terms of said contract.
“ This certificate of indebtedness is one of a series of four certificates of six hundred twelve and dollars each, amounting in aggregate of twenty-four hundred fifty dollars, issued by the said city of Manistee, to the said Abbott Voting Machine Company, in payment of the purchase price of voting machines, according to the terms of said contract, pursuant to Act No. 217 of the Public Acts of 1905.
“ In testimony whereof, the said city of Manistee has caused this certificate to be signed by its mayor and clerk this 5th day of December, 1906.
[Seal.] “Jas. A. King, Mayor.
“ C. A. Gnewuch, Clerk.”

The evidence is undisputed that the defendant, through the records of its common council, has adopted these machines, provided for their use, used them, paid bills concerning them, and in every way has acted in reference to them as though the machines belonged to the defendant and were accepted by it. The machines have been in the possession of the defendant since October 26, 1C06, up to and including the time of the commencement of this suit on August 17, 1908, and were still in its possession at the trial thereof. The defendant has never officially claimed to the Abbott Voting Machine Company, nor to any one else, that said machines were not satisfactory and did not comply with the terms of the contract. The defendant, prior to the commencement of this suit, has never offered to return the machines or by its proper officers notified the Abbott Voting Machine Company that it had any complaint to make in reference to said machines. This suit was brought upon the above-described certificate by the plaintiff as assignee of the voting machine company and resulted in a verdict in his favor by direction of the court. The defendant brings the case to this court by writ of error.

The principal point made by the defendant is that the common council had no power to authorize the mayor and city clerk to enter into the contract and to execute the certificates of indebtedness for the reasons:

“ (a) That there never was a resolution passed authorizing the mayor and city clerk to sign this contract, or to execute the certificate of indebtedness in question in this suit.
“ (6) That the motion purporting to authorize the may- or and city clerk to sign the contract did not pass and should have been declared lost by the presiding officer.
“(c) That there was no previous appropriation made for the purpose of purchasing these machines or for the incurring of the obligation to pay for them.”

In support of his contentions, counsel cites section 7 of chapter 8 and sections 10, 12, 14, and 15 of chapter 26 of the city charter. Section 7 provides, among other things:

“No money shall be appropriated except by ordinance or resolution of the council, nor shall any resolution be passed or adopted except by a majority of all the aider-men elected to office, except as herein otherwise provided.”

Sections 10 and 12 provide for the preparation of estimates and the passage of an annual appropriation ordinance in the month of September specifying the objects and purposes for which appropriations are made for the ensuing year. Section 14 provides that:

“After the passage of the annual appropriation bill, no further sums shall be used, raised or appropriated; nor shall any further liability be incurred for any purpose, to be paid from any general fund.”

Section 15 provides:

“ No improvement, work, repairs or expense to be paid for out of any general fund, or street district fund, excepting as herein otherwise, provided, shall be ordered, commenced or contracted for, or incurred in any fiscal year, unless, in pursuance of an appropriation specially made therefor, in the last preceding annual appropriation bill,” etc.

It is agreed that no specific appropriation was ever made for the purchase of the voting machines. It was contended by the plaintiff that the validity of the proceedings depends upon the provisions of Act No. 76, Pub. Acts 1895 (1 Comp. Laws, § 3804 et seq.) and of Act No. 217, Pub. Acts 1905.

Sections 3804 and 3805 provide, in part:

“That hereafter any township, village or city within this State may, by a unanimous vote of the township board of any township, or by a majority vote of the council or common council of any village or city, authorize, purchase and order the use of the Abbott or other voting machine in any one or more voting precincts at any election held within such township, village or city. * * *
“ Sec. 2. Before such township board, council or common council shall order, contract for, purchase, agree to purchase or order the use of any voting machine, they shall first test such machine by using the same under conditions, similar, as near as may be, to those of an actual election. * * . * And if, after testing said machine, as above stated, it shall prove satisfactory to said board, or council or common council, and fill all the requirements of section 3 of this act, they may then or thereafter purchase and order the use of said machine at all elections held thereafter in said township, village or city.”

Section 3750, 1 Comp. Laws, is as follows:

“ That the board of supervisors of any county may at their annual meeting by a two-thirds vote, authorize the use of any thoroughly tested and reliable voting machine at any township election, to be held within their respective counties, during the ensuing year after such annual meeting, and any city council, or village council may at any regular meeting authorize the use of such voting machines at any election to be held within their respective cities or incorporated villages during the ensuing year, but all voting by machines shall be a secret vote, as hereinafter provided.”

In 1905, five new sections were added to this act (Act No. 217, Pub. Acts 1905); section 13 reading as follows:

“ The local authorities, on the adoption and purchase of a voting machine, may provide for the payment therefor in such manner as they may deem for the best interest of the locality and may for that purpose issue bonds, certificates of indebtedness or other obligations, which shall be a charge on the city, town or village. Such bonds, certificates or other obligations may be issued with or without interest, payable at such time or times as the authorities may determine, but shall not be issued or sold at less than par.”

We are of the opinion that the provisions of the city charter cited do not apply to the purchase of voting machines provided for by separate and distinct acts, and that contracts made in conformity with the provisions of the act should be held valid, although not in conformity with general provisions of the charter.

The statute does not prescribe the form which the action of the common council shall assume, but provides merely for a majority vote in any method the common council may choose to adopt. Assuming that the majority vote required must be a majority of all of the aider-man elected, such majority was supplied at the meeting of December 4, 1906.

If the contract of September 27th was invalid because not adopted by a sufficient number, it was validated by the action relative to the certificates of indebtedness expressly referring to and adopting it. Again, the contract was one which the statute expressly empowered the common council to make, and, if it failed to make it in September, it either ratified it or made it anew in December.

The provisions as to the purchase of, and payment for, the machines are inconsistent with the view that the legislature intended that appropriations for their purchase should precede their acquisition. Provisions for payment, including appropriations therefor, if there is no fund available, are to be made after the purchase, and not before.

The amendment of the declaration so as to properly state the assignment was within the discretion of the circuit judge, which was properly exercised.

It is further contended by defendant that the circuit judge erred in not submitting to the jury whether there had not been a breach of the warranty contained in the contract. Under the contract, the machines were to be returned if they did not comply with the conditions, and the city could not, after fully accepting the machines, using them as its own without complaint and without offering to return them, raise the question of noncompliance by notice under its plea filed August 2,1909, nearly three years after the making of the contract. It was the duty of the city to act within a reasonable time, and, not having done so, it must be deemed to have accepted these machines as being in full compliance with the contract.

The judgment is affirmed.

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


author: Blair, J.

text:
    ROGERS v. PERE MARQUETTE RAILROAD CO.
    Railroads — Negligence—Train Dispatcher — Operator — Fellow-Servants.
    An engineer, injured in a railway wreck caused by a local operator's mistake in transcribing a correct and proper order sent by defendant’s train dispatcher, cannot recover, since the operator was his fellow-servant.

    Error to Wayne; Murfin, J.
    Submitted April 13, 1911.
    (Docket No. 16.)
    Decided May 8, 1911.
    Case by Wilson I. Rogers against the Pere Marquette Railroad Company for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Dohany & Dohany, for appellant.

      McPherson, Bills & Streeter, for appellee.

       Telegraph operator as fellow-servant of trainman, see note in 50 L. R. A. 429.
      Train dispatcher as fellow-servant, at common law, of train employes, see note in 7 L. R. A. (N. S.) 651.
      As to common employment generally, apart from statute, where no question as to vice principalship arises, see note in 50 L. R. A. 417.

   Blair, J.

Plaintiff, an engineer in defendant’s employ, was badly injured on the morning of July 20, 1907, in a collision of two trains at Salem, Mich. A special passenger train was to leave Ionia on the morning of July 20, 1907. It was known as an excursion train; its destination being the city of Detroit. At 2:26 o’clock in the morning of July 20th an order, known as ‘s Order No. 31,” was issued by the chief train dispatcher in the city of Detroit, and sent to the operator at Plymouth, who transcribed it and delivered it to the plaintiff. Plaintiff, in proceeding westward with his train, was to be governed by this special order. In transcribing the order the operator at Plymouth made a mistake, as a result of which a head-on collision occurred, and several passengers were killed and a number of others injured, and plaintiff received the injuries for which this action is brought. Plymouth is what is known as an initial point, and for the purposes of this case it is agreed that plaintiff was free from negligence, and that the operator at Plymouth was negligent, and that if this court holds that the operator at Plymouth, who made the mistake in transcribing the dispatch, was a fellow-servant of plaintiff, he is not to recover. If the operator at Plymouth was not a fellow-servant in receiving and transcribing the dispatch, then plaintiff is entitled to a judgment of $5,000.

The position of the plaintiff relative to the relation of the receiving telegraph operator to the trainmen, as stated in his brief, is as follows:

“A train order is a written document, the character of which is a matter of common knowledge to practically every one. Because of its extreme importance in modern railroading, it must be accurate in every detail. As we understand it, two important elements enter into the composition of a train order, namely, substance and form. Not only must it be accurate in substance, but it must be accurately formulated.
“A train order sent out by a chief dispatcher cannot be considered properly formulated until it is legibly and properly copied in writing upon paper by the operator who receives it. In so far as the substance of the particular train order in question is concerned, it originated in the mind of the chief dispatcher at Detroit some time during the night preceding the day of the accident, and he wired it to the operator at Plymouth at about 2:30 o’clock a. m. There is no doubt but that the chief dispatcher conceived in his own mind what is considered a safe and reliable train order, but until it was put in writing by the operator at Plymouth it lacked form and could carry no intelligence to the plaintiff. Without the aid and assistance of the operator, it could never have assumed either the form or effect of a complete order, and in no way could it have directed or controlled the operation of plaintiff’s train. An imaginary schedule of stations along a particular line of railroad, with the hours at which a train will arrive at and leave such stations, in the mind of a train dispatcher, does not constitute a train order. Something further must be done before it can assume the form of a written document ready for delivery to the trainmen. A chief dispatcher, standing alone and without the assistance of an operator, cannot prepare such an order for delivery.
“ It is therefore plain that an operator at a station is a necessary adjunct of the dispatcher at headquarters in the making up of train orders. The operator at Plymouth was merely the arm of the dispatcher at Detroit, giving form to an order, the substance of which originated in the mind of the dispatcher.”

As we understand the record, there is no claim that the train dispatcher was personally guilty of any negligence in transmitting the order, or in failing to require the order to be repeated to him by the operator, or in receiving an incorrect response and neglecting to make correction. Upon this understanding of the record, we hold that the circuit judge did not err in deciding that the operator was a fellow-servant of the plaintiff. Moon v. Railroad Co., 143 Mich. 125 (106 N. W. 715, 108 N. W. 78); Veit v. Railroad Co., 150 Mich. 358 (114 N. W. 233); Graham v. Railway Co., 151 Mich. 629 (115 N. W. 993, 25 L. R. A. [N. S.] 326); Stever v. Railroad Co., 160 Mich. 207 (125 N. W. 47).

The judgment is affirmed.

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


text:
    BURTON v. BRUNSWICK-BALKE-COLLENDER CO.
    1. Appeal and Error — Evidence—Directing Verdict.
    In reviewing on error a verdict directed for defendant, the evidence must be considered in the view most favorable to plaintiff.
    3. Master and Servant — Assumed Risk — Defective Machinery.
    A servant operating a saw, which, as he knew, was liable to throw back pieces of material which it was cutting, assumed the risk of the location of a lever by which the power could be shut off and which was out of plaintiff’s reach.
    8. Same.
    And he also assumed the risk arising from the fact that his helper, who was near the lever, but had not been instructed how or when to shut off the power, could not understand English, and was not required by the employer to control the starting or stopping of the machine.
    Error to Muskegon; Sessions, J.
    Submitted April 14, 1911.
    ( Docket No. 74.)
    Decided May 8, 1911.
    Case by Byron Burton against the Brunswick-Balke-Gollender Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      R. J. Macdonald and James E. Sullivan, for appellant.

      Fred L. Vandeveer, for appellee.
   Blair, J.

Plaintiff, a young man 28 years old, brought this action to recover for injuries alleged to have been caused by the negligence of defendant, while plaintiff; in the course of his employment, was operating a hand-feeding ripsaw machine.

Plaintiff had been in the employ of defendant for upwards of two years in various capacities, as common laborer, trucking and tailing machines, oiling the shafting and loose pulleys throughout the shop, operating a self-feeding ripsaw machine, a sandpapering lathe, tailing a plainer, and, finally, operating the machine at which he was injured. He had also operated other wood-working machines at other shops, and, as shown by his intelligent description of the various machines and the method of operation, was generally familiar with wood-working machinery. He was placed at work with the hand-feeding ripsaw machine about the 1st of March, and was injured on the 24th of the month. This machine was operated by electric power, which was turned on or off by means of a lever, which was so placed with reference to the operator that he could not reach it while feeding boards to the machine. A tailer, so-called, was employed to take the boards as they passed through the machine and cart them away. The plaintiff’s tailer was a Pole, who, as plaintiff knew, did not understand the English language. He was under plaintiff’s direction, and he taught him how to do his work by pointing and motioning.

Plaintiff testified:

“ It was the duty of the operator to start and stop his own machine, and while I was in charge of the machine I lived up to the rules of the company, and while I had charge of the machine I always started and stopped it myself.
“Q. And of course you had never shown him how to start or stop the machine, because you never expected him to do it ?
"A. No, sir. * * * It is the duty of the man who operates the machine to start and stop the machine. That was the rules and regulations of the shop. When I first went there, they had signs. I had seen those signs, which were tacked around the shop, that it was the operator’s duty to start and stop the machines. When I went on the sticker, I asked a fellow what that sign was, and he told me. The tailer never stopped or started the machine as far as I knew. * * * I had an‘accident there; that accident was on the 24th of March of this year.
“Q. Go on and tell the jury just how that happened.
“JL I had a piece about 10 inches wide, and I edged the piece up, made it straight; then I put it against the guide and cut it about halfway through, and as I was putting it through — it was a kind of a springy piece — and it started to flop, and when I got it about an inch or two past the splitter she got stuck right there, and I couldn’t push it any further, so to keep it from flopping I put my left hand on the side of this board, and I told the boy behind to shut off the power. Instead of that, he got a little excited and put his right hand right on the board, and back she came; it just whirled my body around and throwed mf hand right on top of the saw.
Q. Had you ever had an accident of that kind before ?
“A. No, sir.
“ Q. Did you think anything about such an accident ?
“A. No, sir; I never realized it.
Q. Anybody warn you about the danger of an accident of that kind ?
“A. No, sir.
Q. Why did you lay your hand on the board ?
“A. To keep it from flopping, because I was afraid she would get up on top of the saw and cause a fly-back.
Q. Why did you tell the man behind the saw to shut off the power ?
“A. Because I thought that was the safest way; after the power was shut off, then I could take the board out without any danger. * * *
Q. And you knew, as you have already said, that if you didn’t hold the material down that there would be a tendency for it to ride the saw?
“A. Yes, sir. * * *
Q. And you knew enough to hold on to that material, because if you didn’t you knew it would kick back ?
“A. Yes, sir.
Q. That is what you term a ‘ fly-back ?’
“A. Yes, sir.
Q. At the time you were injured you say the board began to jump up and down ?
“A. Yes, sir. * * *
Q. As soon as that happened, you spoke to this tailer at the end of the saw, and told him to close it off ?
"A. When I couldn’t get it through any further; yes, sir.
"Q. And for him to close off the power ?
“A. Yes, sir.
“Q. And the reason that you wanted the power closed off was because you were afraid of a fly-back ?
“A. Yes, sir.
“Q. And your experience had been such that you knew that a saw running toward you would have a tendency to kick the board and cause it to shoot back towards you ?
'‘A. Yes, sir.
“Q. And that was the reason you wanted the power turned off ?
“A. Yes, sir.
“Q. And the reason that you knew that there was a possibility of being a fly-back was because of'your experience in sawing and seeing it done in the various plants where you have worked ?
“A. Yes, sir.”

The allegations of breaches of duty relied upon for a recovery are in substance as follows:

(1) In not furnishing a reasonably safe machine, in that the control of the power was not accessible to the operator while operating the machine.
(2) In not instructing the plaintiff as to the latent dangers of his employment.
(3) In not instructing the tailer what to do in the event of an emergency threatening the plaintiff, as in this case.
(4) That plaintiff had a right to presume that defendant had properly instructed the tailer as to his duty in case of an emergency, and therefore did not assume the risk of his negligence.

The circuit court directed a verdict for the defendant, and plaintiff has removed the record to this court for review upon writ of error.

The tailer gave an entirely different version of the accident from that given by the plaintiff; but, under the familiar rule, we must dispose of the case upon the most favorable view for the plaintiff it will reasonably admit of.

It is clear that the plaintiff thoroughly understood the machine, was entirely competent to deal with the particular emergency which arose, and that instructions to him were unnecessary. He knew what to do to protect himself, but failed, because of the inaccessibility of the control lever, or the negligence of the tailer in not turning off the power when directed. The plaintiff, knowing that “fly-backs” might occur, and that in that event the safe thing to do was to turn off the power, and knowing that the lever was not accessible to him, and that the tailer would not understand his orders, continued his work, and thereby assumed the risk of the tailer’s ignorance and of the location of the control lever.

The tailer had nothing to do with the operation of the machine; his duties, as plaintiff well understood, were of the simplest character, requiring no instructions, except such as plaintiff gave to him, and he had no right to presume that the defendant would provide for instructing unskilled laborers what to do in case of emergencies occurring in the operation of machinery by skilled employés engaged for that special purpose.

The trial judge discussed the questions raised at length in a clear and convincing opinion, and we concur in the result reached.

The judgment is affirmed.

Ostrander, O. J., and Bird, Hooker and Stone, JJ., concurred.


author: Ostrander, C. J.

text:
    DREIBAND v. CANDLER.
    1. Attorney and Client — Lien for Compensation — Personal Injuries — Fees—Statutes.
    After having made a bona fide agreement in writing with a client to prosecute a personal injury claim for half of the amount to be recovered, the client to advance necessary costs, an attorney does not forfeit his lien by subsequently arranging to advance the preliminary costs for his client. 1 Comp. Laws, § 1136.

      2. Same.
    The effect of a contract to prosecute an action for a stated share of the proceeds, made in good faith, is to assign a portion of the judgment or claim.
    Case by Benjamin Dreiband against James D. Candler and George Y. Candler, copartners as J. D. Candler & Company, for personal injuries. Judgment for defendants and plaintiff brings error. On motion of plaintiff’s attorneys to strike from the files a stipulation discontinuing the cause.
    (Calendar No. 24,230.)
    Motion granted May 8, 1911.

      Sloman & Sloman, for the motion.

      Keena, Lightner & Oxtoby, contra.

   Ostrander, C. J.

Benjamin Dreiband, in October, 1909, consulted with Sloman & Sloman, a firm of attorneys in the city of Detroit, in relation to a claim which the said Dreiband asserted against J. D. Candler & Co., arising out of a personal injury received by the said Dreiband while in the employ of the said J. D. Candler & Co. He made an agreement with Sloman & Sloman, which was reduced to writing, employing them to prosecute his said claim for damages against J. D. Candler & Co.; the concluding part of the agreement reading as follows:

“If you will accept said employment, I will agree to pay you for your services one-half of any sum you may recover, either by suit or settlement, and, if suit is brought, I will advance the preliminary costs to the amount of $6 or $7, as the costs may be. I wish you to prosecute the claim as promptly and vigorously as circumstances will permit.”

After some negotiations, a suit was begun and tried in the circuit court for the county of Wayne, resulting in a judgment for the defendants. The proceedings were removed to this court by writ of error, a record and briefs were printed, and the cause stood for hearing upon the April, 1911, docket of this court. In said suit and proceedings the said plaintiff was represented by Sloman & Sloman. On March 30, 1911, a written stipulation for an order discontinuing said cause, signed by the parties to said cause, was filed with the clerk of this court, who thereupon struck said cause from the docket. The attorneys for the plaintiff have moved the court to strike said stipulation from the files and to reinstate the cause.

It appears by affidavit, and the fact is not disputed, that the defendants had notice of the interest of the said Sloman & Sloman in the said demand; but it is contended that inasmuch as it appears by the affidavit filed in support of said motion that after the original arrangement was made between plaintiff and his attorneys, and before suit was begun, his said attorneys agreed to advance costs necessary to the prosecution of the said demand, therefore the entire agreement is one which is within the prohibition of the statute, which reads:

“No attorney, solicitor or counselor, by himself, or by or in the name of any other person, shall lend or advance, or agree to lend or advance, or procure to be lent or advanced, any money, or any bond, bill of exchange, draft or other thing in action, to any person, as an inducement to the placing, or in consideration of having placed, in the hands of such attorney, solicitor or counselor, or in the hands of any other person, any debt, demand, or thing in action, for collection.” 1 Comp. Laws, § 1136.

The contention is not sound. The theory upon which a lien follows a lawful agreement entered into between attorney and client with respect to compensation is that the agreement amounts to an assignment of a portion of the judgment sought to be recovered or expected as the fruit of the litigation. Wildey v. Crane, 63 Mich. 720 (30 N. W. 327); Line v. McCall, 126 Mich. 497, 506 (85 N. W. 1089); Weeks v. Wayne Circuit Judges, 73 Mich. 256 (41 N. W. 269). There is no reason for considering the proper meaning and application of the statute which is referred to.

We are of opinion that if the original agreement was made in good faith, and bad faith is not asserted, it was a valid agreement (Grand Rapids, etc., R. Co. v. Cheboygan Circuit Judge, 161 Mich. 181 [126 N. W. 56]), and was not invalidated by the fact that counsel afterwards advanced money for the expenses of the litigation. If it appeared that the understanding and agreement was that counsel should bear the expenses of litigation, a different question would be presented.

The motion to strike the stipulation discontinuing the cause from the files and to reinstate said cause is granted, with costs to the moving party.

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